Hunter v Minister for Corrections

Background

1. Regulation 322 of the Crimes (Administration of Sentences) Regulation 2014 is in the following relevant terms: "322 Smoking and possession of smoking-related items in correctional centres and residential facilities (1) A person must not when in a correctional centre or residential facility: (a) smoke, or (b) use tobacco in any form, or (c) use an e-cigarette. Maximum penalty: 1 penalty unit. (2) Subclause (1) does not apply in relation to a resident of a correctional centre or residential facility smoking, or using tobacco or an e-cigarette, in an area of the centre or facility designated under subclause (4A) (a). (3) A person must not have tobacco in any form, or any tobacco-related accessory, e-cigarette or e-cigarette accessory, in his or her possession within: (a) a correctional centre if the person is an inmate, or (b) an area of a correctional centre that is designated under subclause (4A) (b) if the person is not an inmate. Maximum penalty: 5 penalty units. Note: Failure by an inmate to comply with subclause (1) or (3) is a correctional centre offence. (4) Subclause (3) (a) does not apply in relation to the possession of anything within a correctional centre by an inmate if the inmate has the thing in his or her possession: (a) on first arriving for admission into the correctional centre and the admission procedures relating to the surrender of property by the inmate have not yet been completed, or (b) because it has been returned to the inmate in accordance with this Regulation, including in connection with the release of the inmate from custody. (4A) The Commissioner may designate: (a) an area of a correctional centre or residential facility as an area in which residents may smoke, or use tobacco or an e-cigarette, or (b) an area of a correctional centre as an area in which no person may have any tobacco, tobacco-related accessory, e-cigarette or e-cigarette accessory in his or her possession. (4B) An area is to be designated under this clause by signs or notices displayed in, or at entrances to, the area. (6) …"
2. Mr Hunter's summons describes the nature of his challenge in these terms: "Under basic and human rights apply for the pending tobacco smoking ban as to H M Gaols of NSW to be not allowed to be implemented as the act of such pending is nothing other than cruel and clearly a breach of basic and human rights stay/injunction requested pending a full hearing."
3. UCPR 59.1 and 59.4 apply to Mr Hunter's summons. Those rules provide as follows: "59.1 Application (1) This Part applies to the following proceedings for judicial review: (a) proceedings under section 65 and 69 of the Supreme Court Act 1970 and other proceedings in the supervisory jurisdiction of the Supreme Court, and (b) … 59.4 Content of summons The summons must state: (a) the orders sought, and (b) if there is a decision in respect of which relief is sought: (i) the identity of the decision-maker, and (ii) the terms of the decision to be reviewed, and (iii) whether relief is sought in respect of the whole or part only of the decision and, if part only, which part, and (c) with specificity, the grounds on which the relief is sought."
4. The summons is not accompanied by any current affidavit but that is not raised as a ground upon which the summons is challenged. Mr Hunter effectively gave evidence in the course of his submissions to which Mr Herzfeld of counsel for the defendant quite reasonably in the circumstances did not take objection.

