Kaufman v Smith & Armytage [2001] VSC 420

2. In this action the plaintiff, a prisoner serving a lengthy sentence, seeks declarations and injunctive relief against the firstnamed defendant, who is the operations manager at Bendigo Prison which is conducted by the Public Correctional Enterprise (hereafter referred to as "CORE"), and against the secondnamed defendant, who is the Correctional Services Commissioner appointed pursuant to the Corrections Act 1986 ("the Act"). When these proceedings were commenced the plaintiff was then imprisoned at Bendigo Prison but has since been moved and is now at Port Phillip Prison.

5. The plaintiff seeks a declaration that Provisions 2 and 4 of the Victorian Prison Drug Strategy 1992 ("the Strategy") insofar as they permit the imposition of sanctions upon the plaintiff are unlawful and unenforceable, and also seeks a declaration that any sanction imposed pursuant to those sections is unlawful and unenforceable. The proceeding raises important questions relating to the relationship, and potential for conflict, between strategies for dealing with a serious drug problem in prisons (which strategies include measures described as "sanctions", which, to prisoners, may be akin to imposition of additional punishment for prison drug offences) and the statutory regime which provides for punishment for prison offences.

8. In November 1991 the Office of Corrections (which later became the Office of Correctional Services Commissioner) formulated the Victorian Prison Drug Strategy, which followed upon an independent review undertaken at the request of the then Director General of Corrections as to the high levels of illicit drug use in prisons. The review concluded that there was the need for a strategy to address the substantial drug problems in prisons and, in particular, the trafficking of drugs within the prison system. An affidavit filed in these proceedings by Phillippa Helen Wisdom, a Correctional Services Administrator, sets out in detail the severity of the drugs problem within the prison system and, in particular, the extent to which drugs are introduced into the prison system by virtue of contact visits.

11. The Victorian Prison Drug Strategy stipulates that each prison manager must ensure a system of effective security which prevents the introduction of contraband within the prison, must ensure that systems are in place which are aimed at reducing the demand for drugs by prisoners whilst in custody and must ensure that prisoners have access to drug programs designed to reduce their offending behaviour. The terms of the Strategy emphasise that the Strategy is:

"essential to maintaining the safety and good order of the Victorian prison system and it is therefore important that the strategy is applied consistently across the prison system. It is also important that prisoners found guilty of using drugs in prison experience consistent management and sanctions. The drug strategy represents a combination of measures aimed at preventing and detecting the introduction of illicit drugs into prisons as well as deterring their usage and providing opportunities for prisoners with substance abuse difficulties to address their problems."

15. The Strategy then specifies that there are three major components, namely, detection, deterrence and treatment. As to deterrence, the Strategy states that the objective is:

"The establishment of a system of disincentives for prisoners to continue to use drugs while in custody and to limit the opportunities for the introduction of drugs into prisons."

19. Compulsory drug testing of prisoners is authorised by s. 29A of the Act, which was inserted in 1991. The Strategy provides that prison managers must ensure that 1.25 percent of the entire prison population be randomly tested by a urine test to detect drugs, and that at least 5 percent of all prisoners who are deemed to hold what is described as "an Identified Drug User status (IDU)" must be randomly checked by urine testing. Provision 2 of the Strategy provides:

"The aim of deterrence is to provide prison management with a combination of sanctions which discourage drug use by prisoners and limit the introduction of drugs into prisons. The major strategy which is to be applied consistently across the prison system is the imposition of the Identified Drug User (IDU) status and associated sanctions".

23. Provision 2.1 provides that any prisoner found guilty of a range of prison offences - which include offences of taking a drug of addiction, a drug of dependence or an unauthorised substance - at a governor's disciplinary hearing or at a court of law will receive an Identified Drug User status.

26. Provision 2.2 of the Strategy provides a range of sanctions for identified drug users and provide that persons with the status of Identified Drug User are to be further grouped under three categories. A first offender is described as IDU 1 status. Such a person on being found guilty of the first offence is to receive the "sanction" of denial of access to the contact visit program, together with other sanctions, for three months. A person who has a second offence becomes IDU 2 status and upon further offences thereafter becomes IDU 3 status. A person with an IDU 2 status is denied contact visits, and suffers other sanctions, for six months. Upon attaining IDU 3 status the deprivation is for a period of 12 months, cumulative for each subsequent offence. During the time of the denial of access to the contact visit program the prisoners remain eligible to receive non-contact visits, under s. 37, which are conducted in a booth at which no contact may be made with the visitor and whereby conversation is conducted via a telephone. These are known as "box" visits. The prisoner is entitled as of right to at least one such visit per week, as provided by s. 47(k).

29. In addition to denial of contact visits there is a range of extra sanctions which are imposed on persons found guilty of such offences. These include restricted access to special visit days with children, restricted access to the residential visit program, the requirement that they wear prison overalls on contact visits, and ineligibility for transfer to a minimum security prison until such time as they have demonstrated a commitment to remain drug free by attaining what is described as an "IDU Neutral" status.

32. Provision 4 of the Strategy provides the means whereby the IDU status may be removed. It provides that a person with an IDU status may be eligible for conversion to an IDU Neutral status following successful completion of approved programs and after completion of the relevant sanction period. In the case of a person whose status was IDU 1 the required program is a drug education program of at least 12 hours content, and more intensive programs are required for those whose status is IDU 2 and IDU 3.

