Hamzy v Commissioner of Corrective Services NSW - [2022] NSWCA 16 - NSWCA 2021 case summary — Zoe

NSWNSWCA

Hamzy v Commissioner of Corrective Services NSW

[2022] NSWCA 16

Court of Appeal (NSW)|2021-11-04|Before: Bathurst CJ, Basten JA, Leeming JA

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Source facts

Court

Court of Appeal (NSW)

Decision date

2021-11-04

Before

Bathurst CJ, Basten JA, Leeming JA

Source

Original judgment source is linked above.

Judgment (45 paragraphs)

[1]

2002 (NSW), Part 2A Civil Rights Act 1964 (US), Title VII Commonwealth Constitution, s 109 Crimes (Administration of Sentences) Act 1999 (NSW), ss 2A, 21, 55, 79, 190, 204, 232, 235, 235B, 271, 271A, Schedules 1, 2 Crimes (Administration of Sentences) Regulation 2001, cl 81 Crimes (Administration of Sentences) Regulation 2014 (NSW), cll 15, 76-80, 82-84, 86, 91-104, 108, 110, 112, 113, 115-119A, 122 Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995, cl 92 Criminal Code Act 1983 (NT), s 181 Felons (Civil Proceedings) Act 1981 (NSW), s 3 Interpretation Act 1987 (NSW), ss 31, 32 Legal Profession Uniform Law (NSW), cl 78 Race Relations Act 1971 (NZ), s 25 Race Relations Act 1976 (UK), s 3 Racial Discrimination Act 1975 (Cth), ss 8, 9,10, 13-15; Pt II Supreme Court Act 1970 (NSW), s 75A Telecommunications (Interception and Access) Act 1979 (Cth) Trade Practices Act 1974 (Cth), s 155 Universal Declaration of Human Rights Cases Cited: Abbas v NSW Commissioner of Police [2019] NSWSC 1841 Aboriginal Legal Rights Movement Inc v South Australia (No 1) (1995) 64 SASR 551 Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133; [1999] HCA 62 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 Attorney-General (South Australia) v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3 Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 Baird v Queensland (2006) 156 FCR 451; [2006] FCAFC 162 Ballantyne v Canada UN Human Rights Committee, Communication 359, 385/1989 (31 March 1993) Baybaşin v The Netherlands [2006] ECHR 690 Belcher v Deneen (1832) Dowl Sel Cas 168 Clark v Commissioner for Corrective Services [2016] NSWCA 186 Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 Commissioner of Australian Federal Police v Elzein (2017) 94 NSWLR 700; [2017] NSWCA 142 Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Doyle's Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246 Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583; [1978] HCA 54 Elliott v Minister Administering Fisheries Management Act 1994 (2018) 97 NSWLR 1082; [2018] NSWCA 123 Esso Australia Pty Ltd v The Australian Workers' Union (2017) 263 CLR 551; [2017] HCA 54 Evans v State of New South Wales (2008) 168 FCR 576; [2008] FCAFC 130 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 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 Green v Woodroffe (1828) Dowl Sel Cas 106 Griggs v Duke Power Co 401 US 424 (1971) Hamzy v Commissioner of Corrective Services [2020] NSWSC 414 Harrington v Lowe (1996) 190 CLR 311; [1996] HCA 8 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 Iliafi v The Church of Jesus Christ of Latter-day Saints Australia (2014) 221 FCR 86; [2014] FCAFC 26 John Holland Pty Ltd v Victorian WorkCover Authority (2009) 239 CLR 518; [2009] HCA 45 Jones v Scully (2002) 120 FCR 243; [2002] FCA 1080 Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 King-Ansell v Police [1979] 2 NZLR 531 Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 Lambert v Weichelt (1954) 28 ALJ 282 Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Leech, R (on the Application of) v Parkhurst Prison [1988] AC 533; [1988] UKHL 16 Mabo v Queensland (1988) 166 CLR 186; [1988] HCA 69 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 Mandla v Dowell Lee [1983] 2 AC 548 Mehmet Nuri Ӧzen v Turkey (2014) 58 EHRR 27 Miller v Wertheim [2002] FCAFC 156 Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27 Munkara v Bencsevich [2018] NTCA 4 Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R 74 Nusret Kaya v Turkey [2014] ECHR 408 (2nd Section) (No 43750/06 et al, 22 April 2014) Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282; [2003] NSWCA 146 Patsalis v New South Wales [2012] NSWSC 267 Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 R v Gardener and Yeurs [1829] Dowl Sel Cas 108 R v Home Secretary; Ex parte Simms [1999] QB 349 R v Khazaal [2006] NSWSC 1353; 167 A Crim R 565 R v Maloney [2012] QCA 105 R v Secretary of State for the Home Department, Ex Parte Pierson [1998] AC 539; [1997] UKHL 37 Raymond v Honey [1983] AC 1 Reed v Commissioner of Corrective Services [2008] NSWSC 161 Ren v Jiang (No 3) [2014] NSWCA 204 Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33 Rondel v Worsley [1969] 1 AC 191 Ruhani v Director of Police (No 2) (2005) 222 CLR 580; [2005] HCA 43 Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215 Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4 Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 South Australia v Tanner (1989) 166 CLR 161 TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 Técnicas Reunidas SA v Andrew [2018] NSWCA 192 Victoria v Commonwealth (1996) 187 CLR 416; [1996] HCA 56 Victoria v Macedonian Teachers' Association of Victoria Inc (1998) 91 FCR 47; [1999] FCA 1287 Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49 Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 Williams v Melbourne Corporation (1933) 49 CLR 142; [1933] HCA 56 Wotton v Queensland (No 5) [2016] FCA 1457 Texts Cited: M Bilder, "The Corporate Origins of Judicial Review" 116 Yale Law Journal 502 (2006) W Blackstone, Commentaries on the Laws of England (Bk IV, ch 29) (2016, Oxford University Press) J Donnelly, "Judicial Review for the Convicted Felon in Australia - A Consideration of Statutory Context and the Doctrine of Attainder" (2012) 16(1) University of Western Sydney Law Review 137 European Convention for the Protection of Human Rights and Fundamental Freedoms, Arts 10(2), 14 International Convention on the Elimination of All Forms of Racial Discrimination, Arts 2, 5 International Covenant on Civil and Political Rights, Arts 19, 27 S Joseph and M Castan, The International Covenant on Civil and Political Rights (3rd ed, 2013, Oxford University Press) D Meagher and M Groves, "The Common Law Principle of Legality and Secondary Legislation" (2016) 39(2) UNSWLJ 450 N Rees, S Rice and D Allen, Australian Anti-Discrimination & Equal Opportunity Law (3rd ed, 2018, The Federation Press) W Sadurski, "Gerhardy v Brown v The Concept of Discrimination: Reflections on the Landmark Case that Wasn't" (1986) 11 Syd Law Rev 5 R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria (facsimile edition 1974 of 2nd ed 1863) V Windeyer, "A Birthright and Inheritance" (1962) 1 U Tas Law Rev 635 Category: Principal judgment Parties: Bassam Hamzy (Applicant) Commissioner of Corrective Services New South Wales (First Respondent) State of New South Wales (Second Respondent) Representation: Counsel: Applicant in person J Emmett SC, J Edwards (Respondents) C O Gleeson, M Parker (Amicus Curiae)

[4]

HEADNOTE [This headnote is not to be read as part of the decision] The appellant, Mr Bassam Hamzy, is serving a sentence of full-time imprisonment in the High Risk Management Correctional Centre in Goulburn. He has been designated an "extreme high risk restricted inmate" (EHRR inmate) under the Crimes (Administration of Sentences) Regulation 2014 (NSW) (CAS Regulation). Clause 15 of the CAS Regulation authorises the Commissioner of Corrective Services to designate an inmate as an EHRR inmate if of the opinion that the inmate constitutes an extreme danger to other people or an extreme threat to good order and security, and 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. Mr Hamzy brought four proceedings in the Supreme Court, Common Law Division challenging the lawfulness of aspects of the conditions of imprisonment to which he was subject as an EHRR inmate. Clause 94 of the CAS Regulation purported to empower the Commissioner to refuse to permit visits to EHRR inmates by any person, including lawyers, "on the basis of a criminal record check or for any other reason". Pursuant to a "drop-in policy" implemented by the Commissioner, Corrective Services officers randomly monitored telephone calls made by EHRR inmates, including calls with legal practitioners, to determine whether they were being conducted in English and with the approved recipient. Additionally, cll 101, 116 and 119(6) of the CAS Regulation purported to require most communications by EHRR inmates to be in English. The primary judge dismissed each of the proceedings challenging the validity of these provisions and the drop-in policy. Mr Hamzy appealed in respect to two proceedings. The principal issues before the Court were: 1. Whether cl 94 of the CAS Regulation, properly construed, applied to visits by lawyers, and if so whether it was invalid; 2. Whether the "drop-in policy" was unlawful in its application to telephone calls between EHRR inmates and their lawyers, and 3. Whether cll 101, 116 and 119(6) of the CAS Regulation were inconsistent with ss 9(1) or 10(1) of the Racial Discrimination Act 1975 (Cth) and for that reason invalid to the extent of the inconsistency by operation of s 109 of the Constitution (Cth). The Court held, allowing the appeal in relation to issues (1) and (2) and dismissing the appeal in relation to issue (3): As to issue (1), per Leeming JA, Bathurst CJ and Basten JA agreeing:

The regulation-making power in the Crimes (Administration of Sentences) Act did not authorise cl 94 insofar as it conferred on the Commissioner a general power "for any other reason" to refuse to permit an EHRR inmate's chosen lawyer to visit: at [206]-[212], [220]-[238]. The power to require a criminal record check was authorised: at [202]-[205], [220]-[238]. Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 considered. Elliott v Minister Administering Fisheries Management Act 1994 (2018) 97 NSWLR 1082; [2018] NSWCA 123; Attorney-General (South Australia) v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3; Evans v State of New South Wales (2008) 168 FCR 576; [2008] FCAFC 130; Patsalis v New South Wales [2012] NSWSC 267 applied.
Applying s 32(2) of the Interpretation Act 1987 (NSW), the result was that cl 94 applied in its terms to all visitors save for legal practitioners, but in its application to legal practitioners was to be read down so that the words "or for any other reason" were omitted: at [254]. As to issue (2), per Leeming JA, Bathurst CJ and Basten JA agreeing:
Neither cl 119(6) nor any other source of power in the Act or CAS Regulation authorised the "drop-in policy" insofar as it applied to telephone conversations between an EHRR inmate and his or her legal practitioner: at [239]-[252]. The clause itself was however not invalid, and did not require reading down in accordance with s 32(2): at [255]. Discussion of the rights enjoyed by convicted inmates: at [167]-[182]; Raymond v Honey [1983] AC 1; Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27; Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 considered. Discussion of the interaction between construction and validity: at [183]-[188]; Doyle's Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246; Commissioner of Australian Federal Police v Elzein (2017) 94 NSWLR 700; [2017] NSWCA 142; Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 applied. As to issue (3), per Leeming JA, Bathurst CJ agreeing:
Having regard to the manner in which the case was conducted, there was no contravention of s 9 of the Racial Discrimination Act as there was nothing to suggest that the purpose of the requirement to use English in cll 101, 116 and 119 of the CAS Regulation had anything to do with discrimination: at [274].
Insofar as the appellant relied on s 10 of the Racial Discrimination Act, there was no other law which conferred a right enjoyed by persons of another race, colour or national or ethnic origin which, by dint of s 10, could be relied on by the appellant: at [274]. As to issue (3), per Basten JA, agreeing in the result for separate reasons:
Given the manner in which the case was run at trial, the primary judge was correct to dismiss the proceedings with respect to the Racial Discrimination Act, although the lawfulness of the provisions of the CAS Regulation challenged could not be determined on appeal: at [89]-[91].
An act imposing a constraint on the use of some or all languages may be an act which engages the operation of s 9 or s 10 of the Racial Discrimination Act because its adverse effects have a disparate impact on particular national or ethnic groups, but whether such an act is unlawful discrimination will depend on whether it has a legitimate purpose which is pursued by means which are not unreasonable: at [89]-[91]. Discussion of: (a) the relevance of personal circumstances in identifying a breach of s 10 of the Racial Discrimination Act. The criminal law may be inconsistent with s 9 or s 10 of the Racial Discrimination Act if it has a disparate impact on particular ethnic groups; it is not immune from invalidation on the basis that it merely prescribes the consequences of a person's actions or the circumstances of incarceration: at [22]-[42]. Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215; Nguyen v Refugee Review Tribunal (1997) 74 FCR 311; Munkara v Bencsevich [2018] NTCA 4; Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28; Baybaşin v The Netherlands [2006] ECHR 690 (Application 13600/02, 6 July 2006); Nusret Kaya v Turkey [2014] ECHR 153; Mehmet Nuri Ӧzen v Turkey (2014) 58 EHRR 27 considered. (b) the meaning of the phrase "ethnic origin" in s 9 of the Racial Discrimination Act. A group of shared ethnic origin may be identifiable by a common language. Accordingly, a State law which precludes the use of a common language among members of such a group may involve a restriction based on ethnic origin: at [55]-[60]. King-Ansell v Police [1979] 2 NZLR 531; Mandla v Dowell Lee [1983] 2 AC 548 considered. (c) the meaning of the phrase "based on race" in s 9 of the Racial Discrimination Act. The requirement for an act to be "based on race" relates not to any causal requirement, but connotes that the act be done or undertaken by reference to race: at [64]-[68]; Baird v Queensland [2016] FCA 1457; Macedonian Teachers' Association of Victoria Inc. v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489; [1998] FCA 1650; Wotton v Queensland (No 5) [2016] FCA 1457 considered. (d) the nature of the rights covered by s 9(2) of the Racial Discrimination Act. Language is a function of race, or national or ethnic origin, but the adoption of a single language of public administration is reasonable and justifiable so long as any disadvantage is ameliorated: at [69]-[88]; International Convention on the Elimination of All Forms of Racial Discrimination, Art 5; International Covenant on Civil and Political Rights, Arts 19, 27; Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11; Mabo v Queensland (1988) 166 CLR 186; [1988] HCA 69 applied; Guesdon v France Human Rights Committee, Communication 219/1986; 25 July 1990; Fryske Nasjonale Partij v Netherlands (1985) 9 EHRR 240; Ballantyne v Canada UN Human Rights Committee, Communication 359, 385/1989 (31 March 1993); Iliafi v The Church of Jesus Christ of Latter-day Saints Australia (2014) 221 FCR 86; [2014] FCAFC 26 considered.

[5]

Judgment BATHURST CJ BASTEN JA Issues raised Racial Discrimination Act (1) Pleading (2) Operation of s 10 (3) Reasoning of trial judge (4) Operation of s 9 The statutory scheme "based on race" "human right or fundamental freedom" Conclusions LEEMING JA Factual background and procedural matters Clause 94 of the CAS Regulation and its practical operation Part 5 of the CAS Regulation The reasons of the primary judge on cl 94 The parties' submissions on cl 94 The appellant's submissions Respondents' submissions Submissions of the amicus curiae The "drop-in policy" Factual background The reasons of the primary judge The parties' submissions on the drop-in policy The appellant's submissions The respondents' submissions Submissions of the amicus curiae Consideration The rights enjoyed by convicted inmates The interaction between construction and validity Threshold question of construction: the interaction between cl 92 and cl 82 The legal and practical effect of cl 94 upon visits by legal practitioners (a) criminal record check (b) for any other reason The regulation-making power Is cl 94 authorised by the regulation-making power? Conclusion on cl 94 Is the drop-in policy authorised? Reading down The claim based on the Racial Discrimination Act The reasoning of the primary judge The parties' submissions on the Racial Discrimination Act The appellant's submissions Respondents' submissions Consideration Conclusion and orders

BATHURST CJ: I have had the advantage of reading the judgments of Basten JA and Leeming JA in draft.
Justice Leeming at [92] has referred to what he described as three broad issues raised on the appeal. In relation to the first two issues, I agree with his reasons and conclusions.
So far as the third issue is concerned, I agree with Basten JA and Leeming JA that s 10(1) of the Racial Discrimination Act 1975 (Cth) has no application in the present case as there was no other law which conferred a right enjoyed by a person of another race, colour or national or ethnic origin which by s 10 could be relied on by the appellant. In these circumstances, I would prefer not to express any views on the additional reasons given by Basten JA for dismissing the claim based on s 10.
So far as s 9 of the Racial Discrimination Act is concerned, I agree for the reasons given by Basten JA and Leeming JA that having regard to the manner in which the case was conducted, there is no contravention of that section as a purpose of the requirement to use English contained in the relevant regulations had nothing to do with discrimination.
In these circumstances I agree with the orders proposed by Leeming JA.
BASTEN JA: In 2016 the appellant, Bassam Hamzy, commenced two proceedings in the Common Law Division challenging the lawfulness of the conditions of imprisonment to which he was subject as an "extreme high risk restricted inmate". He challenged both specific provisions in the Crimes (Administration of Sentences) Regulation 2014 (NSW) ("Regulation") and practices adopted by the Commissioner of Corrective Services ("Commissioner"). The Commissioner was (and is) the officer having statutory responsibility for the care, direction, control and management of all correctional centres in NSW and having the care, control and management of all offenders held in such centres. [1] The Commissioner and the State of New South Wales were joined as defendants at first instance and as respondents to the appeal.
In October 2019 the 2016 proceedings and two more recent proceedings (commenced in 2017 and 2018 respectively) were heard by Bellew J, each being dismissed. [2] The two more recent proceedings were not the subject of the present appeal. The extensive delay in addressing the 2016 proceedings is troubling. The delay was exacerbated by the failure of the appellant to appeal for more than 12 months from the date of the judgment. However, as there was no objection by the respondents to the appellant being granted an extension of time, the circumstances giving rise to the delay were not explored in this Court. Importantly, both the legislative scheme and the administrative practices were said not to have changed over the period of some five years.
With respect to the issues raised in what has been identified as the judicial review proceeding, I agree with the reasoning and conclusions of Leeming JA. With respect to the challenge raised under the Racial Discrimination Act 1975 (Cth) and s 109 of the Constitution, I agree that the proceeding was correctly dismissed by the trial judge, but prefer to state my own reasons for that conclusion, which differ from those of the trial judge. The nature of the challenge and the submissions have been summarised by Leeming JA. I agree with the orders proposed by Leeming JA.

[6]

Issues raised

As noted by the trial judge, the primary relief sought by the appellant was a declaration that cll 101, 116 and 119(6) of the Regulation were invalid. As State laws, to the extent that those provisions were inconsistent with either s 9 or s 10 of the Racial Discrimination Act, they were invalid by operation of s 109 of the Constitution (Cth). In the event that the premise of the proposed declaration was made good, consequential relief was sought restraining the respondents and relevant employees and officers from giving effect to those provisions of the Regulation.
Each of cll 101, 116 and 119(6) is set out by Leeming JA in full and need not be repeated here. [3] In summary, each relates to communications between an "extreme high risk restricted inmate" and another person. The effect of each is to require that communications be conducted in English, unless the Commissioner approves the use of "another language", or otherwise authorises` the communication.
The agreed facts on which these clauses of the Regulation were challenged included the fact that the appellant and his immediate family are Arabic speakers and communicate with each other at least partly in Arabic. In particular, the plaintiff's parents do not have "very good English". Some Arabic words were said to have no precise equivalent in English and the Arabic language was "essential to the practice of the Islamic faith." The appellant himself is fluent in English, as was apparent from his conduct of the appeal.
Before turning to the scope and operation of the Racial Discrimination Act, three contextual propositions should be noted. First, as a prisoner, the appellant suffered a significant impairment of his individual liberty. That included the impairment of his ability to meet and communicate with friends and family. While the criminal law provides imprisonment as a penalty for an offence, rather than providing for the punishment of prisoners, this impairment of the freedom to contact others inhered in the penalty of imprisonment.
Secondly, each of the constraints on communication noted above was engaged because the appellant had been designated an extreme high risk restricted inmate. That designation was available under the Regulation, cl 15(3) of which provides: 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.
It was an agreed fact that the appellant was designated as an extreme high risk restricted inmate pursuant to this provision. That status turned on the opinion of the Commissioner as to the specified criteria. The agreed fact was as to the status, rather than that the appellant constituted such a danger or threat, or that the risk identified in par (b) was in fact engaged. Nevertheless, the terms of cl 15(3) would be relevant to the kinds of constraint on human rights protected under international law, such as maintaining ordre public or as being "necessary in a democratic society, … for the prevention of disorder or crime…." [4]
Thirdly, no reliance was placed on the prohibition of racial discrimination in Pt 2 of the Anti-Discrimination Act 1977 (NSW). There is no need, therefore, to address the interrelationship of that State Act and the Regulation made under another State Act.

