Haque v Commissioner of Corrective Services

The evidence in the proceedings 9 The plaintiff relied upon his own affidavit dated 13 November 2007 and three affidavits of Ms Southgate dated 8, 9 and 14 November 2007. In respect of Ms Southgate's first affidavit, I was ultimately invited only to read paragraphs 1 to 6. The plaintiff also relied upon four affidavits of Brett Anthony Collins variously dated 12, 14, 15 and 20 November 2007. The defendant objected to Mr Collins' four affidavits in their entirety as being irrelevant. I resolved to read the affidavits of Mr Collins subject to relevance. The plaintiff also relied on the affidavit of Michael Whyte dated 19 November 2007. 10 The defendant relied upon the affidavit of Peter Leonard Brynes of 13 November 2007. None of the deponents to the affidavits were required for cross-examination.

Admissibility of the file note 11 The defendant also sought to tender a file note under the hand of the defendant and said to have been prepared by him on 14 November 2007. It purports to record his reasons for refusing permission to distribute the newsletter as notified to Ms Balgi in his letter to her of 5 November 2007, to the effect that the publication did not in his view contain any information relevant to the forthcoming election and that other material was inaccurate and inflammatory and for these reasons likely to prejudice the good order and security of New South Wales correctional centres. 12 The plaintiff objected to the tender of the file note on the basis that it contained hearsay assertions and did not attract any of the exceptions to the exclusionary rule provided for in Part 3.2 of the Evidence Act 1995. I readily accept that the tender was intended to address that aspect of the plaintiff's written submissions that drew attention to the fact that the defendant's decision to refuse permission to distribute the newsletter was unsupported by reasons. In fact I am satisfied, having regard to the date of the file note, that it was prepared in response to service of the plaintiff's submissions on this issue. In the conduct of his case, the defendant has resolved not to give evidence where the file note might have been further identified by him and the basis upon which it was prepared made clear (evidence which would be both relevant and admissible). Accordingly, if the reasons for the decision under review are to be received in evidence, the file note itself must be admissible. 13 After hearing oral argument on the question of admissibility, and again with what I was given to understand was the urgency attending a decision in the substantive matter with the Federal election pending, I resolved to admit the file note, in effect on a provisional basis, so as to not delay the parties developing the arguments they each foreshadowed in their written submissions. Accordingly, both parties addressed me on the question of whether the relief sought in the summons should be granted on the assumption that the file note was in evidence and the reasons for the defendant refusing permission made patent. 14 On closer analysis, I have come to the view that the file note was not admissible. Were it not for the fact that I have resolved to refuse the plaintiff relief because he has not satisfied me that he has sufficient standing to seek judicial review, I might have invited the parties to file supplementary submissions on the question of admissibility if they wished. Despite the fact that I intend to record in a summary way the decision I would have reached on the substantive questions raised by the summons should my decision on the question of standing be the subject of appellate review, I have decided not to extend that invitation to the parties as I do not regard the lack of any evidence of the reasons for the defendant's decision as decisive. 15 It was common ground that the defendant was not required by statute to provide reasons for his decision. It was also common ground that the plaintiff did not formally request a statement of reasons before commencing the proceedings and that the defendant at no time provided them. I also note that although the matter was before the court on three occasions prior to the hearing, the plaintiff did not seek directions requiring the defendant to supply a written statement of reasons as provided for in paragraph 23 of Practice Note SC CL 3. Paragraph 23 provides relevantly as follows: "Where proceedings have been taken to challenge the decision of a public body or public official, because of the difficulties which at times arise in ascertaining the decision making process and the reasons for the decision, the Court may, at a directions hearing direct the body or person whose decision has been challenged to furnish to the plaintiff within a specified time, a statement in writing setting out the reasons for the decision including findings on material questions of fact referring to the evidence or other material on which those findings were based, the body's or person's understanding of the applicable law and the reasoning processes leading to the decision (compare Administrative Decisions Tribunal Act 1997 (NSW), s 49). Otherwise in appropriate cases, orders may be made for such matters to be ascertained by way of particulars, discovery or interrogatories. Subject to this, orders for discovery or interrogatories will only be made in exceptional cases, and such orders will then generally be confined to particular issues. Evidence in matters in the List is normally by affidavit." 16 The defendant did however produce the file note in response to a Notice to Produce served by the plaintiff in advance of the hearing. From that time the plaintiff was on notice of the defendant's intention to rely upon the file note as evidencing the reasons for the decision under review. The plaintiff's objection to the tender was signalled in advance of the hearing when the matter was before me for mention. 17 In submissions, Mr Zipser, counsel for the plaintiff, frankly conceded that he was unaware of the Practice Note. I assume from this that were he aware of it he might have sought directions of the kind provided for in the Practice Note so as to better advance the plaintiff's case. The fact that he did not, and the fact that no request was made for either further information concerning the file note, or for the defendant to be called as a witness once the plaintiff was aware of the defendant's intention to rely upon it as might have been done utilising s 167 to s 169 of the Evidence Act, is not, however, to the point. What I am concerned with is whether the file note was admissible. 18 Mr Kirk acknowledged that the file note contained previous representations made by the defendant, namely his stated reasons for deciding to refuse permission to distribute the newsletter, and that they were to be relied upon for a hearsay purpose, namely to establish that they were in fact his reasons for so deciding. In this way it was acknowledged that the tender breached the rule against hearsay provided for in s 59 of the Evidence Act. The defendant did not seek to rely upon the exception to the rule against hearsay provided for in s 64 of the Act. The only exception upon which the defendant relied was that provided for in s 69 of the Evidence Act: "(1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or (ii) at any time was or formed part of such a record, and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. (3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or (b) was made in connection with an investigation relating or leading to a criminal proceeding. (4) If: (a) the occurrence of an event of a particular kind is in question, and (b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind, the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event. (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact)." 19 The plaintiff submitted that although the file note might otherwise satisfy the description of a business record as defined in s 69(1), because it was prepared either for the purpose of conducting the current proceedings or in connection or in contemplation of the proceedings, the exception to the exclusionary rule against hearsay in s 69 had no application. The defendant did not seek to persuade me that there was no basis, or no sufficient basis, for me to be satisfied that the file note was in fact prepared by the defendant for the purpose of conducting the current proceedings or in connection with or in contemplation of the proceedings. In the circumstances as I have outlined them above in [12] I am satisfied that this was the case in any event. 20 While it is true that there appears to be tension between the procedure for written reasons to be supplied at the Court's direction in the Practice Note and s 69(3) of the Evidence Act, given that a direction will only ever be made after proceedings have commenced, this does not entitle me to read down the operation of the business records exception to the hearsay rule. The defendant submitted that this tension might be resolved by invoking the operation of s 11 of the Evidence Act. That section provides that: "(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment. (2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected." The defendant submitted that paragraph 23 of the Practice Note in combination with s 11 of the Evidence Act represent a "quasi legislative delineation" of the circumstances in which the Court can admit documentary evidence of the reasons of a decision maker in proceedings involving judicial review in circumstances where objection is taken to the tender of a document containing those reasons and where s 69(3) of the Evidence Act is invoked. As Grove J recognised in R v Richards [2001] NSWCCA 160; 123 A Crim R 14 at [40], the power of the Court to regulate and control the manner in which evidence is presented or elicited at common law was preserved in s 11 following the enactment of the Evidence Act. However, when considering the reach of the discretion inherent in s 11, his Honour held that it did not extend to the rejection of admissible evidence adduced in response to a question or questions that were not improper. By parity of reasoning I do not consider that the discretion extends to admitting hearsay evidence over a proper and principled objection (see also Lane v Jurd (1995) 40 NSWLR 708 at 709). I need only add that it was always open to those conducting the proceedings on the defendant's behalf to obtain evidence of the reasons for his decision in admissible form. The fact that they have not done so means that the defendant's decision falls to be reviewed in the context of there being no evidence of the reasons for it.

