PRACTICE AND PROCEDURE - application for judicial officer to recuse himself - "doctrine of necessity" - application dismissed.

Evidence Act 1995 (Cth), s 136

Human Rights Act 2004 (ACT), ss 10, 19, 28, 30, 40, 40A, 40C

Corrections Management Act 2007 (ACT), preamble, chs 6, 10, ss 7, 9, 12, 53, 73, 78, 154, 184

Crimes (Sentence Administration) Act 2005 (ACT), s 293

Court Procedures Rules 2006 (ACT), r 3553

Corrections Management (Prisoner Employment) Policy 2009 (ACT)

Corrections Management (Human Rights) Policy 2007 (ACT)

Corrections Management (Management of Prisoners in the Crisis Support Unit) Policy 2009 (ACT)

International Covenant on Civil and Political Rights, 999 UNTS 171 (opened for signature 19/12/66, entered into force 23/3/76), art 10

European Convention for the Protection of Human Rights and Fundamental Freedoms [1950] COETS 5 (opened for signature 04/11/50, entered into force 3/9/53), art 3

African Charter of Human and People's Rights, 21 ILM 58 (opened for signature 27/6/81, entered into force 21/10/86)

Arab Charter of Human Rights, 12 IHRR 893 (opened for signature 22/5/04, entered into force 15/3/08) arts 5, 20

European Social Charter [1961] COETS 35 (opened for signature 18/10/61, entered into force 26/2/65), pt 1.1

Standard Minimum Rules for the Treatment of Prisoners 1955 (First UN Congress on the Prevention of Crime and Treatment of Offenders), arts 58, 59, 71

Towards an ACT Human Rights Act (ACT Bill of Rights Consultative Committee, 2003)

Lippke R L, "Prison Labour: It's Control Facilitation and Terms" (1998) 17 Law and Philosophy 533

Antieau C J, The Practice of Extraordinary Remedies (Oceana Publications, 1987)

Rotman E, "Criminal Law: Do Criminal Offenders have a Constitutional Right of Rehabilitation?" (1986) 77 J Crim L and Criminology 1023

Wacando v the Commonwealth [1981] HCA 60; (1981) 148 CLR 1

Re Credit Tribunal; ex parte General Motors Acceptance Corporation of Australia [1977] HCA 34; (1977) 137 CLR 545

Kioa v Minister for Immigration & Ethnic Affairs (1984) 55 ALR 669

Municipal Officers Association of Australia v Lancaster (1981) 37 ALR 559

Russo & Anor v Aiello [2003] HCA 53; (2003) 215 CLR 643

Attorney General New South Wales v Quinn (1990) 170 CLR 1

Smith and Ors v The Inner London Education Authority [1978] 1 All ER 411

Eastman v Besanko & Anor [2009] ACTCA 23

R v Secretary of State for the Home Department; Ex parte Daly [2001] UKHL 26; [2001] 2 WLR 1622

Murray v Ireland [1988] IR 532

Wolff v McDonnell [1974] USSC 157; (1973) 418 US 539

Hakimi v Legal Aid Commission (ACT) (2009) 3 ACTLR 127

Enea v Italy [2009] ECHR 74912/01

Kudla v Poland [2000] ECHR 30210/96; [2002] 35 EHRR 11

Napier; re Petition for Judicial Review [2004] ScotCS 100

Cenbauer v Croatia [2006] ECHR 73786/01; (2007) 44 EHRR 49

Sarban v Moldova [2005] ECHR 3456/05

Paladi v Moldova [2009] ECHR 39806/05; (2008) 45 EHRR 15

Nyambirai v National Social Security Authority [1996] 1 LRC 64

De Freitas v Permanent Secretary of the Ministry for Agriculture, Fisheries, Lands and Housing [1998] UKPC 30; [1999] 1 AC 69

Heaney v Ireland [1994] 3 IR 593

State (Richardson) v the Governor of Mount Joy Prison [1980] 1 LRM 82

Walker v Strathclyde Regional Council [1986] SLT 523

Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499

Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618

Films Rover International Ltd v Canon Film Sales Ltd [1986] 3 All ER 772

Tritec Technology Pty Ltd and Anor v Gordon and Anor [2000] HCA 12; (2000) 48 IPR 52

Patrick Stevedores Operative No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors [1998] HCA 30; (1998) 195 CLR 1

Eastman v The Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318

Willing v Hollobone (No. 2) (1975) 11 SASR 118

Laws v The Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70

AND: CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY

1. Noting that the defendant has made an open offer that Mr Eastman be provided with the opportunity to participate in a Curriculum Development Pilot Project, as set out in Annexures C and D to the affidavit of Mr Mark Stephen Bartlett affirmed 5 January 2010, and as further explained and developed in Exhibit 3, the Application for interim relief is dismissed and costs are reserved.

2. The Defendant provide written submissions in support of the request for documents dated 12 January 2010 on or before 4 February 2010.

3. The Plaintiff give his evidence-in-chief orally on 22 February 2010.

4. The Defendant file and serve any affidavits on which it proposes to rely on or before 22 March 2010.

5. The matter be listed for directions at 9.30 am on 7 March 2010.

1. David Harold Eastman was on 3 November 1995 convicted of the murder of Assistant Commissioner Colin Winchester and on 10 January 1995 sentenced to life imprisonment. Because at that time the Australian Capital Territory had no prison, apart from some remand and juvenile detention facilities, he was initially detained in the New South Wales prison system. In 2003, the Territory resolved to construct a prison, the Alexander Maconochie Centre (the AMC), which opened in 2008 but because of certain delays did not admit its first prisoners until 2009. On 29 May 2009 Mr Eastman was admitted to the AMC.

2. Mr Eastman commenced these proceedings on 8 December 2009, initially seeking a prerogative writ to issue, "requiring the Respondent to accord to the Applicant forthwith his right of full-time, meaningful employment while detained as a life prisoner at the Alexander Maconochie Centre, Hume, ACT 2609". After the resolution of some technical issues at the initial hearing, an Originating Application was filed seeking the following orders:

(1) An order that the defendant forthwith provide the plaintiff with full-time employment as a basic literary tutor, while he is detained as a prisoner at the Alexander Maconochie Centre, Hume, ACT 2620; and

(2) any other orders that the Court considers appropriate.

I take no account of the different post codes quoted in the two orders.

3. The matter came before me on 18 December 2009. It was accepted that all that could be granted, if warranted, was interim relief, and Mr Eastman sought, on that basis, order 1 as sought in the Originating Application.

4. Initially Mr Eastman outlined his case. He articulated carefully the statutory provisions on which he relied. At the request of the Defendant, these were then incorporated into the Originating Application. He read an affidavit made on 10 December 2009. In addressing me to outline his case he made a number of factual assertions, a not uncommon occurrence in the case of litigants in person. I required him to put that material on affidavit, which he ultimately did. As the proceedings could not be completed that afternoon, I adjourned until 22 December 2009. I gave certain directions for the preparation of that further hearing.

5. On the resumed hearing the additional affidavit of Mr Eastman, made on 20 December 2009, was read. No objection was taken to any paragraph of either affidavit and Mr Eastman, as deponent, was not cross-examined on them. Mr Eastman also tendered a copy of the "Prisoner Handbook" of the AMC and of the Corrections Management (Prisoner Employment) Policy 2009 (ACT), a notifiable instrument (NI2009-149) (Prisoner Employment Policy).

6. The Defendant tendered a bundle of documents which were received as an exhibit. These included some policies, recommendations for management of Mr Eastman and other documents. These other documents included what were described as "case notes" which were apparently diary notes of interactions between Mr Eastman and various custodial and other officers of the AMC, as well as records of disciplinary actions against Mr Eastman.