35. The plaintiff was sentenced to a period of 21 years and three months' imprisonment in December 1989, with a non parole period of 12 years. His final release date is 1 December 2002. Immediately prior to his time in Bendigo Prison he had been serving his sentence at Fulham Correctional Centre, Sale, but he first lost his contact visit privileges for an offence relating to drug use whilst imprisoned at Barwon Prison. His affidavit lists a series of further drug offences and further loss of entitlements to contact visits which followed his first offence. In his final 12 months at Fulham Prison he was charged on three occasions with offences relating to drug use and received 12 months further period of ineligibility for contact visits, for each offence, which accumulated in each instance. As at the time of the hearing before me he had not had a contact visit for some six years. He deposed that in December 2000 he had transferred to Bendigo Prison for the purpose of attending a twelve week drug therapy programme under Provision 4 of the Strategy, but had apparently not been admitted to that programme, for reasons which are the subject of dispute between the parties, but which are not relevant to the present application.

38. The primary issue in this case is whether the imposition of the sanctions (the most important of which is denial of contact visits) constitutes unlawful punishment of the prisoner, being imposed outside the terms of the provisions of the Act contained in Part 7, which Part is titled "Prison Discipline". Counsel for the plaintiff submitted that the entitlement to punish a prisoner for a prison offence was exclusively provided for in Part 7, and particularly in s. 53(4), which provides:

"(4) If at a Governor's hearing the Governor finds that the prisoner is guilty of the prison offence or the prisoner admits the truth of the charge, the Governor may impose any of the following penalties - (a) a reprimand; (b) a fine not exceeding 1 penalty unit; (c) withdrawal of one or more of the prisoner's privileges for a period not exceeding 14 days for each prison offence committed, but not exceeding in total 30 days."

42. The reference in s. 53(4) to loss of privileges relates only to those privileges as defined in s. 48, as follows:

"Privilege in relation to a prison means any of the privileges determined in accordance with the regulations for that prison."

46. Section 54A of the Act provides that pending the conclusion of an investigation into an offence, or the prisoner being charged, the Secretary may withdraw those privileges specified in the regulations, for such period as he thinks fit. The section provides that that may be done where in the opinion of the Secretary it is necessary in the interests of management, good order and security of the prison. By s. 54A(3) the withdrawal of privileges in that way does not affect the imposition of any penalties under Part 7 or under the criminal law.

49. Regulation 36 of the Corrections Regulations 1998 provides:

"(1) Annually, each Governor must submit to the Secretary for the Secretary's approval, a list of prisoner privileges to operate in the prison for all prisoners or for various classes of prisoners. (2) The Secretary may approve or refuse to approve the list submitted under Sub-Regulation 1 or approve it with changes and may, at any time, delete from, or add to, the list of prisoner privileges to operate in a prison. (3) The privileges for the time being appearing in a list approved under this regulation are the privileges determined for the prison."

53. The list of privileges approved pursuant to s. 48 of the Corrections Act specifies the following privileges:

[diamond] canteen spend items other than essential toiletries;

[diamond] access to canteen items other than essential items;

[diamond] access to cigarettes or tobacco products;

[diamond] access in cell to electrical goods (excluding televisions, radios, fan, water heating device and shaver);

[diamond] access to a television set (which would include pay TV if this is available);

[diamond] access to organised sporting or recreational activities;

[diamond] access to extended out of cell hours or night activities;

[diamond] access to personal cell property in excess of fifty points;

[diamond] unrestricted access to other prisoners at the same location;

The certified list then states, "No additional privileges apply in individual prisons".

70. Contact visits are provided pursuant to s. 38 of the Act. That section reads as follows:

"38. Contact visiting and residential visiting (1) The Secretary may in accordance with the regulations by instrument approve contact visiting programmes under which a prisoner's family and friends may visit and have physical contact with the prisoner. (2) The Secretary may in accordance with the regulations by instrument approve residential visiting programmes under which a prisoner's family may stay with the prisoner in the prison. (3) The Governor of a prison must in accordance with the regulations bring to the attention of all prisoners eligible to take part in a contact visiting programme or a residential visiting programme the privileges offered by the programme. (4) In this section `family' of a prisoner includes - (a) a near relative of the prisoner; and (b) any other person who has a long standing close personal relationship with the prisoner."

74. Regulation 57(1) of the Corrections Regulations 1998 provides that the instrument approving a contact visiting programme under s. 38 must specify the nature of the programme, the persons who are eligible to participate in the programme and the conditions of participation in the programme. The power given to the Secretary by s. 38(1) to approve by instrument a contact visiting programme was delegated by instrument of delegation dated 24 February 1995 from the Secretary to the Office of the Correctional Services Division holding, acting in, or performing the duties of the position of General Manager, Prisons Operations. In her affidavit, Ms Wisdom deposes that the person holding that position with respect to CORE prisons (which is all prisons other than Port Phillip and Fulham Prisons) is the Director of Prison Services CORE. By Instrument titled "Schedule 3.4 (4). Contact Visit Programme", and dated 23 June 2000, that Director approved conditions for participation in the contact visit programme.[1] Those conditions run to four pages and prisoners are advised of these conditions upon their reception into prison. The terms used in the document which sets out the conditions are very similar to those which are found in the Strategy document itself. Among the conditions which are provided are the following:

[diamond] The General Manager must be satisfied adequate supervision can be provided; if not, that person may limit participation;

[diamond] all prisoners at maximum security facilities must wear contact visit overalls;

[diamond] where a prisoner has been charged with a prison offence committed on a contact visit programme, the prisoner is unable to participate in the programme between the time the prisoner is charged and the matter has been dealt with through disciplinary hearing or 21 days, whichever is less;

[diamond] where a prisoner has been found guilty of a prison offence where the incident occurred on a contact visit, the prisoner is unable to participate in the contact visit programme for 21 days commencing from the time of the original charge;

[diamond] any prisoner who is serving a sentence for introducing drugs into a prison or is found guilty of introducing drugs into a prison whilst undergoing sentence is unable to participate in the contact visit programme for the total period of time in custody;

[diamond] where a prisoner has been found guilty of a prison offence (other than an offence committed on a contact visit or related to drugs or alcohol), the prisoner is unable to participate in the contact visit programme for a period of 14 days for each incident but not exceeding 30 days from the time of the imposition of the penalty; or

[diamond] the prisoner must not have committed or alleged (sic) to have committed a prison offence relating to drugs or alcohol.

84. The conditions state that, "A prison offence related to drugs or alcohol includes the following", and there then follows a list of infractions which are offences relating to drugs and alcohol listed under Regulation 44 of the Corrections Regulations 1988. Regulation 44(f) provides, inter alia, that it is an offence to take or use an unauthorised drug of addiction or drug of dependence. As to the last bullet point, above, the conditions later provide that where a prisoner has been found guilty of an offence (impliedly, as a prisoner) at a disciplinary hearing or at a court of law which offence related, in any way, to drugs or alcohol the prisoner is unable to participate in the contact visit programme for a period stipulated ranging from three to 12 months depending on whether it was the first, second or a subsequent offence.

"The contact visit programme contributes to the sociological and psychological wellbeing of prisoners. Contact visits assist a prisoner in reducing his/her loneliness, isolation, and feelings of worthlessness and abandonment and otherwise promoting a prisoner's general sense of wellbeing. The programme further provides an important mechanism to facilitate release preparation."

Ms Wisdom adds that, based on her experience, she believes that the conditions on the contact visit programme make a useful incentive for prisoners to limit or stop their drug usage while in prison. Ms Wisdom deposed that the approach adopted by the Strategy, including the sanction of denial of privileges such as contact visits, was similar to the strategies adopted by prison managers in New South Wales, South Australia, Western Australia, Queensland, Tasmania, the Northern Territory, and also New Zealand, the United Kingdom and Canada. I was not invited to examine the terms of the programmes in those places.

92. The plaintiff contends that Part 7 - the prison discipline provisions - provides an exhaustive regime for punishment of prisoners for prison offences. Section 53(4) specifies the extent of penalties which may be imposed, and the person who may impose penalties. The denial of contact visits, as one of the sanctions imposed by the Strategy, is a denial of a privilege (as it is described in s. 38(3)), but it is not one of the privileges specified in the Regulations, as being one which may be denied as a punishment pursuant to s. 53(4). Counsel for the plaintiff submitted that the fact that it is not a privilege specified in the Regulations does not mean that it is therefore a privilege which may be withheld by prison administrators in consequence of a finding of guilt of a prison drug offence. To do that would be to permit an additional punishment to be imposed, one not listed by s. 53(4) as being a punishment which was within the range of available punishments.

95. Mr Neal, counsel for the plaintiff, submitted that the sanction of denial of contact visits, in consequence of a finding of guilt, is no less a punishment for the offence than the penalties which could be imposed at the Governor's hearing. The same may be said for the other "sanctions". The Strategy described these deprivations as "sanctions", a term appropriate to a punishment, counsel submitted. Other terms of the Strategy, so it was submitted, confirmed that it was intended that the sanctions would be punishment which flowed by virtue of the prisoner's commission of a prison drug offence.

98. The defendants reject the suggestion that the loss of contact visits constitutes a punishment for a drug offence. Counsel for the defendants contend that whilst Part 7 of the Act is concerned with prison discipline, the Strategy is not. They submit that the Strategy is empowered by s. 21(1), and is concerned with management, security and good order, and also is concerned with safe custody and the welfare of prisoners. Alternatively, or in addition, they submit that the conditions under the Strategy are authorised by s. 38, which is concerned with prisoner welfare and rehabilitation (and with prison management), not with discipline. There is, thus, not a secondary regime of punishment and discipline being imposed in addition to penalties imposed following proceedings brought under Part 7. The "sanctions", as they are described under the Strategy, are fixed and not discretionary and are not imposed by a disciplinary tribunal. They are imposed without there being a disciplinary hearing.

101. The defendants contend that not only is the Strategy empowered under s. 21(1), the implementation of the Strategy is in performance of the duties imposed under s. 20(1) and (2). It is contended that both the Commissioner and the Director of Prison Services are empowered, by their respective delegations, to implement the Strategy.

"20. Duties relating to security and welfare (1) An officer in charge of a prison or part of a prison must take all reasonable steps for the security of the prison or part of the prison. (2) An officer in charge of prisoners must take all reasonable steps for the safe custody and welfare of the prisoners."

