FYFE v STATE OF SOUTH AUSTRALIA No. SCGRG-99-1315 [2000] SASC 84

In response to your request of the 15 April 1997, I wish to advise you that your request for a transfer to another Division is denied. I make this decision for reasons of duty of care to yourself and to the prison population in general.

As you are aware, you are currently housed in 'G' Division under a separation order, Section 36.2.c. of the Correctional Services Act 1982, which states that the order is made in the interests of the protection of other prisoners. It is not necessary for me to outline to you the reasons for its initial imposition, however I will outline the reasons for its continued imposition.

You have throughout your time in 'G' Division, made your intentions known with regard to causing injury or death to other persons including staff should you be given the opportunity to do so. Threats when made in isolation may not constitute a need to act in the form of a separation order, however when combined with your history of enacting upon those threats, it provides little discretion but to manage those threats as we currently do.

The opportunity for a recommendation to revoke your separation order, lies in a well documented and consistent demonstration of appropriate behaviour and program participation by yourself whilst in 'G' Division. This process will be monitored through local reviews, case conferences and regular case notes involving your case worker and other staff within 'G' Division. I will be kept appraised of your progress and we will continue to meet on occasions to discuss issues affecting you and your future placements.

It is fair to say that this remains her present attitude. In the course of his submissions the applicant was quite frank in conceding that, at times, his conduct had not been appropriate - he had declined to interact with professional staff and participate in certain programmes; he had, in anger and frustration, made some unfortunate threatening statements; and he had, as he put it, "spat the dummy" on occasions. However, he had made no actual move to commit violence towards anyone. In essence, he feels unduly oppressed by his separation and virtual complete isolation over a long period of time. He says, and I can readily understand, that, at times, he is overcome by the restricted and oppressive regime of G Division. The associated frustration has caused him to react by acting out his pent up resentment. He contends that the present system of weekly reports sent by his Unit Manager without any opportunity to comment on them is unfair and a denial of natural justice. As to this lastmentioned aspect I feel constrained to comment that, given the applicant's circumstances and the very long time for which he has been on separation, the present system seems both unfortunate and almost certain to produce tension counter productive to the applicant's progress. It is no real solace to him to say that he sees the reports after a determination has been made in respect of them. He is to be pardoned for thinking that, at that point, it would be somewhat futile to make any representations. The system in vogue seems inherently illogical and likely to breed or maintain unnecessary frustration and anger which is counter productive to rehabilitation. Be that as it may, I am not able to conclude that, at the present time, the approach of the prison administration has been so unfair and unreasonable as to constitute an abuse of power warranting the interference of this Court. The applicant himself concedes that, in various respects, he has not been co-operative - although my impression is that there has been a distinct improvement in his conduct in more recent times. That has been reflected in gradually extended privileges granted to him. I am particularly mindful of the medical evidence which has been placed before me and the professional opinions expressed that unrespited, long term, continuous exposure to the somewhat stifling environment of G Division could well lead to the development of an adverse psychiatric condition which currently does not exist - even given the presently diagnosed personality disorder and periodic episodes of deep depression which the applicant experiences. Clearly his continued retention in a very restricted regime will tend to inhibit his mental health progress and may precipitate periods of intense frustration resulting in mood swings and very aggressive outbursts. Furthermore, I accept the applicant's contention that the G Division regime does not appear ever to have been designed for very long term inmates and it is, inherently, oppressive, doubly punitive and potentially counter productive to his rehabilitation and return to mainstream prison environments. It must be recognised that the prison management is, in a very real sense, faced with a catch 22 situation. On the one hand it clearly has a duty of care to other prisoners, in light of the applicant's past conduct and more recent threats expressed by him. On the other, the applicant's emotional and mental health state seems not likely to improve dramatically unless he is progressively released into a more general prison environment. Perhaps more importantly for present purposes, it seems to me that the practical effect of what is occurring is that, because no other prison environment seen to be appropriate is available, the applicant is being subjected to an abnormally harsh, almost punitive prison regime (for what are, essentially, non disciplinary reasons) on a very long term basis - when there is no suggestion of recent violent behaviour or serious misconduct on his part. It is, in a very real sense, an abnormally hard, almost a penal, environment (in the disciplinary sense) which has now persisted for a very long time. A stage may well be reached at which it could well be said that it is an abuse of power to continue to subject him to it, provided that he co-operates as reasonably required of him. He is not, in effect, to be punished twice for the one offence. However, having said that, it is clear that the General Manager is doing her utmost, progressively, to relax the applicant's environment as and when his conduct warrants such action. It is true that, in a practical sense, the future lies very much in the applicant's hands. I have already pointed out that he is mistaken in his belief that he is predestined to remain in G Division until at least late 2000. That is not the decision of the prisoner assessment committee, or any other body. Once he appreciates that fact it may become easier for him to see the obvious way forward. It seems to me that, on the evidence, that the true attitude of prison management is that, if the applicant is genuinely prepared to co-operate by participating in programmes designed to address his personality problems; to accept the professional assistance which the authorities wish to make available to him; and, with such assistance, to controlling his understandable frustration and cease making threats - and that this continues over a reasonable space of time - then there is every possibility that a change in environment will become possible. The applicant, not unreasonably, complains that he is not clear as to precisely what programmes he is expected to undertake. In this regard I would strongly suggest that he be provided with some written intimation of precisely what is expected of him in this regard, so that his actual future conduct can be tested against a specific set of criteria which he is expected to satisfy. This would provide a stable basis for assessment of his future conduct. It would also meet his contention that the absence of such criteria can, in the long term, constitute an abuse of power, because of his inability to understand and attempt to achieve standards expected of him. The applicant is, in my opinion, a not unintelligent person. If he will only continue his recent trend towards a less confrontationist stance and meet the authorities half way, then many of his present difficulties are likely to resolve. The future is, indeed, very much up to him, given a fair and reasonable approach to his present problems. I am not satisfied that, at this point in time, a situation has arisen whereby judicial intervention can be justified, conformably with established legal principle. However, I am prepared to monitor the position in order to ensure that the applicant's rights are fully protected and all reasonable steps are taken to ensure that his continued incarceration in G Division does not amount to an abuse of his rights. If his conduct is satisfactory (as meeting reasonably established criteria as above referred to) on a sustained basis and his situation is not improved in proper recognition of that fact, then my attitude may well change. I reiterate, I accept that the G Division regime was not, on its face, ever intended to accommodate extremely long term inmates on a non disciplinary basis; and its environment is scarcely suited to that purpose. The point made by the applicant as to quality of life is not without force. On the other hand, he cannot expect the protection of the Court if he is not prepared to do his part to earn it."

