Plaintiff v Defendant

2 For the reasons that follow, none of the grounds of review have been made out and the proceeding must be dismissed.

3 The plaintiff was sentenced to a term of imprisonment which required him to be kept in prison in the custody of the Secretary to the Department of Justice and Community Safety ('Secretary').[2] He ceased to be in the Secretary's legal custody when he was released on parole.[3]

4 To an important extent, the conditions of his imprisonment were governed by the Act. Section 58E(1) of the Act provides:

58E Emergency management days

(1) The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation -

(a) during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or

(b) in other circumstances of an unforeseen and special nature.

5 It is also relevant to mention reg 100 of the Corrections Regulations 2019 ('the Regulations'),[4] which provides:

For the purposes of section 58E(1) of the Act, the Secretary may reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period by -

(a) in the case of an industrial dispute or an emergency under section 58E(1)(a) of the Act, up to 4 days for each day or part of a day on which the industrial dispute or emergency exists in the prison or police gaol in which the sentence is being served; or

(b) in the case of other circumstances of an unforeseen and special nature under section 58E(1)(b) of the Act, up to 14 days.

6 On 6 July 2020, the plaintiff applied in writing for 430 EMDs on the basis that he had experienced disruption or deprivation as a result of an emergency or industrial dispute. The plaintiff addressed his application to a number of individuals, including the defendant, Ms Westin, who is the Deputy Commissioner of the Custodial Operations Division within Corrections Victoria. In his application, the plaintiff sought 216 EMDs[5] as a result of the disruption caused by the COVID-19 pandemic, for the 108 days that he had been in gaol between 20 March and 6 July 2020.[6]

7 In his application, the plaintiff argued that s 58E of the Act operated to confer an entitlement based on the individual circumstances of a prisoner. Once, so it was said, a prisoner has suffered a detriment due to the disruption or deprivation when compared with the 'standard regime of the prisoner', he or she qualifies for an EMD. Whether a prisoner suffers a detriment of the relevant kind is to be considered both subjectively and objectively on the basis of how the disruption or deprivation was felt by the prisoner seeking EMDs and how it would be perceived by a reasonable prisoner. The plaintiff said that the purpose of EMDs was to maintain the integrity of the sentencing court's decision and sentence. This was said to reflect the fact that when sentencing, the judge will have taken into account how onerous prison is likely to be for the prisoner and if there is a change to the conditions as understood by the judge, then it should be reflected in EMDs.

8 In the plaintiff's application, which was in the form provided to him and covered 11 typed pages, the plaintiff relied on the following matters:

(a) That there had been no disruption or deprivation of out-of-cell time except for two periods of three hours in which the prison was locked down on 20 March and 22 April 2020.

(b) The fact that the cost, type, and availability of some food available to prisoners changed detrimentally, as did the range of items available in the prison shop. He noted that some special dietary items such as soy milk were not readily available.

(c) The reduction or absence of usual services, including dentists, optometrists, and podiatrists. He said prisoners were not being given access to facial masks and hand sanitiser.

(d) In relation to religious observance, he noted that Communal services had been banned and chaplains had only recently been allowed access to prisons due to COVID-19.

(e) That prisoner's had a right under s 47(1)(k) of the Act to a visit of at least 30 minutes each week but that these had been cancelled since 20 March 2020. He accepted that each prisoner had been granted $10 per week phone money to ameliorate the impact and that such '[a]ttempts to ameliorate the impact of a disruption or deprivation may be relevant when determining the calculation of the number of EMDs to be granted'.

(f) That since March 2020 the posting of articles had been prohibited. The plaintiff noted that prisoners had a right under s 47(1)(n) of the Act to send and receive mail. He noted that reg 22 of the Regulations permitted the restriction or prohibition of telephone and written communications during an emergency.

(g) That all education programmes and events; and computer facilities to communicate with Courts had been restricted or cancelled and had, as at July 2020, only recently been partially restored.

9 The plaintiff followed up his request by letters dated 7 August and 24 August 2020. The letter of 7 August essentially repeated the contents of the original application and was also 11 pages. The 24 August 2020 letter was a single typed page and sought an urgent decision on his application.

10 On 21 September 2020, the defendant wrote to the plaintiff addressing most of the specific matters that the plaintiff had raised in his correspondence. In her letter of that day, the defendant referred to the plaintiff's letters of 7 and 24 August 2020 but did not expressly refer to the original application of 6 July 2020.

