Kirkman v Moore [2001] NTSC 33

[2] The legislative authority for the Commissioner to remove a prisoner from one prison to another is to be found in s 58 of the Prisons (Correctional Service) Act. The exercise of the statutory power of removal is the subject of a Directive issued by the Commissioner the terms of which have been developed over a period of time. The Directive is number 2.4.1 and, relevant for present purposes, has been modified on three occasions with effect from 20 August 1998, 22 January 2000 and 27 February 2001. In its most recent form the purpose of the Directive is said to be:

"2.1 To ensure that prisoners have an opportunity to object to being placed on a list of prisoners eligible for transfer.

2.2 To ensure that subject to security and operational considerations prisoners' family are informed of impending transfer."

[3] The initial decision that a transfer of some prisoners is necessary is made by the Commissioner based upon his knowledge and experience regarding prison operations and security. There is an assessment procedure followed by the Department and that was described in the unchallenged evidence of the Commissioner. When it becomes necessary to effect a transfer officers of the Department of Corrections prepare a list of prisoners who are eligible and available for transfer. That list identifies the prisoners who are suitable for transfer from the total pool of prisoners at the Darwin Correctional Centre. The list does not include prisoners who are ineligible for transfer because they have matters pending before the court in Darwin, have less than 3 months to serve, are involved in prisoner rehabilitation programs, are involved in essential services or community work programs or those in respect of whom the objection period has not expired. There were other reasons why prisoners may be ineligible for transfer. Further, prisoners are not transferred if there is sufficient capacity within their classification in the Darwin Correctional Centre. The identification of prisoners eligible for transfer involves input from medical, welfare and education officers within the prison. Of the total prison population only somewhere between 10 and 15 percent of prisoners are at any one time both eligible and available to be transferred.

[4] When the identity of those eligible and available to be transferred has been determined the Commissioner undertakes what he describes as "a balancing exercise". He considers each name in the list and satisfies himself that those prisoners are suitable for transfer. In determining who will be transferred the Commissioner takes into account many matters including maintaining the racial mix of the prison, the personal circumstances of the individual prisoners and security and operational considerations. A matter requiring consideration is Recommendation 168 of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody which provides that, where possible, "an Aboriginal prisoner should be placed in an institution as close as possible to the place of residence of his or her family". Because the population of the Darwin Correctional Centre on average includes 60 to 65 percent Aboriginal prisoners the recommendation has application to many prisoners.

[5] The assessment procedure allows individual prisoners to object to being placed upon the list of those eligible for transfer. At the time of being placed upon the list each prisoner is informed that this has occurred and is told that he or she has a right of "appeal" or "objection" to the Commissioner. The prisoner is also told that should his or her circumstances change at any time a further application in writing to the Commissioner may be made. In the event that an objection is received the matter is reviewed by the Commissioner in light of the further information provided by or on behalf of the prisoner. The balancing process is again undertaken by the Commissioner and a further decision made.

[6] In May 2000, whilst on remand, the plaintiff wrote to the Commissioner indicating his desire not to be transferred to Alice Springs. He referred to his family and indicated that any transfer would make him think of suicide. The Commissioner replied by letter dated 6 June 2000 in which he informed the plaintiff that he would not be considered for placement in Alice Springs Correctional Centre whilst he was on remand. He was informed that once he had been dealt with by the courts, and if he received a term of imprisonment, then he would be assessed for suitability for transfer against the prisoner placement criteria.

[7] On 11 September 2000 the plaintiff was sentenced to imprisonment for a period of 4 years and 6 months with an order that he be released under the provisions of the Sentencing Act after serving 2 years imprisonment. The sentence was backdated to allow for the time the plaintiff had spent in custody awaiting sentence. The plaintiff is due to be released on 5 December 2001.

[8] On 14 September 2000 the plaintiff was notified that his name had been placed on a list of those prisoners considered eligible for possible transfer from the Darwin Correctional Centre to the Alice Springs Correctional Centre. He was, at that time, informed that he had a period of 14 days in which to make "application of appeal in writing to the Commissioner setting out valid and compelling reasons to preclude (him) from placement in Alice Springs Correctional Centre". He was told that he could speak with various identified officers who may be able to assist in the preparation of the appeal. He was also advised that if at any time "an extreme change" in his circumstances occurred he could make further application to the Commissioner.