108. The second defendant was appointed Correctional Services Commissioner on 1 February 1999 and has been delegated the functions and powers of the Secretary to the Department of Justice which are held under the Act and pursuant to the Corrections Regulations 1998. By s. 17(1) the Secretary held all of the powers and functions of a Governor or prison officer in a prison. Section 21(1) of the Act provides:

"(1) The Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners."

112. Mr McEwen, for the Commissioner, stressed that s. 21(1) made the Governor of the prison responsible not merely for security and good order of the prison but also for the "safe custody and welfare of the prisoners", and submitted that the Strategy was plainly directed to those ends, and not to prison discipline and the punishment of offences. Furthermore, s. 20(1) provided that the officer in charge of a prison was obliged to "take all reasonable steps for the security of the prison" and by s. 20(2) was obliged to take all reasonable steps "for the safe custody and welfare of the prisoners". The implementation of the Strategy was one means whereby those reasonable steps might be taken in meeting the duties imposed by ss. 20(1) and (2).

115. For the plaintiff, it is submitted that where a specific and exhaustive statutory regime of punishment for prison offences is provided under the Act the power of punishment for offences must be governed by the specific provisions, and may not be overridden or added to by general provisions in the same Act. Counsel referred to Refrigerated Express Lines (A'Asia) Pty Ltd v Australian Meat and Livestock Corp[2], K & F Lake City Freighters Pty Ltd v Gordon & Gotch Ltd[3], and Lyons v Registrar of Trade Marks[4].

118. In the first of those cases, Deane J held[5] that in determining whether action, purported to be taken under general powers, was valid, the rule applied where it appeared, as a matter of construction, that special provisions were intended exhaustively to govern the subject matter and where the general provisions, if held to be applicable to the specific subject matter, would constitute a departure from that intention, by encroaching on the subject matter.

121. An illustration of the application of the above principle occurred in the decision of Lee J in Maybury v Osborne & Another[6]. In that case a prisoner complained that he had been denied privileges by the Governor, who purported to exercise his power to do so pursuant to a regulation which, in turn, derived its power from the general provisions authorising him to act for the management, control and good order of the prison. The Act also provided expressly for the hearing of prison offences, of the same character, and provided for penalties which were less severe than that imposed under the regulation. Lee J held that the regulation was inconsistent with the express provision and was therefore invalid. In that case, however, the action of the Governor was undeniably the imposition of a punishment for a prison offence, Indeed, the regulation itself said so. Thus, in that case, as was the case of Bromley v Dawes[7] (where, after a prison riot, the prisoner was moved to a disciplinary wing, where his movements were restricted and at which location certain privileges were not available), the legislation made it plain that the denial of privileges for the purpose of punishment could only occur pursuant to the specific provision relating to prison discipline.

124. Counsel for the defendants did not challenge the relevance of the principle stated by Deane J but submitted that this was not an instance where general powers were being relied upon for the purpose of imposing punishment for prison offences. They submitted that the general management powers and duties of ss. 20 and 21, to act in the interests of safety and welfare of prisoners, and also the power under s. 38, and the regulations (to impose conditions on contact visit participation), created separate and distinct bases upon which denial of participation was justified. In other words, the denial of contact visits could be justified either by reference to s. 20(1)(2) and 21(1), which imposed both a power and a duty pursuant to which the Strategy was justified, or else, by reference to the right to impose conditions under s. 38. I deal first with the claim that the Strategy is authorised by ss. 20 and 21.

127. A decision which has the effect of denying privileges, or otherwise penalising a prisoner, but which is said to be taken not as punishment for a prison offence, might be struck down on the basis that, notwithstanding the assertion to the contrary, the court concluded that the exercise of the power was not in good faith and that the true purpose, solely or substantially, was to punish the prisoner under the guise of exercising some other function and power[8]. Likewise, it would be an act done mala fides if the action taken against the prisoner was done as an indirect method of punishing him for an offence which the prison authorities thought they could not otherwise prove[9]. It was not contended that this case was an instance of a lack of good faith in those ways. However, if the action is done in good faith it may still be struck down as beyond power if, on proper analysis of the power, it does not extend to authorising the action which was taken[10], or if the manner in which the power is exercised for the suggested purpose is so manifestly unreasonable as to offend "Wednesbury" principles, i.e, as being so unreasonable that no reasonable authority could have taken such action in purported exercise of the power for that purpose[11]. Where the exercise of the general power is done in good faith, is within the scope of the power authorised, and is not so unreasonable as to be manifestly beyond power, then the mere fact that a consequence of the exercise of that power is that a prisoner is denied a privilege or benefit which he might otherwise have held - unless charged and found guilty of a prison offence under separate, disciplinary, provisions - would not render the action unlawful.

130. Thus, where, as in Bromley v Dawes, the indirect result of the exercise bona fide of general powers of management of a prison was that the prisoner was denied privileges, that was not beyond power. If the court discerned that the intended purpose of the exercise of power was in fact to impose punishment for a prison offence then the action would be struck down. The distinction is drawn in the Queensland case of R v Gray, Hunter and Speedy[12], a decision of Byrne J.

