Plaintiff/Applicant v Defendant/Respondent

**1 Mr Julian Knight is serving a sentence of life imprisonment with a minimum non-parole period of 27 years for multiple murders committed by him in a notorious massacre in the vicinity of Hoddle Street, Clifton Hill in 1987. Mr Knight's minimum non-parole period expired on 8 May 2014. However, he remains in prison.

2 During his imprisonment, Mr Knight has commenced or sought to commence numerous legal proceedings and has made numerous official complaints, mainly about the conditions of his imprisonment. On 19 October 2004 Smith J made an order under s 21(2) of the Supreme Court Act 1986 (as it then stood) declaring Mr Knight a vexatious litigant. The order further provided that, for a period of ten years from the date of the order, Mr Knight was not to commence any legal proceedings in this Court or any other court or tribunal without the leave of this Court.[1] Mr Knight has since made many applications for leave to commence legal proceedings pursuant to the order of Smith J. Two such applications are before the Court now. They are related. In short, Mr Knight seeks leave to bring claims by way of judicial review in relation to his sentence plan in prison and in relation to a refusal to transfer him from an ordinary prison to a transitional centre. A common theme of the two applications is Mr Knight's desire to be released on parole. The proposed defendant in each proposed proceeding is Mr Brendan Money, a senior official of Corrections Victoria. Mr Money was served with both applications for leave and he appeared by counsel to oppose the grant of leave in each case.

3 Since the present applications were argued in August and September 2013, certain events have occurred - being a series of legislative changes (including changes relating to parole), the expiry of Mr Knight's minimum non-parole period and the making of certain decisions in other cases in this Court relating to Mr Knight - all of which might be thought to bear on the present applications. However, neither party has made any approach to the Court in relation to any of these events. I have on several occasions considered whether I should of my own motion re-list the hearing and invite submissions on them, having regard particularly to the fact that Mr Knight was not legally represented. In the end, however, I was satisfied that justice did not require any further hearings. For the reasons I will set out in due course, I was of the view that, as matters had stood originally, Mr Knight's two applications fell to be dismissed. Justice could only have required a further hearing if one or more of the intervening events might conceivably have required a different result. However, subject to one qualification, each of the intervening events could only have made Mr Knight's position, if anything, even worse. The qualification was that it might possibly have been suggested by or on behalf of Mr Knight that the legislative changes relating to parole (which occurred between November 2013 and July 2014) supported the view that, when the decisions in question were being made (in December 2012 and March 2013), he had a prospective right, or a legitimate expectation, to be granted parole on or shortly after his earliest eligibility date, namely 8 May 2014. However, as I will further explain in due course, I was satisfied that any such suggestion would necessarily have failed and that the submission in question would have remained completely unacceptable. So, I remain of the view that both of Mr Knight's applications for leave to proceed must be dismissed. I hold that view even without taking into account adversely to Mr Knight any of the intervening events. Nevertheless, I should at this stage list the intervening events.**

4 Chronologically speaking, the intervening events began soon after the last of the parties' written submissions was received on 27 September 2013, and they continued from time to time up until 20 February 2015, as follows:

Commencement of Corrections Act 1986 s 73A headed "Safety and protection of the community paramount in parole decisions".

Commencement of Corrections Act 1986 s 74AA headed "Conditions for making a parole order for Julian Knight".

Expiry of minimum non-parole period for Julian Knight.

Commencement of Corrections Act 1986 s 74AAB, headed "Release on parole of person in prison for sexual offence or serious violent offence".

Order of T Forrest J varying the order made by Smith J on 19 October 2014 so as to extend the ten year period during which Mr Knight could not bring a legal proceeding without leave of the Supreme Court.

Commencement of Vexatious Proceedings Act 2014 and repeal of s 21 of the Supreme Court Act 1986.

Judgment of Ginnane J in Knight v Shuard,[2] especially [6]-[12], [63] and [64] insofar as they relate to the order of T Forrest J of 16 October 2014 and to the introduction of the Vexatious Proceedings Act 2014.

**5 The amendments of the Corrections Act 1986 on 6 November 2013, 2 April 2014 and 1 July 2014 relating to parole, and the expiry on 8 May 2014 of the minimum non-parole period for Mr Knight, are matters to which I will return in connection with the substantive aspects of Mr Knight's proposed proceedings.

6 In the meantime it is desirable, first, to deal with the extension, by the order of T Forrest J of 16 October 2014, of the period of the leave requirement; and then, in the context of the test for leave, to deal with the commencement on 31 October 2014 of the Vexatious Proceedings Act 2014 and the concomitant repeal of s 21 of the Supreme Court Act 1986. In dealing with those matters I will refer also to the above mentioned judgment of Ginnane J in Knight v Shuard.[3]**

**7 As mentioned above, the restriction on the bringing of legal proceedings by Mr Knight contained in the order of Smith J of 19 October 2004 was expressed to extend for a period of ten years from the date of that order. In other words, the restriction was due to expire on 18 October 2014. However, it seems that the restriction did not in fact come to an end on that day. About six weeks earlier, on 5 September 2014 (as appears from the published reasons of T Forrest J in Attorney-General v Knight[4] and from the order made by his Honour on 16 October 2014 in that matter) the Attorney-General for the State of Victoria had filed a summons for a further order declaring Mr Knight to be a vexatious litigant pursuant to s 21(2) of the Supreme Court Act 1986 (as it then stood) or alternatively for the removal of the ten year limit on the period of the restriction imposed by the order of Smith J of 19 October 2004. T Forrest J was satisfied that, in one form or another, the restriction should be continued until the final determination of the Attorney's application brought by the summons filed on 5 September 2014, or until earlier order. In considering the form in which the interlocutory order should be made, T Forrest J took into account that the Vexatious Proceedings Act 2014 was due to come into operation on 31 October 2014, whereby s 21 of the Supreme Court Act 1986 would be repealed. His Honour took the view that the transition between the regimes would be simpler if there was, at the time of the repeal, an extant order under s 21(2) of the Supreme Court Act 1986. In those circumstances, his Honour decided to order, under s 21(5) of the Supreme Court Act 1986, that the restriction imposed by Smith J be varied by being extended until the hearing and determination of the Attorney's application or earlier order.[5]

8 As indicated above, neither party sought to approach the Court for the purposes of this case in relation to the expiry of the original ten year term or in relation to the order of T Forrest J apparently extending that term. Mr Knight did not seek to withdraw the present applications on the basis that he no longer needed leave to commence the proposed proceedings. Nor did Mr Money contact the Court to suggest that Mr Knight no longer needed leave. The Attorney's application that was before T Forrest J remains pending (elsewhere in the Court) and no further variations of the restriction order made by Smith J have yet occurred. Hence it is appropriate for me to assume that the restriction imposed by Smith J has been duly extended and that Mr Knight's two applications for leave still need to be determined. I note that, in Knight v Shuard,[6] Ginnane J proceeded on a corresponding basis.

9 As T Forrest J anticipated, and as appears from the above list of intervening events, the Vexatious Proceedings Act 2014 duly came into operation on 31 October 2014. The principal question that arises from the introduction of that Act is whether the test for leave to proceed applicable to the present applications has been altered. I turn to that and related matters now.**

The test for leave to proceed and the commencement of the Vexatious Proceedings Act 2014

10 When the present applications for leave to proceed were made and argued, they were governed by s 21(4) of the Supreme Court Act 1986 and by the principles relating to that provision stated by the Court of Appeal in Phillip Morris Ltd v Attorney-General (Vic),[7] as both parties accepted. By virtue of s 21(4), leave was not to be given unless the Court was satisfied that the proposed proceedings were not or would not be an abuse of the process of the Court. As Bell J pointed out in Knight v Anderson,[8] the Phillip Morris case decided that s 21(4) operated to confer a discretion to grant leave which was enlivened after the relevant court became satisfied that the proceeding would not be an abuse of process. The onus was on the applicant to so satisfy the court. One form of abuse of process is the bringing of a claim that is foredoomed to fail. As Bell J helpfully continued:[9]

In considering whether a proceeding would be an abuse of process, it is sometimes relevant to consider its prospects of success, but in a strictly limited respect. The issue is whether the proceeding is foredoomed to fail, not whether it has reasonable grounds.[10]

Contrary to the submissions of the Commissioner for Corrections, if the court decides a proceeding would not be an abuse of process because it would not be foredoomed to fail, it cannot treat an absence of reasonable grounds as a discretionary reason to refuse leave. Abuse of process, not absence of reasonable grounds, is the foundation of the statutory discretion, and the latter cannot be brought in through the back door. To admit it at the discretionary stage would be inconsistent with the terms of the power conferred by s 21(4) and contrary to the decision in Phillip Morris as I read it.[11]

**11 The whole of s 21 of the Supreme Court Act 1986 was repealed from 31 October 2014 by s 102 of the Vexatious Proceedings Act 2014. The 2014 Act introduced an elaborate new scheme relating to vexatious litigants and vexatious litigation. The new Act provides[12] that an order made under the former s 21(2) of the Supreme Court Act 1986 declaring a person to be a vexatious litigant is now taken to be a 'general litigation restraint order' made under the new Act. Section 54 of the new Act provides that a person who is subject to a general litigation restraint order may apply for leave to commence or continue a proceeding and that the application must be made to the Victorian court or tribunal that would hear the proceeding to which the application relates. Section 55 provides that, on an application under s 54, the relevant court may grant leave to proceed if the Court is satisfied that the proceeding is not a "vexatious proceeding" (as defined) and that there are "reasonable grounds for the proceeding". The definition of "vexatious proceeding" is inclusive and it extends to, among other things, "a proceeding that is an abuse of a court or tribunal".

12 Plainly the new test is more difficult for a leave applicant to meet than the old test. Not only must the Court be satisfied that the proposed proceeding would not be an abuse of process, it must also be satisfied that the proposed proceeding would not otherwise be a "vexatious proceeding" (as defined) and, moreover, that there are "reasonable grounds for the proceeding". The onus remains with the applicant; and a residual discretion to refuse leave also remains.

13 The question whether the old test or the new test applies in a pending leave application arose in Knight v Shuard.[13] There, the defendant had submitted that the earlier test could no longer apply because the vexatious litigant order of Smith J had become a "general litigation restraint order" by virtue of "the transitional provisions".[14] The reference to the transitional provisions was apparently a reference to one particular transitional section of the 2014 Act, namely s 91, which does indeed provide that an order declaring a person to be a vexatious litigant made under s 21(2) of the Supreme Court Act 1986 as in force immediately before the repeal of s 21 of that Act is taken on and from that repeal to be a general litigation restraint order made by the Supreme Court under s 29 of the 2014 Act. Section 91 further provides, in effect, that the deemed terms of the deemed general litigation restraint order are the same as the terms of the actual order made under s 21(2) of the Supreme Court Act 1986. Going back to the substantive provisions of the 2014 Act, s 32 provides that on the making of a general litigation restraint order, subject to the terms of the order, a proceeding "to which the order relates" is stayed and a proceeding "that is commenced in contravention of the order" is of no effect. How, if at all, these provisions affect a leave application that was pending on 31 October 2014 is not easy to discern. The pending leave application itself is surely not a proceeding "to which the [deemed] order relates" within the meaning of s 32. Hence the pending leave application itself is surely not "stayed" by force of s 32. Nor, surely, could it be said that the pending leave application itself amounts to a proceeding "that is commenced in contravention of the [deemed] order" within the meaning of s 32. The remaining issue, then, is whether a substantive proceeding for the commencement of which leave was sought in the pending leave application would, if commenced without a fresh application for leave under the 2014 Act and a fresh grant of leave pursuant to such an application, be commenced "in contravention of the [deemed] order" within the meaning of s 32. Arguably, if the terms of the order prohibited the commencement of a substantive proceeding of the proposed kind only where prior leave to commence the proceeding had not been obtained, and if the pending application for leave was, as a matter of law,[15] preserved and still on foot, and if the application was actually granted, then the substantive proceeding, when in fact commenced, might not be able to be characterised as having been commenced "in contravention of the [deemed] order". However, Mr Knight (who was not legally represented) made no such submission to Ginnane J nor any other submission to the contrary of the defendant's (Mr Shuard's) submission and his Honour accepted the defendant's submission.[16] His Honour did not otherwise refer to the transitional provisions of the 2014 Act, nor to the general transitional provisions contained in the Interpretation of Legislation Act 1984.[17] Strictly speaking, his Honour did not need to consider those matters because, ultimately, his Honour ruled that the same result would have been arrived at under the old test.[18]

14 By contrast, as indicated above, neither party has sought to raise with me the question whether the new test should be applied in the present matters instead of the old test. The transitional provisions of the 2014 Act are quite detailed. They are contained in Part 12 of the Act, comprising ss 90-101. But nothing in Part 12 or in any other part of the 2014 Act deals explicitly with the case of an application for leave to proceed which was pending as at the date (31 October 2014) of the repeal of s 21 of the Supreme Court Act 1986.[19] Section 55 of the 2014 Act (which, as mentioned above, authorises courts to grant leave to proceed in defined circumstances) relates only to applications for leave made under s 54. No provision expressly deems an application for leave made under the terms of an order made under the old legislation to be an application for leave made under s 54 of the new legislation. Nor have any regulations dealing with transitional matters been made under the specific power conferred by s 100 of the 2014 Act to make such regulations. On the other hand, s 90 of the 2014 Act expressly provides that, except where the contrary intention appears, Part 12 does not affect or take away from the Interpretation of Legislation Act 1984. So far as may be presently relevant, s 14(2) of the Interpretation of Legislation Act 1984 provides:**

the repeal ... shall not, unless the contrary intention expressly appears

...

(d) affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision;

(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;

...

(g) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation ... [or] liability ... as is mentioned in [para (e)] -

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced ... as if that Act or provision had not been repealed ... .

**Arguably, s 14(2) preserves Mr Knight's pending leave application and requires the Court to hear and determine it as though s 21 of the Supreme Court Act 1986 had not been repealed.[20]

15 Further, Div 4 of Part 8 of the 2014 Act contains elaborate new procedural requirements for applications for leave to proceed.[21] It would be an odd thing if, even in a case where an application for leave had already been heard and judgment had been reserved (like the present case), a new application for leave had to be made; and all the more odd if such an application had to be made in accordance with all of the elaborate new procedural requirements. This may give a strong clue to Parliament's intention in relation to the transitional position generally, including the question of the applicable test.

16 In any event, in all the circumstances (including especially the absence of any approach to the Court on the point), I consider that I should assume in Mr Knight's favour, without deciding, that by virtue of s 14(2) of the Interpretation of Legislation Act 1984 Mr Knight's present applications for leave may continue, and may be determined, as though s 21 of the Supreme Court Act 1986 had not been repealed and as though sub-s (4) thereof continued to supply the applicable test, to the exclusion of the corresponding provisions contained in s 55 of the 2014 Act. Likewise, I consider that I should assume, without deciding, that the principles stated by the Court of Appeal in the Phillip Morris case, as analysed by Bell J in Knight v Anderson,[22] continue to apply to the present case.

