Plaintiff v Defendant

1 The plaintiff, Rowan McCabe, is a prisoner at Loddon Prison. He has brought proceedings for judicial review against Melissa Westin, Deputy Commissioner, Custodial Operations, and Phillip Pickering, Operations Manager, of Corrections Victoria.

2 The context for the proceedings is that Mr McCabe was granted access to use of a computer in his cell, for the purposes of education and preparation for legal appeals. He also was a participant in a contact visiting programme approved by Ms Westin under the Corrections Act 1986 (Vic) (the Act) which enabled weekly visits with his family (Contact Visiting Programme). After a routine audit of Mr McCabe's in-cell computer by a prison officer, it was discovered that pornography was stored on it. The computer was seized and he was charged with a prison offence of having misused a computer by storing unauthorised material on it. He was found guilty and fined for that offence at a Governor's disciplinary hearing conducted by Mr Pickering. Following the guilty finding and fine, his access to contact visits with his family were suspended for two weeks in accordance with the terms of the Contact Visiting Programme.

3 Mr McCabe seeks review of decisions said to have been made by both defendants refusing to reinstate his access to the computer. He also seeks review of a decision, that he contends was made by Mr Pickering at the disciplinary hearing, to suspend his access to contact visits. Finally, Mr McCabe challenges the terms of the Contact Visiting Programme, which include a condition that access to contact visits are lost for two weeks where a prisoner is found guilty of and fined for a prison offence.

4 Mr McCabe identifies multiple grounds of review for each decision. He raises issues as to whether the decisions were authorised under the Act, whether the decisions were legally unreasonable, whether he had been denied procedural fairness and whether the defendants had complied with obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). Mr Pickering contends that he did not make reviewable decisions, and alternatively that any decision that he did make was not affected by error. Ms Westin also contends that her decisions were not affected by any error.

5 For the reasons that follow, I have concluded that:

(a) Mr Pickering did not make any decision with respect to Mr McCabe's computer, although he had power to do so. The relief sought in the nature of mandamus compelling him to restore access to the computer is not available at law and I would not in any event make such an order, for discretionary reasons.

(b) There was no error affecting Ms Westin's decision not to restore access to Mr McCabe's computer.

(c) The approval of the Contact Visiting Programme terms was not affected by improper purpose. However, one condition of the Contact Visiting Programme was beyond the scope of the discretionary power in the Act which authorised approval of the programme, when that power is construed in the context of the Act and in particular Part 7 of the Act which governs disciplinary consequences for prison offences.

(d) To the extent that it is necessary to determine the grounds of review relating to the decision resulting in Mr McCabe's loss of contact visits, there was a failure to afford Mr McCabe procedural fairness, but no other error of law.

6 The Act does not expressly confer on prisoners any right to have a computer in their cell. In practice, prisoners have access to shared computers situated in common areas in the prison, such as the prison library or a computer room.[1] There has also for some years been in Victorian prisons a programme pursuant to which prisoners may request permission to have a computer in their own cell, for their personal use for certain specific purposes.[2] The eligibility for and conditions of access to computers are set out in a policy of the Commissioner, Corrections Victoria. The policy in force at the time of the decisions the subject of these proceedings is the Commissioner's Requirement 2.1.2, Prisoner Computer and Gaming Consoles, issued in March 2022 (Commissioner's Requirement 2.1.2).[3] Relevantly, Commissioner's Requirement 2.1.2 stipulates that access to an in-cell computer must be necessary or required for the prisoner's 'legal or educational pursuits, or there are other exceptional circumstances'.[4]

7 Mr McCabe applied for access to a personal in-cell computer in July 2021, and had a personal computer in his cell from about September 2021.[5] The application involved him submitting an 'Application for Access to a personal Computer', an 'Application for Access to Computer Hardware' and a 'Prisoner's Computer Agreement'.[6] The basis on which Mr McCabe sought a computer was identified in the application documents as 'Education', and referred to the Graduate Diploma in Mathematics at Charles Sturt University, which requires use of Maple software, a mathematics program required for his course.[7] Mr McCabe's evidence was that the basis for his application for access to the in-cell computer was also for legal work in connection with appeals.[8] On 17 August 2021, Mr McCabe's application was approved by the General Manager of Loddon Prison.[9]

8 Mr McCabe was also receiving weekly contact visits from his fiancée and young son. After a period during the COVID-19 pandemic when visits had been suspended and subsequently heavily restricted by infection control measures, his visits during 2022 had returned to a weekly two-hour contact visit with his family.[10]

9 On 22 November 2022, the IT Coordinator at Loddon Prison, Scott Stubbings, conducted an audit on Mr McCabe's computer that revealed four pornographic videos stored on its hard drive. Mr Stubbings seized the computer.[11]

10 On 23 November 2022, Mr McCabe was moved from a one-person cell to a two-person cell.[12] Mr McCabe identified this action as having been a punitive response to the incident with his computer.[13] The evidence of the defendants, while not expressly to the effect that this occurred as a response to the incident, was consistent with Mr McCabe's understanding, in that Mr Pickering gave evidence that there is limited availability of one person cells, and prisoners are only able to apply for a one-person cell 'if they have been incident free for a period of three months'.[14] Mr McCabe did not, in any event, make any specific challenge to this action in moving him to a two-person cell, but did rely on it 'as evidence of the matrix of punishments he received'.[15] Mr McCabe was returned to a one-person cell on 22 February 2023.[16]

11 On 27 November 2022, Mr McCabe was issued with a 'Notification of Charge of Prison Offence' and 'Checklist for Disciplinary Officers', which identified his charge as 'misuse a computer, installing inappropriate material' in contravention of reg 56(1)(n) of the Corrections Regulations 2019 (the Regulations).[17]

12 On 5 December 2022, Mr Pickering, who as Operations Manager had been delegated a number of the functions and powers of the General Manager of Loddon Prison (the Corrections Victoria name for the position identified as 'Governor' in the Act),[18] heard the disciplinary hearing. Mr McCabe pleaded not guilty, on the basis that the Notification of Charge document referred to him having 'misused a computer' on 26 November 2022, which was a time after the computer had been seized.[19] In submissions to the Court, Mr McCabe did not dispute that there was pornography on his computer, or that there had been an offence.[20] Mr Pickering, on the basis of evidence from Mr Stubbings at the hearing, found Mr McCabe guilty and imposed a penalty of a fine of $100.[21]

13 Mr McCabe was provided with copies of legal material from his computer on a CD[22] for use in the computers available in the computer room in Loddon Prison.

14 On 24 January 2023, Mr McCabe sent a letter to the General Manager of Loddon Prison, Catherine Darbyshire, who occupies the position of prison Governor under the Act, to request that his computer be returned to him for in-cell use.[23] Ms Darbyshire refused that request[24] and advised Mr McCabe in a letter dated 10 February 2023:

I have considered your request and determined that due to the serious nature of the breach being a level 4 breach, the fact that you had signed a contract and were aware of the consequences of breaching the contract the penalty will remain in place.

You can utilise the stand-alone computers in the education [sic] to continue your studies and work on your legal matters.

15 On 21 February 2023, Mr McCabe sent a letter to Ms Westin, in her capacity as Deputy Commissioner - Custodial Operations, requesting that she overturn the General Manager's decision and return his computer for in-cell use. Ms Westin had powers delegated to her by both the Commissioner, Corrections and, relevantly to this proceeding, the Secretary to the Department of Justice and Community Safety.[25] The Secretary had delegated to Ms Westin powers and functions including the power under s 17 of the Act, pursuant to which the Secretary can exercise all or any powers of the prison Governor or a prison officer.

Reinstatement of in-cell computer - not approved

...

Storing pornographic material in your in-cell computer is considered a Level 4 offence in the Commissioner's Requirement 2.1.2 - Prisoner Computers and Gaming Consoles. As you may or may not be aware, the recommendation for a Level 4 breach is that the prisoner loses all personal in-cell computer privileges whilst in custody for a minimum of three years.

As advised by the General Manager, you are still able to utilise the computers in Education to continue your studies and prepare for your legal matters.

You may reapply for the reinstatement for your in-cell computer at a later date, as I am not ready to re-consider your application. I encourage you to maintain good behaviour and remain incident free during this time.[26]

17 Mr McCabe gave evidence as to the limitations on the time during which he could access the 'public' computers within the prison, and the effect on his studies. As one of the subjects in his Graduate Diploma involved use of the Maple software program, which was installed on his personal computer but not available on the 'public' computers, he withdrew from that subject. He later withdrew from another subject as he fell behind on the work for reasons including a lack of computer time to listen to tutorials and lectures.[27]

18 The two proceedings brought by Mr McCabe were heard together pursuant to an order made by Judicial Registrar Keith earlier in the case management of the proceedings.[28] Given the commonality of issues, the evidence in one proceeding was treated as evidence in the other.[29]

19 A notice under s 35 of the Charter was given by the plaintiff to the Attorney-General for the State of Victoria and to the Victorian Equal Opportunity and Human Rights Commission, to give them the opportunity to intervene under ss 34 and 40 respectively of the Charter. The Attorney-General and the Commission informed the Court that they would not be intervening in the proceedings.[30]

Disclosure regarding previous work for Corrections Victoria and recusal application

20 Before my appointment as a judge of this Court, I had in my practice as a barrister advised officers of Corrections Victoria about matters relating to prison administration and had appeared in legal proceedings for officers holding roles under the Corrections Act. Those officeholders included individuals previously holding the position of Commissioner, Corrections; Deputy Commissioner, Corrections and General Manager of Prisons. I had not appeared for or advised either of the defendants. I had, however, appeared for officers of Corrections Victoria on applications for judicial review relating to access to in-cell computers. Before the hearing, my associates wrote to the parties[31] informing them that I had previously appeared for the Commissioner or Deputy Commissioner for Corrections, most recently in 2016 in the matter of Minogue v Shuard.[32] The email also advised that I had appeared in the following cases involving issues relevant to access to in-cell computers:

(a) Knight v Money [2009] VSC 242 (2 June 2009);

(b) Knight v Wise [2011] VSC 313 (7 July 2011);

(c) Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506 (31 October 2012);

(d) Knight v Hastings; Knight v Wise [2012] VSCA 315 (18 December 2012);

(e) Knight v Wise (No 2) [2013] VSC 339 (28 June 2013);

(f) Knight v Wise [2014] VSC 639 (15 December 2014); and

(g) Knight v Wise [2015] VSC 157 (23 April 2015).

21 At the commencement of the hearing I invited the parties to make submissions on whether I should recuse myself.

22 Mr McCabe submitted that I should recuse myself on the basis that my involvement on behalf of Corrections Victoria in the previous cases would give rise to ostensible bias or the appearance of bias, particularly from the perspective of the prisoner cohort who are 'a very cynical bunch, a lot of them ... towards the justice system in general'.[33] He also submitted that it was relevant that he was challenging the correctness of a judgment involving exercise of powers by Corrections Victoria made 20 years ago, with the consequence that Corrections Victoria had been exercising powers that they were not entitled to exercise. I understood this to be a reference to Kaufman v Smith & Armytage,[34] a case dealing with contact visits, which Mr McCabe had identified in his written submissions as having been wrongly decided.

23 Mr McCabe also raised the potential for conflict of interest if I had friendships or working relationships with the defendants arising from my past work for Corrections Victoria.[35]

24 I advised the parties of the fact that I had no relationship with Mr Pickering or Ms Westin and I could not recall ever having met them. I also advised that I could not recall ever having been involved in advising on any matter relating to Mr McCabe.[36] I brought to Mr McCabe's attention, so that he could make any further submissions, observations made in two authorities relevant to the question of a judge having previously advised or represented a person or entity who or which is subsequently a party in proceedings before the judge. The first was Re Polites; Ex parte Hoyts Corporation Pty Ltd[37] in which Brennan, Gaudron and McHugh JJ stated:

A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party.[38]

25 Their Honours observed that the position would be different, for example, if advice had been given to the former client that was then going to be the subject of or related to the proceedings before them.[39] Re Polites was referred to in Chopra v Department of Education and Training,[40] a decision of McLeish JA, which I also raised with Mr McCabe.

26 I invited any further submission from Mr McCabe in light of the authorities and Mr McCabe confirmed that he maintained his position but did not seek to add anything further.

27 Crown Counsel submitted that the defendants did not have a position on whether or not I should recuse myself, but that this was not a case where I should feel compelled to take that step.[41] Crown Counsel observed that the test of apparent bias is whether a reasonable bystander might apprehend whether I might not bring an open mind to the resolution of the proceeding. The apprehension of a subset of the community, such as prisoners, who might have a particular sensitivity, is therefore not relevant. The relevant bystander would understand that I was doing a job in acting for office-holders of Corrections Victoria, and that I have now taken an oath as a Justice of this Court, and that there would be no apprehension that I might not bring an open mind to the resolution of this proceeding.[42]

28 I ruled that I would not recuse myself from hearing the proceeding. I gave brief reasons for that ruling at the hearing, on which I now elaborate.

29 The test is whether a fair-minded observer might apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide.[43] Applying the test involves two steps: identifying the matter which may lead me to decide the case other than on its legal and factual merits, and then identifying whether there is a logical connection between that matter and the apprehended possible departure from the merits.[44] In this case, the relevant matter is that I have in my practice as a barrister given advice to Corrections Victoria and its officers, and made submissions on their behalf on the issue of access to in-cell computers. It is not a case of an association or interest in the proceeding by reason of personal relationships with the defendants or their representatives,[45] nor through having given advice to Corrections Victoria relating to Mr McCabe.[46] The question is whether my past professional representation of, or general association with, Corrections Victoria and its office holders as client may give rise to a reasonable apprehension on the part of a fair-minded observer that I may decide this matter by reference to past legal positions taken on behalf of Corrections Victoria, rather than on its merits.

30 That fair minded observer is reasonable. The reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice,[47] but is not to be conceived of as a lawyer; the observer is to be regarded as a member of the public served by the courts.[48]

31 The knowledge of the fair-minded observer in assessing the relevant association would include an awareness that I must apply the law, as determined by the Court, rather than by reference to any opinion that I have given or submission that I have made as a barrister. To the extent that I have made submissions or given advice on issues in the proceedings in which I represented officers of Corrections Victoria, and involving issues of access to in-cell computers, the Court has determined the issues in the relevant judgments. It is those judgments that, with other relevant authority, state the law that I must apply to the issues before me. This requirement - that I will apply the law as represented in decided judgments, rather than be guided by prior personal legal opinion or submission I have expressed as a barrister on behalf of a client - is a sufficiently fundamental aspect of judicial method that it is appropriately to be regarded an aspect of the ordinary judicial practice forming the context in which the fair-minded observer forms any view.

32 Further, while prisoners are one component of the community that constitutes the public which are served by the courts, the fair-minded and reasonable observer is not to be imputed with the particular sensitivities of a prisoner who may be cynical towards the justice system. The observer is 'neither complacent, nor unduly sensitive or suspicious'.[49] To attribute the bystander with cynicism as to the administration of justice would distort the perspective of the observer in a way which was neither fair-minded nor reasonable. It would undermine the principles relevant to assessing an apprehension of bias in a similarly inappropriate way to imputing to the observer an expectation that a judge will invariably observe professional restraint, which was a perspective rejected by the High Court in Charisteas.[50]

33 In determining that it was not appropriate to recuse myself, I also took into account the observations of the Court in Re Polites and Chopra v Department of Education and Training.[51] In Chopra, the plaintiff applied for Justice McLeish to recuse himself on the basis that his Honour was the former Solicitor-General for the State of Victoria and that there was 'an obvious conflict' because the Department was his 'former employer' and that he had 'self-granted' to himself the power to be in a position to order costs 'to be paid to the benefit of' that former employer.[52] Justice McLeish declined to recuse himself, observing that he had not at any time advised the State or its entities in relation to a matter which to his knowledge had involved Dr Chopra, nor had he acted in any matter to which he was a party. He also observed, citing Re Polites, and Picos v Servcorp Ltd[53] that:

[I]t is well-established that a prior relationship between a former legal adviser (now a judge) and a client does not, of itself, disqualify the judge from sitting in proceedings where the former client is party.[54]

34 In the absence of any particular features of my prior professional relationship with Corrections Victoria and its office holders, such as acting for these defendants, or in matters involving Mr McCabe or advising on issues which would be the subject of this proceeding, I considered that it was not a basis for a fair-minded observer to consider that I might not bring an unbiased mind to the proceeding.

35 Following the audit of Mr McCabe's computer there was a series of decisions by different decision makers, not all of which were the subject of his judicial review applications. He did not challenge the original decision of Mr Stubbings to seize his computer on 23 November 2022, nor the decision of the prison Governor, Ms Darbyshire of 10 February 2023, to refuse Mr McCabe's request to return the computer to him for in-cell use.

36 The decisions of which Mr McCabe sought judicial review were:

(a) Decisions of Mr Pickering characterised as:

1. The failure to restore the Plaintiff's computer for in-cell use and indefinitely deprive him of it.

2. The decision to take away Contact Visits for a period of 2 weeks.[55]

(b) Decisions of Ms Westin characterised as:

1. The decision not to restore the Plaintiff's computer for in-cell use and indefinitely deprive him of it.
2. The decision as to eligibility for contact and residential visits.[56]

37 Multiple grounds of review were identified for each of the decisions.

38 I will address the issues arising by reference first to the issue of access to the in-cell computer, and the identified decisions of each defendant on that issue, then turn to the matters relating to contact visits which are challenged by Mr McCabe.

Access to computers for personal use by prisoners in their cells

39 The legal framework for the grant to prisoners of access to in-cell computers has been the subject of a significant volume of judicial consideration. It is a subject of some complexity,[57] and involves reference, in addition to the Act and the Regulations, to policy documents in the form of Commissioner's Requirements which have been used to regulate the terms of access.

40 It is useful, before considering the nature of the challenges made by Mr McCabe to the decisions made by Mr Pickering and Ms Westin, to consider the source of the statutory power by which prisoners may be granted access to a computer for their personal use, in their own cell, and the policy framework which has been used to guide the exercise of that power. An understanding of the source of power is particularly relevant given submissions for the defendants that there are limits on reviewability of these decisions.

41 Section 47 of the Act lists a number of specific rights of prisoners. It is established that those rights do not encompass the right to have access to a computer in a prisoner's cell.[58] The rights identified in s 47 are, however, expressly stipulated to be in addition to, and do not affect, any other rights a prisoner has under the Act or at common law.

42 The Regulations also provide by reg 33 for the Commissioner to submit to the Secretary annually lists of privileges for approval. Both the Commissioner in submitting the list and the Secretary in approving the list must consider the management, good order and security of the prison: reg 33(4), (7). The significance of these privileges is that they are relevant to the disciplinary process provided for in s 53 of the Act, and may be removed as a penalty following a Governor's disciplinary hearing.[59]

43 Whether an in-cell computer is a privilege for the purposes of reg 33 and the Act depends on the terms of the list approved annually. In 2007, in Rich v Secretary to the Department of Justice it was held that access to an in-cell computer was not a privilege, on the basis that it was not identified in a list produced at the hearing as the relevant list approved under reg 33.[60] Subsequently in 2011, Hollingworth J considered the 2010 List of Privileges, a different list to that considered in previous cases.[61] Her Honour held that a reference in the List to 'access to computers or electronic games consoles and associated software', which was silent as to whether that access was to be provided in-cell, out of cell or both, could arguably be construed as encompassing a privilege of access to an in-cell computer.[62] The status as a privilege gave rise to at least a legitimate expectation to have an application for an in-cell computer considered in accordance with the relevant policy guidelines.[63] Subsequently, Kyrou J,[64] the Court of Appeal,[65] and Emerton J[66] in different cases considered the 2012 List of Privileges which referred to access to 'all in-cell electrical appliances (other than radios, fan, jug and shaver)' and access to 'shared unit computers and electronic games consoles'. In each judgment it was concluded that the existence of the specific privilege relating to shared unit computers precluded the reference to 'in-cell electrical appliances' being construed as encompassing an in-cell computer.[67] The same conclusion was reached with respect to the identically-worded 2013 List.[68]

44 The List of Privileges for 2022, the time relevant to the seizure of the computer and the decisions of Mr Pickering on the Governor's disciplinary hearing, was before the Court.[69] It is a schedule to the Deputy Commissioner's Instructions 2.3.3 - Disciplinary Process and Prisoner Privileges and stated, relevantly:

Pursuant to regulation 33 of the Corrections Regulations 2019, the Secretary of the Department of Justice and Community Safety, has approved the following list of prisoner privileges for 2022:

...

(e) Access to all in-cell electrical appliances (other than a jug/kettle, radio and fan, subject to note #3, below)

(g) access to shared unit computers and unit electronic games consoles.

Notes

...

1. In relation to paragraph (e), a Disciplinary Officer or a Hearing Officer at a General Manager's Disciplinary Hearing, will be able to consider removing a jug/kettle, radio or fan, if the jug/kettle, radio or fan is misused or deliberately damaged.

45 The reference in the list to access to computers is only to 'shared unit computers', and in accordance with the authorities referred to above, must be read to limit the more general reference to in-cell electrical appliances. It remains the case therefore that there is no reg 33 privilege which encompasses access to an in-cell computer.

46 In the absence of any statutory right or privilege to have access to an in-cell computer, different conclusions have been reached in the past as to the statutory basis on which such access is granted. Justice Byrne's conclusion when considering, in 2009, the basis for the grant of access to an in-cell computer, was that there was no statutory or regulatory foundation for it 'other than perhaps the role of the secretary of the Corrections Department as the person charged with the custody of the prisoners'.[70]

47 More recently in 2014, Justice Emerton in Knight v Wise[71] concluded that the responsibilities of the prison Governor under ss 20 and 21 of the Act with respect to the management, security and good order of the prison, and the safe custody and welfare of the prisoners, with their corresponding duties and implied powers,[72] were the source of the powers to permit access to an in-cell computer. Her Honour, having referred to ss 20 and 21, observed:

As a consequence, a prison Governor has a broad power to regulate the contents of a prisoner's cell, including to permit a prisoner to have an in-cell computer or to refuse permission for an in-cell computer, in the course of the discharge of his or her duty to manage the prison, and to provide for its security and good order and the safe custody and welfare of the prisoners.

Pursuant to s 17 of the Act, the Secretary to the Department of Justice has all of the powers of a prison Governor under the Act and may exercise those powers. Pursuant to s 8 of the Act, the Secretary may delegate his or her powers and functions. The Secretary has delegated the s 21 powers and functions to the defendant as Deputy Commissioner.[73]

48 In Minogue v Falkingham[74] Macaulay J expressed the same view as to the source of the power to grant access to a computer, and referred also to the powers in Part 5 of the Regulations to authorise entry of property into prisons.

49 This understanding of ss 20 and 21(1) of the Act as empowering the grant of access to an in-cell computer, sits more comfortably with regulation of property within the prison and in particular within a prisoner's cell, in my respectful opinion, than to understand it as arising from the Secretary's formal custody of prisoners. The relevant Corrections Victoria policy, Commissioner's Requirement 2.1.2, is consistent with this understanding, in allocating the power to make decisions with respect to an in-cell computer to Governors and Deputy Commissioners,[75] who hold the powers of Governors through the process of delegations referred to by Emerton J in Knight v Wise.[76]

50 Justice Byrne observed in Knight v Money that 'permission to purchase a computer and to have it in the cell is not a right in any sense of the word. It is more to the nature of an indulgence which may be accorded a prisoner where this is considered appropriate'.[77] This remains the case under the Act and Regulations as currently in force.[78] It is however an indulgence which can be granted or refused through the exercise of a discretion sourced in specific statutory powers - ss 20 and 21(1) of the Act. That discretion is, as described below, the subject of specific and comprehensive guidance in the form of Commissioner's Requirement 2.1.2. There may also be circumstances in which other rights with a statutory or a common law basis - such as the right of access to the courts, or the right to a fair hearing[79] - may potentially intersect with the otherwise purely discretionary statutory basis for granting access to in-cell computers. That may mean that access to an in-cell computer for a specific purpose could in those circumstances take on more of the characteristics of a right, or be a necessary ancillary to satisfying another right.

