Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 (19 March 2021)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Islam v Director-General, Justice and Community Safety Directorate

[2021] ACTSC 33

ADMINISTRATIVE LAW - PROCEDURAL FAIRNESS - prison discipline procedures - where prison detainee charged with disciplinary breaches - where detainee objected to charge and/or penalty proposed - whether immediate disciplinary action can be taken - whether defendant complied with requirements of the Corrections Management Act 2007 (ACT) - whether plaintiff was afforded procedural fairness

HUMAN RIGHTS - prison facilities - Human Rights Act 2004 (ACT) - whether discipline procedures as implemented with regard to the plaintiff were in breach of s 10(1)(b), namely the right to protection from cruel, inhuman or degrading treatment - whether the same conduct was in breach of s 21(1), namely the right to a fair trial before an independent tribunal

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Corrections Management Act 2007 (ACT) ss 7, 8, 14, 40, 151, 152, 155-165, 167, 168, 170, 171, 173, 175, 176, 178, , , -, , , ,

Court Procedures Act 2004 (ACT) s 5A

Corrections Management Bill 2006 (ACT)

Corrections Management Regulation 2010 (ACT) r 49

Human Rights Act 2004 (ACT) ss 10, 21, 14, 19, 27A, 28, 40B, 40C

Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning and Land Authority [2008] ACTCA 9

Cenbauer v Croatia [2006] ECHR 73786/01 (2007) 44 EHRR 49

Certain Children v Minister for Families [2016] VSC 796; 51 VR 473

Commissioner of Corrective Services v Liristis [2018] NSWCA 143; 98 NSWLR 113

Islam v Director-General Justice and Community Safety Directorate (No 3) [2016] ACTSC 27

Ireland v The United Kingdom [1978] ECHR 1; (1979-80) 2 EHRR 25

Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23

Kalashnikov v Russia [2002] ECHR 596; (2003) 36 EHRR 34

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Knight v General Manager, HM Prison Barwon [2017] VSC 135

Knight v Sellman & Ors [2020] VSC 320

Marijancevic v Page [2020] VSC 68

Momcilovic v R [2011] HCA 34; 245 CLR 1

Nicolae Virgiliu Tănase v Romania [2019] ECHR 491

Novoselov v Russia (European Court of Human Rights, Application No 66460/01, 2 June 2005)

R (Alconbury Ltd) v Environment Secretary [2001] UKHL 23

Re application for Bail by Islam [2010] ACTSC 147; 4 ACTLR 235

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1

Roberts v Harkness [2018] VSCA 215; 57 VR 334

Runa Begum v Tower Hamlets LBC [2003] UKHL 5

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362

Wotton v Queensland (No 5) [2016] FCA 1457; 352 ALR 146

Director-General, Justice and Community Safety Directorate (Defendant)

1. These proceedings involved complaints by Mr Isa Islam, the plaintiff, relating to his detention at the Alexander Maconochie Centre (the AMC). The plaintiff's complaints arose from disciplinary measures applied to him on seven separate occasions under the Corrections Management Act 2007 (ACT) (the Corrections Act).

2. The defendant was the head of the executive branch of government responsible for the operations of the AMC, the Director-General of the Justice and Community Safety Directorate (the Director-General).

3. The plaintiff commenced proceedings on 12 August 2019 and ultimately proceeded on a Third Amended Originating Application filed 27 May 2020 (the Application). The essence of the Application was that there were breaches of the Corrections Act, and that the same conduct breached two of the human rights prescribed in the Human Rights Act 2004 (ACT) (the Human Rights Act). In addition, the plaintiff sought relief in the form of a number of declarations that provisions of the Corrections Act are incompatible with the Human Rights Act.

4. The specific complaint was that when the plaintiff was charged with a breach of discipline at the AMC, he was not given an opportunity to address the charge or to seek review of the decision made before any sanction (such as separate confinement) was imposed. In some cases, the plaintiff accepted the breach but not the sanction. At other times, the breach was not accepted at all. By the time he was able to invoke the procedures set out under the Corrections Act, the punishment had occurred and any challenge became futile.

5. By consent, orders were made on 26 May 2020 which separated the proceedings into two parts. The first part (paragraphs 6-11 of the Application) was to consider whether any breaches of the Human Rights Act and the Corrections Act have occurred. It proceeded by way of a number of separate questions for the Court's determination, based on a statement of agreed facts. The second part was the balance of the Application, involving whether the Court should make any declarations of incompatibility vis-à-vis the Corrections Act. That second part is to be determined through a further hearing at a later date.

6. This course was taken for a number of reasons, all supporting a conclusion that this was the approach that best served the objectives of s 5A of the Court Procedures Act 2004 (ACT), being to determine the real issues in dispute in a just manner, according to law, and as quickly, inexpensively and efficiently as possible.

7. First, the parties considered there was at least some prospect, if not a probability, that if the issues as to breach were resolved first, that may dispose of the entirety of the proceedings.

8. Second, the parties agreed the first part could be resolved without contested evidence and with relatively brief oral argument, meaning that part one of the proceedings could be given an earlier hearing date than would otherwise have been the case.

9. Third, the procedure and considerations involved in determining whether a statute was incompatible with the Human Rights Act are complex matters. The ACT Human Rights Commission was notified of these proceedings and confirmed it did not wish to participate in them. The plaintiff is self-represented. In order for the Court to be in a proper position to consider the complex legal arguments arising in the second part of the proceedings, some form of legal assistance may be necessary; either by way of the plaintiff obtaining pro bono legal assistance if available, or through the appointment of an amicus curiae.

10. The hearing on 10 September 2020 proceeded by way of a statement of agreed facts and the additional tender by consent of a notice or form used to charge the detainee with a disciplinary breach, described as a Charge Notice and Indicated Penalty (Discipline Form 3). There was a foreshadowed tender of a Presiding Officer's Determination and Inquiry Outcome Notice (Discipline Form 5). As events transpired during the hearing, the defendant made two concessions. The first was about the construction of the Corrections Act. The second concerned its implementation with regard to the plaintiff. One of the consequences of those concessions was to make it unnecessary to resolve whether the Discipline Form 5 was appropriate to be before the Court on the separate questions.

11. The issues in the case are the separate questions for determination. They are as follows:

1. On the proper construction of ch 10 of the Corrections Act, can action by a corrections officer, the presiding officer or the Director-General be taken to discipline an inmate:

(a) Without the detainee first having an opportunity for review, either under the Corrections Act or otherwise;

(b) Immediately upon a disciplinary breach charge being issued (via, a Discipline Form 3) under s 159 of the Corrections Act; or

(c) Immediately upon a disciplinary decision being made?

2. Was the defendant's Discipline Policy and Procedure, as implemented with regard to the plaintiff:

(a) Conduct which constituted a denial of procedural fairness;

(b) Conduct which was in breach of the Corrections Act (either because the policy itself was invalid or because it was implemented in a manner that breached the Corrections Act); or

(c) Conduct which was in breach of ss 10(1)(b) or 21(1) of the Human Rights Act?

3. Does the defendant's Discipline Form 3 contain a right to appeal, and/or, an avenue of appeal for an accused inmate?

12. The questions at item (1) are directed to understanding the legislative scheme of the Corrections Act. The questions at item (2) are directed to the legislative scheme as applied to the defendant's conduct in disciplining the plaintiff. Item (3) is directed essentially to the contents of the Discipline Form 3 used by the defendant and was specifically included at the plaintiff's request.

13. The wording of these questions was developed before detailed consideration of the relevant legislation. As a result, the language of the questions is not as apposite as might have been the case. Rather than belatedly amend the wording, the parties have attempted to address the real substance of the issue and I have endeavoured to do the same in these reasons.

14. The agreed facts on which the separate questions were to proceed have been the subject of careful negotiation between the parties and further revision during the hearing. The facts are as follows.

