ID, PF and DV v Director General, Department of Juvenile Justice and Anor [2008] NSWSC 966 | Case summary

ID, PF and DV v Director General, Department of Juvenile Justice and Anor [2008] NSWSC 966 | Case summary | Zoe

[6]

R v GDP (1991) 53 A Crim R 112 KT v R [2008] NSWCCA 51 R v Tran [1999] NSWCCA 109 CM v R [2008] NSWCCA 195 CTM v R (2007) 171 A Crim R 371 R v CK [2002] NSWSC 942 R v DN [2004] NSWSC 426 R v KT [2007] NSWSC 83 R v PB [2008] NSWCCA 109 R v MD (2005) 156 A Crim R 372 Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 Kioa v West (1985) 159 CLR 550 Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 Jarratt v Commissioner of Police for NSW [2005] 224 CLR 44 Smith v Commissioner for Corrective Services (1979) 1 NSWLR 317 Flynn v The King (1949) 79 CLR 1 Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 Panayotov v Commissioner of Corrective Services (10 November 1999, unreported) Vezitis v McGeechan (1974) 1 NSWLR 718 McEvoy v Lobban [1990] 2 Qd R 235 Re Walker [1993] 2 Qd R 345 JMR v Department of Juvenile Justice [1999] NSWSC 169 Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 221 CLR 1 Annetts v McCann (1990) 170 CLR 596 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Commissioner of Police v Ryan [2007] NSWCA 196 South Australia v O'Shea (1987) 163 CLR 378 Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1 Renton v Bradbury [2001] QSC 167 Mobil Oil Australia v Federal Commissioner of Taxation (1963) 113 CLR 475 CASES CITED : Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] 214 CLR 1 Johns v Release on Licence Board (1987) 9 NSWLR 103 Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 R v Rymer [2005] NSWCCA 310 Baba v Parole Board (1986) 5 NSWLR 338 New South Wales v Canellis (1994) 181 CLR 309 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Saville v Health Care Complaints Commission [2006] NSWCA 298 Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe [1999] 197 CLR 510 Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323 Sean Investments Pty Limited v MacKellar (1981) 38 ALR 363 Croft v Minister for Health (1983) 45 ALR 449 PW Adams Pty Limited v Australian Fisheries Management Authority (1995) 60 FCR 387-402 Australian Fisheries Management Authority v PW Adams Pty Limited (1995) 61 FCR 314 Wacando v Commonwealth of Australia [1981] 148 CLR 1 R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Green v Daniels (1977) 13 ALR 1 Rendell v Release on Licence Board (1987) 10 NSWLR 499 Hot Holdings v Creasy [2002] 210 CLR 438 Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 Khan v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, 11 December 1987, BC8702232) [1987] FCA 457 Bignell v New South Wales Casino Control Authority (2000) 48 NSWLR 462 Ex parte 2HD Pty Limited (1979) 144 CLR 45 Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 Masters v Chief Executive, Department of Corrective Services (2001) 121 A Crim R 173 Russo v Aiello [2003] 215 CLR 643 Tickner v Bropho (1993) 114 ALR 409 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 565 Re Yanner (2000) 100 FCR 551 Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

[33]

(7) Nothing in this section, or in any order under this section, limits the operation of section 28 of the Children (Detention Centres) Act 1987." 10 A body of jurisprudence has built up with respect to s.19 CCP Act in the sentencing context. In these cases, Courts have considered and applied the range of statutory and common law principles which are to be considered when sentencing a person who has committed crimes when under 18 years of age. Regard would be had to the principles in s.6 CCP Act. Regard would be had to the principles in cases such as R v GDP (1991) 53 A Crim R 112 at 115-116 and KT v R [2008] NSWCCA 51 at [21]-[24] where it was observed that considerations of punishment and general deterrence have less significance in cases involving young offenders than in cases involving adult offenders and that individual treatment aimed at rehabilitation is of greater significance with such offenders than with adult offenders. Of course, this principle may have less application where the offending behaviour has demonstrated that the young offender has conducted himself in a way that an adult does: R v Tran [1999] NSWCCA 109 at [9]; KT v R at [25]-[26]. 11 It has been observed that the reconciliation of the principles relevant where a very serious offence is committed by a child creates difficulties in passing sentence: CM v R [2008] NSWCCA 195 at [25]. These difficulties include those of balancing the need for deterrence on the one hand and the fact that general deterrence is a matter of less significance when sentencing a juvenile offender: CM v R at [32]. 12 Before a sentence of imprisonment can be passed on a juvenile offender, the Court must have considered a background report prepared by Department of Juvenile Justice ("DJJ") officers for the purposes of s.25(2)(a) CCP Act: CTM v R (2007) 171 A Crim R 371 at 405 [153]. A background report must deal, at least, with such of the following matters as are relevant to the circumstances of the offence - the offender's family background, employment, education, friends and associates, the nature and extent of his or her participation in the life of the community, disabilities and antecedents: cl. 6 Children (Criminal Proceedings) Regulation 2005. Such a report was considered by the sentencing Judge concerning each of the Plaintiffs in these proceedings. 13 Having determined the appropriate sentence of imprisonment in each case, the Court comes to the question whether a s.19 order ought be made where the offender is over 18 years old at the time of sentence. Before a s.19 order can be made, the Court must find "special circumstances" under s. 19(3)(a) by reference to the matters in s.19(4). Reasons for such findings include:

[55]

(e) the First Defendant is satisfied that the detainee's behaviour is or has been such as warrants the making of such an order: s.28(2A)(c) applying s.28(2)(d). 21 The present Plaintiffs do not fall into any category listed in the preceding paragraph apart from (d). The Plaintiffs did not apply for transfer but opposed it. The First Defendant did not purport to order transfer because of the Plaintiffs' behaviour. I construe the word "behaviour" in s.28(2)(d) as meaning bad behaviour. It is difficult to see that s.28(2)(d) could operate to permit transfer to an adult correctional centre of a detainee who was well behaved. In any event, the evidence in this case reveals that each Plaintiff was well behaved and was making very substantial progress with respect to rehabilitation, education, training and counselling and had been doing so for some months prior to transfer. 22 The only statutory class which exposed the Plaintiffs to consideration for transfer to an adult correctional centre was the fact that each was subject to a s.19 order of a Court. 23 The Court of Criminal Appeal has referred to the s.28 transfer process in the context of appeals before that Court. In CM v R, above, Blanch J (McClellan CJ at CL agreeing) at [31] observed that it might be expected that, in considering the exercise of the s.28 power to transfer to an adult prison, regard would be had to the continuing education of the detainee. In the same case, Grove J at [6] observed that the existence of the s.28 transfer power was irrelevant to the performance of judicial function in assessing sentence, determining a non-parole period and whether or not to make a s.19 order. 24 The powers under s.19 CCP Act and s.28 CDC Act were touched on in R v PB, above. The Crown appealed against the adequacy of sentence imposed in the District Court. The sentencing Judge had made an order under s.19 CCP Act that the sentence be served as a juvenile offender. By the time the Crown appeal came on for hearing, the offender had been transferred under s.28 to an adult prison. The evidence established (at [43]) that the substantial educational and rehabilitative resources available to, and utilised by, the offender in juvenile detention were not available in adult prison. Bell JA (McCallum J and myself agreeing) said at [47]-[48]: "47 The Crown made inquiries of the inmate classification section of the Department of Corrective Services concerning the reasons for the decision (despite the order made by the Judge) to transfer the respondent to an adult institution. Mr Stephens, State Co-ordinator of the Young Adult Offender Program, advised that the respondent had been transferred pursuant to an order made under s 28 of the Children (Detention Centres) Act 1987. Notable in Mr Stephens' response to the request made by the Director of Public Prosecutions is the absence of an explanation of the reasons why the order was made.

[64]

(g) a third affidavit of Rebecca Cowper sworn 9 May 2008 (paragraphs 1-2, 13 and 15 and Annexures G and H only) admitted in the Plaintiffs' case in reply. 31 I observe that the parts of the affidavits of ID, PF and DV which I excluded concerned events which had occurred after their transfer to adult correctional centres. I took the view that this evidence was not relevant to the issues to be determined in claims for prerogative and declaratory relief. 32 However, as indicated to counsel during the hearing (T67-69), I will approach the resolution of the present proceedings upon the basis that the statutory framework in the CDC Act and the CCP Act (in particular, s.19) reflects the reality that juvenile detention is likely to be more suitable for vulnerable persons, and that a wider range of educational and other facilities, which may serve to foster rehabilitation, are more likely to be available in a detention centre than an adult prison. This approach is supported by statements in the authorities referred to at [13]-[14] and [24]-[25] above. 33 This accords with the commonsense reality that the environment, conditions, facilities and population of an adult prison are different to that of a juvenile detention centre, irrespective of efforts which might be made by the relevant authorities in this regard. I indicated to Mr Leeming SC that, if he was to submit to the contrary, I would reconsider my decision to reject the evidence of ID, PF and DV concerning their post-transfer experiences. Mr Leeming SC indicated that he did not advance such a submission, so it was unnecessary for me to reconsider the admissibility of the Plaintiffs' post-transfer experiences in adult prisons. If the First Defendant had not adopted this stance, then the evidence of post-transfer events would have been admissible, not in the sense that those matters should have been taken into consideration, but rather as showing that the probability of the subsequent events happening was one that could be taken into consideration: Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 93-94. The likely detriment to a person transferred from a juvenile detention centre to an adult correctional centre bears upon several issues in these proceedings and, in particular, the procedural fairness question. 34 None of the deponents of the affidavits listed at [30] above, were required by the First Defendant for cross-examination. 35 The Plaintiffs also sought to read, over objection, an affidavit of Timothy Shaun Keogh sworn 19 August 2008. Dr Keogh is a clinical and forensic psychologist. He was retained by the solicitor for the Plaintiffs in August 2008 to provide a report for the purpose of these proceedings. He had not examined the Plaintiffs for that purpose. Rather, he had perused a range of documents provided to him and provided a report dated 19 August 2008. It was submitted for the Plaintiffs that Dr Keogh's report was admissible in these proceedings even though it had been brought into existence after the decisions under challenge were made. It was submitted that Dr Keogh's report was relevant to the issues to be determined. The First Defendant submitted that Dr Keogh's affidavit ought not be admitted as it was not relevant to any issue to be determined in these proceedings. 36 I determined that Dr Keogh's evidence ought be admitted provisionally under s.57 Evidence Act 1995 with a determination to be made on its admissibility in the final judgment. Although it did not seem to me that Dr Keogh's evidence could satisfy the test of relevance in s.55 Evidence Act 1995, there were, at least, arguments in support of its admission by reference to the ground based upon alleged failure to have regard to relevant factors. Further, Mr Leeming SC wished to cross-examine Dr Keogh on one issue and Dr Keogh's availability was limited. Having admitted provisionally Dr Keogh's evidence, he gave oral evidence and was cross-examined (T48-55). 37 Having had an opportunity to reflect on the submissions made with respect to the admissibility of Dr Keogh's evidence, I am ultimately not persuaded that it ought be admitted into evidence. The present proceedings involve a claim for relief in the nature of prerogative and declaratory relief. They do not involve an appeal whether by hearing de novo or in the strict sense. The function which I am performing in these proceedings is not, of course, a sentencing function (at which psychological evidence may be admitted) nor a merits review of the First Defendant's decisions which might permit Dr Keogh's report to be relied upon. The grounds for relief are set out at [3] above. 38 Dr Keogh's affidavit is a type of commentary on the documents provided to him which included documents which were before the First Defendant and other documents. 39 In the result, I am not persuaded that Dr Keogh's evidence is relevant and admissible in the present proceedings. I will decide the Amended Summons without reference to Dr Keogh's affidavit. If relief is granted and the transfer decisions set aside, the First Defendant might again consider whether s.28 transfers ought be ordered. In that case, Dr Keogh's affidavit may be relevant to that process. However, that is not the function which I am discharging in these proceedings. 40 The First Defendant relied upon the affidavit of Valda Rusis affirmed 26 August 2008 and Ms Rusis gave oral evidence and was cross-examined (T56-72). Mr Rusis is the Acting Deputy Director General (Operations) of DJJ.

