BENTLEY -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES [2015] WASC 200 (5 June 2015)

(iii) A decision to include a 'Threat to Staff' alert in relation to Mr Bentley on the Total Offender Management Solution system (TOMS) maintained by the Respondent (the TOMS alert decision).

2 The grounds on which Mr Bentley seeks judicial review in respect of each of the Decisions are, in summary, that each of the Decisions were infected by jurisdictional error because there was no evidence to justify the making of any of the Decisions, and that Mr Bentley was not afforded procedural fairness in respect of any of the Decisions.

3 For the reasons outlined below, Mr Bentley's application for judicial review of the Decisions must be dismissed.

4 In these reasons for decision, I deal with the following matters:

1. The procedural history of the application for review;
2. The factual context for each of the Decisions;
3. The source of power for each of the Decisions;
4. Whether a writ of certiorari is available in respect of each of the Decisions;
5. The grounds of review;
6. Why the 'no evidence' ground of review fails;
7. Why the procedural fairness ground of review fails; and
8. Whether Mr Bentley requires leave to bring his application for judicial review.

1. The procedural history of the application for review

5 Mr Bentley filed his application for judicial review on 25 September 2013. In support of his application for review, Mr Bentley subsequently filed affidavits sworn on 26 February 2014 and 26 March 2014. He also filed written submissions in the form of a letter dated 17 October 2014, and a lengthier document dated 22 December 2014.

6 Originally, Mr Bentley's application sought the review of a decision said to have been made on 11 September 2013 which was described as 'exclusion of access to education of a computer'. He sought a writ of mandamus, apparently to compel prison authorities to provide him with a computer or to permit him access to educational opportunities. After several directions hearings it emerged that Mr Bentley's complaint about access to a computer, or to educational opportunities, in fact flowed from the three Decisions referred to in paragraph [1] above, and that Mr Bentley wanted those Decisions to be set aside. There being no objection by the respondent, I permitted Mr Bentley to amend his application for judicial review to substitute the Decisions as the decisions in respect of which he sought judicial review, and to amend his application to make clear that the relief sought was a writ of certiorari rather than a writ of mandamus.

7 In the course of those directions hearings, counsel for the respondent noted that the issues raised by Mr Bentley's application for review were likely to overlap with issues which had been raised in an appeal to the Court of Appeal, judgment in which was reserved. The hearing of Mr Bentley's application for review was deferred until after judgment in that appeal Barreto v McMullan[2] was delivered.

8 The respondent filed two affidavits of Mr Lance Graham Koyd, affirmed 30 April 2014 and 13 October 2014, and two affidavits of Mr Stephen Paul Blenkinsopp, affirmed 18 July 2014 and 20 November 2014. Mr Blenkinsopp is the Superintendent Administration, Adult Custodial, at the Department of Corrective Services. Mr Blenkinsopp's affidavits addressed the factual context for the Decisions. The respondent also filed a written outline of submissions dated 21 November 2014.

2. The factual context for each of the Decisions The removal decision

9 Mr Blenkinsopp deposed that, on 13 April 2012, prison officers at the Prison received a report that Mr Bentley had made inappropriate comments of a sexual nature about a female staff member (the Incident).[3] A redacted copy of a security report which described the information received was annexed to Mr Blenkinsopp's affidavit.[4] That security report also revealed the context in which the report of the Incident was received, namely that prison officers had earlier received reports that Mr Bentley had made similar comments of a sexual nature in relation to a female staff member, and had threatened violence against a male staff member. Mr Bentley had previously been given a formal warning about his unacceptable behaviour.[5]

10 Upon the receipt of information about the Incident, prison officers interviewed Mr Bentley about the Incident.[6]

11 An Incident Report Minute indicated that Mr Bentley was taken to Unit 1, and that a senior security officer at the Prison then advised the Prison Superintendent, Ms Bishop, about the Incident and sought her approval for Mr Bentley to be confined to Unit 1, pursuant to s 36(3) of the Prisons Act 1981 (WA) (the Prisons Act), pending a further investigation into the Incident.[7] Mr Blenkinsopp deposed that Mr Bentley was confined to Unit 1 pursuant to s 36(3) of the Act. Although there was no written record that Superintendent Bishop made the removal decision, it can be inferred from Mr Bentley's confinement to Unit 1 that the Superintendent made the removal decision, by virtue of the fact that her authority for that course of action was sought.

12 Prior to his being removed to Unit 1, Mr Bentley was housed in Unit 3 at the Prison. While he was confined in Unit 1, Mr Bentley appears to have been permitted only limited contact with other prisoners.[8]

13 An entry in the Incident Report Minutes annexed to Mr Blenkinsopp's affidavit of 20 November 2014, indicates that on 17 April 2012, Mr Pierre, the Assistant Superintendent, Prison Management, at the Prison, made the following notes:

Outcome of the investigation indicates a risk to a number of staff members ... and perceived to have been escalating in behaviour ...

Reports also reveal unsatisfactory behaviour whilst attending the recommended treatment program [ISOTP].

Due to this incident although no Charges preferred is serious in nature and Bentley to be transferred from [the Prison].

