Webb v Secretary to the Department of Justice
[2015] VSC 616
•12 November 2015
| IN THE SUPREME COURT | Not Restricted |
OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 1811
| GREGORY ROBERT WEBB | Plaintiff |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE | Defendant |
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JUDGE: | Derham AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 June 2015 |
DATE OF JUDGMENT: | 12 November 2015 |
CASE MAY BE CITED AS: | Webb v Secretary to the Department of Justice |
MEDIUM NEUTRAL CITATION: | [2015] VSC 616 |
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JUDICIAL REVIEW – Application by prisoner – Application to review decision-making processes associated with prisoner’s completion of an offender behaviour program – Corrections Act 1986 – Sentencing Act 1991 – Public Administration Act 2004 – Relief sought in the nature of certiorari and mandamus - Supreme Court (General Civil Procedure) Rules 2005 O56.
PRACTICE AND PROCEDURE – Summary judgment – Application for summary judgment under s 63 of the Civil Procedure Act2010 – Civil Procedure Act 2010 ss 62, 63 –Application for summary judgment granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person by video link | |
| For the Defendant | Mr R McInnes, Solicitor | Victorian Government Solicitor’s Office |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Background......................................................................................................................................... 1
Applicable Law................................................................................................................................... 4
Self-Represented Litigant............................................................................................................ 4
Principles Relevant to the Summary Judgment Application................................................. 5
The Plaintiff’s Evidence and Submissions................................................................................... 7
The Secretary’s Obligations......................................................................................................... 8
Failure to Make a Decision and Give Reasons....................................................................... 11
E-notes Kept by the Prison........................................................................................................ 12
Consequences of the Failure to Complete the OBP............................................................... 14
Human Rights and the Charter................................................................................................. 15
The Secretary’s Submissions......................................................................................................... 15
The Role of the Court on a Judicial Review Application......................................................... 18
Relief in the Nature of Certiorari.................................................................................................. 19
Relief in the Nature of Mandamus............................................................................................... 30
Disposition of the Proceeding....................................................................................................... 32
HIS HONOUR:
Introduction
The plaintiff, Gregory Robert Webb, is a prisoner at the Marngoneet Correction Centre (‘the prison’). On 16 February 2006, he pleaded guilty to the murder of Jason Michael King and was sentenced by His Honour Justice Osborn to 15 years imprisonment with a non-parole period of 11 years.
The present proceeding involves an application for judicial review by the plaintiff under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’). The plaintiff seeks review of the decision-making processes associated with his completion of an Offender Behaviour Program (‘OBP’) at the Prison.
The defendant, the Secretary to the Department of Justice (‘the Secretary’), (as the Department was then known)[1] seeks summary judgment against the plaintiff under s 63 of the Civil Procedure Act 2010 (‘CPA’) on the ground that the plaintiff’s claim has no real prospect of success.
[1]Now known as the Department of Justice and Regulation.
For the reasons that follow, I give summary judgment for the Secretary and dismiss the proceeding.
Background
A detailed background to this proceeding is set out in a ruling I delivered on 23 April 2015. [2]
[2]Webb v Wheatley [2015] VSC 153 (‘ruling’).
In summary, Corrections Victoria (a unit of the Department of Justice) conducts OBPs as part of the rehabilitation of prisoners. These programs are conducted by psychologists and other medical professionals. The participation of a prisoner in such a program is voluntary.
In 2013, the plaintiff was assessed as needing to complete an OBP entitled the ‘Moderate Violence Intervention Program’ (‘MVIP’). He believed that his participation in the MVIP would do more harm than good because certain elements of his crime placed him at risk in the prison environment should they become known and a topic of conversation. He expressed his concern, but was reassured that the situation would be managed.
The plaintiff completed 33 sessions of the MVIP before he withdrew. There were six sessions remaining. He withdrew from the program because he felt his participation in the group component of the program put him at risk. The details of that risk and the circumstances giving rise to his withdrawal from the program are set out in some length in correspondence passing between the plaintiff and officers of Corrections Victoria, but are not material to the issues before me.
As a result of his withdrawal from the MVIP, the plaintiff became embroiled in a dispute about the decision-making processes associated with his completion of the OBP. He believes that he has been targeted as a scapegoat because he has become a whistle-blower who is causing embarrassment through this so-called dispute. He claims that he is being disadvantaged by a refusal to deliver the remaining six sessions of the MVIP to him on an individual basis, rather than as a member of a group. He also claims that correctional policy mandates that if he fails to complete a recommended OBP, this will have the effect of acting as a presumption against him being released on parole by the Adult Parole Board (‘APB’), and that this would be contrary to his legitimate legal interests.
By originating motion filed 1 April 2014, the plaintiff seeks orders in the nature of certiorari, to quash the actions of the Secretary for want of lawful jurisdiction, and mandamus to compel the Secretary to make a decision and provide reasons for that decision in response to the plaintiff’s legitimate interests in completing the MVIP. In addition, the plaintiff seeks a declaration that the Secretary failed to act according to law and therefore the ‘actions’ are void ab initio, or alternatively a declaration that the ‘actions’ of the Secretary were ultra vires.
By summons filed 15 May 2014, the defendant at the time, Sarah Wheatley, sought orders that:
(a) the Secretary to the Department of Justice, Greg Wilson, be substituted as a defendant to the proceeding in her place; and
(b) that pursuant to s 63 of the CPA, the proceeding be dismissed on the ground that it had no real prospect of success.
On 27 October 2014, I heard two applications made by the defendant:
(a) the first was the defendant’s substitution application; and
(b) the second was an application to set aside a subpoena issued at the plaintiff’s request on 9 October 2014 directed to the Secretary.
On 23 April 2015, I delivered my ruling on the applications, and ordered that the Secretary be substituted as defendant in place of Ms Wheatley, and that the subpoena be set aside. At that time, the plaintiff also made an application to amend his originating motion.
I determined to adjourn the Secretary’s summary judgment application, and the plaintiff’s amendment application, to 22 June 2015 so as to allow the parties to file further affidavit material and submissions.[3]
[3]By Order made 25 May 2015, I extended the timetable provided for in the Order made 23 April 2015.
Since my ruling, the plaintiff has attempted to file a proposed amended originating motion dated 31 May 2015 (‘PAOM’) and an affidavit in support of the same date.
In his PAOM, the plaintiff has expanded questions he wants determined by the Court, and the relief that he seeks. The plaintiff agrees that the question of whether his originating motion discloses a sustainable claim for relief should be determined on the basis of his PAOM, as if it had replaced his filed version.
