Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : BARRETO -v- McMULLAN [2013] WASC 26

Administrative law - Administration of prisons - Decisions by the superintendent of a prison - Decisions affecting the appellant as a prisoner - Proper construction of s 36 of the Prisons Act 1981 (WA) - Jurisdictional error - Jurisdictional fact - Exclusion of the rules of procedural fairness

Practice and procedure - Trial of a preliminary question of law - Whether the primary judge failed to condition his answers to the preliminary question by reference to an agreed qualification of the parties - Whether the primary judge dealt with and made orders in relation to matters beyond the agreed matters the subject of the preliminary question of law

Prisons Act 1981 (WA)

Prisons Regulations 1982 (WA)

Rules of the Supreme Court of Western Australia 1971 (WA), O 31 r 2

Primary judge's answers to the preliminary question of law and other orders set aside

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

Bromley v Dawes (1983) 34 SASR 73

Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163

Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309

Flynn v The Queen [1949] HCA 38; (1949) 79 CLR 1

FTZK v Minister for Immigration and Border Protection [2014] HCA 26

Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648

ID, PF and DV v Director General, Department of Juvenile Justice [2008] NSWSC 966; (2008) 73 NSWLR 158

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531

Lacey v Attorney-General for the State of Queensland [2011] HCA 10; (2011) 242 CLR 573

Little v Commonwealth [1947] HCA 24; (1947) 75 CLR 94

Masters v Chief Executive, Department of Corrective Services [2001] QSC 55; (2001) 121 A Crim R 173

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57

Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82

Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1

Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Classification Committee; Ex parte Finnerty [1980] VicRp 53; [1980] VR 561

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317

South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378

Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510

Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147

Vezitis v McGeechan [1974] 1 NSWLR 718

Wasfi v Commonwealth of Australia [1998] FCA 639; (1998) 83 FCR 16

1 MARTIN CJ: This appeal should be allowed, the primary judge's orders set aside, and the preliminary question of law answered in the terms proposed by Buss JA, for the reasons given by him and with which I agree.

2 BUSS JA: This is an application for leave to appeal from a judgment of McKechnie J after a trial of a preliminary question of law in relation to decisions by the respondent as the Director of Acacia Prison which affected the appellant as a sentenced prisoner held in that prison.

3 At all times in the General Division and in this court the respondent has been represented by counsel and solicitors, and the appellant has been self-represented.

4 On 1 October 1991, the appellant was convicted in the Supreme Court of wilful murder. He was sentenced to strict security life imprisonment. Since on or about 9 September 2001, he has been held in Acacia Prison.

5 At all material times, Serco Australia Pty Ltd (Serco) has provided management, control and security services at Acacia Prison pursuant to an agreement (the Acacia Agreement) between Serco and the Chief Executive Officer of the Department of Corrective Services acting for and on behalf of the State of Western Australia.

6 At all material times, the respondent has been the Director of Acacia Prison and has been designated as the superintendent of that prison.

7 On 22 December 2011, the appellant filed a notice of originating motion in the Supreme Court against the Department of Corrective Services and the respondent (as respondents). The Supreme Court file number for the notice is CIV 3421 of 2011. In the notice of originating motion the appellant claimed declaratory relief on specified grounds in relation to a number of the respondent's decisions.

8 On 1 May 2012, the respondent filed a response to the notice of originating motion. The respondent asserted in his response, relevantly, that:

(a) the 'administrative decisions' made 'at material times by or on behalf of [the respondent] were lawfully sourced, made within power, and undertaken in good faith'; and

(b) those 'administrative decisions are not open to judicial review'.

9 On 21 May 2012, the appellant filed a chamber summons and a minute of writ of summons with an indorsement of claim against the Department of Corrective Services and the respondent (as defendants) in CIV 3421 of 2011. In the summons the appellant sought leave to file the writ.

10 On 14 June 2012, there was a directions hearing before the primary judge. At the hearing counsel for the respondent submitted that there was an 'overriding point of law' that was 'determinative in this case', namely 'if the administrative decisions that [the appellant] challenges were lawfully sourced, made within power and made [in] good faith, there's no capacity for judicial review' (ts 33). Counsel told his Honour that he proposed to file a chamber summons in which the respondent would identify 'the question of law which is the subject of our invitation to your Honour to set [the matter] down for hearing as a preliminary point' (ts 37). His Honour said:

I'm keen to get this matter moving. I have just taken an intense personal interest in listings and getting things through ...

The easiest way forward then is to make the orders broadly that [counsel for the respondent] seeks ... (ts 39).

11 On 26 June 2012, the respondent filed a chamber summons in which he sought orders, before the leading of evidence in the action, that each of the respondent's decisions itemised in par 2(a) - (g) of the summons was an 'administrative decision' and was 'lawful and not open to judicial review'. In the summons the respondent sought the 'preliminary determination' of that issue as a question of law pursuant to order 31 rule 2 of the Rules of the Supreme Court 1971 (WA). The decisions itemised in par 2(a) - (g) of the respondent's summons correspond to the decisions pleaded in pars 3 - 9 of the general indorsement on the appellant's minute of writ of summons. Notably, the respondent's summons did not include or refer to the matters in pars 1, 2, 10, 11 or 12 of the general indorsement.

12 On 6 July 2012, his Honour, on the application of the appellant in CIV 3421 of 2011, dismissed the proceedings against the Department of Corrective Services.

13 On 24 July 2012, there was another directions hearing before the primary judge. His Honour ordered, by consent, that the parties file an agreed statement of facts and evidence for the purpose of determining the preliminary question of law.

14 On 6 August 2012, the respondent filed a statement of agreed facts.

15 Substantial affidavit evidence was filed and served by the appellant and the respondent in CIV 3421 of 2011. The appellant filed and served three affidavits sworn by him. The respondent filed and served affidavits affirmed by David Brampton and Paul Michael Beckton.

16 Both parties filed extensive written submissions on the preliminary question of law.

17 On 10 September 2012, the preliminary question of law was tried before his Honour. On 31 January 2013, his Honour delivered judgment and published his reasons.

The indorsement of claim on the minute of writ of summons

18 The indorsement of claim on the minute of writ of summons reads, relevantly:

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

1. The Respondent's pre-determined and biased view of the [Appellant], in connection with an erroneous factual finding that the [Appellant] 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 [Appellant], concerning his interaction with staff at Acacia Prison.
3. The Respondent's decision (or his delegate) to deny the [Appellant] 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 [Appellant'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 [Appellant] 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 [Appellant], 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 [Appellant], during the course of the [Appellant'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 [Appellant].
9. The Respondent's decision (or his delegate) to terminate the [Appellant'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 [Appellant] interacting with female staff in Acacia Prison (especially in Oscar Block), and an unsubstantiated finding of risk against the [Appellant], in connection with this.
11. The Respondent's breaches of the Acacia Prison Services Agreement (the Contract) (as claimed by the [Appellant]):

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 [Appellant]; 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.

19 The statement of agreed facts reads, relevantly:

2.1 The Respondent filed a Chamber Summons on 26 June 2012 which posed a preliminary question of law to be determined by the Court (Preliminary Question of Law).

2.2 On 24 July 2012 the Court directed, by consent, that the parties file an agreed statement of facts and evidence (Statement of Agreed Facts) for the purpose of determining the Preliminary Question of Law.

2.3 This document constitutes the Statement of Agreed Facts, with relevant annexures, for the purpose of determining the Preliminary Question of Law.

1. Statement of Agreed Facts for the purpose of determining the Preliminary Question of Law

3.1 The Parties admit the following facts for the purpose of determining the Preliminary Question of Law:

(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).

4.1 The parties acknowledge that the [Appellant] wishes to rely on, at least, the affidavit of David Brampton filed on 1 May 2012 (Brampton Affidavit) for the purpose of determining the Preliminary Question of Law.

4.2 The parties acknowledge that it is the Respondent's position that:

(a) this Statement of Agreed Facts contains the facts and documents required for the purpose of determining the Preliminary Question of Law;

(b) it is neither necessary nor appropriate to rely on or refer to the Brampton Affidavit or any other affidavit evidence for the purpose of determining the Preliminary Question of Law.

4.3 The parties will address the admission of, and/or reliance on, such affidavit evidence for the purpose of determining the Preliminary Question of Law in written submissions.

20 Paragraph 4.1 of the statement of agreed facts refers to the affidavit of Mr Brampton, affirmed 1 May 2012 and filed by the respondent, and the appellant's wish to rely on it. At all material times, Mr Brampton has been employed by Serco as the Deputy Director of Acacia Prison. He was authorised by the respondent to affirm the affidavit in the proceedings. Mr Brampton states in par 5 of the affidavit that his role as Deputy Director of Acacia Prison involves managing the good government, good order and security of the prison 'on a daily basis by performing all delegated duties of [the respondent], on his behalf'. Mr Brampton reports to the respondent.

