//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWCA 140
respondent. Leave to appeal was refused for grounds 1 and 3 to 6 and granted for ground 2; the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs.
The Court of Appeal rejected the challenges to criminal record checks for visitors, including lawyers, to EHRR and NSI inmates. It reasoned that the Constitution does not guarantee an absolute right to consult any lawyer a prisoner chooses, and that cl 94 did not materially prevent inmates from obtaining legal services or communicating politically. It also found rational security explanations for disabling tablet calls and withdrawing tablets at the HRMCC. Leave to appeal was granted on the tablet issue but the appeal still failed. Leave was refused on the other grounds, and costs were ordered against the appellant.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,607 words · generated 07/10/2026
In Hamzy v Commissioner of Corrective Services [2026] NSWCA 140, the NSW Court of Appeal considered two groups of complaints arising from restrictions on communications by inmates at the High Risk Management Correctional Centre (HRMCC). Bassam Hamzy was serving a custodial sentence of 40 years and 3 months, due to expire on 14 June 2042. At the time relevant to the proceedings, he was designated an extreme high risk restricted (EHRR) inmate. The Court records that this designation was revoked on 17 February 2026 and that he was instead designated an extreme high security (EHS) inmate and a national security interest (NSI) inmate. [7], [13]
13 cited instruments linked from this judgment.
The first challenge concerned cl 94 of the Crimes (Administration of Sentences) Regulation 2014. It required a person to be approved by the Commissioner before visiting an EHRR or NSI inmate. The Commissioner could require a criminal record check and could refuse approval on the basis of that check. The appeal challenged the requirement as it applied to legal practitioners, arguing that it impaired access to courts and legal representation of choice, and infringed the implied freedom of political communication. [19], [47], [56]
The second challenge concerned tablets at the HRMCC. Tablets became available there from 30 November 2022, but telephone functionality was not enabled because calls could not be monitored. On 22 April 2024, the tablets were withdrawn following reported security concerns, including inmates accessing other inmates' tablets and personal information, locking others out, and using tablets to message other inmates about criminal activity. [35] Hamzy argued that not enabling calls and withdrawing the tablets were legally unreasonable, particularly because inmates at other facilities had access to tablets and calls. [41], [63]-[65]
The Court granted leave to appeal on the tablet issue, ground 2, but dismissed that ground. It refused leave on grounds 1 and 3 to 6, including the constitutional challenges and arguments about supplementary submissions and correspondence. It ordered Hamzy to pay the respondent's costs. [69], [77]-[78]
The judgment was delivered by Ball JA, with Bell CJ and Payne JA agreeing. [1]-[3]
The Court addressed the Chapter III argument by considering the steps in Hamzy's case. He argued that Chapter III implied a right of unfettered access to courts exercising federal judicial power, that the right included legal representation of a person's choice, and that cl 94 impeded or delayed that access. [47] The Court noted that the primary judge appeared to have addressed the distinction between a right to a fair trial and a right to legal representation. It also discussed Dietrich v The Queen, where the High Court rejected a common law right to legal representation at public expense but recognised that a court may, in an appropriate case, stay a prosecution if representation is essential to a fair trial. [50]-[51]
The Court did not decide the precise scope of any Chapter III right. It considered that unnecessary because the argument failed at the asserted right to consult any chosen lawyer without restriction. Whatever rights Chapter III might provide, they could not amount to an absolute right to consult a lawyer of choice in all circumstances. The Court reasoned that such an unrestricted right was not necessary to secure the right Hamzy asserted. [52]
The Court then relied on the practical effect of cl 94. Referring to the earlier Court of Appeal decision in Hamzy 2022, it said that the clause could prevent access to a very limited number of practitioners whose criminal backgrounds made them unsuitable to provide services to inmates in the relevant classifications. It could also delay an in-person or AVL meeting while a criminal record check was conducted. But the Court considered that the delay would most often not be substantial and that there were other means of communicating with a lawyer in the meantime. Those effects were not material in the context of the claimed right. [53] The judgment records that an unapproved practitioner could still communicate with an inmate by written correspondence and, under current practice, by up to three telephone calls. [32], [38]
An important qualification is that the Court assessed cl 94 by its practical effect when correctly applied, rather than by reference to an alleged instance of incorrect application. Hamzy relied on an occasion when he was refused a telephone call to a legal practitioner who was not on his approved list. The Court noted that this matter had been addressed by the primary judge under a separate question. It explained that an incorrect application might support other relief, but it did not determine whether cl 94 itself was valid. [54]-[55]
On political communication, the Court applied the framework stated in McCloy v New South Wales and described in Smith v Blanch: first, whether the law effectively burdens the freedom; second, whether its purpose is legitimate; and third, whether it is reasonably appropriate and adapted to that purpose. [57] The case failed at the first question. The Court said cl 94 was not directed at political communication by inmates and did not prevent communication through lawyers. An immaterial restriction on lawyer choice did not establish that political communication was effectively burdened. It also observed that inmates could communicate politically in other ways, including directly. [60] The Court rejected the suggestion that the implied freedom gave Hamzy a personal right to communicate with a lawyer of his choice about political and governmental matters. [61]
For the tablet issue, the Court accepted that the primary judge had not addressed the argument Hamzy had advanced about discrimination and apparent irrationality. That omission was why it granted leave on ground 2. [65]-[66] But the Court concluded that legal unreasonableness was not established. Applying Minister for Immigration and Citizenship v Li, it treated the question as whether the decisions lacked an evident and intelligible justification having regard to the purpose of the power. [65]
The Court emphasised that the classification system exists to permit different treatment of inmates in light of different risks. It considered the evidence that the tablets could not support monitored telephone calls, and that they had been withdrawn following identified security problems at the HRMCC. It also noted there was no evidence that comparable problems existed at other facilities. Access to a tablet at another facility, including access which the Commissioner’s witness attributed to oversight, did not determine what was required for the orderly operation of the HRMCC. [35]-[36], [67]-[68] The evidence therefore provided a rational justification for both decisions. [68]
The judgment did not present itself as changing the law. On cl 94, it proceeded on the basis that the Court of Appeal's earlier decision in Hamzy 2022 had already held that the clause applied to legal practitioner visits, subject to reading down the words “or for any other reason” in cl 94(3) in that context. The earlier court had concluded that the provision did not materially interfere with an EHRR inmate's ability to obtain a chosen lawyer. Both parties accepted the correctness of those conclusions in this appeal. [20]-[22]
The present decision reinforced that earlier approach. It applied the practical-effect analysis to the arguments and evidence then before it. In particular, it distinguished the validity of the clause from a complaint about its alleged misapplication. [53]-[55] The judgment does not determine whether any specific individual application of cl 94 was lawful beyond the matters identified in the record.