1. The plaintiff...was... a detainee at the [AMC].
2. In late 2017, the plaintiff as a detainee at the AMC had come to maintain his cell in the following manner:

1. From time to time, he erected a tent like structure over his bed using his linen; 2. From time to time, he placed plastic over the observation window in his door;

1. Generally, he fixed papers and pictures to his wall and kept piles of papers on various surfaces around his cell including keeping piles of papers on the floor;

1. Generally, he kept and failed to dispose of, various discarded food containers.
2. From time to time, the plaintiff was counselled by officers about the state of his cell, giving rise to issues of health and safety and concerns as to the capacity of corrections officers to monitor his movements, activities and his well-being.
3. From time to time, the plaintiff asserted that he was entitled to maintain his cell in this condition on the basis of his human rights, most notably his right to privacy.

[First disciplinary charge: Failure to remove papers and plastic bags fixed to walls]

1. On 8 December 2017, a search and clean-up of the plaintiff's cell was conducted.
2. On 26 December 2017, the plaintiff was directed to remove plastic covering from the walls and window of his cell.
3. On 29 December 2017, corrections officers attended the plaintiff's cell to conduct a search and remove plastic bags, paper and other items from the cell. The plaintiff was instructed that a cleaner would be brought in for a further clean. A report of a breach of discipline by the plaintiff was filed in relation to the state of his cell.
4. On 2 January 2018, the plaintiff was again directed by officers to clean up his cell.
5. On 4 February 2018, the plaintiff was once more directed by officers to clean up his cell.
6. On 5 February 2018, officers conducted a search of the plaintiff's cell and removed documents and bags from the cell wall and ceiling and excess rubbish.
7. On 6 February 2018, a Discipline Form 3 was prepared to charge the plaintiff that on 5 February 2018, he refused to comply with a direction to remove all papers and plastic bags from walls.
8. On 7 February 2018, the Discipline Form 3 was served on the plaintiff. The plaintiff was asked whether he understood the nature of the disciplinary breach and action. The plaintiff indicated that he did not admit disciplinary breach and that he did not accept the disciplinary action. These statements were recorded on the form.
9. On 8 February 2018, the plaintiff was given a direction by Corrections Officer Lockwood to clean up his cell. The plaintiff replied, "That's not going to happen".
10. On 9 February 2018, the plaintiff's case manager spoke with the plaintiff and discussed the possible impact that disciplinary action may have on his application for parole. The plaintiff verbally informed his case manager that he may test the lawfulness of the Inmate Disciplinary [P]rocedure issue in the [ACT] Supreme Court.
11. On 13 February 2018, following the indication by the plaintiff that he did not admit the breach or accept the action recorded on Discipline Form 3, an inquiry was [purportedly] held by Corrections Officer Gibson.
12. On that date, a Discipline Form 5 was completed by Officer Gibson and recorded that he considered the following for the purposes of the inquiry:

Detainee was given clear instruction[s] that were understood by the Detainee who admitted he would not comply. I considered if the direction... was lawful and concluded it was a lawful direction for AMC operational purposes. There was no reason offered by the Detainee why he would not comply.

1. On 16 May 2018, the plaintiff filed an Originating Application in the [ACT] Supreme Court (being proceedings SC 214 of 2018) claiming that the Inmate Disciplinary Procedure was unlawful as it did not provide for a 'right to appeal'.
2. At no time did the plaintiff seek an order, and at no time was an order made, which would restrain the defendant in its future application to the plaintiff, and to his particular circumstances, of the Inmate Disciplinary Procedure.

[Second disciplinary charge: Contravening a direction]

1. On 11 October 2018, the plaintiff submitted Detainee Request Form #29232 which alleged that any inmate charge notice or penalty imposed by ACT Corrective Services [(ACTCS)] staff was unlawful or illegal until the proceedings regarding the lawfulness of the Inmate Disciplinary Procedure were resolved in the ACT Supreme Court.
2. On 12 October 2018, the plaintiff filed an Originating Application in the ACT Supreme Court (being proceedings SC 463 of 2018) asserting his right to cover his cell window for religious purposes and challenging the lawfulness of a direction by officers that he remove the cover from his cell window.
3. At no time did the plaintiff seek an order, and at no time was an order made, which would restrain the defendant in its future application to the plaintiff, and to his particular circumstances, of the Inmate Disciplinary Procedure.
4. On 12 October 2018, at 11:45am, the plaintiff was given a Discipline Form 3 and charged with a disciplinary breach of contravening a direction. A penalty was proposed being 3 days' confinement (12 October 2018 - 15 October 2018) in the Management Unit with associated restricted privileges. The plaintiff replied with words to the effect that he was going to challenge or appeal the legality of the discipline charge and penalty and refused to sign the form. The proposed penalty was applied.

[Third disciplinary charge: Failure to remove covering from cell door window]

1. On 14 October 2018, the plaintiff submitted Detainee Request Form #27972 to inform Corrections Officer Kent that the plaintiff believed that any direction to remove coverings from his cell door window and any resulting punishment was unlawful until his proceedings (SC 214 of 2018 and SC 463 of 2018) challenging a previous charge and penalty of the same nature were decided by this Court. Corrections Officer Kent said that ACTCS had a duty of care to the plaintiff and as he was under custodial management observations, ACTCS staff needed to be able to see him. Corrections Officer Kent then left the plaintiff's cell main light on all night to allow for observations to be conducted by camera.
2. On 14 October 2018 at 2:20pm, the plaintiff was given a Discipline Form 3 and charged with a disciplinary breach of contravening a direction to remove coverings from his door window. A penalty was proposed for 3 days' confinement (14 October 2018 - 17 October 2018) to the Management Unit with associated restricted privileges and cancelling the previous discipline penalty dated 12 October 2018. Again, the plaintiff indicated an intention to appeal or challenge the legality of the charge and penalty, refusing to sign the form. The proposed penalty was applied.
3. On 16 October 2018, the plaintiff informed his case manager that proceedings had been filed in the ACT Supreme Court and that until the proceedings were resolved, the plaintiff believed it was unlawful for the defendant to continue issuing charges and applying punishments in the same or similar circumstances as those that were subject to legal challenge.
4. On 16 October 2018, the plaintiff's pay was decreased to a rate of $15.00 per week as a result of his penalty of confinement to the Management Unit.

[Fourth disciplinary charge: Failure to remove coverings from cell door window]

1. On 17 October 2018, at 3:49pm, the plaintiff was given a Discipline Form 3 and charged with a disciplinary breach of contravening a direction to remove covering from his cell door window. A penalty was proposed for 7 days of separate confinement (17 October 2018 - 23 October 2018) in the Management Unit with associated restricted privileges.
2. The plaintiff replied with words to the effect that he was going to challenge or appeal the legality of the discipline charge and penalty and refused to sign the form. The proposed penalty was applied.
3. On 23 October 2018, the plaintiff filed an Originating Application in this Court (SC 471 of 2018) challenging the lawfulness of Corrections Officer Kent's actions to leave the main light in the plaintiff's cell on all night.
4. At no time did the plaintiff seek an order, and at no time was an order made, which would restrain the defendant in its future application to the plaintiff, and to his particular circumstances, of the Inmate Disciplinary Procedure.

[Fifth disciplinary charge: Pasting paperwork on walls and failure to leave a specific area]

1. On 2 November 2018, the plaintiff was given a Discipline Form 3 and charged with a disciplinary breach for contravening a direction in relation to pasting paperwork to walls and failure to move away from a specific area when making disrespectful comments to an officer. A penalty was proposed for 3 days' confinement in the Management [Unit].
2. Once again, the plaintiff stated words to the effect that he was going to challenge or appeal the legality of the discipline charge and penalty and refused to sign the form. Once again, the proposed penalty was applied.

[Sixth disciplinary charge: Failure to remove covering from cell door window and built structures from cell]

1. On 12 November 2018, the plaintiff verbally informed Joanne Lutz [the role of whom was not identified by the parties] of his religious right to pray in private which was the subject of legal proceedings in this Court (SC 214 of 2018; SC [471] of 2018).
2. On 13 November 2018 at 4:15pm, the plaintiff was given a Discipline Form 3 and charged with a disciplinary breach for contravening a direction to remove covering from the cell door window or remove built structures in the cell.
3. A penalty of 7 days confinement (13 November 2018 - 19 November 2018) in the Management Unit with associated loss of privileges was proposed. The plaintiff understood the nature of the disciplinary breach and the recommended disciplinary action but did not admit to the disciplinary breach. The proposed penalty was applied.

