Hamzy v Commissioner of Corrective Services

Supreme Court of NSW|2010-12-08|Before: Johnson J

Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 Kaufman v Smith [2001] VSC 420; 124 A Crim R 259 Refrigerated Express Lines (A'Asia) Pty Limited v Australian Meat and Livestock Corp [1980] FCA 38; 44 FLR 455 Bromley v Dawes (1983) 34 SASR 73 Binse v Williams [1998] 1 VR 381 Sandery v South Australia (1987) 48 SASR 502 Farr v Corrective Services Commission (Qld) (1999) 109 A Crim R 153 Kennon v Spry [2008] HCA 56; 238 CLR 366 R v Kidman [1915] HCA 58; 20 CLR 425 Maxwell v Murphy [1957] HCA 7; 96 CLR 261 Knight v Corrections Victoria [2009] VSC 607 Martinez v Minister for Immigration and Citizenship [2009] FCA 528; 177 FCR 337 NSW Food Authority v Nutricia Australia Pty Limited [2008] NSWCCA 252; 72 NSWLR 456 The Queen v Hughes [2000] HCA 22; 202 CLR 535 Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158 Texts Cited: Matthew Groves, "Administrative Segregation of Prisoners: Powers, Principles of Review and Remedies" (1996) 20 Melb UL Rev 639

"Special Report to Parliament Pursuant to Section 31 of the Ombudsman Act Concerning the Prisons (Segregation) Amendment Bill 1992" (4 May 1992) Category: Principal judgment Parties: Bassam Hamzy (Plaintiff) Commissioner of Corrective Services (NSW) (First Defendant) State of New South Wales (Second Defendant) Representation: Mr CD Jackson (Plaintiff) Mr J Kirk; Mr SJ Free (First and Second Defendants) Yazbek Lawyers (Plaintiff) Crown Solicitor's Office (First and Second Defendants) File Number(s): 2009/297956

Judgment 1JOHNSON J : The Plaintiff, Bassam Hamzy, is serving sentences of imprisonment in the New South Wales prison system for serious crimes. During the course of that imprisonment, the Plaintiff has been detained in restricted facilities which have further confined, in a number of respects, his movements, associations, visits and other communications with persons inside and outside prison. This further detention, or deprivation of residual liberty, has been undertaken (in the main) without a segregation order being made under s.10 Crimes (Administration of Sentences) Act 1999 ( "CAS Act" ). 2The Plaintiff has brought proceedings against the Defendants, the Commissioner of Corrective Services (NSW) ( "the Commissioner" ) and the State of New South Wales, seeking injunctive, prerogative and declaratory relief, an order by way of habeas corpus and orders that the Defendants pay damages to him arising from what is said to be his unlawful detention in stricter facilities within the prison system. 3The Defendants have moved for summary dismissal of a substantial part of the Plaintiff's claim. The Defendants contend (amongst other things) that a s.10 segregation order was not, and is not, required to authorise the stricter confinement of the Plaintiff. This judgment considers and determines the summary dismissal application.

Procedural History of Proceedings 4On 11 December 2007, Bell J granted leave to the Plaintiff under s.4 Felons (Civil Proceedings) Act 1981 to commence proceedings against the Commissioner: Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469. That grant of leave related to proceedings commenced by the filing of a Summons in this Court on 16 November 2007 seeking a review of a segregated custody direction made on 22 April 2007. 5The Plaintiff's Summons was amended on a number of occasions in 2007 and 2008, until a proposed Fourth Amended Summons was served on 3 October 2008 incorporating a claim for damages for false imprisonment with respect to various past and present periods of detention. 6On 24 October 2008, the Plaintiff filed a Notice of Motion seeking leave to proceed with the claim for damages for false imprisonment. On 31 October 2008, the Commissioner filed a Notice of Motion seeking summary dismissal of the proceedings or the striking out of the claim then framed in the Third Amended Summons, and as proposed in the Fourth Amended Summons. 7On 24 April 2009, Adams J dismissed the Commissioner's Notice of Motion and granted the Plaintiff leave under the Felons (Civil Proceedings) Act 1981 to institute proceedings for false imprisonment: Sleiman v Commissioner of Corrective Services; Hamzy v Commissioner of Corrective Services [2009] NSWSC 304. At the hearing before me on 8 December 2010, the Court was informed that separate proceedings commenced by Emad Sleiman, which were also the subject of Adams J's judgment of 24 April 2009, had been discontinued. 8The primary issue raised by the Notice of Motion determined by Adams J on 24 April 2009 was whether a prisoner/detainee, properly imprisoned, could maintain a claim for damages at common law for the tort of false imprisonment. The judgment of Adams J held that it was sufficiently arguable (for the purposes of a summary dismissal application) that it was possible to maintain such a claim. The Defendants do not seek to re-agitate that issue in the current Notice of Motion. 9On 22 June 2009, the Plaintiff filed a Statement of Claim in the present proceedings. 10On 5 August 2010, the Plaintiff filed an Amended Statement of Claim which is the relevant pleading for the purpose of the present application. 11On 19 August 2010, the Defendants filed a Notice of Motion seeking summary dismissal of selected claims for relief contained in the Amended Statement of Claim, and the striking out of other parts of the Amended Statement of Claim which would also fail if the summary dismissal application was successful. 12On 19 August 2010, a Defence was filed in response to the Amended Statement of Claim.

Relevant Legal Principles on Summary Dismissal Application 13I approach the application upon the basis that a very clear case is required before summary dismissal is granted and that the power to make such an order should be sparingly employed: Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; 112 CLR 125 ( "General Steel" ) at 129; Webster v Lampard [1993] HCA 57; 177 CLR 598 at 602-3. 14The test is not whether the Plaintiff would probably fail in his action against the Defendants, it is whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard at 602. Where the court is asked to summarily dismiss a plaintiff's case, the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial and that an application to deprive him of that right will succeed only in the clearest of cases: Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937 at 944. Usually, a party is not to be denied the opportunity to place his case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. For a summary dismissal application to succeed, a high degree of certainty is required about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41; 201 CLR 552 at 575-6. 15By bringing an application for summary dismissal, the Defendants undertake the burden of establishing that there is no triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11. The General Steel test remains the primary touchstone for such an application. The mere fact (if it be the case) that a plaintiff's prospects of success might be characterised as slim would not be enough to strike out a pleading: Esanda Finance Corporation Limited v Peat Marwick Hungerfords [1997] HCA 8; 188 CLR 241 at 271; Preston v Star City Pty Limited [1999] NSWSC 1273 at [31]. The question for determination is whether a reasonable cause of action is disclosed, that is a cause of action which has some chance of success, or which could conceivably give the Plaintiff a right to relief, or which, although weak, is properly debatable and has some apparent legitimate basis if the facts upon which it is alleged to be based are made good: Preston v Star City Pty Limited at [37]. 16The present application turns upon the resolution of legal questions. The fact that, in order to deal with a summary dismissal application, it is necessary to consider at some length the applicable law, is in itself no reason for not determining what the law is and granting summary dismissal accordingly: General Steel at 130; NRMA Insurance Limited v AW Edwards Pty Limited (Court of Appeal, 11 November 1994, BC9404893, per Mahoney JA at page 13). 17It has been said that the more complex and arguable a legal point is, and the more dependent it may seem to be upon debatable factual premises, the less likely is it that summary dismissal will be appropriate: NRMA Insurance Limited v AW Edwards Pty Limited (per Kirby P at page 7). However, as will be seen, there are no areas of disputed fact which would arise in this case which may affect the resolution of the relevant legal arguments. 18The resolution of the present application involves questions of law only, and the proper construction of a number of statutory provisions. The only evidence before the Court on the application are documents explaining a number of Department of Corrective Services management and case-plan procedures with respect to the facilities in which the Plaintiff has been housed, together with a number of formal orders, warrants and other documents relating to the Plaintiff since 2002. I admitted this evidence, subject to relevance, over the objection of counsel for the Plaintiff. I am satisfied that this evidence has some relevance to the determination of this application, at least to the extent that it serves to explain a number of procedural aspects within different correctional centres, and to identify a number of formal documents relating to the Plaintiff.

Factual Background 19On 15 March 2002, the Plaintiff was sentenced to lengthy terms of imprisonment for a number of offences, including murder and conspiracy to murder: R v Hamzy [2002] NSWSC 128. The earliest date upon which the Plaintiff may be eligible for release on parole is 14 December 2023. 20On 23 July 2004, the Court of Criminal Appeal dismissed an appeal against the Plaintiff's conviction and sentence: R v Hamzy [2004] NSWCCA 243. 21Following the imposition of sentences on 15 March 2002, the Plaintiff was conveyed to the Silverwater Correctional Centre under a warrant of commitment issued pursuant to s.62 Crimes (Sentencing Procedure) Act 1999 . 22In April 2002, the Plaintiff was made the subject of a segregated custody direction and was transferred to the high-risk maintenance unit ( "HRMU" ) which at that time was part of the Goulburn Correctional Centre ( "Goulburn CC" ). The Plaintiff was detained in the HRMU, save for brief and immaterial periods when he was held at the Metropolitan Remand and Reception Centre and the Long Bay Hospital, from 19 April 2002 until 22 April 2007. This period is referred to in the Amended Statement of Claim as the "first HRMU period" . 23From March 2002 until August 2002, the Plaintiff was classified as a "Category A2" inmate for the purpose of Clause 22 Crimes (Administration of Sentences) Regulation 2001 ( "CAS Regulation" ). On or around 26 August 2002, the Plaintiff was reclassified as a "Category A1" inmate for the purpose of Clause 22. The Plaintiff continues to be classified as a "Category A1" inmate. 24On 21 April 2007, the Commissioner issued a direction to the General Manager of the HRMU that the Plaintiff be transferred to Lithgow Correctional Centre ( "Lithgow CC" ), and be placed on an inmate management program known as the Security Threat Group Intervention Program ( "STGI Program" ). On 22 April 2007, a direction was made under s.10 CAS Act that the Plaintiff be held in segregated custody and the Plaintiff was transferred to Lithgow CC. 25The segregated custody order was revoked on 2 June 2008. 26The Plaintiff was held in custody in Lithgow CC between 22 April 2007 and 6 July 2008. This period is referred to in the Amended Statement of Claim as the "STG period" . 27On 11 June 2008, a further segregated custody order was made pursuant to s.10 CAS Act and, on 6 July 2008, the Plaintiff was removed from the STGI Program at Lithgow CC and transferred to the Multi Purpose Unit at Goulburn CC. On 19 September 2008, the Plaintiff was transferred into the HRMU. The segregated custody order of 11 June 2008 was revoked on 23 September 2008. 28On 22 July 2009, the HRMU was proclaimed to be a "correctional centre" in its own right, within the meaning of the CAS Act. The proclamation took effect on the date of publication in the Government Gazette, being 24 July 2009. From that date, the HRMU has been known as the High Risk Management Correctional Centre ( "HRMCC" ). The Plaintiff remains in custody in the HRMCC. The period since 19 September 2008 is referred to in the Amended Statement of Claim as the "second HRMU period" .