Section 24 of the Correctional Services Act 1982 ("the Act") places prisoners in the custody of the Chief Executive Officer who is given the absolute discretion:

"(a) to place any particular prisoner or prisoner of a particular class in such part of the correctional institution; and (b) to establish in respect of any particular prisoner, or prisoner of a particular class, or in respect of prisoners placed in any particular part of the correctional institution, such a regime for work, recreation, contact with other prisoners or any other aspect of the day-to-day life of prisoners, as from time to time seems expedient to the Chief Executive Officer."

In the context of keeping the applicant separately and apart from all other prisoners, the discretion of the Chief Executive Officer is circumscribed by s 36 of the Act which is in the following terms:

Power to keep a prisoner apart from all other prisoners 36. (1) A prisoner must not be kept separately and apart from all other prisoners in the correctional institution except in accordance with this section. (2) The Chief Executive Officer may direct that a prisoner be kept separately and apart from all other prisoners in the correctional institution if the Chief Executive Officer is of the opinion that it is desirable to do so- (a) in the interests of the proper administration of justice where an investigation is to be conducted into an offence alleged to have been committed by the prisoner; or (b) in the interests of the safety or welfare of the prisoner; or (c) in the interests of protecting other prisoners; or (d) in the interests of security or good order within the correctional institution. (3) A direction given pursuant to subsection (2)(a) has effect for such period, not exceeding 30 days, as may be specified in the direction. (4) Any other direction under subsection (2) has effect until revoked by the Chief Executive Officer. (5) A direction cannot be given more than once pursuant to subsection (2)(a) in respect of the incident giving rise to the alleged offence. (6) A direction given under subsection (2)- (a) must be in writing; and (b) may be revoked at any time by the Chief Executive Officer. (7) A copy of a direction given under subsection (2) must be served personally on the prisoner within 24 hours of being so given. (8) Despite the fact that a direction under subsection (2) is in force in respect of a prisoner, the Chief Executive Officer may permit the prisoner to have contact with such other prisoners on such occasions as the Chief Executive Officer thinks fit. (9) The Chief Executive Officer must, as soon as reasonably practicable after giving a direction under subsection (2), furnish the Minister with a report of the circumstances in which the direction was given. (10) On receiving a report under subsection (9), the Minister may review the matter and may confirm or revoke the direction."