[Seventh disciplinary charge: Failure to remove coverings from cell wall and door]

1. On 24 November 2018 at 4:00pm, the plaintiff was given a Discipline Form 3 and charged with a disciplinary breach of contravening a direction to remove coverings from his cell wall and door and remove a tent-like structure on 22 November 2018.
2. A penalty was proposed being 7 days (until 1 December 2018) separate confinement in the Management Unit and associated loss of privileges. The plaintiff replied with words to the effect that he was going to challenge or appeal the legality of the discipline charge and penalty and refused to sign the form. The proposed penalty was applied.
3. On 14 December 2018, the plaintiff filed an Amended Originating Application in relation to proceedings number SC 214 of 2018.

15. By way of completion of the above chronology of agreed events, on 10 April 2019, each of the three proceedings commenced in this Court by the plaintiff, being SC 214 of 2018, SC 463 of 2018, and SC 471 of 2018, was discontinued.

Question 1(a) and 1(b): Can disciplinary action be taken without providing the detainee with an opportunity for review or immediately upon a disciplinary breach charge being issued?

17. As will be seen from the detailed discussion of the relevant sections in the Corrections Act that follows, disciplinary action includes warning or reprimanding the detainee and those actions can be taken without a charge being issued, let alone an investigation of the charge or a review of any decision made about the charge. However, Question 1(a) does not precisely capture the true heart of the dispute, which is what right a detainee has at the time a charge is issued.

18. Question (1)(b) addresses that question, dealing with whether disciplinary action can be taken immediately upon a charge being issued. Once again, the wording of that aspect of the question was more properly understood by the parties as being directed to the situation where a charge was issued but not admitted.

19. The answer to that more refined question is "no". In order to explain why, it is necessary to closely consider the relevant provisions of the Corrections Act. Notwithstanding attempts to summarise and streamline the detail of the provisions, the analysis of the legislation regrettably remains a somewhat tedious journey.

20. The scheme is provided by chapters 10 ('Discipline') and 11 ('Disciplinary Enquiries') of the Corrections Act. Unless otherwise specified, references to section numbers below are to the provisions of the Corrections Act.

21. At the time this legislation was presented in the form of the Corrections Management Bill 2006 (ACT) (the Bill), there was a very deliberate drafting focus, referred to in the Supplementary Explanatory Statement to the Bill as follows:

The Bill is informed by human rights principles and jurisprudence as it stands at the time of the Bill's introduction to the Assembly. Powers and decisions contemplated by the Bill are also crafted to reflect contemporary administrative law principles, which in many cases are also an expression of human rights jurisprudence.

22. That extract is part of an earlier expression of the Legislative Assembly's intent when presenting the Bill (on 14 December 2006), through the Presentation Speech of the then Attorney-General, Mr Simon Corbell (Presentation Speech) (emphasis added):

[T]he government has publicly stated that the Alexander Maconochie Centre will be a secure and safe place that will have a positive effect on the lives of prisoners held there, and on staff who work there. The aim of the prison's management and operations is to give substance to Sir Alexander Paterson's observation that offenders are sent to prison "as punishment, not for punishment". The primary function of a prison or a remand centre is to hold people in secure custody. This function is a means to both uphold the law and provide protection to the community from people who pose a risk to the community in the context of criminal justice.

Along with the powers to manage detainees, the bill also governs the lawful treatment of detainees. To this end, the bill is informed by human rights principles and international cases. The powers provided by the bill are also crafted to reflect modern administrative law principles. The bill aims to leave no doubt as to what is intended to be lawful and what is not. The bill clearly sets the boundaries of any power allocated to the territory's government and corrections authority.

The ACT's Human Rights Act 2004 protects fundamental rights. Any limits on these rights are only permissible if they are authorised by a territory law, they are reasonable and they are justifiable in a democratic society. The Human Rights Act 2004 is not a criminal's charter, as has been suggested by some in this Assembly. Human rights law recognises all of the conditions of humanity, from positive to negative.

Consistent with section 28 of the Human Rights Act 2004, the bill sets out reasonable limitations upon a sentenced offender's human rights and other detainees' rights, consistent with the objects of the bill. The bill stipulates

23. Explanatory statements and presentation speeches in the Legislative Assembly are extrinsic materials that have at times been viewed as being of little assistance and directed more towards serving political ends, rather than as an aid to statutory construction. Nevertheless, they remain a legitimate contextual tool (see items 4 and 5 of Table 142 in s 142 of the Legislation Act 2001 (ACT)) and in this particular case, the lengthy passage above serves to drive home the legislative purpose behind the disciplinary scheme that has been put in place by the Corrections Act. It not only speaks to the primary function of managing the secure custody of prison detainees, but (as seen in the emphasised parts of the above extract) ties the disciplinary scheme directly to the protection of the human rights of prison detainees. This becomes important when considering question 2(c) below.

24. By way of a broad overview only, the Corrections Act contains what may be viewed as four stages for dealing with a breach of discipline:

(a) A preliminary stage (Stage 1), where a corrections officer believes a breach has occurred and creates an initial report, which may lead to a preliminary report. A different person then determines whether the issue should go any further. The preliminary phase allows for the decision-maker to take no action or give a warning or a reprimand. If the decision-maker decides to take a different course, a charge may be issued and/or the matter referred for external criminal investigation: ss 157 and 158.

(b) The internal inquiry stage (Stage 2), which commences when a charge is issued and begins a process that may lead to disciplinary action being taken. The charge contains, among other things, details of the breach alleged and the proposed disciplinary action: s 159. The detainee may elect to have the charge dealt with by consent: 167. If that course is not taken, there is then an internal inquiry, where a presiding officer, who is different from those people involved at the earlier stage, will form a view as to whether the charge is proven and if so, what disciplinary action is appropriate: s 170 .

(c) The internal review stage (Stage 3), where the detainee may seek review by the Director-General of any decision in relation to the charge: s 173. The Director-General's decision must be in writing, notification must occur promptly, and the decision must include the reasons for the decision and notification of the right to apply for external review: s 176(2).

(d) The external review stage (Stage 4), which provides a further right of review to an external adjudicator, with a requirement that any application for external review be made within seven days of the detainee receiving written notice of the Director-General's decision: ss 178 and 179. The adjudicator first decides whether to conduct an inquiry to review the Director-General's decision: s 179. If an inquiry is conducted, the adjudicator has full power to confirm the decision, amend the decision, or set it aside and substitute the adjudicator's own decision, again with a requirement for reasons and notice of the right to apply for review under the Administrative Decisions (Judicial Review) Act 1989 (the ADJR Act): s 180.

25. At any stage of the disciplinary investigation process, the detainee may be segregated from other detainees if a corrections officer or the Director-General considers such a direction to be necessary or prudent for furthering the purposes of pt 10.2: see ss 156(2)(d), 158(2)(g), and 160. Without limiting the reasons why segregation may be thought appropriate, specific aims include: to prevent harm or threatened harm to the detainee or anyone else; to protect the integrity of a disciplinary investigation; and to protect the security or good order at a correctional centre: s 161. Rights of review and conditions about duration attach to segregation decisions: ss 162-165.

Question 1(a): The operation of the scheme before a charge is issued

26. Question 1(a) requires a more detailed consideration of Stage 1. It is necessary to first explain what is meant by a 'disciplinary breach' and 'disciplinary action.'

27. Many things are classified as disciplinary breaches under s 152. Without setting out the full list, the conduct covers matters such as disobeying directions, being disrespectful in a way that undermines authority or is likely to incite violence, doing prohibited things or being in a prohibited area, conduct that impacts on the health or safety of the detainee or others, theft, assault, fighting, intentionally destroying property, gambling, bribery, and attempting to escape.

28. The question is whether any action can be taken to discipline an inmate without providing an opportunity for review. This has been taken to mean whether a corrections officer can take 'disciplinary action'.