Corrections Victoria policy governing access to in-cell computers

51 Applications for and the conditions of access by prisoners to a computer in their cell are the subject of the Commissioner's Requirement 2.1.2. Ms Westin's evidence was that officers are obliged to implement Commissioner's Requirements save to the extent that the policies are inconsistent with statutory functions or duties.[80] Mr Pickering's evidence was that he could not depart from Commissioner's Requirement 2.1.2 without the permission of a General Manager or Deputy Commissioner.[81]

52 Ms Westin gave evidence that Commissioner's Requirement 2.1.2 was 'issued under s 8A of the Corrections Act 1986'. The defendants' submissions referred more generally to it having been issued under the Act.[82] Section 8A(1) provides for the Secretary to employ a person to be the Commissioner. Section 8A(2) provides:

(a) assessing performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders; and

(ab) the performance of functions under the Serious Offenders Act 2018; and

(b) exercising any other functions relating to correctional services that the Secretary may determine from time to time.

53 The evidence and submissions did not identify which aspect of s 8A was said to authorise the making of Commissioner's Requirement 2.1.2. The focus of s 8A(2)(a) on 'assessing performance in the provision of all correctional services'[83] does not readily encompass the setting of policy which is intended to regulate and guide the performance of correctional functions under the Act. Section 8A(2)(ab) not being relevant in this context, it would appear that it is s 8A(2)(b) which is relied on as the source of the power. While there was no evidence in this proceeding that the Secretary had determined that the Commissioner should exercise a function of issuing policy documents including Commissioners' Requirement 2.1.2, the validity of that policy was not put in issue in this proceeding. I proceed on the basis that the Commissioner had the necessary authority to issue Commissioner's Requirement 2.1.2.[84]

54 The use of instruments such as Commissioner's Requirements and Deputy Commissioner's Instructions to state policy with respect to prison management and guidance for the exercise of functions, powers and discretions under the Act and Regulations is appropriate for transparency and consistency in decision making.[85] That is subject to the requirement that policies must be consistent with the statutory scheme, must not be directed to a purpose which is extraneous to the purposes of the discretionary powers to which they are directed, and must not inappropriately limit the range of the statutory discretion.[86]

The relevant contents of Commissioner's Requirement 2.1.2

55 Commissioner's Requirement 2.1.2 provides for the circumstances in which prisoners can be granted access to an in-cell computer, and the conditions on which such access is granted and removed. It provides, relevantly, that:

2.2 Prisoners may have a personal computer and related hardware in their accommodation where it can be demonstrated that there is a genuine educational or legal requirement, or in exceptional circumstances, such as where access to an 'in-cell' computer is seen to be crucial to the prisoner's sentence plan and rehabilitative needs or where access to a shared computer is limited and the prisoner's privacy may be unreasonably compromised.[87]

56 The eligibility criteria for access to an in-cell computer are identified. In relation to legal use, the criteria include that the prisoner has an outstanding criminal legal matter or outstanding criminal appeal and the computer is 'necessary for the preparation of a case/defence'. In determining whether the prisoner needs a computer for outstanding criminal matter, the decision-maker will consider the seriousness of the charges, the need to access an electronic version of a brief of evidence, depositional or other court-related material, and the sensitivity of that material. In relation to educational or training use, the criteria include that the prisoner has approval to engage in an education programme, either full-time or part-time, and the course cannot be facilitated on the prison system. Commissioner's Requirement 2.1.2 also sets out a number of requirements as to the manner in which in-cell computers can be used, including stipulations as to approved software.

Failure to comply with these guidelines will result in the General Manager withdrawing a prisoner's access to a personal computer.

...

Where a prisoner has been found guilty of a computer related prison offence, the Hearing Officer may authorise the removal of the computer from the prison and withdrawal of the prisoner's computer privileges. Refer to Commissioner's Requirement 2.3.3. - Disciplinary Process and Prisoner Privileges. Guidelines for the length of time of withdrawal or permanent withdrawal of a computer are provided ... in Computer Offence Levels.[88]

58 The 'Computer Offence Levels' stated in Commissioner's Requirement 2.1.2 are five categories as to the level and severity of a breach of the Requirement, level 5 being the most severe. Level 4 applies to 'password protected files, non-approved programs, pornographic video and/or picture files'. The prescribed recommendation for a Level 4 breach is 'that the prisoner loses all personal in-cell computer privileges whilst in custody for a minimum of three years.'

Other Corrections Act provisions relevant to the in-cell computer access issues

59 Section 45 of the Act provides, relevantly, that the prison Governor may at any time order a prison officer to search any part of the prison, search and examine any thing in the prison, and that this may be done at random.

60 Section 46 provides for prison officer powers in relation to seizure:

(1) In carrying out searches under sections 44 and 45 a prison officer may seize any one or more of the following -

(a) any thing found in the prison, whether in a person's possession or not, which the prison officer believes on reasonable grounds jeopardizes or is likely to jeopardize the security or good order of the prison or the safety of persons in the prison;

(ab) ....

(b) any thing found on a prisoner or in a prisoner's possession, other than a thing which the prisoner is authorized to wear or to possess under Division 4, the regulations, or a direction of the Governor;

(2) A prison officer or an escort officer who seizes any thing under subsection (1) or (1A) must immediately inform the Governor.

(3) A Governor must deal in accordance with the regulations with any thing, which is not a drug of dependence, and is seized under this section.

61 Regulation 94 provides for how seized property is to be dealt with:

94 Dealing with things seized - general requirements

(1) For the purposes of sections 46(3) and 55H(2) of the Act, a Governor or the Secretary (as the case may be) must deal with a thing seized under those sections in accordance with this regulation.

...

(4) If any other thing is seized, the Governor or the Secretary must direct that the thing is dealt with by one or more of the following ways -

(a) retention of the thing as evidence;

(b) disposal of the thing in a manner allowed by law;

(c) return of the thing to the owner of the thing (if reasonably practicable);

(d) declaration of the thing as forfeit to the Crown if the thing was involved in the commission of a criminal offence;

(e) dismantling of the thing in a manner allowed by law;

(f) dealing with the thing in a manner that is appropriate to the nature of the thing and the circumstances under which it was seized;

(g) if the thing is seized from a prisoner - storage of the thing as a part of the prisoner's property.

62 The outcome of the disciplinary hearing of the prison offence charge following the seizure of Mr McCabe's computer was central to Mr McCabe's submissions. The Act and Regulations deal in detail with the investigation and hearing of prison offences in disciplinary hearings.

63 Section 50 of the Act provides for the procedure if a prison officer suspects a prisoner has committed a 'prison offence' (defined by s 48 as 'a contravention of this Act or the regulations'). The officer must, pursuant to s 50(1), report this fact to a disciplinary officer (who is a prison officer appointed as a disciplinary officer by the Secretary pursuant to s 49). The disciplinary officer must investigate the offence and give the prisoner an opportunity of making an explanation: s 50(2). If after investigation the disciplinary officer is satisfied that no offence has been committed, the disciplinary officer must take no further action, and if satisfied that it is trivial, may take no further action: ss 50(3) and (4). If the disciplinary officer is satisfied that the prisoner has committed a prison offence, the disciplinary officer may, under s 50(5) of the Act, reprimand a prisoner, withdraw one of the prisoner's privileges for less than 14 days, or charge the prisoner with a prison offence.

64 If the prisoner is charged, the Governor then has discretion under s 51 of the Act to refer a matter back to the disciplinary officer to deal with the matter under s 50(5), proceed to hear the charge or refer to the matter to another Governor for hearing, or take steps to have the matter dealt with under the criminal law.

65 Section 53 of the Act provides for the conduct of Governor's hearings and provides, relevantly:

(1) If a charge is to be heard by the Governor of the prison or by another Governor, the Governor of the prison must -

(a) not less than 72 hours before the hearing; or

(b) if the Governor and prisoner agree to a shorter period, within that shorter period; or

(c) if the prisoner is due to be discharged from prison within 7 days of the alleged prison offence occurring or if, in the opinion of the Secretary, a period of notice shorter than 72 hours is necessary for the security or good order of the prison, within the period determined by the Secretary -

give notice to the prisoner of the time, date and place of the hearing.

...

(4) If at a Governor's hearing the Governor finds that the prisoner is guilty of the prison offence or the prisoner admits the truth of the charge, the Governor may impose any of the following penalties -

(a) a reprimand;

(b) a fine not exceeding 1 penalty unit;

(c) withdrawal of one or more of the prisoner's privileges for a period not exceeding 14 days for each prison offence committed, but not exceeding in total 30 days;

* * * * *

(5) The payment of fines imposed under subsection (4) may be recovered by deduction in accordance with the regulations from moneys payable to, or held by or for, the prisoner.

(6) For each prison offence committed the Governor must not under subsection (4) impose more than one of the penalties listed in that subsection.

66 In addition to a 'prison offence' being defined generally in s 48 to be a contravention of the Act or Regulations, certain prison offences are also defined specifically by reg 65 of the Regulations. Relevantly, reg 65(1)(n) provides that a prisoner must not:

... misuse a computer or any other electronic equipment accessed by installing, using or possessing hardware, programmes, software or other material that is not approved by the Commissioner...

67 This is the offence with which Mr McCabe was charged and of which he was found guilty in the Governor's hearing.[89]

68 The Regulations in regs 67-74 also detail the procedure for a Governor's hearing. Relevantly to this proceeding, the Regulations provide for recording the outcome of the hearing.

1. Steps to be taken once Governor has made a decision at the disciplinary hearing

(1) If at the disciplinary hearing the Governor finds a prisoner guilty of the prison offence, the Governor must -

(a) inform the prisoner of the Governor's decision; and

(b) record in the form determined by the Secretary -

(i) the Governor's decision; and

(ii) the penalty imposed (if any); and

(iii) the prisoner's admission of guilt (if any); and

(c) if applicable, authorise in writing the payment of any fine imposed under section 53(4)(b) of the Act from the money held on behalf of the prisoner in the prisoner's prisoner trust account; and

(d) if paragraph (c) applies, record the Governor's authorisation.

Decisions alleged to have been made with respect to computer access

69 The decisions relevant to Mr McCabe's computer access which were the subject of his applications for judicial review were identified as:

(a) Mr Pickering's 'failure to restore the Plaintiff's computer for in-cell use and indefinitely deprive him of it'.[90]

(b) Ms Westin's 'decision not to restore the Plaintiff's computer for in-cell use and indefinitely deprive him of it' (Westin Computer Decision).[91]

70 Mr McCabe did not challenge the original decision of prison officer Stubbings to seize the computer. He accepted that 'the seizure was legitimate ... that I can get fined $100 ordinarily ... that I'm guilty ... [t]hat pornography can be a security risk to the gaol ... to the good order and management of the gaol. There's no dispute about those issues at all'.[92] This was an appropriate concession given the breadth of the powers of search and seizure referred to in paragraphs [59] and [60] above.

71 There was no evidence as to exactly what had been done with the computer on its seizure. Mr McCabe did not take issue specifically with how his computer had been dealt with, other than to challenge the outcome that it was not returned to him for in-cell use. It can be inferred from the evidence as to the requests made by Mr McCabe for the return of the computer to him in January and February 2023, and the responses to the effect that the computer would not be returned at that time, that the computer was available to be returned to him when a decision was made to do so. There is no evidence that any direction was made at the Governor's disciplinary hearing as to how the computer would be dealt with (even though Commissioner's Requirement 2.1.2 identifies that possibility).[93] In the absence of any contrary evidence, I infer that the most probable outcome was that the computer was, following seizure, stored in Mr McCabe's property in accordance with a direction made by the Governor or a delegate pursuant to reg 94(4)(g).

72 The grounds of review identified by Mr McCabe with respect to his computer access in the Pickering proceeding were as follows:

Ground 5 - The Defendant's decision not to restore the Plaintiff's computer for in-cell use was incompatible with his human rights, without lawful excuse, such being contrary to law and constituting jurisdictional error

GROUND 6 - further to Ground 5, the Defendant's decision not to restore the Plaintiff's computer for in-cell use was made for an improper purpose, resulting in jurisdictional error

GROUND 7 - The Defendant failed to give proper consideration to multiple relevant human rights in his decisions, resulting in procedural unfairness and jurisdictional error

Ground 8 - If the Defendant purports to have made his decision for a lawful purpose, such was unreasonable in the legal sense

73 As elaborated in his submissions, these grounds of review could be understood as raising errors of four kinds:

(a) whether there was lawful authority for the decision not to restore (or failure to take steps to restore) Mr McCabe's access to his computer;

(b) whether the decision not to restore or failure to restore the computer was for an improper purpose of punishment;

(c) whether there was a failure to take into account human rights as required by s 38 of the Charter;

(d) whether the decision not to restore or failure to make a decision to restore the computer was legally unreasonable.

74 However, there is a preliminary issue to be considered, which is raised by the defendants' response to these grounds. That is whether there was in fact any decision made by the defendant Mr Pickering, or any reviewable exercise of power on his part.

Mr Pickering's authority with respect to the computer

75 Mr Pickering, Operations Manager at Loddon Prison, was the prison officer who heard and determined the Governor's hearing of the prison offence with which Mr McCabe had been charged. The General Manager, Ms Darbyshire, had delegated to Mr Pickering functions and powers of the General Manager (Governor under the Act).[94] These were, relevantly, powers under ss 19, 21, 22A of the Act dealing with the management good order and security of the prison; powers relevant to visits in ss 37 and 38(3) of the Act; powers under ss 45, 46(1), (2) and (3) of the Act dealing with search and seizure; and the powers with respect to prison offences in s 51, 52 and 53 of the Act. Powers and functions under the Regulations had also been delegated, including those under reg 94(4) relating to dealings with seized items.[95]

76 Mr McCabe gave evidence that at the disciplinary hearing:

... Mr Pickering stated that "the computer, don't even ask about getting that back for at least 12 months". Nonetheless I brought up that I had pending legal matters, including a conviction appeal at the High Court. His response was to "organise a meeting with Mr Stubbing in relation to my legal"

I also stated that I relied upon the computer for my distance education, being a Graduate Diploma in Mathematics - Computer Aided. I mentioned that there was a maths specific program that I needed for the course. There was no comment in relation to my computer situation.[96]

77 Mr Pickering's evidence was that he did recall that during the hearing of the prison offence charge, Mr McCabe had raised with him 'the fact that he needed his computer for a legal proceeding he was pursuing and an educational course that he was enrolled in', but that he could not recall what he said to Mr McCabe.[97] His evidence was, however, that he had no authority to make any decision:

... I did not have any authority at this point to have his computer returned because he had breached his "prisoner's computer agreement" with a Level 4 Computer Offence under Commissioner's Requirement CR 2.1.2. That meant only the General Manager or Deputy Commissioner could authorise a return of the computer. Commissioner's Requirements are policy documents issued by the Commissioner that apply in all prisons and I could not depart from it - only the General Manager or Deputy Commissioner could authorise that decision.[98]

78 In submissions on behalf of Mr Pickering, it was said that:

The evidence establishes that Mr Pickering did not decide, or instigate or authorise another, to seize the plaintiff's computer, nor was the decision not to reinstate the plaintiff's computer for in-cell use made by Mr Pickering.

...

Further, to the extent that the plaintiff seeks to impugn a purported failure by Mr Pickering to make a decision to restore the plaintiff's computer for in-cell computer use, such an assertion is doomed to fail in circumstances where Mr Pickering had no duty nor any power to make such a decision.[99]

79 Mr McCabe submitted that because Mr Pickering was the presiding General Manager or delegate at the Governor's hearing under Part 7 of the Act, he had authority under Commissioner's Requirement 2.1.2, which provides:

Where a prisoner has been found guilty of a computer related prison offence, the Hearing Officer may authorise the removal of the computer from the prison and withdrawal of the prisoner's computer privileges. Refer to Commissioner's Requirement 2.3.3 - Disciplinary Process and Prisoner Privileges. Guidelines for the length of time of withdrawal or permanent withdrawal of a computer are provided to in [sic] Computer Offence Levels.[100]

80 Mr McCabe also submitted that Mr Pickering had the delegated powers of the Governor under s 46(3) of the Act, requiring the Governor to 'deal in accordance with the Regulations with any thing, which is not a drug of dependence, and is seized under this section'.[101] He also had the powers under reg 94(4) of the Regulations which identifies how seized property is to be dealt with, including (at reg 94(4)(c)) by 'return of the thing to the owner of the thing (if reasonably practicable)'.[102]

81 In addition to this, Mr Pickering had the powers under ss 20, 21 and 22A of the Act, relevant to the management, security and good order of the prison and safe custody and welfare of prisoners. As discussed above, those powers are also the source of the power to permit a prisoner to have a computer in their cell.

82 Mr Pickering did, therefore, have delegated powers of the prison Governor under the Act and Regulations which would have enabled him to make decisions as to whether Mr McCabe's computer could be returned. I do not accept that Mr Pickering had no authority to make any decision on that issue. As submitted by Mr McCabe, Mr Pickering had the following delegated powers:

(a) Powers under s 46(3) of the Act, which gave Mr Pickering the power to deal with seized property, which at the time of the Governor's hearing under s 53 held on 5 December 2022, would relevantly have included Mr McCabe's computer which had been seized on 22 November 2022.

(b) The power under reg 94(4) as to how the seized property could be dealt with pursuant to the power in s 46(3). This power included, relevantly, the power to return the computer to Mr McCabe (reg 94(4)(c)) or to store it as part of his prisoner property (reg 94(4)(g)).

(c) Powers under ss 20 and 21 which, as discussed above at [47]-[49], provide the general source of a power to permit a prisoner access to an in-cell computer.

83 Mr Pickering's evidence, and the corresponding submission, was that the Commissioner's Requirement 2.1.2 policy did not authorise him to make any decision with respect to the computer, and that he was not permitted to depart from that policy. Although that is an understandable position for Mr Pickering to take in a hierarchical organisation, I do not accept that Commissioner's Requirement 2.1.2 had that effect as a matter of law, for two reasons.

84 First, Commissioner's Requirement 2.1.2 expressly gave relevant powers to the 'General Manager' (that is the person holding the position of Governor) and there is nothing in the document to suggest that this means only the person actually holding that title or position, rather than persons who have been delegated the functions of Governor under the Act. There is no indication in the terms of Commissioner's Requirement 2.1.2 that this was intended where functions and powers of the General Manager are referred to. This includes the paragraph of Commissioner's Requirement 2.1.2 relied on by Mr McCabe, [4.16.5], which refers to the power of withdrawal of a computer. More broadly it includes the observation at the outset of the provisions relating to consequences for non-compliance with Commissioner's Requirement 2.1.2 that:

4.16 Non-Compliance

4.16.1 Failure to comply with these guidelines will result in the General Manager withdrawing a prisoner's access to a personal computer.

85 These aspects of the policy indicate some decision making role for the General Manager, following seizure of a computer, and potentially during a disciplinary hearing.

86 Secondly, Commissioner's Requirement 2.1.2, while relevant to the exercise of powers under the Act and Regulations, could not fetter any of those powers to the extent that the circumstances required some departure from the policy expressed in the Commissioner's Requirement. This was acknowledged by Ms Westin in her evidence that:

Like General Managers, I had the authority to depart from policy documents, like the CR, in the exercise of powers under the Act.[103]

87 I accept that Mr Pickering at least had the power to make a decision with respect to Mr McCabe's access to his computer.

Did Mr Pickering make a decision as to the computer or fail to exercise powers to deal with the computer?

88 I accept Mr McCabe's evidence that during the disciplinary hearing Mr Pickering said 'the computer, don't even ask about getting that back for at least 12 months'. Mr Pickering's evidence does not contradict this. His evidence was that he recalled Mr McCabe referring to a legal proceeding he was pursuing and an educational course he was engaged in, but did not at the time of his affidavit recall what Mr McCabe said to him. Nevertheless, Mr Pickering's evidence was clear that he did not make any decision as he did not regard himself as having any authority to do so. His comment 'don't even ask about getting that back for at least 12 months' is consistent with him having understood that he could not make a decision about the computer but would not expect any other decision maker to restore it for some time.[104]

89 I consider that a more appropriate characterisation of what occurred was that Mr Pickering, despite having had powers with respect to the seized computer, did not exercise those powers at the time of the disciplinary hearing. I accept that this could be characterised (as Mr McCabe did, in the alternative)[105] as a failure to restore Mr McCabe's computer to him.

Availability of relief against Mr Pickering with respect to the computer

90 Mr McCabe's grounds of review assumed that Mr Pickering actively made a decision to refuse to restore access to the computer. However, the situation was not that Mr Pickering considered his powers but refused to exercise them, or did so in a particular way. It was that he regarded himself as having no relevant power in the circumstances, and so did not even enter onto the process of considering whether or not to make a decision. In these circumstances the grounds of review identified by Mr McCabe relating to making a decision without lawful authority, acting for an improper purpose, and legal unreasonableness do not readily apply.

91 The more relevant difficulty, which may make it unnecessary to consider whether the grounds of review could have any application to Mr Pickering's failure to make a decision, is whether in the relief sought by Mr McCabe, most importantly orders in the nature of mandamus, would in any event be available.

92 First however it is appropriate to acknowledge that there is a question as to whether Grounds 5 and 7 - to the effect that Mr Pickering's decision was incompatible with human rights (identified in submissions as being rights under the Charter), or failed to consider relevant human rights (in contravention of s 38 of the Charter) - could have some application to the failure to make a decision.

93 Both grounds 5 and 7 referred to 'the First Defendant's decision'. However the amended originating motion does also refer to a 'failure to restore the Plaintiff's computer for in-cell use'.[106] Section 38 of the Charter, which is the primary basis of Mr McCabe's contentions in support of Grounds 5 and 7, provides that it 'unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right' (emphasis added). The Charter, s 3, defines the word 'act' as including 'a failure to act and a proposal to act'. It is, therefore, conceivable that arguments as to contravention of s 38 could be made with respect to a failure to act as occurred in these circumstances. However, Mr McCabe's submissions on grounds 5 and 7 approached the issues on the basis that Mr Pickering had made a 'decision' not to restore the computer.[107] It is not readily apparent how they could apply to a situation where Mr Pickering did not consider himself to have any power to act at all.

94 I consider that there is, ultimately, no utility in considering the question of whether Mr Pickering's failure to make a decision involved a contravention of s 38 of the Charter, because the nature of the relief sought by Mr McCabe is such that it could not be granted even if any such error existed.

Are orders in the nature of certiorari or mandamus available?

95 The relief sought against Mr Pickering in the Amended Originating Motion with respect to the computer issue is of three kinds: orders in the nature of certiorari, orders in the nature of mandamus, and a declaration. The proposed orders in the nature of certiorari are to 'quash the decision not to return his computer for in-cell use...'. Any such relief is inappropriate in circumstances where I accept that Mr Pickering made no decision with respect to the computer.

96 Mr McCabe then seeks 'orders in the nature of mandamus to compel the expeditious restoration of his computer for in-cell use'.

97 Orders in the nature of mandamus are not made compelling the repository of a discretionary power to exercise powers to make a particular decision.[108] It would not be open in this case to compel Mr Pickering to exercise his discretion to return the computer to Mr McCabe for in-cell use.[109]

98 However, noting that Mr McCabe is self-represented, it is appropriate to consider the application for orders in the nature of mandamus more broadly, and whether some sort of relief in the nature of mandamus would be available, such as to compel Mr Pickering to reconsider whether to exercise a power to restore to Mr McCabe access to the computer in his cell.