11 In her 21 September letter, the defendant informed the plaintiff of the following:

• All prisoners are given access to medical and mental health services (I do note that you previously refused a medical escort for treatment on 5 June 2020 and I encourage you to attend medical appointments should you require treatment). Any concerns about your access to medical care can also be raised with Justice Health which has oversight of health services in prison.
• Kangan Institute is currently providing a range of education services including certificates in general education, kitchen operations, commercial cookery and construction.
• Prisoners are provided with weekly access to two pre-paid envelopes (for standard envelopes only) to maintain contact with their family and friends.
• The Hub is still available for prisoner use during out of cell hours with the condition that prisoners request entry at the enquiry window to allow staff to monitor physical distancing requirements.
• Staff from Middleton have confirmed that the education computers are available for prisoners to seek legal information from 7:30am to 4pm on weekdays. The prison has advised that you are accessing these facilities.
• Chaplaincy services are currently accessible remotely via a booking service and can be arranged with staff should you wish to undertake a session.
• Special spends are being processed as normal, including newspapers which continue to be delivered daily and magazine orders which are delivered on Fridays.
• The Office of the Victorian Ombudsman temporarily suspended its phone services for a period of time, however, it is now contactable from Monday to Friday from 10am to 4pm, should you require access to its services.
• In-person attendance by Independent Prison Visitors (IPV) has temporarily ceased due to COVID-19 restrictions and planning has now commenced for the implementation of virtual IPV consultations.

12 On 7 October 2020, in answer to the application, the defendant wrote to the plaintiff in the following terms:

I am writing in relation to your application of 6 July 2020, in which you request to be granted Emergency Management Days (EMDs). In accordance with Commissioner's Requirement 2.3.2, Emergency Management Days, a prisoner may be eligible for EMDs if they are of good behaviour during a period of disruption or deprivation, relating to an emergency. I apologise for the delay in providing you a response to your application.

I note that prisoners residing at Middleton experienced a lock down on 24 July 2020 relating to the COVID-19 emergency. As such, you have already been granted one EMD for this date.

However, the overall disruption or deprivation you have experienced at Middleton has not been significant in the context of the COVID-19 pandemic and so does not warrant the granting of the requested EMDs. Only more significant disruptions, such as being accommodated in a restrictive regime or having your out-of-cell time significantly restricted because of COVID-19, will result in the granting of EMDs. Therefore, your application for additional EMDs is not approved.

I understand that this decision is not your preferred outcome due to the ill health of your wife and needs of your son. However, I remain firm that the level of disruption and deprivation you have experienced during COVID-19 is not significant enough to warrant the granting of EMDs.

13 In paragraph 8 of her affidavit affirmed on 22 November 2021, the defendant deposed:

In his application the plaintiff mentioned the Charter and he mentioned that the restrictions in the prison resulting from the pandemic had meant that communal services were banned and chaplains were prevented from access for a time and were not conducting religious services. From this I was aware that there were some limitations on the plaintiff worshipping and practising his religion in group settings in prison beyond what there normally was at the prison before the pandemic. It is self-evident and I have always been aware that the primary impact of imprisonment is to limit a person's freedom of movement and to deprive them of their liberty - that is one of its purposes. I am also aware that these are all rights that are protected under the Charter and that they can only be limited reasonably and for good reason. However, it was not my decision to impose restrictions on group religious services or to limit the attendance of the chaplains into the prison during the pandemic. Whilst services were unable to occur physically in the prison, chaplaincy services were accessible remotely via a booking service and could be arranged with staff should the plaintiff wish to undertake a session. Nor was it my decision to imprison the plaintiff or to limit his freedom of movement within the prison during the pandemic. I was involved in the discussions leading to some of the decisions made about how the risk of COVID-19 should be managed in the prison, which was based on expert health advice and the decision was made by the Commissioner.

14 As will appear, the plaintiff objected to the admissibility of this paragraph.

15 In his further amended originating motion, which unlike its earlier iterations was prepared by a legal practitioner, the plaintiff relies on the following grounds:

(1) The defendant's decision was infected by jurisdictional error by reason that she failed to evaluate the material before her.

(2) The defendant's decision was unlawful because she failed to give proper consideration to relevant human rights as required by s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), the relevant rights including ss 12 and 14(1)(b) of that Charter.

(3) The defendant's decision was infected by jurisdictional error in that she acted on an incorrect application of the law or the decision was otherwise legally unreasonable, namely by the defendant comparing 'the level of disruption and deprivation' with other disruption and deprivation during the same emergency, rather than comparing it with the ordinary circumstances in that prison.