29. Disciplinary action against a detainee is defined in s 183 as any one or more of the following (paraphrased):

(c) an administrative penalty (or combination of administrative penalties);

(d) a direction to make reparation in an amount no higher than $500. That figure is arrived at through a combination of s 185 and the currently prescribed amount in reg 49 of the Corrections Management Regulation (2010) (ACT) (the Regulation).

30. As to what constitutes an "administrative penalty", that phrase is defined in s 184 as:

(b) A withdrawal of privileges for not longer than 180 days;

(d) Separate confinement for any of 3, 7 or 28 days; or

(e) Any other penalty prescribed by the Regulation.

31. No other penalty has been prescribed in the Regulation.

32. As stated in the above extract of the Presentation Speech, there is a delineation between prosecutions for criminal offences and the imposition of administrative penalties for disciplinary breaches. If a criminal prosecution commences in the courts, any investigation or action being taken under the Corrections Act is to cease, and vice-versa if an administrative penalty has been imposed on the detainee because of the same disciplinary breach: s 155.

33. Under s 156, if a corrections officer believes, on reasonable grounds, that a detainee has committed a disciplinary breach, the corrections officer has a number of options available to deal with the situation, which can be taken either individually or in combination. The corrections officer may counsel, warn or reprimand the detainee: ss 156(2)(a) - 156(2)(c).

34. Further or alternatively, the corrections officer may direct that the detainee be segregated from other detainees if that course is reasonably believed to be appropriate: s 156(2)(d).

35. The corrections officer may also give a "presiding officer" (defined in s 151 as a person to whom the Director-General has delegated that function) an initial report about the alleged disciplinary breach: s 156(2)(e).

36. The initial report may lead to an initial investigation: ss 157 and 158. Along with the right to segregate while the investigation takes place, there are four broad potential outcomes from the initial investigation. The presiding officer may do one or more of the following:

(b) Counsel and/or warn and/or reprimand the detainee;

(c) Refer the allegation to the chief police officer or director of public prosecutions;

37. Of those four potential outcomes, only one includes any conduct falling within the definition of 'disciplinary action', that being the second outcome, where a warning or reprimand may be issued (counselling is outside the definition).

38. That is sufficient to provide an affirmative answer to question 1(a). As a warning or a reprimand may be taken on the mere reasonable belief of a corrections officer (with or without an initial report), those forms of disciplinary action may be taken without any charge, inquiry or subsequent review, if the relevant presiding officer forms a view that imposing such a sanction is the appropriate course. However, if any other disciplinary action is contemplated, it can be seen that a charge is required.

Question 1(b): The operation of the scheme once a charge is issued

39. The position is different under the Corrections Act if the decision under s 158 is to charge the detainee. That commences what I have described as Stage 2. Under s 159, the charge must be in writing (the prescribed form is the Discipline Form 3) and must include the following:

(b) A brief statement of the conduct said to amount to the breach and the time or period during which such conduct is said to have occurred.

(c) The option of having the charge dealt with by consent.

(d) The election available under s 167 (disciplinary breach admitted by accused) to accept the breach and disciplinary action proposed.

(e) The disciplinary action the presiding officer believes (on reasonable grounds) would be appropriate if the charge were to be dealt with by consent.

40. A detainee then has a day to consider the charge and decide whether to admit the breach and the proposed disciplinary action: s 167(2)(a). The time for consideration of the charge may be extended if the presiding officer believes, on reasonable grounds, that it is appropriate: ss 167(2)(b) and 167(3). If further time is requested, the decision of whether to extend time must be given in writing: s 167(4).

41. If the detainee admits the breach and accepts the disciplinary action proposed (see s 167), that specific disciplinary action (and no other) may be taken: s 168.

42. If the detainee does not admit the breach or penalty or both, an internal inquiry must take place: s 170(2). That consequence is automatic, in that the obligation to conduct the inquiry arises simply on the fulfilment of two criteria: the giving of a charge notice and the detainee not electing to have the charge dealt with by consent: s 170(1).

43. That fact is critical to the resolution of Question 1(b), because there are particular statutory obligations attached to the notification of an internal inquiry, who may conduct it, and the procedures that must be followed. These include:

(a) The presiding officer for an inquiry must give the accused written notice of the inquiry: s 194(1).

(i) a statement about where and when the inquiry is to start;

(ii) details of the charge to which the inquiry relates;

(iii) the closing date for the accused to give the presiding officer submissions to the inquiry;

(iv) a statement about the nature of the inquiry, such as the application of natural justice and how evidence is to be given;

(v) a statement about the right of the detainee to make submissions (by a certain date) in any form acceptable to the presiding officer;

(vi) a statement about what information and documents the presiding officer may require.

(c) The rules of natural justice expressly apply to the inquiry: s 192(2)(a). That obligation is contained in Ch 11, which governs the conduct of all disciplinary inquiries, and expressly applies to an internal disciplinary inquiry: s 190(a).

(d) There is no express statutory provision permitting the taking of disciplinary action while any inquiry process is underway. On the contrary, disciplinary action may only be taken if the presiding officer is satisfied, on the balance of probabilities, that a disciplinary breach charged has been proven: s 171(2).

(e) The corrections officer who performs the role of presiding officer in conducting the internal inquiry must be a different person from each of the people who made the initial report founding the breach notice, investigated the breach, or made the charge: 170(3).

44. The plaintiff argued that at the point he chose to contest some aspect of the charge, the corrections officer was not entitled to simply find the charge proven and impose disciplinary action, without allowing him an opportunity to appeal (in his words) or otherwise seek a review. Following the hearing of argument addressing Question 1(b), the respondent conceded that, on the proper construction of the Corrections Act, no disciplinary action can be taken while the internal inquiry stage is being carried out_._

45. The concession was properly made. There are three key reasons why disciplinary action cannot immediately be taken upon a charge being issued. They highlight the distinction the legislation makes between the investigative stages (what I have described as Stages 1 and 2) and the later review stages (what I have described as Stages 3 and 4).

46. First, the text itself, being the plain words of the statute, prevents disciplinary action being taken while an internal inquiry takes place. Central to that consideration are the words in s 171(2) that "if a charge is proven, the presiding officer may take disciplinary action". The corollary of those words is that if the presiding officer does not find a charge proven, the presiding officer may not take disciplinary action. Proving the charge enlivens the statutory power.

47. Second, the context of the Corrections Act supports the same construction. Consistent with the meaning of the text in s 171(2), division 10.3.2 does not expressly allow for disciplinary action to be carried out before the charge has been properly determined following the internal inquiry. By contrast, s 173(3) in division 10.3.3 and s 178(3) in division 10.3.4 provide that an application for internal or external review does not affect the taking of disciplinary action under the decision under review, subject to any contrary decision made by the Director-General, or the adjudicator.

48. Comparing the sections in the different divisions of the Corrections Act provides a contextual indication that the legislature did not intend to allow disciplinary action to be imposed before a charge against a detainee was decided and found proven. Had that been the case, the legislature would have included in division 10.3.2 an express statutory provision in terms similar to those contained in the subsequent divisions governing internal and external review.

49. A further contextual indicator is that natural justice applies to the investigation of the charge: s 192(2)(a). As part of that obligation, a detainee charged with a disciplinary breach is to be given the opportunity to be heard, including the opportunity to provide submissions: s 194(3). If disciplinary action could be taken in respect of a charge yet to be proven, the words of the statute purporting to give the detainee an opportunity to be heard by a different presiding officer would serve no useful purpose. As pointed out by the plaintiff, any right of review is futile if the punishment has already been carried out.

50. Third, the purpose of the legislative provisions in question supports the finding that once a charge is issued, no disciplinary action can be carried out until the charge is the subject of internal inquiry. The Legislative Assembly's intention has been set out above. Such intention finds expression in the objects of the Corrections Act, one of which is to ensure that detainees are treated in a decent, humane and just way: s 7(c). Correctional services must be managed to achieve that objective, which includes ensuring that behaviour by corrections officers recognises and respects the inherent dignity of detainees as individuals: s 8(c).

