Supreme Court of the ACT|2015-02-20|Before: Mossop M

Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20 (20 February 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Islam v Director-General of the Justice and Community Safety Directorate

The originating application dated 10 November 2014 is dismissed.
The proceedings are listed on 27 February 2015 at 10:00am for any further submissions on costs.

ADMINISTRATION OF PRISONS - operation and effect of corrections management policies - whether the Director-General should provide incarcerated plaintiff with "full-time, meaningful employment" - effect of objects of Corrections Management Act 2007 (ACT)

HUMAN RIGHTS - whether refusal to provide employment to incarcerated prisoner is a breach of the Human Rights Act 2004 (ACT) s 19

Eastman v Chief Executive of the Department of Justice and Community Safety (2010) 4 ACTLR 161

Eastman v Chief Executive of the Department of Justice and Community Safety [2011] ACTSC 33

Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285; (2009) 168 LGERA 99

Isa Islam v The Queen [2013] ACTCA 10

R v Islam [2011] ACTSC 32

Director-General of the Justice and Community Safety Directorate (Defendant)

1. Mr Isa Islam has applied by originating application filed 6 November 2014 for the following orders:

That the Chief Executive of the Department of Justice and Community Safety provide the plaintiff with access to full-time, meaningful employment while he is detained as a prisoner at the Alexander Maconochie Centre, Hume, ACT, 2620.
That the defendant make financial restitution to the plaintiff in regard to lost earnings for the period 30 April 2014 to present.
Any other order that the court considers appropriate.

2. The grounds of the application are set out in the originating application as follows:

The defendant's non-compliance with the ACT Corrections Management Act, 2007, specifically section 7(d), 9(a) and 9(f). Furthermore, the defendant's non-compliance with the ACT AMC Employment Policy (NI2009-149), and, moreover, the defendant's non-compliance with the ACT Human Rights Act, 2004, section 19(1). In addition, the plaintiff asserts the Supreme Court (ACT) civil case Eastman v Chief Executive of the Department of Justice and Community Safety [2010] ACTSC 4 forms a precedent to this case.

3. The originating application identified the defendant as the Chief Executive of the Department of Justice and Community Safety. On 21 November 2014 I made an order amending the name of the defendant to Director-General of the Justice and Community Safety Directorate (Director-General).

4. In support of the application Mr Islam read three affidavits dated 10 November 2014, 5 December 2014 and 2 February 2015 and gave some additional oral evidence. He was cross-examined. In response to the application the defendant read an affidavit affirmed 9 January 2015 from Don Taylor, General Manager, Custodial Operations at the Alexander Maconochie Centre (AMC) and an affidavit affirmed 12 January 2015 of Anthony James Johnston, who is employed as the Operations Manager at the AMC. Mr Johnston was cross-examined. In addition to the various documents annexed to the affidavits, four exhibits were tendered.

5. The AMC functions as the Australian Capital Territory's prison. The operational philosophy of the Centre is described at the commencement of the Corrections Management (General Operating) Policy 2010 (NI2010-398) as follows:

General

The AMC is to be a secure and safe place that will have a positive effect on the lives of prisoners and corrections officers. The management and operation of the AMC will be in accordance with human rights principles and will give substance to the dictum that prisoners are sent to prison as punishment, not for punishment.

Case Management and Throughcare

All prisoners within the AMC will be case managed. Their management will be based on a Throughcare model. The principle premise of this model is the need for continuous case management of offenders through all of their contact with ACT Corrective Services (ACTCS).

Case management will commence when an offender first comes into contact with ACTCS and continues until the offender completes their court ordered contact with ACTCS. The Throughcare model places emphasis on the delivery of programs and services aimed at reducing re-offending behaviour and enabling successful reintegration into the community.

6. In order to understand the evidence given in this case it is necessary to understand that there are various types of accommodation available for male detainees at the AMC.

7. Within the AMC there are cell blocks, which contain 86 cells and 166 beds. These cell blocks house both sentenced and remand male detainees. They accommodate prisoners of different classifications with a variety of restrictions relating to separation or protection.

8. There is also a Management Unit, which comprises 14 cells. This unit is used to accommodate prisoners who require more intensive management, usually as a result of disciplinary issues but also for some other reasons: see Corrections Management (Management Unit) Policy 2011 (NI2011-48). There are more limited opportunities for interaction between prisoners in the Management Unit.

9. There are also four double-storey cottages within the AMC which house male sentenced and remand detainees. Each cottage is divided into four units, with two units on the ground floor and two units on the second floor. Most detainees have their own bedroom, however there are a small number of rooms with bunk beds. All detainees in the cottage share amenities, a lounge room, kitchen and an outdoor area for communal living.

10. There are other areas in the AMC, known as the Crisis Support Unit, the Health Unit and the Transitional Release Unit, which are not necessary to describe for the purposes of this case.