On the implied freedom, the Court applied the established structured inquiry rather than articulating a new test. It cited McCloy and relied on Smith v Blanch for the three questions to be asked. [57] Its conclusion was fact- and argument-specific: the challenge failed because the Court found no effective burden on political communication in the terms advanced. [60]-[61]
On administrative law, the Court applied the legal unreasonableness approach associated with Li. It treated the relevant question as whether there was an evident and intelligible justification, assessed against the purpose for which the relevant power was conferred. [65] It then held that the security evidence supplied that justification in relation to each tablet decision. [68] The judgment does not establish that every restriction on communication for a high-risk inmate is reasonable. Its reasoning depends on the risk-based classification and the particular evidence accepted in this case.
The Court also considered statutory amendments concerning the definition of “correspondence” in s 4A of the Crimes (Administration of Sentences) Act 1999 (NSW). It observed that the Regulation had not been amended to reflect all the statutory changes and that cl 122I(4) prevented inmates from using an electronic device to exchange messages with an approved legal practitioner for legal business. It accepted that the primary judge may have been wrong to suggest that there were no restrictions on email, but held that any such error was immaterial to the challenged cl 94 conclusions. [70]-[76]
At [52], the Court said that a Chapter III right could not give a person “an unfettered right to consult with a legal practitioner of the person’s choosing.” In plain English, the Court did not treat constitutional access to courts as a guarantee that a prisoner can meet or communicate with any particular lawyer without security conditions. It did not decide the full nature of the Chapter III right; it held that the absolute version advanced was not necessary to decide the appeal.
At [53], the Court explained that cl 94 might exclude a “very limited number” of practitioners and might delay a meeting while a criminal check was completed. It considered those effects not material in the circumstances described. This reasoning depended on the Court's view of the limited practical effect, including the existence of other channels of communication. It should not be read as finding that every delay or refusal will necessarily be immaterial.
At [55], the Court distinguished a provision's validity from the way an official may apply it. In plain English, if a decision-maker applies a valid rule incorrectly, the alleged error in that particular application does not by itself prove that the rule is invalid. The Court expressly left open that an incorrect application may give rise to other relief.
At [60], the Court said cl 94 was “not directed at political communications by inmates” and did not prevent political communication through lawyers. The Court's focus was whether the rule effectively burdened political communication, not whether it regulated lawyer visits in some way. It held that the limited restriction on lawyer choice identified in the case did not establish that kind of burden.
At [67], the Court stated that the issue was whether there was “a rational basis for discriminating between inmates of different classifications and in different correctional facilities.” This means that unequal treatment between inmate categories was not enough, by itself, to establish legal unreasonableness. The Court assessed the distinction against the security purpose of classification and the evidence about the HRMCC.
At [68], the Court concluded that the witness's evidence provided a rational justification for both tablet decisions. The significance is that the result rested not only on the general existence of security concerns, but on evidence explaining why calls could not be monitored and why tablets were withdrawn at the HRMCC.
The decision is most directly relevant where an EHRR or NSI inmate challenges the operation or validity of cl 94 on the ground that criminal record checks for legal practitioners impair access to courts or legal representation of choice. The Court's reasoning directs attention to the practical effect of the provision when correctly applied, including whether the restriction materially affects the ability to obtain legal services and what alternative communication methods remain available. [52]-[55]
It is also relevant to an implied freedom challenge where the claimed burden is that a security approval rule limits an inmate's choice of lawyer for political or governmental communication. The case rejects the proposition, on the arguments advanced, that this alone establishes an effective burden. It does not decide a different claim supported by evidence of a materially broader impact or a different legal argument. [56]-[61]
For legal unreasonableness, the case concerns decisions affecting communications technology in a high-security correctional setting. Relevant features included the inmate classifications, the stated inability to monitor tablet calls, security incidents involving tablet use, and the absence of evidence that comparable problems occurred at other facilities. [35], [65]-[68] The Court's reasoning suggests that the justification must be examined in relation to the purpose of the power and the evidence about the particular facility and risk. It does not say that a decision is reasonable merely because it concerns prison security.
The judgment may also be relevant where an appeal alleges that a primary judge failed to consider submissions or misunderstood a related statutory provision. Here, the Court treated the alleged email-related error as immaterial because it was not shown to affect the cl 94 conclusions. [70]-[77]
The judgment text provides no decisions after Hamzy [2026] NSWCA 140 and therefore does not establish how later courts have treated it. Its decision date is 21 July 2026, and the material supplied contains no subsequent judicial treatment.
The judgment does discuss earlier authorities. Most directly, it relied on Hamzy 2022, which had addressed cl 94 and the impact of criminal record checks on access to a chosen lawyer. The 2026 Court said the earlier conclusions were accepted by both parties and applied them to the issues before it. [20]-[22], [53]
For constitutional doctrine, it referred to APLA and Dietrich in examining the arguments about access to courts and legal representation, but expressly declined to resolve all questions about the scope of a Chapter III right. [49]-[52] It cited Unions NSW, Brown, McCloy and Smith v Blanch when explaining the implied freedom framework. [56]-[58] For legal unreasonableness, it applied the test associated with Li. [65] Those are the relationships stated in this judgment; the text does not establish later treatment of the 2026 decision.
The Court expressly left unresolved the precise nature of any rights that may be derived from Chapter III and whether such rights include a right to legal representation in circumstances beyond those necessary to decide this appeal. It found it unnecessary to determine those matters because the asserted right to an unfettered choice of lawyer failed. [50]-[52]
The judgment does not determine the legality of every refusal of approval under cl 94, nor does it decide the consequences of a particular incorrect application. It states that an incorrect application may give rise to other relief, but separates that question from the validity of the clause itself. [54]-[55]
The Court's implied-freedom conclusion addresses the argument that cl 94 restricted political communication by limiting lawyer choice. The judgment does not resolve how a different provision, or evidence of a materially different practical burden on political communication, would be assessed. [59]-[61]
The legal unreasonableness conclusion rests on the evidence about monitoring and security concerns at the HRMCC. The judgment does not decide how the test would apply if the evidence, the facility's circumstances, the inmate classification, or the available communication alternatives were materially different. [35], [67]-[68]
Finally, although the Court acknowledged that the primary judge may have been mistaken about email restrictions, it found that error immaterial to the issues on appeal. The judgment does not decide a separate challenge to cl 122I(4) or a broader challenge to electronic communications restrictions. [75]-[77]
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hamzy v Commissioner of Corrective Services [2026] NSWCA 140
Hearing dates: 6 July 2026
Date of orders: 21 July 2026
Decision date: 21 July 2026
Before: Bell CJ at [1]
Payne JA at [2]
Ball JA at [3]
Decision: (1) Refuse leave to appeal in relation to grounds 1 and 3 to 6 of the draft notice of appeal dated 9 January 2026;
(2) Grant leave to appeal in relation to ground 2 of the draft notice of appeal dated 9 January 2026;
(3) Appeal dismissed;
(4) The appellant is to pay the respondent’s costs.
