Prisons Act 1981 (WA), s 36, s 37, s 43, s 82

Prisons Regulations 1982 (WA)

A1. Yes, except in respect of a cell confinement regime (claim 7) in which the respondent's actions were arguably unlawful

Q2. Are the respondent's actions open to judicial review?

A2. On the pleadings and agreed facts, no except in respect of the cell confinement regime (claim 7) in respect of which judicial review may be open

1 It is a testament to Australian democracy and the rule of law that even a convicted murderer is able to bring proceedings in the Supreme Court to challenge an administrative decision that he asserts directly affects his rights. The right to invoke judicial process is a hallmark of the rule of law. The answer to the question whether he is successful, however, depends, in this case, on the laws of Parliament and the actions of the Executive.

2 The applicant is a convicted murderer serving a sentence of life imprisonment at Acacia Prison. Acacia Prison is a prison run by SERCO Australia Pty Ltd under contract with the Chief Executive Officer, Department of Corrective Services. Mr Paul McMullan is the Director of Acacia Prison and has the duties and responsibilities of a prison superintendent.

3 The applicant sought declaratory orders and other relief against the Department of Corrective Services, as first respondent, and Paul McMullan, the Director of Acacia Prison, as second respondent.

4 The applicant originally commenced proceedings by way of originating motion supported by an affidavit dated 15 December 2011. After several appearances it became apparent that the action against the Department of Corrective Services (Western Australia) (first respondent) was misconceived and on the application of the applicant that action was dismissed by me on 6 July 2012.

5 Different descriptions of the parties are used in the pleadings. For consistency, I shall refer to the parties Frederick Manual Baretto as the applicant and Paul McMullan, Director of Acacia Prison, as the respondent. I have made the necessary adjustments when quoting from the pleadings.

6 On 17 May 2012 the applicant filed a Minute of Originating Motion seeking leave to file a writ with an indorsement of claim.

7 The respondent filed affidavits of David Brampton and Paul Michael Breckton on 1 May 2012. These affidavits responded to the factual allegation made by the applicant in his affidavit.

8 The relief sought against the respondent in the Minute of Originating Motion dated 17 May 2012, following the dismissal against the first respondent, now reads:

1. By their acts and omissions, the Applicant asserts the Respondent breached their statutory and common law duties of care and wellbeing to the Applicant, which include:

1. The Respondent continues to impose administrative sanctions against the Applicant, concerning unsubstantiated findings of fact by the Respondent, that the Applicant continues to pose a risk to the female staff at Acacia Prison.

1. The Respondent's pre-determined and biased view of the Applicant, in connection with an erroneous factual finding that the Applicant has a 'history' of 'grooming female staff' at Acacia Prison.
2. The Respondent's use of prison gossip, rumours, prison politics, and unsubstantiated hearsay, to determine erroneous factual findings against the Applicant, concerning his interaction with staff at Acacia Prison.
3. The Respondent's decision (or his delegate) to activate a TOMS alert on the Applicant's TOMS profile, on 30 August 2011, which contained an erroneous jurisdictional fact, and erroneous factual findings.
4. The Applicant asserts there are live issues of dispute between the parties to this case, which require the Court to determine.

9 The respondent answered the claims by asserting that his actions were lawful and authorised. At further hearings it emerged that a question of law could be isolated and it was thought convenient by both parties that the question be determined on the basis of agreed facts.

10 The respondent accepts these facts solely for the determination of the preliminary question of law. I have proceeded on the basis that the applicant could establish the pleaded case and the further agreed facts at trial. The proceedings are therefore analogous to a demurrer.

11 Assuming the truth of the agreed facts, are the administrative decisions of the respondent which the applicant seeks to challenge:

12 The parties agreed the following facts for the purpose of determining the preliminary question of law:

3.1 (a) Acacia Prison is a 'prison' for the purposes of the Prisons Act 1981 (WA) (Prisons Act) and Prisons Regulations 1982 (WA) (Prisons Regulations).

(b) The Respondent is deemed to be a 'superintendent' for the purposes of the Prisons Act and the Prisons Regulations by operation of section 15K(1)(a) in the context of Part 111A, Division 3 of the Prisons Act.

(c) The Acacia Prison Services Agreement, entered into between the Chief Executive Officer of the Department of Corrective Services (for and on behalf of the State of Western Australia) and Serco Australia Pty Limited pursuant to s 15B of the Prisons Act, is, and at material times has been, a contract for the provision of prison services in Western Australia.

3.2 The Parties agree to admit the following documents for the purpose of determining the Preliminary Question of Law:

(a) The Acacia Prison Services Agreement of 2006 is available for public release from the Department of Corrective Services Website (attached and marked AD-1);

(b) Western Australia Government Gazette, No 86, Friday 27 April 2001 (attached and marked AD-2);

(c) Western Australian Government Gazette, No 97, Friday, 9 June 2006 (attached and marked AD-3);

(d) Western Australian Government Gazette, No 31, Friday, 26 February 2010 (attached and marked AD-4);

(e) A letter from the Manager of Acacia Prison Contract, DCS to the Director of Acacia Prison 22 February 2010 regarding authorised functions and amended delegations (attached and marked AD-5);

(f) Permit to do High-Level Security Work pursuant to section 15P of the Prisons Act: Permit No AP0443 to the Respondent, issued on 18 February 2010 (attached and marked AD-6);

(g) Authorisation provided to the Respondent for functions pursuant to section 15I of the Prisons Act dated 18 February 2010 (attached and marked AD-7);

(h) Schedule of authorisation of functions of the Respondent dated 18 February 2010 (attached and marked AD-8);

(i) Delegation of functions by the Acting Commissioner to the Respondent dated 22 February 2010 (attached and marked AD-9); and

(j) Schedule of delegation of functions by the Acting Commissioner to the Respondent (attached and marked AD-10).

The applicant's claim is for orders and declaratory orders against ... Mr Paul McMullan, Director Acacia Prison (Respondent), concerning:

1. The Respondent's predetermined and biased view of the Applicant, in connection with an erroneous factual finding that the Applicant has a 'history' of 'grooming female staff' at Acacia Prison.
2. The Respondent's use of prison gossip, rumours, prison politics, and unsubstantiated hearsay, to determine erroneous factual findings against the Applicant, concerning his interaction with staff at Acacia Prison;
3. The Respondent's decision (or his delegate) to deny the Applicant access to his employment location (Oscar Block), on and after 30 August 2011 (a workplace ban).
4. The Respondent's decision (or his delegate) to activate a TOMS alert on the Applicant's TOMS profile, on 30 August 2011, which contained an erroneous jurisdictional fact, and erroneous factual findings.
5. The Respondent's decision (or his delegate) to suspend the Applicant from his employment as a Peer Tutor in Oscar Block, on 31 August 2011.
6. The Respondent's decision (or his delegate) to activate an inquiry against the Applicant, and the flawed basis of such inquiry, on 30 August 2011.
7. The Respondent's decision (or his delegate) to activate a cell confinement regime against the Applicant, during the course of the Applicant's suspension from his employment as a Peer Tutor in Oscar Block.
8. The Respondent's decision (or his delegate) to activate a Loss of Privileges process against the Applicant.
9. The Respondent's decision (or his delegate) to terminate the Applicant's employment as an education Peer Tutor, on 6 September 2011, without the matter going through the PERC process.
10. The Respondent's decision (or his delegate) to continue to hold unfounded concerns of the Applicant interacting with female staff in Acacia Prison (especially in Oscar Block), and an unsubstantiated finding of risk against the Applicant, in connection with this.
11. The Respondent's breaches of the Acacia Prison Services Agreement (the Contract) (as claimed by the Applicant):

1. Clauses 1.9(f)(i), 2.2, 6.2, 6.7, 6.8, 6.11. 2. Schedule 4, clauses 1.4(b) and (e), 1.9, 1.11, 2.23, 2.28, 2.29, 2.33, 5.1(a), 5.2, 5.4(a)(i), 5.6(a)(i).

