Supreme Court

New South Wales

Case Name: Hamzy v Commissioner of Corrective Services and the State of NSW

Medium Neutral Citation: [2020] NSWSC 414

Hearing Date(s): 14 and 15 October 2019

Date of Orders: 22 April 2020

Decision Date: 22 April 2020

Jurisdiction: Common Law

Before: Bellew J

Decision:

(1)   Proceedings 2016/276127 are dismissed. (2)   Proceedings 2016/276186 are dismissed. (3)   Proceedings 2017/177196 are dismissed. (4)   Proceedings 2018/41479 are dismissed. (5)   The question of costs in all proceedings is reserved. (6)   Absent agreement being reached as to costs: (a)   the plaintiff is to file written

submissions with my Associate, not exceeding three pages in length, by 1 May 2020. (b)   the defendant is to file written submissions in reply with my Associate, not exceeding three pages in length, by 8 May 2020.

Catchwords:

Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to decision of the defendant requiring legal practitioners to undergo criminal records enquiry as part of the approval process to visit high risk restricted inmates – Whether decision unlawful – Whether decision unreasonable – Whether decision infringed or removed the right of a high risk inmate to choose a legal practitioner Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to decision of the defendant to deny the plaintiff access to AVL facilities for the purposes of conferring with his legal representative – Where the defendant took into account the fact that conversations over AVL could not be monitored – Where defendant also took into account the security risk which would arise if the plaintiff were granted access – Whether defendant’s decision was unreasonable Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to the practice of the defendant to permit limited monitoring of calls between the plaintiff and his legal representative – Whether such a practice unlawful – Whether such a practice amounted to an impermissible intrusion into legal professional privilege Statutory interpretation – Prison legislation –

General principles applicable to the interpretation of such legislation – General reluctance of Courts to interfere in matters of prison administration – Necessity to recognise the difficulty of the task of managing prisons – General recognition of Parliament’s intention to give those responsible for the management of prisons a broad discretion commensurate with their task Human Rights Law – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Where defendant required that communications to which the plaintiff was party during visits in custody be in English – Where plaintiff asserted a right to be able to speak Arabic – Whether the right to freedom of expression encompassed a right of the plaintiff to be able to speak in the language of his choice – Whether provisions of the regulations pursuant to which the defendant acted in requiring that conversations be conducted in English were invalid constitutionally or otherwise Words and phrases – “in English” – “based on”

Legislation Cited:

Commonwealth of Australia Constitution ActCrimes (Administration of Sentences) Act 1999 (NSW)Crimes (Administration of Sentences) Regulation 2014 (NSW)International Convention on the Elimination of All Forms of Racial DiscriminationInternational Covenant on Civil and Political RightsRacial Discrimination Act 1975 (Cth)Surveillance Devices Act 2007 (NSW)Telecommunications (Interception and Access) Act 1979 (Cth)

Cases Cited:

A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1Allitt v Sullivan [1988] VR 621ALRM v South Australia (1995) 64 SASR 551Anderson v Pavic [2005] VSCA 244Associated Provincial Picture Houses v

Wednesbury Corporation [1948] 1 KB 223Australian Medical Council v Wilson and ors. (1996) 137 ALR 653Ballantyne v Canada Communication Nos 359/1989, 385/1989; 31 March 1993Bromley London Borough Council v Greater London Council [1983] 1 AC 768Bryson v NSW Bar Association [2003] NSWADTAP 29Clark v Commissioner for Corrective Services [2016] NSWCA 186Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143Conyngham v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 423Flynn v R (1949) 79 CLR 1; [1949] HCA 38Fryske Nasjonale Partij v Netherlands (1985) 9 EHRR 240Fyfe v State of South Australia [2000] SASC 84Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11Guesdon v France Communication No 219/1986; 25 July 1990Iliafi & Ors v The Church Jesus Christ of Latter-Day Saints Australia (2014) 221 FCR 86; [2014] FCAFC 26JMA Accounting Pty Limited and anor. v Commissioner of Taxation and ors. (2004) 211 ALR 380; [2004] FCAFC 274Knight v Commissioner, Corrections Victoria [2013] VSC 13Koowarta v Bjelke-Petersen (1982) 153 CLR 168; [1982] HCA 27Law Society of South Australia v Le Poidevin (1988) 201 LSJS 76Macedonian Teachers’ Association of Victoria Inc. v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489Maiocchi v Royal Australian and New Zealand College of Psychiatrists (No.4) [2016] FCA 33Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28McEvoy v Lobban (1989) 48 A Crim R 412Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18Nguyen v Refugee Review Tribunal (1977) 74 FCR 311Patsalis v NSW [2012] NSWSC 267Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320R v Khazaal (2006) 167 A Crim R 565; [2006] NSWSC 1353R (Daly) v Secretary of State for the Home Department [2001] UK HL 26; [2001] 2 AC 532R v Hull Prison Board of Visitors; Ex parte St Germain [1979] 1 All ER 701R v Secretary of State for the Home Department; Ex parte Leech [1994] QB 198R v Secretary of State for the Home Department; Ex Parte Simms [1999] QB 349Raymond v Honey [1982] 1 All ER 756Rich v Groningen (1997) 95 A

Crim R 272Rich v Secretary, Department of Justice [2010] VSC 390Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317Solosky v R (1979) 105 DLR (3rd) 745Walker v R [1993] 2 Qd R 345Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46

Texts Cited: English Vocabulary Elements (2nd Edition) (Denning, Kessler and Leben) Oxford University Press 2007

Category: Principal judgment

Parties:

Bassam Hamzy – PlaintiffCommissioner of Corrective Services – First DefendantState of NSW – Second Defendant

Representation:

Counsel:M Finnane QC – PlaintiffJ Emmett and J Edwards – First and Second Defendants Solicitors:Zali Burrows Lawyers – PlaintiffCrown Solicitor for NSW – First and Second Defendants

File Number(s): 2016/2761272016/2761862017/1771962018/41479

Publication Restriction: Nil

JUDGMENTINTRODUCTION

1 Bassam Hamzy (the plaintiff) is currently serving a sentence of full-time

imprisonment. That sentence is administered by the Commissioner of

Corrective Services (the defendant)1 pursuant to the Crimes (Administration of

Sentences) Act 1999 (NSW) (the Act).

2 Pursuant to cl 15 of the Crimes (Administration of Sentences) Regulation 2014

(NSW) (the Regulation), which has been made pursuant to ss 79 and 271 of

the Act, the defendant may designate an inmate as an extreme high risk

restricted (EHRR) inmate if, and only if, he is of the opinion that:

(i) the inmate constitutes an extreme danger to other people, or an extreme threat to good order and security; and

(ii) there is a risk that the inmate may engage in, or incite other persons to engage in, activities that constitute a serious threat to the peace, order or good government of the State or any other place.

3 The defendant has formed that opinion in respect of the plaintiff, and has

designated him as an EHRR inmate. As a consequence, the plaintiff is serving

his term of imprisonment in the High Risk Management Correctional Centre

(HRMCC) in Goulburn, NSW.

4 Against this background, the plaintiff commenced four separate sets of

proceedings in this Court in which he:

(i) sought orders requiring the defendant to do, or to refrain from doing, various things in relation to his custodial management (the judicial review proceedings);2

(ii) challenged the requirement imposed by the defendant that communications to which he (the plaintiff) is a party in custody be conducted in English, on the basis that such a requirement is unlawful by virtue of ss 9(1) and/or 10(1) of the Racial Discrimination Act 1975 (Cth) (the RDA), or alternatively inconsistent with those provisions and thus inoperative, to the extent of the inconsistency, by virtue of s 109 of the Commonwealth of Australia Constitution Act (the Constitution) (the RDA proceedings);3

(iii) sought an order for the return of a USB drive seized from his cell (the USB proceedings);4 and

1 Although the plaintiff has joined the State of NSW in some of the proceedings, the focus of the issues is upon the decisions of the Commissioner. I have accordingly referred to the Commissioner as the defendant, the State of NSW having taken no active role in the proceedings.2 Proceedings 2016/276127.3 Proceedings 2016/276186.4 Proceedings 2018/41479.

(iv) challenged decisions made by the defendant pursuant to a Behavioural Management Plan which operates in the HRMCC (the BMP proceedings).5

5 I was informed at the commencement of the hearing that the USB proceedings

have been resolved on the basis of an agreement between the parties that the

USB drive in question, which had remained in the custody of the Court, be

returned to the plaintiff's representatives. That has now been done.

6 I was further informed that the plaintiff no longer wishes to pursue the BMP

proceedings.

7 That leaves the judicial review proceedings and the RDA proceedings for

determination.

THE JUDICIAL REVIEW PROCEEDINGS

The plaintiff’s pleaded case

8 The amended summons filed by the plaintiff in the judicial review proceedings

seeks relief pleaded in the following terms:6

Ground 1(a) – The plaintiff's right to access legal representation

(1) Relief in the nature of a Declaration that the provision that only the Commissioner for Corrective Services NSW may approve a person to visit an extreme high risk inmate or a national security interest inmate pursuant to clause 94(1) of the Crimes (Administration and Sentencing Regulation [sic] 2014 (NSW) is invalid to the extent that the provision includes visitations by legal representatives pursuant to:

(a) the right to access legal representation under the Crimes (Administration and Sentencing Regulation [sic] 2014 (NSW), clauses 78(2) and 82.

(b) the right to access legal representation and a fair hearing under Chapter III of the Constitution;

(c) the right to access legal representation and a fair hearing under the common law of Australia;

(d) the right to access legal representation and a fair hearing under customary international law, as adopted or incorporated into the common law of Australia.

(2) Relief in the nature of a Declaration that the decision by the Commissioner of Corrective Services NSW to exercise his discretion and require the legal representatives of the plaintiff to undergo a

5 Proceedings 2017/177196.6 Ground 1(d) in the amended summons was not pressed.

criminal record check before granting approval to visit the plaintiff pursuant to clause 94(2) of the Crimes (Administrative Sentences) Regulation [sic] 2014 (NSW) was unreasonable.

Ground 1(b) – The plaintiff's access to the Audio Visual Link (AVL)

(3) Relief in the nature of a Declaration that the decision by the Commissioner of Corrective Services NSW to deny the plaintiff access to AVL facilities to communicate with his legal representatives was invalid or unreasonable pursuant to:

(a) the right to use a telephone under the Crimes (Administration and Sentencing [sic] Regulation 2014 (NSW), clause 163.

(b) the right to communicate with legal representatives under Chapter III of the Constitution;

(c) the right to communicate with legal representatives under the common law of Australia;

(d) the right to communicate with legal representatives under customary international law, as adopted or incorporated into the common law of Australia.7

Ground 1(c) – The plaintiff's access to the Offender Telephone System (OTS)

(4) Relief in the nature of a Declaration that the practice by officers of the Commissioner for Corrective Services NSW to “drop in” and intercept the telephone calls by the plaintiff to his legal representatives is contrary to law, pursuant to:

(a) the right to private and confidential communications by way of a telephone under the Crimes (Administration and Sentencing [sic] Regulation) 2014 (NSW), clause 163;

(b) the Surveillance Devices Act 2007 (NSW);

(c) the Telecommunications (Interception and Access Act [sic] 1979 (Cth);

(d) the right to private and confidential communications with legal representatives under Chapter III of the Constitution;

(e) the right to private and confidential communications with legal representatives under the common law of Australia;

(f) the right to private and confidential communications with legal representatives under customary international law, as adopted or incorporated into the common law of Australia.8

7 It is noted that notwithstanding paragraph (a), no specific submissions were made on behalf of the plaintiff regarding Clause 163.8 It is noted that notwithstanding paragraphs (f) and (g), no submissions were made on behalf of the plaintiff regarding the Surveillance Devices Act 2007 (NSW) or the Telecommunications (Interception and Access) Act 1979 (Cth).

……

A Writ of Prohibition

(5) Relief in the nature of a Writ of Prohibition restraining the defendants, their employees, officers, delegates or agents from giving effect to the relevant clauses of the Crimes (Administrative Sentences) [sic] Regulation 2014 (NSW).

Costs

(6) Relief in the nature of an Order for costs.

THE EVIDENCE

9 A joint tender bundle was admitted by consent.9 The plaintiff read the following

affidavits:

(i) Zali Burrows, solicitor, of 20 September 2019;

(ii) the plaintiff of 23 September 2019; and

(iii) Zali Burrows, solicitor, of 25 September 2019.

10 Neither the plaintiff nor Ms Burrows was cross-examined on those affidavits. It

should be noted that although the joint tender bundle included three further

affidavits of Ms Burrows, none of those affidavits were read.

11 The defendant read the following affidavits:

(i) Geoffrey Poulsen, Acting Manager of Security at the HRMCC, of 13 August 2017 (with exhibit GP1);

(ii) Geoffrey Poulsen of 10 August 2018;

(iii) Bernhard Ripperger, Director, Community Protection Legal, Department of Communities and Justice, of 18 September 2019; and

(iv) Bernhard Ripperger of 15 October 2019.

12 Neither Mr Poulsen nor Mr Ripperger was cross-examined.

The agreed facts

13 A statement of agreed facts formed part of the evidence in the judicial review

proceedings and is in the following terms:

1.   The plaintiff is designated as an extreme high risk restricted inmate pursuant to cl. 15(3) of the Crimes (Administration of Sentences) Regulation 2004 (“the CAS Regulation”). He is currently housed in Area 2 of the High Risk Management Correctional Centre (“the HRMCC”) at Goulburn.

9 Exh A. This included the evidence relied upon by the parties in the RDA proceedings.

Visits in person

2.   The Commissioner of Corrective Services (“the Commissioner”) permits lawyers to visit the plaintiff or any other EHRR inmate in person only if they are approved to do so. The Commissioner relies, in this respect, on cl. 94(1) of the CAS Regulation.