Does the plaintiff have standing to challenge the defendant's decision? 21 With the challenge to the plaintiff's standing forecast in advance of the hearing, in order to maintain the proceedings the plaintiff was obliged to demonstrate a sufficient interest in the defendant's decision to refuse permission to distribute the "Federal Election Special" newsletter since it is only in respect of this newsletter that relief is sought. The characterisation of that special interest and the submissions of the parties as to its sufficiency or lack thereof must be assessed by reference to the evidence that bears upon it.

Evidence bearing on the question of standing 22 Although the plaintiff's affidavit is the primary source of evidence upon which the issue of standing is to be resolved, I am of the view that some parts of Mr Collins' affidavits to which objection was taken are at least relevant to the background and context in which the issue of the plaintiff's standing arises although not determinative of it. Those parts concern other newsletters Justice Action has sought to distribute in New South Wales correctional centres since 1999 and the way in which the defendant, or his delegate, has dealt with requests to distribute these newsletters from time to time. While I do not regard those decisions per se as material to the issue of standing, the fact that Justice Action has sometimes succeeded and sometimes not in securing the defendant's permission to distribute the newsletter does have some bearing on the question since the plaintiff relies upon that fact as supportive of his interest in having the "Federal Election Special" distributed. 23 The various newsletters produced by Justice Action, either alone or in association with other groups, have carried at least two different titles since 1999, namely, "Framed" and "Just Us". They have each been produced at irregular intervals. I note that the edition of "Just Us" immediately preceding the "Federal Election Special" edition was produced in July 2005. I also note, although nothing turns upon it, that permission to distribute that edition of the newsletter was also refused. The format of the newsletters since 1999 have been largely consistent. They have included articles, editorials and commentary about matters no doubt thought by Justice Action to be of general interest to prisoners, and in some editions a letters page or a contributors' page including prisoners' works in poetry or prose. 24 A summary of the contents of the four page "Federal Election Special" edition of the newsletter is as follows: (a) On page 1 there is an article entitled "Prisons are today's Terra Nullius" which refers inter alia to the decision in Roach v Electoral Commissioner [2007] HCA 43; 239 ALR 1 and the decision of Human Rights and Equal Opportunity Commission where the Chairman found that the decision of the defendant to refuse distribution was in breach of Article 19 of the International Covenant on Civil and Political Rights. (b) On page 1 there is an article entitled "The Offer of Hope" concerning a prisoner-based initiative where a statement presented to Federal Parliament in 2005 called for "recognition of the humanity of those they torture". (c) On page 2 there is an article entitled "The fate of Napier" where levels of unemployment in Napier, a city in New Zealand, is said to contribute to high levels of incarceration. (d) On pages 2 and 3 there are a number of undated letters from prisoners. The letters include a piece of prose entitled "Cataract Gorge" from a prisoner in Tasmania, a letter from a prisoner in Queensland entitled "Exam Time" which details her dealings with tertiary institutions from custody; and a letter from a prisoner in New South Wales which seeks assistance in addressing a complaint about visiting rights. (e) On page 3 there is an article titled "Australia v Brough" which details the mistreatment alleged to have been suffered by a juvenile inmate at Parklea Correctional Centre held to be in violation of International Covenants by the United Nations but where the New South Wales government refused compensation. It also refers to the failed legislated initiative in the Childrens (Detention Centres) Amendment Bill 2006. (f) On page 3 there is a box providing postal contact details for each of the main parties in the Federal Election entitled "To inform your Vote Contact…" (I note that this is the only reference to the then pending federal election. On any view this is a tangential reference notwithstanding the fact that the edition is headed "Federal Election Special"). (g) On page 4 there is an article titled "Struggle for All Day Visits at Emu Plains". (h) On page 4 there is an article titled "Victory on Prisoner's Voting Rights" again a reference to Roach v Electoral Commissioner. (i) On page 4 there is a box providing contact details for a selection of criminal lawyers in NSW. (j) On page 4 there is a box providing contact details for "Just Us" inviting contributions and encouraging membership.

