Hamzy v Commissioner of Corrective Services and the State of NSW

International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Civil and Political Rights Racial Discrimination Act 1975 (Cth) Surveillance Devices Act 2007 (NSW) Telecommunications (Interception and Access) Act 1979 (Cth) Cases Cited: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 Allitt v Sullivan [1988] VR 621 ALRM v South Australia (1995) 64 SASR 551 Anderson v Pavic [2005] VSCA 244 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Australian Medical Council v Wilson and ors. (1996) 137 ALR 653 Ballantyne v Canada Communication Nos 359/1989, 385/1989; 31 March 1993 Bromley London Borough Council v Greater London Council [1983] 1 AC 768 Bryson v NSW Bar Association [2003] NSWADTAP 29 Clark v Commissioner for Corrective Services [2016] NSWCA 186 Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 Conyngham v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 423 Flynn v R (1949) 79 CLR 1; [1949] HCA 38 Fryske Nasjonale Partij v Netherlands (1985) 9 EHRR 240 Fyfe v State of South Australia [2000] SASC 84 Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11 Guesdon v France Communication No 219/1986; 25 July 1990 Iliafi & Ors v The Church Jesus Christ of Latter-Day Saints Australia (2014) 221 FCR 86; [2014] FCAFC 26 JMA Accounting Pty Limited and anor. v Commissioner of Taxation and ors. (2004) 211 ALR 380; [2004] FCAFC 274 Knight v Commissioner, Corrections Victoria [2013] VSC 13 Koowarta v Bjelke-Petersen (1982) 153 CLR 168; [1982] HCA 27 Law Society of South Australia v Le Poidevin (1988) 201 LSJS 76 Macedonian Teachers' Association of Victoria Inc. v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489 Maiocchi v Royal Australian and New Zealand College of Psychiatrists (No.4) [2016] FCA 33 Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 McEvoy v Lobban (1989) 48 A Crim R 412 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Nguyen v Refugee Review Tribunal (1977) 74 FCR 311 Patsalis v NSW [2012] NSWSC 267 Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 R v Khazaal (2006) 167 A Crim R 565; [2006] NSWSC 1353 R (Daly) v Secretary of State for the Home Department [2001] UK HL 26; [2001] 2 AC 532 R v Hull Prison Board of Visitors; Ex parte St Germain [1979] 1 All ER 701 R v Secretary of State for the Home Department; Ex parte Leech [1994] QB 198 R v Secretary of State for the Home Department; Ex Parte Simms [1999] QB 349 Raymond v Honey [1982] 1 All ER 756 Rich v Groningen (1997) 95 A Crim R 272 Rich v Secretary, Department of Justice [2010] VSC 390 Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 Solosky v R (1979) 105 DLR (3rd) 745 Walker v R [1993] 2 Qd R 345 Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46 Texts Cited: English Vocabulary Elements (2nd Edition) (Denning, Kessler and Leben) Oxford University Press 2007 Category: Principal judgment Parties: Bassam Hamzy - Plaintiff Commissioner of Corrective Services - First Defendant State of NSW - Second Defendant Representation: Counsel: M Finnane QC - Plaintiff J Emmett and J Edwards - First and Second Defendants

Solicitors: Zali Burrows Lawyers - Plaintiff Crown Solicitor for NSW - First and Second Defendants File Number(s): 2016/2761272016/2761862017/1771962018/41479 Publication restriction: Nil

INTRODUCTION

1. Bassam Hamzy (the plaintiff) is currently serving a sentence of full-time imprisonment. That sentence is administered by the Commissioner of Corrective Services (the defendant) [1] pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW) (the Act).
2. Pursuant to cl 15 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (the Regulation), which has been made pursuant to ss 79 and 271 of the Act, the defendant may designate an inmate as an extreme high risk restricted (EHRR) inmate if, and only if, he is of the opinion that: 1. the inmate constitutes an extreme danger to other people, or an extreme threat to good order and security; and 2. 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.
3. The defendant has formed that opinion in respect of the plaintiff, and has designated him as an EHRR inmate. As a consequence, the plaintiff is serving his term of imprisonment in the High Risk Management Correctional Centre (HRMCC) in Goulburn, NSW.
4. Against this background, the plaintiff commenced four separate sets of proceedings in this Court in which he: 1. sought orders requiring the defendant to do, or to refrain from doing, various things in relation to his custodial management (the judicial review proceedings); [2] 2. challenged the requirement imposed by the defendant that communications to which he (the plaintiff) is a party in custody be conducted in English, on the basis that such a requirement is unlawful by virtue of ss 9(1) and/or 10(1) of the Racial Discrimination Act 1975 (Cth) (the RDA), or alternatively inconsistent with those provisions and thus inoperative, to the extent of the inconsistency, by virtue of s 109 of the Commonwealth of Australia Constitution Act (the Constitution) (the RDA proceedings); [3] 3. sought an order for the return of a USB drive seized from his cell (the USB proceedings); [4] and 4. challenged decisions made by the defendant pursuant to a Behavioural Management Plan which operates in the HRMCC (the BMP proceedings). [5]
5. I was informed at the commencement of the hearing that the USB proceedings have been resolved on the basis of an agreement between the parties that the USB drive in question, which had remained in the custody of the Court, be returned to the plaintiff's representatives. That has now been done.

The plaintiff's pleaded case

1. The amended summons filed by the plaintiff in the judicial review proceedings seeks relief pleaded in the following terms: [6] Ground 1(a) - The plaintiff's right to access legal representation 1. Relief in the nature of a Declaration that the provision that only the Commissioner for Corrective Services NSW may approve a person to visit an extreme high risk inmate or a national security interest inmate pursuant to clause 94(1) of the Crimes (Administration and Sentencing Regulation [sic] 2014 (NSW) is invalid to the extent that the provision includes visitations by legal representatives pursuant to: 1. the right to access legal representation under the Crimes (Administration and Sentencing Regulation [sic] 2014 (NSW), clauses 78(2) and 82. 2. the right to access legal representation and a fair hearing under Chapter III of the Constitution; 3. the right to access legal representation and a fair hearing under the common law of Australia; 4. the right to access legal representation and a fair hearing under customary international law, as adopted or incorporated into the common law of Australia. 1. Relief in the nature of a Declaration that the decision by the Commissioner of Corrective Services NSW to exercise his discretion and require the legal representatives of the plaintiff to undergo a criminal record check before granting approval to visit the plaintiff pursuant to clause 94(2) of the Crimes (Administrative Sentences) Regulation [sic] 2014 (NSW) was unreasonable. Ground 1(b) - The plaintiff's access to the Audio Visual Link (AVL) 1. Relief in the nature of a Declaration that the decision by the Commissioner of Corrective Services NSW to deny the plaintiff access to AVL facilities to communicate with his legal representatives was invalid or unreasonable pursuant to: 1. the right to use a telephone under the Crimes (Administration and Sentencing [sic] Regulation 2014 (NSW), clause 163. 2. the right to communicate with legal representatives under Chapter III of the Constitution; 3. the right to communicate with legal representatives under the common law of Australia; 4. the right to communicate with legal representatives under customary international law, as adopted or incorporated into the common law of Australia. [7] Ground 1(c) - The plaintiff's access to the Offender Telephone System (OTS) 1. Relief in the nature of a Declaration that the practice by officers of the Commissioner for Corrective Services NSW to "drop in" and intercept the telephone calls by the plaintiff to his legal representatives is contrary to law, pursuant to: 1. the right to private and confidential communications by way of a telephone under the Crimes (Administration and Sentencing [sic] Regulation) 2014 (NSW), clause 163; 2. the Surveillance Devices Act 2007 (NSW); 3. the Telecommunications (Interception and Access Act [sic] 1979 (Cth); 4. the right to private and confidential communications with legal representatives under Chapter III of the Constitution; 5. the right to private and confidential communications with legal representatives under the common law of Australia; 6. the right to private and confidential communications with legal representatives under customary international law, as adopted or incorporated into the common law of Australia. [8] …… A Writ of Prohibition 1. Relief in the nature of a Writ of Prohibition restraining the defendants, their employees, officers, delegates or agents from giving effect to the relevant clauses of the Crimes (Administrative Sentences) [sic] Regulation 2014 (NSW). Costs 1. Relief in the nature of an Order for costs.