The applicant's written outline of submissions summarises the case for the applicant as follows:

"6. The decision to continue the detention of the plaintiff in G Division for a period of over 5 years is unreasonable having regard to the following factors:- (1) the length of time during which the plaintiff has been detained in G Division. (2) the living conditions which exist in G Division (3) the continuation of the decision to separate the plaintiff by placing undue emphasis on periods when he has been uncommunicative with prison staff (4) the apparent reliance of the decision maker (Ms Bordoni) upon alleged demonstrated hostility towards prison staff and management as a basis for continuing a direction for separation pursuant to Section 36(2)(c) (5) the reliance by the decision maker upon aspects of the plaintiff's behaviour classified by her as threatening, hostile, uncommunicative or unco-operative given the psychological evidence that the plaintiff's environment can play an important role in both the potential for violence as well as the likelihood of successful behavioural change ("MBFI" p.1.8). (6) the apparent reliance of the decision maker (Ms Bordoni) upon the incidents of 21st April 1999 and 16th August 1999 as grounds for continuing to detain the plaintiff in G Division despite the absence of any notice, enquiry or hearing pursuant to Section 42A, Section 43 or Section 44 of the Correctional Services Act 1982 (7) the decision maker's insistence that the direction for separation will not be revoked unless the plaintiff demonstrates appropriate and satisfactory conduct on a sustained basis in a situation where there is no evidence that such a criterion is applied to any other prisoner in G Division (8) the continuation of the plaintiff's detention in G Division in the face of a psychological report commissioned by the defendant which said that "it is arguable that environmental management, which might include a change of environment, is a more efficacious means of achieving behavioural change than individual clinical treatment" ('MBFI' at p 25.9) (9) the continuation of the plaintiff's detention in G Division in the face of medical opinion that a lengthy period of such detention is likely to lead to a deterioration in his psychiatric health (10) the inability of prison administration to provide the plaintiff with any or any adequate periods of respite from the G Division regime (11) the failure to provide regular respite opportunities for the plaintiff until proceedings were issued in the present action (12) the decision maker's assertion (Bordoni para 17) that respite within Yatala presented an unacceptable risk throughout much of 1999 in spite of the facts that: (a) respite periods take place in the B Division yard at a time when no other prisoners are present; and (b) at least 3 prison officers are present at any time that the plaintiff moves out of G Division (13) the use of alleged deficiencies in the plaintiff's behaviour not only as a basis for the continuation of his separation but also for the reduction of various privileges enjoyed by the plaintiff (14)´ the apparent lack of any or any adequate planning by the defendant for the provision of any alternative suitable prison accommodation for prisoners such as the plaintiff despite recommendations to that effect by the Coroner (15) the absence of any evidence that the decision maker has sought or received continuing psychiatric, psychological or medical assessments of the effect upon the plaintiff's medical and psychiatric health of the continued detention in G Division, particularly as to whether there has been any change in the state of the plaintiff's health over the last 12 months."

For all the reasons identified by Olsson J, it is obviously undesirable that the applicant or any other person be held in G Division for a long period of time. However, the Chief Executive Officer is charged with the responsibility of the management of the prison which includes a responsibility for the welfare of not only the applicant, but all other prisoners within the system. Parliament has recognised through s 36 of the Act both the undesirability of keeping a prisoner separately and apart from all other prisoners, but also the reality that sometimes the interests identified in s 36(2), including the interest of protecting other prisoners, require that a particular prisoner be kept separately and apart from all other prisoners. Ms Bordoni appreciates that G Division is an oppressive environment for the applicant and is conscious of the undesirability of detaining any prisoner in G Division on a long term basis. In her view, however, the applicant's conduct has been such that separation from other prisoners by detention in G Division is still required, but is subject to constant review.