3.   Since about 2016, the Commissioner has required that all lawyers seeking approval to visit the plaintiff and other EHRR inmates in person undergo criminal record checks by way of a Criminal Record Inquiry (“CRI”). The Commissioner relies, in this respect, on cl. 94(2) of the CAS Regulation.

4.   The Commissioner’s usual practice is to grant approval for periods of 12 months. After that period, in order to continue their approval, lawyers wishing to visit are required to provide a further CRI form to permit an updated criminal record check to be [sic] occur.

5.   Ms Zali Burrows and Mr Michael Finnane have both been required to seek approval to visit the plaintiff and to submit CRI forms. Both Ms Burrows and Mr Finnane are presently approved to visit the plaintiff.

6.   The Commissioner has previously refused to grant (or not granted) approval to visit the plaintiff to solicitors who have failed to submit a CRI form, including Mr Martin Churchill, Mr Ali Abbas and Mr Chris Eliopoulos.

7.   The Commissioner’s position in respect of Mr Finnane’s application for approval to visit Mr Hamzy is set out in the letter from him to Mr Finnane, dated 26 April 2019, which is annexed to this document.

Access to lawyers by audio visual link (“AVL”)

8.   From approximately 30 September 2009 to 4 July 2019, Mr Hamzy was housed in Area 1 of the HRMCC. AVL facilities were available in Area 1 of the HRMCC. Those facilities permitted inmates to make unmonitored calls.

9.   The plaintiff applied to use the AVL facilities in Area 1 of the HRMCC, and was permitted to do so from time to time, until May 2016. On 20 May 2016, a Corrective Services officer wrote to Mr Hamzy informing him that his use of the AVL facilities was prohibited indefinitely.

10.   AVL facilities are available in Area 2 of the HRMCC and are, in some cases, permitted to be used by EHRR inmates to contact their lawyers. Corrective Services officers are able to monitor the visual link but not the audio link. Monitoring of the audio of calls made on the AVL facilities in Area 2 is not available. The plaintiff has never applied for access to the AVL facilities in Area 2.

11.   The Commissioner, through Bernhard Ripperger, has stated that, based on the information currently available, and without pre-judging any application before it is made, the limitation with respect to monitoring AVL booths in HRMCC Area 2 is likely to be a powerful consideration against the plaintiff being granted access to his lawyers by AVL.

Access to lawyers by telephone

12.   The Commissioner permits the plaintiff to make telephone calls to lawyers only if they have first been approved as legal contacts on the Offender Telephone System (“OTS”).

13.   Ms Burrows and Mr Finnane are both approved legal contacts for the plaintiff to access on the OTS.

14.   Corrective Services officers monitor OTS calls made by the plaintiff to his lawyers in the manner described in the affidavit of Geoffrey Poulsen, sworn 13 August 2017, at [35].

15.   Corrective Services’ policy is that monitoring officers will listen to a call briefly and randomly. If, in that time, the listening officer determines that the call is not with the approved recipient or is not being conducted in English or another approved language, the call will be disconnected. The making of that determination may, in some cases, involve the exercise of an evaluative judgment, having regard to the circumstances of the OTS call.

The affidavit evidence

14 In addition to the agreed facts, various parts of the affidavit evidence

addressed the issues raised in the judicial review proceedings.

Visits by legal representatives

15 In his affidavit of 13 August 2017, Mr Poulsen explained that as an EHRR

inmate the plaintiff is presently placed at the HRMCC.10 This facility houses

inmates who have been determined to represent a significant risk to

correctional centre security as well as to the wider community, and who require

a higher level of supervision than the general prison population. In terms of the

restrictions placed by the defendant on communications by inmates in the

HRMCC, Mr Poulsen said:11

7. Corrective Services restricts communications by, and visits to, EHRR inmates, in particular through monitoring their communications and contact with people outside the correctional system. Communications are only permitted with approved people.

8. The restrictions on the communications of EHRR inmates are aimed at reducing the risk posed by the inmate due to unrestricted external communications and are not intended to prevent inmates from accessing legal representation.

16 Mr Poulsen also made reference to the general conditions which govern visits

by legal representatives to EHRR inmates:12

22. Visits to EHRR inmates must be non-contact visits, meaning that they take place in an environment where physical contact between the visitor and the inmate is prevented, unless the Commissioner approves a contact visit: see cl. 100 of the Regulation. In my experience, legal visits to EHRR inmates are usually conducted as non-contact visits. Inmates and visiting lawyers sit on

10 At [4].11 At [7]-[8].12 At [22]-[23].

either side of a clear barrier, through which they may see each other and speak to each other but not have any physical contact.

23. Because legal visits are routinely non-contact visits, inmates and visiting lawyers are not able to directly pass documents to one another. In order for documents to be shared during a visit, the inmate or the legal practitioner must hand it to a Corrective Services Officer, who will take it to the other person. The Corrective Services Officer is required to give the document a cursory check to ensure that it is a legal document and that it does not contain prohibited material, but does not read the document beyond the minimum necessary to do so. At the conclusion of the visit, the document must be returned to either the inmate or the legal representative in whose possession the document was at the start of the visit.

17 In her affidavit of 20 September 2019, Ms Burrows deposed to the difficulties

that she had experienced in being able to visit the plaintiff:13

[4] A recent example of difficulty with seeing Mr Hamzy was last week when granted a legal booking for Mr Finnane QC and myself on Friday 6 September 2019 930am – 11.30am and 12.30pm – 2pm. My CRI was processed and approved expeditiously as to facilitate my access on Friday. I had approval and I was refused entry. I subsequently corresponded with the chief of staff of the Commissioner, Mr Frommer and executive services seeking [sic] urgent legal visit as it was not appropriate for Mr Finnane to be without a solicitor in a legal visit. I was subsequently allowed into the centre after 12.30pm yet with processing time, I had about less than 1 hour with Mr Hamzy in [sic] visit with Mr Finnane.

18 Annexure D to that affidavit was an email sent by Ms Burrows to the defendant

at 9:55am on 6 September 2019 in the following terms:

I received confirmation yesterday that my CRI was approved, and that I could attend legal visit [sic] with Mr Finnane QC to see Bassamn [sic] Hamzy. I booked the visit for Mr Finanne [sic] QC and myself today. Further, I sent an email yest3rday [sic] regarding a computer to be available and bringing [sic] USB. I did not receive any communication indicating that my visit would be refused today, noting the 5 hour return drive.

I am at Goulburn now and have been refused entry because my legal visit is not approved.

This is viewed as [sic] hinderance [sic].

I would be grateful for immediate clearance to visit my [sic] Hamzy with Mr Finnane QC.

19 In terms of Ms Burrows’ visits to the plaintiff, Mr Poulsen said the following in

his affidavit of 13 August 2017:14

19. Ms Burrows has completed a CRI and is approved to visit Mr Hamzy, subject to that CRI remaining current. Ms Burrows was notified of that approval by an email of 21 June 2017 from Ms Angela West, General Manager, Security & Intelligence … The email states that “all communications with your

13 At [4] under the heading “Recent difficulty with seeing Mr Hamzy”.14 At [19]-[20].

clients are for legal purposes and are limited to current matters before the court”. I understand that Ms Burrows assists a large number of inmates in the HRMCC, and the limitation in respect of current matters before the court was imposed in an attempt to more equitably provide access to the limited available bookings for legal visits.

20. In order to visit Mr Hamzy, Ms Burrows must comply with the ordinary operational requirements for legal visits to the HRMCC. Those requirements include that an application be made 48 hours in advance of the visit and that the visitor must present appropriate identification. The approval of any visit will be subject to operational and resourcing requirements. … I am aware that applications by Ms Burrows to visit Mr Hamzy on other dates have been refused, including for reasons of capacity and because she failed to apply in advance.

20 In his affidavit of 15 October 2019, Mr Ripperger addressed the events

surrounding Ms Burrows’ visit to the HRMCC on 6 September 2019:15

3. At the time that Ms Burrows sought to book the visit on 6 September 2019, she was not approved to visit Mr Hamzy, because her approval had lapsed and not been renewed (on account of her not having submitted an updated Criminal Records Inquiry (“CRI”) form). As a result, her booking was initially refused and was not entered into the HRMCC's systems when it was made. The booking for Mr Finnane was accepted.

4. On 3 September 2019, Ms Burrows provided an updated CRI form for the purpose of extending her lapsed approval to visit Mr Hamzy. …

5. On 5 September 2019, a Corrective Services Officer sent an email to Ms Burrows informing her that her approval to visit Mr Hamzy had been extended to 5 September 2020. …

6. I am aware that Ms Burrows and Mr Finnane attended the Goulburn Correctional Complex on 6 September 2019 to visit Mr Hamzy and that Ms Burrows was not initially permitted to enter the HRMCC. Mr Finnane was permitted to visit Mr Hamzy in the morning and afternoon visit sessions.

7. I am instructed that the reason why Ms Burrows was initially not permitted to enter the HRMCC was because she was not booked to visit Mr Hamzy on 6 September 2019. After Ms Burrows attended the HRMCC and further enquiries were made, relevant officers were made aware of Ms Burrows' approval, granted the previous day, and a decision was made to permit Ms Burrows to visit Mr Hamzy notwithstanding that her booking had not been entered. Ms Burrows was then permitted to enter the HRMCC in the afternoon visit session.

The plaintiff’s access to computers and AVL facilities

21 Ms Burrows also made reference to the issue of the plaintiff’s access to a

laptop computer for the purposes of her being able to confer with him:16

5. Prior to the visit, I sent an email to HRMCC seeking that a laptop be available for the legal visit and that I was bring in [sic] a USB. This USB was provided to me by Mr Frommer containing materials in these proceedings. Mr

15 At [3]-[7].16 At [5]-[6] under the heading “Recent difficulty with seeing Mr Hamzy”.

Finnane was declined consent to bring the USB into the legal visit and a laptop computer was not made available.

6. When I was in [sic] legal visit I noticed that there are no computers in the legal visit boxes, [sic] further note that there are several boxes to be sound proofed and you speak through a microphone now. At times there was a static, echo, voice delay and difficulty in hearing Mr Hamzy clearly.

22 In his affidavit of 23 September 2019, the plaintiff deposed to the difficulties

that he has experienced in being given access to a computer, and to AVL

facilities, whilst in custody.17 He stated, in particular, that he had been denied

access to a computer on three separate occasions since 16 August 2017,

before saying:18

14. I believe that I am the only inmate in the HRMCC and The State of NSW that has been denied access to AVL facilities, notwithstanding inmates on charges of murder, terrorism drug dealing and the like is permitted to use AVL facilities to conference with their lawyers.

23 In his affidavit of 13 August 2017 Mr Poulsen said the following regarding

access by inmates to computers:19

24. Corrective Services does not permit lawyers visiting HRMCC to bring or use their own laptops during a visit. However, there are several laptops, owned by Corrective Services, that are made available to visiting lawyers on request. Access to these laptops is subject to availability and to any particular security or operational requirements on a particular day. Lawyers may bring files on a USB storage device to use with the laptop, and may view files on the USB device or create files to save to the USB device during the visit. No records are kept of access to the laptop. However, I can recall two occasions on which Mr [sic] Burrows has been granted access to a laptop computer during legal visits with Mr Hamzy.

25. Because visits with lawyers are routinely non-contact visits, only the lawyer has access to the laptop computer. However, the lawyer may show the inmate content on the laptop screen through the clear barrier between the inmate and the lawyer. In one of the visiting rooms in the HRMCC, there is also a second screen on the inmate’s side of the barrier that may be used to mirror the screen of the laptop. That screen was installed in June 2017.

24 In terms of the plaintiff’s access to AVL facilities, Mr Ripperger explained his

affidavit of 18 September 2019 that between 30 September 2009 and 4 July

2019 the plaintiff had been housed in an area of the HRMCC known as Area 1,

and was transferred to Area 2 on 4 July 2019.20 He explained that this

relocation did not result in any material change to the plaintiff's access to

17 Commencing at [5].18 At [14]. It is noted that when referring to the plaintiff’s correspondence in this judgment, the correspondence is reproduced in the exact terms in which it has been written.19 At [24]-[25].20 At [5].

computers, legal visits, telephone calls to legal representatives, AVL facilities

or correspondence.21 In terms of the plaintiff’s access to AVL facilities, Mr

Ripperger explained that there are six AVL booths in Area 2 which are

available to facilitate legal conferences on weekdays between 9:30am and

11:30am and 12:30pm and 2:30pm.22 Mr Ripperger then said:23

19. AVL use in HRMCC Area 2 may be subject to visual monitoring by closed circuit television, which permits CSNSW officers to view the inmate using the AVL booth and the recipient of the AVL call. However, there is no system for audio monitoring of AVL calls. Accordingly, unlike the position with respect to legal telephone calls on the Offender Telephone System, it is not possible for CSNSW officers to “drop in" to an AVL conversation to ensure that it is only with the approved recipient (that is, that the conversation is only with the person who is visible on the AVL booth screen, noting that a person who is not the approved recipient could remain invisible on the AVL booth screen, and yet still be able to communicate verbally with the inmate).

20. I have examined CSNSW records and requests for access to the AVL system by a lawyer seeking to hold legal conferences with Mr Hamzy by AVL. No such requests have been made since the introduction of the current system.

21. On the basis of the information now available to me, and without pre-judging any application before it is made, I consider that the limitation with respect to monitoring the AVL booths in HRMCC Area 2 is likely to be a powerful consideration against Mr Hamzy being granted access to his lawyers by AVL. Any decision, in this respect, would ultimately be made by the Commissioner of Corrective Services (or his delegate).