THE EVIDENCE

1. A joint tender bundle was admitted by consent. [9] The plaintiff read the following affidavits: 1. Zali Burrows, solicitor, of 20 September 2019; 2. the plaintiff of 23 September 2019; and 3. Zali Burrows, solicitor, of 25 September 2019.
2. Neither the plaintiff nor Ms Burrows was cross-examined on those affidavits. It should be noted that although the joint tender bundle included three further affidavits of Ms Burrows, none of those affidavits were read.
3. The defendant read the following affidavits: 1. Geoffrey Poulsen, Acting Manager of Security at the HRMCC, of 13 August 2017 (with exhibit GP1); 2. Geoffrey Poulsen of 10 August 2018; 3. Bernhard Ripperger, Director, Community Protection Legal, Department of Communities and Justice, of 18 September 2019; and 4. Bernhard Ripperger of 15 October 2019.
4. Neither Mr Poulsen nor Mr Ripperger was cross-examined.

The agreed facts

1. A statement of agreed facts formed part of the evidence in the judicial review proceedings and is in the following terms: 1. The plaintiff is designated as an extreme high risk restricted inmate pursuant to cl. 15(3) of the Crimes (Administration of Sentences) Regulation 2004 ("the CAS Regulation"). He is currently housed in Area 2 of the High Risk Management Correctional Centre ("the HRMCC") at Goulburn. Visits in person 2. The Commissioner of Corrective Services ("the Commissioner") permits lawyers to visit the plaintiff or any other EHRR inmate in person only if they are approved to do so. The Commissioner relies, in this respect, on cl. 94(1) of the CAS Regulation. 3. Since about 2016, the Commissioner has required that all lawyers seeking approval to visit the plaintiff and other EHRR inmates in person undergo criminal record checks by way of a Criminal Record Inquiry ("CRI"). The Commissioner relies, in this respect, on cl. 94(2) of the CAS Regulation. 4. The Commissioner's usual practice is to grant approval for periods of 12 months. After that period, in order to continue their approval, lawyers wishing to visit are required to provide a further CRI form to permit an updated criminal record check to be [sic] occur. 5. Ms Zali Burrows and Mr Michael Finnane have both been required to seek approval to visit the plaintiff and to submit CRI forms. Both Ms Burrows and Mr Finnane are presently approved to visit the plaintiff. 6. The Commissioner has previously refused to grant (or not granted) approval to visit the plaintiff to solicitors who have failed to submit a CRI form, including Mr Martin Churchill, Mr Ali Abbas and Mr Chris Eliopoulos. 7. The Commissioner's position in respect of Mr Finnane's application for approval to visit Mr Hamzy is set out in the letter from him to Mr Finnane, dated 26 April 2019, which is annexed to this document. Access to lawyers by audio visual link ("AVL") 8. From approximately 30 September 2009 to 4 July 2019, Mr Hamzy was housed in Area 1 of the HRMCC. AVL facilities were available in Area 1 of the HRMCC. Those facilities permitted inmates to make unmonitored calls. 9. The plaintiff applied to use the AVL facilities in Area 1 of the HRMCC, and was permitted to do so from time to time, until May 2016. On 20 May 2016, a Corrective Services officer wrote to Mr Hamzy informing him that his use of the AVL facilities was prohibited indefinitely. 10. AVL facilities are available in Area 2 of the HRMCC and are, in some cases, permitted to be used by EHRR inmates to contact their lawyers. Corrective Services officers are able to monitor the visual link but not the audio link. Monitoring of the audio of calls made on the AVL facilities in Area 2 is not available. The plaintiff has never applied for access to the AVL facilities in Area 2. 11. The Commissioner, through Bernhard Ripperger, has stated that, based on the information currently available, and without pre-judging any application before it is made, the limitation with respect to monitoring AVL booths in HRMCC Area 2 is likely to be a powerful consideration against the plaintiff being granted access to his lawyers by AVL. Access to lawyers by telephone 12. The Commissioner permits the plaintiff to make telephone calls to lawyers only if they have first been approved as legal contacts on the Offender Telephone System ("OTS"). 13. Ms Burrows and Mr Finnane are both approved legal contacts for the plaintiff to access on the OTS. 14. Corrective Services officers monitor OTS calls made by the plaintiff to his lawyers in the manner described in the affidavit of Geoffrey Poulsen, sworn 13 August 2017, at [35]. 15. Corrective Services' policy is that monitoring officers will listen to a call briefly and randomly. If, in that time, the listening officer determines that the call is not with the approved recipient or is not being conducted in English or another approved language, the call will be disconnected. The making of that determination may, in some cases, involve the exercise of an evaluative judgment, having regard to the circumstances of the OTS call.

The affidavit evidence

1. In addition to the agreed facts, various parts of the affidavit evidence addressed the issues raised in the judicial review proceedings.