Catchwords: CONSTITUTIONAL LAW – judicial power of Commonwealth – where cl 94 of Crimes (Administration of Sentences) Regulation 2014 requires visitors to extreme high risk restricted inmates to undergo criminal record checks – whether provision is an illegal fetter on a right to legal representation said to be derived from Chapter III of the Constitution – no unfettered right to consult with a legal practitioner of the person’s choosing – no material impact on the ability of an extreme high risk restricted inmate to obtain legal representation
CONSTITUTIONAL LAW – implied freedom of political communication – whether cl 94 impermissibly burdens the implied freedom of political communication – where provision not directed at political communications by inmates – no burden demonstrated
ADMINISTRATIVE LAW – judicial review – whether 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 legally unreasonable – rational justification for the relevant decision established
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), ss 4A, 71B(3), 76(3), 79, 271
Crimes (Administration of Sentences) Amendment Act 2025 (NSW)
Crimes (Administration of Sentences) Amendment (Miscellaneous) Regulation 2022 (NSW)
Crimes (Administration of Sentences) Regulation 2014 cll 15, 16, 74, 76(3), 79, 80(i)(a), 85, 86, 87(i), 93, 94, 100 to 103; 105 to 107; 108(i), 112, 113, 115, 116, 118, 119, 119B(i), 122A, 122I, 163
Felons (Civil Proceedings) Act 1981 (NSW), s 4
Legal Profession Regulation 2002 (NSW)
Supreme Court Act 1970 (NSW), s 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited: APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44
Brown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43
Deripaska v Minister for Foreign Affairs [2026] HCA 14
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Hamzy v Commissioner of Corrective Services [2025] NSWSC 1023
Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16
McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565
Palmer v Western Australia (2021) 272 CLR 505; [2021] HCA 5
Patsalis v New South Wales (2012) 81 NSWLR 742
Smith v Blanch (2025) 118 NSWLR 70; [2025] NSWCA 188
Sullivan v Secretary, Department of Transport (1978) 20 ALR 323
Unions NSW v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58
Category: Principal judgment
Parties: Bassam Hamzy (Applicant)
Commissioner of Corrective Services (Respondent)
Representation: Counsel:
Bassam Hamzy (Applicant - Self Represented)
J Davidson SC with E Jones and L Dargan (Respondent)
Solicitors:
Crown Solicitor’s Office (Defendant)
File Number(s): 2026/58693
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Clause 15 of the Crimes (Administration of Sentences) Regulation 2014 (CAS Regulation) permits the Commissioner of Corrective Services to designate an inmate as an “extreme high risk restricted” (EHRR) inmate. Under cl 94, the Commissioner may require a visitor to an EHRR inmate to undergo a criminal record check, and may, on the basis of the criminal record check, refuse to approve the person as a visitor to the inmate.
Bassam Hamzy is serving a custodial sentence in the High Risk Management Correctional Centre (HRMCC) at Goulburn and was designated as an EHRR inmate. He commenced proceedings seeking declarations concerning the validity of restrictions or limitations placed on his ability as an EHRR inmate to communicate freely with legal practitioners of his choice, including the validity of cl 94.
An order was made for the separate determination of six questions, which the primary judge answered in a judgment delivered on 9 September 2025. In answer to questions (3) and (4), the primary judge determined that: (a) Mr Hamzy was not entitled to a declaration that the requirement in cl 94 of the CAS Regulation for legal practitioners to undergo criminal record checks is invalid on account of (i) inconsistency with Chapter Ill of the Commonwealth Constitution and/or (ii) infringement of the constitutionally implied freedom of political communication; and (b) Mr Hamzy was not entitled to a declaration that the decision not to approve the use of tablets by inmates at the HRMCC for the making of personal telephone calls or telephone calls to legal practitioners was invalid.
Mr Hamzy sought leave to appeal against the primary judge’s answers to questions (3) and (4).
Grounds 3 to 5 of the draft notice of appeal related to the primary judge’s answer to question (3). Mr Hamzy’s argument in relation to Chapter III of the Constitution had the following steps: (1) Chapter III of the Constitution confers on every citizen an implied right to have unfettered access to courts exercising the judicial power of the Commonwealth; (2) a necessary element of the right referred to in (1) is the right to have legal representation of the citizen's choice before such courts; (3) cl 94 of the CAS Regulation in its operation and effect impedes, delays or hinders access by EHRR inmates to legal representation of their choice; (4) therefore, clause 94 is an illegal fetter on the right referred to in (1).
Ground 2 related to the primary judge’s answer to question (4). Mr Hamzy’s argument was that the relevant decision was legally unreasonable. The Commissioner filed a draft notice of contention seeking to uphold the primary judge’s answer to question (4) on the basis that the relevant decision was not unreasonable.
Grounds 1 and 6 are errors that are said to have had a possible effect on the primary judge’s conclusions in relation to the issues raised by grounds 3, 4 and 5. Ground 1 concerned the alleged failure of the primary judge to take into account supplementary submissions filed by Mr Hamzy on 3 July 2025. Ground 6 related to an alleged failure by the primary judge to address the definition of “correspondence” in s 4A of the Crimes (Administration of Sentences) Act 1999 (NSW).
The Court (Ball JA, Bell CJ and Payne JA agreeing) held, granting leave to appeal in part and dismissing the appeal:
Grounds 3-5
APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44; Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, referred to.
Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16 (Hamzy 2022), discussed.
Hamzy 2022, discussed.
Unions NSW v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58; Brown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43; McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34; Smith v Blanch (2025) 118 NSWLR 70; [2025] NSWCA 188, cited.
O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565; [1954] HCA 29; Palmer v Western Australia (2021) 272 CLR 505; [2021] HCA 5; Deripaska v Minister for Foreign Affairs [2026] HCA 14, referred to.
Ground 2 and the notice of contention
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, applied.
Grounds 1 and 6
BELL CJ: I agree with Ball JA.
PAYNE JA: I agree with Ball JA.
BALL JA: By a second amended summons filed on 27 June 2023, Mr Bassam Hamzy sought various declarations concerning the validity of restrictions or limitations placed on his ability as an extreme high risk restricted (EHRR) inmate who is housed in the High Risk Management Correctional Centre (HRMCC) at Goulburn to communicate freely with legal practitioners of his choice.
On 7 June 2024, Meagher JA ordered pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that six questions arising from the second amended summons be determined separately from any other question in the proceedings. Those questions were answered by Rothman J (the primary judge) in a judgment delivered on 9 September 2025: see Hamzy v Commissioner of Corrective Services [2025] NSWSC 1023 (primary judgment or PJ). Mr Hamzy seeks leave to appeal against the answers given by the primary judge to questions (3) and (4), which were in the following terms:
(3) Whether [Mr Hamzy] is entitled to a declaration that the requirement in cl 94 of the [Crimes (Administration of Sentences) Regulation 2014] 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 [Mr Hamzy] is entitled to a declaration that the decision not to approve the use of tablets by inmates at the [HRMCC] for the making of personal telephone calls or telephone calls to legal practitioners was invalid;
(c) [Mr Hamzy] is not entitled to a declaration that the requirement in clause 94 of the [Crimes (Administration of Sentences) Regulation 2014] for the legal practitioners to undergo criminal record checks is invalid on account of:
(i) inconsistency with Chapter Ill of the Commonwealth Constitution; and/or
(ii) infringement of the constitutionally implied freedom of political communication;
(d) [Mr Hamzy] is not entitled to a declaration that the decision not to approve the use of tablets by inmates at the [HRMCC] for the making of personal telephone calls or telephone calls to legal practitioners was invalid;
Mr Hamzy, who represented himself, is currently serving a custodial sentence of 40 years and 3 months that expires on 14 June 2042. He has been convicted of multiple offences including murder, conspiracy to murder and various offences having to do with the importation and supply of prohibited drugs, including offences committed while he has been in prison.