11. Section 14 of the Corrections Management Act 2007 (ACT) (CM Act) permits the Director-General to make corrections policies to facilitate the effective and efficient management of correctional services. Any such policy is a notifiable instrument. There are a large number of such policies that have been made and the following are relevant to this case:

(a) Corrections Management (AMC Detainee Classification) Policy 2012 (NI2012-299) (Classification Policy);

(b) Corrections Management (Prisoner Employment) Policy 2009 (NI2009-149) (Employment Policy); and

(c) Corrections Management (Prisoner Remuneration) Policy 2009 (NI2009-153).

12. On 4 July 2009 the plaintiff assaulted Mr Andrew Dyer at the Ainslie Shopping Centre. That assault involved multiple stab wounds, including one which permanently damaged the victim's spinal cord. The plaintiff was arrested and remanded in custody at the AMC pending a trial.

13. As at 8 August 2009 the plaintiff was employed as a "unit sweeper" in the remand cells at the AMC where he was detained at the time. In these reasons I use the term, "employed" to mean being given a job in accordance with the Employment Policy. The CM Act specifically provides that no contract of employment is created: see s 218.

14. In that same month an "Initial Remand Prisoner Security Classification" was completed, resulting in the plaintiff being classified as a medium security prisoner in the remand cells. The nature and consequences of the various security classifications are set out in the Classification Policy.

15. On 26 August 2009 a review of that security classification resulted in the plaintiff being classified minimum security and being recommended for placement in cottage accommodation. His cooperation with staff was noted as being "Excellent" and his behaviour and compliance was noted as warranting a less restrictive classification. That classification was confirmed and continued on 24 March 2010.

16. On 3 February 2010 the plaintiff obtained a Certificate IV in Training and Assessment through the contracted education provider at the AMC, Auswide Projects.

17. On 20 March 2010 the plaintiff was placed in investigative segregation after allegedly being involved in a physical altercation with another detainee.

18. In June 2010 an "Initial Casemanagement Plan, Classification and Placement" (sic) was completed for the plaintiff and approved by the superintendent of the AMC. In that plan the plaintiff was approved for a classification of minimum security and for placement in cottage accommodation. It identified a number of programs run within the AMC to which he would be referred. Those programs included the Violent Offenders Program, which it was noted he would be referred to "if Sentenced". The Sentence Planning Group (SPG), a three-member committee of corrections officers which has primary responsibility for the security classification process, recommended that, because there had been no issues with the plaintiff's behaviour and because he was working and taking part in education, the plaintiff would remain classified as minimum security.

19. On 8 December 2010 a further plan was approved following a six-monthly review. The plan recorded that the plaintiff was undertaking serious studies in English literature with a double major in a similar field. The SPG recorded "No issues with behaviour + compliance. Remain minimum". As a consequence the plaintiff's classification remained at minimum security. The plan did not address where he should be accommodated.

20. The plaintiff's trial on the charges arising out of the assault in July 2009 occurred in November and December 2010. On 2 March 2011 Matthews AJ found the plaintiff guilty of intentionally inflicting grievous bodily harm on Mr Dyer: see R v Islam [2011] ACTSC 32. In her Honour's decision she analysed detailed evidence as to the plaintiff's mental state at the time of the assault and concluded that the plaintiff did not suffer from a mental impairment within the meaning of s 27 of the Criminal Code 2002 (ACT).

21. On 25 May 2011 the plaintiff was sentenced by Matthews AJ to nine years' imprisonment with a non-parole period of four years and six months. That sentence was backdated so that it commenced on 4 July 2009 with the result that the non-parole period expired on 3 January 2014. In Matthews AJ's reasons for decision her Honour made reference to an additional assault committed by the plaintiff on 13 April 2009, three months prior to the assault for which he was imprisoned. She also made reference to the plaintiff suffering from a paranoid personality disorder and the fact that, since being in custody, he had been described as a model prisoner, the manager of the AMC Education Unit describing him as "organised, diligent, focused and compliant".

22. On 25 May 2011 an "Initial Security Classification of a Sentenced Prisoner form" was completed in relation to the plaintiff. It recommended that he be classified as a protection prisoner.

23. On 10 August 2011 the plaintiff was awarded a Bachelor of Arts with a major in English and Creative Writing and second major in Theology by Murdoch University. In September 2011 he was awarded a Postgraduate Certificate in Business Administration from Murdoch University.

24. On 18 August 2011 the superintendent approved a "Sentenced Prisoner Case Plan" for the plaintiff. That plan had the plaintiff classified as minimum security and placed in cottage accommodation. The comments of the SPG were, "Review of classification remains minimum: no issues with behaviour motivated for programs completing education".

25. On 26 March 2012 a further case plan was made. It recorded:

Mr Islam has not received any disciplines during his time in custody. The behaviour has been overall satisfactory and he has demonstrated his compliance with his case plan by undertaking programs and education.