Visits by legal representatives

1. In his affidavit of 13 August 2017, Mr Poulsen explained that as an EHRR inmate the plaintiff is presently placed at the HRMCC. [10] This facility houses inmates who have been determined to represent a significant risk to correctional centre security as well as to the wider community, and who require a higher level of supervision than the general prison population. In terms of the restrictions placed by the defendant on communications by inmates in the HRMCC, Mr Poulsen said: [11] 7. Corrective Services restricts communications by, and visits to, EHRR inmates, in particular through monitoring their communications and contact with people outside the correctional system. Communications are only permitted with approved people. 8. The restrictions on the communications of EHRR inmates are aimed at reducing the risk posed by the inmate due to unrestricted external communications and are not intended to prevent inmates from accessing legal representation.
2. Mr Poulsen also made reference to the general conditions which govern visits by legal representatives to EHRR inmates: [12] 22. Visits to EHRR inmates must be non-contact visits, meaning that they take place in an environment where physical contact between the visitor and the inmate is prevented, unless the Commissioner approves a contact visit: see cl. 100 of the Regulation. In my experience, legal visits to EHRR inmates are usually conducted as non-contact visits. Inmates and visiting lawyers sit on either side of a clear barrier, through which they may see each other and speak to each other but not have any physical contact. 23. Because legal visits are routinely non-contact visits, inmates and visiting lawyers are not able to directly pass documents to one another. In order for documents to be shared during a visit, the inmate or the legal practitioner must hand it to a Corrective Services Officer, who will take it to the other person. The Corrective Services Officer is required to give the document a cursory check to ensure that it is a legal document and that it does not contain prohibited material, but does not read the document beyond the minimum necessary to do so. At the conclusion of the visit, the document must be returned to either the inmate or the legal representative in whose possession the document was at the start of the visit.
3. In her affidavit of 20 September 2019, Ms Burrows deposed to the difficulties that she had experienced in being able to visit the plaintiff: [13] [4] A recent example of difficulty with seeing Mr Hamzy was last week when granted a legal booking for Mr Finnane QC and myself on Friday 6 September 2019 930am - 11.30am and 12.30pm - 2pm. My CRI was processed and approved expeditiously as to facilitate my access on Friday. I had approval and I was refused entry. I subsequently corresponded with the chief of staff of the Commissioner, Mr Frommer and executive services seeking [sic] urgent legal visit as it was not appropriate for Mr Finnane to be without a solicitor in a legal visit. I was subsequently allowed into the centre after 12.30pm yet with processing time, I had about less than 1 hour with Mr Hamzy in [sic] visit with Mr Finnane.

The plaintiff's access to computers and AVL facilities

1. Ms Burrows also made reference to the issue of the plaintiff's access to a laptop computer for the purposes of her being able to confer with him: [16] 5. Prior to the visit, I sent an email to HRMCC seeking that a laptop be available for the legal visit and that I was bring in [sic] a USB. This USB was provided to me by Mr Frommer containing materials in these proceedings. Mr Finnane was declined consent to bring the USB into the legal visit and a laptop computer was not made available. 6. When I was in [sic] legal visit I noticed that there are no computers in the legal visit boxes, [sic] further note that there are several boxes to be sound proofed and you speak through a microphone now. At times there was a static, echo, voice delay and difficulty in hearing Mr Hamzy clearly.
2. In his affidavit of 23 September 2019, the plaintiff deposed to the difficulties that he has experienced in being given access to a computer, and to AVL facilities, whilst in custody. [17] He stated, in particular, that he had been denied access to a computer on three separate occasions since 16 August 2017, before saying: [18] 14. I believe that I am the only inmate in the HRMCC and The State of NSW that has been denied access to AVL facilities, notwithstanding inmates on charges of murder, terrorism drug dealing and the like is permitted to use AVL facilities to conference with their lawyers.
3. In his affidavit of 13 August 2017 Mr Poulsen said the following regarding access by inmates to computers: [19] 24. Corrective Services does not permit lawyers visiting HRMCC to bring or use their own laptops during a visit. However, there are several laptops, owned by Corrective Services, that are made available to visiting lawyers on request. Access to these laptops is subject to availability and to any particular security or operational requirements on a particular day. Lawyers may bring files on a USB storage device to use with the laptop, and may view files on the USB device or create files to save to the USB device during the visit. No records are kept of access to the laptop. However, I can recall two occasions on which Mr [sic] Burrows has been granted access to a laptop computer during legal visits with Mr Hamzy. 25. Because visits with lawyers are routinely non-contact visits, only the lawyer has access to the laptop computer. However, the lawyer may show the inmate content on the laptop screen through the clear barrier between the inmate and the lawyer. In one of the visiting rooms in the HRMCC, there is also a second screen on the inmate's side of the barrier that may be used to mirror the screen of the laptop. That screen was installed in June 2017.

The plaintiff's access to the Offender Telephone System

1. A further document issued by the defendant and entitled "Information for extreme high risk restricted inmates" was annexed to the affidavit of Ms Burrows of 25 September 2019. [28] Under the heading "Telephone calls and audio visual link (AVL) access", the following was stated in the same document: No telephone calls or AVL access, with the exception of calls to the Ombudsman, ICAC or other exempt body, will be permitted unless approved by the Commissioner or delegate. All approved calls will be monitored, with the exception of calls to an exempt body or your legal representative. The conversation (including legal calls) must be in English or another language approved by the Commissioner or delegate. CSNSW staff may re-verify the legitimacy of the call at various intervals throughout the duration of the call or AVL link to your legal representative by momentarily 'dropping in' on the conversation. 'Dropping in' means a brief interception of the call to ensure that the conversation is being conducted in English (or another approved language) and that both you and your legal representative are still speaking in this approved language. The interception of the call will not continue if both you and the legal representative are complying with these conditions. The call or AVL link will be terminated if at the moment the call is intercepted it is established that the conversation is NOT in English (or another approved language) and/or the conversation is with someone other than your approved legal practitioner) [sic]. Each approval for a telephone contact is only for the person nominated in your request and their telephone number. [Emphasis in original].
2. The contents of this document are generally consistent with that part of the affidavit of Mr Poulsen of 13 August 2017 in which he explained the practice of monitoring calls: [29] [35] OTS calls with EHRR inmates are monitored by Corrective Services Officers to ensure that they are in English and are with approved contacts. In order to monitor calls without breaching inmates' privilege or confidentiality, it is the practice of Corrective Services that officers periodically "drop in" to the line, listen for only long enough to check that English is being spoken and that the call is with the approved recipient, and then disconnect. No records are made of anything heard during a "drop in" unless the call is not in English or not with an approved person.

THE RELEVANT LEGISLATION

1. In the course of argument I was taken by counsel for both parties to a number of provisions of the Act and the Regulation. They included the following.

Crimes (Administration of Sentences) Act 1999

1. Section 78A of the Act is in the following terms: 78A Separation and other variations in conditions of custody of inmates (1) Nothing in this Act requires the conditions of custody of inmates to be the same for all inmates or for all inmates in the same correctional centre or of the same classification or designation, including conditions with respect to association with other inmates. (2) An inmate or group of inmates in a correctional centre may be held separately from other inmates in the correctional centre for the purposes of the care, control or management of the inmate or group of inmates. (3) In particular, inmates may be separated because of a requirement of this Act or the regulations, because of the classification or designation of the inmates, because of the nature of any program being undertaken by the inmates or because of any intensive monitoring that is required of the inmates. (4) The making of a segregated custody direction under Division 2 is not required to authorise a separation of inmates. (5) Anything done or omitted that could have been validly done or omitted if this section (and section 79 (1) (c1)) had been in force when it was done or omitted is taken to be, and always to have been, validly done or omitted.
2. Section 79 provides (inter alia) as follows: 79 Regulations (1) The regulations may make provision for or with respect to the following matters - … (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 …

Crimes (Administration of Sentences) Regulation (2014) (NSW)