[8]

(2) Operation of s 10

Section 10 of the Racial Discrimination Act is entitled "Rights to equality before the law". It assumes that a right enjoyed by persons of a particular race, colour or national or ethnic origin are enjoyed to a more limited extent by persons of another race, colour or national or ethnic origin. The rights of the latter are, by force of s 10, to be enjoyed to the same extent as by the former. Section 10 relevantly reads: 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. …
The term "the Convention" in subs (2) refers to the International Convention on the Elimination of All Forms of Racial Discrimination (the "Convention" or "CERD"), to which the Act gave effect as part of Australian domestic law. The result is that terms in the Act are to be construed having regard to their meaning in the international context from which they derive.
This provision can operate with respect to rights under state law, but it does not directly render a state law invalid. As Mason J explained in Gerhardy v Brown: [5] "Section 10 is not aimed at striking down a law which is discriminatory or is inconsistent with the Convention. Instead it seeks to ensure a right to equality before the law by providing that persons of the race discriminated against by a discriminatory law shall enjoy the same rights under that law as other persons."
Although not directly relevant to the present case, it is convenient to note that s 10 will not be contravened by a law which qualifies as a "special measure" protective of a minority. Section 8(1) provides: 8 Exceptions (1) This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3).
In fact, no law was identified by the appellant as providing the rights which the appellant asserted he was denied; rather he relied on the differential operation of the clauses of the Regulation with respect to persons of different ethnic origins. Section 10 could have been put to one side on this basis as providing no support for the appellant's case. However, the trial judge was, no doubt, cautious in dismissing a claim by an unrepresented litigant if it were to have an unarticulated basis in law.

[9]

(3) Reasoning of trial judge

In rejecting the appellant's reliance on s 10, the trial judge identified two problems in applying s 10. First, the judge was "not satisfied that the right asserted by the plaintiff is one which falls within s 10(1)." [6] As discussed below, there were problems with the judge's formulation of the right relied on, which incorporated the discriminatory ground, but if there were a right arising under a state law which was limited in its availability on the prohibited ground (race), it would be likely to attract the operation of s 10. Unlike the rights and freedoms covered by s 9 (discussed below), it need not be a right in a field of public life, although that may not be a significant restriction. [7] The purpose of s 10 is to give effect to the mandate in Art 2.1(c) of the Convention to "nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists." It provides a legislated basis for "equality before the law", as the title to the section proclaims. It is not confined to nullifying laws with an apparent discriminatory purpose. [8]
Secondly, the judge reasoned that, "there will be no breach of s 10(1) if a person does not enjoy a human right, or does so to a lesser extent, because of his or her individual personal circumstances. [9] In the present case, the fact that the plaintiff is required to speak English during visits arises from the personal circumstances of his being in custody." [10]
With respect, this reasoning cannot be accepted; nor, to the extent it finds support in Sahak v Minister for Immigration and Multicultural Affairs, [11] on which the judge relied (quite properly, as it was a decision of the Full Court of the Federal Court), should that reasoning be followed.
Sahak involved a challenge to s 478 of the Migration Act 1958 (Cth), which imposed a short, non-extendable period within which an asylum seeker refused a protection visa could obtain review by the Federal Court. Such a law may, in its practical operation, disadvantage non-English speakers in obtaining access to the courts. In rejecting the applicants' claim that they had been denied equal treatment under s 10, Goldberg and Hely JJ stated: "[45] But such discrimination or disadvantage as arose from the practical operation of s 478 of the Act was not racial discrimination in terms of the Convention or s 10 of the RDA. Section 478 of the Act does not deprive persons of one race of a right that is enjoyed by another race, nor does it provide for differential operation, depending upon the race, colour or national or ethnic original of the relevant applicant. For example, persons whose national origin is Afghani or Syrian are able to take advantage of the relevant right if their comprehension of the English language is sufficient, or if they have access to friends or professional interpreters so as to overcome the language barrier. There may be persons of another race whose first language is English, but who are inhibited in their enjoyment of the relevant right by reason of illiteracy or some physical infirmity or other impediment. Any differential effect which the application of s 478 of the Act produces is not based on race, colour, descent or national or ethnic [origin], but rather on the individual personal circumstances of each applicant."
Aspects of this reasoning may be doubted. While it was true that the limitation period did not "provide for differential operation, depending upon the race … of the relevant applicant", the joint reasons went further to consider whether it had a differential effect based on national or ethnic origin; that is, did the language barrier have the practical effect of impairing access to the courts for Afghani and Syrian applicants who therefore did not enjoy equal rights with those who are fluent in English? The joint reasons compared the applicants with persons who were fluent in English but who suffered illiteracy or some physical or other infirmity. That comparison was not apt, the examples not being protected characteristics. It is well-understood that the Racial Discrimination Act covers specific protected characteristics; others may be found in the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) and in State legislation.
The third member of the Court, North J, reasoned differently: "[6] However, it is appropriate that I indicate a strong inclination to the view that s 478 would in those circumstances, as a practical matter, restrict the right of persons such as the appellants to access the right to challenge decisions of the Tribunal to an extent that persons of other national origins do not experience. In particular, to say that any differential impact is suffered not because of national origin, but rather as a result of individual personal circumstances, appears to me to adopt a verbal formula which avoids the real and practical discrimination which flows as a result of the operation of s 478. [7] Although arising in a different statutory context, the point may be illustrated by reference to the landmark decision of the Supreme Court of the United States of America in Griggs v Duke Power Co (1971) 401 US 424. [8] The question in that case was whether an employer's requirement that applicants for employment pass an intelligence test or hold a school diploma was an unlawful employment practice. Such a practice was a practice which deprived the applicant of an employment opportunity or adversely affected their status because of, inter alia, their race or colour. The requirement was shown to operate to disqualify Negroes at a substantially higher rate than white applicants. The reason was that Negroes had historically enjoyed much lower educational opportunities than whites. [9] It was not said that Negroes suffered discrimination by reason of their personal educational standards but rather by reason of race or colour. To approach anti-discrimination provisions in the former way would rob them of much of their intended force. Such a construction runs counter to the aims of such legislation." With respect, this reasoning is to be preferred and is consistent with other authority discussed below.
Similar arguments to those raised in Sahak had earlier been put to the Federal Court in Nguyen v Refugee Review Tribunal. [12] Nguyen was cited in Sahak, but only for the proposition that s 10 may be enlivened where the operation of a particular law is discriminatory although, on its face, it applies equally to all persons. [13] The trial judge in Hamzy, however, also found support in the reasoning of two members of the Court in Nguyen, Tamberlin J and Sundberg J. Tamberlin J stated: [14] "In the present case, the right to 'receive' notice of a decision is not lessened by the fact that the notice is sent in the de facto official language of Australia, namely English. The use of the official language of Australia in official correspondence cannot be said to be discriminatory in form or in effect any more than legislation and judicial decisions which are printed in English, could be said to be discriminatory. The use of English in the present circumstances is both reasonable and appropriate. It would be impractical and inefficient to notify all applicants of the decision in their mother tongue. By the letterhead and the form of the letter, a recipient in the situation of the appellant, upon receipt of the notice of decision, would have been reasonably alerted to the fact that it was an official document which called for translation or the seeking of further information." [15]
The use of an official language in communications from and to government and in the course of the public administration of the law is one matter; the requirement that individuals use the official language in personal communications with each other is quite another matter and will be addressed below. It may be doubted that aspects of the reasoning in Nguyen and Sahak are consistent with the reasoning adopted in Maloney v The Queen [16] by the High Court (discussed below).
The reasoning of the majority judges in Sahak was accepted in Munkara v Bencsevich, [17] a decision of the Northern Territory Court of Appeal involving provisions of the (since repealed) Alcohol Protection Orders Act 2013 (NT). Orders could be made under that Act imposing restraints on access to alcohol where a qualifying offence had been committed. The claimant contended that the law, while facially neutral, operated disproportionately to the disadvantage of Aboriginal people in the Territory, causing them to enjoy certain rights to a more limited extent than persons of other races.
Blokland J (with whom Kelly and Barr JJ agreed) referred to the factual premise of the claimant's argument in the following terms: "[101] Counsel also asserted that 'affectation by alcohol and race are very interrelated concepts when it comes to Aboriginal people in the Northern Territory'. [102] That contention is rejected. It adds nothing to the bare statement of the statistics, i.e. that Aboriginal people form about 27 percent of the population and have received over 90 percent of the alcohol protection orders. It could also be said that 'serious domestic violence and race are interrelated concepts when it comes to Aboriginal people in the Northern Territory' because the statistics are much the same. Put that way, the concept is simplistic and offensive. The appellant's submission ignores the reality of deprivation and disadvantage that are the real matters referred to by the High Court in Bugmy and are well acknowledged to be important factors associated with criminal behaviour and alcohol and substance abuse. Further, it ignores the fact that most Aboriginal people do not abuse alcohol and that many non-Aboriginal people do. … [104] Aboriginal people make up about 30 percent of the population of the Northern Territory yet make up more than 80 percent of the prison population. To take a further example, an Aboriginal person is statistically many times more likely than a non-Aboriginal person to be imprisoned for the offence of causing serious harm contrary to s 181 of the Criminal Code. Yet it could not be sensibly argued that by reason of s 181 of the Criminal Code Aboriginal persons enjoy the right to personal freedom to a more limited extent than persons of another race. The reason is obvious. Section 181 does not limit the right to freedom - it merely prescribes consequences for a person's actions - as did the Alcohol Protection Orders Act."
The operation of the criminal law considered in Munkara differed from the provision considered in Sahak. However, the reasoning, which appears to place a fence around criminal laws of general application, on the basis that any disparate impact on a particular ethnic group does not attract the operation of the Racial Discrimination Act, is not self-evidently correct. Nor is the "reality" of deprivation and disadvantage in Aboriginal communities a separate and independent factor. It provides the basis for many forms of intervention involving differential treatment of Indigenous peoples which fall within the exception for special measures under s 8 of the Racial Discrimination Act, or are not forms of racial discrimination at all because they do not disadvantage affected communities. [18] These programs and arrangements recognise that a characteristic of Aboriginal communities is that they suffer levels of deprivation and disadvantage, partly associated with the destruction of their traditional ways of life and of their association with traditional lands. These characteristics themselves derive from and reflect the ethnic origin of the affected community.
The criminal law is not immune from invalidation under the Racial Discrimination Act. A more principled approach to the disproportionate operation on Aboriginal communities of a provision such as s 181 of the Criminal Code Act 1983 (NT) (causing serious harm) referred to in Munkara, would be to uphold its operation as reasonable and justifiable because it was protective of the same (Aboriginal) communities in which the offences largely occur and thus protective of Aboriginal victims of offending. In other words, the disproportionate operation of aspects of the criminal law may require further analysis, rather than dismissal on the basis that the law "merely prescribes the consequences for a person's actions".
Maloney v The Queen [19] involved an offence under a Queensland law regulating possession of alcohol on Palm Island, an Aboriginal community. The law was not one of general application, but applied to Aboriginal communities. The law was held to be a "special measure" within s 8, and thus avoided contravention of s 10. [20] However, five members of the High Court (Kiefel J dissenting on this issue) held that, had it not been a special measure, it would have offended s 10. [21] Gageler J held that benign discrimination is not unlawful under the Convention or the Racial Discrimination Act. [22] The Court of Appeal had held that while the right to possess liquor in a public place invoked an aspect of the right to own property, that right was not absolute, but was subject to regulation in the public interest, and the impugned provisions imposed restrictions which were reasonable and legitimate to achieve the stated objectives of the legislation. [23] Thus the right to own property had not been infringed. That reasoning was rejected; French CJ stated: "[38] With respect to the Court of Appeal, its analysis in relation to the right to own property should not be accepted. The impugned provisions were directed at an Indigenous community. It is not a sufficient answer to the appellant's complaint about those provisions that she was not deprived of her property and that property rights are frequently qualified by regulation, especially in the case of alcohol. In this case, the impugned provisions had the effect that Indigenous persons who were the Palm Island community, including the appellant, could not enjoy a right of ownership of property, namely alcohol, to the same extent as non-Indigenous people outside that community. The impugned provisions effected an operational discrimination notwithstanding the race-neutral language of s 168B of the Liquor Act, under which the appellant was charged."
Hayne J stated: [24] "[84] It is important to recognise that, even though the impugned provisions take geographical place as the criterion for their operation, they deal with the rights of persons. When it is said, correctly, that the impugned provisions apply equally according only to whether a person is in a restricted area on Palm Island, it remains of the very first importance to the application of the RDA to recognise that the effect of the impugned provisions is on the rights of those who live on Palm Island (and any other person who is visiting Palm Island). Those who live on Palm Island are overwhelmingly Aboriginal persons. The extent to which the residents of Palm Island enjoy the right to own property differs from the extent to which persons resident elsewhere in Queensland enjoy that right, and argument in this Court proceeded on the implicit footing that those who are resident elsewhere are predominantly non-Aboriginal persons. Unless s 8(1) of the RDA applies, s 10 is engaged. [85] This conclusion neither proceeds from the premise nor entails the conclusion that the appellant has a universal right to possess or consume liquor. The appellant rightly disclaimed any right of that kind. Section 10 does not entail that those affected by the impugned provisions, who are predominantly Aboriginal persons, have any absolute right to possess or consume liquor. Rather, unless s 8(1) applies, those Aboriginal persons are entitled to enjoy the right to possess or consume liquor to the same extent as non-Aboriginal persons."
Bell J resisted importing a 'reasonable and legitimate purpose test' as a defence to reliance on s 10: "[214] Nothing in the text of s 10 interpreted in its statutory context warrants reading the provision as engaged only by a law that limits the enjoyment of rights for a purpose that is not 'legitimate' or in a manner that is disproportionate to the achievement of a 'legitimate' purpose. Section 8(1) is the means by which laws may validly provide for the differential enjoyment of Convention rights based on race in order to secure substantive equality."
Gageler J dealt with the concept of unequal enjoyment of a right as justifiable by treating holistically the concepts of equality in s 10 and special measures under s 8 in order to give effect to the statutory intention to implement the Convention. Gageler J concluded: "[346] The critical point for present purposes is that consistency with the principles and objective of the Convention limits those legislative aims that can be regarded as legitimate and limits those legislative criteria that can be regarded as proportionate. In particular, the range of legitimate aims and the range of proportionate criteria are limited by the integration of the concept of special measures within the broader concept of equality in the enjoyment of human rights. [347] Within the scheme of the Convention, a measure that operates in fact to result in persons of one race enjoying a human right to a more limited extent than persons of another race may be justified as adopting proportionate criteria in pursuit of an aim of redressing some other imbalance in the enjoyment of human rights by persons of a particular race. But such a measure can only be so justified if it meets the requirements of a special measure as expressed in Arts 1(4) and 2(2) of the Convention. If justified as a special measure, it is not discrimination within the meaning of the Convention. If not justified as a special measure, it is discrimination and a denial of equal protection. [348] Within the scheme of Pt II of the RDA, a law that operates directly in fact to result in persons of one race enjoying a human right to a more limited extent than persons of another race, and that meets the requirements of a special measure, is excluded from the application of s 10 by s 8 of the RDA. The application of s 10 to a law that operates directly in fact to result in persons of one race enjoying a human right to a more limited extent than persons of another race, but that does not meet the requirements of a special measure, cannot be avoided by showing that the criteria the law adopts are nevertheless proportionate or reasonably necessary to the pursuit of a legitimate aim where the substance of the aim is redressing some other imbalance in the enjoyment of human rights by persons of a particular race. Otherwise, the carefully tailored regime for permissible special measures would be undermined. Unless it is a special measure excluded by s 8, the law is one to which s 10 applies."
The approach of Gageler J has much in common with the reasoning of Professor Sadurski that beneficial or protective laws are not discriminatory within the Convention. However, this reasoning leaves unresolved the proper approach to laws which may have a legitimate purpose (such as national security or public order), but have a discriminatory effect. Arguably, this was the preferable way to consider the appellant's case, but it was not addressed in this way at trial, or in this Court.
To attribute the effects of the clauses of the Regulation impugned by the appellant to "the personal circumstances of his being in custody", would be analogous to dismissing Ms Maloney's claim on the basis that the adverse operation of the law was attributable to her residing on Palm Island. Such an approach cannot be sustained. Even if the judge's reason were an elliptical reference to the restrictions being justified by the circumstances of the appellant's incarceration, that would involve a rejection of the core of the reasoning as to justification adopted in Maloney.
Further, if that basis of the judge's reasoning as to the non-engagement of s 10 were applied, it would seem that any racially discriminatory treatment of prisoners would be beyond the protection of s 10. But that would contradict the uniform approach of international bodies to such cases. This Court was taken to three decisions of the European Court of Human Rights dealing with complaints by prisoners. The first, Baybaşin v The Netherlands, [25] involved a Turkish national challenging the circumstances of his incarceration. One aspect involved a complaint that he was not allowed to communicate with close relatives in Kurmancî (a Kurdish dialect), which was said to involve an unjustified interference with his right to respect for his family and private life under Art 8 of the European Convention on Human Rights ("European Convention"). [26] Article 8 was subject to a requirement that a public authority not interfere with the right to respect for private and family life "except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." The case bears a close relationship to the facts of the present case in that the prisoner was held in a high security establishment (EBI).
The European Court noted that: [27] "Candidates for placement in the EBI include: prisoners who have escaped or attempted to escape through violent means; those who have displayed violence against prison staff; organised crime leaders, whose organisations have the means to help them to abscond; and prisoners whose escape would cause a major public outcry." After noting that incarceration "by its nature entails limitations on a detainee's private and family life", the Court continued: [28] "The Court notes that this prohibition [on use of Kurmancî] was based on the [1999] Prison Act and the EBI house rules, the latter providing that, in contacts with the outside world, detainees in the EBI can only use a limited number of languages, ie Dutch, English, French, German, Spanish, Italian, Turkish or Moroccan. The Court considers that the prohibition was thus 'in accordance with the law'. It further has found no reason to doubt that the prohibition was aimed at the prevention of disorder or crime and was therefore in pursuit of a legitimate aim under Article 8(2). As to the question whether the prohibition was necessary in a democratic society, the Court notes that, under the EBI detention regime, detainees are allowed, within certain constraints, contacts with the outside world but that - with the exception of privileged contacts - all correspondence and telephone calls are screened for security reasons, and that, in order to enable an adequate supervision of such contacts, detainees are only allowed to use a limited number of specifically designated languages, including Turkish. The Court further notes that the security measures in the EBI are designed to prevent escapes and that the screening of detainees' contacts with the outside world is aimed at ensuring that detainees do not obtain or exchange information relating to any escape attempt…. Further noting the reasons given by the Appeals Board in its decision of 22 January 2004 for rejecting the applicant's complaint about being prohibited to use Kurmancî in his contacts with his relatives, and considering that it has not been established that it would be impossible for the applicant to use Turkish or any other permitted language in his contacts with his family, the Court cannot find that an unreasonable balance was struck between the applicant's right to respect for his family life and correspondence and the authorities' interest in maintaining the strict EBI security rules." The complaint was rejected.
A second case, Nusret Kaya v Turkey, [29] considered a complaint that the Republic of Turkey prevented prisoners using the Kurdish language in their telephone conversations. A third case, Mehmet Nuri Ӧzen v Turkey, [30] involved a prohibition on the use of Kurdish in written correspondence by prisoners to their families. These cases are less apposite as they concerned rules applying to the prison population at large and were not sought to be justified as relating to high risk security concerns. Further, as with Baybaşin, they involved the right to respect for family and private life and were not directly concerned with a linguistic freedom. However, in each case a claim of a violation of Art 8 was upheld. Their reasoning mirrors that in Baybaşin. This reasoning is, arguably, available in considering the operation of s 10, which is not restricted to specific rights, but, as has been noted, was not raised in the present case.
The trial judge's central reason for rejecting the engagement of s 10 lay in his identification of the right in question. That issue may now be further addressed in the context in which it was determined, namely the operation of s 9.