Relevant stakeholders have been notified ... and subsequently his participation on the ISOTP has been cancelled.[9]

14 On 17 April 2012, Mr Pierre decided that Mr Bentley should remain classified as a medium security prisoner, but that he should be transferred to Acacia Prison 'in view of Security Rating and placement issues at Bunbury Regional Prison'.[10] Mr Bentley was transferred to Acacia Prison on the same date.[11]

15 The transfer decision appears to have been made in conjunction with a review of Mr Bentley's Individual Management Plan (IMP).[12] The report of the IMP Review noted that although Mr Bentley had been participating in the ISOTP, '[d]ue to his management transfer, Bentley will be unable to complete this [programme].'[13] Accordingly, although the note made by Mr Pierre which is set out above at [13] suggests that Mr Bentley's participation in the ISOTP was 'cancelled', it does not appear that a separate decision was actually made by the respondent in relation to Mr Bentley's participation in that programme. Mr Bentley did not dispute that it was by virtue of the transfer decision that he was unable to complete the ISOTP.[14]

16 On 17 April 2012, Mr Pierre entered a 'Threat to Staff' alert in relation to Mr Bentley on the TOMS database. That alert was in the following terms:

Removed from BRP due to alleged threats towards a number of staff members ... . Prisoner placed in unit 1 ... .[15]

17 The TOMS alert remains in place in relation to Mr Bentley.[16]

18 I note that the TOMS database was discussed in Barreto v McMullan.[17] One of the decisions the subject of review in Barreto was a decision to activate a TOMS alert in relation to Mr Barreto, which he claimed contained an erroneous jurisdictional fact, and erroneous factual findings. Buss JA described the TOMS database in the following way:

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.[18]

19 Mr Blenkinsopp's affidavits contained an explanation of the maintenance of the TOMS database of information relating to offenders held in prisons.[19] Mr Blenkinsopp deposed that the TOMS database is the subject of a policy directive issued by the Department of Corrective Services (Policy Directive 35 Custodial Business Processes (TOMS)) (PD35). A broad range of information about prisoners is stored in the TOMS database, including 'offender alerts'. Mr Blenkinsopp deposed that:

[p]rison officers and departmental staff are able to enter an 'Alert' in relation to a particular prisoner onto the TOMS database. Alerts are recorded on TOMS to draw attention to current and pertinent management issues in relation to a prisoner. In particular, Alerts are recorded to notify prison officers and staff members dealing with a prisoner of security or behaviour issues in relation to that prisoner. For example:

...

(b) "Threat to staff" indicates that the prisoner has previously assaulted, attempted to assault or threatened to harm a staff member ... .

Alerts are entered into TOMS as a result of the assessment and case management of a prisoner, as well as in respect to specific incidents, and are designed to mitigate risks to the prisoner, to other prisoners and staff, and to the community. It is standard procedure to review alerts on a regular basis to maintain relevance and currency.[20]

3. The source of power for each of the Decisions The removal decision

20 The removal decision was made by the Superintendent of the Prison, Ms Bishop, pursuant to the power given to prison superintendents under s 36 of the Prisons Act. Section 36(1) of the Prisons Act provides that the person designated as the 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'. Those words are words of very wide import.[21]

21 Section 36(3) of the Prisons Act provides that in the performance of a superintendent's responsibility under s 36(1), 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'. The requirement of a relevant connection between the orders made by a superintendent of a prison, and the pursuit, maintenance or accomplishment of good government, good order or security within a prison, is to be liberally applied.[22]

22 Counsel for the respondent submitted that the transfer decision was made pursuant to Adult Custodial Rule 18 (ACR 18). She submitted that that Rule was made pursuant to s 35(1) of the Prisons Act which (amongst other things) permits the respondent, with approval of the Minister, to 'make rules for the management, control and security of prisons generally or a specified prison and for the management, control and security of prisoners ...'.

23 Under s 12 of the Prisons Act, every prison officer is required to comply with the Act and the regulations, and the rules (namely, rules made under s 35 of the Prisons Act) and standing orders made under the Act, and with the orders and directions of the respondent, and has a responsibility to maintain the security of the prison. ACR 18 is thus a rule with which prison officers are required to comply.

24 ACR 18 subrule 9 deals with the placement of prisoners within prisons, and contemplates the transfer of prisoners from one prison to another in certain circumstances. The transfer of a prisoner may be effected 'in line with [the prisoner's] Individual Management Plan'.[23] In so far as these transfers are concerned, ACR 18 notes that:

[t]he placement of prisoners should reflect a balance between security considerations, prisoner needs and program availability. In order to achieve such a balance, it will be necessary from time to time to transfer prisoners from one prison to another.[24]

25 'Other' transfers are also contemplated for 'Management / Security' reasons.[25] These may be for different periods: for no more than 28 days, or 'permanent' transfers, or they may be effected in circumstances of 'emergency/immediate threat'.[26]

26 The transfer decision appears to have been a decision to transfer Mr Bentley 'in line with [his] Individual Management Plan'. Under ACR 18, the 'Manager of Assessments' is required to ensure certain actions are completed prior to the prisoner transfer. The 'Manager of Assessments' under ACR 18 includes an Assistant Superintendent of the prison in question, whose responsibilities include prisoner management.