The background explained in the judgment of Olsson J, together with subsequent events and a psychological assessment of the applicant, combine to highlight the difficulties faced in the management of the applicant. On occasions, his behaviour is erratic. An example of that erratic behaviour is provided in a letter of 9 November 1998 which the applicant wrote to Ms Bordoni not long after the judgment had been delivered by Olsson J. He advised, "with regret", that any placement "outside of the G Division unit, is now inappropriate and ill-advised." He wrote that his "hand had been forced" for a number of reasons and stated that he was prepared to behave in an acceptable manner while he remained in G Division. He said that while he remained in G Division there would be no risk to any person provided he was treated fairly. He added:

"However, I cannot provide you with the same undertaking when I am moved out of the G Division complex because of the above-mentioned reasons. It comes with great regret that it had to come to this point, you forced me into this decision, a decision I do not take lightly, however, it is the only option left available to me as I believe I have done the right thing for a long time now and I am still be (sic) punished or politicised for my actions."

I accept the evidence that Ms Bordoni has given careful consideration to ways of addressing the various matters raised by Olsson J in his judgment. His Honour suggested that the applicant be advised in writing of precisely what was expected of him. In a letter of 27 November 1998 to the applicant from Mr Stephen Mann, the Manager of G Division, six points were specified. Unfortunately, the applicant has failed to respond appropriately. The behaviour which has been of concern to Ms Bordoni included two occasions in August 1999 when the applicant threatened to kill a prison officer.

At the instigation of Ms Bordoni, a psychological assessment of the applicant was undertaken by Mr Mitchell Byrne of the University of South Australia and Mr Douglas Boer of the Edith Cowan University ("the Byrne report"). They commenced the programme on 14 January, 1999 and completed their report on 29 March 1999. They conducted a ten week period of detailed testing, interviewing and theoretical examination with the primary goal of determining the applicant's "level of risk of future violent behaviour." I have also received two reports from Mr White, a registered psychologist, who has identified what he perceives are certain shortcomings in the Byrne report. Mr White stated in his report, however, that the Byrne report represents an exceptionally scholarly and detailed appraisal of a prisoner."

In summary, the Byrne report arrived at the following conclusions:

"Summary of Findings and Recommendations The primary goal of this assessment was to determine Mr Fyfe's level of risk of future violent behaviour. Mr Fyfe was assessed as presenting a high probability of acting violently in the future, particularly if moved from G Division into a more mainstream prison environment. This assessment was consistent across tests indicating a high level of confidence in the conclusion. Furthermore, comparison with test data held on file indicated little change in his overall level of risk during an approximately 3 year period. To this was added interview and archival data which was also consistent with test results. This 'qualitative' data informed the assessment of dangerousness, suggesting that Mr Fyfe should be considered a very dangerous man. Treatment needs focused on personality variables. According to published studies and reviews, treatment of people like Mr Fyfe is unlikely to achieve change which would support a lowering of their risk status. It may be that such persons are best 'managed' in environments which pose a lesser risk of future violence. Where treatment is considered, comprehensive unit based programs augmented by intensive individual therapy may provide the best outcomes. However it was noted that Mr Fyfe has demonstrated both poor treatment commitment and poor treatment outcome in the past. The tests also indicated some effects of the G Division environment upon Mr Fyfe and it was observed that the environment can play an important role in both the potential for violence as well as the likelihood of successful behavioural change. Changes in Mr Fyfe's environment or indeed of his environment may be appropriate. However any such change must recognise the real threat Mr Fyfe currently poses to others and there is a responsibility to ensure the safety of other persons when considering changes in Mr Fyfe's environment. At present, it is not recommended that Mr Fyfe be moved from G Division. A range of management options exist and it is recommended that the feasibility of these be examined with the view of either seeking to assist Mr Fyfe to change or of seeking to change Mr Fyfe's environment such that there is a lowering of the risk of future violence."