The Claims for Relief in the Amended Statement of Claim 29The Amended Statement of Claim, taken with particulars provided in correspondence from the Plaintiff's solicitors on 10 May 2010 and 14 July 2010, raises the following issues for determination in the proceedings. 30The first issue is whether the Plaintiff is being held unlawfully (and has been so during certain past periods) on the basis that the CAS Act does not authorise the holding of an inmate in circumstances of effective segregation, without a formal segregation order under s.10 CAS Act being in force (and in the absence of some disciplinary order under Part 2 Division 6 CAS Act). This may be described as the "segregated custody issue" . 31The Plaintiff seeks to contend that he is being held unlawfully (and has been held unlawfully during certain past periods) as the basis of his claim for damages for false imprisonment and other relief (paragraphs 1, 2, 5, 6, 7, 8 and 9 of the "Relief Claimed" part of the Amended Statement of Claim). This type of claim has been characterised as a claim for deprivation of "residual liberty" . Apart from restrictions on associations with other inmates, the Plaintiff does not contend that his detention was unlawful because of the conditions of his imprisonment, including the period each day when he was locked in his cell. Adams J referred to the distinction between a "residual liberty" claim and a "conditions of imprisonment" claim: Sleiman v Commissioner of Corrective Services; Hamzy v Commissioner of Corrective Services at [65]-[66], with the latter type of claim not being allowed to proceed. 32The second issue is whether the Crimes (Administration of Sentences) Amendment Regulation 2009 ( "the 2009 Amendment Regulation" ) is invalid, because it is not authorised by the CAS Act and/or was made for an improper purpose. This will be described as the "ultra vires challenge to the 2009 Amendment Regulation" and relates to claims for relief in paragraph 3 of the "Relief Claimed" part of the Amended Statement of Claim. 33The third issue is whether Clauses 95A, 108A and 110(6) of the 2009 Amendment Regulation are invalid because they are inconsistent with s.10 Racial Discrimination Act 1975 (Cth) ( "RD Act" ). This will be described as the "RD Act challenge to the 2009 Amendment Regulation" and relates to the claim for relief in paragraph 4 of the "Relief Claimed" part of the Amended Statement of Claim. 34The fourth issue relates to the Plaintiff's contention that the segregated custody directions made in respect of him on 22 April 2007 and 11 June 2008 were invalid because they were made for an improper purpose and because there was a reasonable apprehension of bias on the part of the Commissioner. 35The Defendants seek the summary dismissal of the Plaintiff's claim for relief corresponding to the first and second issues listed above only. The Defendants do not seek summary dismissal in respect of the remaining issues raised. 36The Defendants submit, correctly in my view, that the two issues which are the subject of this summary dismissal application are legal in nature, depending in substance upon construction of the relevant legislation. There are no areas of disputed fact which could arise which may affect the resolution of these legal arguments.

Submissions of the Parties Submissions of the Defendants - The Segregated Custody Issue 37Mr Kirk, counsel for the Defendants, submits that the Commissioner has the care, control and management of the Plaintiff as an offender held in custody in accordance with Part 2 of the Act: s.232(1)(a1) CAS Act (see [110]). He submits that s.78A (enacted in 2009 and reproduced at [114]) makes clear that, notwithstanding Part 2 Division 2 CAS Act (ss.10-22 reproduced at [106]), an inmate may be held separately from other inmates without the need for a segregated custody order to be made in respect of that inmate. Section 79 CAS Act (see [115]) provides a detailed list of the matters in respect of which the regulations may make provision, including "the management, control, administration, supervision and inspection of correctional centres and correctional complexes" (s.79(a)) and "the classification of inmates into different categories and the separation of inmates by reference to the categories into which they have been classified" (s.79(c)). 38With respect to the first issue, described as the segregated custody issue, Mr Kirk notes the Plaintiff's contention that he is effectively being held in "segregated custody" within the meaning of the concept in Part 2 Division 2 CAS Act, but without a segregated custody direction being in force at such time. As a consequence, the Plaintiff contends that his imprisonment during such period was unlawful and he is accordingly entitled to damages and other relief. 39The Defendants submit that, throughout the first HRMU period, the STG period and the second HRMU period, the Plaintiff's detention has been managed in accordance with defined custodial plans and programs, as well as in accordance with the CAS Act and the CAS Regulation. Reference is made to the relevant management plans which applied to the Plaintiff at the HRMU (now HRMCC) and Lithgow CC, and case-plan documents relating specifically to the Plaintiff which identify his placement from time to time within particular plans (contained in Exhibit A). 40By virtue of his management in accordance with such custodial plans and programs, the Defendants submit that the Plaintiff has been subject to restrictions on the number and identity of inmates with whom he has been permitted to associate. The Defendants submit that this is a function of his placement at any given time within the applicable management program. 41Mr Kirk observes that the Plaintiff's argument as to false imprisonment depends upon the proposition that, as a matter of statutory construction, an inmate cannot lawfully be subjected to such restrictions upon his associations with other inmates except by way of a segregated custody order under s.10 CAS Act. In this respect, Mr Kirk notes that the Plaintiff seeks to rely on the principle of statutory construction that the conferral of a specific power to do something, subject to conditions, implies that a more general power within the same Act ought not be construed as authorising the doing of the same act. 42Mr Kirk submits that the Plaintiff's case depends upon application of the principle of construction articulated in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1 (" Anthony Hordern ") where Gavan Duffy CJ and Dixon J said, at 7: "When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power." 43The Defendants also relied upon Minister for Immigration and Multicultural and lndigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 (" Nystrom ") at 589 [59], where Gummow and Hayne JJ said: " Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the 'same power', or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power." 44Mr Kirk referred to Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; 238 CLR 489 at 502-504 [39]-[47] where, after reference to Anthony Hordern and Nystrom , the High Court observed at 504 [46] that the two powers in question were capable of co-existing without the latter being repugnant to the former. Further, a contrary finding would have cumbersome consequences which could be taken into account in determining the question of statutory construction (at 504 [47]). 45Mr Kirk submits that the Plaintiff's argument is bound to fail, particularly having regard to s.78A CAS Act. He submits that the 2009 second reading debate indicates that the amendment was introduced in direct response to the Plaintiff's proceedings, and was intended to foreclose the type of argument raised in the proceedings regarding unlawful segregated custody. The amendment was intended to put beyond any doubt that, contrary to the arguments sought to be advanced by the Plaintiff, an inmate may be held separately from other inmates without the need for a segregation order under s.10 CAS Act. 46Mr Kirk submits that s.78A(4) (in particular) makes clear that an inmate may be separated from other inmates, for example, by way of a regime of restrictions upon associations pursuant to a program of custodial management, and that no direction is required under s.10 CAS Act in order to make lawful the resulting separation or segregation from other inmates. He submits that s.78A(5) provides that the legislation has retrospective effect and that, in the face of s.78A, the argument that the Plaintiff's imprisonment is, and/or has been, unlawful during the identified periods because of the restrictions imposed upon him in associating with other prisoners, is bound to fail. 47Mr Kirk submits that s.78A serves to confirm the breadth of the powers conferred on the Commissioner and others pursuant to the CAS Act regarding the custodial management of inmates. He submits that the proposition sought to be advanced by the Plaintiff is that, by implication arising from Part 2 Division 2 CAS Act, there is an effective limitation on these powers, to the effect that restrictions may not lawfully be imposed upon associations unless a segregated custody direction has been made. The Defendants submit that consideration of other provisions in the CAS Act, viewed together with the CAS Regulation, demonstrates that no such implication can properly be drawn. Mr Kirk submits that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381 [69]. 48To the extent that the Plaintiff relies upon the maxim expressum facit cessare tacitum, Mr Kirk submits that this maxim, whilst a valuable servant, is apt to be a dangerous master, and that it is necessary to seek confirmation in the broader context of the whole Act: Balog v Independent Commission Against Corruption [1990] HCA 28; 169 CLR 625 at 632. 49Mr Kirk submits that the general powers in relation to separating inmates, such as s.78A and other provisions in the CAS Act, are not directed to the same purpose as s.10. Rather, they are addressed to the general care, control and management of inmates. In this respect, he refers in particular to s.232(1)(a1) CAS Act, Clauses 12-13 CAS Regulation (concerning case plans), the concept of classification of inmates including references to accommodation in Clauses 33 and 37 CAS Regulation and Clause 26 CAS Regulation concerning extreme high-risk restricted inmates and extreme high-security inmates. 50Mr Kirk submits that, in any event, nothing in the CAS Act confers on an inmate the right to associate with other inmates. Given the special legal position of inmates held in custody, the CAS Act should be construed as conferring rights on inmates only where the language of the legislature is unambiguous: Kelleher v Commissioner, the Department of Corrective Services [1999] NSWSC 86 at [9]. Submissions of the Defendants - The Ultra Vires Challenge to the 2009 Amendment Regulation 51With respect to the second issue, the ultra vires challenge to the 2009 Amendment Regulation, Mr Kirk submitted that the Plaintiff had been designated as an "extreme high risk restricted inmate" for the purpose of Clause 25(2A) CAS Regulation on or about 18 May 2009, and that the provisions of the Regulation therefore apply to him. 52The Defendants submit that, with one exception, the grounds relied upon by the Plaintiff with respect to the ultra vires challenge to the 2009 Amendment Regulation are wholly lacking in substance. The Defendants accept that one area (Ground (c)) depends upon a factual enquiry regarding the purpose of the Regulation, and accordingly is not the subject of the present summary dismissal application. 53With respect to the balance of the ultra vires challenge, the Defendants refer to the Regulation-making powers contained in ss.79 and 271 CAS Act. It is submitted that the Regulations are consistent with provisions of the CAS Act. 54With respect to the Plaintiff's arguments based upon proportionality, unreasonableness, capriciousness and irrationality, the Defendants submit that the circumstances in which a regulation may be invalidated on such grounds are narrowly confined. Reliance is placed upon the statement of Lockhart J in Minister for Primary Industries and Energy v Austral Fisheries Pty Limited [1993] FCA 45; 40 FCR 381 at 384: "Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended in authorising the subordinate legislative authority to enact law." 55This statement of principle was cited with approval by Spigelman CJ (Beazley and Tobias JJA agreeing) in Murrumbidgee Ground Water Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; 138 LGERA 11 at 45-46 [133]. 56Accordingly, Mr Kirk submits that orders for summary dismissal ought be made as sought by the Defendants. Submissions of the Plaintiff 57Mr Jackson, counsel for the Plaintiff, emphasised the stringent test required before the Court may summarily dismiss the Plaintiff's claim. He contended that the Defendants had not made good that test in this case. 58He submitted that, in order for the Defendants to succeed on the first issue, it was necessary to show that s.78A CAS Act allowed segregated custody without any of the preconditions or rights of review which safeguard the exercise of that power in s.10 CAS Act. He submitted that those safeguards reflected a recognition of the additional hardship constituted by segregation, so that its imposition ought be confined and controlled in the ways identified in ss.10-22 CAS Act. 59Mr Jackson submitted that the Court should not accept the Defendants' construction of s.78A. That construction, he submitted, would mean that ss.10-22 CAS Act, and the rigours imposed by those sections, could simply be bypassed through the operation of s.78A. He submitted that the intention of Parliament ought be derived from the plain words of the statute, applying principles of statutory construction, and not the Minister's statement of what the legislation was intended to achieve or the explanatory memorandum: Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at 384-385 [12]-[16] (Spigelman CJ) and 400-401 [170]-[172] (Mason P). 60Mr Jackson provided an alternative construction of the relevant provisions. He submitted that ss.10 and 12 CAS Act are directed at an individual inmate and the restriction of his residual liberty. They operate independently of operational requirements and logistics, when an opinion is formed as outlined in s.10(1), allowing an inmate to be held either in what is, in effect, solitary confinement, or with a right of contact with only those inmates determined. 61On the other hand, Mr Jackson submitted that s.78A made no reference to either "isolation" nor "a restriction of association" . Rather, it refers to the "separation" of some prisoners from other prisoners "for the purposes of the care, control or management of the inmate or group of inmates" . Read in the context of the Act as a whole, Mr Jackson submits that s.78A augments the powers granted under s.23 of the Act (concerning transfers from one correctional centre to another), and allows different regimes for different groups of prisoners for the purposes of their care, control or management. He submits that it is directed at controlling groups, and separating groups of inmates from other groups of inmates. He submits that it removes an argument that merely treating different classes of inmates differently (s.78A(1)), creating different wings, or even creating a prison within a prison (s.78A(2) and (3)) is, in itself, unauthorised in the absence of a valid segregation order. 