27 Mr Pierre made the transfer decision. He was the Assistant Superintendent, Prison Management, at the Prison, and thus was the Manager of Assessments for the purposes of subrule 9.1. The transfer decision thus appears to have been a decision made by Mr Pierre in accordance with ACR 18 subrule 9.1, and pursuant to s 12 of the Prisons Act.

28 For completeness, I note that the report in respect of the review of Mr Bentley's IMP dealt with 'proposed placements'.[27] The report indicated that at the time it was prepared, it was contemplated that Mr Bentley would remain at Acacia Prison for at least two years, but that he would be transferred back to the Prison after that time. In so far as Mr Bentley's placement at Acacia Prison was intended to be for more than 28 days, and did not take place in circumstances of an emergency or immediate threat, it also appears to fall within what is contemplated by a 'permanent' transfer under ACR 18. As a result, at least in relation to prisoners who are managed in accordance with an IMP, it is far from clear that there is any real distinction between a transfer 'in line with [an] IMP'[28] and a 'permanent transfer' for a 'prisoner managed via an IMP'.[29] From that perspective, the transfer decision could perhaps have been characterised as a decision made pursuant to ACR 18 subrule 9.2. However, for present purposes it is not necessary to determine that question.

29 As I have already observed, one of the decisions the subject of review in Barreto was a decision by the superintendent of Acacia Prison to activate a TOMS alert in relation to Mr Barreto.[30] Buss JA, with whom Martin CJ and Mazza JA agreed, concluded that that decision was one made by or on behalf of the superintendent of that prison, in connection with the management or supervision of the prisoner in that capacity, and was a decision conducive or adapted to the pursuit, maintenance or accomplishment of good government, good order or security within the prison.[31] It was thus a decision which fell within the power granted to a superintendent under s 36(3) of the Prisons Act.[32]

30 In the present case, the TOMS alert decision was made by Mr Pierre, the Assistant Superintendent of the Prison. It was not submitted that when Mr Pierre entered the TOMS alert he was acting on behalf of the superintendent of the Prison. Counsel for the respondent instead made two submissions about the power to enter a TOMS alert. She submitted that there was no direct legislative power under the Prisons Act to enter a TOMS Alert in respect of a prisoner. However, she submitted no direct legislative authority was required, because the maintenance of the TOMS Database was 'an administrative arrangement that occurs for the good management of the prison'.[33] She also submitted that the maintenance of the TOMS database was entirely consistent with the responsibility of every prison officer to maintain the security of the prison where he or she is ordered to serve.

31 There is no doubt that every officer, including every prison officer, has a responsibility for maintaining the security of the prison where he or she serves.[34] In addition, that responsibility expressly extends to reporting to the prison superintendent every matter which comes to his notice which may jeopardise the security of the prison or the welfare or safe custody of prisoners. In my view, the TOMS alert decision can be characterised as a decision made by Mr Pierre which is consistent with this duty.

32 I note that PD35 requires that the business processes outlined in Appendix 1 to PD35 are maintained in an efficient and timely manner.[35] Those business processes in Appendix 1 refer to 'Offender alerts'. These are required to be included on the TOMS database and staff are required to 'raise behaviour alerts on TOMS where appropriate to the offender's demeanour'.[36] Under the Prisons Act, officers (including prison officers) are required to make 'such reports and returns' to the respondent as the respondent from time to time directs.[37] Although the point was not addressed by counsel for the respondent, it may be arguable that PD35 constitutes a 'direction' of the respondent, with which prison officers are required to comply.[38] I also note that superintendents and prison service providers are to prepare and issue instructions and procedures that ensure compliance with the business process requirements set out in Appendix 1 to PD35.[39] Prison officers are required to comply with orders of the superintendent.[40] There was no evidence as to whether instructions had been issued by the superintendent of the Prison to require officers at the Prison to enter information on the TOMS database as required by PD35. Had any such instructions been issued, that may have provided a further basis for the TOMS alert decision.

33 For present purposes, it suffices to say that in my view the TOMS alert decision is properly characterised as a decision made in compliance with the duty on Mr Pierre, as a prison officer, under s 12 and s 14 of the Prisons Act to maintain the security of the Prison, and to report to the superintendent of the Prison any information which may jeopardise the security of the prison or the welfare or safe custody of prisoners. It is not necessary for present purposes to decide whether in fact PD35 constituted a direction by the respondent with which Mr Pierre was required to comply.

4. Whether a writ of certiorari is available in respect of each of the Decisions

34 Mr Bentley seeks a writ of certiorari to quash each of the Decisions. The respondent did not expressly dispute that each of the Decisions was of the kind in respect of which a writ of certiorari may lie if jurisdictional error were established. However, counsel for the respondent submitted that discretionary considerations were relevant to whether a writ of certiorari should be granted in this case if jurisdictional error were established.

