McKane v Commissioner of Corrective Services for New South Wales

EVIDENCE

1. The plaintiff relied upon his affidavit of 11 March and 1 April 2020.
2. The Commissioner relied on the affidavit of Alyson McDade affirmed 4 May 2020. Ms McDade is the Executive Officer and Registrar of the Serious Offenders Review Council ("the SORC").

FACTUAL BACKGROUND

1. The plaintiff is an inmate in Junee Correctional Centre, serving a sentence of 18 years with a non-parole period of 13 years having been convicted of sexual and indecent assault. A result of that sentence (since it included a minimum term of more than 12 years' imprisonment) was to bring the plaintiff within the definition of a "serious offender" in s 3 of the Crimes (Administration of Sentences) Act 1999 (NSW) ("the Act").
2. The plaintiff has been in custody since 12 May 2011. His earliest possible release date ("EPRD") is 11 May 2024.
3. From 2011 to 2016, the plaintiff's security classification was Category A2, and it appears from 14 November 2016 his security classification was Category B.
4. In accordance with the Corrective Services NSW Inmate Classification and Placement Policy ("the Policy"), as discussed below, absent special circumstances: 1. the plaintiff was eligible to be considered for a reduction in his security classification from B to C1 on 11 May 2019, being the date 5 years before his EPRD; and 2. the plaintiff will be eligible to be considered for a reduction in his security classification from C1 to C2 on 11 May 2021, being the date 3 years before his EPRD.
5. On 10 July 2019, the plaintiff was interviewed by an Assessment Committee of the SORC. That committee proposed that his security classification be reduced from B to C1, on the basis that he was willing to sign off for a Special Management Area Placement ("SMAP"), that he was stable and compliant, and that he had good work reports.
6. On 13 August 2019, the SORC recommended to the Commissioner that the plaintiff's security classification be reduced from B to C1, again noting that the plaintiff was a stable and compliant inmate with good reports and work ethic.
7. On 16 August 2019, the Commissioner made the August 2019 decision, declining to approve the recommendation of the SORC. That decision emerged from the Commissioner's notations on the SORC's recommendation, a copy of which is extracted below:
8. The result of the August 2019 decision was that the plaintiff's security classification remained at Category B. That was communicated to the plaintiff by a letter of the SORC dated 21 August 2019.
9. On 8 September 2019, the plaintiff wrote a letter to the Commissioner noting that he satisfied the Policy for consideration for progression (he submitted that as at 16 August 2019 he surpassed the requirements of the Policy by 3 months) and sought reasons for the decision. The plaintiff sought reasons under: 1. section 62 of the Civil and Administrative Tribunal Act 2013 (NSW). That section permitted a party to proceedings in NCAT to request written reasons from NCAT for NCAT's decision. 2. section 25 of the Acts Interpretation Act 1987 (NSW). The Commissioner correctly surmised that this was most likely a reference to s 25D of that Act. That section provides clarification of what is required where Commonwealth legislation requires a person to provide written reasons for a decision. It does not impose a requirement on a decision-maker under delegated NSW legislation. 3. the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). The Commissioner again surmised, correctly, that this was most likely a reference to r 59.9 of the UCPR. That provision permits a plaintiff in proceedings for judicial review to request written reasons. It does not permit the plaintiff to require written reasons before he commenced judicial review proceedings.
10. On 18 September 2019, the SORC sent the plaintiff a letter providing clarification to the comments attributed to the Commissioner in SORC's earlier letter. The SORC explained that the comments attributed to the Commissioner in its letter of 21 August 2019 were incorrect insofar as it was indicated that the Commissioner had expressed "a combined period of demonstrated compliant behaviour" as the Commissioner's comments noted "4 ½ years to NPP - review in 6 months". It was submitted by the plaintiff that the reason attributed to the Commissioner demonstrated that the Commissioner had no regard for the recommendations by SORC. He was, it was contended, required to do so.