21 At the hearing before the primary judge the appellant sought to rely on that part of Mr Brampton's affidavit which deals with a committee known as the Prisoner Employment Review Committee or PERC. In his affidavit Mr Brampton refers to an enquiry (the enquiry) carried out by named prison officers into allegations concerning the appellant's interaction with female members of the prison staff. The enquiry was commenced on 30 August 2011. A briefing note dated 20 September 2011, which set out details of the 'progress and outcome' of the enquiry, was sent to Mr Brampton. The appellant was not permitted access to the Oscar Block, where he had been employed, or the prisoner computer facilities within Oscar Block, during the period of the enquiry.

22 Paragraphs 51 - 60 of Mr Brampton's affidavit read:

1. [The appellant'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).
2. Following his dismissal from Prison Employment in Oscar Block, [the appellant] 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.
3. Following his dismissal from Prison Employment in Oscar Block, [the appellant] 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. [The appellant] 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.
4. [The appellant] gained Prison Employment as a level three gardener for the November Block on 1 October 2010. On 30 January 2011 [the appellant] changed his Prison Employment to a level three Kitchen worker. Both positions attract a gratuity payment of $5.38 per day.
5. [The appellant] 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.
6. Currently [the appellant] has access to the student computer room in Oscar Block in the morning, Monday through to Friday. The increased access, which gives [the appellant] more time in the facilities than normally granted to prisoners housed in November Block, is to facilitate his studies.
7. 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.
8. At the conclusion of this review it was found that:

(a) charges under the Prisons Act had not been laid against [the appellant];

(b) no proved behaviours had been identified which meant that [the appellant] 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 [the appellant's] TOMS file; and

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

1. Despite the conclusions of the review, [the appellant] 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 [the appellant] in a letter dated 12 January 2012, which is Annexure 'FMB1' to [the appellant's] affidavit dated 16 February 2012.

23 The appellant relied on the provisions of Mr Brampton's affidavit which deal with the Prisoner Employment Review Committee or PERC in connection with the decision pleaded in par 9 of the general indorsement.

24 The relevant provisions of the Prisons Act 1981 (WA) (the Act) are as follows.

25 The long title to the Act states that it 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'.

26 Section 3(1) contains numerous definitions. The term 'prison' is defined to mean, relevantly, every building, enclosure or place declared to be a prison under s 5. The term 'prison services' is defined to mean the management, control and security of a prison and the welfare of the prisoners at the prison. The term 'superintendent' is defined to mean, relevantly, the superintendent or other officer or prison officer who is at the relevant time in charge of a prison.

27 By s 5(1), the Minister may, by order, declare any building, enclosure or place to be a prison within the meaning and for the purposes of the Act. (On 27 April 2001, the Minister made an order under s 5(1) in respect of Acacia Prison.)

28 Section 7 specifies the powers and duties of the chief executive officer of the department of the Government principally assisting the Minister with the administration of the Act. (At all material times the relevant department was the Department of Corrective Services.) By s 7(1):

Subject to this Act and to the control of the Minister, the chief executive officer is responsible for the management, control, and security of all prisons and the welfare and safe custody of all prisoners.

29 Section 14 is concerned with the powers and duties of prison officers. Section 14(1) provides:

Every prison officer -

(a) has a responsibility to maintain the security of the prison where he is ordered to serve; and

(b) is liable to answer for the escape of a prisoner placed in his charge or for whom when on duty he has a responsibility; and

(c) shall obey all lawful orders given to him by the superintendent or other officer under whose control or supervision he is placed and the orders and directions of the chief executive officer; and

(d) may issue to a prisoner such orders as are necessary for the purposes of this Act, including the security, good order, or management of a prison, and may use such force as he believes on reasonable grounds to be necessary to ensure that his or other lawful orders are complied with.

30 Section 15B authorised the chief executive officer, for and on behalf of the State of Western Australia, to enter into the Acacia Agreement with Serco for the provision of management, control and security services at Acacia Prison. See s 15B read with the definition of 'prison services' in s 3(1). Section 15C enumerates a number of matters that must be included in contracts for prison services.

31 Section 16(1) provides that every prisoner is deemed, for so long as he or she continues to be a prisoner, to be in the custody of the chief executive officer. Subject to very limited exceptions, s 16(2) provides that a prisoner shall not be confined or kept in any place other than a prison.

32 Part V is headed, 'Management, control and security of prisons'. It comprises s 35 - s 52.

33 Section 35 confers on the chief executive officer power to make rules. It provides, relevantly:

(1) The chief executive officer may, with the approval of the Minister, make rules for the management, control and security of prisons generally or a specified prison and for the management, control, and security of prisoners and the management of officers of the Department.

(2) It is the intention that rules made under subsection (1) shall complement regulations made by the Governor under section 110 and if there exists any inconsistency between a rule made by the chief executive officer and a regulation made by the Governor, the rule shall, to the extent of such inconsistency, be read and have effect subject to the regulation.

(3) Rules made under this section may confer a discretionary authority on any person or class of persons.

(4) Rules made under this section may specify and regulate the privileges which may be extended to prisoners and may provide for the withdrawal of such privileges.

34 Section 36 provides for the appointment of a superintendent for each prison, and confers various powers on the superintendent:

(1) The chief executive officer shall designate a superintendent for each prison and an officer so designated as superintendent of a prison shall have the charge and superintendence of the prison for which he is designated and shall be responsible to the chief executive officer for the good government, good order, and security of that prison.

(2) The superintendent of a prison is liable to answer for the escape of any prisoner in his charge.

(3) The 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.

35 At all material times the chief executive officer, pursuant to s 36(1), has designated the respondent as the superintendent of Acacia Prison. Accordingly, at all material times the respondent, pursuant to s 36(1), has had the charge and superintendence of Acacia Prison and has been responsible to the chief executive officer for the good government, good order, and security of that prison.

36 By s 37(1), the superintendent of a prison may, with the approval of the chief executive officer, make and issue written standing orders with respect to the management and routine of that prison. By s 37(2), if there exists any inconsistency between a standing order made by a superintendent and a rule made by the chief executive officer under s 35 or a regulation made by the Governor under s 110, the standing order shall, to the extent of such inconsistency, be read and have effect subject to the rule or regulation.

37 Section 41(1) authorises a prison officer, if so authorised by the superintendent and on the conditions specified in s 41(1), to search a prisoner and take from him or her anything found on his or her person. Section 42(1) empowers the superintendent, without prejudice to any power otherwise conferred and on the conditions specified in s 42, to authorise and direct the restraint of a prisoner.

38 Section 43 deals with the separate confinement in prison of a prisoner. It provides:

(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.

(2) The chief executive officer shall inform the Minister forthwith of every order made by him under subsection (1).

(3) Every cell used for the separate confinement of a prisoner under this section shall be of such a size and so ventilated and lighted that a prisoner may be confined in that cell without injury to health and every prisoner in separate confinement 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.

39 Section 47(1) authorises a superintendent, prison officer or person lawfully charged by the Minister or chief executive officer with the charge of a prisoner, to use a firearm against a prisoner in the circumstances specified in that provision.

40 Section 49(1) empowers the superintendent of a prison to require and direct:

(i) a person entering or seeking to enter a prison; or

(ii) a person outside but near a prison, where in the opinion of the superintendent that search is necessary for the purpose of the security or good order of the prison; and

(b) the examination of any article in the possession or under the control of that person.

41 Part VII is headed, 'Prison offences'. It comprises s 69 - s 82. Section 69 creates numerous offences which are described as 'minor prison offences'. Section 70 creates numerous offences which are described as 'aggravated prison offences'. Other provisions of pt VII stipulate the manner in which a charge of a prison offence alleged to have been committed by a prisoner may be made, and the procedure for the hearing and determination of the charge and the imposition of penalties.

42 Section 111 protects certain persons from liability. It provides:

No action or claim for damages shall lie against any person for or on account of anything done, or ordered or authorised to be done, by him which purports to be done for the purpose of carrying out the provisions of this Act, unless it is proved that the act was done, or ordered or authorised to be done, maliciously and without reasonable and probable cause.

43 Section 110(1) of the Act confers on the Governor power to make regulations prescribing all matters that are required or permitted by the Act to be prescribed, or are necessary or convenient to be prescribed, for giving effect to the purposes of the Act and, in particular, for the purposes enumerated in s 110(1).

44 Pursuant to the power in s 110(1), the Governor made the Prisons Regulations 1982 (WA).

45 Regulation 40 imposes on a prisoner a duty promptly to obey orders given to him or her by a prison officer. It provides:

(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.

Rules made by the chief executive officer pursuant to s 35 of the Act

46 The chief executive officer of the Department of Corrective Services has, with the approval of the Minister, made rules under s 35 of the Act. I will briefly describe some of those rules.