Section 79 of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act) relevantly provided at the time of the hearing before the primary judge:
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,
…
(b1) the preparation and implementation of plans of management in respect of inmates, and the provision of services and programs in respect of inmates,
(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,
…
(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, 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),
(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,
…
Section 79 has since been amended to expand or to make clearer the scope of the regulation-making power, but not in a way that either party suggested affected the outcome of this appeal.
Section 271 relevantly provides:
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) …
15 Designation of high security, extreme high security, extreme high risk restricted and national security interest inmates
(1) The Commissioner may designate an inmate as a high security inmate if of the opinion that the inmate constitutes—
(a) a danger to other people, or
(b) a threat to good order and security.
(2) The Commissioner may designate an inmate as an extreme high security inmate if of the opinion that the inmate constitutes—
(a) an extreme danger to other people, or
(b) an extreme threat to good order and security.
(3) The Commissioner may designate an inmate as an extreme high risk restricted inmate if of the opinion that—
(a) the inmate constitutes—
(i) an extreme danger to other people, or
(ii) an extreme threat to good order and security, and
(b) there is a risk that the inmate may engage in, or incite other persons to engage in, activities that constitute a serious threat to the peace, order or good government of the State or any other place.
(3A) The Commissioner may designate an inmate as a national security interest inmate if of the opinion that there is a risk that the inmate may engage in, or incite other persons to engage in, activities that constitute a serious threat to the peace, order or good government of the State or any other place.
(4) Subject to clause 17, the Commissioner may at any time vary or revoke a designation under this clause.
…
16 Management of high security, extreme high security, extreme high risk restricted and national security interest inmates
The Commissioner may make determinations with respect to the following—
(a) the placement in correctional centres of high security, extreme high security, extreme high risk restricted and national security interest inmates,
(b) the movement of high security, extreme high security, extreme high risk restricted and national security interest inmates for any purpose,
(c) any additional security arrangements to be imposed in respect of high security, extreme high security, extreme high risk restricted and national security interest inmates,
(d) case plans for high security, extreme high security, extreme high risk restricted and national security interest inmates,
(e) any other matter that is relevant to the management of high security, extreme high security, extreme high risk restricted and national security interest inmates.
Mr Hamzy’s designation as an EHRR inmate was revoked on 17 February 2026. Instead, he was designated as an extreme high security (EHS) inmate and a national security interest (NSI) inmate.
Part 5 of the CAS Regulation deals with “Visits and communications”. By cl 74, the governor of a correctional centre may permit a person to visit the centre, either generally or for the purpose of seeing a particular inmate. Under cl 76, which provides for the number of visits that may be made, “an extreme high risk restricted inmate may be visited once a week only, or more often if the Commissioner so determines”: cl 76(3). An inmate may refuse to receive a visitor other than a “government official engaged on official duties”: cl 79. An inmate who is confined to his or her cell is not entitled to be visited except in the case of “a visit to discuss or transact legal business”: cl 80(1)(a).
Division 2 of Part 5 deals with “Special visits: legal business, foreign nationals, Aboriginal persons”. It includes the following clause:
82 Visits to transact legal business
In addition to any other visit authorised by this Regulation, an inmate is entitled to be visited by the inmate’s legal practitioner.
Visits by legal practitioners can only be made by prior appointment with the governor: cl 85. They are not restricted in duration or number, but they must be made during normal visiting hours, although the governor has power to extend visiting hours to permit such a visit: cl 86.
Division 3 provides for the issuing of permits to visit correctional centres “for any official, scientific, religious, educational, sociological or other purpose approved by the Commissioner”: see cl 87(1).
Division 4 deals with “Control of visits to correctional centres and inmates”. It applies to all visits under Division 1, 2, or 3 (including, relevantly, visits by a legal practitioner under cl 82). Visitors may be subject to requirements under cl 93, including producing evidence of their name and address and stating the purpose of their visit (cl 93(3)), submitting to scanning by means of an Xray scanning device (cl 93(2A)), or removing face coverings (cl 93(3)-(6)). Failure to comply with such a requirement may result in an authorised officer refusing to allow the person to visit a correctional centre: cl 93(7).
Clause 94 provides:
94 Approval of visitors to extreme high risk restricted inmates and national security interest inmates
(1) A person may visit an extreme high risk restricted inmate or a national security interest inmate only if the person has been approved by the Commissioner as a visitor to that inmate.
(2) The Commissioner may require a visitor 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.
(3) The Commissioner may, on the basis of a criminal record check or for any other reason, refuse to approve a person as a visitor to an extreme high risk restricted inmate or a national security interest inmate.
(4) The Commissioner may revoke an approval of a person as a visitor to an extreme high risk restricted inmate or a national security interest inmate at any time.
(5) The Commissioner may authorise a departure from the requirements of this clause in respect of a particular visitor or a particular visit.
(6) This clause does not limit the general power of a governor to refuse to allow a person to visit an inmate under clause 106.
As the respondents submitted, the rights enjoyed by inmates are not absolute, and are subject to the need to enforce security in a custodial environment. It is also necessary to bear in mind the EHRR designation, which reflects an assessment of an extreme risk of serious criminality. There is a powerful case supporting the appropriateness of a measure requiring any person seeking to visit an EHRR inmate to be subject to a criminal record check. On the other hand, the impact upon the inmate’s right to the lawyer of his or her choice is apt to be minimal. Few practising lawyers will have committed serious offences, and if they have, they will be required to declare them to the appropriate regulatory authority which may take steps to restrict their practice.
[222] … [T]he power in s 79(1)(i)(iv) to make regulations with respect to the conditions that must be observed by persons intending to visit an inmate before such a visit will be allowed sustains a requirement extending to an inmate’s legal practitioner, no differently from any other visitor, to subject himself or herself to a criminal record check, and to a power to refuse permission to visit if the legal practitioner’s criminal record suggests a risk if he or she visits an EHRR inmate. That aspect of cl 94 has not been shown materially to interfere with an EHRR inmate’s right to his or her chosen lawyer, nor is it inconsistent with any provision of the statute.
Both parties properly accepted the correctness of those conclusions in this appeal.
Physical contact between visitors and inmates may be prevented under cl 100. Under cl 101, visits to EHRR inmates must be conducted in English or another language approved by the Commissioner, and within the hearing of a correctional officer or interpreter approved by the Commissioner, unless the Commissioner authorises a departure from the clause in respect of a particular visitor or visit. By cl 102, visits must take place within sight of a correctional officer unless the governor permits otherwise.