1. Clause 3 of the Regulation defines a number of terms, including the following: "exempt body" means-- (a) the Ombudsman, the Judicial Commission, the New South Wales Crime Commission, the Law Enforcement Conduct Commission, the Anti-Discrimination Board, the Civil and Administrative Tribunal, the Independent Commission Against Corruption, the Inspector of Custodial Services, the Privacy Commissioner, the Information Commissioner, the Legal Aid Commission, the Legal Services Commissioner or the Legal Services Tribunal, or (b) the Commonwealth Ombudsman, the Australian Human Rights Commission or the Australian Crime Commission. "exempt person" means a Member of Parliament, a legal practitioner or a police officer.
2. Clause 5, which is within Part 2 of the Regulation dealing with admission procedures applicable to correctional centres, is in the following terms: 5 Inmates to be notified of rights and obligations As soon as practicable after an inmate is first received into a correctional centre, the governor must ensure the inmate is informed of the following-- (a) the correctional centre rules (that is, the terms of any general directions given under Part 2 of the Act or under Parts 2-9 of this Regulation), (b) the inmate's obligations relating to discipline and conduct, (c) the inmate's rights of legal representation and appeal in relation to proceedings under this Regulation, (d) the case management process, (e) the authorised methods of seeking information and making complaints, (f) the role of an Official Visitor, (g) the functions of the Review Council in relation to the segregation and protective custody of inmates, (h) any other matter necessary to enable the inmate to understand the inmate's rights and obligations and adapt to living in the centre.
3. Clause 15(3) gives the Commissioner power to designate an inmate as an extreme high risk restricted inmate: 15 Designation of high security, extreme high security, extreme high risk restricted and national security interest inmates … (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.

Submissions of the plaintiff

1. In addressing ground 1(a) in the amended summons, senior counsel for the plaintiff emphasised the fundamental common law right of every person to choose his or her own legal representative(s). He submitted that as a person in custody, the plaintiff's right in that respect had been acknowledged, at least in part, by cl 82 of the Regulation. Senior counsel submitted that such a fundamental common law right cannot be restricted or removed except in the clearest of circumstances.
2. Senior counsel submitted that the evidence established that the defendant had at least restricted, if not revoked, the right of the plaintiff to choose his own legal representative by deciding to implement a policy which: 1. required that any legal practitioner seeking to visit an EHRR inmate agree to complete a form authorising a CRI to be undertaken; 2. required that any legal practitioner seeking to visit an EHRR inmate be approved to do so; 3. required that any application for approval to visit an EHRR inmate be renewed each 12 months, necessitating a repeat of the process in (i) and (ii) above; 4. required that a booking be made by an approved legal practitioner to visit an EHRR inmate at least 48 in advance of the proposed visit; 5. prevented Ms Burrows from visiting the plaintiff on 6 September 2019 because she had not given 48 hours' advance notice of her intended visit; and 6. mandated that an approval which had been granted to a legal practitioner to visit one EHRR inmate could not be relied upon by that practitioner as constituting an approval to visit another EHRR inmate, thus necessitating a requirement for the practitioner to undergo multiple procedures of the kind in (i) above, depending upon how many separate inmates were to be visited.
3. Senior counsel submitted that the defendant's decision to implement such a policy amounted to "trampling" on the plaintiff's common law rights in a way which was unauthorised by law, and which amounted to the plaintiff being denied access to a legal practitioner. He submitted, in particular, that there was nothing contained in the Act or the Regulation which reflected any intention by the Parliament to impose restrictions on a person's right to choose, or have access to, a legal practitioner, nor was there anything in the Act or Regulation which reflected an intention to allow a practice which required a legal practitioner to submit to a CRI, and thus undergo what senior counsel described as a "burdensome" process, in order to be able to visit an EHRR inmate. Senior counsel submitted that it was both inappropriate and unlawful to require a legal practitioner to submit to a CRI in the absence of some express legislative provision permitting such a policy.

Submissions of the defendant

1. Counsel for the defendant commenced by citing a number of general principles which, he submitted, were relevant to the resolution of the issues in the judicial review proceedings.
2. Firstly, counsel submitted that the right of a person to choose a legal practitioner was not absolute, and that there were necessarily circumstances in which that right could be curtailed, or even removed altogether, by legislation.
3. Secondly, whilst accepting that any inmate must not have his or her right to a fair hearing compromised, counsel submitted that what might be required to ensure that this is achieved will necessarily vary from case to case, and will depend, at least in part, on the nature of the proceedings in question, and the stage that such proceedings have reached.
4. Thirdly, counsel submitted that "prison legislation" such as the Act and the Regulation recognises the necessity for those who have the responsibility of administering and managing correctional authorities to have the power to properly carry out those tasks. This, it was submitted, informed any process of judicial review of the exercise of such power, and that it was necessary to strike a balance between the duties and responsibilities of correctional authorities to administer prisons, and the reluctance of the common law to construe legislation in a way which impedes access to the courts.
5. Against this background, counsel for the defendant turned firstly to ground (1)(a) in the amended summons. Counsel submitted that cl 94 of the Regulation does not deprive an inmate of access to a legal representative and that any inmate, including the plaintiff, remains able to choose and engage any legal representative who is willing to undergo a CRI. It was submitted that in all of these circumstances, cl 94(2) was clearly within the regulation making power conferred by the Act.
6. It was submitted that on the whole of the evidence, there was no basis for concluding that any of the decisions of the defendant regarding the approval of the plaintiff's legal representatives were unreasonable, illogical or irrational. Counsel for the defendant submitted, in particular, that in the context of a high risk prison environment, it was not unreasonable for the defendant to approach issues relating to the approval of legal representatives on the fundamental premise that no individual can be assumed to be incorruptible.

General principles

1. There are a number of general principles which provide an appropriate starting point for consideration of the issues in the judicial review proceedings.
2. To begin with, it is beyond doubt that every person has the right to choose his or her legal representative. In R v Khazaal Whealy J stated the principle in these terms: [34] … the right of choice of counsel and solicitor is so fundamental, especially in criminal proceedings, that it should not be disturbed except in the most unusual and exceptional circumstances and where no other remedy is otherwise available.
3. That right of choice is consistent with the principle that all persons are entitled to unimpeded access to the Courts. In Knight v Commissioner, Corrections Victoria Hollingworth J regarded such entitlement as part of the fundamental right to a fair trial. [35] In Commissioner of Corrective Services v Liristis Basten JA took the view that the right to a fair trial was not a single right, but one which encompassed a range of rights and entitlements necessary for the proper administration of justice. [36] In my view, however the scope of the right to a fair trial is approached, it must include the right of a person to choose his or her own legal representative.
4. The issues which arise in the judicial review proceedings must obviously be determined in the context of the plaintiff serving a term of imprisonment. Clark v Commissioner for Corrective Services [37] was a case in which it was asserted by an inmate of a correctional centre that aspects of his conditions of custody impeded him in the pursuit of various legal proceedings to which he was a party. A number of general principles concerning the management of correctional facilities, the powers conferred by the Parliament on those who carry out that function, and the limited extent to which Courts will generally interfere with decisions made in the exercise of such powers, emerge from the judgments of the members of the Court in that case, as well as from other authorities.
5. Firstly, it is important to recognise that within a custodial setting, rules can properly be applied to take account of individual circumstances. [38]
6. Secondly, the fact that a request for particular facilities which is made by an inmate might be regarded as reasonable does not establish that a refusal to meet the request is either unlawful or unreasonable. [39] Where the request relates to access to facilities for the preparation of legal proceedings, the particular stage which the proceedings have reached has a bearing upon whether an inmate needs to be provided with the facilities which have been requested. [40] To the extent that an application for judicial review relates to a refusal to provide such facilities to an inmate, it is relevant to consider the particular tasks which need to be undertaken, and why doing so is not practicable in the absence of the inmate being provided with the facilities which are sought. [41]