1. Schedule 5, clauses 4.2, 6.3.
2. Concerning the Respondent's (or his delegate's) purported application of administrative and punitive sanctions against the Applicant; erroneous reliance on:

1. Acacia Director's Rules 1.9, 1.11, 2.33, 3.3.1, and 3.3.2; 2. Director General's Rule 1, clause 1;

1. Policy Directives 1, 41. 2. Section 43, 82 Prisons Act 1981; and 3. Regulations 70, 71, 72 Prisons Regulations 1982.

14 In addition, the applicant sought to include within the facts, the affidavit of Mr Brampton dated 1 May 2012. This course was opposed by the respondent who argued that the matter is able to be determined solely on the legislative basis of the authority of the respondent to make decisions for the discipline and good order of the prison.

15 At the hearing, I invited both parties to address the question and make submissions on the material within the affidavit. As will appear, I have considered the Brampton affidavit, even though the question of law is able to be answered without reference to it. Consideration of the affidavit reinforces my conclusions.

16 By letter dated 29 October 2012, the applicant forwarded further submissions to the court and the solicitors for the respondent.

17 Leave of the court was neither sought nor granted with regard to the further submissions and they have not been taken into consideration in formulating the result in this judgment.

The legal framework for Prison Services and Management of Acacia Prison

18 Although the legal framework is not in serious contention, it is important to understand the central role of prison governance and management which the legislation mandates.

19 The legislative power to manage prisons is hierarchal:

• The Prisons Act is the principal source and grant of power.
• The Governor may make regulations consistent with the Prisons Act.
• The CEO may make rules consistent with the regulations.
• A superintendent may make orders, either by way of standing orders, or orders in a particular case, consistent with rules and regulations.

The Prisons Act 1981 (WA): The source of power

20 The Prisons Act by its long title is 'An Act to make provision for the establishment, management, control and security of prisons, the custody and welfare of prisoners and for related matters'. The management and control of prisons is therefore a stated object of the Prisons Act.

21 The Minister may declare a place to be a prison: s 5. Acacia Prison has been so declared: Government Gazette 27 April 2001.

22 The Chief Executive Officer of the Department (CEO) is given significant powers and is responsible for the management, control and security of all prisons and the welfare and safe custody of all prisoners: Prisons Act s 7. Every prisoner is deemed to be in the custody of the CEO: s 16.

23 The Prisons Act spells out other powers, including the power to enter into contracts for the supply of prison services. The CEO may enter into a contract with a person to provide prison services for the State: s 15B. There are minimum matters to be included in the contracts: s 15C, including compliance by the contractor with the Prisons Act, any other written law and the rules; together with minimum standards as established by the CEO and published: s 15D.

24 The CEO may authorise a contract worker who holds a permit to perform the functions of a superintendent: s 15I. The Respondent has been authorised: Agreed Fact 3.1.(c).

25 The Governor may make regulations that are necessary or convenient to be prescribed, and for a series of matters set out in the Prisons Act s 110. The Governor has exercised that power in the Prison Regulations 1982 (WA).

(1) A prisoner shall promptly obey an order given to him by a prison officer and shall obey the rules and standing orders of the prison and any other written order addressed generally to prisoners.

(2) A prisoner aggrieved by an order given to him shall obey that order before making any complaint in relation to the order (reg 40).

27 This regulation is an indication that a prisoner has no legitimate expectation to refuse an order and no right to refuse to obey even though there is a later opportunity to seek redress.

28 Prison work is dealt with in the regulations div 4 pt V:

(1) Subject to subregulation (2), a prisoner who is able to work may be employed as the superintendent directs (reg 43).

29 The CEO may make rules for the management, control and security of prisons generally or a specified prison and the management, control and security of prisoners and the management of officers: Prisons Act s 35(1). These rules complement regulations made by the Governor under s 110: s 35(2). Rules made may confer a discretionary authority on any person: s 35(3). Rules may specify and regulate privileges which may be extended to prisoners: s 35(4). The CEO shall designate a superintendent for each prison: s 36(1) and:

1. (3) [T]he superintendent of a prison may issue such orders to officers and to prisoners as are necessary for the good government, good order, and security of the prison of which he is superintendent.

(4) Without prejudice to any power otherwise conferred, the superintendent of a prison may authorise the use of such force as he believes, on reasonable grounds, to be necessary to ensure that his lawful orders relating to the maintenance of good government, good order, and security in the prison are carried out and it is lawful for an officer to use force as so authorised.

30 The superintendent may issue standing orders (s 37) with respect to the management and routine of that prison. A prison officer may search prisoners (s 41); and the superintendent may authorise restraints (s 42); order separate confinement (s 43); order separation of male and female prisoners (s 44); request medical examinations (s 46) may use of firearms (s 47) and may order the use of force on serious breach of security (s 48).

31 In exercise of powers under pt IIIA of the Prisons Act, the CEO entered into a contract with Serco Australia Pty Ltd for the operation of Acacia Prison: Acacia Prison Services Agreement (Acacia Agreement). The Acacia Agreement is a lengthy document.

32 A contractor must arrange for Prison Industry to be undertaken by Prisoners at the Prison. Prison industry means:

(a) The provision of domestic services within the Prison including food preparation, gardening and cleaning; and

(b) the manufacture or assembly of goods or the provision of services or other commercial activity undertaken

1.11 Management of Prisoners - Prisoner's Discipline:

(a) The Contactor must ensure equity and discipline amongst, and the security of, the Prisoners at the Prison in accordance with applicable Legislative Requirements.

(b) The Contractor must ensure that it implements an equitable regime at the Prison in which all Prisoners are safe from intimidation from other Prisoners and in which disciplinary procedures are firm but fair.

(c) The Contractor must develop and implement systems which:

(i) ensure that, where Prisoners at the Prison break rules, transparent processes are in place regarding the imposition and management of sanctions such as losses of privileges and, on occasion, escalation to formal charging of Prisoners in accordance with the Prisons Act;

(ii) encourage Contract Workers to exercise discretion in the imposition and management of sanctions but are intolerant of informal punishment; and

(iii) ensure that Prisoner disciplinary procedures are carried out in a timely and consistent manner, in accordance with applicable Legislative Requirements and the Department's policies and procedures as notified by the Contractor from time to time.

(iv) ensure all disciplinary matters are reported on TOMS and dealt with as soon as possible after each incident;

(m) The Contractor acknowledges that there are two levels of sanction which may be used to mange prison offences. The first involves the removal of a privilege from a Prisoner through the EPI Scheme, while the second involves the charging of a Prisoner in accordance with the Prisons Act and any subsequent management action which may ensue.

2.28 Prisoner Management - Privileges for Prisoners

(a) The Contractor must provide a system of privileges for Prisoners which may be granted as a reward for behaviour and application or removed as a sanction.

(b) For the purposes of this section 2.28, Prisoner Privileges includes:

(iii) access to recreation, hobbies and sporting facilities or equipment;

(iv) the retention of television sets, radios, cassette players and other electrical items in the Prisoner's cell;

(v) the retention of a computer in the Prisoner's cell;

(vi) accommodation of the Prisoner in a self care unit;

(vii) the retention of or access to musical instruments;

(viii) the retention of approved items of personal property in the Prisoner's cell;

(ix) access to the Prison library for recreational purposes; and

(x) any other privileges determined by the Contractor.