[69]

Given that it was the First Defendant who was the lawful decision maker under s.28 CDC Act, it is not at all clear why a DCS officer should be dictating the content of DJJ reports. The Plaintiffs contend that this provides considerable insight into the true nature of the decision-making process. 51 On 16 March 2008, Ms Ciko sent an email to DJJ personnel concerning the contents of s.28 reports (Exhibit A, page 29). The email included the following: "Information should assist Corrective Services with classification and provide a treatment provider with information needed to assess and make an informed decision about services that need to be provided. If there are any issues/concerns with the transfer, these need to be raised within your professional area of expertise and based on relevant assessments, treatment provided, psychometric testing carried out, or literature (appropriately document). Personal opinions, legal opinion or statements/comments about the Department are both inappropriate and beyond your roles and responsibilities. If the young person has stated they would like to remain in DJJ and you support their position this needs to be done appropriately as per above. Staff are reminded that their reports are there for both Corrective Services and the DG to make an informed decision. A number of staff have placed their personal opinions in reports and this does not assist the process and are inappropriate. If you have concerns or unsure, please contact your clinical supervisor or myself, who would be happy to assist you. Please note reports need to be provided in a timely fashion so that they can be proofread and any changes made as needed. Staff have been providing reports at the last minute and this only delays the process. Staff are further reminded that you are not permitted to send copies of any reports outside the Centre without the approval of myself and the Centre Manager, even if the detainee signs a release of information." 52 Further insight into the role of DCS is found in an email from Mr Stephens to Ms Byers on 4 March 2008 (Exhibit A, page 18). Mr Stephens said with respect to another detainee, KT: "Just to let you know that NSW Legal Aid forwarded a request for [KT] in regards to staying in DJJ. I called the Solicitor and informed her of what the process has been and that he will be going regardless of that request."

[86]

(c) whilst in company of a co-offender, having sexual intercourse (fellatio) with the victim without her consent knowing that she was not consenting. 66 In lengthy remarks on sentence delivered on 25 January 2007 (confirmed in brief further reasons given on 16 February 2007), his Honour Judge Nicholson SC sentenced ID to a total effective sentence of imprisonment of nine years and 11 months to date from 16 May 2005 with a non-parole period of four years to date from 16 May 2005 and to expire on 15 May 2009. At the time of sentence, ID was aged 18 years and seven months. As required by law, a background report concerning ID was in evidence before the sentencing Judge for the purposes of s.25 CCP Act. At the time of sentence, there was evidence before the Court demonstrating substantial steps on ID's part by way of education and other rehabilitative steps. Pursuant to s.19 CCP Act, his Honour found "special circumstances" and directed that the non-parole period of ID's sentence be served as a juvenile offender. ID had no prior criminal history. 67 Neither the Crown nor ID appealed to the Court of Criminal Appeal concerning sentence. 68 ID stated in his affidavit that, as a result of the order and sentencing remarks of his Honour Judge Nicholson SC, he expected that he would serve his entire non-parole period in juvenile detention and not be transferred to an adult correctional centre unless he misbehaved, requested a transfer or felt he no longer needed the services offered by the DJJ (paragraph 10, affidavit of ID, 13 August 2008). 69 ID was transferred to Baxter on or about 18 December 2006. Thereafter, he undertook Higher School Certificate studies through the Sydney Distance Education High School. At the end of 2007, he successfully completed Year 11, with subjects including mathematics, English, geography, environmental science and sports, life style and recreation. In 2008, ID began a two-year program of Year 12 studies. He completed TAFE courses in hygiene and food procedure at Baxter. In March 2008, ID was chosen to represent Baxter in the soccer competition against visiting teams. 70 ID participated in counselling at Baxter and was undertaking specialist programs, including the Sex Offender Program and the Improving Family Relationships Program. He stated that he had a close relationship with his Juvenile Justice Officer and that he felt he required services offered by the DJJ, in particular, counselling in the Sex Offender Program. ID received weekly visits form his mother, brother and sisters in Baxter. His father had died in 2006.

[87]

Events Leading to Transfer of ID 71 On about 3 March 2008, ID's unit manager at Baxter informed him that transfer to an adult gaol was under consideration and that "for you to have a better chance at staying, I suggest you fill in this form I'm going to hand out to you … You should put a case as to why you should stay in Baxter" (paragraph 24). ID completed a document on that day providing reasons why he did not wish to be transferred to an adult correctional facility. ID said: "I do not want to go to gaol as since I have been at Baxter I have a good team of workers, teachers and counsellors who are helping me. I completed my Year 11 last year in Baxter and now I am doing my Year 12 in English, geography and environmental science studies. I will do business studies and sports lifestyle and recreation Year 12 subjects next year. I especially have two teachers who are giving me extra help so I can get through Baxter is my best chance of completing my HSC. I would be too stressed in gaol to do well in my studies. I hope to work in the fitness or environmental employment in the future. Doing well is very important for me as my father died recently and it's up to me to take care of my family. I have behaved really well in Baxter and have always been in the top section. I am also eligible for outings and getting involved in community activities before I get out will help me do well in the community. I do not want to go to gaol because I am afraid I would be picked for fights because of my charges. I would be always worrying about what might happen and then I wouldn't be able to study. I am also scared for my safety about my co-offender who is already in gaol. I worry he might target me. I do not want to be around him. Staying at Baxter is my best chance of studying and finishing my Year 12. I would also be safer and not at risk because of my co-offender and charges." 72 On 20 March 2008, a Case Management Committee meeting was held at Baxter concerning ID. Present at the meeting were Fiona Ruscheinsky, Acting Assistant Manager at Baxter and two DCS officers - Mr Stephens, State Co-Ordinator, Young Adult Offenders Program and Deputy Manager of Classification and Placement, and Peter Townsend, Manager, Classification and Placement, Indigenous Offenders. ID attended the meeting. His family members were not present at the meeting. During the course of the meeting, ID was told by one of the DCS officers that, as he had been behaving well in juvenile detention, he would most likely be given a security classification of "C1" in the adult gaol system. ID was told that, because of his age, he could have gone to John Morony to do the Young Adult Offenders Program, but "because of the nature of your charges and length of time left to serve, parole would want you to do the CUBIT Sex Offenders Program which is only offered in Long Bay" and that "CUBIT has a waiting list of about one year". According to ID's unchallenged evidence, he was told that "the bus will be here to pick you up next week to take you to adult gaol". 73 It is ID's evidence that he did not have, nor was he given the opportunity to have, legal representation at the Case Management Committee meeting on 20 March 2008. After the meeting, Ms Harwood, a counsellor at Baxter suggested that he might want to ring the Legal Aid Hotline to get some legal advice. As 21 March 2008 was Good Friday, ID was unable to get through to a solicitor at Legal Aid. 74 On Tuesday, 25 March 2008, a briefing note was prepared for the Acting Director-General of DJJ concerning the proposed transfer of ID to an adult correctional centre under s.28 CDC Act (Exhibit A, Tab 30). The briefing note was prepared by Sharon Murphy, Operations Assistant Transport Placement and Drug Intelligence Branch within DJJ. The briefing note stated that ID "was identified earlier this year as a detainee who potentially meets the criteria for transfer to a correctional centre". 75 I infer that the "criteria" here referred to are criteria mentioned in an email dated 25 February 2008 (Exhibit A, page 9). This was Mr Harris' email referred to at [48] above. That email stated: "Transfers of old detainees for management reasons will be selected against some or all of the following criteria; · Over 18 years of age.