The plaintiff’s PAOM includes a wide range of questions pitched at a high level. The questions concern whether there is in this case the exercise of a duty of a public nature that gives rise to the plaintiff having the right to relief in the nature of certiorari or mandamus. Most, if not all, of the questions he raises for decision go beyond the circumstances of this case and stray into general questions concerning the duties under the Corrections Act 1986 (‘Corrections Act’) applicable to all prisoners in any situation, and are therefore inappropriate to answer. To the extent that the questions are justiciable, I deal with them in the course of considering whether the Sentencing Act 1991 (‘Sentencing Act’) or the Corrections Act express duties of a public nature which give rise to correlative rights in the plaintiff to review a decision concerning his participation in an OBP, or to compel the making of such a decision.
Applicable Law
Self-Represented Litigant
A judge has a duty in relation to represented and unrepresented litigants alike to ensure that the hearing or trial is conducted fairly and in accordance with law.[4] It is a frequent consequence of self-representation that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[5] What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.[6] The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances — it must ensure a fair trial and not afford an advantage to the self-represented litigant: per Justice Bell in Tomasevic v Travaglini.[7]
[4]MacPherson v The Queen (1981) 147 CLR 512, 523; Dietrich v R (1992) 177 CLR 292; Werden v Legal Services Board (2012) 36 VR 637, [53].
[5]Neil v Nott (1994) 68 ALJR 509, 510; 121 ALR 148, 150; Minogue v HREOC (1999) 84 FCR 438, [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68, [104].
[6]Abram v Bank of New Zealand (1996) ATPR 42340, 42347; Minogue v HREOC (1999) 84 FCR 438, [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68 [104]; Tomasevic v Travaglini (2007) 17 VR 100, 130.
[7](2007) 17 VR 100, 130.
In Rajski v Scitec Corporation Pty Ltd[8] Justice of Appeal Samuels said:
In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
[8]Unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, (16 June 1986), 14.
I have sought to apply these tenets during the hearing, in considering the facts and arguments, and in the determination of the application by the Secretary to dismiss the proceeding.
Principles Relevant to the Summary Judgment Application
The Secretary makes application for summary judgment against the plaintiff under the CPA. The relevant sections state:
62 Defendant may apply for summary judgment in proceeding
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.
63 Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
…
(b)on the application of a defendant in a civil proceeding…
In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[9] Chief Justice Warren and Justice of Appeal Nettle (as he then was) summarised the test to be applied under s 63 as follows:
[9][2013] VSCA 15.
(a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125 (‘General Steel’);
(c) it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success; and
(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[10]
[10]Ibid [35].
The power to give summary judgment must be exercised in accordance with the overarching purposes of the CPA and take into account the fact that, if granted, a party will be deprived of the chance to pursue its claim or defence.[11]
[11]Ibid [42] (Neave JA).
If there is no real prospect of success, a court may nevertheless allow a matter to proceed to trial if:
(a) it is not in the interests of justice to summarily dispose of the proceeding (s 64(a) of the CPA); or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate (s 64(b) of the CPA).
Whether a proceeding should be allowed to go to a full hearing on the merits must be determined according to the circumstances of each case.[12]
[12]Barber v State of Victoria [2012] VSC 554, [15].
The Plaintiff’s Evidence and Submissions
The plaintiff has filed several affidavits and written submissions in this proceeding. As these documents contain a mixture of evidence and legal submissions,[13] I will deal with the plaintiff’s evidence and submissions together. My ruling made on 23 April 2015 deals with the plaintiff’s earlier evidence and submissions. .
[13]The affidavits contain a large amount of evidence which appears to be prima facie inadmissible, however, no objection has been taken by the Secretary to the contents of the affidavits.
The plaintiff has filed the following affidavits in this proceeding:
(a) affidavit sworn 19 March 2014;
(b) affidavit of service sworn 6 May 2014;
(c) affidavit sworn 14 July 2014 in support of the originating motion;
(d) affidavit sworn 14 July 2014 in support of the subpoena;
(e) affidavit sworn 26 July 2014 relating to service of the subpoena; and
(f) an affidavit sworn on 31 May 2015 in support of his PAOM.
Affidavits (a) to (e) above are referred to in my previous ruling.
The plaintiff also relies on two sets of submissions filed 28 July 2014 and 12 September 2014.
The Secretary’s Obligations
The plaintiff claims that the Secretary owes him certain obligations as the Secretary is exercising ‘a public power’. The plaintiff relies on s 1(a) of the Corrections Act, which states that the purposes of this Act include ‘… to provide for the establishment, management and security of prisons and the welfare of prisoners.’ He also relies on the fact that he is a prisoner serving a sentence under the Sentencing Act. The purposes of that Act include the provision of fair procedures for imposing sentences, to prevent crime and promote respect for the law by providing for sentences that facilitate the rehabilitation of offenders.[14]
[14]Sentencing Act 1991 (Vic) s 1(c)(i) and (d)(ii).
The plaintiff submits that the public purposes of protecting society and rehabilitating offenders are inseparable because most sentences are imposed with the aim of the offender returning to society as a contributing member.[15] He argues that the protection of society is best facilitated by the successful rehabilitation of offenders.
[15]The plaintiff cites R v Valentini (1980) 48 FLR 416, 420.
He argues that:
(a) under s 10 of the Corrections Act, the Governor in Council has by order appointed Marngoneet Correctional Centre to be a prison, where he is in lawful custody at this prison serving a sentence. Ms Wheatley is an officer and a public official appointed as a clinical treatment manager at the Prison and is responsible for conducting or facilitating the conduct of OBPs as they relate to prisoner rehabilitation; and
(b) officers appointed pursuant to s 12 of the Corrections Act are required by law to act in a way which gives effect to the public purposes mandated for in s 1 of the Corrections Act and s 1 of the Sentencing Act and, further, to exercise the powers, duties and functions of a public nature pursuant to ss 20, 22, 23 and 47(2) of the Corrections Act and Part 3 of the Public Administration Act2004 (‘PAA’).
The plaintiff refers to the Deputy Commissioner’s Instruction No: 3.08, entitled Programs Designed to Reduce Offending Behaviour – General[16] (‘DCI–3.08’). This document provides guidance as to the powers, duties and functions of Ms Wheatley (as an officer under s 12 of the PAA).. The operating principles are stated as follows:
Corrections Victoria acknowledges that it has a responsibility to provide prisoners with opportunities to address their offending behaviour and adopt a productive and law-abiding lifestyle. Corrections Victoria will provide an environment which is conducive to the rehabilitation and reintegration of prisoners via a range of programs and services, and staff to facilitate this process. [17]
[16]Exhibit GRW–004 to the plaintiff’s affidavit sworn 14 July 2014.
