Webb v State of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
WEBB v STATE OF SOUTH AUSTRALIA
[2024] SASC 102
Judgment of the Honourable Justice McIntyre
ADMINISTRATIVE LAW - JUDICIAL REVIEW
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - APPLICATIONS
The applicant seeks judicial review of a decision made by a delegate of the Chief Executive of the Department of Correctional Services (‘the CE’) which had the effect of the applicant remaining detained in prison rather than being transferred to a lower security facility.
A subsequent decision has been made by the CE lowering the applicant’s security rating which had the effect of transferring the applicant to a lower security facility where he remains.
Held:
1. Application for judicial review is dismissed on the ground of futility.
Correctional Services Act 1982 (SA) ss 7, 23, 25, referred to.
Webb v Department for Correctional Services [2023] SASC 29, considered.

WEBB v STATE OF SOUTH AUSTRALIA
[2024] SASC 102
Civil

McINTYRE J: The applicant, Mr Richard Webb, issued these proceedings for judicial review of a decision of the respondent, the Department for Correctional Services (‘the Department’), concerning that he remains detained at Mobilong Prison (‘Mobilong’).
The originating application, filed on 11 December 2023, identified a decision made by the delegate of the Chief Executive of the Department for Correctional Services (‘the CE’s delegate’), Mr Ryan Harber on 12 September 2023. The applicant sought relief in the form of certiorari, mandamus, declaration, and injunction.
Background
The applicant is a prisoner within the meaning of the Correctional Services Act 1982 (SA) (‘the Act’).[1] Much of the background history of these proceedings is covered by Kourakis CJ in his previous judgment in this matter,[2] I need not repeat that history in detail.
[1] Correctional Services Act 1982 (SA) (‘CS Act’).
[2] Webb v Department for Correctional Services [2023] SASC 29 (‘Webb’).
On 3 March 2023, Kourakis CJ delivered judgment, having held that Mr Webb, or his representative, was entitled to appear personally before the Serious Offenders Committee (‘SOC’) as the SOC was established under s 23(2) of the Act. The SOC assisted the CE’s delegate and chair of the SOC, Mr Harber, in making an assessment under s 23(1) of the Act for the purposes of determining whether or not the applicant should be transferred to another prison.
Following the delivery of Kourakis CJ’s decision, on 20 April 2023, the Minister for Police, Emergency Services and Correctional Services (‘the Minister’) issued a Ministerial Direction to revoke all previous committees that were established under s 23(2) of the Act.[3] This direction, disbanded the Case Review Panel and the SOC as they were constituted at the time.
[3] Exhibit R2 at AKBH-1.
On the same day, the Minister issued a further Ministerial Direction to establish the Case Review Committee (‘CRC’) under s 23(2) of the Act for the purpose of assisting the CE in carrying out assessments pursuant to s 23(1) of the Act.[4] The Direction indicated that a CRC will be validly formed if it comprises of two or more members that hold a position specified in the Direction.[5]
[4] Exhibit R2 at AKBH-2.
[5] Ibid.
The Statutory Context
Section 23 of the Act requires the CE to conduct an initial assessment of a prisoner for the purposes of determining which prison they should be detained. The CE must subsequently, at regular intervals of not more than one year, assess the prisoner and their circumstances to determine whether or not the prisoner should be transferred to another prison.
Section 23 of the Act provides:[6]
[6] CS Act s 23.
23—Initial and periodic assessment of prisoners
(1) The CE must, as soon as practicable after the initial admission to a prison of a person who has been sentenced to a term of imprisonment exceeding six months, to life imprisonment or to a sentence of indeterminate duration, and thereafter at regular intervals of not more than one year, assess the prisoner and his or her circumstances and determine whether or not the prisoner should be transferred to some other prison.
(2) The Minister may, for the purpose of assisting the CE in carrying out assessments under this section, establish such committees as the Minister thinks fit.