16 Under cover of ground 1, the plaintiff submits that the decision is infected by jurisdictional error because the decision maker failed to 'evaluate' the material that the plaintiff had placed before her. He submits that the obligation on the defendant to evaluate the material arises as an incident of an obligation to accord procedural fairness or, alternatively, as a free standing obligation which requires a decision maker to respond to a submission of substance.[7]

17 He says that the various matters he had advanced were not referred to by the defendant in her reasons; the reasons were very brief given the length of the application; they were largely taken from a template; and they do not reveal any engagement with the application. Using language taken from a number of cases concerning the Migration Act 1958 (Cth) ('Migration Act'), he says that the issues he raised had not been evaluated,[8] dealt with,[9] or given conscientious consideration.[10]

18 It is not in dispute that the power in s 58E of the Act is subject to an obligation to accord procedural fairness. Although the content of the obligation is a function of the nature of the power and its statutory setting, at a minimum the decision maker has to give a prisoner who seeks EMDs an opportunity to say why he or she should be given one. As a necessary incident of the obligation to accord procedural fairness, where a prisoner makes a submission or submits an application, the decision maker must take into account what the prisoner says.[11] In Dranichnikov, the High Court said that to fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord natural justice.[12]

19 It is at this point where the submissions of the parties diverge. The plaintiff submits that as an incident of procedural fairness, or as a free standing obligation, the decision maker must 'evaluate' the matters raised in his application for an EMD. The defendant submits that there is no obligation to evaluate and that the cases relied on by the plaintiff arise from the specific statutory setting of the Migration Act. The position of the defendant softened somewhat in oral argument when she accepted that the defendant had to 'hear' what the plaintiff had said.

20 In the context of a statutory power, the relevant enactment will often, either expressly or by implication, permit or require the decision maker to have regard to certain matters. Where the requirement to have regard to a matter is mandatory, in the sense that compliance with the obligation is a precondition for the valid exercise of the power, such considerations are often called 'relevant considerations'.[13] In the context of an obligation to accord procedural fairness, the decision maker will generally be required to consider any submission made on behalf of the interested person.

21 The obligation to 'have regard to', 'take into account', or 'consider' the various matters advanced by a person whose interests are liable to be affected are sometimes couched or described in qualitative terms. Thus, in Tickner v Chapman[14] the Federal Court described the process as requiring an active intellectual engagement. The phrase 'proper, genuine and realistic' has also been used in the context of considering relevant mandatory considerations.[15]

22 Such phrases, whether in the context of procedural fairness or the consideration of relevant considerations, may have some utility in emphasising that the statutory task and the decision making process must be one that is undertaken in a genuine rather than tokenistic way. Contrary to the submissions of the defendant, such concepts are not a peculiarity of the Migration Act.

23 However, such concepts are not without risk in the context of judicial review. The role of the Court on judicial review is to determine the lawfulness and not the merits of the exercise of statutory power. Any assessment of whether a decision maker has genuinely engaged with something said on behalf of an affected person can easily slide into an examination of whether the outcome of the decision making was justified or correct. Because any assessment of the extent to which the decision maker 'grappled with' the person's case, to use the phrase adopted by the plaintiff in argument here, will often turn on an assessment of the outcome of the decision and its relationship to the matters advanced by the person, the risk of trespassing on the merits is heightened.

24 Thus, in Swift v SAS Trustee Corporation[16] Basten JA, referring to the phrase 'proper, genuine and realistic', said that taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review.[17]

25 If a plaintiff satisfies a court that a submission that the decision maker was required to take into account was entirely ignored, then error will be established. On the other hand, the weight to be accorded to the submission and whether, and to what extent, any of the matters are accepted by a decision maker, generally goes to the merits and not the lawfulness of the decision. They fall beyond the proper scope of judicial review. Thus, it is not open to a plaintiff to contend that a decision maker failed to evaluate the plaintiff's submission on the basis that the decision maker gave it no weight or failed to accept it.

26 The first point that arises in considering the present argument is one of fact: what did the decision maker take into account and how did the decision maker deal with that material? Often that will be answered by reference to the reasons for decision. It may be discerned both from what is in a set of reasons and what is left out. In Minister for Immigration and Multicultural Affairs v Yusuf,[18] the High Court said, in the context of a statutory obligation to give reasons, that the failure to mention a matter may permit the inference that it was not taken into account. There is no common law obligation to give reasons and where some reasons are provided by a decision maker in the absence of a statutory obligation, the appropriateness of drawing an inference of the kind considered in Yusuf will depend on all of the circumstances.[19]

27 The second point concerns the level of detail that the decision maker must go into when responding to claims and in giving reasons. Issues may arise where some, but not all, aspects of a submission are referred to by the decision maker. It is established that a decision maker does not have to deal with every issue raised by an affected person regardless of its relevance or significance. And a statement of reasons does not have to be encyclopaedic.

29 Although I accept that the defendant had to 'evaluate' the application for EMDs, at least to the extent of considering the matters raised by the plaintiff, I am not satisfied that the defendant failed to have regard to and take into account the matters raised by the plaintiff in his application. I would not draw the inference that the plaintiff invites me to draw merely on the basis that details noted in his application were not referred to in the letter of 7 October 2020. The letter does not purport to be a statement of reasons, as opposed to advising of the decision, and there was no obligation on the decision maker to provide reasons.