26. The recommendations of the SPG were, "review remains minimum: no issues with behaviour taking part in programmes + education". As a result of this, the recommended accommodation remained a cottage.

27. Between September 2011 and March 2012 the plaintiff participated in the Cognitive Self Change program, one of the education programs run at the AMC. The plaintiff's participation in the program was considered to be engaging, attentive and appropriate. He attended regularly and worked through the content at a level which was described in positive terms. He participated well in the program and was always prepared to help other participants. He completed that program on 27 March 2012 and at that point commenced a follow-up program known as the "CSC Maintenance Program". In contrast to his earlier conduct, his presentation in the Maintenance Program was described in poor terms. The case notes relevant to his participation indicated that he was subscribing to a number of high-risk attitudes and beliefs concerning interpersonal violence.

28. On 2 August 2012 the plaintiff was employed as an education assistant. At that point he was housed in Sentenced Cottage 1. However, his pay was reduced because he was not regularly attending and not maintaining enough hours in the role to justify the maximum rate of pay.

29. On 7 August 2012 the Court of Appeal heard the plaintiff's appeal against his conviction and his sentence as well as a cross-appeal by the Crown.

30. In January 2013 the plaintiff was awarded a Postgraduate Diploma in Business Administration by Murdoch University as well as a Master of Business Administration.

31. On 14 February 2013 the plaintiff was involved in a physical fight with another detainee.

32. On 28 February 2013 the appeal by Mr Islam against conviction and sentence was dismissed by the Court of Appeal as was the Crown appeal against sentence: see Isa Islam v The Queen [2013] ACTCA 10.

33. Between August and September 2013 the plaintiff completed a program known as the Anger Management Program.

34. On 12 November 2013 the plaintiff was given a new job description as an education clerk. At that point he remained housed in Sentenced Cottage 1. Between 25 November and 11 December 2013 the plaintiff's pay was reduced because of non-attendance at this new job.

35. On 18 December 2013 the plaintiff assaulted another detainee, resulting in the other detainee being placed in an induced coma with brain swelling and facial fractures. As a result of this, his employment position was terminated and he was moved from Sentenced Cottage 1 to the Management Unit. He was ultimately charged with recklessly inflicting grievous bodily harm, a charge to which he pleaded guilty. He is due to be sentenced on 3 March 2015.

36. On 4 January 2014 the plaintiff became eligible to apply for parole.

37. On 15 January 2014 the plaintiff was "placed on a Management Plan due to ongoing issues relating to [the plaintiff's] safety and the safety of other detainees". That plan prevented him spending time on the oval and required that any programs or education be delivered in the Management area. It was to be reviewed in 14 days. There is no evidence of any review or further plan being made at the end of 14 days.

38. On 29 January 2014 the plaintiff was awarded a Master of Human Resource Management through Murdoch University.

39. On 30 April 2014 the plaintiff submitted Prisoner Request Form 3356. That request provided:

Discussed at some length with CO2 Passala and CO2 Wylie (and also the Superintendent) me fulfilling the sweeper roll up here at Management. CO2 Passala noted to me how dirty the floor was on Sunday 27 April and I have been sweeping and mopping the floor daily since then. Also discussed with above officers how good my behaviour level has been-request (with that in mind) the sweeper role is made official.

40. On 6 May 2014 the plaintiff was informed that his request had been declined. He was told that another employee was already employed in that position but that as a result of his application for employment he would be placed on a waiting list.

41. On 7 May 2014 the plaintiff submitted Prisoner Request Form 3358. That request provided:

Been informed an inmate from another education area is employed as Management sweeper. Interesting as we haven't seen him for 3 months! I have been keeping the area clean every day-if he is getting paid then he needs to do the job-this is a hygiene/OH & S issue regards food preparation-would suggest he needs to clean the area daily!

42. The same day the plaintiff was told that there were presently no employment opportunities and as a result the plaintiff became aggressive towards a staff member and other detainees.

43. On 13 May 2014 the plaintiff was recorded as disrupting an interview with another detainee.

44. On 13 June 2014 the plaintiff was informed that, due to his temporary accommodation status in the Management Unit, employment opportunities were not available. He was offered the possibility of accommodation outside the Management Unit in a two-person cell. Staff explained to him that:

his concern about sharing a unit with other detainees was also a self limiting factor for him not having employment because if he was willing to share then he could be moved [out of the Management Unit] almost immediately.

The plaintiff responded aggressively to this information, with the result that he was directed not to approach or consult with the Detainee Employment Supervisor regarding employment at any time.

45. Subsequently, the plaintiff was, in fact, found a single cell so that he did not have to share with another detainee. This led to him being moved on 16 June 2014 to Remand Unit 2. The Detainee Employment Supervisor explained to him the employment process that was available because he was eligible for employment within that cell block. His place was confirmed on the waiting list for employment opportunities.

46. The next day, 17 June 2014, the plaintiff assaulted another detainee. As a consequence of this he was moved back to the Management Unit.