47 Adult Custodial Rule 1 is headed, 'Management of Prisoners in Confinement', and was made on 2 May 2002.

48 Adult Custodial Rule 3 is headed, 'Privileges', and was made on 5 April 2009.

49 Adult Custodial Rule 4 is headed, 'Association of Officers with Prisoners and Ex-prisoners', and was made on 13 December 2002.

50 Adult Custodial Rule 5 is headed, 'Requests, Complaints and Grievances by Prisoners', and was made on 14 October 2003.

51 It is unnecessary to set out the substance of any of the rules made by the chief executive officer under s 35.

52 It is unnecessary to reproduce any of the provisions of the Acacia Agreement.

The parties' agreed qualification in relation to the determination of the preliminary question of law

53 The parties agreed upon a qualification to the determination of the preliminary question of law.

54 The qualification was that the determination of the preliminary question of law would not preclude the appellant from litigating any allegations he might make concerning bad faith or improper purpose in relation to the decisions referred to in the claims specified in the indorsement of claim on the appellant's minute of writ of summons.

55 The parties agreed in essence that the preliminary question of law was to be confined to whether, on the assumption that the decisions referred to in the claims specified in the indorsement of claim were made in good faith and for a proper purpose and on the basis of the statement of agreed facts, those decisions were 'lawful and not open to judicial review'.

56 The qualification is apparent from the following:

(a) At the directions hearing on 14 June 2012, the following exchange occurred between the primary judge and counsel for the respondent:

McKECHNIE J: Even assuming all the facts in the statement of claim are true, is there nevertheless no cause of action.

HOOKER, MR: The only qualification that might arise to that is that wrapped up in the point of law is the proposition that there must be an absence of any bad faith and of course we utterly deny any suggestion of bad faith.

McKECHNIE J: I can't review that on a preliminary question.

HOOKER, MR: No (ts 38).

(b) In par 4 of his outline of submissions dated 23 July 2012, the appellant said in substance that he challenged, relevantly, the respondent's '[p]urported administrative and punitive decisions against the [appellant] - on the grounds of bad faith, improper purpose, prejudgment (or bias), and ultra vires'.

(c) In par 18 of his outline of submissions dated 17 August 2012, the respondent said:

It is significant to have regard to the nature of the jurisdictional errors asserted by [the appellant]. Aside from the assertions of acting with bad faith (and any related assertion of acting with an improper purpose) none of the kinds of errors that may be taken to be raised, on a fair reading of all of [the appellant's] materials, constitute errors of a kind that, compatibly with McEvoy, may be the subject of judicial review by the Supreme Court of Western Australia.

(d) On 10 September 2012, at the trial of the preliminary question of law, counsel for the respondent conceded:

[T]he question as posed in the chamber summons must be answered in the affirmative, with the acknowledgement, as we accept, that it's still open for [the appellant] to press for a trial of factual issues concerning bad faith, ulterior purpose and conceivably actual bias (ts 82).

At the hearing of the appeal, counsel for the respondent sought to resile from his concession in relation to 'actual bias' (appeal ts 25).

The primary judge's approach to the determination of the preliminary question of law

57 The primary judge said he approached the determination of the preliminary question of law 'on the basis that the [appellant] could establish the pleaded case and the further agreed facts at trial' [10]. According to his Honour, the proceedings 'are therefore analogous to a demurrer' [10].

58 His Honour then said that, '[a]ssuming the truth of the agreed facts, are the administrative decisions of the respondent which the [appellant] seeks to challenge' lawful and not open to judicial review [11]?

The primary judge's reasons: general principles

59 The primary judge said that 'management decisions' are within the authority of the superintendent under s 36 of the Act [38]. He added:

Absent bad faith, a prison superintendent has broad and encompassing power over discipline and management of a prison [38]. (emphasis added)

60 His Honour said the respondent did not address in his submissions whether the appellant had any right to seek a declaration in respect of the alleged breaches of the Acacia Agreement [49]. His Honour assumed that the appellant had standing [49]. His Honour made the assumption 'for the purpose of [determining] the preliminary question' and it was 'not a decision that the [appellant] has standing' [49].

61 The primary judge reviewed a number of cases concerned with whether decisions made in the course of administering prisons are amenable to judicial review [50] - [72]. He made particular reference to the judgment of the Full Court of the Supreme Court of Queensland in McEvoy v Lobban [1990] 2 Qd R 235.

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 [sic] 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 pre-determined and biased view of the [Appellant], in connection with an erroneous factual finding that the [Appellant] has a 'history' of 'grooming female staff' at Acacia Prison.

64 The primary judge concluded that 'even if the factual circumstances of claim 1 are made out', the decision was 'one of management not susceptible to judicial review' because the decision was authorised by s 36 of the Act [74]. His Honour elaborated:

The [appellant] has no 'right' crystallised by the respondent forming a view, even a wrong view on the facts leading to an allegation that the [appellant] was grooming female prison officers. To maintain discipline and order a superintendent is dependant [sic] 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 decision-maker of a sort to which the rules of natural justice immediately attach but a manager [74].

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

66 The primary judge's conclusion in relation to claim 2 was identical to his conclusion in relation to claim 1 [75]. His Honour added:

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 [75]. (emphasis added)

The primary judge's reasons: Claims 3, 5 and 9

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

(a) The ability to work within a prison, though desirable, is not a right [76].

(b) For reasons of safety or security, a prisoner may be directed not to work at a particular place or for a particular time [76].

(c) The respondent's decision 'to deny the [appellant] access to his employment location' was within the respondent's lawful authority pursuant to s 36 of the Act [76].

(d) That 'managerial decision' did not deprive the appellant of 'any specific benefit to which he had a right or with respect to which he had a legitimate expectation' [76].

(e) The appellant's employment as a 'Peer Tutor' was not 'a right or anything to which the [appellant had] a legitimate expectation'. It was 'an order' with which the appellant was bound to comply 'even if he later makes complaint' [77].

(f) Employment generally is 'a management decision' [78]. If, contrary to his Honour's view, 'there is a legitimate expectation in the prisoner that employment will not be interrupted arbitrarily', the respondent's decision, in the present case, 'to hold an inquiry meets these expectations' and '[w]hether the enquiry was flawed is a non-jurisdictional error' [78].

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

70 The word 'TOMS', in the context of the TOMS system, is an acronym for Total Offender Management Solution. The TOMS system is an electronic database used by the Department of Corrective Services to record and manage comprehensive information relating to prisoners. The system is intended to facilitate the effective management of offenders in custody.

71 The primary judge said that the entry of an alert on the TOMS system does not affect 'any right or benefit of the [appellant]' [79]. The respondent's decision to activate a TOMS alert on the appellant's TOMS profile was 'directly related to the governance and management of the prison' and was 'not susceptible to judicial review' [79]. There was 'no erroneous jurisdictional fact' [79].

72 His Honour's conclusion in relation to claim 4 was identical to his conclusion in relation to claim 1 [80].

1. The Respondent's decision (or his delegate) to activate an inquiry against the [Appellant], 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 [Appellant].

74 The primary judge said that even accepting that:

(b) '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 [the] privilege' [81].

75 His Honour's conclusion in relation to claims 6 and 8 was identical to his conclusion in relation to claim 1 [82].

The primary judge's reasons: Claims 10, 11 and 12

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

1. The Respondent's breaches of the Acacia Prison Services Agreement (the Contract) (as claimed by the [Appellant]):

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. Concerning the Respondent's (or his delegate's) purported application of administrative and punitive sanctions against the [Appellant]; 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.

(a) It was doubtful that 'holding unfounded concerns can be categorised as a decision, much less a decision in respect of which declaratory relief can be sought' [83].

(b) Whether the concerns were founded or unfounded was a matter of fact [83].

(c) It was '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' [83].

(d) The holding of an inquiry 'of itself does not breach a prisoner's rights' [85].

(e) It may be necessary for a superintendent 'to act on material that must be kept confidential from a prisoner for security or other risk reasons' [86].

(f) The appellant's references to the Acacia Agreement in claim 11 'does not assist the [appellant]' [88]. If the respondent's actions were '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' and references to the clauses in the Acacia Agreement 'adds nothing' [88]. His Honour arrived at similar conclusions in relation to sch 4 to the Acacia Agreement [89].

(g) It was unnecessary to deal with 'each reference within claim 11' [91]. It was sufficient to note that 'none of them advanced the [appellant's] case in any material respect even if the [appellant] could overcome the very considerable disadvantage that he is not a party to the contract' [91].

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 [92].

The primary judge's reasons: conclusions in relation to all claims except claim 7

80 The primary judge summarised his conclusions in relation to all claims, except claim 7, by stating that 'on the agreed facts, even if made out at trial, no claim gives rise to prerogative or declaratory relief' [93].

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

(a) s 36, s 43 and s 82 of the Act;

(b) reg 70, reg 71 and reg 72 of the Prisons Regulations; and

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) [sic: cl 2.33(a)(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 [102].