7. Mr P Walker, who appeared for the Defendant, the Chief Executive Officer of the Department of Justice and Community Safety, also tendered a document which appears to be a minute from the Acting Principal Psychologist at the AMC. I refer to it below. Although accepted, it was inadvertently not marked and I now admit it as Exhibit 2. I also received a notifiable instrument which was the Corrections Management (Human Rights) Policy 2007 (ACT) (NI2007-440) (Human Rights Policy) that will be formally admitted as Exhibit C.

8. The proceedings could not then be completed and I adjourned until 6 January 2010. I said, in doing so:

What I propose is to adjourn this matter to 6 January. On that day I expect that there will be information before me about the discussions that will have been held between [Mr Eastman] and the officers of the AMC and a specific proposal for suitable employment for you, and I expect to be in a position then to make any appropriate orders in relation to that.

9. The proceedings resumed on 6 January 2010 and the Defendant read an affidavit of Mr Mark Steven Bartlett, the Prison Employment Services Manager of the AMC, made on 5 January 2010. Mr Eastman objected to references in the affidavit to inappropriate behaviour, principally because he said he was unable to challenge such references. Ultimately I admitted the passages to which objection had been taken, but, in two cases, made a direction under s 136 of the Evidence Act 1995 (Cth) limiting the use which could be made of the two passages, namely that they could not found a finding that Mr Eastman had engaged in inappropriate behaviour. Mr Bartlett was cross-examined extensively. Not all the cross-examination was entirely relevant to the matters I have to decide. I then heard submissions from both parties and reserved my decision.

10. Although the original application sought the issue of a prerogative writ, though these are no longer issued by the Court (r 3553 of the Court Procedures Rules 2006 (ACT) (the Court Procedures Rules)), it became clear that what Mr Eastman was seeking were appropriate orders under s 40C of the Human Rights Act 2004 (ACT) (the Human Rights Act) which empowers the Court, where it finds that a public authority has acted in a way that is incompatible with a human right, or, in making a decision, has failed to give proper consideration to a relevant human right, to "grant the relief it considers appropriate except damages".

11. The claim was based on s 19(1) of the Human Rights Act which provides:

Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

It is to be noted that this section is based on art 10 of the International Covenant on Civil and Political Rights, 999 UNTS 171 (opened for signature 19/12/66, entered into force 23/3/76). It is to be noted that art 10.3 of that Covenant includes the following sentence expressly not reproduced in the Human Rights Act:

The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.

The report of the ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act (2003) did not, so far as I could see, explain this omission.

12. Mr Eastman's claim did not rely on or refer to the right of protection from cruel, inhuman or degrading treatment (s 10(1) of the Human Rights Act) though curiously Mr Walker, who had requested express particularisation of the provisions on which Mr Eastman relied, and which did not include this provision, did address it to some extent.

13. Mr Eastman also relied on provisions of the Corrections Management Act 2007 (ACT) (the Corrections Act). These, he said, meant that he had certain enforceable rights, namely, rights to:

(2) conditions in detention which promote his health and wellbeing; and

(3) timely medical treatment where necessary, particularly in urgent circumstances.

14. He referred to pars 2 and 4(c) of the preamble to the Corrections Act and ss 7(c) and (d), 9(a), (b), (e) and (f), 12(1)(j) and 53(1)(c) of the Corrections Act, s 293(2)(g) of the Crimes (Sentence Administration) Act 2005 (ACT), the Prisoner Employment Policy and the Human Rights Policy, as well as his "rehabilitation plan". Later he sought to add s 78 of the Corrections Act to this list of provisions.

15. Mr Eastman initially sought an interlocutory order for reasons set out below, pending a final hearing. The application was opposed.

16. As this was an interlocutory hearing, I did not have the full and complete evidence on which I could make final findings of fact. Indeed, many issues were raised on which, on the evidence before me, I could not make findings at all. I take the following as the facts for this application.

17. Mr Eastman was admitted to the AMC on 29 May 2009. At that stage there was no "case management plan" in existence for Mr Eastman, as contemplated by s 78 of the Corrections Act. There may have been at draft, or at least some material preparatory to such a plan.

18. On 1 June 2009, Mr Eastman made an application for employment. Employment, which involves work for which a prisoner is paid and so does not include voluntary activities of a similar kind, is administered by Mr Bartlett and his staff. As at this time there were limited opportunities for Mr Eastman because of his location, namely in the Management Unit, and his security classification. He had been doing cleaning and that employment was continued. Because employment is a voluntary choice for a prisoner, in the sense that prisoners are not forced to undertake employment, it appears that an application needs to be made for it. In this it differs from the position in British prisons where prisoners are required to work. As a result, the British jurisprudence is not always relevant or helpful on this issue.

19. On 4 August 2009 Mr Eastman applied for a "clerical job (assisting with preparation of prisoners' wages)". He noted in his application that it had been suggested to him by Deputy Superintendent Johnson that he may be interested in such a job. Mr Bartlett informed Mr Eastman that there was no current vacancy for such a job, but that his name would be added to "the waiting list for suitable vacancies". In his oral evidence Mr Bartlett noted that at this time there were no clerical positions available at the AMC for Mr Eastman, as there were no vacancies and his location prevented it at that time. Subsequent to that time two other prisoners, at least one of whom was employed in the kitchen, expressed an interest in clerical work in the Education area. I deal with that more fully below.

20. On 27 August 2009, Mr Eastman made a further application for employment, confirming his continued interest. The response the next day was that there was a vacancy in "Industries as general services" and that he could commence the next working day, which he did. This work was constructing bird traps for Indian myna birds.

21. Shortly thereafter on 16 September 2009 a meeting of the Sentence Planning Group was held to try and "sign off" on Mr Eastman's "rehabilitation plan". This document, which appears to be the "individual management plan" referred to in s 78(1) of the Corrections Act and the "case management plan" referred to in s 78(2) and elsewhere in that Act, I shall refer to as the "case management plan". Mr Eastman advised at the meeting that he had some changes he wished to be made to the final draft that was presented to the meeting. None of these suggestions were relevant to the present issues. The record of the meeting then records: "Gary Monaghan to make the required changes to the rehabilitation plan. Mr Eastman is to be advised when this has been completed".

22. A document was annexed to Mr Eastman's affidavit of 10 December 2009 which he described as the "rehabilitation plan", that is, the case management plan. The copy attached does not bear any signature or date. It seems, however, that it accurately sets out the terms of his case management plan. There did not seem to be any formal provisions in the Corrections Act or any regulations or policies that I could find that required a signature or date for the validity of the plan. I deal with this issue further below. The section of the plan that dealt with employment was as follows:

Mr Eastman has an extensive history of employment in the public service at both state and commonwealth levels. He appears to be well educated and, apart form [sic] with operational or management issues arising, it appears he would adapt to most of the employment options available in the AMC. Given his work history and his level of education, he may be more suited to employment where he could utilise his education levels rather than his physical attributes.

Mr Eastman is currently employed in a variety of Industries employment where he is currently building bird traps. Although he claims that this job can sometimes be boring, he is appreciative of the opportunity to participate in employment. It is anticipated that should the opportunities arise, Mr Eastman would apply for any clerical position that may become available.

23. Mr Eastman also drew my attention to the section headed "Mental Health issues" and, in particular, the sentence which reads:

It appears that Mr Eastman responds best to diversion therapy in that his stress and anxiety levels are reduced when he is kept busy with employment and education.

24. The day after this meeting a member of AMC staff completed a prison "Statement of Employment" form which gave him a good reference as follows:

Participates well in Industries, has shown initiative and interest in the skills and work activities. Communicates well with staff and peers.

25. She recommended he receive a pay increase to Level 2 wages, and this was approved. Mr Bartlett, in doing so, also noted that he would "consider change of employment when suitable vacancy arises", demonstrating that Mr Eastman's wish for clerical work had not been forgotten.

26. On 8 October 2009, Mr Eastman made a further application seeking an early interview to discuss employment opportunities. That meeting was held on 9 October 2009. It was noted that he had been continuously paid, even though in the Management Unit, and was expected to resume his Industries position a few days later.