62Mr Jackson submits that s.78A does not, retrospectively or otherwise, render detention in isolation lawful, nor the restriction of an inmate's associations in the manner provided for by s.12, in the absence of a segregated or protective custody order. 63With respect to the second issue, the ultra vires ground, Mr Jackson submits that the relevant Regulations are not authorised by s.79 or s.271 CAS Act. 64Mr Jackson submitted that the Defendants had not satisfied the stringent requirements for summary dismissal of the Plaintiff's claims, which ought proceed to trial at a hearing on the merits, in the ordinary way. He pointed to the importance of the Court insisting that restriction of liberty cannot occur unless permitted by law: Sleiman v Commissioner of Corrective Services; Hamzy v Commissioner of Corrective Services at [59] (Adams J). He submitted that the Plaintiff was entitled to test the validity of his detention, and the validity of the Regulations, at a full hearing on the merits. Defendants' Submission in Reply 65In reply, Mr Kirk challenged the Plaintiff's construction of s.78A. He submits that it is unhelpful to approach the legal question relating to segregated custody by asking whether ss.10-22 CAS Act can be bypassed through the operation of s.78A. Mr Kirk submits that the question before the Court is whether the CAS Act, including s.78A, authorises (and authorised) the restrictions imposed on the Plaintiff's ability to associate with other inmates, in the absence of a formal segregation order under s.10 CAS Act. 66The Defendants submit that the powers conferred on the Commissioner and others under ss.10 and 11 to issue directions that inmates be held in segregated or protective custody operate independently of, and in addition to, the general powers conferred on the Commissioner in respect of the care, control and management of inmates under s.232(1)(a1) CAS Act. Section 78A makes clear that the latter powers extend to the holding of inmates separately from other inmates, and no segregated custody direction is required to authorise such separation. Mr Kirk submits that it is not a question of s.78A being used to bypass s.10 or avoiding the controls relating to s.10. 67Mr Kirk submits that the Plaintiff's construction that s.78A applies only to the separation of groups of inmates is untenable, and is contrary to the clear words of s.78A(2) which refers to "an inmate or group of inmates" . 68Mr Kirk submits that the notion of separation necessarily involves the idea of limiting association. It was for that reason that s.78A was enacted, as reflected in the provision in s.78(4) that the making of a segregated custody direction is not required to authorise the separation of inmates. He submits that it has always been the case that the statutory scheme has authorised restrictions on associations with inmates, as demonstrated by the separation of the sexes, having different correctional centres and having different classifications and designations adopted with respect to such matters as internal and external security/safety risks. 69Mr Kirk submits that s.78A was enacted to respond to the legal argument that, in some way, these inherent aspects of the scheme were restricted by the specific provisions made with respect to segregated custody directions. 70Given the terms of s.78A, in particular s.78(4), Mr Kirk submits that the proposition that the CAS Act confers only one power to take the relevant action (that is, holding an inmate separately from other inmates) is clearly untenable. These considerations of text and context are sufficient to demonstrate that the Anthony Hordern principle has no application in the present case. He submits that this conclusion is consistent with the legislative purpose in enacting s.78A and that, contrary to the Plaintiff's submissions, it is legitimate and appropriate to have regard to the secondary materials to identify the legislative purpose and the mischief at which the legislation was directed: ss.33 and 34 Interpretation Act 1987 ; Harrison v Melhem at 384 [13], 401 [172]. The Defendants do not submit that the extrinsic materials serve to guide the meaning of the legislation. However, they do assist in identifying the purpose of s.78A, which was enacted with the clear object of foreclosing the very argument which the Plaintiff seeks to rely upon regarding segregated custody. 71Mr Kirk submits that the Court is required to give preference to a construction that would promote the purpose or object underlying the Act over a construction that would not promote that purpose or object: s.33 Interpretation Act 1987 . Once the Court has identified the target of legislation, he submits that the duty of the Court is to see that the target is hit: Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 424. 72With respect to the ultra vires challenge to the 2009 Amendment Regulation, Mr Kirk points to the fact that s.79 authorises the making of regulations "for or with respect to" various specified matters. He submits that the words "with respect to" are words of the widest possible connection, and should not be narrowly construed: Smith v Allan (1993) 31 NSWLR 52 at 61. 73Mr Kirk submits that the breadth of that notion is especially apt for a regulation-making power dealing with the very broad topic of management of correctional centres and inmates, an area in which the courts have traditionally, for good reason, not intervened too readily: Anderson (Commissioner, Corrections Victoria) v Pavic [2005] VSCA 244 at [32]-[33].

Relevant Statutory Provisions 74The resolution of the primary issue on the application turns upon the construction and application of s.78A CAS Act, a retrospective provision enacted in 2009. However, the Defendants contend that s.78A effectively confirmed law and practice in the New South Wales correctional system prior to this time. I do not accept this submission of the Defendants. At the least, it is strongly arguable that the enactment of s.78A in 2009 constituted a significant change in the law regarding the segregation or separation of prisoners on certain grounds. 75An understanding of the legislative history of segregation provisions in New South Wales prison statutes may assist the construction of provisions within the CAS Act: Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388 at 393 [26]. A detailed examination of the relevant statutory history is required to assess the state of law and practice prior to 2009. 76The task of managing and controlling prisons and prisoners extends far back in the history of this State. It is an area regulated by statue and delegated legislation. In Jarrott v Maughan (1987) 28 A Crim R 148, Slattery CJ at CL said at 151: "Prisons, being places where prisoners are confined, are by the very reason of their existence difficult places in which to maintain order, control and discipline. Since the early days of the Colony of New South Wales corrective authorities have been concerned with prison discipline to ensure that gaols and penal establishments are properly managed, controlled and supervised. Prison authorities have relied on regulations and rules for the management and control of gaols." Provisions for Segregation of Prisoners in New South Wales Prisons 77The appropriate starting point involves reference to provisions contained in the Prisons Act 1952 , later renamed the Correctional Centres Act 1952 , the predecessor legislation to the CAS Act. This process will shed some light upon the segregation provisions in s.10 CAS Act and following. 78Provision was made for the segregation of prisoners in s.22 Prisons Act 1952 . 79That provision was then in the following terms: "Segregation of prisoners 22.(1) Where the Commissioner, or the governor of a prison, is of opinion that the association of a prisoner with other prisoners constitutes or is likely to constitute a threat to the personal safety of that or any other prisoner or of any prison officer or other officer of the Department of Corrective Services, or to the security of the prison, or to the preservation of good order and discipline within the prison, the Commissioner or the governor may direct the segregation of such first mentioned prisoner, whereupon such prisoner shall be detained away from association with other prisoners or, where the Commissioner so approves, in association only with such other prisoners as the Commissioner may determine. (1A) Without limiting the generality of subsection (1), the Commissioner may, at the written request of a prisoner, direct the segregation of the prisoner, whereupon the prisoner shall be detained away from association with other prisoners or, where the Commissioner so approves, in association only with such other prisoners as the Commissioner may determine. (2) Where the governor of a prison gives a direction pursuant to subsection (1) he shall immediately report the fact in writing to the Commissioner. A prisoner segregated pursuant to the direction of the governor of a prison shall not be so segregated for a longer period than two weeks unless the Commissioner otherwise directs. (3) During any period of segregation, the prisoner so segregated shall not suffer reduction of diet, nor shall he be deprived of any rights or privileges other than those which may be determined by the Commissioner either generally or in any particular case. (4) The Commissioner must not direct that a prisoner be segregated for a continuous period exceeding 3 months, except as provided by this section. (5) The Commissioner may direct, on one or more occasions, that the period of segregation of a prisoner be extended, but only if on each occasion the Commissioner has formed an opinion, or received a written request, as required under subsection (6). Extensions must not exceed 3 months at a time. (6) Subsections (1) and (1 A) apply to a direction for the extension of a period of segregation in the same way as they apply to a direction for segregation. However, a direction for the extension of a period of segregation of a prisoner may differ in its terms from any earlier direction for the segregation of the same prisoner or for the extension of that segregation. (7) A direction under this section must be in writing and must include the grounds on which it is given. (8) A direction under this section given at the request of a prisoner must be revoked by the Commissioner if the prisoner makes a request in writing to the Commissioner for its revocation. Any other direction may be revoked by the Commissioner at any time." 80Section 22 was referred to, without any detailed analysis, in Collins v Downs (Roden J, unreported, 14 December 1982); Maybury v Osborne [1984] 1 NSWLR 579 at 584 and Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 85. It has also been considered in other decisions. 81In Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 328 (a case dealing with detention in the Katingal Special Security Unit), Hutley JA (Moffitt P and Glass JA agreeing) observed that segregation of prisoners under the conditions specified in s.22 implied that prisoners will not be segregated unless those conditions are fulfilled. Hutley JA observed (at 328B) that the issue of whether any segregation of a prisoner, which was not authorised by s.22, implied rights to a civil remedy sounding in damages did not arise because the Court was of the opinion that there was, in fact, no segregation "If a prisoner is unique so that there are no other prisoners with whom he can associate, that prisoner is not segregated" . Hutley JA provided the well-known example of Rudolph Hess "though the only prisoner convicted at Nuremberg still in confinement, he is not a segregated prisoner" . 82Hutley JA concluded (at 329B-C) that the Prisons Act 1952 and Regulations, insofar as they dealt with the classification of prisoners, did not give rise to private rights enforceable in ordinary courts. 83At that time, s.7 Prisons Act 1952 provided that the Commissioner had, subject to the Act and the directions of the Minister, the care, direction, control and maintenance of all prisons. The 1993 Amendments to the Prisons Act 1952 84A number of amendments to the Prisons Act 1952 made in 1993 are significant for present purposes. 85At that time, s.6(3) Prisons Act 1952 provided that the Commissioner had "the care, direction, control and management of all prisons and prison complexes" . 86The Prisons (Amendment) Act 1993 effected a number of amendments to s.22. 87Sections 22A-22F were inserted in the Prisons Act 1952 by the Prisons (Amendment) Act 1993 . These sections provided for reporting to the Minister on the extent of segregation (s.22A), review of segregation by the Minister (s.22B), review of segregation by the Serious Offenders Review Council ( "SORC" ) (s.22C), interim directions by SORC (s.22D), procedure for review of segregation (s.22E) and determination of review by SORC with respect to segregation (s.22F). 88Sections 22-22F lay within Part 3 of the Prisons Act 1952 entitled "Treatment of Prisoners" . 89In the second reading speech concerning the Bill, the then Attorney General, the Hon JP Hannaford said with respect to the segregation amendments (Hansard, Legislative Council, 28 October 1993) (emphasis added): "Schedule 2 of the Prisons (Amendment) Bill contains proposals which are designed to provide more effective and accountable use of segregation in New South Wales correctional centres. Segregation is the detention of an inmate away from all other inmates or in association only with such inmates as are determined by the Commissioner of Corrective Services. The segregation of an inmate for any length of time, and particularly for extended periods, is a decision requiring close consideration and supervision. There are two types of segregation: administrative segregation and protective segregation. Inmates are placed on administrative segregation for the safety of another inmate or officer, or for the security or good order and discipline of the institution. Protective segregation, or protection, as it is more commonly termed, is normally provided at the request of the inmate, for reasons of personal safety . Segregation is not intended to constitute any form of punishment or retaliation. It is an important management option to provide for the safety of officers and inmates and for good order in the correctional system. Consultation with the Office of the Ombudsman has resulted in the preparation of a number of the current proposals relating to segregation which expand upon features contained in a bill which was tabled in Parliament in 1992. The previous bill was subsequently withdrawn following the raising of certain matters by the Ombudsman. The Ombudsman has since indicated full support for the measures before the House today . I now turn to the specific features of the amendments. The first proposes removal of the ministerial statutory obligation to approve extensions of segregation beyond six months, by effectively devolving authority to the Commissioner of Corrective Services. Under present provisions, correctional centre governors have the power to authorise segregation for up to 14 days. Authority to approve further periods of up to six months is vested in the Commissioner of Corrective Services, who has power, under the Prisons Act, to delegate those functions where