Hamzy v Commissioner of Corrective Services

Medium Neutral Citation: Hamzy v Commissioner of Corrective Services [2025] NSWSC 1023

Hearing dates: 10 and 11 December 2024

Date of orders: 9 September 2025

Decision date: 09 September 2025

Jurisdiction: Common Law

Before: Rothman J

Decision: (1) The Court answers the separate questions posed in the following manner:
(a) The plaintiff is entitled to a declaration that clause 166(5) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“the CAS Regulation”) is invalid on account of inconsistency with s 228(5) of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the CAS Act”);
(b) The plaintiff is entitled to relief setting aside or declaring invalid the decision of an Assistant Commissioner on 8 April 2022 to decline to give him (the plaintiff) permission to make a telephone call to a legal practitioner;
(c) The plaintiff is not entitled to a declaration that the requirement in clause 94 of the CAS Regulation for the legal practitioners to undergo criminal record checks is invalid on account of:
(i) inconsistency with Chapter III of the Commonwealth Constitution; and/or
(ii) infringement of the constitutionally implied freedom of political communication;
(d) The plaintiff is not entitled to a declaration that the decision not to approve the use of tablets by inmates at the High Risk Management Correctional Centre for the making of personal telephone calls or telephone calls to legal practitioners was invalid;
(e) The plaintiff is entitled to a declaration that clause 115 of the CAS Regulation does not validly permit the opening and inspection, and reading and copying, of letters or parcels sent by an inmate to his or her legal practitioner; and
(f) The plaintiff is entitled to a declaration that clause 116 of the CAS Regulation does not validly apply to correspondence sent to a legal practitioner.
(2) The Court declares that clause 166(5) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“the CAS Regulation”) is invalid on account of inconsistency with s 228(5) of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the CAS Act”).
(3) The Court declares that the decision of an Assistant Commissioner on 8 April 2022 to decline to give the plaintiff permission to make a telephone call to a legal practitioner is and was invalid.
(4) The Court declares that clause 115 of the CAS Regulation does not validly permit the opening and inspection, and reading and copying, of letters or parcels sent by an inmate to his or her legal practitioner.
(5) The Court declares that clause 116 of the CAS Regulation does not validly apply to correspondence sent to a legal practitioner.
(6) Costs reserved.
(7) The proceedings are referred to the Registrar for further directions.

Catchwords: ADMINISTRATIVE LAW — judicial review — construction of regulation — validity of regulation — Crimes (Administration of Sentences) Regulation 2014 (NSW) (“CAS Regulation”) — inconsistency with the Crimes (Administration of Sentences) Act 1999 (NSW) — complaints to Official Visitor — whether decision to decline permission for plaintiff to call a legal practitioner was invalid — inconsistency of cl 94 of CAS Regulation with Commonwealth Constitution and/or implied freedom of political communication — criminal record checks for legal practitioners — whether decision not to approve use of tablets by inmates for personal calls or calls to legal practitioners was invalid — whether cl 115 of CAS Regulation permits opening etc of letters or parcels from inmates to legal practitioners — whether cl 116 of CAS Regulation applies to correspondence sent to legal practitioner

Legislation Cited: Australian Constitution, ss 51, 52
Crimes (Administration of Sentences) Act 1999 (NSW), ss 79, 228, 271
Crimes (Administration of Sentences) Amendment Act 2025 (NSW)
Crimes (Administration of Sentences) Amendment Bill 2025 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW), cll 3, 84, 94, 106, 113, 115, 116, 117, 118, 119, 165, 166, 167, 169
Inspector of Custodial Services Amendment Act 2025 (NSW)
Inspector of Custodial Services Act 2012 (NSW)

Cases Cited: Bank of New South Wales v Commonwealth (1948) 76 CLR 1; [1948] HCA 7
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10
Chevron Australia Holdings Pty Ltd v Commissioner of Taxation (2017) 251 FCR 40; [2017] FCAFC 62
Coco v The Queen (1994) 179 CLR 427 at 436; [1994] HCA 15
Coleman v Power (2004) 220 CLR 1; [2004] HCA 39
Electrolux Home Products v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at 284; [2003] HCA 33
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; [1956] HCA 10
R v Minister of State for the Interior (1972) 20 FLR 449
Raymond v Honey [1983] 1 AC 1
SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55
SDCV v Director General of Security (2022) 277 CLR 241; [2022] HCA 32
Sullivan v Secretary, Department of Transport (1978) 20 ALR 323
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Category: Principal judgment

Parties: Bassam Hamzy (Plaintiff) (self-represented)
Commissioner of Corrective Services
(Defendant)

Representation: Counsel:
Mr C Emmett SC / Ms E Jones
(Defendant)
Solicitors:
Crown Solicitor’s Office (Defendant)

File Number(s): 2023/039910

Publication restriction: N/A

JUDGMENT

1. HIS HONOUR: The plaintiff, Bassam Hamzy, is self-represented and seeks declarations from the Court and certain other orders. By order of the Court, six questions were identified to be determined separately from any other question in the proceedings. Those questions are:

2. Whether the plaintiff is entitled to a declaration that clause 166(5) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“the CAS Regulation”) is invalid on account of inconsistency with s 228(5) of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the CAS Act”);

3. Whether the plaintiff is entitled to relief setting aside or declaring invalid the decision of an Assistant Commissioner on 8 April 2022 to decline to give him (the plaintiff) permission to make a telephone call to a legal practitioner;

4. Whether the plaintiff is entitled to a declaration that the requirement in clause 94 of the CAS Regulation for the legal practitioners to undergo criminal record checks is invalid on account of:

(a) inconsistency with Chapter III of the Commonwealth Constitution; and/or (b) infringement of the constitutionally implied freedom of political communication;

4. Whether the plaintiff is entitled to a declaration that the decision not to approve the use of tablets by inmates at the High Risk Management Correctional Centre for the making of personal telephone calls or telephone calls to legal practitioners was invalid;

5. Whether the plaintiff is entitled to a declaration that clause 115 of the CAS Regulation does not permit (or validly permit) the opening and inspection, and reading and copying, of letters or parcels sent by an inmate to his or her legal practitioner; and

6. Whether the plaintiff is entitled to a declaration that clause 116 of the CAS Regulation does not apply (or validly apply) to correspondence sent to a legal practitioner.