[17]Plaintiff’s affidavit sworn 14 July 2014, exhibit GRW–004.
The aims of the ‘outcomes’ in the DCI–3.08 are stated to be as follows:
Prisoners have access to specific treatment programs designed to address issues related to their offending behaviour. Prisoners’ human rights are limited only to the extent that it is reasonably and demonstrably justified. All staff must act compatibly with human rights and consider human rights when making decisions.[18]
[18]Plaintiff’s affidavit sworn 14 July 2014, exhibit GRW–004.
The plaintiff submits that on the basis of the DCI–3.08, and other policy documents, he has formed a legitimate expectation that the Secretary and Department have a responsibility to provide prisoners with opportunities to address their offending behaviour. This gives rise to a legitimate expectation that the responsibilities associated with conducting OBPs in the Prison exist because of the necessary implications arising from the requirement of the Sentencing Act as they are found in sub sections 1(c)(i) and (d)(ii).[19]
[19]Plaintiff’s affidavit sworn 14 July 2014, paragraphs [27]–[29].
The plaintiff makes it clear in a number of places in his written submissions that he is not claiming that the Secretary, the State, or anyone else, has a legally enforceable duty to provide him with access to an OBP. What he says is that if they do so, then the decisions made about prisoner participation in OBPs are an exercise of power of a public nature.
The plaintiff contends that:
(a) there is an important dispute of fact and law involved in the identification of the services provided by way of OBPs. These services are recognised as the exercise of the power of a public nature such that the plaintiff has a right to question the decision making processes of the officers making the decisions, in particular where they are adverse to his legitimate legal interests and impact on his welfare;
(b) if the decision-making processes relating to prisoner participation in correctional services such as OBPs are regulated by the rules of natural justice and procedural fairness, then the system will appear to be fairer and less arbitrary to prisoners. At present, participation in such clinical treatment programs for the purposes of rehabilitation is very capricious. He asserts that it looks to prisoners like it is a power in the modality of ‘might is right’; and
(c) All the questions in the plaintiff’s proposed amended origination motion go directly to the wide range of powers, duties and functions of the Secretary. They need to be examined by starting at the core duty of the plaintiff’s welfare, which is found in s 1 of the Corrections Act to be one of the purposes of that Act. This provision should be read in terms of the plaintiff being afforded decision-making processes that are faithful to equality and good conscience.
The plaintiff argues a great deal about the requirement for the Secretary and officers appointed under s 12 of the Corrections Act to exercise their powers, duties and functions according to ‘the rule of reason and justice’ and not according to private opinion. This involves transparency in the decision-making process.
In his oral submissions (by video-link),[20] the plaintiff began by saying that his application is not about a private factual dispute with the Secretary, nor is it about why he left the rehabilitative program. As he submitted in his written submissions, he is not claiming that the Secretary has a legally enforceable duty to provide him with access to OBPs. However, when such programs are conducted, he submitted that the decisions made about prisoner participation are a part of the ‘correctional services’ provided by the Secretary, since they relate to prisoner rehabilitation and are an exercise of power of a public nature.
[20]Which were later reduced to writing and dated 29 June 2015.
The plaintiff further submitted that:
(a) his claim raises an important dispute of fact and law as to the public/private divide, which should be fully resolved by the Court and not summarily dismissed;
(b) the claim that decisions made under the Corrections Act are not amenable to judicial review raises fundamental questions which should, in the interest of justice, be the subject of a full judicial determination;
(c) he has a right to question the decision making processes of officers of the Secretary whose decisions are adverse to his legitimate legal interests when they impact upon his welfare; and
(d) if the Court answers the questions that he has posed in his PAOM then, that will be a considerable step along the path to administrative transparency.
He referred to the High Court decision in Minister for Immigration and Citizenship v Li.[21] The point he sought to draw from this case was that fairness will be applied by people exercising power under an enactment.
[21](2013) 249 CLR 332.
Failure to Make a Decision and Give Reasons
In his affidavit sworn 14 July 2014, the plaintiff complains that the failure of the Senior Clinician, Ms Wheatley, to make an unambiguous decision, and to provide reasons for it, has the practical effect of him feeling that justice has not been done in his case.[22]
[22]Plaintiff’s affidavit sworn 14 July 2014 at [21].
He claims that the failure to provide him with a written decision and reasons amounts to the Secretary acting with a lack of jurisdiction, and contrary to law.
The plaintiff does not complain about any of the services delivered to him. His complaint is about the decision making process and not the outcome. The decision making process is one he claims must operate according to law and is of a public nature.
E-notes Kept by the Prison
In his latest affidavit, the plaintiff exhibits extracts from e-notes kept by prison officers as a part of the Management Reporting System for the Prison. These notes are advanced to confirm or prove a number of matters.
On 25 December 2013, a case conference was held to discuss the plaintiff’s continued non-attendance at his clinical program. The conference was attended by the plaintiff and a number of prison staff. The e-note records that the plaintiff said he would continue with the program (the MVIP) if he could complete it in his own time, or in one-on-one sessions with another clinician (but not the clinician who had conducted the MVIP he had withdrawn from). The e-note records that as the clinical program is based around the group work, neither of these suggestions were acceptable to the panel. The e-note also records that the matter would be thought through over the Christmas break and that another meeting would be held in the first week of January to resolve the matter.[23]
[23]Plaintiff’s affidavit sworn 31 May 2015, exhibit GRW-002.
An e-note dated 28 January 2014 records a meeting at which, among other things, Ms Wheatley informed the plaintiff that due to his reasons for removing himself from the MVIP, if he wished to return to OBP for parole, she would be recommending he complete the High Violence Intervention Program (‘HVIP’).
The plaintiff says that he challenged Ms Wheatley, as the decision maker, and requested orally that reasons be given, but this was refused.[24]
[24]Plaintiff’s affidavit sworn 31 May 2015, paragraph [14].
However, the e-note contains no record of such a request. It notes that the plaintiff stated that he would not entertain the HVIP, and would not recommence the MVIP.[25] Specifically:
Greg’s self-removal from the program and the facilitators’ reports of his behaviour and lack of treatment gains, have led to Greg’s risk level being elevated to high. He has been offered the HIVIP (sic) in the future. Currently he is refusing to participate in any program and will only consider individual completion. This is not an option for Greg. He will be allocated a new treatment manager ... to monitor his general wellbeing in the neighbourhood.
[25]Plaintiff’s affidavit sworn 31 May 2015, exhibits GRW-003 and 004.