25 In his affidavit of 13 August 2017, Mr Poulsen expressed his understanding

that conversations over AVL could not be monitored.24 He then said:25

I have formed the view, in my capacity as Acting Manager of Security at the HRMCC, that the provision of AVL access to Mr Hamzy, including either the video link facility or the unmonitored telephone in the AVL room holding cell, would pose a significant security risk, given the lack of appropriate supervision, in that it would increase the likelihood that he would conduct illegal activities from within the HRMCC.

26 Mr Ripperger also explained that a laptop computer owned by the defendant

has now been assigned to the plaintiff, as part of the defendant's developing

policy to facilitate access to computers by inmates.26 He said that the plaintiff

would shortly have access to a computer at all times when in his cell.27

21 At [6].22 At [17].23 At [19]-[21].24 At [50].25 At [51].26 Commencing at [10].27 At [13].

27 Ms Burrows’ affidavit of 25 September 2019 annexed a bundle of documents

which had been provided to her by the plaintiff. Generally speaking, those

documents recorded complaints made by the plaintiff to the defendant about:

(i) his inability to access a computer;

(ii) the defendant’s refusal, at one point, to allow him to include Ms Burrows on a list of nominated telephone contacts; and

(iii) the termination of phone calls he had made to legal practitioners.

The plaintiff’s access to the Offender Telephone System

28 A further document issued by the defendant and entitled “Information for

extreme high risk restricted inmates” was annexed to the affidavit of Ms

Burrows of 25 September 2019.28 Under the heading “Telephone calls and

audio visual link (AVL) access”, the following was stated in the same

document:

No telephone calls or AVL access, with the exception of calls to the Ombudsman, ICAC or other exempt body, will be permitted unless approved by the Commissioner or delegate. All approved calls will be monitored, with the exception of calls to an exempt body or your legal representative. The conversation (including legal calls) must be in English or another language approved by the Commissioner or delegate.

CSNSW staff may re-verify the legitimacy of the call at various intervals throughout the duration of the call or AVL link to your legal representative by momentarily 'dropping in' on the conversation.

'Dropping in' means a brief interception of the call to ensure that the conversation is being conducted in English (or another approved language) and that both you and your legal representative are still speaking in this approved language. The interception of the call will not continue if both you and the legal representative are complying with these conditions.

The call or AVL link will be terminated if at the moment the call is intercepted it is established that the conversation is NOT in English (or another approved language) and/or the conversation is with someone other than your approved legal practitioner) [sic].

Each approval for a telephone contact is only for the person nominated in your request and their telephone number. [Emphasis in original].

29 The contents of this document are generally consistent with that part of the

affidavit of Mr Poulsen of 13 August 2017 in which he explained the practice of

monitoring calls:29

28 Annexure B commencing at p.141 of Exh A.29 At para [35].

[35]   OTS calls with EHRR inmates are monitored by Corrective Services Officers to ensure that they are in English and are with approved contacts. In order to monitor calls without breaching inmates’ privilege or confidentiality, it is the practice of Corrective Services that officers periodically “drop in” to the line, listen for only long enough to check that English is being spoken and that the call is with the approved recipient, and then disconnect. No records are made of anything heard during a “drop in” unless the call is not in English or not with an approved person.

30 The plaintiff has, for some time, taken issue with the defendant’s officers

“dropping in” on his conversations with legal practitioners. For example, on 13

April 2016 he wrote to the defendant stating:30

I want all my legal calls to be totaly Private & Confidential in line with the law. I do not accept DCS Breach my privlage commucation, nor do I permit the monotring, nor do I agree for my calls to be monitered, & nor do my lawyers as was stated by DCS to The ombudsmans enquires. DCS already commited a criminal offence by listing to a legal call without a warrent & without Notice when I called ACS. Now I request all my legal calls are Privlage. I want my legal calls to be Private Confidental & Privlage & dont want or agree for them to be monitered as stated to the ombudsman.

31 On 2 December 2016 he again wrote to the defendant stating:31

I state carigorically that I do not give any permission, authority or consent to any person or officer to listen to my legally privilaged calls wich are in the pursual of my legal affairs. I am disscusing Privilaged documents, sent in by my lawyers by mail & privilaged document I recived on the legal visit and Material suppressed by the Court.

All my discusions are confidential – Secret & privlaged. I do not consent to any person or officer to listen to any part of my privlaged commucation.

THE RELEVANT LEGISLATION

32 In the course of argument I was taken by counsel for both parties to a number

of provisions of the Act and the Regulation. They included the following.

Crimes (Administration of Sentences) Act 1999

33 Section 78A of the Act is in the following terms:

78A Separation and other variations in conditions of custody of inmates

(1) Nothing in this Act requires the conditions of custody of inmates to be the same for all inmates or for all inmates in the same correctional centre or of the same classification or designation, including conditions with respect to association with other inmates.

(2) An inmate or group of inmates in a correctional centre may be held separately from other inmates in the correctional centre for the purposes of the care, control or management of the inmate or group of inmates.

30 Exh A p. 318. The content of this document is set out in the terms in which it was written.31 Exh A p. 320. The content of this document is set out in the terms in which it was written.

(3) In particular, inmates may be separated because of a requirement of this Act or the regulations, because of the classification or designation of the inmates, because of the nature of any program being undertaken by the inmates or because of any intensive monitoring that is required of the inmates.

(4) The making of a segregated custody direction under Division 2 is not required to authorise a separation of inmates.

(5) Anything done or omitted that could have been validly done or omitted if this section (and section 79 (1) (c1)) had been in force when it was done or omitted is taken to be, and always to have been, validly done or omitted.

34 Section 79 provides (inter alia) as follows:

79 Regulations

(1) The regulations may make provision for or with respect to the following matters—

…

(c) the classification of inmates into different categories and the separation of inmates by reference to the categories into which they have been classified,

(c1) the designation of inmates for the purposes of or in connection with the management of security and other risks,

…

(i) visits to inmates, including--

(i) the days and times that visits may be allowed, and

(ii) the maximum number of persons who may visit an inmate at the same time, and

(iii) the classes of persons who may be prohibited from visiting inmates, and

(iv) the conditions that must be observed by persons intending to visit an inmate before such a visit will be allowed, and

(v) the procedures to be observed by visitors and inmates during visits, and

(vi) without limiting subparagraphs (iv) and (v), the identification of visitors (including the removal of face coverings within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for that purpose),

(j) the making and receiving of telephone calls by inmates

…

35 Section 232 of the Act confers a number of responsibilities on the defendant in

the following terms:

232 Commissioner

(1) The Commissioner--

(a) has the care, direction, control and management of all correctional complexes, correctional centres and residential facilities, and

(a1) has the care, control and management of all offenders who are held in custody in accordance with Part 2 or 3, and

(b) has all other functions conferred or imposed on the Commissioner by or under this or any other Act or law.

(2) In the exercise of the functions referred to in subsection (1) (a), (a1) and (b), the Commissioner is subject to the direction and control of the Minister.

(3) The Commissioner may delegate to any person any of the Commissioner's functions, other than this power of delegation.

(4) Sections 10 (2), 11 (3), 12 and 17 (4) do not limit the power of the Commissioner to delegate functions under those sections.

36 The regulation making power is contained in s 271(1) of the Act:

271 Regulations

(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient for carrying out or giving effect to this Act.

37 A specific provision regarding regulations relating to high risk offenders is

contained in s 271A of the Act:

271A Regulations relating to high risk offenders

(1) The regulations may provide for the preparation and implementation of plans of management in respect of persons who are high risk offenders, and the provision of services and programs in respect of those persons, by Corrective Services NSW.

(2) The regulations may confer functions on the Review Council in respect of high risk offenders.

(3) A person is a "high risk offender" if--

(a) the person is the subject of an extended supervision order, interim supervision order, continuing detention order, interim detention order or emergency detention order under the Crimes (High Risk Offenders) Act 2006, or

(b) the person is the subject of an extended supervision order, interim supervision order, continuing detention order, interim detention order or emergency detention order under the Terrorism (High Risk Offenders) Act 2017, or

(c) the person is a Commonwealth post sentence terrorism inmate.

Crimes (Administration of Sentences) Regulation (2014) (NSW)

38 Clause 3 of the Regulation defines a number of terms, including the following:

"exempt body" means--

(a) the Ombudsman, the Judicial Commission, the New South Wales Crime Commission, the Law Enforcement Conduct Commission, the Anti-Discrimination Board, the Civil and Administrative Tribunal, the Independent

Commission Against Corruption, the Inspector of Custodial Services, the Privacy Commissioner, the Information Commissioner, the Legal Aid Commission, the Legal Services Commissioner or the Legal Services Tribunal, or

(b) the Commonwealth Ombudsman, the Australian Human Rights Commission or the Australian Crime Commission.

"exempt person" means a Member of Parliament, a legal practitioner or a police officer.

39 Clause 5, which is within Part 2 of the Regulation dealing with admission

procedures applicable to correctional centres, is in the following terms:

5 Inmates to be notified of rights and obligations

As soon as practicable after an inmate is first received into a correctional centre, the governor must ensure the inmate is informed of the following--

(a) the correctional centre rules (that is, the terms of any general directions given under Part 2 of the Act or under Parts 2-9 of this Regulation),

(b) the inmate's obligations relating to discipline and conduct,

(c) the inmate's rights of legal representation and appeal in relation to proceedings under this Regulation,

(d) the case management process,

(e) the authorised methods of seeking information and making complaints,

(f) the role of an Official Visitor,

(g) the functions of the Review Council in relation to the segregation and protective custody of inmates,

(h) any other matter necessary to enable the inmate to understand the inmate's rights and obligations and adapt to living in the centre.

40 Clause 15(3) gives the Commissioner power to designate an inmate as an

extreme high risk restricted inmate:

15 Designation of high security, extreme high security, extreme high risk restricted and national security interest inmates

…

(3) The Commissioner may designate an inmate as an extreme high risk restricted inmate if of the opinion that--

(a) the inmate constitutes--

(i) an extreme danger to other people, or

(ii) an extreme threat to good order and security, and

(b) there is a risk that the inmate may engage in, or incite other persons to engage in, activities that constitute a serious threat to the peace, order or good government of the State or any other place.

41 Clause 82 (which is contained within Division 2) governs visits to an inmate by

legal practitioners:

82 Visits to transact legal business

In addition to any other visit authorised by this Regulation, an inmate is entitled to be visited by the inmate's legal practitioner.

42 Clause 92 provides that Division 4, which addresses the control of visits to

correctional centres and inmates, applies to all visits under Divisions 1, 2 and

3.

43 Clause 94 is contained within Division 4 of the Regulation, which makes

provision for the control of visits to correctional centres and inmates. Clause 94

is in the following terms:

94 Approval of visitors to extreme high risk restricted inmates and national security interest inmates

(1) A person may visit an extreme high risk restricted inmate or a national security interest inmate only if the person has been approved by the Commissioner as a visitor to that inmate.

(2) The Commissioner may require a visitor to undergo a criminal record check before approving the person as a visitor to an extreme high risk restricted inmate or a national security interest inmate.

(3) The Commissioner may, on the basis of a criminal record check or for any other reason, refuse to approve a person as a visitor to an extreme high risk restricted inmate or a national security interest inmate.

(4) The Commissioner may revoke an approval of a person as a visitor to an extreme high risk restricted inmate or a national security interest inmate at any time.

(5) The Commissioner may authorise a departure from the requirements of this clause in respect of a particular visitor or a particular visit.

(6) This clause does not limit the general power of a governor to refuse to allow a person to visit an inmate under clause 106.

44 Clause 101 of the Regulation is in the following terms:

101 Visits to extreme high risk restricted inmates to be conducted in English or approved language

(1) During a visit to an extreme high risk restricted inmate, all communications must be conducted in English or another language approved by the Commissioner.

(2) If communications are conducted in a language other than English, the visit must take place within the hearing of an interpreter approved by the Commissioner.

(3) In any case, a visit to an extreme high risk restricted inmate must take place within the hearing of a correctional officer.

(4) The Commissioner may authorise a departure from the requirements of this clause in respect of a particular visitor or a particular visit.

45 Particular arrangements may be made in respect of the inspection of legal

documents pursuant to cl 103:

103 Special arrangements for legal documents

(1) An authorised officer may inspect or examine, but not read, any document or other recorded material, including information recorded in electronic form, that is taken into a correctional centre by an inmate's legal practitioner for the purpose of discussing or transacting legal business.

(2) The governor of a correctional centre must ensure that arrangements are made for an inmate and the inmate's legal practitioner to have joint access to any document or other recorded material that is taken into the centre for the purpose of discussing or transacting legal business.

(3) Nothing in this clause limits the operation of clause 100.

46 Clause 116 is in the following terms:

116 Additional requirements for correspondence from extreme high risk restricted inmates and national security interest inmates

(1) All correspondence from an extreme high risk restricted inmate or a national security interest inmate to any other person (other than an exempt body) must be written in English or another language approved by the Commissioner, unless the Commissioner otherwise authorises.

(2) If a letter or parcel received from an extreme high risk restricted inmate or a national security interest inmate and addressed to any person (other than an exempt body) contains any correspondence that is written in a language other than English, the governor or nominated officer may arrange for a translation of the correspondence.

47 Clause 119 is contained within Division 7 which governs the use of (inter alia)

telephones by inmates and is in the following terms:

119 Permission required to make telephone calls or send faxes

(1) An inmate must not make a telephone call or send a fax without the permission of an authorised officer.

(2) An inmate must not make more telephone calls or send more faxes in any week than the maximum number fixed by the Commissioner for the inmate or the class of inmates to which the inmate belongs.