appropriate. Authority to approve accumulative periods of segregation past six months rests at ministerial level, without any such power of delegation. Accordingly, at present, all orders for segregation past six months, including those at the inmate's request, must be referred for ministerial consideration and approval. In all other Australian States segregation is the responsibility of senior departmental staff. Responsibility and, more importantly, accountability for such operational matters should rest in operational hands, in all but exceptional circumstances. This is sound managerial practice. Devolution of this authority to the Commissioner of Corrective Services will bring New South Wales into line with other Australian States in this regard . The second amendment proposes that any initial or subsequent order to extend an inmate's segregation will be limited to a maximum period of three months at a time. Both an original direction for segregation and any direction for extension must also be given in writing and must include the grounds on which it is based. This amendment will provide regular mandatory review of all extensions of segregation and introduce a statutory mechanism for accountability. Further amendments contained in schedule 2 to the bill respond to the recommendations made by the Office of the Ombudsman . The Ombudsman has noted that the present provisions imply that situations requiring the segregation of an inmate occur only after an inmate has been in custody for some unspecified period. This does not provide for those inmates requiring placement on segregation orders, particularly for reasons of protection, before they have associated with other inmates. The Serious Offenders Review Council will be utilised to review inmate appeals against decisions to extend periods of administrative segregation past the initial 14-day period. In determining such appeals, the Serious Offenders Review Council will be required to act independently of the Commissioner of Corrective Services . The review council will have the power to conduct the inquiry as it sees fit, with the full co-operation of the Department of Corrective Services. It will be able to confirm, vary or disallow the extension order or make any other appropriate order. Its decisions will be final and binding on both the appellant and the commissioner. Inmates will have the right to appear before the council in person and to have legal representation if desired. The review council also will have authority to issue an interim order suspending a direction for segregation at a review hearing. As a further safeguard against the inappropriate imposition of segregation for lengthy periods of time, the Commissioner of Corrective Services will be required to submit a report to the Minister on each case of extension of administrative segregation past six months. In view of the concerns which have been raised regarding the segregation of inmates, ultimate statutory authority to review, amend or revoke an order segregating an inmate will be retained at ministerial level . It is a fundamental feature of departmental correctional policy that inmates spend the minimum time necessary in segregation. To this end a number of special management programs are being implemented throughout the New South Wales correctional system to ensure that segregation is used only where appropriate. These programs are based on the principles of area management and case management in which officers and inmates interact closely to identify and address inmate problem areas. Departmental policy concerning segregation has already been revised to address the concerns raised by the Ombudsman. I am confident that the amendments contained within schedule 2 of the Prisons (Amendment) Bill will ensure that segregation as a management option is appropriately and responsibly utilised to enhance safety, security and good order in the State's correctional centres. " 90It will be observed that the then Attorney General, in the Hansard extract in the preceding paragraph, referred to a 1992 Bill which had been tabled and withdrawn following the raising of certain matters by the Ombudsman. Those concerns were expressed in the Deputy Ombudsman's "Special Report to Parliament Pursuant to Section 31 of the Ombudsman Act Concerning the Prisons (Segregation) Amendment Bill 1992" ( "Special Report" ) dated 4 May 1992, tabled in the Legislative Assembly on 6 May 1992. That report may be referred to as relevant extrinsic material: s.32(2) Interpretation Act 1987 . 91The Deputy Ombudsman explained the concept of segregation at paragraphs 2.1-2.2 of the Special Report (emphasis added): "2.1 Section 22 of the Prisons Act enables prison authorities to take a prisoner out of the general population of prisoners and keep him or her separate from other prisoners. There are two causes for segregation. Some prisoners request to be segregated for reasons of personal safety. Many hundreds of prisoners are segregated in special protection facilities in various correctional centres for this reason. They are known as 'protection' prisoners. Because of their number, they are usually held with other protection prisoners and have reasonable access to work and other amenities. The other cause is more controversial. This is when the prison authorities form an opinion that the continued association of a prisoner with others constitutes a threat to the personal safety of that or other prisoners or prison officers, or to the security or preservation of good order and discipline within the prison. This is known as administrative segregation . 2.2 Segregation of prisoners against their wishes is controversial because it means they are kept in conditions hardly distinguishable from those given as punishment for the commitment of prison offences. Punishment in those instances comes after a proper hearing of charges either before the Superintendent or a Visiting Justice where prisoners have the safeguard of hearing the case made out against them, and of mounting a defence. In the latter situation prisoners have the safeguard of being able to be legally represented. Segregation on the other hand is, in effect, an informal disciplinary system. It is a means of keeping order without going through formal disciplinary procedures. It is used especially on occasions where such procedures would not work. There can be many reasons for this - a superintendent may receive information that a prisoner is suspected of planning to commit an offence or has been involved in an offence or some action threatening good order that cannot be proved. In other cases a prisoner may be segregated pending the hearing of an official misconduct charge." 92The Deputy Ombudsman referred to the "extremely wide discretion" in s.22 (paragraph 3.1) with certain safeguards also contained in s.22 by way of a time limit and other provisions (paragraph 3.2). 93The Special Report referred to a number of investigations undertaken by the Ombudsman concerning administrative segregation (paragraphs 4.9-4.10): "4.9 More recent investigations by the Ombudsman of prisoners in long term administrative segregation have only deepened his concern that additional safeguards must be incorporated into the Act to protect against abuses of the segregation power. In the last financial year, the Ombudsman received 40 separate written complaints of unreasonable segregation or the failure to provide reasons. 4.10 A current investigation has brought to light the cases of two prisoners segregated for over nine months against their wishes. These prisoners were segregated in the High Security Unit on grounds of suspicion that they may have been associated in planned escape attempts. In one case a half completed tunnel had been discovered and in the other case a conversation had been overheard by officers involving talk of a hostage situation. In both cases there was little if any reliable evidence linking the prisoners to the possible events and their segregation was essentially related to their reputations. Their good conduct while held in the highly restricted and harsh conditions of the High Security Unit had little effect on the decisions to extend their periods of segregation. There was no demonstrable evidence that the security of any institutions would be threatened by their return to normal discipline. In the case of one of the prisoners, he did not know why he was segregated and even the officers in the High Security Unit for him did not know why he was there. The system of internal review and monitoring of segregation was in both cases unsatisfactory, failing to justify the segregation on reasonable grounds. The Department's mechanisms for the monitoring and review of long term segregation cases lacks the rigour and detailed evaluation that should be mandatory in cases involving the severe deprivation of rights and privileges." 94Concerns were expressed in the Special Report about provisions in the Prisons (Segregation) Amendment Bill 1992 which would significantly widen the then current discretion and reduce other safeguards, including Ministerial oversight (paragraphs 5.1-5.4) with some marginal improvements noted as well (paragraph 5.5-5.6). 95The Deputy Ombudsman stated (paragraph 5.7): "The Ombudsman clearly recognises the need for prison authorities to have the power to segregate prisoners for the broad reasons contained in section 22 of the Prisons Act. Similar powers can be found in almost all other jurisdictions. But given the severity of the impact that administrative segregation has on prisoners lives, it is of paramount importance that segregation orders result from sound administrative decisions and are only used as a last resort after alternative means of housing prisoners in normal discipline are fully explored. Furthermore, assessments of the need to extend segregation should be able to stand up to independent scrutiny." 96A recommendation was made in the Special Report that the Supreme Court should exercise a judicial review function with respect to segregation (paragraphs 5.7, 6.3). Clearly, this recommendation was not taken up by the Government. However, an elaborate statutory scheme was enacted as outlined in the Hansard speech cited at [89] above. 97In a helpful analysis contained in an article entitled "Administrative Segregation of Prisoners: Powers, Principles of Review and Remedies" (1996) 20 Melb UL Rev 639, Matthew Groves referred to the New South Wales provisions following the 1993 amendments (at 644): "New South Wales has recently amended the Prisons Act 1952 (NSW) to provide extensive legislative guidance on the exercise of the power to segregate and clear procedural requirements. The power to order the segregation of a prisoner is expressed in wide terms. A Governor of a prison or the Commissioner of Corrective Services ('Commissioner') may place a prisoner in segregation if he or she believes the safety of that prisoner, or any other prisoner, or a guard, or any other staff member, or the security or good order of the prison is threatened . These criteria, like those of other jurisdictions, could cover almost any situation." 98The author noted (at 644-646) that other powers existed to order segregation for specific reasons, including health grounds and for punitive (disciplinary) reasons. 99After summarising features of the 1993 New South Wales statutory scheme (pages 648-653), Mr Groves observed at 653: "These changes are a dramatic break with traditional segregation provisions but it is unlikely that they indicate the future direction for the rest of Australia. The amendments were enacted after much political controversy over, and vigorous academic criticism of the use, and apparent misuse, of administrative segregation in New South Wales. Much of the impetus for change came from the State Ombudsman who had long been a critic of the use of segregation in New South Wales prisons. The Ombudsman had investigated many cases of improper segregation. When revisions to the State's segregation provisions were mooted, the Ombudsman was able to provide a compelling argument against the first draft of the Prisons (Segregation) Amendment Bill 1992 (NSW) which appeared to derogate significantly from the planned strengthening of the procedural rights of prisoners. The Ombudsman argued that his experience revealed that segregation decisions were routinely based on inadequate factual material. Furthermore, the investigation by the Ombudsman of many complaints established that segregation had been used as a means of informal discipline, meaning prisoners were subjected to harsh regimes without any disciplinary offence having been proved against them. The Ombudsman's office thought that the way to achieve sound administrative decision-making in this area was to incorporate clear criteria for the initial making of a segregation order in the legislation. The Ombudsman suggested 'reasonable grounds' and a clear system of review procedures to assess the correctness of initial orders and any renewal decisions. The work of the State Ombudsman's office in this area earned so much respect that its criticisms were instrumental in forcing the withdrawal of the first Bill and the introduction of another Bill. " 100It is apparent from the second reading speech relating to the 1993 Act, the Special Report and the analysis of Mr Groves, that the 1993 New South Wales amendments concerning segregation were thorough and innovative. The concept of administrative segregation under the statute appeared to be a broad one, accompanied by a range of checks and balances. The 1996 Amendments 101The Prisons (Amendment) Act 1996 changed the name of the Prisons Act 1952 to the Correctional Centres Act 1952 . 102Section 22 was further amended by the Prisons (Amendment) Act 1996. That Act also inserted new ss.22AA-22AG, with these provisions relating to protective custody of inmates (s.22AA), the governor of a correctional centre notifying the Commissioner of segregation or protective custody directions (s.22AB), the effect of segregation or protective custody directions (s.22AC), the period of segregation or protective custody (s.22AD), the extension of a period of segregation or protective custody (s.22AE), the form of direction for segregation or protective custody (s.22AF) and revocation of a direction for segregation or protective custody (s.22AG). A number of other amendments were made to the then existing ss.22A-22F. 103In the course of the second reading speech with respect to this Bill, the then Minister for Corrective Services, Mr Debus, said (Hansard, Legislative Assembly, 6 December 1995) (emphasis added): "The fourth amendment involves a change to the structure of section 22 of the Prisons Act which will distinguish more clearly between inmates who are on protection and inmates in segregation. This is an important distinction which has some impact on the treatment of these inmates within the correctional system. Protection of an inmate occurs either at the request of the inmate or at the direction of the commissioner in order for that inmate to be separated from other inmates for that inmate's personal safety. Honourable members will be aware, for example, that the inmate population holds particular sorts of crimes in such abhorrence that those who committed them must be protected from mainstream inmates for their entire sentence. Segregation of an inmate, on the other hand, occurs at the direction of the commissioner to preserve the good order and discipline of a correctional centre. The law rightly imposes restrictions upon the use of segregation and the length of time for which it may be imposed, granting inmates a right of quasi judicial review lest segregation be abused . At present, section 22 does not clearly distinguish inmate protection and inmate segregation and this is undesirable given that the purpose of the two forms of custody is very different. The bill amends section 22 to make that distinction clear." 