99 It was submitted for Mr Pickering that '[m]andamus should be refused, including because it is not available where the exercise of the power was discretionary, or where there is a lack of enforceable duty to compel'.[110]

100 While it is clear that orders in the nature of mandamus are available only to compel the performance of a duty,[111] the authorities do recognise that mandamus may be available to compel the repository of a discretionary power to give proper consideration to the exercise of that discretion.[112] That requires consideration of whether a power which is discretionary simply involves discretion as to the outcome (which power may be susceptible to mandamus in appropriate circumstances) or whether there is a discretion whether to enter onto the exercise of the power and reach a conclusion at all.[113]

101 There was not, at the time of the hearing, nor at this point in time, a duty on the part of Mr Pickering to consider the exercise of his powers as delegate of the General Manager to restore Mr McCabe's access to the computer in his cell for the following reasons.

102 First, the nature of the powers under the Act and Regulations with respect to in-cell computers are not such that they are accompanied by an obligation to be exercised at a particular time or in particular circumstances, such as to have required Mr Pickering to exercise his delegated powers at the time of the disciplinary hearing.

103 As discussed above,[114] ss 20 and 21 of the Act give rise to discretionary powers to permit a prisoner to have a computer in their cell. There is nothing in those sections or other parts of the Act which indicates that there is any requirement that the exercise of that discretion, as an aspect of the broader powers arising from the responsibility of Governors with respect to the management, security and good order of the prison, must be considered in particular circumstances, or at all.

104 Section 46(3) requires the Governor to deal with any thing seized in accordance with the Regulations, and reg 94(4) provides relevantly that the Governor must direct that the seized thing is dealt with by one or more identified ways. Mr McCabe (although not in the context of the availability of the remedy of mandamus) noted in his submissions that reg 94(4) 'compelled [Mr Pickering] to make a direction in regards to the computer'.[115] That is partly true, in that the language of reg 94(4) uses the obligatory language that 'the Governor ... must direct that the thing is dealt with by one or more of the following ways'. However reg 94(4) does not require that this direction be given at a particular point in time, such as at a disciplinary hearing, so as to impose any obligation on a Governor or delegate in Mr Pickering's situation. More importantly, the evidence left open the question of whether a direction under reg 94(4) had already been made by the Governor or a delegate of the Governor, such as to direct that the computer be held in Mr McCabe's property pursuant to reg 94(4)(g). I have inferred that this was likely to have occurred.[116] If the obligation to make a direction with respect to the computer in reg 94(4) had already been exercised, there would be no unperformed duty which could be the subject of an order for mandamus.

105 Secondly, Mr Pickering is not the only officer holding powers to deal with Mr McCabe's computer. The Governor of Loddon prison holds those powers, as does the Deputy Commissioner. The policy guiding the exercise of the discretion to permit prisoners to have computers in their cell, Commissioner's Requirement 2.1.2, identifies the Deputy Commissioner as the appropriate officer to determine whether a prisoner's access to a seized computer should be reinstated.[117] I do not consider that Mr Pickering individually could be properly regarded as having any duty even to consider the exercise of the discretion to restore the computer, even though he may have that power. Even if it is the case that Mr Pickering's approach to the question of whether he could exercise the discretion to restore access to the computer miscarried by reason of his view that he did not have power to make such a decision, this does not entail that he can be compelled to consider exercising the power.[118]

Discretionary refusal of orders in the nature of mandamus

106 If I am wrong in concluding that Mr Pickering did not have a duty to consider the exercise of the discretion to restore access to the computer, I would not in my discretion grant an order in the nature of mandamus directed to him. Mandamus is a discretionary remedy which may not be granted if a more convenient and satisfactory remedy exists, or if no useful result could ensue.[119]

107 I do not consider orders in the nature of mandamus an appropriate remedy in circumstances where there were, following the Governor's disciplinary hearing before Mr Pickering, subsequent requests for the return of the computer which were considered by other decision makers:

(a) Following the disciplinary hearing on 5 December 2022, Mr McCabe made a written request on 24 January 2023 to the General Manager of Loddon Prison, Ms Darbyshire, for the return of his computer.[120] Ms Darbyshire responded to Mr McCabe, refusing the request and providing brief reasons.[121]

(b) By letter dated 21 February 2023, Mr McCabe made a written request to Ms Westin requesting the restoration of his in-cell access to the computer, setting out his reasons.[122] By letter dated 23 March 2023, Ms Westin advised that the reinstatement of the in-cell computer was 'not approved' and that she was not ready to re-consider his application.[123]

108 Mr McCabe has thus had his requests considered by other officers, including the Deputy Commissioner Ms Westin who is identified as the appropriate person to consider the exercise of the discretion in the relevant prison policy, Commissioner's Requirement 2.1.2, and the General Manager (the original repository of the powers delegated to Mr Pickering). Ms Westin's decision, made in the exercise of delegated powers from the Secretary, would prevail over any exercise of powers by Mr Pickering in the exercise of his delegated powers of Governor, by reason of s 17(3) of the Act. That subsection provides that an exercise by the Secretary of any power or function under s 17 in relation to a matter 'prevails over the exercise by a Governor or prison officer ... of that power or function in relation to that matter'. I consider the section would also have that consequence with respect to the exercise of power by Ms Westin holding the delegated s 17 powers of the Secretary.

109 Where a decision is arguably the subject of jurisdictional error, but there has been a subsequent valid decision on the same subject matter, it has been held that it would be futile to grant certiorari and mandamus.[124] Similarly, I consider that, despite Mr Pickering having wrongly believed that he did not have power to make a decision, there would be no utility in granting mandamus to require him to make a decision where a superior officer has considered the matter and, as I discuss below, has determined it without error.

110 Finally, Mr McCabe seeks a declaration 'that appeals of the Defendant's decision (within Corrections Victoria) are null and void'. In the absence of any decision by Mr Pickering with respect to the computer (and the lack of any challenge to his separate decision to find Mr McCabe guilty and fine him $100) such a declaration is inappropriate.

111 I accept that Mr McCabe as an unrepresented litigant may not be expected to identify precisely the terms of any declaration, if issues are otherwise properly raised which may warrant a declaration. In referring to 'appeals' he may have intended to seek a declaration relating to the subsequent decisions made by Ms Darbyshire as Governor or Ms Westin as Deputy Commissioner, because he characterised his application to Ms Westin for reinstatement of access to his computer as an 'appeal'.[125] This appears to have been based on paragraph [4.16.6] of Commissioners Requirement 2.1.2 which provides:

In any instance where a ban has been applied, or access to an in-cell computer has been withdrawn, the prisoner may appeal this decision in writing to the Deputy Commissioner, Custodial Operations who will review the circumstances under which the ban was imposed.

112 When considered in the context of the statutory scheme, the requests to Ms Westin and Ms Darbyshire and their decisions not to reinstate in-cell computer access are more accurately understood as involving separate requests for exercise of a discretionary power that may be exercised from time to time, and exercise of that discretion, than an 'appeal' of any decision.

113 The proposed declaration and any variation on it would not address any clearly arising legal controversy.[126] I do not, therefore, consider that any declaration dealing with the subject matter of the computer as it relates to Mr Pickering is appropriate.

114 There being no decision made by Mr Pickering with respect to the computer, and where the relief sought would be inappropriate with respect to Mr Pickering's failure to make a decision on the issue, Grounds 5, 6, 7 and 8 with respect to access to the computer for in-cell use are not made out.

The nature of Ms Westin's decision with respect to access to in-cell computers

115 On 21 February 2023, Mr McCabe made a written request to Ms Westin requesting the restoration of his in-cell access to the computer, setting out his reasons.[127] Ms Westin had authority to make decisions with respect to access to in-cell computers as Deputy Commissioner, pursuant to delegations by the Secretary of powers under ss 17(1) and (2) of the Act, pursuant to which the Secretary can exercise all the powers or functions of a Governor or prison officer.[128] The decision-making role of the Deputy Commissioner with respect to decisions about grant of access to, or removal of, in-cell computers, is also recognised in Commissioner's Requirement 2.1.2.[129]

116 Ms Westin responded to Mr McCabe's request in a letter dated 23 March 2023 which stated, relevantly:

Reinstatement of in-cell computer - Not approved.

...

Storing pornographic material in your in-cell computer is considered a Level 4 offence in the Commissioner's Requirement 2.1.2 - Prisoner Computers and Gaming Consoles. As you may or may not be aware, the recommendation for a Level 4 breach is that the prisoner loses all personal in-cell computer privileges whilst in custody for a minimum of three years.

As advised by the General Manager, you are still able to utilise the computers in Education to continue your studies and prepare for your legal matters.

You may reapply for the reinstatement for your in-cell computer at a later date, as I am not ready to re-consider your application. I encourage you to maintain good behaviour and remain incident free during this time.[130]

117 Despite the statement in the letter that Ms Westin was 'not ready to re-consider your application' it is apparent from the title of the letter that she was making a decision not to permit Mr McCabe to have access to his in-cell computer. At the time of the decision, the computer had been validly seized.[131] Commissioner's Requirement 2.1.2 refers to an 'appeal' to the Deputy Commissioner to review the circumstances under which access to an in-cell computer has been withdrawn.[132] However I consider that the power of the Deputy Commissioner that Mr McCabe was asking be exercised was her discretion under her delegated powers relating to the functions and powers of a Governor to grant him renewed access to that computer, rather than any kind of 'appeal' properly understood.

118 It was submitted for Ms Westin that it was not clear that this constituted a judicially reviewable decision because 'there has been no impact of any identifiable rights that the plaintiff holds'. It was submitted that 'while a decision which only impacts a mere interest of the prisoner (rather than a right) may be subject to judicial review, it does not follow that any powers exercised were subject to a duty to accord procedural fairness.'[133]

119 The latter question, relating to procedural fairness, does not arise with respect to Ms Westin's decision, as this is not a ground of review relied on by Mr McCabe to challenge it.

120 I consider that Ms Westin's decision to refuse to restore access to the in-cell computer is a reviewable decision. The grant of access to an in-cell computer is the exercise of a discretion founded in the broad statutory powers implicit in ss 20 and 21 of the Act. Following seizure of a computer pursuant to s 46 of the Act and its removal from the prisoner's cell, the decision as to whether to restore access remains in character an exercise of a discretion based in those statutory powers, and a refusal to restore it is an exercise of the discretion to refuse to permit access. That exercise of discretion is reviewable, as with other exercises of statutory discretion, on established grounds of judicial review including improper purpose, taking into account irrelevant considerations, or legal unreasonableness.[134]

121 Although these discretionary decisions are reviewable, the very broad nature of the discretion of the Deputy Commissioner (exercising the powers of the Governor through delegation) as to whether or not to grant access to an in-cell computer is highly relevant to the extent to which such a decision could be demonstrated, on review, to be subject to error.

The jurisdictional errors alleged to affect Ms Westin's decision

122 Mr McCabe relied on three grounds of review to challenge Ms Westin's decision, described as follows:

GROUND 1 - [Ms Westin's] decision not to restore the Plaintiff's computer for in-cell use was incompatible with his human rights, without lawful excuse, such being contrary to law and constituting jurisdictional error

GROUND 2 - Further to Ground 1, the Defendant's decision not to restore the Plaintiff's computer for in-cell use was made for an improper purpose, resulting in jurisdictional error

GROUND 3 - If the Defendant purports to have made her decision for a lawful purpose, such was unreasonable in the legal sense.

Was there a failure to take into account human rights in making the decision? (Ground 1)

123 Mr McCabe's submissions on ground 1 focussed on human rights under the Charter. Mr McCabe contended that Ms Westin did not discharge her obligations as a 'public authority' under s 38(1) of the Charter. Section 38(1) provides:

Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

124 Mr McCabe alleges that Ms Westin did not take into account the following human rights in making her decision, and made a decision incompatible with those rights:

(a) Section 20, the right not to be deprived of property other than in accordance with the law.

(b) Section 25(4), the right of a person convicted of a criminal offence to have the conviction and sentence reviewed by a higher court.

(c) Section 26, the right not to be tried or punished more than once.[135]

(d) Section 15(2), the right to freedom of expression.[136]

Is Ms Westin a 'public authority' for the purposes of the Charter?

125 The Charter defines 'public authority' as including 'a public official within the meaning of the Public Administration Act' (s 4(1)(a)), which includes employees of the public service. It was not disputed by Ms Westin that she is a 'public authority' in her role as Deputy Commissioner,[137] and so is required by s 38 to act compatibly with human rights and, when making a decision, to give proper consideration to human rights.

The process of analysis with respect to Charter rights

126 The first question arising when considering whether the obligations under s 38(1) of the Charter have been discharged by a public official is whether the relevant human rights have been engaged or limited by the identified conduct.[138] If the relevant human rights are engaged, it then falls to consider:

(a) the question arising under the procedural limb of s 38(1), that is, whether the public authority has failed to give proper consideration to the relevant human right;[139] and

(b) the question arising under the substantive limb of s 38(1), whether the public authority has placed any limitation on the right; and, if so, whether that limitation is lawful, reasonable and justified in accordance with s 7(2) of the Charter.[140]

127 Mr McCabe, as the plaintiff seeking to establish a breach of s 38, has the onus of establishing that any of his rights were limited under the Charter. If that onus is discharged it is then for the public authority to establish that the limitation was demonstrably justified under s 7(2).[141]

Did the decision engage the right not to be deprived of property other than in accordance with law?

A person must not be deprived of that person's property other than in accordance with the law.

129 Mr McCabe contends that he was granted approval to purchase a computer and have it in his cell on the basis that it was 'necessary' for both education and legal purposes, in accordance with the stipulation in Commissioner's Requirement 2.1.2 that to have access to an in-cell computer it must be 'necessary' and not just 'desirable' for the prisoner to have that access for legal, education or other extraordinary reasons. Consequently, the decision not to restore the computer was a deprivation of property incompatible with s 20.

130 The defendants contend that although the computer was Mr McCabe's property, any deprivation was in accordance with the law.

The scope of the Charter right not to be deprived of property

131 The words 'property' and 'deprived' in s 20 are not defined in the Charter, and should be interpreted liberally.[142] 'Property' has been held to include all real and personal property interests.[143] 'Deprivation' has also been broadly construed. It is not limited to extinguishment of title.[144]

132 The defendants' concession that the computer was Mr McCabe's property[145] is plainly correct.

133 It was also conceded by the defendants that 'it is likely there has been a "deprivation" for the purpose of s 20'.[146] Having regard to the evidence, while there may have been a deprivation of property when Mr McCabe's computer was first seized, I do not accept that Ms Westin's decision, which is the decision under review, did involve any such deprivation.

134 The decision by which Mr McCabe's property was originally removed from him following the finding of pornography was the decision to seize the computer. That was done by Mr Stubbings pursuant to the power, in s 46 of the Act, to seize anything 'which the prison officer believes on reasonable grounds jeopardizes or is likely to jeopardize the security or good order of the prison'. It was not contended that he was not authorised to seize the computer pursuant to that power and there was no challenge to that decision.[147]

135 Following that decision the computer was stored away from Mr McCabe's access in prison property. I have found that it can be inferred that this occurred pursuant to a direction of the General Manager of the prison or their delegate exercising the power to give a direction under regulation 94(4).[148] That decision, too, is not the subject of challenge.

136 Ms Westin's decision which is the subject of the application for review was a decision not to grant Mr McCabe access to his computer in his cell. As discussed above, the basis of a prisoner having access to an in-cell computer is not any right under the Act, nor an identified privilege within the meaning of the Act. It is granted in the discretion of the Governor or delegate in the exercise of duties and powers with respect to the management, security and good order of the prison and the safe custody and welfare of prisoners under ss 20 and 21(1) of the Act.

137 The general position is that a prisoner is not entitled to have a computer in their cell, absent the positive exercise of that discretion. That is in part because of the limitations on common law rights which are inherent in their incarceration pursuant to the sentence of imprisonment.[149] While it is not inherent in the imposition of a prison sentence that all rights are abrogated, some are necessarily curtailed, such as the right to freedom of movement,[150] and relevantly, rights to have access to the full range of property which a person could otherwise lawfully possess.

138 Mr McCabe submitted that the starting point was not that his prison sentence attenuated his liberty in such a way that he could not exercise relevant rights. It was necessary, he submitted, to start from the proposition that before losing the computer he was in fact using it in the prison, including to enjoy his right to education.[151] Given that he was using the computer on the basis of an entirely discretionary grant of permission, I am not persuaded that the fact of his having enjoyed that access is the correct starting point. In any event, the decision that resulted in him being deprived of that computer was the unchallenged decision to seize the computer pursuant to s 46 of the Act, following the discovery of unauthorised material on it. The starting point is, therefore, the situation in which Mr McCabe owned a computer, but did not have access to it in his cell; and he was seeking to have the Deputy Commissioner exercise her discretion to give him that access.

139 In these circumstances, I do not consider that Ms Westin's decision to refuse to give Mr McCabe access to his computer in his cell is properly be regarded as a decision which caused the deprivation of his property and on that basis, the right in s 20 was not engaged.

140 If I am wrong about that, I consider that any deprivation of the property was according to law. Ms Westin's discretion arising under ss 20 and 21(1) to give access to or return the computer to Mr McCabe was exercised in accordance with the legislative scheme established by the Act and Regulations. To the extent that the published policy relating to such access, Commissioner's Requirement 2.1.2, identified the considerations according to which that discretion could be expected to be exercised, Ms Westin's decision was consistent with that policy.

141 When access to the in-cell computer was granted to Mr McCabe, it was on the basis of the conditions set out in Commissioner's Requirement 2.1.2 and the Computer Agreement that he had signed. The Commissioner's Requirement states that:

4.16.1 Failure to comply with these guidelines will result in the General Manager withdrawing a prisoner's access to a personal computer.

...

4.16.5 Where a prisoner has been found guilty of a computer related prison offence, the Hearing Officer may authorise the removal of the computer from the prison and withdrawal of the prisoner's computer privileges. Refer to Commissioner's Requirement 2.3.3. - Disciplinary Process and Prisoner Privileges. Guidelines for the length of time of withdrawal or permanent withdrawal of a computer are provided ... in Computer Offence Levels.[152]

142 The Requirement defines a 'Level 4' offence as 'Password protected files, non-departmental approved programs, pornographic video and/or picture files'.

143 The Computer Agreement signed by Mr McCabe as a precondition to having access to an in-cell computer included the acknowledgement:

I understand that to ensure that no illegal or pornographic software or files, or unauthorised hardware is used or installed on my computer, an authorised officer will audit my computer on an irregular basis. In addition to this, my computer may be audited for any illegal information stored.

...

I understand that my access to the computer will cease at the end of my course/conclusion of my legal issues or education requirement or may be reviewed due to inappropriate behaviour.[153]

144 The policy to the effect that having pornographic material on a computer is prohibited and a reason for its seizure is in itself rational and entirely consistent with the statutory scheme within which the discretion to grant or remove access to an in-cell computer is to be exercised. Ms Westin and Mr Pickering gave evidence as to the reasons for possession of pornography being both a prison offence and an offence for the purposes of Commissioner's Requirement 2.1.2. It was said that the presence of pornography can be seriously destabilising to the good order of the prison because:

(a) pornography can be used as a commodity which is able to be purchased, sold or stolen;

(b) prisoners can be threated or assaulted for access to pornography; and

(c) the nature of the offending of some prisoners, and their rehabilitation need, is incompatible with access to pornography within the prison.[154]

145 Mr McCabe did not challenge this evidence and expressly accepted that pornography can be a security risk in prison and can disturb the good order of the prison.[155]

146 Ms Westin, in her letter in which she refused to give Mr McCabe access to his in-cell computer, referred to the storage of pornographic material on an in-cell computer being a 'Level 4 offence' under Commissioner's Requirement 2.1.2, the recommended penalty for which was a loss of 'all personal in-cell computer privileges whilst in custody for a minimum of three years'.[156] Her decision to refuse to grant access was consistent with that policy and with Mr McCabe's Computer Agreement acknowledging that storage of pornographic material on an in-cell computer was not authorised. To the extent that there were statutory boundaries on the broad discretion conferred on Ms Westin with respect to the grant or refusal of access to an in-cell computer, the decision was well within those legal constraints.

147 I therefore accept that Ms Westin's decision to refuse to give Mr McCabe access to his in-cell computer was in accordance with the law, and thus did not involve any limitation on the right in s 20 of the Charter.

148 The qualification that the right in s 20 is a right not to be deprived of property 'other than in accordance with law' is an internal qualification on that right.[157] The right in s 20 was therefore not limited, and it is not necessary to go further to consider the application of s 7(2) of the Charter. This aspect of ground 1 is not established.

Rights in criminal process - was the decision incompatible with the right to have conviction and sentence reviewed by a higher court in accordance with the law?

Any person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with the law.

150 Mr McCabe contended that Ms Westin's decision to refuse to restore his in-cell computer access was incompatible with his right under s 25(4) to have his criminal appeals reviewed by a higher court.[158] The basis for his contention appeared to go no further than his submissions that prisoners maintain all civil rights and privileges except those taken away expressly or by necessary implication;[159] and that because his in-cell computer had been approved because it was necessary for legal purposes as well as education, the decision to remove the computer was incompatible with the right of review of conviction.[160]

151 Counsel for the defendants submitted that there was no limitation of the right in s 25(4) by reason of the removal of access to an in-cell computer. Based on art 14(5) of the International Covenant on Civil and Political Rights (ICCPR) upon which s 25(4) of the Charter is modelled, the right in s 25(4) is intended to confer a right to an 'effective' appeal, 'in the sense that the right to review of conviction and sentence must be made available without undue delay at all instances.'[161] Although this understanding of art 14(5) of the ICCPR has not yet been applied by the Court to s 25(4) of the Charter, it was submitted that the 'mere inconvenience' of not having access to a computer within a cell will not show that the right has been relevantly limited.[162]

152 It was also submitted that, in any event, the proper forum for a complaint regarding s 25(4) would be a criminal appeal of sentence or conviction, given that the court hearing that appeal is better placed to assess whether there is a true limitation on the relevant appeal rights.[163]

153 Mr McCabe's evidence was that after his in-cell computer was removed, he was given a CD with his legal and some personal files on it to use with the unit computers.[164] He gave evidence that he had significant limits on his access to the shared unit computers. However the evidence did not give any example of how that had hindered his ability to prepare for and prosecute his conviction and sentence appeals, nor for that matter the present civil proceedings.[165] With respect to his ongoing appeals, his evidence was that in early December, he had a 'conviction appeal at the High Court',[166] and that on 15 December 2022 the High Court had refused the grant of special leave to appeal his conviction.[167] Nothing in the evidence suggests his application for special leave was impacted in any way by the removal of his in-cell computer. Mr McCabe gave evidence that he had 'started working on a new application from mid-January 2023, starting with an investigation into whether the court had jurisdiction to entertain another application'.[168] There was nothing specific in his evidence to the effect that lack of access to a computer in his cell had impaired his ability to do that work.

154 Mr McCabe gave evidence that he filed an application for an extension of time and leave to appeal against sentence in the Court of Appeal on 7 February 2023, with a hearing of that application having taken place on 9 October 2023.[169] There was nothing in the evidence to suggest that lack of access to an in-cell computer impaired his preparation for or the effectiveness of that appeal.

155 The evidence did not show any adverse impact on Mr McCabe's ability to engage in criminal appeal processes. Despite his access to his in-cell computer being withdrawn, it was also plain that Mr McCabe was able to prepare originating motions, summons, extensive affidavits and very detailed submissions in these proceedings.

156 In any event, the appropriate forum for a complaint regarding s 25(4) of the Charter would be before a court hearing any remaining appeal of conviction or sentence, as that court is better placed to be apprised of the appeal proceeding and whether there are any material constraints on the pursuit of an appeal.[170]

157 Mr McCabe's rights under s 25(4) of the Charter were not limited, and this aspect of ground 1 is not established.

Was the decision incompatible with the right to freedom of expression?

