Anderson v Pavic [2005] VSCA 244

2 Division 3A of Part 8 of the Corrections Act 1986 ("the Act") makes provision for emergency management days. Relevantly for present purposes s.58E(1) provides as follows:

"(1) The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation--

(a) during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or

(b) in other circumstances of an unforeseen and special nature."

3 The power conferred by that sub-section is expressed to be exercisable "in accordance with the regulations". Under the regulation-making power in the Act, Regulation 70 was made, dealing with emergency management days. Sub-regulation 1 of Regulation 70 confers a power on the Secretary to grant emergency management days in terms which are, for practical purposes, identical with those in the statute.

4 In my view, the power exercised, or available for exercise, by the Secretary or her delegate is the power under the Act. To the extent that the regulation purports to confer a power, it is redundant. To the extent that the regulation specifies how the statutory power is to be exercised, it operates as sub-s.1 contemplates that it will.

5 This case concerns two separate decisions by the appellant Commissioner not to grant emergency management days to the respondent, Mr Pavic. The learned

trial Judge held that each of the decisions was affected by jurisdictional error, and it is that decision - more accurately, the decision in each of two proceedings - from which the Commissioner appeals to this Court.

6 On 7 March 1996, Mr Pavic was convicted of murder and sentenced to 18 years' imprisonment with a non-parole period of 13 years. By reason of this conviction and sentence, Corrections Victoria designated him to be a "special category" prisoner. On 29 September 2003 he sought four Emergency management days for the disruption said to be due to the reclassification of his prison security rating from C1* (which is minimum security) to B* (which is medium security). According to the summary provided to this Court by the parties that reclassification was made as a result of a change of classification policy. The change of policy was made in response to the escape of four prisoners from prison custody, one of whom was a "special category" prisoner. As a consequence of his security reclassification, Mr Pavic was required to move from one part of the prison to another and it was the moving and its impact on Mr Pavic which constituted the undisputed disruption which he suffered as a result.

7 The decision which Mr Pavic challenged in proceeding 5336 of 2004 was the decision made on 29 October 2003 to reject his application to be granted four emergency management days for the disruption said to be due to the reclassification of his prison security rating. The decision was made by the Commissioner (as the delegate of the Secretary on whom the statutory power is conferred). In his letter, Mr Anderson said he was "of the view that your application does not satisfy the criteria for the granting of emergency management days pursuant to sub-regulation 1 of Regulation 70 of the Corrections Regulations 1998". In evidence before the court was a letter from the management of Fulham Correctional Centre to the Commissioner, stating in relation to the request for Emergency management days, that "Mr Pavic's security rating was changed as a result of a change in policy emanating from this CCPP review conducted due to the escape of a special category prisoner".

8 The case for Mr Pavic, at trial and in this Court, was that the application satisfied the criteria under the statute - that is, the criteria which enliven the discretion - and that it was not open to the Commissioner to form any other view. There being no dispute that Mr Pavic had been of good behaviour at the relevant time, and had suffered disruption and/or deprivation, the question was whether that disruption or deprivation had occurred "in other circumstances of an unforeseen and special nature", within the meaning of sub-paragraph B of sub-s.1 of s.58E.

9 Dennis Joseph Roche was the Acting Commissioner at the time of the escapes and - it would appear - at the time of the reclassification of Mr Pavic. In his affidavit sworn 16 June 2004, Mr Roche confirmed that during "this period" (which appears to be a reference to September 2003) there was "a series of escapes of prisoners from prison custody". One of the escapees was a special category prisoner who held a minimum security rating. In other words, that escapee was in the same category, and had the same rating, as Mr Pavic.

10 In his affidavit Mr Roche went on:

"As a result of this series of escapes I directed that there be a review of security arrangements. This review, amongst other things, included a risk assessment of the classifications of special category prisoners. The review determined that classifying special category prisoners as minimum security when they had many years left on their sentence created an unacceptable risk to the community in the event that those prisoners would abscond. A recommendation was made by the review panel that the classification policy be changed, so that, in the absence of exceptional circumstances, no special category prisoner could be given a minimum security classification unless they had three years or less to serve on their sentence before becoming eligible for parole".

Mr Roche accepted this recommendation. The policy was changed. In relation to Mr Pavic, it was determined that there were no exceptional circumstances and, accordingly, "permitting Mr Pavic to remain a minimum security rating posed an unacceptable risk to the community".