51. Applying a punishment only after a charge has been properly notified, investigated by someone unrelated to the initial report, and found proven with reasons given (as required by s 171(5)) is consistent with, and promotes, that purpose and principle.

52. Those objectives are not to be considered to the exclusion of other objectives of the Corrections Act, which also form part of the statutory context. As far as I have been able to discern, there is nothing among the other objectives that might be read as being inconsistent with the above reasoning to the point where a different construction of the powers of corrections officers in Stage 2 arises. For example, another objective is to ensure justice, security and good order at correctional centres: s 7(b). That objective might support a view that corrections officers need to be able to take swift action to deal with situations that arise. However, that is accommodated in the provision for the ability to segregate the detainee from others at any stage during the disciplinary process, including immediately upon conduct occurring - whether that be before a charge is laid, while a charge is investigated or where there is a review process occurring (already addressed at paragraph 25 above of these reasons). It is unnecessary to go into further detail, as segregation measures are not disciplinary action under s 183.

53. For completeness, the Director-General may make corrections policies and operating procedures, consistent with the Corrections Act, to facilitate the effective and efficient management of correctional services: s 14. There can therefore be no doubt that, whatever policy is implemented in terms of disciplinary procedures, it must be consistent with the requirements of the statute.

54. Drawing these considerations together, the text, context and purpose of the statute all support a construction of the Corrections Act that prevents any disciplinary action being taken while a charge is the subject of internal inquiry. The answer to Question 1(b) is therefore "no".

Question 1(c): Can action be taken immediately upon a disciplinary decision being made?

55. In light of the answers to Questions 1(a) and 1(b), the parties agreed that it was not necessary to answer this question. I agree that the above reasons encapsulate the varying rights of the detainee under the Corrections Act. The answer depends upon what disciplinary action is being contemplated, what the detainee's attitude to the alleged conduct is, and what stage of the discipline process (inquiry or review) is in question. As the various possibilities have already been canvassed in the earlier questions, it is unnecessary to answer Question 1(c).

Questions 2(a) and 2(b): Did the defendant's conduct deny the plaintiff procedural fairness and/or breach the Corrections Act****?

56. The answer to each of those Questions is "yes".

57. Before giving consideration to whether there was a denial of procedural fairness, it is convenient to deal first with whether the defendant's conduct, as set out in the agreed facts, was in breach of the Corrections Act. That is because, following oral argument in this Court, the defendant conceded that the procedure required by ss 170(3)(b) and 194(1) was not carried out, so that any disciplinary action taken was in breach of the Corrections Act. Accordingly, there is no longer any issue regarding Question 2(b). Even with regard to the first disciplinary charge, where it is said that an inquiry was held, it was accepted that what was undertaken was not a process that conformed with the requirements of the Corrections Act.

58. However, the defendant nevertheless maintained there had been no denial of procedural fairness. The starting point for consideration of that issue in Question 2(a) is to understand what is meant by the concept of procedural fairness. It is a "flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (Kioa v West) at 585 per Mason J. The variable content of procedural fairness has been described as a "chameleon-like" quality, the requirements of which depend on the circumstances of the case, the nature of the inquiry, the rules under which the decision-maker is acting and the subject matter with which the exercise of the power is concerned: Kioa v West at 612-613 per Brennan J and the cases there-cited.

59. Resolution of the question calls for examination of the statutory provisions, the interests of the individual and the interests and purposes (whether public or private) which the statute seeks to advance or protect: Kioa v West at 585.

60. Fairness is not an abstract concept. It is essentially practical and the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 (Ex parte Lam) at [37] per Gleeson CJ.

61. In the present case, the statutory framework expressly provides for a detailed process which ensures the detainee is properly informed of the charge in writing, and has an opportunity to address it. The inquiry is conducted by a person who is not involved in any of the preliminary stages, and the opportunity to be heard is to be given before any disciplinary action is imposed. A disciplinary inquiry is to be conducted with as little formality and technicality, and "as quickly as the requirements of [the Corrections Act] and a proper consideration of the charge" allow: s 195.

62. Those words are important in explaining why a corrections officer cannot carry out disciplinary action in the meantime. A quick decision at the internal inquiry stage must nevertheless observe the requirements of the Corrections Act and the proper consideration of the charge.

63. What is 'proper' is also determined by the Corrections Act. It involves identification of the conduct, notification in writing of the date when the internal inquiry starts, the opportunity to provide submissions, genuine consideration of the charge by a different presiding officer, and a decision with accompanying reasons. Through these requirements, the 'interests the statute seeks to advance' (recalling the words of Mason J in Kioa v West), are the creation of a transparent, objective decision-making process designed to "respect and protect the detainee's human rights" (s 9(a)), and to "ensure the detainee's decent, humane and just treatment" (s 9(c)). This includes the protection from arbitrary disciplinary decisions, thereby installing confidence in the community "that the administration of the imprisonment is humane and fair": Presentation Speech.

64. In each of the seven instances detailed in the agreed facts, the disciplinary process reached what I have described as Stage 2, with the issuing of a charge and the refusal by the plaintiff to consent to the charge and proposed penalty. In accordance with the Corrections Act, procedural fairness required the plaintiff to be given a written notice of the commencement of the internal inquiry, his opportunity to be heard and a written outcome of the decision with reasons for it.

65. That did not occur in any of the seven instances which are the subject of these proceedings.

66. The defendant submits that, despite the failure of the corrections officers involved to comply with the Corrections Act, all that was required to afford the plaintiff procedural fairness was an opportunity to respond verbally to the charge. It submits this was enough because the plaintiff had been told repeatedly that he needed to clean up his cell, and he had repeatedly failed to do so. He knew the substance of the charge against him, he was given an opportunity to respond, and he did respond. The defendant submitted that because of those matters, there was no need for an investigation or the presentation of written evidence or the opportunity to provide a response in writing.

67. That amounts to a submission that there was no practical injustice. Such a submission misunderstands: the mandatory requirements of the Corrections Act; the purpose of the provisions; and the importance of giving the detainee the opportunity to be heard once a charge is issued, including notification of the potential consequences.

68. The detriment the detainee has suffered is the loss of an opportunity to make representations to an independent decision-maker, in the sense of a presiding officer different from the corrections officer involved in the issuing of the charge. That is, he had the right to put his arguments to a corrections officer one step removed from those asking him to 'clean up his cell' or remove a covering from his cell window. He might have raised the difficulty in organising paperwork without access to stationary supplies (which may have been withheld for security reasons). He might have raised the difficulty of practising his religion and whether there was a means of doing so that accommodated the security of the prison. It does not matter. What matters is the loss of the opportunity.

69. In any event, even if the defendant's argument that whatever submissions the plaintiff may have made could not have affected a decision about breach were accepted, that does not dispose of the issue. The plaintiff's submissions might still have been capable of affecting a decision-maker's view about what penalty was proportionate. This is not a case of a technical breach of a procedure in a statute with no consequence.

70. Accordingly, I do not accept that the plaintiff suffered no practical injustice or that nothing could have been said by the detainee which might have made a difference to the outcome. Each of the penalties imposed on the plaintiff was imposed in breach of the requirements of the Corrections Act and in breach of the procedural fairness obligations created by that statute.

71. The consequence of the denial of procedural fairness has not yet been fully argued, and the parties have proceeded on the basis further argument may be necessary once the answers to these separate questions are known.

Question 2(c): Was the defendant's conduct in breach of ss 10(1)(b) or 21(1) of the Human Rights Act?

(a) the protection from cruel, inhuman or degrading treatment (s 10(1)(b) of the Human Rights Act); and

(b) the right to a fair trial before an independent court or tribunal (s 21(1) of the Human Rights Act).

73. The statement of agreed facts is somewhat unsatisfactory in providing sufficient facts to answer this question. The plaintiff was subjected to separate confinement and an associated loss of privileges on seven occasions over a period of approximately one year. However, it is unclear from the facts relating to the first disciplinary charge how long the plaintiff was confined on that first occasion. In respect of the remaining six charges, the plaintiff was confined for a total period of 30 days. The Court must determine whether that conduct, including the failure to treat the plaintiff in the manner required by the Corrections Act, amounts to "cruel, inhuman or degrading treatment" or further, a breach of the right to a fair trial before an independent tribunal.