The plaintiff deposes that Ms Wheatley’s comments recorded in this e-note do not coincide with the contemporaneous comments made by facilitators in his program work book from the MVIP, nor the case managers’ comments in his ‘IMP file’. On this basis he submits that Ms Wheatley is biased and has not taken into consideration all the relevant information of his participation in the MVIP, such as the contemporaneous program work book.[26]
[26]Plaintiff’s affidavit sworn 31 May 2015, paragraphs [18]-[19].
In his affidavit sworn on 14 July 2014, the plaintiff had referred to an e-note of 12 February 2014 (that he did not have access to at the time he swore the affidavit) in which he asserts that the operations manager, Susan Agius, reported that ‘the decision has been made that [the plaintiff] is of high risk and will be required to do the High Intervention Violence Program’.[27] He deposes in that affidavit that the report of Ms Agius is not available to him and he proposes to subpoena it, which he has done. After having access to the documents subpoenaed, the plaintiff swore his affidavit of 31 May 2015, but did not refer to, or exhibit, the e-note made by Ms Agius on 12 February 2014.
[27]Plaintiff’s affidavit sworn 14 July 2014, paragraph [16].
Consequences of the Failure to Complete the OBP
The plaintiff refers to the Deputy Commissioner’s Instructions for Community Correctional Services, Part 5.2 ‘Parole Assessment and Advice[28] (‘the DCI-5.2’) and the considerations that must be taken into account if he is to be granted parole. At page 8 of the DCI-5.2 it is stated ‘that for stream A [serious violent offenders], a recommendation of parole suitability is subject to their participation in programs with OBP’.
[28]Plaintiff’s affidavit sworn 14 July 2014, exhibit GRW-003.
The plaintiff also refers to the key steps in the process of assessment of prisoners for parole, and the preparation of parole assessment and progress/parole plan reports by Corrections Victoria officers and Community Correctional Services of the Department of Justice described in the DCI-5.2. He refers to page 26 of that document where it is said that if a prisoner does not complete a recommended OBP, then a recommendation must be made to the Adult Parole Board (‘APB’) that the prisoner not be released on parole at the expiration of the non-parole period. He refers to page 19 of DCI-5.2 where the factors that go into making the decision about a prisoner’s case are set out. These include the offender’s willingness to participate in offence-specific and other programs, the offender’s participation and progress in offence-specific and other programs, and assessments and recommendations (if any) by appropriate clinicians. He notes that the introduction to the DCI-5.2 states ‘the [deputy commissioner’s instructions] outline some mandatory, some guideline tasks and practices to be carried out by all staff to meet legal obligations, Court and APB expectations.’
The plaintiff submits that the decision, the reasons for decision, and the decision-making processes of Ms Wheatley, directly impact upon mandatory factors that must be taken into account, and recommendations that must be made in accordance with the DCI-5.2, which together affect his legitimate legal interest to be released on parole rather than remain in prison.[29]
[29]Affidavit of plaintiff sworn 14 July 2014, paragraphs [22]–[25].
Human Rights and the Charter
The plaintiff also relies on his legitimate expectation that his human rights as set out in the Charter of Human Rights and Responsibilities (‘Charter’) will be considered as a part of the decision making processes by all staff in the Prison. The Charter asks at s 4: ‘What is a public authority and what are functions of a public nature?’ The answer provided by the Charter in an example attached to s 4(2)(b) states: ‘The provision of correctional services is a function generally identified as being a function of government’.
Finally, the plaintiff submits that the Deputy Commissioner’s Instructions for Public Prisons, the Commissioner’s Requirements, the Marngoneet Local Operating Procedures, and the Sentence Management Manual, are all official policy documents of Corrections Victoria and the Department of Justice, which detail how all officers will discharge their duties under the Corrections Act and the Corrections Regulations 2009 (‘Regulations’). All of these policy documents are prefaced with an undertaking that all staff will act compatibly with human rights and consider human rights when making decisions.
The Secretary’s Submissions
The Secretary relies upon the affidavit of Claire Elizabeth Hanrahan sworn 24 June 2014,[30] and two sets of submissions filed 1 July 2014 and 14 October 2014.
[30]Which it relied upon in my earlier ruling: see [2015] VSC 153, [10].
The Secretary points out that:
(a) the plaintiff voluntarily withdrew from the OBP that involved group sessions; and
(b) participation in the OBP is voluntary, even though it may be relevant to the consideration by the APB at the appropriate time in deciding whether to release the plaintiff on parole.
The Secretary submits that he is not a tribunal within the meaning of Order 56 of the Rules, nor under the Administrative Law Act 1978 (‘ALA’). In providing OBPs, the Secretary does not make decisions that fulfil a public duty and that can be reviewed under either O56 of the Rules or s 3 of the ALA. Further, there is no common law duty on administrative decision makers to give reasons for their decisions.[31]
[31]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 662 and 670 (Gibbs CJ) and 675-6 (Deane J).
The Secretary submits that he is not obliged to apply the rules of procedural fairness because he does not determine any rights of a prisoner. Section 47 of the Corrections Act sets out the statutory rights given to prisoners. It is not exhaustive, but there is no right identified in it of the kind sought to be found by the plaintiff. What the Secretary does in providing the OBP, is no more than facilitating the participation of the plaintiff and other prisoners in programs aimed, no doubt, at rehabilitation. There is no statutory or other requirement that the Secretary provide the program or that the plaintiff participate in it.
Ms Wheatley was asked by the plaintiff to make a formal decision regarding his request for one-on-one sessions to complete the MVIP, and to give reasons in writing, but Ms Wheatley did not provide any formal decision. All she did is write the letter of 14 February 2014 making what the plaintiff calls an ‘uncertain offer’. This is not the making of a decision or, for that matter, a decision to refuse to make a decision.
The Secretary submits that the plaintiff has not been refused the opportunity to participate in any program conducted in the Prison. If one assumes that there is a right on the part of the prisoner to participate in programs offered in the Prison of the kind in question,[32] the plaintiff has not been denied that right. If participation in the OBP from which the plaintiff withdrew was compulsory, his voluntary withdrawal would not have been possible.
[32]It is hardly to be supposed that the prisoner has a right to that program. But it is unnecessary to decide.
The plaintiff complains that no arrangements satisfactory to him have been made to enable him to complete the MVIP. However, the offer made in the letter of 14 February 2014 involves one-on-one sessions for the majority of the rest of the program and only one set of group sessions. The plaintiff did not accept the proposed pathway put forward by Ms Wheatley.
The Secretary argues that the relief that the plaintiff is seeking is, in its effect, an order compelling the Secretary to make a decision as to how the plaintiff can complete the OBP without participating in group sessions.
The originating motion and affidavits in support show that the real subject matter of the application is to review the merits, or at least compel a decision that would enable a review of the merits, of the program offered to the plaintiff in the letter of 14 February 2014.