It is unnecessary to canvass the report in detail. There was ample material to justify the conclusions. The applicant acknowledged to the authors that the manager of the prison was justified in holding the opinion that he was a "high risk". He believed that he was unsafe outside G Division. He also acknowledged that his anxiety was likely to fuel further violence. The Byrne report observed a theme developed by the applicant that he "considered himself a victim in the correctional system" and that violence was perhaps his only available strategy to pursue an "acceptable outcome". The applicant was unwilling to explain to the authors why he committed the offences of murder and attempted murder other than by stating that he had a reason for committing those offences. The report stated:

"Regarding future violence, Mr Fyfe stated that if he is going to do something then he will do it properly and will not get punished for an attempt. He was angry with himself that he was punished for an attempted murder and did not succeed with his goal (Sutton). He stated that he knew the consequences for his (planned) murder of Tilley but that he did not expect to be in G for so long or to "have to put up with the bull shit I've had to put up with."

At that time the applicant was seeking a transfer to Tasmania. The applicant's attitude to resorting to violence is well demonstrated in the following passage from the report:

"If not transferred to Tasmania, however, Mr Fyfe states that he "will do what has to be done. I will do what I have to do to prove my point and I will make my point before they do." Mr Fyfe is not optimistic that things will work in Adelaide but believes they will in Tasmania. He wants to get back to his family (grandparents) and "have the family life I missed over the years." Mr Fyfe stated that if they (prison authorities) were not prepared to send him to Tasmania then they will pay, "on principle and out of spite."

"When institutional violence is evaluated specifically, the trend described above is more pronounced. Mr Fyfe's violence is clearly instrumental; violence as a tool or means to an end. He has clear goals yet considers himself more provoked (in interview this was described more by way of justification of his behaviour). Mr Fyfe is even less aroused during institutional violence and the severity of his violence is more extreme. An analysis of individual reports of institutional violence (N=6) indicates that 3 (50%) were clearly instrumental and that both his murder conviction and attempted murder conviction related to acts where there was considerable planning, rehearsal and goal-directedness. On both occasions Mr Fyfe described little arousal and nor (sic) accelerants or disinhibitors (substance abuse or psychosis). A review of all reported incidences indicated that instrumentality tended to be associated with greater severity of violence and confirmed an overall trend for Mr Fyfe to use violence as a method of goal attainment. In terms of future risk, this would suggest that Mr Fyfe will continue to use violence to gain a valued outcome and in interview he expressed this intention clearly."

The Byrne report concluded the changes in the current accommodation of the applicant were "ill advised unless either part of a defined treatment programme or subsequent to an effective treatment programme." They offered a number of suggestions for possible treatment while recognising the probable difficulties associated with attempting to introduce such programmes. A number of management options were also discussed. Not surprisingly, Ms Bordoni has taken the report into account in her management of the circumstances in which the applicant is detained. I reject the suggestion that Ms Bordoni is now placing too much emphasis on that report.

In thorough and very helpful submissions, Mr Mead who appeared for the applicant drew attention to the prohibitive terms in which s 36 is expressed. He emphasised the need for this Court to review the opinion and decision of Ms Bordoni and the reasons she has given for arriving at that opinion and decision particularly carefully (for ease of reference I will refer to this issue as a review of the decision by Ms Bordoni). There can be no question that it is the duty of this Court to conduct a careful review and to closely scrutinise the reasons advanced for the decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the Court's jurisdiction must be carefully observed and the Court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the Court is not familiar and which it is difficult for the Court to understand or fully appreciate from the comfort of the court surroundings.

Relying on the principle of unreasonableness enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, counsel for the applicant argued that the decision to keep the applicant separately and apart from all other prisoners was and remains so unreasonable that no reasonable decision-maker could have arrived at that decision or could continue to maintain that position. In the context of the role of the Court when that principle is invoked, the following remarks of Mason J in Minister for Aboriginal Affairs and Anor v Peako-Wallsend Ltd & Ors [1986] HCA 40; (1985) 162 CLR 24 at 40 should be borne in mind:

"The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: ... It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene MR in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. ... The test has been embraced in both Australia and England: ... However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied: ... But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice: ... So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits."

The observations of Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu [1998] HCA 38; (1999) 162 ALR 577 at 587 are also applicable:

"Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence."