17 I note that s 101 of the 2014 Act provides that if any difficulty arises because of the operation of that Act in relation to a proceeding to which Part 12 applies, the Court may make any order it considers appropriate to resolve the difficulty; and that such an order may be made either on the application of a party or on the Court's own motion. I have considered whether to make an order of my own motion under s 101 to the effect that the present applications may continue and be determined in accordance with the provisions of s 21(4) of the Supreme Court Act 1986 as in force immediately before the commencement of the Vexatious Proceedings Act 2014 and to the exclusion of the provisions of s 55 and of Div 4 of Part 8 of the Vexatious Proceedings Act 2014. In the end I have concluded that it would not be appropriate to make such an order in the absence of submissions from the parties. On the other hand, I am, in effect, dealing with Mr Knight's applications in the same way as I would have dealt with them under such an order.**

**18 At the hearing, the ultimate issue between the parties in each case was whether, applying the Phillip Morris principles, the proposed proceeding was not foredoomed to fail. On the abovementioned assumptions which I have made relating to the order of T Forrest J of 16 October 2014 and relating to the introduction of the Vexatious Proceedings Act 2014, that remains the ultimate issue in each case.

19 On any view, the burden of showing that a proposed proceeding is not foredoomed to fail rests with Mr Knight. Even without taking into account adversely to Mr Knight any of the abovementioned intervening events, I am not satisfied that either proceeding would not be foredoomed to fail. That is to say, I am not satisfied that either proceeding would not be an abuse of process. Accordingly, leave to proceed must be refused in both cases. For good measure, I add that, even making the same assumptions and taking the same approach, I am of the positive view that each proceeding would be foredoomed to fail and would therefore be an abuse of process.**

Judicial review of prison administration generally

20 In his written and oral submissions before me, Mr Knight cites several cases relating to applications for judicial review made by prisoners, sometimes successfully, against correctional authorities in various Australian jurisdictions.[23] These cases tend to show that, generally speaking, whatever may have been the case in the past,[24] courts in Australia regard administrative decisions made by correctional authorities which affect the individual interests of prisoners, including decisions relating to matters such as classification, security ratings and placement, as being subject to judicial review. However, this is ultimately of no assistance to Mr Knight in the present cases because his proposed challenges to the particular decisions in question would be hopeless.

**21 I turn first to the earlier of Mr Knight's two applications, namely proceeding number S CI 2013 480. It was commenced by originating motion in the Judicial Review and Appeals List. The application is for leave to bring a proceeding by way of judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2005.

22 As indicated above, the proposed defendant in this and the related application for leave is a senior official of Corrections Victoria, Mr Brendan Money. At the relevant time, Corrections Victoria was a part of the then Department of Justice. Various Departmental titles are ascribed to Mr Money in Mr Knight's extensive paperwork, but it is unnecessary to identify Mr Money's correct title. For the purposes of the present application, no issue is taken as to the appropriate proposed defendant. However, amendments would be required if leave were to be granted, because the proposed proceeding, if properly framed, would consist, or consist mainly, of an attack on what was allegedly done or omitted to be done by a multi-member body, namely a "sentence management panel" appointed under reg 23 of the Corrections Regulations 2009 by the Secretary to the Department of Justice. Mr Money was but one member, albeit the chair, of the relevant sentence management panel. Mr Knight has not pointed to anything that would indicate that Mr Money had any individual decision-making role, whether as a Departmental officer or as a delegate of the Secretary or otherwise, in connection with the matters complained of by Mr Knight in his "sentence plan" application.

23 The proposed substantive claim is set out in paragraph 2 of the originating motion, as follows:**

The plaintiff seeks from the Court an order in the nature of mandamus requiring the defendant, pursuant to section 47(1)(l) of the Corrections Act 1986 (Vic), & regulations 22-23 & 25-26 of the Corrections Regulations 2009 (Vic) to formulate a Sentence Plan for the plaintiff, on the grounds that:

(a) The defendant failed to formulate a Sentence Plan at the Annual Review of the plaintiff's classification & placement on 6 December 2012, or

(b) In the alternative, the defendant failed to take into account relevant considerations, namely the recommendations contained in psychiatric and psychological reports submitted on the plaintiff, or

(c) In the alternative, the defendant treated the plaintiff inconsistently when compared with all other prisoners serving a sentence for murder.

24 It will be noted that the proposed claim is expressed as a claim for relief in the nature of mandamus, alone. Mandamus lies only for an actual or constructive refusal or failure to exercise jurisdiction conferred by law or to perform a duty imposed by law.[25] The originating motion does not expressly include a proposed claim for relief in the nature of certiorari, whereas certiorari is the remedy usually claimed where a particular decision or action of an administrator or inferior court is sought to be attacked as contrary to law. The pleading set out above and Mr Knight's submissions indicate that his main focus is on what occurred or did not occur on a particular occasion, namely the annual review of his classification and placement on 6 December 2012.[26] The evidence shows that this review was conducted by the abovementioned sentence management panel chaired by Mr Money, and that certain decisions were made by the panel in relation to Mr Knight on that occasion. Nevertheless, Mr Money takes no point about Mr Knight's omission to include a formal claim for relief in the nature of certiorari.

**25 The first of the three proposed grounds set out in the originating motion is to the effect that there was a failure to formulate a sentence plan for Mr Knight at the 6 December 2012 meeting.

26 This requires an examination of any relevant legal duty and a comparison between that duty and what did or did not occur.

27 In 2007 Mr Knight had applied for leave to bring a similar claim. In Knight v Anderson,[27] Bell J refused to grant such leave. However, the legal framework was different then. Under the legislation then in force there was, in the opinion of Bell J, no duty on any prison authority to formulate a sentence plan for Mr Knight.[28] His Honour said:[29]**

A sentence plan is a management tool used by the authorities to ensure a prisoner is managed in a consistent and coordinated way throughout his or her sentence. It is not referred to or mandated by the Corrections Act 1986 or the Corrections Regulations 1998.

A sentence plan is a practical tool of management, not a legal necessity. It is equally clear that a positive duty to prepare such a plan cannot be read into any of the general provisions of the Corrections Act, such as those in ss 20(2) and 21(1) by which officers in charge of prisoners and the governor of a prison must take all reasonable steps, and be responsible for, the safe custody and welfare of prisoners.

In dealing with discretionary matters, his Honour observed that there had been a significant recent development, namely that Mr Knight had just been transferred from Barwon Prison to Port Phillip Prison and that he would have greater access to education and rehabilitation programs at the latter location. Further, an annual review of Mr Knight's case was due shortly, and the authorities would then determine what programs he should be offered. Bell J observed that the forthcoming review was the "appropriate forum within which the matters related to his sentence plan and access to education should be considered". Bell J made no specific observation as to whether or not the arrangements and proposals then in place for Mr Knight amounted to a sentence plan within his Honour's understanding of that (then) non-statutory concept.

28 Ever since 1986 (including, of course, at the time of Knight v Anderson) s 47 of the Corrections Act 1986 has contained a list of prisoners' rights. From the outset, one of those rights has been the right set out in s 47(1)(l), as follows:

(l) The right to be classified under a classification system established in accordance with the regulations as soon as possible after being sentenced and to have that classification reviewed annually; ... .

At the time of Knight v Anderson, there was only one regulation relating to classification, namely regulation 21 of the Corrections Regulations 1998. It did little more than authorise the Secretary to maintain sentence management panels to carry out the function of "prisoner classification". There was no elaboration in the regulations, or, for that matter, in the Act, as to the meaning or scope of "classification".[31] Moreover, as Bell J indicated, the expression "sentence plan" did not appear in the regulations, either in the context of classification or at all, or in the Act.

29 However, the "right to be classified" under s 47(1)(l) of the Corrections Act 1986 was given new content when the Corrections Regulations 2009 were made. As indicated above, Mr Knight relies, in paragraph 2 of his present originating motion, on regs 22-23 and 25-26 of the Corrections Regulations 2009 as they stood at the relevant time. Those regulations fall within Part 3 - Management and Security. That Part, in turn, includes Div 6 (Classification) and Div 7 (Placement). At the relevant time Div 6 was comprised of regs 22, 23, 24 and 25, while Div 7 was comprised of reg 26 alone. Some minor amendments to those regulations have since been made, taking effect from 1 December 2014.[32] Those very recent, minor amendments may be ignored for present purposes. It is desirable to set out the whole of Divs 6 and 7 of the Corrections Regulations 2009 as they were originally enacted:

Division 6 - Classification

22 Classification of prisoners

(a) includes decisions about a prisoner's security rating, placement and sentence plan; and

(b) may include reasons for decisions made under paragraph (a), directions as to future placement reviews and conditions applicable to the decision.

(2) Subject to this Division, a prisoner may be given one of the following security ratings -

(a) high security;

(b) maximum security;

(c) medium security;

(d) minimum security.

(1) There are to be one or more sentence management panels to carry out the functions of -

(a) prisoner classification;

(b) developing a sentence plan for each prisoner; and

(c) determining the placement of each prisoner.

(2) The Secretary may set rules for the composition of the panels as he or she thinks necessary for the proper functioning of the panels.

(3) The Secretary may appoint members to the sentence management panels and may determine the terms and conditions of placement.

(4) The panels must -

(a) meet with such frequency as is determined by the Secretary; and

(b) conduct their procedures as determined by the Secretary; and

(c) establish and maintain the records determined by the Secretary.

(a) carry out the functions of a sentence management panel referred to in subregulation (1); or

(b) vary any decision made by a sentence management panel in relation to a prisoner's classification.

24 Review and assessment committees[33]

(1) In each prison there is to be one or more review and assessment committee to carry out the functions of -

(a) overseeing the case management of prisoners; and

(b) reviewing prisoners' classification; and

(c) considering prisoners' access to programmes; and

(d) monitoring prisoners' welfare.

(2) Subject to any rules determined by the Secretary, a review and assessment committee may vary the classification of a prisoner or make recommendations to a sentence management panel regarding the classification of a prisoner.

(3) The Secretary may set rules for the composition of review and assessment committees as he or she thinks necessary for the proper function of the committees.

(4) The Secretary may appoint members to the review and assessment committees and may determine the terms and conditions of appointment.

(5) Review and assessment committees must -

(a) meet with such frequency as is determined by the Secretary; and

(b) conduct their procedures as determined by the Secretary; and

(c) establish and maintain the records determined by the Secretary.

(6) The Secretary or a sentence management panel may at any time vary the classification of a prisoner by a review and assessment committee.

25 Determination of classification

When determining or varying a prisoner's classification, a sentence management panel, a review and assessment committee, or the Secretary must consider the risk the prisoner presents to prison security, the community, himself, herself or any other person, having regard to any one or more of the following -

(a) the nature of the offence for which the prisoner has been charged or convicted;

(b) the risk of the prisoner escaping or attempting to escape, from custody;

(c) the risk of the prisoner committing a further offence and the impact the commission of the further offence is likely to have on the community;

(d) any risk the prisoner poses to prison management, security and good order;

(e) any risk the prisoner poses to the welfare of himself or herself and any other person;

(f) the length of the prisoner's sentence or, if the prisoner is awaiting trial, the maximum sentence applicable to the offences in respect of which the prisoner has been charged;

(g) any other matter considered relevant to prison management, security and good order and the safe custody and welfare of the prisoner.

Division 7 - Placement

26 Determination of placement

When determining or varying a prisoner's placement and developing a sentence plan, a sentence management panel or the Secretary may consider and assess the following factors -

(a) the prisoner's security rating and relevant risk factors, including sentence length, and risk of escape;

(b) the programmes and other processes the prisoner requires to lower the risk of committing a further offence;

(c) any risk the prisoner poses to the welfare of himself or herself or any other person;

(d) any drug and alcohol use and treatment;

(e) any prison or other relevant institution history;

(f) any medical or psychiatric condition;

(g) any physical limitations or disability;

(h) cultural background;

(i) any relevant family issues;

(j) where known, any sentencing remarks;

(k) any transitional requirements for the prisoner to re-enter the community, if appropriate;

(l) any other matter considered relevant to prison management, security and good order and the safe custody and welfare of the prisoner.

**30 In 2011, Mr Knight sought leave once again to bring a proceeding by way of judicial review alleging that no sentence plan had been formulated for him. This time, though, he was able to rely on the "right to be classified" created by the combined operation of s 47(1)(l) of the Act and Divs 6 and 7 of the Corrections Regulations 2009. On 24 June 2011 Emerton J granted leave: see Knight v Hastings.[34] Although a sentence management panel (the Major Offenders Review Panel) had considered Mr Knight's position on 29 November 2010, Emerton J observed that what was involved in a classification review and what was required in respect of the content of a sentence management plan as a result of the new regulations remained to be authoritatively determined. Her Honour did not consider that the proposed proceeding was foredoomed to fail. Nor did her Honour consider that the proceeding could be characterised as unjustifiably vexatious and oppressive on the footing that Mr Knight was seeking to litigate a case that had previously been litigated. Her Honour observed that the 2009 regulations were relatively new, and that they imposed "particular obligations in relation to the preparation of sentence management plans for prisoners".[35]

31 Mr Knight then commenced a proceeding pursuant to the leave granted by Emerton J. It was heard and determined by Williams J in 2012: see Knight v Hastings.[36]

32 The judgment of Williams J reveals many similarities between the claim which her Honour heard and determined and the proposed proceeding for which Mr Knight now seeks leave.

33 As now, the claim before Williams J was for mandamus. Mr Knight was located at Port Phillip Prison.[37] He was classified as an "A2 Maximum Security" prisoner. He was also classified as a "Major Offender" and was therefore supervised by the Major Offenders Unit within the prison system. "Major Offenders" included prisoners who were considered to be dangerous or to represent a high risk, as well as prisoners who had a high public profile.[38] Mr Knight sought from Williams J an order requiring the prison authorities to review his classification, placement and security rating and to consider him for a placement in a medium security prison and to formulate a sentence plan for him. Mr Knight claimed that the provisions of the Act and regulations referred to above imposed a positive statutory duty on the prison authorities to review his classification annually and to develop a sentence plan for him and he contended that the decision of the Major Offenders Review Panel of 29 November 2010 did not meet the relevant statutory obligations.

34 Mr Hastings (the then Commissioner of Corrections Victoria) conceded before Williams J that the combined effect of reg 23 of the 2009 regulations and s 47(1)(l) of the Act was to impose a duty on a sentence management panel to have a sentence plan for a prisoner.[39] Likewise, in the present case, Mr Money accepts that the Act and regulations together impose a duty on a sentence management panel to have a sentence plan for a prisoner, and, as part of the annual review of classification required by s 47(1)(l) of the Act, to review that plan annually.[40]

35 Before Williams J, Mr Knight cited various parts of Corrections Victoria's Sentence Management Manual (Version 024/07, dated 4 December 2007) in support of his arguments. He did the same before me. In addition, before me, Mr Knight pointed out that the Sentence Management Manual had been updated in 2012 and he claimed that he had not had full access to the 2012 version. I gave him leave to file post hearing submissions by reference to anything new and significant in the 2012 version of the Sentence Management Manual.

36 Williams J noted that the submissions made by Mr Knight in reliance on the 2007 Sentence Management Manual were detailed; and that she had considered all of them, but would only mention some.