[10]

The statutory scheme

As the appellant contended, s 9, in contrast to s 10, in combination with s 109 of the Constitution, can operate to invalidate an inconsistent State law. The analysis of this element of the appellant's claims should commence with the language of s 9, which relevantly provides: 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. … (4) The succeeding provisions of this Part do not limit the generality of this section.
The focus of the argument, both in this Court and in the Court below, was upon s 9(1) and (2). However, to understand the structure and operation of the Act it is necessary to have regard also to s 9(1A) and (4). Section 9(1) refers to an act which has "the purpose or effect" of impairing the exercise of a human right. The phrase "purpose or effect" encompasses both disparate treatment (sometimes described as direct discrimination) and disparate impact (sometimes described as indirect discrimination). A clear example of a statutory formulation designed to address disparate impact discrimination is to be found in s 9(1A). The separate statement in subs (1A) raises an issue as to the scope of subs (1). If, as suggested below, the appellant's case was in truth one of disparate impact discrimination, the relationship between these two subsections is important. It was not addressed in the course of argument.
The impugned act involved the imposition of a requirement that prisoners' communications with all visitors must be in English. While the prohibited ground is not narrowly defined ("race, colour, descent or national or ethnic origin"), it does not expressly advert to language. [31] Language could be treated as "a characteristic that appertains generally to persons of that race", as provided by s 7(2) in the definition of discrimination on the ground of race in the Anti-Discrimination Act 1977 (NSW), but such language does not appear in s 9. Perhaps because of the limitations on the protection granted by s 9(1A) (for example, the requirement must be "not reasonable having regard to the circumstances of the case"), it was not pursued by the appellant. The question remains how, if at all, a requirement to speak English may fall within s 9(1).
The insertion of subs (1A) in s 9, without amendment to s 9(1), requires careful attention. The reference in s 9(1) to an act based on race which has "the purpose or effect" of nullifying or impairing the enjoyment of a human right is readily understood as covering both disparate treatment (purpose) and disparate effect. In 1971 the US Supreme Court held in Griggs v Duke Power Co [32] that "practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." Similarly, the imposition of a criterion which operated as an artificial, arbitrary and unnecessary barrier to employment was equally impermissible under Title VII of the Civil Rights Act 1964 (US). In Griggs, an employment case, the Supreme Court held: [33] "The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited."
The effect of s 9(1A) is to impose a test of reasonableness on a condition or requirement which may be neutral on its face. (The inclusion in par (c) of a requirement that has "the purpose … of nullifying or impairing" suggests a complete overlapping of subss (1) and (1A), which may not have been intended.) The test of business necessity referred to in Griggs, which may be applicable under subs (1), is generalised, and perhaps weakened, by the test of "not reasonable" in subs (1A). Further, the introduction of subs (1A) tended to obscure a third possibility, namely that a purportedly neutral ground for taking particular action may mask an intention based on race.
Part II of the Racial Discrimination Act, in addition to ss 9 and 10, includes a number of provisions identifying particular areas of activity within which racial discrimination is prohibited. These include access to places and facilities (s 11), interests in land and places of accommodation (s 12), the provision of goods and services (s 13), the right to join trade unions (s 14) and employment (s 15). Relevantly for present purposes, s 13 renders it unlawful for a person to supply services to any section of the public on terms which are less favourable than those on which it supplies those services to other persons by reason of the race of the other person or "of any relative or associate of that other person." It may have been arguable that, in providing prisoners with space and time within which they could receive visits, and in providing telephone facilities for communicating with lawyers and friends and relatives, the Commissioner was providing a service within the terms of s 13. Again, arguably, the English-speaking requirement had the effect of providing such services on terms which were less favourable for those who, by reason of their ethnic origins, were less able to comply with the requirement than persons who were native English speakers. However, no reliance was placed on s 13 and, as the effect of s 13 is not to limit the generality of s 9, although it may expand the operation of the legislation beyond the coverage given by s 9, it is not necessary to consider the operation of s 13 further. Certainly there is no reason to limit the operation of s 9 by reference to s 13.
As has been noted in the cases, the application of s 9(1) requires attention to its several elements. [34] These may be identified, relevantly for this case, as follows: 1. the doing of an act; 2. the act: 1. being intended to restrict, or 2. having the effect of restricting, the claimant's enjoyment of a human right or fundamental freedom; 1. the restriction being selective and based on "race", in the sense of national or ethnic origin; and 2. the human right or fundamental freedom being of a kind covered by the Convention.
It is unnecessary, and may be confusing, to address these elements in the order set out above, which is indeed not the order in which they appear in s 9 itself. It may even be thought inappropriate to formulate issues in this way. As Mortimer J explained in Wotton v Queensland (No 5): [35] "[530] It is critical, as Allsop J observed in Baird v Queensland, [36] that provisions such as s 9(1) not be dissected into small pieces so that their intended holistic operation and meaning are lost. To describe s 9(1) in terms of a series of 'elements', as the respondents' submissions do, is to take a step along the path to dissection. Nevertheless, s 9(1) can be seen as having a conduct-based limb and an outcome-based limb. First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or the effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if 'effect' is the focus; or on what was intended, in a purposive sense, to be the outcome, if 'purpose' is the focus."
There is, nevertheless, a helpful discipline in understanding the different elements to be addressed. In the present case, there was no dispute that the restriction was imposed under the Regulation, and it appears to have been common ground that the promulgation of the Regulation constituted an "act" for the purposes of s 9(1). However, the preferable analysis may be that the State Regulation cannot authorise the doing of any act to enforce a restriction which is unlawful under a Commonwealth law. [37] The nature of the restriction was not in doubt.
This dissection invites the observation made by Allsop J (Spender and Edmonds JJ agreeing) in Baird v Queensland: [38] "[37] … The pleading can be seen to conflate two separate elements of s 9: (i) the act must involve a distinction; and (ii) that act involving the distinction must be based on race. … [I]n fairness to the pleader, one must be careful to recognise that s 9(1) is one whole section and not a sum of finite elements. The provision is to be interpreted in a holistic way rather than by reference to disembodied individual elements." There is undoubtedly a degree of artificiality in treating separately the concept of "race", the scope of the connecting factor "based on", and the nature of the "right"; nevertheless, there is merit in addressing each on a preliminary basis.
The concept of race is important, because the restriction concerns use of language, and there is no express reference to "language" in Art 2 of the Convention. However, the Convention was in fact preceded by the European Convention, Art 14 of which expressly included a reference to "language": ARTICLE 14 Prohibition of discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
The Convention, limited to "racial discrimination", identified distinctions based on "race, colour, descent, or national or ethnic origin", omitting other possibly related terms, including "language", but adding "descent". However, the concept of racial discrimination is not marked by clear boundaries, nor specific criteria. The term "race" itself is notoriously imprecise. Both the Convention and the Racial Discrimination Act refer to national or ethnic origin. In the leading Australian text on discrimination law, Rees, Rice and Allen, state: [39] "The term 'ethnic origin' has been held to have a social rather than biological meaning. The case law indicates that, in order for a collection of people to qualify as an 'ethnic group' for the purposes of the term 'ethnic origin', the members of the group must have a distinct social identity, both in their own eyes and in the eyes of others in the community, which is derived from that group and has a number of shared longstanding characteristics, such as customs, beliefs and traditions, drawn from a common history. It appears that there need not be any shared religious affiliation even though most groups which have been found to constitute an 'ethnic group' have been people with a common religion, or at least a common religious heritage."
This statement may be supported by reference to two cases, the first being the decision of the New Zealand Court of Appeal in King-Ansell v Police. [40] Mr King-Ansell was the leader of the National Socialist Party of New Zealand and was responsible for publishing inflammatory anti-Semitic propaganda. He was convicted of using words likely to excite hostility or ill-will against a group of persons on the ground of "the colour, race, or ethnic or national origins of that group of persons." [41] On the appeal, noting "the depth of Jewish history and the unbroken adherence of Jews to culture, traditions and a mutually intelligible language, as well as religion", Woodhouse J stated: [42] "It happens that some evidence was given in the present case by a Dr MacPherson who spoke as a sociologist concerning the modern connotations of the word 'ethnic'. However, he also has qualifications in the field of anthropology and influenced perhaps by that second training, he began by discussing difficulties that had arisen in scientific circles by reason of the several meanings of the primary word 'race'. He said that to avoid confusion it had been thought necessary 'to tie it to some scientific referent which happens to be genetics'. … He went on: 'A scientific referent for race is the most satisfactory because it gets beyond the problem of common usage and the confusion which arises from that. No doubt all this is very true but I think myself that the evidence may have tended to divert attention from the true issue in the case. The issue, of course, is not the meaning which very wisely may have been given to the concept of race for purposes of comprehensible scientific discussion but what meaning the word is intended to convey in the statute. In that regard it will be noticed that Dr MacPherson himself has recognised that the word has a 'common usage', as he expressed it. And that common usage has for long enabled constant reference to be made to biologically different people as a single race. For example, it is a natural use of the word to speak of the English race or the Slavs as a race or of Germans. It is a meaning which is concerned, not with genetic processes, but with share characteristics of a socio-political nature such as customs, philosophy and thought, history, traditions, nationality, language or residence without any reference to biological considerations. And when the purpose and language of the Race Relations Act is considered as a whole I am satisfied that is the way in which the term is intended to be used."
Richardson J, referring to and adopting a dictionary meaning of "ethnic" as "of or relating to a particular population having a common language or common racial or cultural origins", [43] concluded: [44] "Those shared historical bonds to which he referred are sufficient to constitute national origins. In the same way a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group."
The second case concerned the identification of Sikhs as a "racial group" for the purposes of the Race Relations Act 1976 (UK). Section 3(1) of that Act defined "racial group" as a group defined by reference to "colour, race, nationality or ethnic or national origins". In Mandla v Dowell Lee, [45] accepting that Sikhs were a racial group for the purposes of the Act, Lord Fraser of Tullybelton stated: [46] "For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups." Lord Fraser expressly approved the approach of the New Zealand Court of Appeal in King-Ansell. [47]
Findings to similar effect have been made in both the Federal Court and this Court. Hely J approved the reasoning in King-Ansell and Mandla in Jones v Scully, [48] as did the Full Court of the Federal Court in Miller v Wertheim. [49] This Court accepted that Jews constitute a "race" for the purposes of the definition in the Anti-Discrimination Act 1977 (NSW), based upon the phrase "ethnic origins", in Azriel v NSW Land and Housing Corporation. [50]
Given the inclusion of the phrase "ethnic origin" in s 9(1) of the Racial Discrimination Act, and given the agreed fact that the appellant identifies as being "Arab in ethnic origin" and that he and his immediate family are Arabic speakers, a State law which precludes them speaking Arabic amongst themselves involves a restriction based on ethnic origin and thus satisfies the first limb of s 9(1) of the Racial Discrimination Act.
The next question is whether the imposition of the restriction had either the purpose, or the effect, of impairing the enjoyment of a human right or fundamental freedom. In answering the first limb of that question (distinguishing purpose or effect), it is necessary to confront the separate criteria identified in s 9(1) and s 9(1A).
Despite the repetition of the phrase "purpose or effect" in par (c) of subs (1A), the subsection is clearly directed to an act involving the imposition of a "term, condition or requirement", as opposed to an act which directly excludes or restricts persons of a particular race (including a particular ethnic origin). The purposive element (disparate treatment) is not apparent in the present case. Many persons of diverse ethnic groups, including many of Arabic ethnicity, are able to comply with the language requirement and are unaffected by it. However, some persons are unable to comply. The circumstances are thus similar to those which arose in Mandla v Dowell Lee, where the school authority did not exclude Sikhs, but did require that boys should cut their hair short and not wear turbans. Some Sikhs might be willing to comply with the rule, but the parents of the boy concerned would not comply. The case therefore turned upon whether the school authority could justify the rule: the House of Lords concluded that it had failed to do so. Analogously, in the present case, the clauses of the Regulation which require use of English in communication involve the imposition of a requirement for the purposes of s 9(1A). It may be accepted that, in so far as the Regulation applies to the appellant in his communications with members of his immediate family, he either does not or cannot comply fully with the terms of the requirement. His communications are to that extent impaired. However, the requirement will only contravene the prohibition in s 9(1A) if it is "not reasonable having regard to the circumstances of the case", within the terms of par (a).
As the case was run at trial, no reliance was placed by either party on s 9(1A). There was no consideration as to whether the English language condition was "not reasonable", nor, indeed, as to which party bore the onus of proof in that regard. No reliance was placed on the operation of subs (1A) on the appeal. The question of reasonableness would depend in part on the evidence as to the operation of the Regulation. Each of the clauses under challenge involved a prohibition subject to a power in the Commissioner either to authorise the use of a particular language or to waive the operation of the clause in particular circumstances. The operation of these exceptions might have an important bearing on the reasonableness of the requirements as set out in the impugned clauses. Similarly, the fact that, at least in relation to communication with members of his family, the purpose of the language requirement was to allow the authorities to monitor communications, it would be necessary to consider the reasonableness of that requirement in the context of a person deemed to be an extreme high risk restricted inmate. Again the issue was not agitated either at trial or on the appeal. Accordingly, the question of compliance with subs (1A) cannot be resolved.

[11]

"based on race"

The judge identified the phrase "based on" as involving a constructional choice which he did not need to make, stating: "[163] 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. [51] 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. [52] On that basis, the relevant enquiry is whether the relevant distinction is a material factor in performing the relevant act. [53] [164] 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."
As an illustration of a different approach, the claimants in Baird were Indigenous workers employed by the Lutheran Church on two reserves in Queensland who were paid below-award wages. Allsop J noted that the evidence disclosed "that until 1979 the Government thought that the Aborigines Regulations authorised the employment of Aboriginals on reserves at rates different from wage rates established by an industrial award." [54] He continued: "[72] With respect, I do not think that the conclusion that 'any discrimination against the [appellants] was based on the fact that they resided on the missions rather than, on their race', as found in [141], can be sustained. The primary judge said that the argument in answer to that contention, namely that those living and working on the missions were, almost inevitably, indigenous, had not been pleaded. Consequently, his Honour did not consider it. I do not think that this proposition was a material fact required to be pleaded. It was a factual circumstance relevant to what had been exposed for trial: that the calculation and payment of the grants involved a distinction based on race. Reading the evidence, in particular the Cabinet submission and documents, there seems to have been no issue about the missions and reserves being only for indigenous Australians. There was no suggestion that the missions were for non-indigenous Australians. Indeed, that was one premise of the primary judge's conclusion that there was no comparator. The history of the missions described by the primary judge at [15] to [30] confirms these matters."
In Macedonian Teachers' Association, [55] Weinberg J considered in detail the construction of s 9(1) and the authorities dealing with it. The issue in the case was whether the respondent Commission had correctly applied s 9(1) in considering a challenge by a State Premier to government departments and agencies as to how they should refer to the language spoken by people living in the former Yugoslav Republic of Macedonia. Weinberg J concluded: [56] "The material before the Commission suggested that the Premier's directive had produced a 'distinction' in the treatment accorded to a particular ethnic group. All other ethnic groups were entitled to have their language described by Government Departments and agencies by its linguistically accepted and standard name. This ethnic group was not so entitled. Section 9(1), upon its proper construction, entitles individuals or groups not to be singled out for identification by Government Departments or agencies by reference to their descent or ethnic origin, at least where other individuals or groups are not so treated. The Commissioner's finding that the directive was 'based on a desire to preserve peace and harmony' may well have been unexceptionable. For present purposes I am prepared to assume that it was correct. However, that finding is irrelevant if it be established that the distinction imposed by the directive in the treatment of the Macedonian language was 'based on', (in the sense of made 'by reference to') the ethnic origin or descent of those who spoke that language. … It is not correct, in my view, to say that in assessing the 'true basis' of the distinction brought about by the directive it is relevant to consider the second respondent's purpose in having issued it. That simply draws the assessment back to motive. It is an approach which conflicts with the views expressed by Mason CJ and Gaudron J in Waters; [57] by Kirby J in IW v City of Perth; [58] by Deane, Gaudron and Dawson JJ in Banovic, [59] and by Sackville J in Australian Medical Council v Wilson. [60] "
In Wotton v Queensland (No 5), Mortimer J stated that it was "well-established that the phrase 'based on race' in s 9 does not imply any causal requirement but connotes that the act involving the distinction, exclusion, restriction or preference be done or undertaken by reference to race". [61] She relied on the reasoning of Weinberg J in Macedonian Teachers' Association, which had been approved by the Full Court of the Federal Court on appeal. [62] Although the trial judge implied that Griffiths J in Maiocchi v Royal Australian and New Zealand College of Psychiatrists (No 4) [63] had taken a different view, requiring "a causal relationship", the better view is that the reasoning in Maiocchi adheres closely to the reasoning of Weinberg J in Macedonian Teachers' Association and of Doyle CJ in the earlier decision of ALRM v South Australia. In the latter case Doyle CJ stated at 553: "In my opinion s 9 is not attracted unless an act (the relevant act being the appointment of the Royal Commissioner) is done which in fact produces a distinction on the [basis] of race (which has occurred here because the inquiry is into and affects Aboriginal beliefs only) and the existence of that racial distinction is the basis of the relevant act in the sense that the act occurred by reason of or by reference to the racial distinction. This does not mean that the inquiry is one as to motive. The inquiry is into whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act."
In describing the obligation to speak English as arising from the "personal circumstances of his being in custody", [64] the judge was doing no more than describing the area of operation of the restriction on communication. (Indeed, it depended not only on his being in custody, but having a specific classification.) The necessary and sufficient connection between the restriction and race (ethnic origin) in the case of a disparate impact is the fact that it adversely affects persons of one ethnic group disproportionately. That is the fundamental criterion of disparate impact discrimination, founded on "effect", not purpose. The effect may operate distributively across more than one ethnic group. [65]

[12]

"human right or fundamental freedom"

In the present case, the trial judge turned immediately to formulating the human right or fundamental freedom relied upon by the appellant. That exercise is fraught, in part because s 9(2) merely includes rights of a kind referred to in Art 5 of the Convention. Article 5 contains a list of rights and freedoms, under categories, but of diverse kinds and by reference to the fundamental obligations of States Parties: Article 5 In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit 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 State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution; (c) Political rights, in particular the right 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.
The trial judge understood the right identified by the appellant as a right to freedom of opinion and expression identified in Art 5(d)(viii) of the Convention. [66] The question was said to be "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)." [67] The judge then purported to answer that question by relying on the reasoning of the Full Court of the Federal Court in Iliafi [68] which, as will be noted below, was factually distinguishable from the present case.
With respect, the formulation of the question in those terms elided the right and the absence of the impugned restriction or constraint. Freedom of expression is not necessarily unqualified, nor a matter of unrestricted personal choice. Nor does it appear that the appellant adopted such an approach.
There is a further problem with turning immediately to the formulation of the relevant right or freedom. As the language of s 9(2) recognises, Art 5 specifies kinds of rights or freedoms; it does not define them. The rights and freedoms ultimately derive from other international sources, including the Universal Declaration of Human Rights. [69] Accordingly, they are not necessarily rights protected under domestic law. [70]
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) makes express provision for constraints on freedom of speech in the following terms: Article 19 … 2 Everyone shall have the right to freedom of expression: this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for respect of the rights or reputation of others; (b) for the protection of national security or of public order (ordre public), or of public health or morals.
Joseph and Castan have observed: [71] "Freedom of expression permits people to impart and receive ideas and information. It is a most important right for ensuring individual self-fulfilment, as well as a pluralistic, tolerant society with access to multitudes of ideas and philosophies. However, in Article 19(3), it is expressly recognised that the right of free expression can be abused so as to undermine the rights of others: 'exercise of the right … carries with it special duties and responsibilities'. Article 19 rights may accordingly be restricted for a number of reasons. Indeed the ICCPR provides for a compulsory restriction on a certain type of expression, namely hate speech, in Article 20."
There is, thus, no recognised right of freedom of expression, without qualification or constraint. The right is therefore not helpfully identified in absolute terms.
The trial judge concluded with the following statements, by reference to authorities which had been considered in the preceding paragraphs: "[152] The decision of Kenny J in Iliafi is authority for the proposition that the right to freedom of expression does not guarantee a right to use the language of one's choice in all circumstances. The common thread to be drawn from the decisions in Ballantyne, Fryske and Guesdon is that in determining whether there are circumstances which do guarantee that right, an important distinction is to be drawn between communications made in a public context and those made in a private context. If the communication falls into the former category, there is no right to use the language of one's choice. It may be otherwise if the communication falls into the latter category. [153] In my view, the application of these principles to the plaintiff's case leads to a conclusion that the right to freedom of opinion and expression does not encompass the right that the plaintiff asserts, namely the right to speak and/or express himself in Arabic in all circumstances, including the circumstance of his being an inmate in a correctional centre. As was the case with the Court in Guesdon, a correctional centre is a public facility operated by the State, a circumstance which can be contrasted with the private contexts considered in Ballantyne and Fryske."
Both this reasoning and the reliance on authority raise difficult questions of some importance. Fryske Nasjonale Partij v Netherlands and Guesdon v France [72] involved the right of a government to determine the language of public administration, including, in the case of Guesdon, the language to be used in a French court. These cases have little to say about the circumstances of the present case. Similarly, the reference to expressing himself in Arabic "in all circumstances" did not aptly identify the issue in the present matter.
By contrast, Ballantyne v Canada, [73] as the judge recognised, involved an attempt by the government of Quebec to impose language constraints on the use of an official language in the private sphere of commerce. Nevertheless, to identify a right to speak in "the language of one's choice" may be apt to describe the situation in some cases, but omits the important element of why language is relevant. In the present case, the ground was that of a distinction based on national or ethnic origins, language being an element in defining such origins.
Care must be taken in adopting reasoning from other cases dealing with different terminology in differing contexts. For example, most of the cases dealing with difficulties arising from language involve the specification (or, in Australia, the assumption) by government that the administration of the country will be conducted only in a particular language. The effect of such a determination (or practice) is that persons for whom that language is not their first language, or who lack a sufficient degree of fluency in that language, will be disadvantaged. Further, such disadvantage will disproportionately affect persons with foreign national or ethnic origins, and persons who are from minority communities within the country. In parts of Australia, English is not the first language of Indigenous people, nor indeed one in which they are fluent although they may be multi-lingual. To be compliant with the ICCPR, such a practice must be justified under Art 19(3). [74]
There is no doubt that language is a function of race, or national or ethnic origin, as described in the Racial Discrimination Act. The legal response, both under international conventions and under domestic law, is not to deny the unequal treatment based on race, or national or ethnic origin, but to accept that the adoption of a single language of public administration is reasonable and justifiable, so long as any disadvantage is ameliorated, for example by the provision of interpreters, as occurs daily in the courts and other arms of governments, state and federal.
This underlying principle was illustrated by Guesdon v France. The applicant objected to the use of French as the sole language of public administration in Brittany. He was charged with defacing French language signs. He carried his political campaign to the courts, insisting that he should be allowed to address the court in Breton and that his witnesses be allowed to give their evidence in Breton. This was truly a case of seeking to use the language of choice (for political advantage). The applicant was fluent in French and, as the French government emphasised in its defence, had he not been, he would have been provided with an interpreter. The claim under the European Convention was dismissed.
The case of Ballantyne v Canada, also referred to by the trial judge, involved a complaint by the English-speaking owners of a business in Quebec that they were prohibited by law from advertising in English. The Committee concluded that "commercial activity such as outdoor advertising" falls within the scope of Art 19. The proposed justification was the protection of the Francophone residents of Quebec who were said to be in a vulnerable position in Canada. The Committee held: [75] "This protection may be achieved in other ways that do not preclude the freedom of expression, in a language of their choice, of those engaged in such fields as trade. For example, the law could have required that advertising be in both French and English. A State may choose one or more official languages, but it may not exclude, outside the spheres of public life, the freedom to express oneself in a language of one's choice."
Thirdly, the trial judge referred to Fryske. The case was a brief statement of conclusions by the European Human Rights Commission (not the Court) on a complaint by persons of Frisian ethnicity that their candidates had not been able to stand in elections because their names had not been provided in Dutch, and an appeal to the Electoral Registration Council had been refused because they declined to submit a translation of the appeal into Dutch. The complaint (relevantly) invoked the freedom of expression under Art 10 of the European Convention. The Commission stated that the article did not guarantee "linguistic freedom" and in particular did not "guarantee the right to use the language of one's choice in administrative matters". (Article 14 of the European Convention, which precludes discrimination on the basis of "language" was not invoked.)
Finally, it is convenient to note the reasoning in Iliafi, upon which the trial judge placed some reliance. Iliafi involved a challenge to a decision of the Church to discontinue operations in specific areas which were known as "Samoan-speaking wards". As explained by Kenny J, "the appellants were no longer allowed to use any language other than English in public worship and, in consequence, the appellants could no longer use the Samoan language publicly to pray, sing or testify in services of public worship conducted by the Church." [76]
The case was argued as turning on whether there was a human right or fundamental freedom "to publicly worship as a group in a native language". [77] To frame the question in that way was to answer the third of the three issues identified by Kenny J at [44], without considering the second issue, namely whether the decision of the Church was an act based on race and particularly ethnic origin. As Kenny J noted, in considering the right to freedom of expression, and by reference to Art 19(3) of the ICCPR, freedom of expression may be limited by measures "provided by law, and proportionately designed to protect (a) the rights or reputations of others, and/or (b) national security, public order (ordre public), public health, or morals". [78] As the proceeding was brought against the Church, and not the State, it is not clear how that provision was engaged.
Further, in noting that Art 27 of the ICCPR protected the rights of minorities to use their native language "among themselves" [79] , the Court found that "there was no impairment of this right, since the appellants were free to use their native language amongst themselves; the ban was on them using their native language to worship in community with Samoan and non-Samoan speaking persons": at [96]. The importance of the reasoning of the Full Court in Iliafi lies in its recognition that the rights identified in Art 5 of the Convention were neither an exhaustive list nor the creation of the Convention. [80] Rather, as the United Nations Committee on the Elimination of Racial Discrimination has stated, "[m]ost of these rights have been elaborated in the International Covenants on Human Rights". [81] Those Covenants, the Full Court recognised, included the ICCPR to which it was appropriate to turn to understand the scope and operation of the rights under the Convention. To the extent that the appellant relied upon the right to freedom of expression, the limits on that freedom have already been addressed. Otherwise, the reasoning in Iliafi was beside the point for present purposes. The conclusion reached in Iliafi was expressed in the following terms: "[81] It may be accepted that Art 18 of the ICCPR elaborates on Art 5(d)(vii) of CERD, but it does not follow from this that the appellants establish a right to worship publicly as a group in their native language contrary to the decisions made by the respondent Church. The contemporary jurisprudence on the right to freedom of religion would deny the existence of such a right as that claimed. According to this jurisprudence, the fact that the appellants disagreed with the decisions to discontinue the Samoan-speaking wards and to ban the use of the Samoan language in public worship did not mean that their right to freedom of religion was impaired. Rather, the appellants' right to freedom of religion was preserved by their ability to leave the Church."
The claimants in Iliafi did not rely upon the limits to freedom of expression identified in Art 19 of the ICCPR. [82]
There is a significant disparity between the right of the State to control the use of minority languages by persons in custody having committed serious criminal offences and the powers of a church to determine in what language its ceremonies will be conducted. Both may be subject to scrutiny for compliance with the Racial Discrimination Act; the substance of that scrutiny is likely to depend on the manner in which the particular case was presented and the quite different circumstances involved. The reasoning in Iliafi did not directly indicate the proper outcome in the present case for reasons which have been identified.