7. Pursuant to the orders made on 7 June 2024, the defendant has filed and served a statement of facts agreed between the parties, which was filed on 23 September 2024. Except for certain issues of detail, the context in which these declarations are sought is relatively uncontroversial and the facts are within short compass.

8. The plaintiff was convicted of very serious offences, including murder; conspiracy to murder; being knowingly concerned in the importation of prohibited drugs; malicious wounding with intent to do grievous bodily harm; malicious discharge of a pistol with intent to do grievous bodily harm; discharge of a firearm with intent to commit an indictable offence; threatening to use a firearm with intent to prevent or hinder lawful apprehension; supplying a prohibited drug; supplying a prohibited drug in a commercial quantity; supplying a prohibited drug in a large commercial quantity; detaining a person in company with intent to obtain a financial advantage; assaulting a law enforcement officer; and knowingly dealing with the proceeds of crime.

9. At the time of the Agreed Facts, the plaintiff was serving a custodial sentence of 40 years and 3 months which will expire on 14 June 2042. The plaintiff is housed in the High Risk Management Correctional Centre at Goulburn and is classified as an Extreme High Risk Restricted (“EHRR”) inmate.

10. The proceedings came on for hearing before the Court on 10 December 2024 and the Court was aware that the legislature had introduced into the Legislative Assembly the Crimes (Administration of Sentences) Amendment Bill 2025 on 19 November 2024. It was passed on 12 December 2024.

11. Subsequent to the hearing, the Bill was introduced into the Legislative Council on 12 February 2025, certain amendments were made, which were agreed by the Legislative Assembly on 18 February 2025. The Bill was assented to on 2 March 2025 and impacts the legislative regime governing the issues relating to the questions before the Court.

12. As a consequence of the passing of the new legislation, leave was granted to file supplementary submissions in relation to the impact of the amending Act which were filed by the defendant and the plaintiff on 25 and 27 July 2025 respectively. The provisions of the (NSW) have not commenced. Relevant to these issues is also the amendment made to the by the (NSW), which has commenced.

Facts and background

9. The issues between the plaintiff and the defendant have been the subject of significant litigation. Judgments of this Court have dealt with the variety of issues agitated by the plaintiff in relation to the conditions imposed upon him as a result of his incarceration. In particular, the Court of Appeal dealt with very similar issues and issued judgment on 23 February 2022. [1] The Hamzy 2022 judgment obviates the necessity to repeat or reiterate much of the reasoning that would otherwise be required, including the history of the legislation and the common law.

10. The first question identified above deals with an invalidity that is said to exist in clause 166(5) of the CAS Regulation. The Regulation deals with the role of the Official Visitor and clause 166(5) of the CAS Regulations exempts complaints or enquiries received from, inter alia, prisoners categorised as EHRR, which is the category into which the plaintiff is classified, and other classifications (hereinafter referred to collectively as “relevantly classified inmates”).

11. The second question relates to a decision of an Assistant Commissioner to decline a request by the plaintiff to add a legal practitioner, Ms Bortolotti, to the plaintiff’s list of approved telephone contacts. As a fact, it is accepted by the parties that such a decision was reached.

12. At the time the decision was reached, the plaintiff had included on his list of approved telephone contacts six legal practitioners and an employee of a legal practice, none of whom was Ms Bortolotti.

13. By email dated 29 March 2022, Ms Bortolotti indicated to the defendant that she did not act for the plaintiff. Such fact is also uncontroversial.

14. The challenge to clause 94 of the CAS Regulation, the third question, relates to legal practitioners undergoing the criminal record check before being allowed to visit an EHRR inmate. It is accepted by the parties that the defendant requires such legal practitioners to undergo a criminal check before the defendant would approve the legal practitioner as a visitor to an EHRR inmate.

15. Lastly, in terms of the Agreed Facts, it is accepted by the parties that electronic tablets are made available to inmates at other prisons and were made available to the plaintiff at another correctional centre. Such inmates that are provided with the tablets are not permitted to use them to make personal telephone calls or telephone calls to legal practitioners.

16. The plaintiff does not have access to an electronic tablet at Goulburn, where he is currently accommodated. He did have access to a tablet from which he was able to make telephone calls in April 2023, November 2023 and January 2024, when he was housed at the Metropolitan Remand & Reception Centre, in relation to the first two dates, and at Long Bay Correctional Centre in relation to January 2024.

Legislative framework

30. As earlier indicated, the plaintiff’s challenge relates in part to that which are said to be implied freedoms and rights obtained or granted under the Constitution in relation, in particular, to federal offences. It also relies upon that which is said to be ultra vires conduct of the Commissioner of Corrective Services or his/her delegate.

31. The excess of jurisdiction is dependent upon two related matters: first, that properly construed, the regulations do not permit the conduct in which the Commissioner engaged; and second, to the extent that the regulations permit such conduct they are ultra vires the statute and/or inconsistent with the rights and/or freedoms granted by the Constitution.