158 Mr McCabe did not rely on s 15 of the Charter in his written submissions, and only informed the defendants that he intended to do so some days before the hearing.[171] This contention was therefore largely covered in oral submissions.

159 Mr McCabe relied on s 15(2) of the Charter, which provides:

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria, and whether -

(a) orally; or

(b) in writing; or

(c) in print; or

(d) by way of art; or

(e) in another medium chosen by that person.

160 He identified his medium for the purposes of s 15(2)(e) as 'the computer and the software,'[172] in the context of education, and his participation in his distance education course through use of the Maple software on his in-cell computer. Mr McCabe also relied on his right to take part in educational programmes in prison under s 47(1)(o) of the Act. He contended that the s 15(2) right to freedom of expression overlaps with and increases the content and protection of that right, extending to self-directed study and interests such as writing books, letters, listening to music and legal study.[173]

161 Mr McCabe submitted that his right under s 15 should not be considered from a starting point of being inherently limited by virtue of his incarceration. He claimed that his rights to education and freedom of expression were rights that were not affected the imposition of his prison sentence.[174] He submitted that, just before losing his access to his in-cell computer, Mr McCabe was using the computer and its Maple software to enjoy his right to freedom of expression in the context of his distance education mathematics course.[175]

162 The defendants contended that Mr McCabe had continued access to 35 computers or more in the prison between 8.30am-5.30pm Monday to Friday, save for public holidays, with only a maximum of one third of the computers in use at any time. The computers can be used for legal and educational work.[176] Accordingly Mr McCabe was not limited in his ability generally to partake in educational programmes, but only in his ability to use and access Maple software.

163 The defendants contended that the restriction on having a computer in Mr McCabe's cell was justified pursuant to s 15(3)(b).[177] That section provides:

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary -

(b) for the protection of national security, public order, public health or public morality.

164 Counsel for the defendants referred to Magee v Delaney,[178] in which Kyrou J held that the protection of public order includes measures for peace and good order, public safety, and prevention of disorder and crime.[179] It was submitted that any limitation on expression arising from the failure to restore Mr McCabe's in-cell computer was for the lawful purpose of good order and security of the prison, so that if s 15(3)(b) is an internal qualification on the right to freedom of expression, it is in law no limitation at all.[180]

165 I have already found at [137]-[138] above, in the context of Mr McCabe's submissions on the right not to be deprived of property, that the correct starting point for analysis is not that Mr McCabe was enjoying access to a computer including for education at the time it was seized. From the time of his imprisonment, Mr McCabe had no right to have a computer in his cell, absent the exercise in his favour of the Governor or delegate's discretion to grant that access. While Mr McCabe's long distance education, and his use of Maple software for that purpose, can be accepted as a form of expression, he lost the right to exercise that form of expression through a computer accessible at will by reason of his sentence of his imprisonment.

166 Insofar as Mr McCabe's argument relied also on s 47(1)(o), 'the right to take part in educational programmes in the prison', that section does not confer a right to specific educational programmes of the prisoner's choice outside of the prison through distance education.[181] Mr McCabe appeared to accept this.[182] The reference in s 47(1)(o) to 'educational programmes in the prison' tends to suggest that the right does not extend to educational programmes of a prisoner's choice from institutions outside the prison.

167 For these reasons, I do not consider there was a relevant limitation of the right to expression in s 15(2) arising from the decision not to restore access to Mr McCabe's in-cell computer. I also accept that the general powers arising under ss 20 and 21(1) to either permit, or relevantly here, to refuse to permit, a prisoner to have a computer in their cell are lawful restrictions for the purposes of public order in that maintaining the good order and security of prisons is an element of the broader public order. If there were limitations imposed by the refusal to exercise those powers to restore access to the in-cell computer, they would be lawful restrictions of the kind acknowledged by s 15(3)(b).

Was the decision incompatible with the right not to be tried or punished more than once?

168 Mr McCabe submitted that the decision to refuse to restore access to his computer, in conjunction with the $100 he received, unlawfully limited his right under s 26 of the Charter to not be punished more than once for an offence. In respect of the use of 'offence' in s 26, Mr McCabe submitted that there is no reason to suppose that s 26 does not extend to offences in correctional settings, noting that the Charter is to be interpreted amply, not narrowly.[183]

169 At the hearing, Mr McCabe stated that s 26 was not decisive of anything in the hearing, as ss 53(4) and 53(6) of the Act had the effect of excluding more than one punishment for disciplinary offences. He did not elaborate on the alleged contravention of s 26.[184]

170 The defendants contended that s 26 of the Charter did not apply, because it applies only to criminal or quasi-criminal penal proceedings, and not to disciplinary hearings. The defendants noted that s 26 of the Charter is modelled on art 14(7) of the ICCPR, and that international human rights case law is of assistance in determining the scope of the right.[185] These include decisions of the Supreme Court of Canada on the right in s 11(h) of the Canadian Charter of Rights and Freedoms, of a person charged with an offence, if finally found guilty and punished for the offence, not to be tried and punished for an offence.[186] The defendants submitted that these decisions established that the right not to be punished twice reflected in s 26 of the Charter applies only to criminal and quasi-criminal penal proceedings, and not to disciplinary proceedings. As prison offences are defined by s 48 of the Act not as criminal offences, but as a contravention of the Act or regulations, the hearing of the prison offence was not a criminal proceeding but a disciplinary hearing.[187]

171 Finally it was submitted that if the right in s 26 of the Charter applied in this context, it was not limited because there was only one punishment for the prison offence, being the $100 fine.[188] Removal of the computer and failure to return it was not a penalty.

172 The hearing of prison offence charges under the Act is properly characterised as a disciplinary process, rather than a criminal or quasi-criminal process. In addition to the characterisation of Part 7, by its heading, as dealing with 'Disciplinary proceedings', the Part preserves the ability of the disciplinary officer and the Governor to refer matters to be dealt with by the criminal law, rather than through the disciplinary hearing process, where appropriate.[189]

173 The interpretation of s 26 most consistent with the available international jurisprudence is that it will apply only in the context of criminal or quasi-criminal proceedings, as concluded with respect to the similar right in the Canadian Charter.[190] However I do not consider it is necessary to determine that issue finally. This is because even if s 26 did have application to disciplinary proceedings, I consider it would not be engaged in this case because the refusal to restore access to Mr McCabe's in-cell computer was not a punishment. As discussed above in the context of s 20 of the Charter, Mr McCabe did not have any right to have the computer in his cell; it was granted on a discretionary basis subject to conditions of access. It was seized pursuant to a separate power of the Act, s 46. Ms Westin's refusal to restore access to the computer was not a punishment within the meaning of s 26 of the Charter, or otherwise.

174 Section 26 of the Charter is not engaged, and this aspect of ground 7 is therefore not established.

Was the decision not to reinstate the computer made with an improper purpose? (Ground 2)

The evidence and the submissions on the alleged improper purpose of Ms Westin's computer decision

175 Ms Westin's evidence was that her decision not to reinstate Mr McCabe's access to his in-cell computer accorded with Commissioner's Requirement 2.1.2. She had authority to depart from that policy but decided not to because:

(a) the presence of pornography in prisons can be seriously destabilising to the good order of the prison and is a serious matter for prison discipline;

(b) Mr McCabe was aware of the consequence of using his computer to access pornography, because he signed the Computer Agreement;

(c) it was important to send a message of deterrence to Mr McCabe and other prisoners about the seriousness of the prohibition of pornography; and

(d) Mr McCabe had 'reasonable access to computers for legal work and education that he was participating in through computers located in the prison library. That meant the impact, if any, on his ability to conduct litigation or other court proceedings, write letters and other documents and participate in education was small.'[191]

176 Mr McCabe contended that Ms Westin's decision not to restore his access to his computer was made for an improper purpose, essentially on the following basis:

(a) it was made for the purpose of punishment, or general deterrence, or both;[192]

(b) punishment and deterrence are not purposes to which Ms Westin could properly have regard in making her decision, including because:

(i) if rights or entitlements were created under the Act, there was no power to limit them for punishment;[193] and

(ii) discipline and punishment is confined to Part 7 of the Act and the limitations on the disciplinary processes in that part.[194] Any reliance on an objective of 'deterrence' should be regarded as being the same thing as punishment;[195] and

(c) to the extent that Ms Westin was applying the policy in Commissioner's Requirement 2.1.2, that policy pursued the improper purpose and its application involved making a decision with an improper purpose.[196]

177 On behalf of Ms Westin, it was contended that the purposes for which she had made the decision were proper purposes, consistent with the statutory scheme.[197] Insofar as Ms Westin was applying the policy in Commissioner's Requirement 2.1.2, this was unexceptionable. It was appropriate for the policy to seek to 'manage the risks associated with granting an in-cell computer' by permitting it to be granted for only certain uses, being a 'genuine educational or legal requirement, or in exceptional circumstances' and to stipulate standards of behaviour for having access to a computer.[198] She had authority to depart from the policy, even though she had chosen not to do so in this case.

178 It was also contended for Ms Westin that her decision cannot be impugned as being for an improper punitive purpose but was for a purpose 'deeply rooted in the management and order of the prison to incentivise good behaviour for both Mr McCabe but also other prisoners.'[199]

179 A power will involve error on the basis that it is exercised for an improper purpose if it is exercised for an unauthorised purpose, or one which is extraneous to the statute.[200] The question of the purposes which are authorised by the statute is one of statutory construction.[201] Mr McCabe bears the onus, as plaintiff, of establishing that the decision was made for an improper purpose,[202] and the purpose is to be determined by reference to the decision-maker's actual state of mind, or 'operative subjective purpose',[203] as established on the evidence as whole.[204]

180 The decision of Ms Westin was an exercise of her discretion, through the delegated powers of Governor under s 20 and s 21(1) of the Act, to refuse to grant Mr McCabe access to his computer in his cell. As discussed above, it was not a decision to remove his computer consequent on the finding of pornography, nor on the finding that he was guilty of a prison offence. That had already occurred before she made her decision, when Mr Stubbings seized the computer pursuant to powers under s 46 of the Act.

181 The evidence was clear, however, that it was the fact that Mr McCabe had used his computer to access pornography which was the basis of both the prison offence, and the 'level 4 offence' under Commissioner's Requirement 2.1.2; and that Ms Westin had taken that 'level 4 offence' into account in refusing to reinstate Mr McCabe's access to his computer. The question raised Mr McCabe is whether in exercising her discretion not to reinstate the computer, it was an improper purpose for Ms Westin to have regard to the fact that Mr McCabe was guilty of the prison offence, and to intend to deter him and other prisoners from committing such offences.

182 As to the first matter raised by Mr McCabe, that if provisions of the Act provide for rights and 'entitlements', it is not open to limit them, this argument is not open given that access to an in-cell computer is not a right, and any entitlement to access arises from the purely discretionary decision of a person holding the Governor's powers under ss 20 and 21(1) of the Act. The discretion may be exercised for any purpose consistent with the statutory scheme, whether it may limit access or otherwise.

183 The question is then whether the purposes for which Ms Westin exercised her discretion to refuse access to the in-cell computer were consistent with the statutory scheme, or were, as contended by Mr McCabe, improper.

184 Section 20 of the Act, in imposing the responsibility on prison officers to take all reasonable steps for the security of the prison and for the safe custody and welfare of prisoners, implicitly confers the necessary powers to take those reasonable steps. Similarly the responsibility of the Governor under s 21 for the management, security and good order of the prison and the safe custody and welfare of prisoners, carries powers to discharge that responsibility. The primary objective of those sections and the broad range of discretionary powers conferred by them (such as to control the content of a prisoner's cell) is to further the 'management, security and good order of the prison', and the 'safe custody and welfare of prisoners'. These objectives are of fundamental importance in a prison environment.[205] The words in ss 20 and 21 are of very wide ambit, with the consequence that the range of discretionary power conferred by the sections are also of wide scope.[206]

185 Those broad discretionary powers, being controlled also by their statutory context, may also serve other purposes identified in the Act or Regulations, and will equally be limited by other provisions in the Act and Regulations.

186 Mr McCabe characterised the improper purpose as being for punishment, or as being general deterrence which in his submission, amounted to an impermissibly punitive objective, 'punishment being the principle ingredient of deterrence and unachievable without.'[207]

187 Taking first the question of a punitive purpose, I accept that it would not be consistent with the purposes of ss 20 and 21(1), as construed within the context of the Act as a whole, to exercise the powers conferred by those sections for the specific purpose of punishing prisoners. The powers arising from ss 20 and 21(1) are, by their terms, not expressed by reference to a power to punish or any punitive objective.

188 When construed in the context of the Act as a whole, the discretionary powers conferred by ss 20 and 21(1) must also be regarded as being constrained by the existence of Part 7 of the Act, which establishes the process by which a prisoner may be disciplined for a prison offence. The Part 7 disciplinary process, with the relevant regulations, contains a number of procedural rights for prisoners, and substantive limitations on the penalty which can be imposed on a prisoner, most notably the stipulation in s 53(6) that only one of the penalties ins 53(4) can be imposed for a single prison offence. As discussed in more detail in the context of the Contact Visiting Programme, the Act discloses a legislative intention that other general powers in the Act not subject to the protective requirements or limitations in Part 7 should not be used to achieve a punitive end.[208]

189 However, I find that Ms Westin did not make her decision for a punitive purpose. Her evidence as to her purpose did not include any reference to a purpose of punishment. There is no other evidence indicating that her subjective purpose was to impose punishment. The purpose which, on the evidence, plainly did motivate her was in large part the consideration that access to pornography in prisons presents a problem for prison discipline and good order. Mr McCabe having used the in-cell computer to access pornography, it was entirely consistent with the purpose of furthering the good order and security of the prison to decline to reinstate his access to the in-cell computer.

190 Mr McCabe submitted that he sought the reinstatement of the computer without the pornography, so that there could be no real risk to prison good order or security, and in the absence of a closer analysis of what risk he would pose if he had the computer returned, there could be no rational purpose other than punishment.[209] That is too simplistic an analysis. Access to the in-cell computer had been granted to Mr McCabe on particular conditions formally agreed to by him, including that he was not permitted to access unauthorised material on the computer, and would lose access to it if he breached that condition. He did not observe that condition, and used it for a prohibited purpose. It was consistent with the purpose of furthering the good order and security of the prison for Ms Westin to apply the published policy and refuse access to a computer to a prisoner who had breached the prohibition.

191 The exercise of Ms Westin's discretion also did not impermissibly extend into the field of imposing disciplinary penalties, which is properly reserved to the disciplinary hearing processes in Part 7 of the Act. The reasons for decision in her letter of 23 March 2023 referred to the recommendation in the Commissioner's Requirement 2.1.2 as to the period for which access to an in-cell computer should be removed, for a specific level of offence. That offence was not identified by reference to a specific prison offence under Part 7, but 'offences' defined for the purposes of the in-cell computer access policy only. She also did not determine that the recommended three-year period of lack of access would automatically be applied, and rather advised that she was not ready at that time to re-consider an application for access at the time of her letter.

192 Mr McCabe also says that the purpose of general deterrence was also an improper purpose. It was accepted by Ms Westin that both specific and general deterrence were reasons for her decision. Ms Westin's evidence was that she intended to 'send a message of deterrence' to Mr McCabe and other prisoners 'about how seriously CV takes the prohibition on pornography'. It was contended for Ms Westin that 'general deterrence with regards to prisoners having prohibited pornography within the prison' was a proper purpose for her decision.[210]

193 Mr McCabe accepted in the course of submissions that the policy of the Commissioner's Requirement 2.1.2 in recommending removal of access when a prisoner has breached the policy would in fact serve a purpose of deterrence; but contended that it remained unlawful to have such a purpose or objective.[211] This appeared to be on the basis that a policy of general deterrence of bad behaviour was the same as punishment, because the effect of deterrence on other prisoners could not be evaluated,[212] so that decisions involving such a purpose would be 'non-justiciable'.[213] He gave the example that he would not know whether to reapply for his computer because he could not understand how the decision maker would assess how other people had been deterred from bad behaviour by him having lost his computer.[214]

194 I accept that a purpose of general deterrence - in the sense of being intended to deter behaviour which presents a risk to prison security and good order - is a purpose which a decision maker exercising powers under ss 20 and 21(1) of the Act is authorised to take into account. It has been accepted that policies with a purpose of deterring bad behaviour or incentivising good behaviour, to further duties with respect to prison management and the good order and security of the prison, may be appropriate: see in the context of the Act, observations of Eames J in Kaufman[215] and with respect to similar powers in the Corrective Services Act 1988 (Qld), Byrne J in Gray, Hunter and Speedy.[216]

195 More specifically, in the exercise of the discretion to permit prisoners to have a computer in their cell, which is the subject of a highly developed and detailed policy, it is proper to take into account past misuse of a computer in breach of the policy as a reason to refuse further access, where that is for the purpose of deterring other prisoners from breaching the policy.

196 The fact that the general (or for that matter specific) deterrent effect of a particular act taken in the exercise of powers for the management of the prison may not be measurable - whether by those subject to the powers or by a court on review - does not, in my view, mean that it is an improper purpose. Deterrence is frequently an object of regulatory regimes even if its impact cannot be precisely evaluated.[217]

197 Prison authorities with responsibility for the management, good order and security of the prison, as well as the safety and welfare of prisoners will need to bring a broad range of considerations to bear in their management decisions. It is not the role of the Court to intervene in those assessments as to what will further these objectives, unless they are plainly inconsistent with the legislative scheme, or contravening other specific rights.[218]

198 It is open in my view for a Governor or other prison authority to seek to deter non-compliance with prison policies by acting consistently with those policies, including enforcing the stated consequences of their breach. I accept that this is a rational and proper consideration for prison authorities in exercising their discretionary powers. That is so, in my view, even if the precise effectiveness of actions to enforce policies on future compliance cannot be assessed, nor any specific evaluation made of their deterrent effect. While some actions or decision making by prison authorities taken for the purpose of incentivising good behaviour or deterring poor behaviour may in another context require a degree of objective evidence of effectiveness to justify them,[219] I do not consider that is necessary in this case. The decision in question was to decline to give access to an in-cell computer, a benefit which is entirely discretionary on the part of the prison authorities. Exercising that discretion in accordance with stated policy that access will be suspended or not granted in the event of past misuse of a computer in breach of the policy, to encourage future compliance or deter non-compliance, is a rational approach readily able to be justified by prison authorities' experience in prison management.

199 Mr McCabe has not established that Ms Westin had regard to an improper purpose in the exercise of her discretion not to restore access to his in-cell computer.

Was the decision legally unreasonable? (Ground 3)

Was there a manifestly unreasonable outcome or lack of intelligible justification?

200 Mr McCabe contended that the decision not to restore his in-cell computer was legally unreasonable, either through assessing the outcome of the decision, or by reason that there was no intelligible justification for it, relying on the principles in Minister for Immigration and Citizenship v Li.[220] He contended that if Ms Westin's decision was made on the basis that returning his computer without illicit material posed a risk to the good order of the prison, this outcome was legally unreasonable. He also contended that, putting aside punishment, which he contended was the (unlawful) purpose for the decision, there was no other intelligible justification for the decision.[221]

201 For the reasons above, I have not accepted that the purpose for Ms Westin's decision was punishment. I have also concluded that Ms Westin's stated purposes for declining to permit Mr McCabe access to his computer after he had misused it to deter access to pornography in prison were intelligible justifications for the decision. To the extent that Mr McCabe challenges the overall outcome of the decision as legally unreasonable, this also cannot be accepted. The outcome of the decision - that Mr McCabe would not have access to the discretionary benefit of a computer in his cell - was not unreasonable in circumstances where he had previously failed to comply with the clearly identified conditions of having access to that benefit, as stated in Commissioner's Requirement 2.1.2 and the Computer Agreement he had signed.

The consideration that the impact of removing access to the in-cell computer was, if at all, small

202 Ms Westin's evidence in her affidavit, noted above at [175(d)], was that she had considered the fact that Mr McCabe had access to computers in the prison library so that 'the impact, if any, on his ability to conduct litigation or other court proceedings, write letters and other documents and participate in education was small.'[222] Mr McCabe noted, in the context of his submissions on the unreasonableness ground, that Ms Westin provided no explanation why his access to computers was reasonable or could only lead to a small or non-existent impact.[223]

203 Mr McCabe's evidence was clear that the impact of loss of access to his computer on at least his ability to participate in education was significant. His uncontested evidence was that he was unable to use the Maple software which was essential to one of the two subjects in his Graduate Diploma, and could not be installed on the common computers; and that the conditions in and access to the prison library were such that he could not spend the necessary amount of time to pursue his other subjects as well as attend to his sentence and conviction appeals. Mr McCabe had brought some of these issues to the attention of Ms Westin in the letter he wrote to her requesting reinstatement of his computer, although in the letter he only foreshadowed having to withdraw from one subject, rather than necessarily having to withdraw from both subjects.[224]

204 While there was no evidence indicating any material effect of lack of access to his in-cell computer on Mr McCabe's legal matters, it is clear that there was some impact on his educational pursuits, and that the impact was not accurately assessed as 'small'. Ms Westin had material before her in making her decision which did not justify that conclusion.

205 While I consider that Ms Westin's conclusion in this respect was wrong, it does not appear to have been a prominent element of her reasons for refusing Mr McCabe's request for reinstatement of his computer. It was not a conclusion referred to in her letter to Mr McCabe of 23 March 2023, in which she stated that 'you are still able to utilise the computers in Education to continue your studies and prepare for your legal matters.'[225] A conclusion of that nature was, on the material then before her, broadly open, if Ms Westin understood at the time that Mr McCabe could not use the Maple software for one subject, but would be continuing with another subject.

206 The overall evidence, taking into account the reasons as later expressed in her affidavit, establishes that Ms Westin underestimated the effect on Mr McCabe's ability to continue his studies in the Graduate Diploma. However, I am not persuaded that this had the effect that her decision was legally unreasonable in the relevant sense. The consideration relating to his study was, although an element of her decision, not the only reason for it.

207 Commissioner's Requirement 2.1.2 refers, in the context of removal of a computer in case of breach, to the need to consider other options for making a computer available if it would have an impact on a prisoner's preparation for an imminent court case. It does not refer to any similar obligation with respect to access to education. In these circumstances, there was no inconsistency with the policy, such as may potentially give rise to a conclusion of legal unreasonableness, in giving the impact to Mr McCabe's distance education pursuits little weight.

208 I do not, therefore, consider that this element of Ms Westin's decision made it one which crossed the high threshold of legal unreasonableness. However it is appropriate to note that a proper consideration of any continuing effect on Mr McCabe's participation in education would be a relevant matter to which genuine consideration could be expected to be given in any future application he may make for reinstatement of the computer.

209 For the reasons above, I have concluded that Ms Westin's decision to decline to restore Mr McCabe's access to an in-cell computer was not affected by legal error.

Decisions with respect to contact visits challenged by Mr McCabe

210 Mr McCabe sought judicial review of two decisions with respect to access to contact visits.

211 First he sought review of Mr Pickering's 'decision to take away Contact Visits for a period of two weeks' (Pickering Contact Visits Decision).[226] This was characterised by Mr McCabe as having been made at the time of the Governor's disciplinary hearing on 5 December 2022.

212 Mr Pickering's position was that he did not make any decision with respect to contact visits. For the reasons below, I find that he did make a decision relevant to contact visits, although that decision is to be characterised slightly differently to the way Mr McCabe describes it.