133. In Gray, Hunter & Speedy, certain prisoners, after a riot had occurred in the prison, were identified as troublemakers who might engage in further riotous behaviour, and, as a result, they were confined to their cells during the day and were denied privileges. They sought the reinstatement of the previous privileges. Byrne J held that the prison manager had exercised his express power to segregate prisoners for security and good order. The Act contained specific provisions for prison discipline, including the penalty of loss of privileges for an offence. Byrne J held that the denial of privileges was not done for the purpose of punishment for an offence, although it would have seemed so to the prisoners. His Honour stated the situation in the following terms, at 370-371:

"The statutory authority is sufficient to order, for example, transferring of a prisoner from one unit or correctional centre to another - something which may incidentally involve loss of privileges. The sections would also sustain other orders made bona fide for security and good order or the safety of inmates and staff even though they may effect temporary deprivation of privileges or create harsher conditions. The powers cannot be exercised in bad faith or for some such improper purpose as the infliction of punishment for an offence without compliance with the subdiv C procedures. But nothing of that sort is indicated by the evidence adduced on these applications. An incentive scheme is a useful management tool. Its adoption is not at all surprising. Nor does it reflect a unique Queensland attitude. In Maybury v Osborne[13], Lee J said[14]: `One would expect that, in a prison, the superintendent would employ a system under which prisoners who behaved well and observed the requirements of prison discipline would be given more favourable treatment than those who did not'."

137. Counsel for the Commissioner submitted that whilst the sanction follows upon the finding of guilt, that is merely a consequence of the status of a prison drug offender which, for the purpose of the Strategy, the finding of guilt creates, and the Drug Strategy is not a regime of punishment for disciplinary offences. The distinction is not clear cut, in the present case. The situation here is different to that which arose in R v Walker[15] where by virtue of being transferred to a higher security rated prison a prisoner was denied privileges which were granted only in lower security prisons. He contended that he had a legitimate expectation to receive the privileges which had been denied to him. Williams J held that the decision to transfer the prisoner had been taken bona fide in the exercise of powers and duties to maintain security, and was not taken for the indirect purpose of punishment. The fact that he no longer had the same prospects of gaining the privileges was "an irrelevant consequence" of the decision to transfer him. That is similar to the situation dealt with in Gray, Hunter and Speedy, and also in Bromley v Dawes. In the present case the decision to deny access to the program was directly related to the finding of guilt of the prison offence.

140. Were I to find that one intended purpose of the Strategy was to punish prisoners for drug offences then, as the cases discussed above demonstrate, that might well be sufficient to amount to mala fides, being sufficient on that basis, or on other grounds, so as to constitute the sanction an unlawful exercise of power. Counsel for the plaintiff submitted that although it was not contended that the defendants were deliberately misusing the power under s. 21(1) for a disguised purpose of punishment, that was, objectively, one significant purpose of the sanctions. No serious challenge was made to the bona fides of the defendants as to their assertion that one intended purpose of the Strategy was the welfare and safety of prisoners, but it was submitted that I should reject the assertion that the imposition of sanctions was not intended, at all, to be a punishment for drug offences in prison. Whilst other considerations may have also been relevant, the terms used in the Strategy demonstrate that punishment must have been one factor, so it was submitted. Furthermore, the fact that there was a sliding scale of periods of deprivation of the contact visit privilege, varying according to whether it followed a second or subsequent offence, demonstrated, so it was submitted, that the prisoners were being punished.

143. I do not doubt that the Strategy is concerned with the welfare of prisoners, but it is not denied that it is also intended to have an impact upon, and be part of a regime bearing upon, the management, security and good order within prisons. In his submission on behalf of the Commissioner, Mr McEwen said of the Strategy that: "The purpose, or at the very least, the predominant purpose, of the sanctions in Section 2 of the (Strategy) is to act as inducements for a prisoner in his future behaviour not to use drugs".

146. During the course of argument I characterised the approach as being one of "carrot and stick". However, while there is undoubtedly the "carrot" - being participation in contact visits (if the prisoner remains drug free) - was the denial of contact visits in consequence of a finding of guilt of a drug offence, a "punishment" for that offence, or was the "stick" merely denial of entry because the prisoner had attained a status which denied entry into the programme (or failed to maintain a status which was a condition for participation)? It would not be surprising if some prisoners regarded the "carrot and stick" approach as amounting to secondary punishment for offences for which they had been already punished. That belief would no doubt be encouraged by the statement in the Strategy which I earlier quoted[16], namely, that it is important "that prisoners found guilty of using drugs in prison experience consistent management and sanctions". However, the second paragraph to that statement makes it clear that the purpose of the Strategy is not to punish for prison offences but to prevent drug use and to prevent drugs coming into the prisons, and, additionally, to deter and rehabilitate prisoners as to drug use.

149. Thus, the defendants contend that the imposition of the sanctions should not be characterised as being punishment for the past prison offences, but, rather, as being "inducements for prospective behaviour". Counsel for the plaintiff submitted that the sanctions must be regarded as being punishment[17].

152. Mr Neal, for the plaintiff, submitted that whilst s. 21(1) authorised the taking of administrative measures for the maintenance of good order and discipline, that power could not authorise punishment for past prison offences, for which the prisoner had already been punished: Bromley v Dawes[18]. Counsel for the defendants submitted that the powers and duties imposed under ss. 20 and 21 were broader than merely being related to good order and discipline and related also, and primarily, to the safety and wellbeing of the prisoners.