84 According to his Honour, the 'narrow question' was whether the respondent's actions were authorised and lawful in activating a cell confinement regime [103]. His Honour concluded that the cell confinement regime 'is arguably unlawful and so should proceed to a hearing' [103].

The primary judge's reasons: the affidavit evidence

85 The primary judge said he had reached his conclusion that, except for the claim in respect of separate confinement (claim 7), 'the respondent's actions were lawful, authorised and do not give rise to judicial review' before reading Mr Brampton's affidavit [104], [106].

86 His Honour noted that the appellant 'wishe[d] me to have regard to the material in the [Brampton] affidavit as supporting his contentions' [105]. His Honour then said that Mr Brampton's affidavit 'strengthen[ed]' his conclusions, it did not 'alter them' [106].

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).

To the extent that the [appellant] 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.

The [appellant] 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 [appellant] 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.

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 [appellant] 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 [appellant's] action in relation to the cell confinement regime (claim 7) [114] - [117].

88 Upon publishing his reasons for judgment, the primary judge made orders, relevantly, as follows:

Q1. Were the respondent's actions lawful:

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. Leave is granted to the [appellant] to file a statement of claim in accordance with the reasons for judgment.
2. The Statement of Claim be filed and served within 28 days.
3. The matter otherwise be adjourned to a further directions hearing.

90 Ground 1 alleges that the primary judge misdirected himself in the interpretation of the Act; in particular, s 35(5), s 36(3), s 37 and s 111.

91 Ground 2 alleges that his Honour erred 'in making a stated case ... in circumstances where it would be impossible for the stated case to be resolved without the court determining the ultimate facts, and applying those to the instant case'.

92 Ground 3 alleges that his Honour erred 'in determining that management decisions are not subject to judicial review'.

93 Ground 4 alleges that his Honour erred in finding that the appellant 'did not meet the rights, interest or legitimate expectation "threshold test"'.

94 The appellant's written submissions in support of his grounds of appeal reflected his particulars of the grounds.

(a) the primary judge erred in law 'in not giving effect to Parliament's use of the word "necessary" in section 36(3) of [the Act] as a precondition to a [prison superintendent] issuing an order';

(b) his Honour erred in law 'in not giving effect to subordinate rules made pursuant to sections 35(5) and 37 as displacing and limiting [the prison superintendent's] authority/power';

(c) his Honour erred in law 'in not giving effect to section 111 as limiting the [prison superintendent's] authority/power'; and

(d) his Honour erred in law in failing to find that s 36(3) stipulates a 'jurisdictional fact' that must 'objectively' exist before a superintendent's jurisdiction to exercise the power conferred by s 36(3) is enlivened, namely that the appellant or his conduct is a threat to the 'good government, good order, and security of the prison'.

(a) the primary judge 'misdirected himself in determining the [preliminary question of law] where ultimate facts are necessary';

(b) his Honour erred in 'applying jurisdictional errors, in a preliminary question of law, where facts are not fully found in this matter'; and

(c) his Honour erred 'in having regard to "bad faith" in a preliminary question of law'.

(a) the primary judge erred 'in determining the character of the respondent's power where the nature of the power is important';

(b) his Honour erred 'in determining the character and nature of [the] respondent's decisions without establishing fully found facts in relation to this matter';

(c) his Honour erred 'in determining the character of the decisions subject to claims 1 - 6 and claims 8 - 10, as found in the judgment, were "managerial" in character, and not disciplinary or punitive'; and

(d) his Honour erred in law 'in limiting judicial review of management decisions to [the] "entrenched" minimum provision of "bad faith" only'.

(a) the primary judge erred 'in not giving weight to the appellant's future parole decisions based on erroneous records';

(b) his Honour erred 'in not giving effect to the appellant's legitimate expectation that the respondent would comply with subordinate legislation'; and

(c) his Honour erred 'in finding the appellant did not have the right to the "hearing rule"'.

99 At the hearing before this court the appellant emphasised three points.

100 First, the primary judge misconstrued s 36(3) of the Act. Section 36(3) confers an 'emergency power' on a superintendent (appeal ts 2, 6, 22). It is a 'catch-all cry' (appeal ts 2, 22). There was in fact no 'emergency' which justified the use of the power under s 36(3). In the circumstances, s 37 applied (ts 22). None of the decisions in question could be made except as authorised by, and in accordance with, written standing orders made by the respondent, with the approval of the chief executive officer, under s 37(1).

101 Secondly, the determination of whether a decision by a superintendent is 'managerial' or 'administrative' requires 'a question of fact to be answered' (appeal ts 8). That question cannot be resolved on a trial of a preliminary question of law.

102 Thirdly, 'natural justice was not ... basically suspended' (appeal ts 24). The appellant had a right to be heard before the respondent made the decisions in question.

103 There are, in substance, four real issues in the appeal.

104 First, whether the primary judge's answers to the preliminary question of law must be set aside because his Honour failed to condition his answers by reference to the parties' agreed qualification, namely that the determination of the preliminary question would not preclude the appellant from litigating any allegations he might make concerning bad faith or improper purpose in relation to the decisions referred to in the claims specified in the indorsement of claim on the appellant's minute of writ of summons.

105 Secondly, whether his Honour's answers to the preliminary question of law must be set aside because:

(a) his reasons dealt not merely with the decisions pleaded in pars 3 - 9 of the general indorsement, but also with the matters in pars 1, 2, 10, 11 and 12 of the general indorsement; and

(b) his orders are not confined to the decisions pleaded in pars 3 - 9.

106 Thirdly, on the assumption that the decisions pleaded in pars 3, 4, 5, 6, 8 and 9 of the indorsement of claim were made in good faith and for a proper purpose and on the basis of the statement of agreed facts, whether his Honour erred in failing to hold that those decisions were vitiated by jurisdictional error.

107 Fourthly, whether his Honour erred in failing to hold that the respondent was bound to accord procedural fairness to the appellant (in particular, a right to be heard) before he made the decisions pleaded in pars 3, 4, 5, 6, 8 and 9 of the indorsement of claim.

The merits of the appeal: the first issue: did the primary judge fail to condition his answers to the preliminary question of law by reference to the parties' agreed qualification?

108 The appellant and counsel for the respondent did not refer to the first issue in their written submissions.

109 The court raised the first issue with the parties.

110 At the hearing, counsel for the respondent conceded (correctly, in my opinion) that the terms of the primary judge's answers to the preliminary question of law could not be supported:

HOOKER, MR: I have to acknowledge and don't seek to sustain the orders and outcome in a way, and with an ongoing operation, that would preclude [the appellant] from having claims of bad faith and/or ulterior purpose heard and determined.

BUSS JA: In relation to all of his claims

HOOKER, MR: Yes (appeal ts 26).

111 His Honour made two brief references in his reasons to bad faith. He said, in the context of a superintendent's powers under s 36 of the Act, that '[a]bsent bad faith, a prison superintendent has broad and encompassing power over discipline and management of a prison' [38] (emphasised added). Also, his Honour said, in the context of claim 2 (but not any of the other claims), that '[n]o allegation of bad faith is made' [75] (emphasis added). His Honour did not refer in his reasons to improper purpose.

112 The primary judge's reasons, and the orders he made, do not mention the parties' agreed qualification in relation to the determination of the preliminary question of law.

113 As counsel for the respondent rightly acknowledged, his Honour's answers to the preliminary question of law must be set aside even if the appellant fails on the third and fourth issues in the appeal.

The merits of the appeal: the second issue: did the primary judge deal with and make orders in relation to matters beyond the parties' agreement as to the matters to be the subject of the preliminary question of law?

114 The appellant and counsel for the respondent did not refer to the second issue in their written or oral submissions.

115 The court raised the second issue with the parties.

116 The preliminary question of law was to be determined pursuant to the respondent's chamber summons filed on 26 June 2012. As I have mentioned, in the summons the respondent sought orders, before the leading of evidence in the action, that each of the respondent's decisions itemised in par 2(a) - (g) of the summons was an 'administrative decision' and was 'lawful and not open to review'. The decisions itemised in par 2(a) - (g) of the summons correspond to the decisions pleaded in pars 3 - 9 of the general indorsement on the appellant's minute of writ of summons. As I have mentioned, the respondent's summons did not include or refer to the matters in pars 1, 2, 10, 11 or 12 of the general indorsement.

117 The parties did not, either expressly or impliedly, extend the matters to be heard and determined by the primary judge beyond the decisions pleaded in pars 3 - 9 of the general indorsement.