34 Employment and access to the library for the purposes of employment are not included in the list of privileges.

35 There is a scheme for dealing with loss of privileges:

(i) ensure that all Prisoners have fair and equitable access to Prisoner Privileges;

(ii) provide a verbal warning to a Prisoner before removing any Prisoner Privilege, unless the Prisoner's misbehaviour is sufficiently serious;

(iii) ensure that Prisoner Privileges are only removed after consultation with the Prisoner;

(iv) ensure that Prisoners with special needs are not adversely impacted by the removal of any Prisoner Privileges;

(v) use TOMS to record the loss of Prisoner Privileges; and

(vi) ensure that there is a transparent audit trail of the reason for the removal of any Prisoner Privileges.

(d) Subject to paragraphs (d) and (e), the Contractor may withdraw a Prisoner Privilege from a Prisoner if, in its opinion:

(ii) there has been a breach of a lawful order issued to the Prisoner;

(iii) the Prisoner Privilege constitutes a threat to, or breach of good order and security of the Prison;

(iv) the withdrawal of the Prisoner Privilege constitutes a management option for failing to meet the standard of behaviour required by the Prison; or

(e) Before a Prisoner Privilege is withdrawn, the following process must be observed:

(i) The Contractor must inform the Prisoner of the facts giving rise to the proposed withdrawal of the Prisoner Privilege.

(ii) The Prisoner may make a submission to the Contractor regarding the proposed withdrawal of the Prisoner Privilege.

(iii) The Contractor, after due consideration, must inform the Prisoner of his or her decision.

(iv) The loss of the Prisoner Privilege and reason for its loss, including any ensuing discussions, must be recorded on the Prisoner's file.

36 This then is the legal framework against which the applicant's claims must be set.

37 Courts do not manage prisons. This court should not intervene to grant prerogative or declaratory relief unless the actions of the respondent are unlawful or beyond power. The extent to which the rules of natural justice might apply in respect of management decisions is an open question. The nature of the legitimate expectations of a prisoner is also an open question. Neither question can be answered in the abstract. The facts must give context to the answers.

38 Management decisions or orders are within the authority of the superintendent under the Prisons Act s 36. They are not of their nature easily susceptible of judicial review. Absent bad faith, a prison superintendent has broad and encompassing power over discipline and management of a prison. A superintendent must maintain order and security. A superintendent must take steps to reasonably protect both prisoners and prison officers or other staff in an environment which may at times be charged. Sometimes a superintendent will have to act on less than complete information, including information that may be later shown to be in error.

39 As earlier set out, the Prisons Act and the Acacia Agreement place responsibilities on the CEO (Prisons Act s 7); and the superintendent (Prisons Act s 36) for the good government, good order, and security of that prison. Carrying out the statutory or contractual responsibility requires a prison superintendent from time to time to make decisions and give orders which may be unfair in an individual case but are required for the overall good governance of that prison. Many prison orders will in fact be given when there is no practical possibility of judicial review.

40 An analogy may be drawn between prison officers and police officers or defence service personnel who are required to make executive decisions to keep the peace when faced with circumstances that require response.

41 Nothing could be more antithetical to good decisionmaking within the parameters of the Prisons Act s 36 than the possibility of judicial review in respect of each decision. Care therefore must be taken to identify a point at which a prisoner might have a legitimate expectation of a privilege or continuation of a right such as to accord the prisoner procedural fairness balanced against the responsibility of a prison superintendent to manage and control a prison for the safety, security and welfare of other prisoners and prison officers.

42 The power of the Supreme Court to supervise inferior courts, tribunals and executive decisionmakers is constitutionally entrenched.

43 Mr Hooker properly drew attention to the decision of the High Court in Public Service Association of South Australia Inc v Industrial Relations Commission (SA) [2012] HCA 25; (2012) 289 ALR 1. French CJ decided the case on a relatively narrow basis although he noted, in respect of Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531:

Kirk is not to be confined in the way for which South Australia contended. As was stated in the joint judgment in that case, it is the boundary between jurisdictional error and non-jurisdictional error that marks the limits upon State legislative power to abrogate the supervisory jurisdiction of a State Supreme Court [30].

Further, as explained in Kirk, one of the defining characteristics of the Supreme Courts identified in Ch III of the Constitution is the supervision they exercise by the grant of remedies of which mandamus is one. State legislative power does not extend to depriving a State Supreme Court of its supervisory jurisdiction in respect of jurisdictional error by the Executive Government of the State, its Ministers or authorities. Provisions such as s 206 of the Fair Work Act are to be read in a manner that takes into account the incapacity of State legislatures to take from the Supreme Courts their authority to grant relief for jurisdictional error. These propositions of constitutional law were not appreciated at the time when the first PSA Case was decided [60].

45 These two authorities affirm the sovereign authority of a State Supreme Court to grant prerogative relief when appropriate. This power cannot be removed by Parliament.

46 The Prisons Act does not purport to interfere with the power of the court. At issue is not the power of the court but the context of the power in a particular case having regard to the statutory context within which the decisionmaker operates and the nature of prerogative or declaratory relief. Prohibition, certiorari or a declaration, are not appellate in nature or, put another way, do not lie to correct nonjurisdictional error.

47 It is the context in which the power of the court is exercised to which I now turn.

48 There is a significant issue whether the applicant has any right to seek a declaration in respect of a purported breach of the Acacia Agreement. That is a contract between the CEO and SERCO Australia Pty Ltd. The applicant is not a party to that contract. Whether he has acquired rights under the contract sufficient to gain standing to seek a declaration about the breach of the contract involves sophisticated concepts of public and private law.

49 No argument was addressed by the respondent on this issue and so I proceed on the basis that the applicant has standing to seek a declaration for alleged breaches of the Acacia Agreement. I simply note that this is an assumption for the purpose of the preliminary question, not a decision that the applicant has standing.

50 The respondent's argument that his actions are lawful and justified principally rests on the decision of McEvoy v Lobban (1992) 2 Qd R 235.

51 Mr McEvoy was a prisoner in Brisbane Prison. He was confined in his cell for a period of four days, apart from one hour to use the exercise yard, although he was able to continue with personal privileges. In effect he was isolated from other prisoners because of a fear on the part of the prison authorities that a riot was planned for Australia Day 1988 and the appellant was regarded as a ringleader in instigating disruption.

52 The persons involved in the line of command within the prison formed suspicions in relation to the appellant but the information was not specific enough to substantiate any charge under the Prisons Act. It was feared that unless he was prevented from communicating with others over the critical period there was a serious risk of danger. The decision to isolate him was taken in order to minimise the risk of violence or disruption within the prison.

53 Mr McEvoy sought declaratory relief against the Comptroller General of Prisons. He was unsuccessful and appealed to the Court of Appeal where his appeal was dismissed.

54 Macrossan CJ did not consider it was necessary to deny to the court's right to examine the Comptroller's decision as to the route by which the decision itself may be permitted to stand. Macrossan CJ declined to rule that the court had no jurisdiction but:

I would prefer to say that having examined the situation the court would find no occasion to interfere not as a matter of jurisdiction but because it finds the challenged action to have been legitimately performed in the exercise of a discretion lying comfortably within the limits of the power of management as conferred by the Act and Regulations (236).

The primary submission of the appellant's counsel, both below and here, was that the prison authorities had no power to confine the appellant in this way unless he was first charged with an offence or a breach of prison discipline, and punished accordingly (239).

Section 15 of the Prisons Act 1958-1974 provides:

Subject to this Act and subject to the direction of the Minister, the ComptrollerGeneral shall administer this Act and the prison service and shall have the care, direction, control and management of all prisons and security patients' hospitals including the responsibility for the security of prisons and security patients' hospitals, and the safe custody, welfare and employment of prisoners and the safe custody of security patients.

...