74. Before dealing with the specific law concerning each human right, it is important to understand both the Court's task and the Court's general approach when interpreting human rights and applying the provisions of the Human Rights Act to the particular factual circumstances.

75. The Court's task is limited to determining whether the agreed conduct contravened either of the human rights in question. The Court is not concerned with whether the terms of the Corrections Act or the scheme of review it creates are a reasonable limit on those rights. That is assumed, with the question of compatibility reserved for future argument. Nor is the Court concerned with the broader consideration of a human rights claim made under s 40C of the Human Rights Act. Questions about the consequences of the findings that follow, and the nature of any relief are also outside the scope of the present determination of these separate questions.

76. As to the Court's general approach in interpreting and applying the Human Rights Act, the approach is informed by the fact that the rights set out in the Human Rights Act are "primarily" drawn from the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 28 January 1993) (ICCPR): Explanatory Statement to the Human Rights Bill 2003 (ACT) at 3; Re application for Bail by Islam [2010] ACTSC 147; 4 ACTLR 235 at [18] per Penfold J.

77. The protection of human rights crosses borders, with the human rights set out in the ICCPR having been implemented and considered in a number of other jurisdictions. The task of interpreting and applying the Human Rights Act may therefore be assisted by reference to the judgments of international and foreign domestic courts which have logical or analogical relevance to the interpretation of a statutory provision, with due caution exercised for the particular statutory and constitutional framework in the jurisdiction and any variations in the words used of the sections under consideration: Momcilovic v R [2011] HCA 34; 245 CLR 1 (Momcilovic) at [18] per French CJ; at [146] per Gummow J.

78. This is reflected in s 31 of the Human Rights Act, which expressly provides that international law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right.

79. Further, each right is to be construed in "the broadest possible way": see Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473 (Certain Children) at [143] and the authorities there-cited.

The right to protection from cruel, inhuman or degrading treatment

80. Section 10(1)(b) of the Human Rights Act is in the following terms:

S 10 Protection from torture and cruel, inhuman or degrading treatment etc

(b) treated or punished in a cruel, inhuman or degrading way.

81. From the agreed facts, it can be seen that the circumstances here focus attention upon the 'degrading treatment' aspect of the section. What constitutes cruel, inhuman or degrading treatment is not defined in the Human Rights Act.

82. Schedule 1 to the Human Rights Act confirms that the relevant article of the ICCPR which has been implemented is art 7, the words of which are as follows:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment...

83. Those words are also to be found in the Universal Declaration of Human Rights (the Universal Declaration) (art 5)[1] and the European Convention on Human Rights (the ECHR) (art 3)[2]. Again, there is no definition of the phrase in either the Covenant, the Universal Declaration or the ECHR.

84. Similarly, the words of the section as extracted above are almost identical to the language found in s 10(b) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Victorian Charter), save that the opening words of that section commence: 'a person must not be'. The phrase is not defined in the Victorian Charter either, but s 32 mirrors the express provision in s 31 of the Human Rights Act, in that international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision of the Victorian Charter.

85. As a result, there is a substantial body of jurisprudence dealing with this particular human right, from which a number of applicable principles have been extracted in the reasons that follow. Many of the principles below and the international jurisprudence giving rise to them were collected and discussed by Garde J in Certain Children at [162]-[168]. I would respectfully adopt those principles as applying to the Human Rights Act in the Territory.

86. Conduct is said to be 'degrading' when it is such as to arouse feelings of fear, anguish and inferiority in a victim, capable of humiliating and debasing a person: Kalashnikov v Russia [2002] ECHR 596; (2003) 36 EHRR 34 (Kalashnikov) at [95]. The right is concerned with the deliberate imposition of severe suffering: Certain Children at [163].

87. Not every finding that conduct was cruel, inhuman or degrading will amount to a contravention of the Human Rights Act. What is required is an assessment of the severity of the conduct. The ill-treatment must attain a minimum level of severity before it will be found to contravene the Human Rights Act: Kalashnikov at [95], cited in Islam v Director-General Justice and Community Safety Directorate (No 3) [2016] ACTSC 27 at [158] per Mossop AsJ (as his Honour then was).

88. In Kalashnikov at [102], the European Court of Human Rights found that conditions of detention in Russia amounted to degrading treatment. The Court took into account, in particular, the severely overcrowded and insanitary environment and its detrimental effect on the applicant's health and well-being, combined with the length of period during which the applicant was detained (a period of 4 years and 10 months).

89. The assessment undertaken by the Court as to whether a particular threshold of severity has been met is a relative assessment, in that it depends on all the circumstances of the case. Without limitation, the type of considerations that may inform the assessment include the "duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim": Ireland v The United Kingdom (1978) 25 Eur Court HR (Ser A) [162], cited in Knight v General Manager, HM Prison Barwon [2017] VSC 135 (Knight) at [25]; Novoselov v Russia (European Court of Human Rights, Application No 66460/01, 2 June 2005) (Novoselov) at [39].

90. Other factors a court may take into account include: the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it; the context in which the ill-treatment was inflicted (such as an atmosphere of heightened tension and emotions); and whether the victim was in a vulnerable situation: Nicolae Virgiliu Tănase v. Romania [2019] ECHR 491(Tănase) at [121]. Although the context is important, a victim's behaviour is not usually relevant of itself: Novoselov at [38].

91. The minimum level of severity usually involves actual bodily injury or intense physical or mental suffering; although treatment that humiliates or debases an individual and is capable of breaking an individual's moral and physical resistance may also suffice: Tănase at [118].

92. A lack of intention to humiliate or debase a person may be a factor to be taken into account, albeit any lack of intention will not be determinative in ruling out a breach of the human right: Kalashnikov at [101]. The case of Kalashnikov was recently considered in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at 269 (at [19]), although that was a decision where degrading treatment was expressly defined in s 5(1) of the Migration Act 1958 (Cth), with the definition including intention as an element.

93. The principle that a lack of intention is relevant but not determinative has been expressly referred to in this Court: see Eastman v Chief Executive of the Department of Justice and Community Safety [2010] ACTSC 4 at [94], citing Cenbauer v Croatia [2006] ECHR 73786/01 (2007) 44 EHRR 49 at [43]- [44].

94. Conduct that is otherwise legitimate treatment or punishment does not contravene the right, even though there may be a degree of inevitable humiliation connected with the treatment: Wainwright v United Kingdom (2007) 44 EHRR 40 (Wainwright) at [41]; discussed in Knight at [25]. Examples of legitimate treatment that does not contravene the right might be the lawful deprivation of liberty and the consequent loss of privacy, or the conducting of a strip search.

95. Before treatment will be found to be in breach of the human right in question, the suffering and humiliation involved must go beyond that connected with a given form of legitimate treatment or punishment: Novoselov at [38]. However, even when official conduct does go beyond legitimate treatment, and does not accord with 'rigorous adherence to procedures and all due respect to [a prisoner's] human dignity' (Wainwright at [44]), that may not necessarily amount to conduct that is 'degrading'.

96. Similarly, official conduct which is excessive or disproportionate also does not necessarily contravene the right: see Wotton v Queensland (No 5) [2016] FCA 1457; 352 ALR 146 at [697] and the examples there-cited, which included the excessive use of pepper spray by police or handcuffing a person for a court appearance.

97. Given the facts under consideration, specific reference should be made to the fact that the segregation of a prisoner from the prison community does not in itself constitute a form of inhuman treatment. Prolonged solitary confinement is undesirable, but regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned: see Certain Children at [167] and the authority there-cited.

98. Applying those principles to the circumstances of this case, the plaintiff was subjected to separate confinement which did not accord with rigorous adherence to the procedures set out in the Corrections Act. If that statute is taken to reflect the gold standard for respect for a prisoner's human dignity, that was not accorded to the plaintiff. The treatment was also of a repeated nature, over the course of a year.