[9] The plaintiff wrote to the Commissioner stating that he did not wish to transfer to Alice Springs. He set out his reasons which were that he only had 15 months of his sentence to serve, that he has a wife and 3 young children in Darwin, that he and his wife "are starting to work things out properly" and any transfer would be "very upsetting for my wife and children".

[10] The Commissioner responded to the plaintiff by letter dated 27 September 2000 indicating that the information provided did not cause him to change his mind. It was pointed out that visits with the family could still occur through video conferencing facilities provided by the prison. The letter also informed the plaintiff that no decision to transfer him had been made at that time but that this situation may change "at some time in the future".

[11] In September 2000 an assistant Commissioner wrote to the North Australian Aboriginal Legal Aid Service enclosing a list of prisoners assessed as suitable for transfer to the Alice Springs Correctional Centre. The name of the plaintiff was on that list. No appeal or objection was made on behalf of the plaintiff by that Service.

[12] Some 6 months later, on or about 9 March 2001, the Commissioner directed that the plaintiff be transferred to the Alice Springs Correctional Centre. The plaintiff was informed on that day of his impending transfer. He spoke with his wife by telephone and then met with his wife and children on 13 March 2001. He was transferred from the Darwin Correctional Centre to the Alice Springs Correctional Centre on 13 March 2001.

[13] Upon his arrival in Alice Springs the plaintiff obtained legal representation through the Central Australian Aboriginal Legal Aid Service. On 15 March 2001 that Service wrote to the Commissioner and requested a review of the plaintiff's case on "welfare and procedural fairness" grounds. The letter set out the personal circumstances of the plaintiff and, for the first time, advised that the plaintiff's mother, who along with his wife and children had been a regular visitor to him in Darwin, was suspected by him of suffering cancer. Whether or not she in fact suffered cancer has not been addressed in the evidence before me.

[14] In the letter it was observed that the plaintiff had lost "six close members of his family: his aunty, two uncles, a grandfather and two cousins" and that he had been engaged in a "grief and loss" program in Darwin which was not available to him in Alice Springs. The letter advised the Commissioner that the plaintiff had threatened suicide and was, at that time, classified as a prisoner "at risk". In relation to the claim that the plaintiff was not accorded procedural fairness it was said that he was not told of his "right to appeal the decision to transfer him to Alice Springs".

[15] The Commissioner treated that letter as a further objection. He took into account the matters raised but said that he "found no compelling reasons to preclude (the plaintiff) from transfer". The Commissioner said that his information was that the plaintiff was then "settling in well" in Alice Springs.

[16] The plaintiff through his solicitors then obtained psychological assessments of himself, his wife and of his children. These were provided to the Commissioner with the following request:

"In light of these reports we invite you to reconsider your decision and specifically invite you to take into account Recommendation 168 of the Royal Commission into Aboriginal Deaths in Custody and Article 3.1 of the United Nations Convention on the Rights of the Child, which provides that 'in all actions concerning children ... the best interests of the child shall be a primary consideration'."

[17] The psychological report in relation to the plaintiff provided a more detailed review of his history. It recorded that, although he had in the past sought to harm himself and he had threatened suicide at the time of his transfer, he did not present with any suicidal ideation at the time of interview. The psychologist assessed the risk of suicide as "immediately low" in Alice Springs but noted that the risk of developing depression (which was not then present) was a higher risk in Alice Springs. It was said that his anger and grief needed to be addressed by both the plaintiff himself and by Correctional Services and that the necessary programs were not available in Alice Springs. The report referred to the distress that had been suffered by the family as a result of his transfer. It was said that it was in his best interests to relocate to Darwin where he would have contact with and the support of his family. It was suggested that in Alice Springs he is "at high risk of developing depressive and trauma related symptomatology that will seriously compromise his mental health".

[18] The file of the plaintiff revealed that he had been assessed as a prisoner at risk of self harm on 12 March 2001 which was the day before he was transferred. He was removed from that category by the Visiting Medical Officer later on that day. He was also assessed as a prisoner at risk of self harm on 14 March 2001 and the cessation of risk was recorded by a forensic psychiatric nurse consultant later on that day. It was noted that he had suffered from mild separation anxiety and anger due to the transfer from Darwin. It was said that he posed no threat to himself or others.