37 Her Honour mentioned that Mr Knight had highlighted general statements of philosophy and policy to the effect that it was desirable to enable prisoners to work their way through the security levels down to the least restrictive environment possible.[41]

38 It can be safely assumed that, before Williams J, Mr Knight relied, as he did before me, on a statement said to be contained in the 2007 version of the Sentence Management Manual to the effect that sentence plans are designed to:**

• ensure that the prisoner is managed in a consistent and coordinated manner throughout the sentence;
• identify and clearly document the prisoner's needs, and broad strategies and interventions required to meet those needs;
• provide a basis for the prison location to undertake further assessment and develop a Local Management Plan for each prisoner;
• encourage the prisoner to take responsibility for the constructive use of his/her time in custody; and
• facilitate ongoing regular reviews and update of the plan and achievement toward objectives.[42]

**39 A very similar list is said to be contained in a document called the Corrections Commissioner's Correctional Management Standards for Men's Prisons in Victoria (April 2008) which, it can again be safely assumed, Mr Knight relied upon before Williams J, as he did before me. That list includes one additional point about sentence plans, namely that they are designed to "ensure that the level of services and program need is matched to level of risk (including risk of re-offending, escape, self-harm)".[43]

40 Mr Knight further argued before Williams J, as he argued before me,[44] that the required contents of a sentence plan could also be discerned, at least in part, from a particular passage in the 2007 Sentence Management Manual which Williams J set out verbatim in her Honour's judgment,[45] and which Mr Knight again quoted verbatim both in his affidavit and in his submissions in support of his application before me. The particular passage indicates that, as at 2007 at least, the sentence management process was based on a two tier system. There was a central Sentence Management Unit; and at each prison location there was a multi-disciplinary Review and Assessment Committee. It seems that regs 23 and 24 of the 2009 regulations reflect that pre-existing dichotomy.

41 However, it is another question whether those or any other circumstances make the Sentence Management Manual or the Correctional Management Standards an available source of guidance as to the meaning of the relevant regulations. Before me, Mr Knight pointed to no statutory provision, legal principle or decided authority that would justify resort to the Sentence Management Manual or the Correctional Management Standards for that purpose.[46]

42 In any event, to the extent (if any) that it is legitimate to have regard to the Sentence Management Manual or the Correctional Management Standards, those documents do not support Mr Knight's arguments. The list of things set out above that sentence plans are said to be designed to achieve is not narrowly prescriptive. For example, the list refers to 'broad' strategies and interventions to meet prisoners' needs. Similarly, the passage from the Sentence Management Manual relied upon by Mr Knight relating to the two-tier system would indicate, if anything, that the concept of a "sentence plan" is a broad and flexible one, just as Williams J ultimately held. The passage in question indicates that the development of a sentence plan was to occur at the central (Sentence Management Unit) level and that it was to include "the determination of initial security ratings, identification of broad program needs, and determination of placement locations".[47]

43 Williams J noted that Mr Knight had referred to additional statements of principle and policy in other published documents relating to correctional standards in Australia. Her Honour summarised those documents as referring generally to such matters as the aims of correctional programs and the fact that classification should be at the lowest level of security possible, taking account of individual and group needs and the provision of safe custody.[48] Later, Mr Knight referred to those same documents and other similar published documents in his affidavit and submissions before me. Again, it is very doubtful that any of those documents could properly be considered for the purpose of interpreting the 2009 regulations. Further, the documents are general in nature, and do not purport to dictate what the correctional authorities must do in any particular kind of case.

44 Williams J went on to summarise Mr Knight's own sentence management history as follows:**

[16] As a Major Offender, Mr Knight has his classification reviewed by a Sentence Management Panel at least twice a year. Corrections Victoria records show him as having been the subject of over 220 reported sentence management panel meetings since August 1987. His classification was recently reviewed on 21 January 2009, 19 May 2009, 26 August 2009, 17 February 2010, 21 May 2010, 17 August 2010, 29 November 2010 and, again, on 24 November 2011. The November 2010 and 2011 reviews were annual reviews.

**45 Williams J then turned in more detail to the 2010 annual review and subsequent events. It is desirable that I set out verbatim the factual findings made by Williams J in this regard for two related reasons. First, the sentence management processes described by her Honour are closely linked to the sentence management processes of 2012 which Mr Knight criticises as deficient in comparison with the statutory requirements. Second, the factual findings of Williams J are important to an understanding of her Honour's determinations as to the meaning of the expression "sentence plan" in the regulations and as to what may or may not satisfy the statutory obligations.

46 The description by Williams J of the 2010 annual review and the subsequent events is as follows:**

[22] On 14 October 2010, Mr Knight wrote to Mr Trevor Pickering, General Manager of the Major Offenders Unit, listing topics for the impending annual review, as follows:

(a) My Sentence Plan for the next 3 ½ years (i.e. up to my EED);

(b) My Security Rating (lowering it from A2 to B or to C1);

(c) My participation in the Corrections Administration Permits & Rehabilitation & Transition Permit Program; &

(d) Any programs designed to address offending behaviour that it is recommended that I undergo.

He also referred to the issue of the progress of his application for access to a personal "in cell" computer.

[23] The sentence management panel (the Major Offenders Review Panel) met for the annual review on 29 November 2010. Mr Money, as Assistant Commissioner, Offender Management Services, Corrections Victoria, chaired the meeting. Mr Money is responsible for the security classification of prisoners and where they are accommodated through sentence management and Major Offenders Units. The two other panel members were Dennis Barnes, the Acting Senior Assistant Manager of the Major Offenders Unit and Michelle Hosking, that unit's Acting Manager.

[24] The Major Offenders Unit's senior clinician, Ms Nicole Sakellaridis, Tim Hargrave, a Port Phillip Prison Supervisor, and Corrections Victoria Project Officer, Patricia Von Gunten, were present to assist. Ms Von Gunten recorded the major points of the discussion into the Prison Information Management System ('PIMS'). Mr Knight does not contest the accuracy of the PIMS record and exhibits a copy of it to his 11 January 2011 affidavit. Ex JK 104.

[25] The panel began by noting various aspects of Mr Knight's time in the Waaksembyd unit at Port Phillip Prison: his positive interaction with staff and fellow prisoners; his work as a floor billet; his physical health; his successful studies; his recent disciplinary history; his participation in counselling with Ms Sakellaridis; and his engagement with Kangan TAFE and other educational programs.

[26] The PIMS notes record that Mr Knight 'presented in an agitated and aggressive manner'. He queried his maximum security rating, when he had previously been granted a medium security rating in 1999. He asserted that he should have a minimum security rating. He was told that progression to lower security ratings was not determined simply on the basis of the passage of time, but that it rather depended on genuine progress with treatment programs. Decisions about his progress would be based on clinical advice. Mr Knight raised his computer application and was told that it was with the Major Offenders Review Panel. Mr Knight then indicated that he would not participate in any more programs or education and would concentrate instead on litigation: apparently against Corrections Victoria.

[27] Mr Money raised Mr Knight's sentence plan. Mr Knight responded that he did not have one. Mr Money then advised that the sentence plan was for him to continue a treatment readiness program and for an advice from the Major Offenders Unit senior clinician to be obtained. Mr Knight's classification would be considered in light of reports submitted. Meanwhile, he would remain a Maximum Security rated prisoner at Port Phillip Prison and continue with a treatment readiness program. Mr Knight is recorded as then having left the room.

[28] After his departure Mr Money summarised the review. He first noted the similarity between Mr Knight's presentation at each of the 2010 and 2009 annual reviews, but stated that his level of agitation appeared to have heightened. He then stated that the sentence plan established in 2009 remained in place; the Major Offenders Unit senior clinician was still conducting a treatment readiness program which was expected to finish in about April 2011. At that stage, Mr Knight's sentence management plan would require review, in accordance with the senior clinician's advice. He concluded that Mr Knight's 'declared plan of litigating his way to parole' seemed unchanged and that he remained 'totally resentful to any attempts to demonstrate insight or take responsibility for his situation.' He concluded that Mr Knight would require 'a considerable level of monitoring and supervision', given his state of mind and agitation.

[29] Whilst Mr Knight's application relates to his 2010 review, it is relevant that there was another annual review on 24 November 2011. By that time, at the end of February 2011, Ms Sakellaridis had completed the 12 months of individual counselling sessions with Mr Knight, to assess and report on his readiness for treatment. She had assessed him as unready for further treatment and considered it appropriate to obtain an independent expert's opinion.

[30] In May 2011, Mr Money had requested a report from Professor Paul Mullen as to Mr Knight's management and the appropriate treatment for him. Professor Mullen had also been engaged by the Adult Parole Board to prepare a report for it in relation to Mr Knight. Mr Money was subsequently informed that Professor Mullen had completed the assessment and had recommended that Mr Knight be assessed by Professor James Ogloff.

[31] Mr Money thought it possible that the Parole Board might not provide Corrections Victoria with the reports. So, in February 2012, he decided to commission separate reports from Dr Mullen and Professor Ogloff in relation to Mr Knight's management and treatment. Mr Knight agreed to participate in the process.

[32] Professor Ogloff's report was not available to the panel which conducted Mr Knight's 24 November 2011 review. During the review process which culminated in that meeting, Mr Money explained to Mr Knight the matters which the panel was considering in relation to his sentence plan. They included the panel contemplating a medium security rating for Mr Knight in the future, if that were to be consistent with the recommendations of the experts. The anticipated expert advice would also provide guidance for his future treatment. If there was likely to be a delay, the panel would review the situation.

[33] The PIMS record of the 24 November 2011 annual review meeting shows that Mr Knight responded by stating that he did not wish to be placed in a medium security prison, preferring to stay at Port Phillip Prison to participate in a High Intensity Violence Intervention Program from which he felt he was being blocked. Mr Money told him that that the Mullen and Ogloff reports were required for his screening for that program. Mr Knight is reported to have then disclosed to the panel that he had deliberately sabotaged his individual counselling, in order to ensure that an independent assessment was recommended. The PIMS notes record that Mr Knight indicated his intention to be 'relentless in his litigation activities' and that he intended to be released in 2014. (Mr Knight's earliest date for eligibility for release on parole is noted as 8 May 2014.)

47 Once again, because of the similarities and links between the proceeding before Williams J and the application for leave before me, it is desirable to set out verbatim the balance of the judgment of Williams J, comprising her Honour's summary of the submissions made to her together with her Honour's conclusion and her supporting reasoning. Williams J said:

Submissions

[34] Mr Knight submits that at his annual reviews in 1999, 2000 and 2001, the panels' decisions could be characterised as general sentence plans which involved his progression to a medium security location. Since 2001, his reviews have brought about no change and he remains at a maximum security location.

[35] Mr Knight says that the 2010 review was not 'a proper genuine and realistic consideration of [his] sentence management'. The outcome of the decision was a foregone conclusion, in the context of Corrections Victoria's apparent policy of 'get nothing, go nowhere' with regard to him. The decision to tie his progression to assessment indicates bad faith.

[36] He also distinguishes his previous reviews from that conducted in November 2011, on the basis that they did not involve reference to the need for expert reports. He contends that he is being treated differently from the vast majority of other prisoners and that the delaying of his progression to a lower security rating by requiring expert assessment is another indicator of bad faith. He argues that mandamus should be available as the impugned decision was arbitrary and unreasonable.

[37] The Commissioner responds that the sentence plan is a practical flexible tool of management. See: Knight v Anderson [2007] VSC 278; (2007) 16 VR 532, 535 [14] (Bell J). A sentence plan must be capable of changing at short notice in response to changing circumstances. Mr Knight's sentence plan was summarised in the PIMS notes of the 2010 annual review in a way which indicated that it was under active consideration. He was to continue the treatment readiness sessions and then advice would be obtained from Ms Sakellaridis, when reports had been submitted. Meanwhile, he was to remain at Port Phillip Prison.

[38] The Commissioner argues that there is no basis on which it could be said that the sentence management plan advised by the panel did not contain what the panel was required to include or that it so lacked content that it could not be called a sentence plan within the meaning of the 2009 Regulations. The plan had been arrived at in accordance with the statutory scheme and the Court had no jurisdiction to direct its contents.

[39] In summary, the Commissioner submits, he discharged all his relevant statutory duties under the Act and the 2009 Regulations in relation to Mr Knight's classification. It was reviewed annually by sentence management panels, which considered the issues relating to risk, as required by reg 25, and made decisions in relation to his sentence plan, including a decision to obtain advice with regard to his future treatment.

[40] In any event, Mr Knight's classification has already been reviewed again on 24 November 2011 and the evidence indicates that it remains under continual review and that expert reports as to his future management and treatment have been sought. An order in the nature of mandamus for a review of the classification would be premature and futile in the circumstances and ought not be made.

Conclusion

[41] I am not persuaded to make the order sought by Mr Knight.

[42] He has not satisfied me that the Commissioner actually or constructively failed on 29 November 2010 to discharge his statutory duty to review his classification, his placement or his security rating or to develop a sentence plan for him.

[43] The PIMS entries record the 2010 annual review. Mr Knight raises no issue as to their accuracy. The entries show that the panel canvassed the issues of the risk Mr Knight presented and his future classification and placement, in the context of his offence, his then current behaviour, his attitude, his prison work, his educational activities, his physical health, his contact with family and friends, his participation in prison programs, the pending advice of Ms Sakellaridis as to his readiness for treatment programs and his state of mind and demeanour, as the panel perceived it to be.

[44] I am not persuaded that, in so far as the regulations indicate the nature of a sentence plan, the panel failed to comply with its duty to provide or review Mr Knight's sentence plan in 2010, as he contends. I am not satisfied that the panel failed to comply with its obligation under reg 25 to consider the risk posed by Mr Knight with reference to one or more of the considerations it lists and to which it might have had regard. Nor am I persuaded that the panel failed to comply with any duty under reg 26 when it was determining Mr Knight's placement and developing a sentence plan for him for the future.

[45] As I have already said, the Manual states that reduction of a security rating is contingent upon such matters as prisoner conduct, the passage of time and the satisfactory compliance with a sentence plan. I am not persuaded that the panel failed to take those matters into account in 2010. Indeed, the PIMS record would suggest that it did.

[46] Additionally, I am not persuaded by Mr Knight's criticisms of the decisions made at the 2010 annual review, and of the process itself, that the Commissioner acted in bad faith, for an improper purpose or capriciously, as alleged. In all the circumstances, it was quite proper for the panel to have awaited the report from Ms Sakellaridis, after twelve months of individual counselling, and then to have decided to await the recommended independent expert reports relating to Mr Knight's future management and readiness for treatment. Mr Knight also has a copy of the PIMS report which sets out Mr Money's description of the sentence plan.

[47] The sentence plan is a practical management tool and must be flexible to take account of changing circumstances. There is, and has been, ongoing review of Mr Knight's sentence plan. A further annual review took place on 24 November 2011 where the sentence management panel stated that it would consider his progression to medium security rating on the basis of anticipated expert reports.

[48] In the circumstances, even if I had taken the view that the Commissioner had failed to carry out his duty in the manner alleged, I would have refused the order sought on discretionary grounds. It would have been inappropriate and even futile to make such an order, in light of the sentence management panel's continuing consideration of Mr Knight's sentence plan as to his classification, placement and future treatment at reviews after the 2010 annual review and, in particular, at the annual review in 2011.

[49] I consider many of Mr Knight's criticisms of the 2010 annual review to be related to the substance of the decision made by the sentence management panel in the exercise of its duty. Indeed, he effectively submits that it should have formulated a different sentence plan, that his security classification should be reduced and that his placement should reflect that reduction. The Court, however, has no jurisdiction to make an order in the nature of mandamus as to the way in which the Commissioner should perform his duty.

[50] For all these reasons, the application should be dismissed.