118 Paragraph 2.1 of the statement of agreed facts recorded that the respondent's summons filed on 26 June 2012 posed the preliminary question of law to be determined by the court. At the hearing before his Honour, counsel for the respondent said:

But in my submission, with the possible exception of the cell confinement regime decision [that is, claim 7] which I want to come to separately, all of the decisions which are the subject of challenge in this case, and which we extract in the chamber summons, on the basis of the facts before the court, that is the admitted fact that Mr McMullan is the superintendent, and the admitted fact that the contract empowers him to provide for prison services on behalf of the contracting party, then with that one possible exception these are administrative decisions that can only fairly be characterised as managerial in nature, and not as bearing a disciplinary character (ts 82). (emphasis added)

119 The respondent accepted, in written submissions filed after the hearing of the appeal, that the matters which the parties agreed were to be the subject of the preliminary question of law to be determined by the primary judge were confined to the decisions set out in pars 3 - 9 of the general indorsement.

120 The primary judge in his reasons dealt not merely with the decisions pleaded in pars 3 - 9 of the general indorsement, but also with the matters in pars 1, 2, 10, 11 and 12 of the general indorsement. Further, his Honour's orders are not confined to the decisions pleaded in pars 3 - 9.

121 The respondent argued in its written submissions filed after the hearing of the appeal that it was unnecessary for his Honour's answers to the preliminary question of law to be set aside, as a result of the orders not being confined to the decisions pleaded in pars 3 - 9, because 'the facts asserted by the Appellant in paragraphs 1, 2, 10, 11 and 12 are not of their nature decisions susceptible to judicial review (or other circumstances which are susceptible to judicial review)'.

122 I do not accept the respondent's argument about the orders. The matters in pars 1, 2, 10, 11 and 12 of the general indorsement were not within the scope of the matters which the parties agreed were to be the subject of the preliminary question of law. In these circumstances it was not appropriate for his Honour, and it is not appropriate for this court, to expand judicial decision-making and binding consequential orders into areas beyond the agreement of the parties.

123 In my opinion, his Honour's answers to the preliminary question of law must be set aside even if the appellant fails on the third and fourth issues in the appeal.

The merits of the appeal: the third issue: jurisdictional error by administrative tribunals and decision-makers

124 In Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, Brennan, Deane, Toohey, Gaudron and McHugh JJ said it is necessary to distinguish between inferior courts, on the one hand, and administrative tribunals and decision-makers exercising governmental powers, on the other, in considering what constitutes 'jurisdictional error' (176). Administrative tribunals and decision-makers, unlike inferior courts, are commonly constituted, wholly or partly, by persons without formal legal qualifications or legal training. Further, while administrative tribunals and decision-makers are normally subject to administrative review procedures and are prima facie bound to observe the rules of procedural fairness, unlike inferior courts they are not within the ordinary structure of the judicial hierarchy (176 - 177).

125 Their Honours explained in Craig that if an administrative tribunal or decision-maker makes an error of law which causes it 'to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion', and as a result the tribunal's or decision-maker's exercise or purported exercise of power is affected, it exceeds its authority or powers (179). An error of law of this kind is a jurisdictional error which will invalidate any order or decision of the tribunal or decision-maker which reflects it (179).

126 As their Honours observed in Craig, unlike a court of law, an administrative tribunal or decision-maker does not have authority (at least in the absence of a contrary intention in the statute or instrument establishing it) 'either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law' (179). See also Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [66] - [68] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

127 The scope of jurisdictional error is broader in the case of an administrative tribunal or decision-maker than it is in the case of an inferior court. For example, a failure by an inferior court to take into account a matter which it was, as a matter of law, bound to take into account in determining a question within jurisdiction will not ordinarily constitute jurisdictional error. See Craig (179 - 180).

128 In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, Hayne J said:

There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not [163].

That statement was approved by the plurality in Kirk [66].

129 In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the statement in Craig (179) as to the meaning of 'jurisdictional error' by an administrative tribunal or decision-maker [82]. Their Honours then said:

'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive (cf Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82). Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it [82].

See also FTZK v Minister for Immigration and Border Protection [2014] HCA 26 [25] (Hayne J).

130 A non-jurisdictional error of law, either by an administrative tribunal or decision-maker or by an inferior court, will be amenable to judicial review and liable to be quashed by the issue of the prerogative writ of certiorari if the error is apparent on the face of the record. See Craig (176); Kirk [80].

131 In Kirk, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that a privative clause in a State statute 'which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error, is beyond the powers of the State legislature' [55].

132 Their Honours in Kirk referred with approval to the reasoning in Craig in relation to jurisdictional error by inferior courts and jurisdictional error by administrative tribunals and decision-makers. They noted, however, in discussing jurisdictional error by inferior courts, that the reasoning in Craig in relation to inferior courts 'is not to be seen as providing a rigid taxonomy of jurisdictional error' [73].

The merits of the appeal: the third issue: the case law as to private rights of action by prisoners in respect of the administration of prisons

133 In Flynn v The Queen [1949] HCA 38; (1949) 79 CLR 1, the applicant, who was a sentenced prisoner, claimed that he had a right to a reduction of his sentence by virtue of certain regulations made under the Prisons Act 1903 (WA). His application for special leave to appeal to the High Court from a judgment of the Court of Criminal Appeal was dismissed. Dixon J 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. An interpretation of the power to make prison regulations and of the regulations made thereunder as directed to discipline and administration and not to the legal rights of prisoners is in my opinion supported by the decision of this Court in Horwitz's Case [1908] HCA 33; ((1908) 6 CLR 38) and the decision of Horridge J in the case of Morriss v Winter ((1930) 1 KB 243) and by the observations made upon the Prison Regulations by Goddard LJ in De Laessoe v Anderson ((1942) 59 TLR 149, at p 150) in the second column (8).

134 In Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317, the Court of Appeal of New South Wales held that the Prisons Act 1952 (NSW) and the Prisons Regulations 1968 (NSW), insofar as they dealt with the classification of prisoners, did not give rise to private rights enforceable in the ordinary courts. Hutley JA (Moffitt P & Glass JA agreeing) observed (328):

The question whether an Act of Parliament gives rise to a private right of action is a question of intention on the part of the legislature, and the uniform construction of provisions relating to the administration of prisons has been to deny to the prisoners a right of action, if there has been any breach: Horwitz v Connor [1908] HCA 33; ((1908) 6 CLR 38) and Arbon v Anderson ([1943] KB 252).

See also R v Classification Committee; Ex parte Finnerty [1980] VicRp 53; [1980] VR 561, 567 - 569 (Kaye J); Re Walker [1993] 2 Qd R 345, 350 - 351 (Williams J).

The merits of the appeal: the third issue: the case law as to judicial review of so-called management decisions by prison authorities

135 Traditionally, there has been a reluctance by the courts to engage in judicial review of so-called management decisions by prison authorities. Some older cases have suggested that such decisions are not reviewable by the courts. See Vezitis v McGeechan [1974] 1 NSWLR 718, 721; Bromley v Dawes (1983) 34 SASR 73, 107. More recent cases have taken the view that so-called management decisions by prison authorities are reviewable by the courts if made in bad faith or for an improper purpose. See McEvoy (236) (Macrossan CJ, Lee J agreeing), (240) (Thomas J, Lee J agreeing); Re Walker (348 - 350); Gray v Hamburger [1993] 1 Qd R 595, 600 - 602 (Byrne J); Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82, 87 - 88 (Dunford J); Masters v Chief Executive, Department of Corrective Services [2001] QSC 55; (2001) 121 A Crim R 173 [14] - [16] (Douglas J); ID, PF and DV v Director General, Department of Juvenile Justice [2008] NSWSC 966; (2008) 73 NSWLR 158 [194] - [196] (Johnson J).

136 In McEvoy, the appellant was a prisoner in Brisbane Prison and the respondent was, at the material time, the Comptroller-General of Prisons. The appellant sought, amongst other relief, a declaration that certain treatment he received in prison between 24 and 27 January 1988 was unauthorised in law.

137 The prison authorities suspected, on the basis of information they had received, that a riot was planned for Brisbane Prison. The appellant was considered to be a ring-leader in instigating disruption. The respondent and other prison officers formed suspicions as to the appellant's involvement in the planned riot. However, the information received was not sufficiently specific to enable the appellant to be charged with any offence or breach of discipline under the Prisons Act 1958 (Qld) or the Prisons Regulations 1959 (Qld). The respondent decided to confine the appellant to his cell for four days to minimise the risk of violence and disruption in the prison. During his confinement the appellant was not informed of the reasons for his confinement. He was permitted certain privileges (including retaining his guitar and the provision of reading and writing materials) while in confinement which were not accorded to prisoners confined to cells as punishment. The Full Court of the Supreme Court of Queensland dismissed the appellant's appeal against the refusal of the primary judge to make the declaration.

138 The reasoning of Macrossan CJ (Lee J agreeing) was as follows:

(a) The action of the respondent in confining the appellant to his cell was a 'management decision' within the functions and powers conferred on the respondent by s 15 and s 16 of the Prisons Act (236).

(b) Section 15 conferred broad authority on the respondent to direct, control and manage prisons in the interests of security and to ensure safe custody of the prisoners (236).