35 Counsel for the respondent submitted that in view of the decision of the Court of Appeal in Barreto[41] the entry of a TOMS alert onto the TOMS database 'may be considered a decision'.[42] The meaning of that submission was not entirely clear. However, the applicant in Barreto sought declaratory relief, and as a result, it was not necessary for the Court of Appeal to give consideration to the legal effect of a decision to issue a TOMS alert in respect of a prisoner.

36 Because Mr Bentley sought relief in the form of a writ of certiorari, rather than (for example) declaratory relief, it is necessary to give consideration to the threshold question[43] of whether each Decision is one in respect of which the writ may lie.

37 In Wingfoot Australia Partners Pty Ltd v Kocak[44], the High Court observed:

The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an "apparent legal effect". An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would not be simply inutile; it would be unavailable. (footnotes omitted)

38 In my view, a writ of certiorari is not available in respect of either the removal decision or the transfer decision. To the extent that the removal decision could be said to have had any legal effect, that effect was spent as soon as Mr Bentley was transferred to Acacia Prison. And the effect of the transfer decision was spent, at the very least as soon as Mr Bentley was transferred out of Acacia Prison. (He has subsequently been returned to the Prison.)

39 Turning next to the TOMS alert decision, Mr Bentley submitted that the inclusion of a TOMS alert had significant potential ramifications for a prisoner, including that a prisoner's 'history is taken into consideration during parole'[45] and because if a prisoner is perceived to be a risk, they may be denied educational opportunities.[46]

40 Counsel for the respondent submitted that the inclusion of the TOMS alert in the present case represented no more than an administrative exercise, and the maintenance of a complete record of information in respect of a prisoner. She submitted that the entry of the TOMS alert did not have a discernible or apparent legal effect upon Mr Bentley's rights which could give rise to the grant of a writ of certiorari.

41 I note that Mr Bentley submitted that TOMS alerts were on some occasions removed from the TOMS database, which he submitted supported the inference that TOMS alerts must have some practical effect. There was evidence that on 12 August 2013, a 'Threat to Staff' TOMS alert was entered on the TOMS database in relation to Mr Bentley. However, Mr Blenkinsopp indicated that that alert had been removed because it was found to have been 'activated in error'.[47] The latter evidence is consistent with the submission of counsel for the respondent that the TOMS database simply represents a complete record of information in relation to each prisoner.

42 Leaving to one side Mr Bentley's assertions, there was no evidence before the Court which permits the conclusion that information on the TOMS database may be used, or relied upon, in relation to decisions about prisoners, such as in relation to the grant of parole. Much might depend on the nature of the information contained in the TOMS database. An entry that recorded that a prisoner had been found guilty of a prison offence would clearly stand in a very different position from an entry that recorded that a prisoner had been removed from one unit in a prison to another, or transferred from one prison to another.

43 Furthermore, Mr Bentley did not demonstrate any legal basis for how information of the kind contained in the TOMS alert in this case could be taken into account, or would be relevant, in future decisions made about him by prison authorities, or in relation to whether he should be granted parole in the future. As I have mentioned, when he instituted these proceedings, Mr Bentley was concerned about the fact that he had been denied access to a computer, and had been refused permission to undertake tertiary study. The documents in evidence in relation to those decisions[48] do not provide any basis for concluding that the TOMS alert was the reason for those decisions.

44 However, even if it is assumed that information in a TOMS alert may be relevant to decisions made by prison authorities, or others (such as in relation to parole) it is difficult to see how the information contained in the TOMS alert in the present case could be relied upon (for example) in determining whether Mr Bentley should be granted parole at some stage in the future. The TOMS alert in question indicated that Mr Bentley had been removed to Unit 1 'due to alleged threats towards a number of staff members'[49] (emphasis added). The TOMS alert itself acknowledged that the information in question was no more than an allegation, and no conclusion was expressed as to its veracity.

45 Accordingly, I am not persuaded that a writ of certiorari would lie in respect of any of the Decisions if jurisdictional error were established. It is prudent, however, to nonetheless consider the grounds of review raised by Mr Bentley.

46 In so far as his 'no evidence' ground was concerned, Mr Bentley's case is effectively that each of the Decisions was based on a finding that he had made inappropriate comments of a sexual nature about a member of staff at the Prison, when there was no evidence to support that finding. Mr Bentley submitted that the claim in this case was not based on any action he had taken, but was just a claim that he had made an inappropriate comment, for which there was no basis.[50] Mr Bentley's concern was that 'many prisoners say a lot of things about other prisoners'[51] and that such claims could be made without any foundation.