[104]

Documents Provided to First Defendant 84 It is appropriate to record the contents of some of the documents provided to the Acting Director-General as attachments to the briefing note. 85 The record of the Case Management Committee meeting of 20 March 2008 included the following (Exhibit A, page 83): " Background Detainee [ID] was transferred to Baxter Juvenile Detention Centre on the 18.12.2006. Details in the submissions provided by the Department of Juvenile Justice (DJJ) state the behaviour of detainee [ID] has been of a level where he has been placed into a privileged unit. Detainee [ID] has received strong support from his family through weekly visits and telephone contact. There is no history of drug use whilst [ID] has been housed at Baxter Juvenile Detention Centre and he is classified as a B1 detainee. Due to being on a section 19 order and over 18 years of age the DJJ has determined that detainee [ID] is now required to be transferred to the Department of Corrective Services on a section 28 (2) order as requested by the Director General (DJJ), and approved by the Commissioner, Department of Corrective Services ." (my emphasis) 86 After reciting ID's sentencing details, the record continued (Exhibit A, page 84): " Current DJJ Alerts Single room due to nature of offence. Decision of Committee Prior to being moved to his gaol of placement detainee [ID] must be transferred to the Metropolitan Remand Facilities, Department of Corrective Services, to undergo the screening, reception, induction and classification process. Due to the length of time remaining on his sentence it is recommended that detainee [ID] be classified as a C1 inmate upon his transfer to the Department of Corrective Services Due to the seriousness of his offence [ID] will be required to complete the Sex Offender Program (SOP) within the Department of Corrective Services. It is recommended that he be assessed at the MRRC for placement into the SOP prior to placement to another correctional centre. It is also recommended that [ID] be considered for placement into the Specialised Program for Young Adult Offenders if unable to initially be transferred into the SOP at Long Bay. The co-offender of this inmate is [ON] who is currently housed at Lithgow Correctional Centre. Upon transfer to the Department of Corrective Services Inmate [ID] will be identified as a Public Interest Inmate due to the nature of his offences and sentence length. Inmate [ID] will be managed by the departments Pre-release Leave Committee (PRLC) when applying for any external leave programs." 87 The committal summary (Exhibit A, pages 85-91) outlined, amongst other things, ID's custodial history before his transfer to Baxter on 18 December 2006 and provided a generally favourable report concerning ID's participation in programs at Baxter and his family support. It noted that ID "has attended regular counselling with his sex offender counsellor prior to her change in employment" and had been seeing Ms Harwood for support. 88 Ms Harwood's report of 5 March 2008 was attached to the briefing note (Exhibit A, page 92). The report was favourable to ID noting, amongst other things, that "there are no concerns re his management or level of involvements with centre programs and he is making full use of what is available". Ms Harwood concluded her report as follows: "ID does not present as a confident or mature 19 year old. He is very anxious re the possibility of being transferred to the adult system; especially due to his charges being of a sexual nature and the fact his adult co-offender is in the adult system. ID has concerns his co-offender and other inmates will target him and make completing his Year 12 difficult. ID believes his schooling, opportunities for community integration through outings and leave and, eventual rehabilitation will be far better achieved through maintaining his positive progress in the juvenile detention environment. The author strongly supports ID's concerns and request to remain in the juvenile justice system." 89 I infer that this is the report about which Mr Stephens complained in his email of 13 March 2008 as containing a "personal view" (see [50] above). At this point, I should note other evidence admitted concerning Ms Harwood and her report concerning ID. I referred earlier at [62] to Ms Cowper's evidence of general comments made by Ms Harwood on about 18 April 2008 concerning DJJ processes for transfer of s.19 detainees. I admitted into evidence in the Plaintiffs' case, paragraph 18 of a further affidavit of Rebecca Cowper also sworn 9 May 2008. On 18 April 2008, Ms Cowper was informed by Ms Harwood that she (Ms Harwood) was instructed by her superiors at DJJ as follows:

[107]

(c) she was instructed by her superiors to change this report to delete all quotes from the sentencing decision and all other recommendations as to ID's unsuitability for transfer. 90 I accept that Ms Cowper has set out a truthful and accurate account of what Ms Harwood told her on 18 April 2008. 91 As mentioned earlier, a joint report of Ms Ruscheinsky and Mr Reberger dated 18 March 2008 accompanied the briefing note to the Acting Director-General concerning ID (Exhibit A, pages 93-94). That report observed that ID had "made considerable progress with his rehabilitation" and had "engaged in counselling to address offending related issues and committed himself to pursuing his education by undertaking Year 12 studies". The authors stated that ID was "a mature, compliant and well-behaved detainee who consistently achieves the highest level of the Centre's incentive system" and was housed in the most privileged of the Centre's units "where detainees are afforded more independence and personal responsibility". It was observed that, according to his primary worker (I infer this is a reference to Ms Harwood), ID had responded well to counselling and "was committed to addressing his offending behaviour". It was observed that ID had "expressed some anxiety about transferring to the adult correctional system which relates to the nature of his offence and the possibility of being housed with his co-offender". The report made no recommendation concerning possible transfer. 92 A further joint report from Ms Ruscheinsky and Mr Reberger dated 19 March 2008 (Exhibit A, page 96) provided information concerning ID's involvement in specific sex offender counselling at Baxter. It spoke in positive terms of ID's engagement in regular counselling and noted that he was awaiting reallocation to a new sex offender counsellor as the position was currently vacant. 93 The lengthy sentencing remarks of his Honour Judge Nicholson SC dated 25 January 2007, comprising 212 paragraphs over 76 pages (concerning ID and his co-offender, ON) were provided to the First Defendant, together with his Honour's short additional remarks on sentence of 16 February 2007 wherein an adjustment was made to provide that the non-parole period would expire on 15 May 2009.

[108]

Findings Concerning the ID Transfer Process 94 It is noteworthy that the committal summary prepared by Troy Davis, youth officer, Ms Ciko and Mr Reberger (Exhibit A, pages 85-91) is addressed to the Convenor, Gaol Classification Committee, DCS and is described as a submission to the DCS. The report of Ms Harwood (Exhibit A, page 92) and the reports of Ms Ruscheinsky and Mr Reberger dated 18 March 2008 (Exhibit A, pages 93-94) and 19 March 2008 (Exhibit A, page 96) are all addressed to the Convenor, Classification Office, DCS. 95 The First Defendant is the decision maker under s.28, with the consent of the Second Defendant being a precondition to transfer only. Of course, it is understandable that the process of consideration of s.28 transfers involves participation, to some extent, of DCS personnel. The First Defendant needs to be informed of resources and facilities available within the DCS which may bear upon the transfer decision in a particular case. A proposal concerning a particular detainee, and what is expected to happen if transfer takes place, is obviously relevant. 96 That said, the process leading to and following the Case Management Committee meeting on 20 March 2008 indicates that DCS personnel are playing a decisive role in the s.28 process. The inference is clearly available, and ought be drawn, that DJJ personnel are offering detainees for transfer and that transfer will occur unless the DCS refuses to take them. Such a process does not accord with the statutory scheme. I am reinforced in this conclusion by the emails dated 25 February 2008, 1 March 2008, 13 March 2008 and 16 March 2008 referred to at [48] to [51] above. 97 The manner in which these documents are addressed, together with their contents, the emails and the statements made by various DJJ personnel to Ms Cowper referred to earlier in this judgment, fortifies a conclusion that the First Defendant was being presented with a fait accompli. 98 The First Defendant has not adduced evidence in the proceedings, apart from that of Ms Rusis who made quite clear that she can speak in general terms only and had no part in the decision making concerning the Plaintiffs. 99 I am satisfied, on the balance of probabilities, that DJJ officers selected ID for consideration of transfer with the only impediment to potential transfer being refusal by DCS to accept him. Once DCS officers determined to accept him, it was inevitable that a s.28 transfer order would be made. 100 There is further evidence that bears upon the question of legal advice. On 15 May 2008, Ms Harwood sent an email to Ms Ciko to the following effect (Exhibit A, page 64): "on 20th March, after the Corrective Services had spoken to the detainees effected by the section 28 transfers, advise [sic] was given to counselling staff if any of the boys wish to speak to Legal Aid/their solicitors regarding the transfers it should be arranged for them. I was asked to follow up with [ID] as his counsellor had resigned, the other boys counsellors were also not available - (Maree) had to leave the Centre that day, Karen wasn't working that day and Fiona was acting up in your position. I cannot recall who the four or five boys were as they were not my clients. I arranged for the boys who wanted to speak to Legal Aid to do it as a group, putting their names down with the Hotline to discuss the matter with a solicitor when available. As it was the thursday before Easter the boys were advised Legal Aid would call back after the long weekend. Legal Aid rang me back to ask what was happening and what were the boys concerns, I explained what was happening re transfers to gaol. I did not release any information of files etc, I was asked for copies of information for [ID] but advised I could not do that." 101 This evidence supports a conclusion that Ms Harwood suggested ID contact Legal Aid and that he attempted to do so. Further, and importantly, although Ms Harwood provided some information over the telephone as to what was happening, information from DJJ files was refused, despite the solicitor's request for such information. The Case of PF 102 PF was born on 19 December 1989. On 30 August 2007, he was sentenced in the District Court by his Honour Judge CJ Armitage for an offence of malicious wounding with intent to cause grievous bodily harm contrary to s.33 Crimes Act 1900. The offence was committed on 11 January 2007 when PF was 17 years old. He was sentenced to imprisonment comprising a non-parole period of two years to commence on 12 January 2007 and to expire on 11 January 2009 with a balance of term of two years to date from 12 January 2009 and to expire on 11 January 2011. His Honour found special circumstances for the purpose of s.19 CCP Act and ordered that the entirety of the sentence be served as a juvenile offender. 103 Neither the Crown nor PF appealed to the Court of Criminal Appeal concerning sentence. 104 On 13 January 2007, PF was admitted into Cobham Juvenile Justice Centre and, on 6 September 2007, he was transferred to Baxter. 105 It is the unchallenged evidence of PF (paragraphs 14-28 of his affidavit of 7 August 2007) that he has progressed well at Baxter, including areas of education, training, counselling and therapeutic treatment. He had regular and strong support from his family with his mother and two sisters visiting weekly and his father and cousins visiting fortnightly. In addition, PF had health issues in that he was born with a leaky heart valve and has a rheumatic heart disease which was closely monitored at Baxter or, when necessary, at an outside hospital. In addition, he sustained an eye injury whilst in custody.