11. On 24 October 2019, the Acting Commissioner sent a letter to the plaintiff, referring to the plaintiff's letter dated 8 September 2019. The Acting Commissioner also referred back to SORC's 18 September 2019 letter but did not otherwise give an explanation for the reasons of the August 2019 decision.
12. On 1 October 2019, the plaintiff sent a letter to the SORC which was received on 14 October 2019, in which the plaintiff expressed his dissatisfaction with the lack of explanation. The plaintiff noted: "While progression in classification does not currently pose a significant issue, my concern is the current delay of at least nine months will continue to increase".
13. By an undated letter which was received on or about 18 November 2019, the plaintiff wrote to the Acting Commissioner ("the November letter"). The plaintiff stated: However, in my previous letter to your office on 8 September 2019 I requested sufficient reasons … Without detailed reasons of the factors that were taken into consideration it would appear you[r] decision-making on this occasion has fallen into legal error. I therefore respectfully request that you reconsider your decision within the next 28 days to avoid the necessity of seeking a judicial review in the Supreme Court. Yours Faithfully Jeffrey Mckane
14. In written submissions, the plaintiff contended that the November letter constituted a request, pursuant to cl 32 of the Regulation, that the Commissioner re-determine the August 2019 decision.
15. It was not entirely clear from the November letter whether the plaintiff was intending to request a review of the decision not to provide him with further reasons (the primary request in his earlier correspondence, to which he referred in this letter) or was intending to request a review of the August 2019 decision in relation to his security classification. In any event, the plaintiff submitted that he was not given an opportunity to address the Commissioner on "why he did not consider" the recommendations.
16. On 21 November 2019, the plaintiff commenced these proceedings seeking judicial review of the August 2019 decision.
17. On 29 January 2020, the plaintiff was interviewed by an Assessment Committee of the SORC, which again proposed a reduction to Category C1, noting good behaviour and positive case notes since the previous recommendation.
18. On 25 February 2020, the SORC recommended to the Commissioner a reduction in the plaintiff's security classification from Category B to Category C1, with much the same comments as in the 13 August 2019 recommendation.
19. On 5 March 2020, the Acting Commissioner (as the delegate of the Commissioner) made the March 2020 decision, deciding to reduce the plaintiff's security classification from Category B to Category C1.
20. In written submissions, the plaintiff contended that "it appears the Commissioner only approved the reduction in security classification so he could argue that the August 2019 decision is now spent".
21. The plaintiff also submitted: 14. In response to [41] of the defendant's submissions, it is not disputed that there was no material difference in the plaintiff's circumstances during the period of August 2019 to March 2020. The only changes in the plaintiff's circumstances were: (1) In 2019, instead of the 4½ years to NPP; by March 2020 decision, it was now four years and two months to NPP. (2) Legal proceedings had commenced. 15. The recommendation from SORC, refer to JM3, was to remain at the Junee Correctional Centre. As this recommendation did not raise any issues of bed placement or any other transfer issues that is normally associated with transfer to another prison. It can be inferred that the purpose behind the Commissioners decision for a six-month review; where an inmate has maintained good behaviour and is within the time-frame guidelines was to defeat any judicial challenge by rendering the earlier decision as spent.
22. I accept the submission of the Commissioner that that the plaintiff's contention, in this respect, has no proper basis on the evidence presently before the Court and should be rejected. The August 2019 decision included a note: "review in 6 months". The March 2020 decision was made 6½ months later.