47 Mr Bentley submitted that a complaint about a prisoner which results in significant consequences (as he characterised the entry of a TOMS alert onto the TOMS database) should first be verified, so that it was 'not based on conjecture or someone's opinion of someone ... it should be based on actual behaviour'.[52] He submitted that if the complaint in this case had been investigated, the authorities would have realised that it was not based in fact. Mr Bentley submitted that no one had 'ever said they felt threatened by me, ... [or] intimidated by me, or groomed or [in] any way felt uncomfortable with me. There has never been [any] indication. I have never seen ... any reports suggesting that I have made someone feel uncomfortable.'[53]

48 As for Mr Bentley's claim that he had been denied procedural fairness, his submission was that there had not been a proper investigation to ascertain whether the information provided to Prison authorities in relation to the Incident was reliable.[54] Mr Bentley asserted that the authorities at the Prison always intended to remove him from Unit 3 and seized upon the Incident as the opportunity to do so.[55] He submitted that the prison authorities 'were out to give me a hard time, and they changed my whole IMP'.[56] Mr Bentley contended that he was not interviewed about the Incident, although he did accept that an officer spoke to him on one occasion about the Incident. Mr Bentley noted that no charge was brought against him in respect of the Incident.

6. Why the 'no evidence' ground of review fails

49 In an application for a writ of certiorari, the Court may quash a decision made by a decision maker in the exercise of a power (most commonly a statutory power) if there is an error of law on the face of the record, or if it is established that the decision maker made a jurisdictional error. In the case of a decision made in the exercise of a statutory power, a jurisdictional error will exist if the decision which was made fell outside the parameters of the decision-making power granted by the statute.

50 An administrative tribunal or decision maker will fall into jurisdictional error if it 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 to make an erroneous finding or to reach a mistaken conclusion.[57]

51 If, in the course of making a decision, an administrative tribunal or decision maker errs in making a finding of fact, that will not necessarily give rise to a jurisdictional error. The error in the factual finding may not be such as to mean that the decision falls outside the parameters of the decision making power, such as where the factual finding is merely incidental to the decision. Furthermore, a finding of fact which is wrong does not necessarily involve an error of law.[58] At common law, an erroneous finding of fact will only constitute an error of law if it is a finding of fact for which there is no evidence.[59] If there is some evidence, no matter how unconvincing, and no matter how overwhelming the evidence to the contrary may be, the orthodox approach is to treat the complaint as involving an error of fact, and not an error of law.[60]

52 The position may be slightly different if the decision-making power is conditioned on the existence of a particular fact (what is known as a jurisdictional fact). If the decision maker erroneously concludes that that jurisdictional fact exists, that will constitute a jurisdictional error.[61] However, the extent to which, and basis on which, a finding in relation to a jurisdictional fact may be reviewed is not yet settled.[62]

53 Mr Bentley's 'no evidence' ground of review fails, for two reasons.

54 First, I am not persuaded that the Decisions were based (entirely, or in part) on a finding that Mr Bentley had in fact made inappropriate comments of a sexual nature about a member of staff at the Prison. The evidence before the Court suggests that each Decision was based - either wholly, or in part - on a finding that an allegation had been made that Mr Bentley had made those comments. But no finding was made that Mr Bentley had in fact made the comments alleged.

55 Secondly, to establish an error of law in the factual finding, Mr Bentley had to show that the Decision in each case was based upon a finding of fact for which there was no evidence at all - that is, that there was no evidence that an allegation had been made to the effect that Mr Bentley had made comments of an inappropriate sexual nature about a staff member. The documents in evidence, to which I have referred above, demonstrate very clearly that an allegation of that kind had been made.

56 Counsel for the Respondent submitted that the 'no evidence' ground of review applies only to 'jurisdictional facts'.[63] The upshot of this submission was that Mr Bentley could not avail himself of the 'no evidence' ground of review because the allegations (or findings) of the conduct alleged did not constitute a precondition for the exercise of the powers in this case. There is some authority for that submission.[64] It is not entirely clear, however, whether those authorities relate to the position at common law, or whether they are confined to judicial review under the Migration Act 1958 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). It is not necessary to express a concluded view on this issue for two reasons. First, the 'no evidence' ground has not been made out. Secondly, this is not a case where the finding in respect of which there was an alleged error was a jurisdictional fact. There is nothing in s 12, s 14 or s 36(3) of the Prisons Act which suggests that the exercise of those powers is conditioned on a finding, or even of an allegation, of the commission of particular conduct by a prisoner.

7. Why the procedural fairness ground of review fails

57 When a statute confers power on the executive government to adversely affect the interests of a person or persons, the common law will usually imply into that statute, as a matter of statutory interpretation, a condition that the power be exercised with procedural fairness to that person or persons.[65] Observance of the requirement to afford procedural fairness is a condition which attaches to the statutory power and governs its exercise, so that a failure to fulfil that condition will result in an invalid exercise of power.[66] A failure to afford procedural fairness (where the requirement to do so exists) has now been recognised as giving rise to a jurisdictional error.[67]

58 At common law, the implication of a requirement to afford procedural fairness has usually been determined by reference to the character of the interest which the exercise of the power is liable to affect, and to the degree of potential impact on that interest (for example, that the exercise of the power may destroy, or prejudice, or substantially adversely affect, that interest). It has always been clear that the requirement to afford procedural fairness will not be confined to those cases where legal rights may be affected. However, what constitutes an interest which is sufficient to give rise to the requirement to afford procedural fairness is rather less clear. A requirement to afford procedural fairness will arise where a proprietary or financial interest, or the interest of a person in his or her good reputation, may be adversely affected.[68] More recently, a sufficient interest has been equated with the interest which gives an applicant standing, either at common law or in equity, to seek a public law remedy.[69]

59 There is also no doubt that the Parliament can exclude the principles of natural justice in relation to the exercise of a statutory power. Given the importance of those principles, their exclusion will require 'plain words of necessary intendment'[70] and cannot be assumed, or spelled out, from 'indirect references, uncertain inferences or equivocal considerations'[71] or from the mere presence in a statute of rights consistent with some natural justice principles.[72]

60 Mr Bentley contended that each of the Decisions was vitiated by jurisdictional error because he had been denied procedural fairness in respect of each of those Decisions. I am not persuaded that that is so.