(c) Section 16(1)(i) conferred power on the respondent to direct the removal of a prisoner from one prison to another where he considered it necessary for the administration of the prison. The term 'prison' was defined in s 4 to include 'part of a prison' (236). The action of the respondent was justified not only by s 15 and s 16, but also by reg 367 which provided that where a prisoner has to be kept apart from others for his or their safety or to prevent disturbances it shall not be deemed to form a punishment (236).

(d) The appeal was not to be determined on the basis that the court did not have a right to examine the respondent's action. Rather, his Honour proceeded on the basis that the court found no occasion to interfere, not as a matter of jurisdiction, but because the respondent's action was '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).

A prison comptroller would be lamentably failing in his duty if he did not move appropriately to control riots or to prevent their outbreak or to restrain an unruly prisoner or violence amongst the inmates of the prison or to prevent the destruction of prison property. The necessary controlling actions in such cases are likely to require quick decision and furthermore might involve a degree of restriction of movement of the inmates of the institution or a curtailment of the amenities usually available within the prison. But if the restrictions are not inappropriately prolonged and if they are not imposed for an indirect object of punishing individuals, in short if they involve a bona fide and reasonable use of the power of management, the court would not interfere. In particular the court will not substitute its own discretion for a necessary and reasonable exercise of discretion on the part of the prison authorities (236 - 237).

(f) The rules of procedural fairness, as understood in the context of decisions affecting rights or legitimate expectations, had no particular application and would not inhibit a reasonable and necessary exercise of administrative power by the comptroller of a prison (237).

139 Thomas J (Lee J agreeing) said he did not think it was open to say that the exercise of the power of segregation was unreviewable by the courts (240). However:

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 (241).

140 In Gray, the applicants were prisoners detained at a correctional centre in Queensland. They challenged in the Supreme Court of Queensland changes made in the management of the correctional centre which resulted in a diminution of their privileges. The applicants sought declaratory and injunctive relief against the Director-General of the Queensland Corrective Services Commission and senior officers concerned in the administration of the correctional centre. They argued that 'a privilege once given to a prisoner cannot be withdrawn except in the specific circumstances and under the particular conditions prescribed by the Corrective Services Act 1988 or the Regulations and Rules made under that Act' (599).

141 Byrne J referred to numerous provisions of the Corrective Services Act 1988 (Qld). By s 13(1), subject to direction by the Minister, the Corrective Services Commission was responsible for the security and management of prisons and the safe custody and welfare of prisoners. By s 14, subject to the Commission and the Director of Custodial Corrections, the general manager of a prison was responsible for the security and management of the prison and the safe custody and welfare of prisoners detained therein. By s 17(1), the general manager of a prison was empowered to make rules not inconsistent with the Act or the Commission's Rules in respect of the management and security of the prison and for the safe custody and welfare of prisoners detained therein. By s 44(1), a correctional officer was empowered to give to a prisoner any order that the correctional officer believed on reasonable grounds to be necessary for the security or good order of a prison, for the welfare or safe custody of the prisoner or other prisoners or to ensure that the prisoner or any other prisoner did not commit an offence against the Act or any other Act or a breach of discipline.

142 His Honour dismissed the applications. After reviewing various provisions of the applicable Act, his Honour said:

The inclusion of the express provisions mentioned does not reveal an evident legislative intent that privileges to which there is no entitlement by or under the Act cannot be denied except as (i) a punishment for a breach of discipline; or (ii) consequent upon a s 111 declaration of emergency; or (iii) by a s 39(4) segregation. Two important considerations are opposed to the applicants' case. The attempt to discern from those sections an implied prohibition of a change to existing privileges except in compliance with the particular conditions they prescribe ignores the wide, essential powers of management the legislation confers on prison administrators. It also involves such inconvenient consequences in the day to day control of prisons that the Parliament cannot have intended such a result (601).

143 Byrne J observed that the powers conferred on the Commission, the Director of Custodial Corrections and prison officers would sustain, for example:

(a) transferring a prisoner from one unit or correctional centre to another even though the transfer may incidentally involve loss of privileges; and

(b) other orders made bona fide for security and good order or the safety of prisoners and staff even though they may effect temporary deprivation of privileges or create harsher conditions,

but the powers could not be exercised 'in bad faith or for some ... improper purpose' (601). There was no evidence of any such vitiating factors (601).

144 In Re Walker, Williams J held that the applicant, who was a prisoner detained under the Corrective Services Act 1988 (Qld) and the Corrective Services Regulations 1989 (Qld), had 'no entitlement or legitimate expectation' that he would not be transferred from one corrective institution to another (349 - 350). His Honour said:

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 (350).

145 Most of the cases which have considered whether the rules of procedural fairness apply to so-called management decisions by prison authorities were decided before the High Court jettisoned the concept of legitimate expectation.

The merits of the appeal: the third issue: the modern approach to statutory construction

146 The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text must begin by considering the context, in its widest sense. This will include the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ); Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ); Lacey v Attorney-General for the State of Queensland [2011] HCA 10; (2011) 242 CLR 573 [43] - [44] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

The merits of the appeal: the third issue: on the relevant assumption and on the basis of the statement of agreed facts, did the primary judge err in failing to hold that the decisions referred to in the claims specified in pars 3, 4, 5, 6, 8 and 9 of the indorsement of claim were vitiated by jurisdictional error?

147 The primary judge said the proceedings before him were 'analogous to a demurrer' [10]. In my opinion, they are more accurately described as, in substance, an application by the respondent to strike out the indorsement of claim on the appellant's minute of writ of summons on the ground that the indorsement disclosed no reasonable cause of action.

148 The decisions referred to in the claims pleaded in pars 3, 4, 5, 6, 8 and 9 of the general indorsement were made by or on behalf of the respondent, as superintendent of Acacia Prison, in connection with the management or administration of the prison. None of the decisions involved a 'prison offence' within pt VII of the Act.

149 The third issue in the appeal is whether, on the assumption that the decisions pleaded in pars 3, 4, 5, 6, 8 and 9 of the general indorsement were made in good faith and for a proper purpose and on the basis of the statement of agreed facts, his Honour erred in failing to hold that those decisions were vitiated by jurisdictional error.

150 The correct focus in examining the third issue is the proper construction of the Act and whether the decisions in question were vitiated by jurisdictional error. The correct focus is not on whether 'management decisions' made by a superintendent are subject to 'judicial review'.

151 The proper construction of s 36, in the context of the Act as a whole, and the application of s 36 (properly construed) to the appellant's claims in pars 3, 4, 5, 6, 8 and 9 of the general indorsement, in the context of the agreed facts, are critical to the determination of the third issue.

152 In Western Australia, a person who is sentenced to a term of immediate imprisonment loses, by virtue of the sentence, his or her liberty. Numerous provisions of the Act to which I have referred either underpin or reflect that proposition. A prisoner does not have the rights and privileges of an ordinary citizen.

153 Section 36(3) confers on the superintendent of a prison power to issue such orders to prisoners 'as are necessary for the good government, good order, and security of the prison of which he is superintendent'.

154 The word 'necessary' does not have a fixed meaning. It is flexible and relative. The word takes its colour from the connection in which it is used. For example, it may connote 'absolutely necessary' or 'indispensable'. Alternatively, it may connote 'expedient' or 'convenient'.

155 In my opinion, Parliament intended that the word 'necessary' in s 36(3) should have a broad ambit. The word is used in connection with the issuing of orders 'for' the 'good government, good order, and security of the prison'. The attainment of those objectives is of fundamental importance in the management and administration of a prison, where hundreds of men or women may be held in a closed and regimented environment, including some people who will be difficult to supervise or control and may be beyond rehabilitation. See the observations of Thomas J in McEvoy (241). The power conferred on a superintendent under s 36(3), and the other powers conferred on him or her under pt V of the Act, are essential to enable the superintendent to carry out his or her functions (notably, the charge and superintendence of the prison in question) and to ensure good government, good order and security within the prison (for which a superintendent is responsible to the chief executive officer). The word 'necessary' in s 36(3) does not refer to the issuing of orders that are absolutely necessary or indispensable for the good government, good order and security of the prison. Rather, it refers to the issuing of orders which are conducive or adapted to the pursuit, maintenance or accomplishment of good government, good order or security within the prison.

156 The expression 'good government, good order and security of the prison' in s 36(3) circumscribes or limits the power conferred on a superintendent of a prison under that provision. However, I am satisfied, on the basis of the apparent purpose or object underlying s 36(3), in the context of the Act as a whole, that 'good government, good order, and security of the prison' are words of very wide import. For example, orders made by a superintendent under s 36(3) will conform to the requirement that the orders are necessary for the 'good government, good order, and security of the prison' of which he or she is superintendent if the orders are, after taking into account the relevant circumstances (including the state of affairs in the particular prison), the nature and character of prisons generally and the context of the Act as a whole, conducive or adapted to the pursuit, maintenance or accomplishment of the welfare, safe custody or supervision of prisoners or prison staff, or the security, good order or management of the prison. The requirement of a relevant connection between the orders made by the superintendent, on the one hand, and the pursuit, maintenance or accomplishment of good government, good order or security within the prison in question, on the other, should be liberally applied.

