By way of a summons filed on 27 February 2014, the plaintiff seeks the following orders:
1. That an order be made directing the Commissioner of Corrective Services New South Wales to do all things reasonably necessary to ensure that the plaintiff can undertaker distance education in accordance with section 57 of the Crimes (Administration of Sentences) Regulations 2008 and the Operational Procedural Manual (2001 - 2004).
2. That an order be made directing the Commissioner to do everything reasonably possible to assist the plaintiff in downloading from the university web site weekly lecture material and relevant emails.
3. That the plaintiff be given leave to purchase an all-in-one laser printer and laptop computer or that a family member can bring to the prison such items and these items to go onto the plaintiff's property card and for said items to be kept and used in his cell.
IN THE ALTERNATIVE
4. That the Commissioner ensures that the plaintiff is given reasonable weekly access to a computer and a printer at the education block at whichever prison the plaintiff is held at from time to time throughout his incarceration.
5. For my legal costs consisting of $999.00 to be paid by the defendant.
In a handwritten document, the plaintiff (who is self-represented) sets out the grounds upon which he sought those orders:
1. On 21 September 2012, the defendant erred in denying my application to continue distance education and failed to consider all relevant material and give proper consideration to the merits of my application.
2. On 21 January 2014, the defendant erred in denying my application to purchase my own laptop. The defendant failed to consider the plaintiff's exceptional circumstances and failed to give proper consideration to the merits of my application.
3. I am also seeking judicial review of the general manager's decision made in May 2013 to deny my application to purchase my own printer. The general manager has failed to give proper consideration to my exceptional circumstances and my legal needs for a printer. The defendant supported the decision without any consideration of my special needs or proper consideration to the merits of my application.
Those grounds were elaborated upon by the plaintiff in extensive written and oral submissions.
All of those orders are resisted by the first defendant, the Commissioner of Corrective Services, on the general ground that no decision was attended by any error amenable to judicial review. That was expanded upon by extensive oral and written submissions by counsel. The second defendant, the General Manager of Goulburn Correctional Centre (GCC), entered a submitting appearance. For convenience I shall simply refer to the first defendant as "the defendant".
Background
The plaintiff is a prisoner serving a lengthy sentence of imprisonment. His non-parole period will not expire for many years. The details of the sentence and the offending underpinning it do not need to be recounted, except to say that the nature of the offending means that it is self-evidently imperative that the applicant not have access whilst in custody to the internet except under the strictest supervision.
The following chronology is derived from the portions of a document filed by the defendant with which there was no dispute by the plaintiff.
The plaintiff was bail refused on 12 May 2011, and has been in continuous custody since that time. Before then, he had been undertaking a Bachelor of Laws in the community. Whilst in custody, he continued his legal studies for a short time.
On 29 June 2011, the plaintiff wrote to the General Manager of GCC requesting permission to continue his Bachelor of Laws degree. On that same date, a decision was made by the Local Board of Management to require the plaintiff to defer his studies whilst on remand. Ms Brenda Hangilias, Senior Correctional Education Officer, met with the plaintiff and informed him of that decision.
On 30 June 2011, the plaintiff completed a form requesting reconsideration of the decision of the Local Board of Management to defer his studies.
On 7 July 2011, Senior Assistant Superintendent Camberwell made a recommendation that the plaintiff's request for reconsideration be subject to further comment. To that end, on 20 July 2011, the Acting General Manager of GCC advised that the decision of the Local Board of Management of 29 June 2011 would remain in force.
On 30 May 2012, the plaintiff wrote to the Attorney General of New South Wales requesting permission to continue his Bachelor of Laws degree. On 26 July 2012, the defendant, in response to that letter, advised the plaintiff that consideration could be given to the future of his studies once he had been sentenced and his classification and case plans had been finalised.
On 31 July 2012, the plaintiff once again wrote to the defendant requesting permission to continue his Bachelor of Laws degree. On 21 September 2012, the defendant advised the plaintiff in writing that his status as an unsentenced inmate did not allow him to continue his University degree. Accordingly, his matter would be reviewed once he had been sentenced.
On 25 January 2013, the plaintiff was sentenced to 18 years imprisonment, commencing on 12 May 2011, with a non-parole period of 13 years to expire on 11 May 2024.
On 1 March 2013, the plaintiff made an application for distance education, requesting that he be permitted to complete a Bachelor of Laws at the University of New England (UNE). On 11 April 2013, Mr Gary Connelly, Senior Administrative Officer at UNE, informed Ms Lynne Flemons, Correctional Education Officer at GCC, that the University was unable to accept enrolments by inmates in the Bachelor of Laws program due to the high level of online participation required for successful completion of the course.