99. However, it does not follow from the repeated failure to comply with the requirements of the Corrections Act that there has been a contravention of s 10(1)(b) of the Human Rights Act. So far as the facts permit, the confinement imposed was unlawful, but it was of short duration on each occasion. There is nothing in the agreed facts which would permit the Court to draw the inference of a deliberate intention to humiliate or debase the plaintiff, or of any specific mental or physical effect on the prisoner. Not being given an opportunity to be heard in respect of charges of disciplinary breaches is a serious matter, but it is not conduct that I consider would cross the threshold of severity so as to constitute a breach of s 10(1)(b) of the Human Rights Act.

100. Section 21(1) of the Human Rights Act provides:

S 21 Fair Trial

1. Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

101. Section 21 is the source of a positive right to a fair trial: R v Griffin [2007] ACTCA 6 at [4]. The right has been confirmed as applying to civil trials as well as to criminal proceedings: see Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning and Land Authority [2008] ACTCA 9 at [38] and the cases there-cited.

102. The right to a fair and public hearing refers to a procedurally fair process. Again, what is required to ensure compliance with s 21 of the Human Rights Act is flexible, depending on the circumstances of the case. Different measures may be necessary to give practical effect to the right to a fair trial: Roberts v Harkness [2018] VSCA 215; 57 VR 334 at [46]- [47], cited in Marijancevic v Page [2020] VSC 68 at [21].

103. In cases where a person is a prison detainee, particular regard must be taken of the need for enforcement of security in a custodial environment: see Commissioner of Corrective Services v Liristis [2018] NSWCA 143; 98 NSWLR 113 (Liristis) at [104]-[107]; Knight v Sellman & Ors [2020] VSC 320 at [205]. This is reflected in the highly prescriptive scheme provided in the Corrections Act.

104. The defendant submitted that the scheme includes (or does not exclude) a right of judicial review provided by the Administrative Decisions (Judicial Review) Act 1989 (ACT): see s 180(2)(b), where there is express reference to the requirement for an external adjudicator to notify an affected detainee of a further right of judicial review.

105. Relying on the availability of judicial review, the defendant submitted that the fact that the plaintiff was not prevented from commencing proceedings in this Court supported the position that the right to a fair hearing under s 21(1) of the Human Rights Act had not been breached. Attention was drawn to authorities such as R (Alconbury Ltd) v Environment Secretary [2001] UKHL 23 and Runa Begum v Tower Hamlets LBC [2003] UKHL 5. Those cases were each directed to whether the statutory scheme in question under a particular statute was compatible with a person's right to a fair determination of civil rights by an independent and impartial tribunal.

106. However, while the Corrections Act is highly relevant to the present question, what is under consideration is not whether the terms of the legislation afforded the plaintiff a fair trial by an independent and impartial tribunal. That is a question for the later argument with regard to compatibility. In the present case, the legislation was not the hurdle for the plaintiff. It is that the legislation was not followed which is the current concern for this Court. For this reason, the cases upon which the defendant relied do not provide much assistance.

107. It has already been found that the plaintiff was denied procedural fairness. He did not have the opportunity to have his rights and obligations recognised by law decided by an independent tribunal after a procedurally fair hearing. However, that is not determinative of the question whether there was a contravention of s 21(1) of the Human Rights Act. As with the discussion in relation to the right to protection from degrading treatment, where not every finding of degrading conduct will constitute a contravention of the statute, not every breach of procedural fairness will result in a finding that a public authority has contravened a person's statutory human rights.

108. Similarly, although the defendant has conceded that the Corrections Act was breached, not every breach of the provisions creating the disciplinary scheme under the Corrections Act will translate into a finding that there has been a breach of s 21(1) of the Human Rights Act. That may be because the obligations created by the Corrections Act are more onerous than circumstances that would be considered to satisfy a 'fair trial' under the Human Rights Act, or it may be that the breaches conceded were found to be trivial, or it may be any other combination of reasons.

109. A degree of flexibility also arises in part because of the inherent nature of the right itself, in that what constitutes 'a fair trial' cannot be catalogued. In Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 57, when dealing with fairness in the context of a criminal trial, Deane J said:

The identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience.

110. What is required is an evaluative assessment of all the circumstances to see whether the conduct amounts to a contravention of the right as described is s 21(1) of the Human Rights Act. That results in a flexible standard and the Court's task is to consider all the relevant factors in giving content to that standard.

111. Here, there are five factors about the circumstances of this case that combine to result in a finding that there was a contravention of s 21(1).

112. The first is that the plaintiff was in a position of vulnerability, by virtue of the fact of his incarceration. The vulnerability operates in terms of the power that those managing the AMC were able to exercise over him, but also in terms of the consequences of the constraints of custody. For example, he did not have ready access to lawyers, legal advice, the ability to make an immediate phone call or even a computer on which to immediately try to personally research whether and how the process as it was applied to him accorded with the terms of the statute. These are not agreed facts, but it is uncontroversial that a consequence of the deprivation of liberty is that rights and freedoms which are enjoyed by other citizens are necessarily curtailed: Certain Children at [175]. The items listed in that example are intended to be indicative of the types of things that make a detainee more vulnerable when statutory powers are not lawfully exercised. The material point is that the plaintiff's opportunity to receive a procedurally fair hearing very much depended on proper compliance with the statutory scheme.

113. The second factor is the statutory scheme itself. It gives content to what constitutes a fair trial, but in the present case, it also informs the content of the standard by which the relevant human right is assessed. The Legislative Assembly has indicated that the statutory scheme itself is what constitutes affording a right to a fair trial that complies with s 21(1) of the Human Rights Act in a custodial setting. The Presentation Speech and the objectives of the Corrections Act indicate that the statutory scheme was set up with the human right to a fair trial very much in consideration. Where the Legislative Assembly has expressly held out a statutory process as being the standard for compliance with a human right under the Human Rights Act (and assuming compatibility for the present argument), the Court should give effect to that standard. As the statutory process was found to have been breached in a substantive way, that is a matter of significant weight in evaluating whether the human right to a fair trial was contravened.

114. The third factor is the nature of the subject matter of the hearing that gave rise to the human right. What was at stake for the plaintiff was the potential for a further deprivation of liberty by way of separate confinement within the AMC, and an associated loss of privileges. The further deprivation of liberty of a person already lawfully confined is a serious matter, which leans the evaluative assessment towards a finding that the human right has been contravened. This was not a trivial breach.

115. The fourth factor is the stage at which the breaches of the Corrections Act occurred. The point at which the fair hearing before an independent court or tribunal would have been afforded was at an external review (Stage 4) or on judicial review. This was not a case where the conduct involved was a procedurally flawed hearing after an internal inquiry had been properly carried out. The failure to comply with the Corrections Act occurred at a much earlier stage, with the consequence that no hearing was afforded at all, let alone a hearing before an independent tribunal or court. Accordingly, the entire statutory process miscarried.

116. The fifth factor relates to the fact that the conduct was not isolated or inadvertent. On seven occasions over the course of a year, disciplinary action was imposed without the opportunity for any hearing being given to the plaintiff. The repeated breach is indicative of the conduct being systemic.

117. Importantly, it is no answer to say that the plaintiff had the opportunity to seek an injunction in various Supreme Court proceedings that had been commenced but did not seek such an order (which was the import of various agreed facts (see [18] and [30] of the agreed facts). It is also not to the point that the plaintiff has been able to ventilate his complaints in the present proceedings in this Court. The time at which the Court assesses whether there has been a breach of the human right is when the conduct occurred. The provision of a public hearing after the event does not cure the ill conduct. There is little point in belatedly undertaking a procedurally fair trial in the Supreme Court if the very thing that the trial is meant to determine has already been irrevocably lost.

118. In any event, it should not be incumbent upon a detainee to take action in the Supreme Court in the first instance in order to compel corrections officers to comply with mandated statutory procedures. Reliance on the abstract possibility of a detainee seeking a hearing in a court, including an application for urgent injunctive relief, is not sufficient to discharge compliance with s 21(1) when in reality, the barrier to the detainee occurred at a much earlier stage in the process and in too swift a fashion for a person in the plaintiff's position to act.