However, in my view ss 15 and 16 afford ample general power to authorise the taking of action by the prison authorities along the lines here adopted. Indeed it would be highly irresponsible for a prison authority with reason to suspect the possibility of serious violence, to stand by and take no action because it lacked legally admissible evidence to prove an offence or specific breach of discipline, when the segregation of a few key people night prevent untold injury, distress and damage.

The submission that there was no power to treat a prisoner in this way, and that this form of segregation could only be imposed if a prisoner is successfully charged with an offence under ss 32 or 33 of the Act is therefore erroneous. The power is premised upon the functions and powers mentioned in s 15, that is to say the control and management of the prison, the responsibility for the security of the prison or the safe custody or welfare of prisoners (239).

56 Thomas J also considered the applicability of review, noting the earlier reluctance on the part of courts to become involved in review of matters that arise in the administration of prisons was reconsidered in Leech v Deputy Governor of Parkhurst Prison [1988] UKHL 16; [1988] AC 533 per Lord Bridge:

The principle is now as well established as any principle can be in the developing field of public law that where any person or body exercises a power conferred by statute which affects the rights or legitimate expectations of citizens and is of a kind which the law requires to be exercised in accordance with the rules of natural justice, the court has jurisdiction to review the exercise of that power.

The borderlines between functions of management and adjudicatory functions within a prison may be difficult to draw, and they may not in any event necessarily provide the cut-off point on the question of administrative review. Even so, it is not difficult to identify the enforcing of discipline by the bringing and disposition of a particular charge by a prison governor as an act which necessarily attracts the rules of natural justice, or to see the exercise of such a power as different in kind from the general running of the prison. The question then is how to characterise the enforcing of a degree of segregation when that course seems necessary, given the fact that the comfort of some of the prisoners will be thereby affected.

I do not think that it is open to say that the exercise of the power of segregation is unreviewable by the courts. If for example the interference with the prisoner were to be of sufficient moment to be regarded as defeating the 'legitimate expectation' of an ordinary benefit, and the power were exercised in bad faith for an ulterior purpose plainly a court would enter upon a review (240 241).

58 After referring to Kioa v West [1985] HCA 81; (1985) 159 CLR 550, and in particular Mason J (582), Thomas J continued:

This broad formulation of 'duty to act fairly' may be taken as an appropriate criterion for testing the presumed legislative intention in the present matter. The duty to act fairly is not to be seen as operating in an environment wherein only the appellant resides. The scene is one where important duties exist to protect the whole prison community. The statute does not give any special signposts on the question whether such a power is one that must be exercised in accordance with the rules of natural justice. But in the present context the very nature of the work that has to be done involves the retention in custody of numerous persons within a closed environment, some of whom are not amenable to discipline or reason. There is a need to protect the weak from the strong, and a need to maintain an overall peace. It might be thought that where there is the need to maintain control over a potentially volatile situation, the making of managerial decisions, even when they involve value judgments and even when the comfort of particular inmates may be affected, are not intended to be exercisable only upon the observance of the principles of natural justice in favour of those to be affected. Bad faith, I think, is the point at which the administrative review of the courts would become necessary.

In short the type of decision that was taken in the present case was not of the kind which the law requires to be exercised in accordance with the rules of natural justice. I do not rule out the possibility of review, but I find it impossible to envisage any legitimate involvement of the courts in the review of the bona fide acts performed by persons involved in the administration of prisons in the course of steps taken to avoid a breach of the peace. Steps taken to punish a prisoner are something different and naturally may attract review. Further, if a prison officer by cynical pretence abuses his powers to victimise a prisoner under the guise of ordinary management, the court will in an appropriate case intervene. I do not imply that this is the only point at which courts would exercise prerogative powers, but it affords a clear example where the court's intervention would be called for (241).

59 Lee J agreed with both the Chief Justice and Thomas J.

60 I am essentially bound by the decision of an intermediate court of appeal on the construction of a power similar to that in issue in the present case. I do not consider that the principles stated in McEvoy v Lobban are wrong. On the contrary, they should be applied.

61 McEvoy v Lobban was considered in Walker v The Queen (1993) 2Qd R 345. This involved an application for a declaration that a prisoner's transfer was unlawful.

62 Williams J found against the allegation of bad faith and noted the real question raised by the proceedings was whether or not the impugned decisions involved the exercise of statutory power which deprived the applicant of a benefit or privilege which he had a legitimate expectation of obtaining or continuing to enjoy without according him procedural fairness: Kioa v West; Haoucher v The Minister for Immigration & Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596.

63 After setting out salient parts of the reasoning in McEvoy v Lobban his Honour continued:

Those judgments stress the necessity for legitimate expectations to be adversely affected before a managerial decision taken by prison authorities will be reviewed by the courts. Here, neither decision to transfer affected in any way the applicant's status. He had no entitlement or legitimate expectation, for example, to spend the rest of his incarceration at Maconochie Lodge. It must not be forgotten that the applicant effectively had his right to liberty taken away by the sentence imposed upon him; if liberty is partially granted by prison officials in making a managerial decision as to where and how the inmate should be kept in custody, it cannot be asserted that the right to liberty has been taken away by a subsequent managerial decision, made in good faith, to the effect that in the interests of prison discipline and security, the inmate should be detained elsewhere in the system

...

The reasoning in both Smith and Finnerty was based to a large extent upon the statement of Dixon J in Flynn v The King [1949] HCA 38; (1949) 79 CLR 1 at 8 where he said:

It is pointed out in the case of Horwitz v Connor [1908] HCA 33; (1908) 6 CLR 38 that if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice. For if statutes dealing with this subject matter were construed as intending to confer fixed legal rights upon prisoners it would result in applications to the courts by prisoners for legal remedies addressed either to the Crown or to the gaolers in whose custody they remain. Such a construction of the regulation making power was plainly never intended by the legislature and should be avoided.

That statement was made, of course, before the development of the doctrine of 'legitimate expectations'; but in my view the statutes and regulations in question were not intended to create legitimate expectations in prisoners except where an entitlement to a specific benefit was clearly conferred either by the legislative provision or by the administrative policy and practice which gave effect to such provision.

The evidence here does not establish that the managerial decisions in question have deprived the applicant of any specific benefit to which he had a right or with respect to which he had a legitimate expectation (468 469).

64 In Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405; (2000) 117 A Crim R 201, the applicant was serving a sentence of 11 years' imprisonment with a declaration of a serious violent offender. He applied to the court in respect of a decision made to place him in maximum security and subsequent further orders to keep him there.

65 White J, in reliance on Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 held:

The applicant's interest in not being held under a maximum security order with the loss of the usual prison privileges, for example, freedom of association within the prison community consistent with good conduct dictates that there is an interest in the applicant being accorded procedural fairness when a decision is made to consider placing him on a maximum security order with all the limitations that that order contains on the applicant's prison privileges. The difficulty is to fashion a process which would be fair to the applicant as well as recognising legitimate security interests [261].

66 In the event White J set aside the maximum security order and referred the matter to the delegate for further consideration.

67 Mr Rich is a litigant well known to the courts: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. He is now serving a life sentence for wilful murder. His prison telephone call privileges were withdrawn and a judge dismissed his claim for a declaration. It was alleged that he had used a telephone diverter though no prison offence charge was ever brought against him. Mr Rich appealed: Rich v Scaife [2012] VSCA 92.

68 The decision largely turned on the construction of the Corrections Act (Vic) which is a Code for privileges and withdrawal of privileges.

69 The court (Nettle and Redlich JJA) rejected an argument that if placing a number on a list of prohibited numbers was a withdrawal of a privilege it was not imposed as a disciplinary measure but rather as part of the responsibility for the management, security and good order of the prison and safe custody and welfare of the prisoners. The court held:

In turn, since the power to punish conferred by s 50 is conditioned on the conduct of an investigation in accordance with s 50, one is driven back to the position that it is not open to take away indefinitely a prisoner's privilege of being able to call a particular number otherwise than in accordance with s 50 [43].