47. Following his return to the Management Unit, on 25 June 2014 the superintendent approved a "Detainee Management Plan". At that stage his classification was "Minimum 1 Protection". The plan provided "Detainee Islam is violent and 2 officers are to be on hand if required to be in an open area with him or to escort the detainee anywhere". It also made him subject to certain disciplinary sanctions.

48. On 19 July 2014 the plaintiff submitted Prisoner Request Form 12774. That request provided:

Given my discipline has concluded-I wish to be considered for employment at Management in accordance with AMC Employment Policy and the fact [Detainee X] is accommodated at Management and has employment - Given my academic qualifications it seems clear I am eminently suited for employment.

49. Detainee X is a detainee whose identity is described in the affidavit of the plaintiff dated 2 February 2015 (and referred to in the transcript by reference to the first letter of his last name). I will describe the particular circumstances of Detainee X later in these reasons.

50. The prisoner request form also records that on 21 July 2014 "Detainee Islam has been informed, there is 'no' job opportunity for him while based in Management."

51. Some time in August 2014 the plaintiff submitted an application for parole to the Sentence Administration Board.

52. On 7 August 2014 the plaintiff was warned after verbally abusing a staff member. This was recorded as involving the plaintiff displaying an outburst of extreme anger and using offensive and derogatory language.

53. On 29 August 2014 the members of the SPG recommended that the plaintiff be classified as a medium security prisoner and located in the Management Unit. Their comments were:

The detainee has recently been involved in a discipline with another detainee, he has also had a recent incident of using abusive and derogatory language towards a member of staff.

He was assessed as being at a high risk of reoffending. The superintendent approved those recommendations on 4 September 2014.

54. On 24 September 2014 the Deputy General Manager approved a Detainee Management Plan, which recorded the plaintiff as "Medium V1 Protection". It repeated the requirement for two officers to be present when he was in an open area. It provided that certain privileges such as television, a fan and access to a computer were dependent upon his behaviour. The plaintiff gave evidence, which I accept, that the two officers rule has only rarely been followed in practice.

55. On 3 October 2014 the plaintiff submitted Prisoner Request Form 5902. That request form provided:

In accordance with the AMC Employment Policy I request access to employment whilst at Management-given the example of [Detainee X] and David Eastman - or I will have no option but to commence civil legal proceedings as did David Eastman while accommodated at Management (in the Magistrates Court) quoting D. Eastman as precedent. I have put numerous applications/complaints in previously.

56. On 10 October 2014 the plaintiff was informed in writing in response to his request that he "will be considered for employment when he is located in suitable accommodation area and the same is available. Mr Islam has a medium classification."

57. On 30 October 2014 the Sentence Administration Board refused the plaintiff parole on the ground that there was no confirmed post-release accommodation and indicated that it would like him to complete a program at the AMC known as the "Violent Offenders Program".

58. These proceedings were filed on 6 November 2014.

59. On 14 November 2014 police advised the staff at the AMC that the plaintiff had been charged with assault arising out of the incident on 17 June 2014.

60. On 16 November 2014 the plaintiff declined to participate in an assessment for suitability for participation in the Violent Offenders Program. Although he did not give evidence about his reasons for refusing to participate in an assessment for suitability for this program, the plaintiff, in his submissions, said that he was prepared to participate in the program but had concerns about participation in the assessment for suitability because he thought that the information about his mental health gathered as part of that assessment might be used for some other purpose.

61. On 25 November 2014 the plaintiff was asked to change cells due to a change in practice at the Management Unit. He expressed concern about being moved next to a particular prisoner.

62. On 19 December 2014 the plaintiff's case management plan was updated. The case management plan records that, following the Sentence Administration Board hearing:

the primary focus of this plan is engaging the detainee in the [Violent Offenders Program], however to date he has refused assessment. [Case manager] to work with detainee in an effort to motivate him to engage meaningfully and appropriately in the full [Violent Offenders Program] process.

63. He completed the requirements for his third master's degree, a Masters of Teaching English as a Second Language, at the end of 2014. He had completed this course through Flinders University.

64. In his affidavit and oral evidence the plaintiff gave evidence that he had observed Detainee X assault another prisoner with a frozen water bottle. On another occasion when he was accommodated in one of the cottages he also observed another inmate, who appeared to be injured, being escorted past him and understood that the inmate had been assaulted by Detainee X. Mr Johnston gave evidence that Detainee X had in fact assaulted another prisoner with a sharp metal object. Because of the identity of his victim, Detainee X could not be housed in the in the sentenced cell blocks. Detainee X was not entitled to apply for parole for a number of years. Mr Johnston explained that in the circumstances there were very limited accommodation options for Detainee X and hence he was likely to be detained in the Management Unit until new accommodation became available. That was in contrast to the usual situation of detainees housed in Management Unit which was to house them in the Management Unit temporarily and reintegrate them into the mainstream prison population if possible.