32. As may have already been obvious, the relevant statutory framework is provided by the Crimes *(*Administration of Sentences) Act 1999 and the regulations made pursuant thereto. There is some indirect relevance associated with the operation of the I**nspector of Custodial Services Act 2012 (NSW), but the relevance of this statute is affected more directly by that which may ultimately commence and has been promulgated as the I**nspector of Custodial Services Amendment Act 2025.

33. The provisions of the CAS Act relevant to the current issues are ss 79, 228(5) and 271. Those provisions are in the following terms:

79 Regulations

(1) 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, including in relation to the good order, security and discipline of a correctional centre,

(b) the procedure to be followed when admitting an inmate into a correctional centre, including—

(i) the procedure for accepting or refusing custody of property in an inmate’s possession when the inmate is admitted, and

(ii) by authorising the Commissioner to make requirements in relation to the bringing of property of an inmate into a correctional centre,

(b1) the preparation and implementation of plans of management in respect of inmates or offenders, and the provision of services and programs in respect of inmates or offenders,

Note.

See also section 271A.

(c) the classification of inmates into different categories and the separation of inmates by reference to the categories into which they have been classified, including by authorising the Commissioner to classify and separate inmates,

(c1) the designation of inmates for the purposes of or in connection with the management of security and other risks, including by authorising the Commissioner—

(i) to designate inmates, and

(ii) to make requirements about the management of inmates of a particular designation,

(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, including by authorising the governor of a correctional centre to impose requirements about the welfare of inmates of the centre,

(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 or may not 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, including property sent to 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) kept by, 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, or

(iii) kept in an inmate’s cell that exceeds the quantity of property, specified in the regulations or determined by the governor, allowed in an inmate’s cell, or

(iv) that the governor or nominated officer considers may adversely affect the security, safety or hygiene of the correctional centre,

(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

(ia) the duration and termination of visits, and

(ib) the frequency of visits for certain classes of inmates, and

(ii) the maximum number of persons who may visit an inmate at the same time, and

(iii) by authorising the Commissioner to decide who is permitted to visit a correctional centre or an inmate, and

(iiia) by authorising the Commissioner to decide who is restricted or prohibited from visiting a correctional centre or inmate in an emergency or otherwise, and

(iiib) the persons who may be allowed to visit inmates in certain circumstances, and

(iiic) the keeping of records in relation to visits, and

(iv) the conditions that must be observed by persons intending to visit an inmate before such a visit will be allowed, including, on the request of an authorised officer, the provision of personal information about the person, and

(v) the procedures to be observed by visitors and inmates during visits, including behaviour not permitted during visits, and

(va) requirements relating to the correspondence of certain classes of inmates, and

(vi) without limiting subparagraphs (iv) and (v), the identification of visitors (including the removal of face coverings within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for that purpose), and

(vii) authorising the Commissioner to depart from requirements of the regulations in relation to communications being conducted in a particular language, or within the hearing of particular persons, and

(viii) the matters the Commissioner may regulate regarding visits to inmates, including the following—

(A) approving a person as a visitor to an extreme high risk restricted inmate or a national security interest inmate,

(B) requiring a person to undergo a criminal record check before approving the person as a visitor to an extreme high risk restricted inmate or a national security interest inmate,

(C) on the basis of a criminal record check—refusing to approve a person as a visitor to an extreme high risk restricted inmate or a national security interest inmate,

(D) revoking an approval of a person as a visitor to an extreme high risk restricted inmate or a national security interest inmate,

(i1) visits to inmates by persons providing services to inmates in accordance with a permit scheme established by the regulations, including—

(i) by authorising the Commissioner to issue, manage and cancel permits, and

(ii) conditions of a permit, including by authorising the Commissioner to impose conditions, and

(iii) the requirements of persons issued a permit when visiting the correctional centre,

(j) the making and receiving of telephone calls by inmates,

(k) the sending and receiving of correspondence by inmates, including the circumstances in which correspondence may be opened for inspection, read, copied or confiscated,

(k1) the arrangements for the inspection or examination of documents or other recorded material, excluding the reading of material, taken into a correctional centre by an inmate’s legal practitioner for the purpose of discussing or transacting legal business,

(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 or request to the governor 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,

(q1) the punishment or treatment of inmates, including punishments and treatments that are prohibited,

(q2) the circumstances in which the governor of a correctional centre must notify persons in relation to Official Visitors,

(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 another person, and the keeping of records of the occasions on which force is so used,

(t) the use of firearms by correctional officers, including the following, without limitation—

(i) the circumstances in which a correctional officer may carry, use or discharge a firearm,

(ii) training courses relating to the use of firearms, including by authorising the Commissioner to approve training courses,

(iii) safety procedures relating to firearms, including authorising the Commissioner to approve safety procedures,

(iv) the transfer of firearms,

(v) the notices to be given, records to be kept and reports required in relation to the carry, use or discharge of a firearm,

(vi) the storage of private firearms,

(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 testing of inmates for drugs or alcohol, including the following, without limitation—

(i) the circumstances in which an inmate may be tested for drugs or alcohol,

(ii) the use of a non-invasive sample provided by, or taken from, an inmate for the purposes of a test for drugs or alcohol,

(iii) the nature of the tests to be used,

(iv) the circumstances in which and persons with whom a test result may be shared by the Commissioner,

(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 51A) being dealt with under this Act by a governor or Visiting Magistrate,

(w) (Repealed)

(x) the appointment of medical officers for correctional centres,

(x1) the accreditation and authorisation, and the process of accreditation and authorisation, of ministers of religion and other spiritual advisors for correctional centres, including by authorising the Commissioner to accredit and authorise or decide the process,

(x2) the role, responsibilities and entitlements of ministers of religion, including accredited chaplains, 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,

(z1) authorising the Commissioner to approve documents required by the Act,

(z2) the records the Parole Authority must keep in relation to proceedings of the Parole Authority,

(z3) authorising the Commissioner to impose requirements on the keeping of records by a governor of a correctional centre,

(z4) authorising the Commissioner to approve biometric identification systems used for the purposes of identifying inmates, staff and visitors.