(3) An inmate must not have telephone or fax communication with an inmate of another correctional centre without the permission of the governors of both correctional centres.

(4) A correctional officer may terminate an inmate's telephone call or fax communication if of the opinion that--

(a) the continuation of the call or communication will, or is likely to--

(i) prejudice the good order and security of any correctional centre, or

(ii) constitute a threat to the personal security of any person, or

(b) the call or communication is being conducted in contravention of this Regulation.

(5) As soon as practicable after terminating an inmate's telephone call or fax communication, a correctional officer must ensure details of the reason for the termination are recorded, and report the details to the governor.

(6) All telephone calls made by an extreme high risk restricted inmate or a national security interest inmate must be conducted in English or another language approved by the Commissioner, unless the telephone call is made to an exempt body or unless the Commissioner otherwise authorises.

SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff

48 In addressing ground 1(a) in the amended summons, senior counsel for the

plaintiff emphasised the fundamental common law right of every person to

choose his or her own legal representative(s). He submitted that as a person in

custody, the plaintiff's right in that respect had been acknowledged, at least in

part, by cl 82 of the Regulation. Senior counsel submitted that such a

fundamental common law right cannot be restricted or removed except in the

clearest of circumstances.

49 Senior counsel submitted that the evidence established that the defendant had

at least restricted, if not revoked, the right of the plaintiff to choose his own

legal representative by deciding to implement a policy which:

(i) required that any legal practitioner seeking to visit an EHRR inmate agree to complete a form authorising a CRI to be undertaken;

(ii) required that any legal practitioner seeking to visit an EHRR inmate be approved to do so;

(iii) required that any application for approval to visit an EHRR inmate be renewed each 12 months, necessitating a repeat of the process in (i) and (ii) above;

(iv) required that a booking be made by an approved legal practitioner to visit an EHRR inmate at least 48 in advance of the proposed visit;

(v) prevented Ms Burrows from visiting the plaintiff on 6 September 2019 because she had not given 48 hours’ advance notice of her intended visit; and

(vi) mandated that an approval which had been granted to a legal practitioner to visit one EHRR inmate could not be relied upon by that practitioner as constituting an approval to visit another EHRR inmate, thus necessitating a requirement for the practitioner to undergo multiple procedures of the kind in (i) above, depending upon how many separate inmates were to be visited.

50 Senior counsel submitted that the defendant’s decision to implement such a

policy amounted to “trampling" on the plaintiff's common law rights in a way

which was unauthorised by law, and which amounted to the plaintiff being

denied access to a legal practitioner. He submitted, in particular, that there was

nothing contained in the Act or the Regulation which reflected any intention by

the Parliament to impose restrictions on a person's right to choose, or have

access to, a legal practitioner, nor was there anything in the Act or Regulation

which reflected an intention to allow a practice which required a legal

practitioner to submit to a CRI, and thus undergo what senior counsel

described as a “burdensome" process, in order to be able to visit an EHRR

inmate. Senior counsel submitted that it was both inappropriate and unlawful to

require a legal practitioner to submit to a CRI in the absence of some express

legislative provision permitting such a policy.

51 In advancing these submissions, senior counsel acknowledged that restrictions

of this kind may be appropriate in the case of (as he put it) “other people” (i.e.

people other than legal practitioners) who might want to visit the plaintiff. He

developed this proposition by submitting that the process of requiring a legal

practitioner to undergo a CRI was entirely unnecessary because it could be

inferred, without enquiry, that any legal practitioner who held a current

practising certificate was a person of no prior convictions. It was submitted that

this demonstrated that the defendant’s policy was lacking in utility. As I

understood it, senior counsel relied on that asserted lack of utility as a further

indicator of the unreasonableness of the defendant’s decision to formulate and

implement the policy.

52 It was further submitted that the proper administration of justice demanded that

any legal practitioner acting for an EHRR inmate not be impeded in carrying

out his or her professional duties. Senior counsel submitted that the process of

requiring a legal practitioner to undergo a CRI necessarily gave rise to such an

impediment.

53 Senior counsel further submitted that the conditions governing personal visits

by a legal practitioner to an EHRR inmate, which prevent any physical contact

between the two, further demonstrated the impermissible and unreasonable

nature of conduct by the defendant which encroached upon the rights of the

plaintiff. In this regard, senior counsel referred specifically to that part of Mr

Poulsen’s evidence which, he submitted, established that an officer of the

defendant may read a document for the purposes of determining whether it

was prohibited.32 It was submitted that this amounted to a violation of any legal

professional privilege which might otherwise attach to material of that nature.33

54 Senior counsel for the plaintiff then turned to ground 1(b) of the amended

summons, which challenged the defendant’s decision to refuse the plaintiff

access to AVL facilities for the purposes of conferring with his legal

representatives. Bearing in mind the evidence of Mr Ripperger as to the

reasons why the plaintiff would not be granted access to AVL facilities, it was

submitted that the defendant had no authority to “breach the entitlement of [the

plaintiff] to complete confidentiality of discussions” with those representatives.

55 Senior counsel also pointed out that in the absence of being given access to

AVL facilities for the purposes of such discussions, it was necessary for the

plaintiff’s legal representatives to travel to Goulburn for that purpose. As I

understood it, that circumstance was said to further reflect the

unreasonableness of the defendant’s decision.

56 As to ground 1(c) of the amended summons, senior counsel for the plaintiff

submitted that legal professional privilege is not a rule of practice, but an

important substantive law. He submitted that there was nothing in the Act or

the Regulation that abrogated that privilege, or which otherwise authorised the

defendant to “drop in” on an inmate’s calls. Senior counsel submitted that there

was no entitlement, absent a clear statutory intention, for any person to engage

in a breach of legal professional privilege by “dropping in” on calls between a

32 Set out at [16] above.33 This submission appeared to fall outside the ambit of ground 1(a). In any event, the procedure referred to by senior counsel is authorised by cl 103 of the Regulation.

legal practitioner and an inmate. In advancing these submissions, he

emphasised that the evidence established that such practice was an entirely

discretionary one, in terms of determining:

(i) whether to monitor a conversation at all;

(ii) the length of time over which any conversation was monitored; and

(iii) whether a particular conversation would be monitored on more than one occasion in the course of its duration.

57 It was submitted that the practice was a breach of legal professional privilege

because those officers of the defendant who “dropped in" on calls necessarily

gained an understanding of what legal advice an inmate was seeking and

obtaining.

58 Beyond these matters, senior counsel relied, in support of this ground, on the

submissions advanced in support of the relief sought in paragraph 1(b) of the

amended summons.

Submissions of the defendant

59 Counsel for the defendant commenced by citing a number of general principles

which, he submitted, were relevant to the resolution of the issues in the judicial

review proceedings.

60 Firstly, counsel submitted that the right of a person to choose a legal

practitioner was not absolute, and that there were necessarily circumstances in

which that right could be curtailed, or even removed altogether, by legislation.

61 Secondly, whilst accepting that any inmate must not have his or her right to a

fair hearing compromised, counsel submitted that what might be required to

ensure that this is achieved will necessarily vary from case to case, and will

depend, at least in part, on the nature of the proceedings in question, and the

stage that such proceedings have reached.

62 Thirdly, counsel submitted that “prison legislation" such as the Act and the

Regulation recognises the necessity for those who have the responsibility of

administering and managing correctional authorities to have the power to

properly carry out those tasks. This, it was submitted, informed any process of

judicial review of the exercise of such power, and that it was necessary to

strike a balance between the duties and responsibilities of correctional

authorities to administer prisons, and the reluctance of the common law to

construe legislation in a way which impedes access to the courts.

63 Against this background, counsel for the defendant turned firstly to ground (1)

(a) in the amended summons. Counsel submitted that cl 94 of the Regulation

does not deprive an inmate of access to a legal representative and that any

inmate, including the plaintiff, remains able to choose and engage any legal

representative who is willing to undergo a CRI. It was submitted that in all of

these circumstances, cl 94(2) was clearly within the regulation making power

conferred by the Act.

64 It was submitted that on the whole of the evidence, there was no basis for

concluding that any of the decisions of the defendant regarding the approval of

the plaintiff’s legal representatives were unreasonable, illogical or irrational.

Counsel for the defendant submitted, in particular, that in the context of a high

risk prison environment, it was not unreasonable for the defendant to approach

issues relating to the approval of legal representatives on the fundamental

premise that no individual can be assumed to be incorruptible.

65 It was further submitted that the requirement for a legal practitioner wishing to

visit an EHRR inmate to undergo a CRI was far from burdensome, and was a

practice which, not unreasonably, ensured that the defendant had up-to-date

information about such practitioners. It was submitted that for the same

reasons, it was not unreasonable for the defendant to implement a system of

ongoing approval of legal practitioners by requiring that such process be

repeated at 12 month intervals.

66 In terms of ground 1(b) of the amended summons, counsel for the defendant

submitted that whilst it may be more convenient for the plaintiff to have access

to AVL facilities, the evidence did not establish that the absence of access to

such facilities had restricted his ability to properly prepare for litigation, or

receive advice, to the point where his access to the courts, or his right to a fair

hearing, had been compromised. It was submitted that the evidence of Mr

Ripperger and Mr Poulsen established that a permissible consideration in

determining whether the plaintiff should be given access to AVL facilities for the

purpose of speaking with his legal representatives was the risk posed by the

fact that conversations could not be monitored. It was submitted that the

evidence did not establish any basis for concluding that the refusal to grant the

plaintiff access to AVL facilities was unreasonable.

67 In terms of ground 1(c) of the amended summons, it was submitted that the

defendant’s practice of “dropping-in" on calls was lawful. It was submitted, in

particular, that the powers contained in the Act clearly included a power to

monitor an inmate's telephone calls and that properly read, cl 119(6) of the

Regulation necessarily implied that such monitoring was capable of extending

to calls between an inmate and his or her legal representative. It was submitted

that cl 119(6) reflected a legislative intention, as well as an expectation, that an

appropriate balance be struck between the importance of the free flow of

communication between an inmate and his or her legal representative, and the

necessity for the defendant to maintain security and good order in those

correctional centres which he administers.

68 In advancing these submissions, counsel for the defendant acknowledged the

importance of, and the fundamental right to, legal professional privilege.

However, he submitted that the effect of the practice of an officer “dropping in”

on a call was to allow that officer to monitor a conversation in a way which did

not permit that officer to become privy to the substance of what was being

discussed. It was submitted that in these circumstances, no privilege was

breached.

CONSIDERATION

General principles

69 There are a number of general principles which provide an appropriate starting

point for consideration of the issues in the judicial review proceedings.

70 To begin with, it is beyond doubt that every person has the right to choose his

or her legal representative. In R v Khazaal Whealy J stated the principle in

these terms: 34

… the right of choice of counsel and solicitor is so fundamental, especially in criminal proceedings, that it should not be disturbed except in the most

34 (2006) 167 A Crim R 565; [2006] NSWSC 1353 at [90].

unusual and exceptional circumstances and where no other remedy is otherwise available.

71 That right of choice is consistent with the principle that all persons are entitled

to unimpeded access to the Courts. In Knight v Commissioner, Corrections

Victoria Hollingworth J regarded such entitlement as part of the fundamental

right to a fair trial.35 In Commissioner of Corrective Services v Liristis Basten JA

took the view that the right to a fair trial was not a single right, but one which

encompassed a range of rights and entitlements necessary for the proper

administration of justice.36 In my view, however the scope of the right to a fair

trial is approached, it must include the right of a person to choose his or her

own legal representative.

72 The issues which arise in the judicial review proceedings must obviously be

determined in the context of the plaintiff serving a term of imprisonment. Clark

v Commissioner for Corrective Services37 was a case in which it was asserted

by an inmate of a correctional centre that aspects of his conditions of custody

impeded him in the pursuit of various legal proceedings to which he was a

party. A number of general principles concerning the management of

correctional facilities, the powers conferred by the Parliament on those who

carry out that function, and the limited extent to which Courts will generally

interfere with decisions made in the exercise of such powers, emerge from the

judgments of the members of the Court in that case, as well as from other

authorities.

73 Firstly, it is important to recognise that within a custodial setting, rules can

properly be applied to take account of individual circumstances.38

74 Secondly, the fact that a request for particular facilities which is made by an

inmate might be regarded as reasonable does not establish that a refusal to

meet the request is either unlawful or unreasonable.39 Where the request

relates to access to facilities for the preparation of legal proceedings, the

particular stage which the proceedings have reached has a bearing upon

whether an inmate needs to be provided with the facilities which have been 35 [2013] VSC 13 at [19].36 (2018) 98 NSWLR 113; [2018] NSWCA 143 at [67].37 [2016] NSWCA 186.38 Clark at [31] per Basten JA.39 At [32] per Basten JA.

requested.40 To the extent that an application for judicial review relates to a

refusal to provide such facilities to an inmate, it is relevant to consider the

particular tasks which need to be undertaken, and why doing so is not

practicable in the absence of the inmate being provided with the facilities which

are sought.41

75 Thirdly, statutes which govern the discipline and control of those in custody

must be construed and understood as being generally indicative of

Parliament’s intention to give to those responsible for the administration and

management of correctional facilities a broad discretion to make decisions,

commensurate with the nature of the task, and the balancing of potentially

conflicting considerations.42

76 Fourthly, whilst the breadth of any discretion given to those who are

responsible for making decisions in the administration and management of a

correctional facility is a matter of statutory construction, legislation conferring

such a discretion should ordinarily be interpreted in a manner which gives full

scope to the power of a correctional authority to carry out its tasks without

undue influence from the courts.43

77 Further, whilst it must be recognised that prisoners are in a position of

disadvantage, and that any abuse of power by prison authorities is

unacceptable and can often have serious ramifications, the limits of a Court’s

jurisdiction must be carefully observed, and Courts should generally avoid

becoming enmeshed in the merits of decisions which are made in the context

of prison management. This is primarily on account of the fact that the

management of prisons involves complex practical considerations and security

implications with which a Court may not be familiar, and which a Court may not

fully appreciate.44

78 Finally, each of grounds 1(a) and 1(b) in the amended summons asserts that

the defendant has acted unreasonably. In Associated Provincial Picture

Houses v Wednesbury Corporation Lord Green MR observed that if a decision

40 At [88] per Emmett AJA.41 At [89]-[90] per Emmett AJA.42 At [85] per Emmett AJA citing Flynn v R (1949) 79 CLR 1; [1949] HCA 38 at 8.43 At [84] per Emmett AJA citing Anderson v Pavic [2005] VSCA 244 at [32].44 Fyfe v State of South Australia [2000] SASC 84 at [18] per Martin J.

is so unreasonable that no reasonable authority could ever have come to it,

then a court can intervene to rectify it.45 Subsequent authorities have

considered the meaning of the term “unreasonable" in the sense to which his

Lordship referred.