On 17 April 2013, the plaintiff completed a form requesting a response to his application for distance education, and also seeking permission to purchase a laser printer.
On 16 May 2013, the application for distance education made by the plaintiff was refused by Ms Hangilias. Ms Hangilias and Ms Flemons met with the plaintiff on that day and explained the decision. Ms Hangilias briefly documented her reasons for refusal on 22 May 2013, and more fully on 5 June 2013. I shall refer to the decision of 16 May 2013 to refuse the plaintiff permission to engage in distance education as "the education decision".
On 25 May 2013, the plaintiff wrote to the defendant seeking approval to continue his distance education or enrol in another University.
On 8 June 2013, the General Manager of GCC, Mr Bolger, decided that the request of the plaintiff to purchase a printer was not approved. I shall refer to the decision to refuse the plaintiff permission to possess a printer as "the printer decision".
On 17 June 2013, the defendant informed the plaintiff in writing of the reasons why his application for distance education had not been approved. On 26 June 2013, the plaintiff once again wrote to the defendant requesting that his application for distance education be reconsidered.
On 17 July 2013, Mr Connelly advised the plaintiff in writing of the requirements of UNE with regard to student access to a computer and the Internet.
On 30 July 2013, the plaintiff once again wrote to the Attorney General of New South Wales requesting that his application for distance education be approved.
On 7 August 2013, the defendant informed the plaintiff in writing of the reasons why his application for distance education had been refused.
On 1 December 2013, the plaintiff wrote to the defendant seeking permission to purchase a laptop. On 21 January 2014, the defendant informed the plaintiff in writing that his request had been refused. I shall refer to the decision to refuse the plaintiff permission to possess a laptop computer as "the laptop decision".
The conduct of the hearing
At the hearing before me, many affidavits with very extensive exhibits to them were read. Ms Flemons and Ms Hangilias were cross-examined by the plaintiff on their affidavits. The plaintiff was also cross-examined, but merely so that by the end of the hearing counsel for the defendant had complied with the well-known rule in Browne v Dunn (1893) 6 R 67.
Two preliminary matters
As a threshold matter, the first defendant submitted that, pursuant to r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW), time for an application for judicial review of the first decision (the education decision) and the second decision (the printer decision) had expired when the applicant first commenced these proceedings. The first defendant also submitted that I may be disinclined to extend time pursuant to the same rules, on the basis that the substantive application was devoid of merit.
But the fact is that full argument was heard on the matter. As well as that, I think that the plaintiff should have his litigation determined on the substantive questions, rather than upon the mere effluxion of time, especially in light of his incarceration and the fact that he is self-represented.
In the circumstances, I propose to extend time to permit the application for judicial review of the first decision and the second decision to be litigated fully.
Separately, it was accepted by the defendant that the Felons (Civil Proceedings) Act 1981 (NSW) should not stand in the way of the application.
Submissions of the plaintiff
The distance education decision
By the end of the hearing, the submissions of the plaintiff with regard to the distance education decision had been refined as follows.
First, the Adult Education and Vocational Training Institute (AEVTI) policy had not been the subject of compliance, thereby giving rise to an error of law.
Secondly, the refusal to approve the education was founded on the inability of the plaintiff to engage in online participation in the course. But that could have been facilitated by prison staff. To an extent, that was refused on the basis of the allocation of resources, including as between prisoners (such as the plaintiff) who are well educated and highly literate, and other prisoners who are not. But considerations of available resources were irrelevant to the decision in the sense understood by administrative law. To the extent that they were taken into account, that demonstrated legal error.
Thirdly, the requirements of the University that would have provided the distance education were misconstrued by the decision maker. In any event, alternative arrangements could and should have been made by the prison authorities.
Fourthly, the fact that the plaintiff had already undertaken some legal studies whilst in the community and in custody was not taken into account, or not sufficiently taken into account.
Fifthly, regard was not had to the time, effort and money that the plaintiff had already expended in his legal studies, which would be markedly interrupted if distance education were not made available to him.
Sixthly, the decision maker, Ms Hangilias, was biased, because she had previously been the subject of a complaint by the plaintiff some years before. At the least, in the alternative, apprehended bias arose in those circumstances.
Seventhly, written communications - to the effect that the plaintiff would be denied distance education whilst on remand and thereafter the position would be reviewed - gave rise to a legitimate expectation on his part that, once sentenced, he would be approved for distance education.
Eighthly, there had been bad faith, manifested by deliberate obstruction of the efforts of the plaintiff to obtain an education, demonstrated by the defendant and his employees.