104It will be seen that the 1996 amendments did not narrow the concept of segregation or confine its application to limited circumstances. The principal change was to recognise in the statute the distinction between voluntary segregation (protective custody) and involuntary segregation, the latter having been an area of controversy for some years, as the Special Report made clear (see [91] and [93] above). The 2002 Amendments 105The provisions presently contained within Division 2 of Part 2 of the CAS Act (ss.9-22) were inserted by the Crimes (Administration of Sentences) Further Amendment Act 2002 . 106Sections 9-22 CAS Act are in the following terms (excluding s.11 which relates solely to protective custody): "9 Definitions In this Division: protective custody direction means a direction referred to in section 11. segregated custody direction means a direction referred to in section 10. suspension direction means a direction referred to in section 20 (1) (a). 10 Segregated custody of inmates (1) The Commissioner may direct that an inmate be held in segregated custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to: (a) the personal safety of any other person, or (b) the security of a correctional centre, or (c) good order and discipline within a correctional centre. (2) The general manager of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the segregated custody direction was given. (3) A segregated custody direction given by the general manager of a correctional centre does not apply in relation to any other correctional centre. (4) Subsection (3) is subject to section 15. ... 12 Effect of segregated or protective custody direction (1) An inmate subject to a segregated or protective custody direction is to be detained: (a) in isolation from all other inmates, or (b) in association only with such other inmates as the Commissioner (or the general manager of the correctional centre in the exercise of the Commissioner's functions under section 10 or 11) may determine. (2) An inmate who is held in segregated or protective custody: (a) is not to suffer any reduction of diet, and (b) is not to be deprived of any rights or privileges other than those determined by the Commissioner (or the general manager in the exercise of the Commissioner's functions under section 10 or 11), either generally or in a particular case, and other than those the deprivation of which is necessarily incidental to the holding of the inmate in segregated or protective custody. 13 Form of direction A segregated or protective custody direction must be in writing and must include the grounds on which it is given. 14 Information concerning review of segregated or protective custody direction As soon as practicable after an inmate is directed: (a) to be held in segregated custody under section 10, or (b) to be held in protective custody under section 11 (other than at the inmate's request), the general manager of the correctional centre is to provide the inmate with information concerning the inmate's rights to a review of the segregated or protective custody direction. 15 Transfer of inmate held in segregated or protective custody (1) If an inmate held in segregated or protective custody under a segregated or protective custody direction given by the general manager of a correctional centre is transferred to another correctional centre, the segregated or protective custody direction applies: (a) in relation to the correctional centre to which the inmate is transferred (the receiving correctional centre), and (b) in relation to the conveyance of the inmate to the receiving correctional centre, including custody of the inmate in any correctional centre in which the inmate is held during the course of being conveyed to the receiving correctional centre. (2) Within 72 hours after the arrival of the inmate at the receiving correctional centre, the general manager of the receiving correctional centre must review the segregated or protective custody direction, having regard to the grounds referred to in section 10 or 11, and give one of the following directions: (a) a direction revoking the segregated or protective custody direction, (b) a direction confirming the segregated or protective custody direction, (c) a direction confirming the segregated or protective custody direction but amending its terms. (3) A direction given under subsection (2) has effect according to its terms. (4) A segregated or protective custody direction that is subject to a direction under subsection (2) (b) or (c) is, on and after the giving of that direction, taken to be a segregated or protective custody direction given by the general manager of the receiving correctional centre. (5) A direction by the general manager of a receiving correctional centre revoking, confirming or amending a segregated or protective custody direction has effect even though it is given outside the period during which it is required to be given under this section. 16 Review of segregated or protective custody direction by Commissioner (1) The general manager of a correctional centre where an inmate is held in segregated or protective custody must submit a report about the segregated or protective custody direction to the Commissioner within 14 days after the date on which the direction is given (the relevant date), regardless of whether the segregated or protective custody direction was given by the Commissioner or by the general manager of a correctional centre. (2) Within 7 days after receiving the report, the Commissioner must review the segregated or protective custody direction and give one of the following directions: (a) a direction revoking the segregated or protective custody direction, (b) a direction confirming the segregated or protective custody direction, (c) a direction confirming the segregated or protective custody direction but amending its terms. (3) If the direction is confirmed, the general manager of the correctional centre where the inmate is held in segregated or protective custody must submit a further report about the direction to the Commissioner within 3 months after the relevant date, and within each subsequent period of 3 months after that period. (4) Within 7 days after each occasion on which the Commissioner receives any such further report, the Commissioner must review the segregated or protective custody direction and give one of the directions referred to in subsection (2) (a)-(c). (5) The confirmation of a segregated or protective custody direction by the general manager of a correctional centre under section 15, or by the Review Council under section 22, does not affect the requirements for reporting about and reviewing a segregated or protective custody direction under this section. (6) A direction by the Commissioner revoking, confirming or amending a segregated or protective custody direction has effect even though it is given outside the period during which it is required to be given under this section. (7) In this section: report , in relation to a segregated or protective custody direction, means a report recommending whether or not the segregated or protective custody direction should be revoked, confirmed or amended. 17 Revocation of segregated or protective custody direction (1) A segregated or protective custody direction remains in force until it is revoked. (2) The Commissioner may, at any time, revoke a segregated or protective custody direction or amend its terms. (3) The Commissioner must revoke a protective custody direction given at the request of an inmate if the inmate requests the Commissioner in writing to revoke it. (4) The general manager of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre. 18 Report to Minister on segregated or protective custody direction (1) As soon as practicable after confirming a segregated or protective custody direction, the Commissioner must give written notice of that fact to the Minister, giving reasons for the confirmation direction, if: (a) the confirmation direction will result in the inmate being subject to a total continuous period of segregated or protective custody exceeding 6 months, or (b) the inmate has already been subject to a total continuous period of segregated or protective custody exceeding 6 months. (2) This section does not apply to a direction confirming a protective custody direction that was given at the request of an inmate. 19 Review of segregated or protective custody direction by Review Council (1) An inmate whose total continuous period of segregated or protective custody exceeds 14 days may apply to the Review Council for a review of the segregated or protective custody direction under which the inmate is held in segregated or protective custody. (2) The application is to be in writing and is to include the inmate's reasons for making the application. (3) The Review Council must review the direction unless subsection (4) applies. (4) The Review Council may refuse to review the direction if: (a) the application does not, in the opinion of the Review Council, disclose substantial grounds for a review, or (b) the Review Council has previously determined a review of the same direction under this Division and the application does not, in the opinion of the Review Council, disclose substantially different grounds for review. (5) The Review Council may not refuse to review a direction under subsection (4) if a period of more than 3 months has elapsed since the Review Council determined a review of the segregated or protective custody direction. (6) This section applies regardless of whether the relevant segregated or protective custody direction was given by the Commissioner or by the general manager of a correctional centre. 20 Suspension directions by Review Council (1) The Chairperson of the Review Council may give a direction for: (a) the suspension of an inmate's segregated or protective custody direction, or (b) the transfer of an inmate to a different correctional centre. (2) A suspension direction may be given at any time after an application for a review is made and before it is determined. (3) While a suspension direction is in force, the inmate is not to be held in segregated or protective custody unless a new segregated or protective custody direction is given. (4) The Chairperson may at any time vary or revoke a suspension direction. (5) A suspension direction does not revoke a segregated or protective custody direction. (6) A direction for the transfer of an inmate to a different correctional centre may be given: (a) if the Chairperson considers that the inmate's removal would facilitate the review of the segregated or protective custody direction, or (b) for any other reason that the Chairperson thinks fit. (7) The determination of a review of a segregated or protective custody direction by the Review Council under section 22 revokes any suspension direction applying to the segregated or protective custody direction. 21 Procedure for review of segregated or protective custody direction by Review Council (1) In determining any matter relating to the segregated or protective custody of an inmate, the Review Council is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate. (2) The Review Council must cause notice of any hearing in relation to a review to be given to the inmate who applied for the review. (3) If the inmate so wishes, the Review Council must allow the inmate to be present, and to be heard, at the hearing. (4) The inmate may be represented by an Australian legal practitioner chosen by the inmate or, if the Review Council so approves, by some other person chosen by the inmate. (5) The Commissioner or the general manager of a correctional centre (or both) may be represented by an Australian legal practitioner or by some other person. (6) Division 2 of Part 9 applies to the conduct of a review by the Review Council under this Division. 22 Determination of review by Review Council (1) In reviewing a segregated or protective custody direction, the Review Council must take the following matters into account: (a) whether the direction was given or reviewed in accordance with this Division, (b) whether the direction was reasonable in the circumstances, (c) whether the direction was necessary to secure the personal safety of the inmate or any other person, (d) the security of, and the preservation of good order and discipline within, the relevant correctional centre, (e) the interests of the public. (2) In determining an application for review, the Review Council may revoke, confirm or amend the segregated or protective custody direction to which the application relates." 107In the second reading speech concerning the 2002 Bill, the Minister for Corrective Services, Mr Amery, said with respect to the segregation and protective custody provisions (Hansard, Legislative Assembly, 18 September 2002) (emphasis added): "Division 2 of Part 2 of the Crimes (Administration of Sentences) Act 1999 governs segregated and protective custody of inmates. This division has been rewritten to streamline procedures dealing with segregated and protective custody inmates, and to provide for the transfer from one correctional centre to another of inmates held in segregated or protective custody . The proposed division replaces complex procedures in the current Act with straightforward procedures which ensure that, at all times, directions relating to such inmates are clear, valid, and subject to regular review. The proposed division also ensures that an inmate who is the subject of a segregated or protective custody direction is informed of his or her right to seek an independent review of the direction. An inmate may be placed in segregated custody if the inmate is likely to constitute a threat to the personal safety of another person, or to the security of a correctional centre, or to the good order and discipline of a correctional centre . An inmate may be placed in protective custody for the personal safety of that inmate, either at the inmate's own request, or if the governor of a correctional centre believes the association of the inmate with other inmates constitutes a personal threat to the inmate's safety. Currently, a segregated or protective custody direction can be given for an initial period of 14 days, and subsequently extended for periods of up to three months at a time. There is no limit to the number of extensions. Under the proposed division, a segregated or protective custody direction, once given, will continue in force until it is revoked. The governor of a correctional centre must, however, submit a report about the direction to the commissioner within 14 days of the direction being given, and the commissioner must review the direction and either revoke, confirm or amend it within seven days after receiving the report. Subsequently, the governor of the correctional centre at which a segregated or protective custody inmate is held must submit a report to the