The formation of the opinion that it is desirable to keep the applicant separately and apart from all other prisoners and the decision to give a direction to that effect are different from the decision to detain the applicant in G Division. The distinction should be borne in mind. The latter decision is a decision as to the means by which effect can be given to the antecedent decision that the applicant be kept separately and apart from all other prisoners. Considerable emphasis has been given to the harshness of the conditions in G Division and of the regime put in place with respect to the applicant. Those matters do not directly impinge upon the issue as to whether it is unreasonable in the legal sense to have arrived at the decision to keep the applicant separately and apart from all other prisoners. That is not to say, however, that in extreme circumstances the practical effect of the antecedent decision might not be such that no reasonable person could arrive at the antecedent decision. For example, if the decision was made in the knowledge that it would have the effect of requiring a prisoner to be kept in inhumane conditions, a court might conclude that the decision was unreasonable in the legal sense. However, such an extreme point has not been reached and I am not to be taken as suggesting that the conditions in G Division are inhumane. My purpose in making reference to that possibility is to demonstrate how, in extreme circumstances, the practical effect of a decision to keep a prisoner separately and apart from all other prisoners might be of relevance in arriving at an opinion as to whether it is desirable that a prisoner be kept separately and apart. As I pointed out to counsel for the respondent, it is within the control of the respondent by the allocation of appropriate resources to ensure that, while the applicant is to be kept separately and apart from all other prisoners, appropriate respite from the harsh conditions of G Division is provided. In making those observations I recognise that it is inappropriate for this Court to adopt a supervisory role otherwise than within recognised limits or to embark upon a consideration of the merits of decisions of the manager as to the appropriate respite. Such decisions are within the expertise and experience of the manager and will be influenced by numerous factors, not the least of which will be the behaviour of the applicant. It must be recognised, however, that if the applicant would otherwise qualify for respite, it is not an adequate answer to a failure to provide the respite, whether within the Yatala Labour Prison or at another institution, to say that the otherwise appropriate respite cannot be given because of inadequate resources. Priorities might have to be adjusted or additional resources found.

The decision to separate the applicant from all others prisoners and to achieve the separation by detaining him in G Division was made in January, 1995. The direction for such separation and detention was not reduced to writing until 10 May 1996. The failure to do so was a breach of the requirement specified in s 36(6)(a). However, Olsson J found that the failure did not invalidate the applicant's separation.

Section 36(6)(b) provides that the direction that a prisoner be kept separately and apart from all other prisoners "may be revoked at any time by the Chief Executive Officer". There is no express duty in s 36 to keep the direction and the question of its continuance or revocation under review. It is unnecessary to explore the precise nature of the duty and whether it should be expressed as a duty to consider revocation or to consider whether it continues to be desirable to keep him separately and apart from all other prisoners. For present purposes the respondent agreed that I should proceed on the basis that s 36 imposed upon Ms Bordoni as the delegate of the Chief Executive Officer an ongoing obligation to consider whether she remained of the opinion that it was desirable to keep the applicant separately and apart from all other prisoners.

Section 23 of the Act requires the Chief Executive Officer to assess each prisoner and their circumstances and to determine whether or not the prisoner should be transferred to another prison at regular intervals of not more than one year. Pursuant to s 23(2) the Minister has established a committee for the purpose of assisting the Chief Executive Officer in carrying out such assessments. A number of criteria to which the Chief Executive Officer must have regard are specified in s 23(3). The prisoner is given the opportunity of making representations in person to the Chief Executive Officer or to a committee established pursuant to subs(2). Olsson J observed that the applicant had availed himself of the opportunity of making representations to the committee in relation to a review conducted in March 1997. His Honour observed that no subsequent review had been made. A review was conducted in February, 1999 and another is intended to occur during March 2000. While those responsible for the management of the applicant should ensure that reviews are conducted in accordance with s 23, in the particular circumstances of this matter I do not regard the failure to carry out a review within the prescribed period of one year as of any significance to the issues that I am required to determine. Ms Bordoni and others have had the separation and general management of the applicant under constant review during the relevant period.

The critical question is whether the applicant has established that the decision to keep him separately and apart from all other prisoners was and continues to be unreasonable in the sense previously discussed. Counsel for the applicant dealt with each of the 15 matters which are set out earlier in these reasons. He suggested that these matters were not just concerned with the merits of the decision, but were indicia of unreasonableness and demonstrated consideration of extraneous material such that the opinion was unreasonable and a nullity. He relied upon the factors individually and in their cumulative effect.