65. The plaintiff also referred to the circumstances of David Eastman, whom he said was offered employment while in the Management Unit. He gave no evidence about this but the circumstances are outlined in the decision in Eastman v Chief Executive of the Department of Justice and Community Safety (2010) 4 ACTLR 161 (Eastman No 1) at [18], [26], [33] and indicate that the Chief Executive took steps to offer employment to Mr Eastman at a time when he was accommodated in the Management Unit. I understood the statement as to Mr Eastman's circumstances set out in Eastman No 1 to be uncontroversial as between the parties in this case.

66. The plaintiff accepted in cross-examination that there were other detainees in the AMC who were wanting but unable to obtain employment because there were no suitable positions available.

67. The evidence of Mr Johnston was that the nature of the offenders housed in, and the level of security required for, the Management Unit limited the employment opportunities for detainees. He deposed to the fact that there was currently one detainee who was employed to clean that Management Unit and the Crisis Support Unit. This detainee was employed in this position prior to December 2013, is not housed in the Management Unit and is escorted to work by custodial staff on an as-needed basis. In addition, Detainee X, who has been housed at the Management Unit since August 2013, is temporarily employed to paint cells in the Management Unit. That employment opportunity will cease upon completion of the work. It is because of Detainee X's particular circumstances, being required to be housed on a long-term basis in the Management Unit, that the effort has been made to offer him some temporary employment. That employment opportunity will cease upon the completion of the work.

68. Mr Johnston points out that any cleaning duties undertaken by the plaintiff have been undertaken without approval of the Detainee Employment Manager and that such approval is necessary for the employment to be remunerated in accordance with the Employment Policy. He also gives evidence that from 23 December 2013 to 7 January 2014 the plaintiff was not paid any benefit because of his termination from employment and classification as a non-worker. Since 7 January 2014 he has been paid at the rate of $15 per week unemployment allowance.

69. The essential complaint made by the plaintiff is that he has not been offered employment whilst accommodated in the Management Unit while other persons who have been accommodated there, either presently or in the past, have been subject to particular arrangements which permitted them to maintain some employment. He perceived the approach of the Director-General to involve unjustified discrimination.

70. There are three grounds identified for the claim for an order requiring the Director-General to provide the plaintiff with "full-time, meaningful employment":

(a) non-compliance with ss 7(d), 9(a) and 9(f) of the CM Act;

(b) non-compliance with the Employment Policy; and

(c) non-compliance with s 19(1) of the Human Rights Act 2004 (ACT) (HR Act).

71. I will deal with each of these elements of the claim in turn.

The main objects of this Act are to promote public safety and the maintenance of a just society, particularly by -

(d) promoting the rehabilitation of offenders and their reintegration into society.

Functions under this Act in relation to a detainee must be exercised as follows:

(a) to respect and protect the detainee's human rights;

(f) if the detainee is an offender - to promote, as far as practicable, the detainee's rehabilitation and reintegration into society.

73. Section 7(d) is merely a statement of the objects of the CM Act. While the objects of the Act are significant in determining the scope of statutory power that exists under the particular provisions of the Act: Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285; (2009) 168 LGERA 99 at [61], the section does not of itself provide a statutory rule, the breach of which gives the plaintiff a cause of action: Eastman No 1 at [56]. Therefore, I am not satisfied that the plaintiff has a cause of action for enforcement of the object set out in s 7(d).

74. Section 9 is somewhat different. It provides that functions under the CM Act must be exercised in a particular way and provides a substantive qualification on the manner of exercise of particular functions. If a function under the Act is being exercised in a manner that is not consistent with the requirements in s 9 then that may provide a basis for a prohibitory or mandatory injunction. The nature of the command in s 9 is a purposive one, the powers being required to be exercised "to" achieve the statutory goals. The language of the section is consistent with an objective test for compliance.

75. Whether or not a detainee's human rights were being "respected" and "protected" for the purposes of s 9(a) would need to be assessed in the context of the CM Act as a whole and having regard to the particular function under that Act which is in question. In relation to the function of s 9(a), the two limbs of that section are designed to ensure that not only are the detainee's rights not violated by those operating the corrections facility ("respect"), but also that the detainee's rights are protected from violation by other detainees ("protect"). Although the term "human rights" is not defined in the CM Act or in the Legislation Act 2001 (ACT), in my view it should be taken as a reference to those human rights protected by the HR Act since the Explanatory Statement for the Corrections Management Bill 2006 makes clear that the CM Act was drafted on the basis that its provisions formed reasonable limitations on a detainee's human rights, as contemplated by s 28 of the HR Act: see Explanatory Statement pp 2, 7. Therefore, what is being protected are the detainee's human rights, to the extent that they are not modified by the provisions of the CM Act. That would mean that s 9(a) is not a qualification on any statutory power under the Act, but is a command to respect or protect a detainee's human rights to the extent that they are not subject to statutory qualification under the CM Act. It would mean that the "human rights" referred to in s 9(a) would be interpreted as if it read "the human rights set out in ss 8 - 27A of the Human Rights Act as limited by the terms of the Corrections Management Act or another Territory law." The practical legal effect of such a provision is not clear. I refrain from expressing any final views as to precisely how s 9(a) qualifies the general powers identified elsewhere in the CM Act because:

(a) having regard to the conclusion which I have reached below, namely, that there has been no breach of the unqualified terms of s 19(1), any final view is not necessary; and

(b) the precise operation of the section as a qualification on the powers set out elsewhere in the CM Act was not the subject of argument before me.