[19] The other report provided by the solicitors recorded an apparent close attachment between the plaintiff and his children. It was noted that their mother was doing an "excellent job" in rearing the children. The report recorded that the plaintiff's family is not a traditional Aboriginal family and that the parents have adopted a "more European approach". The report made the point that, as with most children, the children in this family want to have a close relationship with both parents.

[20] The Commissioner treated the letter and the reports as a further objection to the decision to transfer the plaintiff from Darwin to Alice Springs. He wrote to the legal representatives of the plaintiff on 6 April 2001. Again he referred to the right to receive visits being exercised through the medium of video conferencing. That service was free of charge and based upon the same conditions as personal visits. In relation to the United Nations Convention on the Rights of the Child the Commissioner noted that "to the extent that it is reasonably possible, given the availability and location of the two institutions, the Northern Territory complies with this convention." The effect of the letter was to reject the further objection.

[21] In his affidavit evidence placed before me the Commissioner advised that he had regard to Recommendation 168 of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody in considering the position of the plaintiff. When making the assessment as to who should be transferred he said that he balanced the reasonable requirements of each prisoner against the operational and security constraints under which both the Alice Springs and the Darwin Correctional Centres operated.

[22] In these proceedings the plaintiff sought to be re-transferred to the Darwin Correctional Centre. He did so in a number of ways. He sought an order in the nature of certiorari to quash the decision of the Commissioner to transfer the plaintiff from the Darwin Correctional Centre to the Alice Springs Correctional Centre. Alternatively he sought a similar order to quash the decision made by the Commissioner not to transfer the plaintiff from the Alice Springs Correctional Centre to the Darwin Correctional Centre. He sought a declaration that the transfer of the plaintiff from the Darwin Correctional Centre to the Alice Springs Correctional Centre was unlawful. Finally he sought an order that the plaintiff be removed from the Alice Springs Correctional Centre to the Darwin Correctional Centre by order of this Court pursuant to s 58 of the Prisons (Correctional Services) Act.

[23] The basis of the attack upon the decision to remove the plaintiff from Darwin to Alice Springs centred upon a claim that the plaintiff had been denied procedural fairness and that the decision to transfer the plaintiff was unreasonable and therefore an abuse of power.

[24] In relation to the denial of procedural fairness it was submitted that although the plaintiff had been given notice that a decision had been made to place him on a list of prisoners eligible for transfer and he had been alerted to the availability of an "appeal", the plaintiff was not told that he had a right of appeal following the decision to actually transfer him to Alice Springs. It was submitted that he was denied the opportunity of making representations to the Commissioner and that he should have been provided with an opportunity to be heard as to why the decision to transfer him should be reversed.

[25] The submission made by the plaintiff is not supported by the evidence. Some time before he was transferred the plaintiff was informed that his name was on the list of those prisoners considered eligible for transfer. He was also informed of his right of "appeal" and he chose to exercise that right. His "appeal" was unsuccessful. At that time he was also informed that if his circumstances changed "at any time" he could make further application in writing to the Commissioner. The plaintiff acknowledged receipt of that advice in the document dated 14 September 2000 which document was signed by him.

[26] The right of further application or "appeal" continued up until the time the plaintiff was transferred to Alice Springs and beyond. It was not removed or altered by the fact that a decision to transfer him had been made. He was still able to apply to be removed from the list of those eligible for transfer to Alice Springs if there was a relevant change in his circumstances. There was no suggestion by the plaintiff that the Commissioner would not have received and considered any further application made by the plaintiff. Subsequent events demonstrate that the Commissioner did in fact receive and consider a further application from the plaintiff. However no further application was made whilst the plaintiff was in Darwin.