[13]

Conclusions

Given the manner in which the case was run at trial, the judge was correct to dismiss the second 2016 summons. Unlike Art 14 of the European Convention, the definition of "race" in the Convention, given domestic effect by the Racial Discrimination Act, does not expressly refer to "language". While a distinguishing characteristic of a particular "national or ethnic origin" may include use of a specific language, it is not a necessary or invariable element. An act imposing a constraint on the use of some or all languages, other than a nominated official language, will adversely impact on some groups in a multicultural society. It may be an act which engages the operation of s 9 or s 10 of the Racial Discrimination Act because its adverse effects have a disproportionate impact on particular national or ethnic groups.
Whether such an act is unlawful discrimination will depend on whether it has a legitimate purpose which is pursued by means which are not unreasonable, in the sense that the mechanism, despite its disparate impact on certain ethnic groups, is proportionate to the legitimate purpose. Where the restriction is imposed by the state, its effects will usually be ameliorated by the provision of translations, an interpreter service, or a mechanism for permitting exceptions.
It follows that the lawfulness of the provisions of the Regulation challenged in the present case cannot be determined. However, it should be noted that the clauses in question each contained provision for administrative relaxation and the legitimacy of their apparent purpose was not challenged.
LEEMING JA: This appeal raises three broad issues concerning conditions to which prisoners designated "extreme high risk restricted inmates" (EHRR inmates) under the Crimes (Administration of Sentences) Regulation 2014 (NSW) (CAS Regulation) are subject. 1. Does cl 94 of the CAS Regulation which empowers the Commissioner to refuse to permit visits to an EHRR inmate "on the basis of a criminal record check or for any other reason" apply to visits by lawyers, and if so is it invalid? 2. Is the "drop-in policy", which involves the monitoring of telephone calls made by EHRR inmates, unlawful in its application to telephone calls between EHRR inmates and their lawyers? 3. Are cll 101, 116 and 119(6) of the CAS Regulation, which require most communications by EHRR inmates to be in English, inconsistent with ss 9(1) or 10(1) of the Racial Discrimination Act 1975 (Cth) and for that reason invalid?
It will be convenient to consider the first two issues together, notwithstanding that the former is found in cl 94 of the CAS Regulation while the latter is merely a practice. Both focus upon the relations between EHRR inmates and their lawyers insofar as there is a curtailment of inmates' rights to choose their own lawyer, and to enjoy privileged communications with their chosen lawyer. In contrast, the third issue is more general. It is a challenge to the regulations which mandate English communication between inmates and lawyers and non-lawyers alike in visits, correspondence and telephone conversations.

[14]

Factual background and procedural matters

The appellant, Mr Bassam Hamzy, is serving a sentence of full-time imprisonment in the High Risk Management Correctional Centre in Goulburn. Clause 15 of the CAS Regulation authorises the first respondent, the Commissioner of Corrective Services, to designate an inmate as an EHRR inmate if, and only if, of the opinion that the inmate constitutes an extreme danger to other people or an extreme threat to good order and security, and 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. The first respondent formed that view, and designated the appellant as an EHRR inmate. No question arises in this appeal as to the validity of cl 15 or the appellant's designation.
The appellant seeks leave to appeal from orders in two proceedings heard and determined concurrently in the Common Law Division, following a two day hearing: Hamzy v Commissioner of Corrective Services and the State of NSW [2020] NSWSC 414. The primary judge referred to them as "the judicial review proceedings" and "the RDA proceedings". Two further proceedings brought by Mr Hamzy were resolved consensually, and form no part of this appeal.
The hearing in this Court occupied two days, with helpful submissions from Mr Hamzy himself, Ms Gleeson and Ms Parker as amicus, and Mr Emmett SC and Mr Edwards for the respondents (the Commissioner and the State). The issues concern civil rights which are insusceptible of valuation, with the result that the appeal is subject to the grant of leave pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW). Mr Hamzy also requires a considerable extension of time; his summons seeking leave to appeal was filed on 24 June 2021, some 14 months after the decision of the primary judge. Nonetheless, the respondents, commendably, did not oppose the grant of leave or the extension of time. The conditions to which an inmate's right to legal representation and communication with visitors and lawyers are subject are of general importance, and the arguments advanced are of considerable force. There should be the requisite extension of time and grant of leave to appeal. The notice of appeal, which is apparently in the appellant's hand, is a little imprecise, but grounds 1-4 raise the first and second issues, and ground 5 raises the third issue, summarised above. Separate leave under the Felons (Civil Proceedings) Act 1981 (NSW) is inapplicable: Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 at [6], [55]-[57] and [117]; it will be seen below that the approach adopted in this Court in Patsalis informs the approach to the scope of the regulation-making power in this appeal.
The issues identified above concerning the lawfulness and validity of cl 94 and the drop-in policy, and the effect of the Racial Discrimination Act, are largely framed as pure questions of law on uncontested facts. However there were two additional sources of potential complexity, which are best mentioned at the outset, and which turn on the procedural history of this litigation.
First, Mr Hamzy was represented by counsel and solicitor in the court below, and during that hearing some of the issues were narrowed. In particular, certain facts were agreed and a number of paragraphs in his amended summons were not pressed. These included, for example, submissions that cl 94 contravened "the right to access legal representation and a fair hearing under customary international law, as adopted or incorporated into the common law of Australia" (ground 1(d)) and that the drop-in policy contravened the Telecommunications (Interception and Access) Act 1979 (Cth) (ground 4(g)). The primary judge noted at [8] that these grounds (and others) were not pressed or were not the subject of submissions. To an extent, Mr Hamzy's submissions in this Court extended to matters which had been withdrawn, or at least had not been the subject of any positive submissions, at trial. The respondents' attitude to this expansion of the case was to submit that while Mr Hamzy should be bound by the forensic choices made by him at first instance, in accordance with TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [166], to the extent that the expansion raised a pure question of law there was no prejudice. The respondents also pointed out the matters which gave rise to questions of fact which might have been met by evidence had the case at first instance been conducted differently.
Secondly, Mr Hamzy sought to tender some 200 pages of evidence which had not been tendered at trial. Some was "further evidence" which could only be received on special grounds, and some was evidence which concerned matters arising after the trial, the admission of which was not subject to special grounds: Supreme Court Act 1970 (NSW), s 75A(6)-(8). The Court indicated at the outset of the hearing that it would deal with the tender of that material in its judgment, with the parties being permitted to make submissions based on it.
On the view I take, the appeal can be resolved without addressing either the appellant's application to adduce further evidence, or the respondents' contention that save for pure questions of law, the issues should not be expanded beyond those litigated at trial.
Finally by way of overview, the constraints to which the appellant is subject produce the result that he is not completely free to choose his own lawyers, nor is he completely free to have confidential communications with them. On the other hand, it is also clear that the regime to which the appellant is subject is nuanced. The constraints, although they intrude upon civil rights which are readily and accurately described as fundamental - particularly for persons serving sentences of imprisonment - are measured. And it is important to bear in mind that the regime described below only depends on an EHRR designation. To be clear about this, the opinion formed by the Commissioner was not that Mr Hamzy had been before being imprisoned, or would be after the completion of his sentence, an extreme danger to other people or an extreme threat to good order and security. The risk in respect of which the Commissioner's opinion was formed was the appellant's status at present, while serving his sentence. By way of example, the appellant's criminal record includes convictions of serious offences committed while in custody, and one of the documents sought to be tendered by Mr Hamzy is a letter to his solicitor Ms Burrows dated 26 November 2020 which stated in connection with an application by her to be relieved from full compliance with the regime that "there are current criminal proceedings involving [Mr Hamzy] that apparently include allegations that criminal activity was being conducted through communications between him and one of his legal representatives, purportedly protected by privilege". The challenges in managing an EHRR inmate are considerable. However, those challenges neither empower the Commissioner to depart from the requirement that there be legal authority for steps taken, nor immunise those steps from review by the courts.

[15]

Clause 94 of the CAS Regulation and its practical operation

Clause 94 of the CAS Regulation provides as follows: "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."
It will be seen that cl 94 purports to apply generally, to any person visiting an EHRR inmate, including his or her lawyer. A visit is only permitted if the Commissioner approves, and there is a generally worded power in cl 94(3) to refuse to approve. The requirement to undergo a criminal record check was informed by evidence that this amounted to the visitor completing a form requiring name, address, at least three forms of identification, whether the applicant had been charged with any offence other than a traffic offence, and consenting to checks being performed on the NSW Police Service and Roads and Maritime Services records systems.
The agreed facts described the operation of cl 94 as follows: "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."
So far as I can see, the 26 April 2019 letter was not included in the materials made available to this Court. However, it suffices to note that Ms Burrows and Mr Finnane, who were granted approval, appeared for the appellant at first instance. It appears that the requirement that their visits be approved occasioned some slight delay on at least one occasion.

[16]

Part 5 of the CAS Regulation

Clause 94 falls in the first instance to be construed in context within Part 5 of the CAS Regulation, made by the Governor pursuant to s 271 of the Crimes (Administration of Sentences) Act 1999 (NSW). That Part is titled "Visits and communications". Part 5 comprises 8 Divisions. Division 1 concerns "Visits to inmates". It authorises the governor to permit visits, and makes provision in cl 76 as to the number of visits, which in the case of unconvicted inmates is "at least twice weekly", in the case of convicted inmates at intervals determined by the governor, but in the case of EHRR inmates, "once a week only, or more often if the Commissioner so determines". Clause 77 provides that up to four visitors may be present at the same time. All visitors require the Commissioner's prior authority, save for correctional officers, departmental officers, the Minister, an Official Visitor, a member of the Review Council, a judge, magistrate or coroner, a government official engaged on official duties or "any person in the exercise of a power conferred by or under an Act (including a Commonwealth Act)": cl 78. Clause 80 provides that inmates who are confined to cell are not entitled to be visited except in the case of visits to discuss or transact legal business, and visits by diplomatic or consular representatives, Aboriginal Legal Service field officers, government officials engaged on official duties or an Official Visitor.
Division 2 is titled "Special visits: legal business, foreign nationals, Aboriginal persons". It commences with cl 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."
Each of cll 83 (visits by diplomatic or consular officials to foreign nationals) and 84 (visits by ALS field officers to Aboriginal persons) also commences with the words "In addition to any other visit authorised by this Regulation". Clause 86 provides: "Time, duration and number of visits (1) Visits to an inmate under this Division are not to be restricted in duration or number but must be made during normal visiting hours. (2) The governor of a correctional centre may extend normal visiting hours to permit a visit under this Division if, in the governor's opinion - (a) it is convenient and practicable to do so, and (b) the governor can make satisfactory security arrangements."
Division 3 is titled "Permits to visit correctional centres". The Division deals generally with permits to visitors for official, scientific, religious, educational, sociological or other purpose approved by the Commissioner. Such visitors are not permitted to communicate with, or come into physical contact with, an inmate, in default of which a maximum penalty of 5 penalty units is imposed by cl 91.
Clause 94 is within Division 4 which is titled "Control of visits to correctional centres and inmates". Clause 92 states that "This Division applies to all visits under Division 1, 2 or 3". Clause 93(1) empowers an authorised officer to require a visitor to produce "evidence, satisfactory to the authorised officer, of the person's name and address" and to state the purpose of the visit. Clause 93(2) makes it an offence to produce evidence or make a statement which is known to be false or misleading in a material particular. Non-compliance with a requirement under cl 93(1) empowers an authorised officer to refuse entry: cl 93(7). The remaining subclauses of cl 93 deal with face coverings and the way in which faces of adult and child visitors are to be viewed. Clause 96 deals with hindering or obstructing dogs. Clauses 95 and 97 have been repealed. Clause 98 makes it an offence for a visitor to take photographs or operate video or audio recording equipment without the governor's prior approval. Clause 99 provides that except as otherwise provided by this part, visitors must not deliver anything to inmates, and inmates must not deliver anything to visitors. Clause 100 deals with contact and non-contact visits, and cl 100(4) provides that three classes of inmates including EHRR inmates may not have contact visits unless the Commissioner approves.
Clause 101 provides: "101 Visits to extreme high risk restricted inmates to be conducted in English or approved language (1) During a visit to an extreme high risk restricted inmate, all communications must be conducted in English or another language approved by the Commissioner. (2) If communications are conducted in a language other than English, the visit must take place within the hearing of an interpreter approved by the Commissioner. (3) In any case, a visit to an extreme high risk restricted inmate must take place within the hearing of a correctional officer. (4) The Commissioner may authorise a departure from the requirements of this clause in respect of a particular visitor or a particular visit."
Clause 102 provides that a visit must take within sight of a correctional officer unless the governor permits otherwise.
Clause 103 provides as follows: "103 Special arrangements for legal documents (1) An authorised officer may inspect or examine, but not read, any document or other recorded material, including information recorded in electronic form, that is taken into a correctional centre by an inmate's legal practitioner for the purpose of discussing or transacting legal business. (2) The governor of a correctional centre must ensure that arrangements are made for an inmate and the inmate's legal practitioner to have joint access to any document or other recorded material that is taken into the centre for the purpose of discussing or transacting legal business. (3) Nothing in this clause limits the operation of clause 100."
Clause 104 permits an authorised officer to terminate any visit if of the opinion that the visitor has contravened the Act or the regulation, that either the visitor or the inmate is or has been acting in a threatening, offensive, indecent, obscene, abusive or improper way, that the continuation of the visit would prejudice the good order and security of the correctional centre, or that it is in the interests of the visitor, being a visitor who is under the age of 18 years, to terminate the visit.
Division 5 is titled "General restrictions on persons who may visit", and includes in s 108 a power conferred upon the Commissioner to direct that a particular person be prevented from entering, or from visiting an inmate at, any 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.
Division 6 deals with written communications with inmates. Clause 110 provides that "[s]ubject to this Division" a prisoner may sent and receive letters and parcels, while cl 112 authorises the governor or a nominated officer to open, inspect and read a letter or parcel sent to or by an inmate. Clause 113 deals with privilege, and provides as follows: "113 Certain correspondence privileged (1) As soon as practicable after receiving from an inmate any letter or parcel addressed to an exempt body or exempt person, a nominated officer must post the letter or parcel to the addressee, without opening, inspecting or reading it. (2) As soon as practicable after receiving from an exempt body or exempt person any letter or parcel addressed to an inmate, a nominated officer must deliver the letter or parcel to the inmate, without opening, inspecting or reading it. (3) Subclause (2) applies only to a letter or parcel that is contained in an envelope or package that is addressed to the governor together with a note to the effect that the letter or parcel is to be delivered to the inmate without being opened, inspected or read by any person other than the inmate. (4) In the case of a letter or parcel from an exempt person, a nominated officer may require the letter or parcel to be opened by the inmate in his or her presence if of the opinion that it may contain prohibited goods and, if it does so, may confiscate the letter or parcel and its contents and deal with them in accordance with the directions of the Commissioner. (5) This clause does not apply to any letter or parcel to which clause 115 applies."
Clause 115 applies to EHRR inmates, as well as Category AA male inmates, Category 5 female inmates and national security interest inmates. Clause 115(1) provides that the governor or a nominated officer must open and inspect any letter or parcel sent by or to such an inmate. However, cll 115(2) and (3) require that correspondence to or from an "exempt body" be posted or delivered without opening, inspecting or reading its contents. Clause 3 defines an "exempt body" to mean "(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."
Clause 3 also defines an "exempt person" to mean "a Member of Parliament, a legal practitioner or a police officer". It will be seen that a legal practitioner is an "exempt person" but not an "exempt body". Consistently with this, cll 115(4)-(9) make separate provision for correspondence with legal practitioners: "(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. (5) A nominated officer may require a Category AA male inmate, a Category 5 female inmate, an extreme high risk restricted inmate or a national security interest inmate to open any letter or parcel from an exempt body or legal practitioner in the presence of the nominated officer, if of the opinion that it may contain prohibited goods or contravene this Regulation. (6) If a letter or parcel opened by, or in the presence of, the governor or a nominated officer contains prohibited goods or contravenes this Regulation, the governor or nominated officer must confiscate the letter or parcel and its contents and deal with it in accordance with the directions of the Commissioner. (7) The Commissioner may, on the application of an exempt person, make an order declaring that any specified provision of this Regulation is to apply (either unconditionally or subject to conditions) to letters and parcels sent to or by that person as if that person were an exempt body and, on the making of the order, the provision so applies. (8) An inmate need not be informed of any action taken under this clause. (9) This clause applies to fax transmissions in the same way as it applies to letters and parcels."
Clause 116 (which is relevant to the grounds of appeal concerning the Racial Discrimination Act) provides: "116 Additional requirements for correspondence from extreme high risk restricted inmates and national security interest inmates (1) All correspondence from an extreme high risk restricted inmate or a national security interest 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. (2) If a letter or parcel received from an extreme high risk restricted inmate or a national security interest inmate and addressed to any person (other than an exempt body) contains any correspondence that is written in a language other than English, the governor or nominated officer may arrange for a translation of the correspondence."
Clause 117 requires a register to be kept with respect to the correspondence sent to and by, relevantly, each EHRR inmate.
Finally, 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 is titled "Uses of telephones and fax machines by inmates". Only telephone calls and AVL conferences are relevant to this appeal. It was not suggested that AVL conferences are treated any differently from telephone calls.
Clause 119 prohibits an inmate from making a telephone call without the permission of an authorised officer. Subclause 119(4) authorises a correctional officer to terminate an inmate's telephone call if of the opinion that the call is likely to prejudice the good order and security of any correctional centre, or constitute a threat to the personal security of any person, or if it is being conducted in contravention of the CAS Regulation. Subclause 119(5) requires the officer as soon as practicable after terminating an inmate's telephone call to ensure details of the reason for the termination are recorded, and report the details to the governor. Subclause 119(6) provides: "All telephone calls made by an extreme high risk restricted inmate or a national security interest 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."
Clause 122 prohibits an inmate from using or having in his or her possession a mobile phone or SIM card or charger.
Division 8 is the last Division within Part 5. It contains general provisions which do not require summary.