**48 It is clear that Williams J accepted the submissions of the Commissioner as summarised in paragraph 37 of the judgment, including that a sentence plan is a practical flexible tool of management and that it must be capable of being changed at short notice in response to changing circumstances. Her Honour noted that Mr Knight's sentence plan was under active consideration at the 2010 annual review; that Mr Knight was to continue his treatment readiness sessions; that advice would then be obtained from Ms Sakellaridis (the Major Offenders Unit's senior clinician); that Mr Knight's classification would be reconsidered after reports had been obtained; and that, meanwhile, Mr Knight was to remain at Port Phillip Prison. Plainly, this was considered by her Honour to be sufficient to amount to a sentence plan within the meaning of the legislation.[49]

49 After Williams J published her judgment, the Commissioner applied for costs. Mr Knight opposed the application. He argued, among other things, that the proceeding had been brought in the public interest and amounted to a test case in relation to the previously "untested" 2009 regulations.[50] He relied upon the statements made by Emerton J when granting leave, to the effect that it remained to be authoritatively determined what was involved in a classification review and a sentence management plan under the regulations.[51] Before Williams J, the Commissioner responded that the proceedings were neither a "public interest" case nor a test case. He submitted that not every case relating to the Act or the regulations involved the public interest in the relevant sense. According to the Commissioner, Mr Knight's case did not test the regulations. Rather, Mr Knight had unsuccessfully argued that he had had no sentence plan and that he should have had a different security classification and sentence plan.[52]

50 Williams J granted the Commissioner's application for costs. In relation to the arguments just mentioned, Williams J said:[53]**

I agree with the Commissioner that the application did not involve any meaningful testing of the requirements of the regulations. Further, even if the proceeding concerned the public interest, its major focus was on Mr Knight's own particular situation. All in all, I am not satisfied that there were special circumstances justifying a departure from the general rule as to costs on the grounds that the proceeding was a test case or one involving the public interest.

51 In dealing with another of Mr Knight's arguments based on his status as a prisoner, Williams J said, among other things:[54]

It is significant in this case that it was held that it would have been inappropriate and futile to grant the relief sought and that the Court lacked jurisdiction to grant the relief which Mr Knight effectively sought.

52 Mr Knight did not seek leave to appeal against the substantive judgment of Williams J. However, he did seek leave to appeal against her Honour's order as to costs. Neave JA and Hargrave AJA rejected the application.[55] So far as presently relevant, their Honours said:[56]

Ground 3 also fails. Her Honour found that the application did not meaningfully test the requirements of the regulations. We agree. As her Honour observed, the applicant's real complaint was that he should have been given a different sentence management plan and that his security classification should be reduced. The Court has no jurisdiction to undertake a merits review of the Commissioner's decision.

**53 Mr Knight urged me to treat the judgment of Williams J as a "lost opportunity" to determine authoritatively the meaning and scope of the statutory obligation to have a sentence plan for each prisoner, and he invited me not to follow it. That submission is hard to reconcile with Mr Knight's contention in the costs hearings before Williams J and before the Court of Appeal that the case was a test case brought in the public interest. It is true that neither Williams J nor the Court of Appeal accepted that it was a public interest case or a test case, but that does not mean that it was a lost opportunity. The judgment of Williams J produced at least one clear ruling for the future, namely that, even under the new statutory regime, a "sentence plan" remains a "practical management tool and must be flexible to take account of changing circumstances".[57] The facts of the case before Williams J (as related by her Honour) illustrate the extent and degree of the permissible flexibility of this "practical management tool". A trial judge would not depart from the ruling of Williams J unless convinced that it was "clearly wrong".[58] Still less would there be any departure in circumstances where her Honour's ruling has had the implicit endorsement of Neave JA and Hargrave AJA in their Honour's decision on the costs aspect. In my view, it is not arguable that the ruling of Williams J is clearly wrong. Indeed, I consider that it is plainly correct. Accordingly, I consider that Mr Knight's contention that her Honour's ruling should not be followed is foredoomed to fail.

54 Applying the judgment of Williams J to the relevant subsequent events as revealed by the (uncontroversial) evidence in the present case (to which I am about to come), it is plain beyond argument that there was a "sentence plan" in place for Mr Knight as an outcome of the impugned meeting of the sentence management panel of 6 December 2012, just as there had been such a plan in place at the corresponding points in 2010 and 2011. Insofar as Mr Knight would wish to claim that there was no "sentence plan" in place because the panel had not given "proper genuine and realistic consideration" to his case, it is likewise obvious that such a claim would be bound to fail.[59]

55 The meeting of 6 December 2012 cannot be viewed in isolation. It was only a part of the very long history of the management of Mr Knight's sentence. In addition to the events described in the judgment of Williams J, important context is supplied by a meeting of a sentence management panel chaired by Mr Money which took place on 30 August 2012.[60] The unchallenged PIMS record of the August 2012 meeting shows that the management of Mr Knight's sentence was considered in great detail at that meeting. By then, the reports which had been commissioned by Corrections Victoria from Professor Mullen and Professor Ogloff had been received. Copies of the reports are exhibited to Mr Knight's affidavit of 22 January 2013. A copy of each report had been provided to Mr Knight in advance of the meeting.[61] Each report is detailed and comprehensive.

56 The meeting of the sentence management panel on 30 August 2012 is described by Mr Money in his unchallenged affidavit as having been "a major review which resulted in a change to Mr Knight's security classification and was in that sense a more significant review of his classification and placement than that which took place in December 2012".[62] The panel was comprised of six members, including Mr Money (as chair). Present also at the meeting were two clinicians to give advice to the panel and a project officer to take notes.[63] Each member of the panel had been provided with the Ogloff report and the Mullen report. Mr Knight himself was also present at the meeting.

57 At the meeting, Mr Knight confirmed that he had received and considered the reports. Mr Money referred to various aspects which he considered relevant to Mr Knight's sentence management, including the observations of Professor Ogloff in relation to a gradual release process which would involve moves to lower levels of security. Mr Money also referred to the observations of both Professors in relation to some of Mr Knight's traits which might be problematic in less controlled prison environments. Mr Money told Mr Knight that the panel considered it appropriate to change his security rating to a medium security rating and that as a medium security prisoner Mr Knight would be moved to Marngoneet Prison where he could access treatment programs. Marngoneet Prison is the specialist treatment facility in the Victorian prison system. It is also a campus style facility and is less controlled and directed than a maximum security prison.

58 However, Mr Knight told the panel at the August meeting that he was only interested in a minimum security placement.[64] In the discussion which followed, the panel accepted that Mr Knight would not have to move to Marngoneet immediately, as there was a preparatory treatment program that he could participate in at Port Phillip Prison, in addition to maintaining his current employment, education and recreation activities. The panel had already noted, at the outset of the meeting, that Mr Knight was working as a unit induction billet, that he regularly attended the gym, that he was on the prisoner representative committee and that he had an organisational role in the prisoners' leisure and recreation program. However, the panel indicated that a medium security placement such as Marngoneet remained a possibility as Mr Knight needed in future to be tested in a less controlled environment.[65]

59 Mr Money is a very experienced and senior officer of Corrections Victoria.[66] He deposes (as he did before Williams J) that sentence plans are dynamic and must be flexible enough to adapt to the constantly changing circumstances of prisoners and their prison environment. However, he says, it is possible to identify the sentence plan for Mr Knight as at 30 August 2012 as including the following key elements:**

• Mr Knight's security rating would be lowered from maximum security to medium security;
• He would, in the short term, remain at Port Phillip Prison as a medium security rated prisoner, in view of his opposition to being moved to the medium security Marngoneet Prison;
• He would undergo an offence related treatment program which was being developed and would be offered at Port Phillip Prison, which would assist to prepare him for more intense treatment;
• He would continue to engage in the range of meaningful activity that he was currently engaged in, including education;
• He would be considered on an ongoing basis for an eventual move to a medium security prison.

**60 As mentioned above, Mr Knight had been classified as a major offender. As such, Mr Knight also fell within the purview of a panel called the High Risk Management Advisory Panel (HRMAP), which had been formed in April 2012 to provide advice to the Commissioner for Corrections in relation to certain offenders whose management within a prison posed specific risks. HRMAP was also authorised to advise on any other matter which the Assistant Commissioner, Sentence Management Branch, of Corrections Victoria wished to refer to it. The members of HRMAP were the Deputy Commissioner, Offender Management, Corrections Victoria; the Deputy Commissioner, Operations, Corrections Victoria; the Assistant Commissioner, Crime, Victoria Police, and an independent member (who was at the relevant time a retired judge of the Supreme Court of Victoria, Professor Robert Brooking).[67]

61 Following the meeting of the sentence management panel on 30 August 2012, the views of HRMAP were sought in relation to the outcome of the meeting, to assist the Commissioner for Corrections in determining whether there was any need for him to exercise his delegated powers under reg 23(5) of the Corrections Regulations 2009 so as to vary that outcome. Mr Money deposes that HRMAP supported what he describes as "the panel's sentence plan and reduction in classification". The Acting Commissioner was provided with the Mullen and Ogloff reports, and the advice of HRMAP.[68]

62 The Acting Commissioner approved and did not vary the decision of the sentence management panel.[69]

63 On 2 October 2012, Mr Knight commenced a skills based relationships and emotional development program dubbed the PSYCH ED program, being a program of 14 sessions scheduled to continue until 13 December 2012. Mr Knight had almost completed this program by the time of the impugned meeting of 6 December 2012.

64 As indicated above, the meeting of 6 December 2012 was a meeting of a sentence management panel appointed under reg 23 of the Corrections Regulations 2009. On this occasion, the sentence management panel had seven members. Mr Money was again the chairman. Two of the other members had also been members of the August 2012 panel. Once again, Mr Knight was present in person.

65 Mr Knight has not challenged the account of the meeting of 6 December 2012 which is given by Mr Money in his affidavit and which is supported by the PIMS record.

66 The meeting was conducted at Port Phillip Prison. During the discussion, the panel noted that Mr Knight's security rating had been lowered to B* medium.[70] The panel also noted that Mr Knight was participating in the PSYCH ED program, and that he continued to be engaged in a range of other activities including attending the gym, education, and acting as a unit induction billet. Mr Knight had also engaged in some short term one on one counselling regarding alcohol abuse.[71] Mr Money told Mr Knight that he was willing to discuss questions which had been raised by Mr Knight, by letter, in relation to Mr Knight's placement and classification and as to whether his transfer to Marngoneet had been approved. Mr Knight then stated that he wanted to be considered for transfer to Ararat Prison (which is a prison exclusively for protection prisoners), Fulham Correctional Centre (a mainstream medium security prison), or Beechworth Correctional Centre or Dhurringile Prison, which are both minimum security prisons, but also stated that he should be in minimum security. He also asked, however, what the panel's plan for him was beyond Marngoneet. He talked about the Adult Parole Board and he expressed a view that he had to be paroled in 2014 or he never would be.

67 Given Mr Knight's opposition to a transfer to Marngoneet as expressed at the 30 August 2012 meeting, no transfer to Marngoneet had been approved prior to the 6 December 2012 meeting. At the December meeting, having regard to Mr Knight's inconsistent requests to be placed in a number of different locations, Mr Money, with the panel, considered that a transfer to another prison was not appropriate at that time, and that it would be more appropriate for Mr Knight to continue at Port Phillip Prison where he was engaged in the PSYCH ED program and a range of activities.

68 At the December meeting, Mr Money told Mr Knight, on behalf of the panel, that Mr Knight would remain at Port Phillip Prison for the immediate future, with the medium security rating. Mr Knight also continued to be involved in education, employment and leisure activities as identified in the August 2012 review. Mr Money, and other members of the panel, were satisfied that Mr Knight had a range of meaningful activities, as well as program options, available to him in his then location.

69 In these circumstances, Mr Money deposes:[72]**

The sentence plan confirmed by the panel at this meeting therefore contained the same elements of the August 2012 sentence plan, with the additional factor that Mr Knight had been successfully participating in the PSYCH ED treatment program and it was anticipated that he would participate in further programs in the coming year. It also remained a feature of the sentence plan that he would be monitored for a move to a medium security placement, ideally at the Marngoneet Prison, given its focus on treatment programs.

70 In his affidavit, Mr Money explains his thinking and that of the panel in relation to Mr Knight's complaint at not being transferred from Port Phillip Prison to other prisons. It is desirable to set out Mr Money's comments in this regard in full, because they serve to confirm, beyond any question, that the sentence management panel had a sentence plan for Mr Knight. They also demonstrate that the panel applied their minds carefully and expertly to Mr Knight's situation. Accordingly, while I will assume in Mr Knight's favour, without deciding, that, in this particular statutory setting, the panel was under a legal obligation to give "proper, genuine and realistic consideration" to the management of his sentence,[73] the suggestion by Mr Knight that the panel failed to do so is quite hopeless. Mr Money's comments relating to Mr Knight's complaint about not being transferred out of Port Phillip Prison are also relevant to grounds (b) and (c) of Mr Knight's "sentence plan" application and also to his other pending application for leave to proceed which, as indicated above, relates to a refusal to transfer him from an ordinary prison to a transitional centre. Mr Money deposes:[74]

In relation to Mr Knight's complaints at not being transferred to other prisons, having considered the reports of Professors Mullen and Ogloff, and being familiar with Mr Knight's classification history within the prison, I believed in December (and continue to believe) that it would not be appropriate to transfer Mr Knight to a minimum security prison without first being satisfied that it was appropriate that he be classified as a minimum security prisoner. This requires assessment of the risk factors identified in regulation 25 of the Corrections Regulations, as applicable at any given time to the prisoner. As a practical matter, it would be necessary to have Mr Knight exposed to less controlled environments than his current high controlled maximum security placement to see how he adapts to that environment. I would therefore expect him to transition first from his current maximum security placement to the less controlled environment of a medium security prison. The purpose of such a transition is to ensure that he is able to adjust to living in a significantly larger community of prisoners where the prisoners have more independence, and more individual responsibility, than in the highly controlled maximum security environment. I understood Professor Ogloff's report as identifying such a gradual progression as appropriate. My experience of the prison system and interactions between prisoners, in the context of Professor Ogloff's and Professor Mullen's observations as to some of the personality traits of Mr Knight such as self-importance, rigidity, obsessionality and egocentrism and the need for Mr Knight to develop tolerance, also suggests to me the need for a gradual, monitored progression to ensure that he is adapting well to the community of prisoners in a less controlled prison.

I also consider it would be inappropriate to place Mr Knight in a protection prison such as Ararat (as suggested by him on 6 December 2012), as he was transitioned out of a protection placement in 2006, into mainstream placements, and it would be a more restrictive and backwards step to return him to a protection placement. As Mr Knight had during his placement in protection often expressed to me and others his desire to leave protection, it was difficult for me to understand why he would now suggest a protection placement. This was part of the reason I formed the view (which is referred to in the PIMS notes) that Mr Knight was confused and contradictory.

From my discussions with the sentence management panel and the views they communicated to me, I understood them to share these beliefs as to the need for Mr Knight to transition gradually to less controlled environments, and to avoid a return to any protection placement.

71 Mr Knight's suggestion that there was no sentence plan in place for him is also flatly contradicted by the unchallenged evidence given by Mr Money in his affidavit relating to what Mr Knight was actually doing in the period after the sentence management panel meeting of 6 December 2012. Mr Money deposes - with no suggestion by Mr Knight that he would wish to challenge Mr Money's evidence in this regard - that in the period between 6 December 2012 and the date of Mr Money's affidavit (10 April 2013), Mr Knight had completed the PSYCH ED program, and had then commenced and completed a further treatment program at Port Phillip Prison, namely the Exploring Change program. This was a six session program designed to decrease participants' ambivalence to change, and to increase their motivation to engage in therapy. It encourages participants to identify the advantages and disadvantages of offending and non-offending, identify personal consequences of offending, and explore factors that assist change and block change. It is regarded as a useful program to do in preparation for other, high intensity programs, such as the High Intensity Violence Intervention Program. Mr Knight completed the Exploring Change program on 13 March 2013. Mr Knight then commenced the High Intensity Violence Intervention Program at Port Phillip Prison on 18 March 2013. This is a 66 session intensive program. It contains the following modules:

• Introduction
• Life pathways
• Offence process
• Pro social thinking
• Emotional regulation
• Victim awareness
• Self-management

Mr Knight was scheduled to complete the High Intensity Violence Intervention Program by early September 2013.