25 In his affidavit, the plaintiff described Justice Action as an unincorporated association in New South Wales whose objectives are the promotion of community and social justice issues including prisoners' rights. The plaintiff claims membership of Justice Action, as does Mr Collins. There is no evidence before me as to the constitution of Justice Action, its formally stated aims and objectives (if any), its structure or the extent of its membership. There is no evidence as to the length of the plaintiff's membership of Justice Action, although it would seem to extend from 1999 when he received copies of "Framed" as an inmate. There is no evidence as to when he ceased to be an inmate (although it would appear to be at least prior to 2001 when he was interviewed by the ABC in relation to periodic detention) or whether his voluntary involvement with Justice Action from 1999 until 2002, when ill health limited his contribution to what he describes as "casework", was largely from within prison or on his release. Although the plaintiff does not claim to have any current or active caseload he continues, as he describes it, to do what he can to assist. It is not clear what this entails. 26 The voluntary casework with which the plaintiff was involved in the past consisted of assisting individual prisoners or their families who contacted Justice Action with grievances or difficulties encountered by them. For example, with respect to ensuring prisoners received their medication, detailing the options that were available were an inmate to spend too long in solitary confinement or where visitation rights of prisoners and their families were infringed. The plaintiff expressed the view that were he able (with other members of Justice Action) to freely provide prisoners with useful information through a newsletter, many prisoners would not need the assistance of Justice Action thereby enabling him to help those who he considered could not help themselves. He also expressed the view that facilitating communication between prisoners by having their letters published in a newsletter such as "Just Us" might help to promote a means by which prisoners are able to assist one another to deal with the many issues that present as part of prison life thereby alleviating the tensions and frustrations that are commonly experienced by inmates. He also expressed the view that access to the newsletter might better prepare prisoners for their release into the community. 27 I regard it as of particular significance to the resolution of the issue of standing that the plaintiff does not claim to have contributed editorial or other assistance to the production of the "Federal Election Special", or the production of other editions of "Just Us" or "Framed", and does not claim to have read the "Federal Election Special" or to be otherwise familiar with its contents. 28 In identifying the various deficiencies in the plaintiff's evidence, I do not intend to suggest that Justice Action is not a community association genuinely committed to advancing the legitimate rights and concerns of prisoners and their families, or that the plaintiff and Mr Collins do not share these legitimate and laudable objectives. It is simply to observe that as a result I have limited evidence upon which to determine the plaintiff's standing to pursue the specific relief that is sought by summons.

Principles applicable to the question of standing 29 The principles applicable to the resolution of the issue of standing were set out in Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1; 146 CLR 493 where the High Court held that the Foundation was without sufficient standing to challenge inter alia a decision of the government approving a proposal to establish a tourist resort in Queensland. At 526, Gibbs J said: "…the action was not brought by the Foundation to assert a private right. It is brought to prevent what is alleged to be a public wrong. The wrong is not one that causes, or threatens to cause, damage to the Foundation, or that affects, or threatens to affect, the interests of the Foundation in any material way. The Foundation seeks to enforce the public law as a matter of principle, as part of an endeavour to achieve its objects and to uphold the values which it was formed to promote. The question is whether, in these circumstances, it has standing to sue. It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so." 30 His Honour went on to say: "I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails . A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it" (emphasis added) 31 In the same judgment, Mason CJ observed at 548: "In this difficult field there is one proposition which may be stated with certainty. It is that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi in a case of the kind now under consideration . I entirely agree with Gibbs J when he says that "A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi"." (emphasis added) 32 This approach was confirmed in Onus v Alcoa of Australia Ltd [1981] HCA 50; 149 CLR 27. In that case Gibbs CJ said at 35-36: "Moreover, ideal rules as to standing would not fail to take account of the fact that it is desirable, in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings. The principle which has been settled by the courts does attempt a reconciliation between these considerations. That principle was recently stated in Australian Conservation Foundation Inc. v. The Commonwealth [1979] HCA 1; (1980) 146 CLR 493 . A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action (1980) 146 CLR, at pp 530-531, 537, 547-548." 33 In the same case, Stephen J said at 27: "As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter. The present appellants are members of a small community of aboriginal people very long associated with the Portland area; the endangered relics are relics of their ancestors' occupation of that area and possess for their community great cultural and spiritual significance. While Europeans may have cultural difficulty in fully comprehending that significance, the importance of the relics to the appellants and their intimate relationship to the relics readily finds curial acceptance. It is to be distinguished, I think, and will be perceived by courts as different in degree, both in terms of weight and, in particular, in terms of proximity, from that concern which a body of conservationists, however sincere, feels for the environment and its protection. Courts necessarily reflect community values and beliefs, according greater weight to, and perceiving a closer proximity to a plaintiff in the case of, some subject matters than others. The outcome of doing so, however rationalized, will, when no tangible proprietary or possessory rights are in question, tend to be determinative of whether or not such a special interest exists as will be found standing to sue." 34 In recognition of the applicable case law, the plaintiff asserted both a private right to communicate freely with prisoners by means of the newsletter and a special interest in having the newsletter distributed, that is an interest above that of any other member of the community such that the defendant's decision refusing permission affects him to a greater extent than other members of the public.