(3)     In carrying out an assessment under this section, the CE must have regard to—
(a)     the age, gender, gender identity, sexuality or sexual identity, and the social, medical, psychological and vocational background and history, of the prisoner; and
(b)     the needs of the prisoner in respect of education or training or medical or psychiatric treatment; and
(c)     the aptitude or suitability of the prisoner for any particular form of training or work; and
(d)     the nature of the offence, or offences, in respect of which the prisoner is imprisoned and the length of sentence; and
(e)     the information contained in any file held by a court in respect of the prisoner; and
(f)      the behaviour of the prisoner while in prison; and
(g)     the security of, and availability of accommodation in, any prison under consideration; and
(h)     the question of maintaining the prisoner's family ties; and
(i)      where relevant, any proposed plans in respect of the release of the prisoner and his or her social rehabilitation; and
(j)      such other matters as the CE thinks relevant.
(4)The CE must notify the prisoner before commencing an assessment, and must, if the prisoner so requests, grant the prisoner an opportunity to make representations in person to the CE or to a committee established pursuant to subsection (2), including a request that, if practicable, the assessment be made by a person of the same sex or gender identity as the prisoner.
(5)The prisoner may make written representations in respect of his or her assessment to the CE or to a committee established pursuant to subsection (2).
(6) After the first assessment of a prisoner has been completed, the CE must prepare a programme in relation to the prisoner that contains particulars of any proposals for the education or training or medical or psychiatric treatment of the prisoner, and may, after any subsequent assessment, add to or vary that programme.
Even if a committee established under s 23(1) of the Act recommends a transfer of a prisoner to another prison, a transfer can only be effected by s 25 of the Act:[7]
[7] CS Act s 25.
25—Transfer of prisoners
(1) The CE may, by written order, direct that a prisoner be transferred from the place in which he or she is being detained to any other correctional institution.
(2)An order given by the CE under subsection (1) is sufficient authority for the transfer of the prisoner in accordance with the order and the detention of the prisoner in the correctional institution to which he or she is transferred.
Section 7 of the Act allows the CE to delegate any powers, duties or functions under the Act and provides:[8]
[8] CS Act s 7.
7—Power of Minister and CE to delegate
(1) The Minister may, from time to time, by instrument in writing, delegate to the CE any powers, duties or functions under this Act or any other Act.
(2)The CE may delegate to any officer or employee of the Department, any of the powers, functions, duties or responsibilities vested in, imposed on or delegated to, the CE under this Act or any other Act.
(2a) The CE may delegate to the manager of a police prison any of the powers, functions, duties or responsibilities—
(a) that are vested in, imposed on or delegated to the CE; and
(b) that are applicable to the police prison or to those persons who are, or are to be, detained in it.
(3)A delegation under this section is revocable at will, and does not prevent the exercise or performance of any power, function, duty or responsibility by the Minister or the CE.
(4) Any power, function, duty or responsibility vested in, imposed on or delegated to the under this Act may, if the CE is absent from or otherwise unable to perform the duties of office, be exercised or performed by such other officer or employee of the Department as the Minister may authorise.
Standard Operating Procedures
The CE issues Standard Operating Procedures (‘SOP’) to implement the legislative scheme and Minister’s Directions. Two SOP’s have been identified as relevant to this matter.
·SOP 001B Custodial – Assessment and Planning – Case Management was signed on 7 February 2024. This SOP sets out the procedure for prisoner assessment and case management planning, including the procedure followed by the SOC when undertaking assessments and what ought to occur if there are changes to a prisoner’s development plan or if a prisoner fails to participate in the case management process; and
·SOP 083 – Serious Offender Committee was signed on 4 August 2023. This SOP sets out the roles and responsibilities of the SOC, including the approach to assessments conducted under s 23(1) of the Act. The Sentence Management Unit (‘SMU’), Institutional Case Management (‘ICM’), SOC teams and the Case Management Coordinator (‘CMC’) have various roles in relation to the management of serious offenders in prison, these roles are set out in SOP 083.