70 The court also held that if there was a power to revoke the privilege there would still have been a need to give the prisoner an opportunity to be heard, citing Kioa v West (582) (Mason J).

71 The often cited passage from Kioa v West is as follows:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v. Randwick Municipal Council; Salemi [No. 2], Ratu; Heatley v. Tasmanian Racing and Gaming Commission; F.A.I. Insurances Ltd. v. Winneke; Annamunthodo v. Oilfields Workers' Trade Union. The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests (582).

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation, Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on 'the particular statutory framework'. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; National Companies and Securities Commission v. News Corporation Ltd.

In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No. 2], per Jacobs J.

When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned (584 585).

72 In Bartz v Chief Executive, Department of Corrective Services [2001] QSC 392; (2002) 2 Qd R 114 a prisoner sought an order for a statement of reasons for declining to designate him a fulltime student at the Lotus Glen Farm:

The respondent contends that the decision not to employ the applicant as he would wish is a managerial decision about prisoners and not one which the courts will review. There is a long line of decisions to the effect the courts will not review decisions pertaining to the management of prisons and prisoners unless bad faith is shown to be present, McEvoy v Lobban [1990] 2 Qd.R 235; Re Walker [1993] 2 Qd.R 345; Abbott v Chief Executive, Department of Corrective Services SC No 9096 of 2000, unreported decision of 21 December 2000; and Masters v Chief Executive, Department of Corrective Services SC No 4827 of 2000, unreported decision of 2 March 2001. No element of bad faith is alleged [17].

73 What emerges from the statements of principle in the cases is that some decisions are not amenable to judicial review if they are directly and legitimately related to the management and good governance of a prison. Decisions that have a material affect on a prisoner's rights and legitimate expectations do attract principles of procedural fairness which might in an appropriate case give rise to a remedy at law. An example of such a case is NGJF v Prisoners Review Board [2010] WASC 107. It may at times be difficult to draw a distinction between the two types of decisions but there is nonetheless a distinction. The distinction will answer the question whether prerogative or declaratory relief should be given. With this in mind, I turn to the summary of the appellant's claim broadly applying without repeating, the principles in McEvoy v Lobban.

1. The Respondent's predetermined and biased view of the Applicant, in connection with an erroneous factual finding that the Applicant has a 'history' of 'grooming female staff' at Acacia Prison.

74 I hold that even if the factual circumstances of claim 1 are made out, the decision is one of management not susceptible to judicial review as it is authorised by the Prisons Act s 36. The applicant has no 'right' crystallised by the respondent forming a view, even a wrong view on the facts leading to an allegation that the applicant was grooming female prison officers. To maintain discipline and order a superintendent is dependant on the observations and comments of his staff. Some may fall into the description set out in the claim. Not every decision affecting a prisoner will be correct. The combination of information may lead to a superintendent to form a view about a prisoner. This view is not bias or predetermination. A superintendent is not a decisionmaker of a sort to which the rules of natural justice immediately attach but a manager.

1. The Respondent's use of prison gossip, rumours, prison politics, and unsubstantiated hearsay, to determine erroneous factual findings against the Applicant, concerning his interaction with staff at Acacia Prison;

75 I hold that even if the factual circumstances of claim 2 are made out, the decision is one of management not susceptible to judicial review as it is authorised by the Prisons Act s 36. A prison superintendent will use a range of sources of more or less reliability to monitor the security of the prison, its officers and prisoners. Such information should be confidential and even if wrong it cannot create any prisoner a right susceptible to relief. No allegation of bad faith is made.

1. The Respondent's decision (or his delegate) to deny the Applicant access to his employment location (Oscar Block), on and after 30 August 2011 (a workplace ban).

1. The Respondent's decision (or his delegate) to suspend the Applicant from his employment as a Peer Tutor in Oscar Block, on 31 August 2011.

1. The Respondent's decision (or his delegate) to terminate the Applicant's employment as an education Peer Tutor, on 6 September 2011, without the matter going through the PERC process.

76 It is significant that work or employment is not a prisoner privilege listed under 2.28 of the Acacia Agreement. This is not conclusive, of course, because the definition is inclusive. The ability to work within a prison, though desirable for many reasons, is not a right. It is more in the nature of the transfer power examined in Walker v The Queen than the reclassification power examined in Kidd v Chief Executive, Department of Corrective Services. Employment may be offered. It is easy to see that why, for reasons of safety or security, a prisoner may be directed not to work at a particular place or for a particular time. I regard the decision to deny the applicant access to his employment location as one well within the lawful authority of the respondent pursuant to the Prisons Act s 36. The managerial decision does not deprive the applicant of any specific benefit to which he had a right or with respect to which he had a legitimate expectation.

77 The engagement as a Peer Tutor is not a right or anything to which the applicant has a legitimate expectation. It is an order which the applicant must obey even if he later makes complaint. It is not a 'privilege' which might attract a legitimate expectation.

78 Employment generally is a management decision. If, contrary to what I have held, there is a legitimate expectation in the prisoner that employment will not be interrupted arbitrarily, the decision of the respondent to hold an inquiry meets these expectations. Whether the enquiry was flawed is a nonjurisdictional error.

1. The Respondent's decision (or his delegate) to activate a TOMS alert on the Applicant's TOMS profile, on 30 August 2011, which contained an erroneous jurisdictional fact, and erroneous factual findings.

79 The entry of an alert onto the TOMS system does not affect any right or benefit of the applicant. It is an act directly related to the governance and management of the prison and not susceptible to judicial review. There is no erroneous jurisdictional fact.

80 I hold that even if the factual circumstances of claim 4 are made out the decision is one of management not susceptible to judicial review as it is authorised by the Prisons Act s 36.

1. The Respondent's decision (or his delegate) to activate an inquiry against the Applicant, and the flawed basis of such inquiry, on 30 August 2011.

1. The Respondent's decision (or his delegate) to activate a Loss of Privileges process against the Applicant.

81 Accepting that a prisoner's privilege is a right, and there is a legitimate expectation that the loss of the privilege will not be arbitrary but involve due process, the respondent would be acting lawfully in instituting and following a process which might conclude in the loss of privilege. This is in conformity with the Acacia Agreement cl 1.11(c)(r), cl 2.28(c), cl 2.28(e).

82 I hold that even if the factual circumstances of claims 6 and 8 are made out, the decision is one of management not susceptible to judicial review as it is authorised by the Prisons Act s 36.

1. The Respondent's decision (or his delegate) to continue to hold unfounded concerns of the Applicant interacting with female staff in Acacia Prison (especially in Oscar Block), and an unsubstantiated finding of risk against the Applicant, in connection with this.

83 I doubt that holding unfounded concerns can be categorised as a decision, much less a decision in respect of which declaratory relief can be sought. Whether the concerns are founded or unfounded is a matter of fact. However, it is well within the discretion of the respondent, pursuant to his managerial responsibilities for governance and security, that risk assessment of prisoners should be made and reviewed from time to time. The finding of risk cannot be elevated to a level of legitimate expectation as found in Kidd v The Chief Executive Officer, Department of Corrective Services.

84 The institution of an inquiry following a suspension is what would be expected. If the rules of natural justice have a place, it is at the stage of an inquiry. A decision is made and an order is given. The order must be obeyed. Then, if necessary, the order can be reviewed by an inquiry.

85 The holding of an inquiry of itself does not breach a prisoner's rights.

86 It is a matter of assessment for a prison superintendent. The rules of natural justice cannot apply. Necessarily, a superintendent may have to act on material that must be kept confidential from a prisoner for security or other risk reasons.