11 On 26 September 2003, Mr Pavic's classification was changed. A letter was sent to him explaining the decision. That letter accurately described the change of policy which had occurred and that the change had been prompted by "a recent series of escapes from prisoner custody". The letter went on to acknowledge that the change in classification resulted not from any direct actions by Mr Pavic himself but from a policy change.

12 The Commissioner gave evidence at the trial. It was suggested to him (T39-40) that the particular circumstances presented by Mr Pavic, in relation to this application, should have satisfied Mr Anderson that they were "special and unforeseen" circumstances within the statutory language. Mr Anderson replied as follows, "Well they weren't special or unforeseen. The present system is constantly evolving. We are constantly introducing new programs, new procedures and new policies, and this was, as I recall, the result of a change in policy. And that is not unforeseen in our circumstances and certainly not special". Mr Anderson went on to say that it was foreseeable that there would be escapes in the succeeding year, though he conceded that the escape of the particular special category prisoner had not been foreseen.

13 It was this latter point - that is, the escape of the particular special category prisoner - which the learned trial Judge regarded as of particular significance. His Honour said (paragraph 26):

"It must be accepted in my view that that circumstance [the escape of the other special category prisoner] was unforeseen and special and that it could not be found to be otherwise. ... It was that circumstance that triggered the chain of circumstances that can be described as otherwise normal occurrences. Looked at overall, however, the colour or character of the events is determined by that initial event. I am therefore persuaded that it was not open to the Commissioner to find that [Mr Pavic] had not established that the circumstances of the disruption were unforeseen and special".

His Honour therefore concluded that the threshold conditions were all satisfied. Since no other conclusion was open, in his Honour's view, it was jurisdictional error for the Commissioner to have failed to be so satisfied, and the adverse decision must therefore be quashed. His Honour ordered that the matter be remitted to the Commissioner for hearing and determination according to law.

14 With respect to his Honour, I take a different view. The disruption and deprivation which Mr Pavic suffered were not, in my opinion, suffered "in the circumstances" of an unforeseen escape by that particular prisoner. Had there been, for example, a lockdown following the discovery of an escape, the requisite connection with the unforeseen event may well have existed. In this case, however, there was a subsequent policy review, occasioned by not one but a number of escapes. It was that policy review, not the particular escape, which resulted in Mr Pavic's being reclassified and - unfortunately for him - suffering the disruption associated with his having to move from where he was then living. Again, unfortunately for Mr Pavic, this was an adverse reclassification not occasioned by any misconduct on his part. As was explained to him, his downgrading was a function of the application of the new policy to him, as to others.

15 It was submitted for Mr Pavic in this Court that, in approaching paragraph (b) of sub-s.58E(1), the Court should read paragraph (b) with paragraph (a). The subject-matter of the two paragraphs was to be regarded as a single genus defined by the phrase "circumstances of an unforeseen and special nature". It was submitted that the use of the phrase "other circumstances" in paragraph (b) indicated that Parliament regarded everything referred to in paragraph (a) as being circumstances of "an unforeseen and special nature", and that paragraph (b) was simply a catch-all provision for any other circumstances of the same kind. On that argument, Mr Holdenson said, it was clear that Parliament had taken a fairly broad view of what was to be regarded as "unforeseen and special". In particular, he pointed out that paragraph (a) included an industrial dispute, an event which happens, if not frequently, then at least in the ordinary course of events in a prison. The genus "unforeseen and special" must therefore be seen as wide enough to include events which are not unique or not "not normal".

16 In my opinion, that submission should be rejected. It is, in my view, clear that paragraph (a) and paragraph (b) are separate and that the work which the phrase "of an unforeseen and special nature" was intended to do is limited to the classification of the circumstances or the types of circumstances which will fall within that paragraph. In my view, that phrase is not to be read as defining a genus which covers both paragraphs (a) and (b). I would add in relation to paragraph (b) that one should not be distracted by the word "unforeseen" - at least not so as to overlook that what paragraph (b) is postulating is "special circumstances". This is a "special circumstances" provision. When regard is also had to the word "unforeseen", it seems clear that what Parliament had in mind were circumstances of an exceptional nature.