In response to the plaintiff’s claim for an order in the nature of mandamus compelling the defendant to make a decision ‘which is according to the purpose of the Sentencing Act at s 1(c)(i) and (d)(ii), the Secretary submitted that an order in the nature of mandamus will not be made except to command the fulfilment of some duty of a public nature that remains unperformed. If the person under a duty professes to perform it, but what is actually done amounts in law to no performance because they have misconceived their duty or, in the course of attempting to discharge it, have failed to comply with some requirement essential to its valid or effective performance, they may be commanded to execute this function according to law de novo.[33]
[33]R v The War Pensions Entitlement Appeals Tribunal (1933) 50 CLR 228, 242–3 (Rich, Dixon and McTiernan JJ). See also Knight v Wise [2014] VSC 76; Weaven v Secretary of the Department of Justice [2013] VSC 582.
The Secretary submits that the plaintiff cannot demonstrate that there is any public duty cast upon the Secretary or its officers to make a decision about the plaintiff’s participation in an OBP. Nor can the plaintiff show that the Secretary has refused to perform that duty, or that the duty has been performed in a way that does not meet the legal requirements for the exercise of the duty. For this reason, it is submitted, there is no real question of fact or law to be tried.
Lastly, the Secretary submits that no right protected by the Charter is engaged in this case.[34]
[34]See Charter s 39.
The Secretary submits that so far as the matters raised in paragraphs 3–8 of the plaintiff’s PAOM can be understood to identify a decision that is amenable to judicial review, it appears to be that the uncertain offer contained in the letter from Ms Wheatley to the plaintiff dated 14 February 2014 means that the plaintiff will not be able to complete a recommended rehabilitative program, so that Corrections Victoria ‘must make a recommendation to the Parole Board that the Plaintiff not be released on Parole at the expiration of his non-parole period.’ There is nothing in the evidence to support the allegation in paragraph 8 that the conduct of the clinician was unreasonable.
The Role of the Court on a Judicial Review Application
In Topouzakis v Greater Geelong City Council,[35] Justice Emerton usefully summarised the role of the Court on an application for judicial review as follows:
…it must be borne steadily in mind that the Court is concerned with the lawfulness of the [decision-maker’s] decision, not with whether it was the correct and preferable decision.
The distinction between review on the merits and a review of the legality of a decision is fundamental to administrative law. The Court does not engage in a review of the merits of administrative decisions, as the power to engage in administrative action resides with the repository of the power alone. The Court’s jurisdiction when conducting judicial review is to determine whether the decision taken was within power; the Court has no jurisdiction ‘simply to cure administrative injustice or error’….
In Craig v The State of South Australia, the High Court confirmed that an administrative decision-maker lacks authority to make a decision otherwise than in accordance with the law. If an administrative decision-maker makes an error of law which causes it to identify the wrong issue, to ask itself the wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the decision-makers exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is a jurisdictional error which will invalidate any order or decision which reflects it.[36]
[35][2014] VSC 87.
[36]Ibid [56] [Citations omitted].
The relief that may be granted by this Court on an application for judicial review is set out in Order 56 of the Rules. Under r 56.01, the Court has power ‘to grant any relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto’.
The plaintiff’s PAOM seeks various orders, declarations and opinions. The principal remedies the plaintiff seeks are:
(a) relief in the nature of certiorari to ‘quash the actions’ of Ms Wheatley; and
(b) relief in the nature of mandamus to compel the Secretary to make a decision in his case.
I will address these remedies now.
Relief in the Nature of Certiorari
In Craig v South Australia,[37] the High Court noted that:
[37](1994) 184 CLR 163.
(a) certiorari was a process by which a superior court, in the exercise of its original jurisdiction, supervises the acts of an inferior court or tribunal. It merely enables the quashing of an impugned order or decision upon one or more of a number of distinct grounds of which the most important are jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record;
(b) where the application is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take into account of any relevant material placed before it;
(c) where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to ‘the record’ of the inferior court or tribunal and the quashing of the impugned order or decision will only be on the ground that it is affected by some error of law which is disclosed by that record; and
(d) it is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision that the superior court thinks should have been made.[38]
[38]Ibid 175–6.
The plaintiff’s claims proceed on the footing that a clear decision about his participation in an OBP ought to have been made. The Secretary submits, in part, that the letter of 14 February 2014 informing the plaintiff of his proposed treatment pathway was not the making of a formal decision. However, if it is a decision, the Secretary submits that it is not susceptible to judicial review.
For the purposes of considering the submissions of both parties, I propose to assume that a decision was made as to what would be offered to the plaintiff by way of a further OBP after his withdrawal from the one he had almost finished. That seems to me to be the substance that is necessarily involved in Ms Wheatley proposing the treatment pathway that she did, albeit one expressed as a recommendation. Lying behind that decision seems to be another decision, and that is that the plaintiff’s proposed treatment pathway involved the OBP being the HVIP and not the MVIP. This emerges from the e-notes to which I have referred.
It is common ground that in the course of operating the Prison within the meaning of s 10 of the Corrections Act, the Secretary conducts OBPs as a part of the rehabilitation of prisoners. Ms Wheatley is employed pursuant to s 12 of the Corrections Act as a clinician for the purpose of delivering OBPs. The plaintiff is held in the custody of the defendant pursuant to s 6A of the Corrections Act.
The plaintiff particularly relies upon the ‘purposes’ section of the Sentencing Act. Section 1(c)(i) and (d)(ii) are as follows:
The purposes of this Act are
(c) To provide fair procedures –
(i) for imposing sentences;
(d) To prevent crime and promote respect for the law by –
(ii)providing for sentences that facilitate the rehabilitation of offenders.
These purposes are two amongst several others and are, of course, purposes of the Sentencing Act not the Corrections Act. The former Act has to do with the sentencing of offenders who breach the criminal laws, and related matters. It has nothing to do with the management of prisons as such, even though it may be true that its reach does not stop at the Prison door, so to speak. But it is unnecessary to decide its scope for reasons to which I refer below.
The purposes section of the Corrections Act, (s 1) provides:
The purpose of this Act are –
(a)to provide for the establishment management and security of prisons and the welfare of prisoners; and
(b)to provide for the administration of services related to community-based corrections and for the welfare of offenders; and
(c)to provide for other correctional services.
It is evident from the nature of the statement of purposes in both Acts that they create no specific public duty nor any correlative right. Sections that set out the purposes or objectives of an Act may be considered for the purpose of resolving uncertainty or ambiguity in the interpretation of other operative provisions of the Act in question.[39] In short, legislative statements of purpose are aids to interpretation of the Act and no more. They do not command any particular action or inaction, or any particular outcome of the exercise of a discretionary power.[40]
[39]See DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014), [4.51]; Re Credit Tribunal, Ex parte General Motors Acceptance Corporation, Australia, (1977) 14 ALR 257, 260 (Barwick CJ).