**72 As mentioned above, in his submissions to this Court - especially his oral submissions[75] - Mr Knight contended that, in the period between December 2012 and March 2013, it was reasonable to expect that he would be released on parole on or shortly after 8 May 2014. He referred to ss 20 and 21 of the Corrections Act 1986 as the alleged source of a duty to prepare him for release on or shortly after 8 May 2014. He also used the expression "legitimate expectation" in this regard.

73 In relation to the present ground (proposed ground (a)) in particular, Mr Knight submitted that the outcome of the meeting of 6 December 2012 did not amount to a "sentence plan" within the meaning of the regulations because it did not contain steps designed to prepare him for release on or shortly after 8 May 2014.

74 It is plain beyond argument that the sentence management panel was not under any legal obligation or legal duty to produce a plan containing steps designed to prepare Mr Knight for release on or shortly after 8 May 2014.

75 Plainly, no such obligation or duty arises in this case from anything contained in s 20 or s 21 of the Corrections Act 1986. Section 20 imposes certain duties on an "officer". The word "officer" is defined in s 14. It is not clear to me that the definition relevantly extends to the members of a sentence management panel. Even if it does, the only relevance of s 20 could be that it provides (by sub-s (2)) that an officer in charge of prisoners must take all reasonable steps for the safe custody and "welfare" of the prisoners. The word "welfare" is not defined. On no view could the duty require an officer to take steps to prepare a prisoner for release by a particular time unless the prisoner had a legal right to be released by that time or, at the very best, unless the officer should have expected that the prisoner would, if properly prepared, be released by that time. Section 21 makes the Governor of a prison "responsible" for, among other things, the "welfare" of the prisoners. Again, it seems doubtful to me that this section has any application to a sentence management panel. In any event, it is surely a matter for the responsible "Governor" to determine how best the "welfare" of the prisoners should be provided for. Once again, the Governor could not possibly be obliged to take steps to prepare a prisoner for release by a particular time unless the prisoner had a right to be released by that time or, at the very best, unless the Governor should have expected that the prisoner would, if properly prepared, be released by that time.

76 Generally speaking, legal duties and obligations are correlative to legal rights. Mr Knight did not really suggest that, as at December 2012 to March 2013, he had a prospective legal right to be released on parole on or shortly after 8 May 2014. Any such suggestion would have been hopeless.

77 The legal nature of a non-parole period or minimum term was explained by Hampel J when sentencing Mr Knight himself in 1988:[76]**

A minimum term is not a period at the end of which the prisoner is released. It is a period before the expiration of which, having regard to the interest of justice, he cannot be released. In sentences for murder, if a minimum term is fixed it must be fully served; no remissions operate to reduce it. As the Court of Criminal Appeal said in Dumas, at 71: "The power to fix a minimum term may, and no doubt will, be exercised as a means of converting an indeterminate sentence into a finite one in cases where the proper authorities consider that after the minimum term has expired it is appropriate for the offender to be released on parole."

The nature and purpose of the minimum term was considered in Power v R [1974] HCA 26; (1974) 131 CLR 623 and re-stated in Deakin v R [1984] HCA 31; (1984) 54 ALR 765; 58 ALJR 367. The relevant passage from Power, which was cited with approval in Lowe v R [1984] HCA 46; (1984) 154 CLR 606; 54 ALR 193; 58 ALJR 414, is as follows, at (CLR) p. 620: "The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."

**78 At all relevant times up until the making of the decisions sought to be challenged in the present case, s 74 of the Corrections Act 1986 has reflected the principle referred to by Hampel J that a prisoner is only to be released where "the proper authorities" consider that, after the minimum term has expired, it is "appropriate" for the offender to be released on parole. Under s 74, the repository of that discretionary power in Victoria was (and remains) the Adult Parole Board.

79 Thus, in 2008, in Kotzmann v Adult Parole Board of Victoria[77] Judd J said there is no right to a parole order.

80 Likewise, in 2012, in Knight v Adult Parole Board[78] Osborn J said:**

The effluxion of a non-parole period enlivens the Board's discretion to grant parole, but does not create any presumption that parole be granted.

The making of a parole order is discretionary. The exercise of the discretion on the facts is vested by Parliament in the Board and the Court could not interfere in the exercise of that discretion unless it was satisfied upon judicial review that the Board's discretion had miscarried as a matter of law.

81 Similarly, on 12 March 2013, in Knight v Adult Parole Board[80] Macaulay J said that Mr Knight himself had rightly conceded that he could not compel the Parole Board, by a remedy in the nature of mandamus, to give him a tentative release date. Again, in February 2015, in a context not relevantly affected by any of the recent legislative amendments relating to parole, Weinberg JA said:[81]

There is no entitlement to release until the Board has so directed.

**82 As mentioned in the introductory sections of this judgment, various legislative amendments relating to parole were made after the decisions in question were made.

83 The first of these amendments was made in May 2013, after the decisions in question but prior to the hearing before me. The amendments of May 2013 relate only to the circumstances in which parole may or must be cancelled.[82] Hence they could only be indirectly relevant in relation to the granting of parole. Generally speaking, the amendments provided for parole to be cancelled more readily. These amendments were noticed by Mr Ian Callinan AC in his Review of the Parole System in Victoria published in July 2013. As Mr Callinan observed, in making these changes the Minister for Corrections said in his second reading speech for the Bill that "[t]hese reforms send a strong message that parole is a privilege and not a right and put community safety at the heart of the Parole Board's deliberations".[83]

84 In his report, Mr Callinan went on to express quite firm views to the effect that the legislation relating to the grant of parole in Victoria should be amended so as to make parole more difficult to get and so as to diminish the opportunity for any challenges. Indeed, Mr Callinan expressed the view that whether to grant parole and the conditions attaching to any grant should be, and remain, a matter of unreviewable Executive prerogative.[84] Mr Callinan recommended against the creation of any right of review. He said that a right of review "tends to imply that the offender has rights in connection with parole when it is, as I have said, properly to be regarded as a privilege or dispensation".[85] After giving a brief account of the history of the changes to sentencing laws in Victoria, he said that those changes:**

...were not intended to give rise to any statutory presumption, or indeed any implication that an offender should or must have an entitlement to parole on the expiration of a non-parole period. 'Truth in sentencing' was the outcome of a perception that the sentence imposed by a Court could be, and often was in practice, quite different from and longer than the sentence that would actually be served.

I emphasise again that people who are sentenced to a term of imprisonment with a non-parole period do not have a right to parole after its expiration. They are eligible for parole. I have formed the opinion that there is a mode of thinking, an assumption, perhaps almost a presumption, that after a non-parole period has expired, a prisoner has a right to parole. Even if that presumption were one to be treated as rebuttable, such a way of thinking can lead to, and I fear may have led in this State, to less rigorous attention than the true situation requires. Once thinking of that kind becomes the mode, there is in the nature of a reverse onus. The onus should be upon a prisoner to demonstrate that he or she deserves parole. A prisoner should be required to demonstrate that he or she has a very genuine intention, and a real capacity to rehabilitate himself or herself by complying with conditions of parole and genuinely attempting to re-join the community in a harmless way, before being granted parole.

**In his summary and conclusion, Mr Callinan recommended that all prisoners with non-parole periods should be categorised according to the gravity of their offences and that prisoners categorised as potentially dangerous parolees should only be given parole by the unanimous decision of specially constituted panels, and then only if they could satisfy the panel, taking as paramount the safety and protection of the community, to a very high degree of probability that the risk of reoffending was negligible, and that they were highly likely to satisfy the conditions of parole to which they were likely to be made subject.[87]

85 It is plain that the next relevant amendment, namely the insertion of s 73A of the Corrections Act 1986 as from 6 November 2013, owed something to the report of Mr Callinan. Section 73A is as follows:**

1. Safety and protection of the community paramount in parole decisions

The Board must give paramount consideration to the safety and protection of the community in determining whether to make or vary a parole order, cancel a prisoner's parole or revoke the cancellation of parole.

86 Next, the Corrections Act 1986 was amended as from 2 April 2014 by the insertion of s 74AA, as follows:

74AA Conditions for making a parole order for Julian Knight

(1) The Board must not make a parole order under section 74 in respect of the prisoner Julian Knight unless an application for the order is made to the Board by or on behalf of the prisoner.

(2) The application must be lodged with the Secretary of the Board.

(3) After considering the application, the Board may make an order under section 74 in respect of the prisoner Julian Knight if, and only if, the Board -

(a) is satisfied (on the basis of a report prepared by the Secretary to the Department of Justice) that the prisoner -

(i) is in imminent danger of dying, or is seriously incapacitated, and as a result he no longer has the physical ability to do harm to any person; and

(ii) has demonstrated that he does not pose a risk to the community; and

(b) is further satisfied that, because of those circumstances, the making of the order is justified.

(4) The Charter of Human Rights and Responsibilities Act 2006 has no application to this section.

(5) Without limiting subsection (4), section 31(7) of the Charter of Human Rights and Responsibilities Act 2006 does not apply to this section.

(6) In this section a reference to the prisoner Julian Knight is a reference to the Julian Knight who was sentenced by the Supreme Court in November 1988 to life imprisonment for each of 7 counts of murder.

**87 Section 74AA became law approximately five weeks before the expiry of Mr Knight's minimum non-parole period on 8 May 2014.

88 Finally, as from 1 July 2014, the Corrections Act 1986 was further amended by the insertion of s 74AAB, a section which appears to represent substantial acceptance of the abovementioned recommendation of Mr Callinan that there should be special panels and special procedures to decide whether or not to release a prisoner on parole in respect of certain kinds of serious offences. The section applies to, among other things, "serious violent offences" (as defined). Subsection 74AAB(4) makes it clear that these new requirements apply whether the prisoner was sentenced to imprisonment in respect of the offence before or after the section came into operation. Thus it seems that, if s 74AA (which relates to Mr Knight himself) were for any reason to cease to affect Mr Knight,[88] s 74AAB might well have potential operation in relation to him.

89 As stated above, I have not taken any of these legislative amendments into account adversely to Mr Knight. Of course, had I been satisfied that Mr Knight's applications for leave were not otherwise foredoomed to fail, I would have invited the parties to make submissions as to the significance of the amendments, especially in relation to the obvious question of whether the quashing of either decision, or the making of any order in the nature of mandamus, could be of any utility. But that does not arise. On the other hand, I do still need to explain my view that the amendments could not be said to assist Mr Knight's position.

90 The suggestion raised (and foreshadowed for rejection) in the introduction to this judgment was prompted by the principle of statutory interpretation that the insertion of words into an existing Act must be taken to make the new Act different from the old. As is stated by Pearce and Geddes in their leading Australian text on statutory interpretation,[89] perhaps the best known example of the principle is provided by Grain Elevators Board (Vic) v Dunmunkle Shire.[90] As the learned authors say:[91]**

The question that arose in that case was whether the board was subject to rates. One point taken was that, after the fixing of the rate, a limited exemption from rates was given to the board by an amendment of the Act establishing it. Dixon J considered that it was proper to take this amendment into account but, as it did not cover the situation before the court, the board was liable to pay rates. His Honour remarked (at 86) that it would have been a strange result if the court had interpreted the prior legislation as giving a wider exemption than that conferred by the amendment so that the express exemption it made would have been unnecessary. Latham CJ (at 77) gave this view qualified support.

91 Pearce and Geddes note that the principle in Dunmunkle has been applied in several cases, but they note also that it has been the subject of doubt and misgivings. They draw attention to the warning given by the Full Court of the Federal Court in Allina Pty Ltd v Federal Commissioner of Taxation:[92]

There was some debate before us as to the circumstances in which courts are entitled to examine a later statute to determine whether it throws any light upon the interpretation of an earlier statute. Plainly this course can be taken when the words of the earlier statute are ambiguous, but if the words of the earlier statute are clear, little assistance may be gained from the later statute. Also, care must be exercised to ensure that the words in the later statute have not been inserted to remove possible doubts... .

92 On reflection, I am completely satisfied that nothing in any of the relevant recent amendments to the Corrections Act 1986 throws any doubt on the proposition that during the period in question, prisoners had no right to an order of parole and, correspondingly, the Parole Board was under no legal obligation to grant parole to any prisoner. The Dunmunkle principle, even where it applies, is confined to the interpretation of statutory provisions. Here, the only relevant statutory provision that was in force at the relevant time and that could conceivably be affected by the recent amendments was s 74 and, in particular, s 74(1). At the relevant time, s 74(1) provided:

1. Release on parole after service of non-parole period

(1) The Board may by instrument order that a prisoner serving a prison sentence in respect of which a non-parole period was fixed be released on parole at the time stated in the order (not being before the end of the non-parole period) and, unless the Board revokes the order before the time for release stated in the order, the prisoner must be released at that time.

...

**This provision contained no relevant ambiguity. It was expressed in perfectly general terms. There was nothing discernible in the scope, object or purpose of the provision to indicate that the discretion of the Board was confined in any relevant way. The recent amendments to the Act do, of course, confine the previously unconfined discretion of the Board. Indeed, s 74(1) has itself been amended so as to render it expressly subject to s 74AAB and s 78(3) (the latter relating to prisoners whose parole has already been cancelled once). Of course, s 74AA, which imposes conditions for making a parole order for Mr Knight, contains express references to s 74. So, all in all, the recent amendments do affect the operation of s 74 but they do not indicate that s 74 previously had a meaning consistent with any suggestion that prisoners might acquire a right to an order for parole.

93 I turn to the remaining mooted way in which a sentence management panel might be said to be under a legal obligation or duty to include in a sentence plan steps designed to prepare a prisoner for release on parole by a particular time, namely where the sentence management panel should have expected that the prisoner, if properly prepared, would be released by that time. This would surely be a very rare case. Relief by way of judicial review could only be obtained, at the very best, where the decision-making of the sentence management panel could be described as legally unreasonable in the Li sense.[93] In any event, there would be absolutely no prospect of Mr Knight establishing that the present case was in such a category.

94 As mentioned above, Mr Knight has used the expression "legitimate expectation" in this context. In the field of administrative law, the concept of "legitimate expectation" had a brief flowering. The requisite "expectation" had to be objectively legitimate. In fact, it was not even essential that the individual claimant subjectively held the relevant expectation. However, the concept is now well and truly out of favour in Australia.[94] In any event, even when the concept of legitimate expectation was in favour, it could only be deployed to argue that a particular decision-making process was subject to the rules of natural justice or procedural fairness. Mr Knight has not claimed to have been denied natural justice or procedural fairness. The concept of legitimate expectation had no other relevant application. Importantly, it could not, and still cannot, be deployed as a source of substantive entitlement. It could not, and still cannot, be used to raise a substantive estoppel against the exercise in a particular way of a statutory power.[95] All in all, the concept of "legitimate expectation", in its administrative law sense, is of absolutely no value to Mr Knight in these applications.

95 That leaves only the suggestion that, having regard to the custom and practice of the Victorian Adult Parole Board and the particular facts of Mr Knight's situation, the omission of the sentence management panel to include in its plan for Mr Knight any steps designed to prepare him for release on or shortly after 8 May 2014 was legally unreasonable (in the Li sense), such that the panel constructively failed to carry out its duty under the Corrections Act 1986 and the Corrections Regulations 2009 to have or produce a sentence plan for Mr Knight.