30 Further, it is relevant that on 21 September 2020 the defendant had responded to many of the matters raised by the plaintiff in his application and subsequent correspondence. I am not persuaded that the decision maker did not have regard to these matters and indeed, all of the pertinent matters raised by the plaintiff when the defendant came to decide whether or not to grant the plaintiff EMDs. The plaintiff says that the 21 September letter referred to the letters of 7 and 24 August 2020 but did not expressly refer to the original application of 6 July 2020. That is true, but it takes the plaintiff nowhere when the 7 August letter repeated what had been said in the application.

31 Next, the plaintiff says that the defendant in her letter of 21 September 2020 did not refer to the free availability of the prison shop, the lack of access to face masks or sanitiser, and that events were cancelled and these had specifically been raised in the 6 July application and 7 August letter sent by the plaintiff. So much can be accepted. However, even where there is an obligation to give reasons for a decision, that obligation does not extend to referring to every piece of evidence or fact.

32 The letter of 7 October 2020 informed the plaintiff of the outcome of his application. It set out the conclusions reached by the decision maker. In the third paragraph the author referred to the overall disruption or deprivation experienced by the plaintiff. To that extent, the letter referred to the matters raised by the plaintiff in his application, which described the consequences that the pandemic response had inflicted. I am not persuaded that the decision maker ignored or failed to take into account the plaintiff's claims. Indeed, on a fair reading the defendant appears to have accepted the description given by the plaintiff as accurate. There is nothing to suggest that the defendant either ignored or misunderstood the plaintiff's factual assertions as to his experience at the prison. I will return to my understanding of the conclusions reached by the defendant when I deal with ground 3.

33 In reaching that conclusion I decline to draw the inference sought by the plaintiff that the letter of 7 October 2020 was a template. The basis for the inference was that the same language was employed in a decision that was considered by Cavanough J in Dudley v Secretary to the Department of Justice and Community Safety.[20] The facts referred to or found in the judgment of Dudley are inadmissible as evidence in this proceeding.[21] In any event, even if the same language were used in response to multiple applications, it would not necessarily follow that the decision maker had not had regard to the matters raised.

34 It follows that, as a matter of fact, the plaintiff has failed to make out ground 1.

35 Ground 2 in its written form contends that the defendant's decision was unlawful because she failed to give proper consideration to relevant human rights as required by s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 ('Charter'), the relevant rights being ss 12 and 14(1)(b) of that Charter. Section 12 provides that every person in Victoria has the right to move freely within Victoria. Section 14(1)(b) provides that every person has the right to freedom of thought, conscience, religion and belief, including the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

36 In the further amended originating motion the plaintiff refers to ss 12 and 14(1)(b) of the Charter. In his written submissions, the plaintiff identifies as 'relevant' a number of rights provided for in the Charter, namely the right to liberty,[22] the right to freedom of movement,[23] and the right to practice religion.[24] He submits that the defendant was required by s 38(1) of the Charter to give proper consideration to these rights when she made her decision to reject the plaintiff's claim to EMDs.

37 The plaintiff says that these rights were relevant because the effect of the decision was to determine the length of the sentence and for how long the plaintiff would remain in prison. At the least, the defendant had, by the grant of EMDs, the capacity to shorten the term of imprisonment and therefore the period in which the plaintiff would suffer a loss of liberty, and the other restrictions on rights that flow from incarceration. He submits that by reducing the period of the sentence, as permitted by s 58E of the Act, the decision maker could reduce the burden on a number of rights, including liberty, freedom of movement, right to family life, and right to practice religion and that this should have been taken into account.

38 He notes that there was no mention of the Charter in the letter of 7 October 2020 and that paragraph 8 of the defendant's affidavit, referred to above, went no further than to say the defendant was aware of the existence of rights under the Charter and how they are limited in the context of imprisonment. On the basis of that evidence, there had been a breach of s 38 of the Charter.

39 The central point made by the plaintiff was that a favourable exercise of the power in s 58E of the Act would, in the future, operate to reduce the burdens that were imposed on him at the time he applied. So, for example, a decision to grant a prisoner five EMDs by means of reducing the sentence of imprisonment by five days would produce the result that the burden that would have been suffered by the prisoner during those five days, but for the decision, will be removed or prevented from occurring. Self-evidently, the grant of an EMD to take effect at the completion of the sentence or the non-parole date would not alter the present experience suffered by the prisoner as a result of the disruption or deprivation relied on.