79 In Secretary of State for Education and Science v Tameside Metropolitan

Borough Council,46 Lord Diplock said:

To fall within this expression it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.

80 In Bromley London Borough Council v Greater London Council Lord Diplock

described decisions falling into that general category as decisions that:47

… looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them.

81 That formulation was adopted by Wilcox J in Conyngham v Minister for

Immigration and Ethnic Affairs,48 before being considered by the High Court in

Minister for Immigration and Citizenship v Li.49 The following propositions can

be drawn from the judgment of the plurality (Hayne J, Kiefel J (as her Honour

then was) and Bell J) in Li:

(i) the legal standard of reasonableness is the standard indicated by the true construction of the relevant statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused;50

(ii) the decision in Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as being limited to an irrational or bizarre decision, or in other words, a decision that is so unreasonable that no reasonable person could have arrived at it. Lord Green MR should not be taken to have limited the concept of unreasonableness in this way. His Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may, in some cases, be

45 [1948] 1 KB 223 at 230.46 [1977] AC 1014 at 1064.47 [1983] 1 AC 768 at 821.48 (1986) 68 ALR 423 at 433-434.49 (2013) 249 CLR 332; [2013] HCA 18.50 At [67].

objectively drawn even where a particular error in reasoning cannot be identified;51

(iii) drawing an inference of unreasonableness in the absence of specific error is recognised by the principles governing the review of a judicial discretion;52

(iv) specific errors in decision-making may also be seen as being encompassed by unreasonableness;53

(v) a court may infer that in some way there has been a failure to properly exercise the relevant discretion if, upon the facts, the result is unreasonable or plainly unjust;54

(vi) the reasoning in (v) may apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts, and from the matters falling for consideration in the exercise of the statutory power;55

(vii) even where some reasons have been provided, it may nevertheless not be possible for a court to comprehend how the decision was made. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.56

82 With these matters in mind I turn to consider the specific grounds in the judicial

review proceedings.

Ground 1(a) - The plaintiff’s access to legal representation

83 Ground 1(a) encapsulates two primary propositions, namely that:

(i) clause 94(1) of the Regulation is invalid; and

(ii) the defendant’s decision to require the plaintiff’s legal representatives to undergo a CRI check is unreasonable.

84 As to the first of those propositions, the regulation making power is contained

in s 271 of the Act. That power is complemented by s 79 of the Act which sets

out the matters in respect of which regulations may be made. Those matters

include visits to inmates.57 The aspects of visits in respect of which regulations

may be made include, but are not limited to:

51 At [68].52 At [68].53 At [72].54 At [76].55 At [76].56 At [76].57 Section 79(1)(i).

(a) the days and times that visits may be allowed;58

(b) the conditions which must be observed by persons intending to visit an inmate before such a visit is allowed;59 and

(c) the procedures to be observed by visitors and inmates during visits.60

85 The Regulation also includes the following:

(i) cl 82, which is contained within Division 2, and which confers an entitlement on an inmate to be visited by his or her legal practitioner;

(ii) cl 92, which provides that Division 4 shall apply to all visits under Division 1, 2 or 3 (as a consequence of which Division 4 must apply to a visit by a legal practitioner, the entitlement to which is conferred by cl 82 which is in Division 2);

(iii) cl 94(1), which is contained within Division 4, and which provides that a person may visit an EHRR inmate only if the defendant has approved that person as a visitor to that inmate;

(iv) cl 94(2), which is also contained within Division 4, and which confers a power on the defendant to require any visitor to undergo a CRI before approving that person as a visitor to an EHRR inmate.

86 Clause 92 makes it clear that a visit by a legal practitioner to an inmate, in

exercise of the inmate’s entitlement under cl 82, is a visit to which Division 4

applies. That leads to the inevitable conclusion that the reference to “visitor” in

cl 94(2) (which is within Division 4) must be taken to include a legal

practitioner. The proposition that cl 94 does not apply to visits by legal

practitioners tends wholly against the only sensible construction of these

provisions of the Regulation.

87 In these circumstances, the entitlement of an inmate to be visited by his or her

legal practitioner which is conferred by cl 82 must be read as being subject to

cl 94(1) and (2). In other words, an EHRR inmate is entitled to be visited by a

legal practitioner only if that person has been approved by the defendant. Part

of that approval process may involve the legal practitioner having to undergo a

58 Section 79(1)(i)(i).59 Section 79(1)(i)(iv).60 Section 79(1)(v).

CRI. Such an interpretation is consistent with the context and purpose of the

Regulation as a whole.

88 Further, as I have previously set out, the authorities support the general

proposition that legislative instruments such as the Act and the Regulation are

to be interpreted in a way which gives full scope to the defendant to carry out

the task of prison administration, and the associated task of the management

of inmates, without undue influence from the Courts. There is, obviously, a

need for the defendant to be able to exercise control over custodial facilities,

and to maintain discipline, safety and security,61 the importance of which

cannot be understated. Clause 94(1) reflects that need.

89 The defendant’s approval of persons who visit EHRR inmates is necessarily an

important regulatory function in the context of prison administration. Cl 94(1)

reflects the intention of the Parliament to confer a power on the defendant to

make decisions which are conducive to the good order and management of the

correctional facilities that it administers.

90 In all of these circumstances I am satisfied that cl 94(1) of the Regulation is

valid.

91 The plaintiff’s second proposition under ground 1(a) centred upon the asserted

unreasonableness of the defendant’s decision to require legal representatives

of the plaintiff to undergo a CRI before being granted approval to visit the

plaintiff. For a number of reasons, I am unpersuaded that such decision is

unreasonable.

92 Firstly, contrary to the submissions advanced on behalf of the plaintiff, cl 94(2)

of the Regulation does not deny the plaintiff access to a legal representative.

What it does is give the defendant power to require a legal representative to

undergo a CRI before being approved to visit the plaintiff (or any other EHRR

inmate). The proposition that cl 94(2) “tramples" upon the plaintiff's common

law right to choose a legal practitioner should be rejected. There is nothing

whatsoever in cl 94(2) which prevents the plaintiff from choosing, engaging,

giving instructions to, conferring with, and receiving advice from, any legal

practitioner. It requires only that if such legal practitioner is to visit the plaintiff in

61 See generally McEvoy v Lobban (1989) 48 A Crim R 412; Walker v R [1993] 2 Qd R 345.

custody, he or she undergo a CRI, respond to any follow-up queries that may

arise, and be approved.

93 Secondly, it is not unreasonable for the defendant to require any legal

practitioner who wishes to visit the plaintiff (or for that matter, any other EHRR

inmate) to undergo a CRI. One of the defendant’s fundamental tasks is to

ensure the maintenance of good order in any correctional centre that he

administers. No individual can be assumed to be incorruptible. Contrary to the

submission advanced on behalf of the plaintiff, it is simply not open to assume

that because a person is the holder of a current practicing certificate enabling

him or her to engage in legal practice, he or she is a person of no prior

convictions. As counsel for the defendant pointed out, there have been many

instances in which the names of legal practitioners have not been removed

from the roll notwithstanding convictions for serious misconduct.62 In these

circumstances, the proposition that that the defendant’s policies and decisions

lack utility, and that this is indicative of unreasonableness, cannot be accepted.

Moreover, the defendant’s policy of requiring a legal practitioner to undergo a

CRI at 12 month intervals is similarly not unreasonable, and provides an

important mechanism for ensuring that the information held by the defendant in

relation to a particular legal practitioner is up to date.

94 Thirdly, requiring a legal practitioner to undergo a CRI is not, as the plaintiff

would have it, a burdensome requirement at all, nor is it one which impedes a

legal practitioner from going about his or her professional duties. On the

evidence before me, the procedure involves a legal practitioner simply

completing a form and providing it to the defendant. To the extent that the

plaintiff relied upon the evidence of Ms Burrows regarding the events of 6

September 2019 to establish the unreasonableness of the defendant’s decision

to require a legal practitioner to undergo a CRI, the unchallenged evidence of

Mr Ripperger is that Ms Burrows was initially not permitted to enter the

HRMCC because she had not made the necessary arrangements, firstly in

terms of the booking process, and secondly in terms of ensuring that her

62 See for example Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; Law Society of South Australia v Le Poidevin (1988) 201 LSJS 76; Bryson v NSW Bar Association [2003] NSWADTAP 29; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320; A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1.

approval was up to date. The unchallenged evidence of Mr Poulsen is that like

any other legal practitioner, Ms Burrows must comply with relevant operational

requirements in order to visit the plaintiff, or any other inmate at the HRMCC.

Those requirements include seeking approval 48 hours in advance. Mr Poulsen

also made reference to the fact that other applications by Ms Burrows have

been refused by the defendant (inter alia) because of her failure to give

advance notice. In these circumstances, it can be safely inferred that Ms

Burrows was aware of the relevant requirements. The circumstances

surrounding the events of 6 September 2019 arose from the failure of Ms

Burrows to comply with those requirements, not from any unreasonableness on

the part of the defendant.

95 Fourthly, there is nothing unreasonable in the defendant’s decision to require a

legal practitioner, even if he or she has approval to visit one particular inmate,

to obtain approval if some other inmate is sought to be visited. Such a decision

is expressly contemplated by s 78A of the Act which provides that nothing in

the Act requires that conditions of custody be the same for all inmates. Clearly,

the Parliament has foreseen that situations may arise where inmates need to

be treated differently in terms of their custodial conditions. It is not difficult to

envisage that for a variety of reasons, there may be particular security issues

that arise in respect of one inmate, but not in respect of another.

96 In all of these circumstances, I am not satisfied the defendant’s decision to

require the plaintiff’s legal representatives to undergo a CRI is unreasonable.

97 It follows that ground 1(a) is not made out.

Ground 1(b) – The plaintiff’s access to Audio Visual Link (AVL)

98 The plaintiff asserts that the defendant’s decision to deny him access to AVL

facilities is both invalid and unreasonable. In dealing with this ground, two

matters must be noted at the outset.

99 Firstly, a court should not grant declaratory relief unless there is a dispute, the

facts are established, and a finding is made.63 Granting declaratory relief on the

basis of a set of hypothetical circumstances is inappropriate. Mr Ripperger’s

evidence is that since the introduction of a revised system governing access to

63 Rich v Groningen (1997) 95 A Crim R 272.

AVL facilities by EHRR inmates in the area where the plaintiff is currently held,

the plaintiff has not made any application for such access.64 However, Mr

Ripperger has candidly stated that the inability to monitor conversations held

over AVL would be a powerful consideration against granting any application

made by the plaintiff for access to such a facility. In those circumstances, the

impugned decision is anticipated, and thus hypothetical, rather than actual.

However, in circumstances where the ground has been fully argued, it is

appropriate that it be considered. Given the conclusion that I have reached, the

fact that the impugned decision is hypothetical is of no consequence.

100 Secondly, some of the evidence adduced by the plaintiff, and some of the

submissions made on his behalf based on that evidence, tended to venture into

areas which extended well beyond the strict parameters of this ground. Those

areas included a complaint about a lack of access to a laptop computer, as well

as a complaint about the defendant’s policy in relation to the handling of

documents produced in the course of legal conferences. It is necessary to bear

firmly in mind that this ground is limited to challenging to the defendant’s

decision to deny the plaintiff access to AVL facilities. It does not extend to a

challenge to the conditions under which any access, if granted, would be

exercised.

101 Fundamentally, the plaintiff has not explained why he needs access to an AVL

facility to confer with any legal representative. The only affidavit of the plaintiff

which was read in the judicial review proceedings was that of 23 September

2019. That affidavit does not contain any reference to other litigation in which

the plaintiff engaged, much less does it establish that any such litigation has

been compromised, to any degree, as a consequence of the fact that he has

not been given access to AVL facilities. More specifically, the plaintiff has not

asserted that these proceedings have been compromised in any way because

of his lack of access to such facilities. There is no evidence whatsoever which

establishes that the plaintiff’s right to a fair trial, or his right to access to the

Courts, has been compromised in any way whatsoever by any decision to deny

him access to AVL facilities for the purposes of conferring with his legal

representatives.