Applicable legislation

1. Section 78A of the Act expressly provides that the conditions of custody of inmates are not required to be the same for all inmates.
2. Section 79 of the Act permits the making of regulations with respect to a wide range of matters concerning the management of inmates and correctional centres. Section 79(1)(c) permits the making of regulations concerning: "the classification of inmates into different categories and the separation of inmates by reference to the categories into which they have been classified".
3. The Act also established the SORC. By s 197(2)(a)(i), the SORC provides advice and makes recommendations to the Commissioner with respect to the security classifications of serious offenders. By s 198(1), the SORC "must consider the public interest and any other relevant matters" when exercising that function.
4. The presently applicable regulation is the Regulation. Similar provisions to those discussed below were present in the previous versions of the Regulation (cll 10-20 of the Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995 (NSW); cll 22-28A of the Crimes (Administration of Sentences) Regulation 2001 (NSW); and cll 21A-29 of the Crimes (Administration of Sentences) Regulation 2008 (NSW)).
5. In particular, cl 12 of the Regulation requires the classification of male inmates into one of the categories set out in that clause, from Category AA to Category C3. The categories relevant to these proceedings are: Category B, being the category of inmates who, in the opinion of the Commissioner, should at all times be confined by a secure physical barrier. Category C1, being the category of inmates who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of a correctional officer or some other person authorised by the Commissioner. Category C2, being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorised by the Commissioner.
6. Clause 12(2) of the Regulation provides that the Commissioner may at any time vary or revoke a classification.
7. By cl 11(2), an inmate's classification under cl 12 is to be reviewed at least once every 12 months and at the other times the Commissioner determines.
8. The Commissioner's power in cl 12(2) to vary or revoke classifications is subject to cl 17, which provides in cl 17(1)(c) that the Commissioner must not cause a serious offender to have his or her classification changed without seeking and considering the recommendations of the SORC (absent exceptional circumstances: cl 17(4)). It does not say in terms that there is an equivalent requirement for a decision not to change a serious offender's classification. In Davison v Commissioner for Corrective Services [2011] NSWSC 699 ("Davison") at [26], McCallum J considered that the requirement in cl 17(1)(c) would extend to such a decision. Whilst there is no occasion to further consider that question in this judgment, I note that the distinction drawn in cl 17(1)(c) can be reconciled on the basis that changing an inmate's security classification could potentially have adverse consequences (on the inmate, if the security classification is increased; or on the protection of the public, if the security classification is decreased), whereas refusing to change the security classification merely preserves the status quo until the next review.
9. Clause 32 of the Regulation provides: 32 Inmate may request review of placement, classification and case plan (1) An inmate may, at any time, request that the Commissioner review a determination of any of the following matters - (a) the correctional centre in which the inmate is placed, (b) the inmate's classification, (c) the contents of the inmate's case plan (in the case of a convicted inmate). Note - The Commissioner is required to review the placement and classification of an inmate at least once every 12 months. Case plans for convicted inmates must generally be prepared every 12 months. (2) However, an inmate cannot request a review of the determination of the inmate's classification or placement in a correctional centre that occurs when the inmate is first received into a correctional centre. (3) The Commissioner is required to review a determination under this clause only if - (a) the inmate can present information relevant to the determination that was not available to the inmate or provided to the Commissioner at the time the determination was made, or (b) the inmate demonstrates that he or she was denied procedural fairness at the time the determination was made. (4) The Commissioner may refuse a request to review a determination if the Commissioner considers that - (a) the request is frivolous or vexatious, or (b) in the case of an inmate requesting a review of his or her placement in a particular correctional centre, the placement is reasonable having regard to the availability of accommodation for inmates in correctional centres within the State.

Applicable policy

1. Ms McDade deposed that the Commissioner has adopted the Policy. The Policy contains the Time-Frame Guidelines for Consideration for Progression in Classification ("the Guidelines"). The Commissioner has adopted the Guidelines for purposes of exercising his powers under Pt 3, Div 1 of the Regulation, which relevantly includes decisions concerning the security classification of serious offenders.
2. Ms McDade has annexed to her affidavit the current version of the relevant section of the Policy (commencing on 25 October 2019) as Annexure C; and the previous version applicable at the time of the August 2019 decision as Annexure D. Nothing turns on the different versions because the Guidelines have remained substantially unchanged throughout each version of the Policy.
3. Taking the version in the current policy, under the heading "Commissioner's Time−Frame Guidelines for Consideration for Progression in Classification", cl 4.6 provides the following: The Commissioner has set time-frame guidelines below to be used when considering progression in classification for serious offenders, see below Commissioner's Time-Frame Guidelines for Progression in Classification. Progression outside these guidelines may only be considered in special/exceptional circumstances. Special/exceptional circumstances must be clearly articulated. … The following guidelines are not to be used for non-serious offenders:
4. The Policy then includes a table setting out the guidelines not applicable to "non-serious offenders" by reference to gender and inmate classification. The relevant portion of that table is extracted below (excluding reference to "C2-C3" guidelines and female guidelines): MALE A2-B 8 years from EPRD B - C1 5 years from EPRD C1 - C2 3 years from EPRD

1. It is permissible for a decision maker to develop criteria for the exercise of a discretionary statutory power and to take account of policy in doing so: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; [1979] FCA 39. In this particular context, in Clark v Commissioner for Corrective Services [2016] NSWCA 186 ("Clark"), Basten JA emphasised at [31]: [31] … the importance for the good order of the prison in not having arbitrary arrangements, pursuant to which some prisoners may be perceived to receive preferential treatment. That is, within the custodial setting, rules of general application can properly be applied with limited scope to take account of individual circumstances.
2. The plaintiff sought to confine the authority to one concerning the giving of preferred treatment to inmates but the authority to which I have referred concerns the circumstances in which the exercise of a discretionary statutory power may properly be exercised by taking into account the general policy.