commissioner about the direction at intervals of three months after the direction was first given, and the commissioner must again review the direction within seven days of receiving each report. Under the proposed division, as soon as practicable after issuing a segregated or protective custody direction in respect of an inmate, the governor of a correctional centre must provide the inmate with information concerning the inmate's rights to a review of the direction. The inmate may apply to the Serious Offenders Review Council for a review of the direction after 14 days of segregated or protective custody. The review council may confirm, amend or revoke the segregated or protective custody direction. The inmate may also apply to the review council for a review of a segregated or protective custody direction at three-monthly intervals. Currently, a direction made by a governor of a correctional centre does not apply to any other correctional centre, resulting in administrative complexity when an inmate held in segregated or protective custody is transferred from one correctional centre to another. The proposed division provides that a segregated or protective custody direction made by a governor of a correctional centre continues to apply to an inmate during the transfer of the inmate to another correctional centre, and at the correctional centre to which the inmate is transferred . The proposed division requires the governor of the receiving correctional centre to review the segregated or protective custody direction applicable to the transferred inmate within 72 hours of the inmate's arrival, and to determine whether the direction should be confirmed, revoked or amended. It needs to be emphasised that a segregated custody direction is not a punishment. It is a means by which correctional management is able to respond to a threat to the personal safety of another person, or to the security of a correctional centre, or to the good order and discipline of a correctional centre . Under existing section 18 the Minister for Corrective Services may confirm, amend or revoke a direction by the commissioner extending a period of segregated custody or protective custody. This power of the Minister is not included in the proposed division. Instead, the Serious Offenders Review Council will be the only avenue for review of a segregated or protective custody direction, and the review council's review determination will be final at least until a period of three months has expired and the inmate concerned may seek a further review by the review council ." 108The effect of the 2002 amendments, amongst other things, was to enhance the statutory regime for segregation by providing expressly for transfer between correctional centres and to retain the review function of SORC. The elaborate scheme of checks and balances created in 1993 was retained, albeit with some changes, without any apparent narrowing in the scope of the power or the circumstances in which it could be exercised. The Commissioner's Care, Direction, Control and Management Functions 109Section 6(3) Prisons Act 1952 , and then s.6(3) Correctional Centres Act 1952 , provided as follows: "(3) The Commissioner has the care, direction, control and management of all correctional centres and correctional complexes." 110Section 232 CAS Act, as enacted in 1999, provided as follows (emphasis added): "232 Commissioner (1) The Commissioner: (a) has the care, direction, control and management of all correctional complexes, correctional centres and periodic detention centres , and (b) has all other functions conferred or imposed on the Commissioner by or under this or any other Act or law. (2) In the exercise of the functions referred to in subsection (1) (a) and (b), the Commissioner is subject to the direction and control of the Minister. (3) The Commissioner may delegate to any person any of the Commissioner's functions, other than this power of delegation." 111Since amendments effected by the Crimes (Administration of Sentences) Amendment (Parole) Act 2004 , s.232 CAS Act has provided as follows (emphasis added): "232 Commissioner (1) The Commissioner: (a) has the care, direction, control and management of all correctional complexes, correctional centres and residential facilities , and (a1) has the care, control and management of all offenders who are held in custody in accordance with Part 2, 3 or 4, and (b) has all other functions conferred or imposed on the Commissioner by or under this or any other Act or law. (2) In the exercise of the functions referred to in subsection (1) (a), (a1) and (b), the Commissioner is subject to the direction and control of the Minister. (3) The Commissioner may delegate to any person any of the Commissioner's functions, other than this power of delegation. (4) Sections 10 (2), 11 (3), 12 and 17 (4) do not limit the power of the Commissioner to delegate functions under those sections." 112Accordingly, since 2004, in addition to the care, direction, control and management of specified places (s.232(1)(a)), the Commissioner also has the care, control and management of all offenders who are held in custody in accordance with Parts 2, 3 or 4 CAS Act. Part 2 concerns imprisonment by way of full-time detention, Part 3 relates to imprisonment by way of periodic detention and Part 4 concerns imprisonment by way of home detention. In the second reading speech with respect to the 2004 Bill, the Hon John Hatzistergos, Minister for Justice, said with respect to the insertion of s.232(1)(a1) (Hansard, Legislative Council, 9 December 2004): "New section 232 (1) (a1) makes it clear that the commissioner is responsible for the care, control and management of offenders in full-time custody, periodic detention or home detention. It is important therefore for the SPA [State Parole Authority] to have the ability to make a recommendation to the commissioner in respect of any matter that may be relevant to the granting of parole." Enactment of s.78A in 2009 113The insertion of s.78A and s.79(c1) into the CAS Act in 2009 occurred as a result of the decision of Adams J in these proceedings on 24 April 2009. So much is clear from the second reading debate in the Legislative Council, to which reference will be made. 114The Crimes (Administration of Sentences) Amendment Act 2009 inserted s.78A and s.79(c1) into the Act. Section 78A provides as follows: "78A Separation and other variations in conditions of custody of inmates (1) Nothing in this Act requires the conditions of custody of inmates to be the same for all inmates or for all inmates in the same correctional centre or of the same classification or designation, including conditions with respect to association with other inmates. (2) An inmate or group of inmates in a correctional centre may be held separately from other inmates in the correctional centre for the purposes of the care, control or management of the inmate or group of inmates. (3) In particular, inmates may be separated because of a requirement of this Act or the regulations, because of the classification or designation of the inmates, because of the nature of any program being undertaken by the inmates or because of any intensive monitoring that is required of the inmates. (4) The making of a segregated custody direction under Division 2 is not required to authorise a separation of inmates. (5) Anything done or omitted that could have been validly done or omitted if this section (and section 79 (c1)) had been in force when it was done or omitted is taken to be, and always to have been, validly done or omitted." 115Section 79 is set out in full below, to allow s.79(c1) to be seen in context: "79 Regulations The regulations may make provision for or with respect to the following matters: (a) the management, control, administration, supervision and inspection of correctional centres and correctional complexes, (b) the procedure to be followed when admitting an inmate into a correctional centre, including the procedure for accepting or refusing custody of property in an inmate's possession when the inmate is admitted, (c) the classification of inmates into different categories and the separation of inmates by reference to the categories into which they have been classified, (c1) the designation of inmates for the purposes of or in connection with the management of security and other risks, (d) the procedure to be followed when releasing an inmate from a correctional centre, including the procedure for returning property accepted from an inmate when the inmate was admitted into the correctional centre, (e) the physical, psychological and spiritual welfare of inmates while in custody and following their release, (f) the kind of work that a convicted inmate may be directed to carry out under section 6 and the circumstances in which such a direction may be given, (g) the expenditure of money (or money's worth) by inmates, (h) the circumstances in which an inmate may lawfully acquire or retain possession of property (including money) within a correctional centre, (h1) the forfeiture and disposal of an inmate's abandoned or unclaimed property (including money), or of unhygienic or otherwise dangerous property (including money) received from, or sent to, an inmate, (h2) the seizure, forfeiture and destruction or other disposal of any property (including money): (i) brought into a correctional centre or correctional complex by any person in contravention of this Act, the regulations or any other law, or (ii) found within, sent to or delivered to a correctional centre or correctional complex and that it is unlawful for an inmate to acquire or retain possession of under this Act, the regulations or any other law, (h3) the seizure, forfeiture and destruction or other disposal of any drug, or any thing reasonably suspected of being a drug: (i) in the possession of an inmate, or (ii) in the possession of any other person in a correctional centre or correctional complex, or (iii) found within a correctional centre or correctional complex, or (iv) sent to or delivered to a correctional centre or correctional complex, (i) visits to inmates, including: (i) the days and times that visits may be allowed, and (ii) the maximum number of persons who may visit an inmate at the same time, and (iii) the classes of persons who may be prohibited from visiting inmates, and (iv) the conditions that must be observed by persons intending to visit an inmate before such a visit will be allowed, and (v) the procedures to be observed by visitors and inmates during visits, (j) the making and receiving of telephone calls by inmates, (k) the sending and receiving of letters and parcels by inmates, including the circumstances in which letters and parcels may be opened for inspection or confiscated, (l) the procedures to be followed by an inmate when applying for a local leave permit or interstate leave permit, and the circumstances under which such a permit may be issued, (m) the procedures to be followed by an inmate, and the facilities to be provided to an inmate, for the purpose of enabling the inmate to make a complaint to the general manager of the correctional centre or to any other person or body, (n) the observance by inmates of religious rites and obligations, (o) the acquisition by inmates of education and vocational training, (p) the provision to inmates of medical, surgical and dental treatment, (q) the distribution of condoms to inmates, (r) the circumstances in which a body search may be conducted on an inmate, the procedures to be followed in conducting a body search and the persons by whom, or in whose presence, a body search is to be conducted, (s) the circumstances in which a correctional officer may use force against an inmate, and the keeping of records of the occasions on which force is so used, (t) the circumstances in which a correctional officer may use firearms, and the keeping of records of the occasions on which firearms are so used, (u) the equipment that may be used to restrain an inmate, and the circumstances in which, and the maximum periods for which, an inmate may be restrained by means of such equipment, (v) the circumstances in which an inmate may be tested for drugs or alcohol, the use of a non-invasive sample provided by, or taken from, an inmate for the purposes of a test for drugs or alcohol and the nature of the tests to be used, (v1) analyses in connection with any such tests and the admission of certificates relating to the results of any such analyses as prima facie evidence in any proceedings for a correctional centre offence (within the meaning of section 51) being dealt with under this Act by a general manager or Visiting Magistrate, (w) (Repealed) (x) the appointment of medical officers for correctional centres, (x1) the appointment of ministers of religion and other spiritual advisors for correctional centres, (y) the functions of correctional officers and other staff employed within a correctional centre or correctional complex, (z) the form of any warrants issued for the purposes of this Part." 116It is appropriate to set out in full the second reading speech of the Minister for Corrective Services, the Hon John Robertson, with respect to the 2009 Bill which introduced ss.78A and 79(c1) (Hansard, Legislative Council, 23 June 2009, pages 16506-16507) (emphasis added): "The Government is pleased to introduce the Crimes (Administration of Sentences) Amendment Bill 2009, which amends the Crimes (Administration of Sentences) Act 1999, which I will hereafter refer to as the Act. This bill confirms current arrangements within the New South Wales correctional system for, firstly, the care, control and management of inmates in connection with the designation of inmates for the management of security and other risks; and, secondly, the separation of inmates from other inmates in a correctional centre. The amendments in the bill make it clear that nothing in the Act requires the placement or conditions of custody of inmates to be the same for all inmates. Further, it makes it clear that a decision to separate an inmate from other inmates does not constitute segregated custody of that inmate. This bill gives the Department of Corrective Services greater certainty in regards to how it can operate, it confirms the current capacity of the commissioner to manage the correctional system and it confirms that the commissioner is justified in using different conditions of custody to ensure inmates in that system are appropriately managed . Given the variety of reasons that inmates commit crimes and the varying nature of the crimes they commit, each inmate must be treated differently to ensure the good order, management and security of our correctional system. There are necessary distinctions between classification and designation of inmates and management regimes, compared with segregated custody directions and separation of inmates for management purposes. A recent case in the Supreme Court has necessitated the need to introduce this bill to reinforce those distinctions and the existing right of the Commissioner of Corrective Services to manage inmates in the appropriate way. This bill is necessary to confirm the intent of existing legislation and to make it abundantly clear that the conditions for custody for all inmates are not, and do not need to be, identical or equivalent . I turn now to the provisions of the bill. Schedule 1 [1] confirms current arrangements in that the