76. I note that ss 9(b) and (c) (which are not relied upon by the plaintiff in this case) provide clearer and more straightforward commands: "to ensure the detainee's decent humane and just treatment" and "to preclude torture or cruel, inhuman or degrading treatment". These provide more readily understandable criteria and form a clear qualification on the manner in which statutory powers under the CM Act are to be exercised.

77. In the present case, the human right alleged to have been denied is the right under s 19(1) of the HR Act, which provides: "Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person".

78. Section 9(f) of the CM Act incorporates the goal of rehabilitation and reintegration into society. These are concepts which do not have clearly defined boundaries and whether or not there is compliance may be subject to debate. Further, they are qualified by an obligation to pursue them only in so far as they are "practicable". Practicability incorporates a range of considerations which include the resources available and the competing demands upon those resources. Any assessment of what is practicable must be done in the context of the operation of corrections facilities under the CM Act.

79. If either of ss 9(a) or (f) were to form the basis for a mandatory order then the plaintiff would have to identify a duty which the defendant was failing to perform. He did not identify any particular duty under the CM Act which was not being performed or not being performed in the manner required by s 9. As a consequence, he is not entitled to mandatory relief on the basis of ss 9(a) or (f).

80. In any event, in relation to s 9(a), for the reasons which I set out below, I am not satisfied that the circumstances of the plaintiff's detention involve any breach of s 19(1) of the HR Act. In relation to s 9(f), I am not satisfied that the circumstances of the plaintiff's detention do not promote, as far as practicable, the plaintiff's rehabilitation and reintegration into society. Clearly enough the concept of practicability does not require all conceivable measures to be taken for the rehabilitation and reintegration of a detainee at all times. In my view, the prioritisation by the Director-General of the completion of the Violent Offenders Program described at [62] above is reasonable and the Director-General is not acting contrary to s 9(f) in failing also to arrange employment for the plaintiff.

81. The plaintiff seeks an order on the basis of the alleged non-compliance with the Corrections Management (Prisoner Employment) Policy 2009 (NI 2009-149). That policy is made under s 14(1) of the CM Act, which provides:

Corrections policies and operating procedures

(1) The directorgeneral may make corrections policies and operating procedures, consistent with this Act, to facilitate the effective and efficient management of correctional services.

(2) Each corrections policy or operating procedure is a notifiable instrument.

Note 1 A notifiable instrument must be notified under the Legislation Act.

Note 2 The amendment or repeal of a corrections policy or operating procedure is also a notifiable instrument. See the Legislation Act, section 46 (Power to make instrument includes power to amend or repeal).

(3) Each corrections policy or operating procedure -

(a) must be available for inspection by anyone at each correctional centre; and

(b) may be made available for inspection at any other place decided by the directorgeneral.

82. I am not satisfied that a policy made under s 14 creates a statutory rule which may be enforced by a mandatory order such as that which is sought by the plaintiff. There is nothing in the CM Act which makes the policy a binding statutory obligation. While the existence and terms of the policy may be relevant to some grounds for judicial review, these proceedings are not proceedings to judicially review any particular decision. Failure to comply with the policy may have internal ramifications for either corrections officers or the detainee failing to comply with it. It may have external ramifications by providing a basis for criticism of the conduct of the corrections facility and those operating it by external agencies. It may also provide a basis for criticism of the responsible Minister in the Legislative Assembly and by the electorate. However, it is not directly enforceable in the courts. Therefore, I am not satisfied that this ground discloses a cause of action that could lead to the making of the mandatory order sought.

83. The plaintiff asserts that the defendant has failed to comply with s 19(1) of the HR Act. He cites the decision of this Court in Eastman No 1.

84. As set out above, s 19(1) identifies the right of persons deprived of liberty to be treated with humanity and respect for the inherent dignity of the human person.

85. The scope of s 19 was discussed by Refshauge J in Eastman No 1. His Honour's conclusion (at [99]) was that:

there is an arguable case that s 19 of the Human Rights Act does require that a prisoner be given the opportunity of useful work, that there is a requirement for rehabilitative measures to be put in place, and that there is also an obligation to provide access to appropriate and timely medical treatment.