(2) Without limiting subsection (1), the regulations may make provision for or with respect to the treatment, accommodation and detention of Commonwealth post sentence terrorism inmates and NSW post sentence inmates.

(3) The regulations may authorise a matter or thing specified in subsection (1) to be determined, applied, regulated or otherwise dealt with, from time to time, by a person or body specified in the regulations.

(4) The Commissioner, the governor of a correctional centre or a principal security officer may appoint, approve or authorise a person or class of persons to carry out functions under this Act.

(5) Without limiting subsection (1)(i) and (j), the regulations may provide for the following—

(a) the cost of a service provided to an inmate to be met by the inmate, including a telephone call made or fax sent by the inmate,

(b) the costs incurred in processing or developing a photograph, film, tape or recording taken at a correctional centre and confiscated under the regulations to be met by the person who took the photograph, film, tape or recording.

(6) In this section—

dealt with includes approved, authorised, carried out, decided, permitted, refused, required or made the subject of a direction.

…

228 Official Visitors

…

(5) An Official Visitor for a correctional complex or correctional centre—

(a) unless prevented by illness or other sufficient cause, must visit the complex or centre at least once each month—

(i) for the purpose of giving interviews to correctional officers and other members of staff employed in Corrective Services NSW at the complex or centre, and

(ii) for the purpose of giving interviews to offenders held in custody at the complex or centre, and

(iii) for the purpose of examining the complex or centre, and

(b) may visit the complex or centre at any other time unless, in the opinion of the Commissioner, a visit would be undesirable for reasons of order or security, and

(c) must, in accordance with the regulations, receive and deal with complaints, and

(d) must, in accordance with the regulations, report to the Minister and the Inspector of Custodial Services at least once every 6 months, and

(e) has and may exercise such other functions as may be prescribed by the regulations.

…

271 Regulations

(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient for carrying out or giving effect to this Act.

(2) A regulation may create an offence punishable by a penalty not exceeding 20 penalty units.

34. Before outlining the provisions in the regulations that are relevant to the current proceedings, it should be noted that the provisions of s 228(5)(c) and (d) require the Official Visitor to receive and deal with complaints and report to the Minister and Inspector of Custodial Services at least once every six months, in each case “in accordance with the regulations”. Thus, the regulations and the process prescribed by them are central to the functions there described.

35. Many of the regulations are relevant to the current proceedings. They include clauses 94, 113, 115, 116, 119, 165, 166, 167 and 169.

36. Clause 94 of the CAS Regulation permits a person to visit an EHRR inmate, being an inmate in the classification of the plaintiff, only in circumstances where the person has been approved by the Commissioner as a visitor to that inmate. It also permits the Commissioner to require such a visitor to undergo a criminal record check before approving the person as a visitor to an inmate classified in that way.

37. By sub-clause (3), the Commissioner is permitted “on the basis of a criminal record check or for any other reason” to refuse to approve a person as a visitor to such an inmate and by sub-clause (4) may revoke an approval at any time.

38. The provisions of clause 94 are said not to limit the general power of a governor to refuse to allow a person to visit an inmate under clause 106, which deals with the refusal to allow a visit where the authorised officer is of the opinion that the visit “would prejudice the good order and security” of the correctional centre. The phrase “or any other reason” was determined not to be applicable to legal practitioners as it would otherwise be beyond power. [2]

39. Clause 113 of the CAS Regulation deals with correspondence to and from an inmate from an exempt body or exempt person and requires that the correspondence, in the case of a letter from an inmate, be sent to the exempt body or exempt person without opening, inspecting or reading the correspondence. Similarly, if correspondence is received from an exempt body or exempt person, the letter must be delivered to the inmate without opening, inspecting or reading it. There are requirements relating to a declaration from the exempt body as to the contents of the letter or parcel.

40. By sub-clause 113(4), if the nominated officer is of the opinion that the letter or parcel may contain prohibited goods, the letter or parcel is required to be opened by the inmate in the presence of the nominated officer and, if its contents do contain prohibited goods, the nominated officer may confiscate the letter or parcel and deal with it in accordance with the directions otherwise provided.

41. By sub-clause 113(5), the provisions of clause 113 do not apply to relevantly classified inmates. The immediately preceding exemption is contained in clause 115 which requires a governor or nominated officer (hereinafter “officer”) to open, inspect, read and copy the contents of any letter to a prisoner classified in that way.

Construction of the legislation and other principles

56. Each of the questions which the Court needs to answer, except question 3, depends upon the construction of the relevant statute and the determination of whether the statute permits regulations which are suggested as being the basis for the conduct impugned by the plaintiff. It is appropriate for the Court to reiterate the principles involved in the construction of a statute, with some particular rules relating to the interpretation of the Constitution and delegated legislation.

57. Construing a document is not achieved by simply obtaining the dictionary definition of the words and joining them together. The legal construction of every document is a process which seeks to obtain the intention of those that have crafted the document or have agreed to it. Each of the rules of construction are directed to ascertaining its true intention.