27. On 9 October 2009 Mr Eastman completed a further application form, this time for a position as English tutor. He said:

I have had experience as an English tutor before coming to jail. I would be very interested to help any persons who want to improve their written or spoken English. I am willing to assist prisoners of any category.

28. The response was as follows: "No current requirement. Discussed with Education Manager and Offender Services Manager". When that discussion occurred is not entirely clear. The enquiries made by Mr Bartlett, as recorded above, may have triggered some thought and ideas in the AMC management.

29. On 23 October 2009, two other prisoners were given clerical positions in the Education area of the AMC. These prisoners had been placed on the waiting list for clerical positions after Mr Eastman's name had been placed on it. Mr Bartlett described the process where those jobs were created as follows. His initial evidence was:

[MR EASTMAN] Whether there were positions then in existence or not on 1 June in Education there was nothing to stop you recommending that such a position be created for me if it were apparent to you at that stage that that sort of work would be suitable for me and I would be suitable for it, was there?---No.

No. In fact, that was how prisoner H came to get his position. There was no position as a clerical assistant in existence. He asked for it and, as a result of his requests, a position was eventually created and the position was filled with [prisoner H], wasn't it?---Yes.

And that was also how [prisoner V], who's currently employed at the Educational Centre, the position which he currently fills did not previously exist. He made requests and lobbied to be permitted to do such work. A position was then created for him and he filled the position. That's correct, isn't it?---Correct.

30. Mr Bartlett also noted that there were "association issues" between these two prisoners and Mr Eastman, and that they could not work together with him, though they could work with each other. There was no dispute about that. Later Mr Bartlett expanded on the process. His evidence was that he cannot create jobs:

... it works the other way round; it's actually the Education and the Offender Services Manager that say: 'We would like some assistance in this area, would this be a suitable position to run as an employment base? These are some of the duties that they could be doing, these are the timeframes, these are the different status and classification prisoners that would be in the area in that point of time', and all of that needs to be factored into the mix. And if the assessment is then made that yes, this is a viable option, let's trial that, then it's a matter of looking at suitable candidates.

[prisoner V] was employed in the kitchen, he did express an interest to me that he would like to transfer his employment from the kitchen to an education type area if such a position was to become available. Subsequently, and in conversations with the Offender Services Manager and the Education Manager, a position was identified that may well become available and we then further explored that idea, we decided that we could actually have two administration positions in there. They were then filled with people who had already expressed an interest in working in those areas and they were deemed to be suitable. They had no association issues with each other, which was one of the key things for those people being in those areas.

32. Mr Eastman was obviously disaffected by what he saw as discriminatory treatment where the other two prisoners, whose names were placed on the waiting list for clerical jobs after his, obtained jobs prior to him. This is understandable, but on the evidence before me I cannot say that it was unfair discrimination. The association issues are prima facie a reasonable explanation for the approach taken.

33. In any event, Mr Eastman had sought on 25 October 2009 a further interview with Mr Bartlett and that occurred apparently on 27 October 2009. Mr Bartlett's staff member records:

1. Investigating options of tutoring english [sic] to suitable prisoners in either Education or Management Unit.

34. Mr Eastman was, during this period, under the care of Dr Len Lambeth, forensic psychiatrist. On 5 November 2009, he interviewed Mr Eastman and recorded in the progress notes:

Mr Eastman was reviewed by Karen Onley and Dr Lambeth. He is presenting with a moderately depressed mood. He finds no joy in anything at present and continues to be in fear of other inmates.

He is desperate to get a job within the centre - preferably 5 days per week. He feels he is bored and describes his mental health as deteriorating. An additional problem is that Christmas is approaching - an anniversary time when he has in the past attempted suicide.

He does not have a serious mental illness at present, but the indications are that he is vulnerable to developing a depression which could have serious consequences.

In the interests of preventing a deterioration in his mental health I recommend to the relevant authorities that, if possible, Mr Eastman be given some meaningful work which should assist in overcoming boredom and preventing further deterioration.

35. Clearly the employment situation was of concern, and particularly to Dr Lambeth because of the effect on Mr Eastman's mental health, but he was seeing a psychiatrist regularly and this concern cannot trump all other issues. For example, it would not justify placing him in a situation where his safety was in jeopardy, or that of another prisoner's safety was in jeopardy.

36. Mr Eastman's affidavit then deposed to various conversations about the question of him being appointed as a remedial language tutor. These conversations were not put to Mr Bartlett in cross-examination. It does not appear to me that they bear significantly on the matter.

37. Mr Eastman's affidavit deposes next to a series of meetings. In the first place, he met with a custodial officer who he said advised him that he would look into the issue of the tutoring position. That meeting is referred to by Mr Eastman as having taken place on 8 November 2009, a Sunday. The next day the Offender Services Manager (OSM) met with Mr Eastman. Mr Eastman's affidavit does not refer to this meeting, but it is referred to and recorded in the case notes. At that meeting, the OSM agreed to explore a proposal for Mr Eastman to work in the Education area, the OSM suggesting a curriculum development position with the possibility of some tutoring, while Mr Eastman clearly wished to engage only in tutoring. In any event, the OSM agreed to bring Mr Eastman some sample lesson plans for his information and provide the material necessary for curriculum development. It seems to me that this was a proposal that was being developed in exactly the same way as that which ultimately led to the employment of prisoners H and V as educational assistants; an opportunity which had not initially been available or identified was then identified and a job later created when further thought was given to it.

38. A further meeting took place on 12 November 2009, when the custodial officer and the OSM met with Mr Eastman. The case notes and Mr Eastman's affidavit gave a somewhat different account of the meeting. In the case notes, the OSM records that she gave Mr Eastman some example lesson plans and explained that a language, literacy and numeracy package would have to be developed before any lessons could be delivered. Mr Eastman's affidavit deposes that the OSM was reluctant but was overruled by the custodial officer, which would be somewhat surprising.

39. In any event, Mr Eastman was given a room at the Education facility and worked there from 10.30 am to 12 noon and 1.00 pm to 5.30 pm. In that time he produced six lesson plans which were annexed to his affidavit. While they showed language development and a clear understanding of some of the complexities of the English language, they were primarily lists of words showing the phonetic and spelling challenges of English. They did not seem to me to be much more than a reasonably intelligent and thoughtful university graduate could have compiled. They lacked detail of some resources, such as the text to which students were to be asked to read. In any event, they no doubt could form the basis of a developed curriculum resource.

40. On 13 November 2009, a further meeting was held with the OSM and a different custodial officer. The OSM had prepared a duty statement and roster for the position she proposed. Mr Eastman presented a document headed "Suggested Timetable for Teacher's Assistant Position". Mr Eastman's suggestion was apparently for a full-time position five days a week. The OSM's position was apparently for all day on Monday, Tuesday and Thursday and for the morning only on Wednesday. An argument developed over this and the meeting ended. The case notes recorded that the OSM left the room when Mr Eastman became aggrieved. It further records that, as she did so, he shouted that a copy of the roster should be left, as he would accept it. The OSM is recorded as saying that she would not work with someone who spoke to her as Mr Eastman did.

41. Mr Eastman says in his affidavit that he challenged the roster because he knew that the reasons given for there being no work on Friday were lies. This, he says, was taken incorrectly as a rejection of the offer, and that it was then withdrawn. On this application I cannot determine which version is correct, but it is clear on either version that the offer was withdrawn. The impression from both versions, however, is that Mr Eastman did not reject it. Indeed, it appears that, subject to the hours dispute being resolved, he appears to have been likely to accept it.

42. On 16 November 2009, Mr Eastman submitted a request directly to the Acting Superintendent to be given the position of basic literacy tutor.