40 I note that applying that reasoning is more difficult in the context of a decision to reduce the non-parole period by the number of EMDs granted. In that case, the prisoner would have the opportunity of a favourable decision by the parole board at an earlier point in time, but the decision to reduce the non-parole period would not necessarily bring forward the date of parole. The reduction in the non-parole period may ultimately have no impact on the time the prisoner actually serves in the event parole is delayed or refused by the parole board.

41 And the reasoning is more difficult again where the decision to grant EMDs is made when the prisoner is already on parole. It was common ground between the parties that the power in s 58E of the Act is available even when the prisoner is on parole. Of course, it would make no sense to reduce the non-parole period where the date for parole has already passed. On the other hand, a reduction in the term of the sentence would have the advantageous consequence of reducing the period the person remains on parole. Although it is not clear the extent, if any, that being on parole limits the Charter rights of the prisoner, it will depend on what conditions are imposed in a particular case. I note that no evidence was adduced by the plaintiff as to the conditions imposed on his parole and how the Charter rights were limited during this time.

42 Those difficulties can be put to one side because regardless of whether the decision is made when the prisoner is in gaol or on parole, or the form in which the EMDs are granted, the real question is this: is a decision maker required to have regard to human rights in deciding whether or not to grant an EMD in circumstances where that decision may ameliorate a burden lawfully imposed by the sentence of imprisonment, but will not itself increase that burden? In other words, does s 38 of the Charter require a decision maker to give proper consideration to the rights recognised in the Charter in making a decision that does not itself limit rights? In my view, at least in respect of the rights relied on by the application: liberty, freedom of movement, and freedom of religion, the answer is 'No'.

43 That is not how s 38 of the Charter has been applied or understood. Rather, s 38(1) has been understood to require the following analysis: first, to identify the relevant right; and second, to require the decision maker to consider how that right is or may be adversely affected by the making of the decision. The focus is on the extent to which the proposed decision might limit or infringe upon the identified right. Thus, in HJ (a pseudonym) v Independent Broad-Based Anti-Corruption Commission[25] the Court of Appeal said the following about the consideration obligation in s 38 of the Charter:

For a decision-maker to give 'proper' consideration to a relevant human right in compliance with s 38(1) of the Charter, he or she must: (1) understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision; (2) seriously turn his or her mind to the possible impact of the decision on a person's human rights and the implications for the affected person; (3) identify the countervailing interests or obligations; and (4) balance competing private and public interests as part of the exercise of justification.[26]

44 That analysis cannot be applied here. Section 38 of the Charter does not require a decision maker to consider how he or she can maximise or increase the enjoyment of the rights of the person who may be affected by the decision. The procedural part of s 38 is concerned with decisions that themselves limit or affect rights and ensures that the decision maker gives proper consideration to them before making a decision. The decision under s 58E of the Act was not of that kind.

45 More specifically, in circumstances where the existing limitation on rights confronting the plaintiff was justified by law and arose from the sentence of imprisonment imposed, it is impossible to see how acknowledging the rights conferred by the Charter would have been relevant to the decision. It would have been wrong for the defendant to start from the premise that the plaintiff had a right to liberty, freedom of movement, and the unrestricted ability to practice his religion in company and then see how her decision might advance those rights. All of those rights had been lawfully limited at the time the defendant came to make her decision. Nothing she was being asked to do would further limit those rights. The role of the defendant under s 58E of the Act was not to overcome the burden of imprisonment or to hasten the restoration of the prisoner's freedoms. She was not imposing any new restrictions or limitations on rights and it would be absurd for the decision maker to grant EMDs to reflect a right to liberty or freedom of movement when those rights had already been lawfully confined.

46 In my view, paragraph 8 of the defendant's affidavit, reproduced above, reflects the above reasoning which I consider to be correct. It proceeds on the basis that the defendant turned her mind to the Charter, but in circumstances where any decision she might make would not further limit or reduce rights, the Charter had no role to play.

47 I note that the plaintiff objected to the admissibility of paragraph 8 on the basis that it was an ex post facto attempt to rewrite the reasons. He relied on the judgment of the Court of Appeal in East Melbourne Group Inc v Minister for Planning.[27] In that case, the plurality said that a decision maker who gives reasons even where not bound by statute to do so, should ordinarily be treated as bound by - and confined to - the reasons which the decision maker gives for the decision in question.[28] Their Honours said that the general principle is that a court, when considering the lawfulness of a decision, may admit evidence in quite limited circumstances so as to elucidate, but not fundamentally collide with, the reasons stated by the decision maker.[29]

48 In my view, that approach does not apply where the decision maker does not provide, and is not asked to provide, reasons for the decision. Of course, it is necessary to be cautious in accepting evidence of what a person had in mind after litigation has commenced and the boundaries of dispute marked out. Even the most honest recollection is likely to be influenced by how the decision is viewed and attacked long after the event. In this case, the defendant had not given reasons for her decision in the sense of setting out the material facts and the pathway of reasoning. Further, paragraph 8 of her affidavit is not inconsistent with and does not conflict with the letter of 7 October 2020.