86. It is important to note that his Honour's decision was an interlocutory one and he was only concerned with the question of arguability. When the matter came on for final hearing Mr Eastman's claims failed: see Eastman v Chief Executive of the Department of Justice and Community Safety [2011] ACTSC 33 (Eastman No 2). Mansfield J found (at [71]) that "the fulfilment of the statutory obligations of the defendant towards the plaintiff and others in the AMC is a question of fact and degree to be assessed in all the circumstances". Although his Honour did not say so expressly, his Honour's approach was to ask himself the statutory question posed by s 19(1), namely, whether or not Mr Eastman had been treated with humanity and with respect for the inherent dignity of the human person. That is reflected in his Honour's conclusions (at [73]):

Accordingly, to the extent that the plaintiff's allegations, by his statutory references, enliven an allegation of a failure to treat him with humanity and with respect for the inherent dignity of the human person, I reject his claim. There is no basis for such a conclusion. I am not persuaded that the defendant has failed to give the plaintiff the opportunity to undertake a range of employment or has failed to make available other programs, apart from employment, specifically targeted at the rehabilitation of detainees, or has not made available comprehensive health services. He has an independent source of income; there is no foundation for concluding that he has financial shortcomings caused by the defendant.

87. In my view, the approach taken by Mansfield J was the correct one. It focuses on the statutory text in s 19. That provision does not give to a detainee any freestanding right to employment. Rather, it gives a more general entitlement to humane treatment. Whether or not that statutory entitlement has been denied is a question of fact and degree to be assessed in all the circumstances. The extent to which the availability of employment is significant will vary depending upon the particular circumstances of the prisoner and the particular circumstances of the detention facility. Thus, the question in the present case becomes whether or not the plaintiff, in his particular circumstances, has been treated with humanity and with respect for the inherent dignity of the human person.

Has the plaintiff been treated with humanity and respect for the inherent dignity of the human person?

88. The issue for the purposes of the claim based on the HR Act comes down to whether there has been a failure to treat the plaintiff with humanity and respect for the inherent dignity of the human person as a result of the fact that the plaintiff has not been offered paid employment in the AMC since he was moved back into the Management Unit in December 2013.

89. In assessing this issue, the following matters arising from the facts set out above are of significance.

(a) The plaintiff has a history of violence, both prior to his incarceration and while incarcerated. That involves the assault in April 2009, the assault in July 2009, the assault in December 2013 and the assault in June 2014. He is assessed as being a medium security prisoner and as having a high risk of reoffending. He has demonstrated extreme anger and the use of offensive and derogatory language towards a staff member at the AMC.

(b) The plaintiff is clearly intelligent and has the capacity, so long as he behaves appropriately, to contribute to educational activities within the prison. He has a substantial history of employment as an avionics technician in the Air Force from 1989 to 2001 and then a further year for a private contractor in Kuwait. He has completed a bachelors degree and three masters degrees while incarcerated and is currently enrolled in a PhD program.

(c) The plaintiff has been employed within the AMC for several years. The evidence as to his employment was not ideal in that it did not clearly disclose periods during which he had, in the past, been employed in his various roles of sweeper, cleaner, education assistant, education clerk. He appears to have been employed more or less continuously since 2 August 2012 until 18 December 2013 as either an education assistant or education clerk. His employment was terminated at that time because of an assault on another detainee. Since December 2013 he has been housed in the Management Unit and has not been employed.

(d) The plaintiff remains housed in the Management Unit where the opportunities for employment are limited.

(e) The plaintiff is currently eligible to apply for parole and one of the principal goals that the corrections authorities and Sentence Administration Board wish to achieve is for him to complete the Violent Offenders Program. The only barrier to that occurring is the plaintiff's refusal to participate in the assessment for suitability for that program.

(f) There are no employment positions presently available within the Management Unit. While with sufficient resources it would theoretically be possible to accommodate the desire of the plaintiff for employment, that would involve a dedication of resources which, having regard to the plaintiff's circumstances, the staff of the Director-General have not considered appropriate. There are many other prisoners, not accommodated in the Management Unit, who would like to have but do not have jobs in the prison.

(g) Finally, the evidence as to the precise reasons for the plaintiff's continued accommodation in the Management Unit are not clearly disclosed by the evidence but appear to be because of concerns about his behaviour and propensity, disclosed by his history, for violence. In June 2014 he was told that "his concern about sharing a unit with other detainees was also a self limiting factor for him not having employment because if he was willing to share it could be moved [out of the Management Unit almost immediately". The affidavit of Mr Johnston of 12 January 2015 suggested that the plaintiff is accommodated in the Management Unit because of his behavioural issues and said that:

[t]he plaintiff has also been advised that alternatively he could address his behavioural issues so that he could safely be considered for relocation to another accommodation unit where there are more employment opportunities.