[17]

The reasons of the primary judge on cl 94

The primary judge commenced with two general propositions which pointed in opposite directions. On the one hand, his Honour acknowledged the proposition that it was "beyond doubt that every person has the right to choose his or her legal representative", and reiterated what Whealy J had said in R v Khazaal [2006] NSWSC 1353; 167 A Crim R 565 at [90], namely, that: "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."
On the other hand, his Honour also summarised various propositions derived from this Court's decision in Clark v Commissioner for Corrective Services [2016] NSWCA 186, namely, that the rules be applied so as to take account of individual circumstances in a custodial setting, that the fact that a reasonable request is refused does not entail that the refusal is unreasonable in an administrative law sense, that statutes governing the discipline and control of those in custody are generally to be understood as giving a broad discretion to make decisions commensurate with the nature of the task, and the balancing of potentially conflicting considerations, with legislation being interpreted so as to give full scope to the power of a correctional authority to carry out its tasks without undue influence from the courts, which might not be conscious of the practical and security implications of prison management. His Honour also noted that prisoners are in a position of disadvantage, and that any abuse of power by prison authorities is unacceptable and can often have serious ramifications.
The primary judge identified at [83] that the two primary propositions advanced concerning cl 94 were that it was invalid (in its application to lawyers) and that it was unreasonable for the Commissioner to require the applicant's legal representatives to undergo a criminal record check. His Honour concluded that cl 92 in Division 4 was applicable to all the provisions in Divisions 1, 2 and 3, that s 82 must be read as being subject to cll 94(1) and (2), and that cl 94 was supported by s 271 of the Crimes (Administration of Sentences) Act complemented by s 79. His Honour added: "88. Further, as I have previously set out, the authorities support the general proposition that legislative instruments such as the Act and the Regulation are to be interpreted in a way which gives full scope to the defendant to carry out the task of prison administration, and the associated task of the management of inmates, without undue influence from the Courts. There is, obviously, a need for the defendant to be able to exercise control over custodial facilities, and to maintain discipline, safety and security, the importance of which cannot be understated. Clause 94(1) reflects that need. 89. The defendant's approval of persons who visit EHRR inmates is necessarily an important regulatory function in the context of prison administration. Cl 94(1) reflects the intention of the Parliament to confer a power on the defendant to make decisions which are conducive to the good order and management of the correctional facilities that it administers."
On that basis his Honour concluded that cl 94 was valid. His Honour then gave four reasons for rejecting the proposition that requiring a criminal record check before being granted approval was not unreasonable, namely, that (a) the requirement fell far short of "trampling" upon the common law right to legal representation, (b) that the requirement addressed the risk that a legal practitioner might not be incorruptible, (c) that the requirement was not burdensome at all, but merely involved filling out a form, and (d) the fact that a legal practitioner already approved to visit one inmate had to reapply to visit another was not unreasonable, and was justified by the fact that different inmates might need to be treated differently.

[18]

The appellant's submissions

The appellant contended that a construction of cl 94 which applied to visits from lawyers was inconsistent with the Act and other parts of the regulations. He directed attention to the following provisions. 1. Section 21(4) of the Act gave an inmate the right to be represented by a legal practitioner "chosen by the inmate" in matters relating to segregated or protective custody, as did various other sections of the Act (he nominated ss 55(4), 55(5C), 190(1)(a), and 204). The appellant argued that the entitlement to representation in those sections necessarily implied that an inmate's representative was a lawyer of the inmate's own choice, a right which would be breached if cl 94 operated so as to render visits from lawyers subject to the Commissioner's approval. 2. Clause 78 of the CAS Regulation, which appeared in Division 1 of Part 5, exempted persons such judges, magistrates, and government officials engaged on official duties from requiring the authority of the Commissioner to visit a correctional centre. The appellant argued that the requirement for "all visits under Division 1, 2 or 3" to be subject to the approvals power in cl 94 was inconsistent with that exemption. 3. Clause 82 of the CAS Regulation entitled inmates to visits by legal practitioners, which were not to be restricted in number and duration pursuant to cl 86(1). 4. Clause 101(3) of the CAS Regulation required a visit to an EHRR inmate to take place within the hearing of a correctional officer. The appellant argued that if that clause was not read down as excluding visits from lawyers, it would be inconsistent with cl 103, which prohibited officers from reading materials brought into the centre by lawyers.
The appellant maintained that in any case, the power in cl 94 when applied to visits from lawyers undermined the right of access to an inmate's chosen lawyer and to the courts. The appellant submitted that the primary judge erred in finding that cl 94(2), which empowered the Commissioner to require visitors to undergo criminal record checks, did not deny an inmate access to a legal representative. In support of that proposition he pointed to cl 94(3), which gave the Commissioner power not to approve a visitor for any reason. He relied on Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R 74 to ground an argument that it was of considerable importance for a lawyer to be able to conference with his or her client, receive instructions, and give advice, all of which he said could not occur if approval was denied.

[19]

Respondents' submissions

The respondents submitted that legislation regulating prisons should "ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the courts": Clark at [84]. It was said that this interpretive principle applied to the construction of prison legislation due to the acute management challenges and complex security implications which arose, with which courts were not familiar: Fyfe v State of South Australia [2000] SASC 84.
The respondents accepted that Mr Hamzy's asserted right of access to a lawyer was a component element of the right of access to the courts and to a fair trial, but suggested that the right was not absolute (relying on R v Khazaal and Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282; [2003] NSWCA 146 at [91]-[97]). It was not immune from being abrogated by statute, and could be lost or restricted as a necessary consequence of the need for enforcement of security in the custodial environment.
The submissions advanced by the respondents in respect of the proper construction of cl 94 may be summarised thus: 1. First, cl 92 stated that Division 4, which included cl 94, applied to "all visits under Division 1, 2 or 3". Division 2, which concerned relevantly "visits to transact legal business", contained cl 82. Prima facie, cl 82 was thus said to be subordinated by cl 92. 2. Secondly, as a matter of broader context, Part 5 of the CAS Regulation (which regulated visits to inmates) dealt first with the types of visits authorised and second with the controls and restrictions to which such visits were subject. That structure was said to suggest that the former provisions were subject to the latter provisions. 3. Thirdly, cl 82 was a general provision applying to all inmates, while cl 94 was a specific provision applying to EHRR inmates. The general provision was said to be subordinate to the specific. 4. Fourthly, cl 94 post-dated cl 82 as a matter of legislative history, so to the extent that there was any consideration of implied repeal, the provision being impliedly repealed would be cl 82. 5. Finally, according to the explanatory note for the Crimes (Administration of Sentences) Amendment Regulation 2009 (NSW), the purpose of cl 94 and its associated provisions was to ensure that EHRR inmates were subject to a stricter security and management regime than other inmates. In that context it was said to be incongruous that visits to EHRR inmates by lawyers should be any different from visits by other persons.
However, in oral submissions the respondents conceded that cl 103 could not apply to visits by legal practitioners to EHRR inmates for whom they were acting.
The respondents rejected the assertion that the words "in addition to any other visit authorised by this Regulation" in cl 82 could have any special meaning in determining the hierarchy between cl 82 and cl 94. It was said that those words ensured that the number of special visits was not limited by the restrictions in cl 76, but they had no bearing on the identity of the persons conducting the visits.
If cl 94 did apply to lawyers, the respondents argued that this would be valid under the empowering provisions in the Act. Section 79(1) authorised regulations "for or with respect to" subject matters including visits to inmates, including but not limited to "the classes of persons who may be prohibited from visiting inmates" (s 79(1)(i)(iii) and "the conditions that must be observed by persons intending to visit an inmate before such a visit will be allowed" (s 79(1)(i)(iv)). Clause 94 was said to do precisely what these sections permitted: prohibit visits by a particular class of persons (non-approved persons) and authorise the Commissioner to impose conditions before a person could visit an EHRR inmate (such as undergo a criminal record check).
The respondents submitted that cl 94 was not inconsistent with the provisions of the Act which entitled an inmate to legal representation because those provisions were said only to entitle an inmate to be represented by a lawyer, not necessarily a lawyer of their choice. In any case, the respondents argued that cl 94 had neither of those operations. It only allowed the Commissioner to approve a visit from a lawyer, not to restrict an inmate's capacity to conduct his or her legal affairs or limit the choice of lawyer necessarily.
The respondents submitted that the principle of legality did not require s 79(1)(i) to be read down, having regard to the following: 1. The principle could not override the usual exercise of statutory construction. When s 79(1)(i) was read in the context of the Act as a whole, its purpose was to confer a regulation making power "in the widest possible terms", so as to authorise whatever regulations were considered necessary to ensure security and good order during visits to inmates. 2. The Act proceeded on the basis that inmates posed risks beyond their place of confinement. In particular, it was a requirement for the Commissioner to be satisfied of such risks arising in order for an inmate to be designated EHRR. One of the main ways in which inmates were able to pose a risk to the wider community was by acting "through" their visitors. On that basis, the suggestion that there were any kinds of visitors whose visits could not be restricted was said to be unfounded. 3. It could not be assumed that lawyers posed no risk to security and good order merely on the basis that they were admitted or held a practising certificate. The respondent pointed to a number of examples of criminally implicated lawyers being excluded from correctional centres on the grounds of security and good order (see Nicopoulos v Commissioner for Corrective Services and Reed v Commissioner of Corrective Services [2008] NSWSC 161). In any case, absent the cl 94 process, it was said that there could be no confidence that the Commissioner would learn the necessary information at the time a lawyer sought to visit an EHRR inmate.

[20]

Submissions of the amicus curiae

The amicus submitted that cl 82 should not be read as subject to cl 92, and consequently cl 94, on the basis that cl 82 and the other categories of "special visits" identified in Division 2 were capable of sensibly applying "in addition to" cl 94, notwithstanding that other provisions in Division 4 would apply to those visits. This reading was said to be appropriate having regard to the legislation and the regulations as a whole, the "inconsistent" provisions identified by the appellant, and principles of interpretation such as the principle of legality.
The amicus submitted that the right to legal representation could not be curtailed without express words or necessary implication. There were no express words, and the amicus submitted that this was not a case of necessary implication, on the basis that it would not frustrate or render inoperative the legislative purpose of cl 94 to find that inmates had a right to be visited by a lawyer without a need for approval by the Commissioner. To the contrary, the effect of the requirement was said to be that inmates' access to their chosen legal representative was impeded. The practical consequences of a lawyer being refused approval were that an inmate could not meet with their lawyer in person, contrary to the entitlement in cl 82, and could not discuss documents relevant to the inmate's case other than over the telephone, which curtailed the quality of representation available. It was also said to be unnecessary for the requirement to undergo a criminal record check in cl 94(2) to apply to legal practitioners, given that they were already subject to a detailed disclosure regime and an assessment of fitness and propriety as a requirement of admission and of practice.
The amicus argued that s 79 of the Act was expressed by reference to subject matter and not purpose. It was said that the consequence was that s 79(1)(i), which allowed for regulations to be made with respect to visits to inmates, was facilitative only. In other words, it was not possible to infer from it an intention or objective of curtailing a right, privilege or immunity because it was merely the expression of a power to make regulations in respect of that subject matter. The amicus pointed to the fact that only some of the subsections in s 79 made clear an intention to curtail rights or privileges, such as s 79(1)(i)(vi) which allowed for regulations to be made with respect to "visits to inmates, including … the removal of face coverings". It was submitted that s 271A was similarly facilitative in nature, and that s 271 was merely the source of power with which s 79 was to be read.

[21]

Factual background

The agreed facts provided as follows in relation to the "drop-in policy": "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 paragraph of Mr Poulsen's affidavit mentioned in [14] above was as follows: "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."
A document titled "Information for extreme high risk restricted inmates" which appears to have been made available to EHRR inmates, described the practice as follows: "Telephone calls and audio visual link (AVL) access 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 your 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). Each approval for a telephone contact is only for the person nominated in your request and their telephone number."
Consistently with that evidence and with cl 119(5) a record was kept of occasions when the appellant's telephone calls were terminated. The register includes seven calls being terminated between 1 February and 28 June 2016, with reasons as "Speaking language other than english" in six cases, and in one instance "Speak to third party". A note dated 2 April 2016 records that the call was terminated at 3 minutes and 14 seconds and states "Inmate HAMZY did engage in conversational language other than English with his mother". There are other notes for the other calls which were terminated. None appears to have been a call with a legal practitioner.
The hearing proceeded on the basis that when an officer "dropped in" to a call, it was not noticeable to the participants, until and unless the call was terminated.

[22]

The reasons of the primary judge

The primary judge addressed this issue at [105]-[116]. His Honour started with cl 119(4) and (6), and considered that there was nothing to suggest that they should not apply to calls between an inmate and a legal practitioner. His Honour then reasoned that in order to determine whether the power to terminate was available, an officer must be privy, at least in a general sense, to the content of the call. His Honour said at [108] that: "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."
While stating that legal professional privilege was a fundamental right, his Honour accepted the respondents' submission that the "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": at [109]. Based on the unchallenged evidence, his Honour was satisfied that the limited monitoring of calls did not allow the officer to become privy to the substance of what was being discussed.
His Honour then at [110]-[114] drew an analogy with the inspection of privileged correspondence, which had been the subject of consideration in the United Kingdom at the level of the Court of Appeal and the House of Lords. In light of the submissions which were directed to this portion of his Honour's reasoning, it warrants reproduction in full: "An analogy can be drawn between this practice and the inspection, in a custodial setting, of correspondence which may be subject to privilege. For example, in R v Secretary of State for the Home Department; Ex Parte Simms Kennedy LJ concluded that the practice of searching cells within a prison carried with it a power to examine correspondence for the limited purpose of determining whether it was bona fide correspondence between an inmate and his legal representative. His Honour concluded that although this may involve what he described as an 'impairment' of privilege, the maintenance of security was an essential aspect of prison administration, and there was a 'self-evident and pressing need' for that degree of scrutiny. Such observations are apt in the present case. The opposite approach was taken by Lord Bingham in R (Daly) v Secretary of State for the Home Department in which the House of Lords considered rules which authorised prison guards to examine (but not read) legally privileged communications. In respect of the conclusion reached by Kennedy LJ in Simms, his Lordship said: That is a conclusion which I respect but cannot share. In my opinion, the policy provides for a degree of intrusion into the privileged legal correspondence of prisoners which is greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners. Three observations may be made about his Lordship's conclusions. Firstly, it is evident that such conclusions were based, at least in part, on his Lordship's assessment that the degree of intrusion was greater than that which was justified by the policy. For the reasons I have already expressed, that does not represent the situation in the present case. The degree of intrusion brought about by the defendant's practice of monitoring telephone calls is no greater than is justified in order to achieve the objectives of such practice. Secondly, and in any event, the approach to this issue in Australia has been generally consistent with that adopted in Simms. In a different context, the practice of looking at a document for the limited purpose of determining whether it is privileged has been described as a 'lawful violation' of privilege. I am fortified in that view by cl 103 of the Regulation which authorises an officer to inspect or examine, but not read, any document that is taken into a correctional centre by an inmate's legal practitioner for the purpose of discussing or transacting legal business. There is no equivalent provision applicable to the telephone system operating in the HRMCC to which the plaintiff has access and which is subject to the monitoring process that I have described. However, that monitoring process is, functionally speaking, the equivalent of that provided for in cl 103 with respect to documents, and which the authorities have recognised as appropriate." Thirdly, the issues in Simms and R (Daly) arose in a context of determining whether legislation abrogated the relevant privilege. The issues in the present case are raised, at least in part, in a context of considering the nature and extent of the defendant's responsibility to provide a facility to inmates to have confidential communications with lawyers. The defendant is not under an obligation to provide facilities which allow inmates to have completely confidential conversations. In Smith v Commissioner of Corrective Services Hutley JA, having noted the right of a person to prevent the disclosure of privileged communications, said: However, it does not follow from this that the accused person has a positive right against his jailer to require the jailer to provide him with facilities to ensure that these confidential communications do not reach other persons. … The privilege is a right to make confidential communications to legal advisers, it is not a right to require other persons to provide all the facilities necessary to enable such communications to be kept secret. It certainly does not extend to requiring jailers and others to provide facilities for communications which cannot arouse any suspicion in the mind of the accused that he is being overheard or his conversations are bugged. This would put an impossible burden upon any prison authorities and subject them to the vagaries of the often paranoiac suspicions of accused persons."

[23]

The appellant's submissions

The submissions advanced by the appellant in respect of the drop-in policy fell into two broad categories. First, that the CAS Regulation did not expressly or by necessary implication permit the drop-in policy to apply to privileged communications, and secondly that they would be inconsistent with the Act to the extent they purported to do so.
The appellant submitted that the drop-in policy was implemented pursuant to an instruction made by the Commissioner under s 235B of the Act, which allowed the Commissioner to issue instructions "not inconsistent with this Act or the regulations … with respect to the management and control of Corrective Services NSW". He argued that a reading of that clause which would empower the drop-in policy to apply to privileged phone conversations was inconsistent with both the Act and other parts of the CAS Regulation, said to be evident from the following: 1. Sections 55(5C), 11A(1) in Schedule 1, and 11A(8) in Schedule 2 of the Act required facilities to be made available for private communication between an inmate and their representative where hearings or proceedings were being conducted via audio-visual link. 2. Clause 103(1) of the CAS Regulation allowed an authorised officer to "inspect or examine, but not read" documents taken into a correctional centre by an inmate's legal practitioner. Clause 115(4) also required an officer to deliver correspondence addressed to an inmate from a legal practitioner without opening, inspecting or reading its contents, provided it satisfied certain security checks.
In oral submissions, the appellant addressed the primary judge's reliance on cl 119 of the CAS Regulation as impliedly supporting the monitoring of calls "as a necessary incident of the wide ranging responsibilities conferred … by s 232 of the Act". He argued that cl 119, which permitted a correctional officer to terminate an inmate's phone call if it was being conducted in contravention of the CAS Regulation, only permitted the Commissioner to exercise those powers in respect of calls between an inmate and their friends and family. For the drop-in policy to apply equally to conversations with lawyers was said to be an abrogation of the common law right to legal professional privilege which required clear words or necessary implication to achieve that effect. Insofar as the primary judge found that "nothing in the text of cl 119(4) … suggests that those provisions should not apply to calls between an inmate and a legal practitioner", the appellant argued to the contrary that there was nothing in cl 119 that positively empowered dropping in on privileged communications.
The appellant sought to demonstrate that the primary judge had erred in finding (at [109]) that the drop-in policy did not allow correctional services officers to become privy to the substance of what was discussed on a call the subject of a drop-in. He emphasised that the practical effect of the policy was that a correctional services officer could drop-in to a phone call between an inmate and their legal representative, at any time and without any indication to or awareness of the parties, and listen for as long as it took to confirm that both parties were speaking English and that the person on the other end of the line was the approved recipient of the call. Even if the officer did not become privy to confidential communications through that process, he said that the result was the same "chilling effect" on an inmate's ability to communicate with their lawyer as identified by the House of Lords in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532.
The appellant argued that the primary judge was in error in relying on cl 103 to support a preference for the reasoning in R v Home Secretary; Ex parte Simms [1999] QB 349. That case was said to be distinguishable on the basis that cl 103 only allowed an officer to "inspect or examine, but not read" incoming legal correspondence, while the relevant provision in Simms permitted correspondence to be read for the limited purpose of determining whether it was bona fide.