Reviewability of Security Classification Decisions

1. The Commissioner appeared to accept that, pursuant to ss 23, 65 and 69 of the Supreme Court Act 1970 (NSW), the Supreme Court has jurisdiction to review the decisions of the Commissioner in relation to the plaintiff's security classification, although pointed to authority which may cast some doubt on that question.
2. Reference was made to the following passage from Clark, in which Emmett AJA observed at [77]: [77] [Counsel as amicus curiae supporting the plaintiff] accepted that the exercise of powers that are characterised as managerial in nature, rather than punitive and judicial, are not amenable to judicial review. Thus, the exercise of powers related to prisoner classification and separation, the transfer from one part of a prison to another, transfer between prisons, conditions on visits or access to certain facilities, such as education, recreation, and supply of condoms, are examples of administrative and managerial decisions that are not amenable to review: Kelleher v Commissioner of Department of Corrective Services [1999] NSWSC 86 at [11]. However, he contended, there is an exception to that principle where decisions relating to individual prisoners are made in bad faith or for an improper purpose. He did not, on the other hand, suggest that any decision in respect of Mr Clark had been made in bad faith or for an improper purpose. [Emphasis added. Footnotes omitted.]
3. The Commissioner submitted that it was not clear from the context of that passage whether, in the second sentence (commencing with, "Thus…"): 1. his Honour was merely reciting counsel's submissions; 2. his Honour was reciting counsel's submissions in a manner that approved of those submissions; or 3. his Honour was providing his own reasons, expanding upon the submission recorded in the first sentence.
4. In Davies v R [2018] VSCA 315 at [49], the Victorian Court of Appeal (per Kaye, McLeish and T Forrest JJA) specifically cited this paragraph of Clark, suggesting that that Court viewed the second sentence of the paragraph as Emmett AJA's own reasoning.
5. The authority cited in support for the second sentence is Kelleher v Commissioner of Department of Corrective Services [1999] NSWSC 86, a 1999 decision which concerned an application for access to tattoo removal and cosmetic surgery; and did not refer to the applicable legislative basis to make decisions concerning security classification (at the time, the Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995 (NSW)).
6. In Clark, the plaintiff requested access to a computer and 11 tubs of legal files in his cell and the ability to use a large screen monitor, for the purpose of various legal proceedings: see [1]-[2] (in particular, the challenge to security classification was abandoned). Accordingly, any comments in Clark concerning prisoner classification are obiter dicta.
7. In Clark, Emmett AJA did not refer to Davison, in which McCallum J set aside a decision by the Commissioner not to reduce an inmate's security classification from C1 to C2. While her Honour did not expressly consider the judicial power to review the decision, her Honour did set out at [7]-[12] the Commissioner's statutory basis for making decisions concerning security classification under the Act and the previous version of the Regulation.
8. It is sufficient, given the limited submissions of the parties, to observe that it is consistent with principle that the Court should exercise constraint in reviewing managerial decisions made within a prison: see Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82; Davison; Hamzy v Commissioner of Corrective Services and the State of NSW [2020] NSWSC 414 at [75]-[76]. As stated in Clark at [84]-[85] (per Emmett AJA): [84] … Ultimately, the ambit of the legitimate discretion of prison authorities is a matter of statutory construction. However, such legislation should ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the courts. [85] Statutes governing discipline and control of prisoners in gaol should not be construed as if they were intended to confer fixed legal rights upon prisoners. That is not to say that judicial review is unavailable, rather that the relevant legislation is indicative of parliament's intention that those responsible for the maintenance of prison administration and management should be given a broad discretion commensurate with the nature of the task and the balancing of potentially conflicting considerations. Thus, the Court has the power to grant public law remedies if it can be established that the relevant body conferred with power or functions exceeded authority, failed to perform some duty imposed by law or threatens to do so. However, those remedies are not a means of reviewing the merits of administrative action. [Footnotes omitted.] (See also the judgment of Basten JA at [5]-[11]).
9. Finally, it is relevant to note that, in relation to the remedy ultimately sought by the plaintiff, there is no doubt that relief is discretionary, even if the error is jurisdictional: Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52 at [41]. In particular, as to the remaining relief sought such a discretion exists, in relation to an injunction in the field of public law, see example, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [23] and [58] and Smethurst v Commissioner of Police [2020] HCA 14 ("Smethurst") at [96], [98], [132], [191] and [272].