17 Discussion took place about whether the power conferred by 58E(1) was a power the exercise of which was conditioned on a state of satisfaction in the Secretary or her delegate as to the three criteria. Mr Holdenson submitted that the discretion was enlivened only when the facts to which the sub-section refers actually existed, and that this was a question of objective fact for the court to decide for itself. It was pointed out by Mr Hanks for the appellant that the case before his Honour was run on the former basis, that is, that this power was conditioned on the existence of a state of satisfaction as to the criteria.

18 As I have already noted, his Honour concluded that it was not open to the Commissioner as delegate to fail to be satisfied that the disruption was suffered in circumstances of an unforeseen and special nature. It might have been open to the respondent to articulate a different approach to the construction of s.58E(1) by notice of contention, but that was not done. It follows that the only basis upon which this Court can approach the provision is the basis articulated by the appellant, that is, that there was error in the application of the approach which the trial Judge adopted. That is the approach which treats the existence of the state of satisfaction as the condition of the exercise of the power. I approach the appeal on that basis.

19 In my view, for the reasons mentioned earlier, it was reasonably open to the Commissioner to conclude that the disruption undoubtedly suffered by Mr Pavic was suffered in circumstances which were not "of an unforeseen and special nature". It follows that I would allow the appeal in relation to that decision. There was no jurisdictional error. No other ground of invalidity has been advanced.

20 The decision under challenge in proceeding 5281 of 2004 was made on 29 January 2004. That decision was to reject Mr Pavic's application to be granted emergency management days for each day that the prison was locked down (15th, 16th and 17 October 2003). The lockdown occurred to enable a complete search of the prison following the discovery of a live round of ammunition in the prison. As a consequence of the lockdown, Mr Pavic was required to remain in his unit during the relevant days.

21 On 29 January 2004, the Commissioner sent a letter to Mr Pavic informing him of the decision. The relevant part of the letter said: "After considering your application for the various dates provided, I advise that your application does not satisfy the criteria for granting of emergency management days..."

22 It was put to Mr Anderson in cross-examination (T33) that the finding of a live round of ammunition within the prison on 15 October 2003 was an emergency . Mr Anderson responded in the following terms:

"No. It was not an emergency. A prison is a very complicated institution to run and in my experience - I have run maximum security facilities - our constant task is to apply what we call barrier controls, and that is the prevention of the introduction of contraband into the prison. It would come as no surprise to anybody that we often find people trying to bring things into prison and that does not constitute an emergency, in my view. It is simply that it will evoke a routine operational response and that might be that we go and look for more of it, be it drugs or whatever the contraband is. In this case, that is what occurred. A live round was found. It was decided to search the entire gaol top to bottom and that was done. That is not unique to this prison. It has happened in other prisons in Victoria. So I consider it to be an operational response to the finding of contraband."

23 By way of contrast, Mr Anderson said in answer to a question from the judge that he would classify as an emergency an event such as the "significant hostage taking at Bendigo Prison which involved the taking of hostages of staff and prisoners and the like." In explaining why he would describe this as an emergency, Mr Anderson said he was speaking of "events that are completely outside our normal expectation of operational response. Searching is what we would consider a part of our daily requirements and, if you like, it is our bread and butter."

24 The learned trial Judge was of the view that the Commissioner had no option but to find that the disruption caused by the lockdown occurred in circumstances of an emergency. His Honour referred to the following definition of "emergency" in the Oxford Dictionary: "A sudden serious and dangerous event or situation which needs action to deal with it". In his Honour's view, the finding of the round of ammunition precisely fitted within that definition:

"The fact that the prison authorities were used to dealing with this sort of situation does not mean it was not an emergency. Fire fighters are used to bushfires, but they would still be regarded as emergencies."

25 Mr Holdenson for Mr Pavic submitted that the finding of a live round was "a sudden serious and dangerous event" within the ordinary meaning of the word "emergency". When asked by Nettle, J.A., however, about other items which might be found, such as a knife, Mr Holdenson conceded - properly, in my view - that whether and to what extent an item found should be regarded as dangerous, or carrying with it a threat of danger, is a question of fact and degree. Whether there is or is not danger, and whether what has occurred is or is not an emergency, seem to me to be matters for judgment by the decision-maker in the particular case.