43. On 17 November 2009, Dr Lambeth saw Mr Eastman again. He records in the progress notes that he was having thoughts of self-harm as a result, in part, of the inability to obtain the job he was seeking, but also because he felt helpless and hopeless. "[H]e remains paranoid about the motives of those around him" and "he usually becomes more depressed at this time of year". Dr Lambeth recommended he be admitted to the Crisis Support Unit (the CSU). The "plan" proposed was:

He should be admitted to the CSU and placed on 30 min obs. He may be able to be removed from this once the immediate stress has settled - certainly a meaningful job is the best management for him if deterioration in his mental state is to be prevented.

44. Mr Eastman was admitted to the CSU. The Corrections Management (Management of Prisoners in the Crisis Support Unit) Policy 2009 (ACT) (NI2009/135) describes the CSU as being:

used to accommodate prisoners who have engaged in suicidal or self-harm behaviour or who have been assessed as being 'at risk' ...

The CSU is not designed to accommodate prisoners on a long term basis. The CSU is to be used to house prisoners who may be going through an acute psychological episode.

45. Clearly this meant that there was a degree of urgency and seriousness about Mr Eastman's position, at least at that stage.

46. Dr Eldridge, also of Corrections Health, wrote on the same day to the Acting Superintendent:

Given that mental health and physical health are interdependent, I support Mr Eastman's endeavours to seek work which would be stimulating for him and worthwhile for AMC.

47. Dr Lambeth saw Mr Eastman again on 24 November and 1 December 2009 and recommended that he remain in the CSU. He reiterated his recommendation that: "If at all possible, he be given work which he finds meaningful and satisfying (his definition of this involving him teaching literacy and numeracy)." I pause to note that no lesson plans for numeracy teaching had been prepared.

48. When the hearing of this application resumed on 6 January 2009, Mr Eastman informed me that he was no longer in the CSU. The urgency of the situation had, accordingly, somewhat abated.

49. The case notes in the tender bundle of the Defendant included, as noted above, those for 1 November to 21 December 2009 only. They did not disclose any case notes for an earlier time. They disclosed a number of discipline matters, including 13 instances of abusive language, of which four were shown as "investigated and proven" or "proven", two of misuse of intercom, six of disruptive behaviour, including one shown as "investigated and proven". In addition, one report was of "notably good behaviour" and the report of Mr Bartlett's associate of Mr Eastman's behaviour while working in Industries is also set out above.

50. Mr Bartlett's evidence included that Mr Eastman had, except for about a week, been continuously employed at the AMC, though this was mostly in cleaning work which Mr Eastman described as a sinecure. Mr Bartlett explained that, at least initially, that was the only work available to Mr Eastman because of his accommodation, security rating and association issues. Mr Bartlett also noted in his affidavit that behaviour was a factor that had to be taken into account when considering what work was available or appropriate. Mr Bartlett also annexed details of a proposal for a Curriculum Development Trustee Pilot Project (the Pilot Project) at the Education facility of the AMC. It seems to be the same project offered to Mr Eastman on 13 November 2009. Mr Eastman now describes it as a "sham". I shall deal with that issue below.

51. The situation was not completely clear. The Pilot Project was not apparently strictly employment under Mr Bartlett's control. I understood, however, that it was to be paid and would be available virtually immediately.

52. The Defendant also tendered a letter from the Acting Principal Psychologist, Manager CSU and Team Leader, Therapeutic Programs to the Acting Superintendent. It appeared that Mr Eastman bore the psychologist an animus. He said to me:

I'm saying that he's not competent to give an opinion, an expert opinion, if he has not assessed or not been therapeutically involved with a particular prisoner. And I was simply explaining how it came about that he was not involved. He's not involved because I frankly don't trust him. I've had experience before that he lies. He is not independent, he is an employee of the Department of Corrective Services and he is subject to direction by the Superintendent who is his superior.

53. The report referred to observations made of Mr Eastman over "significant periods of time" and having "been present for others' formal assessment interviews" and having access to documents on the Corrective Services database. He reported that Mr Eastman had earlier described horticulture and cleaning as meaningful work. He noted that the status of Mr Eastman as being at risk of self-harm was incompatible with unsupervised work. That has somewhat changed now that Mr Eastman is no longer in the CSU. He also expressed reservations about Mr Eastman's suitability for one-to-one tutoring for people with poor literacy. He noted that such people are often vulnerable and sensitive to criticism. He noted that Mr Eastman regularly abuses other prisoners in a way that was offensive and degrading. He believed that there would be risks in allowing Mr Eastman unsupervised contact with vulnerable prisoners. He also reported that Mr Eastman has a reputation for manipulation, and that there was a risk he would manipulate those he was tutoring. There were other matters in the report not calling for comment here.

54. In summary, Mr Eastman submitted that he had rights to what he described as "suitable" employment. He submitted that a tutoring position was the only suitable employment available and that there were no reasons why he should not be given it forthwith. Not to do so would, he submitted, interfere with his rights which he had under the Human Rights Act. These arose out of s 19 of that Act and, depending on the formulation one wished to put on it, either gave content to that right or were what might be called subsidiary rights encompassed within the s 19 right. These "rights" were a right to rehabilitation, a right to conditions in detention that promote health and wellbeing, and a right to timely medical treatment when necessary, particularly in urgent circumstances. As noted above, he did not rely on the rights in s 10(1)(b), nor did he formulate his claim as a right to work. There does not seem to be a recognised right of prisoners to work, though it has been cogently argued for by R L Lippke in "Prison Labour: It's Control Facilitation and Terms" (1998) 17 Law and Philosophy 533.

55. Mr Eastman relied heavily on the terms of the Corrections Act. The preamble to that Act proudly refers to the Human Rights Act and avers that the criminal justice system should respect and protect all human rights under that Act and international law. It also refers to the management of offenders contributing to the maintenance of a safe, just and democratic society, particularly by promoting rehabilitation of offenders. He further referred to a number of operative provisions of the Act which usually mandate action by using the verb "must" in the provision. He relied, too, on the objects of the Act which include "ensuring that detainees are treated in a decent, humane and just way" and "promoting the rehabilitation of offenders and their reintegration into society".

56. I need only pause here to say that both the preamble and an objects clause are interpretative devices: they are not operative in themselves and do not create rights, duties or obligations. Indeed, they often play a subordinate role in the interpretation of statutes, especially where the words of the statute are clear: Wacando v the Commonwealth [1981] HCA 60; (1981) 148 CLR 1 (at 15-16 and 23); Re Credit Tribunal; ex parte General Motors Acceptance Corporation of Australia [1977] HCA 34; (1977) 137 CLR 545 (at 552). These provisions cannot extend the meaning of the substantive provisions of the Act if their plain meaning is narrower than the words of the preamble or the objects section: Kioa v Minister for Immigration & Ethnic Affairs (1984) 55 ALR 669 (at 680).

57. Further, when construing an Act the objects clause does not alone represent the objects of the legislation, which must be gleaned from the whole Act, including the objects clause: Municipal Officers Association of Australia v Lancaster (1981) 37 ALR 559 (at 579). An objects section is probably of more use and creates greater weight, however, than a preamble: Russo & Anor v Aiello [2003] HCA 53; (2003) 215 CLR 643 (at 645).

58. Mr Eastman then referred to a number of sections of the Corrections Act. They placed obligations on the Chief Executive:

(1) to protect the human rights of detainees in correctional centres by ensuring access to suitable health services and health facilities, s 12(1)(j);

(2) to ensure that conditions in detention promote the health and wellbeing of detainees, s 53(1)(c);

(3) to arrange for a case management plan for each detainee as soon as practicable after their admission, s 73;

(4) to maintain the case management plan which must:

(b) be based on an assessment of the needs, capacities and disposition of the detainee, and

(c) outline how a sentenced detainee is to be prepared for lawful release and reintegration into society, s 78.

I note here that Mr Eastman did not refer to it, but an important limitation on the s 78 obligation is under s 78(2)(c) which refers to the plan being "consistent with the resources available to the chief executive to manage the detainee".