Ground 1(a) - The plaintiff's access to legal representation

1. Ground 1(a) encapsulates two primary propositions, namely that: 1. clause 94(1) of the Regulation is invalid; and 2. the defendant's decision to require the plaintiff's legal representatives to undergo a CRI check is unreasonable.
2. As to the first of those propositions, the regulation making power is contained in s 271 of the Act. That power is complemented by s 79 of the Act which sets out the matters in respect of which regulations may be made. Those matters include visits to inmates. [57] The aspects of visits in respect of which regulations may be made include, but are not limited to: 1. the days and times that visits may be allowed; [58] 2. the conditions which must be observed by persons intending to visit an inmate before such a visit is allowed; [59] and 3. the procedures to be observed by visitors and inmates during visits. [60]
3. The Regulation also includes the following: 1. cl 82, which is contained within Division 2, and which confers an entitlement on an inmate to be visited by his or her legal practitioner; 2. cl 92, which provides that Division 4 shall apply to all visits under Division 1, 2 or 3 (as a consequence of which Division 4 must apply to a visit by a legal practitioner, the entitlement to which is conferred by cl 82 which is in Division 2); 3. cl 94(1), which is contained within Division 4, and which provides that a person may visit an EHRR inmate only if the defendant has approved that person as a visitor to that inmate; 4. cl 94(2), which is also contained within Division 4, and which confers a power on the defendant to require any visitor to undergo a CRI before approving that person as a visitor to an EHRR inmate.
4. Clause 92 makes it clear that a visit by a legal practitioner to an inmate, in exercise of the inmate's entitlement under cl 82, is a visit to which Division 4 applies. That leads to the inevitable conclusion that the reference to "visitor" in cl 94(2) (which is within Division 4) must be taken to include a legal practitioner. The proposition that cl 94 does not apply to visits by legal practitioners tends wholly against the only sensible construction of these provisions of the Regulation.
5. In these circumstances, the entitlement of an inmate to be visited by his or her legal practitioner which is conferred by cl 82 must be read as being subject to cl 94(1) and (2). In other words, an EHRR inmate is entitled to be visited by a legal practitioner only if that person has been approved by the defendant. Part of that approval process may involve the legal practitioner having to undergo a CRI. Such an interpretation is consistent with the context and purpose of the Regulation as a whole.

Ground 1(b) - The plaintiff's access to Audio Visual Link (AVL)

1. The plaintiff asserts that the defendant's decision to deny him access to AVL facilities is both invalid and unreasonable. In dealing with this ground, two matters must be noted at the outset.
2. Firstly, a court should not grant declaratory relief unless there is a dispute, the facts are established, and a finding is made. [63] Granting declaratory relief on the basis of a set of hypothetical circumstances is inappropriate. Mr Ripperger's evidence is that since the introduction of a revised system governing access to AVL facilities by EHRR inmates in the area where the plaintiff is currently held, the plaintiff has not made any application for such access. [64] However, Mr Ripperger has candidly stated that the inability to monitor conversations held over AVL would be a powerful consideration against granting any application made by the plaintiff for access to such a facility. In those circumstances, the impugned decision is anticipated, and thus hypothetical, rather than actual. However, in circumstances where the ground has been fully argued, it is appropriate that it be considered. Given the conclusion that I have reached, the fact that the impugned decision is hypothetical is of no consequence.
3. Secondly, some of the evidence adduced by the plaintiff, and some of the submissions made on his behalf based on that evidence, tended to venture into areas which extended well beyond the strict parameters of this ground. Those areas included a complaint about a lack of access to a laptop computer, as well as a complaint about the defendant's policy in relation to the handling of documents produced in the course of legal conferences. It is necessary to bear firmly in mind that this ground is limited to challenging to the defendant's decision to deny the plaintiff access to AVL facilities. It does not extend to a challenge to the conditions under which any access, if granted, would be exercised.
4. Fundamentally, the plaintiff has not explained why he needs access to an AVL facility to confer with any legal representative. The only affidavit of the plaintiff which was read in the judicial review proceedings was that of 23 September 2019. That affidavit does not contain any reference to other litigation in which the plaintiff engaged, much less does it establish that any such litigation has been compromised, to any degree, as a consequence of the fact that he has not been given access to AVL facilities. More specifically, the plaintiff has not asserted that these proceedings have been compromised in any way because of his lack of access to such facilities. There is no evidence whatsoever which establishes that the plaintiff's right to a fair trial, or his right to access to the Courts, has been compromised in any way whatsoever by any decision to deny him access to AVL facilities for the purposes of conferring with his legal representatives.

Ground 1(c) - The plaintiff's use of the Offender Telephone System

1. It is an agreed fact that under the defendant's policy, a call made by an EHRR inmate to his or her lawyer can be monitored. [68] In practical terms, that means that an officer of the defendant can listen to a call, briefly and randomly, to determine whether the call is being conducted: 1. with an approved recipient; and 2. in English, or another approved language.
2. If, during the period in which the call is monitored, the officer determines that one (or both) of these conditions has not been met, the call can be disconnected. A determination that a call be monitored obviously involves the officer making an evaluative judgment. In the event that a decision is made to monitor a call, the officer is then required to exercise his or her discretion at a number of different levels, including how often, and for how long, such monitoring should take place.
3. Clause 119(4) of the Regulation authorises the termination of an inmate's telephone call by a correctional officer on specific grounds. Further, clause 119(6) of the Regulation requires that all calls made by an EHRR inmate be conducted in English. Nothing in the text of either cl 119(4) or 119(6) suggests that those provisions should not apply to calls between an inmate and a legal practitioner.
4. In order to determine whether a particular ground is made out so as to justify the termination of a call, the defendant's officer must obviously be privy, at least in a general sense, to the content of the call. The exercise of the power to terminate a call is dependent upon the defendant's officer forming the view that there is a proper basis for taking that action. That necessarily assumes that the conversation is being monitored, to some degree, by that officer. The power to monitor such conversations is a necessary incident of the wide ranging responsibilities conferred on the defendant by s 232 of the Act. For the reasons previously discussed, all of these provisions must be construed as being indicative of the Parliament's intention to give the defendant a broad discretion in maintaining security and discipline within a correctional facility.
5. Whilst it must be recognised that legal professional privilege is a fundamental right, [69] and whilst its importance cannot be gainsaid, I accept the submission that the defendant's practice of "dropping in" to calls reflects the striking of an appropriate balance between the right of an inmate to maintain the confidentiality and privilege of communications with a legal representative, and the necessity for the defendant to effectively manage, and to monitor inmates housed in, a correctional facility. The fact that such a balance is appropriate is evident from the fact that on the unchallenged evidence before me, calls are monitored briefly and randomly, and only for such period of time as is necessary to ensure that the conversations are being conducted according to the defendant's policy. [70] Based on this evidence, I am satisfied that monitoring calls in that way does not allow the officer in question to become privy to the substance of what is being discussed.