conditions of custody of inmates may vary for different inmates, including with respect to association of inmates in the same correctional centre. The amendment confirms that inmates or groups of inmates may be held separately from other inmates in a correctional centre for the purposes of the care, control or management of a specific inmate or group of inmates. Any such separation may arise from a requirement of the Act or its regulation, the classification or designation of the inmates, any program undertaken by the inmates or any intensive monitoring required of the inmates . The amendment also confirms that inmates may be held separately from other inmates without the making of a segregated custody direction. There are two important concepts that need to be distinguished in modern correctional management. They are 'segregated custody' and 'separation' of inmates. Segregated custody is the process whereby the commissioner may direct that an inmate be held in segregated custody if of the opinion that association of the inmate with other inmates constitutes, or is likely to constitute, a threat to the personal safety of any other person, the security of a correctional centre, or the good order and discipline within a correctional centre. Such a direction is often made as a result of an explicit, exhibited behaviour by an inmate - for example, an assault on a fellow inmate or member of staff. Segregated custody is not a punishment. It is used where there are no other means of managing the inmate. The Act provides for an independent system of review of segregated custody directions at specified time frames . As part of the daily management of inmates subjected to a segregated custody direction, there may be restrictions imposed on an inmate regarding, for example, association with other inmates, the number of hours confined to the cell, access to telephones and the ability to work in industries. In the New South Wales correctional system, such management restrictions are not limited to inmates subject to a segregated custody direction. Other inmates who are not subject to such a direction may also be subject to constraints or restrictions regarding association with other inmates, the number of hours confined to a cell, access to telephones and the ability to work in industries . For example, an inmate undertaking a specific program, such as the Custody Based Intensive Treatment Program for Sex Offenders, will be located in a closed wing or unit in a correctional centre, and will be able to associate only with inmates undertaking that specific program. A similar situation prevails for inmates subject to a compulsory drug treatment order. These inmates are only located in the Compulsory Drug Treatment Correctional Centre at Parklea. While on stage one of that program, they are prohibited from having any visitors and can only associate with a tightly controlled group of other inmates with similar orders. The Department of Corrective Services also has to deal with inmates who form inmate factions within the system. These inmate factions have the potential to become what the commissioner describes as security threat groups . Once organised, the individual activities of such groups and the fall-out from the rivalries that can arise between them, can pose a real threat to the safety of staff, other inmates and the security of correctional centres. Therefore, for some years now the department has operated the Security Threat Group Intervention Program, which seeks to address the offending behaviour of inmates in these groups. It is a well-grounded principle in New South Wales penal law that inmates may be separated and managed according to their needs - whether, for example, the separation is for the purpose of addressing the inmate's criminogenic needs by way of programs and services, owing to an inmate's intellectual or physical disability, a medical condition or simply on the basis of gender . Some basic examples of this fundamental tenet may be found in the Crimes (Administration of Sentences) Regulation 2008 - for instance, clause 30, which provides for the separation of classes of inmates; clause 31, which provides for the separation of inmates on the basis of their sex; clause 32, which provides for the separation of inmates found or suspected to be in an infectious or verminous condition from other inmates; and chapter 2, part 2.2, which relates to the case management and classification of inmates. The Department of Corrective Services is the lead agency for State Plan priority R2 - that is, reducing re-offending. It has responsibility for reducing the levels of re-offending by 10 per cent over a 10-year period. The department's mission is to 'Manage offenders in a safe, secure and humane manner and reduce risks of re-offending' and its vision is to 'Contribute to a safer community through quality correctional services'. The department uses a variety of strategies to achieve its mission and vision, and to work towards achieving the State Plan target. One such strategy is the development and implementation of case plans addressing the criminogenic needs of offenders . A range of behavioural programs and services addressing offending behaviour are encouraged for those inmates where an assessment indicates that they should be undertaken. Programs may target, for example, attitudes, behaviours and cognitions which are supportive of crime or indicative of psychopathy and other anti-social behaviours and attitudes; drug and alcohol abuse; development of victim empathy by sex offenders; and/or anger and violence management. The types of programs an inmate may be placed in, or encouraged to participate in, and the extent of that participation will be determined, in part, by the inmate's level of risk of re-offending. Participation in some programs will inevitably entail separation from mainstream living conditions and attendant restrictions and limitations on daily routines in correctional centres and specified placements. The need for this bill arises from the fact that the conditions of custody for all inmates cannot be the same, nor do they need to be, and the possibility that there may be some misunderstanding of the distinction between the separation of inmates and the segregated custody of inmates . The separation of inmates and different conditions of custody is a fundamental tenet of modern penology and offender and correctional centre management . The ambit of the Act and its regulation are indicative of this. Hence, the bill amends the Act to confirm the current arrangement - namely, that the conditions of custody of inmates need not be the same for all inmates. The bill makes it clear that the conditions of custody of inmates may vary, including with respect to association with other inmates, whether on the basis of classification or designation of the inmate, or otherwise. The amendment ensures that anything previously done or omitted that would have been validly done or omitted had the amendment been in force at that time is taken to have been validly done or omitted . Schedule 1 [2] confirms that the regulation may make further provision for the designation of inmates for the management of security or other risks. There is already a general regulation-making power contained in section 271 of the Crimes (Administration of Sentences) Act with respect to any matter. However, for the sake of being prudent and in order to be consistent with section 79, which provides for some specific regulation-making powers with respect to full-time imprisonment, subsection (c1) is being inserted into the Crimes (Administration of Sentences) Act . Schedule 1 [3] enables savings and transitional regulations to be made as a consequence of the enactment of the proposed Act. I commend the bill to the House." 117Leading for the Opposition in the second reading debate, the Hon David Clarke did not oppose the Bill and made express reference to the fact that the Bill arose as a result of the 2009 finding in this litigation (Hansard, page 16508). Other references to this litigation in the Hansard debate confirmed this understanding. The Minister's speech in reply further confirmed this view (Hansard, pages 16518-16519) (emphasis added): "I thank all honourable members for their contributions to the debate. Although I note the late hour, I will address points raised by members during the debate. Ms Sylvia Hale is obviously confused about the nature of segregated custody directions as opposed to the separation of inmates. This bill makes no amendments to the segregated custody provisions of the Crimes (Administration of Sentences) Act 1999. The Act's provisions relating to segregated custody directions, including those for the independent system of review of directions at specified time frames, will remain . I also remind Ms Sylvia Hale that segregated custody does not constitute solitary confinement. In fact, the Crimes (Administration of Sentences) Act and its regulations specifically prohibit solitary confinement as a punishment. Segregated custody is a management mechanism used by the commissioner, with an independent system of review at specified time frames . Ms Sylvia Hale's comments confuse the notion of solitary confinement, which, as I said, does not exist in New South Wales. Segregated custody and separation are an excellent demonstration of the need to clarify the intentions of the Crimes (Administration of Sentences) Act. That is why the Government has introduced this legislation. The bill confirms that inmates may be held separately from other inmates in a correctional centre for the purposes of the care, control or management of a specific inmate or group of inmates. The concept of separation is already encapsulated in the Act . For example, male inmates are held separately from female inmates, maximum security inmates are held separately from minimum security inmates, remandees are held separately from convicted inmates, and inmates who are subject to a compulsory drug treatment correctional order are held separately from all other inmates. Honourable members should not think that managing an inmate or group of inmates separately from other inmates or groups of inmates means they will be held in isolated custody. It just means that the conditions of custody of inmates who may be held separately from other inmates, whether on the basis of classification or designation of the inmate, or otherwise, may vary, including with respect to association with other inmates . Ms Lee Rhiannon and Ms Sylvia Hale gave quite a bit of commentary on Commissioner Woodham. Ms Lee Rhiannon raised particularly the powers of the commissioner. Under section 232 of Act the commissioner already has very general powers: the care, direction, control and management of all correctional complexes, centres, periodic detention centres and residential facilities as well as the care, control and management of all offenders held in custody. This bill is not giving him any more power than he has already . Reference has been made to increases in violence, and further attacks have been made on Commissioner Woodham in this regard. Let me be clear about the role Commissioner Woodham has played in his time as commissioner. Inmate-on-inmate assaults have declined dramatically in the period of time that Commissioner Ron Woodham has operated as head of our corrections system. Assaults by inmates on prison officers have reduced significantly since Ron Woodham has been in charge of our corrections system. This notion that somehow violence is increasing in our corrections system is just wrong. It is wrong for anybody to come in here and make out that somehow violence is on the increase in our prisons when clearly that is not the case. Ron Woodham has done a fantastic job in driving down assaults in those areas and also in implementing programs dealing with the rehabilitation of inmates to avoid recidivism. This man and this department are responsible under the Government's State Plan for a 10 per cent reduction in recidivism in New South Wales. The range of techniques or innovative programs he has put in place for indigenous inmates is a credit to Ron Woodham. It is completely wrong and inappropriate for people who have some pathological disdain for the commissioner to seek to discredit him and the role he has played and continues to play effectively within the New South Wales corrections system. The amendments in the bill are necessary following a recent application by two inmates, which has been referred to by a number of members tonight. The matter before Justice Adams on 24 April gave inmates leave to proceed under the Felons (Civil Proceedings) Act 1981 because he was persuaded by the alleged facts that an arguable case in law exists for the awarding of damages for unlawful imprisonment in respect of the conditions of custody of the two inmates. The Commissioner of Corrective Services was expecting that leave would not be granted for the case to proceed in the Supreme Court. Given that the matter will proceed, the Government considers that this bill now is necessary to confirm the intent of the existing legislation and to make it abundantly clear that the conditions for custody for all inmates are not and do not need to be identical or equivalent . The bill reinforces the existing rights of the Commissioner of Corrective Services to manage inmates appropriately . If the inmates' substantive case under the Felons (Civil Proceedings) Act 1981 is successful, damages may be awarded. If damages are awarded, this will potentially open up the floodgates to every other inmate who has ever been held in any circumstances where his or her ability to freely associate has been curtailed - for example, under a specific correctional management program - from making a claim in New South Wales. The risk of damages is quite large. We have made these amendments retrospective to put beyond doubt what the current Crimes (Administration of Sentences) Act 1999 and its regulations clearly indicate: the separation of inmates always has been a necessary part of modern penal law in New South Wales. The retrospective nature of the bill is necessary in that it confirms the intent of the existing legislation and makes it abundantly clear that the conditions of custody for all inmates are not and do not need to be identical or equivalent . I commend the bill to the House." 118I have traced the statutory history, over the past 20 years, of the segregation power and more general powers in New South Wales prison legislation. I will return to this issue when resolving the competing submissions. However, it must be said that the concept of segregation, with all its checks and balances, appears to have been the applicable statutory vehicle for dealing with factors said to apply to the Plaintiff (security and "good order" issues), until the dichotomy between "segregated custody" and "separation of inmates" was introduced by the 2009 amendments. 119Finally, the 2009 Amendment Regulation established a new designation for inmates believed to constitute an extreme danger to other people or to good order and security who may engage in, or incite others to engage in, activities that constitute a serious threat to the peace, order or good government of the State or any other place. These inmates are known as "extreme high risk restricted inmates" and are subject to a stricter security and management regime than other inmates.