155. The defendants contend that in the exercise of the powers, and in compliance with their duties under ss. 20 and 21, it was in the interests of the safe custody and welfare of prisoners that the Strategy be implemented in the terms in which it has been. They contend that having regard to the seriousness of the drug problem in prisons, and to the need for consistency in the management and imposition of sanctions, it is a reasonable exercise of the Commissioner's powers under s. 21(1), and a necessary step to take in meeting the mandatory duties imposed by s. 20(1) and (2).

158. The evidence before me discloses that as estimated by the Department of Justice in August 2000, 63.9% of first time prisoners are admitted drug users and the figure is 84.3% for those undergoing a second or subsequent sentence. Approximately 25% of prisoners are found guilty of drug offences while in prison. About 10% of deaths in custody are due to drug overdoses. Ms Wisdom deposed that drug usage not only threatens the welfare of the individual users but the welfare of other prisoners too, and can lead to assaults on staff and prisoners, and to intimidation of prisoners and their families, and to drug related illness and deaths. Drug usage inhibits the prospects of rehabilitation of released prisoners and a high percentage of drug related deaths in the non prison community involve former prisoners[19].

161. To the prisoner it may seem that the contact visit privilege under s. 38 had been withdrawn as an additional penalty for the prison offence. In my view, however, the finding of guilt is merely being taken as the determinant of the status of the prisoner as a drug user, a status which is a relevant consideration to be taken into account with respect to participation in a contact visit programme. Insofar as the denial of contact visits is prolonged according to the number of prison drug offences that too seems to be a relevant consideration, having regard to the question of the likelihood of prisoners being involved in the entry of drugs through contact visits. In determining whether action taken in purported reliance on the powers and duties of ss. 20 and 21 was lawful the court must have regard to the role and function of the prison system (which is the background to the grant of those powers to prison administrators) and to the experience and expertise which prison administrators must inevitably hold. If the policy is severe, then so too is the problem, and the courts should be slow to tell prison managers what is necessary for the proper management of prisons and for meeting the objectives of s. 21(1) and the duties under s. 20[20], or in concluding that the action which has been taken is an unreasonable one for the purpose of meeting the obligations and duties under ss. 20 and 21[21].

164. Were it the case that under the guise of a programme ostensibly being conducted for the welfare of prisoners the true purpose (or, at least, one purpose) was to punish prisoners for prison offences by the imposition of an additional penalty, being one not permitted to be imposed under Part 7, then the abuse of power would undoubtedly be amenable to judicial review[22]. However, whilst I think there is more of a punitive character to the exercise of power in this case than in some of those which I have cited, and a more obvious linkage being made between the finding of guilt and the imposition of the sanction, I am not persuaded that, properly characterised, one purpose of the imposition of sanctions was punishment for a prison offence. That is so notwithstanding that the Strategy undoubtedly adopts an approach which, as one element, discourages prisoners from committing offences relating to drugs by prohibiting those who are so convicted from participation in the contact visit programme, and by making the discouragement increasingly pronounced for those who continue to indulge in drug use.

167. The question remains, whether, notwithstanding that the sanctions were not intended to be punishment, and notwithstanding that the Drug Strategy was within power under s. 21(1), and by reference to ss. 20(1) and (2), the imposition of sanctions was unlawful because they constituted a form of punishment and were therefore prohibited because punishment for prison drug offences could only be imposed pursuant to Part 7, which covered the field[23] as to punishment.

170. In Binse v Williams the Court of Appeal considered the question of the possible repugnancy between general provisions of a statute, being regulations made pursuant to the general powers and duties of ss. 20 and 21, on the one hand, and, on the other hand, provisions dealing with a specific subject matter (in that case, the right given by s. 112, to impose physical restraints on a prisoner). In that case the prisoner, who had a history of making escape attempts, was placed in arm and leg restraints in circumstances other than those expressly provided for by regulations made under s. 112. The Governor relied on his powers and duties under ss. 20 and 21. In a passage appropriate to the present case, Charles JA held:

"I do not accept that there is any repugnancy between the provisions in question. The argument was that s. 112 prevailed and was exclusive so that, the regulations not dealing with purpose, there was no power to impose restraints. The making of valid regulations, it was submitted, would cut down the implied powers in ss. 20 and 21. I do not accept this submission. In my view repugnancy could be found to exist only if it were the intention of s. 112(1)(f) that once regulations had been made under the section, no other power to impose restraints could survive, or secondly regs 36 and 39 were intended to govern exhaustively that particular subject matter. I see no justification for giving s. 112 or the regulations made under it any such operation, particularly having regard to the mandatory terms of s. 20 which requires the governor to take all reasonable steps for the security of the prison. When regard is also had to the governor's responsibility for the management, security and good order of the prison and safe custody and welfare of prisoners, I see no inconsistency between the survival of a power to impose restraints in the governor, provided the restraints are reasonable for the occasion in question, notwithstanding the making of regs 36 and 39."