157 There is no support in the statutory text or the apparent purpose or object underlying the legislation for the appellant's submission that s 36(3) confers an 'emergency power' on a superintendent. Further, there is no basis for restricting or qualifying the ordinary meaning conveyed by the language of s 36(3) so as to subordinate a superintendent's power under that provision to rules made by the chief executive officer (with the approval of the Minister) under s 35 or standing orders made and issued by the superintendent (with the approval of the chief executive officer) under s 37. It was open to the respondent to make the decisions in question under s 36(3). He was not confined to acting under standing orders made and issued pursuant to s 37.

158 Section 35(2) makes provision for the resolution of inconsistencies between rules made by the chief executive officer under s 35 and regulations made by the Governor under s 110. Similarly, s 37(2) makes provision for the resolution of inconsistencies between standing orders made by a superintendent under s 37, rules made by the chief executive officer under s 35 and regulations made by the Governor under s 110. No such provision is made in the Act concerning inconsistencies between orders made by a superintendent under s 36(3), on the one hand, and rules made by the chief executive officer under s 35, standing orders made by the superintendent under s 37 or regulations made by the Governor under s 110, on the other. This is not surprising. It reflects the primacy of legislation and decisions made under legislation over delegated legislation and decisions made under delegated legislation.

159 The protective provision in s 111 states that no action or claim for damages shall lie against any person for or on account of anything done, or ordered or authorised to be done, by him which purports to be done for the purpose of carrying out the provisions of the Act, 'unless it is proved that the act was done, or ordered or authorised to be done, maliciously and without reasonable and probable cause'.

160 In Little v Commonwealth [1947] HCA 24; (1947) 75 CLR 94, Dixon J said in relation to an analogous statutory provision:

The truth is that a man acts in pursuance of a statutory provision when he is honestly engaged in a course of action that falls within the general purpose of the provision. The explanation of his failure to keep within his authority or comply with the conditions governing its exercise may lie in mistake of fact, default in care or judgment, or ignorance or mistake of law. But these are reasons which explain why he needs the protection of the provision and may at the same time justify the conclusion that he acted bona fide in the course he adopted and that it amounted to an attempt to do what is in fact within the purpose of the substantive enactment (112).

See also Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147, 156 - 157 (Fullagar J).

161 Nothing in the protection from liability afforded by s 111 or the exception to that protection from liability limits or derogates from the expansive power conferred on a superintendent under s 36(3). Section 111, relevantly, protects a superintendent in certain circumstances from a civil action or claim for damages, but says nothing about the ambit or exercise of any public powers or functions under the Act including the power conferred on a superintendent by s 36(3).

162 The nature of a 'jurisdictional fact' as a condition of the exercise of a statutory power was examined by French CJ in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144. His Honour said:

The term 'jurisdictional fact' applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be 'a complex of elements' (Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 148 [28] per Gleeson CJ, Gummow, Kirby and Hayne JJ). When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court (Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297 at 303 - 304). The decision-maker's assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651 - 654 [130] - [137] per Gummow J; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 609 [183] per Gummow and Hayne JJ). If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact [57].

163 The question whether a legislative provision prescribes a jurisdictional fact as a condition of the exercise of a statutory power is in essence a question of statutory construction.

164 In my opinion, neither s 36(3) nor any other provision of the Act stipulates a fact that must 'objectively' exist before a superintendent's jurisdiction to exercise the power conferred by s 36(3) is enlivened. The expression 'good government, good order, and security of the prison' in s 36(3) is general and non-specific. The function which Parliament has committed to a superintendent under s 36(1), namely the charge and superintendence of the prison for which he is designated, will inevitably involve the superintendent in the making of assessments and value judgments as to the orders he or she should issue under s 36(3) to officers and to prisoners for the purpose of pursuing, maintaining or accomplishing good government, good order or security within the prison. This task will sometimes require that decisions be made and orders be issued quickly with a view to promoting or ensuring the welfare, safe custody or supervision of prisoners or prison staff, or the security, good order or management of the prison. The factors I have mentioned indicate beyond any doubt that Parliament did not intend to make the exercise of the power under s 36(3) conditional upon the objective ascertainment of a jurisdictional fact.

165 The primary judge did not err in deciding in effect that it was appropriate to determine the preliminary question of law, pursuant to the respondent's chamber summons filed on 26 June 2012, on the basis of a stated case. The appellant and the respondent expressly agreed to this process. The preliminary question of law was capable of proper determination, on the relevant assumption and on the basis of the statement of agreed facts, without a trial for the purpose of finding other facts.

166 I have examined the statement of agreed facts (including the relevant provisions of Mr Brampton's affidavit and the other documents attached to or referred to in the statement) in the context of s 36 and the Act as a whole.

167 On the assumption that the decisions referred to in the claims specified in pars 3, 4, 5, 6, 8 and 9 of the indorsement of claim were made in good faith and for a proper purpose and on the basis of the statement of agreed facts, I am satisfied that:

(a) each of the decisions pleaded in pars 3, 4, 5, 6, 8 and 9 was a decision made by or on behalf of the respondent, as superintendent of Acacia Prison;

(b) each of those decisions is properly characterised as a decision made by the respondent, in his capacity as a prison administrator, in connection with the management or supervision of the appellant in his capacity as a prisoner: none of the decisions is properly characterised as punitive or disciplinary in connection with conduct of the appellant which constituted or may have constituted a 'minor prison offence' within s 69 or an 'aggravated prison offence' within s 70 of the Act;

(c) each of those decisions was conducive or adapted to the pursuit, maintenance or accomplishment of good government, good order or security within the prison;

(d) none of those decisions was outside the limits of the functions and powers conferred on the respondent under the Act; and

(e) the respondent, in making each of those decisions, did not otherwise exceed the authority conferred on him by the Act.

168 It is unnecessary for this court to consider or express a view on the primary judge's approach to or determination in relation to the decision pleaded in par 7 of the general indorsement. Neither the appellant nor the respondent challenged his Honour's finding or order concerning par 7.

169 It follows that the appellant's case in relation to the third issue fails.

The merits of the appeal: the fourth issue: procedural fairness generally

170 In Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, Mason CJ, Deane and McHugh JJ held that when a statute confers upon a public official power 'to destroy, defeat or prejudice a person's rights, interests or legitimate expectations', the rules of procedural fairness regulate the exercise of that power 'unless they are excluded by plain words of necessary intendment' (598). See also Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 [74] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

171 The concept of 'legitimate expectation' referred to by Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 - 583 and Deane J in Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, 651 - 652 (and in numerous other authorities) was considered in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1. McHugh and Gummow JJ held that 'legitimate expectation' has limited utility and scope in consequence of it now being accepted that, absent a clear legislative intention to the contrary, an administrative or executive decision-maker exercising statutory power must accord procedural fairness to parties whose rights or interests might be adversely affected by its exercise [81]- [83]. See also, in Ex parte Lam, the reasons of Hayne J at [120] - [122] and those of Callinan J at [140] - [148].

172 In Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636, Gummow, Hayne, Crennan and Bell JJ held that 'legitimate expectation', in a public law context, 'either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded' [65]. Their Honours approved Brennan J's statement in South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 that the expression 'tends to direct attention on the merits of the particular decision rather than on the character of the interests which any exercise of the power is apt to affect' (411).

173 In Kioa, Brennan J said the presumption that the rules of procedural fairness condition the exercise of a statutory power may apply to 'any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation' (619). That observation was approved by the plurality in Plaintiff S10/2011 [66].

174 The implication of the rules of procedural fairness in a statute is arrived at by a process of construction. In Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, French CJ, Gummow, Hayne, Crennan and Kiefel JJ said the implication proceeded upon 'the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann (Salemi v MacKellar [No 2] [1977] HCA 26; (1977) 137 CLR 396 at 401 per Barwick CJ; at 451 per Jacobs J)' [12]. This assumption is derived from the principle of legality referred to by Gleeson CJ in Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 [21]. See also Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 [43] (French CJ).

175 When deciding whether the exercise of a statutory power is conditioned by the rules of procedural fairness, it is necessary to take into account the practical context in which the decision-maker must consider whether to exercise the power. See Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 [31] (Gleeson CJ & Hayne J).

176 The principles and presumptions of statutory construction, to the extent they are not qualified or excluded by an applicable interpretation statute, are part of the common law of Australia. In S10/2011, Gummow, Hayne, Crennan and Bell JJ explained:

It is in this sense that one may state that 'the common law' usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power (Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 100 - 101). If the matter be understood in that way, a debate whether procedural fairness is to be identified as a common law duty or as an implication from statute proceeds upon a false dichotomy and is unproductive [97].