58. In dealing with the statutory construction, the High Court has clarified the object in construing a statute. The High Court said:

“However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out:

‘The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.’” [Footnotes omitted.] [5]

59. In dealing with seemingly conflicting provisions, the High Court also made clear that the construction must, prima facie, be construed so as to give effect to harmonious goals. In Project Blue Sky, supra, the plurality said:

“A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.” [Footnotes omitted.] [6]

60. To the extent that it was sometimes said that context and purpose were subsidiary to the ordinary and grammatical meaning of words, the High Court clarified that approach as well. The High Court said:

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” [Footnotes omitted.] [7]

61. Further to the above extract, Gageler J (as his Honour the Chief Justice then was), in SZTAL, supra, said:

“Mason J said in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd:

‘Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.’

Drawing on that statement, and its antecedents, Brennan CJ, Dawson, Toohey and Gummow JJ said in CIC Insurance Ltd v Bankstown Football Club Ltd:

‘[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.’

Both of those passages have been ‘cited too often to be doubted’. Their import has been reinforced, not superseded or contradicted, by more recent statements emphasising that statutory construction involves attribution of meaning to statutory text. The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility ’if, and in so far as, it assists in fixing the meaning of the statutory text’.

The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from ‘a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural’, in which case the choice ‘turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies’.

Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, ‘the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation is in that respect a particular statutory reflection of a general systemic principle’.” [Footnotes omitted.] [8]

62. In SZTAL, Gageler was in dissent. However, the principles embodied in the above extract do not differ from the principles otherwise outlined by the High Court, are consistent with the plurality in the same judgment, and do not suffer as a consequence of the judgment being in dissent. In construing legislation, the Court is required to examine the entirety of the statute and in that context determine from the words used in the statute the proper construction of the statute, giving the words a meaning that achieves both the purposes of the statute and harmonious goals of the provisions in the statute.

63. Despite or because of the emphasis on ascertaining the purpose of statutory provisions, and the objective nature of the task, it is the words of the statute from which the purpose and context is gleaned. However, there is a significant difference between utilising the words of the statute to determine the purpose of a provision and the resort to “narrow textualism” or the literal, non-purposive approach. [9]

64. In that regards, Edelman J said:

“The task of statutory construction involves the legal application of the meaning of statutory words, as interpreted, to the facts of a case. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd, this Court said that the task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in light of their purpose although legal rules can sometimes exclude or restrict the use of some context. In ascertaining the reasonably intended meaning of Parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where ‘the clearer the natural meaning the more difficult it is to justify departing from it’, so too in statutory interpretation ‘questions of degree arise’ and it will be more difficult to displace an interpretation that ‘has a powerful advantage in ordinary meaning and grammatical sense’." [Footnotes omitted.] [10]

65. Leaving aside for present purposes any implied limitation by operation of the Constitution, the issues in these proceedings depend upon the invalidity or repugnancy of regulations purportedly made under a statutorily conferred power. The Court has extracted already the regulation making provisions in the CAS Act.

66. The provisions of s 271 of the CAS Act expressly limit the power to make regulations. Regulations may be made “not inconsistent with [the CAS Act]”. The provisions of s 79 of the CAS Act are not expressly so limited, although, as determined by the Court of Appeal in Hamzy 2022, the provisions of s 79 of the CAS Act merely provide the details of a “matter that by [the CAS Act] is required or permitted to be prescribed or that is necessary or convenient for carrying out or giving effect” to the Act. [11]

67. In dealing with the interpretation of delegated legislation, the general rule is that there is no power or authority to make regulations that are inconsistent with the statute under which the regulation is purportedly promulgated. [12] Such a concept does not limit the regulations that are purported to be made to that which is already prescribed by the statute under which the regulations are made. However, the river does not rise higher than the source. Regulations may never prescribe that which is impermissible under the statute, nor render impermissible that which is required by the statute.

68. Such a repugnancy, if there be one, depends upon the proper construction of the statute in accordance with the ordinary principles of construction and the proper construction of the delegated legislation in accordance with the same principles. While the delegated legislation may be construed, bearing in mind the terms of the statute, the converse is impermissible. The terms of regulations made pursuant to the statutory power are not able to be utilised to extend or alter that which would be the ordinary, purposive construction of the statute.

69. The construction of the Constitution involves a different context. The Constitution has an ambulatory application in that it must take account of alterations in technology that, were they to have existed at the time of the construction of the document, would seem to fit the purpose of the legislative provision.

70. Nevertheless, the principles of construction, as with any document, depend upon the words of the Constitution, the purpose of the provisions and the context in which they have been promulgated. The principles of purposive construction in order to take account of the context of the Act are not novel.

71. In the Bank Nationalisation Case, [13] Dixon J (as the learned Chief Justice then was) said:

“To my mind the argument is answered by the principles of constitutional interpretation which this Court early in its history and from which, I believe, it has never intentionally departed.

They are well expressed in a passage from the judgment of O'Connor J. in the Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association which I shall quote:— ‘Where it becomes a question of construing words used in conferring a power of that kind on the Commonwealth Parliament, it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve. For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.’