[27] In the circumstances the right to seek a reconsideration was available to the plaintiff from the time that he was first placed on the list until the time that he was in fact transferred and beyond. The plaintiff was aware that this was so. He has not asserted otherwise. There was no need to repeat that information to him. He was not denied the opportunity to make further representations to the Commissioner immediately before his transfer or at any time. He had the opportunity to do so after he was informed of the decision and before he was transferred from Darwin to Alice Springs. He did not seek to do so and he does not assert that he was unable to do so by virtue of a lack of opportunity. When he arrived in Alice Springs he exercised his right to seek a review and he did so through solicitors in Alice Springs.

[28] Further it was submitted that the plaintiff had a legitimate expectation that as he was a person who had been assessed as suitable for transfer as at 27 February 2001, the Directive issued by the Commissioner on 27 February 2001 (Directive 2.4.1, issue number 3) would be followed by the defendant. In particular it was submitted that the plaintiff had a legitimate expectation that he would be served with the notice set out in the terms of Appendix B to that Directive. It was said that the plaintiff was not served with the notice and was therefore deprived of the right to object contained therein. He was not informed of a right to seek legal advice contained in the Directive. He was deprived of the period of 14 days provided for in that notice within which to object and he had a legitimate expectation that he would not be transferred until the provisions of the Directive had been complied with.

[29] It was not disputed before me that the various versions of Directive 2.4.1 gave rise to a legitimate expectation by those likely to be affected by the decision that the procedure would be followed. That is so whether or not the person affected was personally aware of the procedure or personally entertained any expectation that a particular procedure would be followed: see Murielle & Ors v Moore & Anor [2000] NTSC 23.

[30] The version of Directive 2.4.1 that applied at the time the original decision to place the plaintiff on the list of prisoners available for transfer was that issued on 20 August 1998. There is no suggestion that the terms of that Directive were not complied with by the Commissioner and his staff. At the time the decision was made to transfer the plaintiff the version of the Directive that applied was that issued on 27 February 2001. It was submitted on behalf of the plaintiff that the plaintiff should have been dealt with under the later version of the Directive. It was submitted that a fresh notice should have been served upon him and he should have been informed that he had 14 days from the date of that service in which to object against the assessment of him as being suitable for transfer.

[31] In my opinion that is not so. At the time the amended version of Directive 2.4.1 was issued the plaintiff had already been assessed as being suitable for transfer. He had been advised of his right of objection and he had exercised that right. The changes in procedure introduced by the amendments to Directive 2.4.1 did not alter the situation so as to require that the exercise be repeated. Counsel for the plaintiff did not make that submission. The amendment did not create new rights. It did not give rise to any further expectations for this plaintiff. It is wrong to suggest, as the plaintiff submitted, that he was "deprived of the period of 14 days in which to object". He had previously been advised of his right to object within that period and he had exercised that right. He was aware of his continuing right to object if circumstances changed. He did not seek to object until he arrived in Alice Springs.

[32] In my opinion the plaintiff was not denied procedural fairness.

[33] It was submitted that no reasonable person would have come to the decision to transfer that was reached by the Commissioner. The basis of that submission was in the following terms:

"1. The legitimate expectation that Recommendation 168 and the Articles in the United Nations Convention on the Rights of the Child would be taken into account in arriving at the decision. The evidence and, in particular, the psychological evidence supports the conclusion that each of those matters is directly relevant to this case.

2. The Commissioner had a duty to enquire and in this case there was material directly relevant to the decision to be made ie mental and emotional state of the plaintiff and the support provided by the regime of visits by his immediate family that he did not take into account. The material supports the conclusion that the plaintiff was greatly concerned about the loss of direct contact with his family. He became a "prisoner at risk" once he was told he would be transferred. The psychological evidence equally supports that conclusion. The failure of the Commissioner to proceed to enquiry has resulted in an exercise of his decision making power in a manner that is so unreasonable no reasonable person would have exercised it."

[34] The submission of the plaintiff in relation to the expectation arising out of Recommendation 168 and the Articles in the United Nations on the Rights of the Child ignores the clear indication made by the Commissioner that he took those matters into account when making his decision. His evidence in that regard was unchallenged by other evidence or by submissions. From his evidence it is known that the Aboriginal population of the Darwin Correctional Centre is said to be 60 to 65 percent of the total prison population. The provisions of Recommendation 168 will apply to each of those Aboriginal persons. In addition the needs and requirements of families including children must logically apply to many prisoners held at the Darwin Correctional Centre.