Does the plaintiff have a private right that has been infringed? 35 The Plaintiff cited Article 19 of the International Covenant on Civil and Political Rights (the "ICCPR") as the source of the right that he asserts is infringed by the defendant's decision. Articles 19(2) and 19(3) provide: "(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 reputations of others; (b) For the protection of national security or of public order ( ordre public ), or of public health or morals." 36 On any proper construction of Article 19, the right to communicate and express oneself freely is not unfettered. I do not regard it as necessary, however, to consider the extent to which s 232 of the Crimes (Administration of Sentences) Act and clauses 48 and 109 of the Regulations made pursuant to the Act might operate to restrict or limit rights of the kind to which the Article refers, since I am not satisfied the plaintiff's desire to communicate via the newsletter with prisoners confers upon him a right under the ICPPR that is recognised by Australian law (see Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273; cf under s 3 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) where the expression "human rights" includes the rights and freedoms recognised in the ICCPR).

Does the plaintiff have a special interest in the "Federal Election Special" newsletter? 37 After undertaking the curial assessment to which Stephen J refers in Onus v Alcoa of Australia Ltd as extracted in paragraph [33] above, I am not satisfied that the plaintiff has established either a sufficiently proximate relationship to the "Federal Election Special" newsletter to maintain the action, or an interest greater than that of others interested in having the newsletter distributed whether they be prisoners or prisoners' families or other interested community agencies or individuals. While I accept that it is not necessary that the plaintiff be uniquely affected by the defendant's decision (since it is likely that there are others whose interests may be affected), I am not satisfied that he has demonstrated a "special interest" as that phrase is understood and applied in the authorities to which I have referred. In addition, while I am conscious of the fact that the formulae for determining standing should not be given a rigid or inflexible meaning, having regard to the deficiencies in the evidence to which I have referred, I can see no principled basis upon which I could come to any other conclusion than the one I have reached. 38 I have also considered Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited [1998] HCA 49; 194 CLR 247 where despite resolving the issue of standing in favour of the applicants by application of the principles in Australian Conservation Foundation Inc v Commonwealth, in the joint judgment of Gaudron, Gummow and Kirby JJ at 257-64, their Honours undertook a lengthy analysis of the shortcomings of the present law relating to standing. Even with the wider gateway to standing that they propose at 263, the plaintiff's right or interest would not qualify for standing either to quash the defendant's refusal of permission to distribute the newsletter or to require him to give such permission.

The grounds for seeking substantive relief 39 Even were the plaintiff to have standing to seek judicial review the defendant submitted that the summons should be dismissed for the following reasons: (a) The defendant's decision was an exercise of power under s 232 of the Crimes (Administration of Sentences) Act and while it is a decision susceptible to judicial review, it was not open to the plaintiff to argue that the defendant had failed to take into account a relevant consideration. In any event, it was submitted the defendant did not fail to take into account any consideration that he was required by statute to take into account; (b) The implied freedom of discussion about government and political matters under the Commonwealth Constitution is a limitation upon legislative power. It was not mandatory for the defendant to give consideration to the implied freedom of discussion under the Constitution and it did not impose upon him an obligation to publicise or distribute the political opinions of others; (c) Because there is no existing statutory obligation upon the defendant to distribute written material of any kind I should not make an order compelling the distribution of the newsletter to inmates; and/or, (d) Even if the plaintiff is otherwise entitled to relief, in the exercise of discretion I should refuse the relief sought in all the circumstances of the case. 40 I propose to deal with each of these submissions in the course of considering the case advanced by the plaintiff. Relevant considerations as contended for by the plaintiff