[24]

The respondents' submissions

The respondents insisted that the principle of legality could not be taken to have "overriding operation". That principle was instead said to be but one interpretive factor which could assume greater or lesser significance depending on the circumstances, but that the general requirement that effect must be given to the text of the statute, read in context and having regard to its apparent purpose remained the principal focus of statutory construction (relying on Elliott v Minister Administering Fisheries Management Act 1994 (2018) 97 NSWLR 1082; [2018] NSWCA 123 at [35]). Further, the principle of legality was said to have an attenuated role to play in construing the rulemaking power itself (as opposed to the regulations being challenged) in circumstances where that power was broadly expressed in respect of a range of subject matters. On that basis, the respondents said that it would not be the correct approach for the court to consider that a right or privilege could only be affected by the CAS Regulation if it were expressly referred to in s 79 or elsewhere in the Act. This was said to be supported by the range of other provisions in the CAS Regulation not challenged which regulated the ability of a lawyer to attend a prison in person in a manner which was uncontroversial.
The respondents identified the sources of the power for the drop-in policy as s 232(1) of the Act, which conferred on the Commissioner powers to "direct, control and manage" correctional centres and "control and manage" offenders held in custody, and s 235, which made clear that the functions of correctional officers were "as determined from time to time by the Commissioner" to be exercised in such a manner as the Commissioner "may from time to time direct". The respondents said that these powers were expressed broadly and must be interpreted in a manner that recognised the fact that multiple provisions in the CAS Regulation "proceed on the assumption" that the phone calls of EHRR inmates had to be monitored, such as cll 119 and 119A. Therefore the monitoring of telephone calls in general was said to be within the scope of the Commissioner's powers under the Act. The respondents conceded that cl 119 did not expressly authorise the drop-in practice, but suggested that it was nonetheless consistent with it, and that there could be circumstances in which the opinion required by cl 119(4) could be formed without the need to monitor the call.
In oral submissions, the respondents noted that if necessary, the Commissioner would also be entitled to rely on cl 16 of the CAS Regulation as a source of power for the drop-in policy, which provided for the Commissioner to make determinations in relation to the management of EHRR inmates.
In construing the CAS Regulation, the respondents submitted that the provisions referred to by the applicant protecting private communications with lawyers in other sections of the Act or regulations could not be taken to impliedly provide for, or even mandate, such privacy in all communicative contexts involving lawyers. Rather, the respondent argued that it could be inferred from the specific conferral by Parliament of a right to private communication in some contexts that it had no intention to confer such a right where such express provision had not been made, such as in the context of any and all telephone conversations conducted by inmates.
The respondents defended the analogy drawn by the primary judge at [110]-[114] between the inspection of legal correspondence and the monitoring of telephone calls. It was said that while cl 103(1) limited the circumstances in which correspondence from a lawyer could be monitored, correspondence to a lawyer was not subject to any special rules and therefore fell within the general rule requiring inspection of correspondence from EHRR inmates in cl 115(1)(b). The respondents also maintained that the preference expressed by the primary judge for the reasoning in Simms was consistent with the approach taken in other Australian decisions (in particular Patsalis v New South Wales [2012] NSWSC 267 at [92]; Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143), that the maintenance of security in prison administration carried with it a "self-evident and pressing need" for a higher degree of scrutiny which could justify the "impairment" of privilege.
The respondents emphasised that the Commissioner was under no obligation to provide facilities which allowed for entirely confidential communications at all times (relying on Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317). The respondents acknowledged that knowledge of the practice did not amount to a waiver of privilege on the part of the inmates, nor did brief and random monitoring abrogate or lead to the loss of privilege which might otherwise arise. Rather, the respondents emphasised that privilege continued to subsist on the basis that the circumstances, even those in which the provision of private facilities was qualified, did not affect the primary nature of the communication as confidential.
The respondents in oral submissions accepted that the Court would take into account that the effect of the policy could be to limit the kinds of communications made by inmates. The respondents sought to justify the impact of the policy on the basis that significant inconvenience or the curtailment of certain rights was a necessary feature of the legislative regime, being one that was required to accommodate special security risks. In particular, the EHRR designation entailed that the Commissioner was satisfied that inmates posed an "extreme danger to other people" or an "extreme threat to good order and security" not only within the correctional centre but also to the broader community. The respondents maintained that the facilities made available by the Commissioner to EHRR inmates were consistent with the Commissioner's attempt to protect the rights of inmates to communicate with their lawyers while countering the associated security risks in minimally intrusive way.

[25]

Submissions of the amicus curiae

The principal submission of the amicus was directed at whether the conferral of broad powers in both the Act and the CAS Regulation necessarily implied that Parliament intended to curtail the common law rights of EHRR inmates. The submission had two aspects: arguments as to the proper construction of the relevant provisions and a consideration of the practical operation of the drop-in policy.
The amicus submitted that the two statutory sources of power to monitor calls relied on by the respondents, ss 232 and 235 of the Act, were neither confined nor directed by any particular object, and that there was nothing in them that indicated by express words or necessary implication that they authorised a practice that interfered with the inmates' common law right to legal professional privilege. The same obstacle arose to the extent that the respondents and the primary judge relied on s 78A of the Act, which authorised the differential treatment of inmates. The amicus said that nothing in that authorisation amounted to a pre-emptive statement of legislative intention to abrogate or curtail common law rights in the absence of some language clearly expressing that intention. The amicus otherwise agreed with the respondents that s 235B, being restricted to the making of instructions in relation to the "management and control" of corrective services, could not be relied on as a source of power for the drop-in policy.
Contrary to the primary judge's finding that nothing in cl 119 suggested that it did not apply to legal calls, the amicus argued that the correct question was whether legislative intention could be discerned to interfere with legal professional privilege subsisting in legal calls. Counsel made the following arguments to demonstrate that such legislative intention was not apparent: 1. The power in cl 119 to terminate a call did not necessarily give rise to a power to monitor that call. It contained no express authorisation for the monitoring of calls, and it was said to be possible for a correctional officer to form the requisite opinion without monitoring the content of the call. While cl 119(6) made specific provision for calls made by EHRR inmates to be in English, it did not otherwise refer to any power to monitor calls with lawyers in such a way as to indicate that a breach of legal professional privilege was justified in order to achieve the objects of the provision. Legislation which sought to abrogate privilege would typically do so expressly and include controls on the exercise of the relevant power: Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39. In counsel's submission, no such controls were identifiable in cl 119. 2. The lack of protections applicable to telephone calls in cl 119 was said to be incongruous with the protections afforded to other forms of privileged communication in the CAS Regulation, such as cl 103 and Division 6 in Part 5, which provided a regime for the protection of privilege in written communications sent by legal practitioners to inmates. 3. Other clauses in the Act were identified which did expressly curtail rights or privileges, such as s 79(1)(i)(vi) which allowed for regulations to be made with respect to "visits to inmates, including … the removal of face coverings". The absence of a similar expression in respect of legal professional privilege was said to indicate that there was no legislative intention to abrogate that right in the same way.
In relation to the practical operation of the drop-in policy, the amicus observed that the "Information for extreme high risk restricted inmates" fact sheet, which set out the parameters of the policy, acknowledged that "CSNSW staff may re-verify the legitimacy of the call at various intervals throughout the duration of the call". It provided that "interception of the call will not continue if both you and your legal representative are complying with these conditions", indicating in her submission that interception could continue for some time until the identity of the recipient of the call could be confirmed and it was established that both parties were speaking English. Accordingly, it was said that a drop-in could occur while an inmate was giving instructions to a lawyer such that the officer would be listening to privileged communications until the lawyer next spoke, and their compliance with the conditions could be confirmed. The amicus submitted that it was not to the point that the drop-in did not amount to a waiver of privilege, as there was no mechanism in the CAS Regulation or the policy to protect inmates from confidential information in the call being overheard and disclosed elsewhere.

[26]

The rights enjoyed by convicted inmates

The starting point is the general principle stated by Lord Wilberforce in Raymond v Honey [1983] AC 1 at 10 that "under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication: see Reg v Board of Visitors of Hull Prison, Ex parte St Germain [1979] QB 425, 455 and Solosky v The Queen (1979) 105 DLR (3d) 745, 760, Canadian Supreme Court, per Dickson J". The civil right in issue in Raymond v Honey was the right of access to the courts, which is closely connected with the right to a lawyer of one's choice and the right to have confidential, privileged communications with that lawyer. All members of the House of Lords endorsed Lord Wilberforce's statement in Leech, R (on the Application of) v Parkhurst Prison [1988] AC 533; [1988] UKHL 16. The application of the principle to the regulation making power was confirmed in R v Secretary of State for the Home Department, Ex Parte Pierson [1998] AC 539; [1997] UKHL 37.
Lord Wilberforce's general principle was not controversial in the present litigation. The primary judge said at [158]: "I should emphasise that nothing that I have said in the preceding paragraphs should be construed as expressing a view that a person who is in custody is to be regarded as (as counsel for the defendant described it) 'civilly dead', or a person whose human rights are 'checked at the door'. Under English law, any convicted prisoner, in spite of his or her imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. That is also the position in Australia. At the same time, the rights of the plaintiff, as an EHRR inmate, are necessarily curtailed as a consequence of the fact of his imprisonment." (citations omitted)
His Honour cited the passage from Lord Wilberforce's speech in Raymond v Honey reproduced above. Neither the appellant nor the amicus cavilled with this. What is more, the respondents supported that reasoning and submitted that "it is of course the case that an inmate in a correctional centre is not 'civilly dead' and retains 'all civil rights which are not taken away expressly or by necessary implication'".
I agree that the principle applies in New South Wales. However, its acceptance is much more recent than its recognition in the United Kingdom and Canada. In order to explain why, some recourse to legal history is necessary.
At common law, a person convicted of a felony and sentenced to death was attainted. The person was "extra legem positus and is accounted in law civiliter mortuus" (Co Litt 130a, cited in Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 at 602; [1978] HCA 54). Blackstone wrote that the law "puts him out of its protection" and that "he cannot be a witness in any court": Commentaries on the Laws of England (Bk IV, ch 29). The state of being attainted might apply for many years, as for example, when a felon was spared the death penalty on condition that he or she be kept in penal servitude. The position of persons convicted of a non-capital felony was unclear.
These rules caused difficulty in New South Wales where convicts who had been convicted of felonies but whose capital sentences had been remitted were numerous. Very early decisions of the Supreme Court under Forbes CJ held that they did not apply, or else erected evidentiary obstacles to their application. Thus in R v Gardener and Yeurs [1829] Dowl Sel Cas 108, Forbes CJ, Stephen and Dowling JJ each held that a convict convicted of a capital felony was nonetheless a competent witness, and in Belcher v Deneen (1832) Dowl Sel Cas 168 insisted that only an authenticated copy of the indenture would be sufficient evidence to establish that the plaintiff was a convict attainted of felony and thus incapable of suing. Therry describes the latter in his Reminiscences, where he rejected the debtor's defence (Therry said it was a "fraudulent defence") that his creditor, a ticket-of-leave man, was nonetheless a convict who could not sue at law: R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria (facsimile edition 1974 of 2nd ed 1863), pp 318-320. Conversely, a convict attainted of felony who relied on his status as a defence to execution of his creditor's judgment was not permitted to do so in Green v Woodroffe (1828) Dowl Sel Cas 106. Thus, as Windeyer put it, the rule "was often ignored or evaded by various technicalities": V Windeyer, "A Birthright and Inheritance" (1962) 1 U Tas Law Rev 635 at 662. The evasions were ameliorated by imperial legislation in the form of (1843) 6 Vict c 7 "An Act to amend the Law affecting transported Convicts, with respect to Pardons and Tickets of Leave", which permitted holders of tickets-of-leave to own and sue for personal property, although they remained unable to own freehold land.
Yet while the harshness of the rules could be ameliorated by legislation, judicial decision and practice, they remained in place and were not removed by the Criminal Law Amendment Act 1883 (NSW) nor the Crimes Act 1900 (NSW) (contrast the Forfeiture Act 1870 (UK)). Hence the need for s 3 of the Felons (Civil Proceedings) Act 1981 (NSW) to remove the incapacity of a felon from instituting and maintaining civil proceedings confirmed by the High Court in Dugan v Mirror Newspapers Ltd. Thus, prior to 1981, Lord Wilberforce's principle did not represent the law in New South Wales.
After the felon's incapacity was removed by statute, the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) removed the distinction between felonies and misdemeanours, replacing it with "serious indictable offences" such as those of which the appellant stands convicted. After 1981, the former incapacity of a felon was replaced, by s 4, by a requirement that a person convicted of felonies (serious indictable offences after 1999) "may not institute any civil proceedings in any court except by the leave of that court granted on [his] application".
One issue in Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 was whether an inmate convicted of a serious offence was subject to the requirement of leave imposed by the Felons (Civil Proceedings) Act 1981 (NSW) when bringing proceedings for judicial review concerning the conditions of his imprisonment. Basten JA reproduced the principles from Raymond v Honey at [52], and then added at [53]: "Thus, where a prisoner has a legal right enforceable by a court under the general law, conduct calculated to obstruct or interfere with his or her access to the courts will constitute a contempt, for which, in turn, there will be a right of access to the courts for relief in respect of the contempt. Such a right may be removed or conditioned by statute, but the intention in that respect must be clear. While the imposition of a leave requirement, which vests control of access to the courts within the courts themselves, will involve a lesser intrusion on civil rights than other forms of restraint, the presumption in favour of non-interference will mean that the leave requirement will not be given an expansive construction."
It will be seen that the retention of civil rights save for those expressly or by necessary implication taken away sustained a "presumption in favour of non-interference" as a matter of statutory construction applicable in such cases.
The upshot was that the Felons (Civil Proceedings) Act did not apply to proceedings for judicial review: at [55]. Basten JA added at [56] that because the requirement for leave was a constraint upon access to the courts, which was an important civil right which was no longer removed from those convicted of serious indictable offences, the Felons (Civil Proceedings) Act 1981 should be construed narrowly so as to limit the civil rights in question "only to the extent necessary to give effect to the statutory provision". The significance of this step may be appreciated by recalling that the words of the statute being construed were "may not institute any civil proceedings in any court". Patsalis is an example of general language being read down so as to minimise the impact on an important civil right. Allsop P and Sackville AJA agreed (although both refrained from stating the precise scope of the operation of the statute: at [7] and [117]).
Similarly, in Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27 at [88], Gageler J applied the proposition that "a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication" as an element of his approach to construction of the statute there in question (the other judgments reached the same result without recourse to the proposition).
The proposition that a convicted prisoner retains all civil rights which are not taken away expressly or by necessary implication is correct in principle. That was reflected in the bipartisan support given to the Felons (Civil Proceedings) Act, which was perceived as removing the last remaining disability of felons. The bill's passage through the parliamentary chambers is conveniently summarised in J Donnelly, "Judicial Review for the Convicted Felon in Australia - A Consideration of Statutory Context and the Doctrine of Attainder" (2012) 16(1) University of Western Sydney Law Review 137 at 148-149. The Attorney-General said that "the last practical effect of a doctrine of attainder" was the denial of the right to commence or maintain civil proceedings", while the shadow Attorney-General said that "Felons must have rights in respect of personal physical injury" and "A felon must also have rights to protect property by way of injunction, declaration or proceedings for damages".
Consistently with the foregoing, a major albeit unstated premise of Part 2A of the Civil Liability Act 2002 (NSW), which reduces the damages payable for some torts committed against offenders in custody, is that those offenders would otherwise enjoy the same civil rights.
But the main reason why the principle stated by Lord Wilberforce applies in New South Wales is the common law's all-or-nothing approach. Attainder and forfeiture have now been abrogated by statute. There was no basis for common law to create some intermediate position once the Felons (Civil Proceedings) Act commenced. Test the matter this way: a convicted prisoner is no longer civilly dead. What basis is there for denying him or her civil rights save for what flows, expressly or by necessary implication, from the conviction, sentence and legislation regulating his or her imprisonment? Perhaps little turns on this, because for the most part disputes about an inmate's rights will largely turn on statute.
While accepting the principle, the respondents observed that "constant repetition of this principle may suggest that the restriction of [a] prisoner's rights is less extensive than in reality it is" (Simms at 367) and recalled that it had been said that some rights were necessarily qualified "by the need for enforcement of security in a custodial environment": Commissioner of Corrective Services v Liristis at [69]. So much may be accepted, as may the cognate point that courts are not necessarily well qualified to determine what is necessary in the interests of prison security. But the force of Lord Wilberforce's principle is that it falls to the State to establish, in a case where a civil right has been abrogated or curtailed, how that is justified as a matter of express language or necessary implication.

[27]

The interaction between construction and validity

The essential questions are whether the regime established by the legislation and the CAS Regulation materially detracts from inmates' rights to the lawyer of their choice and legally privileged communications with that lawyer, and, if so, whether that is authorised in law.
In answering those questions, it is clear that there are non-trivial questions of construction, including the threshold question whether cl 82 is subject to cl 94. It is also clear that if the construction favoured by the respondents is accepted, there are non-trivial questions of validity, if indeed cl 94 curtails an EHRR inmate's right to the lawyer of his or her choice. Those questions are intertwined. On the one hand, the legal and practical effect of Division 5 needs to be assessed in order to address the submissions of the appellant and the amicus that the regulation infringes EHRR inmates' rights to choose their legal practitioner and have privileged communications. On the other hand, where there is a constructional choice, a construction which results in validity is to be preferred to one which results in invalidity.
The approach to be taken in cases where the construction and validity of primary legislation are both in issue was described in Doyle's Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246 at [65] by reference to Commissioner of Australian Federal Police v Elzein (2017) 94 NSWLR 700; [2017] NSWCA 142 at [26] and Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [72]: "The approach to be taken in such a case is inevitably iterative: commence with construction, assess whether so construed the statute contravenes a constitutional constraint, and if so, consider whether it can be read down or whether a different construction should be preferred."
Much the same approach obtains where the construction and validity of delegated legislation is in issue. Sections 31 and 32 of the Interpretation Act 1987 (NSW) confirm this. Those sections relevantly provide: "31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament (1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament. (2) If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament - (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. … 32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made - (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected."
Both sections incorporate (in materially identical language) the principle which favours a construction which does not exceed legislative power (s 31(1)) and the regulation-making power (s 32(1)). Both sections also enact a reading-down rule which preserves so much of the provision or so much of its application as is within power (ss 31(2), 32(2); it will be necessary to return to the operation of the latter below). The interpretative command to favour a construction which is within power accords with Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33 at [28] and the cases there cited (in the case of legislation) and Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133; [1999] HCA 62 at [229], [230] and [408] and the cases there cited (in the case of regulations). However, the reading-down mandated by s 31(2) and s 32(2) is contrary to the presumptions at common law that statutes may only be read down by applying a "blue pencil" test and only if doing so does not effect a change to the substantial purpose and effect of the provision (Harrington v Lowe (1996) 190 CLR 311 at 326; [1996] HCA 8) and that regulations are to be read as an indivisible whole: Ruhani v Director of Police (No 2) (2005) 222 CLR 580; [2005] HCA 43 at [20].
One minor difference between the interaction between construction and validity in the cases of primary and delegated legislation is that insofar as there is a broad constraint against unnecessarily determining constitutional questions when the validity of a statute is in issue (see Lambert v Weichelt (1954) 28 ALJ 282 at 283 and numerous cases applying the principle of restraint embodied in it including Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 at [32]), that is diminished when the issue is merely whether delegated legislation is ultra vires. Courts have been reviewing and striking down delegated legislation for many centuries longer than primary legislation has been struck down as unconstitutional. One of the origins of judicial review is the review of the by-laws of boroughs, town corporations, incorporated guilds and livery companies, as Professor Bilder has explained in detail: M Bilder, "The Corporate Origins of Judicial Review" 116 Yale Law Journal 502 at 518-535 (2006). Judicial review of delegated legislation is not only much older, it is also much less drastic. Many findings of invalidity of a regulation may be cured by redrafting, and if not, the absence of power can always be cured by ordinary legislation amending the regulation-making power or confirming the regulation's validity. Even so, questions of validity can only be considered after at least a tentative conclusion as to the construction of the regulation has been reached. In the present case, there is an important threshold question of construction.