90. In assessing the claim that the plaintiff has not been treated with humanity or respect for his human dignity, it is necessary to consider the context in which any employment within the AMC must occur. There are limits on the number and type of jobs which the Director-General can provide within a detention facility such as the AMC. It is not possible to accommodate the desire of each detainee for employment, let alone employment of their liking, in all circumstances within the facility. Whether or not a particular detainee has available to him or her employment is dependent upon a variety of factors which the Director-General may wish to take into account. Without intending to be exhaustive, those factors include:

(a) the security classification of the detainee;

(b) the protection classification of the detainee;

(c) any segregation or non-association issues that exist in relation to the detainee;

(d) where the detainee is accommodated within the facility;

(e) what jobs are available to detainees accommodated in that part of the facility;

(f) how long the detainee is likely to be detained;

(g) the other activities that are available to the detainee that might give them the perception of being gainfully occupied;

(h) the reasonable availability of the resources needed to facilitate the detainee's participation in a particular job;

(i) the statutory obligation upon the Director-General under s 219 of the CM Act in relation to work health and safety;

(j) the behaviour of the detainee and his or her past performance in other jobs;

(k) whether the detainee has the skills or attributes to be suited to a particular job;

(l) the other detainees who are also willing and able to perform the job and their particular circumstances; and

(m) the particular rehabilitation goals for the detainee identified by the Director-General.

91. Given the significant number of detainees in the AMC, the overall management of prisoner employment involves a complex set of considerations and must be considered in the light of the many other demands on the staff and resources of the AMC necessary to keep it running effectively.

92. In relation to the position of the plaintiff, the evidence discloses that there are no jobs presently available in the Management Unit where the plaintiff is accommodated. The fact that other prisoners have, either in the past or presently, been offered employment while they have been accommodated in the Management Unit does not demonstrate either that there is some form of improper discrimination against the plaintiff or, more relevantly, that he is not being treated with humanity and respect for his inherent human dignity.

93. Unlike Detainee X, the plaintiff is not required to be housed in the Management Unit in the long term because of intractable non-association issues. The precise circumstances of Mr Eastman were not explored in evidence, although there were clearly a variety of factors involved in Mr Eastman's management. In any event, there is no administrative rule of precedent applicable to discretionary decisions made in the context of the management of a facility such as the AMC and certainly not one which would govern the management of detainees at different times many years apart.

94. The other circumstances of the plaintiff are not such that the availability of employment within the AMC is of greater than usual significance.

(a) The plaintiff is clearly intelligent and has effectively occupied himself performing further study whilst incarcerated. He is not particularly in need of a job so as to provide occupation, rehabilitation or stimulation.

(b) It is quite clear that the Director-General has formed the view that the most significant immediate goal in the plaintiff's rehabilitation is assessment for, and participation in, the Violent Offenders Program run at the AMC. Having regard to the plaintiff's history and, so far as they are disclosed in the evidence, the views of the Sentence Administration Board, that is a reasonable conclusion.

(c) The plaintiff is eligible to apply for parole and would appear to have reasonable prospects if he complied with the rehabilitation goals set for him by the Director-General and the Sentence Administration Board.

(d) There was no evidence as to the plaintiff's financial circumstances (cf Eastman No 2 at [73]) so it is not possible to assess the financial significance for him of employment within the prison.

95. As a consequence of these various matters there is nothing which would elevate the importance of employment within the prison in the plaintiff's circumstances that would mean that the failure to offer such employment at the moment would be more significant for the purposes of assessing whether the plaintiff is being treated in accordance with s 19(1).

96. Treating the question as a matter of fact and degree, it is very clear that the plaintiff has not demonstrated that the conduct of the Director-General amounts to a failure to comply with s 19(1) of the HR Act.

97. The written submissions in support of the application referred to the defendant being negligent because it caused him economic loss as referred to in s 40(c) of the Civil Law (Wrongs) Act 2002 (ACT) and in breach of the Fair Work Act 2009 (Cth). However, at the hearing the plaintiff did not press this claim with any vigour and directed no oral submission to the claim.

98. I am not satisfied that the defendant owed the plaintiff a duty of care which required it to prevent the plaintiff suffering economic loss through not being employment while at the Management Unit. Further, the plaintiff has not identified any relevant provision of the Fair Work Act 2009 (Cth) on which he relies. It is not obvious how that Act could apply, having regard to the fact that even if the plaintiff was given a job within the prison no employment contract would exist: CM Act s 218. In my view, the plaintiff has not established any breach of the Fair Work Act 2009 (Cth).

99. As a result of my conclusions the proceedings must be dismissed. Although the parties made submissions in relation to costs, when the plaintiff was before me on an unrelated matter he indicated that he may wish to be heard further on costs. I will give him that opportunity.

The originating application dated 10 November 2014 is dismissed.
The proceedings are listed on 27 February 2015 at 10:00am for any further submissions on costs.

I certify that the preceding one-hundred [100] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop.

Law (Wrongs) Act 2002

Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20

At a glance

Court

Decision date

Before

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Judgment (154 paragraphs)

Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20 (20 February 2015)

Parties

Legislation Cited (8)

Cases Cited (2)