41 The plaintiff submitted that there were a number of matters of critical importance, each of which it was open for me to find the defendant had failed to take into account when refusing permission to distribute the newsletter. They were as follows: (1) The constitutional principle protecting communications concerning political or government matters; (2) The fundamental right or freedom to communicate with others and to receive communications as recognised in clauses 48 and 109 of the Regulation; (3) The rehabilitation of prisoners; (4) The decision of HREOC dated 23 December 2005 where at p 23 of the report the Commissioner found: "…that the act complained of, namely the banning of the publication "Framed" from distribution to federal prisoners in NSW correctional centres, is inconsistent with or contrary to the human rights of federal prisoners." 42 The defendant submitted that each of these considerations invite me to trespass into the prohibited territory of a merit review. I am mindful of the limits of judicial review as I am of the dangers of allowing expanded concepts of relevant/irrelevant considerations to affect judicial review or allowing an undisciplined approach to assessing their impact on a decision maker. This was averted to by Spiegelman CJ In Bruce v Cole (1998) 45 NSWLR 163 at 186E: "These particular formulations must be treated with care, so that the relevant/irrelevant considerations ground is not expanded to permit review of the merits. That ground is restricted in accordance with the now classic judgment of Mason J in [ Peko-Wallsend ], to matters which the decision maker was obliged to take into account." 43 In Kindimindi Investments Pty Ltd v Lane Cove Council & Anor [2006] NSWCA 23; 143 LGERA 277, Basten JA referred to the Chief Justice's views when considering an argument cast in terms of the decision maker in that case being required to give "proper, genuine and realistic consideration to the merits of the case". In applying that formulation to this case, the plaintiff has urged upon me the necessity for the defendant to have given real and genuine consideration to the fundamental common law rights of a prisoner to receive communications subject only to being satisfied that the good order and security of the correctional centres would be prejudiced or put at risk as a result. The requirement that the decision-maker give "proper, genuine and realistic consideration to the merits of the case" is terminology taken from the judgment of Gummow J in Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, reiterated in Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472 at 483. In referring to this formulation, Basten JA expressed concern that this terminology should not be converted into an assessment of the adequacy of the consideration accorded in a particular case.

44 In circumstances where at common law a decision-maker is not bound to take into account specified matters before making a decision (as is the case here), the question necessarily arises as to whether any mandatory considerations should be implied from the subject matter, scope and purpose of the governing Act or the Regulation passed pursuant to the Act, since it is only where they can be implied that a failure to take them into account can give rise to reviewable error. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24, Mason J elaborated upon that principle in the following way: "The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s 5(2)(b) of the AD(JR) Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions: (a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision : Sean Investments Pty Ltd v MacKellar; CREEDNZ Inc v Governor-General; Ashby v Minister of Immigration . The statement of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation , that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider". (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd , adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury , and Water Conservation and Irrigation Commission (NSW) v Browning . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act."

The legislative scheme 45 It is common ground that the defendant's decision was an exercise of power under s 232 of the Crimes (Administration of Sentences) Act. That section provides: "(1) The Commissioner: (a) has the care, direction, control and management of all correctional complexes, correctional centres and periodic detention centres, and (a1) has the care, control and management of all offenders who are held in custody in accordance with Part 2, 3 or 4, and (b) has all other functions conferred or imposed on the Commissioner by or under this or any other Act or law. (2) In the exercise of the functions referred to in subsection (1) (a), (a1) and (b), the Commissioner is subject to the direction and control of the Minister. (3) The Commissioner may delegate to any person any of the Commissioner's functions, other than this power of delegation. (4) Sections 10 (2), 11 (3), 12 and 17 (4) do not limit the power of the Commissioner to delegate functions under those sections." 46 The Act also confers a regulation making power pursuant to which the Crimes (Administration of Sentences) Regulation 2001 was passed. A number of clauses in the Regulation are of some relevance to the decision under challenge. 47 It is apparent from a cross-reading of clauses 8-11 of the Regulation that on being received into a correctional centre an inmate does not have an unqualified right to bring in or retain written material since all property is surrendered at that time pending a determination by the general manager of the particular correctional centre as to which property might be retained. The Regulation does however provide for inmates to purchase written material and to receive letters or parcels subject to some qualifications. Clause 48 within Division 3 of Part 3 of the Regulation provides: "(1) An inmate may purchase: (a) any book, newspaper or magazine, and (b) any record, cassette or compact disk. (2) Despite subclause (1), the general manager may refuse to allow an inmate to purchase, and may confiscate, any such book, newspaper, magazine, record, cassette or compact disk if of the opinion that it contains: (a) anything that, in the opinion of a nominated officer, is likely to prejudice the good order and security of the correctional centre, or (b) any threatening, offensive, indecent, obscene or abusive written or pictorial matter, or (c) any offensive, indecent or obscene article. (3) Anything confiscated under this clause: (a) is to be dealt with as if it had been surrendered on reception into a correctional centre, or (b) is to be disposed of by the general manager in such a manner as is reasonable in the circumstances (taking into account the nature of the material)."