The foundation of these principles is expressed by Higgins J. in Attorney-General for New South Wales v. Brewery Employés Union of New South Wales where he says, ‘although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting—to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be.’ His Honour proceeds to quote from Story, Commentaries, 2nd ed., s. 455: ‘While, then, we may well resort to the meaning of single words to assist our inquiries, we should never forget, that it is an instrument of government that we are to construe’.” [Citations omitted.] [14]

72. In dealing with the Constitutional principles associated with the issues in these proceedings, the defendant relied upon a passage in the plurality judgment in SDCV. [15] The terms of that judgment on which reliance was placed are:

“90 The primary responsibility for balancing the competing interests of open justice and national security in relation to immigration matters rests with the Parliament elected by the people and the executive government responsible to the Parliament. Chapter III of the Constitution does not deny Parliament the power to recognise, and balance, the competing interests that rationally and reasonably bear upon the terms on which a person may seek to vindicate in a court a claim to enjoy rights conferred by statute which are susceptible to removal by administrative decisions authorised by statute. Striking the balance of competing public interests requires consideration of expert opinion, predictive assessments, and political and social evaluations, the making of which is legislative rather than judicial in character. Chapter III of the Constitution separates the judicial power of the Commonwealth from legislative power; it does not diminish the legislative power of the Parliament within its proper field.” [Footnote omitted.] [16]

73. The last comment in the above extract is not intended, it seems, with respect, to be an absolute rule. Were it an absolute rule, the judgments in the Boilermakers’ Society, [17] Brandy [18] and K**able [19] would have been decided differently.

74. Unless one interprets the words from the above extract, “within its proper field”, as excluding the separation of judicial power from legislative power in the case of the Commonwealth and the protection and integrity of the courts exercising federal power in relation to the States, the subject matter of the legislative power in Boilermakers*’ Society* and Brandy were plainly within the field of operation of the legislative power of the Commonwealth.

75. Other interesting questions arise. If a law of the Commonwealth, otherwise the subject matter of a legislative grant of power, were to abolish the capacity of the courts to operate within the rule of law, there may be real issues associated with the power of the Parliament so to legislate. [20]

76. The Court need not decide any of the above issues and merely stresses that every judgment must be understood on the basis of the issues being decided by the Court in question and the context in which those questions are decided. For relevant purposes, the plaintiff relies upon the implied freedom of political communication as a basis for invalidating restrictions placed upon communications between the plaintiff and legal practitioners.

77. The implied freedom of political communication is based upon the circumstance that the Australian Constitution implements a parliamentary democracy, being a system of representative and responsible government and such a system cannot operate without a freedom of communication between the people and their representatives about government and political matters. As such, any impermissible restriction on such communication is inconsistent with the Constitution. It should be noted that the legislative powers conferred by ss 51 and 52 of the Constitution are conferred “subject to this Constitution”.

78. There are many statements of the principles associated with the implied limitation on the power of the legislature impermissibly to burden freedom of communication on political and governmental matters. In Coleman v Power, [21] McHugh J, after reciting some criticisms of the “reasonably appropriate and adapted” test formulated in Lange, [22] said:

“In determining whether a law is invalid because it is inconsistent with freedom of political communication, it is not a question of giving special weight in particular circumstances to that freedom. Nor is it a question of balancing a legislative or executive end or purpose against that freedom. Freedom of communication always trumps federal, State and Territorial powers when they conflict with the freedom. The question is not one of weight or balance but whether the federal, State or Territorial power is so framed that it impairs or tends to impair the effective operation of the constitutional system of representative and responsible government by impermissibly burdening communications on political or governmental matters. In all but exceptional cases, a law will not burden such communications unless, by its operation or practical effect, it directly and not remotely restricts or limits the content of those communications or the time, place, manner or conditions of their occurrence. And a law will not impermissibly burden those communications unless its object and the manner of achieving it is incompatible with the maintenance of the system of representative and responsible government established by the Constitution.

In the two-limb test formulated in Lange, the adjectival phrase ‘compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’ does not merely qualify the expression ‘legitimate end’. It qualifies the compound conception of the fulfilment of such an end, and the emphasis of the qualification is on the term ‘fulfilment’ rather than ‘end’. That is to say, it is the manner of achieving the end as much as the end itself that must be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. Of course, the end itself may be incompatible with the system of representative and responsible government. It will be incompatible, for example, if it is designed to undermine that system.

…

The true test was clearly expressed by Kirby J in his judgment in Levy v Victoria. After discussing a number of tests that have been used to determine whether a law is consistent with the freedom, his Honour said:

‘A universally accepted criterion is elusive. In Australia, without the express conferral of rights which individuals may enforce, it is necessary to come back to the rather more restricted question. This is: does the law which is impugned have the effect of preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides?’

(emphasis added)

In my view, this formulation accurately states the second limb of the Lange test. It emphasises that a law that burdens communications on political or governmental matters in the sense I have explained will be invalid unless it seeks to achieve an end in a manner that is consistent with the system of representative government enshrined in the Constitution.

When, then, is a law not reasonably appropriate and adapted to achieving an end in a manner that is compatible with the system of representative government enshrined in the Constitution? In my opinion, it will not be reasonably appropriate and adapted to achieving an end in such a manner whenever the burden is such that communication on political or governmental matters is no longer ‘free’. Freedom of communication under the Constitution does not mean free of all restrictions. The freedom is not absolute or equivalent to licence. The zone of freedom conferred by the constitutional immunity is not, as Higgins J said, in discussing s 52 of the Constitution, an ‘Alsatia for Jack Sheppards’, where law does not run. Communications on political and governmental matters are part of the system of representative and responsible government, and they may be regulated in ways that enhance or protect the communication of those matters. Regulations that have that effect do not detract from the freedom. On the contrary, they enhance it.

Hence, a law that imposes a burden on the communication of political and governmental matter may yet leave the communication free in the relevant sense. Thus, laws which promote or protect the communications or which protect those who participate in the prescribed system, for example, will often impose burdens on communication yet leave the communications free. On the other hand, laws that burden such a communication by seeking to achieve a social objective unrelated to the system of representative and responsible government will be invalid, pro tanto, unless the objective of the law can be restrictively interpreted in a way that is compatible with the constitutional freedom. Thus, a law that sought to ban all political communications in the interest of national security would be invalid unless it could be demonstrated that at the time such a prohibition was the only way that the system of representative government could be protected. In such a case, the issue would not be whether the needs of national security require the prohibition of communication on political and governmental matters. It would be whether, at that time, the system of representative government is so threatened by an external or internal threat that prohibiting all communication on political and governmental matters is a reasonably appropriate and adapted means of maintaining the system. A total prohibition would not be reasonable unless there was no other way in which the system of representative government could be protected. Ordinarily, the complete prohibition on, or serious interference with, political communication would itself point to the inconsistency of the objective of the law with the system of representative government.