87 The applicant also claims breaches of contract by claim 11:

The Respondent's breaches of the Acacia Prison Services Agreement (the Contract) (as claimed by the Applicant):

(b) Schedule 4, clauses 1.4(b) and (e), 1.9, 1.11, 2.23, 2.28, 2.29, 2.33, 5.1(a), 5.2, 5.4(a)(i), 5.6(a)(i).

(c) Schedule 5, clauses 4.2, 6.3

88 Reference to the Acacia Agreement does not assist the applicant. The clauses are selfevident. For example, cl 2.2 requires the contractor to exercise powers in accordance with all applicable legislative requirements. Clause 6.2 requires the contractor to comply with all applicable laws, standards and codes of practice including the Prisons Act, Prisons Regulations, all other legislative requirements and policies of the State. It is unnecessary to rely on these clauses. If the respondent's actions were found to be unlawful or unauthorised because of a failure to comply with the Prisons Act or Prisons Regulations, it would follow that the contractor had failed to comply with the contract. Reference to the clauses in the contract adds nothing.

89 The applicant also refers extensively to sch 4. Schedule 4 contains the Operation Service Requirements. Again, reference to the Schedule does not assist the applicant. For example, cl 1.4(b) and c. 1.4(e) to which the applicant refers are obligations requiring the contractor to link the intelligence system to the Department intelligence system, provide for liaison with the WA Police and treat all information as confidential. Clause 1.9 requires that the contractor must ensure that prisoners are managed fairly and equitably using a hierarchal management system, comprising levels of supervision specified in applicable legislative requirements that empowers prisoners to perform to a level that is rewarded with additional privileges. If the applicant had acquired a right and a legitimate expectation in respect of his position and if, contrary to my findings, the respondent had failed to act appropriately in respect of the right or legitimate expectation, then the respondent would probably be also in breach of sch 4. Again, the position is circular. Paragraph 2.23, for example, provides:

Prisoner Management - Management of Prisoners Posing a Threat to other Persons

(a) The Contractor must identify and manage Prisoners who present a risk to other person at the Prison including Contract Workers, Visitors and other Prisoners and place them in situations which minimise their opportunities to harm others or to be harmed.

(b) The Contractor must ensure that the fact a Prisoner presents a risk to others is taken into account when reviewing the requirements in the Prisoner's Sentence Planning Documents

90 To the extent that cl 2.23 is of assistance, it is of assistance to the respondent in relation to his duty to identify and manage prisoners who present a risk to other persons. It is in carrying out that duty in respect of the applicant that the applicant apparently complains in claims 1, 2, 3, 4, 6 and 9.

91 I will not add to the volume of these reasons by dealing with each reference within claim 11. Suffice to say that none of them advance the applicant's case in any material respect even if the applicant could overcome the very considerable disadvantage that he is not a party to the contract.

1. Concerning the Respondent's (or his delegate's) purported application of administrative and punitive sanctions against the Applicant; erroneous reliance on:

1. Acacia Director's rules 1.9, 1.11, 2.33, 3.3.1, and 3.3.2; 2. Director General's Rule 1, clause 1;

1. Adult Custodial Rule 3, clauses 5 and 6;

1. Policy Directives 1, 41. 2. Section 43, 82 prisons Act 1981; and 3. Regulations 70, 71, 72 Prisons Regulations 1982

92 I do not read these as specific claims seeking relief but rather as assertions that the respondent's actions were unlawful and unauthorised for the purposes of the preliminary point of law. None of the references to either the Acacia Director's rules, Policy Directives, Prisons Act or Prisons Regulations establish any unlawful or unauthorised actions on the part of the respondent except insofar as the cell confinement regime is concerned.

Conclusion of the summary of claims other than the cell confinement regime

93 I hold that on the agreed facts, even if made out at trial, no claim gives rise to prerogative or declaratory relief for the reasons I have given.

The respondent's decision (or his delegate) to activate a cell confinement regime against the applicant during the course of the applicant's suspension from his employment as a Peer Tutor in Oscar block.

95 The Prisons Act s 43:

(1) For the purpose of maintaining good government, good order or security in a prison, the chief executive officer may order, in writing, the separate confinement in prison of a prisoner for such period not exceeding 30 days as is specified in the order.

96 The CEO may delegate any power or duty under s 43 in writing signed by him. However it is common cause that no such delegation has been given to the Respondent. An application by the respondent under s 43 must be reasonable in the circumstances and justifiable according to the threat the relevant prisoner poses to the good order of the prison (Acacia Agreement cl 2.33(c)). Therefore, unless a cell confinement regime can be justified by the exercise of power under s 36, it is arguably unlawful.

97 The Prisons Act provides:

Punishment by confinement

In every case where under this Part a penalty of confinement in the prisoner's sleeping quarters or separate confinement in a punishment cell is imposed on a prisoner the cell used for the confinement or separate confinement shall be of such a size and so ventilated and lighted that the prisoner may be confined in that cell without injury to health and every prisoner so confined shall have the means of taking air and exercise for not less than one hour each day at such times and for such other periods as the chief executive officer may direct (s 82).

98 The Prisons Regulations provide:

Confinement in sleeping quarters

A penalty of confinement in sleeping quarters imposed upon a prisoner shall be served in the cell or quarters allocated to that prisoner prior to the commission of the offence.

Calculation of confinement in sleeping quarters

A penalty of confinement in sleeping quarters for a specified number of hours or days shall be reckoned from the time of pronouncement of that penalty.

Separate confinement under section 43

Where the chief executive officer orders the separate confinement of a prisoner under section 43 of the Act, the separate confinement shall (subject to that provision) be undergone in the cell and for the period specified in the order and shall be subject to the regimen set down in the order (s 70 - s 72).

99 These regulations highlight the penal rather than management nature of separate confinement.

100 The Acacia Agreement sch 4 s 2.33 deals with separate confinement:

2.33 Prisoner Management - Separate Confinement

(a) In addition to the requirements of section 1.11(e), the Contractor must ensure that:

(i) prolonged separate confinement, corporal punishment, punishment by placement in a dark cell, reduction of diet, sensory deprivation and all cruel, inhumane or degrading sanctions are not used;

(iii) the Contractor Superintendent does not exercise his or her powers under section 36 of the Prisons Act as a 'matter of course';

101 Other clauses provide for a record to be made - prisoner to be informed. There are to be daily visits. The prisoner is to be held in suitable accommodation which may be the sleeping quarters.

(e) In addition to the requirements in section 2.33, the Contractor must ensure that separate confinement in a disciplinary management cell or confinement in the Prisoner's sleeping quarters is:

(i) only imposed on a Prisoner at the Prison as a result of the imposition of penalties in accordance with Part VII of the Prisons Act;

(ii) managed under the least restrictive conditions consistent with the reasons for the placement; and

(iii) structured to provide a minimum of 1 hour's exercise out of cell per day.

102 The respondent's submission that the Prisons Act s 36 is a sufficient head of power attracts a comment similar to those in Rich v Scaife [42] [43]. Where there is a statutory regime in place under the Prisons Act s 43 providing for the separate confinement in prison of a prisoner over a period, then the separate confinement cannot generally be justified under s 36. Of course no statement can be absolute. In some situations the confinement of a prisoner or prisoners may well be necessary under s 36. Lobban v McEvoy is an example. The Acacia Agreement contemplates the exercise of separate confinement regime under s 36 though not as a 'matter of course': cl 2.33(iii). However, as pleaded the cell confinement regime related to the suspension of employment, not the sort of emergency which might justify the exercise of power under s 36.

103 The narrow question is whether the respondent's actions were authorised and lawful in activating a cell confinement regime. The cell confinement regime is arguably unlawful and so should proceed to a hearing.