48 Within Part 4 of the Regulation, clause 107 provides: "(1) Subject to this Division: (a) an inmate may send letters or parcels to, and receive letters or parcels from, any other person, and (b) a letter or parcel sent to or by an inmate is not to be censored. (2) An inmate must not send or receive any letter or parcel otherwise than through the hands of a nominated officer." 49 Clause 109 provides: "(1) The general manager of a correctional centre or a nominated officer may open, inspect and read a letter or parcel sent to or by an inmate and, if it contains prohibited goods, may confiscate the letter or parcel and its contents and deal with them in accordance with the directions of the Commissioner. (2) The inmate is to be informed of the confiscation of any letter, parcel or prohibited goods. (3) A nominated officer may direct that any written or pictorial matter contained in a letter or parcel opened, inspected or read under this clause be copied before the letter or parcel containing the matter is delivered to the addressee. (4) Such a direction may be given only if the nominated officer is of the opinion that the written or pictorial matter to be copied: (a) contains anything likely to prejudice the good order and security of any correctional centre, or (b) is threatening, offensive, indecent, obscene or abusive. (5) This clause does not apply to: (a) any letter or parcel addressed to, or received from, an exempt body or exempt person, or (b) any letter or parcel to which clause 110A applies." 50 Since the newsletter Justice Action sought to be distributed was neither purchased in any relevant sense, as provided for in clause 48, nor sent to an inmate, as provided for in clause 109, neither clause has a direct bearing on the exercise of defendant's power to permit distribution of the newsletter under s 232 of the Act. The plaintiff submitted, however, that the specific matters to which clauses 48 and 108 refer and the scheme provided for in the Regulation generally, are matters to which the defendant should have had regard when considering whether to grant permission to distribute the newsletter because they reflect the legitimate concern of a democratic society that an inmate be permitted to maintain contact with civil society during periods of incarceration by being placed in a position to participate in and communicate with individuals or groups with whom he shares an alliance whether that be for political, cultural or religious objectives. The plaintiff went further and submitted that an inmate's fundamental common law right to freedom of expression and communication, a right said to have been recognised in R v Secretary of State for the Home Department; Ex parte Simms and Another [2000] 2 AC 115, has been ignored by the defendant. 51 Mr Kirk did not submit that an inmate is without civil rights, and, in particular without the right to freedom of speech merely because s/he is imprisoned, but emphasised that such rights are necessarily constrained by imprisonment because of the need to maintain discipline and order in correctional centres. This, it was submitted, is made patent in the legislative scheme to which I have referred. I accept that fundamental rights of inmates in NSW correctional centres are not infringed unless by the express words of statute or by necessary implication (see Herald and Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329 at [67]-[70]), however, the right of an inmate to free expression and communication is not the same right as advanced by the plaintiff in these proceedings, namely its rights as an organisation to communicate with inmates in an unsolicited way, even if that be with the intention of raising an awareness of the shared concerns of inmates and promoting a means of voicing those concerns, irrespective of how linked those interests may appear. In short, the defendant was not obliged to give the same consideration to the plaintiff's interests in having the newsletter distributed as he was to have regard for the inmate's right to freedom of expression and communication. 52 While Mr Kirk placed particular reliance on the limitation Mason J identified in (a) of the judgment in Peko-Wallsend extracted above as a preliminary submission, he also sought to emphasise that the courts have routinely approached review of the discharge of the Commissioner's managerial responsibilities under statute with considerable latitude. In Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86, McInerney J stated that: "The Courts in Australia have tended to interpret prison legislation so as to give full scope to the power of correctional authorities to carry out the tasks of prison administration and management without undue influence from the courts." 53 This approach has been mandated in a series of cases concerned with managerial or administrative decisions relating to individual prisoners or classes of prisoners in state prison systems: see Nicolopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R 74 at [106], Herald Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329 at [95] and Anderson v Pavic [2005] VSCA 244 at [32]. 54 In Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 88, Dunford J also commented upon the reluctance of courts to intervene in decisions concerning discipline, management and administration of prisons, noting that judicial review of prison management decisions is generally confined to the grounds of bad faith, improper purpose or manifest unreasonableness. It is the latter ground upon which the plaintiff has placed reliance in this case. I will return to consider it in due course. I do not propose to dilate upon the precise nature of and justifications for the limitations to which his Honour refers as they do not need to be finally determined in these proceedings. What is important to emphasise is that at its most general the scope and purpose of the Crimes (Administration of Sentences) Act is to provide for the administration and management of correctional centres within New South Wales and, that in so far as the defendant's decision to refuse permission to distribute the newsletter is concerned, it sources from a grant of power that is unconfined by the Act. 55 While a decision that certain publications are or are not to be distributed to inmates falls squarely with the range of decisions that might be made by the defendant under s 232 of the Act, the question remains whether the plaintiff has established that in refusing permission for the "Federal Election Special" to be distributed the defendant has failed to take into account relevant considerations of such a kind and character as would justify the decision being set aside or whether the defendant has otherwise acted unreasonably by refusing permission. It is also necessary for the plaintiff to establish that the failure to take relevant considerations into account could have materially affected his decision. 56 Before turning to consider these matters, having regard to my ruling on the admissibility of the file note, I return to consider the significance of the fact that the defendant's decision is unsupported by reasons. Although he was not obliged to give reasons (see Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 at [106] per Campbell JA with whom Hodgson JA and Handley AJA agreed on this point), in Public Service Board NSW v Osmond [1986] HCA 7; 159 CLR 656 at 662, the High Court affirmed the proposition that if the decision-maker does not give any reasons for his decision, the Court may be able to infer that he had no good reason. The plaintiff urged me to draw an inference in this case adverse to the defendant. In all the circumstances, I am not prepared to draw an inference of this kind despite the fact that no explanation has been offered for the failure on the part of the defendant to supply reasons for his decision when he communicated it to Ms Southgate on 5 November 2007. The fact that I am not prepared to draw an inference adverse to the defendant is not intended to encourage him to refrain from giving reasons in the future were Justice Action to seek permission for another edition of "Just Us" to be distributed. To the contrary. It is doubtless of advantage to those who are adversely affected by decisions the defendant is empowered to make either under the Act or the Regulations that adequate and detailed decisions are provided by him and, if they are not, that appropriate steps are taken in accordance with the procedure provided for in the Practice Note for reasons to be sought once proceedings for judicial review have been initiated. This not only encourages transparency in administrative decision-making but it may achieve the unintended objective of narrowing the grounds for any challenge that may be mounted to a decision the defendant is empowered to make or eschewing a challenge altogether.