61 There is no express requirement to afford procedural fairness in respect of the statutory powers underlying the Decisions. Furthermore, it is far from clear that the requirement to afford procedural fairness would be implied in respect of the exercise of those statutory powers.

62 Having regard to the evidence before the Court, it cannot be said that the Decisions affected Mr Bentley's legal rights. The evidence before the Court did not establish that any of the Decisions was made in the course of, or for the purpose of, disciplinary or punitive action against Mr Bentley. As Buss JA noted in Barreto,[73] a person who is sentenced to a term of imprisonment loses his or her liberty by virtue of that sentence, and the consequence of that loss of liberty is that a prisoner does not have the rights and privileges of an ordinary citizen, such as the right to decide where, or in what circumstances, he or she will reside. Accordingly, a person who is subject to a custodial sentence does not have any right to be detained at a particular prison, or in a particular unit within a prison. And for the reasons outlined at [34] - [44] above, I am not persuaded that the TOMS alert decision is one which is liable to be taken into account in relation to any future decision about Mr Bentley's parole, and in that sense, it cannot be said to affect his rights either.[74] For the same reasons, it is difficult to see how the Decisions can be said to have affected any 'interest' of Mr Bentley which would be sufficient to warrant the implication of a requirement to afford procedural fairness.

63 In any event, even if the nature of the Decisions was such that procedural fairness might ordinarily be expected to be afforded, in my view, the Prisons Act evinces an intention that the requirements of procedural fairness do not apply in respect of the exercise of the statutory powers in question in this case.

64 In Barreto, the Court of Appeal held that at least in connection with decisions involving the management or supervision of prisoners (as distinct from punitive or disciplinary action against prisoners) the power conferred by s 36(3) of the Prisons Act is not conditioned upon observance of the requirements of procedural fairness in favour of any prisoners who are or may be affected by the exercise of that power.[75] Buss JA (with whom the other members of the Court agreed) concluded that that was so because on its proper construction, the Prisons Act evinced a legislative intention that the rules of procedural fairness should not apply, at least in connection with those kinds of decisions.[76]

65 The removal decision was made by the superintendent of the Prison in the exercise of the power in s 36(3) of the Prisons Act. As I observed at paragraph [12], it appears that while Mr Bentley remained in Unit 1 he was permitted only limited contact with other prisoners. In some circumstances, the detention of a prisoner with limited (or no) contact with other prisoners will constitute a punitive or disciplinary action. However, in the present case, Mr Bentley was removed to Unit 1 while the Prison authorities investigated the Incident. It is not difficult to envisage the reasons why removing a prisoner from the general prison population (and thus from contact with potential witnesses, for example) would facilitate the conduct of an investigation. There was nothing in the circumstances of this case to suggest that the removal decision was taken for punitive or disciplinary reasons, or that it cannot properly be characterised as a decision made to maintain the good management and safe custody of the Prison. In my view, the requirements of procedural fairness did not apply to the removal decision.

66 In Barreto, the Court held that the decision to activate a TOMS alert on Mr Barreto's profile on the TOMS database was properly characterised as a decision made by the superintendent of Acacia Prison in connection with the management or supervision of Mr Barreto in his capacity as a prisoner, and was not properly characterised as punitive or disciplinary in nature.[77] Although the TOMS alert decision in the present case was not made by the superintendent of the Prison pursuant to s 36(3) of the Prisons Act, but rather by Assistant Superintendent Pierre, pursuant to his duty under s 12 and s 14 of the Prisons Act, nevertheless the same conclusion in relation to procedural fairness follows in this case. There is nothing in the facts of this case to suggest that the TOMS alert decision could properly be characterised as involving punitive or disciplinary action against Mr Bentley.

67 Finally, in my view, the requirement to afford procedural fairness has been excluded by the Prisons Act in respect of the transfer decision. As I explained at [21] - [27], the transfer decision was a decision made in accordance with ACR 18 subrule 9, in compliance with the duty on Assistant Superintendent Pierre under s 12 of the Prisons Act. In my view, the Prisons Act clearly abrogates any requirement of procedural fairness in relation to such decisions, for three reasons.

68 First, as I have already observed, a prisoner does not have a right to reside in a particular prison, and where a prisoner is placed will necessarily depend upon a variety of considerations, including considerations unrelated to the prisoner in question.