INJUNCTIONS

1. The plaintiff's submissions as to the remaining part of the relief he sought relate to some earlier points of his submissions based upon other forms of relief, namely, certiorari and mandamus. Those contentions were to the effect that, first, the Commissioner had not taken into account the SORC recommendations and, secondly, that he had improperly ignored such recommendations.
2. As to the first such contention, it was submitted: 17. The facts in this are closely related to the facts in Jonathon Davison v Commissioner for Corrective Services [2011] NSWSC 699, (Davison). Davison sought to have the commissioner's decision set aside for refusing to reduce the serious offender classification from C1 to C2 and he sought a review of SORC recommendation to the New South Wales State Parole Authority. 18. McCallum J held at [27] that a court should be mindful of the constraints in exercising a review of managerial decisions made within a prison: see Modica v Commissioner for Corrective Services (1994) 77 R Crim 82. His honour accepted that the court should not interfere with the decision unless convinced that the recommendation of SORC was not considered or unless the decision was made in bad faith. 19. As noted in Davison, the Commissioner is not bound to accept the recommendation of SORC, but it is mandatory that when the Commissioner is deciding to change a serious offender's classification that he have regard to SORC's recommendation. 20. In this current case, there is no indication that the Acting Commissioner gave any regard to SORC's recommendation. That's because the terms of the Acting Commissioners decision, "4½ years to NPP" reveals nothing of the reason that moved the Acting Commissioner not to accept the recommendation of SORC. 21. As the Acting Commissioner's decision is not based on any condition, such as to complete a program, or demonstrate a further six months of good or compliant behaviour or any other condition; there is no indication that he had any regard to SORC's recommendation, other than his decision was made in bad faith or for an improper purpose. 22. It was further articulated in Davison at [38] that: Inmates assessed as being at a low risk of re-offending generally progress in classification unless gaol behaviour or other factors such as intelligence, time left to serve, association or protection matters indicate an unsuitability for a minimum security environment. 23. None of these above factors formed any basis in the formation of the August 2019 decision. The plaintiff is assessed as a low risk of re-offending, refer to McDade affidavit, page 33. As the time left to serve was within the guidelines; and there was no association or protection issues, it can be inferred that the Acting Commissioner decision was reckless and made in bad faith.
3. As to the latter submission, the plaintiff submitted: 26. When considering the overall scope of reduction in security classification since incarceration, the decision-maker has a propensity of not taking into consideration SORC's recommendations, refer to McDade affidavit, page 28. Here the plaintiff had his reduction in security classification from A2 - B postponed by six months when the decision-maker had no regard to SORC's recommendations.
4. Returning then to the plaintiff's submissions as to injunctive relief, the following is a further extract from his written submissions: 34. In response to [88] - [90], the defendant is not correct where the submission stipulates at [88] that the applicant "cannot show that there is a strong probability, almost amounting to a moral certainty". 35. In practice, two sorts of action have been the basis for the public law use of injunctions: • Where a public authority acts beyond its power; and • where anyone acts in breach of the general law. 36. Here, the Acting Commissioner has acted beyond his power by not considering the SORC's recommendations and the denial of procedural fairness would satisfy the above conditions to warrant an injunction. 37. As stated above at [26] the Commissioner has a propensity to disregard the committee's recommendations when it comes to considering a reduction in security classification. 38. The Commissioner has demonstrated from his past decisions, above [26], his August 2019 decision and also in Davison a blatant disregard to recommendations put to him. He has also demonstrated a denial to be heard and adheres strictly to his own policy of not reviewing a decision unless legal proceedings are commenced. This behaviour demonstrates a very strong probability that the applicant will be harmed at the next eligible application for a reduction in security classification unless an injunction is granted. 39. Even though the March 2020 decision was a favourable one on this occasion, the court has the authority to grant an injunction, where the court is satisfied that the Commissioner will not discharge his duties to consider recommendations and fairness unless ordered to do otherwise.