Clause 103 contains provisions relating to the inspection of documents taken into a correctional centre by an inmate’s legal practitioner.
Visits by legal practitioners under cl 82 are also expressed to be subject to the “General restrictions on persons who may visit” contained in Division 5: see cl 105. Relevantly, the governor of a correctional centre (or specified other staff) may refuse to allow a person to visit a correctional centre or an inmate if of the opinion that “the visit would prejudice the good order and security of the centre” (cl 106), or that the person is under the influence of alcohol or a drug (cl 107). The Commissioner also has the ability to bar a person from visiting an inmate at a correctional centre if the Commissioner considers that the visit would prejudice the good order and security of any correctional centre, or the visitor has, during the current visit or during a previous visit, acted in a threatening, offensive, indecent, obscene, abusive or improper way: cl 108(1).
Written communications with inmates are subject to Division 6. Under cl 112, letters and parcels may be opened, inspected and read. However, cl 113 relevantly contains special provisions relating to correspondence between an inmate and a legal practitioner, which may not be opened but which an inmate can be required to open in the presence of a nominated officer. Clause 113 is expressed to be subject to cl 115.
Clause 115 deals with correspondence with Category AA male inmates, Category 5 female inmates, EHRR inmates and NSI inmates. Clause 115(1) establishes a “general rule regarding correspondence” that the governor of a correctional centre or a nominated officer must, subject to the clause, open and inspect, and read and copy the contents of, any letter or parcel sent to any person or body by, relevantly, an EHRR inmate, or sent from any person or body to an EHRR inmate. Exemptions in relation to correspondence to and from exempt bodies (the definition of which does not include legal practitioners) are provided for in subcll (2) and (3). Clause 115(4) provides:
(4) Correspondence from legal practitioners As soon as practicable after receiving a letter or parcel addressed to a Category AA male inmate, a Category 5 female inmate, an extreme high risk restricted inmate or a national security interest inmate from a legal practitioner, a nominated officer must deliver the letter or parcel to the inmate without opening, inspecting or reading its contents, but only if—
(a) the letter or parcel is accompanied by a note addressed to the governor—
(i) requesting that it be delivered to the inmate without being opened, inspected or read by any person other than the inmate, and
(ii) declaring that it does not contain any prohibited goods, and
(iii) claiming that the contents relate to the inmate’s affairs and are legally privileged, and
(iv) including the name and contact details of a person who can be contacted to confirm that the letter or parcel was in fact sent by the legal practitioner, and
(b) a nominated officer has confirmed with the legal practitioner that the practitioner has in fact sent it and addressed it to the inmate.
However, if a nominated officer is of the opinion that a letter or parcel from a legal practitioner contains prohibited goods or contravenes the CAS Regulation, a nominated officer may require an EHRR inmate to open the letter or parcel in the presence of the nominated officer: cl 115(5).
Clause 115 was the subject of question (5) of the separate questions stated by Meagher JA. The primary judge answered that question by stating that Mr Hamzy was entitled to a declaration that that clause “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”. There is no appeal against that order.
Clause 116 imposes additional requirements for correspondence from EHRR inmates. All correspondence from the inmate must be written in English or another authorised language, unless otherwise authorised by the Commissioner (cl 116(1)), and correspondence from the inmate addressed to any person other than an exempt body in a language other than English may be translated (cl 116(2)). Clause 116(3) provides that an EHRR inmate must have the written approval of the Commissioner to send a letter or parcel, unless the letter or parcel is addressed to, relevantly, an exempt person (which includes a legal practitioner). Clause 116 was the subject of question (6) of the separate questions stated by Meagher JA. The primary judge answered that question by declaring that the clause “does not validly apply to correspondence sent to a legal practitioner”. There is no appeal against that order.
Clause 118 provides:
118 Correspondence with legal practitioners
Subject to clauses 115 and 116, this Regulation does not limit correspondence between an inmate and the inmate’s legal practitioner in respect of any matters affecting the inmate’s trial, conviction or imprisonment.
Division 7 deals with the use of telephones and fax machines by inmates. Relevantly, an inmate must not make a telephone call without the permission of an authorised officer (cl 119(1)), and a telephone call made or received by an inmate may be monitored or recorded unless a party to the telephone call is an exempt person, which includes a legal practitioner: cl 119B(1). Although not the subject of evidence, the Court was informed by Ms Davidson SC, who appeared for the Commissioner, that the current practice was to permit an EHRR or NSI inmate to have three telephone calls with a legal practitioner who has not been approved to visit the inmate under cl 94.
Division 7A deals with the use of electronic devices provided to or that may be accessed by inmates, including for the conducting of AVL visits (that is, a visit by audio visual link). It was introduced on 26 August 2022 by the Crimes (Administration of Sentences) Amendment (Miscellaneous) Regulation 2022 (NSW). Subdivision 2 contains provisions in relation to EHRR and NSI inmates which largely mirror the provisions in relation to physical meetings. Relevantly, cl 122D provides:
122D Approval of visitors to extreme high risk restricted inmates and national security interest inmates
(1) A person may undertake an AVL visit with an extreme high risk restricted inmate or a national security interest inmate only if the person has been approved by the Commissioner.
(2) The Commissioner may require a person, including a legal practitioner, to undergo a criminal record check before permitting the person to undertake an AVL visit if the visit is to—
(a) an extreme high risk restricted inmate, or
(b) a national security interest inmate.
(3) The Commissioner may, on the basis of a criminal record check, refuse to approve a person for the AVL visit.
(4) The Commissioner may revoke the approval of a person.
An inmate must not use a provided device to send messages to, or receive messages from, an approved recipient who is a legal practitioner for the purposes of transacting legal business or in relation to the inmate’s legal matters.
“Provided device” is defined in cl 122A to mean “an electronic device provided to, or that may be accessed by, an inmate for use under this Division”.
It was an agreed fact in the court below that inmates in the HRMCC are not permitted to use tablets to make personal calls or telephone calls to legal practitioners. Ms Leah Nicholson, the governor of the HRMCC and Goulburn Correctional Centre, gave affidavit evidence that from 2020, electronic tablets were made available to inmates as part of a rollout across correctional centres and that they included the functionality for inmates to make 10 minute telephone calls to approved contacts. The tablets were made available at HRMCC commencing from 30 November 2022. However, those tablets were not enabled to make telephone calls because there was no functionality to monitor those calls. On 22 April 2024, the tablets were removed from inmates in the HRMCC after security concerns had been identified by HRMCC staff and the Corrections Intelligence Group. Those security concerns included “inmates’ accessing other inmates’ tablets to purchase entertainment packages and order buy-ups, gaining access to other inmates’ personal information, locking other inmates out of their tablets, and using the tablets to message other inmates, which included references to criminal activity”.