64 Set out at [24] above.

102 One of the plaintiff’s principal complaints appears to be that access to AVL

facilities for the purposes of conferring with his lawyers would be more

convenient. That is not to the point. Inconvenience is not to be equated with

unreasonableness. Further, the plaintiff’s expressed belief that he is the only

inmate who is restricted from accessing AVL facilities is irrelevant.65 Rules

which operate within a custodial facility can be tailored to address individual

circumstances.66 In that regard it is evident, both from the agreed facts and the

unchallenged evidence of Mr Ripperger, that any decision to refuse the

plaintiff’s access to AVL facilities has been made, or would be made, partly on

the basis that the defendant is not able to monitor conversations which take

place when those facilities are used. The unchallenged evidence of Mr Poulsen

is that granting the plaintiff access to AVL facilities would pose a significant

security risk, and would give rise to an increased likelihood of the plaintiff

engaging in illegal activities. In my view, it is entirely reasonable for the

defendant to take such matters into account in determining whether to grant

the plaintiff access to AVL facilities. In fact, it would be absurd if the defendant

did not do so, given firstly, the nature of his responsibilities and secondly, the

plaintiff’s lengthy criminal history which, significantly, includes the commission

of offences whilst in the defendant’s custody.67

103 Finally, and importantly, it remains the case that within the bounds of the

parameters discussed in the context of ground 1(a), the plaintiff has access to

his legal representatives. For the reasons already stated, even if the

requirement for those legal representatives to travel to Goulburn to see the

plaintiff is viewed as inconvenient, that does not mean that the defendant’s

decision to deny the plaintiff access to AVL facilities is (or would be)

unreasonable.

104 For all of those reasons, ground 1(b) is not made out.

Ground 1(c) – The plaintiff’s use of the Offender Telephone System

105 It is an agreed fact that under the defendant's policy, a call made by an EHRR

inmate to his or her lawyer can be monitored.68 In practical terms, that means

65 At para. [14] of his affidavit.66 At [73] above.67 Affidavit of Mr Poulsen of 13 August 2017 at [9] and [10].68 Agreed Facts at [15].

that an officer of the defendant can listen to a call, briefly and randomly, to

determine whether the call is being conducted:

(i) with an approved recipient; and

(ii) in English, or another approved language.

106 If, during the period in which the call is monitored, the officer determines that

one (or both) of these conditions has not been met, the call can be

disconnected. A determination that a call be monitored obviously involves the

officer making an evaluative judgment. In the event that a decision is made to

monitor a call, the officer is then required to exercise his or her discretion at a

number of different levels, including how often, and for how long, such

monitoring should take place.

107 Clause 119(4) of the Regulation authorises the termination of an inmate's

telephone call by a correctional officer on specific grounds. Further, clause

119(6) of the Regulation requires that all calls made by an EHRR inmate be

conducted in English. Nothing in the text of either cl 119(4) or 119(6) suggests

that those provisions should not apply to calls between an inmate and a legal

practitioner.

108 In order to determine whether a particular ground is made out so as to justify

the termination of a call, the defendant’s officer must obviously be privy, at

least in a general sense, to the content of the call. The exercise of the power to

terminate a call is dependent upon the defendant’s officer forming the view that

there is a proper basis for taking that action. That necessarily assumes that the

conversation is being monitored, to some degree, by that officer. The power to

monitor such conversations is a necessary incident of the wide ranging

responsibilities conferred on the defendant by s 232 of the Act. For the reasons

previously discussed, all of these provisions must be construed as being

indicative of the Parliament’s intention to give the defendant a broad discretion

in maintaining security and discipline within a correctional facility.

109 Whilst it must be recognised that legal professional privilege is a fundamental

right,69 and whilst its importance cannot be gainsaid, I accept the submission

that the defendant’s practice of “dropping in” to calls reflects the striking of an

69 R v Secretary of State for the Home Department; Ex parte Leech [1994] QB 198 at 211.

appropriate balance between the right of an inmate to maintain the

confidentiality and privilege of communications with a legal representative, and

the necessity for the defendant to effectively manage, and to monitor inmates

housed in, a correctional facility. The fact that such a balance is appropriate is

evident from the fact that on the unchallenged evidence before me, calls are

monitored briefly and randomly, and only for such period of time as is

necessary to ensure that the conversations are being conducted according to

the defendant’s policy.70 Based on this evidence, I am satisfied that monitoring

calls in that way does not allow the officer in question to become privy to the

substance of what is being discussed.

110 An analogy can be drawn between this practice and the inspection, in a

custodial setting, of correspondence which may be subject to privilege. For

example, in R v Secretary of State for the Home Department; Ex Parte Simms

Kennedy LJ concluded that the practice of searching cells within a prison

carried with it a power to examine correspondence for the limited purpose of

determining whether it was bona fide correspondence between an inmate and

his legal representative.71 His Honour concluded that although this may involve

what he described as an “impairment” of privilege, the maintenance of security

was an essential aspect of prison administration, and there was a “self-evident

and pressing need” for that degree of scrutiny. Such observations are apt in the

present case.

111 The opposite approach was taken by Lord Bingham in R (Daly) v Secretary of

State for the Home Department in which the House of Lords considered rules

which authorised prison guards to examine (but not read) legally privileged

communications.72 In respect of the conclusion reached by Kennedy LJ in

Simms, his Lordship said:73

That is a conclusion which I respect but cannot share. In my opinion, the policy provides for a degree of intrusion into the privileged legal correspondence of prisoners which is greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners.

70 Agreed facts at [15]; Affidavit of Geoffrey Poulsen of 13 August 2017 at [35].71 [1999] QB 349.72 [2001] UKHL 26; [2001] 2 AC 532.73 At [21].

112 Three observations may be made about his Lordship’s conclusions. Firstly, it is

evident that such conclusions were based, at least in part, on his Lordship’s

assessment that the degree of intrusion was greater than that which was

justified by the policy. For the reasons I have already expressed, that does not

represent the situation in the present case. The degree of intrusion brought

about by the defendant’s practice of monitoring telephone calls is no greater

than is justified in order to achieve the objectives of such practice.

113 Secondly, and in any event, the approach to this issue in Australia has been

generally consistent with that adopted in Simms.74 In a different context, the

practice of looking at a document for the limited purpose of determining

whether it is privileged has been described as a “lawful violation” of privilege.75

I am fortified in that view by cl 103 of the Regulation which authorises an officer

to inspect or examine, but not read, any document that is taken into a

correctional centre by an inmate’s legal practitioner for the purpose of

discussing or transacting legal business. There is no equivalent provision

applicable to the telephone system operating in the HRMCC to which the

plaintiff has access and which is subject to the monitoring process that I have

described. However, that monitoring process is, functionally speaking, the

equivalent of that provided for in cl 103 with respect to documents, and which

the authorities have recognised as appropriate.

114 Thirdly, the issues in Simms and R (Daly) arose in a context of determining

whether legislation abrogated the relevant privilege. The issues in the present

case are raised, at least in part, in a context of considering the nature and

extent of the defendant’s responsibility to provide a facility to inmates to have

confidential communications with lawyers. The defendant is not under an

obligation to provide facilities which allow inmates to have completely

confidential conversations. In Smith v Commissioner of Corrective Services76

Hutley JA, having noted the right of a person to prevent the disclosure of

privileged communications, said:

74 See for example Patsalis v NSW [2012] NSWSC 267 at [92]; Commissioner of Corrective Services v Liritsis (2018) 98 NSWLR 113; [2018] NSWCA 143 at [75].75 Allitt v Sullivan [1988] VR 621; JMA Accounting Pty Limited and anor. v Commissioner of Taxation and ors. (2004) 211 ALR 380; [2004] FCAFC 274.76 [1978] 1 NSWLR 317 at 327.

However, it does not follow from this that the accused person has a positive right against his jailer to require the jailer to provide him with facilities to ensure that these confidential communications do not reach other persons. … The privilege is a right to make confidential communications to legal advisers, it is not a right to require other persons to provide all the facilities necessary to enable such communications to be kept secret. It certainly does not extend to requiring jailers and others to provide facilities for communications which cannot arouse any suspicion in the mind of the accused that he is being overheard or his conversations are bugged. This would put an impossible burden upon any prison authorities and subject them to the vagaries of the often paranoiac suspicions of accused persons.

115 For all of these reasons I am satisfied that the monitoring process does not

breach the plaintiff’s access to confidential communications with his legal

practitioners to any extent greater than that which is required for its stated

purposes, or to an extent greater than the legislation allows. It follows that in

my view, the defendant’s decision to monitor the plaintiff’s calls is not contrary

to law.

116 Ground 1(c) is not made out.

CONCLUSION IN RESPECT OF THE JUDICIAL REVIEW PROCEEDINGS

117 For the foregoing reasons, the judicial review proceedings are dismissed.

THE RDA PROCEEDINGS

The plaintiff's pleaded case

118 The amended summons filed by the plaintiff in the RDA proceedings seeks

relief pleaded in the following terms:

The Racial Discrimination Act 1975 (Cth) and/or s 109 of the Constitution

(1) Relief in the nature of a Declaration that clause 101, clause 116 and clause 119(6) of the Crimes (Administrative Sentences) Regulation [sic] 2014 (NSW) are inconsistent with the right to equality before the law pursuant to s 10 of the Racial Discrimination Act 1975 (Cth) and are invalid by virtue of s 9 of the Racial Discrimination Act 1975 (Cth) and/or s 109 of The Constitution.

The writ of prohibition

(2) Relief in the nature of a Writ of Prohibition restraining the defendants, the employees, officers, delegates or agents from giving effect [sic] clause 101, 116 and 119(6) of the Crimes (Administrative Sentences) Regulation 2014 [sic] (NSW).

Costs

(3) Relief in the nature of an Order for costs.

THE EVIDENCE

119 The affidavits read in the judicial review proceedings were also read in the

RDA proceedings. The document issued by the defendant which was annexed

to the affidavit of Ms Burrows of 25 September 2019 included the following

about visits to inmates:77

All conversation, between you and your visitor, with the exception of those between you and your legal practitioner, must be conducted in English or a language approved by the Commissioner or delegate.

You will be provided with an interpreter if the Commissioner or delegate has approved a language other than English. The interpreter will advise CSNSW of the content of your conversation.

Your visit will be terminated if you or your visitor converse in a language other than English or an approved language.

Your visits will be observed and the conversation monitored.

120 The primary evidence in the RDA proceedings was a further statement of

agreed facts in the following terms:

1. The plaintiff identifies as being:

a.   Arab in ethnic origin;

b.   Lebanese in national origin; and

c.   Middle Eastern in race.

2. The word “Arabic” is defined in the Macquarie Dictionary in the following terms:

“noun

1. a widespread Semitic language, existing in both classical and various colloquial forms, classical Arabic being a standard literary language as well as the scholarly and liturgical language of Islam, and colloquial Arabic being widely spoken, in a number of dialects, throughout northern Africa and the Middle East, including Egypt, Algeria, Morocco, Syria, and Iraq.

–adjective

2. of or relating to, or spoken or written in, the Arabic language.

3. of or relating to the Arab peoples, their culture, land, etc.”

3. The plaintiff and his immediate family are Arabic speakers and communicate with each other in Arabic, at least in part. The plaintiff’s parents do not have very good English and the plaintiff sometimes finds it easier to make himself understood, when speaking to them in English, if he translates particular English words into Arabic.

77 Referred to at [28] above.

4. Some Arabic words have no precise equivalent in English. Some Arabic words need three or four English words to translate their meaning.

5. The Arabic language is essential to the practice of the Islamic faith. The Islamic holy book, the Quran, is central to the practice of the Islamic faith and it is preserved and recited in Arabic. There are translations in various languages, but the Quran is always taught and recited in Arabic, regardless of the race or ethnicity of a Muslim person.

6. Arabic Quranic verses are used in the five daily prayers that are required under the Islamic faith.

7. Other Arabic phrases based on Quranic verses and injunctions are commonly used in conversations between Australian Muslims. Those phrases include, for instance, the following phrases on which the plaintiff relies in these proceedings:

a. “Asslamo Alaykum” which translates to “Peace be upon you”;

b. “Walaykum Alsalaam”, which translates to “And peace be upon you”, a response to Asslamo Alaykum;

c. “Alhamdulillah”, which translates to “Praise be to Allah”;

d. “Bi Ithunillah” or “InshaAllah”, which both translate to “If Allah wills”;

e. “MashaAllah”, which translates to “Allah has willed” and is used to express appreciation, joy or thankfulness;

f. “Bismillah”, which translates to “In the name of Allah”, and is said when starting something;

g. “Jazakum Allahu Khair”, which translates to “May Allah give you good”, and is used commonly to thank a person;

h. “Ramadan Mubarak”, which translates to “Blessed Ramadan” and is used to welcome in the Islamic fasting month of Ramadan;

i. “Eid Mubarak”, which translates to “Blessed Celebration (Eid)” and is used as a greeting at the time of the two Islamic celebrations of Eid Ul Fitr (to celebrate the end of Ramadan) and Eid Ul Adha (to celebrate the conclusion of the annual Islamic pilgrimage “Haj”);

j. “Inna lil le hi wa inna I leaayhi rajoon”, which translates to “From Allah we came and to Him we will return” is a direct Quranic verse that is commonly said by Muslims to pass on condolences, as when somebody dies or when one is struck by a calamity;

k. “HasbiAllah wa nimal wakil”, which translates to “Allah alone is sufficient for us and he is the best disposer of our affairs”, and is used when a calamity occurs and one is faced with a difficult situation.

8. The plaintiff is designated as an extreme high risk restricted inmate pursuant to cl. 15(3) of the Crimes (Administration of Sentences) Regulation 2004.

9. Clause 101(1) of the Crimes (Administration of Sentences) Regulation 2004 provides that, during a visit to an extreme high risk restricted inmate, “all communications must be conducted in English” or another language approved by the Commissioner of Corrective Services (“the Commissioner”).