5. In oral submissions, the plaintiff expanded upon these contentions as follows: The Commissioner acknowledges in his submission at 85, which is p 213 of the court book, that injunction is recognised as a public law remedy issued to prevent future acts in excess of power. To that I would add that in Smethurst v Commissioner of Police the court held that due to an injunction being a form of equitable remedy there are fewer requirements to be set out before a court can grant an injunction. The injunction is also sought for its versatility, as it can be granted in either an interlocutory or a perpetual capacity, and it is the latter I seek. In Smethurst the High Court confirmed the use of an injunction to retain rights of a person affected by administrative decision. It has been tainted by an abuse of power. It is clear from the statement of Gageler J at [112] that where the officer does or threatens to do something in an official capacity to infringe a common law right, there an injunction can issue in the exercise of a judicial discretion to vindicate the common law right. This is reaffirmed at paragraph [173] with "courts should provide...govern their exercise". The rule of law requires no less. As I could not have known what the Commissioner was or was not going to take into consideration and I was not provided with the opportunity to inquire as to why he did not consider the recommendation or why the remaining time on my sentence was his sole consideration, this was a denial of procedural fairness. It is my submission that an injunction should be granted to ensure the Commissioner does not infringe a common law right. In response to the defendants' statement at 86 of his submissions, the first fundamental problem is that an injunction is premature. Gordon J said at [171], this is in Smethurst's case, that "where the plaintiff might show...excess of the power". The next complaint raised by the defendant seems to be that an injunction should not be issued unless the plaintiff can show a strong probability almost amounting to that of a moral certainty that the harm will continue. However, in Smethurst at [249] Edelman J said that "it has been held...future apprehended wrong'". This would appear to be a lower threshold than as provided by the defendant in Director General Department of Trade and Investment Regional Infrastructure and Services v Lewis, so [138] [139], but even if I'm wrong the Commissioner has demonstrated that he is not willing to provide me with procedural fairness and exceeds his authority by disregarding clause 17(1)(c) of the regulations. Not only did this occur in the August 2019 decision but also in 2016, and there is a reference there at p 69 of the court book. I was eligible for reduction in security classification from 12 May 2016. The Commissioner made his determination on 28 May 2016 not to reduce my classification, and based on the time that I had remaining did not reduce the classification until 14 November 2016, which is approximately six months later. Therefore, based on past behaviour, his determination not to provide procedural fairness and to disregard the regulations demonstrates a very strong probability, almost a certainty, that the Commissioner could exceed his authority and deny fairness unless an injunction was granted preventing him doing so.
6. The reference to "Smethurst" was no doubt a reference to Smethurst v Commissioner of Police [2020] HCA 14. The passage of Smethurst referred to by the plaintiff was as follows: [112] The jurisdiction conferred by s 75(v) of the Constitution to issue a constitutional injunction against a constitutional or statutory officer of the Commonwealth can arise for exercise in two corresponding categories of matter. One is where the officer does or threatens to do something in an official capacity that is beyond constitutional or statutory authority. There an injunction can issue in the exercise of judicial discretion to vindicate the limitation on constitutional or statutory authority. The other is where the officer does or threatens to do something in an official capacity to infringe a common law right. There an injunction can issue in the exercise of judicial discretion to vindicate the common law right. The two categories are not mutually exclusive. Nor can they be taken necessarily to exhaust the jurisdiction. … [171] Prerogative or constitutional writs are sometimes inadequate as general remedies to compel the executive government and administrative bodies to operate within the limits of their powers224 . Injunction may be required. … [173] This is also consistent with the proper role of the Court in granting remedies, as explained by Gaudron J in Enfield City Corporation v Development Assessment Commission: "Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less." … [252] The central rationale for a mandatory injunction in cases where there is no anticipated or continuing unlawful action is that the interference with the liberty of the defendant by ordering the defendant to take action where inaction would be lawful is justified by the extent of the inadequacy of damages to ameliorate the consequences of the wrongdoing. However, the greater the intrusion into a defendant's liberty arising from the injunction the more that the decision to make the order must be "attended with the greatest possible caution". [Footnotes omitted.]
7. As to the reference to earlier determination regarding the classification, attention was directed to an "Inmate Profile Document" where the following entries appeared: CLASSIFICATION HISTORY DATE CLASSIFICATION 09/07/2018 B B MEDIUM 02/03/2018 B B MEDIUM 29/09/2017 B B MEDIUM 13/06/2017 B B MEDIUM 14/11/2018 B B MEDIUM 28/05/2016 A2 A2 MAX SEC. 09/03/2015 A2 A2 MAX SEC. 09/03/2014 A2 A2 MAX SEC. 04/02/2013 A2 A2 MAX SEC. 04/09/2012 A2U A2U Unsentenced A2 21/06/2011 A2U A2U Unsentenced A2