Ms Nicholson also gave evidence that if an HRMCC inmate is temporarily transferred to another facility which provides access to tablets, that inmate is not provided with one, although she acknowledged that, despite that policy, a tablet was made available to Mr Hamzy at the Metropolitan Remand and Reception Centre when he was temporarily housed there in April 2023 and November 2023 and at Long Bay Correctional Centre when he was temporarily housed there in January 2024.
It is also relevant to note that calls to legal practitioners are excluded from the definition of “withdrawable privilege” in cl 163, with the effect that they cannot be taken away from an inmate as part of a penalty imposed under Division 6 of Part 2 of the CAS Act.
The upshot of the provisions of the CAS Regulation referred to above is that an EHRR or NSI inmate may meet physically or by AVL with an approved legal practitioner, subject to the provisions regulating how and when the meeting is to occur. Approval may only be withheld having regard to the results of a criminal record check. According to evidence given by Ms Nicholson, an application for approval normally takes two to four weeks, although it can take longer than that. In cross-examination, Ms Nicholson agreed that in some instances approval could take “a lot longer”. Approval is normally granted for a period of 12 months. As mentioned earlier, an EHRR or NSI inmate may also have up to three telephone calls with a legal practitioner and correspond in writing with a legal practitioner, even if the legal practitioner is not approved. Ms Nicholson gave evidence that telephone calls are permitted from approximately 7.30 am to 11.00 am and from 12.00 pm to 2.00 pm each day, although the timing of any call will be limited by operational requirements, such as the availability of a mobile handset (if that is what is used) and adequate staff to supervise the call.
[108] … First, if in any proceedings a judicial officer were satisfied that a fair trial was impossible or that an accused or party was, as a consequence of these regulations, incapable of obtaining a reasonable opportunity to prepare and to present his or her case, then the judicial officer could, in the case of a prosecution, grant bail and stay the proceedings either permanently or on condition, or otherwise give directions, the effect of which would be to permit the party to be able to exercise the party’s rights so as to produce a fair trial, and, in exceptional cases, grant a stay of prosecution.
[109] Secondly, there is no evidence before the Court that any communication of [Mr Hamzy] to a legal practitioner or from a legal practitioner to [Mr Hamzy] involved an infringement of the right to freedom of political or governmental communication. In order for [Mr Hamzy] to succeed, the Court must answer the question as to whether the provisions of clause 94 of the CAS Regulation prevents or controls communication upon political and governmental matters in a manner which is inconsistent with the system of representative government.
[110] Assuming, as I do, that an inmate may seek to have his or her legal representative petition a Member of Parliament as to, for example, the onerousness of the conditions of incarceration, is the requirement in clause 94 for a legal representative to undergo a criminal record check inconsistent with the system of representative government?
[111] In my view, the answer to that is in the negative. If a particular legal representative does not satisfy the Commissioner on the criminal record check, then another legal practitioner who was already approved would be available. In this area, the subject matter of the visit does not relate to the capacity of the inmate to obtain legal advice, to prepare proceedings or otherwise engage the legal practitioner in actions necessary for or ancillary to any justiciable controversy that is before the Courts. [footnote omitted]
The argument advanced by Mr Hamzy at the hearing in relation to question (4) was that “the decision to deny inmates in the HRMU [that is, the HRMCC] access to the tablets to call our lawyers is manifestly unreasonable”. Mr Hamzy advanced several reasons. One was that inmates in other institutions, including Goulburn Correctional Centre, had access to tablets over an extended period to call a broad range of people (including family members). Even prisoners who were designated as EHRR and NSI inmates had access to tablets in other institutions. Another was that access to telephones in the HRMCC was limited, making it difficult to call lawyers. A third was that there was no difference between making calls to a lawyer by telephone or using a tablet.
The primary judge dealt with question (4) briefly. He gave the following reasons for answering the question in the negative:
[112] … The evidence before the Court does not satisfy the Court that the decision not to approve the use of tablets to make telephone calls has inhibited the capacity of [Mr Hamzy] (or any other inmate) to obtain legal advice or has, in any way, impeded the access of [Mr Hamzy] to the Courts.
[113] In those circumstances, the Court is not satisfied that there is any invalidity in the restriction on the use of tablets to make personal telephone calls or telephone calls to legal practitioners. It is unnecessary to determine whether the restriction is a reasonable one, as was explained by the Court of Appeal, but it is clear that the unregulated making of telephone calls may present a security risk, and the CAS Act permits regulations prescribing a process or processes which deal with security risks. …
In this part-
correspondence, in relation to an inmate, means correspondence sent to or from an inmate in the form of a letter, parcel, fax transmission or electronic communication.
The Commissioner has filed a draft notice of contention seeking to uphold the primary judge’s answer to question (4) on the basis that Mr Hamzy “is not entitled to a declaration that the decision not to approve the use of tablets by inmates at the [HRMCC] for the making of personal telephone calls or telephone calls to legal practitioners was not invalid on the basis that it was not unreasonable”.
Following the approach adopted by the Commissioner, it will be convenient to deal with grounds 3, 4 and 5 together and first, then to deal with ground 2 and the draft notice of contention and finally with grounds 1 and 6.
Mr Hamzy’s argument in relation to Chapter III of the Constitution (advanced in support of ground 3) has the following steps:
Chapter III of the Constitution confers on every citizen an implied right to have unfettered access to courts exercising the judicial power of the Commonwealth;
A necessary element of the right referred to in (1) is the right to have legal representation of the citizen’s choice before such courts;
Clause 94 of the CAS Regulation in its operation and effect impedes, delays or hinders access by EHRR and NSI inmates to legal representation of their choice;
Therefore, cl 94 is an illegal fetter on the right referred to in (1).
Mr Hamzy also submits that the primary judge, by focussing on the means by which the court can ensure that an accused obtains a fair trial, failed to address the argument he had advanced.
There are difficulties with each of the steps of Mr Hamzy’s argument. In support of step (1), Mr Hamzy relies on the decision of the High Court in APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 (APLA), which dealt with the validity of provisions of the Legal Profession Regulation 2002 (NSW) that placed limitations on legal practitioners ability to advertise their services in relation to personal injury claims. As the Commissioner pointed out in his written submissions, only the judgments of McHugh J and of Kirby J, who were in the minority, arguably support the implied right contended for by Mr Hamzy: see APLA at [87] (McHugh J) and [343]-[344] (Kirby J).
The point made by the primary judge at PJ[108] appears to have been directed at step (2). The primary judge appears to have accepted that a right of the type contended for by Mr Hamzy could be implied from Chapter III of the Constitution. However, his Honour thought that such a right carried with it a right to a fair trial, not necessarily a right to legal representation; and that various mechanisms are available to a court exercising federal jurisdiction to ensure that the trial did not proceed if a fair trial was impossible. Consequently, there could be no question of an inconsistency between the right conferred by Chapter III and cl 94 of the CAS Regulation.