It follows then that not all laws burdening communications on political and governmental matters are impermissible laws. They will be permissible as long as they do no more than promote or protect such communications and those who participate in representative and responsible government from practices and activities which are incompatible with that system of government. Thus, although defamation law burdens communications on political and government matters, the law of defamation, as developed in Lange, is now a reasonably appropriate and adapted means of protecting the reputation of those participating in political and governmental matters.

As the reasoning in Lange shows, the reasonably appropriate and adapted test gives legislatures within the federation a margin of choice as to how a legitimate end may be achieved at all events in cases where there is not a total ban on such communications. The constitutional test does not call for nice judgments as to whether one course is slightly preferable to another. But the Constitution's tolerance of the legislative judgment ends once it is apparent that the selected course unreasonably burdens the communication given the availability of other alternatives. The communication will not remain free in the relevant sense if the burden is unreasonably greater than is achievable by other means. Whether the burden leaves the communication free is, of course, a matter of judgment. But there is nothing novel about Courts making judgments when they are asked to apply a principle or rule of law. Much of the daily work of courts requires them to make judgments as to whether a particular set of facts or circumstances is or is not within a rule or principle of law.” [Footnotes omitted.] [23]

Consideration

79. The Court needs to apply the above principles to the separate questions posed, and which the Court needs to answer. The provisions of s 228 of the CAS Act permit the Minister to appoint Official Visitors.

80. Under the provisions of s 228(3), it is a requirement that Official Visitors be independent of the staff and/or management of correctional facilities. The function of an Official Visitor is to visit the correctional facility for which the person is responsible and give interviews to correctional officers, other members of staff, offenders held in custody, and to examine the correctional facility. The Official Visitor is required to receive and deal with complaints, in accordance with the regulations.

81. The purpose and context of s 228 involve the supervision of prisons, and Official Visitors who are appointed by the Minister are, by the section, required to ensure that any correctional officer or prisoner who has a complaint as to, inter alia, corrupt, improper or inappropriate conduct, has a procedure by which such complaint may be aired. The terms of Schedule 4 to the CAS Act confirm the need for independence of the Official Visitor and the limited basis upon which an Official Visitor may be removed from office. It also confirms the importance of having an Official Visitor appointed for each correctional facility.

82. The provisions of s 228(5) require the Official Visitor, unless prevented by illness or other such cause, to visit the complex or centre, inter alia, for the purpose of giving interviews to offenders held in custody at that complex or centre. Properly construed, the provisions of s 228(5)(a) are mandatory. The CAS Act requires the Official Visitor to attend a correctional centre for which the Official Visitor is responsible at least once a month for the purpose of giving interviews to offenders held there.

83. The provisions of s 228(5) of the CAS Act utilise the terms “may” and “must” and, properly construed, when using the term “must”, render the function mandatory. The reference in s 228(5)(c) to the receipt and dealing with complaints “in accordance with the regulations” does not allow for the proposition that the regulations could prohibit particular offenders or offenders within a particular class from lodging a complaint. Further, the provisions of s 228(5)(c) do not deal with “interviews” for offenders, which interviews are required under the provisions of s 228(5)(a)(ii).

84. The provisions of s 228(6) of the CAS Act point to the legislature’s attention to any exception to the requirement to give interviews to offenders held in custody, being that such interviews may occur only when the interviewee consents to such interview. Further, the chapeau to s 228(5)(a), particularly the limited basis on which the visit may not occur, points irrefragably to the mandatory nature and necessity of the Official Visitor’s visit to the correctional facility for which the Official Visitor is responsible for the purpose of giving such interviews.

“The starting point is the general principle stated by Lord Wilberforce in Raymond v Honey [1983] AC 1 at 10 that ‘under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication: see Reg v Board of Visitors of Hull Prison, Ex parte St Germain [1979] QB 425, 455 and Solosky v The Queen (1979) 105 DLR (3d) 745, 760, Canadian Supreme Court, per Dickson J’. The civil right in issue in Raymond v Honey was the right of access to the courts, which is closely connected with the right to a lawyer of one’s choice and the right to have confidential, privileged communications with that lawyer. All members of the House of Lords endorsed Lord Wilberforce’s statement in Leech, R (on the Application of) v Parkhurst Prison [1988] AC 533; [1988] UKHL 16. The application of the principle to the regulation making power was confirmed in R v Secretary of State for the Home Department, Ex Parte Pierson [1998] AC 539; [1997] UKHL 37.” [25]

100. After stating the general principle and acknowledging that it applied in New South Wales, albeit more recently than it had applied in the United Kingdom and Canada, Leeming JA traced the history, including the state of being attainted applicable to a person convicted of a felony and sentenced to death. His Honour then discussed the principle of “legality”, citing authority to the effect that “a citizen’s right to unimpeded access to the courts can only be taken away by express enactment”. [26]

101. In particular, Leeming JA referred to the approval given to the statement in Raymond v Honey in the judgment of the High Court in Coco. [27] Leeming JA came to the view that where it is said that there is an impact upon fundamental rights, the legislation requires “nothing short of express language in primary legislation” or language of “necessary implication”. [28]

102. The statement of general principle in Coco was the subject of comment by the High Court in Electrolux. [29] In Electrolux, Gleeson CJ, citing the general principle of legality that “courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakeable and unambiguous language”, [30] referred to the “presumption”, if it be a presumption, and that the generality of the principle “requires some qualification”.