213 Secondly, he sought review of Ms Westin's 'decision as to eligibility for contact and residential visits'.[227] This was elaborated in Mr McCabe's grounds of review and submissions as the decision made by Ms Westin when determining the content of the instrument by which the Contact Visiting Programme was authorised, Deputy Commissioner's Instruction 3.04, Visits: Personal - Professional - Adult Parole Board (Deputy Commissioner's Instruction 3.04).[228] In particular the challenge was to the provisions as to eligibility and the conditions on which the programme could be accessed.

214 Deputy Commissioner's Instruction 3.04 contains provisions applicable to a range of visits in addition to contact visits. It sets out the conditions of the Contact Visiting Programme in Part 2.0 but also contains provisions in other parts of the Instruction that are of more general application and which apply to contact visits.

215 It is appropriate to consider the challenge to the conditions of the Contact Visiting Programme first, and then turn to the challenge to Mr Pickering's decision.

216 The Act contains several provisions dealing with visits to prisoners. Section 47(1)(k) provides that prisoners have 'the right to receive at least one visit which is to last at least half an hour in each week under section 37'.

(1) With the permission of the Governor, a prisoner's relatives or friends may enter a prison and visit the prisoner.

(2) A relative or friend who visits a prisoner may see and speak with the prisoner but is not permitted to touch the prisoner, unless the visit is part of a contact visiting programme or residential visiting programme.

(3) The Governor may give to a visitor under this section such orders as are necessary for the management and good order and security of the prison.

(4) A visitor who disobeys a Governor's order is guilty of an offence.

Penalty: 5 penalty units.

218 Section 38 provides for contact visiting and residential visiting:

38 Contact visiting and residential visiting

(1) The Secretary may in accordance with the regulations by instrument approve contact visiting programmes under which a prisoner's family and friends may visit and have physical contact with the prisoner.

(2) The Secretary may in accordance with the regulations by instrument approve residential visiting programmes under which a prisoner's family may stay with the prisoner in the prison.

(3) The Governor of a prison must in accordance with the regulations bring to the attention of all prisoners eligible to take part in a contact visiting programme or a residential visiting programme the privileges offered by the programme.

(4) In this section family of a prisoner includes -

(a) a near relative of the prisoner; and

(b) any other person who has a long standing close personal relationship with the prisoner.

219 It was common ground in the parties' submissions that the right to visits referred to in s 47(1)(k) of the Act was a right to a non-contact visit, by reason of the limitation in s 37(2) that a visitor may not touch the prisoner, unless the visit is part of a contact visiting programme or residential visiting programme.[229] Any right to a contact visit arises under s 38 of the Act.

220 Regulation 79 of the Regulations makes further provision with respect to how a contact visiting programme is to be approved, as follows:

79 Contact visiting programmes and residential visiting programmes

(1) For the purposes of section 38(1) and (2) of the Act, an instrument that approves contact visiting programmes or residential visiting programmes must specify -

(a) the nature of the programme; and

(b) the persons who are eligible to participate in the programme; and

(c) the conditions of participation in the programme.

(2) For the purposes of section 38(3) of the Act, the Governor of a prison must ensure that a notice is displayed in the prison that brings to the attention of all prisoners eligible to take part in a contact visiting programme or a residential visiting programme the privileges offered by the programme.

The s 38 instrument: Deputy Commissioner's Instruction 3.04 - Part 2.0

221 It was common ground that the instrument by which the conditions of the Contact Visiting Programme were identified was that part of Deputy Commissioner's Instruction 3.04 which related to contact visits. That was primarily part 2.0 with some aspects of the general observations as to visits in part 1.0 also being relevant. The evidence was that Ms Westin had, in the exercise of powers delegated to her by the Secretary, issued that Deputy Commissioner's instruction.[230]

222 Part 2.0 of Deputy Commissioner's Instruction 3.04 contains the terms for the Contact Visiting Programme. Part 2.0 provides that:

A prisoner may participate in a Contact Visit Program subject to the following conditions:

The General Manager must be satisfied that adequate supervision can be provided. If not, the General Manager may limit participation.[231]

223 The Instruction then sets out a series of circumstances in which it was stipulated that a prisoner 'will be unable to participate in the Contact Visit Program'. These circumstances were all based on the situation where a prisoner had been charged with and/or found guilty of a prison offence. The length of time that prisoners were unable to participate depended on the nature of the prison offence with which the prisoner was charged or of which they were found guilty. Given that it is relevant to the challenge made by Mr McCabe to the validity of the conditions of the Contact Visiting Programme itself to understand how the conditions for participation interact with the disciplinary processes for prison offences, it is necessary to set out the conditions in full (underlining in the original):

• Where a prisoner has been charged with a prison offence committed during a contact visit the prisoner will be unable to participate in the Contact Visit Program between the time the prisoner is charged and the matter has been dealt with through a General Manager's Disciplinary Hearing (GMDH), or 21 days, whichever is less.
• Where a prisoner has been found guilty of a prison offence where the incident occurred during a contact visit, the prisoner will be unable to participate in the contact visit program for 21 days commencing from the time of the original charge.
• Any prisoner who is serving a sentence for introducing drugs into a prison or is found guilty of introducing drugs into a prison whilst undergoing a sentence will be unable to participate in the Contact Visit Program for the total period of the time in custody of the current sentence. The Deputy Commissioner, Custodial Operations may allow participation in the Contact Visit Program after a period of 12 months should exceptional circumstances exist. The Deputy Commissioner, Custodial Operations will advise the Commissioner when visits are restored under this provision.
• Where a prisoner has been found guilty of a prison offence (other than an offence committed on a contact visit or related to drugs or alcohol), and has received a fine or loss of privilege as a penalty, the prisoner will be ineligible to participate in the Contact Visit Program for a period of 14 days for each incident but not exceeding 30 days from the time of the imposition of the penalty. A loss of access to the Contact Visits Program is not considered to be a second penalty, but rather a consequence of poor behaviour.
• Where a prisoner has been found guilty of a prison offence (other than an offence committed on a contact visit or related to drugs or alcohol), and has received a reprimand as a penalty, the General Manager will have discretion to consider whether the prisoner's ongoing participation in the Contact Visit Program will be permitted. A recommendation on contact visit participation may be put to the General Manager by the Hearing Officer, after having considered the individual circumstances of the prisoner, (e.g. vulnerabilities or special needs of the prisoner, the impact to the prisoner's family or children etc) in issuing the reprimand. In the absence of a decision by the General Manager to allow participation in the Contact Visit Program, a prisoner issued a reprimand at a GMDH will be ineligible to participate in the Contact Visit Program for a period of 14 days for each incident but not exceeding 30 days from the time of imposition of the penalty.
• Where a prisoner has committed or alleged [sic] to have committed a prison offence related to drugs or alcohol the prisoner will be unable to participate in the Contact Visit Program from the time of the alleged commission of the offence for a period of two months or until the matter is dealt with through a GMDH or a court of law, or until a decision is made that the prisoner will not be charged, whichever occurs first. Where a matter is referred to the police for investigation or analysis and the General Manager has not been notified of the outcome of that investigation or analysis within two months, the prisoner is again eligible to participate in the Contact Visit Program pending the outcome of any resulting charge.
• In all of the above scenarios, the prisoner may continue to participate in non-contact visits (box or video).

Due consideration must be given to the rights of young people, including prisoners who are under 18 years of age and children who may be impacted by sanctions imposed on prisoners. Visits, including video visit contact with children and family, cannot be withdrawn as a punishment for disciplinary offences, except where it is demonstrably justifiable.[232]

224 Mr McCabe in his originating motion referred to the 'setting of eligibility' for contact visits as being unlawful and did not identify in his written submissions any specific elements of the Contact Visiting Programme as being invalid. However, it became clear in the course of the hearing that it was the above conditions as to loss of participation in contact visits following a charge with or finding of guilt on a disciplinary offence (Ineligibility Conditions) that he contended were beyond power or set for an improper purpose.[233] It was the fourth, bolded dot point above which was the condition which was relevant to the loss of contact visits in his case (Fourth Ineligibility Condition).

The challenge to the Contact Visiting Programme conditions

225 Mr McCabe's challenge to the terms of the Contact Visiting Programme was identified in grounds 4 and 5 in his proceeding against Ms Westin:

GROUND 4 - The defendant's setting of eligibility for contact and residential visits misconceived the scope of lawful power.

GROUND 5 - Further to Ground 4, the Defendant's setting of eligibility for contact and residential visit programmes was for an improper purpose, constituting jurisdictional error.

226 Mr McCabe contended that his challenge to the terms of the programme was appropriate as against Ms Westin as defendant, because she had taken responsibility for Deputy Commissioner's Instruction 3.04. Although Ms Westin did not give evidence that she had issued it, the copy of the instruction which was in evidence bore her name as the issuing authority.[234] Mr McCabe also accepted that she had authority to do so as delegate of the Secretary.[235] No issue was taken on behalf of Ms Westin as to her being the appropriate defendant for this purpose.

227 The arguments with respect to the Contact Visiting Programme ultimately raised a question as to whether, if I found any of the Ineligibility Conditions to be beyond power or made for an improper purpose, this would result in the invalidity of the entire programme or whether the offending conditions could be individually struck from the programme. This was not addressed in the parties' written submissions. Given the complexity of that issue and that its relevance, if any, depended on my conclusions, I informed the parties that I would permit them to address any such questions of relief and any appropriate orders after I had published my reasons.

Were the stipulations as to eligibility for the Contact Visiting Programme made for an improper purpose? (Westin Ground 5)

228 Mr McCabe's written submissions on the two grounds directed at invalidity of the Ineligibility Conditions referred to his submissions as to why the decision he had identified as having been made by Mr Pickering on contact visits was affected by error.[236] These were a detailed set of arguments which traversed a range of issues. Mr McCabe characterised some of those arguments as relevant to improper purpose, but they appear to have greater relevance to the arguments that the programme conditions were beyond power. As I understood his written and oral submissions, the gravamen of his argument as to improper purpose was as follows:

(a) Ms Westin's actual purpose in imposing the Ineligibility Conditions was a purpose of punishment;[237]

(b) Punishment is an improper purpose for the exercise of the s 38 power to set eligibility for the Contact Visiting Programme. The general powers in ss 20 and 21 cannot be used to impose punishment in that context;[238]

(c) Ms Westin's purpose, even if characterised as specific or general deterrence, or the welfare of prisoners by deterring them from repeated prison offences, was also improper, as this is the same as the purpose which is served by the disciplinary offence regime, being punishment;[239]

(d) Further, s 38 of the Act should be construed as having no purpose other than facilitating access to family and friends through facilitating contact visits. Any other purpose which does not facilitate access to contact visits, or any condition of the programme which limits that access, is outside the statutory purpose and invalid.[240]

229 The position of Ms Westin as identified in her evidence and submissions was that:

(a) The purpose of the Contact Visiting Programme was not punitive, and loss of contact visits following prison offences is a 'consequence of poor behaviour', which is the stated characterisation in Deputy Commissioner's Instruction 3.04.[241]

(b) The purposes of the Contact Visiting Programme are the 'non-punitive purposes of general deterrence, the maintenance of security and good order in the prison and encouraging good behaviour both specifically and generally in the prison'. The conditions providing for loss of access when prison offences are committed are for the same purposes.[242]

(c) These deterrence and incentive purposes, and a broader welfare purpose of the Contact Visiting Programme, are consistent with the Act and its objects as a whole, which include to provide for the management and security of prisons and the welfare of prisoners.[243]

230 Mr McCabe rejected the position that the Contact Visiting Programme involved an incentive scheme, on the basis that:

(a) he should be understood to have a right to contact visits, so the existence of contact visits itself could not properly be offered as an incentive';[244] and

(b) the conditions of the programme did not identify a criterion of good behaviour as an incentive, but simply imposed conditions removing access on a finding of guilt on a disciplinary offence.[245]

Analysis of whether Contact Visiting Programme was made with improper purpose

231 I have referred in paragraph 179 above to the principles relating to improper purpose. Specifically, the ground turns on the decision maker's actual improper purpose, and an applicant for review must establish that an 'operative subjective purpose' of the decision was improper.

232 Before turning in more detail to the Contact Visiting Programme and the arguments of the parties, it is appropriate to refer to the decision of Eames J in Kaufman, in which the validity of certain conditions on contact visits was considered in some detail_._[246] In that case, the Victorian Prison Drug Strategy 1992 provided a range of sanctions on persons who were classified as Identified Drug Users (IDU). Prisoners would be given levels of 'IDU status' by reference to having committed one or more prison offences based on drug use. The Drug Strategy provided for prisoners with an IDU status to lose contact visits, for periods of time increasing by reference to the number of drug related prison offences of which they had been found guilty.[247] An instrument had also been issued under s 38 of the Act authorising a contact visiting programme, which identified conditions for participation including loss of visits for prisoners found guilty of drug related offences, in similar terms to the Drug Strategy.[248]

233 Justice Eames identified three ways in which the authorisation of the removal of contact visits for prisoners who were guilty of prison offences may be found to be invalid:

(a) if the exercise of the power to remove visits was not in good faith and for improper purpose in that the true purpose, solely or substantially, was to punish the prisoner under the guise of exercising another function or power;

(b) even if the power is exercised in good faith, it may be invalid as being 'beyond power if, on proper analysis of the power, it does not extend to authorising the action which was taken'; and

(c) if the power is exercised in a manner which could be characterised as legally unreasonable.[249]

234 With respect to the question of improper purpose, Eames J concluded that the purpose of the Drug Strategy was not to punish for prison offences, because the purposes involved a 'carrot and stick' approach to 'prevent drug use and to prevent drugs coming into the prisons, and additionally, to deter and rehabilitate prisoners as to drug use'.[250] His Honour concluded with respect to the contact visiting programme authorised under s 38, which had similar conditions of ineligibility, that it had the same purposes which were authorised purposes.[251]

235 Justice Eames rejected a submission that the imposition of punishment was not merely a consequence of the exercise of other legitimate powers, but was rather a primary purpose for the conditions of the contact visiting programme.[252] His Honour concluded that while the conditions turned on the commission of offences, escalating in the periods of loss of access by reference to subsequent offences, and were severe, they were 'conditions which might reasonably be imposed as a consequence of adopting a regime for contact visits which encourages participants to be non-users of drugs, a perfectly legitimate objective and an appropriate condition to be imposed for contact visits'.[253] While he accepted that there may be 'more of a punitive character to the exercise of power' in the case before him than other cases cited, he did not accept that 'properly characterised, one purpose of the imposition of sanctions was punishment for a prison offence'.[254]

236 Mr McCabe contended that Eames J was wrong in this conclusion in Kaufman, and that I should not follow it. I could only depart from a decision of a judge of this Court if I was persuaded that it was clearly wrong.[255] That issue does not strictly arise given that Eames J was considering a different set of policies (the Drug Strategy and an earlier iteration of a contact visiting programme), and the purposes of a different decision-maker, so that his conclusion does not have direct application in the present context. I am not persuaded in any case that his Honour's analysis was wrong, and it provides assistance in considering the purposes of the Contact Visiting Programme in this case.

The purposes for which the power to authorise a contact visiting programme in s 38 may be exercised

237 To determine whether the purposes for which Ms Westin approved the programme and the Ineligibility Conditions were improper it is first necessary to understand the purposes for which the power in s 38 of the Act may be exercised. This is a question of statutory construction.

238 Plainly, s 38 has a purpose of furthering prisoner welfare by providing a mechanism by which contact between prisoners and their friends and family can be facilitated. Understanding s 38 in the context of the Act, the power may also be exercised to further the purposes of the Act as a whole which relevantly include, in s 1(a) of the Act, the purpose of providing for the 'establishment management and security of prisoners and the welfare of prisoners'.[256] As the responsibilities of prison officers and Governors under ss 20 and 21(1 of the Act apply to all exercises of their powers and functions with respect to prisoners, it will also be a proper purpose, in authorising the conditions and terms of any contact visiting under s 38, to have regard to matters relevant to the management, security and good order of prisons as they may apply to contact visiting, as well as prisoner welfare.

239 It follows that I do not accept Mr McCabe's argument that s 38 of the Act has no purpose other than facilitating access to family and friends through facilitating contact visits. While that is plainly its primary purpose, it is not the sole purpose by reference to which the s 38 power may be exercised. The High Court has observed that legislation rarely pursues a single purpose at all costs.[257] It cannot be assumed that a legislative provision will pursue a purpose, even the primary purpose, to the fullest possible extent if this is contrary to the manifest intention of the legislation as construed as a whole.[258] In this case, reading s 38 in context makes it plain that its purpose must be construed taking into account the other statutory duties and responsibilities of those who will administer a contact visiting programme in practice.

240 It is clear that s 38 does not have any purpose of imposing punishment on prisoners. That is so both by reference to its text, which is concerned with the authorisation of a contact visiting programme, but also by reference to the structure of the Act as a whole, which deals with punishment of prisoners expressly in the context of Part 7. Any exercise of the s 38 power for the purpose of inflicting a punishment is not authorised and would constitute an improper purpose.

241 However, if the s 38 power is exercised to authorise conditions of the programme for proper purposes (including both facilitating visits and enabling prison Governors and officers to facilitate the discharge of their responsibilities for the management, good order and security of the prison) the fact that the application of a condition may have adverse consequences for a prisoner does not render the exercise of the power unlawful: Bromley v Dawes;[259] Kaufman.[260] That is the case even if a prisoner might regard the application of the condition as punitive.

Were the Contact Visiting Programme Ineligibility Conditions imposed for the purpose of punishment?

242 Ms Westin gave evidence that the Ineligibility Conditions as stated in Deputy Commissioner's Instruction 3.04 did not impose a 'second penalty' but rather were 'a consequence of poor behaviour'. She said that the way the eligibility conditions were described in the instruction:

... also align[s] with my understanding of the reasons for the loss of access to the Contact Visit Program under 2.0 of DCI 3.04, including that it is a consequence of poor behaviour. Put another way, eligibility for the Contact Visit Program incentivises good behaviour. And good behaviour is necessary for the security and good order of the prison. Further, these eligibility requirements, which are publicly available, also have a general deterrent effect.[261]

243 This evidence as to the purposes of the eligibility conditions being to incentivise good behaviour was criticised by Mr McCabe but not contradicted. I accept that this was Ms Westin's good faith opinion as to the purposes of the Instruction.[262] Mr McCabe did, however, point to specific elements of Deputy Commissioner's Instruction 3.04 which he said demonstrated that the purpose in authorising conditions of the programme was in fact to impose punishment. First, he referred to the assertion in Deputy Commissioner's Instruction 3.04 that the loss of contact visits following the imposition of a penalty for a prison offence is 'not considered to be a second penalty, but rather a consequence of poor behaviour'.

244 That statement is not a helpful way of identifying a distinction between punitive and non-punitive outcomes. A penalty is in reality one form of consequence for poor behaviour, and the description of the loss of contact visits as a consequence of poor behaviour does not preclude its characterisation as a penalty. Nor, if the loss of contact visits is in substance a penalty, could this statement prevent the Court in its review function determining that it is in fact to be regarded as such. I do accept, however, that construing the terms of the document fairly, the statement is consistent with a purpose of limiting access to the Contact Visiting Programme where participants have exhibited poor behaviour, rather than a purpose of further punishing prisoners for prison offences.[263]

245 Secondly, Mr McCabe refers to the following statement in Deputy Commissioner's Instruction 3.04 part 2.0. which follows the statement of the circumstances in which access to contact visits will be suspended: (emphasis added)

Due consideration must be given to the rights of young people, including prisoners who are under 18 years of age and children who may be impacted by sanctions imposed on prisoners. Visits, including video visit contact with children and family, cannot be withdrawn as a punishment for disciplinary offences, except where it is demonstrably justifiable.[264]

246 The assumption which impliedly underlies the bolded sentence is that visits can be withdrawn as a punishment for disciplinary offences where is it demonstrably justifiable to do so.[265]

247 Ms Westin's evidence about this statement was that: (emphasis added)

Notwithstanding the terms of that paragraph, there is no power for a General Manager to withdraw visits as punishment for disciplinary offences. Rather, as set out in DCI 3.04, if the General Manager decides to impose a reprimand there is discretion as to whether a prisoner remains eligible to participate in the Contact Visit Program. The purpose of the paragraph ... is to remind General Managers that for visits to be withdrawn as a consequence of disciplinary offences where there is discretion, that needs to be demonstrably justified. It also operates to remind General Managers that where, in exceptional circumstances, they chose to override the general position laid out in DCI 3.04 and not withdraw access to the Contact Visit Program despite DCI 3.04 providing for that course of action ... such a course must be demonstrably justified.[266]

248 The bolded element of Ms Westin's affidavit above relates to withdrawing visits and seeks to explain the reference in Deputy Commissioner's Instruction 3.04 to withdrawal of visits as 'punishment for disciplinary offences'. The explanation that it is to remind General Managers that where they exercise their discretion to impose a penalty (carrying loss of visits as a consequence) rather than a reprimand (which may not have that consequence) their choice will need to be demonstrably justified is not readily reconciled with the specific statement that 'visits ... cannot be withdrawn as a punishment for disciplinary offences, except where it is demonstrably justifiable'. However the statement in Deputy Commissioner's Instruction 3.04 must be read against the background of the substantive paragraphs preceding it, which refer to the circumstances in which a prisoner will be unable to participate in a visit. None of those paragraphs refer to withdrawing visits as a punishment for a disciplinary offence. Each refers to being 'unable to participate' or 'ineligible to participate' in the Contact Visiting Programme following a disciplinary charge or offence, which is broadly consistent with a purpose of limiting participation in the Contact Visiting Programme where prisoners are of bad behaviour.

249 The Fourth Ineligibility Condition provides a discretion to recommend continuing contact visit participation where a prisoner has received a reprimand (rather than a fine or loss of privileges). The reference to not withdrawing visits as a punishment for disciplinary offences except where demonstrably justifiable, while poorly expressed in that it refers to punishment, can be understood as a guide to that discretion not to adopt the otherwise applicable course of ineligibility for visits. Read fairly it does not alter the character of the Ineligibility Conditions as intended to limit participation where the prisoner shows poor behaviour.

250 Despite the problematic language of the aspects of Deputy Commissioner's Instruction 3.04 referred to by Mr McCabe, the policy as a whole is broadly consistent with having been made with the purposes identified by Ms Westin of prisoner welfare, as well as incentivising good behaviour and deterring poor behaviour. I consider those purposes are rational and proper objectives in the context of contact visits, both because it is open to prison authorities to conclude that prisoners must remain well behaved while participating in contact visits; and to conclude that it will further the good order of the prison more generally if the Contact Visiting Programme is structured to incentivise good prisoner behaviour.[267]

251 Taking into account that Mr McCabe bears the onus of establishing that a power is exercised with an improper purpose, it is not established that Ms Westin's purpose in authorising the Contact Visiting Programme and the Ineligibility Conditions was to impose a punishment on prisoners, or was otherwise improper.

Was the setting of eligibility conditions in the Contact Visiting Programme beyond power? (Westin Ground 4)

252 It was not contended by Mr McCabe that Ms Westin did not have power to issue an instrument authorising the Contact Visiting Programme.[268] The issue he raises is whether the Ineligibility Conditions are invalid. That requires consideration of whether the discretion conferred by s 38 of the Act on the Secretary or delegate to authorise contact visiting programmes extended to authorising a programme involving the conditions limiting a prisoner's eligibility to participate in contact visits after being charged with or found guilty of an offence.