10. The Commissioner has not approved any language other than English in which communications with the plaintiff during a visit may occur.

11. Clause 116(1) of the Crimes (Administration of Sentences) Regulation 2004 provides that all correspondence from an extreme high risk restricted inmate to any other person (other than an exempt body) “must be written in English” or another language approved by the Commissioner, unless the Commissioner otherwise authorises.

12. The Commissioner has not approved the plaintiff to write communications with any person in any language other than English, and has not otherwise authorised the plaintiff to write communications except in English.

13. Clause 119(6) of the Crimes (Administration of Sentences) Regulation 2004 provides that telephone calls made by an extreme high risk restricted inmate “must be conducted in English” or another language approved by the Commissioner, unless the telephone call is made to an exempt body or unless the Commissioner otherwise authorises.

14. The Commissioner has not approved the plaintiff to conduct telephone calls in any language other than English, and has not otherwise authorised the plaintiff to conduct telephone calls except in English.

15. As a result of the above, the plaintiff must communicate “in English” during visits with his family, in written communication he sends to his family, or in telephone calls with his family.

THE RELEVANT LEGISLATION

121 The principal legislative provisions which bear upon the issues raised in the

RDA proceedings include clauses 101, 116 and 119 of the Regulation which

have already been set out.78 The following additional provisions are relevant.

The Racial Discrimination Act 1975 (Cth)

122 Section 9 of the Racial Discrimination Act 1975 (Cth) (RDA) is in the following

terms:

9. Racial discrimination to be unlawful

(1)  It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A)  Where:

(a)  a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b)  the other person does not or cannot comply with the term, condition or requirement; and

78 At [44], [46] and [47] above.

(c)  the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.

2)  A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

(3)  This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.

(4)  The succeeding provisions of this Part do not limit the generality of this section.

123 Section 10 of the RDA is in the following terms:

10. Rights to equality before the law

(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

(3) Where a law contains a provision that:

(a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or

(b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;

not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person.

The Commonwealth of Australia Constitution Act

124 Section 109 of the Commonwealth of Australia Constitution Act (the

Constitution) is in the following terms:

109 Inconsistency of laws

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff   

125 Senior counsel emphasised that the plaintiff had sought, for some time, to have

the right to speak to members of his family in the Arabic language when they

visit him in custody. It was submitted that a person’s right to speak in his or her

own language is a right which is able to be exercised by any Australian, and

that any prohibition on the exercise of that right was unjustified, discriminatory,

and contrary to law. It was submitted that no state, or state instrumentality, was

entitled to interfere with such a right, and that any justification for doing so

which had been advanced by the defendant in the present case was contrary

to law.

126 Senior counsel submitted that the prohibition placed upon EHRR inmates in

terms of speaking a language other than English was not something which was

done for their benefit, nor was it something done for the purposes of

“advancing them in life”. Senior counsel submitted that it was put in place in

order to restrict their entitlements and that there was nothing permitting the

defendant to take that course.

Submissions of the defendant

127 Counsel for the defendant submitted that the purpose of clauses 101, 116 and

119(6) of the Regulation was not to constrain the right of any inmate to

freedom of expression but rather to ensure that the communications of EHRR

inmates could properly be monitored for security and related reasons. Counsel

submitted that those clauses were concerned with the security of both the

correctional centre and the broader community.

128 Counsel for the defendant emphasised that it was necessary to give these

provisions a practical and sensible construction. He submitted that in order for

the defendant to properly carry out his functions, it was necessary for

communications be conducted in a language that was capable of being

properly and effectively monitored and that as a practical matter, that language

was English. It was submitted that this reflected not only the fact that English is

Australia's most widely spoken language, but also the fact that it is Australia's

“de facto" national language, in the sense that it is the language of the

legislative, executive and judicial arms of the Government of this State.

129 Counsel for the defendant identified that a central question raised in the RDA

proceedings was what was meant by the requirement that a communication be

conducted in English. It was submitted that a communication will be in English

if a hypothetical ordinary English speaker listening to or reading the

communication would be able to understand it. It was submitted that

understanding was crucial because without it, there could be no meaningful

monitoring on the part of the defendant for security and related purposes,

which the clauses under consideration were designed to ensure.

130 To the extent that the plaintiff submitted that provisions of the Regulation

contravened, or were inconsistent with, ss 9(1) and 10(2) of the RDA, counsel

for the defendant emphasised that both of those sections operated by

reference to rights. Those rights are defined in ss 9(2) and 10(2) of the RDA to

include rights of a kind referred to in Article 5 of the International Convention on

the Elimination of All Forms of Racial Discrimination (“the Convention”) which is

in the following terms:

Convention

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibited and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a)   The right to equal treatment before the tribunals and all other organs administering justice;

(b)   The right to security of person and protection by the States against violence or bodily harm, whether inflicted by    government officials or by any individual, group or institution;

(c)   Political rights, in particular the rights to participate in elections    – to vote and to stand for election – on the basis of universal    and equal suffrage, to take part in the Government as well as    in the conduct of public affairs at any level and to have equal    access to public service;

(d)   Other civil rights, in particular:

(i)   The right to freedom of movement and residence within the border of the State;

(ii)   The right to leave any country, including one's own, and to return to one's country;

(iii)   The right to nationality;

(iv)   The right to marriage and choice of spouse;

(v)   The right to own property alone as well as in association with others;

(vi)   The right to inherit;

(vii)   The right to freedom of thought, conscience and religion;

(viii)   The right to freedom of opinion and expression;

(ix)   The right to freedom of peaceful assembly and association;

(e)   Economic, social and cultural rights, in particular:

(i)   The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;

(ii)   The right to form and join trade unions;

(iii)   The right to housing;

(iv)   The right to public health, medical care, social security and social services;

(v)   The right to education and training;

(vi)   The right to equal participation in cultural activities;

(f)   The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks.

131 Counsel submitted that it was necessary for the plaintiff to clearly and precisely

identify the right(s) he sought to protect. It was submitted that in light of the

submissions advanced on behalf of the plaintiff, only one such right had clearly

been identified, namely the asserted right of the plaintiff to speak and/or

otherwise express himself in Arabic. In addressing the central question of

whether that right engaged s 9(1) or s 10(1) of the RDA, counsel for the

defendant submitted that it was appropriate to have regard to decisions of

international courts and tribunals, other international decision-making bodies,

and foreign municipal courts. It was submitted that reference to materials of

that kind established that the rights referred to in Article 5 of the Convention

were not exhaustive, and were informed by other international instruments

including, in particular, The International Covenant on Civil and Political Rights

(“the Covenant”).

132 Counsel for the defendant accepted that there is a human right to freedom of

expression. He submitted that properly understood, the principal issue in the

present case was whether that right extended to, or encompassed the plaintiff’s

asserted right to communicate with others in the language of his choice in all

circumstances. By reference to various authorities, counsel submitted that such

right did not engage either ss 9(1) or 10(1) of the RDA.

133 It was further submitted that even if the plaintiff’s asserted right did engage one

or other of those sections, the plaintiff’s case should nevertheless fail. It was

submitted, in particular, that no issue arose under s 109 of the Constitution

because no provision of the Regulation:

(i) authorised any conduct which was prohibited by s 9(1) of the RDA; or

(ii) offended s 10(1) of the RDA.

CONSIDERATION

134 In light of the submissions of the parties, the resolution of the RDA proceedings

involves a consideration of four questions, namely:

(1) What constitutes a conversation “in English"?

(2) What right(s) does the plaintiff actually assert?

(3) Is any right asserted by the plaintiff a right which engages ss 9(1) and/or 10(1) of the RDA?

(4) Even if the plaintiff’s asserted right is recognised by ss 9(1) and 10(1) of the RDA, do the RDA proceedings fail in any event?

Conversations “in English"

135 In determining what constitutes a conversation “in English”, it is relevant that

the following facts are agreed:

(i) clause 101(1) of the Regulation provides that during a visit to an EHRR inmate, all communications must be conducted in English or another language approved by the Commissioner of Corrective Services;79

79 Agreed facts [9].

(ii) the Commissioner has not approved any language other than English in which communications with the plaintiff during a visit may occur;80

(iii) clause 116(1) of the Regulation provides that all correspondence from an EHRR inmate to any other person (other than an exempt body) must be written in English or another language approved by the Commissioner, unless the Commissioner otherwise authorises;81

(iv) the Commissioner has not approved the plaintiff to write communications with any person in any language other than English, and has not otherwise authorised the plaintiff to write communications except in English;82

(v) clause 119(6) of the Regulation provides that telephone calls made by an EHRR inmate must be conducted in English or another language approved by the Commissioner, unless the telephone call is made to an exempt body or unless the Commissioner otherwise authorises;83

(vi) the Commissioner has not approved the plaintiff to conduct telephone calls in any language other than English, and has not otherwise authorised the plaintiff to conduct telephone calls except in English;84

(vii) as a consequence of the foregoing, the plaintiff must communicate in English during visits with his family, in written communication he sends to his family, or in telephone calls with his family.85

136 Self-evidently, a communication will be in English where it consists entirely of

English words, phrases and expressions. However, in light of the development

of the English language, a conversation may be in English even when it

includes words which have been “borrowed' from other languages, and thus

incorporated into the English language. In English Vocabulary Elements86 the

authors make the following relevant observations:87

Modern English is the product of a long and complex process of historical development. Consequently, we can expect to find clues to its character in the past. Indeed, English has a history as rich as its vocabulary. The most

80 Agreed facts at [10].81 Agreed facts at [11].82 Agreed facts at [12].83 Agreed facts at [13].84 Agreed facts at [14].85 Agreed facts at [15].86 (2nd Edition) (Denning, Kessler and Leben) Oxford University Press 2007.87 At pp 7–8, citations omitted.

important historical factor in the growth of the English vocabulary has been the ease with which it has borrowed words from other languages and adapted them to its own uses. The word clique for example, was taken into English from French around the year 1700. Since that time, clique has become a familiar English word. It has been incorporated into the language to such an extent that it participates in processes that originally applied only to native vocabulary, resulting in the new words cliquish, cliquishness, cliquey, cliqueless the verb to clique and others. In fact, English now has many more words derived from clique than French does. English has been so ready to take words from foreign sources that the greater part of the modern English vocabulary has either been borrowed or formed from borrowed elements. [Emphasis in original].

137 Further, a conversation may be in English where it consists predominantly of

English words, expressions and phrases, but where it also includes foreign

words, expressions and phrases. For example, the agreed facts in the RDA

proceedings include Arabic phrases which are based on Quranic verses which

can obviously be understood by those who are party to conversations in which

they are included.88

The right asserted by the plaintiff

138 Sections 9 and 10 of the RDA operate by reference to identified rights. It

follows that a fundamental step in determining whether the relief sought by the

plaintiff should be granted is to identify, clearly and precisely, the rights which

are asserted.89

139 The agreed facts include the following:90

The plaintiff and his immediate family are Arabic speakers and communicate with each other in Arabic, at least in part. The plaintiff's parents do not have very good English and the plaintiff sometimes finds it easier to make himself understood, when speaking to them in English, if he translates particular English words into Arabic.

140 The written submissions of senior counsel for the plaintiff made reference to

the plaintiff having sought “for some time the right to speak to members of his

family during visits in the Arabic language".91 The submissions then made

reference to “the right to speak in a person’s language". These references were

repeated in oral submissions in the following terms:92

88 At [7].89 Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 at [116] per Gleeson CJ, Gaudron; Gummow and Hayne JJ; Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 at [146] per Kiefel J (as her Honour then was) and at [306] per Gageler J citing Ward.90 At [3].91 At [2].92 At T38.27 – T38.33.

So we would say he's a person of a particular race, and perhaps communicating with members of his family, and they’re of a particular race, and they have a particular ethnic origin, and he doesn't enjoy a right, or enjoys it to a more limited extent than others in that he cannot communicate in the language of his birth with members of his family, nor can they with him, and that right is something held by every other person living in Australia who is entitled to speak in whatever language they like.

141 In these circumstances I have proceeded on the basis that for the purposes of

the RDA proceedings, the right asserted by the plaintiff is a right to speak

and/or express himself in Arabic in all circumstances. I should say that

although the submissions made tangential references to the plaintiff’s religion,

no such right was ever asserted in precise terms on the plaintiff’s behalf. It is

obviously incumbent upon the plaintiff to clearly articulate the right(s) he

asserts. It is not for the Court to guess what is relied upon.

Is the right asserted by the plaintiff recognised by the RDA?

142 The RDA ratifies the Convention, and those parts of it which are included in the

Schedule to the RDA are incorporated into Australian law.93 The effect of this

was explained by Brennan J (as his Honour then was) in Koowarta v Bjelke-

Petersen:94

The Act thus makes part of Australia's municipal law, enforceable by curial process, a key provision of the Convention. When Parliament chooses to implement a treaty by statute which uses the same words as the treaty, it is reasonable to assume that Parliament intended to import into municipal law a provision having the same effect as the corresponding provision in the treaty. … A statutory provision corresponding with a provision in a treaty which the statute is enacted to implement should be construed by municipal courts in accordance with the meaning to be attributed to the treaty provision in international law. Indeed, to attribute a different meaning to the statute from the meaning which international law attributes to the treaty might be to invalidate the statute in part or in whole, and such a construction of the statute should be avoided. …

143 It follows that decisions of international courts and tribunals are appropriately

taken into account in determining the meaning of provisions of the Convention,

as well as any Australian law (such as s 9(1) of the RDA) that gives effect to it.