CONCLUSION IN RESPECT OF THE JUDICIAL REVIEW PROCEEDINGS

1. For the foregoing reasons, the judicial review proceedings are dismissed.

The plaintiff's pleaded case

1. The amended summons filed by the plaintiff in the RDA proceedings seeks relief pleaded in the following terms: The Racial Discrimination Act 1975 (Cth) and/or s 109 of the Constitution 1. Relief in the nature of a Declaration that clause 101, clause 116 and clause 119(6) of the Crimes (Administrative Sentences) Regulation [sic] 2014 (NSW) are inconsistent with the right to equality before the law pursuant to s 10 of the Racial Discrimination Act 1975 (Cth) and are invalid by virtue of s 9 of the Racial Discrimination Act 1975 (Cth) and/or s 109 of The Constitution. The writ of prohibition 1. Relief in the nature of a Writ of Prohibition restraining the defendants, the employees, officers, delegates or agents from giving effect [sic] clause 101, 116 and 119(6) of the Crimes (Administrative Sentences) Regulation 2014 [sic] (NSW). Costs 1. Relief in the nature of an Order for costs.

THE EVIDENCE

1. The affidavits read in the judicial review proceedings were also read in the RDA proceedings. The document issued by the defendant which was annexed to the affidavit of Ms Burrows of 25 September 2019 included the following about visits to inmates: [77] All conversation, between you and your visitor, with the exception of those between you and your legal practitioner, must be conducted in English or a language approved by the Commissioner or delegate. You will be provided with an interpreter if the Commissioner or delegate has approved a language other than English. The interpreter will advise CSNSW of the content of your conversation. Your visit will be terminated if you or your visitor converse in a language other than English or an approved language. Your visits will be observed and the conversation monitored.
2. The primary evidence in the RDA proceedings was a further statement of agreed facts in the following terms: 1. The plaintiff identifies as being: a. Arab in ethnic origin; b. Lebanese in national origin; and c. Middle Eastern in race. 2. The word "Arabic" is defined in the Macquarie Dictionary in the following terms: "noun 1. a widespread Semitic language, existing in both classical and various colloquial forms, classical Arabic being a standard literary language as well as the scholarly and liturgical language of Islam, and colloquial Arabic being widely spoken, in a number of dialects, throughout northern Africa and the Middle East, including Egypt, Algeria, Morocco, Syria, and Iraq. -adjective 2. of or relating to, or spoken or written in, the Arabic language. 3. of or relating to the Arab peoples, their culture, land, etc." 3. The plaintiff and his immediate family are Arabic speakers and communicate with each other in Arabic, at least in part. The plaintiff's parents do not have very good English and the plaintiff sometimes finds it easier to make himself understood, when speaking to them in English, if he translates particular English words into Arabic. 4. Some Arabic words have no precise equivalent in English. Some Arabic words need three or four English words to translate their meaning. 5. The Arabic language is essential to the practice of the Islamic faith. The Islamic holy book, the Quran, is central to the practice of the Islamic faith and it is preserved and recited in Arabic. There are translations in various languages, but the Quran is always taught and recited in Arabic, regardless of the race or ethnicity of a Muslim person. 6. Arabic Quranic verses are used in the five daily prayers that are required under the Islamic faith. 7. Other Arabic phrases based on Quranic verses and injunctions are commonly used in conversations between Australian Muslims. Those phrases include, for instance, the following phrases on which the plaintiff relies in these proceedings: a. "Asslamo Alaykum" which translates to "Peace be upon you"; b. "Walaykum Alsalaam", which translates to "And peace be upon you", a response to Asslamo Alaykum; c. "Alhamdulillah", which translates to "Praise be to Allah"; d. "Bi Ithunillah" or "InshaAllah", which both translate to "If Allah wills"; e. "MashaAllah", which translates to "Allah has willed" and is used to express appreciation, joy or thankfulness; f. "Bismillah", which translates to "In the name of Allah", and is said when starting something; g. "Jazakum Allahu Khair", which translates to "May Allah give you good", and is used commonly to thank a person; h. "Ramadan Mubarak", which translates to "Blessed Ramadan" and is used to welcome in the Islamic fasting month of Ramadan; i. "Eid Mubarak", which translates to "Blessed Celebration (Eid)" and is used as a greeting at the time of the two Islamic celebrations of Eid Ul Fitr (to celebrate the end of Ramadan) and Eid Ul Adha (to celebrate the conclusion of the annual Islamic pilgrimage "Haj"); j. "Inna lil le hi wa inna I leaayhi rajoon", which translates to "From Allah we came and to Him we will return" is a direct Quranic verse that is commonly said by Muslims to pass on condolences, as when somebody dies or when one is struck by a calamity; k. "HasbiAllah wa nimal wakil", which translates to "Allah alone is sufficient for us and he is the best disposer of our affairs", and is used when a calamity occurs and one is faced with a difficult situation. 8. The plaintiff is designated as an extreme high risk restricted inmate pursuant to cl. 15(3) of the Crimes (Administration of Sentences) Regulation 2004. 9. Clause 101(1) of the Crimes (Administration of Sentences) Regulation 2004 provides that, during a visit to an extreme high risk restricted inmate, "all communications must be conducted in English" or another language approved by the Commissioner of Corrective Services ("the Commissioner"). 10. The Commissioner has not approved any language other than English in which communications with the plaintiff during a visit may occur. 11. Clause 116(1) of the Crimes (Administration of Sentences) Regulation 2004 provides that all correspondence from an extreme high risk restricted inmate to any other person (other than an exempt body) "must be written in English" or another language approved by the Commissioner, unless the Commissioner otherwise authorises. 12. The Commissioner has not approved the plaintiff to write communications with any person in any language other than English, and has not otherwise authorised the plaintiff to write communications except in English. 13. Clause 119(6) of the Crimes (Administration of Sentences) Regulation 2004 provides that telephone calls made by an extreme high risk restricted inmate "must be conducted in English" or another language approved by the Commissioner, unless the telephone call is made to an exempt body or unless the Commissioner otherwise authorises. 14. The Commissioner has not approved the plaintiff to conduct telephone calls in any language other than English, and has not otherwise authorised the plaintiff to conduct telephone calls except in English. 15. As a result of the above, the plaintiff must communicate "in English" during visits with his family, in written communication he sends to his family, or in telephone calls with his family.

THE RELEVANT LEGISLATION

1. The principal legislative provisions which bear upon the issues raised in the RDA proceedings include clauses 101, 116 and 119 of the Regulation which have already been set out. [78] The following additional provisions are relevant.

The Racial Discrimination Act 1975 (Cth)

1. Section 9 of the Racial Discrimination Act 1975 (Cth) (RDA) is in the following terms: 9. Racial discrimination to be unlawful (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. (1A) Where: (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and (b) the other person does not or cannot comply with the term, condition or requirement; and (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin. 2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention. (3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia. (4) The succeeding provisions of this Part do not limit the generality of this section.
2. Section 10 of the RDA is in the following terms: 10. Rights to equality before the law (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. (2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention. (3) Where a law contains a provision that: (a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or (b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander; not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person.