[28]

Threshold question of construction: the interaction between cl 92 and cl 82

A threshold question of construction of the CAS Regulation is whether visits by legal practitioners are regulated under Division 4 at all. The respondents emphasised the words of cl 92 which introduce Division 4 ("This Division applies to all visits under Division 1, 2 or 3") as the primary reason for the special provision in cl 82 entitling an inmate to be visited by the inmate's legal practitioner being subject to the general conditions in Division 4. But the position is more complex. That is because the respondents conceded that at least in one respect, namely, cl 101, the generally worded regulation within Division 4 had to be construed as excluding lawyers. Mr Emmett SC conceded that the general command in cl 101(3) that "in any case, a visit to an extreme high risk restricted inmate must take place within the hearing of a correctional officer" could not be regarded as applying to a conference between lawyer and client. That concession was properly made. Of the essence of a meeting between a legal practitioner and an EHRR inmate for whom the legal practitioner is acting is that there can be confidential exchanges between them. If cl 101(3) applied to a visit by an inmate's lawyer, there could be no confidential communications. That concession carries with it the consequence that cl 92 does not bear its literal meaning.
If the construction for which the appellant and amicus contend is correct, then none of Division 4 qualifies the entitlement to a lawyer conferred by cl 82. But cl 103 must apply to visits by legal practitioners. The subject matter of that clause is legal documents, and cl 103(2) refers in terms to meetings between an inmate and the inmate's legal practitioner and the taking of documents or recorded material into the centre for the purpose of discussing or transacting legal business. That is to say, cl 103 would have no operation at all if visits by legal practitioners were not within its scope. Thus cl 103 is inconsistent with a construction of cl 82 which excludes the whole of Division 4 from applying to visits by legal practitioners.
The balance of the clauses in Division 4 are generally expressed, and are capable of applying to all visitors including legal practitioners. Save for cl 101, the application of the provisions in Division 4 are not wholly destructive of the basic incidents of the lawyer/client relationship.
The joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 said at [70]: "A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions." [footnote omitted]
When the entirety of the Part is read harmoniously so as best to give effect to the purpose and language of all its provisions, Division 4 is to be understood as applying universally, including to visits by legal practitioners, save that cl 101 does not apply to a visit by a legal practitioner to an EHRR inmate. I reach that result by the following reasoning.
There is a conflict between cl 82 if it means that visits by legal practitioners are otherwise unregulated, and cl 92 which deals with the hierarchy of provisions and uses clear language to control the entirety of the entitlements conferred in Divisions 1, 2 and 3 including cl 82. If cl 82 has the broad meaning for which the appellant contends, it is irreconcilable with cl 92. That conflict is resolved by noticing that cl 82 is located in Division 2, as one of a series of provisions which commence with the words "In addition to any other visit authorised by this Regulation". The effect of those words is that such "special visits" do not eat into the limited number of visits to which the inmate is otherwise entitled. That is to say, cl 82 is not concerned with conferring a special entitlement of unqualified visitation by legal practitioners, but rather is merely directed to ensuring that a visit by a legal practitioner does not contribute to the total number of visits an inmate may enjoy from family and friends. That accords with the ordinary meaning of cl 82, and with the ordinary meaning of cl 92 which subjects it to the provisions of Division 4. It is reinforced by the facts that cl 94 specifically applies to EHRR inmates, and earlier forms of the regulation (cl 81 of the Crimes (Administration of Sentences) Regulation 2001 and cl 92 of the Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995) contained counterparts to cl 82 but not to cl 92.
On this approach, Division 4 including cl 94 applies to Divisions 1, 2 and 3, including visits by legal practitioners. As the respondents acknowledged, there is a difficulty with cl 101, which cannot be construed as applying to a visit by a legal practitioner. That conclusion may be reached by observing that cl 101 is solely addressed to conversations between an EHRR inmate and a visitor being in English and monitored, and that is inapplicable to the case where the visitor is that inmate's lawyer, in the same way that a prohibition against vehicles in a park is inapplicable to an ambulance summoned in an emergency: despite the ambulance being literally a "vehicle", it is clear that it is outside the legal meaning of the prohibition. Even seemingly clear legislative commands have a penumbra of uncertainty, as Hart famously observed. Such a construction falls within the constraints stated in Esso Australia Pty Ltd v The Australian Workers' Union (2017) 263 CLR 551; [2017] HCA 54 at [52], namely, construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended it to have. But if that is wrong, an alternative approach is to note the dispensation power in s 101(4), and to treat an approval by the Commissioner of a legal practitioner under cl 94(1) to visit an EHRR inmate as carrying with it an authorisation under cl 101(4) to have a meeting which does not take place within the hearing of a correctional officer. There will be many, perhaps most, visits by legal practitioners to their clients which will involve confidential communications, and in that context it scarcely strains the provisions to regard the approval for such a visit to carry with it permission to have a private conversation. On either approach, a sensible harmonious operation is given to the provisions as a whole.
There are other peculiarities in the drafting of the CAS Regulation, as the appellant pointed out. For example, the effect of cl 78(2) is that the Minister, a Visitor, a Judge, a member of the Review Council and some others including "any person in the exercise of a power conferred by or under an Act" do not require the prior approval of the Commissioner to visit a correctional centre. In particular, there is on one view some awkwardness in the application of the regulations to legal practitioners who are employed by exempt bodies such as the Legal Aid Commission. But save to reject the appellant's submission that a legal practitioner visiting a client is not "a person in the exercise of a power conferred by or under an Act" for the purposes of cl 78(2)(f) (because the practitioner is permitted to practise by reason of satisfying the requirements of the Legal Profession Uniform Law (NSW) but is not exercising any power conferred by any statute) it is unnecessary to address those issues.
I shall return to cl 119 when dealing with the "drop-in policy", but it is convenient to note that cll 119(4) and (6), on which the primary judge relied in order to affirm the validity of the drop-in policy, are relevantly different from cl 101. Clause 101 applies to the entirety of a visit, requiring it to be conducted within the hearing of an officer. Subclause 119(4) confers a power to terminate a telephone call, and subcl (6) requires the communication to be in English. As the drop-in policy itself discloses, those powers may be exercised, and the requirement of speaking only in English and only to the nominated person enforced, by a regime which falls well short of monitoring the entirety of the conversation. Indeed, the Commissioner's case was that the conversation remained privileged. There is no reason why as a matter of construction cl 119 does not apply to legal practitioners.

[30]

(a) criminal record check

Consenting to a criminal record check involves filling out a form and providing various forms of identification. It is not onerous as a matter of practice. It may take time to complete and to be processed, but that of itself is unlikely to be a matter which materially impinges on an EHRR inmate's rights. It also involves an intrusion into the privacy of the legal practitioner, but there is nothing confidential about a criminal history or the fact that someone has been charged with an offence, still less in the case of a legal practitioner who is required to disclose such information in order to be admitted to practice. If as may be expected of a member of a profession who is required to be of good fame and character there is no relevant criminal history, then the power to refuse permission to visit the inmate based on the criminal history will not be available.
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.
I do not accept the amicus' submissions that the requirement that a legal practitioner consent to a criminal record inquiry is unnecessary because the legal profession is already regulated. For one thing, relevant information may appear on a criminal record inquiry that has not yet become known to the relevant professional regulatory body, or the body may not have acted upon it. However, and more fundamentally, whether the requirement is necessary or unnecessary is not to the point. It is no part of this Court's function to judge the appropriateness of the measure. The only issue is the question of law whether cl 94 if it extends to visits by lawyers to their clients who are EHRR inmates is authorised by the regulation-making power.
Ultimately the onus lies with the appellant to establish a material impact upon his right to the lawyer of his choice. The appellant produced no evidence to that effect. True it is that three solicitors he wished to see declined to consent to a criminal record check. The respondents noted, referring to Abbas v NSW Commissioner of Police [2019] NSWSC 1841, that one had been charged with offences including being an accessory after the fact to murder, but there was no evidence of how any materially impacted upon the appellant's representation, and indeed the appellant was joined as a plaintiff in the decision referred to above, where he was represented by the same solicitor who acted for him at first instance in the litigation giving rise to this appeal.

[31]

(b) for any other reason

The remaining aspect of cl 94, which turns on the words "or for any other reason", falls into a different category. Those are very broad words. When considered separately from the power to refuse permission based on a criminal record inquiry, they amount to "for any reason". They are in marked contrast with the language in cll 104 and 108 which confer powers to terminate visits or bar persons in circumstances which would, inter alia, "prejudice the good order and security of the correctional centre". That is not to say that the Commissioner's decision to refuse to approve "for any other reason" is entirely unfettered. The Commissioner's decision is susceptible to judicial review on ordinary principles, as occurred when the Commissioner exercised a similar power in Nicopoulos.
While not unfettered, such a broad power cuts across the basic right of a person to the legal representative of his or her choice. The power could prima facie be exercised to refuse permission to a legal practitioner who had acted with success for an inmate in proceedings against the State or against a prison officer.
Even so the power does not entirely abrogate the right to representation by the inmate's chosen lawyer. An inmate can still retain, communicate with and instruct the lawyer of his or her choice. The effect of cl 94 is merely that lawyer and client may not meet face-to-face unless approval is given.
However, the context in which the CAS Regulation applies is that an EHRR inmate may well be facing serious criminal charges for offending (whether alleged to have been committed prior to being imprisoned, or during imprisonment it does not matter). The prospect of serious criminal charges is a necessary concomitant of the opinion which resulted in the inmate's classification as EHRR.
When a person faces serious criminal charges, there are many occasions when a face-to-face conference is highly advantageous and close to being practically essential. It is not merely that a face-to-face conference is apt to be more efficient, and less prone to misunderstandings. It is easier to build a relationship of trust and confidence in a face-to-face conference. It is substantially easier to obtain instructions about photographs or audio recordings served as part of the Crown case in a face-to-face conference. Most practitioners would prefer to have had a face-to-face conference before advising whether an inmate who pleads "not guilty" should give evidence, such advice necessarily incorporating an assessment of how a jury will view the inmate's cross-examination. Obvious and substantial disadvantages accompany any form of communication other than face-to-face, even if there were ideal technology and complete privacy (which there is not). True it is, as the respondents submitted, that technology has substantially eroded the need for physical visits in many cases, but the respondents nonetheless added, correctly, that they "do not wish to downplay the value of face-to-face communication with one's lawyer".
Another way of making this point is that a legal practitioner who has been approved by the Commissioner to visit an EHRR inmate is in a significantly advantageous position compared to a legal practitioner who can only communicate with an EHRR inmate in writing or remotely. The inmate may nonetheless choose to retain the latter, but doing so carries with it a significant disadvantage.
For those reasons, I would hold that cl 94, if it applies to lawyers, does not materially impact upon an EHRR inmate's right to the lawyer of his or her own choice insofar as a lawyer wishing to visit the inmate must consent to a criminal record check, but insofar as cl 94 confers a power to refuse to permit a visit "for any other reason", it does substantially impact upon an EHRR inmate's right to the lawyer of his or her own choice.

[32]

The regulation-making power

Clause 94 is not a provision in a statute enacted by the Legislature. It is only valid if it falls within the power conferred on the Governor to make the regulation. It is necessary to consider "[t]he true nature and purpose of the power" to make the regulation: Williams v Melbourne Corporation (1933) 49 CLR 142 at 155; [1933] HCA 56. That is not entirely straightforward, although exchanges during the hearing clarified the position.
Three separate sections in the Crimes (Administration of Sentences) Act deal with regulations. They are ss 79, 271 and 271A. Section 79 deals in considerable detail with some 33 separate paragraphs, some with some sub-paragraphs, of "matters". For the purposes of this appeal, particular attention was placed on (a), (i), (j), and (k). The section relevantly provides: "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, … (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, …"
Sections 271 and 271A are as follows: "271 Regulations (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient for carrying out or giving effect to this Act. (2) A regulation may create an offence punishable by a penalty not exceeding 20 penalty units. 271A Regulations relating to high risk offenders (1) The regulations may provide for the preparation and implementation of plans of management in respect of persons who are high risk offenders, and the provision of services and programs in respect of those persons, by Corrective Services NSW. (2) The regulations may confer functions on the Review Council in respect of high risk offenders. (3) A person is a high risk offender if - (a) the person is the subject of an extended supervision order, interim supervision order, continuing detention order, interim detention order or emergency detention order under the Crimes (High Risk Offenders) Act 2006, or (b) the person is the subject of an extended supervision order, interim supervision order, continuing detention order, interim detention order or emergency detention order under the Terrorism (High Risk Offenders) Act 2017, or (c) the person is a Commonwealth post sentence terrorism inmate."
Only one of those three sections confers a regulation-making power. Sections 79 and 271A identify a number of matters in respect of which it is stated that the regulations may make provision. Section 271, in contrast, authorises the Governor to make regulations, with the scope of the power delineated in part by "with respect to any matter that by this Act is required or permitted to be prescribed". Thus ss 79 and 271A provide content as to the matters which may be the subject of regulations made under s 271. I did not understand that there was, ultimately, any dispute about this.
Secondly, in addition to matters identified in the Act, the regulation-making power extends to matters that are necessary or convenient for carrying out or giving effect to the Act. As the amicus pointed out, it is not a purposive power, which is of significance for some of the submissions directed to the principles imposing limits upon it.
Thirdly, the power in s 271 is subject to a qualification that the regulations be "not inconsistent with this Act". Some of the appellant's submissions relied on this qualification.
Fourthly, although the respondents placed reliance on the context in which the regulations were made, namely correctional centres with predictable difficulties with security and discipline, it is likewise readily contemplatable that many of the inmates would require legal services and communications with lawyers. Yet for all of the attention given to visits and telephone calls and physical communications by letter or parcel involving inmates, not to mention the separate treatment of lawyers in many of the regulations, no express reference is made to legal privilege or to the right to a lawyer of one's choice.

[33]

Is cl 94 authorised by the regulation-making power?

It is convenient to dispose of two preliminary submissions at the outset.
First, I do not accept the appellant's submission that cl 94 was inconsistent with a provision of the statute, and for that reason invalid. An inmate's entitlement to be represented by an Australian legal practitioner in the hearing of a charge by a visiting magistrate in s 55(4) is readily reconcilable with a power to refuse to allow a particular legal practitioner to visit the inmate, and indeed s 55(5C) which expressly authorises audio-visual communications compels the conclusion that s 55 is directed to the broader subject matter of legal representation, rather than physical visits by legal representatives. Section 190 refers to proceedings before the Parole Board, and ss 21(4) and 204 to proceedings before the Serious Offenders Review Council, and do not take the analysis much further. The provisions on which the appellant relies in support of the proposition that cl 94 is inconsistent with the Act are directed to narrow classes of administrative hearings within the correctional centre, and they fall short of creating an entitlement to a particular lawyer chosen by the inmate, as opposed to legal representation generally. They are not directed to court proceedings which are apt to be an occasion for legal practitioners seeking to visit the centre.
Accordingly, the 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.
But the substance of the appeal concerns those aspects of cl 94 (and the "drop-in policy") which do have a material impact upon an EHRR inmate's rights.
Secondly, some of the submissions advanced in support of the appellant seemed to insist that only express language could authorise the making of regulations which detracted from important common law rights. To the extent that those submissions were made, I would not accept them. I accept that a regulation-making power is in principle capable of sustaining regulations which materially detract from the right to a lawyer of one's choice and the right to privileged communications with that lawyer. That is so notwithstanding that in Coco v The Queen (1994) 179 CLR 427 at 436; [1994] HCA 15 Mason CJ, Brennan, Gaudron and McHugh JJ reproduced a statement by Lord Bridge of Harwich in Raymond v Honey at 14 that "a citizen's right to unimpeded access to the courts can only be taken away by express enactment". I do not think that this amounts to the endorsement in this country that nothing short of express language in primary legislation is required. The joint judgment proceeded to consider other decisions emphasising the need for clear language before there is an impact upon fundamental rights, and returned at 438 to explain that there was scope, albeit quite limited scope, for this to occur by way of necessary implication: "The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasize that the test is a very stringent one. As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope."
The ultimate question is whether a power to refuse to approve a visit by a legal practitioner for any reason, which extends to refusing to approve a visit by an EHRR inmate's chosen legal practitioner, is authorised by the regulation-making power. The "fundamental question is whether the delegated legislation is within the scope of what Parliament intended when enacting the statute which empowers the subordinate authority to make certain laws": Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 577; Attorney-General (South Australia) v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3 at [118].
Many submissions were directed to the principle of legality. The respondents sought to downplay its significance in this appeal, based on what had been said in Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [314]: "The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked". I do not agree with this submission. The issue is the construction of legislation which is directed to the curtailment of the right to physical liberty and in particular whether that regime necessarily curtails a different right, namely, the right to an inmate's chosen lawyer.
However, the respondents also pointed, correctly, to the statements of this Court in Elliott at [35] and [40] that it is incorrect to say that the clear statement principle has any overriding operation and that it remains necessary to give effect to the text of the statute, read in context and having regard to its apparent purpose.
Elliott also confirms that the principle for determining the validity of delegated legislation is Attorney-General (South Australia) v Adelaide City Corporation. On this issue, and on the significance of the judgments of French CJ and Heydon J in that decision, and of the Full Federal Court in Evans v State of New South Wales (2008) 168 FCR 576; [2008] FCAFC 130, I have been assisted by an article by D Meagher and M Groves, "The Common Law Principle of Legality and Secondary Legislation" (2016) 39(2) UNSWLJ 450.
French CJ invoked the principle of legality in an examination of whether the by-law in Attorney-General (South Australia) v Adelaide City Corporation was a "reasonable and proportionate, and therefore valid, exercise of the by-law making power" (at [43]). However, Hayne J (with whom in this respect Bell J agreed) rejected any recourse to whether the by-law was a reasonable or proportionate response, endorsing in a passage at [122]-[123] the approach taken by Brennan J in South Australia v Tanner (1989) 166 CLR 161 at 178-179. Crennan and Kiefel JJ favoured an approach which appealed to proportionality (at [201]) but their Honours proceeded directly to examine the implied freedom in respect of political communication. It may be noted that the rule-making power in issue was a purposive power (see at [10]) to which proportionality reasoning may have been more apt. In Orellana-Fuentes v Standard Knitting Mills Pty Ltd at [104] the point was made that the regulation making power in that appeal was not a purposive power such as that considered in Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4, but rather raised the question "whether there is a real and substantial connection between the delegated legislation and the subject matter of the grant of power". Section 271 of the Crimes (Administration of Sentences) Act is a broadly worded regulation-making power, not expressed in terms of purpose.
Heydon J's conclusion was that the by-law making power was expressed in words which were "too general, ambiguous and uncertain to grant a power to make by-laws having the adverse effect on free speech of the challenged clauses": at [158], and for that reason his Honour did not reach the implied freedom. He dissented in the result. Nonetheless, that approach resembles the reasoning in Patsalis summarised above.
The reasoning in Patsalis also resembles the approach taken by a Full Court of the Federal Court in Evans at [67]-[84], where a regulation-making power expressed in terms of "regulating ... the conduct of the public" was held not to authorise a regulation preventing the exercise of free speech that amounted to expressions of opinion which neither disrupted nor interfered with the freedoms of others and which were not objectively offensive in the sense traditionally used in State criminal activities: at [83]. The regulation conferred a power to direct a person in a declared area to cease engaging in conduct that "causes annoyance or inconvenience to participants in a World Youth Day event", with failure to comply with a direction without reasonable cause being an offence. The Court concluded at [83] that "Breach of this provision as drafted affects freedom of speech in a way that, in our opinion, is not supported by the statutory power conferred by s 58 properly construed".
Just as in Patsalis, the Full Court read down the effect of general words upon basal common law rights. Evans is especially apt, insofar as it concerns a generally worded regulation-making power.
Applying the principles summarised above to the non-purposive regulation-making power conferred by s 271, the approach in Evans accords with the general presumption of non-interference stated in this Court in Patsalis. It may fairly be said that a regulation which reserves to the Commissioner a broad right to deny EHRR inmates face-to-face access to the legal practitioner of their choice is not comprehended by the general words of s 271 authorising regulations for conditions upon visitors.
The context of prison regulation, and in particular the regulation of EHRR inmates, is that there may be expected to be legal practitioners visiting EHRR inmates for the purposes of defending serious criminal charges, or appealing from their convictions of serious criminal charges. That context brings the right to a lawyer of one's own choice, with whom an inmate can have a legally privileged confidential conference, to the forefront. Yet absent from the long list of subject matters enumerated in s 79(1) is any power to impair either of those important rights. Nor does s 271A (which is specific in relation to high risk inmates) go further to authorise regulations applicable to EHRR inmates which materially detract from their right to legal representation of their choice. That is in circumstances where, as Ms Gleeson who appeared as amicus submitted, the regulation-making power descends to details such as the way in which face coverings may be removed to confirm a visitor's identity. In short, the absence of any conferral of power to make regulations which materially diminish an inmate's right to the lawyer of his or her choice is conspicuous.
Further submissions were made based on the objects of the Crimes (Administration of Sentences) Act, which commence in s 2A(1)(a) with ensuring that "those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment". It was said to be foreign to that purpose to curtail inmates' rights to the lawyer of their choice and to privileged communications with that lawyer. EHRR inmates are among those most likely to require legal representation. The submission is not free from difficulty because of s 2A(3), which provides that "Nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings". If that subsection bears its literal meaning, it is self-defeating: regard cannot be had to the section including subsection (3), and so it can be safely put to one side. If s 2A(3) is given a correcting meaning, so that it is understood as meaning that "nothing in s 2A(1) or (2) ... can be taken into account in any civil proceeding" then it raises a large question whether one provision of a statute can dictate the answer to a question of statutory construction. That was not the subject of argument, but I incline to the view that s 2A(3) falls within the description given in John Holland Pty Ltd v Victorian WorkCover Authority (2009) 239 CLR 518; [2009] HCA 45 at [20], namely, "a statement of intention which informs the construction of the Act as a whole" but which cannot be dispositive of the issue. The process of statutory construction requires regard to be had to the whole of the text and the context, and the insertion of a statement of conclusion such as s 2A(3), while material to the analysis, cannot be dispositive. The position is no different in private law. Thus even if parties by their contract agree that nothing gives rise to a relationship of employment, that cannot be dispositive: Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 at [58]. It is not necessary to analyse this point any further. No differently from most issues of statutory construction, this appeal does not turn on considerations of general purpose, but rather upon the text of the provisions in their context, and the application of settled principles of statutory construction.
For those reasons, although the regulation-making power is not confined to the subject matters in s 79 but extends to matters which are necessary or convenient for carrying out or giving effect to the statute, that power is not to be construed as authorising a regulation which materially cuts down the right to a lawyer of one's choice.