26 Here the power is premised on the existence of a state of satisfaction on the part of the Secretary - or in this case, the Commissioner - each of whom has the responsibility and, in Mr Anderson's case, very substantial experience in relation to the management of prisons. The court on judicial review should, in my view, be very slow before concluding in relation to a question like danger or emergency that there was only one view open. I would not come to that view in this case. In my view, what is and is not an emergency will very much depend upon the context in which the relevant event occurs. Moreover, the explanation given by the

Commissioner in his evidence for not regarding this as an emergency but rather as a routine matter is, to my way of thinking, perfectly cogent.

27 It follows, in my view, that there was no jurisdictional error. It was reasonably open to the Commissioner not to be satisfied that this disruption or deprivation was suffered during an emergency. It was submitted in the alternative that the Commissioner should have concluded, or could not but have concluded, that the disruption was suffered in circumstances of an unforeseen and special nature. What I have said about matters for judgment by an administrator in the position of the Commissioner applies equally to that phrase. In my view, it was reasonably open to the Commissioner not to be satisfied that the disruption resulting from the lockdown was suffered in circumstances of an unforeseen and special nature.

28 It follows, in my view, that the appeal in respect of the decision of his Honour in relation to that second decision should also be allowed.

29 Mr Holdenson, for the Respondent, put arguments outlined by the President, with respect to s.58E(1)(b) of the Corrections Act 1986. The submission, in my view, is unpersuasive for two reasons. First, it invokes the maxim ejusdem generis and thereby requires identification of a genus. There is none between the circumstances referred to in paragraphs (a) and (b). So much is apparent from the plain meaning of the words. Secondly, the words, "other circumstances" as set out in paragraph (b) mean what the words say, that is, circumstances other than an industrial dispute or emergency as described that is "unforeseen" and of a "special nature". The word "other" plays a differentiating role with respect to the matters specified in paragraph (a). In this case it was for the Commissioner as the decision maker to determine whether the circumstances were unforeseen or special in nature. The evidence of the

Commissioner at trial was that the circumstances were neither unforeseen nor of a special nature. The Commissioner said in his evidence the matters as recited by the President in his reasons taken from transcript.[1] That evidence, in my view, was significant.

30 I agree with the reasons stated by the President. I would allow each of the appeals and make the orders proposed.

31 I agree the appeal should be allowed. The questions of whether the lockdown and the change in classification were an emergency or other circumstances of an unforeseen and special nature was plainly a question of fact and degree. Mr Holdenson, for the respondent, quite properly conceded, indeed, embraced the conclusion that it is so. Once it is seen to be so it is, in my view, clear from the evidence, particularly the evidence given by Mr Anderson, that it was open to the Commissioner to decide that neither the lockdown, nor the reclassification, was an emergency or other circumstance of an unforeseen and special nature.

32 Because of the way in which the case was run below, it is unnecessary and it would be inappropriate for this court on this occasion to decide whether the test in s.58E(1) is to be determined as a matter of objective fact or on the basis of the Commissioner's opinion. As the learned President has observed, the case was conducted below and is therefore to be decided upon this appeal on the basis that it is a matter for the opinion of the Commissioner. Despite, however, that there are other provisions of the Act, to which Mr Holdenson referred, which expressly provide for facts which are to be established on the basis of the Commissioner's opinion, and hence in accordance with the maxim expressio unius est exclusio alterius might be thought to imply that the test referred to in s.58E is to be determined as one

of objective fact, there are also powerful indications to the contrary. Not the least of those is that prison legislation should ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the courts.[2]

33 As at present advised and, of course, without having reached a concluded view on the subject, it strikes me as unlikely that Parliament should have intended that the courts sit in judgment upon questions of fact routinely decided by prison authorities in the course of management and administration of the prison for which they are responsible.

34 Subject to those remarks and for the reasons given by the learned President and the Chief Justice I agree that appeal should be allowed and I join in the orders proposed.

1. The appeal is allowed.

2. The order below is set aside and the proceeding is dismissed.

(Discussion ensued. re costs)

36 In addition to the orders already announced, the further orders will be made. The Respondent pay the Appellant's costs of the appeal and the costs of the hearing below. The Respondent is granted an indemnity certificate under s.4(1) of the Appeal Costs Act.

[1] At p.33 of the transcript.

[2] Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [7], endorsed in The Herald and Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329 at [95]. R v Hillingdon LBC; Ex parte Pulhofer [1986] 1 AC 434 at 518.