69 Secondly, as Buss JA explained in Barreto,[78] the Prisons Act contains a detailed scheme for the establishment, management, control and security of prisons, and the custody and welfare of prisoners. No procedural requirements are set out in relation to the exercise by a superintendent (or prison officers) in relation to managerial and supervisory powers under the Prisons Act that do not involve punitive or disciplinary action. The evidence did not support the conclusion that the transfer decision in this case was one which could be described as a decision of a punitive or disciplinary nature, rather than a decision a managerial or supervisory nature.

70 Thirdly, the transfer of a prisoner from one prison to another may take place in a variety of circumstances, including circumstances of emergency, or for security reasons. Such decisions may need to be made quickly in order to maintain the security and good order of a prison. That practical context suggests that it is unlikely that the Parliament intended that each prisoner should be afforded procedural fairness in respect of his or her proposed transfer to another prison.

71 For the sake of clarity, I should add that the conclusion that the Prisons Act excludes any requirement to afford procedural fairness in relation to the transfer decision does not mean that considerations relevant to an individual prisoner will be irrelevant to the transfer of that prisoner from one prison to another. A prisoner's individual needs and circumstances may be highly relevant to a decision as to whether that prisoner should be transferred. ACR 18 recognises that. But that does not preclude the conclusion that the Prisons Act manifests the intention that a prisoner need not be given the opportunity to be heard in relation to a proposed transfer, or to comment upon considerations which may be said to warrant a proposed transfer of that prisoner from one prison to another.

8. Whether the application for review was brought out of time

72 It is appropriate to mention one final issue, largely for completeness.

73 At the time the Decisions were made (in April 2012), O 56 r 11 of the Rules of the Supreme Court 1971 (WA) (RSC) prohibited the grant of an order nisi for a writ of certiorari to quash a judgment, order, conviction or other proceeding of an inferior tribunal or of a magistrate or justice, unless the application for the order nisi was made within 6 months of the challenged decision. Order 56 r 11 RSC otherwise imposed no time period within which applications for a writ of certiorari had to be made. The reference to a 'tribunal' in O 56 r 11 RSC was construed as referring to a body or officer performing a judicial or quasi-judicial function outside the regular judicial system.[79] Although there were differences of view as to whether the time limit in O 56 r 11 RSC should apply, by analogy, to bodies or officers which were not tribunals, I respectfully agree with the view that it should not.[80]

74 The Decisions in this case cannot be regarded as decisions of an inferior tribunal. They involved no adjudicative element, and did not determine Mr Bentley's rights. Consequently, at the time the Decisions were made, Mr Bentley was not subject to a time limit within which to bring an application for judicial review.

75 By the time that Mr Bentley brought his application, O 56 RSC had been significantly amended.[81] Order 56 r 2(4) RSC (as amended) provided that applications for judicial review had to be made within 6 months of the date of the decision the subject of the review, or within 6 months after the date on which the applicant became aware of that decision. Applications made outside that limitation period required the grant of leave to proceed.[82] In his application for judicial review, Mr Bentley indicated that he required leave to proceed as his application was outside the time period prescribed under O 56 RSC as in force at the date of filing.

76 The question which arises is whether Mr Bentley requires leave to proceed with his application. The Interpretation Act 1984 (WA) provides that when a written law repeals an enactment, then unless the contrary intention appears, that repealing legislation does not affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any remedy in respect thereof.[83] (Similarly, the common law position is that an amending statute should not, unless the intention to do so is clear, be given retrospective operation to deprive a person of the opportunity of instituting an action which is within time.[84]) There was nothing in the terms of O 56 RSC (as amended) which suggested that it was intended to apply so as to abridge the time within which a person is entitled to seek judicial review of a decision made prior to the enactment of O 56 RSC (as amended). Accordingly, in my view, Mr Bentley did not require leave to proceed with his application for review of the Decisions.

77 For these reasons, Mr Bentley's application for a writ of certiorari in respect of each of the Decisions should be dismissed.

[1] At one point in the hearing, Mr Bentley submitted that 'I haven't got a problem with the transfer, the way it was conducted or anything like that': ts 91 (11 February 2015). However, he subsequently confirmed that he did seek a review of the transfer decision.

[2] Barreto v McMullan [2014] WASCA 152.

[3] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014 [5].

[4] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB2.

[5] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB1.

[6] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014 [6].

[7] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB4, SPB5.

[8] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB4.

[9] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB5.

[10] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB9.

[11] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB8.

[12] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB10.

[13] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB10.

[15] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB7.

[16] Affidavit of Stephen Paul Blenkinsopp, affirmed 18 July 2014 [7].

[17] Barreto v McMullan [2014] WASCA 152 [70] (Buss JA, Martin CJ & Mazza JA agreeing).

[18] Barreto v McMullan [2014] WASCA 152 [70] (Buss JA, Martin CJ & Mazza JA agreeing).

[19] Affidavit of Stephen Paul Blenkinsopp, affirmed 18 July 2014 [3].

[20] Affidavit of Stephen Paul Blenkinsopp, affirmed 18 July 2014 [5] - [6].