104 The contents of the Brampton affidavit are, strictly speaking, unnecessary for resolution of the preliminary question of law on the assumed facts contained in the statement of agreed facts and indorsement of claim. My answer has been given on those facts. Except for the claim in respect of separate confinement, the respondent's actions were lawful, authorised and do not give rise to judicial review.

105 The applicant wishes me to have regard to the material in the affidavit as supporting his contentions. The deponent is the Deputy Director of Acacia Prison who answers to the respondent. The affidavit refers to the procedure and policy of the prison. It is filed on behalf of the respondent. In the circumstances, I will have regard to the affidavit mainly for the purpose of adding context to the bold prepositions of law relied upon by each party.

106 I had reached the conclusions I have expressed before reading the Brampton affidavit. The Brampton affidavit strengthens those conclusions, not alters them.

107 Mr Brampton deposes that Acacia Prison Director's Rules are made by SERCO for the purpose of outlining the operational policy of Acacia Prison as required by the Acacia Agreement cl 6.7 and cl 5.10 of sch 4. There are Director's Rules in relation to the Acacia Prison Policy on Prisoner Employment which include procedures relating to the suspension and dismissal of prisoners from 'employment'.

1.1 All prisoners will have the opportunity for employment while imprisoned at Acacia Prison. Such employment is targeted at using existing skills, gaining new skills and the development of positive work ethics. The concept of the responsible prisoner is integral to, and supportive of enhancing all prisoners' employability on release.

...

5.4 The following prisoners are ineligible for remuneration:

...

1. Prisoners who are undergoing a period of Separate Confinement or suspension from the workplace.

...

7.4 Where a prisoner is under investigation for alleged illicit or inappropriate activity within the work place, he may be suspended pending finalisation of the investigation. If the investigation determines illicit or inappropriate activity within the workplace a dismissal notice may be actioned through PERC. While under suspension pending investigation, the prisoners pay level will revert to level 6 gratuities.

7.5 If a prisoner is found not guilty of an offence relating to the use of illicit substances or inappropriate activity within the workplace, the employer will reimburse the prisoners gratuities for the period under suspension.

7.6 During the period of suspension, the prisoner is not to be permanently replaced. The use of casual workers remunerated through the PERC on a pay level to be decided by the employer but not to exceed level 2 can be used where no current employee can be utilised to cover the workload. All casual workers are to be taken from the current employment listing.

1. In connection with the operation of the prison, SERCO is required to use, and does in fact use, DCS's Total Offender Management System (TOMS) database to record data pertaining to the incarceration of prisoners, with the exception of medical reports which are entered into the DCS ECHO database. The TOMS database is operated by DCS for all West Australian prisons.
2. Serco staff members make entries into the TOMS database regarding individual prisoners in relation to various matters includes:

(e) matters relating to the movement of a prisoner within the prison, including whether the prisoner is banned from attending particular areas of the prison;

(f) circumstances that may determine changes in prisoner behaviour;

(h) prison incidents and any associated prison charges; and

1. Staff members are also able to enter an 'Alert' in relation to a particular prisoner onto the TOMS database. The purpose of an 'Alert' is to notify staff members of any security or behavioural issue in respect of a particular prisoner, so that staff members dealing with that prisoner are mindful of any particular security or behavioural risks. For example, if it is determined that there is a risk that a particular prisoner may be at risk of harming himself an At Risk Management System (ARMS) Alert will be placed on that prisoner's TOMS file. A prisoner who has assaulted or threatened an officer will have a Threat to Staff Alert added to TOMS. The 'Alert' is displayed on the first computer screen which is shown when a staff members accesses the prisoner's TOMS file. An Alert is not generally distributed to all staff members.
2. Access to the TOMS database is restricted by a staff member's level of security clearance. That is, not all staff members are permitted to access all areas of the TOMS database, or access information on prisoners which is not directly related to the performance of their position. Further, once data is entered onto the TOMS database, it cannot be removed by any employee of Serco. Any amendments to the TOMS database, or deletions from the TOMS database (including administrative errors) must be approved and undertaken by DCS. Acacia Prison staff and myself use both the Director's Rules and TOMS database to assist with the day to day running of the prison and maintaining the good government, good order and security of Acacia Prison.

1. In order to maintain good government, good order and security over the prison it is necessary for me, with the assistance of Serco employees working at the prison, to closely monitor any personal associations which are formed, either between prisoners or between prisoners and staff.
2. It is the policy of DCS and Acacia Prison that any personal relationship between a staff member and a prisoner must be reported so as to assess the level of risk that it may pose to the security of the prison, and to determine what actions may be taken to manage or minimise this risk. ... A personal rather than professional relationship between a staff member and a prisoner poses a serious risk to the security of the prison as staff members are in possession of information relating to the procedures and operations of the prison that are employed to minimise security risk. Further, a personal relationship with a prisoner may place a staff member in conflict with his or her duties as an employee and prison officer, and could result in the staff member breaching his or her duties as an employee or prison officer in order to further the interests of the prisoner. A personal relationship between a prisoner and a staff member can also place the staff member at risk of personal harm. ...
3. It is expressly prohibited for a staff member to form a personal and unprofessional relationship with a prisoner that has the potential to influence their decisions and interaction with that prisoner. It is not necessary that the relationship be of an intimate nature as any possibility of influence by a prisoner over a staff member poses a serious threat to the security of the prison and a threat to the personal safety and security of the staff member.
4. The term 'grooming' is used to define the behaviour of a prisoner in manipulating a staff member into forming relationships of influence, whereby the staff member's behaviour, thoughts or feelings are shaped for the prisoners gain. Serco actively engages in induction and refresher training of its staff to make staff aware of behaviour which may be considered grooming. Details of staff training is recorded in policies and presentations. ...

110 Mr Brampton deposes that on or about 29 October 2010, an investigation was conducted in relation to a former employee of Serco at the prison, Employee X and her interaction with prisoners in Oscar Block, in particular the applicant. The investigation was treated as a confidential investigation.

111 Mr Brampton further deposes that on or about 29 November 2010, Employee X resigned from her employment at Acacia Prison. On or about 15 December 2010, Employee X applied to visit the applicant.

112 Employee X was banned from being a visitor of the applicant for 12 months, later reduced to six months.

113 Mr Brampton deposes that on 14 December 2010, Employee X's telephone number was added to the applicant's phone list on 14 December 2010. Since 14 December 2010, the applicant and Employee X have had telephone contact on almost a daily basis with over 1,300 calls reported on the prisoner telephone system. These phone conversations are often communicated in French, some of which have been translated which indicate a personal relationship between the applicant and Employee X.

1. Since 29 June 2006 Mr Barreto has resided in November Block at Acacia Prison. November Block is a self contained residential care unit for prisoners with a high level of earned privileges. In order to be eligible to reside in November Block prisoners must be engaged in full time work, and be generally well behaved. Mr Barreto is on the highest level of earned privileges. ...
2. Prisoners are provided with the opportunity and encouraged to undertake work or educational training whilst in Acacia Prison. Whilst the work undertaken by prisoners is commonly referred to as 'employment' by staff members and prisoners at Acacia Prison, the work performed is in fact part of Acacia Prison's vocational training program. ...
3. Prison Employment is targeted at using the existing skills, teaching new skills and developing positive work ethics among prisoners and attracts gratuity payment at varying levels.
4. During the period 15 March 2007 to 31 August 2011 Mr Barreto had Prison Employment as an education worker, namely a peer tutor, in the Oscar Block of Acacia Prison. Prison Employment as an education worker is a recognised as an earned position of trust and attracts a gratuity payment of $8.96 per day.
5. By reason of his Prison Employment in Oscar Block Mr Barreto had access to the prisoner education facilities, including the prisoner computer facilities, during Oscar Block's operational times, generally 8am to 11.30am and 1pm and 3pm on weekdays. Mr Barreto's Prison Employment in Oscar Block also allowed him additional attendance at Oscar block on weekends, if required.
6. On 29 August 2011, a security information report was submitted by a Custodial Officer raising concerns about the interaction between a female staff member working in Oscar Block and Mr Barreto. On 31 August 2011, a security information report was submitted setting out two separate concerns raised by a staff member and a prisoner in relation to the interaction between the same staff member working in Oscar Block and Mr Barreto. The reports indicated that the staff member and Mr Barreto were behaving in a manner which was conducive to forming a personal relationship, and that in doing so the staff member may be putting herself at risk.
7. The security information reports were made to the Acacia Prison Intel Department (Intel Department), which manages the security of Acacia Prison and monitors the behaviour of prisoners, visitors and staff. The reports were made in confidence. The Intel Department receives security information from staff and prisoners which relate to any matters which could affect the security and good order of the prison. Upon receipt of security information reports, the Intel Department makes a determination as to whether a security risk to the prison has been notified and determines what steps need to be taken in response in order to ensure the security and good order of the prison.