59. Mr Eastman also referred to s 293 of the Crimes (Sentence Administration) Act 2005 (ACT) which referred to the consideration by the Sentence Administration Board of applications for persons such as Mr Eastman sentenced to life imprisonment for release on licence, and noted that the Board was required to consider an offender's participation in activities while serving the term of imprisonment. I note, however, that in the Act "activity" is defined so as not to include employment. It "includes education, counselling, personal development and treatment activities and programs".

60. Finally, Mr Eastman referred to s 154 of the Corrections Act. It defined the word "privilege" and, in particular, excluded anything that was "for [ch 10]" an "entitlement." Mr Eastman referred to an example given for the definition which stated that a privilege was "participating in activities other than those forming part of the detainee's case management plan". Mr Eastman submitted that this meant that anything in the case management plan was thereupon an entitlement and, by extension, a right. It is worth noting here that in one sense this does not help Mr Eastman for the definition of "activity" I quoted above applies also to the Corrections Act, so the employment part of the case management plan does not, by this definition, become an entitlement.

61. Mr Eastman had also relied on the fact that he had made a number of applications for employment. Indeed, the first was just a few days after his admission to the AMC. It certainly cannot be said that he did not show an interest in and a willingness to work. That is substantially to his credit. The question is, however, the extent to which he can choose the work and prescribe the conditions under which it is done.

62. The work offered in Mr Bartlett's affidavit, the Pilot Program, was described by Mr Eastman as a "sham". He submitted that:

(1) because it was the first substantive item mentioned in the list of duties it included as the first priority research (which he claimed to have already done), placing importance on developing lesson plans over actual teaching;

(2) there was, in his view, the possibility of it being a full-time position and the assertion by the OSM and others that it could not be so were wrong; and

(3) one of the tasks he did not understand, namely, "managing one's own learning", was included in it.

63. Mr Eastman's attitude to the proposal was a little ambiguous. He was keen for me to know that he had not rejected it at the meeting on 13 November 2009, yet he was still forceful in his submission that it was a sham. I had, however, no real material evidence on which I could determine, were that necessary, Mr Eastman's qualifications for teaching. He certainly had a degree in economics and had provided some indeterminate amount of tutoring at, I understand, the Migrant Resource Centre of Canberra. That was all I was told.

64. It was also evident that Mr Eastman was disaffected by what he saw as unfair discrimination in prisoners H and V obtaining clerical employment before he did, even though they raised the issue after he did.

65. He was also concerned that lack of access to employment of the proposed kind would prejudice any application he may make for release on licence for, he submitted, he would not have the advantage that such opportunities would give him to put a strong case to the Sentence Administration Board.

66. Mr Walker made a number of submissions. He commenced by challenging the notion that there was a right to work possessed by prisoners which was protected by the Human Rights Act. In any event, if there was, Mr Eastman had been provided with it, he said. He could immediately access cleaning work which was available the minute he returned to the AMC. On the other hand, there was certainly no right to whatever work a prisoner fancied undertaking. Thus, even if there was a right to work, there was no right possessed by Mr Eastman to be a literacy tutor.

67. Mr Walker referred to s 10 of the Human Rights Act, as it was a common basis for asserting prisoners' rights. He submitted that both ss 10 and 19 had to be approached holistically; that is to say, if there was a right to be provided with certain tasks in order to achieve rehabilitation, then it was not merely work that had to be considered, but the whole suite of the tasks, of which employment may actually not feature in any meaningful way if the other tasks achieve the same purpose. Thus, one could be rehabilitated and not provided with work. One could be treated with dignity and respect for one's humanity and not provided with work.

68. So much might be accepted, but that is not the case here. I am not presented with a case where criminogenic programs, recreational activity or hobbies are all provided to or engaged in by Mr Eastman, such that work cannot be seen as an important part of any rehabilitation program. Mr Walker, however, was ultimately submitting that there was no argument to justify a case that Mr Eastman had a right to whatever work he considered was meaningful.

69. He next challenged Mr Eastman's reliance on provisions of the Corrections Act. He submitted that these provisions provided no right of action for Mr Eastman. They posited the decision-making power in the hands of the Chief Executive and, subject to ordinary rights to judicial review, did not permit merits review of the decisions made. He referred to two leading authorities.

70. In Attorney General New South Wales v Quinn (1990) 170 CLR 1, Brennan J said (at 37 to 38):

Some advocates of judicial intervention would encourage the courts to expand the scope and purpose of judicial review, especially to provide some check on the Executive Government which nowadays exercises enormous powers beyond the capacity of the Parliament to supervise effectively. Such advocacy is misplaced. If the courts were to assume a jurisdiction to review administrative acts or decisions which are "unfair" in the opinion of the court - not the product of procedural unfairness, but unfair on the merits - the courts would be assuming a jurisdiction to do the very thing which is to be done by the repository of an administrative power, namely, choosing among the courses of action upon which reasonable minds might differ: see Secretary of State for Education and Science v Tameside Metropolitan BC [1976] UKHL 6; [1977] AC 1014, at 1064, and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at 414-415. The absence of adequate machinery, such as an Administrative Appeals Tribunal, to review the merits of administrative acts and decisions may be lamented in the jurisdictions where the legislature has failed to provide it, but the default cannot be made good by expanding the function of the courts. The courts - above all other institutions of government - have a duty to uphold and apply the law which recognizes the autonomy of the three branches of government within their respective spheres of competence and which recognizes the legal effectiveness of the due exercise of power by the Executive Government and other repositories of administrative power. The law of judicial review cannot conflict with recognition of the legal effectiveness of the due exercise of power by the other branches of government.

If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk. The risk must be acknowledged for a reason which Frankfurter J stated in Trop v Dulles [1958] USSC 57; (1958) 356 US 86, at 119:

All power is, in Madison's phrase, 'of an encroaching nature'. ... Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.

If the courts were to postulate rules ostensibly related to limitations on administrative power but in reality calculated to open the gate into the forbidden field of the merits of its exercise, the function of the courts would be exceeded: cf R v Nat Bell Liquors Ld. [1922] 2 AC 128, at 156. If the courts were to define the content of legitimate expectations as something less than a legal right and were to protect what would be thus defined by striking down administrative acts or decisions which failed to fulfil the expectations, the courts would be truncating the powers which are naturally apt to affect those expectations. To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law. The authority of the courts and their salutary capacity judicially to review the exercise of administrative power depend in the last analysis on their fidelity to the rule of law, exhibited by the articulation of general principles.

71. To the same effect were statements of Lord Denning MR (at 415) and Geoffrey Lane LJ (at 424) in Smith and Ors v The Inner London Education Authority [1978] 1 All ER 411.

72. Thus, unless able to challenge decisions made for failures to act procedurally correctly or for Wednesbury unreasonableness, the decisions of the Chief Executive were not able to be challenged in the courts.

73. Further, he noted that in Eastman v Besanko & Anor [2009] ACTCA 23, Dowsett J said (at [5]-[7]) in remarks with which Penfold J agreed and with which Graham J expressed the same view:

It is a serious step for a court to intervene in the way in which prisoners under sentence are dealt with in a prison. Serious security and safety issues may arise. It is not an area in which courts have any real expertise or experience.

Further, there are likely to be considerable difficulties in anticipating and dealing with the conduct of other prisoners. We have no doubt that the existing orders have caused difficulties for the prison system. However we accept that the Chief Justice considered that they were justified in the circumstances.

We accept that the Court has an inherent power to ensure that the administration of justice is not unduly impeded by the way in which a prisoner is being detained. As much appears from the decision in Johnson v Eastman [2009] ACTCA 8.

74. As appears from these remarks, he submitted, there must be judicial restraint when considering giving directions which affect the internal workings of the AMC. This was an important part of recognising that the precise order now sought by Mr Eastman was a very specific one. Even if there were some kind of enforceable right to rehabilitation for incarcerated prisoners, there was not a unique road for rehabilitation which had to be followed at all costs. For the Court to make such a specific order came very close to taking that position without recognising that rehabilitation was a complex multifaceted exercise.