[112]

(c) he had the impression that management at DJJ had decided they were going to transfer him to an adult gaol anyway based on his conversation with Ms Ciko. 110 On or about Monday, 7 April 2008, Ms Ciko approached PF and the following conversation ensued: "Ms Ciko: You are going to have your interview with Corrections this Friday. Do you want to have a family member there? PF: Yes, I want my Aunty [xxx] there." 111 In a process similar to ID, a Case Management Committee meeting concerning PF took place on Thursday, 10 April 2008. The Committee comprised Ms Ciko, Mr Stephens and Mr Townsend (Exhibit A, pages 101-103). PF was in attendance together with Ms Hilton, psychologist. PF did not have any family members at the meeting as he had requested, nor did he have a legal representative with him at the meeting. 112 It is PF's unchallenged evidence that a number of things were said during the Case Management Committee meeting (paragraphs 34-38, PF affidavit). PF was informed that medical transfers for his heart condition and eye injury would take place in the same way as in juvenile detention. A DCS officer explained to PF what would happen in adult gaol in the following way: "Officer: You will probably be classified as C1 and go to Silverwater for three or four days, then to Long Bay because parole will probably want to see that you have done CUBIT, the sex offenders' program. PF: I didn't come in for this and should be working alcohol and other drugs and anger management. Why should I go to Long Bay when I'm not in here for a sex offence?" 113 According to PF, the officer did not respond to this query. I interpolate here that it was the fact that PF had been released on two years' probation by the Children's Court on 16 April 2007 for two offences of committing an act of indecency with a person under 16 years, upon condition that he be of good behaviour and accept DJJ supervision and, in particular, counselling to address sex offending behaviour, alcohol and other drugs and associated issues (Exhibit A, page 128). 114 As PF was not serving a sentence of imprisonment for that offence as at 10 April 2008 (or at all), it is difficult to see how those offences (dealt with by way of a probation order) could give rise to an obligation to undertake CUBIT in an adult prison, in particular where that process might prolong his period in custody for other offences. 115 Again, according to PF's unchallenged evidence, during this meeting he asked the DCS officer about his parole: "PF: I don't have long to go, will I get my parole? Officer: You might have to finish CUBIT before you get parole which could take about 18 months." 116 There is support for PF's account on this issue in an email, dated 15 April 2008, from Ms Ciko to Ms Byers (Exhibit A, page 39). Ms Ciko stated that "if [PF] has to do the VOP [Violent Offenders Program] and SOP [Sex Offenders Program] programmes in Corrective Services prior to discharge this could potentially extend his time in custody, as the SOP program is could [sic] be up to 18 months, depending on their assessments". 117 PF raised his leave entitlements with the DCS officer at the meeting: "PF: I'm coming up for leave soon. Will I be able to get that in adult gaol? Officer: No, you can only get day leave or work release if you are classified as C3." 118 During the meeting, PF was asked where he had been born and he replied "New Zealand". At no time during the meeting was there any discussion concerning his citizenship. 119 On 24 April 2008, PF was transferred from Baxter to the MRRC at Silverwater Correctional Complex. On 14 May 2008, he was transferred from MRRC to Parramatta Correctional Centre. On 19 May 2008, he was transferred from Parramatta Correctional Centre to the John Morony Correctional Centre where he currently remains. 120 PF states that, prior to his transfer to an adult prison:

[128]

After an initial period of being unsettled in custody, detainee [PF] is generally well behaved and making positive progress towards his rehabilitation." 125 The authors of the briefing note recommended, for the reasons given in the briefing note, that the First Defendant make a transfer order under s.28 with respect to PF. Mr Muir, the Acting Director-General, signed the briefing note on 21 April 2008. On 23 April 2008, the Second Defendant consented to the transfer of PF and, on the same date, Mr Muir directed that PF be transferred under s.28 to an adult correctional centre (Exhibit A, page 108). In a letter to the Second Defendant dated 21 April 2008, Mr Muir stated that he was "satisfied that it is appropriate that I make an order" under s.28 transferring PF to an adult correctional centre (Exhibit A, page 107). No further reasons were provided by the First Defendant for the decision. 126 The submission to the DCS and committal summary stated that there were behavioural difficulties with PF at Cobham Juvenile Justice Centre, but there was an improvement in his behaviour since his transfer to Baxter on 6 September 2007. Due to improvement in his conduct, PF was transferred on 12 February 2008 to one of the more privileged units in Baxter where he remained up to his transfer to a prison. With respect to program participation, all reports from the school had indicated that PF "displays a mature and positive attitude towards his programs". PF had been approved to participate in all high-risk programs within the Centre environment and he was said to display "a high level of sportsmanship" and was considered by unit staff to be "a mature individual who was polite and co-operative and demonstrates a commitment to improve his skills and knowledge whilst in custody". It was said that PF experienced support from his immediate and extended family whilst in custody through visits and regular telephone contact. 127 Mention was made of PF's "ongoing cardiac condition" and treatment which had been provided to him. It was said that PF had "participated in regular counselling as required" and had been engaged in counselling with Ms Hilton, the Baxter psychologist, since 2007. The submission concluded with a summary noting that PF had improved his behaviour since his transfer to Baxter and that he would "benefit from attending the Young Offenders Programme and Sexual Offenders Programme should he be transferred". It was noted that PF had stated that he wished to stay in the care of DJJ and had elected not to complete a detainee statement in regards to transfer to the DCS. 128 The psychological report by Ms Hilton (Exhibit A, pages 120-124) referred to PF's family background and behaviour in custody, it being noted that PF "responded well to counselling interventions to address the behaviours described above and a general improvement has been noted". He had made rapid progress through the Baxter units and was then resident in a unit which is second only in privileges to those of the top unit. Staff had reported that he was a "quiet detainee who was compliant with Centre rules and procedures". His behaviour at school had been "very good". 129 Ms Hilton referred to PF's offending history and medical history, alcohol and drug issues and counselling. It was said that PF "appears highly motivated to change his offending behaviour". Ms Hilton said that PF had responded to cognitive behavioural interventions to manage his aggression and had learned about the link between his experience of family violence, and his own violence and that some of his aggression was peer driven and that he was developing greater awareness of this. At that time, PF was in week four of an eight-week anger management group in which he had participated well and was "a positive role model for the younger detainees in the group". It was said that PF had the "ability to use positive coping strategies" and that his progress in counselling had been "excellent", but was incomplete. Ms Hilton said that he would benefit by ongoing counselling for his substance abuse, trauma and peer relationships. 130 Ms Hilton said that PF was a young man who had been significantly affected by his experience of family violence and the constant disruptions to his family life. During his time at Baxter, PF had shown "that he is motivated to change his offending behaviour" with this being demonstrated by his "positive behaviour, his commitment to his counselling program and his involvement in Centre programs and activities". He had "responded well to all aspects of his custodial sentence" at Baxter. He was assessed as being at low risk of violence and he appeared "highly motivated to change and has strengths that will increase his chances of successful rehabilitation". 131 The report concluded that, should he be transferred to DCS, PF would benefit from being involved in vocational studies to enhance his opportunities for employment on discharge and that the gains that he had made in his counselling program should be reinforced with a focus on his substance abuse issues, family issues and trauma and peer relationships. 132 The report of the Case Management Committee meeting on 10 April 2008 concerning PF included the following under the heading "Background" (Exhibit A, page 101): "Detainee [PF] has participated in programs and all reports indicates that he displays a positive and mature attitude towards learning. Due to being on a section 19 order and over 18 years of age the DJJ has determined that detainee [PF] should be transferred to the Department of Corrective Services on a section 28 (2) order as requested by the Director General of (DJJ). This section 28 (2) order must be approved by the Commissioner, Department of Corrective Services ." (my emphasis) 133 The recommendations of the Case Management Committee were as follows (Exhibit A, page 102): "Prior to being moved to his gaol of placement detainee [PF] is to be transferred to Metropolitan Remand and Reception Centre to undertake the DCS screening, reception, induction and classification process. Due to his length of sentence and his earliest possible release date of 28/02/2010 we are recommending that he be classified as a C1 inmate upon transfer to the Department of Corrective Services. It is recommended that he be assessed for the Sex Offenders Program at Long Bay Correctional Complex due to the offences of committing an act of indecency with a person under 16 years of age on two occasions. Following this assessment and if time permits we recommend his placement in the Specialised Program for young adult male offenders at John Morony [sic] 1 or Oberon correctional centre. In regards to other program participation it is recommended that detainee [PF] continue with Drug and Alcohol intervention upon transfer to the Department of Corrective Services and also whilst on parole."

[131]

Events Leading to Transfer of DV 141 On or about 19 March 2008, DV's psychologist, Karen Clarke, and Ashley Hardes, Unit Manager at Baxter, came to see DV. Ms Clarke informed DV that he was "on the list of boys who are going to be transferred to adult gaol". Mr Hardes handed DV a form entitled "Detainee Does Not Request Transfer to Department of Corrective Services" and the following conversation ensued: "DV: Is it going to make a difference to the decision to transfer me whether I fill in the form or not? Mr Hardes: To be honest, no, not really." 142 DV states that, based on his conversation with Mr Hardes and having seen other detainees being transferred to adult prison after filling in this form, he was not sure what to write. In the end, he simply wrote "legal advice" on the form. On the same document, Mr Hardes noted that DV "does not wish to make comment". 143 On 10 April 2008, a Case Management Committee meeting took place concerning DV (Exhibit A, pages 137-139). Ms Ciko, Mr Stephens and Mr Townsend were present. DV was present but states that he did not have any family members present, nor did he have a legal representative in attendance at the meeting (paragraph 24). 144 DV stated in his affidavit at paragraph 23, by reference to the form upon which he wrote the words "legal advice", "I had still not seen any lawyers about the form at that stage". 145 DV states that, during the meeting on 10 April 2008, he was informed by a DCS officer that he would be going to Silverwater and then on to John Morony for a few months, and then on to Oberon where he could take part in the Young Adult Offender Program. During the meeting, DV asked what was to happen to his education as he was doing Year 11 through the Sydney Distance Education High School at that time. The DCS officer replied "You should be all right, John Morony has a school. You should be able to continue your education". 146 The DCS officer asked DV whether he was an Australian citizen, to which he responded he was a resident, but was born in New Zealand.