[40]See the observations of Cole JA in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31, 78. See also CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261, [99]; DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) [4.51].
The plaintiff relies on the following matters that arise from the various sections of the Corrections Act, including but not limited to:
(a) the definition of ‘correctional services’[41] which means:
[41]Corrections Act, s 3.
(i) prisons and services related to prisons or prisoners;
(ii)services related to parole and programmes for persons subject to correctional orders;
(iii)community corrections centres, regional centres and locations and services related to community corrections centres, regional centres and locations;
(iv)community-based programmes and services related to the administration of community-based orders;
(b) that the Secretary will be responsible for monitoring performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders;[42]
[42]Ibid, s 7(1).
(c) a Secretary to the Adult Parole Board and such Governors, prisoner officers, escort officers, principal medical officers, medical officers, Regional Managers, community corrections officers and other officers and employees as are necessary may be employed under Part 3 of the PAA;[43]
[43]Ibid s 12(1).
(d) the Governor of a prison gives directions to prison officers;[44]
[44]Ibid, s 19.
(e) the duties of officers relating to security and welfare (including that an officer in charge of prisoners must take all reasonable steps for the safe custody and welfare of the prisoners);[45]
[45]Ibid, s 20.
(f) the duties of the Governor of a prison (including that the Governor of a prison must give all necessary directions to ensure that other officers assigned to the prison comply with the Act, and the Regulations);[46]
[46]Ibid, s 21.
(g) reports to the Governor (including that an officer must report immediately to the Governor anything which might reasonably be thought to jeopardise the security of the prison or the welfare of the prisoners);[47]
(h) the powers of the Governor;[48] and
(i) the statutory rights given to prisoners provides that a prisoner’s rights under the section are additional to, and do not affect any other rights which a prisoner has under an Act other than this Act or at common law.[49]
[47]Ibid, s 22.
[48]Ibid, s 23.
[49]Ibid, s 47 and s47(2).
As mentioned, the plaintiff does not claim that the Secretary has a legally enforceable duty to provide him with access to OBPs. The plaintiff’s claim is, in my view, best characterised as a series of sections (in the Sentencing Act, Corrections Act and PAA) having the result that when the Secretary provides facilities for the plaintiff’s rehabilitation, the decisions made about his participation in them are a part of the ‘correctional services’ provided by the Secretary (because they relate to prisoner rehabilitation) and they are an exercise of power of a public nature. Thus a public duty purportedly exists in relation to decisions about the way OBPs are provided to him, and not whether they are provided to him. This results in the existence of a correlative right on his part to have such decisions made in accordance with the rules of natural justice or procedural fairness.
As I understand the submissions, this follows from the propositions that the decisions made about the plaintiff’s participation in the OBPs are:
(a) a part of the ‘services related to parole and programmes for persons subject to correctional orders‘ (see the definition of correctional services above); and/or
(b) a part of the provision of services for ‘the welfare of prisoners’ (see the purpose section of the Corrections Act above);
(c) in furtherance of the purpose of the Sentencing Act ‘to prevent crime and promote respect for the law by… providing for sentences that facilitate the rehabilitation of offenders’; and
(d) made pursuant to the duties, functions and powers found in ss 19, 20, 21, 22 and 23 of the Corrections Act and in accordance with the rights he has pursuant to s 47(2) of the Corrections Act.
The sections he relied upon include the purposes provisions of both Acts and ss 12, 19, 20, 22, 23 and 47(2) of the Corrections Act and Part 3 of the PAA. The sections of the Corrections Act are referred to in the questions raised by the application and set out in the PAOM.
The powers, duties or functions identified in these sections are of a general nature and do not in my view, give rise to any duty on the Secretary in making a decision about the way services are administered in the prisons and correctional facilities to afford the plaintiff natural justice or procedural fairness. No duty of procedural fairness arises because there has been no exercise of a power that may destroy, defeat or prejudice the plaintiff’s rights, interests or legitimate expectations.[50]
[50]Ainsworth v Criminal Justice Commission, (1992) 175 CLR 564 at 576; See also Kioa v West, (1985) 159 CLR 550 at 585 per Mason J (as he then was).
In Moran v Secretary to the Department of Justice and Regulation and Ors,[51] Justice McDonald had to determine whether certiorari and mandamus were available in respect of a decision to transfer a prisoner to more restrictive accommodation. McDonald J referred to the observations of Justice Mason (as he then was) in Kioa v West[52]where his Honour stated that what is appropriate in terms of procedural fairness depends on the circumstances of the case and will include, inter alia, the nature of inquiry, subject matter and the rules under which the decision maker is acting:
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.[53]
[51][2015] VSC 593.
[52](1985) 159 CLR 550.
[53]Ibid 585 (citation omitted).
McDonald J also referred to the importance of the absence of any express right under the Act for a prisoner to have accommodation in a particular section of a prison in considering the existence or scope of any obligation of procedural fairness.[54] He referred to the observations of Justice White in Bromley v Dawes,[55] cited with approval by Justice McInerney in Kelleher v Commissioner, Department of Corrective Services:[56]
The presumption in favour of the citizen does not apply in favour of the prisoner, as the cases show. He is deprived of all of a citizen’s rights except those which are preserved by the Prisons Act. There must be clear words, apt words, which preserve those rights.[57]
[54][2015] VSC 593 at [26].
[55](1983) 34 SASR 73.
[56][1999] NSWSC 86.
[57]Ibid 89.
In Kelleher v Commissioner, Department of Corrective Services,[58] McInerney J concluded that where a statute is silent, a prisoner’s right to seek judicial review has generally been given a restrictive interpretation.[59] The absence of such right points strongly to the conclusion that a decision concerning the participation of a prisoner in an OBP is of an administrative/managerial character, not subject to a right of judicial review and not subject to obligations to afford procedural fairness. McDonald J agreed, as I do, with the observations of Nettle JA (as His Honour then was) in Anderson v Pavic[60] that it is:
…unlikely that Parliament should have intended that the courts sit in judgment upon questions of fact routinely decided by prison authorities in the course of management and administration of the prison for which they are responsible.[61]
[58][1999] NSWSC 86.
[59][1999] NSWSC 86 [10]; Op cit Moran v Secretary to the Department of Justice and Regulation and Ors, supra, at [26].
[60][2005] VSCA 244 [33].