The Commonwealth of Australia Constitution Act

1. Section 109 of the Commonwealth of Australia Constitution Act (the Constitution) is in the following terms: 109 Inconsistency of laws When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Submissions of the plaintiff

1. Senior counsel emphasised that the plaintiff had sought, for some time, to have the right to speak to members of his family in the Arabic language when they visit him in custody. It was submitted that a person's right to speak in his or her own language is a right which is able to be exercised by any Australian, and that any prohibition on the exercise of that right was unjustified, discriminatory, and contrary to law. It was submitted that no state, or state instrumentality, was entitled to interfere with such a right, and that any justification for doing so which had been advanced by the defendant in the present case was contrary to law.
2. Senior counsel submitted that the prohibition placed upon EHRR inmates in terms of speaking a language other than English was not something which was done for their benefit, nor was it something done for the purposes of "advancing them in life". Senior counsel submitted that it was put in place in order to restrict their entitlements and that there was nothing permitting the defendant to take that course.

Submissions of the defendant

1. Counsel for the defendant submitted that the purpose of clauses 101, 116 and 119(6) of the Regulation was not to constrain the right of any inmate to freedom of expression but rather to ensure that the communications of EHRR inmates could properly be monitored for security and related reasons. Counsel submitted that those clauses were concerned with the security of both the correctional centre and the broader community.
2. Counsel for the defendant emphasised that it was necessary to give these provisions a practical and sensible construction. He submitted that in order for the defendant to properly carry out his functions, it was necessary for communications be conducted in a language that was capable of being properly and effectively monitored and that as a practical matter, that language was English. It was submitted that this reflected not only the fact that English is Australia's most widely spoken language, but also the fact that it is Australia's "de facto" national language, in the sense that it is the language of the legislative, executive and judicial arms of the Government of this State.
3. Counsel for the defendant identified that a central question raised in the RDA proceedings was what was meant by the requirement that a communication be conducted in English. It was submitted that a communication will be in English if a hypothetical ordinary English speaker listening to or reading the communication would be able to understand it. It was submitted that understanding was crucial because without it, there could be no meaningful monitoring on the part of the defendant for security and related purposes, which the clauses under consideration were designed to ensure.
4. To the extent that the plaintiff submitted that provisions of the Regulation contravened, or were inconsistent with, ss 9(1) and 10(2) of the RDA, counsel for the defendant emphasised that both of those sections operated by reference to rights. Those rights are defined in ss 9(2) and 10(2) of the RDA to include rights of a kind referred to in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination ("the Convention") which is in the following terms: Convention In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibited and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice; (b) The right to security of person and protection by the States against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution; (c) Political rights, in particular the rights to participate in elections - to vote and to stand for election - on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service; (d) Other civil rights, in particular: (i) The right to freedom of movement and residence within the border of the State; (ii) The right to leave any country, including one's own, and to return to one's country; (iii) The right to nationality; (iv) The right to marriage and choice of spouse; (v) The right to own property alone as well as in association with others; (vi) The right to inherit; (vii) The right to freedom of thought, conscience and religion; (viii) The right to freedom of opinion and expression; (ix) The right to freedom of peaceful assembly and association; (e) Economic, social and cultural rights, in particular: (i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration; (ii) The right to form and join trade unions; (iii) The right to housing; (iv) The right to public health, medical care, social security and social services; (v) The right to education and training; (vi) The right to equal participation in cultural activities; (f) The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks.

CONSIDERATION

1. In light of the submissions of the parties, the resolution of the RDA proceedings involves a consideration of four questions, namely: 1. What constitutes a conversation "in English"? 2. What right(s) does the plaintiff actually assert? 3. Is any right asserted by the plaintiff a right which engages ss 9(1) and/or 10(1) of the RDA? 4. Even if the plaintiff's asserted right is recognised by ss 9(1) and 10(1) of the RDA, do the RDA proceedings fail in any event?

Conversations "in English"

1. In determining what constitutes a conversation "in English", it is relevant that the following facts are agreed: 1. clause 101(1) of the Regulation provides that during a visit to an EHRR inmate, all communications must be conducted in English or another language approved by the Commissioner of Corrective Services; [79] 2. the Commissioner has not approved any language other than English in which communications with the plaintiff during a visit may occur; [80] 3. clause 116(1) of the Regulation provides that all correspondence from an EHRR inmate to any other person (other than an exempt body) must be written in English or another language approved by the Commissioner, unless the Commissioner otherwise authorises; [81] 4. the Commissioner has not approved the plaintiff to write communications with any person in any language other than English, and has not otherwise authorised the plaintiff to write communications except in English; [82] 5. clause 119(6) of the Regulation provides that telephone calls made by an EHRR inmate must be conducted in English or another language approved by the Commissioner, unless the telephone call is made to an exempt body or unless the Commissioner otherwise authorises; [83] 6. the Commissioner has not approved the plaintiff to conduct telephone calls in any language other than English, and has not otherwise authorised the plaintiff to conduct telephone calls except in English; [84] 7. as a consequence of the foregoing, the plaintiff must communicate in English during visits with his family, in written communication he sends to his family, or in telephone calls with his family. [85]
2. Self-evidently, a communication will be in English where it consists entirely of English words, phrases and expressions. However, in light of the development of the English language, a conversation may be in English even when it includes words which have been "borrowed' from other languages, and thus incorporated into the English language. In English Vocabulary Elements [86] the authors make the following relevant observations: [87] Modern English is the product of a long and complex process of historical development. Consequently, we can expect to find clues to its character in the past. Indeed, English has a history as rich as its vocabulary. The most important historical factor in the growth of the English vocabulary has been the ease with which it has borrowed words from other languages and adapted them to its own uses. The word clique for example, was taken into English from French around the year 1700. Since that time, clique has become a familiar English word. It has been incorporated into the language to such an extent that it participates in processes that originally applied only to native vocabulary, resulting in the new words cliquish, cliquishness, cliquey, cliqueless the verb to clique and others. In fact, English now has many more words derived from clique than French does. English has been so ready to take words from foreign sources that the greater part of the modern English vocabulary has either been borrowed or formed from borrowed elements. [Emphasis in original].

The right asserted by the plaintiff

1. Sections 9 and 10 of the RDA operate by reference to identified rights. It follows that a fundamental step in determining whether the relief sought by the plaintiff should be granted is to identify, clearly and precisely, the rights which are asserted. [89]
2. The agreed facts include the following: [90] The plaintiff and his immediate family are Arabic speakers and communicate with each other in Arabic, at least in part. The plaintiff's parents do not have very good English and the plaintiff sometimes finds it easier to make himself understood, when speaking to them in English, if he translates particular English words into Arabic.
3. The written submissions of senior counsel for the plaintiff made reference to the plaintiff having sought "for some time the right to speak to members of his family during visits in the Arabic language". [91] The submissions then made reference to "the right to speak in a person's language". These references were repeated in oral submissions in the following terms: [92] So we would say he's a person of a particular race, and perhaps communicating with members of his family, and they're of a particular race, and they have a particular ethnic origin, and he doesn't enjoy a right, or enjoys it to a more limited extent than others in that he cannot communicate in the language of his birth with members of his family, nor can they with him, and that right is something held by every other person living in Australia who is entitled to speak in whatever language they like.
4. In these circumstances I have proceeded on the basis that for the purposes of the RDA proceedings, the right asserted by the plaintiff is a right to speak and/or express himself in Arabic in all circumstances. I should say that although the submissions made tangential references to the plaintiff's religion, no such right was ever asserted in precise terms on the plaintiff's behalf. It is obviously incumbent upon the plaintiff to clearly articulate the right(s) he asserts. It is not for the Court to guess what is relied upon.