253 Mr McCabe contended that the 'setting of eligibility' for contact visits, in particular the Ineligibility Conditions, was ultra vires on the basis that it was repugnant to reg 79 of the Regulations and Part 7 of the Act relating to discipline.[269] He contended that:

(a) Part 7 of the Act relating to prison discipline 'is exclusionary and controls operations for all prison discipline'. Section 53(4), in providing for the Governor to impose any of the specific penalties listed in that sub-section, implies that there is no other power to impose penalties for a disciplinary offence. Further, s 53(6) limits the number of penalties to one per offence. These provisions set out 'the upper boundaries of disciplinary power for disciplinary offences';[270]

(b) The finding of guilt on a disciplinary offence is the fact that gives rise to the power to impose disciplinary penalties under Part 7 but also the loss of visits under the Contact Visiting Programme;[271]

(c) Powers under ss 21(1) and 20 and the power to set eligibility for a contact visiting programme by instrument cannot defeat the 'express and implied purposes of [the] specific provisions' as to prison discipline in Part 7.[272]

(d) Further, the eligibility conditions for the Contact Visiting Programme could not abrogate 'a statutory privilege connected to the Plaintiff's human rights'.[273]

254 Mr McCabe had also contended in written submissions that reg 79(1)(b) 'covers the field in relation to eligibility' for contact visits,[274] and that the conditions imposed under the Contact Visiting Programme were inconsistent with that regulation. This was the basis of his application for a declaration that the setting of conditions was 'repugnant to' reg 79. During the hearing he appeared to contend that reg 79 in some way itself set substantive eligibility to participate in a contact visiting programme rather than simply stipulating the categories of information which were to be contained in an instrument.[275] This was not, however, further explained or pursued and I do not consider that aspect of the originating motion and written submissions further.

(a) the starting point is that there is no right or privilege to participate in the Contact Visiting Programme;[276]

(b) the eligibility requirements 'purport to be and are in fact directed to the twin purposes of (a) the management and security of prisons and (b) the welfare of prisoners' which are not repugnant to the Act;[277]

(c) loss of access to contact visits is a 'consequence of poor behaviour' rather than a punishment; in contrast with the imposition of a penalty such as a fine as the consequence of a finding of guilt regarding a prison offence under s 53(4), which is a punishment;[278]

(d) the fact that Deputy Commissioner's Instruction 3.04 results in loss of eligibility for contact visits when a prisoner is found guilty of a prison offence and a fine or loss of privileges is imposed does not breach s 53(6) of the Act because s 53(6) requires only that the Governor must not impose more than one of the penalties listed in s 53(4). Loss of contact visits not being a privilege, it is not captured by s 53(4).[279]

Whether the Contact Visiting Programme Ineligibility Conditions are Ultra Vires - Analysis

256 Section 38(1) confers a broad discretion on the Secretary, or delegate, to 'in accordance with the regulations by instrument approve a contact visiting programme under which a prisoner's family and friends may visit and have physical contact with the prisoner'.

257 The s 38(1) discretion to approve a contact visiting programme is in very broad terms. One requirement is that it must be exercised in accordance with the Regulations. Regulation 79(2) requires that the instrument specify the nature of the programme, the persons who are eligible to participate in it, and the conditions of participation, but does not contain any substantive stipulations as to eligibility, or what the conditions of participation may be. The scope of the discretion as to these matters is therefore to be determined by reference to the purpose of the s 38 power to approve a contact visiting programme, assessed by reference to the Act as a whole,[280] including any limitations which the Act may impose.

258 The question in this case is whether the provisions as to prison discipline in Part 7 of the Act impose limitations or constraints on the s 38 discretion, and if so, whether it was outside the scope of the discretion to impose some or all of the Ineligibility Conditions identified in the Contact Visiting Programme.

259 In Kaufman, the plaintiff, in contending that the Drug Strategy and s 38 contact visiting programme conditions were beyond power because of inconsistency with Part 7, relied on the principle of statutory construction stated by Deane J in Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation & Ors:[281]

... where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions ... Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to a particular subject matter, would constitute a departure from that intention by encroaching on that subject matter.

260 This is closely related to the principle stated by the High Court in Anthony Hordern[282] that where an Act contains a specific power the exercise of which is made subject to specific conditions, it excludes the use of general powers to achieve the same outcome. In that case, Gavan Duffy CJ and Dixon J stated:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.[283]

261 The principle of construction identified in Anthony Hordern has been frequently applied.[284] In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom[285] Gummow and Hayne JJ considered the principle as applied in Anthony Hordern and subsequent cases, and identified the central question as follows:

... it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.[286]

262 In Minister for Immigration and Citizenship v SZKTI the High Court emphasised that the principle would not apply to limit one power if the two statutory powers were able to be construed as co-existing without being repugnant to each other.[287]

263 The present case does not strictly raise a question of repugnancy as between two statutory provisions but as between the statutory Part 7 regime, and the instrument approved in exercise of the discretion under s 38 of the Act. The question remains one of properly construing the scope of the discretion conferred by s 38, and whether the Contact Visiting Programme authorised under s 38 contains conditions which exceed the scope of that discretion as so construed. Nevertheless, the principles in Refrigerated Express Lines and Anthony Hordern are of assistance in construing the statutory scheme in order to understand the proper scope of the s 38 discretion.

264 The Anthony Hordern principle has been considered and applied in the context of corrections legislation. In Hamzy v Commissioner of Corrective Services (NSW)[288] an argument was made that the existence of powers to make a segregated custody direction under s 10 of the Crimes (Administration of Sentences) Act 1999 (NSW) meant that no other power in the Act could be used to authorise segregation. That argument was rejected on the basis that s 78A of the same Act expressly authorised separation of prisoners under a regime of custodial management, and included an express provision in s 78A(4) that no segregated custody direction was required for such separation. There was no repugnancy between the provisions in these circumstances.[289] They were not in any tension or conflict and could co-exist.[290]

265 In Sandery v South Australia[291] Olsson J held that separate confinement was not authorised by general management and control powers conferred by the Correctional Services Act 1982 (SA), where the Act made separate and specific provision for separate confinement to be authorised by an order made under the statute.[292]

266 In VYZ by next friend XYZ v Chief Executive Officer of the Department of Justice[293] Tottle J considered whether lengthy confinements of juvenile offenders to their cells were authorised by the Young Offenders Act 1994 (WA). Powers in that Act and in regulations made under that Act authorised prison officers to:

(a) confine a detainee to sleeping quarters if it was found that the detainee had committed a detention offence, subject to conditions including monitoring and access to fresh air, exercise and staff company for at least 30 minutes every three hours; [294] and

(b) confine a detainee to their cell in order to maintain good government, good order or security in a detention centre, with conditions including the provision of one hour of exercise each six hours during unlock hours.[295]

267 The primary reason for locking offenders in their cells was staff shortages, and offenders were not released for exercise at three or six hourly intervals. It was contended by the defendant that a separate power under s 11D of the Young Offenders Act as to use of restraints authorised the confinement of detainees to sleeping quarters and that this power was not limited by any precondition that they had committed a prison offence, nor subject to the requirements to provide hours of exercise. The Court, referring to Anthony Hordern, accepted that the existence in the Act of the specific powers to authorise confinement in sleeping quarters implied 'that the power to confine a detainee to sleeping quarters is not to be found elsewhere in the Act' and rejected the contention that confinement was authorised by s 11D.[296]

268 The conclusion reached by Eames J in Kaufman on repugnancy was that Part 7 of the Act did cover the field with respect to punishment of disciplinary offences. However, he held that there was no repugnancy or inconsistency between Part 7 of the Act and the conditions making prisoners ineligible for visits if they had been found guilty of drug or alcohol related disciplinary offences, which were conditions of the relevant s 38 instrument, and the Drug Strategy.[297] His Honour stated:

... whilst Pt 7 manifests an intention to cover the field with respect to punishment of prison offences I do not consider that it manifests an intention that it was only pursuant to disciplinary proceedings under that Part whereby a prisoner might be denied the benefit of a privilege which expressly was provided for in a section of the Act or under the regulations. That is particularly so where the loss of the privilege could not be imposed as a penalty under s 53(4), and where the terms and conditions of access to the privilege were expressly and separately provided for in the Act and Regulations. There is no repugnancy between the provisions of Pt 7, on the one hand, and the denial of the s 38 privilege by reference to the exercise of the power under s 21(1) [which authorised the Prison Drug Strategy], on the other hand.[298]

Section 38 is a distinct regime, and imposing a condition that a prisoner not have the status of being a person found guilty of a drug offence seems to me to be akin to a consequence which might flow, for example, from a conviction (such as disqualification as a Member of Parliament) rather than as a punishment for that finding of guilt. There is no inconsistency between the operation of Part 7 and the imposition of such a condition under s. 38.

In my view, the imposition of the condition which denies contact visits for periods of time following a finding of guilt of a drug or alcohol offence is authorised under s. 38. ... (emphasis added).[299]

270 His Honour concluded with the observation that '[w]hether other conditions of the programme would be similarly authorised is a matter which does not fall to be decided with respect to this plaintiff'.[300]

271 It was directly relevant to Eames J's conclusion that he regarded the withdrawal of the contact visits not as an additional penalty upon a finding of guilt for the prison offence of drug use, but as a 'determinant of the status of the prisoner as a drug user, a status which is a relevant consideration to be taken into account with respect to participation in a contact visit programme.'[301]

272 The conclusion of Eames J that Part 7 of the Act manifests an intention to cover the field with respect to punishment of prison offences is, with respect, clearly correct.[302] It is a Part titled 'Prison Discipline' and contains very detailed procedural requirements for dealing with prison offences. These include provision for 'proper investigation' by an appointed disciplinary officer of suspected offences, which must include an opportunity for the prisoner to make an explanation;[303] the laying of charges in writing, with copies to the prisoner;[304] scope for prisoners to request a different Governor to hear the charge;[305] and requirements for the conduct of the hearing including giving the prisoner the opportunity to call witnesses and cross examine the person conducting the case against the prisoner.[306] Section 53(4) provides for the penalties which may be imposed, and s 53(6) provides that the Governor must not impose more than one of those penalties for each prison offence committed.

273 The power to impose a penalty for a prison offence is, therefore, a 'special power, subject to limitations and qualifications'.[307] It is not in my view open to use another broad power in the Act, such as the general s 38 power to approve a contact visiting programme, to achieve the outcome of discipline or penalty for a prison offence through another means. There is nothing in the language of s 38 that suggests that the discretion to approve a contact visiting programme was intended to have a breadth that may displace other more specific provisions in the Act, or to achieve outcomes to the same effect as the penalties provided for by Part 7, without observing the protective requirements and limitations applicable to that Part.[308]

274 I consider that the Fourth Ineligibility Condition in the Contact Visiting Programme, in requiring automatic loss of prison visits in the event of a finding of guilt and imposition of a penalty for any prison offence imposed an additional disciplinary penalty inconsistent with both the terms and the clear intent of Part 7 as the comprehensive code for prison discipline. The use of the s 38 power to compel removal of contact visits, solely on the criterion of a finding of guilt for a prison offence, and imposition of a penalty for that offence, is in my view inconsistent with the comprehensive regime in Part 7 which both identifies and limits the penalties that can be applied for prison offences.

275 I do not consider this conclusion to be inconsistent with Kaufman.

276 Justice Eames concluded that the s 38 regime for approval of a contact visiting programme is a 'distinct regime' from Part 7, and that Part 7 did not cover the field as to the removal of benefits or privileges.[309] I agree that the disciplinary regime in Part 7 of the Act does not prevent the use of other powers under the Act, even where that may have the consequence of removing discretionary benefits from, or imposing adverse consequence on, a prisoner. As discussed above in the context of the improper purpose ground, that is the case where the powers are not exercised for the purposes of punishment, even if the effect in practice may be experienced as punitive. Thus the discretionary power in s 38 can be used to approve a contact visiting programme where access may be limited by reference to conditions, or may be removed for purposes consistent with the Act.

277 Importantly, Eames J held that even though withdrawal of contact visits following findings of guilt on drug related prison offences may appear to be 'an additional penalty for the prison offence', it was possible to understand the finding of guilt as 'merely being taken as the determinant of the status of the prisoner as a drug user, a status which is a relevant consideration to be taken into account with respect to participation in a contact visit programme.'[310] I respectfully agree. Whether a prisoner is using drugs is plainly relevant to decisions about permitting contact visits, particularly having regard to 'the important role which contact visits play in drug offending'.[311]

278 Justice Eames expressly left open the question of whether other conditions of a programme would be authorised under s 38.[312] He also noted a specific complaint about an ineligibility condition relating to loss of contact visits for offences other than drug or alcohol offences but did not consider it as it was not relevant to the plaintiff before him.[313]

279 Here, the Ineligibility Condition applied to Mr McCabe was the Fourth Ineligibility Condition, which required removal of contact visits for two weeks upon a finding of guilt and imposition of a fine or loss of privilege on any prison offence. It was not limited to drug and alcohol related offences. It also did not turn (as did the first and second of the ineligibility conditions)[314] on the offence having been committed during a contact visit, which is plainly a circumstance of direct relevance to suitability to participate in a contact visiting programme.

280 Loss of contact visits could therefore, automatically arise under the Fourth Ineligibility Condition in circumstances with no apparent relevance to a contact visiting programme. This would include, for example, where a prisoner has engaged in work in a prison industry in a careless or negligent matter, an offence under reg 65(1)(u) of the Regulations. The condition cannot in my view be regarded as a determinant of a status relevant to contact visiting. It is only determinative of the fact that the prisoner had been found guilty of, and penalised for, committing a prison offence.

281 The fact that the loss of contact visits is not one of the outcomes which a Governor may impose pursuant to s 53(4) on a finding of guilty does not alter my conclusion. It was contended that because loss of contact visits was not one of the outcomes in s 53(4), it cannot be controlled by the disciplinary regime and is not inconsistent with it.[315] In Kaufman Eames J noted that contact visits were not a privilege for the purposes of s 53(4) and thus loss of contact visits could not be imposed as a penalty under that section. He considered that this reinforced his conclusions that the Act did not manifest an intention that 'it was only pursuant to disciplinary proceedings under that Part whereby a prisoner might be denied the benefit of a privilege which expressly was provided for in a section of the Act or under the regulations', and that such a 'privilege' could be denied in the exercise of power under s 21(1).[316]

282 I accept that s 21(1) may authorise a Governor or delegate to remove an entitlement to a contact visit in appropriate circumstances. However that is not the issue that arises here. The question is whether the discretion in s 38 to approve a contact visiting programme should be regarded as confined by the specific provisions of Part 7, including s 53(4). I consider that a condition requiring suspension of contact visits where there has been a penalty imposed for any prison offence, which cannot be identified as effectively being a determinant of a relevant status such as drug user or of misconduct during conduct visits, is inconsistent with:

(a) s 53(4), in that it stipulates what a Governor may do after finding a prisoner guilty of a prison offence, and limits the options to the penalties identified in paragraphs (a) to (c); and

(b) the clear intention in s 53(6) that a prisoner only receive one penalty per offence.

283 The use of a condition on the s 38 contact visiting programme to remove visits following a prison offence avoids the substantive limitations in Part 7 on what kind of disciplinary measures can be imposed for prison offences. To the extent that the loss of contact visits pursuant to the Fourth Ineligibility Condition purported to be an automatic consequence of bad behaviour, rather than a penalty, it also avoided aspects of the procedural protections applicable to disciplinary hearings, in that there is no potential for a prisoner to make submissions in the disciplinary hearing as to why loss of contact visits should not be imposed.

284 I have accepted that punishment was not the purpose of the condition, and also accept that the intention was to encourage good behaviour and deter bad behaviour. Conditions directed to that end which did not turn solely on a finding of guilt and imposition of a penalty for any kind of prison offence would not be inconsistent with the separate, comprehensive, Part 7 regime. However, the policy in Deputy Commissioner's Instruction 3.04 did not, as it might have done, impose a distinct condition of eligibility that prisoners must be of good behaviour as assessed, for example, by the Governor. Rather, as submitted by Mr McCabe, 'the only criterion was not committing a disciplinary offence'.[317]

Conclusion as to the Contact Visiting Programme

285 For the above reasons, the discretion conferred by s 38 of the Act did not extend to authorising the Fourth Ineligibility Condition of the Contact Visiting Programme. I have not identified any other aspect of the programme as beyond the power conferred by s 38. The parties in the course of the hearing requested the opportunity to make submissions on questions relating to severance of any invalid condition and other questions relating to relief after I have given reasons on the grounds of review. For that reason I will not address further the consequences of this conclusion until I have heard submissions from the parties.

Consequences of findings as to Contact Visiting Programme Ineligibility Conditions on challenge to Pickering Contact visits decision

286 If I am correct in my conclusion that the Fourth Ineligibility Condition of the Contact Visiting Programme was beyond power, a question arises as to the status of Mr McCabe's challenge to the decision he contends was made by Mr Pickering to apply the policy.

287 Mr McCabe, in the course of submissions at the hearing, submitted that the resolution of the grounds of judicial review in the Westin proceeding relating to the Contact Visiting Programme 'eliminates the need to even look at grounds 1 to 4 in the matter of Pickering' which relate to contact visits.[318] I understood this to be on the basis that Mr McCabe contended that Mr Pickering had applied the condition in the Contact Visiting Programme that was, according to his challenge, invalid, so that the decision must also be affected by legal error.

288 It was contended for Mr Pickering that he made no decision, and the Contact Visiting Programme terms and conditions simply took effect.[319]

289 My conclusion is that although Mr Pickering did not regard himself as having made a decision, he did in fact make a decision which affected Mr McCabe's interests in participating in the Contact Visiting Programme. The decision appears to have been made by reference to, or taking into account, a condition of the Contact Visiting Programme that I have concluded was beyond power.

290 Given that the parties did not address this potential outcome in submissions, and also requested to address me on any matters arising from the invalidity of part or all of the Contact Visiting Programme following my decision, I will not address the outcome of grounds 1 to 4 of Mr McCabe's originating motion in the Pickering matter. The nature of any orders following from that conclusion will be a matter on which the parties can address me when I hear further submissions.

291 If, however, I am wrong in my conclusion and the Contact Visiting Programme was not invalid in any respect, Mr McCabe's challenge to Mr Pickering's decision would remain to be considered by reference to the grounds he has identified in his Amended Originating Motion. I therefore consider these grounds below.

Preliminary issues relevant to the challenge to the Pickering decision

292 Mr McCabe identified five grounds on which the decision of Mr Pickering was affected by jurisdictional error.[320] Before turning to those grounds, there are two preliminary issues relevant to each of the grounds:

(a) whether Mr Pickering made a decision, and if so, how that decision should be characterised; and

(b) whether there is a 'right' to contact visits, and how that right should be characterised.

Did Mr Pickering make a decision and, if so, what was the nature of the decision?

293 Mr McCabe contended that Mr Pickering, at the Governor's disciplinary hearing on 5 December 2022, made a decision that he would lose contact visits for two weeks, as well as the decision to fine him $100 and the alleged decision that he lose access to his computer.[321]

294 It was submitted for Mr Pickering that he did not make any judicially reviewable decision with regard to contact visits.[322] He did not make a decision about the Contact Visiting Programme; rather he found Mr McCabe guilty of the prison offence and fined him $100.[323] It was a decision 'to select one of three options in s 53(4)'.[324] It was then the Contact Visiting Programme instrument which was an 'automatic response' which resulted in the withdrawal of Mr McCabe's access to the policy.[325]

295 Crown Counsel acknowledged in the course of the hearing that Mr Pickering's decision at the disciplinary hearing 'affected contact visits because the consequence of the decision was that Mr McCabe became ineligible for contact visits'.[326] The question was then said to be 'whether the consequence that flowed from that decision, through application of the policy, was lawful'.[327]

296 The Contact Visiting Programme was not a self-executing instrument; it required at minimum a decision as to the relevant condition in the Contact Visiting Programme, which was then applied to prevent Mr McCabe from accessing contact visits for two weeks.[328]

297 Mr Pickering's decision making at the hearing extended beyond a simple determination that a relevant part of the Contact Visiting Programme applied to render Mr McCabe ineligible for two weeks. Relevantly, the Fourth Ineligibility Condition and the following dot point in Part 2.0 of Deputy Commissioner's Instruction 3.04, gave rise to a decision to be made by the Governor hearing the disciplinary hearing as to whether to impose a penalty (thus triggering the loss of contact visits if the policy was then applied) or to impose a reprimand, which then gave a discretion to recommend that there be no loss of contact visits.

298 The decision which fell to be made with respect to contact visits was also reflected in the 'Checklist for Hearing Officers' which had been completed for Mr McCabe's hearing, and which was in evidence.[329] On the third page of the document the following is recorded:

299 The options identified under the 'Referrals' heading to '[r]ecommend to General Manager that the prisoner's contact visit eligibility be unaffected by finding of guilt' and '[m]ake no recommendation to GM (i.e. prisoner's eligibility for contact visits is affected by finding of guilt' appear to recognise the existence of a discretion on the part of a hearing officer to consider whether contact visits should be lost. That discretion appears to arise both by way of a potential to recommend to the General Manager that the usual position in Deputy Commissioner's Instruction 3.04 not be applied if there is a finding of guilt (even if a penalty is applied), as well as the discretion to apply a reprimand only (and thus avoid the usual position of loss of contact visits, in accordance with the Fourth Ineligibility Condition).

300 No box was ticked reflecting a decision between these options. However, Mr Pickering's evidence as to how he approached the disciplinary hearing was consistent with him having understood that he had a discretion to exercise. He said that after finding Mr McCabe guilty he considered a number of matters in deciding the penalty, including:

That he would lose access to the Contact Visits program for two weeks as a consequence of deciding not to reprimand him ...

The impact loss of contact visits would have on him and his family and the nature of contact with his family during the two week period. I knew from my experience in prisons how important prisoners find contact visits and other close connections for their general wellbeing. I well understood that the Plaintiff would find the loss of contact visits a heavy burden even though it would be for a relatively short period;

That he could maintain contact with family through a box visit, zoom calls, telephone calls and by mail during the period;[330]

The only way that the loss of contact visits could have been avoided in this case was if I had decided to reprimand the Plaintiff. However, even though I was aware that a consequence of the guilty finding and fine was that he would lose his eligibility to participate in contact visits for two weeks (and that this would diminish the quantity and quality of his contact with his family or other close connections) I considered that I needed to impose a fine to ensure the consequence for introducing pornography into the prison was sufficiently severe to act as a deterrent to both the Plaintiff and other prisoners. I also considered that that impact on the Plaintiff on his loss of access to contact visits was softened by the fact that it was for a relatively short period (two weeks) and he could maintain contact with his family through a box visit, by Zoom, by telephone and by ordinary mail.[331]

302 I conclude that Mr Pickering made a decision not to exercise the discretion to reprimand, but instead to impose a fine on Mr McCabe and therefore to subject him to the loss of contact visits pursuant to the Contact Visiting Programme.

What is the nature of the entitlement to contact visits?

303 The parties took different positions on whether the statutory scheme relating to the Contact Visiting Programme gave rise to a 'right' to contact visits, which became relevant to various arguments put on the grounds of review. Mr McCabe contended that s 38 gave rise to 'an acquired right' to contact visits on the part of prisoners,[332] at least from the time any programme was authorised under s 38. Mr McCabe accepted that this was 'subject to eligibility' but took the view that eligibility conditions could not fetter the right once contact visits were permitted.[333] This was effectively because the power to authorise a contact visiting programme could only be exercised to benefit the welfare of prisoners, and facilitate contact visits, and could not limit access to contact visits by conditions.[334]

304 It was submitted for Ms Westin and Mr Pickering that there is no 'right' to access the Contact Visiting Programme, nor is it a privilege for the purposes of s 53 of the Act.[335] The only basis for contact visits is the discretionary conferral of the programme under s 38 of the Act.