[21] cf Barreto v McMullan [2014] WASCA 152 [156] (Buss JA, Martin CJ & Mazza JA agreeing) (in relation to these words in s 36(3)).

[22] Barreto v McMullan [2014] WASCA 152 [156] (Buss JA, Martin CJ & Mazza JA agreeing).

[27] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB11.

[30] The decision was referred to in paragraph 4 of the Indorsement of Claim on the Minute of Writ of Summons in that case.

[31] Barreto v McMullan [2014] WASCA 152 [167] (Buss JA, Martin CJ & Mazza JA agreeing).

[32] Barreto v McMullan [2014] WASCA 152 [157] (Buss JA, Martin CJ & Mazza JA agreeing).

[34] Prisons Act 1981 (WA) s 12, s 14.

[35] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB17, cl 3.

[36] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB17, Appendix 1.

[37] Prisons Act 1981 (WA) s 12(c).

[38] Prisons Act 1981 (WA) s 14(1)(c).

[39] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB17, cl 4.

[40] Prisons Act 1981 (WA) s 14(1)(c).

[41] Barreto v McMullan [2014] WASCA 152, esp [167] (Buss JA, Martin CJ & Mazza JA agreeing).

[42] Respondent's outline of submissions dated 21 November 2014 [16], referring to Barreto v McMullan [2014] WASCA 152, esp [167] (Buss JA, Martin CJ & Mazza JA agreeing).

[43] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [31], [40] (the Court).

[44] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [25] (the Court).

[47] Further affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014 [17].

[48] See Affidavit of Lance Graham Koyd, affirmed 30 April 2014 [27] - [42].

[49] Further Affidavit of Stephen Paul Blenkinsopp, affirmed 20 November 2014, annexure SPB7.

[57] Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 (the Court).

[58] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356 (Mason CJ, Brennan J agreeing at 365).

[59] Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [91] (Hayne, Heydon, Crennan & Kiefel JJ).

[60] See the discussion of relevant authorities in The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [139] - [194] (Edelman J); see also Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 [575] (Weinberg J); and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 155 - 156 (Glass JA, Samuels JA agreeing), 146 - 147 (Kirby P).

[61] Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531, 574 [72] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

[62] The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [139] - [194] (Edelman J); and see also Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.

[63] Respondent's outline of written submissions dated 21 November 2014 [22] - [23].

[64] SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 [47] (Madgwick J), citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 [39] (Gummow & Hayne JJ); VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388; (2005) 146 FCR 562, 565 [10] (Heerey J); VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851; (2006) 154 FCR 302, 306 [19] (Heerey J); Bell v Federal Commissioner of Taxation [2012] FCA 1042; (2012) 88 ATR 923 [84] (Gordon J).

[65] Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636, 666 [97] (Gummow, Hayne, Crennan & Bell JJ).

[66] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 258 - 259 [11] [13] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).

[67] Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531, 569 [60] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

[68] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 616 - 617, 619 (Brennan J).

[69] Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636, 659 [68] (Gummow, Hayne, Crennan & Bell JJ), referring to Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 621 (Brennan J).

[70] Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598 (Mason CJ, Deane & McHugh JJ); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 259 [14] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).

[71] Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 396 (Dixon CJ & Webb J), cited in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 259 [14] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).

[72] Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598 (Mason CJ, Deane & McHugh JJ), Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 259 [14] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).

[73] Barreto v McMullan [2014] WASCA 152 [144] (Buss JA, Martin CJ & Mazza JA agreeing), citing Re Walker [1993] 2 Qd R 345, 349 - 350 (Williams J).

[74] Cf Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 176 CLR 239.

[75] Barreto v McMullan [2014] WASCA 152, [185] (Buss JA, Martin CJ & Mazza JA agreeing).

[76] Barreto v McMullan [2014] WASCA 152, [185] - [190] (Buss JA, Martin CJ & Mazza JA agreeing).

[77] Barreto v McMullan [2014] WASCA 152 [187] (Buss JA, Martin CJ & Mazza JA agreeing).

[78] Barreto v McMullan [2014] WASCA 152 [190] (Buss JA, Martin CJ & Mazza JA agreeing).

[79] See Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129 [73] - [77] (Anderson J), [90] - [91] (Scott J); Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 [2] (Malcolm CJ), [26] - [29] (Anderson J, Wallwork & Templeman JJ agreeing).

[80] Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 [26] - [30] (Anderson J, Wallwork & Templeman JJ agreeing), cf [2] - [3] (Malcolm CJ); Re Monger; Ex parte Barminco Pty Ltd [2002] WASC 279 [25] (McLure J).

[81] By the Supreme Court Amendment Rules 2013 (WA). Order 56 RSC (as amended) was subsequently disallowed on 1 November 2013, pursuant to s 42 of the Interpretation Act 1984 (WA).

[82] Rules of the Supreme Court 1971 (WA) O 56 r 2(4).

[83] Interpretation Act 1984 (WA) s 37.

[84] Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 519 (the Court); see also Burns v Minister for Health [2012] WASCA 267; (2012) 45 WAR 276, 282 [19] (Martin CJ, Newnes JA agreeing).