Consideration

1. Mr Hunter appeared for himself on this application. He is not apparently legally trained. He did not direct any submissions to the legal bases identified in the defendant's written submissions dealing with why the proceedings should be dismissed.
2. Mr Hunter did however speak at some length about why the regulation had caused significant disruption to the otherwise relatively organised workings of prison life. Cigarettes and tobacco had for decades operated as a form of de facto currency. Smokers and non-smokers alike within the prison system knew and understood the significance and utility of readily accessible legal products that were easily obtainable by visitors for supply during regular and orderly prison visits. According to Mr Hunter, this currency operated well and smoothly with little or no resistance from inmates, including non-smokers.
3. The regulation has turned that system upside down. Other illicit substances have now achieved an additional prominence as a substitute for cigarettes. Relatives and friends who visited inmates in the past are now being placed under considerable pressure to provide cigarettes in breach of the regulation. This is causing tension both within the prisons and between or among prisoners and their visitors. Non-smoking prisoners are also being "stamped" or victimised and bullied into securing cigarettes from their own visitors having regard to the limited access to such products following the ban. This is causing further disruption and tension within the system. The fact that prison officers were not themselves also subject to the same restrictions is a further source of unrest and resentment.
4. Mr Hunter also asserted that the right to smoke was a fundamental or basic human right with which the New South Wales parliament could not legally interfere. Banning cigarettes and tobacco from prisons was also cruel, having regard to the involuntary withdrawal from serious addiction to which a large majority of the prison population was automatically subjected as a consequence. It was implicit in Mr Hunter's arguments concerning cruelty that prisoners who were also smokers had little enough by way of diversion whilst incarcerated and the removal of this last remaining pleasure only served to exacerbate and heighten the sense of loss and deprivation with which inmates were necessarily already confronted on a daily basis.
5. The defendant's application was not directed at these arguments for reasons that will be obvious. The defendant argued that Mr Hunter neither had standing to bring the proceedings in the first place, nor could he demonstrate the existence of a cause of action known to the law in the second place.
6. Dealing first with the second of those, the defendant emphasised that neither Australia nor New South Wales has a Bill of Rights. There is no right to smoke in a correctional facility in New South Wales created by any legislation. The so-called right is presumably a common law right or possibly even a right discernible by reference to some international convention or other instrument. The asserted right was novel at best and patently illusory.
7. More fundamentally, even assuming for the sake of the argument that the so-called right did exist, a perceived or asserted infringement of that right did not mean that the regulation that is said to infringe it is thereby invalid as a consequence or that it amounts to a ground upon which it may be challenged: The fact that reg 322 may on Mr Hunter's argument alter the common law (which the defendant does not accept) or derogate from international law does not thereby cause it to be invalid.
8. In Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977 at 986-7, Isaacs J said this with respect to a challenge to a by-law made by a local authority prohibiting any person from injuring or destroying the water table, side drain or gutterway of any road by depositing therein any material calculated to impede or obstruct the course of the waterflow: "But what is meant by invalidity? To my mind it means unlawfulness because made without the warrant of the Act or in excess of or contrary to its provisions construed in the ordinary manner. But the clear purpose of the Statute, expressed in the plainest terms, is that, if those provisions are complied with, the by-law shall have the force of law, and so be valid. Sec. 187 does not weaken sec. 183, it merely affords a ready and convenient opportunity to test the conformity of the by-law with the requirements of the Act without running the risk of a contravention of the by-law. The test of validity, assuming the by-law to have been duly approved and published, is whether it falls within the scope of authority given to the Divisional Board. If it does it is valid, if it does not it is invalid. If it appears to the Court that the by-law is 'a merely fantastic and capricious by-law, such as reasonable men could not make in good faith,' to employ the expression of the Privy Council in Slattery v. Naylor, then the by-law could not in any proper sense be regarded as covered by the powers conferred. Such a misuse of the Act could never be contemplated by Parliament, and it would form a ground of 'invalidity' within the meaning of sec. 187. But, to quote again from Slattery v. Naylor: - 'It is quite a different question whether a by-law can be treated as unreasonable merely because it does not contain qualifications which commend themselves to the minds of Judges.' The by-law is certainly not open to the objection of caprice, bad faith, or abuse of power. It has been further argued that this by-law is invalid because it transgresses the actual powers granted, inasmuch as it is contrary to the general law of Queensland contained in sec. 469 of the Criminal Code, the contention being that the section referred to is to be considered as fully dealing with the subject of injuries to property. A similar objection was taken in the case of Edmonds v. The Master and Senior Warden of the Company of Watermen and Lightermen, viz.: - That a by-law was 'inconsistent with the laws of this kingdom.' Lord Campbell L.C. answered that by saying: - 'A by-law cannot be said to be inconsistent with the laws of this kingdom merely because it forbids the doing of something which might lawfully have been done before, or requires something to be done which there was no previous obligation to do; otherwise a nominal power of making by-laws would be utterly nugatory'."