305 Ms Westin's evidence was also to the effect that access to contact visits, even after a s 38 instrument is issued, was ultimately discretionary. Ms Westin stated that a prison general manager:

... can always depart from a CR or DCI in the exercise of their powers under the Act, if the circumstances warrant it. That means, in this case, if necessary the [prison] General Manager could have authorised a "special" contact visit even though the Plaintiff was ineligible for the program. That could occur if, for example, the impact on the Plaintiff of the loss of a contact visit was particularly onerous.[336]

306 That position is consistent with the status of a prison administrative policy, such as a Commissioner's Requirement or Deputy Commissioner's Instruction. These are only a guide to the exercise of powers conferred by statute, so that prison Governors and others exercising their powers have the discretion to depart from the policy, if the circumstances warrant it. It is not clear, however, that this is an accurate understanding of the position with respect to an instrument issued under s 38 of the Act approving a contact visiting programme, even if as a matter of convenience it is incorporated in the body of a Deputy Commissioner's Instruction.

307 The Contact Visiting Programme is one authorised by the Secretary, or delegate, by instrument issued pursuant to the specific power in s 38 of the Act. The instrument, as regulated by reg 79, 'must specify' the nature of the programme, the persons who are eligible to participate in it, and the conditions of participation in the programme.[337] There is no provision for contact visits other than through a programme approved under s 38, and s 37(2) provides expressly that a visitor may not touch the prisoner unless the visit is part of a contact visiting programme or residential visiting programme. It is, therefore, not clear on what statutory basis a General Manager would be acting in deciding to depart from the conditions of the Contact Visiting Programme instrument, or to authorise a contact visit for a friend or family in circumstances not authorised by that instrument.

308 To the extent that the position that a Governor has discretion to depart from Deputy Commissioner's Instruction 3.04 by granting a special contact visit may logically entail an acceptance of a discretion to deny contact visits even if they would be authorised by a contact visiting programme approved under s 38, that would not in my view be correct. Such a departure from entitlements under a properly approved contact visiting programme would not be discretionary but would require some clear statutory authority. Express statutory authority to depart from an established contact visiting programme is conferred by:

(a) section 39 of the Act, which empowers a Governor to by order prohibit a relative or friend from visiting a prisoner under s 37 or 38 'if the Governor believes on reasonable grounds that the person's entry into the prison or visit to the prisoner might endanger the good order or security of the prison or the safety of the prisoner'; and

(b) section 43 of the Act, whereby a Governor may prohibit or terminate a visit if the security of the prison or the safety of a visitor is threatened.

309 Potentially specific statutory powers such as those conferred by s 21(1) may also authorise departure from the terms of a contact visiting programme instrument. However I do not see any residual discretion to refuse access to contact visits if a prisoner is eligible pursuant to the terms of a s 38 instrument.

310 My conclusion as to the status of entitlements to contact visits is that where the Secretary or delegate determines to authorise a contact visiting programme pursuant to s 38, by an instrument that complies with the requirements as to its contents in reg 79, a prisoner does have a right to contact visits subject to the conditions set out in the instrument and to statutory provisions including ss 39 and 43. Contrary to Mr McCabe's submission, the authorisation of a contact visiting programme does not create an absolute right to contact visits, with any conditions on its access being fetters on that right. The right of a prisoner to contact visits is, subject to one qualification, co-extensive with the terms of eligibility and the conditions of participation identified in the instrument that authorises the contact visits.

311 The qualification is necessary because of the possibility, already discussed in the context of the challenge to the Contact Visiting Programme, that a condition imposed on that programme is not authorised by the power conferred by s 38 of the Act, when that section is construed by reference to the context and purpose of the Act as a whole. In such a case there will be a question whether the impugned condition alone could be regarded as invalid, leaving the right to contact visits unaffected by it, or whether the condition was so central to the nature of the scheme as authorised that the Contact Visiting Programme would not be intended to operate without it. As noted above at paragraph [290], that is a matter on which I will receive submissions.

312 For the purposes of my current consideration of the grounds of review of Mr Pickering's decision, I am addressing the situation in which I am wrong as to the Fourth Ineligibility Condition being beyond power, and I approach the grounds of review of Mr Pickering's decision on the assumption that the Contact Visiting Programme is validly promulgated in its entirety.

Was Mr Pickering's decision unlawfully fettered by the policy? (Ground 1)

313 Mr McCabe's contentions under this ground overlapped to a significant extent with his challenge to the setting of the Contact Visiting Programme conditions by Ms Westin.[338]

314 Mr Pickering's evidence was consistent with him applying the terms of the Contact Visiting Programme and in particular, the Fourth Ineligibility Condition and the following dot point relating to the discretion which arises if a reprimand is given for a prison offence.

315 Given that the Contact Visiting Programme is an instrument issued under s 38 of the Act, Mr Pickering was obliged to act in accordance with its terms and conditions. For the reasons identified in paragraphs [306] to [310] above, there is no general discretion to depart from its terms. There was no error in Mr Pickering having regard to and applying the instrument.

316 Ground one may also have been intended to encompass an argument that Mr Pickering applied the Contact Visiting Programme inflexibly without properly considering the discretion open to him under that instrument to consider issuing a reprimand and if so to recommend no suspension of contact visits.[339] That ground is not made out. Mr Pickering considered the range of matters relevant to whether a fine or a reprimand should be given; and he also considered matters relevant to the impact of his decision on Mr McCabe's access to contact visits, both the impact on him and on his family.[340] There was no inflexible application of policy.

317 Proceeding on the assumption, for present purposes, that the Contact Visiting Programme was not beyond power, ground 1 in the Pickering proceeding is not established.[341]

Was Mr Pickering's decision made for an improper purpose? (Ground 2)

318 Mr McCabe's submissions on this ground also were primarily directed to the Contact Visiting Programme conditions having been imposed for an improper purpose, rather than to Mr Pickering having had an improper purpose in making his decision.[342] That issue has been addressed above in the context of the proceeding against Ms Westin.

319 Mr McCabe did, in passing, submit that the 'sole purpose of the Governor's decision to withdraw the Plaintiff's contact visits was punitive.'[343] In support of that submission he relied on the 'Checklist for Hearing Officers' which had been completed following the hearing.[344] It is not clear whether that form was completed by Mr Pickering or another officer such as the disciplinary officer, whose name is recorded on the first page of the form.[345] The identity of who completed the form is not in any case material. There was nothing in that checklist, which recorded a check against the box 'Charge proven' as the hearing outcome; and against 'Fine' as a penalty, with $100.00 filled in, that evidenced an intention on Mr Pickering's part to withdraw Mr McCabe's contact visits for punitive reasons.

320 Ground 2 in the Pickering proceeding is not established.

Did Mr Pickering's decision involve a failure to give procedural fairness? (Ground 3)

321 Mr McCabe contended that the decision to remove contact visits was one which required principles of procedural fairness to be observed.[346] He submitted that he had not been given an opportunity to be heard on whether he should lose access to contact visits because Mr Pickering did not at the disciplinary hearing mention the potential loss of visits, nor tell him that visits would be suspended.[347] His evidence was also that he had not been informed of the Ineligibility Conditions of the Contact Visiting Programme either upon reception to the prison or otherwise.[348] He submitted that the failure to raise the loss of contact visits with him during the disciplinary hearing meant that he was unable to argue that there was no link between his offence and prison visits, or to 'explore any approach to mitigating or negating the effects of the punishment'.[349]

322 It was contended for Mr Pickering that given he 'lacked any authority to withdraw the plaintiff's access to the Contact Visit Program, it is self-evident that there can be no such procedural fairness imposed on him in relation to this issue.'[350] It was said that if there was, contrary to the primary submission, any duty of procedural fairness, that duty had been discharged by the Notification of Charge and the disciplinary hearing process by which Mr McCabe 'was directed to the critical issues on which the decision was likely to turn' and the adverse conclusions which may have been drawn.[351]

Did an obligation of procedural fairness apply to Mr Pickering's discretion to choose between a fine / loss of privileges and a reprimand?

323 Where legislation confers a power on a decision maker to adversely affect a person's interests, there will generally be implied into the statute a condition that the power be exercised affording procedural fairness to the person affected.[352]

324 The entitlements to contact visits when the power in s 38 of the Act is exercised to approve a programme are of real importance to prisoners and their families. This is recognised in the Deputy Commissioner's Instruction 3.04 itself, where it states under the heading Operating Principles:

Corrections Victoria acknowledges the importance of maintaining contact with people and organisations in the community, along with supporting family ties and friendships, as this assists prisoners to maintain their links to the community. Visits are particularly important in helping prisoners maintain connection with family and friends.[353]

325 The legislative scheme too recognises the importance of prisoners having access to visits. This is first through the recognition in s 47(1)(k) of the right to at least one non-contact visit for at least half an hour per week. The importance of contact visits is reinforced by the requirements that any contact visiting programme be approved by instrument. That instrument is to include specific information required by reg 79 and must, in accordance with s 38(3), be brought to the attention of all prisoners eligible to take part in the programme, in accordance with the Regulations. As noted by Jane Dixon J in AS v Secretary to the Department of Justice[354] these notice requirements demonstrative a legislative purpose that places importance on the facilitation of visits to prisoners by relatives and friends.[355]

326 AS v Secretary to the Department of Justice related to an order made under s 43(1A) of the Act by the General Manager of the Metropolitan Remand Centre, as a delegate of the Secretary. The order prohibited the plaintiff, the wife of a prisoner, from visiting the prison.[356] Section 38 was not directly in issue. The plaintiff acknowledged that she did not have a legal right to enter the prison. However, it was contended that a statutory power of the nature of s 43(1A) carries a presumption that a person affected by the operation of the power has a right to natural justice unless there is a clear manifestation of contrary statutory intention. The nature of the visiting right was said to be 'an interest governed by a statutory scheme that provided for discretionary privileges and benefits' and as such 'was an interest of a nature captured by the test elaborated in Kioa'.[357] Justice Jane Dixon observed:

The discretion reposed in the Secretary to make regulations for a contact visiting programme for the family, and friends of a prisoner and a residential visiting programme for the family of a prisoner, demonstrates the importance the legislature has placed on opportunities for those who share a bond with a prisoner to be granted access to the prisoner.[358]

327 Her Honour also observed that the regulation of prison visits by specific legislative provisions in the Act were indicative of a specific interest on the part of the visitor, in contrast to prisoners affected by the managerial and administrative decisions arising from provisions such as ss 20 and 21 of the Act.[359] Her Honour concluded that the discretion exercised by Ms Westin, acting under the delegated authority of the Secretary under s 43A(1), was of a kind enlivening judicial review and attracting the principles of procedural fairness. The content of the procedural fairness obligation was in that case '[a] process that enables disclosure of the proposed or potential basis for the decision and offers a chance for the recipient of a ban to put forward a response...'.[360]

328 I have concluded that the decision made by Mr Pickering was not a decision to remove access to the Contact Visiting Programme, but instead to exercise a discretion to impose a fine, rather than a reprimand, in circumstances where he understood that the fine would carry the consequence of loss of contact visits. However in my view, it remains a decision which so affected Mr McCabe's entitlements under the Contact Visiting Programme that it carried an obligation to afford procedural fairness.

329 There was no submission that any part of the Act or Regulations negated the primary position that there is a duty to afford procedural fairness with respect to decisions affecting the interests of prisoners who are participating in the Contact Visiting Programme. The Act does not in my view manifest any such contrary intention.

330 There was, therefore, in my view an obligation to provide procedural fairness by:

(a) putting Mr McCabe on notice of the adverse consequences with respect to loss of contact visits which would result under the Contact Visiting Programme if he was found guilty of a prison offence, and a fine or loss of privileges was imposed rather than a reprimand; [361] and

(b) permitting Mr McCabe to put forward any relevant information or submission which might be relevant to the discretion Mr Pickering had as to whether to impose a fine or loss of privileges, or merely a reprimand, and if the latter, whether Mr Pickering should recommend no loss of contact visits.

Was Mr McCabe afforded procedural fairness with respect to the exercise of Mr Pickering's discretion?

331 The first aspect of the procedural obligation to put Mr McCabe on notice that he would lose contact visits for two weeks if he was found guilty and given a fine or loss of privileges, but that no loss of contact visits could be recommended if he was reprimanded only, would be satisfied by bringing to Mr McCabe's attention the relevant conditions of the Contact Visiting Programme. In particular it was necessary that he be aware of the ineligibility condition which would be applicable to him, the Fourth Ineligibility Condition, and the following condition which provided for a discretion to recommend no loss of contact visits if a reprimand only was imposed. This could have been done in a range of ways, at the discretion of the prison authorities, including:

(a) in the Governor's disciplinary hearing itself; or

(b) by a statement in the Notification of Prison Charge provided to the prisoner in advance of the hearing pursuant to s 50(6) and reg 68 referring to the consequences under the Contact Visiting Programme for contact visits of guilty findings.

332 There was no evidence that the issue of loss of contact visits was raised by Mr Pickering in the hearing. Mr McCabe said it was not discussed and Mr Pickering did not give any evidence to the contrary.[362] The Notification of Prison Charge given to Mr McCabe also does not contain any information about the potential impact on contact visits of a prison offence.[363]

333 The defendants submitted that 'as a result of the Notification of Charge and the disciplinary hearing process, the plaintiff was directed to the critical issues on which the decision was likely to turn, and to the adverse conclusions which might have been drawn', as well as an opportunity to provide submissions as to what the penalty ought to have been during the hearing process.[364] While that appears to have been the case with respect to the question of whether the disciplinary offence was committed there is no indication that either of those processes disclosed the additional adverse consequences which would follow with respect to loss of contact visits. The opportunity to make submissions was meaningless with respect to loss of contact visits if Mr McCabe was not aware that this adverse consequence may follow in addition to the standard penalties.

334 Ms Westin also gave evidence by affidavit that:

In accordance with DCI 3.04, the defendant was issued a Schedule 13.04(5) 'Notification to prisoner of ineligibility for contact visit program'.[365]

335 No submissions were made as to the significance of the notification document and whether it was relied on for the purposes of satisfying procedural fairness requirements. The affidavit did not identify when, or by whom, Mr McCabe was issued with the notification. The copy of the notification exhibited to Ms Westin's affidavit, however, is dated 5 December 2022, and the content indicates that it must have been completed after the disciplinary hearing.[366] It stated, relevantly:

In accordance with Deputy Commissioner's Instruction No 3.04, you are no longer eligible to participate in the Contact Visit Program for the following reason:

...

(3)* You have been charged with a prison offence not related to drugs or alcohol and have been found guilty of the offence at a Disciplinary Hearing

...

Date of commencement 5/12/22

Date of completion 19/12/22

During the above period you will be eligible to receive one non-contact visit per week.

General Manager [stamp and signature] Date 5/12/22

336 Mr McCabe gave evidence at the hearing that he had not received the notice, and was not given it during the disciplinary hearing, and that the first time he had seen it was as an exhibit to Ms Westin's affidavit.[367]

337 Ultimately, the question of whether Mr McCabe did or did not receive the Notification to Prisoner of Ineligibility for Contact Visit Program is not material to the procedural fairness issues. Mr McCabe's complaint is that he was not made aware before his offence or the disciplinary hearing that the Contact Visiting Programme conditions made prisoners ineligible if found guilty of a prison offence. The Notification document, having been completed on 5 December 2022 after the hearing, does not contradict Mr McCabe's evidence and does not show that he was made aware of the consequences of a prison offence for contact visits before the hearing.

Notice to prisoners of the Contact Visiting Programme

338 It may also have been sufficient if the conditions of the Contact Visiting Programme had been made known to Mr McCabe in some other way when he became a participant in the programme. This should have occurred through compliance with the requirements of s 38(3) of the Act.

339 As noted above, s 38(3) states that the prison Governor 'must in accordance with the regulations bring to the attention of all prisoners eligible to take part in a contact visiting programme or a residential visiting programme the privileges offered by the programme'. Regulation 79(2) requires that for the purposes of s 38(3) of the Act the Governor 'ensure that a notice is displayed in the prison that brings to the attention of all prisoners eligible to take part in a contact visiting programme ... the privileges offered by the programme'.

340 The evidence of Ms Westin was that prisoners were 'informed about the conditions of the Contact Visit Programme on arrival at Loddon Prison' during a two-week orientation programme, and Ms Westin referred to prison records that Mr McCabe had participated in this orientation process.[368] It was not apparent from the evidence how it was said he was so informed. There was no evidence that this took place through a notice being displayed in the prison as required by reg 79(2) of the Regulations.

341 Ms Westin's evidence was that when Mr McCabe was, before being at Loddon Prison, detained at Marngoneet Prison, a 'similar induction would have occurred'.[369] In addition to being somewhat speculative, without providing any foundation for that opinion, this evidence did not take the question of notice as to the terms of the Contact Visiting Programme any further in that it did not identify how information was given.

342 Mr McCabe gave evidence at the hearing that the induction at Loddon Prison, although taking place over a period of two weeks, was not a two-week programme and he did not recall being told that visits could be lost for doing something wrong.[370]

343 Ms Westin also gave evidence that the Deputy Commissioner's Instructions (other than those which are marked 'sensitive'), 'are printed and stored in the [prison] library, and are available to prisoners'.[371] While this would constitute making the terms of the programme available to prisoners, it does not constitute compliance with the requirement in reg 79(2) that the Contact Visiting Programme is the subject of a notice displayed in the prison. Having the terms of a Deputy Commissioner's instruction which deals with visits generally, and includes the conditions of the Contact Visiting Programme, stored in the prison library does not, in my view, constitute displaying a notice in the prison which 'brings to the attention of all prisoners eligible to take part in a contact visiting programme or a residential visiting programme the privileges offered by the programme', as is required by reg 79(2) and ultimately by s 38(3).

344 There was ultimately no evidence that the Contact Visiting Programme and its conditions were brought to the attention of Mr McCabe, or otherwise to contradict his evidence that he was not aware of the Ineligibility Conditions. I accept that he was not put on notice of the consequence of loss of contact visits for two weeks if a fine or loss of privileges was imposed, nor of the possibility that contact visit entitlements could be retained if a reprimand only was issued. The opportunity he had at the disciplinary hearing to make submissions was not a meaningful one on this issue in the absence of any such notice.

345 I accept that there was a failure to afford Mr McCabe procedural fairness with respect to Mr Pickering's decision as to whether to impose a fine or loss of privileges, or instead a reprimand.

Did the failure to afford Mr McCabe procedural fairness result in real or practical injustice?

346 If a failure to afford procedural fairness is not material to the ultimate decision, it may not constitute a jurisdictional error.[372] Materiality is established if the plaintiff establishes that the error deprived the appellant of a realistic possibility of a different outcome.[373] In Nathanson v Minister for Home Affairs Gageler J observed:

There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration.[374]

347 The evidence was that Mr Pickering did in fact consider matters relevant to Mr McCabe losing his contact visits for two weeks because of fining, rather than reprimanding him, including that Mr McCabe would 'find the loss of contact visits a heavy burden'.[375] However, the source of Mr Pickering's information was identified in very general terms as his knowledge from his experience of 'how important prisoners find contact visits and other close connections for their general wellbeing'.[376] As Mr Pickering did not raise the issue of loss of contact visits with Mr McCabe, there was no opportunity for Mr McCabe to make any submission as to how specifically the loss of contact visits with his young son and fiancée would affect him, or would affect his family.

348 Mr McCabe submitted that there were relevant exceptional circumstances in that during the COVID-19 emergency, he had no visits with his fiancée and young son for 679 days, and subsequently for 231 days only heavily restricted visits.[377] There were matters Mr McCabe might have raised had he known that contact visits were in issue.

349 I am satisfied that there is a realistic possibility that Mr Pickering may have made a different decision had Mr McCabe been given an opportunity to give evidence or make submissions about the impact of the loss of contact visits.

350 There was a material failure to afford procedural fairness. If I am wrong in my conclusion as to the invalidity affecting the Contact Visiting Programme, and it was necessary to make a finding on this ground, I would find that ground 3 in the Pickering proceeding is established.

Was Mr Pickering's decision legally unreasonable? (Ground 4)

351 Mr McCabe contended by ground 4 that to any extent that Mr Pickering's power was lawfully fettered by the s 38 instrument, his decision to remove visits was legally unreasonable. He relied on the statement in Deputy Commissioner's Instruction 3.04 that '[v]isits, including video visit contact with children and family, cannot be withdrawn as a punishment for disciplinary offences, except where it is demonstrably justifiable'.[378] He also referred to the requirement to consider human rights under the Charter and particularly the rights to protection of children and the family unit in s 17. He contended that it was unreasonable not to exercise the discretion to enable continuing contact visits in circumstances where he had 'weekly visits with his fiancée and 2.5 year old son and that his disciplinary offence had no connection to contact visits or drugs'.

352 The Charter rights relied on by Mr McCabe are considered specifically below in the context of ground 7. Taking the potential relevance of Charter rights into account in assessing reasonableness, it is plain that Mr Pickering did consider Mr McCabe's family, as well as other factors including the nature of the prison offence and the fact that Mr McCabe could still maintain contact with family through a box visit, by Zoom, by telephone and by ordinary mail.[379]

353 There is nothing in Mr Pickering's conclusion, nor in the evidence as to the matters he considered in determining whether to issue a fine (with accompanying loss of contact visits) or a reprimand, that discloses legal unreasonableness. While Mr McCabe's circumstances may have justified a favourable exercise of discretion, his offence was also not a trivial one, and the imposition of the penalty, even in circumstances where it would mean that his contact visits were suspended for two weeks, was not unreasonable. That is particularly the case where other means of maintaining contact with his family remained open to him.

Did Mr Pickering fail to give proper consideration to relevant human rights in his decision? (Ground 7)

355 Mr McCabe contended that Mr Pickering failed to consider multiple human rights in his decisions. Although his written submissions on Ground 7 primarily focussed on Mr Pickering's alleged decision with respect to his computer,[380] aspects of his oral submissions appeared to extend this complaint to the decision relating to contact visits.[381] The rights relied on by Mr McCabe were his rights arising from s 17 of the Charter, relating to the protection of the family unit and of children, and under s 26, the right not to be tried or punished twice.

356 Mr Pickering is, like Ms Westin, a public authority for the purposes of the Charter, meaning that s 38 of the Charter applies to his decision.

Section 17 - protection of children and the family unit

(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

(2) Every child has the right, without discrimination, to such protection as is in the child's best interests and is needed by the child by reason of being a child.

358 The first question is whether the rights in either ss 17(1) or 17(2) have been engaged or limited by Mr Pickering's decision to fine Mr McCabe and thus expose him to the consequence of loss of contact visits for two weeks.[382]

359 In considering this question it is important to acknowledge the starting point that Mr McCabe has, by reason of his sentence of imprisonment, been lawfully deprived of his freedom of movement and unrestricted access to his family.[383]

360 Mr McCabe's right to spend time in contact with his family had already been validly limited by the sentence of imprisonment, before Mr Pickering made his decision.[384] The rights that Mr McCabe had to physical contact with his family were only those conferred by the Contact Visiting Programme, inclusive of its conditions. Other rights, to non-contact visits, phone calls and other communication, were not impacted by the decision. Assuming for this purpose that the Fourth Ineligibility Condition was a valid condition, his entitlement to contact visits did not extend to any time when that condition applied.

361 It is unnecessary to consider closely the scope of the rights in s 17 of the Charter in these circumstances, as I am satisfied that any limitations on those rights did not arise from any decision of Mr Pickering, but from the sentence of imprisonment.