49 In any event, the evidence does not take the matter very far and I would have reached the same conclusion without it. The short point is that s 38 of the Charter was not engaged in making the decision under s 58E of the Act and the fact that the defendant did not apply it did not reveal any error.

51 Under this ground, the plaintiff contends that the defendant's decision was infected by jurisdictional error because the defendant compared 'the level of disruption and deprivation' with other disruption and deprivation during the same emergency, rather than comparing it with the ordinary circumstances in that prison.

52 The plaintiff submits that the defendant made an impermissible comparison when she said that the overall experience at the plaintiff's prison 'has not been significant in the context of the COVID-19 pandemic'. He submits that the context was wrongly assessed by reference to the impact of the pandemic on the whole community, but the relevant impact was that felt by the prisoner. He says that the import of the reasoning is that he had to show not only a disruption or deprivation in the prison, but one that was substantially greater than or 'extraordinary' when compared to the impact overall.

Undertaking that assessment here, it is clear that the decision departs from s 58E. Parliament did not intend to ameliorate the hardship only of those who most suffered during an extraordinary time in prison, nor to have the EMD decision-maker do a more free-ranging assessment of the unimprisoned community to determine whether to grant EMDs. Parliament intended that where there are extraordinary times, the resulting hardship be assessed as against those times which are ordinary. This is not what occurred here. Again, the defendant should be ordered to re-conduct the assessment according to law - that is, relevantly, to consider the hardship compared with ordinary times in prison, not the extraordinary ones of the first global pandemic in a century.

54 This argument calls for an examination of the nature of the power in s 58E of the Act. In short compass, the following propositions apply to s 58E:

(a) Where a prisoner applies for EMDs, the Secretary is under a duty to at least consider the exercise of the power;[30]

(b) The power to grant EMDs is enlivened once the Secretary is satisfied that the statutory preconditions are met;[31]

(c) Satisfaction of the criteria enlivens the discretion but does not give rise to an entitlement in favour of the prisoner or a duty on the Secretary to grant one or more EMDs to the prisoner;[32] and

(d) Both the question of whether the satisfaction of the statutory preconditions are met, and whether EMDs should, as a matter of discretion, be granted, are to be determined by the Secretary having regard to the purpose of the provision, being prison management, and subject to being within the outer limits of reasonableness or legal error, are matters for prison authorities.

55 The power in s 58E of the Act to grant an EMD arises when three conditions are satisfied: the prisoner is of good behaviour; there is a period of disruption or deprivation; and an industrial dispute, emergency, or a circumstance of an unforeseen and special nature arises. When those three things are cumulatively satisfied the section confers a discretion to grant an EMD which will reduce either the non-parole period or the overall sentence, or perhaps both.

56 The section involves an evaluative exercise on the part of the prison authority. Although the grant of an EMD has an ameliorative effect on the length of imprisonment, the purpose of the section is to encourage or reward good behaviour during times of challenge. To the extent that a grant of EMDs compensates for a deterioration of prison conditions compared to some expected norm, it does so as an incident of prison management and not as a reflection of some underlying entitlement. Still less is it an attempt to reflect what the sentencing court might have had in mind at the time the sentence was imposed. It is not, as the plaintiff submitted in his application for EMDs, designed to restore or honour the integrity of the sentence.

57 There are a number of reasons why that is so. First, the section authorises an EMD 'on account of' good behaviour. That is, the power responds to good behaviour. Obviously, where a prison is suffering conditions of disruption or deprivation, prisoners are likely to be under stress and they may react in a way that challenges the good order of a prison. EMDs provide an incentive, in aid of prison management, to encourage good behaviour.

58 Second, if the purpose of the section was primarily to compensate for disruption or deprivation from a particular standard, it is difficult to see why it should be given on account of good behaviour. Poorly behaved prisoners are equally likely to feel the ill effects of the disruption.