Resolution of Competing Submissions 120It is necessary to keep firmly in mind the stringent test which the Defendants must satisfy before summary dismissal of the Plaintiff's claim is granted (see [13]-[17] above). I accept that the issues falling for determination involve questions of law and issues of statutory construction. Nevertheless, the test requires demonstration that this is a clear and appropriate case for summary dismissal. 121Before the enactment of s.78A in 2009, a very significant question existed as to whether the practical measures taken by the Commissioner with respect to the Plaintiff could be taken other than by an order under s.10 CAS Act. The legislative history which I have outlined points to the establishment of the segregation and protection order powers in an elaborate scheme within the Prisons Act 1952 , the Correctional Centres Act 1952 and now the CAS Act. 122The extrinsic material surrounding the 1993 amendments to the segregation provisions indicates concern to limit the use of those powers to appropriate cases, and the creation of a system of checks and balances, involving review by SORC, where the powers were exercised. 123The Special Report, the 1993 extrinsic material and the second reading speeches concerning relevant amendments before 2009 do not suggest a distinction between segregation and separation of prisoners on "good order" or "management" grounds, with the latter power to be exercised outside the terms of s.10 CAS Act. The approach taken to the Plaintiff appears to be an example of "administrative segregation" , a practice which has been examined over many years in this State. Of course, amendments were made in 2009 which alter the position, but an accurate understanding of penal history in this area remains important. 124The Defendants' submission with respect to construction of the statute before the enactment of s.78A involves reliance upon general powers within the legislation for the care, control and management of correctional centres and inmates, to bring about restrictive conditions operating upon particular inmates. 125Arguments of this type have been advanced in other jurisdictions in Australia, with differing outcomes. 126In Kaufman v Smith [2001] VSC 420; 124 A Crim R 259, Eames J considered an argument, similar to the Anthony Hordern argument in this case, concerning action taken by Victorian prison authorities with respect to an inmate. Eames J referred at 266 [28]ff to the relevant principles as expressed by Deane J in Refrigerated Express Lines (A'Asia) Pty Limited v Australian Meat and Livestock Corp [1980] FCA 38; 44 FLR 455 (" Refrigerated Express" ) at 468-469 that, in determining whether action purported to be taken under general powers was valid, the rule applied where it appeared, as a matter of construction, that special provisions were intended exhaustively to govern the subject matter and whether general provisions, if held to be applicable to the specific subject matter, would constitute a departure from that intention by encroaching on the subject matter. Eames J observed that illustrations of the application of this principle occurred in Maybury v Osborne (above) and Bromley v Dawes (1983) 34 SASR 73 at 105. 127In Kaufman v Smith , the prison authorities argued that this was not an instance where general powers were being relied upon for the purpose of imposing punishment for prison offences. It was submitted that the general management powers and duties under the statute to act in the interests of safety and welfare of prisoners, and also a power to impose conditions on contact visit participation, created separate and distinct bases upon which denial of participation was justified. It was submitted that denial of contact visits could be justified in these ways as well. Eames J decided at 267 [32] that where the exercise of the general power is done in good faith, is within the scope of the power authorised, and is not so unreasonable as to be manifestly beyond power, then the mere fact that a consequence of the exercise of that power is that a prisoner is denied a privilege or benefit which he might otherwise have held unless charged and found guilty of a prison offence under separate disciplinary provisions, would not render the action unlawful. 128Eames J referred at 272-272 [46] to the decision of the Victorian Court of Appeal in Binse v Williams [1998] 1 VR 381 where a similar Anthony Hordern argument was considered in the context of a challenge to action taken concerning a Victorian prisoner. Charles JA, in Binse v Williams at 393, held that repugnancy could be found to exist only if it were the intention of the relevant provision that once regulations had been made under that section, no other power to impose restraints could survive, or secondly that provisions were intended to govern exhaustively that particular subject matter. Charles JA continued at 393: "When regard is also had to the governor's responsibility for the management, security and good order of the prison and safe custody and welfare of prisoners, I see no inconsistency between the survival of a power to impose restraints in the governor, provided the restraints are reasonable for the occasion in question, notwithstanding the making of regulations 36 and 39." 129Eames J applied this reasoning in Kaufman v Smith at 271-272 [46]-[47]. 130These decisions are generally instructive for the resolution of the first issue in this case. They point to reliance upon general powers concerning the care, control and management of correctional centres and inmates as a broad power able to be called in aid, even where the particular action which is taken may coincide with action which may be taken under a specific provision. The test is one of repugnancy and not simply whether there is overlap between the provisions. 131There have been prisoner cases in Australia where a contrary decision has been reached. In Sandery v South Australia (1987) 48 SASR 502, Olsson J held that a prisoner had been confined separately, without a necessary statutory order, and that the separate confinement was not authorised by general management and control powers. Olsson J observed (at 509-510) that the dictionary definition of "segregation" was "to separate, set apart or isolate from others" and that the statutory provision constituted "an exclusive code on the topic of separate confinement" . In Farr v Corrective Services Commission (Qld) (1999) 109 A Crim R 153, after examining specific and general provisions in the relevant statute, Moynihan J (at 156) concluded that the source of power to segregate the prisoner lay in the specific provision, which prevailed over the general provisions which constituted the framework for the operation of the correctional system. 132It is instructive to refer to the reasoning of Deane J in Refrigerated Express where the issue was whether repugnancy existed between general provisions of a statute and provisions dealing with a particular subject matter. Deane J examined the relevant provisions and said that they tended to "create two general prima facie impressions" (at 464). With respect to one set of provisions, Deane J observed that they did not "completely remove the potential conflict and overlapping" between the two sets of provisions (at 467). His Honour had regard to the fact that one set of provisions "contain an apparently comprehensive and internally cohesive code on the subject matter" and that "the specific matters to which reference has been made provide strong grounds for conclusion that the subject matter was not intended also to be governed by overlapping and, to a significant extent, conflicting prescriptions and controls" contained in the other set of provisions (at 467-468). After reciting relevant principles of construction concerning repugnancy between general and particular statutory provisions (at 468-469), Deane J concluded that the specific set of provisions "were intended by the Parliament to constitute an exhaustive code controlling and regulating" the relevant subject matter (at 469). 133The decision of Deane J in Refrigerated Express is cited frequently in cases dealing with the construction of statutes where there is said to be tension or conflict between specific and general provisions: Nystrom at 572 [2], 589 [59], 612 [149]; Deputy Commissioner of Taxation v Dick at 413 [131]; Kennon v Spry [2008] HCA 56; 238 CLR 366 at 410 [133]. 134I have referred to Refrigerated Express , in some detail, for several reasons. Firstly, Deane J's statements of principle have not been doubted in later decisions. Secondly, Refrigerated Express has been cited in the determination of cases in Victoria where there was said to be tension or conflict between general and specific provisions in prison legislation. Thirdly, the characterisation by Deane J of provisions as being "an apparently comprehensive and internally cohesive code on the subject matter" seems to aptly describe the segregated custody provisions in ss.10-22 CAS Act. 135The Defendants contend (at [44] above) that the Court may have regard to what are said to be "cumbersome consequences" of a finding that the two powers cannot co-exist, and that repugnancy is demonstrated. If the suggested cumbersome consequences flow from the need to comply with the elaborate segregation powers in ss.10-22 CAS Act, with their checks and balances, then that would be the requirement of the law, developed through the 20-year process referred to earlier in this judgment. 136An objective bystander might regard as curious a comparison between the elaborate provisions (with checks and balances) for segregation of prisoners (including on "good order" grounds) in ss.10-22 CAS Act and the sparse provisions for separation of inmates (including on "good order" grounds) in s.78A (and ss.79(c1) and 232(1)(a1) CAS Act). However, that is the result of Parliament's amendments in 2009. The terms of the statute, of course, remain a matter for Parliament. 137In making these observations, I have not overlooked the challenges which arise in the contemporary management of prisons and prisoners. However, it remains necessary, of course, that relevant powers be found in the statute. 138But for the enactment of s.78A in 2009, there was a clear and arguable issue on this aspect to go to trial, with the Plaintiff having reasonable prospects of success on this point. The legislative history of the segregation provisions in New South Wales prison legislation, referred to earlier in this judgment, would have assisted the Plaintiff in this regard. 139I turn to the provisions contained in s.78A. That section is decisive on this application. 140In the absence of some clear statement to the contrary, an Act will be presumed not to have retrospective operation. However, Parliament is not prevented from making laws which have retrospective operation: R v Kidman [1915] HCA 58; 20 CLR 425 at 451; Maxwell v Murphy [1957] HCA 7; 96 CLR 261 at 267; Knight v Corrections Victoria [2009] VSC 607 at [32]-[34]. 141The concept of statutory amendment to reverse the effect of a judicial decision is not, of course, unknown: Martinez v Minister for Immigration and Citizenship [2009] FCA 528; 177 FCR 337 at 341 [5]. 142A statute is to be given retrospective operation only to the extent necessitated by the clear intention of Parliament in the words of the statute: NSW Food Authority v Nutricia Australia Pty Limited [2008] NSWCCA 252; 72 NSWLR 456 at 486 [130]. 143Section 78A(5) provides that: "(5) Anything done or omitted that could have been validly done or omitted if this section (and section 79 (c1)) had been in force when it was done or omitted is taken to be, and always to have been, validly done or omitted." 144It has been said that the use of a phrase such as "is taken to be" is a convenient device for reducing the verbiage of an enactment: The Queen v Hughes [2000] HCA 22; 202 CLR 535 at 551 [24]. The phrase introduces a fiction or a hypothetical contrast, effectively deeming something to be what it is not: Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158 at 203 [115]. 145The terms of s.78A(5) make it tolerably clear that the provision applies to facts or events that have already occurred, in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to past events: Maxwell v Murphy at 267. The language of the provision is plain. That s.78A was intended to have retrospective operation is confirmed by the second reading debate in support of the 2009 Bill. 146As was the case in Knight v Corrections Victoria , I am satisfied that the retrospective operation of s.78A is beyond doubt. 147I accept the submissions of the Defendants concerning the proper construction of s.78A. I do not accept the Plaintiff's submissions (at [60]-[61] above) which sought to place a strained and unavailable construction upon the otherwise clear words in s.78A. 148It was not submitted for the Plaintiff that, if s.78A otherwise applied retrospectively to his circumstances, it did not apply to these proceedings. However, for abundant caution, I am satisfied that the provision operates with respect to these proceedings, given the clear words of s.78A and its statutory purpose. 149With respect to the ultra vires argument, I am well satisfied that the relevant Regulations upon which steps concerning the Plaintiff were taken are valid. I accept the submissions of the Defendants referred to at [51] to [55] and [72] above. The clear terms of ss.79 and 271 CAS Act provide an appropriate and proper foundation for the making of the Regulations which were acted on. 150I am therefore satisfied that the stringent test for summary dismissal has been demonstrated in this case and that the orders sought by the Defendants should be made.

Conclusion 151I am satisfied that the Defendants are entitled to the orders ought in the Notice of Motion. 152The determination of the Court on this application does not, in any respect, pass judgment upon the appropriateness of the steps taken with respect to the Plaintiff in custody, except to the extent that questions of statutory construction, and associated questions of law, have fallen for determination. 153The effect of my decision is that the Plaintiff's claim for relief, in the areas referred to earlier in this judgment (at [30]-[32] above), will be dismissed pursuant to Rule 13.4 Uniform Civil Procedure Rules 2005 . As those claims for relief will be dismissed, it is appropriate, as a consequential step, to strike out, pursuant to Rule 14.28 Uniform Civil Procedure Rules 2005 , other parts of the Amended Statement of Claim which relate solely to the claims for relief which are to be dismissed. 154For more abundant caution, I note that the orders which I will make will leave on foot the Plaintiff's claim for relief as contained in the following parts of the Amended Statement of Claim: (a) paragraph 3(c) and paragraphs 4, 10, 11 and 12 under the heading "Relief Claimed" ; (b) paragraphs 1-8, 15, 16, 23, 24, 26, 27, 28, 29, 43, 44, 45, 46(c) and (g), 47 and 48 under the heading "Pleadings and Particulars" . 155The Defendants have succeeded on the issues argued at the hearing of this Notice of Motion. However, I have determined that this success on the principal issue is the direct result of the enactment of the retrospective provisions in s.78A, which commenced on 26 June 2009. I am satisfied that costs should follow the event and that an order should be made that the Plaintiff pay the Defendants' costs of the Notice of Motion together with the Defendants' costs of the proceedings relating to that part of the proceedings which is dismissed, but only for the period on and after 26 June 2009. The Plaintiff contested the Notice of Motion unsuccessfully. However, the effective reason for his failure on the principal issue is the retrospective amendment. The Plaintiff ought not be required to pay the Defendants' costs for the period before that date. 156I make the following orders: (a) pursuant to Rule 13.4 Uniform Civil Procedure Rules 2005 , I dismiss the claims for relief in paragraphs 1, 2, 3 (except for subparagraph (c)), 5, 6, 7, 8 and 9 of the "Relief Claimed" part of the Amended Statement of Claim filed 5 August 2010; (b) pursuant to Rule 14.28 Uniform Civil Procedure Rules 2005 , I strike out paragraphs 9-14, 17-22, 25, 30-42 and 46 (except for subparagraphs (c) and (g)) of the "Grounds" section of the Amended Statement Claim filed 5 August 2010; (c) the Plaintiff is to pay the Defendants' costs of this Notice of Motion, but only for the period on and after 26 June 2009; (d) the Plaintiff is to pay the costs of the Defendants with respect to the proceedings which are dismissed in accordance with Order 1 made above, but only for the period on and after 26 June 2009. 157I will list the proceedings for directions before the Registrar in four weeks' time to allow the parties to determine the future course of the litigation in light of this judgment.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 March 2011

Prisons Act 1952(NSW)

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