Some support for that approach can be found in the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, where the Court rejected an argument that an accused had a common law right to legal representation at the public’s expense, but where a majority (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ) accepted that a court has power in an appropriate case to stay a prosecution in which representation by counsel is essential to a fair trial: at 311 (Mason CJ and McHugh J); 335-6 (Deane J); 356-7 (Toohey J); 374 (Gaudron J, who took the view that legal representation was essential for a fair trial of a serious offence).
(1) Does the impugned law effectively burden the freedom in its terms, operation or effect? If not, the inquiry ends; the law is valid.
(2) If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? If it is not, the law is invalid.
(3) If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
Understood in that way, the question is whether cl 94 of the CAS Regulation effectively burdens the freedom in its terms, operation or effect and, if so, whether it does so in a way that is inconsistent with the maintenance of the constitutionally prescribed system of representative and responsible government. As Gummow J pointed out in APLA at [104] by reference to what Fullagar J said in O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 at 594; [1954] HCA 29, the regulating power conferred by s 79 must be regarded as itself limited by the Constitution, with the result that the question of the validity of cl 94 of the CAS Regulation resolves itself into the question whether if Parliament had enacted the regulation itself it would have been valid. See also Palmer v Western Australia (2021) 272 CLR 505; [2021] HCA 5 at [124] (Gageler J); Deripaska v Minister for Foreign Affairs [2026] HCA 14 at [44] (Gordon and Steward JJ).
It is not entirely clear how Mr Hamzy says cl 94 infringes the freedom in an impermissible way. The primary judge treated Mr Hamzy’s submission as a submission that cl 94 impeded communication on political and governmental matters by inmates of the relevant categories because it prevented them from engaging in communications of that type through a legal practitioner of their choice, which appears to be consistent with the way Mr Hamzy put the argument on appeal.
However, stating the proposition in those terms makes it clear that the argument has no merit. It is plain that cl 94 is not directed at political communications by inmates. It does not prevent inmates from engaging in political communications through lawyers. The fact that it imposes an immaterial restriction on the inmates’ choice of lawyer is not itself a reason for concluding that the clause effectively burdens political communications by inmates through lawyers. Moreover, there are a variety of other ways in which inmates can engage in political communications, most obviously directly themselves.
Ground 4 ii of Mr Hamzy’s notice of appeal contends that the primary judge erred “By failing to find there was evidence of a material detraction and impairment to communicate about political and governmental matters with my lawyers”. The thrust of that ground is that the political communication that is impeded is the political communication between Mr Hamzy and his lawyers. But there is no merit in that case, either. It appears to assume that the implied freedom gives Mr Hamzy a personal right to communicate with a lawyer of his choice about political and governmental matters. Clearly, that is not the case.
For these reasons, grounds 3, 4 and 5 have no prosects of success. Leave to appeal in relation to them should be refused.
- The HRMU was given access to tablets in Dec 2022. The tablets have the facility & capacity to allow us to contact our lawyers. The Commissioner or his delegate have decided not to give us access to our family or lawyers on the tablets. This is despite the limited access we have to lawyers because of policy. It is conceded that if facilities & capacity did not exist then the decision would not be unreasonable or beyond power. But since inmates who are housed in the main complex at [Goulburn Correctional Centre] do have access to a yard phone, access to family calls on the tablet & legal calls on the tablet & access to common access numbers on the tablet the decision is unreasonable and beyond power. [emphasis in original]
The second amended summons does not identify the decision about which complaint is made with any specificity. There appear to be two possible decisions. One was the decision in 2022 to make tablets available to HRMCC inmates but without the facility to make telephone calls. The other was the decision on 22 April 2024 to withdraw the tablets from HRMCC inmates. The separate question must be understood as being referable to one of those two decisions.
Mr Hamzy appears to accept, correctly, that the question whether the decision was legally unreasonable turns on whether the decision lacked an evident and intelligible justification having regard to the purpose for which the power was conferred: for discussion, see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [63]ff (Hayne, Kiefel and Bell JJ). His submissions focussed on the fact that both decisions appeared to be discriminatory and irrational because other inmates have access to tablets and have access that enables them to make telephone calls; and moreover, EHRR and EHS inmates are given access to tablets (and can use them to make telephone calls) in other correctional facilities.
As Mr Hamzy observed, the primary judge appears not to have addressed that argument. Instead, his Honour analysed the issue in terms of whether the decisions inhibited Mr Hamzy’s capacity to obtain legal advice or impeded his access to the courts. The Commissioner accepts that in those circumstances it may be appropriate to grant leave in relation to ground 2. The point raised by the Commissioner’s notice of contention is that the relevant decision was not unreasonable. It is obviously the converse of the argument advanced by Mr Hamzy.
In my opinion, the Commissioner is correct. The question is not whether the decisions were unreasonable because they were discriminatory. The question is whether there was a rational basis for discriminating between inmates of different classifications and in different correctional facilities. The whole purpose of the classification system is to permit discrimination between different classes of inmate in a way that takes account of the different risks that they pose. And the reason for restricting the types of communications that EHRR and EHS inmates can engage in is because of the particular risks that they pose.
In her affidavit evidence, Ms Nicholson explained why inmates of those classifications were not permitted to make telephone calls using the tablets. That reason (because there was no means of monitoring telephone calls of that type) was entirely consistent with the purpose for which the power was given. Similarly, Ms Nicholson explained why the tablets were withdrawn from HRMCC inmates. There is no evidence that similar problems existed in other facilities or that they existed to the same extent. The fact that on occasions Mr Hamzy was able to gain access to a tablet at other facilities does not alter the position. According to Ms Nicholson, that resulted from an oversight. But even if that is not correct, what may be permitted in one facility which houses a mixture of inmates cannot determine what may be necessary for the orderly conduct of the HRMCC. Mr Hamzy does not attempt in his submissions to address these points. The evidence given by Ms Nicholson provides a rational justification for both decisions, with the result that Mr Hamzy’s contention that the decisions were legally unreasonable must fail.
Neither party addressed grounds 1 and 6 orally. Both grounds concern the amendments introduced by the Crimes (Administration of Sentences) Amendment Act 2025 (NSW) which relevantly introduced the definition of “correspondence” into s 4A of the CAS Act. That amendment took effect after the hearing at first instance. Mr Hamzy sought and was granted leave to file supplementary written submissions to address the amendment. Ground 1 contends that the primary judge failed to take account of those submissions (because he did not refer to them or the definition of “correspondence”). Ground 6 contends that the primary judge erred in concluding that there was no equivalent to cl 119 of the CAS Regulation for emails. That is said to have been an error because the effect of the new definition of “correspondence” in s 4A was to extend cl 119 to emails.
There are two main difficulties with these contentions.
First, any misunderstanding the primary judge may have had about the way the CAS Regulation dealt with emails did not depend on the new definition of “correspondence”, and there was no issue raised by the supplementary submissions that needed to be dealt with by the primary judge.