[143]

Detainee [DV] is generally well behaved at Baxter JJC and making positive progress towards his rehabilitation." 150 The briefing note recommended that "for the reasons given in this briefing note" the Acting Director-General should make an order under s.28 for the transfer of DV to an adult correctional centre (Exhibit A, page 142). Mr Muir signed and dated the briefing note that day and, on the same day, wrote to the Second Defendant observing that he was "satisfied" that DV warrants an order under s.28 and seeking the Second Defendant's consent to the transfer before making the order (Exhibit A, page 143). No reasons were provided by the First Defendant for the decision. 151 The submission to the DCS and committal summary observed that, whilst at Baxter, DV had "proven he is able to maintain very good consistent behaviour over a significant period, although he has been the subject of three minor misbehaviour reports" (Exhibit A, page 147). His behaviour had enabled him to participate in community service outings and various community-based sporting activities. With respect to program participation, it stated that DV was currently enrolled in Year 11 studies and that "reports from teachers have always been positive about his behaviour, and his commitment and application to his work" and that he completed Year 10 studies in 2007 (Exhibit A, page 149). 152 It was stated that DV had participated in community service programs and outings including mowing lawns and maintaining gardens at cemeteries, fire stations and public sporting centres and that DV had taken "an active role in programs that help children with disabilities and provide a voluntary service to the community such as surf life saving and maintaining a national park" (Exhibit A, page 149). All reports had indicated that DV "displays a high level of sportsmanship and maturity whilst on outings" and is "reported to be highly proficient at all sports" and that "staff and peers have considered [DV] to be a great role model for other detainees". DV had participated in 30 outings without incident (Exhibit A, page 149). 153 It was noted that DV received strong support from his family who were able to visit on a fortnightly basis and that he kept in regular contact by mail and telephone. 154 The authors of the submission concluded with the following summary (Exhibit A, page 150): " [DV] has been able to demonstrate that he has the ability and willingness to participate and benefit from the educational opportunities offered by Girrakool School. He has partaken in many community service outings and community sporting outings. [DV] has progressed to the most privileged unit at Frank Baxter JJC through the Centre based incentive program. His overall behaviour and ability to comfortably partake in the programs offered at Baxter JJC has rewarded him with B2 classification." 155 The psychological report of Ms Clarke outlined DV's background and his functioning at Baxter, following transfer there on 16 November 2006. The report outlined favourably his education efforts and good family support (Exhibit A, page 155). Ms Clarke observed that DV was a "likable young man" who appeared to have been compromised during his formative years and early adolescence as a result of a number of factors, including family discord, domestic violence, difficulties assimilating to a new country and cultural and financial hardship (Exhibit A, page 155). 156 Ms Clarke provided the following analysis concerning development issues and the impact of incarceration, before moving to recommendations concerning DV (Exhibit A, pages 156-158): "Adolescence is a difficult period, requiring a lot of adjustment and learning, however many have inbuilt protective factors to assist in this process. It appears [DV] did not have significant protective factors however he had many risk factors. Risk factors can be broken down into five categories and it would appear that [DV] had a number of factors from each of the categories. Categories include child factors, family factors, school context, life events and community and cultural factors. When a young person is incarcerated, their ability to move through their developmental stages is significantly compromised. [DV] was incarcerated during his middle adolescence development. Now in the late adolescent phase he has been expected to move through both phases whilst incarcerated. During the latter stage of development it is expected that a person display the following: In terms of movement towards independence the characteristics of this is a firmer identity, ability to delay gratification, ability to think ideas through, ability to express feelings in words, more developed sense of humour, stable interests, greater emotional stability, ability to make independent decisions, ability to compromise, pride in one's work, self reliance and a greater concern for others. There is evidence that over time [DV] has developed and displayed many of these characteristics, however, there is also evidence that he has not achieved proficiency in all the areas. It is worth noting that proficiency in all these areas is not achievable whilst in a custodial environment. In terms of adolescent sexual development, it appears that he has achieved the appropriate levels for his age. He appears clear about his sexual identity, and relationships and all that encompasses. Characteristics that should be noticeable during this period if [DV's] development in terms of ethics' and direction include; capable of useful insight, stress on personal dignity and self esteem, ability to set goals and follow through, acceptance of social institutions and cultural traditions and self-regulation of self-esteem. [DV] has demonstrated many of these characteristics, and is still developing them. In summary, [DV] is very self-focused in his efforts to achieve desirable outcomes. He appears to be able most of the time to delay gratification and compromise and use insight as a way of learning from past experiences. He appears to have achieved movement through many of the tasks mentioned. Overall, though he does appear to be moving through his developmental pathway at a rate that would be described as appropriate given his circumstances. Young people vary slightly from the above descriptions. In conclusion, [DV] is a young man, who experienced some trauma and dysfunction in his life, is incarcerated for serious violent offences and is attempting to capitalize on opportunities that are available in custody such as pursuing education, appropriate qualifications/certificates, counselling and therapeutic programs. Recommendations [DV] has utilised the programs available at Baxter Juvenile Justice Centre. He is realistic, yet anxious about transferring to the adult system. He is currently maximising the benefits including access to individual counselling available for him here. However, [DV] would benefit from an ongoing consistent therapeutic relationship to continue the positive progress he has made to date. Specifically areas to address include further development of his attitudes and behaviour - both covert and overt around violence, his substance abuse, self-worth, taking responsibility for his actions awareness of negative peer associations, victim empathy as well as communication skills." 157 On 23 April 2008, DV was transferred from Baxter to the MRRC at the Silverwater Correctional Complex. On 2 May 2008, he was transferred from the MRRC to John Morony Correctional Centre where he presently remains. 158 DV states that, prior to his transfer to adult prison:

[167]

Submissions of First Defendant 165 Mr Leeming SC accepted that, since Kioa v West (1985) 159 CLR 550, the common law generally imports an obligation of procedural fairness whenever an individual's rights are affected: see, for example, Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 at 91-92; Jarratt v Commissioner of Police for NSW [2005] 224 CLR 44 at 55-57 [23]-[28]. He submitted, however, that there has long been established an exception relating to the administration and management of prisons. Reference was made to Smith v Commissioner for Corrective Services (1979) 1 NSWLR 317 at 329, where Hutley JA (Moffitt P and Glass JA agreeing) said that the Prisons Act 1952 and Prisons Regulations 1968, insofar as they dealt with reclassification of prisoners, did not give rise to private rights enforceable in the ordinary courts. In expressing this view, Hutley JA (at 328) applied the following statement of Dixon J in Flynn v The King (1949) 79 CLR 1 at 8: "It is pointed out in the case of Horwitz v Connor (1908) 6 CLR 38 that if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice. For if statutes dealing with this subject matter were construed as intending to confer the fixed legal rights upon prisoners it would result in applications to the courts by prisoners for legal remedies addressed either to the Crown or to the gaolers in whose custody they remain." 166 Reference was made by Mr Leeming SC to the decision of Dunford J in Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82. There, his Honour considered an administrative law challenge to a decision to transfer a plaintiff from the Special Purposes Centre, Long Bay, to another prison upon the basis that he no longer met the criteria for remaining at the Centre. Dunford J said at 87-88: "Generally the court will be reluctant to interfere in the discipline, administration or management of prisoners: Smith v Commissioner for Corrective Services (1978) 1 NSWLR 317 at 328 citing Flynn v The King (1979) CLR 1 at 7. The court refused to intervene in relation to the hours of confinement of prisoners in Vezitis v McGeechan (1974) 1 NSWLR 718 or in Bromley v Dawes (1983) 34 SASR 73 (transfer within a prison) but there is authority that the decisions relating to individual prisoners are subject to judicial review if made in bad faith or for improper purposes: McEvoy v Lobban [1990] 2 Qd R 235 at 240 per Thomas J, although relief was refused in that particular case. See also Re Walker [1993] 2 Qd R 345 (transfer to another prison) where the court also refused to interfere, but not on the ground that it lacked jurisdiction to do so in an appropriate case.

[168]

In England, administrative law relief has been granted in non-disciplinary cases relating to prisoners including R v Secretary of State for the Home Department; ex parte Herbage (No 2) [1987] 1 QB 1077 and Re Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58." 167 Mr Leeming SC referred to the decision of Hulme J in Panayotov v Commissioner of Corrective Services (10 November 1999, unreported) as the most recent authority applying, inter alia, Smith v Commissioner for Corrective Services and Vezitis v McGeechan (1974) 1 NSWLR 718. In the context of an administrative law challenge to a change in prisoner classification, Hulme J observed (at page 5) that there was nothing in the Correctional Centres Act 1952 or the Correctional Centres (General) Regulation 1995 which expressly excluded the principles of natural justice in the context of a prisoner reclassification decision. Hulme J referred to McEvoy v Lobban [1990] 2 Qd R 235 and Re Walker [1993] 2 Qd R 345 with respect to the making of managerial decisions inside a prison. His Honour then observed (at pages 6-7): "It must be acknowledged that the remarks in both of those cases are not completely apposite here. One might legitimately argue that the classification of prisoners is not precisely described as a managerial decision. On the other hand when one has regard to the difference in criteria between the various classifications, there is certainly some parallel. The prison authorities have the responsibility of keeping offenders committed to their care and custody and the fact that they may at different times take different views as to the restrictions which need to be imposed on individual prisoners is not obviously a situation to which the dictates of natural justice should apply. One may ask rhetorically: Is the Commissioner required in the case of every prisoner when first committed to his care to embark upon an appropriate enquiry with notification to the prisoner of what should, in terms of classification, occur to him? It does not seem to me, when one looks at the functions of classification and the differences between the categories, that the situation is one to which the doctrines of natural justice apply. By necessary implication I would infer they do not." 168 Hulme J concluded (page 8): "The conclusion at which I have arrived is that on the question of classification the plaintiff was not entitled to have exercised or complain about the non-exercise of the principles of natural justice. Had I reached a different view on that matter the question would have arisen whether I should have, in the exercise of the court's discretion, made the declaration sought. The reclassification back to C1 which last occurred argues that any such declaration would be a futility. On the other hand, the plaintiff hopes for parole. He has now served some 11 years of a 17 year and four month sentence imposed upon him, the minimum term of that sentence having been nine years. One might reasonably infer that his history in prison, including his classification there, are matters to which the Parole Board would have regard. He would thus, it seems to me, have a legitimate interest in having this court correct the classification which should not have been made if otherwise he was entitled to it." 169 The First Defendant acknowledges that the management decisions in those cases were different in their details from the decision under s.28 CDC Act and were made under different statutes, but contends, nevertheless, that there is no basis in principle for distinguishing them. In each case, Mr Leeming SC submits that there were demonstrable losses of rights following upon the exercise of the administrative power. In this case, he submits that the transfer of the Plaintiffs to an adult correctional centre meant that a different regime now applies to them. 170 Mr Leeming SC referred to the decision of Studdert J in JMR v Department of Juvenile Justice [1999] NSWSC 169, where an administrative law challenge was made to a decision to move a juvenile detainee from one Juvenile Justice Centre to another. In that case, there appears to have been an acceptance that the duty to accord procedural fairness applied (see [49]-[51]) although his Honour found that no denial of procedural fairness had been established. The First Defendant submits that this decision does not undermine his primary submission (that procedural fairness is not owed to the Plaintiffs) because the point was not argued in JMR v Department of Juvenile Justice. 171 Mr Leeming SC submits that no legitimate expectation can flow from orders made by sentencing Judges under s.19 CCP Act. He submits that s.19(7), and the note to s.19(1), make it quite plain that s.28 CDC Act overrides s.19 CCP Act. Further, the High Court has said that the notion of legitimate expectation is of limited utility: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] 214 CLR 1 at 27-28 [81]-[82], 36-38 [116]-[121] and 45-48 [140]-[148]; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 221 CLR 1 at 22-23 [68]. 172 The First Defendant contrasts the presence of a specific requirement to comply with the rules of natural justice in s.20(3) CDC Act with the absence of such a requirement in s.28 as a further textual indicator that procedural fairness is not required. 173 Mr Leeming SC argues that the Plaintiffs' submission based upon a change of status of the Plaintiffs and their age, does not constitute a sound basis for distinguishing the line of cases culminating in Panayotov v Commissioner of Corrective Services. Accordingly, the First Defendant submits that there was no obligation to accord the Plaintiffs procedural fairness in this case.