Ninthly, the plaintiff had been denied procedural fairness, in that he was not given an appropriate opportunity to argue in favour of distance education being approved.
Tenthly, the decision to deny the plaintiff distance education was wholly unreasonable.
The printer decision
As for the printer decision, the submissions of the plaintiff were as follows.
First, the plaintiff is involved in a number of pieces of litigation. He has a genuine need to have access to a printer. Unless he is permitted to purchase one, participation in that litigation will be logistically very difficult.
To the extent that there is a policy of prisoners having to pay to have documents printed, that will be unduly onerous upon the plaintiff, in light of the large number of documents that he needs.
In short, the decision maker failed to consider those relevant facts, and failed to give "genuine and realistic consideration" to the question of the printer.
Secondly, the plaintiff was not given a sufficient right to be heard about the question of the printer.
Thirdly, the plaintiff had a legitimate expectation that he would be permitted to purchase a printer.
Fourthly and finally, the prohibition on purchase of a printer was wholly unreasonable.
The laptop decision
As for the laptop decision, the plaintiff made the following submissions.
First, the laptop decision was erroneous, in that it was based upon an inflexible policy.
Secondly, the decision maker did not consider the relevant circumstances, but merely "slavishly" followed the policy.
Thirdly, the decision maker did not give "proper, genuine and realistic considerations" to the question of the purchase of the laptop.
Fourthly, again, procedural fairness was denied.
Fifthly, the plaintiff had a legitimate expectation that he would be permitted to purchase a laptop. That was founded upon the fact that other prisoners, in circumstances somewhat similar to those of the plaintiff, had been permitted to do so.
Determination
I consider that none of the decisions under consideration should be the subject of any intervention this Court. That is so for the following reasons.
First, I have borne firmly in mind that I am not to engage in a "merits review" of the decisions. Whether I may or would have come to a different decision is not to the point. Rather, it is incumbent upon the plaintiff to establish that one or more of the decisions was not made according to law.
Secondly, I think there is force in the submission of the defendant (bearing in mind that I did not have the benefit of hearing from a contradictor experienced in administrative law) that, as a matter of statutory interpretation of the Crimes (Administration of Sentences) Act 1999 (NSW) (the Act), these decisions made in the course of the administration of a prison should, unless unusual circumstances are demonstrated, only be the subject of review if the plaintiff can establish bad faith or improper purpose on the part of the decision maker, or "Wednesbury unreasonableness" in the decision itself: see McEvoy v Lobban [1990] 2 Qd R 235, 241 (Thomas J, with whom Macrossan CJ and Lee J agreed).
Thirdly, the authorities have repeatedly emphasised that, again as a matter of statutory interpretation, a judicial officer should be slow to interfere with administrative decisions taken by those tasked with running prisons: see Flynn v The King (1949) 79 CLR 1, 8 (Dixon J, as his Honour then was); Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [7] (McInerney J).
Fourthly, I do not consider that there was any substantial departure from the AEVTI policy. To the extent that the officers of the defendant did not undertake assessments of his abilities that were manifestly unnecessary because of the obvious intelligence and level of education of the plaintiff, there was nothing unlawful about that. And in any event, more fundamentally, even if there had been a substantive departure from the AEVTI policy, it did not have the force of statute law or delegated legislation. I accept the submission of counsel for the defendant that the policy was in the nature of guidelines, not some rigorous regime that had the force of law. Failing to comply with it to the letter would not have meant that any of the impugned decisions were unlawful.
Fifthly, I am not satisfied that there has been any bad faith, or bias (actual or apprehended), or improper purpose on the part of Ms Flemons or Ms Hangilias. To the contrary, I assessed them during their cross-examination by the plaintiff as being thoroughly reasonable in their approach to the issues, and as having no animus at all against the plaintiff. Far from establishing bad faith or any other state of mind supportive of the application, the process of cross-examination persuaded me that the two witnesses have acted in good faith and without bias in their dealings with the plaintiff.
To the extent that his sworn evidence contradicts theirs, I do not consider that the plaintiff has established that his should be accepted and theirs rejected. But nothing turns on that factual finding in any event.
Nor has the plaintiff placed before me any evidence that establishes that any other person involved in the impugned decisions has acted other than in good faith.
Sixthly, there is nothing inherently unreasonable in any of the decisions made. In each case, I consider that the decision was a soundly justifiable one. Although minds may legitimately differ about the outcome, that is not, of course, the relevant enquiry. The decisions do not approach the very high level of unreasonableness that needs to be demonstrated in order for "Wednesbury unreasonableness" to be made out.