119. The circumstances of the individual being in custody; the very clear regime provided by the statute as to the boundaries of power and how it should be exercised with specific reference to ensuring compliance with detainees' human rights; the serious subject matter of the decision being made about the plaintiff; the complete lack of any hearing at all; and the systemic nature of the conduct all weigh in the evaluative assessment to arrive at a conclusion that the conduct was substantial enough to constitute a contravention of s 21(1) of the Human Rights Act.

Question 3: Does the Discipline Form 3 contain a right to appeal, and/or, an avenue of appeal (or review) for an accused inmate?

120. The strict answer to the first part of this question is "no". An appeal is a creature of statute and the Corrections Act does not create any express right of appeal.

121. As to the second part of the question, the words "avenue of appeal" were understood by the parties to mean appeal or review. Again, the answer is "no"; the Discipline Form 3 does not contain any express provision for a detainee to invoke a right to any review. What it contains is a series of questions, the answers to which trigger different consequences under the Corrections Act. The way to exercise the right for an internal inquiry is by the detainee indicating on the form that he (in this case) does not agree to the charge and/or penalty proposed. However, as will be apparent from what follows, that is not clear from the relevant form.

122. The Discipline Form 3 contains various items that must be recorded in order to comply with s 159 of the Corrections Act. It has been convenient to describe the form in three parts.

123. First, the Discipline Form 3 provides space to record the type of incident, the location, the nature of the disciplinary breach charged, the details of the detainee charged, the time and date of the charge, the reporting officer and the date of the report.

124. Second, the form sets out the indicated penalty recommended and provides for the time and date of service of the form to be recorded. The document that was in evidence did not have those matters recorded. Those details are critical to the process, as detainees have 24 hours from the time of service to consider the details of the charge. They do not have to respond to the charge that is recorded as soon as they are given the form.

125. The third component of the form is contained on the second page. There is a large box with the title "To be Completed by the Detainee". Underneath that heading are the words:

Note: If you admit to the breach and accept the proposed disciplinary action (deal with the matter by consent) the action will be carried out

Do you: ...[detainee's name] understand the nature of the disciplinary breach and the recommended disciplinary action?

126. Underneath that question are two small boxes, providing for a yes/no response.

Do you admit to the disciplinary breach of which you are accused?

128. Again, there is space for the detainee to tick 'admit/do not admit', by way of a response.

129. Underneath the large box, there is then a question whether the detainee accepts the disciplinary action recommended, and a space for ticking 'yes/no'. At the end of the Discipline Form 3 there is also a space for a signature, although it is unclear whether the signature is intended to be that of the detainee or the person serving the notice and recording the information.

Does any part of the Discipline Form 3 contain avenues of review?

130. From the above description, it can be seen that no part of the Discipline Form 3 deals with any review rights.

131. That does not mean there is no right to review. On the contrary, as will be apparent from the reasons in respect of Questions 1 and 2, there is a series of avenues for review. However, before any review, there must first be an internal inquiry to determine whether the charge is proven. There is no requirement for the detainee to do anything in order to commence an internal inquiry, other than to indicate that he (in this case) does not admit the charge. As there is no formal application for an internal inquiry (that is, the inquiry is automatic upon a detainee's lack of consent), it may be understandable to those familiar with the legislation why the Discipline Form 3 is silent on that process.

132. Of course, many detainees will not be in such a position of familiarity, and there was much discussion about the adequacy or otherwise of the Discipline Form 3 in evidence. The plaintiff submitted that the form itself is confusing and that is why he wanted Question 3 answered by a Court.

133. The plaintiff drew attention to difficulties in understanding the questions on the second page, and the ambiguity about whether the question outside the box and the signature were part of the information to be completed by the detainee, given that they were not included in the box entitled "To be Completed by the Detainee".

134. The further point of confusion was the uncertain consequences if a detainee did not elect to "deal with the matter by consent". There is no mention of the time by which the detainee has to make a decision about the charge, nor is it stated what the statutory consequences are of not electing to deal with the charge by consent (being that an internal inquiry must commence).

135. The plaintiff described the process of seeking to invoke his right to an internal inquiry and to respond by way of submissions as part of that inquiry as "Kafkaesque". For the plaintiff, that was a reference to an episode from the television series "Breaking Bad" (season 3, episode 9, entitled 'Kafkaesque'). I have taken the submission as an argument that, for a detainee attempting to navigate the system for inquiry and review of disciplinary breaches, the process was a "nightmarish, bewildering situation". Those words form part of the ordinary dictionary definition of 'Kafkaesque' (Macquarie Dictionary 8th Ed).

136. The word derives from the writings of Franz Kafka, which include The Trial. First published posthumously in 1925, the protagonist in The Trial is arrested and is unable to find out what crime he has been accused of. Thereafter, he faces the labyrinthine bureaucracy of the law. Included in The Trial is a parable titled "Before the law" which contains the following:[3]

Before the law stands a door-keeper. A man from the country comes to this door-keeper and asks for entry into the law. But the door-keeper says he cannot grant him entry now. ...Since the door to the law stands open, as it always does, and the door-keeper steps to one side, the man bends to look through the door at the interior. When the door-keeper notices this, he laughs and says: "if you are so tempted, just try to enter in spite of my prohibition. ..." Such difficulties had not been expected by the man from the country; the law is supposed to be accessible to everyone and at all times, he thinks...

137. From time to time, judges have found the parable an appropriate analogy for factual circumstances that arise before the courts: see, for example, Chu Wang v Minister for Immigration & Multicultural Affairs [1997] FCA 70 at [1].

138. That seems to be the crux of the plaintiff's complaint here - an inability to navigate a system that he thinks should be accessible to him. The plaintiff in the present case gave an example of why he felt his circumstances were Kafkaesque, being the consequences of a lack of any reference on the Discipline Form 3 to the fact that if a detainee does not elect to deal with the charge by consent, an internal inquiry will commence. The subsequent form, being the Discipline Form 5, includes the words 'the detainee has been offered the opportunity to respond'. The plaintiff's rhetorical question was: how can a detainee avail himself of an opportunity to respond when there is no mechanism for him to be made aware that the inquiry is happening, or what the outcome of that inquiry was?

139. There is much force in the plaintiff's submissions about the unsatisfactory elements of the Discipline Form 3. However, it is unnecessary in determining the separate questions to address how the scheme mandated by the Corrections Act is being implemented (and the Discipline Form 5 was not ultimately admitted into evidence). It suffices to say that in light of the findings above, there is confusion at Stage 2 of the statutory process.

140. As the form in question does not provide for the detainee to seek review, the answer to Question 3 is therefore "no". However, that is because when the scheme under the Corrections Act (and in particular, s 194) is properly implemented, the internal inquiry commences automatically upon the detainee communicating on the form that he does not elect to have the charge dealt with by consent.

141. The separate questions are answered as follows:

Question (1): On the proper construction of Ch 10 of the Corrections Act, can action by a corrections officer, the presiding officer or the Director-General be taken to discipline an inmate:

(a) Without the detainee first having an opportunity for review, either under the Corrections Act or otherwise?

(b) Alternatively, immediately upon a disciplinary breach charge being issued under s 159 of the Corrections Act?

(c) Alternatively, immediately upon a disciplinary decision being made?

Question (2): Was the defendant's Discipline Policy and Procedure, as implemented with regard to the plaintiff:

(a) Conduct which constituted a denial of procedural fairness?

(b) Conduct which was in breach of the Corrections Act (either because the policy itself was invalid or because it was implemented in a manner that breached the Corrections Act);

(c) Conduct which was in breach of ss 10(1)(b) or 21(1) of the Human Rights Act?

Answer: Yes (s 21(1)).

Question (3): Does the defendant's Discipline Form 3 contain a right to appeal, and/or, an avenue of appeal for an accused inmate?

I certify that the preceding one hundred and forty-one [141] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

[1] GA Res 217A (III), UN GAOR, 3rd session, 183 plen mtg, UN Doc A/810 (10 December 1948)

[2] Opened for signature 4 November 1950, ETS No 5 (entered into force on 3 September 1953)

[3] Franz Kafka, The Trial (Penguin Books, 2010 ed.) at 166.