Is the right asserted by the plaintiff recognised by the RDA?

1. The RDA ratifies the Convention, and those parts of it which are included in the Schedule to the RDA are incorporated into Australian law. [93] The effect of this was explained by Brennan J (as his Honour then was) in Koowarta v Bjelke-Petersen: [94] The Act thus makes part of Australia's municipal law, enforceable by curial process, a key provision of the Convention. When Parliament chooses to implement a treaty by statute which uses the same words as the treaty, it is reasonable to assume that Parliament intended to import into municipal law a provision having the same effect as the corresponding provision in the treaty. … A statutory provision corresponding with a provision in a treaty which the statute is enacted to implement should be construed by municipal courts in accordance with the meaning to be attributed to the treaty provision in international law. Indeed, to attribute a different meaning to the statute from the meaning which international law attributes to the treaty might be to invalidate the statute in part or in whole, and such a construction of the statute should be avoided. …
2. It follows that decisions of international courts and tribunals are appropriately taken into account in determining the meaning of provisions of the Convention, as well as any Australian law (such as s 9(1) of the RDA) that gives effect to it. However, when taking into account such decisions, it is important to bear in mind the caution expressed by French CJ in Maloney: [95] An interpretation of a treaty provision adopted in international practice, by the decisions of international courts or tribunals, or by foreign municipal courts may illuminate the interpretation of that provision where it has been incorporated into the domestic law of Australia. That does not mean that Australian courts can adopt "interpretations" which rewrite the incorporated text or burden it with glosses which its language will not bear.
3. Article 5(d)(viii) of the Convention identifies a right to freedom of opinion and expression. Given the way in which the plaintiff's case has been put, the question for this Court is whether that right either extends to, or encompasses, a human right to communicate with other people, in all circumstances, in the language of a person's choice (in this case the Arabic language). The determination of that question necessitates reference to a number of authorities.

Do the RDA proceedings fail in any event?

1. Even if I am wrong in those conclusions, there are further reasons why the RDA proceedings must fail.
2. Section 9(1) of the RDA makes it unlawful for a person to do any act: 1. where such act involves a distinction, exclusion, restriction or preference; 2. where such act is based upon race, colour, descent or national or ethnic origin; 3. where such act has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of the right of another person; and 4. where that right is a human right or a fundamental freedom in the political, economic, social, cultural or any other field of public life. [112]
3. For the reasons I have previously expressed, I am not satisfied that the right asserted by the defendant is a human right, in which case the requirement in (iv) would not be made out. However, even if it was, the RDA proceedings, insofar as they are based upon s 9(1) of the RDA would still fail.
4. The effect of s 9(1) is that is prohibits certain acts which are based on race, colour, descent or national or ethnic origin. In the context of the present case, the plaintiff asserts that the act of the defendant requiring him to speak English in the course of visits is one which is based on one or more of those factors.
5. The submissions of counsel for the defendant pointed out that conflicting views have been expressed as to the meaning of the term "based on" when used in this context. One line of authority favours the view that an act will be (for example) based on race if it is an act done by reference to race, such that there is no need for a causal relationship between the two. [113] The other line of authority favours the view that a causal relationship must exist between the matters that influenced the act, and the act itself. [114] On that basis, the relevant enquiry is whether the relevant distinction is a material factor in performing the relevant act. [115]
6. It is not necessary for me to attempt to resolve that conflict. In the present case, the act of the defendant about which the plaintiff complains is the act of requiring him to speak English when being visited, pursuant to cl 101 of the Regulation. There is no evidence whatsoever that it is an act based on race, be it in the sense of an act done by reference to race, or an act done in which race is a material factor in the act being performed. Accordingly, irrespective of how the phrase "based on" might be interpreted, s 9(1) of the RDA has no application, and no issue under s 109 of the Constitution arises.

CONCLUSION IN RESPECT OF THE RDA PROCEEDINGS

1. For the reasons set out, the RDA proceedings are dismissed.

ORDERS

1. I make the following orders: 1. Proceedings 2016/276127 are dismissed. 2. Proceedings 2016/276186 are dismissed. 3. Proceedings 2017/177196 are dismissed. 4. Proceedings 2018/41479 are dismissed. 5. The question of costs in all proceedings is reserved. 6. Absent agreement being reached as to costs: 1. the plaintiff is to file written submissions with my Associate, not exceeding three pages in length, by 1 May 2020. 2. the defendant is to file written submissions in reply with my Associate, not exceeding three pages in length, by 8 May 2020.

Endnotes

1. Although the plaintiff has joined the State of NSW in some of the proceedings, the focus of the issues is upon the decisions of the Commissioner. I have accordingly referred to the Commissioner as the defendant, the State of NSW having taken no active role in the proceedings.
2. Proceedings 2016/276127.
3. Proceedings 2016/276186.
4. Proceedings 2018/41479.
5. Proceedings 2017/177196.
6. Ground 1(d) in the amended summons was not pressed.
7. It is noted that notwithstanding paragraph (a), no specific submissions were made on behalf of the plaintiff regarding Clause 163.
8. It is noted that notwithstanding paragraphs (f) and (g), no submissions were made on behalf of the plaintiff regarding the Surveillance Devices Act 2007 (NSW) or the Telecommunications (Interception and Access) Act 1979 (Cth).
9. Exh A. This included the evidence relied upon by the parties in the RDA proceedings.
10. At [4].
11. At [7]-[8].
12. At [22]-[23].
13. At [4] under the heading "Recent difficulty with seeing Mr Hamzy".
14. At [19]-[20].
15. At [3]-[7].
16. At [5]-[6] under the heading "Recent difficulty with seeing Mr Hamzy".
17. Commencing at [5].
18. At [14]. It is noted that when referring to the plaintiff's correspondence in this judgment, the correspondence is reproduced in the exact terms in which it has been written.
19. At [24]-[25].
20. At [5].
21. At [6].
22. At [17].
23. At [19]-[21].
24. At [50].
25. At [51].
26. Commencing at [10].
27. At [13].
28. Annexure B commencing at p.141 of Exh A.
29. At para [35].
30. Exh A p. 318. The content of this document is set out in the terms in which it was written.
31. Exh A p. 320. The content of this document is set out in the terms in which it was written.
32. Set out at [16] above.
33. This submission appeared to fall outside the ambit of ground 1(a). In any event, the procedure referred to by senior counsel is authorised by cl 103 of the Regulation.