174. Applying those considerations to the present case, whilst Part 7 manifests an intention to cover the field with respect to punishment of prison offences I do not consider that it manifests an intention that it was only pursuant to disciplinary proceedings under that Part whereby a prisoner might be denied the benefit of a privilege which expressly was provided for in a section of the Act or under the regulations. That is particularly so where the loss of the privilege could not be imposed as a penalty under s. 53(4), and where the terms and conditions of access to the privilege were expressly and separately provided for in the Act and Regulations. There is no repugnancy between the provisions of Part 7, on the one hand, and the denial of the s. 38 privilege by reference to the exercise of power under s. 21(1), on the other hand.

177. In my opinion, therefore, the implementation of the Strategy is within the power granted under s. 21(1) and by reference to s. 20, and the sanctions imposed under it are not beyond power, nor constitute an abuse of power or an unreasonable exercise of power under those sections. Before turning to the alternative argument advanced by the defendants as to the source of power for the imposition of sanctions, I will deal with a discrete issue.

180. The loss of the contact visit privilege was not one available as a penalty under s. 53(4). Initially, I considered that there was some force in the contention on behalf of the plaintiff that if it was to be a sanction which flowed by virtue of the finding of guilt of a drug offence then it should have been listed in the schedule of privileges which were authorised to be withdrawn (in whole or part), under s. 53(4), at a Governor's hearing. Were that the case, however, then to deny contact visits in all cases upon findings of guilt of drug offences (as the Strategy stipulates) would deny individual justice to the prisoners being sentenced. Furthermore, unlike the other privileges which are covered by s. 53(4) the contact visit privilege is one expressly dealt with in the Act itself, by s. 38, and the terms of the section make it clear that it is a privilege which may be granted upon conditions made under the regulation making power of the Secretary, as delegated eventually to the Director of Prison Services. The powers and discretions held by that person under the regulations would conflict with the sentencing discretion of the Governor at a Governor's hearing. The scheme of the Act suggests that it was intended that the contact visit privilege was not one to be addressed by the Governor as a punishment, but a privilege which was granted, or not, by reference to the conditions of the contact visit programme. It must be noted, that contact visits are not one of the "rights" which are expressly given to prisoners under s. 47, although a right to a non contact visit (as specified in s. 37) is given by s. 47(k).

183. Counsel for the second defendant submitted that even if I had reached a conclusion that s. 21(1) did not provide the basis of power for the imposition of the sanctions under the Strategy, the denial of contact visits (being one of the deprivations visited as a sanction on prisoners who were convicted of a drug offence) could be independently justified by reference to the power granted under s. 38 and the regulations. It was appropriate, he submitted, that a condition be imposed denying, or limiting, access to the contact visit programme to any prisoner who had been found guilty of a drug offence in prison.

186. When the proceedings were issued the plaintiff's case was predicated on the assumption that the only possible source of power for the imposition of the sanctions under the Strategy would be the general power under s. 21(1), as supported by s. 20(1) and (2). However, shortly before the hearing the second defendant filed an affidavit setting out the conditions imposed for contact visits under s. 38 and in the course of the hearing counsel for the Commissioner submitted that the power to impose conditions under s. 38 was a quite independent basis for upholding the sanctions.

189. Mr Neal, counsel for the plaintiff, sought the opportunity to address this argument by written submission, the alternative basis for supporting the sanction having been raised by the second defendant only shortly before the hearing commenced. I granted leave for further submissions to be filed on each side and I have considered those submissions. In the written submissions counsel for the plaintiff sought to attack some of the conditions in addition to the one specifically raised in the present proceeding, namely the condition under the seventh bullet point, relating to a finding of guilt of a prison drug or alcohol offence. Save for limited purposes, it is not, in my view, appropriate to address the other conditions, since the policy considerations underlying their adoption had not been the subject of debate before me.

192. Mr Neal submitted that insofar as the conditions amounted to the imposition of penalties for prison drug offences (and many of the conditions were not claimed to offend in that way) then they were, once again, invalid because the penalty provisions of Part 7 covered the field for punishment for offences. As to the condition imposed by bullet point 4 - denial of participation for 21 days after being charged with a prison offence occurring at a contact visit - counsel submitted that if the period ran after the time when any penalty was imposed under s. 53(4) the sanction would be beyond power, but he did not contend that it would otherwise be so.

195. A complaint was made about the condition in bullet point 6 - denial of contact visits for offences at a contact visit other than drug or alcohol offences - but I will not deal with that as it was not a matter argued before me as relevant to this plaintiff. That is accepted to be so with respect to the condition in bullet point 5.

198. In contending that the sanction could not be empowered by s. 38 counsel for the plaintiff essentially relied on the same arguments as he did with respect to the purported power under s. 21(1). The fact that it was a form of punishment, he submitted, can be seen by the adoption of sliding periods of disqualification, and it is a case of an indirect imposition of punishment of a kind which Mitchell ACJ rejected in Bromley v Dawes, at 105. However, as her Honour made clear in that case, where an action is empowered by a general provision giving management power to the Governor, the mere fact that in consequence of a bona fide exercise of that power, the prisoner is denied privileges which otherwise could only be denied after being charged and found guilty of an offence does not render the exercise of power unlawful. Mr Neal submitted that the imposition of a sanction, here, is a punishment and, as such, is not a mere consequence of the exercise of other legitimate powers, but is a primary purpose for the condition.