75. The other side of this coin was that the AMC and its Superintendent had a responsibility to all 145 or so prisoners and the Court, by making such a specific order, would risk making decisions that had an effect on the others. For example, while arguably the Court could order the AMC to provide Mr Eastman with a tutoring position, that position was an empty one unless there were prisoners who were to be tutored, and the Court could certainly not order other prisoners to be tutored by Mr Eastman. As to the other rights, Mr Walker submitted that the material before the Court showed eloquently that Mr Eastman in fact had access to the health facilities and timely treatment.

76. With respect to the case management plan, Mr Walker submitted that the issues raised by Mr Eastman were irrelevant to any issue before the Court. Even were there to have been breaches of ss 73 or 78 of the Corrections Act, they were neither justiciable nor relevant to whether Mr Eastman was presently entitled to an order that the Defendant provide him with a position as a tutor. In fact, Mr Walker submitted that the present situation was closely aligned to the case management plan which referred to "opportunities", and that he would be "more suited" to certain employment, rather than mandating certain kinds of employment.

77. Finally, Mr Walker pointed out that s 154 of the Corrections Act had to be construed in the light of the place it held in the Act. It was preliminary to s 184 which defined an administrative penalty to include the withdrawal of a privilege for up to 180 days when imposed in disciplinary proceedings. It merely meant that entitlements could not be so withdrawn. Section 154 made it clear that certain matters could not be so withdrawn. They were what were termed in the Act as "entitlements" "for [ch 10]". These entitlements were found principally in ch 6 and included matters such as access to food and drink, clothing, sleeping areas, communication, and so on, regarded as minimum standards in a correctional centre and therefore appropriately called entitlements. As noted above, participation in educational training is an entitlement but work is not.

78. This is, of course, an interlocutory application. That means that neither party has adduced all the evidence that will ultimately be necessary for the proceedings. Mr Eastman as Applicant has at least to adduce sufficient evidence to justify the court taking the extraordinary step of making orders before all the evidence has been adduced.

79. So far as any prerogative relief is concerned, which may or may not be available in respect of the alleged breaches of the Corrections Act, there is no interlocutory relief available. Historically, procedurally and conceptually interlocutory relief in the nature of a prerogative writ is like damages simply unavailable at this stage. Even were I to be persuaded that an order in the nature of mandamus were likely to be granted, all that I could traditionally have ordered would be an order nisi for the writ (see Antieau C J, The Practice of Extraordinary Remedies (Oceana Publications, 1987) Vol 1 (at 458)).

80. I do not see that the abolition of the power to order a writ to issue changes the unavailability of an interim prerogative order. Of course interlocutory relief, such as an injunction for the ordinary interlocutory purposes of preserving the status quo or preventing irreparable harm that cannot be satisfactorily met by an award of damages, may be granted in aid of what might be shown to be a strong case for prerogative relief. This however has not been the focus of the application. It is clear from the conduct of it that Mr Eastman is seeking vindication of his claimed right through s 40C of the Human Rights Act. Thus, it is to that source of jurisdiction that I turn my attention.

81. It is important in considering the application of the Human Rights Act to prisoners such as Mr Eastman to understand the common law context. This has been well set out by Lord Bingham of Cornhill in R v Secretary of State for the Home Department; Ex parte Daly [2001] UKHL 26; [2001] 2 WLR 1622 where (at [5]) his Lordship said:

Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights.

82. It is also worth citing what fell from Costello J in Murray v Ireland [1988] IR 532, in a passage cited many times, especially in the Republic and Northern Ireland where history and circumstances have led to many cases about prisoners' rights. His Honour said:

When the State lawfully exercises the power to deprive a citizen of his constitutional right to liberty many consequences result, including the deprivation of liberty to exercise many other constitutionally protected rights, which prisoners must accept. Those rights which may be exercised by a prisoner are those:

(a) which do not depend on the continuance of his personal liberty (so a prisoner cannot exercise his constitutional right to earn a livelihood); or

(b) which are compatible with the reasonable requirements of the place in which he is imprisoned or, to put it another way, do not impose unreasonable demands on it.

See also Wolff v McDonnell [1974] USSC 157; (1973) 418 US 539.

83. I set out in Hakimi v Legal Aid Commission (ACT) (2009) 3 ACTLR 127 (at 137) seven questions that need to be addressed when seeking relief under s 40C of the Human Rights Act. They are:

1. What is the act or decision which is the subject of challenge? One has to bear in mind that, as defined in the Human Rights Act, "act" includes "fail to act".
2. What is the human right engaged and what is its content?
3. Is the entity engaged in the relevant act or making the relevant decision a public authority under ss 40 and 40A?
4. Is the relevant act or decision apparently inconsistent with, or does it impose a limitation on, the right identified or engaged?
5. Is the limitation reasonable, insofar as it can be demonstrably justified in a free and democratic society, having regard, inter alia, to the factors set out in s 28(2) of the Human Rights Act? That is, is the limitation proportionate?
6. Even if the limitation is proportionate, when the matter involves making a decision, did the decision-maker give proper consideration to the potential right?
7. Does the act or decision made under an act or instrument give either no practical discretion in relation to the act or decision, or does the act or instrument confer a discretion that cannot be interpreted under s 30 of the Human Rights Act consistently with the protected right?

84. Here, it is clear that the act is alleged to be the failure to give Mr Eastman the work that he seeks. Mr Eastman relies on the right to humane treatment when deprived of liberty, under s 19 of the Human Rights Act. I shall consider its content below. It is clear and was unchallenged that the AMC is a public authority and that the relevant employees also fall within that definition.

85. It is difficult to answer the other questions without a clear understanding of the content of the relevant right. This is made a little more difficult in this case for the right is not reproduced in many of the comparable international instruments, such as the Canadian Charter of Rights and Freedoms 1982 (see the Constitution Act 1982 (Can) Pt I), the European Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocol 11) [1950] COETS 5 (opened for signature 04/11/50, entered into force 3/9/53) (the European Convention). It is to be found in the African Charter of Human and People's Rights, 21 ILM 58 (opened for signature 27/6/81, entered into force 21/10/86) (in a slightly wider form in art 5) and the Arab Charter of Human Rights, 12 IHRR 893 (opened for signature 22/5/04, entered into force 15/3/08) (art 20(1)).

86. The European Court of Human Rights, however, has considered that art 3 of the European Convention, which is equivalent to s 10(1) of the Human Rights Act, does encompass elements of this right. In Enea v Italy [2009] ECHR 74912/01; the Court said (at [57]):

With particular reference to persons deprived of their liberty, Article 3 imposes a positive obligation on the State to ensure that a person is detained in conditions which are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and wellbeing are adequately secured by, amongst other things, providing him with the requisite medical assistance.

87. I have already noted above and repeat that I can find no authority to suggest that the content of this right includes a right to work, certainly not a right to work chosen by the prisoner. Even the European Social Charter [1961] COETS 35 (opened for signature 18/10/61, entered into force 26/2/65) refers only to "the opportunity to earn his living in an occupation freely entered upon" (Pt 1.1).

88. The Standard Minimum Rules for the Treatment of Prisoners (the Standard Minimum Rules) adopted by the First UN Congress on the Prevention of Crime and Treatment of Offenders held in Geneva in 1955 and approved by the Economic and Social Council in 1957 and later in 1977, provided in art 71:

(1) Prison labour must not be of an afflictive nature.

(2) All prisoners under sentence shall be required to work, subject to their physical and mental fitness as determined by the medical officer.

(3) Sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day.

(4) So far as possible the work provided shall be such as will maintain or increase the prisoners' ability to earn an honest living after release.

(5) Vocational training in useful trades shall be provided for prisoners able to profit thereby and especially for young prisoners.

(6) Within the limits compatible with proper vocational selection and with the requirements of institutional administration and discipline, the prisoners shall be able to choose the type of work they wish to perform.