59 Third, although sentencing judges routinely take into account the burden of incarceration and may take into account the specific features of a person in assessing the impact of incarceration upon them, once sentence is passed, it is a matter for prison authorities to administer the sentence. Prison management does not proceed on some hypothetical assessment of what the particular judge had in mind in respect of the particular prisoner or prisoners generally. Prison routine and management is governed by the Act and other legislative and common law obligations including the Charter. As a result of either legislative or executive action, those matters may change in a way that may affect favourably or unfavourably on the experience of prison. Such changes do not affect or undermine the integrity of the sentence. The lawfulness of such actions turns on the legislative and executive context rather than on an assessment of whether they accord with or depart from what the sentencing judge may have contemplated. Treating the sentencing reasons or the unexpressed views imputed to the sentencing judge as providing the baseline would also have the perverse effect that EMDs would not be available where the sentencing judge had already factored into account the impact of a particular emergency because the level of disruption would already have been taken into account.[33]

60 Fourth, it accords with the extrinsic materials. Section 58E of the Act repealed a regime of uniform remissions conferred as an entitlement with the present provision that provides a discretion.[34]

61 The next issue is how the level of disruption or deprivation is to be assessed. Critical to the operation of the provision is that the prisoner has suffered or is suffering from disruption or deprivation which connotes some departure from a baseline. Obviously enough, every prison experience will involve a level of deprivation. The prisoner will be deprived of many of the rights, privileges, and benefits that are enjoyed by those who are not incarcerated. Fundamentally, they include a deprivation of liberty and restrictions on movement and association. Section 58E of the Act only applies where the disruption or deprivation arises during a dispute or emergency in the prison or in other special and unforeseen circumstances. Although the section does not say so expressly, it is tolerably clear that it is concerned with deprivation that arises from or is caused by the emergency or special circumstances. That is to say, the requirement that the disruption or deprivation occur 'during' an emergency does not merely stipulate a temporal connection.

62 It was accepted by the plaintiff that s 58E of the Act imposes a discretionary power that is enlivened once the preconditions are met. The proceeding was argued on that basis. In evaluating whether or not to grant EMDs, and if so how many days, involves a matter of judgment. Once the three statutory preconditions are satisfied, it is necessary for the decision maker to consider the level of disruption or deprivation, and that will entail some comparison with the situation that applies when there is no industrial dispute, emergency, or special and unforeseen circumstance that is causing the deprivation or disruption in the prison.

63 There is no bright line that mandates when a level of suffering warrants the grant of an EMD. No doubt, given that the overall purpose of the provision is prison management and to ensure good order within the prison, the decision making process will be influenced by an assessment of the extent to which prisoners will reasonably cope with disruptions to the usual running of the prison or deprivation of rights, entitlements, and benefits that are usually available. A key factor may be the need to ameliorate hardship so as to counter, through offsetting EMDs, frustration, anger and suffering that is likely to be burdensome on prisoners and play out in challenging behaviour or more serious consequences. This assessment of the level of deprivation or disruption, and the tolerance of prisoners for it, will be a product of experience and judgment for those given responsibility for prison management.

64 The focus of the provision is on the impact of an emergency or other circumstances on the operation of a prison. As Cavanough J observed in Dudley, a particular industrial dispute or emergency might be of very brief duration. Whatever the duration, the related disruption or deprivation might be quite minor. Moreover, the disruption or deprivation might have been ameliorated or compensated for in other ways.

65 No doubt, some emergencies will be confined within the prison. Others, such as the COVID-19 pandemic, will have an impact well beyond the prison walls and be felt throughout the community. In the context of an emergency, the impact felt outside the prison and the extent to which burdens are felt across a community are not irrelevant considerations that the decision maker is forbidden from taking into account. So much was accepted by the plaintiff in argument.

66 However, I accept the plaintiff's argument that it would be wrong to reason that because everyone in the community is suffering the effects, and that disruption or deprivation is felt across the board, that s 58E of the Act can have no operation, or that there can be no relevant disruption or deprivation. The section revolves around impacts that are felt within the prison. They are not less burdensome to prisoners because they mirror impacts felt outside. For example, the fact that there is a curfew in the population, or those in the community are confined to their homes and religious services and other gatherings are prohibited, does not mean that the impacts in a prison should be discounted or ignored. Prisoners whose liberty and autonomy are so heavily restricted are more vulnerable to the impact of such deprivations and the suffering just as keenly felt even though they are pervasive.

67 Although I accept, to that extent, the plaintiff's argument about how s 58E of the Act works, I am not persuaded that the defendant misunderstood or misapplied s 58E in the way alleged by the plaintiff. In her letter of 7 October the defendant said:

However, the overall disruption or deprivation you have experienced at Middleton has not been significant in the context of the COVID-19 pandemic and so does not warrant the granting of the requested EMDs. Only more significant disruptions, such as being accommodated in a restrictive regime or having your out-of-cell time significantly restricted because of COVID-19, will result in the granting of EMDs. Therefore, your application for additional EMDs is not approved.

68 As already observed, there was no error in making a qualitative assessment of the level of disruption and the defendant noted that where there had been more significant restrictions, EMDs had been given. Indeed, making some assessment of the level of the impact within the prison was essential to the task. As already noted, a disruption or deprivation may vary in time, intensity, or impact.