96 Although Mr Knight's case in these respects was based more on assertion than on evidence, it may be that, at least until recently, the custom and practice of the Adult Parole Board did generate a widespread, subjective expectation that prisoners would be released on or shortly after the expiration of their minimum terms if they did not in the meantime reoffend or otherwise come to the adverse attention of the relevant correctional authorities. Thus in his abovementioned Review of the Parole System in Victoria, published in July 2013, Mr Ian Callinan AC observed that "the Parole Board approaches the so called EED (Earliest Eligibility Date) as an imperative, almost as if it would be failing in its duty if it did not consider a grant of parole in time to enable the release of a prisoner on the EED".[96] Mr Callinan further observed that the history of parole in Victoria and the various Victorian sentencing regimes within the previous 30 or so years had had "an unintended consequence of raising an expectation, if not of automatic parole, then at least of a high expectation of it on the expiration of a specified non-parole period, if the offender's conduct in prison has not been unsatisfactory".[97] "Indeed", Mr Callinan continued, "[i]t is no accident I think that the acronym 'EED' is customarily used and contains within it an assumption of parole".[98] Mr Callinan went on to comment that there was practically nothing in the legislation of Victoria as to how the Board was to inform itself and act in considering the grant of parole or whether to cancel it.[99] Mr Callinan observed that the detail of the Adult Parole Board's functions and the tests which it applies are to be found only in its internally compiled Members' Manual.[100]

97 Neither Mr Knight nor Mr Money referred me to Mr Callinan's report or to the prior report of the Sentencing Advisory Council published in March 2012 entitled "Review of the Victorian Adult Parole System" to which Mr Callinan extensively referred. However, having read both, I assume in favour of Mr Knight, without deciding, that the custom and practice of the Adult Parole Board was as Mr Callinan described it as mentioned above.

98 Nevertheless, the plain fact is that it cannot be said that, in the period between December 2012 and March 2013, the sentence management panel should have expected that Mr Knight would be released on parole on or shortly after 8 May 2014. There are many reasons for this. It is enough to refer to only some of them.

99 Contrary to Mr Knight's submissions (as advanced particularly under proposed ground (c), to which I will shortly come), his situation is a highly unusual one.

100 In sentencing Mr Knight in November 1988, Hampel J told him that he was responsible for one of the worst massacres in Australian history as a result of which seven people died and 19 people were injured.[101] Many more were fortunate to escape death and injury as Mr Knight fired over 100 rounds of ammunition, from three weapons, at passing motorists and at the police as they tried to apprehend him. His Honour remarked that the surviving victims and the community at large were understandably horrified and justifiably outraged at what he had done. The crimes were random and particularly "public" crimes, which caused not only deaths and injury, but also a great amount of suffering to many people.[102] His Honour considered that the mitigatory factors on which Mr Knight had relied were outweighed by the nature and multiplicity of the crimes he had committed and the requirement that the sentences must be proportionate to the crimes. Accordingly, his Honour sentenced Mr Knight to "imprisonment for life" in respect of each of the seven counts of murder.[103] For each of the 46 counts of attempted murder, Mr Knight was sentenced to be imprisoned for 10 years, to be served concurrently with each other and with the life sentences. Hampel J then turned to the question of a minimum term, which, he said, served a number of purposes and was designed to satisfy both the needs of the community and the offender. It was in that context that his Honour said (as part of the passage quoted more fully above):[104]**

A minimum term is not a period at the end of which the prisoner is released. It is a period before the expiration of which, having regard to the interest of justice, he cannot be released.

101 Next, as the evidence in Mr Knight's second application for leave to proceed shows, on 2 July 2012 the general manager of the Adult Parole Board, Mr Provan, wrote to Mr Knight in response to several requests from him that the Board give an indication of his eventual release date. By then, the Board had received from Professors Mullen and Ogloff the reports which the Board itself had commissioned from them. Mr Provan's letter conveyed to Mr Knight that the Board had made a decision which read:

Correspondence from prisoner, further incident reports and reports from Professor Mullen and Professor Ogloff considered. The prisoner's request for an indication as to his eventual release date in letter dated 24 May 2012 is refused. The Board considers that there is no prospect for an order for release on parole in the foreseeable future. In the Board's view, the prisoner continues to represent a danger to the community.

**In October 2012 there was a public hearing in this Court, before Macaulay J, of an application by Mr Knight for leave to bring a proceeding by way of judicial review against the Parole Board in connection with the decision conveyed by Mr Provan's letter of 2 July 2012. Macaulay J went on to dismiss the application on 12 March 2013.[105]

102 In summary, I accept the submission of counsel for Mr Money that proposed ground (a) of Mr Knight's originating motion is foredoomed to fail. Mr Knight's contention that there was no sentence plan in place for him at the time of the sentence management panel review of December 2012 is hopeless. Once again, as in Knight v Hastings,[106] Mr Knight's real complaint is that he would like a different sentence plan. Though the correctional authorities may be under a duty to have a sentence plan, determining the particular terms or contents of the sentence plan is a matter for their discretionary judgment. The court has no power to make an order in the nature of mandamus directing correctional authorities to exercise their discretionary judgment as to the terms or contents of a sentence plan in any particular fashion.[107]**

**103 By ground (b), Mr Knight would assert that the panel failed to take into account relevant considerations, namely "the recommendations contained in psychiatric and psychological reports submitted on the plaintiff". In his written and oral submissions, Mr Knight confined himself in this regard to the reports to Corrections Victoria of Professors Mullen and Ogloff.

104 There is absolutely no merit whatsoever in Mr Knight's proposed ground (b). The ground of failing to take into account a relevant consideration can only be made out where a decision-maker omits to take into account a consideration which, by law, the decision-maker was bound to take into account.[108] Mr Knight has not advanced any argument that could establish that the panel was bound, as a matter of law, to take into account the respective recommendations of the two Professors. In any event, it is absolutely clear that the sentence management panel that was convened for the meeting on 6 December 2012 fully took into account the contents of those reports, including the recommendations. They did this both directly and indirectly. The PIMS record of the meeting of 6 December 2012 includes the following sentence:**

The panel discussed the detail of the plan set in August 2012, and the critical issue around the advice provided by Professors Ogloff and Mullen.

In turn, the PIMS record of the August 2012 meeting (being a meeting at which three of the panel members were common to the December 2012 panel) is replete with references to the reports of Professors Ogloff and Mullen. The fact that the December 2012 panel gave careful consideration to the reports of the Professors is further confirmed by the unchallenged affidavit evidence of Mr Money quoted above. Indeed, contrary to Mr Knight's submissions, the decision of the sentence management panel was entirely consistent with the recommendations of the Professors. In the view of the Professors, any move towards the release of Mr Knight on parole could only be "gradual". Certainly, neither of them said, or assumed, that Mr Knight should or would be released on or shortly after 8 May 2014. In any event, of course, the panel was not bound to accept or act upon anything in either of the Professors' reports. The panel was required to exercise its own judgment in performing its own role under the Corrections Act 1986 and the Corrections Regulations 2009.

**105 By proposed ground (c) Mr Knight would assert that he was treated inconsistently when compared with all other prisoners serving a sentence for murder.

106 There was nothing in Mr Knight's 18 page outline of submissions to explain or particularise this proposed ground, save that in a long list of authorities appended to the submissions three cases are cited under the heading "Inconsistency and unequal treatment".[109] At the hearing, Mr Knight told me that he relied on certain paragraphs (beginning with paragraph 58) of his affidavit to support this ground.

107 In those paragraphs, Mr Knight asserts that "almost" all prisoners serving sentences for murder progressed to a medium security prison within one to two years either side of the one-third mark of their minimum term. He also says that, of the 25 years he had served of his sentence, he had spent over 12 years in A1 High Security rated facilities. The remaining years had been spent in A2 Maximum Security facilities.

108 Mr Knight further asserts that only two prisoners currently in the Victorian prison system have served more time in A1 High Security prison facilities than himself. He names them. He says that one had taken a prison officer hostage and the other had murdered another inmate.

109 Mr Knight quotes statistics published by the office of the Victorian Regional Services Commissioner to the effect that as at 30 June 2008 there were 251 male prisoners serving sentences for murder in Victoria out of a total male prison population of 3,985. Mr Knight deposed that he had the 30th highest sentence in Victoria. Of the 29 prisoners with longer sentences, one was being detained at the Governor's pleasure, 11 were serving sentences of life imprisonment with no minimum and the remaining 17 were serving life sentences with minimum terms ranging from 28 years to 35 years.

110 According to Mr Knight's affidavit, of the 45 prisoners serving life imprisonment in Victoria, 44 had had minimum terms set. Of those life sentence prisoners with a minimum term sentence prior to 1989, only Mr Knight himself remained detained in a maximum security prison. Of the 11 prisoners serving life imprisonment with no minimum term, two prisoners were at medium security prisoners - at Fulham Correctional Centre and at Her Majesty's Prison Ararat respectively - and had been since 1999.

111 Mr Knight mentions two other "life" prisoners with higher minimum terms who had been transferred to a medium security prison after 11 and a half years and 10 years respectively.

112 Mr Knight mentions yet another prisoner who was convicted of a "mass shooting" at the Supreme Court that resulted in three deaths and two woundings in 1980. He says that the prisoner was transferred to a minimum security prison in 1987 after serving less than seven years and was released on parole in 2004.

113 Mr Knight claims that in the 55 years since the establishment of the Adult Parole Board of Victoria in 1957, every prisoner convicted of murder and given a minimum term has been released after becoming eligible for parole. (He does not say how long after becoming eligible for parole each was released.)

114 Mr Knight further claims that since the settlement of Victoria in 1836, every convicted murderer who had been given a ticket of "leave" or granted a conditional pardon or a minimum non-parole term has been released. He claims that no prisoner convicted of murder in Victoria has served longer than 27 years and 5 months in prison.

115 Mr Knight refers to the legislative provisions which began on 1 July 1996 and enabled prisoners serving terms of life imprisonment to apply for the fixation of minimum terms. He says that of 119 prisoners serving life sentences for murder as at 1 July 1986, all except three have had minimum terms set and been released.

116 Mr Knight claims to be currently the seventh longest serving prisoner in Victoria.

117 In my opinion, none of this could possibly establish any reviewable error in the decision of the sentence management panel made on 6 December 2012. That panel cannot be called upon to answer for such decisions as may have been made over the years in relation to the placement of Mr Knight within the prison system, much less for any decisions or prospective decisions of the Adult Parole Board.

118 Moreover, an allegation of inconsistency is of no legal moment unless it contributes to a finding of legal unreasonableness in the Li sense.[110] Legal unreasonableness is very difficult to establish. Where so called inconsistency is relied upon, legal unreasonableness will not be established unless, at minimum, the decision under review is plainly inconsistent with other decisions made in respect of circumstances that are substantially similar, if not identical, to those of the decision under review.[111]

119 It would be quite impossible for Mr Knight to establish that the decision of the sentence management panel made on 6 December 2012 was "plainly inconsistent" with other decisions made in respect of circumstances that are "substantially similar, if not identical" to those of that decision. In addition to the matters mentioned above under proposed ground (a), one might note Mr Knight's repeated refusals to move from Port Phillip Prison (which is a maximum security prison) to Marngoneet Prison (which is a medium security prison). Moreover, Mr Knight's case in this regard is completely destroyed by a piece of evidence which he puts forward himself, namely a report to the Adult Parole Board by Professor Mullen dated 25 September 1997, being Exhibit "JK-1" to the affidavit of Mr Knight affirmed on 22 January 2013. In that report, at p 2, Professor Mullen referred to the "uniqueness" of Mr Knight's situation, the "dreadful uniqueness of his crime" and the "uniqueness" engendered by being managed in prison with only limited interaction with other human beings.

120 Again, proposed ground (c) would be utterly hopeless.

121 It follows inevitably that Mr Knight's first application for leave to proceed (the "sentence plan" application) must be dismissed.**

The "transitional centre" application: S CI 2013 2044

**122 Mr Knight's second application for leave was, like the first, commenced by originating motion in the Judicial Review and Appeals List. Once again, the application is for leave to bring a proceeding by way of judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2005.

123 The proposed defendant is the same Mr Brendan Money who chaired the sentence management panel whose decision was the subject of the first application. On this occasion, the decision in question was made by Mr Money in his capacity as a delegate of the Secretary of Corrections Victoria. The delegated power which was being exercised by Mr Money in that way was the power conferred by s 56AC(1) of the Corrections Act 1986. Section 56AC falls within Div 2 (Transfer of Prisoners) of Part 8 (Temporary Absence from Prison) of the Corrections Act 1986. Section 56AC reads:**

56AC Transfers to and from transition centres

(1) The Secretary may, by instrument, direct the transfer of a prisoner from a prison to a transition centre, or from a transition centre to a prison.

(2) The Secretary may only direct the transfer of a prisoner to a transition centre if -

(a) the Secretary is satisfied that adequate consideration has been given to the security and good order of the transition centre and the safety and welfare of the prisoner and members of the public; and

(b) the transfer is to occur not less than 3 months, and not more than 12 months, before the earliest possible release date of the prisoner; and

(c) a transitional activity plan has been developed for the prisoner that identifies the prisoner's rehabilitation or re-integration needs, and that proposes work, community work, education or other programs to address those needs.

(3) Without limiting the factors the Secretary may consider, for the purposes of subsection (2)(a) the Secretary must have regard to whether the prisoner -

(a) has a significant risk of self-harm;

(b) is an active drug user;

(c) has a history of violence;

(d) has a history of sexual offences or other offences that may make his or her presence at a transition centre inappropriate;

(e) has a history of escape, or presents a significant escape risk;

(f) has outstanding criminal charges or other legal or disciplinary matters pending.

124 On 11 March 2013, Mr Knight wrote to the Commissioner of Corrections Victoria in the following terms:

RE: TRANSFER TO JLTC

Dear Commissioner,

I write to you in order to request a transfer to the Judy Lazarus Transition Centre (JLTC).

I meet the mandatory criteria for transfer to the JLTC (according to the Sentence Management Manual):

• I will soon have 12 months left to serve on my sentence (minimum term).
• I have a custodial sentence of more than 3 years.
• I could be classified as minimum security at the time of transfer to JLTC.
• I have no outstanding disciplinary matters.
• I have no current IDU status.
• I have no current suicidal self-harm concerns.
• I have no history of sex offences.
• I have no outstanding court matters.
• I have assessed release needs that can be appropriately addressed in the JLTC.

It has been recommended by Professor Paul Mullen and Professor James Ogloff in their reports to the Adult Parole Board & to Corrections Victoria that I undergo a process of reintegration. Professor Ogloff also recommended that accommodation of a half-way house nature would be beneficial to my reintegration.

I am currently undergoing the High Intensity Violence Intervention Program (VIP) at Port Phillip Prison. This program is due to end in August 2013. At that time I will only have 7 months left to serve before I reach my EED of 8 May 2014. I, therefore, request a transfer to the JLTC on 8 May 2013 (if it is possible to continue attending the VIP at PPP) or once I have completed the VIP.

This letter was replied to by Mr Money, who signed as "Acting Deputy Commissioner, Offender Management Division". The letter read:

Request to transfer to Judy Lazarus Transition Centre

I refer to your letter to the Commissioner of 11 March 2013 in which you requested a transfer to the Judy Lazarus Transition Centre (JLTC).

You assert that you "meet the mandatory criteria for transfer to the JLTC", but this is clearly not the case. You do not have a minimum-security rating and you do not yet have less than 12 months left to serve before reaching your earliest eligibility date for parole.

Further, in light of the Adult Parole Board's statement in July 2012 regarding your poor prospects of parole in the foreseeable future, it does not seem likely that you will be in the final 12 months of your sentence even after May of this year.

It is recommended that you defer further discussion regarding placement options to your next Annual Review.