[169]

Submissions of the Plaintiffs 174 Mr Haesler SC submits that each of the Plaintiffs was entitled to be accorded procedural fairness in this case. 175 The Plaintiffs submit that it is well established that an administrative decision that affects an individual's rights, interests or legitimate expectations will attract a common law duty to accord procedural fairness, unless the rules of natural justice are excluded by plain words or necessary intendment: Annetts v McCann (1990) 170 CLR 596 at 598. From a number of decision of the High Court including Kioa v West, Annetts v McCann and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, the Plaintiffs submit that it is now settled that the rules of procedural fairness apply generally to governmental executive decision making. They submitted that it is no longer necessary to clarify the decision as one that fits into some set of defined circumstances before a decision maker will be subject to the rules of natural justice. Reference was made to the statement of Basten JA in Commissioner of Police v Ryan [2007] NSWCA 196 at [28] that "the principle that procedural fairness conditions the exercise of a statutory power where the exercise of the power has the capacity to interfere with rights, interests or 'legitimate expectations' of an individual, is now beyond debate". 176 Mr Haesler SC submits that the decisions to transfer the Plaintiffs to adult prisons were decisions that potentially destroyed or impaired some right, interest or legitimate expectation of the Plaintiffs. He submits that it is not the nature of the interest that is critical in determining whether the presumption in favour of a fair hearing applies, but rather "the manner in which it is apt to be affected" (Brennan J in Kioa v West at 619) or, more particularly, whether "the relevant government power or authority was being exercised to [the Plaintiffs'] individual disadvantage" (Deane J in South Australia v O'Shea (1987) 163 CLR 378 at 417). 177 He submits that it is clear that each of the Plaintiffs was potentially seriously disadvantaged by the use of the power under s.28 to move them to an adult correctional centre. In each case, the Plaintiff might well have expected, from the terms of the sentencing order made by the Judge in his case, that he would serve his entire non-parole period in juvenile detention. 178 He submits that the Plaintiffs were also entitled to expect that, at a minimum, before any s.28 transfer was made, the First Defendant would comply strictly with the procedures set out in the Minister's Second Reading Speech in the Legislative Assembly, when the legislation under which these decisions were made was introduced. In the Second Reading Speech for the Children (Detention Centres) Amendment Bill 2006, Mr McLeay, Parliamentary Secretary, said (Hansard, Legislative Assembly, 23 May 2006, page 166): "Currently, all detainees transferring to the Department of Corrective Services on a section 19 order are interviewed at least once by the Department of Corrective Services State Co-ordinator, Young Adult Offender Programs, while still placed at a juvenile detention centre. Family and significant others are invited to participate in these meetings, along with juvenile justice program staff. The detainee's case plan, security classification and placement are discussed and confirmed, and an opportunity is provided for the detainee to ask any questions. Details about the adult correctional system and details about the particular correctional centre in which the detainee will be accommodated are also explained." 179 Finally, and critically, Mr Haesler SC submits that the Plaintiffs would have expected that any transfer decision would take into account the statutory objects set out in s.4 CDC Act: "4 Objects of Act

[185]

(d) under the terms of his sentence, DV was eligible for release on parole on 24 April 2009 - however, as his ability to continue to undertake courses, often seen as a precondition to parole, was jeopardised, he was detrimentally affected as to his prospects to obtain parole which may operate to lengthen his sentence. 183 Mr Haesler SC submits that the CDC Act does not manifest a clear intention to exclude the operation of the rules of procedural fairness. He submits that the broad statutory power under s.28 CDC Act to transfer a s.19 CCP Act detainee, without reference to any statutory criteria, does not manifest a legislative intention to exclude the operation of the rules of procedural fairness. He refers to Jarratt v Commissioner of Police for NSW at 56, 69-70, 89 and 96 where the High Court held that a broad statutory power to remove a Deputy Commissioner of Police was nevertheless subject to the rules of procedural fairness. 184 Mr Haesler SC submits that the objects provision in s.4 CDC Act militates against exclusion of the operation of the rules of procedural fairness. Section 19(7) CCP Act cannot, he submits, be construed as an exclusion of procedural fairness obligations. Section 4 requires the rehabilitation needs of detainees to be considered together with the development and preservation of satisfactory relationships between detainees and their families: s.4(1)(a), (c). Moreover, he submits that s.4(2)(a) requires the First Defendant, in the administration of the CDC Act, to give paramount consideration to the welfare and interests of detainees. All of this, he submits, is inconsistent with an exclusion of the principles of procedural fairness when a s.28 transfer is under consideration. 185 With respect to the line of authority relied upon by Mr Leeming SC concerning prison management decisions, Mr Haesler SC points to authority where a duty to accord procedural fairness has been applied in the prison setting: Renton v Bradbury [2001] QSC 167. In any event, he submits that the decisions under challenge in this case involve a fundamental change in legal status for each individual and are distinguishable. Each Plaintiff changed from a "detainee" under the CDC Act to an "inmate" under the CAS Act with a corresponding change in parole regime. He submits that the prison cases relied upon by the First Defendant did not involve juvenile offenders. 186 Finally, the Plaintiffs submit that the fact that the decision in question may be seen as having policy and financial implications does not provide any basis for excluding the requirements of procedural fairness: South Australia v O'Shea at 388-389.

[186]

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.

[192]

(d) affording the prisoner an opportunity to be heard orally. 203 Mr Haesler SC points to the Minister's Second Reading Speech with respect to the 2006 Bill, extracted at [178] above. While Mr Haesler SC submits that a process as outlined in Parliament would not fully meet the need to accord procedural fairness to the Plaintiffs, he contends that none of the Plaintiffs were dealt with in the manner described by the Minister. 204 The Plaintiffs submit that it is clearly established that the more detrimental the potential effect of the decision, the fairer a decision-making process must be: Attorney-General (NSW) v Quin at 20; Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591. It is submitted that, in this case, the effects could hardly have been more detrimental. Despite the enormous consequences for each of the Plaintiffs (including the potential extension of the time to be served in custody, and the physical and psychological effects of the move), none of the three had family present at the Case Management Committee meeting and none was legally represented at the meeting. 205 In particular, Mr Haesler SC pointed to the Plaintiffs' potential entitlement to parole. Prior to the transfer decision, each of the Plaintiffs could have expected to become eligible for parole. If each participated effectively in the necessary programs, he may have sought release at the end of his non-parole period in 2009. Applications for parole by juvenile offenders are heard by the Children's Court, by specialist Magistrates, in accordance with s.29 CDC Act and Clause 68 Children (Detention Centres) Regulation 2005. Apart from the fact that parole decisions for juvenile detainees are made by a Children's Court Magistrate and not the State Parole Authority, parole decisions are governed by the CDC Act, one of the key objects of which is to ensure that detainees "take their places in the community as soon as possible as persons who will observe the law": s.4(1)(a) CDC Act. 206 By contrast, the Plaintiffs points to the statutory objects in s.2A CAS Act. This provision was inserted in the CAS Act on 20 May 2008 and was not in operation at the time when ID, PF and DV were transferred. The Plaintiffs contrast the objects clause in s.2A CAS Act with that in s.4 CDC Act.

[199]

Submissions of First Defendant 213 In the event that the Court accepts that the Plaintiffs were entitled to procedural fairness, Mr Leeming SC submits that it was extended to them in this case. 214 He submits that each Plaintiff was afforded the opportunity to make a written submission in respect of the decision by way of an invitation extended to them by a DJJ officer. Further, each Plaintiff participated in an oral hearing in respect of the decision by way of their attendance at, and participation in, the Case Management Committee meeting. Further, two of the Plaintiffs, PF and DV, sought and presumably obtained legal advice (paid for by the State through Legal Aid) and the third, ID, had an opportunity to do so. 215 In the case of PF and DV, Mr Leeming SC points to a contemporaneous note dated 7 April 2008 that "all the Islander boys saw Legal Aide [sic] that afternoon" (Exhibit A, page 39; see also Exhibit A, pages 104, 140). The First Defendant submits that this is not disputed by the affidavits of the Plaintiffs. There was no reason why DV could not, some time between 19 March and 10 April 2008, contact a lawyer and the position is said to be the same with PF. 216 In the case of ID, Mr Leeming SC acknowledges that he had a difficulty on Good Friday. But there is no explanation, the First Defendant submits, why ID did not have an opportunity between 3 March 2008 and Good Friday to obtain legal advice. 217 Mr Leeming SC submits that there is no reason to think that the opportunities for legal advice contained in the brochure about which Ms Rusis gave evidence are not real. 218 The First Defendant submits that, on no view does the content of the obligation to accord procedural fairness extend beyond what in fact occurred in this case. To hold otherwise would conflict with the decision in JMR v Department of Juvenile Justice where, at [51], consultation was held to suffice. The First Defendant submits that the proposition that procedural fairness extends to the provision of legal representation, in an administrative context, was rejected by the High Court in New South Wales v Canellis (1994) 181 CLR 309 at 330-331. 219 Mr Leeming SC submits that the Plaintiffs' submission concerning the requirements of procedural fairness in this case (at [210] above) is "lawyer-centric", involves more mandatory content to the hearing rule than any other administrative decision (including, for example, protection visa decisions) and is inconsistent with JMR v Department of Juvenile Justice at [51]. The First Defendant submits that what the Plaintiffs seek is unsupported by any authority. 220 The First Defendant submits that each of the Plaintiffs was given an opportunity to consult a lawyer prior to the relevant decision being made with the timeframe between notification of the possibility of the decision and transfer being four weeks in the case of ID, and five weeks in the case of DV and PF. 221 Mr Leeming SC observed that it is common ground that the ultimate question is whether the process avoids "practical injustice". He submits that in this case, there were written submissions, an oral hearing, examination by psychologists and an opportunity to obtain the benefit of legal advice. The First Defendant submits that no practical injustice is demonstrated by the Plaintiffs.