It is unnecessary for me to deal with each of the 15 points individually. Having considered those matters, both individually and in their cumulative effect, I am satisfied that the applicant has failed to make out his case. I should, however, comment on the reliance by Ms Bordoni upon security breaches which the applicant maintained involved a denial of natural justice.

On 21 April 1999 an iron bar was located inside a mattress in an area in which the applicant worked and studied and to which he had greater access than other prisoners. According to the affidavit of Ms Bordoni, the search that led to the discovery of the bar was conducted in response to intelligence that implicated the applicant. Subsequently, another prisoner has sworn an affidavit in which he stated that he placed the bar in the mattress. On 25 April 1999 a hobby knife with two blades and an exposed razor blade were located behind a washing machine within the laundry area, an area which was occupied solely by the applicant.

Both matters were considered to be serious security breaches. The applicant's employment duties in the laundry area were removed on 27 April 1999. As a consequence additional privileges were also lost. The applicant was not charged with any offence or breach of regulations in connection with those incidents. They were used, however, as a basis for management decisions which involved, in essence, the removal of certain privileges. The applicant was not given an opportunity to be heard before those privileges were withdrawn.

This Court is not being asked to review the decision to withdraw the privileges without giving the applicant the opportunity of being heard as to whether he was responsible for the security breaches and, if responsible, what consequences should ensue. Issues of statutory interpretation and difficult practical questions related to prison management would be involved if this Court was asked to review that decision. The affidavit of Ms Bordoni is primarily directed to explaining why the privileges were removed. It is not entirely clear how much weight was placed on those breaches in arriving at the decision that the separation of the applicant from other prisoners should continue, although some weight was obviously given to those incidents in that context.

The incidents in question occurred nearly 12 months ago. They have been overtaken by subsequent events, including threats in August 1999 to kill prison officers. Even if the criticism of the failure to give the applicant the opportunity to respond to the allegations is well founded, in my opinion it now falls well short of establishing any basis for interference by this Court on the current application.

Submissions in this matter were completed on 16 March 2000. During the course of submissions reference was made to the fact that Ms Bordoni ceased acting in the position of Manager on 12 January 2000. It was agreed that it was desirable that I consider the application on the basis that it was challenging the decision to the date of the hearing before me. In those circumstances, it was necessary for the respondent to be given the opportunity to produce further evidence concerning the continuation of the separation from January to March 2000. The hearing was adjourned for that purpose.

Notwithstanding the adjournment, in order to provide the applicant with a prompt response to his application, at the conclusion of the submissions on 16 March 2000 I indicated my view that the appellant had failed to make out his case for the period to 12 January 2000. I also invited the respondent to consider producing at the resumed hearing a suggested programme for the future management of the applicant. In putting forward that suggestion I had in mind recent evidence from medical practitioners that the applicant has formed a close association with a female person which has resulted in a significant change in his attitude. I also emphasised that the applicant's future cooperation and good behaviour were essential ingredients if progress was to be achieved.

I have now been provided with evidence concerning the period from January to March 2000. Mr Derek Taylor has been the Acting General Manager of the Yatala Labour Prison since 6 March 2000. The Chief Executive has delegated the powers contained in s 36 of the Act to Mr Taylor. In an affidavit dated 27 March 2000, Mr Taylor has deposed to giving consideration to the judgment of Olsson J and to issues raised during the course of the current proceedings. Mr Taylor is presently reviewing the regime and management of the plaintiff and intends that a new management plan will be implemented by the end of April, 2000. In addition, changes to G Division in order to address the needs of prisoners detained in G Division for lengthy periods are under consideration.

In all the circumstances, I am satisfied that the applicant has failed to make out his case to the date of this judgment. The limits of this Court's jurisdiction are well known. I am satisfied that judicial intervention cannot be justified at this time consistent with established legal principles. I am also satisfied that prison management remains willing to consider and implement changes in the applicant's environment and regime if, over a reasonable period of time, the applicant is prepared to cooperate by desisting from his uncooperative and aggressive behaviour and by participating in programmes aimed at addressing his personality problems. In view of his previous violent behaviour and the assessment of Mr Byrne and Mr Boer, the applicant cannot expect the authorities to allow him into contact with other prisoners until he has demonstrated on a reasonably sustained basis that it is safe to allow him such contact.