1. Following an assessment of the security information report dated 29 August 2010 referring to Mr Barreto, on 30 August 2011, [prison officer] determined that Mr Barreto be denied access to Oscar Block from 30 August 2011 as a result of concerns raised over his interaction with female staff members. [Prison officer] verbally briefed myself and the director on or around 30 August 2011 in relation to Mr Baretto's access to Oscar Block.
2. On 30 August 2011 an 'Alert' was also placed on Mr Barreto's TOMS file in relation to Mr Barreto's interaction with female staff members, however this was deactivated at the direction of DCS on 4 November 2011.
3. As a result of the decision to deny Mr Barreto access to Oscar Block, Mr Barreto was subsequently suspended from his Prison Employment as a peer tutor on 31 August 2011. Mr Barreto's Suspension was conducted in accordance with the Directors Rules 3.3.1, 3.3.2 and 1.9. This decision was endorsed by the Director after he was briefed by Ms Davies.
4. On 30 August 2011, an enquiry was launched into these concerns (Enquiry).
5. The Enquiry into Mr Barreto was commenced on 30 August 2011 and was carried out by [the] Unit Manager of November Block; [the] Operations Manager, Residential; [the] Assistant Director, Residential and [the] Assistant Director, Offender Management. I was informed of the Enquiry progress and outcome by a briefing note dated 20 September 2011. ...
6. During his suspension, Mr Barreto was subject to a Cell Confinement Regime. Subject to the regime Mr Barreto was to be confined to his cell during his normal working hours, 8am to 11:15 am Monday through to Friday.
7. The cell confinement regime is policy for any prisoner under suspension from the workplace and is conducted in accordance with the Directors Rules 3.3.1 and 1.9. It is Acacia Prison Policy that during cell confinement prisoners are not given access to a television or telephone for the period of confinement. This restriction on access to these items is noted in TOMS by filling out a Loss of Privileges (LoP) form. In the Mr Barreto's case the LoP form was completed for record keeping purposes only. He maintained all his earned privileges outside the time of cell confinement in accordance with policy requirements.
8. Mr Barreto was not permitted access to the Oscar Block or the prisoner computer facilities housed within Oscar Block for the period of the Enquiry.
9. Mr Barreto's Prison Employment as an education worker in Oscar Block was terminated with effect from 13 September 2011 following a review of the Prisoner Employment Review Committee (PERC).
10. Following his dismissal from Prison Employment in Oscar Block, Mr Barreto was permitted to access the facilities in Oscar Block during the standard times of November Block residents. Access to the Oscar Block library was granted for Tuesday 10:00 am to 11:00am, and 2:00pm to 3:00pm, and Friday 4:15pm to 4:45pm. Access to the prisoner computer facilities was available on Saturdays.
11. Following his dismissal from Prison Employment in Oscar Block, Mr Barreto was advised he needed to gain alternative Prison Employment to remain in November Block. Prisoners are usually allowed to remain in November Block whilst on suspension, but must obtain alternative Prison Employment within two weeks of a dismissal from Prisoner Employment or be relocated to the standard residential facilities. Mr Barreto was granted an extended period of eight weeks to find other Prison Employment as he had been housed in November Block for an extensive period of time, and his dismissal had resulted from risk management rather than unsatisfactory performance.
12. Mr Barreto gained Prison Employment as a level three gardener for the November Block on 1 October 2010. On 30 January 2011 Mr Barreto changed his Prison Employment to a level three Kitchen worker. Both positions attract a gratuity payment of $5.38 per day.
13. Mr Barreto currently has Prison Employment as a level two Kitchen worker in the afternoon. This change was effected on 1 March 2012. This work attracts a gratuity payment of $6.85 per day.
14. Currently Mr Barreto has access to the student computer room in Oscar Block in the morning, Monday through to Friday. The increased access, which gives Mr Barreto more time in the facilities than normally granted to prisoners housed in November Block, is to facilitate his studies.

1. At the request of the Commissioner of DCS, I conducted a review of the Enquiry on or around December 2011. I reviewed documentation in relation to the Enquiry, including security information reports, TOMS reports and briefing notes.
2. At the conclusion of this review it was found that:

(a) charges under the Prisons Act had not been laid against Mr Barreto;

(b) no proved behaviours had been identified which meant that Mr Barreto had not lost any privileges and that he retained his status of 'earned privileges' entitling him to remain in November Block;

(c) there were no active Alerts on Mr Barreto's TOMS file; and

(d) in general no punishment resulted from the Enquiry.

1. Despite the conclusions of the review, Mr Barreto was not offered re-employment in Oscar Block as it was felt that his presence there was not in the best interests of our staff or himself and potentially posed a risk to the security and good order of Acacia Prison.
2. The outcome of my review was communicated to Mr Barreto in a letter dated 12 January 2012, which is Annexure 'FMB1' to Mr Barreto's affidavit dated 16 February 2012.

114 With the exception of the cell confinement regime, Mr Brampton's affidavit confirms conclusively the managerial nature of the decisions that have been made and their practical insusceptibility to judicial review. Decisions to raise a TOMS alert and decisions to act to protect the possible safety of X are examples of decisions which fall within the obligation for governance placed on the respondent by Prisons Act s 36 and the Acacia Agreement cl 1.1(d).

115 To the extent that the applicant may have a legitimate expectation in respect of these matters, the legitimate expectation does not operate at the time that a decision has to be made for the good governance and management of the prison. It may arise when, the decision having been made, it is necessary to review the decision to see whether, in all the circumstances, the decision was a fair one. In other words, a legitimate expectation, if it exists (and I assume for the purpose of this application that it does), is the right to have the matter reviewed in due course. As Mr Brampton's affidavit in fact, shows this was done.

116 The applicant wished me to rely on the facts contained in Mr Brampton's affidavit. I have done so. Together with the agreed facts, it is conclusively established that to the extent that the applicant had acquired rights and a legitimate expectation of procedural fairness in relation to those rights, he has no valid cause for complaint and this court has no basis to grant prerogative or declaratory relief.

117 The one exception is the issue of the cell confinement regime. When the facts in Mr Brampton's affidavit are taken into account, the respondent has an arguable case that power to detain the applicant in cell confinement might have a source in the Prisons Act s 36. However, for reasons earlier expressed he arguably may not and it is therefore inappropriate to dismiss the applicant's action in relation to the cell confinement regime (claim 7).

A1. Yes, except in respect of a cell confinement regime (claim 7) in which the respondent's actions were arguably unlawful.

Q2. Are the respondent's actions open to judicial review?

A2. On the pleadings and agreed facts, no except in respect of the cell confinement regime (claim 7) in respect of which judicial review may be open.