9. In Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 69, Latham CJ said this in respect of s 13A of the National Security Act 1939-1943 which provided that the Governor-General could make such regulations making provision for requiring persons to place themselves, their services and their property at the disposal of the Commonwealth, as appear to be necessary or expedient for securing the public safety: "But all the authorities in English law also recognize that courts are bound by the statute law of their country, even if that law should violate a rule of international law: See, e.g., Croft v. Dunphy where, after reference to the well-known authorities of R. v. Burah and Hodge v. The Queen, establishing that Dominion Parliaments have, within the limits of their powers, authority as plenary and as ample as that of the Imperial Parliament, it is said that 'legislation of the Imperial Parliament, even in contravention of generally acknowledged principles of international law, is binding upon and must be enforced by the Courts of this country, for in these Courts the legislation of the Imperial Parliament cannot be challenged as ultra vires, that is, as ultra vires by reason of being inconsistent with international law."
10. Mr Hunter's contention that the regulation was "cruel" also does not assist him. The wisdom or justice of the regulation or its necessity or suitability as a response to the issue to which it is directed are exclusively matters for the legislature to determine. This point was made with enviable clarity by the High Court in South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161at 167-8 as follows: "As we have said, the parties are agreed that the test of validity is whether the regulation is capable of being considered to be reasonably proportionate to the end to be achieved. The line between the opposing arguments is finely drawn. In the end, the answer is largely a matter of impression. On the one hand, in the application of reg.37.2.1 to the respondents' land, having regard to the proposed development, one could be led to echo the exclamation of Millhouse J.: 'Talk about using a sledge-hammer to crack a nut!' On the other hand, a court must exercise care not to impose its own untutored judgment on the legislator, as we think Mitchell J. may have done in Cooper v Bormann (1979) 22 SASR 589. It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power. Nor is it enough to point, as did Jacobs J. in his reasons for judgment, to other provisions in the Waterworks Regulations which impose only qualified prohibitions as a step leading to a conclusion that a total prohibition of the kind contained in reg.37.2.1 is unjustified. To do that is again to substitute the judgment of the court for that of the legislator."
11. The first ground upon which the defendant contends that the summons does not disclose a reasonable cause of action is that Mr Hunter is no longer a prisoner in a New South Wales gaol and therefore is not subject to the operation or force of the regulation. As such Mr Hunter is no longer a person with sufficient (or indeed any) standing to challenge the regulation or to maintain these proceedings to do so. His status as a person on parole does not provide him with standing because he is no longer a resident at a correctional centre, even though when he commenced these proceedings he was a resident when the regulation came into force.
12. In order to have standing Mr Hunter must be able to demonstrate that he has some special interest in the action, greater than an ordinary member of the public. This is made clear by the recent decision of the High Court in Kuczborski v Queensland [2014] HCA 46, (2014) 254 CLR 51 at [175] - [181]: "[175] The plaintiff did not call into question the authorities which establish that a party who seeks a declaration that a law is invalid must have sufficient interest in having his or her legal position clarified. In Pharmaceutical Society of Great Britain v Dickson, in a passage cited with approval in Croome v Tasmania, Lord Upjohn said '[a] person whose freedom of action is challenged can always come to the court to have his rights and position clarified'. In Croome v Tasmania it was observed that such a person would have a sufficient interest to establish a justiciable controversy, which is to acknowledge that issues as to standing and whether a question is hypothesised may overlap. [176] The plaintiff argued that his claim was supported by the authorities and that he was entitled to know whether the impugned laws applied to him. It can be said immediately that they do apply to him, just as they apply to everyone else in Queensland. The plaintiff has no more interest than anyone else in clarifying what the law is. The pertinent question is whether the plaintiff has a sufficient interest to have his 'rights and position clarified' by the declaration he seeks. [177] Under the established requirements as to standing, the plaintiff does not have a sufficient interest in the validity of the laws in the first category to claim a declaration that they are invalid. In Australian Conservation Foundation v The Commonwealth, Gibbs J said of the notion of 'sufficient interest' that: 'A person is not interested ... 