1. An injunction is a recognised public law remedy, issued to prevent future acts in excess of power: Smethurst at [176].
2. There appears to be two fundamental problems with the injunctions sought by the plaintiff: first, that they are premature; and second, that they are not sufficiently clear and precise.
3. Dealing with the first issue, Sackville AJA held in Director-General, Department of Trade & Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436 at [137]-[141], especially [138]-[139], observed: [137] As McColl JA points out, little attention was paid on the appeal to the principles that determine whether a plaintiff should be granted a permanent injunction to restrain the making of an administrative decision, in circumstances where it is alleged that the decision-maker has not complied or will not comply with the requirements of procedural fairness. Nor was this issue debated before the primary Judge. In consequence, this Court has not had the benefit of detailed submissions on the point. [138] There is little doubt that in an appropriate case a court will grant injunctive relief to a plaintiff who fears that an adverse decision will be made in breach of the requirements of procedural fairness. But the authorities also suggest that it is not enough for the plaintiff to show that there is a risk, even a significant risk, that the decision-maker will not accord procedural fairness. [139] In Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCAFC 88; 195 FCR 318, one issue was whether the applicant Corporation was entitled to restrain the Registrar from making a determination in circumstances where it was alleged that the Registrar had not followed the statutory procedures. The Full Federal Court stated (at [39]) that: "[a]n injunction will be granted to a party 'quia timet', ie because it fears that it will wrongfully be harmed by the actions of another, only where there is 'a strong probability, almost amounting to a moral certainty' that that party will be wrongfully harmed." [140] In R v Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100, four members of the High Court said (at 117-118) that a writ or prohibition would not issue to restrain the holding of an inquiry into an employer's registration: "unless and until it appears ... that there can be no basis for the exercise of the power conferred by [the statute] or that an erroneous test of the liability of the employer to the cancellation of his registration will be applied or that some abuse of authority is likely." (Emphasis added.) This language is consistent with the approach subsequently taken in Dunghutti. [141] The observations of Gaudron J in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601, are also consistent with Dunghutti. Gaudron J contemplated that injunctive relief could be granted pursuant to s 75(v) of the Constitution without the plaintiff necessarily demonstrating jurisdictional error by the decision-maker. However, the hypothetical situation to which her Honour was directing attention was not a threatened failure to accord procedural fairness. Rather it was a breach of a statutory provision, expressed in mandatory language, requiring the Secretary of the Department provide relevant documents to the Refugee Review Tribunal before the latter commenced its consideration of a review application. It would seem that such a breach would inevitably have prevented the Tribunal from performing its review functions in compliance with the legislation.
4. In this case, the plaintiff did not demonstrate that there is "a strong probability, almost amounting to a moral certainty" that he will be denied procedural fairness when the Commissioner comes to reconsider his security classification in circumstances where he will not, in any event, be eligible under the Policy for a reduction to a C2 classification at that review. The processes that will apply at his next review time are not currently known. It is not enough for the plaintiff to show even a significant risk that the Commissioner will not afford procedural fairness. In any event, the risk may on the evidence before the Court be doubted.
5. Dealing with the second issue, the difficulty with the plaintiff's proposed injunction, as expressed in the amended summons, and in his reply submissions vis-à-vis clarity and certainty, appears to have substantially (but not entirely) dissipated in the final form of the relief sought in the plaintiff's final oral submissions. In my view, the relief sought in the oral submissions is expressed in sufficiently clear terms to reject the second part of the Commissioner's submissions. The Commissioner would, by reading the proposed injunction (if expressed in more formal terms), and without more, be able to know what it is that he or she must do or refrain from doing in order to comply with its terms.

CONCLUSION

1. For the reasons set out above, the amended summons should be dismissed.
2. The Commissioner did not seek an order for his costs.

ORDER

1. The Court orders the amended summons filed 1 April 2020 be dismissed.

Amendments 12 April 2021 - Redaction of information relating to identification of complainants. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2021