Failure to take into account relevant matters 57 I turn now to the first matter which the plaintiff submitted that the defendant had failed to take into account, namely that the newsletter contained information concerning political or government matters that were relevant to the exercise of an inmate's free and informed choice as an elector at the federal election then pending on 24 November 2007. Quite apart from whether the implied freedom of communication to which the plaintiff refers requires consideration be given to it in all administrative decisions that effect or might effect communications about government and political matters (a matter to which I will refer later when dealing with the constitutional question), I am not satisfied that the "Federal Election Special" of the newsletter contains information concerning political or government matters other than in a loose journalistic sense, much less that it was relevant to or may have assisted some prisoners to exercise a free and informed choice as electors. There was, quite simply, nothing of any relevance to the federal election in the newsletter other than the postal addresses of the major political parties. In that connection, although only of passing relevance as the submissions were developed, I am satisfied that the defendant was well aware of the rights of eligible prisoners to vote and that he had taken positive and appropriate steps to ensure that they were in a position to exercise that right by lodging a postal vote in accordance with the system that was regulated by the Australian Electoral Commission. 58 In so far as the second matter relied upon by the plaintiff is concerned, I have already referred to the distinction between the operation of clauses 48 and 109 of the Regulations and the general power under s 232 of the Act. It does not follow that because the defendant refused permission for the newsletter to be distributed he must have disregarded the fact that clauses 48 and 109 recognise the fundamental principle that an inmate ought not by reason of incarceration alone be prevented from being in communication with civil society. As I have already noted, while it is true that the right of an inmate to purchase materials and/or to receive them by post and the request by a third party to distribute unsolicited materials to those that may be interested to read them are conceptually allied to what are appropriately called fundamental civil rights, they invoke different considerations in operation not least because neither the Act nor the Regulations make provision for the distribution of unsolicited materials to an inmate from any external source. If it is necessary to seek to discern why the discretion under s 232 of the Act is cast in wide terms in contrast to the nominated clauses in the Regulation, it may be because the defendant's managerial responsibilities under the section extend to maintaining an orderly and safe living environment for inmates together with an orderly and safe working environment for departmental officers, objectives that might not always be able to be easily reconciled, and that a decision directed to achieving the right balance between competing considerations of this kind will almost certainly be predictive and may need to be made on short notice. 59 While for my part I can see nothing in the "Federal Election Special" that could be said to prejudice the good order or security of the prisons whether that be because it might inflame or incite unrest amongst inmates or inspire conflict with departmental officers or on some other basis, I am bound to accept that the defendant is not only in the best position to make that judgment but that he has been charged with the responsibility of doing so. Accordingly, unless I am satisfied that intervention is warranted on the grounds of Wednesbury unreasonableness, in the sense that the defendant's decision was so unreasonable that no decision-maker acting within jurisdiction and according to law would have come to such a decision, this ground of relief will not be made out. 60 Mason J referred to the concept of manifestly unreasonable in Peko-Wallsend (at 41) (as elaborated upon in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59). In Peko-Wallsend, Mason J stated (at 41): "The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned ( Wednesbury Corporation, at 228).