Seventhly, the submissions of the plaintiff about "reasonable expectation" were misconceived. It may well be that he interpreted the note with regard to the fact that he would be denied distance education whilst on remand as implying that, once sentenced, he would not be denied distance education. It also may well be that he generally believed that, because he had already commenced his legal studies and was permitted to continue them for a time once in custody, he would be permitted to finish them in prison. And it may well be that, because other prisoners were granted certain privileges, he expected that he would be as well. But none of that is what the law means by the concept of reasonable expectation. That concept is not a matter of reasonable expectation of a certain outcome; rather, it is a matter of a reasonable expectation of a right to be heard. For reasons that I will now discuss, the plaintiff was heard sufficiently with regard to these decisions.
Eighthly, I do not accept that the plaintiff was entitled to be heard against the decisions above and beyond the opportunity that was afforded to him. That is because I do not construe the Act as providing for a greater level of procedural fairness than the plaintiff received. It is noteworthy that the Act does indeed provide a structure for hearings with regard to offences against prison discipline at Pt 2 Div 6. The fact that it does not provide a structure for formal hearings with regard to decisions about educational facilities supports my conclusion. So does the fact that what is under consideration are three decisions that are part of the running of a maximum security prison. In that setting, there will inevitably be countless decisions taken every day by the authorities that curtail the liberties of prisoners, and with which they will be unsatisfied or unhappy.
Ninthly, whether or not decisions have been made with regard to facilities available to other prisoners in broadly similar circumstances and with whom the plaintiff has been in contact is not to the point. That is because each case, and each decision with regard to each case, must turn on its own particular facts.
Tenthly, the employees of the defendant were soundly within their rights to take into account questions of resources in making the three impugned decisions. Indeed, cl 57(3) of the Crimes (Administration of Sentences) Regulation 2008 (NSW) was to that effect. It was as follows: "In the exercise of a function under this clause [that is, in providing services and programs to inmates, including educational programs] the Commissioner must give special attention to the needs of inmates who have low literacy and numeracy". I reject the proposition that the issue of the limited resources that are available to those providing education to prisoners generally is an irrelevant consideration when deciding the facilities to be afforded to prisoners individually.
Eleventhly, I do not consider that the plaintiff has established that any decision maker, with regard to any decision, has taken into account an irrelevant consideration, or failed to take into account a relevant consideration, in the sense that those concepts are understood by way of the principles in such cases as Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; 162 CLR 24.
Twelfthly and finally, I do not consider that the passing reference to a Corrective Services New South Wales policy in the letter from the defendant setting out the reasons for the laptop decision demonstrates an error of law.
In short, the plaintiff has not established that any of the decisions was unlawful on any basis. The summons must be dismissed with regard to each of the three decisions.
Costs
Turning to the question of costs, the usual rule is, of course, that they should follow the event. But the plaintiff will be incarcerated for many years into the future. During those years he will have minimal income. I also infer that he has limited, if any, assets. All of those factors argue powerfully against an order for costs being made against the unsuccessful litigant in this case. But there are a number of countervailing factors.
First, counsel for the defendant made it clear in his written submissions that, if the proceedings were maintained by the plaintiff and the defendant were to succeed in resisting the orders sought, the defendant would seek costs.
Secondly, at the beginning of the hearing, I explicitly enquired of the plaintiff whether he appreciated that costs could be ordered against him if he failed, and whether he had considered whether it would be better for him to be represented by a lawyer in this Court. He was determined to proceed.
Thirdly, the hearing took a whole day, and required the defendant to collate and tender a very large amount of documentary material. Counsel was briefed on the part of the defendant.
Fourthly, two witnesses employed by the defendant were required to attend court for cross-examination, no doubt with the result that their services were unavailable to assist other prisoners on that day.
Fifthly, the application was devoid of merit.
Sixthly, I consider that there should be some adverse consequence if a person in the position of the plaintiff presses such an application in the circumstances that I have outlined.
In all the circumstances, I consider that the defendant should have costs from the plaintiff.
Orders
I make the following orders:
1. The plaintiff is granted an extension of time to the extent necessary to permit him to argue his summons fully.
2. The summons of 27 February 2014 is dismissed.
3. The plaintiff must pay the costs of the first defendant of these proceedings.
[3]
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Decision last updated: 17 June 2015
Parties
Applicant/Plaintiff:
McKane
Respondent/Defendant:
Commissioner of Corrective Services of New South Wales
Legislation Cited (4)
Crimes (Administration of Sentences) Regulation 2008(NSW)