[35]

Is the drop-in policy authorised?

The reasoning of the primary judge upholding the validity of the drop-in policy had two components. The first was that the drop-in policy was authorised as a necessary concomitant of the power to terminate a call. That may have reflected the way submissions were advanced at first instance, or alternatively it may have relied upon his Honour's earlier conclusion as to the validity of clauses which applied to legal practitioners. However, it was clear in this Court that whether cl 119(6) applied to telephone calls between EHRR inmates and their legal practitioners at all, and if so whether it was valid, were both in issue. Further, the Commissioner conceded that cl 119(6) fell short of expressly authorising the drop-in policy.
The second component was the analogy with checking papers for contraband. In substance, this amounted to an acceptance that there was insufficient interference with an EHRR inmate's right to a confidential conference with his or her lawyer. But I am unable to agree that the position is analogous, and I think the drop-in policy does materially invade lawyer/client confidentiality.
First, as the appellant emphasised, the call might be monitored for some period of time. It would be necessary to wait until the EHRR inmate had ceased speaking and the legal practitioner had spoken sufficiently to confirm the latter's identity, and this might take a while, perhaps a minute.
Secondly, knowledge that the conversation was monitored and any part of it might be heard by an officer was apt to have a chilling effect on what was said.
I would accept that the process of "dropping-in" as described in the evidence may be as minimally intrusive as may be devised. There is a superficial resemblance with examining papers for contraband. However, there is a world of difference between examining papers in order to search for contraband articles, and listening to a conversation for the purpose of identifying the language and participants. The former can be done without reading the papers. The latter cannot be done without listening to the words being spoken. That is why, as the appellant and amicus submitted, the drop-in policy is a substantial impairment of the right to provide confidential, privileged instructions to, and to receive confidential, privileged advice from, a legal practitioner.
Recognition of those as important common law rights (or, more precisely, immunities) is even more recent than the recognition of the right to a lawyer, as explained in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49, but the position now is well settled. As the joint judgment in that appeal stated at [11]: "Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect."
Thus the generally worded power in s 155 of the Trade Practices Act 1974 (Cth) was held not to defeat a recipient of a notice from refusing to produce documents on the ground of legal professional privilege.
Clause 119(6) does not operate to authorise a practice which amounts to a material infringement of confidentiality between an EHRR inmate and his or her lawyer. It is one thing to mandate English, but it is another thing entirely to listen covertly to portions of a conversation between client and lawyer, even if the client and lawyer are aware that that will happen. In any event, in order to authorise listening to a confidential conversation between client and lawyer, clear language or a necessary implication is required. For the reasons already given in connection with cl 94, the general regulation-making power in s 271 read with ss 79 and 271A do not authorise such a practice.
The respondents also relied upon four other sources of power to sustain the drop-in policy. One was cl 16 of the CAS Regulation. That regulation provided for the management of high security risk inmates including EHRR inmates, authorising the making of determinations with respect to, inter alia, "any additional security arrangements to be imposed in respect of high security, extreme high security, extreme high risk restricted and national security interest inmates" and "any other matter that is relevant to the management of high security, extreme high security, extreme high risk restricted and national security interest inmates". However, that regulation likewise falls short of justifying a policy which is a substantial impairment of the ordinary right to provide confidential, privileged instructions to, and to receive confidential, privileged advice from, a legal practitioner. And, once again, cl 16 is not sustained by a regulation-making power which authorises a substantial curtailment of the confidentiality between EHRR inmate and his or her lawyer.
The respondents also pointed to three sections in the Crimes (Administration of Sentences) Act: ss 235B, 232 and 235 to sustain the drop-in policy.
Section 235B does not assist. That is a power to give instructions "with respect to the management and control of Corrective Services NSW". As the appellant and amicus submitted, s 235B does not extend to the carrying out of the drop-in policy. "Corrective Services NSW" is defined in s 3 of the Act as "that part of the Department of Justice comprising the group of staff who are principally involved in the administration of this Act". The drop-in policy is directed at the circumstances in which EHRR inmates are entitled to make phone calls, not at the management and control of corrective services staff.
The respondents also relied on ss 232(1) and 235(1) and (2) as sources of power for the policy. Those sections relevantly provide: "232 Commissioner (1) The Commissioner - (a) has the care, direction, control and management of all correctional complexes, correctional centres and residential facilities, and (a1) has the care, control and management of all offenders who are held in custody in accordance with Part 2 or 3, and (b) has all other functions conferred or imposed on the Commissioner by or under this or any other Act or law. … 235 Functions of correctional officers (1) The functions of the various ranks and classes of correctional officers are to be as determined from time to time by the Commissioner. (2) Commissioned correctional officers must at all times exercise their functions in connection with the administration and management of correctional complexes and correctional centres in such manner as the Commissioner, having regard to current circumstances, may from time to time direct. …"
Those provisions are all expressed in broad terms and confer a wide range of functions. But once again, they fall short of authorising, either expressly or by necessary implication, a practice which significantly impairs the ordinary incidents of an EHRR inmate's confidential communications with his or her legal practitioner. There are no clear or express words authorising an abrogation of the right to legal professional privilege.
Accordingly, for substantially the same reasons given in relation to whether cl 94 authorises the Commissioner to refuse a visit by an EHRR inmate's lawyer "for any other reason", I do not consider that there is power to monitor a conversation between an EHRR inmate and the inmate's lawyer.

[36]

Reading down

For those reasons, cl 94 does not validly authorise the Commissioner to refuse to approve a visit by a legal practitioner "for any other reason". Nor does cl 119(6) or any other source of power authorise the "drop-in" policy insofar as it applies to telephone conversations between an EHRR inmate and his or her legal practitioner. I am not unconscious of the difficulties and risks of managing EHRR inmates, and in particular of the risks presented by meetings and conversations with lawyers retained on their behalf. The essential difficulty faced by the respondents is that the measures which the appellant impugns are not contained in legislation, but in a regulation and a practice, the measures have a significant effect on the rights of an EHRR inmate to a lawyer of their choice and to have confidential communications with that lawyer, and the legislation falls short of authorising any such curtailment of those rights.
It is necessary to turn to s 32(2) of the Interpretation Act. Clause 94 is not expressed in general terms which can lead to difficulties in reading down, as observed in Victoria v Commonwealth (1996) 187 CLR 416 at 502; [1996] HCA 56 and APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 at [92]-[95] and [369]-[370]. Insofar as cl 94(3) is expressed "on the basis of a criminal record check or for any other reason", it lends itself to reading down at common law by a "blue pencil" test, and may readily be read down pursuant to s 32(2). Insofar as cl 94(3) is invalid in its application to legal practitioners, then s 32(2) authorises a construction whereby the words "or for any other reason" do not apply to visitors who are legal practitioners. The result of the application of s 32(2) is that cl 94(3) applies in its terms to all visitors save for legal practitioners, but in its application to legal practitioners is to be read down so that the words "or for any other reason" are omitted.
Turning to the drop-in policy, cl 119 does not sustain the policy, but the clause itself is not invalid, and does not require reading down in accordance with s 32(2). The policy itself is not lawful insofar as it extends to telephone and AVL conversations between EHRR inmates and their lawyers, but s 32 of the Interpretation Act does not apply to policies and practices of the Commissioner.
The appeal should be allowed on these issues and the orders dismissing the judicial review proceeding should be set aside. I shall address the appropriate declaratory relief in the orders I propose.

[38]

The reasoning of the primary judge

The primary judge reproduced the agreed facts in this proceeding, including: "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."
His Honour also reproduced references in the written submissions to "the right to speak to members of his family during visits in the Arabic language" and "the right to speak in a person's language", and the oral submission advanced on the appellant's behalf as follows: "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."
His Honour proceeded on the basis that the right asserted by the appellant was a right to speak and/or express himself in Arabic. His Honour added at [141] 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", observing that it was incumbent upon the plaintiff to clearly articulate the right(s) he asserts.
No complaint was made in this Court that his Honour had unduly narrowly understood the basis of this claim.
The primary judge dismissed this proceeding for two separate reasons. The first turned on what Kenny J had said in Iliafi v Church of Jesus Christ of Latter-Day Saints Australia (2014) 221 FCR 86; [2014] FCAFC 26, which distinguished freedom of expression from the right to use a particular language. Her Honour observed that the use of a particular language may be protected by the right to freedom of expression, although this right could not be equated with a "right to language", and that "the right to freedom of expression does not guarantee 'linguistic freedom as such' or 'guarantee a right to use the language of one's choice' in all circumstances". After summarising some European decisions, the primary judge stated at [152]-[153]: "The decision of Kenny J in Iliafi is authority for the proposition that the right to freedom of expression does not guarantee a right to use the language of one's choice in all circumstances. The common thread to be drawn from the decisions in Ballantyne, Fryske and Guesdon is that in determining whether there are circumstances which do guarantee that right, an important distinction is to be drawn between communications made in a public context and those made in a private context. If the communication falls into the former category, there is no right to use the language of one's choice. It may be otherwise if the communication falls into the latter category. In my view, the application of these principles to the plaintiff's case leads to a conclusion that the right to freedom of opinion and expression does not encompass the right that the plaintiff asserts, namely the right to speak and/or express himself in Arabic in all circumstances, including the circumstance of his being an inmate in a correctional centre. As was the case with the Court in Guesdon, a correctional centre is a public facility operated by the State, a circumstance which can be contrasted with the private contexts considered in Ballantyne and Fryske."
His Honour concluded that the right to freedom of expression did not extend to a right to communicate in all circumstances in the language of one's choice, and did not engage ss 9 or 10 of the Racial Discrimination Act.
Separately from the above, at [160]-[166], his Honour said that the claim under s 9 would fail because cl 101 of the CAS Regulation was not an act based on race, colour, descent or national or ethnic origin, and the claim under s 10 would fail because s 10 conferred no right which was not enjoyed by the appellant because of his individual circumstances. Here, the fact that the appellant was required to speak English arose from the personal circumstances of his being in custody.

[41]

Respondents' submissions

The respondents proceeded on the basis that the appellant's primary submission was his disagreement with the primary judge's conclusion that the appellant's asserted right to communicate in Arabic on phone calls and during visits did not exist as a matter of law and did not engage the operation of ss 9 and 10 of the Racial Discrimination Act.
The respondents submitted that the primary judge was correct in following the decision of the Full Court of the Federal Court in Iliafi, that the right to freedom of expression protected by ss 9 and 10 of the Racial Discrimination Act "cannot be equated with a 'right to language'" and "does not guarantee 'linguistic freedom as such' or 'guarantee a right to use the language of one's choice' in all circumstances", such as in "administrative matters". It was said that the applicant had articulated no reason why the Full Court's conclusion as to the proper construction of Commonwealth legislation was "plainly wrong" and should be followed: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]; [2007] HCA 22.
The respondents submitted that even were a protected right to be "properly articulated and engaged", s 9 of the Racial Discrimination Act did not operate where a burden was imposed in a particular way in accordance with statutory authority, and that any "distinction, exclusion, restriction or preference" imposed by the requirement to speak English was based not on race, colour, descent or national or ethnic origin, but on the "single matter of status as an EHRR inmate". Section 10 was said to have no work to do in circumstances where the reason a person did not enjoy a protected right was because of their personal circumstances or characteristics. Even if the right to speak in one's native tongue could be characterised as a "protected right", in the sense that it was a characteristic of race and therefore a right of the kind encompassed by ss 9 and 10 of the Racial Discrimination Act, the impact on that right was said to flow from Mr Hamzy's desire (not need) to use Arabic in certain circumstances, and not from his race, colour, descent or national or ethnic origin: Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215. In any case, the respondents submitted that the rights protected by ss 9 and 10 of the Racial Discrimination Act did not extend to communications in circumstances where administrative and security constraints required that the State be able to supervise those communications.

[42]

Consideration

As is apparent from Basten JA's judgment, the issues arising on the claims based on the Racial Discrimination Act are of considerable complexity.
Contrary to the respondents' submissions, the reasoning in Iliafi is not a complete answer to this aspect of the appeal. Kenny J's judgment shows an appreciation of nuances in this area and the sophistication of the reasoning, especially in the European decisions which inform the approach to the operation of the "human rights and fundamental freedoms" engaged by s 9. In particular, her Honour explained that, in light of the way argument had been advanced at trial and on appeal, no claim based on the freedom of expression recognised by Art 19 of the International Covenant on Civil and Political Rights had been advanced by Mr Iliafi (at [94]), and rather the appellants' claim was confined to one based on Art 27 which protected minority rights, including language rights, in community with other members of their group. Further, Iliafi was confined to a claim based on s 9 of the Racial Discrimination Act, while this ground of appeal is based on ss 9 and 10.
Nonetheless, the primary judge was correct to dismiss the summons based on the Racial Discrimination Act. Insofar as the appellant relied on s 10, there was no other law which conferred a right enjoyed by persons of another race, colour or national or ethnic origin which, by dint of s 10, could be relied on by the appellant. Insofar as he relied on s 9, there was nothing to suggest that the purpose of the requirement to use English in cll 101, 116 and 119 of the CAS Regulation had anything to do with discrimination, and to be fair I did not understand that to be part of Mr Hamzy's case. I would not accept the respondents' submission that because the requirement was imposed by reason of Mr Hamzy's status as an EHRR inmate, that is an end to a contention that s 9 might apply. It may be that the requirement to use English had a discriminatory effect, capable of engaging s 9, but if so that gives rise to questions of reasonableness, the practical operation of the clauses including their provision for relaxation in particular cases, and the relationship between subsections (1) and (1A). None of those issues was addressed in the proceedings at first instance. For those reasons, this aspect of the appeal must be dismissed.

[43]

Conclusion and orders

For those reasons, the appeal should be allowed in part, insofar as it challenges the dismissal of the proceeding challenging cl 94 and the "drop-in policy" in their application to lawyers retained by EHRR inmates (and a consequential costs order). The appeal should be dismissed insofar as it challenges the dismissal of the proceeding based on the Racial Discrimination Act.
The appellant sought declaratory relief and no other relief. The amicus submitted in writing that more appropriate orders would be framed in terms of prohibition, but did not elaborate upon this. As presently advised, declaratory relief will suffice. There is nothing to suggest that the Commissioner will not adhere to a declaration which binds him and his officers and employees. I also bear in mind that the regulation is apt to be amended, and unless the power in s 11 of the Subordinate Legislation Act 1989 (NSW) is re-exercised in order to postpone its automatic repeal, the entirety of the CAS Regulation will cease to have effect later this year in any event.
It has not been necessary to address the appellant's further submissions impugning cl 94 and the drop-in policy which went beyond what had been renounced at trial by his counsel (including submissions based on Ch III of the Constitution, and the Telecommunications (Interception and Access) Act 1979 (Cth)). It has also not been necessary to address the further evidence sought to be adduced by the appellant. The notice of motion filed 14 September 2021 should be dismissed. No party sought costs.
I propose the following orders. 1. Extend time in which to seek leave to appeal from the judgment of the Common Law Division dated 22 April 2020 until 24 June 2021. 2. Insofar as the summons relates to proceeding 2016/276127, (1) grant leave to appeal and dispense with the rules as to filing and service; (2) allow the appeal in respect of grounds 1, 2, 3 and 4 in the draft notice of appeal dated 28 May 2021; (3) set aside the judgment entered on 22 April 2020 dismissing the proceeding and in lieu thereof, declare that: a. cl 94(3) of the Crimes (Administration of Sentences) Regulation 2014 does not authorise the Commissioner to refuse a visit to an EHRR inmate by a legal practitioner for any reason other than a criminal record check; b. the Commissioner's "drop-in" policy of periodically monitoring telephone calls and AVL access to check whether (i) an EHRR inmate and the other person are speaking English and (ii) the other person is the approved recipient of the call, does not apply to communications between an EHRR inmate and that inmate's legal practitioner; (4) set aside order (1) (as to costs) made on 15 May 2020. 3. Insofar as the appeal is brought from proceeding 2016/276186, (1) grant leave to appeal; and dispense with the rules as to filing and service; (2) dismiss the appeal. 4. Dismiss the notice of motion filed 14 September 2021. 5. No order as to the costs in this Court.

[44]

Endnotes

Crimes (Administration of Sentences) Act 1999 (NSW), s 232.
Hamzy v Commissioner of Corrective Services [2020] NSWSC 414 ("Hamzy").
See [111], [119] and [123] below.
See, eg, European Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention"), Art 10(2).
(1985) 159 CLR 70 at 94; [1985] HCA 11.
Hamzy at [165].
Gerhardy v Brown at 97 (Mason J).
Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 at [105] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215 at [45] per Goldberg and Hely JJ. Footnote in Hamzy at [165].
Hamzy at [165].
(2002) 123 FCR 514; [2002] FCAFC 215 (North, Goldberg and Hely JJ).
(1997) 74 FCR 311 (Tamberlin, Sundberg and Marshall JJ).
Sahak at [37].
Nguyen at 319C.
See also Nguyen at 326-327 (Sundberg J).
(2013) 252 CLR 168; [2013] HCA 28.
[2018] NTCA 4.
See Maloney at [349]-[358]; Wojciech Sadurski, "Gerhardy v Brown v The Concept of Discrimination: Reflections on the Landmark Case that Wasn't" (1986) 11 Syd Law Rev 5.
Above at fn 16.
Maloney at [47] (French CJ), [110] (Hayne J), [139] (Crennan J), [188] (Kiefel J), [253] (Bell J), [375] (Gageler J).
Maloney at [38] (French CJ), [85] (Hayne J), [112] (Crennan J), [229] (Bell J), [379] (Gageler J).
Maloney at [347].
R v Maloney [2012] QCA 105.
Crennan J at [112] agreed with his reasons on this issue.
[2006] ECHR 690 (Application 13600/02, 6 July 2006).
Ibid, p 23.
Ibid, fn 14.
Ibid, p 28.
[2014] ECHR 408 (2nd Section) (No 43750/06 et, al 22 April 2014).
(2014) 58 EHRR 27 at [50]-[59].
Cf European Convention on Human Rights, Art 14.
401 US 424 (1971).
Griggs at 431.
Iliafi v The Church of Jesus Christ of Latter-day Saints Australia (2014) 221 FCR 86; [2014] FCAFC 26 at [44] (Kenny J, Greenwood and Logan JJ agreeing).
[2016] FCA 1457.
(2006) 156 FCR 451; [2006] FCAFC 162.
See Gerhardy v Brown at 121 (Brennan J).
See fn 36.
Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination & Equal Opportunity Law (3rd ed, 2018, The Federation Press) at [5.4.14].
[1979] 2 NZLR 531.
Race Relations Act 1971 (NZ), s 25(1).
King-Ansell at 536.
King-Ansell at 540.
King-Ansell at 543, after referring to a graphic description by Lord Simon of Glaisdale as to why Scotsmen constitute a nation and have retained their national origins.
[1983] 2 AC 548.
Mandla at [562].
Mandla at [563].
(2002) 120 FCR 243; [2002] FCA 1080 at [111]-[112].
[2002] FCAFC 156 at [14].
[2006] NSWCA 372 at [47].
See for example Macedonian Teachers' Association of Victoria Inc. v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489 at 512 (Weinberg J); [1998] FCA 1650.
See for example Maiocchi v Royal Australian and New Zealand College of Psychiatrists (No 4) [2016] FCA 33 at [339]-[340].
Aboriginal Legal Rights Movement Inc v South Australia (No 1) (1995) 64 SASR 551 ("ALRM v South Australia").
Baird at [71].
See fn 51.
Macedonian Teachers' Association at 40-41.
Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49.
(1997) 191 CLR 1; [1997] HCA 30.
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; [1989] HCA 56.
(1996) 68 FCR 46; [1996] FCA 591.
Wotton at [551].
Victoria v Macedonian Teachers' Association of Victoria Inc (1998) 91 FCR 47; [1999] FCA 1287 at [8] (O'Connor, Sundberg and North JJ).
[2016] FCA 33 at [339]-[340].
Hamzy at [165].
Gerhardy v Brown at 122 (Brennan J).
Hamzy at [141].
Hamzy at [144].
See fn 34.
See, eg, Mabo v Queensland (1988) 166 CLR 186 at 217 (Brennan, Toohey and Gaudron JJ), [1988] HCA 69; Gerhardy v Brown at 102 (Mason J), 125-126 (Brennan J); Maloney at [279]-[281], [287], [336] (Gageler J).
Mabo (1988) at 217; Maloney at [9] (French CJ) and [300] (Gageler J).
Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights (3rd ed, 2013, Oxford University Press) at [18.01].
Human Rights Committee, Communication 219/1986; 25 July 1990.
UN Human Rights Committee, Communication 359, 385/1989 (31 March 1993).
See at [68*] above.
Ballantyne at par 11.4.
Iliafi at [3].
Iliafi at [25].
Iliafi at [92].
See United Nations Human Rights Committee, General Comment No 23, par 5.3; Iliafi at [98].
Iliafi at [63].
United Nations Committee on the Elimination of Racial Discrimination, General Recommendation No 20, par 1; Iliafi at [63].
Iliafi at [93].

Hamzy v Commissioner of Corrective Services NSW

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties

Legislation Cited (21)

Cases Cited (111)

Cited By (8)