The Decision under Review
On 29 June 2023, a regular case review by a CRC took place with respect to the applicant. The CRC was constituted by the CMC and an Institutional Social Worker. In addition to being afforded personal representation before the CRC, the applicant also provided written submissions. Following this review, the CRC recommended that the applicant’s security rating be reduced from a 28-point medium security rating to a 23-point low security rating. The CRC also recommended that the applicant be moved from Mobilong to Cadell Training Centre (‘Cadell’). These recommendations were made on the applicant’s case management plan and the case review was to be considered by the CE’s delegate, the SOC Chair.[9]
[9] Exhibit R2 at AKBH-4, at [17].
On 28 June 2023 the applicant wrote requesting that he be permitted to attend the SOC meeting. On 10 August 2023, the Executive Director of the Department, Mr Darian Shephard-Bayly responded[10] to the applicant’s letter advising him that there was no provision for prisoners to appear before the SOC because the SOC was not a committee established under s 23(2) nor did it have any role in conducting s 23(1) assessments.[11] The decision will be made by the CE’s delegate. The applicant was invited to make further submissions to the CRC that could be considered by the CE’s delegate.
[10] Exhibit R4.
[11] Exhibit A1 at RW-03, at [12].
On 12 September 2023, the Chair of the SOC and CE’s delegate, Mr Harber, considered the CRC’s assessment and recommendation in relation to the applicant. Mr Harber endorsed a 3-point security reduction, reducing it from 28 points to 25 points, and determined that the applicant should remain at Mobilong. This is the decision that is the subject of the application for review.
Subsequent decision
Subsequently a special case review was conducted in relation to the applicant.[12] A placement became available at Cadell. Accordingly, the CMC undertook a review of the applicant’s case. The CRC recommended a security rating reduction from 25 points to 24 points. On 21 March 2024, Mr Harber, as the CE’s delegate, determined to endorse a one point reduction in the applicant’s security rating in the light of this recommendation and the applicant’s positive behaviour. That decision resulted in the applicant being transferred to Cadell, where he currently remains.
[12] Exhibit R3 at RMH-2, at [35].
Conclusion
The parties filed and served written submissions prior to the hearing. At the hearing, a number of affidavits were tendered by consent as follows:
·Exhibit A1: Affidavit of Mr Richard Webb dated 22 November 2023.
·Exhibit R2: Affidavit of Ms Alexis Hedger dated 25 January 2024.
·Exhibit R3: Affidavit of Mr Ryan Harber dated 12 April 2024.
·Exhibit R4: Letter to Serious Offenders Committee (including Mr Webb’s submissions) dated 28 June 2023.
·Exhibit R5: Letter setting out argument and dealing with costs.
The respondent submitted that any relief granted by the Court in relation to the 2023 decision would be futile as that decision has been subsequently superseded by the special case review conducted on 21 March 2024. This position was communicated[13] to the applicant prior to the hearing on 15 April 2024.
[13] Exhibit R5.
The applicant seeks a declaration as his primary relief as, if I grant a declaration, it will impact his future case reviews. The respondent submits that a declaration would be inappropriate due to the lack of any legal consequences, and a lack of any reputational interest for the applicant. In Ainsworth,[14] the High Court found that the report in question had practical consequences for the applicant’s reputational interest, with the Court ultimately holding that a declaration was appropriate in the circumstances. The respondent contends that this is not the case in the matter before me.
[14] Ibid.
In my view this application is futile in the light of the subsequent decision. It may also have unintended consequences for the applicant. If the decision under review were to be quashed as the applicant contends it should – this would arguably have the effect of increasing the applicant’s security rating to a level requiring him to be transferred out of his current institution to a medium security prison. Futility is a proper basis for me to withhold relief and to dismiss this application.

[2024] SASC 102

19 August 2024