103. The judgment of Gleeson CJ in Electrolux cited with approval the comments of McHugh J [31] and referred to the circumstance that “modern legislatures regularly enact laws that take away or modify common law rights”. [32] Gleeson CJ went on to say that “[t]he assistance to be gained from a presumption will vary with the context in which it is applied”. [33] In Electrolux, McHugh J, referring to the comments made by him in Gifford, referred to above, reiterated that the presumption as to “legality” was strong “when the right is a fundamental right of our legal system” and “weak when the right is merely one to take or not take a particular course of action”. [34]

104. Nevertheless, the Court of Appeal refers to a citizen’s right to unimpeded access to the courts being a fundamental right to be taken away only by express enactment or words of necessary intendment. [35] Further, the Court of Appeal differentiates between legislation necessarily directed at the curtailment of the right to physical liberty, such as the CAS Act, and the different right associated with the right to an inmate’s right to choose a lawyer and confer with that lawyer.

105. Notwithstanding the foregoing, the Court of Appeal determined that a regulation-making power could, as a matter of hypothesis, be capable of sustaining regulations which materially detract from the right to a lawyer of an inmate’s choice and to the privilege of communications with a lawyer.

Conclusion

120. For these reasons, the Court is of the view that Questions 3 and 4 should be answered in the negative and the other separate questions posed should be answered in the affirmative. While the questions posed ask whether there is an entitlement to a declaration, having decided that there is, it seems such declarations should be made.

121. The Court makes the following orders:

122. The Court answers the separate questions posed in the following manner:

(a) The plaintiff is entitled to a declaration that clause 166(5) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“the CAS Regulation”) is invalid on account of inconsistency with s 228(5) of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the CAS Act”); (b) The plaintiff is entitled to relief setting aside or declaring invalid the decision of an Assistant Commissioner on 8 April 2022 to decline to give him (the plaintiff) permission to make a telephone call to a legal practitioner; (c) The plaintiff is not entitled to a declaration that the requirement in clause 94 of the CAS Regulation for the legal practitioners to undergo criminal record checks is invalid on account of:

(i) inconsistency with Chapter III of the Commonwealth Constitution; and/or (ii) infringement of the constitutionally implied freedom of political communication;

(d) The plaintiff is not entitled to a declaration that the decision not to approve the use of tablets by inmates at the High Risk Management Correctional Centre for the making of personal telephone calls or telephone calls to legal practitioners was invalid; (e) The plaintiff is entitled to a declaration that clause 115 of the CAS Regulation does not validly permit the opening and inspection, and reading and copying, of letters or parcels sent by an inmate to his or her legal practitioner; and (f) The plaintiff is entitled to a declaration that clause 116 of the CAS Regulation does not validly apply to correspondence sent to a legal practitioner.

2. The Court declares that clause 166(5) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“the CAS Regulation”) is invalid on account of inconsistency with s 228(5) of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the CAS Act”).
3. The Court declares that the decision of an Assistant Commissioner on 8 April 2022 to decline to give the plaintiff permission to make a telephone call to a legal practitioner is and was invalid.
4. The Court declares that clause 115 of the CAS Regulation does not validly permit the opening and inspection, and reading and copying, of letters or parcels sent by an inmate to his or her legal practitioner.
5. The Court declares that clause 116 of the CAS Regulation does not validly apply to correspondence sent to a legal practitioner.
6. Costs reserved.
7. The proceedings are referred to the Registrar for further directions.

**********

Endnotes

Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16 (“Hamzy 2022”).

Ibid.

Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 115(4)

Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 84.

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] (McHugh, Gummow, Kirby and Hayne JJ).

Ibid, at [70].

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ).

Ibid, at [35]-[39] (Gageler J).

Chevron Australia Holdings Pty Ltd v Commissioner of Taxation (2017) 251 FCR 40; [2017] FCAFC 62 at [3] (Allsop CJ).

SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [64] (Edelman J).

Crimes (Administration of Sentences) Act 1999, s 271; Hamzy v Commissioner of Corrective Services, supra, at [216].

R v Minister of State for the Interior (1972) 20 FLR 449 at 458 (Fox J).

Bank of New South Wales v Commonwealth (1948) 76 CLR 1; [1948] HCA 7.

Ibid, at 332-333 (Dixon J).

SDCV v Director General of Security (2022) 277 CLR 241; [2022] HCA 32.

Ibid, at [90] (Kiefel CJ, Keane and Gleeson JJ).

R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; [1956] HCA 10.

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10.

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24.

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] (French CJ, Crennan and Kiefel JJ).

Coleman v Power (2004) 220 CLR 1; [2004] HCA 39.

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25.

Coleman v Power, supra, at [91], [92], [95]-[100].

Hamzy 2022.

Ibid, at [167] (Leeming JA, with whom on this issue Bathurst CJ and Basten JA agreed).

Ibid, at [224], citing Raymond v Honey [1983] 1 AC 1.

Coco v The Queen (1994) 179 CLR 427 at 436; [1994] HCA 15.

Ibid.

Electrolux Home Products v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40.

Ibid, at [19] (Gleeson CJ).

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at 284; [2003] HCA 33 at [36].

Electrolux, supra, at [19].

Ibid.

Ibid, at [118] (McHugh J), citing Gifford, supra.

Hamzy 2022, supra.

Sullivan v Secretary, Department of Transport (1978) 20 ALR 323 at 343.