89. The word "useful" in art 71(3) is, in my view, to be read objectively, for example, as to the prison or to the community. The classic example of digging holes and then filling them in day after day would not meet that meaning. I do not consider it means "useful" in the subjective opinion of the prisoner.

90. In effect, access to work could seem to be part of the content of treatment of prisoners in a humane way. That however is already available to Mr Eastman. He wishes to go further and have a particular kind of work. Even art 71(6), which to a small extent supports his claim, is heavily qualified by the needs, inter alia, of prison administration and discipline.

91. What comes through strongly in the international jurisprudence is that the breach of the right is not merely proved by deprivation per se. As the European Court said Kudla v Poland [2000] ECHR 30210/96; [2002] 35 EHRR 11 (at 91):

However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim.

Such a statement has also been accepted in domestic law. See for example Napier; re Petition for Judicial Review [2004] ScotCS 100 (at [62]).

92. I then turn to the claimed right of rehabilitation. In this regard, I repeat that the Human Rights Act apparently deliberately omitted Art 10(3) of the International Covenant on Civil and Political Rights which might have founded such an argument. In an article "Criminal Law: Do Criminal Offenders have a Constitutional Right of Rehabilitation?" (1986) 77 J Crim L and Criminology 1023, the author Edgardo Rotman, then a visiting researcher at Harvard Law School, said:

Although the concept of rehabilitation has profoundly shaped American sentencing and correctional policies, a constitutional right to rehabilitation remains unrecognized by the United States federal courts. In sharp contrast, a number of European nations include rehabilitation as a constitutional mandate. Further, customary international law establishes a duty of rehabilitation as expressed, for example, in the 1955 United Nations Minimum Rules for the Treatment of Prisoners and the American Convention of Human Rights. [footnotes omitted]

93. Certainly the standard minimum rules make a general provision. Thus in art 71(4) of the Standard Minimum Rules quoted above (at [88]) the aim of certain work is to assist in the prisoner's ability to earn a living outside the prison. To similar effect are arts 58 and 59 which provide:

[58] The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life.

[59] To this end, the institution should utilize all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.

94. The question, however, is again how is this to be interpreted in practice? It seems to me that the approach of the European Court to art 3 of the European Convention, within which the right must there be encompassed, particularly having regard to the extended operation of that article by the Court that I have mentioned above, is relevant. As the Court explained in Cenbauer v Croatia [2006] ECHR 73786/01; (2007) 44 EHRR 49 (at [43]-[44]):

This being said, ill-treatment must attain a minimum level of severity if it is to fall within the scope of art 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether treatment is "degrading" within the meaning of art 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with art 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of this provision.

The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured. [footnotes omitted].

95. So far as the right to medical treatment is concerned, that is easier to accept as something encompassed within the right to be treated with humanity. The European Court has again addressed this in Sarban v Moldova [2005] ECHR 3456/05, where the Court applied the same general approach as outlined above (at [94]). Indeed, the Court cited Kudla v Poland in support of its approach. See also Paladi v Moldova [2009] ECHR 39806/05; (2008) 45 EHRR 15.

96. All the cases that I have considered, however, relate to actual treatment or access to health facilities, not the conditions of the deprivation of liberty, which, in themselves, lead to states such as depression or, indeed, self-harm. These are much more problematic, since the imprisonment itself will be seen by many to be degrading, oppressive and lead to depression and, in some cases, suicide. That, as Lord Bingham of Cornhill implied, cannot be a reason to release a prisoner or make other provisions inconsistent with the regime.

97. Proportionality requires that the courts accept the right of the legislature as the democratic expression of the people to create institutions such as prisons, and permit them to operate as such. In Nyambirai v National Social Security Authority [1996] 1 LRC 64 (at 80) Gubbay CJ of the High Court of Zimbabwe explained proportionality by saying that a court should ask itself whether:

1. The legislative objective is sufficiently important to justify limiting a fundamental right;

1. The measures designed to meet the legislative objective are rationally connected to it; and

2. The means used to impair the right or freedom are no more than is necessary to accomplish the objective.

See also De Freitas v Permanent Secretary of the Ministry for Agriculture, Fisheries, Lands and Housing [1998] UKPC 30; [1999] 1 AC 69.

98. In the constitutional context of the Republic of Ireland, Costello J (at 607) described it in Heaney v Ireland [1994] 3 IR 593 as follows:

In considering whether a restriction on the exercise of the rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of the protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights ... and has recently been formulated by the Supreme Court in Canada in the following terms. The objective of the impugned provision must be of a sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionately test. They must:

(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

(c) be such that their effects on rights are proportional to the objective.

99. On an interlocutory application such as this, it is not possible or desirable for me to make final findings about these issues. I am satisfied, however, that there is an arguable case that s 19 of the Human Rights Act does require that a prisoner be given the opportunity of useful work, that there is a requirement for rehabilitative measures to be put in place, and that there is also an obligation to provide access to appropriate and timely medical treatment. These are, however, subject to the reasonable constraints of the nature of deprivation of liberty and the consequences that this brings, including issues of safety, rational use of resources, institutional administration and discipline. As Barrington J said in State (Richardson) v the Governor of Mount Joy Prison [1980] 1 LRM 82:

It appears to me that the purpose of the Prison Rules is to reconcile the need for security and good order in the prison with the prisoner's subsisting constitutional rights. Clearly the prison authorities must be allowed a wide area of discretion in the administration of the prisons in the interests of security and good order. Clearly also the Rules, being made by an executive authority established under the Constitution, must be presumed to have respected the prisoner's subsisting constitutional rights. For the same reason, they should be interpreted in a manner consistent with these rights. In the normal case it would be possible to ascertain the correlative rights and duties of the prison authorities and the prisoners respectively from the Rules themselves and would not be necessary to look any further.

100. The order Mr Eastman has sought is, however, a very specific order, the implication of which is that the failure to do what the order says breaches these rights. Were the basis for it to be made out, there is a risk that such a specific order would inhibit the internal operation of the AMC in ways that are unforeseen. I note and respectfully adopt what fell from Dowsett J in Eastman v Besanko & Anor cited above. I also note and respectfully adopt the approach of Lord Davidson in Walker v Strathclyde Regional Council [1986] SLT 523 where his Lordship said (at 527):

Counsel for the respondents criticised the form of the petitioners' plea-in-law as being too wide. If an order for specific implement is eventually pronounced - an order the breach of which would be visited with penal sanctions - it is essential for the respondents to know precisely what they have to do. In reply counsel for the petitioners submitted that it was not the business of the petitioners to specify which of the various options open to them the respondents should adopt in order to fulfil their duty under section 1. ... As at present advised, I incline to favour the petitioners' argument on this point. In my opinion the petitioners are not bound to specify how the respondents should discharge their duty but I leave open for discussion at the second hearing the question whether any order of specific implement that may be pronounced should be qualified, for example, in respect of geographical area or category of pupil involved.

101. I also note that what Mr Eastman seeks is, in effect, a mandatory injunction. Not only is it a mandatory injunction but it seeks what is, in effect, final relief. In Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, Gummow J expressed the view (at 503-4) that the principles governing the grant of a mandatory injunction are no different from those that govern the grant of a prohibitary injunction. That is to say, there must be a serious question to be tried in the principal proceedings, and the balance of convenience favours the granting of the injunction (Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 (at 622-3). His Honour did, however, accept the formulation of Hoffman J, as his Lordship then was, in Films Rover International Ltd v Canon Film Sales Ltd [1986] 3 All ER 772 (at 781) of the relevant considerations as follows:

The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction. The second point is that in cases in which there can be no dispute about the use of the term "mandatory" to describe the injunction, the same question of substance will determine whether the case is "normal" and therefore within the guideline or "exceptional" and therefore requiring special treatment. If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel a "high degree of assurance" about the plaintiff's chances of establishing his right, there cannot be any rational basis for withholding the injunction.