The definition of “correspondence” in the CAS Act is picked up by other amendments that were introduced at the same time. Specifically, Div 7A of Pt 2 of the CAS Act deals with correspondence with inmates and s 71B(3), which is included in that Division, provides that the regulations may prescribe:
(a) persons the Commissioner may direct an inmate not to correspond with,
(b) inmates who require the written approval of the Commissioner to correspond,
(c) how correspondence opened under subsection (1) may be delivered to an inmate …
However, the CAS Regulation has not been amended in a way that reflects the power conferred by s 71B. Moreover, the CAS Regulation itself does not pick up the new definition of “correspondence” and, for the most part, it does not deal with “correspondence” as such. As explained above, Division 4 deals with visits, Although the headings to some of the clauses in Division 6 dealing with “written communications” use the word “correspondence”, the operative provisions for the most part refer to letters and parcels, not correspondence. The only relevant exceptions are (a) cl 116, which states that all “correspondence” from and EHRR inmate or NSI inmate to any person other than an “exempt body” (which does not include a lawyer) must be written in English or another language approved by the Commissioner; and (b) cl 118, which provides that subject to cll 115 and 116, the CAS Regulation “does not limit correspondence between an inmate and the inmate’s legal practitioner in respect of any matters affecting the inmate’s trial, conviction or imprisonment”.
As mentioned at [34] above, cl 112I(4) prevents an inmate from using an electronic device to send messages to or to receive messages from an approved legal practitioner. The practical effect of that provision is that inmates are not permitted by the CAS Regulation to communicate with legal practitioners by email. Consequently, to the extent that the primary judge may have been suggesting that there were no restrictions on communications by email, that was an error. But it was not an error that arose because of a failure to consider Mr Hamzy’s supplementary submissions.
Second, there is no reason to think that any misunderstanding the primary judge laboured under in relation to emails affected his Honour’s decision; and Mr Hamzy does not explain how it might have. Plainly, any misunderstanding the primary judge laboured under in relation to emails was not directly relevant to the operation of cl 94. The most that could be said was that cl 94 operated in a context where an inmate was not permitted to communicate with a legal practitioner using an electronic device. But for the reasons already stated, that did not have a material impact on the ability of an inmate of the relevant classification to retain the services of a legal practitioner of the inmate’s choosing. Any error was therefore immaterial to the primary judge’s conclusions.
Grounds 1 and 6 are errors that are said to have had a possible effect on the primary judge’s conclusions in relation to the issues raised by grounds 3, 4 and 5. Since leave to appeal should be refused in relation to those grounds, leave to appeal in relation to grounds 1 and 6 should also be refused.
It follows from what has been said that leave to appeal in relation to grounds 1 and 3 to 6 should be refused. Leave to appeal should be granted in relation to ground 2 but the appeal should be dismissed. There is no reason why costs should not follow the event. Accordingly, the orders I propose are:
Refuse leave to appeal in relation to grounds 1 and 3 to 6 of the draft notice of appeal dated 9 January 2026;
Grant leave to appeal in relation to ground 2 of the draft notice of appeal dated 9 January 2026;
Appeal dismissed;
The appellant is to pay the respondent’s costs.
**********
Typographical error in headnote that autonumbered headings.
Hamzy
Commissioner of Corrective Services
[2005] HCA 44
(2005) 224 CLR 322
(2017) 261 CLR 328
(1992) 177 CLR 292
(2022) 107 NSWLR 544
(2015) 257 CLR 178
(2013) 249 CLR 332
(1954) 92 CLR 565
(2021) 272 CLR 505
(2012) 81 NSWLR 742
(2025) 118 NSWLR 70
(1978) 20 ALR 323
(2013) 252 CLR 530
Leave to appeal was refused for grounds 1 and 3 to 6 and granted for ground 2; the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs.
However, it is neither necessary nor desirable in the present context to pursue these issues further, since it is plain that Mr Hamzy’s argument must fail at step (3). Whatever the nature of the rights that may be derived from Chapter III of the Constitution, they cannot be absolute in the sense that they give a person, whatever the person’s circumstances, an unfettered right to consult with a legal practitioner of the person’s choosing. Such a right is plainly not necessary to secure the right said to be derived from Chapter III of the Constitution.
The conclusion of the previous paragraph is reinforced by the decision in Hamzy 2022. As the Court pointed out in that case, cl 94 of the CAS Regulation did not have a material effect on the ability of an EHRR inmate (or NSI inmate) to obtain the services of a legal practitioner of their choice. At most, it prevented such an inmate from obtaining the services of a very limited number of legal practitioners who, because of their criminal background, made them unsuitable to provide services to inmates of the relevant classifications. Clause 94 also had the effect of delaying for a period of time the ability of such an inmate to meet either in person or by AVL with a legal practitioner of their choice while a criminal check is conducted and evaluated. However, particularly in a context where the inmate is already in prison, where most often the delay will not be substantial and where there are other means by which such an inmate can communicate with a legal practitioner in the meantime, that limitation is not a material one.
Mr Hamzy submitted that evidence since the decision in Hamzy 2022 demonstrates that the effect of cl 94 is greater than the Court stated in that case. In particular, he submitted that the practical effect of cl 94 in the context in which it operates is greater than the Court in Hamzy 2022 had appreciated because cl 94 had been wrongfully used to deny him access to legal practitioners of his choice. However, the only instance that Mr Hamzy was able to point to about which there was evidence before the Court was an occasion on which the Assistant Commissioner denied Mr Hamzy the right to make a telephone call to a legal practitioner who was not on his approved list. The lawfulness of that denial was raised by question (2) of the separate questions. The primary judge answered that question by stating that Mr Hamzy was entitled to relief “setting aside or declaring invalid” the decision.
More fundamentally, Mr Hamzy’s submission proceeds on a misunderstanding. It is correct that the validity of cl 94 should be determined by reference to its practical operation in the context in which it operates. But the practical operation of the clause is not to be determined by reference to how the Commissioner or anyone else has actually sought to apply it. Rather, it is to be determined by its practical effect when correctly applied. If the clause has been applied incorrectly, then that may give rise to other relief. However, it is not relevant to the validity of the clause. Approached in that way, cl 94 does not have a material impact on the right of a relevant inmate to obtain the services of a legal practitioner of their choice, let alone a material impact on the ability of such an inmate to obtain access to a Chapter III court.
Similar difficulties exist with Mr Hamzy’s argument based on the implied freedom of communication on political and governmental matters. Contrary to Mr Hamzy’s submissions, the implied freedom “is not to be understood as affecting a person’s right or freedom to engage in political communication, but as affecting communication on those subjects more generally”: see Unions NSW v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58 at [36].
Moreover, the freedom is not absolute. It does not protect all forms of political communication at all times and in all circumstances, nor is it a freedom from all regulation or restraint: Brown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43 at [313] (Gordon J). Whether a law impermissibly burdens the implied freedom depends on the result of the interpretational exercise formulated in McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 at [2] (French CJ, Kiefel, Bell and Keane JJ). As this Court explained in Smith v Blanch (2025) 118 NSWLR 70; [2025] NSWCA 188 at [137], that exercise requires a court to address three questions:
It follows from what has been said that it is appropriate to give leave in relation to ground 2 but to reject the ground.