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ( Sean Investments Pty Ltd v MacKellar at p 375; R v Anderson Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 205; Elliot v Southwark London Borough Council [1976] 2 WLR 499 at 507; [1976] 2 All ER 781 at 788; Pickwell v Camden London Borough Council [1983] QB 962 at 990). I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable ". This ground of review was considered by Lord Greene MR in Wednesbury Corporation, at pp 230, 233-4, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss 5(2)(g) and 6(2)(g) of the ADJR Act in these terms. The test has been embraced in both Australia and England …" (emphasis added) In applying these principles, I am unable to reach the affirmative view that the defendant's decision was unreasonable. In the result, I am not satisfied that in refusing permission to distribute the newsletter the defendant has ignored the fundamental rights of prisoners to communicate or that he has unreasonably failed to take them into account. 61 I turn now to consider rehabilitation, the third consideration to which it is submitted the defendant should have had regard. Although the scope and purpose of the legislative scheme requires that the defendant give appropriate weight to the rehabilitation of inmates generally in discharge of his responsibilities under the Act, and, in my view, should have given it appropriate weight in deciding whether to give permission to distribute the newsletter, I am not persuaded on the evidence that he failed to do so. In accordance with established principles, the weight to be given to that consideration and other relevant considerations was entirely a matter for the defendant. 62 The final matter which the plaintiff contends was not taken into account was the HREOC decision of 23 October 2005. In my view, there is nothing to suggest that that the defendant failed to have regard to this decision. I do not intend in this judgment to refer to the decision in any detail. Suffice to note the complaint was lodged with the Commission by Justice Action because of the defendant's blanket prohibition, from at least December 2002, on distribution of the newsletter "Framed" to federal prisoners housed in correctional centres in New South Wales. It would appear that the ban was imposed at that time for a number of reasons. Not only did the Department of Corrective Services and the Office of the Commissioner take the view that Justice Action were not a properly constituted or recognised advocate for prisoners rights, but further, that editions of the newsletter for which they were responsible were described as "inaccurate, inflammatory and provocative…leading to conflict between inmates and custodial officers and disharmony generally within correctional centres". 63 The complaint by Justice Action was mounted on the basis that the imposition of the ban infringed the human rights of federal prisoners to receive communications contrary to Article 19 of the ICCPR, to which I have earlier referred. Obviously enough, the ban had the same impact on State prisoners but their interests were beyond the reach of the President's jurisdiction under the Act. 64 The President found the complaint proved. He was not satisfied that the restriction in Article 19(3) applied (the position advanced by the Department) since clauses 48 and 109 did not provide for a blanket ban of the kind imposed. To the contrary, each clause required that consideration be given to the written materials either purchased or sent before they were either confiscated or permission to have possession of the material refused. 65 Although the Office of the Commissioner (and by extension the Commissioner himself) was resistant to the inquiry that was conducted by the President pursuant to s11 of the HREOC Act, and despite the fact that he refused an offer to conciliate the complaint or to adopt the tentative recommendations the President proposed following his inquiry, I am satisfied that after the reasons for the President's decision were published the defendant has at least formally adopted a policy whereby each edition of the newsletter produced by Justice Action is to be considered by him as to its suitability for distribution on its merits, thereby reflecting one of the President's published recommendations. This is reflected in an internal memorandum dated 5 March 2007. The fact that the policy does not specify or refer to the further recommendation requiring any decision to restrict or prevent distribution of the newsletter to be only as is necessary to recognise the rights or reputation of others or the protection of national security or public order or morals, does not mean that the defendant failed to have regard to the HREOC decision as the plaintiff submitted, since he was not bound to adopt any or all of the recommendations in his management and supervision of New South Wales correctional centres. 66 While I might have real doubts as to whether the defendant has in fact considered the "Federal Election Special" on its merits in accordance with his stated policy, as much because of my own review of its contents as by reason of the fact that he ignored the invitation extended by Ms Balgi to nominate any offending articles in the draft submitted for his consideration so that they might be removed or edited, I am unable to form the certain view that he did not. I need only repeat that the fact that there was no evidence of the reasons for decision has made the review of the defendant's decision and the adequacy or propriety of his reasons for it more difficult.

The Constitutional question 67 The plaintiff submitted both in paragraphs 10(b) and (c) of his 78B Notice of a Constitutional Matter and in submissions that the defendant was required to take into account the principle identified in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 at 560, namely, the implied freedom of communication concerning government or political matters under the Commonwealth Constitution. The plaintiff has not adequately dealt with the fact that on a proper reading of Lange the implied freedom to which he refers operates only as a restriction on legislative power. The defendant submitted that the implied freedom operates (in those cases in which it has application) to invalidate an entire statute or regulation in whole, or merely to the extent that some operating provisions under the statute in question have the effect of restricting the implied freedom. The plaintiff did not contend that s 232 was invalid, either in whole or in part. Rather, the proceedings were framed as a conventional application of the principles of judicial review. The plaintiff referred me to no Australian authority where the implied freedom under the Constitution gives rise to an imposed mandatory consideration in administrative decisions that effect or might effect communications about government and political matters. 68 In any event, as the defendant pointed out, and correctly in my view, the implied freedom under the Constitution is a freedom from laws which effectively prevent communications about government and political matters - it is not a freedom to communicate at large nor does it create a right to require others to provide a means of communication: see Mullholand v Australia Electoral Commission [2004] HCA 41; 220 CLR 181 at 223-224 (McHugh J), 248 (Gummow and Hayne JJ), 298 (Callinan J), 303-304 (Heydon J); McClure v Australian Electoral Commission [1999] HCA 31; 73 ALJR 1086 at 1090 (Hayne J). See also Roach v Electoral Commissioner [2007] HCA 43; 239 ALR 1 at 25 (Gummow, Kirby and Crennan JJ). For these reasons I am not satisfied that the plaintiff in these proceedings has a right to require the defendant to distribute anything to inmates, neither am I satisfied that the implied Constitutional freedom is available be deployed to create such a right.

Conclusion 69 Accordingly, for the foregoing reasons, an order quashing the defendant's decision refusing permission to distribute the "Federal Election Special" newsletter must be refused. 70 For completeness I should add that the urgency attending the hearing of the matter proved in the result to be entirely overstated. There was nothing in the "Federal Election Special" of the newsletter that had anything other than a tangential reference to the federal election and, as I have noted, I am more than satisfied that at the date of the hearing proper provision had been made for those prisoners entitled to vote to do so. I should also note that as the hearing progressed the plaintiff expressly abandoned seeking relief that might have required the defendant to distribute the newsletter or to reconsider his decision refusing permission to distribute the newsletter. 71 Accordingly, the orders I make are as follows: (1) The relief sought by summons is refused. (2) The plaintiff is to pay the defendant's costs. **********

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