Determination
187 In broad terms, I accept the submissions of the Plaintiffs on this question. I am satisfied that the First Defendant was required to accord procedural fairness to each Plaintiff before deciding whether transfer should take place under s.28 CDC Act.
188 Section 19(7) CCP Act makes clear that it is open to the First Defendant to undo the effect of a judicial order made under s.19(1). However, nothing within the statutory scheme indicates that the administrative decision maker can undo the judicial order without according procedural fairness to the detainees.
189 There is an entirely different statutory framework in the CCP Act and the CDC Act which, in my view, places a s.28 decision apart from the line of authority relied upon by Mr Leeming SC. Here there is an elaborate and different statutory scheme. The starting point here is a judicial order made, as part of the sentencing process, at which the Judge is required by law to have regard to a background report under s.25 CCP Act prepared by DJJ offices. Having considered that report together with evidence and submissions in the sentencing hearing, a s.19 order still cannot be made with respect to an offender then aged 18 years or more unless "special circumstances" are found. In these cases, a finding of "special circumstances" was made. No appeal was brought challenging that finding or the sentence imposed.
190 In my view, as a result of this judicial order, a legitimate expectation arose for each Plaintiff that, as long as he behaved appropriately and made substantial progress by way of rehabilitation in juvenile detention, he would not be subject to involuntary transfer to an adult correctional centre under s.28 CDC Act without being accorded procedural fairness by the First Defendant.
191 The statutory scheme underpinning s.19 CCP Act recognises that a more beneficial and positive custodial setting is available in juvenile detention, including resources for rehabilitation, education and training consistent with the objects laid down in s.4 CDC Act. So much has been recognised in the cases referred to at [13]-[14] and [24]-[25] above. There are obvious and identifiable detriments which can apply if a juvenile offender is transferred to the adult prison system. I accept the submissions of Mr Haesler SC in this respect in connection with the identifiable detriments which could befall ID, PF and DV.
192 The s.28 transfer power is not to be compared with a change from one classification to another of an adult prisoner in the adult prison system. Nor is it to be equated with transfer from one Juvenile Justice Centre to another, as in JRM v Department of Juvenile Justice. A s.28 transfer order is not a prison management decision. Rather, it involves a fundamental change in the nature and quality of detention to which the detainee will be subject, with the likelihood, in the case of ID and PF, that a longer period in custody will result.
193 Nor do I see that the rationale for the line of authority relied upon by Mr Leeming SC has application in this case. As the evidence reveals, there are a limited number of s.19 detainees aged more than 18 years to whom procedural fairness is to be accorded. This is to be contrasted with the adult prison system where hundreds, if not thousands, of classification decisions are made concerning prisoners each year.
194 In any event, cases within the prison management line of authority have observed that decisions have not been uniform and that the approach of Courts has become more interventionist: Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [6]ff. A jurisdiction to review exists, but Courts would be reluctant to exercise it in relation to prison management decisions: Masters v Chief Executive, Department of Corrective Services (2001) 121 A Crim R 173 at 175 [16].
195 The learned authors of Aronson, Dyer and Groves, "Judicial Review of Administrative Action" 3rd ed, 2004, have observed (at 385, 435, 464) that it is not easy to reconcile the prison cases with the High Court's approach to the threshold question concerning procedural fairness in Kioa v West. They observe that these decisions suggest that some courts may be reluctant to apply the principles in Kioa v West for fear that imposition of procedural fairness will unduly impair the exercise of important statutory powers. Considerations of that type do not apply in this case. A small group of detainees is involved and they are in a special and different position as a result of the s.19 CCP Act judicial order made with respect to each of them. Aronson, Dyer and Groves observe (at 464) that the High Court has expressly discarded the reluctance of Courts to apply general principles of natural justice in some cases and opine that "it must now be viewed with suspicion in other areas" except to the extent that it can be explained in terms of general principles. For reasons already expressed, I consider that the general principles requiring procedural fairness do apply in this case.
196 Accordingly, both the judicial nature of the s.19 order which placed the Plaintiffs into juvenile detention, and the palpable detriments which may flow from a change in status from "detainee" to "inmate", in my view, dictate the need to accord procedural fairness before any s.28 transfer decision is made.
197 I am not assisted, with respect to s.28, by the presence in s.20(3) CDC Act of an express requirement to provide natural justice. Section 20 involves a different subject matter and its contents do not assist resolution of the present controversy.
198 My conclusion concerning procedural fairness is reinforced by the objects clause in s.4 CDC Act. In the administration of the Act (by the First Defendant), the welfare and interests of detainees shall be given paramount consideration: s.4(2)(a). The suggestion that there is no requirement to accord procedural fairness to a detainee, before a s.28 transfer order is made, is entirely inconsistent with this object. I will return to the objects clause later in this judgment (at [254]-[263]).
199 In this case, each Plaintiff states, without challenge, that following the s.19 order made in the sentencing process, he expected to remain in juvenile detention as long as he behaved and made full and positive use of the rehabilitation, training, educational and counselling measures and resources available in that detention. Each Plaintiff did, in fact, behave and make substantial use of these resources in a manner that strongly supported the view that they were in the process of rehabilitation, a process which he was entitled to expect would be allowed to continue without interruption in juvenile detention without, at the very least, a proper opportunity to be heard before any change in status was made.
200 Accordingly, I am satisfied that each Plaintiff was entitled to procedural fairness from the First Defendant before any decision was made for transfer to an adult correctional centre under s.28 CDC Act.