[61]See also White v Lacey [2012] VSC 175 [15] (Hargrave J); Rich v Groningen & Ors (1997) 95 A Crim R 272, 274 (Gillard J).
It was clear to Justice Bell in Knight v Anderson[62] that neither the Corrections Act nor the Regulations imposed duties on any prison authority to formulate a sentence plan for a prisoner, which is a practical tool of management, not a legal necessity. It is clear to me in this case that none of the sections identified by the plaintiff impose duties of the kind alleged.
[62](2007) 16 VR 532 at [14]-[17].
Neither the plaintiff nor Secretary identified any particular statutory power pursuant to which the DCI-5.2 were issued, and my researches reveal no specific provision in the Corrections Act or the Regulations that provides for them. Section 8A of the Corrections Act sets out the general responsibilities of the Commissioner. There may be other administrative powers or arrangements in other legislation under which the Deputy Commissioner’s Instructions are issued, but none have been identified by the parties. Having regard to the statements within the DCI-5.2 to which I next refer, it is my view that they are merely a practical guide.
Introduction to the DCI-5.2 states that the purpose is to provide a framework to those responsible for effectively enforcing Court and APB orders and managing offenders. The footnotes to the introduction states, amongst other things:
The information provided in the Deputy Commissioner’s Instructions is designed for internal use by Community Correctional Services staff to provide guidance on best practice for Corrections Victoria parolee management.
Deputy Commissioner’s Instructions are policy documents and will be applied flexibly to the circumstances of an individual parolee.
Deputy Commissioner’s Instructions do not override legislative requirements under the Corrections Act 1986 (Vic) or any other relevant legislation or regulations. Any non-compliance with the Deputy Commissioner’s Instructions will not make an action or inaction unlawful or result in any cause of action…
It is therefore clear, in my view, that the DCI-5.2 on which the plaintiff relies (to establish a public duty on the Secretary in relation to decisions made as to his participation in OBPs) does not give rise to that duty nor to any correlative right as a matter of law. What the Secretary does in providing the OBP is no more than facilitating the participation of the plaintiff and other prisoners in programs aimed at rehabilitation. There is no statutory or other requirement that in making decisions about the plaintiff’s participation in the OBPs, the Secretary is bound by the rules of natural justice or procedural fairness.
The observations of the New South Wales Court of Appeal in Smith v Commissioner of Corrective Services[63] are apposite, although concerning different provisions and circumstances. The case concerned, in part, a claim by a prisoner before trial to a substantive right of a private and confidential relationship between himself and his counsel and solicitors against the Commissioner for Corrective Services. In the course of his reasons, Hutley JA (with whom Moffit P and Glass JA agreed) commented on a particular provision of the legislation in question in that case as follows:
It is a provision, no doubt, for the welfare of prisoners, but is merely a direction as to how their administration is to be carried out. In Flynn v The King, Dixon J. said: “It is pointed out in the case of Horwitz v Connor that if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice. For if statutes dealing with this subject matter were construed as intending to confer fixed legal rights upon prisoners it would result in applications to the courts by prisoners for legal remedies addressed either to the Crown or to the gaolers in whose custody they remain.
Though his Honour was there speaking of a regulation, it would seem that the same considerations must apply to the Act itself. The question whether an Act of Parliament gives rise to a private right of action is a question of intention on the part of the legislature, and the uniform construction of provisions relating to the administration of prisons has been to deny to the prisoners a right of action, if there has been any breach: Horwitz v Connor and Arbon v Anderson.[64]
[63][1978] 1 NSWLR 317.
[64]Ibid 328 [Citations omitted].
In a post script to the reasons for judgment of Hutley JA, his Honour noted: [65]
Since drafting this judgment the report of the decision of Lord Widgery C.J., Cumming-Bruce L.J. and Park J. in R. v. Board of Visitors of Hull Prison has come to hand. Lord Widgery C.J. adopts a passage from the judgment of Lord Denning M.R. in Becker v. Home Office in which the latter said: “If the courts were to entertain actions by disgruntled prisoners, the governor's life would be made intolerable. The discipline of the prison would be undermined. The Prison Rules are regulatory directions only. Even if they are not observed, they do not give rise to a cause of action.
[65]Ibid 330-331 [Citations omitted].
Part 8 Division 5 of the Corrections Act deals with parole. Section 74 of that Act provides for the making or an order by the APB that a prisoner serving a sentence in respect of which a non-parole period has been set be released on parole after the expiration of the non-parole period. Section 73A of the Act requires that the Board must give ‘paramount consideration to the safety and protection of the community’ when determining whether to make a parole order. Section 69(2) of the Sentencing Act provides that in exercising its functions, the APB is not bound by the rules of natural justice.
DCI–5.2 relates to parole assessment and advice. Under the heading, ‘What we do’, the following appears:
Community Correctional Services[66] (‘CCS’) staff prepare reports on prisoners eligible for conditional release. The Adult Parole Board is able to make informed decisions to grant or deny parole and set and monitor parole conditions giving due consideration to information and recommendations contained in the Parole Assessment or Progress/Parole Plan Reports submitted by CCS.
[66]A division of Corrections Victoria.
Under the heading, ‘Why we do this’, DCI–5.2 provides:
To provide the APB with information and a recommendation about a prisoner’s suitability and progression on Parole.
The CCS officer preparing the report for the APB must, among other things peruse the IMP file, liaise with the prisoner’s case worker and Regional OBP Clinician regarding program and treatment information, including programs undertaken during current sentence or those currently engaged in and record all details, including end dates, of all programs/treatment undertaken throughout the prisoner’s sentence. [67] Once completed and submitted to the APB the reports are confidential and become the property of the APB.[68] The supporting information attached to the DCI-5.2 includes a list of factors that influence decisions made by the APB.[69]
[67]Plaintiff’s affidavit dated 14 July 2014, exhibit GRW–003, p.5 (Item 6). See also attached Supporting Information p.15, ‘Reports’.
[68]Plaintiff’s affidavit dated 14 July 2014, exhibit GRW–003, p.9 (Item 4.5 para 1).
[69]Plaintiff’s affidavit dated 14 July 2014, exhibit GRW–003 p.19.
As I have pointed out, the DCI are instructions for internal use by CCS staff to provide guidance on best practice for Corrections Victoria parolee management. As policy documents they ought to be applied flexibly, meaning that what is said to be mandatory in them is for guidance purposes. It does not and cannot have the force of law and in its terms do not give rise to a public duty as if it were mandated by a statute or regulations. Its very status as ‘guidance’ and ‘policy’ defies any other characterisation. For the same reasons it gives rise to no legal right or legitimate expectation of the kind that the plaintiff seeks to extract from the ‘purposes’ provision of the Sentencing Act, the Corrections Act and the DCIs.