125 Mr Knight's originating motion filed on 16 April 2013 sets out the terms in which he would plead his application for judicial review if granted leave, as follows:

1. The plaintiff seeks from the Court an order in the nature of certiorari quashing the defendant's decision of 22 March 2013 to refuse the plaintiff's request dated 11 March 2013 for a transfer to the Judy Lazarus Transition Centre, on the grounds that:

(a) The defendant took into account an irrelevant consideration, namely that the Adult Parole Board had stated on 29 June 2012 that there is no prospect of the plaintiff obtaining an order for release on parole in the foreseeable future,

(b) In the alternative, the defendant failed to take into account a relevant consideration, namely that the Adult Parole Board had stated on 29 June 2012 that there is no prospect of the plaintiff obtaining an order for release on parole in the foreseeable future, &

(c) The defendant's decision was unreasonable in that he failed to give proper, genuine and realistic consideration as to the merits of the plaintiff's request according to the relevant eligibility criteria as outlined in section 56AC of the Corrections Act 1986 (Vic), and in the Corrections Victoria Sentence Management Manual.

1. [sic] The plaintiff's seeks from the Court an order in the nature of mandamus requiring the defendant, pursuant to section 56AC of the Corrections Act 1986 (Vic), to consider the plaintiff for a transfer to the Judy Lazarus Transition Centre according to law.

**126 The affidavit filed by Mr Knight in support of his application for leave gave very little clue as to how he would propose to make out his case. He filed no submissions at that stage.

127 On 9 May 2013, an Associate Judge ordered that Mr Money file and serve any affidavits and/or submissions upon which he intended to rely by 26 July 2013.

128 On 26 July 2013, Mr Money filed an affidavit in the matter. He set out his qualifications and experience. As I have mentioned above in connection with the first application, Mr Money is a highly experienced officer of Corrections Victoria. In his then current position, he was responsible for the oversight of the management and placement of offenders within the Victorian prison system.

129 In his affidavit, Mr Money stated that the Judy Lazarus Transition Centre is a transition centre for male prisoners and is a minimum security facility. He said that the power of the Secretary to order a transfer to the Judy Lazarus Transition Centre is set out in s 56AC(1) of the Corrections Act 1986. He referred to the relevant delegation to him from the Secretary. He mentioned the provisions of s 56AC(2), which are set out above. He then mentioned the effect of s 56AC(3).

130 Mr Money deposed that the operating procedures and program and service specifications for the operations of the JLTC were established in a document entitled Commissioner's Requirement - Preparation for release (May 2009). A copy of that document was exhibited to Mr Money's affidavit. He said that that document also provided guidance in assessing eligibility under s 56AC for placement at the JLTC. He said that one of the factors was that the prisoner be suitable for placement in a minimum security community based facility (which includes no pending court matters, no outstanding disciplinary matters, no current identified intravenous drug user status, and no current suicidal self-harm concerns).

131 Mr Money then stated that Mr Knight was currently a B* medium security rated prisoner; and that his security rating had been changed from maximum security to medium security on 14 November 2012.

132 Filed together with Mr Money's affidavit on 26 July 2013 was a set of written submissions prepared by counsel for Mr Money.

133 So far as presently relevant, those submissions contended that Mr Knight's application for leave to bring proceedings had to be dismissed because the application would be foredoomed to fail, and thus be an abuse of process.

134 It was submitted that the application was foredoomed to fail because it did not identify any reviewable error. It was further submitted that there was no power in the Secretary, at the relevant time, to transfer Mr Knight to the JLTC. It was pointed out that s 56AC permits such transfers "not less than 3 months, and not more than 12 months, before the earliest possible release date of the prisoner". At the time of the decision, Mr Knight's earliest possible release date was over 14 months away. It was submitted that, in these circumstances, there was no prospect of establishing error. Further, it was submitted, any application for mandamus was premature and would not be granted.

135 Reference was made in the submissions to s 6A of the Corrections Act 1986, whereby prisoners remain in the legal custody of the Secretary when subject to an order of imprisonment. It was pointed out that a prisoner would remain in the lawful custody of the Secretary while at a transition centre.

136 The document proceeded to set out general submissions concerning the availability of certiorari and the legal principles relating to the grounds of review apparently relied upon, being relevant/irrelevant considerations and unreasonableness. Submissions were also made concerning the principles relevant to the grant of mandamus.

137 More particularly, it was submitted that the proposed proceeding was foredoomed to fail as the evidence disclosed no basis on which any of the grounds of review could be made out.

138 It was pointed out that, in relation to the grounds of relevant and irrelevant considerations, Mr Knight had identified one matter as being both relevant and irrelevant, namely that the Adult Parole Board had stated on 29 June 2012 that there was no prospect of the plaintiff obtaining an order for release on parole in the foreseeable future. It was further pointed out that there was a clear reference in Mr Money's letter to the statement of the Adult Parole Board.

139 As to the allegation that the statement by the Adult Parole Board was an irrelevant consideration taken into account by Mr Money, the submission accepted that it was apparent that Mr Money had taken the statement into account. However, it was submitted that there was no basis on which it could be argued that the statement was an irrelevant consideration, given that:

• Section 56AC(2)(b) of the Corrections Act 1986 stipulates that the Secretary may only direct a transfer to a transition centre if the transfer is to occur "not less than 3 months, and not more than 12 months, before the earliest possible release date".

• Mr Money was (even though not required to) addressing the issue of whether, given that at the time of Mr Knight' application in March 2013, Mr Knight was not yet 12 months or less away from his earliest release date of 8 May 2014, Mr Knight could nevertheless make a decision that, when the 12 month period arrived, it would be appropriate to transfer Mr Knight.

• In any event, the factors that the Secretary or delegate may take into account for the purposes of a direction under s 56AC are unlimited. Section 56AC(3) is introduced by the words "[w]ithout limiting the factors the Secretary may consider for the purposes of sub-s (2)(a) the Secretary must have regard to...". It was submitted that sub-s (2)(a) refers to the mandatory preconditions that the Secretary be satisfied that "adequate consideration has been given to the security and good order of the transition centre and the safety and welfare of the prisoner and members of the public". It was said that the attitude of the Adult Parole Board to the prospects of release of a prisoner may well be relevant to this issue, and was a matter which the statutory scheme would permit the Secretary or delegate to take into account.**

For those reasons, it was submitted that the first ground was foredoomed to fail.

**140 The next ground, which alleged that Mr Money had failed to take into account the statement of the Parole Board as a relevant consideration, was simply contradicted by the terms of the letter. There was no evidence to support this ground, and clear evidence to contradict it. Hence this ground was also foredoomed to fail, according to the submissions.

141 The remaining ground of review was unreasonableness, consisting of an alleged failure to give "proper, genuine and realistic consideration" to the merits of the plaintiff's request according to the relevant eligibility criteria contained in s 56AC of the Corrections Act 1986 and in the Sentence Management Manual.

142 Mr Money's written submissions contended that this third ground was also foredoomed to fail, on the basis that there was no evidence that the Secretary did not give genuine, proper and realistic consideration to Mr Knight's application. Nor, it was submitted, could the decision be characterised as unreasonable in the relevant sense on any other basis. It was said that there was nothing in Mr Money's letter supporting the allegation. Mr Money had gone further than he was required to do and considered the question of transfer, even though Mr Knight was not yet 12 months from his earliest eligibility date for release on parole. Mr Money had considered whether that position might change after May 2013.

143 Further, it was submitted, Mr Money had identified two compelling reasons why Mr Knight did not meet the criteria for the exercise of the discretion to direct a transfer to a transition centre, namely:

• Mr Knight did not have a minimum security rating, whereas the JLTC was a minimum security facility. It was said that the need for a minimum security rating before transfer to a minimum security facility was a reasonable and rational requirement. More generally, it was submitted, the security rating of a prisoner at any given time would be relevant to the questions of "security and good order of the transition centre and the safety and welfare of the prisoner and members of the public" required to be considered under s 56AC(2)(a).

• Mr Knight did not have less than 12 months to serve before reaching his earliest eligibility date. That was a mandatory requirement before a transfer could occur: s 56AC(2)(b).

144 It was further submitted on behalf of Mr Money that it was important to consider that s 56AC involved the Secretary's own satisfaction of the very significant matters of public interest and safety referred to in s 56AC(2)(a). Reference was made to the observations of Osborn J in relation to the grant of custodial community permits in Knight v Adult Parole Board and Secretary, Department of Justice.[112] The Secretary is to remain the legal custodian of the prisoner once transferred: s 6A. This was an onerous responsibility which would not likely be found to have been affected by unreasonableness.[113] It was submitted that, for those reasons, the decision was incapable of satisfying the test for unreasonableness, and that this ground was also foredoomed to fail.

145 Further, it was mentioned in the written submissions that Mr Knight in his affidavit had raised the issue of community custodial permits. The relevance of this was unclear in the context of Mr Knight's request to be transferred to the JLTC. Other sections of the Corrections Act 1986 govern community custodial permits. Mr Knight currently had a separate application on foot to review a later decision of the Secretary refusing him such a permit.

146 In conclusion, it was submitted on behalf of Mr Money that the entirety of the proposed proceeding was foredoomed to fail and would therefore be an abuse of process and that the application for leave should therefore be dismissed.

147 When the matter came on before me on 16 August 2013, Mr Knight told me that he was not ready to proceed with this particular application. He acknowledged that an associate judge had previously directed that this and the "sentence plan" application be heard together, but Mr Knight said that it had simply not been possible for him to prepare to argue the "transition centre" application on that day. It seems that he had not been directed to file any written submissions in the matter. In any event, he had not done so. He applied for an adjournment of the hearing. In the end, after considerable discussion, it was agreed that counsel for Mr Money would speak to her written submissions and make such other submissions as she saw fit; that Mr Knight would essentially just listen to those submissions; and that Mr Knight would subsequently file written submissions in response. It was further agreed that counsel for Mr Money would be at liberty to file answering submissions.

148 When the hearing proceeded, counsel for Mr Money began by adopting her written submissions. She added that it was relevant and appropriate to take into account the attitude of the Parole Board, because the transition centre was very low security and was designed to assist a prisoner who was close to the time of release. It was agreed between the parties that there was only one transition centre in Victoria and that it was for men only.

149 Counsel pointed out that the expression "earliest possible release date of the prisoner" was not defined in the Act. She said that it did not necessarily mean the prisoner's earliest eligibility date for parole. To that extent, a statement from the Parole Board might be all the more relevant.

150 It was noted that s 56AC does not provide for applications but rather for the Secretary to give directions by instrument for the transfer of prisoners. Counsel submitted that this might stand in the way of any grant of relief in the nature of mandamus. On the other hand, counsel accepted that this would not be a problem in relation to certiorari. The section was said to confer a discretion but not to impose any duty to transfer a prisoner. Counsel submitted that the section was more in the nature of a management tool for Corrections Victoria, rather than generating a capacity in prisoners to call for its exercise.

151 Counsel pointed out that the only other substantial references in the Act to a transition centre were contained in ss 4 and 11A. (There is also a cross-referencing definition in s 3). Section 4 is of a technical nature and is of no significance for the present case. Section 11A empowered the Governor-in-Council, by Order, to appoint any premises or place to be a transition centre. The name of a transition centre is to be the name given to it in the Order establishing it. An Order may state the maximum number of people that may reside in the transition centre at any one time. Otherwise, s 11A threw no particular light on the issues arising in the present case.

152 At the oral hearing, neither party had put the letter from the Parole Board into evidence. However, it was agreed that the letter should go in and it was included in the material subsequently forwarded to the Court.[114]

153 Counsel for Mr Money further submitted that information from the Parole Board as to whether or not a person was likely to be paroled on a particular date (such as their earliest eligibility date) might appropriately be taken into account by the Secretary in considering the matters of the security and good order of the transition centre and the safety and welfare of the prisoner and members of the public pursuant to s 56AC(2)(a). If the Parole Board, with its relevant experience, was of the view that the person was unsuitable for release, that was information of potential relevance and significance in relation to the issues to be considered under s 56AC(2)(a).

154 Counsel referred to the fact that, in the document called the Commissioner's Requirement - Preparation for release (May 2009), one of the factors stated is that the prisoner be suitable for placement in a minimum security community based facility. That made relevant Mr Money's observation in his letter of 22 March 2013 that Mr Knight did not at that stage have a minimum security rating. Further, as Mr Money had pointed out in his affidavit, Mr Knight's security rating had only been reduced from maximum security to medium security quite recently, namely on 14 November 2012.

155 The parties agreed that at the relevant time Mr Knight was accommodated in a maximum security facility, namely Port Phillip Prison.

156 Turning to the ground of unreasonableness, counsel submitted that, apart from some background references to eligibility as set out in the Sentence Management Manual, and references to the reports of Professors Mullen and Ogloff, there was nothing in Mr Knight's material to elaborate on the contention of unreasonableness. Counsel reiterated what she had said in her written submissions about the absence of any basis for perceiving unreasonableness in Mr Money's decision.

157 At the hearing, by leave, Mr Knight did make some preliminary oral submissions in reply to Ms Harris' submission.

158 Under the rubric of irrelevant considerations, Mr Knight submitted that the attitude of the Adult Parole Board to a person's prospects of obtaining parole was irrelevant to the correcitonal authorities. Corrections Victoria would still have a duty with respect to the welfare of the prisoner.

159 Alternatively, Mr Knight submitted, if it was relevant for Corrections Victoria to know that a person was not ready to be paroled, then that was not an excuse for Corrections to do nothing but, to the contrary, it should impel Corrections to speed up the process of getting the prisoner ready to be released on parole. That was the sense in which his second ground (failing to take into account a relevant consideration) should be understood. In this respect, Mr Knight asserted that there was a major difference between Professor Ogloff's notion of "gradual reintegration" for Mr Knight and that of Corrections Victoria.

160 Mr Knight expressed concern that if nothing were done by way of transferring a prisoner to the transition centre in a timely way, the prisoner's "window of opportunity" might close.

161 Mr Knight mentioned that the JLTC was a 25 bed facility and solely for male prisoners. By contrast, there were over 5000 prisoners currently in the Victorian prison system. Mr Knight said that he had not been to the JLTC, but understood that the prisoners sent there were largely mid-range, low profile, non-violent offenders such as drunk drivers. He asserted that these prisoners were the least in need of the facility.

162 Mr Knight asserted that to accept that the advice of the Parole Board was a relevant consideration could generate an element of "catch 22" for a prisoner. The Adult Parole Board could say to the prisoner that they would not make a decision about their parole until they had spent time in a minimum security location or transition centre. Then Corrections could say that they would not transfer the prisoner to a minimum security location or the transition centre because they had not been granted parole.

163 Mr Knight then claimed that the position of counsel for the Adult Parole Board in the case before Macaulay J was that no final decision as to parole had been made and that therefore no decision having legal consequences had been made. Mr Knight contended that, in this way, the authorities were trying to "have it both ways".

164 Mr Knight's outline of submissions was ultimately filed on 10 September 2013. The first seven paragraphs of the submission contained nothing new. In paragraph 8, Mr Knight submitted that a prisoner's transfer to a transition centre is not dependent on decisions, recommendations, advice or documentation from the Adult Parole Board.

165 The next two paragraphs do no more than refer again to the terms of ss 11 and 56AC of the Corrections Act 1986.

166 Paragraph 11 contains an extract from the 2007 edition of the Sentence Management Manual containing a profile of the JLTC. This document contains a section on eligibility which had already been quoted in Mr Knight's affidavit of 16 April 2013. The new submission noted that the 2012 version of the Sentence Management Manual contained no reference to the JLTC.