[210]

(i) the documents provided to the First Defendant, before the s.28 transfer orders were made, were not offered to each Plaintiff or his solicitor, there being no lawful reason why the documents ought be withheld from them. 224 It is pertinent to observe that the provision of legal assistance through the Children's Legal Service was partly funded by DJJ. The principles emerging from State of New South Wales v Canellis must be understood against this background. There was a readily available system of legal aid which could be availed of by each Plaintiff. The evidence does not indicate that there was any practical impediment to arranging contact between a potential transferee and the Children's Legal Service, with the provision of relevant DJJ documents to the solicitor so that informed advice could be given to the detainee, including the prospect of attendance by the solicitor at the Case Management Committee meeting or before the First Defendant. 225 At the very least, informed legal advice could have been provided to each Plaintiff which may have permitted the preparation of meaningful written submissions on behalf of each Plaintiff resisting transfer. In reality, each Plaintiff had no real opportunity to do more than express their resistance to the prospect of transfer, without any proper opportunity to be heard in any more detailed or informed manner. 226 In my view, what occurred in these cases did not meet the requirements of procedural fairness. It did not avoid practical injustice. 227 However, I do not accept the submission for the Plaintiffs recorded at [210] as to the minimum steps which the law requires to accord procedural fairness in these circumstances. Although that submission may reflect a desirable practice, the obligation which I must discharge is to identify the minimum requirements which the law demands to accord procedural fairness. 228 In my view, the answer to the question as to what practical justice requires in the circumstances of this case, may be found in the procedures required by the Court of Appeal in Johns v Release on Licence Board. I have set out at [202] above the steps which the Court determined were required to satisfy the requirements of procedural fairness in that case. With appropriate modifications, I am satisfied that these steps are what is required by law to provide procedural fairness in the present circumstances. The nature of the s.28 decision had such substantial consequences upon the legal status of the Plaintiffs, and the conditions and length of their detention, that the steps identified in that case constitute the minimum requirements of the law to accord procedural fairness to each Plaintiff. I will refer to the four steps identified in Johns v Release on Licence Board and measure what happened here to determine whether procedural fairness was afforded to each Plaintiff. 229 Firstly, it is the case that the First Defendant did notify each Plaintiff orally of an intention to consider possible transfer under s.28 CDC Act. However, there was no formal notification as to when the decision might be made, the process which was to be followed and the extent to which each Plaintiff would have an opportunity to participate in the process. Rather, each Plaintiff was invited to complete, in handwriting, a form setting out what he wished to say with respect to the prospect of transfer. Although the process adopted was less than satisfactory, and was accompanied by comments from DJJ officers which did not instil confidence in the process to follow, it cannot be said that each Plaintiff did not have notice that he was at risk of transfer. 230 Secondly, the First Defendant did not notify each Plaintiff of any material to be considered in relation to possible transfer. It was not submitted at the hearing before me that any of the material placed before the First Defendant was of a type which might be withheld lawfully from the Plaintiff to whom the information related. In my view, this is a critical aspect of the process with respect to which the First Defendant has failed to comply. 231 The provision to each Plaintiff (and his solicitor) of the material which was to be placed before the decision maker would have enabled an informed assessment by each Plaintiff (and his solicitor) of submissions which might be advanced in opposition to transfer. I note, once again, that the DJJ is dealing with a limited number of persons who are subject to s.19 orders and are to be considered for s.28 transfer. It was not suggested at the hearing before me that there was any practical impediment, or any other reason based on resources or policy, which would stand in the way of documentary material being provided to each Plaintiff, and his solicitor. As I have observed above, solicitors from the Children's Legal Service were available, assisted by DJJ funding, so that little more was required of the DJJ beyond provision of the documents to the Plaintiffs and their solicitors. In my view, this aspect is critical to the denial of procedural fairness which I am satisfied has occurred in this case. 232 Given the arrangements whereby DJJ provided funding for the Legal Aid Commission's Children's Legal Service to provide free legal advice and assistance to detainees in Juvenile Justice Centres, it seems to me that it is a short step to facilitate a process where the documentation was available to each Plaintiff and his legal adviser so that the legal adviser may attend the meeting. There is no reason to think that this could not be arranged at relatively short notice if there was said to be an urgent need to consider possible transfer. None of this happened in this case. 233 Thirdly, it is the case that each Plaintiff was permitted to make a type of written submission by way of the form which each had an opportunity to complete. However, it seems to me that written submissions, in this context, means meaningful written submissions prepared by reference to a body of written material which is provided to the person who is liable to suffer substantial detriment as a result of transfer. This did not happen in this case. There was no opportunity to make written submissions in a manner which, I am satisfied, was required by law. 234 Fourthly, it is true that each Plaintiff had an opportunity to be heard orally at the Case Management Committee meeting. However, the Plaintiffs did not have the written material which was available to the Committee members. Importantly, they had no opportunity to seek legal advice by reference to that material nor legal representation at the Committee meeting. Further, I am satisfied that the purpose of the Committee meeting was to permit DCS officers to decide whether transfer should not take place. The Plaintiffs were not afforded a real opportunity to be heard orally on the real question - whether each of them should be transferred to an adult correctional centre at all. 235 I am satisfied that each Plaintiff has made good the claim for relief based upon a denial of procedural fairness.

[216]

(d) the Court's role is to set limits on the exercise of discretion, not to substitute its own view of the merits of a decision; in the absence of any indication of the weight to be given to a particular fact, generally it will be for the decision maker to determine appropriate weight, though in some circumstances, a Court will set aside an administrative decision where inadequate weight has been given to a relevant factor: Peko-Wallsend at 40-41. 237 In order to determine what factors the First Defendant was bound to take into account before deciding to transfer the Plaintiffs, Mr Haesler SC submits that it is necessary to have regard to the relevant statutory context in determining the subject matter, scope and purpose of the CDC Act. The considerations that are, or are not, relevant to a decision maker's task are to be identified by reference to the Act, rather than the particular facts of the case: Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe [1999] 197 CLR 510 at 579; Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323 at 347. 238 It is generally for the decision maker, in the light of matters placed before him by the parties, to determine which matters are relevant and the comparative weight to be accorded to them, "though 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": Peko-Wallsend at 41; Sean Investments Pty Limited v MacKellar (1981) 38 ALR 363 at 375. It has also been held that submissions made by a party can constitute a relevant consideration, though there is of course a considerable overlap with the ground of denial of procedural fairness: Peko-Wallsend at 45. 239 Mr Haesler SC acknowledges that, where decisions are made by Ministers of the Crown, "due allowance may … be made for the taking into account of broader policy considerations which may be relevant to the exercise of ministerial discretion": Peko-Wallsend at 42. Generally, while government policy may constitute a relevant consideration that a decision maker is bound to take into account, if a policy contravenes the relevant legislation by having the effect of disregarding a factor that the statute requires to be taken into account, this constitutes a failure to take account of a relevant consideration: Croft v Minister for Health (1983) 45 ALR 449 at 464-466. 240 The Plaintiffs submit that the application of a policy that prevented a decision maker from taking into account an express statutory object constituted a failure to take into account a relevant consideration: PW Adams Pty Limited v Australian Fisheries Management Authority (1995) 60 FCR 387 at 402, affirmed on appeal in Australian Fisheries Management Authority v PW Adams Pty Limited (1995) 61 FCR 314. 241 Mr Haesler SC notes that s.28 CDC Act, taken alone, appears to give the First Defendant power to move a detainee solely by reason of the person being subject to an order in force under s.19 CCP Act. He submits, however, that s.28 must be construed in its broad statutory context. In order to determine what criteria the First Defendant is bound to take into account in making his decision, it is necessary to have regard, not only to s.28, but to the subject matter, scope and purpose of the Act. He submits that the clearest statement of this is set out in the objects provision in s.4 CDC Act (see [179] above). 242 These objects include the need to ensure that detainees take their places in the community as soon as possible as persons who will observe the law: s.4(1)(a). He submits, in effect, that this requires DJJ to provide detainees with services and resources, such as education and other related services, which will assist in their rehabilitation and meeting their parole. Section 4(1)(b) also requires DJJ to ensure that, in giving effect to this object, sufficient resources are available, and that the detainees are assisted in maintaining contact with their families. 243 Mr Haesler SC submits that the objects of the legislation are factors that the First Defendant was bound to take into account when exercising the s.28 power. He relies upon the decision of Sackville J in PW Adams v Australian Fisheries Management Authority at 402 where his Honour held that the relevant decision was vitiated by the Minister's failure to take account of one of the objectives specified in the objects clause of the Act, where both the Minister, and the Administrative Appeals Tribunal on review, had been guided by a policy that failed to take that statutory objective into account. 244 Mr Haesler SC submits that, in this case, it follows that before the First Defendant made the decision to move each of the Plaintiffs, he was required to have regard to the factors set out in s.4 CDC Act. In particular, he submits that the First Defendant was required to consider:

[223]

Determination 252 It is the fact that the materials placed before the First Defendant with respect to each of ID, PF and DV did contain a powerful body of material pointing to substantial steps towards rehabilitation, education and training by each of these persons whilst in juvenile detention. So much is apparent from the summary of these materials set out earlier in this judgment. 253 It is certainly the case that nowhere in the written materials presented to the First Defendant was reference made to the objects clause in s.4 CDC Act and the way in which those objects may apply to each Plaintiff. 254 I do not accept the First Defendant's submission which seeks to minimise the operation of the objects clause in s.4 CDC Act. 255 Objects clauses are becoming more frequent in modern statutes. The work which an objects clause performs includes operating as a source for identifying the purpose or object of legislation to assist statutory construction: s.33 Interpretation Act 1987. However, the work of an objects clause is not confined to that. In Russo v Aiello [2003] 215 CLR 643 at 645 [5], Gleeson CJ observed that Part 5 of the Motor Accidents Act 1988 was "replete with legislative declarations of its objects" and that this was "not an exercise in apologetics". Rather, it gave "practical content" to an understanding of certain terms in the Act. The significance of an objects clause to both the construction and operation of a statute has been emphasised in other cases: Tickner v Bropho (1993) 114 ALR 409 at 434-435; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 38, 72, 75; Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 565 at 568; Pearce and Geddes, "Statutory Interpretation in Australia", 6th ed, 2006, at [4.42]. 256 In some cases, the statutory objects may have particular importance. For example, it has been observed that the content of a planning scheme may be required to conform to the objects of a statute, and the procedural steps, insofar as they have an object or policy content, may be controlled by the objects of the Act in the sense that if the steps are taken for a purpose foreign to the objects of the Act, the procedural step in truth may not be one within the statutory power: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd at 75 (per Cole JA). 257 In Re Yanner (2000) 100 FCR 551 at 586-587 [95]-[97], Dowsett J observed that, in construing any provision in the Act under consideration, the Court should have regard to the preamble and the objects clause. Reference was made to the statement of Mason J in Wacando v Commonwealth of Australia at 23 that the particular section must be seen in its context, the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose or object. 258 The objects identified in s.4 CDC Act had particular and peculiar application to juvenile detainees. Where the decision under consideration is a transfer of persons from juvenile detention (being a statutory scheme to which the CDC Act applies) to a tougher custodial setting (where the CDC Act does not apply), it seems to me that the decision maker ought have regard expressly to the objects contained in s.4 CDC Act. This is a practical decision under the CDC Act with potential far-reaching adverse consequences for a detainee transferred to an adult prison. 259 The First Defendant has control and management of all detention centres: s.6 CDC Act. The First Defendant exercises various functions under s.14 CDC Act. A significant and potentially far-reaching discretion is vested in the First Defendant under s.28 CDC Act. The statutory scheme is such that the objects contained in s.4(1) and the factors to be taken into account in the administration of the Act in s.4(2), ought be at the forefront of discretionary determinations made by the First Defendant and, in particular, the transfer power in s.28 CDC Act. 260 This is not to say that s.4 factors must govern the result every time so that s.28 transfer is refused. The objects in s.4 apply to all detainees and not just the Plaintiffs. However, there ought be some objective evidence that the decision maker has turned his mind, in a proper fashion, to those considerations. Nowhere in the substantial body of documentary material concerning ID, PF and DV is there an indication that the First Defendant (or anyone else involved in the process) had express regard to these objects. 261 Adopting the words of Gleeson CJ in Russo v Aiello, s.4 CDC Act "is not an exercise in apologetics". Section 4 gives "practical content" to decisions to be made under the Act and, in particular, the large step of ordering the involuntary transfer under s.28 of a well-behaved detainee from a juvenile detention centre to an adult prison. 262 Given the statutory scheme of the CDC Act, I am satisfied that the decision maker was bound to have regard to the objects in s.4 CDC Act, and the practical matters, concerning each Plaintiff which arose for consideration once proper regard was had to the objects clause. 263 It might be said that the First Defendant would necessarily be conscious, and have regard to, the objects clause in legislation which governed the jurisdiction which he administered on a daily basis. In circumstances where there is no sign of these objects being taken into account expressly, and where the decisions themselves do not demonstrate that these objects were taken into account, I am persuaded that the Plaintiffs have made good their claim for relief on this ground as well.

[229]

Submissions of the Plaintiffs 269 Mr Haesler SC submits that the First Defendant exercised the power to transfer the Plaintiffs under s.28 by inflexibly applying a rule or policy whereby s.19 detainees over 18 years of age were to be transferred to the DCS unless there was a serious incapacity or the DCS did not consent to the transfer. 270 He submits that a discretionary power "must be exercised on each occasion in the light of the circumstances at that time": R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407 at 496-497. While it is clearly not impermissible for a decision maker to develop criteria for the exercise of a discretionary statutory power and to take account of policy in doing so (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577), he submits that a failure to consider the circumstances of an individual case will constitute an error of law: Green v Daniels (1977) 13 ALR 1. 271 He submits, in this respect, that a clear illustration is provided by the decision of the Court of Appeal in Rendell v Release on Licence Board (1987) 10 NSWLR 499 at 503. There, the Court held that a decision in which it was made clear that the Board had followed a policy to the effect that persons convicted of murder would not be released until they had served a minimum of 10 years of gaol was made contrary to law. The Court said, at 503, that the Board had failed to carry out its statutory function by making the decision "without regard to the applicability [of the policy] to the particular circumstances of the claimant". 272 In this case, Mr Haesler SC submits that there is evidence that DJJ, in order to respond to the problem of overcrowding in Baxter, simply decided to move all detainees in accordance with this policy unless DCS determined not to take them. That this was the policy, he submits, emerges, inter alia, from documents in evidence and from the concern expressed that the DJJ computer system was not picking up each of the detainees who were over 18 (Exhibit A, page 10). 273 Mr Haesler SC acknowledges that a government department, such as DJJ, is entitled to develop policies to assist it to resolve a problem such as overcrowding in detention centres. He submits, however, that it is necessary to keep in mind s.4(1)(b), which provides that the objects of the Act are to ensure that, in the administration of the Act, sufficient resources are available to enable the rehabilitative objects in s.4(1)(a) to be achieved. 274 He submits that if DJJ decides to ease overcrowding by use of s.28 transfers, it must ensure that the discretionary power is exercised by giving individual consideration to individual cases. Whilst it has been held that it is not impermissible to take account of political considerations in making decisions, those decision makers were Ministers rather than departmental officers: Hot Holdings v Creasy (2002) 210 CLR 438 at 455 [50]. 275 Mr Haesler SC notes that it has been held that in areas of high-volume decision making, it may be permissible (and sometimes necessary) to develop policies or guidelines for the exercise of discretionary powers. In Surinakova v Minister for Immigration, Local Government and Ethnic Affairs at 98, Hill J held that policies can "ensure consistency of administrative decision making", but a "decision maker must take care to ensure that he does not slavishly follow a policy and disregard the particular circumstances of a case". Hill J also cited with approval the decision Khan v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, 11 December 1987, BC8702232) [1987] FCA 457 where Gummow said at [25]: "… what was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy.: 276 In this case, Mr Haesler SC submits that there was no question of "high volume decision making". At the most, some 20 detainees were identified as being potentially liable for transfer, and there is therefore no basis for departing from the need to consider each of the cases individually. He submits that each of the decisions concerning the Plaintiffs is vitiated by the failure to consider the individual circumstances of their cases and impermissibly applying a policy.

[232]

281 It is the case, as Mr Leeming SC submits, that the two detainees to whom he refers were not transferred. One had been previously remanded to Kariong Juvenile Correctional Centre, a DCS facility, where he alleged that he had been assaulted and he claimed he was subject to differential treatment by certain prison officers. A complaint was made to the Ombudsman and a fact-finding investigation was carried out by DCS. It was considered that the complaint may have some merit and legal action was pending. It was for these reasons that this detainee was not recommended for transfer to an adult correctional centre (Exhibit A, page 50). The second detainee who was not transferred had been assessed by a psychiatrist as not being currently competent to fully comprehend and evaluate a transfer decision. Following the Case Management Committee meeting concerning this detainee, Mr Stephens of the DCS indicated that he would recommend that the DCS not consent to transfer based on the detainee's low-level functioning and resultant vulnerability (Exhibit A, pages 50-51). 282 I do not consider that the differential approach concerning these two detainees assists the First Defendant. To the contrary, in my view, it fortifies the Plaintiff's contention on this ground. Further, I do not consider that the evidence of Ms Rusis is of any real assistance on this issue for reasons expressed at [53] to [55] above. 283 I accept that the First Defendant may have regard to overcrowding in Juvenile Justice Centres in considering a possible s.28 transfer of a detainee. Of course, this consideration must be considered against the background of the statutory object of ensuring that resources are available to administer the CDC Act: s.4. I have expressed the view earlier in this judgment that the evidence establishes, on the balance of probabilities, that decisions had been made to transfer ID, PF and DV by the time of the Case Management Committee meetings and before the First Defendant came to consider the documents presented to him. 284 I am satisfied, on the balance of probabilities that the decision-making process with respect to these three Plaintiffs involved the application of a policy that they would be transferred to adult correctional centres unless DCS indicated that such transfer should not take place. Consideration was not given to the individual circumstances of the three Plaintiffs and, in particular, the powerful body of material pointing to rehabilitative action, education and training which was highly pertinent before taking the large step of directing their transfer to adult prisons. Each Plaintiff was bound for transfer to an adult correctional centre once DCS officers had expressed their willingness to accept him. 285 I am satisfied that it was DCS officers who made the effective decision to transfer ID, PF and DV. Decisions which ought to have been based on the exercise of independent judgment by the First Defendant were dictated by persons not entrusted with the power to decide. In effect, the DJJ was acting under the dictation of another body or person, the DCS: Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs at 576. 286 I am satisfied that the policy applied in these cases was not consistent with the CDC Act. It served a purpose which was foreign to the purpose for which the discretionary power was created: Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640. 287 Accordingly, I am satisfied that the Plaintiffs have made good this ground for relief.

ID, PF and DV v Director General, Department of Juvenile Justice and Anor

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