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.' [178] In Croome v Tasmania, it was held by Brennan CJ, Dawson and Toohey JJ that a sufficient interest extends to any case where a person's freedom of action is affected by the impugned laws. The laws which the plaintiff seeks to challenge do not affect his freedom of action. The activities upon which the operation of the first category of challenged laws depends are unlawful under the general law. The new provisions add to the adverse consequences of contravention of existing norms of conduct, but do not impose any new prohibition or restriction on any person. The new provisions might lead to a more severe sentence; but their only present operation is to provide an extra incentive to obey existing, valid laws. That is not something which is said, or could be said, to be a disadvantage to the plaintiff. [179] The laws challenged in Croome v Tasmania criminalised the plaintiffs' existing relationships with other people. Brennan CJ, Dawson and Toohey JJ held that the plaintiffs' admitted conduct rendered them liable to criminal prosecution, and, on this basis, that they had sufficient interest to support their claim for declarations that the impugned laws were invalid. Gaudron, McHugh and Gummow JJ held that the challenged laws affected the plaintiffs by imposing 'duties which require the observance of particular norms of conduct and attach liability to prosecution and subsequent punishment for disobedience.' [180] Any difference between the approaches to the question of standing taken in the two judgments in Croome v Tasmania is not material for present purposes. While in Croome v Tasmania the plaintiffs' standing to challenge the validity of the laws did not depend upon the commencement by the executive government of processes to enforce the challenged law against the plaintiffs, their liberty was constrained by the proscriptions in question. [181] In the present case, as indeed the plaintiff emphasised in his argument, none of the challenged laws purports to criminalise the plaintiff's relationship with his fellow members of the HAMC. As noted above, the challenged laws in the first category do not impose any legal or practical restriction upon the plaintiff's freedom of action: the plaintiff does not assert that he has broken, or that he intends to break, any existing laws; and if any assumption is to be made about the plaintiff's activities in the future, it should be assumed that he will conduct his activities within the law so as to avoid prosecution and conviction."
13. The plaintiff in Kuczborski had no standing to challenge the laws he wished to impugn because he was not affected by them any more than an ordinary member of the public. That is precisely the position that Mr Hunter is in here. Now that he is no longer a resident of a correctional centre, Mr Hunter is no longer affected by reg 322. The fact that he is potentially liable to be imprisoned if he fails to comply with the conditions of his parole or commits a breach of the law is beside the point. The prospect that any citizen is liable to imprisonment if he or she exposes himself or herself to that possibility by breaching the criminal law, or is even suspected of doing so, does not provide that person with the current status of someone to whom the regulation applies. The fact that Mr Hunter's risk of imprisonment may be higher than citizens who are not on parole is also irrelevant: see Kuczborski at [182].
14. UCPR 13.4(1) provides as follows: "13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
15. No reasonable cause of action is disclosed if the proceeding is so obviously untenable that it cannot possibly succeed or is manifestly groundless or hopeless: see Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Commonwealth Bank of Australia v ZYX Learning Centres Ltd [2014] NSWSC 1676; (2014) 103 ACSR 476 at [47] - [70].
16. Mr Hunter's proceeding falls into this category. He cannot succeed. I am aware that Mr Hunter wants an opportunity to proceed to a full hearing at which he is confident that evidence he anticipates he will be able to assemble will convince the Court of the correctness of his claims. Indeed, much of this type of material has been placed before me, together with significant reliance upon the recent New Zealand decision of Taylor v The Attorney-General [2013] NZHC 1659. As interesting as that material is, and as persuasive as it may be from a political perspective, it does not demonstrate the existence of a cause of action known to the law. Nor does it provide a proper basis to conclude that Mr Hunter has standing to litigate it even if it did. I am therefore not satisfied that Mr Hunter's proceeding can withstand the current challenge. Taylor was a case dealing with whether or not the anti-smoking regulation was ultra vires the New Zealand Corrections Act 2004 or whether it came within the scope of the applicable regulation making powers. No similar or cognate issue arises from Mr Hunter's challenge to reg 322 in these proceedings. I accept without reservation that Mr Hunter has genuine and strongly held concerns about the effect of the regulation upon current inmates in New South Wales, and upon the safe and harmonious administration of prisons in which they are housed. However, Mr Hunter's passion and commendable belief in his cause does not operate to salvage what on any view is an otherwise hopeless case.

Conclusion

1. In my view the proceedings must be dismissed with costs.

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