167 In paragraph 12, Mr Knight sets out an extract from the operating principles of Corrections Victoria's Deputy Commissioner's Instruction Number 3.14: Preparation for Release (formerly known as Director's Instruction Number 3.14), as follows (reproducing Mr Knight's emphasis):**

OPERATING PRINCIPLES

Corrections Victoria recognises the need to adequately prepare prisoners for release so that they may have the opportunity to re-establish themselves in a positive manner and reduce the risk of re-offending. As a component of the Corrections Victoria Offender Management Framework, preparation for release commences at reception, forms part of ongoing prisoner case management, and is intensified pre-release.

This procedure details the pre-release period of a prisoner's sentence. This pre-release period typically consists of the final six months of a prisoner's sentence or part thereof - depending on sentence length. However, for long term prisoners with significant transitional needs, the pre-release period may be spread over the final twelve months of the prisoner's sentence.

During this period, staff will be involved in developing and implementing release preparation support and information programs, and will support and encourage prisoners to take the necessary steps to prepare themselves for release.

**168 In paragraph 13 of his written submission, Mr Knight notes that the effect of the Act is that a transfer to the JLTC can only "occur not less than three months, and not more than twelve months, before the earliest possible release date of the prisoner". Mr Knight observes that the Act is silent as to what is to occur if the prisoner is granted parole with less than three months left to serve, or if he is granted parole after he passes his EED.

169 Paragraphs 14 and 15 contain references to the judgment of Holmes J in Barrow v The Chief Executive, Department of Corrective Services.[115] Mr Knight had already referred to this case in relation to the sentence plan application. I have already dealt with it in that context.[116]

170 Paragraph 16 contains tendentious assertions criticising the way in which Corrections Victoria has managed Mr Knight over many past years. It also contains selective references to the reports of Professors Mullen and Ogloff. In any event, it has little or nothing to do with the legal merits of the proposed "transition centre" proceeding.

171 Paragraph 17 merely sets out ground 2(a) of the plaintiff's originating motion.

It is submitted that the APB's decision is an irrelevant consideration as the plaintiff's transfer to a transition centre is not dependent on a decision of the APB, but rather on the plaintiff's EED. In the absence of a decision by the APB that the plaintiff will not be released on his EED, the defendant is bound to take the plaintiff's EED as the relevant date vis a vis an application for a transfer to the JLTC. The APB's position, as asserted in the proceeding Knight v Adult Parole Board (SCI 2012 04155), is that their decision of 29 June 2012 with respect to the plaintiff was limited to the plaintiff's request for a tentative date for release on parole. Additionally, the Board asserted that their decision did not prevent the plaintiff from being released on his EED (see Knight v APB [2013] VSC 97).

**173 Paragraph 19 of Mr Knight's submissions reproduces proposed ground 2(b) of his originating motion.

174 Paragraph 20 of the written submission reads:**

Alternatively, if the Court rejects Ground 2(a), it is submitted that the APB's decision is a relevant consideration as the plaintiff has a legitimate expectation that he will be in a position to apply for release on parole on his EED. The defendant has a statutory duty, pursuant to ss 20(2) & 21(1) of the Act, to rehabilitate the plaintiff and to prepare the plaintiff for release back into the community.

**175 In paragraph 21, Mr Knight cites the part of s 20(2) of the Act to which I have already referred above in dealing with the sentence plan application. In paragraph 22, Mr Knight reproduces the part of s 21(1) of the Act to which I have also referred in the same context.

176 Paragraph 23 of Mr Knight's written submission is as follows:**

Sections 20(2) & 21(1) of the Act impose a positive duty on the defendant, as part of safeguarding the "welfare" of prisoners, to rehabilitate the plaintiff (and every other prisoner), to reduce his risk of re-offending and to prepare him for reintegration back into the community. To suggest otherwise amounts to a proposition that Corrections Victoria has no responsibility for the dangerousness of prisoners released back into the community.

177 In paragraph 24 of the submission, Mr Knight asserts that ss 20(2) and 21(1) of the Act have been relied upon by Corrections Victoria, and have been held by the Supreme Court of Victoria, to provide statutory warrant for certain actions taken by Corrections Victoria, described by Mr Knight as follows:

(a) Application of instruments of restraints on a prisoner

Ref: Binse v Governor, HM Prison Barwon (1995) 8 VAR 508

Binse v Williams [1998] 1 VR 381, 392-394

(b) Restriction on prisoner's access to appeal documents

Ref: Rich v Commissioner Core The Public Correctional Enterprise (Unreported, Supreme Court of Victoria, Cummins J, 18 February 1997)

(c) Application of instruments of restraint on a prisoner during escorts to and from court

Re: Peninche v McDonnell & Secretary to the Department of Justice [1999] VSC 221

(d) Refusal of media request to interview a prisoner

Ref: Herald & Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329, [95]

(e) Imposition of sanctions on a prisoner pursuant to the Victorian Prison Drug Strategy

Ref: Kaufman v Smith & Armytage [2001] VSC 420; (2001) 124 A Crim R 259, 270-272 [41]-[48]

(f) Indefinite detention of a prisoner in a High Security management unit

Ref: Knight v Minister for Corrections [2003] VSC 412; (2003) 145 A Crim R 1, 12 [43]

(g) Imposition of levy on the sale of cigarettes and tobacco to prisoners

Ref: Knight v Secretary, Department of Justice [2012] VSC 613.

**178 Paragraph 25 of the written submissions reproduces proposed ground 2(c) from the originating motion.

179 Nothing further is said in specific support of this ground.

180 There then follow a series of references to principles and cases concerned with certiorari and mandamus in general. These occupy paragraphs 26 to 36 inclusive. In very large part, these references add nothing new or worthy of comment. One exception, perhaps, is the reference to Klavins v Director General, Ministry of Justice.[117] It is true that, as Mr Knight submits, that case has some similarities with the present in that it relates to a refusal of a prisoner's application to the Western Australian Parole Board for work release. Mr Klavins' application had been refused on the ground that he had been classified as a medium security risk within the prison system for reasons to do with prison discipline. Mr Klavins contended that that matter had no relevance to whether the applicant presented a risk to the public should he be allowed to work. However, contrary to Mr Knight's submission, the court did not issue a writ of mandamus in relation to the impugned decision. Rather, the court was satisfied that the allegation by Mr Klavins raised "an arguable issue of law sufficient to warrant the grant of the writ of mandamus". What the judge intended to convey by those words is made clear by the last paragraph of the judgment in which his Honour said that he proposed to grant an order nisi for a writ of mandamus on the specified ground.

181 On 27 September 2013 reply submissions were filed on behalf of Mr Money. It is sufficient to note the following aspects of that reply submission.

182 As to proposed ground 2(a), counsel reiterated that the statement of the Adult Parole Board was relevant, not irrelevant, partly because it is a prerequisite to the exercise of the discretion to transfer a prisoner to a transition centre that the transfer occur not less than three months, and not more than twelve months, before the earliest possible release date of the prisoner: see s 56AC(2)(b). Mr Money had referred to this issue in circumstances where Mr Knight's request was made more than twelve months before his earliest eligible date for parole. Mr Money accepted that, notwithstanding that timing, it would have been open to him to make a decision to transfer Mr Knight at a later date. However, he then concluded that "it does not seem likely" in the light of the statement of the Parole Board that Mr Knight "will be in the final twelve months of [his] sentence even after May of this year". Counsel submitted that this was a rational and relevant consideration.

183 Counsel further submitted that any indications as to when a prisoner may be released are relevant more generally to the exercise of the s 56AC discretion, because the statutory scheme demonstrates a Parliamentary intention that transition centres serve the purpose of facilitating a prisoner's transition from a prison environment to the community upon their release. Counsel provided the explanatory memorandum and the second reading speeches for the Bill which introduced s 56AC. The explanatory memorandum notes that s 56AC "allows" the Secretary to transfer a prisoner. This reinforces the proposition that s 56AC confers a discretion on the Secretary, not an enforceable duty.

184 Further, the second reading speeches note that the amendments give legislative recognition to a new correctional facility to be called a transition centre, and in particular to the establishment and operation of the male Community Transitional Unit (CTU) in West Melbourne. This is the Judy Lazarus Transitional Centre. The speech of the Minister for Corrections also included the following:**

The CTUs were to be supported residential - style facilities that would fill the gap that currently exists between open camp prisons and release into the community.

Residential transition services units or pre-release centres, similar to the proposed Victorian CTU, have operated successfully interstate since early 1980, and internationally since early 1970. ...

The CTU will not be a mini-prison. The CTU will be a non-institutional correctional facility managed by Corrections Victoria that will provide safe and secure custody of its residents while promoting positive behaviour change and responsible, supported engagement in the community.

**185 Counsel submits that these extrinsic materials demonstrate a Parliamentary intention that the transition centre was to provide a facility for transition between existing prisons, and release into the community. The very reference to "transition" in the expression "transition centre" in s 56AC emphasises this point.

186 As to Mr Knight's submission (at paragraph 18 of Mr Knight's document) that the statement of the Adult Parole Board was irrelevant because "the plaintiff's transfer to a transition centre is not dependent on a decision of the APB, but rather on the plaintiff's EED", counsel submitted that it is clear from Mr Money's letter that he did not regard the decision as being dependent on a decision on the Parole Board. Counsel submits that it is also clear from the express terms of the letter that Mr Money considered Mr Knight's EED.

187 As to the matters contained in paragraph 13 of Mr Knight's submissions, counsel submits that it would defeat the statutory purpose to confine the phrase "earliest possible release date" in s 56AC to only the EED. Rather, counsel submits, the "earliest possible release date" may be a date identified by the Adult Parole Board in any case where it makes a determination, after the EED, as to when parole may be granted. If no such date has been identified, the earliest possible release date would then be the date on which the prisoner's sentence expires. It was submitted that such an interpretation enables the provision to be given effect in the widest range of circumstances.

188 Turning to Mr Knight's submissions under proposed ground 2(b), counsel submits that there is no basis for saying that Mr Money did not take the APB statement into account.

189 As to Mr Knight's reliance on ss 20(2) and 21(1), counsel submits that the duties referred to in those provisions would not apply to the Secretary, or delegate, when exercising the discretion in s 56AC of the Act. Rather, those responsibilities are imposed on prison officers and prison Governors, or their delegates, respectively. By contrast, it is submitted, the discretion in s 56AC is imposed on the Secretary (or delegate). The discretionary power conferred by s 56AC is said to be an independent power primarily to be exercised by reference to the matters referred to in s 56AC(3). The Secretary (or delegate) might well also consider matters relating to rehabilitation and reintegration in making decisions under s 56AC, given that the factors in s 56AC(3) are not exhaustive, but, according to counsel's submission, this is as a result of the purpose of providing for transfers in transitioning a prisoner from prison to the community, and not of the operation of any other section of the Act.

190 Finally counsel submits that the "general and unqualified assertion" by Mr Knight at paragraph 16 of his submission concerning the way in which Corrections Victoria has managed the plaintiff over many past years is not relevant to the subject matter of the proposed proceeding.

191 I accept the thrust of the submissions of counsel for Mr Money in relation to the transition centre application.

192 As to proposed ground 2(a), it was plainly not an irrelevant consideration for Mr Money, in determining (on 22 March 2013) Mr Knight's request for a transfer under s 56AC of the Corrections Act 1986, that the Adult Parole Board had stated on 29 June 2012 that there was no prospect of an order for release for Mr Knight in the foreseeable future.

193 The ground of taking something irrelevant into account requires not only that the thing be irrelevant but that the statute forbids its consideration.[118]

194 In my view it is obviously wrong to suggest that the statement of the Parole Board was irrelevant, and utterly hopeless to suggest that the Corrections Act 1986 forbad its consideration.

195 The principal provision of s 56AC of the Corrections Act 1986 is sub-s (1) thereof. It confers a discretion on the Secretary that is not expressly confined by any words in the subsection itself. It is true that sub-s (2) restricts the circumstances in which the Secretary may direct the transfer of a prisoner to a transition centre. However, where those preconditions are satisfied, an open discretion remains with the Secretary. Further, anything logically relevant to deciding whether the preconditions are satisfied is a permissible consideration. That is confirmed by the opening words of sub-s (3), to wit "Without limiting the factors the Secretary may consider".

196 As counsel for Mr Money has submitted, the tenor of s 56AC as a whole relates to "transition". It is directed to the last stages of a prisoner's confinement. Hence, even if the precondition laid down by s 56AC(2)(b) is intended to be assessed by reference only, in the case of a prisoner to whom a non-parole period applies, to that prisoner's EED (an interpretation that seems highly unlikely), nevertheless, in determining whether or not to order the transition of a prisoner in respect of whom that precondition and the other preconditions were satisfied, it would be well open to the Secretary (or delegate) to take into account that, in reality, it was unlikely that the prisoner would be granted parole in the foreseeable future.

197 Accordingly, proposed ground 2(a) would be hopeless.

198 Read literally, proposed ground 2(b) could not possibly succeed, because it is obvious that Mr Money did take into account the statement of the Adult Parole Board.

199 Recognising this, Mr Knight submits that the ground should not be read literally but rather should be read as meaning that Mr Money failed to take into account what Mr Knight contends to be a consequence of the Parole Board's attitude. That consequence, he submits, is that a heightened duty falls upon the Corrections authorities to speed up their preparation of Mr Knight for release on parole.

200 Even on this highly strained interpretation of proposed ground 2(b), it could not possibly succeed.

201 The ground of failing to take into account a relevant consideration applies only where the decision-maker was bound to take the omitted factor into account.[119] As I have already explained, s 56AC confers on the Secretary a broad discretion. Whether or not the Secretary may choose to pay more attention to the rehabilitation or preparation for release of a prisoner regarded by the Adult Parole Board as having poor prospects of parole in the foreseeable future, by no means can it be said that s 56AC obliges the Secretary to adopt such an approach in considering whether or not to transfer the prisoner to a transition centre. In fact, given the tenor of the provisions of s 56AC as indicated above, it may even be that it would not be open to the Secretary to transfer a prisoner in that situation to a transition centre.

202 In any event, it is plain beyond argument that proposed ground 2(b) could not succeed. It would be doomed to failure.

203 Proposed ground (c) asserts that Mr Money's decision was unreasonable in that he failed to give proper, genuine and realistic consideration as to the merits of Mr Knight's request according to the relevant eligibility criteria. I refer again to the observations which I made in dealing with the first application with respect to the concepts of legal unreasonableness and allegations of failure to give "proper, genuine and realistic consideration" to a matter. Despite numerous opportunities, Mr Knight has singularly failed to provide any particulars or any arguments in support of this ground. I accept in substance what counsel for Mr Money says about this ground. In particular, I accept that Mr Money himself in his decision letter identified two compelling reasons why Mr Knight did not meet the criteria for the exercise of the discretion to direct a transfer to the transition centre, as set out in paragraph 143 above.

204 Accordingly, proposed ground 2(c) is also foredoomed to fail.

205 For completeness, I record that, once again, I have not taken into account adversely to Mr Knight any of the recent changes to the Victorian legislative provisions relating to parole. As in the case of the "sentence plan" application, had I not been of the view that the proposed proceeding was doomed to fail in any event, I would necessarily have invited the parties to address me on the significance of those amendments in relation to the grant of any relief.**

206 For all of these reasons, both applications for leave to proceed must be dismissed.

[1] Attorney-General (Victoria) v Knight [2004] VSC 407. Section 21 was repealed from 31 October 2014 by the Vexatious Proceedings Act 2014. As to the applicable transitional provisions, see below.