102. As Finkelstein J said in Tritec Technology Pty Ltd and Anor v Gordon and Anor [2000] HCA 12; (2000) 48 IPR 52 (at 63):

The cases say that the court should exercise caution before granting mandatory relief. The problem arises in the event that the court makes the wrong decision. Often the grant of mandatory relief will cause real injustice if it turns out that the order should not have been made. There is also the possibility that a mandatory order will often give the party seeking relief that which it claims in the action, thus making it unlikely that there will be a trial: see Shepherd Homes Ltd v Sandham [1971] Ch 340 at 341. Further, as Hoffmann J pointed out in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 mandatory injunctions (whether interlocutory or final) are sometimes difficult to formulate with sufficient precision to be enforceable. His Lordship also pointed out that an order requiring someone to do something is usually perceived as a more intrusive exercise of the coercive powers of the court than an order requiring that person temporarily to refrain from action. Thus it is that the court is more reluctant to make a mandatory order.

103. One must also have regard to considerations such as the need for a person subject to a mandatory order, which is enforced by contempt of court sanctions, to know precisely what he or she must do to avoid such a sanction, and where there are likely to be repeated applications for rulings on compliance, a mandatory injunction may be regarded as inappropriate (Patrick Stevedores Operative No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors [1998] HCA 30; (1998) 195 CLR 1 (at 46-7).

104. Here there are obviously issues that might arise in the context of the tutoring position. Can Mr Eastman be suspended or removed from the position for behavioural infractions? What happens if no or very few prisoners take up, or continue to take up, the offer of tutoring by Mr Eastman? What happens if professional courses are sought to be introduced instead? Thus, the Court must exercise care in what it does and the impact it may have on the parties of the orders made.

105. I note above that I had expected that between 22 December 2009 and 6 January 2010 there would have been negotiations between the parties to see whether resolution to the dispute could be reached. No comment was made on this aspect by the Defendant when the proceedings resumed on 6 January 2010. Mr Eastman stated that he had sought to speak to the Superintendent or Acting Superintendent during that time without success. While I did not have high hopes of success, I am disappointed that the Defendant appears to have ignored my invitation, though I can understand that this is not an easy matter to resolve. In a sense, the offer of the Pilot Project is a form of response, but there was no discussion about it.

106. Turning to that offer then, I note that Mr Eastman describes it as a sham. As I noted above, his attitude to it has, however, been at least ambiguous. I reject his characterisation of it as a sham. It seems to me that it is a perfectly proper job which may well fit in with the operations of the AMC and meet needs identified there.

107. Dealing with Mr Eastman's objections in turn, I find as follows:

1. The duties are not set out necessarily in order of priority, but in a sensible and logical chronological order. Behaviour as noted in the first three "dot" points of the attachment to Mr Bartlett's affidavit are sensible preconditions. Punctuality in dot point 4 is of course the beginning of the project. Chronologically one would then expect, as one finds in the progression of the "dot" points, a curriculum would first be prepared, then lesson plans, then delivery, followed by continuous self-education in the teaching role at least. The order is logical, sensible and does not betoken any aspect of a sham.
2. That there are courses being conducted or available even in the AMC does not mean that a new curriculum is not necessary. Issues of copyright, commercial considerations and confidentiality may mean that other curricula may not be available. Further, different situations such as class teaching, as opposed to one-to-one teaching, require different curricula.
3. The lesson plans prepared by Mr Eastman will not be wasted but do not, as asserted by him, provide a curriculum. There is no overall strategy for the work, nor necessary benchmarks for progress, aims and expectations of the program and the other matters that one would expect to find in a curriculum.
4. An essential characteristic of any profession is continuous learning of the skills and knowledge necessary to deliver the professional service. As noted above, I am not aware of the qualifications of Mr Eastman for the position, but it is unlikely that continuous learning would be inappropriate. The duty to undertake this does not make it a sham.
5. There may have been a delay in making this offer. There were explanations for that. They are not so unreasonable as to justify calling this offer a sham. Even were there to have been past improprieties in dealing with Mr Eastman, and there clearly appear to have been some failures, though I cannot make a final finding on any, that does not necessarily mean, in fact, that this proposal, which must stand on its merits, and which was apparently needed, in the same way as the other positions in Education were created, is a sham.

108. This morning I received a further affidavit from Mr Eastman. He has a habit of submitting further material after a hearing has been completed. See Eastman v The Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 (at 329-330 and 368). In the light of what I said about the need for closure of the proceedings, as Mr Eastman accepted just before 11.00 am on 6 January 2010, I did not read that affidavit.

109. Finally, Mr Eastman has noted that I have had dealings with him before. In the 1980s I briefly acted for him in a tenancy matter. I did not act for him during the inquest or trial or appeal to the Federal Court arising out of his being charged with murder, though from time to time we had telephone conversations during that period. When I was appointed as the Director of Public Prosecutions, I was involved with various challenges to his conviction, the High Court Appeal, the Miles Inquiry and some other proceedings. They were, however, all limited to the issue of his conviction. Mr Eastman states that when I was appointed to this Court he and I had a conversation in which I said I would not hear matters involving him. I believe that I meant that this was limited to any challenge to his conviction, but there may be good reasons for a wider disqualification. Certainly it is difficult to see why I would ordinarily be disqualified in matters involving the conditions of his imprisonment, as opposed to anything to do with, or remotely connected to, his conviction.

110. Nevertheless, whatever the future position, Mr Eastman accepted that on 18 December 2009, I was the only judge available to hear his matter. What is sometimes called the "doctrine of necessity" (Willing v Hollobone (No. 2) (1975) 11 SASR 118 (at 124)) required that I sit and hear the matter. See also Laws v The Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 (at 88).

111. Having regard to all these matters how should this application be concluded? In my view, Mr Eastman has made out an arguable case for saying that opportunities for work, especially in the context of rehabilitation and access to medical treatment and facilities in a timely basis, form part of a right protected by s 19(1) of the Human Rights Act.

112. While I make no finding about these other matters, I find that were he to be offered the Pilot Project he could not be said to have been denied any of these rights. I do not find that, were he not to be offered it, he has been denied these rights. That to me is still an open option, though I am inclined to think he has not. I would, however, require further submissions on that.

113. I find that the offer is not a sham but a genuine attempt to provide Mr Eastman with objectively useful employment. I find that Mr Eastman has not made out a case for a mandatory injunction in the terms of his originating application. Such a specific order is inappropriate in such a setting and, in any event, I do not consider that the circumstances justify it for the following reasons:

1. The offer of the Pilot Project is a reasonable position that meets any requirement of his case management plan and medical recommendations.

2. The order that he originally sought is, in effect, a final order which should not in this case be made on an interlocutory basis.

3. The proposed order is in deceptively specific terms but leaves unspecified issues, such as what if no one wishes to be tutored by him now or at some later time? What circumstances, such as discipline or prison administration, would justify the position being cancelled? How is the AMC to administer the position?

114. For similar reasons, especially the last, I do not consider that I should make a direct order about the Pilot Project. In the light of what Mr Eastman sees as delays and the absence of negotiation, however, it seems to me that the proper resolution of this application is to make the following orders:

1. Noting that the defendant has made an open offer that Mr Eastman be provided with the opportunity to participate in a Curriculum Development Pilot Project, as set out in Annexures C and D to the affidavit of Mr Mark Stephen Bartlett affirmed 5 January 2010, and as further explained and developed in Exhibit 3, the Application for interim relief is dismissed and costs are reserved.

2. The Defendant provide written submissions in support of the request for documents dated 12 January 2010 on or before 4 February 2010.

3. The Plaintiff give his evidence-in-chief orally on 22 February 2010.

4. The Defendant file and serve any affidavits on which it proposes to rely on or before 22 March 2010.

5. The matter be listed for directions at 9.30 am on 7 March 2010.

I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Counsel for the Respondent: Mr P Walker, Ms A Saunderson

Solicitor for the Respondent: ACT Government Solicitor

Dates of hearing: 18 & 22 December 2009, 6 & 7 January 2010