[35] The fact that the plaintiff may have held a legitimate expectation that Recommendation 168 and the Articles of the Convention would be taken into account in arriving at the decision does not mean that a decision cannot be made that is inconsistent with that expectation. The plaintiff had no legitimate expectation that he would spend the period of his imprisonment in the Darwin Correctional Centre. Mr Tippett did not submit on behalf of the plaintiff that either of those considerations precluded a decision to transfer but rather he said that they were matters that must be taken into account. On the evidence before me they were taken into account.

[36] As to the submission that there was a duty on the part of the Commissioner to enquire it was not made clear what that enquiry should have been nor what would have been learned by the Commissioner that he did not already know had enquiry been undertaken. The Commissioner had the submissions made by the prisoner as to the situation of his family and as to the plaintiff's own assessment of his psychological condition when each decision was made. As time went on further information was provided to the Commissioner. That information expanded upon but did not alter the effect of the information already to hand. On each occasion he re-assessed the position in light of the new information (including the psychological reports) but was not persuaded to change the original decision made.

[37] In the course of submissions counsel for the plaintiff referred to s 40 of the Prisons (Correctional Services) Act which provides that subject to Part X and Part XI of the Act a prisoner may receive visitors. It was submitted that in the circumstances of this case where the plaintiff had been receiving visitors, there was a duty imposed upon the Commissioner to provide the plaintiff with an opportunity to be heard as to why the decision to transfer should not be made. It is true that the plaintiff in these proceedings received many visits from his wife and children during the period that he was in Darwin. It is also the case that his family could not be expected to relocate to Alice Springs to maintain the visiting regime. However the plaintiff was made aware of the existence of the facility which enables visits to occur by way of video conferencing in circumstances where the video conferencing is free of charge and on the same conditions as personal visits. Although for many such an arrangement is likely to be less satisfactory than a personal visit the fact remains that visits are available. In addition it is clear that the issue of visits was a matter placed before the Commissioner and a matter which he took into account in making his decision. Further it is clear that there was a need to deal with the problem of overcrowding in the prison. On 2 March 2001 the prison population was 400 being 100 percent of capacity. On 12 and 13 March 2001 it was at 96.75 percent and 92.75 percent respectively. At the same time there was space available in Alice Springs.

[38] In making his initial decision and in considering the various objections of the plaintiff the Commissioner has taken into account those matters that he is required to take into account. It is not suggested by the plaintiff that he took into account matters that he should not have taken into account. It is not suggested that he acted in bad faith or for an improper purpose. In my opinion none of the various decisions made by the Commissioner can be described as "a decision to which no reasonable person could come": Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1986) 65 ALR 549 at 562.

Section 58 Prisons (Correctional Services) Act

[39] Section 58 of the Act provides that a prisoner shall on the order of a Judge of the Supreme Court be removed from a prison to another prison or brought before the court or taken to such other place as required. It was submitted by the plaintiff that the court had an unfettered discretion to grant relief to the plaintiff by an exercise of the statutory power found in that section. It was submitted that the exercise of the power was not dependant upon a finding that the defendant had acted unlawfully in removing the plaintiff to Alice Springs or in refusing to remove him back to Darwin. It was submitted that an order should be made by this court directing the removal of the plaintiff to the Darwin Correctional Centre "in the interest of the prisoner's well being".

[40] The power granted to the court in s 58 is expressed in very broad terms. It is clear that the court may resort to the section for its own purposes eg to have a prisoner available to the court for the purposes of the hearing of his or her matter. However any limits upon the exercise of the power found in s 58 was not an issue addressed in any detail by the parties before me. In my view in the absence of a reason associated with the conduct of proceedings in the court a court would be most reluctant to exercise the power under s 58 where to do so would be to interfere with the legitimate discipline, administration or management of prisoners by the relevant authorities. It may wish to interfere where a decision is made in relation to a prisoner in bad faith or for an improper purpose or with an ulterior motive. However that is not the situation in this case. I will content myself with saying that this is not a matter where the court should exercise any power it has under s 58 to remove the plaintiff.

[41] In the circumstances I decline to grant the relief sought by the plaintiff. The application is dismissed.