Even though a prisoner who refused to undertake an appropriate OBP may face difficulties when the APB is considering their release on parole, this does not mean that it is compulsory for a prisoner to undertake or complete a relevant OBP. As the defendant submitted, if participation in the OBP from which the plaintiff withdrew was compulsory, his voluntary withdrawal would not have been possible.[70] Similarly, any decision made consequent upon the plaintiff’s withdrawal from the OBP and regarding his future participation in any further OBP is not a decision that affects his legal rights.
[70]Secretary’s submissions filed 14 October 2014, [22].
As a part of the Secretary’s submissions, it was pointed out that following the commencement of the Corrections Amendment (Further Parole Reform) Act2014, the first relevant point of ‘decision’ is when a division of the APB either makes, or refuses to make a recommendation that the prisoner be released on parole.[71] In carrying out its functions the APB is not bound by the rules of natural justice.[72] A second relevant point of decision is when the Serious Violent Offender or Sexual Offender parole division decides whether or not, pursuant to s 74 of the Corrections Act, to make a parole order in relation to the prisoner.[73] These provisions apparently apply to the plaintiff.[74]
[71]Corrections Act1986 s 74AAB(5). The plaintiff was sentenced to imprisonment in relation to ‘a serious violent offence’ as defined in the section.
[72]Ibid, s 69(2).
[73]Corrections Act1986 s 74AAB(2).
[74]Ibid s 74AAB(4).
The primary purpose for setting up OBPs is the rehabilitation of prisoners. Whether it may be open to argue that a failure to establish such programs, or a refusal to allow a prisoner to participate in a relevant program would be amenable to judicial review is not in issue. Corrections Victoria, as a part of the Department of Justice, has established a relevant OBP and has made arrangements for the plaintiff to complete that program. Any decision made by Ms Wheatley as an officer of the Secretary regarding the appropriate course for the plaintiff to follow consequent on his withdrawal from the OBP is an administrative one that is not the performance of a public duty under the legislation that affords the plaintiff rights of review. Nor is there any basis to say that any decision she made involved unreasonable behaviour on her part. If it were a question of there being unreasonable behaviour, it would appear to me to be on the part of the plaintiff.
The plaintiff did not accept the proposed pathway put forward by Ms Wheatley. It seems to me, that what the plaintiff was seeking to do by his letter of 25 February 2014[75] was to compel the making of some decision that he could challenge.
[75]Exhibit GRW-008 to the plaintiff’s affidavit sworn 31 May 2015 and set out at [25] of my earlier Reasons.
Lastly, if mandamus is unavailable, there is no utility in granting certiorari. As I refer below, mandamus will only be granted where there is an enforceable duty and, in any event, is not available to compel the exercise of a discretion.[76]
[76]Plaintiff M61/2010E v Commonwealth of Australia & Ors [2010] HCA 41, [99]–[100]; Moran v Secretary to the Department of Justice and Regulation and Ors (2015) VSC 593 at [21].
Relief in the Nature of Mandamus
In R v The War Pensions Entitlement Tribunal[77] Rich, Dixon and McTiernan JJ said:
A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, of what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him. In case of a tribunal, whether of a judicial or administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal had not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal’s decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies. It is also beside the question that the determination, although not void, is yet one which, because of some failure to proceed in the manner directed by law, or of some collateral defect or impropriety, is liable to be quashed by a Court which on appeal, certiorari, or other process is competent to examine it…[78]
[77](1933) 50 CLR 228; see also R v Bowen; Ex parte Federated Clerks Union of Australia (1984) 154 CLR 207, at 209-10.
[78]Ibid 242–243.
As the Secretary submitted, the plaintiff has not demonstrated that there is any public duty upon the Secretary to determine any question, or to make any decision, regarding his participation in an OBP. Nor has it been established that the Secretary has refused to perform such a duty or that the duty has been performed in a way not in accordance with some requirement essential to the valid and effectual performance of the duty.
Reliance upon the DCI-5.02 is reliance upon a document prepared for guidance and policy purposes, which gives rise to no public duty upon the Secretary. To the extent that the performance by the plaintiff of an OBP is relevant to the recommendations that may be made to the APB, the fact that the APB is not required to observe the rules of natural justice or procedural fairness is a clear indication by the legislature (in the Corrections Act) that in the provision of correctional services under that Act no public duty is performed or that no rights to natural justice or procedural fairness arise.
In Knight v Anderson[79] Bell J held that neither the Corrections Act nor the Regulations impose a duty on any prison authority to formulate a sentence plan for a prisoner. His Honour noted that:
A sentence plan is a practical tool of management, not a legal necessity. It is equally clear that a positive duty to prepare such a plan cannot be read into any of the general provisions of the Corrections Act, such as those in ss 20(2) and 21(1) by which officers in charge of prisoners and the governor of a prison must take all reasonable steps, and be responsible for, the safe custody and welfare of prisoners.
[79](2007) 16 VR 532 at [14].
That is also the case here. There is no discernable public duty to provide the programs of the kind the subject of decision—or ‘non-decision’, in this case—and an attempt to require a decision as to future programs, or to complain of a failure to afford the plaintiff natural justice or procedural fairness in relation to his participation in such a program, is equally a practical tool of management and not a legal necessity.
In relation to the claims by the plaintiff that his rights under the Charter are contravened or affected by the failure to make a decision, if that is the correct characterisation, or the making of a decision as to the appropriate treatment pathway for the plaintiff, s 39(1) of the Charter makes it clear that the contravention of any such right does not give rise to any right to seek relief.
Looking through that detail of the plaintiff’s application, it can be seen that what the plaintiff actually seeks is to have the MVIP delivered to him in the way which he determines, and in no other way.
Disposition of the Proceeding
For the reasons I have given:
(a) there is no public duty of the kind asserted by the plaintiff nor any correlative right that can found an order in the nature of certiorari quashing the decision (which I have assumed to have been made) to offer the plaintiff a certain Offender Behaviour Program ‘pathway’;
(b) if the assumption I make as to that decision is not warranted, then there is no identifiable ‘decision’ which is amenable to judicial review;
(c) because an order in the nature of mandamus is not open, there is no utility to a grant of an order in the nature of certiorari quashing any decision made;
(d) there is no enforceable duty to require a decision by the Secretary as to the Offender Behaviour Program offered to him, so no order in the nature of a mandamus is available; and
(e) it is therefore unnecessary to address the very many high level questions posed by the plaintiff in his PAOM.
Thus, the plaintiff’s claim has no real prospects of success.
The proceeding will be dismissed, and I will hear the parties as to the appropriate orders to be made, including orders as to costs.
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