However, when taking into account such decisions, it is important to bear in

mind the caution expressed by French CJ in Maloney:95

93 See s 7.94 (1982) 153 CLR 168; [1982] HCA 27 at 264-265 (citations omitted).95 Supra at [138].

An interpretation of a treaty provision adopted in international practice, by the decisions of international courts or tribunals, or by foreign municipal courts may illuminate the interpretation of that provision where it has been incorporated into the domestic law of Australia. That does not mean that Australian courts can adopt “interpretations" which rewrite the incorporated text or burden it with glosses which its language will not bear.

144 Article 5(d)(viii) of the Convention identifies a right to freedom of opinion and

expression. Given the way in which the plaintiff’s case has been put, the

question for this Court is whether that right either extends to, or encompasses,

a human right to communicate with other people, in all circumstances, in the

language of a person's choice (in this case the Arabic language). The

determination of that question necessitates reference to a number of

authorities.

145 In Iliafi & Ors v Church of Jesus Christ of Latter-Day Saints Australia the

respondent had been established for (inter alia) the furtherance of religious

purposes.96 Within its structure, it created Samoan-speaking groups known as

“wards”, of which the appellants were members, and within which the

appellants worshipped as a group in their native Samoan language. The

respondent closed the wards, following which it announced that the appellants

were no longer permitted to use any language other than English in public

worship. As a consequence, the respondents could no longer publicly sing or

testify in the Samoan language in religious services.

146 The appellants brought proceedings in the Federal Magistrates Court (as it was

then known) asserting that the respondents had acted contrary to s 9 of the

RDA. Having noted that the appellants sought to invoke the right to freedom of

expression in Article 5(d)(viii) of the Convention in support of the existence of a

right to worship publicly as a group in the Samoan language,97 Kenny J (with

whom Greenwood and Logan JJ agreed) concluded:98

The right to freedom of expression is essentially the freedom to communicate and receive opinion, information and ideas without interference. Thus the right to freedom of expression in Art 19(2) of the ICCPR extends to “every form of subjective ideas and opinions capable of transmission to others, which are compatible with Art 20 of the Covenant, of news and information, of commercial expression and advertising, of works of Art, etc; it should not be confined to means of political, cultural or artistic expression”. … the use of a

96 (2014) 221 FCR 86; [2014] FCAFC 26.97 At [87].98 At [91], citations omitted.

particular language may be protected by the right to freedom of expression, although this right cannot be equated with a “right to language”.

147 His Honour went on to say:99

… [T]he right to freedom of expression does not guarantee “linguistic freedom as such” or “guarantee a right to use the language of one’s choice” in all circumstances.

148 The latter conclusion was reached by his Honour by reference to the decision

of the Human Rights Committee of the United Nations in Ballantyne v

Canada.100 In that case, those bringing the proceedings conducted various

businesses in Québec. Their mother tongue, and that of many of their clients,

was English. They each asserted breaches of provisions of the Covenant by

the Federal Government of Canada, as well as by the Province of Québec, on

the basis that they were forbidden to use English for the purposes of

advertising on commercial signs outside their business premises, or use

English within the names of their respective firms. The Committee concluded

that the restrictions which had been placed on advertising in the English

language violated the right to freedom of expression contained in Article 19 of

the Covenant. Significantly however, the Committee also said:101

A State may choose one or more official languages, but it may not exclude, outside the spheres of public life, the freedom to express oneself in a language of one's choice.

149 The corollary of that proposition is that a state may exclude the freedom to

express oneself in a language of one's choice within spheres of what might be

regarded as “public life”.

150 Some assistance in interpreting what is meant by “public life” in this context is

to be found in the decision of the European Commission (the predecessor to

the European Court of Human Rights) in Fryske Nasjonale Partij v

Netherlands.102 In that case, members of a Frisian political party had attempted

to engage in correspondence with people in various tiers of the Government of

the Netherlands using the Frisian language. They refused to submit

translations of their correspondence into the Dutch language and argued that

the Government’s refusal to allow them to use the Frisian language for

99 At [92].100 (Communications Nos 359/1989, 385/1989; 31 March 1993).101 At 11.4.102 (1985) 9 EHRR 240.

administrative purposes constituted a violation of the Convention. The

Commission found that the communications related to “administrative matters”,

a private context which did not confer a right to use the language of one’s

choice:103

According to Article 9 of the Convention everyone has the right to freedom of thought, conscience and religion. Article 10 of the Convention guarantees the right to freedom of expression, including freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

However, the Commission recalls that these provisions do not guarantee “linguistic freedom" as such. In particular, they do not guarantee the right to use the language of one's choice in administrative matters.

151 A similar approach was taken by the Human Rights Committee in Guesdon v

France.104 The complainant in that case was a Breton. His mother tongue was

Breton and although he could speak French, Breton was the language in which

he could best express himself. He was charged with having damaged public

property and had requested before a Correctional Tribunal that he and his

witnesses be permitted to give their evidence in Breton, on the basis that this

was the language used by each of them on a regular basis. That request was

refused by the Tribunal and the hearing proceeded. The complainant was

given a suspended sentence and asserted before the Committee that the

French Courts had violated a number of his rights, including his right to

freedom of expression, his right to equal treatment, and his right to the

enjoyment of minority rights such as the use of a minority language. The

Committee concluded that the right to freedom of expression in Article 19 of the

Covenant did not give a person a right to use his or her preferred language in a

Court proceeding, such a proceeding being one conducted in the exercise of a

public function by the State. Having observed that the fact that a person is not

able to speak the language of his or her choice did not raise any issue under

Article 19 of the Covenant,105 the Committee concluded:106

French law does not, as such, give everyone a right to speak his own language in court. Those unable to speak or understand French are provided with the services of an interpreter. This service would have been available to

103 At 242-243, citations omitted.104 Communication No 219/1986; 25 July 1990.105 At 7.2.106 At 10.4.

the author had the facts required it; as they did not, he suffered no discrimination under article 26 on the ground of his language.

152 The decision of Kenny J in Iliafi is authority for the proposition that the right to

freedom of expression does not guarantee a right to use the language of one’s

choice in all circumstances. The common thread to be drawn from the

decisions in Ballantyne, Fryske and Guesdon is that in determining whether

there are circumstances which do guarantee that right, an important distinction

is to be drawn between communications made in a public context and those

made in a private context. If the communication falls into the former category,

there is no right to use the language of one’s choice. It may be otherwise if the

communication falls into the latter category.

153 In my view, the application of these principles to the plaintiff’s case leads to a

conclusion that the right to freedom of opinion and expression does not

encompass the right that the plaintiff asserts, namely the right to speak and/or

express himself in Arabic in all circumstances, including the circumstance of

his being an inmate in a correctional centre. As was the case with the Court in

Guesdon, a correctional centre is a public facility operated by the State, a

circumstance which can be contrasted with the private contexts considered in

Ballantyne and Fryske.

154 The decision Nguyen v Refugee Review Tribunal provides, by way of analogy,

some further support for this view.107 In that case, the appellant had made an

application for refugee status and a temporary entry permit. The documents

supporting those applications were written in the Vietnamese language, and

accompanied by an English translation. A letter was sent to the appellant, in

English, advising him that his applications had been refused, and also advising

him of his right to seek a review of that decision before the Refugee Review

Tribunal. An application to that Tribunal was rejected because of a failure to

submit it within the stipulated 28 day period. A further letter, again written in

English, was sent to the appellant advising him of that rejection. The appellant

asserted that because his inability to read English, he was less able to enjoy

the right to be notified of the decision than a person of another race who was

able to understand English. In dismissing the appeal Tamberlin J observed:108

107 (1977) 74 FCR 311.108 At 319.

The use of the official language of Australia in official correspondence cannot be said to be discriminatory in form or in effect any more than legislation and judicial decisions which are printed in English, could be said to be discriminatory. The use of English in the present circumstances is both reasonable and appropriate.

155 Sundberg J said:109

The official language of Australia is English. The Constitution, statutes, regulations and by-laws are written in English. Proceedings in parliament and the courts are conducted in English. Governments correspond with their citizens in English. In that context a requirement that an appellant be notified in writing of a governmental decision affecting him is, in the absence of something showing a contrary intention, to be understood as requiring a notification in English.

156 The communications sent to the appellant in Nguyen were sent in the

discharge of a public function by the Government. The effect of the Court’s

decision is that in such circumstances, it is open to the Government to

determine the language in which such communications can be made. In the

present case the State, represented by the defendant, has an obvious interest

in the language in which inmates communicate. That interest stems from the

defendant’s responsibility to administer, and maintain good order in,

correctional facilities. That interest is sufficient to warrant the defendant being

able to select the language in which such communications can occur.

157 For these reasons, the right to freedom of opinion and expression in Article

5(d)(viii) of the Convention does not extend to, or encompass, a human right to

communicate with other people, in all circumstances, in the language of a

person's choice. It follows that the plaintiff's asserted right is not a human right

as a matter of international law. Accordingly, it is not a right which engages

either ss 9(1) or 10(1) of the RDA.

158 Before leaving these issues, I should emphasise that nothing that I have said in

the preceding paragraphs should be construed as expressing a view that a

person who is in custody is to be regarded as (as counsel for the defendant

described it) “civilly dead", or a person whose human rights are “checked at the

door". Under English law, any convicted prisoner, in spite of his or her

imprisonment, retains all civil rights which are not taken away expressly or by

necessary implication.110 That is also the position in Australia.111 At the same

time, the rights of the plaintiff, as an EHRR inmate, are necessarily curtailed as 109 At 325.

a consequence of the fact of his imprisonment. It is in those circumstances that

I have reached the conclusions set out above.

Do the RDA proceedings fail in any event?

159 Even if I am wrong in those conclusions, there are further reasons why the

RDA proceedings must fail.

160 Section 9(1) of the RDA makes it unlawful for a person to do any act:

(i) where such act involves a distinction, exclusion, restriction or preference;

(ii) where such act is based upon race, colour, descent or national or ethnic origin;

(iii) where such act has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of the right of another person; and

(iv) where that right is a human right or a fundamental freedom in the political, economic, social, cultural or any other field of public life.112

161 For the reasons I have previously expressed, I am not satisfied that the right

asserted by the defendant is a human right, in which case the requirement in

(iv) would not be made out. However, even if it was, the RDA proceedings,

insofar as they are based upon s 9(1) of the RDA would still fail.

162 The effect of s 9(1) is that is prohibits certain acts which are based on race,

colour, descent or national or ethnic origin. In the context of the present case,

the plaintiff asserts that the act of the defendant requiring him to speak English

in the course of visits is one which is based on one or more of those factors.

163 The submissions of counsel for the defendant pointed out that conflicting views

have been expressed as to the meaning of the term “based on” when used in

this context. One line of authority favours the view that an act will be (for

example) based on race if it is an act done by reference to race, such that

there is no need for a causal relationship between the two.113 The other line of

authority favours the view that a causal relationship must exist between the

110 Raymond v Honey [1980] 1 All ER 756 at 759 per Lord Wilberforce citing R v Hull Prison Board of Visitors; Ex parte St Germain [1979] 1 All ER 701 at 716 and Solosky v R (1979) 105 DLR (3rd) 745 at 760.111 See for example Rich v Secretary, Department of Justice [2010] VSC 390 at [45].112 Australian Medical Council v Wilson and ors (1996) 137 ALR 653 at 678 per Sackville J.113 See for example Macedonian Teachers’ Association of Victoria Inc. v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489 at 512 per Weinberg J.

matters that influenced the act, and the act itself.114 On that basis, the relevant

enquiry is whether the relevant distinction is a material factor in performing the

relevant act.115

164 It is not necessary for me to attempt to resolve that conflict. In the present

case, the act of the defendant about which the plaintiff complains is the act of

requiring him to speak English when being visited, pursuant to cl 101 of the

Regulation. There is no evidence whatsoever that it is an act based on race, be

it in the sense of an act done by reference to race, or an act done in which race

is a material factor in the act being performed. Accordingly, irrespective of how

the phrase “based on” might be interpreted, s 9(1) of the RDA has no

application, and no issue under s 109 of the Constitution arises.

165 Finally, s 10(1) of the RDA operates to confer, upon persons who are

discriminated against, the enjoyment of a relevant right to the same extent as it

is enjoyed by persons of another race, colour or national or ethnic origin.116 For

the reasons I have previously expressed, I am not satisfied that the right

asserted by the plaintiff is one which falls within s 10(1). Even if it did, the

plaintiff’s action based on s 10(1) would fail. This is because there will be no

breach of s 10(1) if a person does not enjoy a human right, or does so to a

lesser extent, because of his or her individual personal circumstances.117 In the

present case, the fact that the plaintiff is required to speak English during visits

arises from the personal circumstances of his being in custody.

166 Accordingly, s 10(1) of the RDA has no application and similarly no issue under

s 109 of The Constitution arises.

CONCLUSION IN RESPECT OF THE RDA PROCEEDINGS

167 For the reasons set out, the RDA proceedings are dismissed.

ORDERS

168 I make the following orders:

114 See for example Maiocchi v Royal Australian and New Zealand College of Psychiatrists (No. 4) [2016] FCA 33 at [339]-[340].115 ALRM v South Australia (1995) 64 SASR 551.116 Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11 at 98 per Mason J (as his Honour then was).117 Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215 at [45] per Goldberg and Hely JJ.

(1) Proceedings 2016/276127 are dismissed.

(2) Proceedings 2016/276186 are dismissed.

(3) Proceedings 2017/177196 are dismissed.

(4) Proceedings 2018/41479 are dismissed.

(5) The question of costs in all proceedings is reserved.

(6) Absent agreement being reached as to costs:

(a) the plaintiff is to file written submissions with my Associate, not exceeding three pages in length, by 1 May 2020.

(b) the defendant is to file written submissions in reply with my Associate, not exceeding three pages in length, by 8 May 2020.

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