201. In my view, the sanction of denial of contact visits, notwithstanding that it was tied to the finding of guilt of a prison drug offence, was a valid condition authorised to be imposed to the programme under s. 38. As s. 38(3) states, contact visits are a privilege, but it is not a privilege which may be denied as a punishment for a prison offence pursuant to s. 53(4). That is not to say that it is a privilege which may not be withdrawn from a person who is a proven drug offender, or be withdrawn for longer periods with respect to someone whose extent of drug use, and potential for misusing the contact visit programme, as demonstrated by repeat offending, is demonstrably more pronounced.

204. If the condition was incapable of being one reasonably imposed, having regard to the objects and purposes of s. 38, then it could be struck down. In that regard, I consider that this condition does have quite severe punitive aspects. That is so given that, in adopting a "carrot and stick" approach to rehabilitation, the conditions do not differentiate between the situation and prospects for rehabilitation and/or of abuse of contact visit privileges as between individual prisoners. Furthermore, it is a severe condition which denies access to the programme for cumulating periods of 12 months upon third and subsequent offences. The severity of the conditions does not mean, however, that they are not conditions which might be imposed under s. 38. In my view, they are conditions which might reasonably be imposed as a consequence of adopting a regime for contact visits which encourages participants to be non users of drugs, a perfectly legitimate objective, and an appropriate condition to be imposed for contact visits.

207. Whilst the adoption of a strategy which does not differentiate between prisoners who have been found guilty of prison drug offences might be regarded as being severe, that might equally be regarded as being an appropriate, non-discriminatory, management approach for rehabilitation purposes and for discouraging drug offending (having regard, among other matters, to the important role which contact visits play in drug offending). The evidence before me suggests that the adoption of a blanket approach was regarded as being appropriate for achieving those objectives. As I have said, I am not persuaded that it was adopted as a means of imposing additional punishment for prison offences.

210. This is not a case where the Parliament has intended, in Part 7, to cover the field as to the removal of benefits or privileges, authorised by the Act or Regulations, to which prisoners might seek access. Section 38 is a distinct regime, and imposing a condition that a prisoner not have the status of being a person found guilty of a drug offence seems to me to be akin to a consequence which might flow, for example, from a conviction (such as disqualification as a Member of Parliament) rather than as a punishment for that finding of guilt. There is no inconsistency between the operation of Part 7 and the imposition of such a condition under s. 38.

213. In my view, the imposition of the condition which denies contact visits for periods of time following a finding of guilt of a drug or alcohol offence is authorised under s. 38. The exercise of that power has not been demonstrated to have been otherwise than bona fide, or for the purpose of imposing an additional punishment for the drug offence. Whether other conditions of the programme would be similarly authorised is a matter which does not fall to be decided with respect to this plaintiff.

216. The plaintiff's application should be dismissed. I will hear counsel as to costs and as to the terms of the orders which should be made.

[1] This is the most recent promulgation; the contact visit programme has been in existence for many years.

[2] Refrigerated Express Lines (A'Asia) Pty Ltd v Australian Meat and Livestock Corp [1980] FCA 38; (1980) 29 ALR 333, at 347.

[3] K & F Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 60 ALR 509, at 514, per Mason J.

[4] Lyons v Registrar of Trade Marks [1983] FCA 236; (1983) 50 ALR 496, at 508.

[5] Refrigerated Express Lines (A'Asia) Pty Ltd v Australian Meat and Livestock Corp, at 347.

[6] Maybury v Osborne & Another (1984) 1 NSWLR 579.

[7] Bromley v Dawes (1983) 34 SASR 73, at 105.

[8] Binse v Williams [1998] 1 VR 381, at 391-392, per Charles JA; McEvoy v Lobban (1990) 2 Qd. R 235, at 237 per Macrossan CJ, at 241, per Thomas J.

[9] Bromley v Dawes, at 105, per Mitchell ACJ.

[10] Binse v Williams [1998] 1 VR 381, at 392, per Charles JA.

[11] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, at 230, per Lord Greene M.R.; Binse v Williams, at 392; Rich v Groningen [1997] VSC 35; (1997) 95 A Crim R 272, at 287, per Gillard J.

[12] R v Gray, Hunter and Speedy (1990) 45 A Crim R 364.

[13] [1984] 1 NSWLR 579; (1984) 13 A Crim R 180.

[15] R v Walker (1992) 60 A Crim R 463.

[17] Counsel relied on the first limb of the definition of "punishment" adopted by Professor H.L.A. Hart in his essay "Punishment and Responsibility", namely, that "it must involve pain or other consequences normally considered unpleasant", but the second limb was that it must be "for his offence".

[18] Bromley v Dawes (1983) 34 SASR 73, at 105-6, per Mitchell ACJ.

[19] A joint study of the Office of Corrections and the State Coroner's Office, which was exhibited before me, disclosed that in the years 1999-2000, 491 of the drug-overdose deaths in the community involved ex-prisoners, and 25% of those deaths occurred within a week of release from prison.

[20] See the discussion in The Herald & Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329, per Eames J, at par 95.

[22] McEvoy v Lobban (1990) 2 Qd.R. 235, at 237, per Macrossan CJ, at 241, per Thomas J; Rich v Groningen [1997] VSC 35; (1997) 95 A Crim R 272, at 287, per Gillard J..