177 If observance of the rules of procedural fairness is a condition of the grant of a statutory power, and governs the exercise of the power, a failure to comply with the rules will render any decision made, in purported exercise of the power, invalid. See Saeed [13] and the cases there cited.

178 Brennan J emphasised in Kioa that the presumption that the rules of procedural fairness condition the exercise of a statutory power applies to 'any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public' (619). However, his Honour then qualified that statement as follows:

Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised. Thus in Pearlberg v Varty ([1972]1 WLR 534; [1972] 2 All ER 6), when a commissioner gave leave ex parte to raise an assessment to tax, the taxpayer challenged the decision although his legal rights were unaffected by it. The decision was held to be valid. The text of the statute, the kind of limited interest that was affected and the statutory provision allowing the taxpayer a full opportunity to challenge his liability to tax at a later stage displaced the presumption (619 - 620). (emphasis added)

179 When it is asserted that the rules of procedural fairness do not condition the exercise of a statutory power, the question is whether the legislation, on its proper construction, displays a legislative intention to exclude the rules. See Ex parte Aala [41] (Gaudron & Gummow JJ); Ex parte Miah [53] (Gleeson CJ & Hayne J), [90] (Gaudron J), [126] - [127] (McHugh J).

180 As Merkel J noted in Wasfi v Commonwealth of Australia [1998] FCA 639; (1998) 83 FCR 16, a legislative intention to exclude the rules of procedural fairness may arise where compliance with the rules in respect of the exercise of a statutory power will 'necessarily frustrate or be inconsistent with the exercise of the power' (28).

181 S10/2011 was concerned with the proper construction of cognate provisions of the Migration Act 1958 (Cth) which conferred upon the Minister powers (but not duties) that were exercisable by the Minister personally and, if exercised, those powers dispensed with requirements of the Act. The plaintiffs argued that in deciding whether to consider the exercise of the relevant powers and, also, in deciding whether to exercise those powers, the Minister was bound to observe the rules of procedural fairness to any moving party. The High Court held that the dispensing provisions of the Act were not conditioned on observance of the rules of procedural fairness.

182 Gummow, Hayne, Crennan and Bell JJ said in S10/2011 that the question for decision was 'whether or not, upon their proper construction, the dispensing provisions with which these cases are concerned are conditioned upon observance of the requirements of natural justice in favour of persons in the position of the plaintiffs' [98]. After examining the dispensing provisions in the context of the Act as a whole, their Honours reasoned:

Upon their proper construction and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness. In particular, there was no requirement to provide to the plaintiffs the opportunities to be heard which they assert in their submissions. The use in the provisions of the Act in question here of language emphatic both of the distinctive nature of the powers conferred upon the Minister (as personal, non-compellable, 'public interest' powers), and of the availability of access to the exercise of those powers only to persons who have sought or could have sought, but have not established their right to, a visa is of determinative significance. It reveals the 'necessary intendment' referred to in the Offshore Processing Case [2010] HCA 41; ((2010) 243 CLR 319 at 352 [74]) that the provisions are not attended by a requirement for the observance of procedural fairness [100].

The merits of the appeal: the fourth issue: did the primary judge err in failing to hold that the respondent was bound to accord procedural fairness to the appellant (in particular, a right to be heard) before he made the decisions pleaded in pars 3, 4, 5, 6, 8 and 9 of the indorsement of claim ?

183 The primary judge said, after reviewing a number of cases (all of which were decided before the High Court abandoned the touchstone of legitimate expectation):

(a) some decisions 'are not amenable to judicial review if they are directly and legitimately related to the management and good governance of a prison' [73];

(b) decisions having 'a material affect [sic] 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' [73];

(c) a superintendent 'is not a decision-maker of a sort to which the rules of natural justice immediately attach but a manager' [74];

(d) the decisions pleaded in pars 3, 5 and 9 of the general indorsement were 'managerial decisions' and did not deprive the appellant of 'any specific benefit to which he had a right or with respect to which he had a legitimate expectation' [76] and the appellant was bound to comply with an order by the respondent under s 36(3) 'even if he later makes complaint' [77];

(e) as to the decision pleaded in par 4 of the general indorsement, the entry of an alert on the TOMS system did not affect 'any right or benefit of the [appellant]' and the decision to activate a TOMS alert on the appellant's TOMS profile was 'directly related to the governance and management of the prison' and was 'not susceptible to judicial review' [79]; and

(f) as to the decisions pleaded in pars 6 and 8 of the general indorsement, even 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 [the] privilege' [81].

184 The fourth issue in the appeal is whether his Honour erred in failing to hold that the respondent was bound to accord procedural fairness to the appellant (in particular, a right to be heard) before he made the decisions pleaded in pars 3, 4, 5, 6, 8 and 9 of the indorsement of claim.

185 In my opinion, upon a proper construction of s 36(3) in the context of the Act as a whole, the power conferred by s 36(3) is not conditioned upon observance of the requirements of procedural fairness, at least in connection with decisions involving the management or supervision of prisoners as distinct from punitive or disciplinary action against prisoners, in favour of any prisoners who are or may be affected by the exercise of the power. I am satisfied that the Act, on its proper construction, evinces a legislative intention that the rules of procedural fairness should not apply, at least in connection with decisions involving the management or supervision of prisoners as distinct from punitive or disciplinary action against prisoners, to the exercise by a superintendent of the power under s 36(3). My reasons are as follows.

186 First, the practical context in which a superintendent may have to consider whether to exercise the power under s 36(3) is significant. In particular, as I have already noted, it may be necessary in some circumstances for a superintendent to make decisions and issue orders quickly with a view to ensuring the welfare, safe custody or supervision of prisoners or prison staff, or the security, good order or management of the prison. Also, as I have already mentioned, the objectives of 'good government, good order, and security' are of fundamental importance in the management and administration of a prison and those objectives must be pursued, maintained or accomplished by a superintendent in an institution where hundreds of people may be held in a closed and regimented environment, including some people who will be difficult to supervise or control and may be beyond rehabilitation. See McEvoy (241).

187 Secondly, each of the decisions pleaded in pars 3, 4, 5, 6, 8 and 9 of the general indorsement is properly characterised as a decision made by the respondent, in his capacity as a prison administrator, in connection with the management or supervision of the appellant in his capacity as a prisoner. None of the decisions is properly characterised as punitive or disciplinary action, including action in connection with conduct of the appellant which constituted or may have constituted a 'minor prison offence' within s 69 or an 'aggravated prison offence' within s 70 of the Act.

188 Thirdly, the consequences in the day to day management and control of a prison if a superintendent was bound to accord procedural fairness to prisoners in connection with managerial or supervisory decisions, as distinct from punitive or disciplinary action, would be most inconvenient. See Gray (601).

189 Fourthly, as I have already noted, a person who is sentenced to a term of immediate imprisonment in this State loses, by virtue of the sentence, his or her liberty. Numerous provisions of the Act, including s 36(3), either underpin or reflect that proposition. A prisoner does not have the rights and privileges of an ordinary citizen.

190 Fifthly, the Act contains a detailed and comprehensive scheme for the establishment, management, control and security of prisons, the custody and welfare of prisoners and related matters. Parliament enacted elaborate provisions in relation to the procedure for the hearing and determination of a charge against a prisoner of a 'minor prison offence' (within s 69) or an 'aggravated prison offence' (within s 70). No such procedure was stipulated in relation to the exercise by a superintendent of the power under s 36(3) or any other managerial or supervisory powers under the Act that do not involve punitive or disciplinary action.

191 As I have mentioned in the course of considering the third issue, it is unnecessary for this court to consider or express a view on the primary judge's approach to or determination in relation to the issue pleaded in par 7 of the general indorsement: neither the appellant nor the respondent challenged his Honour's finding or order concerning par 7.

192 It follows that the appellant's case in relation to the fourth issue fails.

193 I would grant leave to appeal. The appeal should be allowed and the primary judge's answers to the preliminary question of law and other orders should be set aside.

194 The preliminary question of law should be answered as follows:

Answer 1: On the assumption that the decisions pleaded in pars 3 - 9 of the indorsement of claim on the appellant's minute of writ of summons were made in good faith and for a proper purpose and on the basis of the statement of agreed facts:

(a) the decisions pleaded in pars 3, 4, 5, 6, 8 and 9 were lawful;

(b) the decision pleaded in par 7 was arguably unlawful.

Question 2: Are the decisions pleaded in pars 3 - 9 of the general indorsement open to judicial review?

Answer 2: On the assumption that the decisions pleaded in pars 3 - 9 of the indorsement of claim were made in good faith and for a proper purpose and on the basis of the statement of agreed facts:

(a) the decisions pleaded in pars 3, 4, 5, 6, 8 and 9 were not vitiated by jurisdictional error;

(b) the decision pleaded in par 7 was arguably vitiated by jurisdictional error.

195 The parties should be heard as to the precise form of the orders to be made by this court.