69 As the letter of 7 October made clear, the impact of the COVID-19 pandemic within the prison system had not been uniform. The defendant referred to 'more significant disruptions' occurring in prisons in the form of a restrictive regime and a reduction in out-of-cell-time. The Act reposed the relevant power in the Secretary who, together with his or her delegates, are best placed to assess the level and impact of any disruption. The use of the phrase 'significant disruptions' does not demonstrate that the defendant had imposed any arbitrary threshold or that she misunderstood the nature and purpose of the power.

70 The decision did not involve legal error of the kind attributed to the defendant nor was it legally unreasonably. It did not lack an evident and plausible justification. The defendant plainly accepted that the pandemic was an emergency and that it had caused disruption or deprivation. In some cases, including in respect of the plaintiff who had been granted an EMD, the impact was such that it warranted the grant of EMDs. In other aspects it did not. The qualitative assessment made by the defendant in answer to the plaintiff's application was open to her.

72 None of the grounds have succeeded. It is not necessary to entertain the defendant's further submission that a refusal of the EMDs was inevitable and that there was no utility in granting relief because there was some evidence that the plaintiff had not been of good behaviour. Ultimately, as I understood the position, the point was not pressed. It would not have succeeded in the event that I had otherwise upheld any of the grounds. The defendant had not made such a finding, which was inconsistent with the grant of an EMD that was made to the plaintiff; the facts were contested; and there was no evidence that irresistibly compelled the finding that the plaintiff was not relevantly of good behaviour.

73 At the conclusion of the hearing, I was informed that regardless of the outcome the parties had agreed that there should be no order as to costs.

74 The proceeding will be dismissed. There will be no order for costs.

[1] On 25 September 2018, he was sentenced to 4 years and 5 months' imprisonment. His non-parole period expired on 8 June 2021 and his sentence expires on 8 February 2023.

[4] Made pursuant to the express power in s 112(1)(r) of the Act.

[5] On a ratio of two EMDs for each affected day.

[6] He also sought 214 days for an 'industrial dispute' between 19 August 2019 and 20 March 2020 at a ratio of one EMD for each day of disruption. The claim in relation to the alleged industrial dispute was not the subject of complaint in this Court.

[7] SZSSC v Minister for Immigration and Border Protection [2014] FCA 863, [75]-[76], [78]-[81] (Griffiths J) citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, [24] (Gummow and Callinan JJ) ('Dranichnikov') and SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81, [11] (Siopis, Perram and Davies JJ) ('SZRBA').

[8] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, 446 [44], 447 [49]-[50] (Kenny, Griffiths and Mortimer JJ); [2013] FCAFC 114; SZRBA [2014] FCAFC 81, [23]-[24] (Siopis, Perram and Davis JJ).

[9] Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105, [65] (Gordon, Robertson and Griffiths JJ).

[10] Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405, 420 (Einfeld J).

[11] Dranichnikov [2003] HCA 26.

[12] Ibid [24] (Gummow and Callinan JJ).

[13] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40.

[14] [1995] FCAFC 1726; (1995) 57 FCR 451.

[15] The phrase is often traced back to the decision of Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713. See, Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662, 672 [29], 675, [43] (Kiefel, Bell, Keane, Nettle and Gordon JJ); [2017] HCA 8; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48.

[16] [2010] NSWCA 182.

[18] (2001) 206 CLR 323; [2001] HCA 30 ('Yusuf').

[19] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1986] HCA 7.

[20] [2021] VSC 567 ('Dudley').

[21] Evidence Act 2008, s 91.

[22] Charter, s 21.

[23] Ibid s 12.

[24] Ibid s 14.

[25] [2021] VSCA 200.

[26] Ibid [155] (Beach, Kyrou and Kaye JJA) citing Castles v Secretary of the Department of Justice [2010] VSC 310; (2010) 28 VR 141, 184 [185]-[186]; [2010] VSC 310 and Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197; (2015) 48 VR 129, 198-9 [217]-[221], 218-23 [277]-[289], 297-8 [535]-[536]; [2015] VSCA 197.

[27] (2008) 23 VR 605; [2008] VSCA 217.

[28] Ibid 675-6 [308] (Ashley and Redlich JJA).

[30] Dudley [2021] VSC 567, [49]. Although Cavanough J did not express a final view on this question, his reasoning shows why, as a matter of statutory construction and principle, it is correct.

[33] For example in Worboyes v The Queen [2021] VSCA 169, the Court of Appeal explained how the COVID-19 pandemic might mitigate a sentence.

[34] The Corrections (Remissions) Act 1991 repealed s 60 and inserted s 58E into the Act, substantially in its current form. The Explanatory Memorandum to the Corrections (Remissions) Bill 1990 confirmed that it was Parliament's intention to abolish the entitlement to remissions and, instead, provide for a discretion.