Section 26 of the Charter - right not to be tried or punished twice

362 Section 26 has been referred to above in the context of Ms Westin's decision not to restore Mr McCabe's access to his computer. In the context of contact visits, Mr McCabe contended that the loss of eligibility for contact visits occurred as a result of the imposition of a penalty by Mr Pickering under s 53(4) of the Act, and that this involved 'double the detriments', in breach of s 26 of the Charter, as well as in breach of s 53(6) of the Act.[385]

363 Counsel for the defendants submitted that the fact that the conditions of the Contact Visiting Programme result in the loss of eligibility when a prisoner is found guilty of a prison offence and a penalty is imposed does not result in a breach of s 26 of the Charter.[386]

364 I have doubts whether, even accepting the adverse and penalising effect of the loss of contact visits, it constitutes a 'punishment' within the meaning of s 26, which involves a consideration of whether the act complained of is a truly penal consequence in nature and purpose.[387] If, as is the premise of my consideration of this ground, the Contact Visiting Programme and all conditions were within power, the right to contact visits was co-extensive with and limited by the conditions, and the application of the Fourth Ineligibility Condition would not constitute a punishment. I also consider that the better view is that s 26 does not apply to disciplinary proceedings.[388]

365 I consider it unnecessary to express a final view on the application of s 26 to disciplinary proceedings, and whether the loss of contact visits was a punishment, as I consider that there is a separate basis on which the right in s 26 is not engaged. Section 26 applies to being punished 'more than once for an offence in respect of which [a] person has already been finally convicted'. The loss of contact visits was imposed when the fine was imposed, as part of the penalty for the one prison offence.

366 Mr McCabe's argument is that the decision of the Governor on a finding of guilty on his disciplinary hearing, was both to fine him $100, and to impose a two-week suspension of contact visits for the one offence. If the suspension of contact visits is properly regarded as a punishment for the purposes of s 26, it was imposed at the same time and for the same conviction as the fine. The two penalties were effectively different elements of the punishment for the same offence. It cannot be said that at the time of the decision of which Mr McCabe complains - the imposition of the loss of contact visits - he had 'already been finally convicted' of the prison offence; the loss of contact visits and the fine were punishments arising from the same conviction in the one hearing. This does not appear to me to be the circumstance to which s 26 is directed, being a trial and punishment after a first process in which the person has 'already been finally convicted'.[389]

367 In R v Shubley,[390] a prisoner had been found guilty in a disciplinary hearing of a prison offence for assaulting another prisoner, and punished with solitary confinement. Subsequently the prisoner was charged with assault under the Criminal Code of Canada, and sought to stay the hearing in court of that charge on the basis that it would violate the right under s 11(h) of the Canadian Charter of Rights and Freedoms not to be tried and punished twice for the one offence. The case was determined on the basis that the prison disciplinary proceeding did not constitute public offences of a criminal, quasi-criminal or regulatory nature with true penal consequences.[391] There was no issue taken by the plaintiff or the Court with the fact that it was possible under the corrections legislation to punish the one prison disciplinary offence with two penalties;[392] it was only the subsequent criminal proceeding which gave rise to any potential issue under the Canadian Charter.

368 For the above reasons, I consider that s 26 is not engaged by the decision of Mr Pickering to impose a penalty and thus expose Mr McCabe to loss of contact visits. This aspect of ground 7 is not established.

369 For the above reasons, Mr McCabe's applications for review have been successful in part, and will otherwise be dismissed. I will provide for the parties to make written submissions as to the appropriate relief and to have the opportunity to address those submissions in a further hearing.

[1] As is the case at Loddon prison: see Consolidated Affidavit of Rowan Leigh McCabe sworn 23 October 2023 (Westin Proceeding) (Consolidated McCabe Affidavit), [37]-[38]; Affidavit of Phillip James Pickering sworn 10 October 2023 (Pickering Affidavit), [22].

[2] See, for example, Knight v Hastings [2010] VSC 99, [17]; Rich v Secretary to the Department of Justice [2007] VSC 405, [4]-[5], [27].

[3] Affidavit of Melissa Sueanne Westin affirmed 4 October 2023 (First Westin Affidavit), [10]; Exhibit MSW-1, 82-126. The same document was tendered by Mr McCabe: Affidavit of Rowan Leigh McCabe sworn 21 April 2023 titled 'Computer and Visits Decision' (First McCabe Affidavit), Exhibit C. The Commissioner's Requirement as in force at the time of Mr McCabe's in-cell computer application in 2021 was not in evidence. The application form and computer use agreement, which are set out in the Commissioner's Requirement were in evidence, as completed by Mr McCabe. They were substantially the same as those in the March 2022 policy: First Westin Affidavit, Exhibit MSW-1, 123, and I was satisfied that there was no material difference between the policy in evidence and that in force when Mr McCabe applied for his computer.

[4] First Westin Affidavit, [10]; Exhibit MSW-1, 83.

[5] First McCabe Affidavit, [1]; Pickering Affidavit, [5].

[6] Pickering Affidavit, [5]; Exhibit PP-1, 2-7.

[7] Pickering Affidavit, [6]; Exhibit PP-1, 2.

[8] Consolidated McCabe Affidavit, [2]; Affidavit of Rowan Leigh McCabe sworn 21 April 2023 titled 'Extension of Time' (Second McCabe Affidavit).

[9] Pickering Affidavit, [6]; Exhibit PP-1, 8.

[10] Consolidated McCabe Affidavit, [15]-[16].

[11] Pickering Affidavit, [7]-[8]; Exhibit PP-1, 9-17; First McCabe Affidavit, [2]-[3].

[12] Pickering Affidavit, [10]; First McCabe Affidavit, [4].

[15] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [13].

[17] Pickering Affidavit, [12]-[13]; Exhibit PP-1, 21; First McCabe Affidavit, [5].

[18] Pickering Affidavit [3]; Exhibit PP-1, 1.

[19] First McCabe Affidavit, [6]; Affidavit of Rowan Leigh McCabe sworn 21 April 2023 titled 'Computer Decision and Impacts' (Third McCabe Affidavit), [7].

[20] Transcript 12/12/23, T30.30-.31; Transcript 13/12/23, T89.19-.21.

[21] Pickering Affidavit, [16]; First McCabe Affidavit, [9].

[22] Consolidated McCabe Affidavit, [19], [37]-[38].

[23] First McCabe Affidavit, Exhibit A.

[24] First McCabe Affidavit, Exhibit A; First Westin Affidavit, [7].

[25] First Westin Affidavit, [8]-[9]; Exhibit MSW-1, 22, 25.

[26] First Westin Affidavit, [8]-[9]; Exhibit MSW-1, 71-81.

[27] Consolidated McCabe Affidavit, [28]-[31], [37]-[39].

[28] Order of JR Keith dated 20 September 2023.

[29] A combined Court book filed pursuant to the order of JR Keith dated 22 November 2023 incorporated all documents relevant to both proceedings, including a 'consolidated' affidavit' of Mr McCabe incorporating evidence relevant to both proceedings and some additional evidence.

[30] Correspondence from the Victorian Government Solicitor's Office on behalf of the Attorney-General dated 2 November 2023; Correspondence from the Victorian Equal Opportunity and Human Rights Commission dated 17 November 2023.

[31] Correspondence dated 11 December 2023.

[32] [2016] VSC 797.

[34] [2001] VSC 420; (2001) 124 A Crim R 259. I had no involvement in this case.

[40] [2021] VSCA 36.

[43] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 350 [33] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289; Michael Wilson & Partner Ltd v Nicholls (2011) 244 CLR 427, 437 [11] (Gummow ACJ, Hayne, Crennan and Bell JJ).

[44] Ebner [2000] HCA 63; (2000) 205 CLR 337, 345 [8], 350 [30]; Charisteas [2021] HCA 29; (2021) 273 CLR 289, 296-297 [11]

[45] Compare Ebner [2000] HCA 63; (2000) 205 CLR 337, 350 [30]-[31].

[46] I have, since the hearing, identified that I also represented the Secretary to the Department of Justice, and the then Commissioner for Corrections Jan Shuard, in a 2018 case_, Kheir v Secretary, Department of Justice and Regulation_ [2018] VSC 222, relating to a decision to refuse the grant of emergency management days to the plaintiff. I did not raise this with the parties after the hearing, as I had already identified that I had acted regularly for the Commissioner and Deputy Commissioner for Corrections. That was the disclosure to which the parties directed their submissions, and Kheir did not have any additional feature such as any connection to Mr McCabe and the issues he raises.

[47] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[48] Charisteas [2021] HCA 29; (2021) 273 CLR 289, [21].

[49] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 509 [53] (Kirby J), cited with approval by the House of Lords in Lawal v Northern Spirit [2003] UKHL 35, [14] (Lord Steyn) and by the Court of Appeal of New Zealand in Muir v Commissioner of Inland Revenue [2007] 3 NZLR 4965, 514 [96].

[50] Charisteas [2021] HCA 29; (2021) 273 CLR 289, [20]-[21].

[51] [2021] VSCA 36.

[52] [2021] VSCA 36, [110].

[53] [2015] FCA 344, [40] (Perry J).

[54] [2021] VSCA 36, [114].

[55] Amended Originating Motion filed 15 August 2023 (Pickering Proceeding), under heading 'Impugned Decision'.

[56] Further Amended Originating Motion filed 1 December 2023 (Westin Proceeding), under hearing 'Impugned Decision'.

[57] As observed by Justice Byrne in an early decision which considered the basis on which access to in-cell computers may be granted: Knight v Money [2009] VSC 242, [8].

[58] Knight v Money [2009] VSC 242, [8]-[9] (Byrne J); Coulston v Wise [2010] VSC 135, [20] (Williams J); Knight v Wise [2014] VSC 76, [12] (T Forrest J).

[59] Corrections Act 1986 (Vic), s 53(4)(c); See, for example, Knight v Hastings; Knight v Wise [2012] VSCA 315, [54]-[56].

[60] Rich v Secretary to the Department of Justice [2007] VSC 405, [27]. It was observed by Mandie J that it was also not possible to determine on the material before him whether the List was compliant with the requirements of the regulations: at [26].

[61] Knight v Wise [2011] VSC 313, [51]-[60] (Hollingworth J).

[62] Knight v Wise [2011] VSC 313, [61] (Hollingworth J).

[63] Knight v Wise [2011] VSC 313, [62]-[63] (Hollingworth J).

[64] Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506.

[65] Knight v Hastings; Knight v Wise [2012] VSCA 315.

[66] Knight v Wise [2013] VSC 339.

[67] Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506, [55]; Knight v Hastings; Knight v Wise [2012] VSCA 315, [56]; Knight v Wise [2013] VSC 339, [17].

[68] Knight v Wise [2014] VSC 76, [68]-[73] (T Forrest J).

[69] Supplementary Affidavit of Melissa Sueanne Westin affirmed 29 November 2023 (Second Westin Affidavit), Exhibit MSW-2, 42.

[70] Knight v Money [2009] VSC 242, [9]. The Secretary is identified as having custody of prisoners is in ss 6 and 6A(1)(a) of the Corrections Act 1986 (Vic).

[71] [2014] VSC 639 (as her Honour the President of the Court of Appeal then was).

[72] It has been recognised since the decision of the Court of Appeal in Binse v Williams and Van Groningen [1998] 1 VR 381, 392 that the responsibilities imposed by ss 20 and 21(1) of the Act carry corresponding duties and implied powers necessary to discharge those responsibilities.

[73] [2014] VSC 639, [18]-[19].

[74] [2021] VSC 185, [65].

[75] See Commissioner's Requirement 2.1.2 at [4.3], and in particular [4.3.5] which refers to the General Manager making a determination on an application for access to a computer. In specific cases of prisoners classified as 'Major offenders', or prisoners subject to Supervision and Detention Orders, the application for approval must also be approved by a Deputy Commissioner or Assistant Commissioner: [4.4.2]-[4.4.3], [4.5.2]. See First Westin Affidavit, Exhibit MSW-1, 85-87.

[76] [2014] VSC 639.

[77] Knight v Money [2009] VSC 242, [8].

[78] As confirmed by Cavanough J in Knight v Sellman [2020] VSC 320, [189].

[79] See the discussion in Rich v Secretary to the Department of Justice [2007] VSC 405, [16], [22]-[24] (Mandie J); R v Rich (No 2) [2008] VSC 141, [66] (Lasry J); Knight v Hastings [2010] VSC 99, [107]-[173], [196]-[201] (Robson J); Knight v Wise [2011] VSC 313, [31]-[45] (Hollingworth J); Brazel v Westin [2013] VSC 527, [21] (Kaye J); Knight v Wise [2014] VSC 76, [24]-[41] (T Forrest J); Rich v Howe [2017] VSC 483, [63]-[71], [140] (Kennedy J); Knight v G4S Custodial Services Pty Ltd [2023] FCA 926, [48]-[80] (Anderson J); Knight v Sellman [2020] VSC 320, [186]-[202] (Cavanough J); McKechnie v State of Victoria [2023] VSC 259, [15]-[20] (Ginnane J).

[82] First Westin Affidavit, [10]; Defendants' Submissions dated 9 November 2023, [31]. A similar position appears to have been put in AS v Secretary of the Department of Justice and Regulation [2017] VSC 310, where Jane Dixon J observed at [26] that the Commissioner's Requirements are 'purportedly made under s 8A of the Act'.

[84] Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154, 164 (McHugh JA): 'Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.'

[85] Plaintiff M64/ 2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, [54] (French CJ, Bell, Keane and Gordon JJ), [62] (Gageler J).

[86] Minister for Home Affairs v G and Anor [2019] FCAFC 79; (2019) 266 FCR 569, [58]-[62] (Murphy, Moshinsky and O'Callaghan JJ); Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640, 642 (Brennan J).

[87] First Westin Affidavit, Exhibit MSW-1, 83.

[88] Commissioner's Requirement 2.1.2, [4.16.1], [4.16.5]: See First Westin Affidavit, MSW-1, 92-93.

[89] Pickering Affidavit, [11]-[15], Exhibit PP-1, 18-26; First McCabe Affidavit, [5]-[6].

[90] Amended Originating Motion filed 15 August 2023 (Pickering Proceeding), para [1] of 'Impugned Decision'.

[91] Further Amended Originating Motion filed 1 December 2023 (Westin Proceeding), para [1] of 'Impugned Decision'.

[93] Commissioner's Requirement 2.1.2 states at [4.16.5] that 'Where a prisoner has been found guilty of a computer related prison offence, the Hearing Officer may authorise the removal of the computer from the prison and withdrawal of the prisoner's computer privileges'.

[95] Pickering Affidavit, Exhibit PP-1, 1: Instrument of Delegation signed by Ms Darbyshire, General Manager Loddon Prison and Middleton. That instrument is dated 12 December 2022, which is a date after the relevant events the subject of Mr McCabe's application for judicial review against Mr Pickering. However the evidence was that Mr Pickering held delegations from the Governor in his role as Operations Manager, a role which he had held since 2017 (Pickering Affidavit, [2]-[3]). No issue was taken that the powers which had been delegated to Mr Pickering at the relevant times were any different to those held under the instrument of delegation which was in evidence.

[96] Consolidated McCabe Affidavit, [10]-[11].

[99] Defendants' Submissions dated 9 November 2023, [40], [44]. Emphasis added.

[100] At [4.16.5]. [Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding) [66]; Pickering Affidavit, Exhibit PP-1, 38.

[101] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding) [65].

[102] Plaintiff's Submissions dated 23 October 2023, [65].

[104] First McCabe Affidavit, [7]; Pickering Affidavit, [17].

[105] See Amended Originating Motion filed 15 August 2023 (Pickering Proceeding), referring to a 'failure to restore the Plaintiff's computer for in-cell use'; See also Plaintiff's Response to the Defendants' Submissions dated 24 November 2023, [7]-[8]; cf [16].

[106] Amended Originating Motion filed 15 August 2023 (Pickering Proceeding), under heading 'Impugned Decision'.

[107] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [72], [74].

[108] Plaintiff M61 /2010 v Commonwealth [2010] HCA 41; (2011) 243 CLR 319, 358-9 [99]-[100] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Moran v Secretary to the Department of Justice and Regulation [2015] VSC 593; (2015) 48 VR 119, [21] (McDonald J).

1. [109] See in a similar context Coulston v Wise [2010] VSC 135, [51]-[52] (Williams J); Knight v Wise [2014] VSC 76, [92]-[95] (T Forrest J).

[110] Defendants' Submissions dated 9 November 2023, [105].

[111] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 595 (Brennan J); Coulston v Wise [2010] VSC 135, [51]-[52] (Williams J); Knight v Money [2009] VSC 242, [19] (Byrne J).

1. [112] Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424, 465 (Mason J); Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1, 35 [82] (McHugh J); Cf Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; (2010) 243 CLR 319, 358 [99] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Note too Knight v Wise [2014] VSC 76, [96]-[97] (T Forrest J), citing Julius v Bishop of Oxford (1880) 5 App Cas 214, 222-223; and Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106, 134.

[113] Cf Yasmin v Attorney-General (Cth) [2015] FCAFC 145; (2015) 236 FCR 169, [68] (Kenny, Robertson and Mortimer JJ).

[114] See paragraphs [47]-[49] above.

[115] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [74].

[117] See Commissioner's Requirement 2.1.2, [4.16.6]; See First Westin Affidavit, MSW-1, 93.

[118] Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; (2010) 243 CLR 319, 358 [99] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[119] R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389, 400 (Latham CJ, Rich, Dixon, McTiernan and Webb JJ).

[120] Consolidated McCabe Affidavit, [23]; First Westin Affidavit, [6]; Exhibit MSW-1, 78-79.

[121] Consolidated McCabe Affidavit, [25]; First Westin Affidavit, [7]; Exhibit MSW-1, 77.

[122] Consolidated McCabe Affidavit, [26]; First Westin Affidavit, [8]; Exhibit MSW-1, 71-80.

[123] Consolidated McCabe Affidavit, [27]; First Westin Affidavit, [9]; Exhibit MSW-1, 81.

[124] See Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65; (2012) 202 FCR 200, 222 [96]; See also Knight v Sellman [2020] VSC 320, [30]-[31] (Cavanough J).

[125] Plaintiff's Submissions dated 23 October 2023 (Westin Proceeding), [2].

[126] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[127] Consolidated McCabe Affidavit, [26]; First Westin Affidavit, [8]; Exhibit MSW-1, 71-80.

[128] First Westin Affidavit, [4]; Exhibit MSW-1, 22, 25. ('Instrument of Revocation, Delegation, and Authorisation - Corrections and Justice Services' dated 8 September 2022).

[129] Commissioner's Requirement 2.1.2, [4.3.11], [4.16.6]. See First Westin Affidavit, MSW-1, 86.

[130] First McCabe Affidavit, Exhibit A; First Westin Affidavit, [9]; Exhibit MSW-1, 81.

[132] Commissioner's Requirement 2.1.2, [4.16.6]. See First Westin Affidavit, MSW-1, 93.

[133] Defendants' Submissions dated 9 November 2023, [41], [43] citing Knight v Wise [2014] VSC 76, [65] (T Forrest J) and Knight v Money [2015] VSC 105, [20] (Cavanough J) and Moran v Secretary to the Department of Justice and Regulation [2015] VSC 593; (2015) 48 VR 119, [24]-[26] (McDonald J).

[134] This was implicitly accepted by Emerton J in Knight v Wise [2014] VSC 639, which involved refusal of Mr Knight's application for an in-cell computer. The defendant had refused the application on the basis, among other things, that he was a vexatious litigant and had previously brought applications that were foredoomed to fail. Mr Knight sought review on the basis that the decision took into account an irrelevant consideration and was made for an improper purpose. No point appears to have been taken that the decision was not amenable to review . Emerton J proceeded on the basis that the decision was amenable to review (see [12]-[14]) albeit not affected by the alleged errors (see [41]-[42], [45]). As to the contemporary acceptance that administrative decisions of prison authorities affecting the interests of prisoners are, generally, subject to judicial review, see Cavanough J in Knight v Money [2015] VSC 105, [20].

[135] Transcript 12/12/23, T17.30-22.31; Plaintiff's Outline of Submissions dated 23 October 2023, [35].

[136] Transcript 13/12/23, T98.17-.25.

[137] See also acceptance of the status of the defendants as public authorities during the hearing at Transcript 13/12/23, T145.7-.15; Transcript 15/12/23, T164.9-.11.

[138] Thompson v Minogue [2021] VSCA 358; (2021) 67 VR 301, [96] (Kyrou, McLeish and Niall JJA); Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; (2017) 52 VR 441, 498 [179] (John Dixon J); Minogue v Doherty [2017] VSC 724 at [74] (John Dixon J); McKechnie v Commissioner for Corrections Victoria [2024] VSC 114, [19] (Gray J).

[139] That question is to be considered taking into account the matters identified by the Court of Appeal in HJ v Independent Broad-based Anti-corruption Commission [2021] VSCA 200; (2021) 64 VR 270, 306 [155] and discussed in Thompson v Minogue [2021] VSCA 358; (2021) 67 VR 301, 322-326, [79]-[93].

[140] Thompson v Minogue [2021] VSCA 358; (2021) 67 VR 301, 326 [96].

[141] Thompson v Minogue [2021] VSCA 358; (2021) 67 VR 301, 316 [47]-[48].

[142] PJB v Melbourne Health (Patrick's Case) [2011] VSC 327; (2011) 39 VR 373, [87].

[143] [2011] VSC 327; (2011) 39 VR 373, [90].

[144] [2011] VSC 327; (2011) 39 VR 373, [89].

[145] Defendants' Submissions dated 9 November 2023, [76].

[146] Defendants' Submissions dated 9 November 2023, [76].

[147] See Plaintiff's Submissions dated 23 October 2023 (Westin Proceeding), [76].

1. [149] Castles v Secretary of the Department of Justice & Ors [2010] VSC 310; (2010) 28 VR 141, 169-170 [109]-[110] (Emerton J); Donohue v Westin [2022] VSC 37, [45] (Niall JA).

[150] Monteiro v NSW (No 2) [2015] NSWSC 1901, [60]; R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532, [5] (Lord Bingham).

[151] Transcript 13/12/23, T97.29-98.7.

[152] Commissioner's Requirement 2.1.2, [4.16.1], [4.16.5].

[153] Pickering Affidavit, Exhibit PP-1, 6.

[154] Pickering Affidavit, [9]; See also First Westin Affidavit, [13.1].

[155] Transcript 13/12/23, T89.18-.24, T103.6-.7.

[156] First Westin Affidavit, [9]; Exhibit MSW-1, 81.

[157] Thompson v Minogue [2021] VSCA 358; (2021) 67 VR 301, 322 [78], 362 [223]-[226].

[158] Plaintiff's Submissions dated 23 October 2023 (Westin Proceeding), [72].

[159] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [70].

[160] Plaintiff's Submissions dated 23 October 2023 (Westin Proceeding) [4]; Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [72].

[161] Human Rights Committee, Views: Communication No 355/1989, 51st session, UN Doc CCPR/C/51/D/355/1989 (14 July 1994) (Reid v Jamaica), [14.4]; Defendants' Submissions dated 9 November 2023, [79]; See also Transcript 15/12/23, T177.17-.23.

[162] Defendants' Submissions dated 9 November 2023, [79]; Transcript 15/12/23, T177.24-.29.

[163] Defendants' Submissions dated 9 November 2023, [79]; Transcript 15/12/23, T178.1-.8.

[164] First McCabe Affidavit, [13]; Consolidated McCabe affidavit, [19].

[165] Consolidated McCabe affidavit, [37]-[39].

[166] Consolidated McCabe affidavit, [10].

[167] Consolidated McCabe affidavit, [22].

[168] Consolidated McCabe affidavit, [22].

[169] Consolidated McCabe affidavit, [23]-[24].

[170] See, for example, Minogue v Falkingham [2021] VSC 185, [55] (Macaulay J); Knight v Sellman [2020] VSC 320, [212]-[213] (Cavanough J), citing Commissioner of Corrective Services v Liristis [2018] NSWCA 143; (2018) 98 NSWLR 113.

[171] Transcript 13/12/23, T84.28-.30.

[172] Transcript 13/12/23, T85.28-.30.

[173] Transcript 13/12/23, T95.18-.19, T98.17-.25.

[174] Transcript 13/12/23, T97.24-.28.

[175] Transcript 13/12/23, T97.31-98.2.

[176] Transcript 15/12/23, T181.25-.31.

[177] Transcript 15/12/23, T183.30-184.6.

[178] [2012] VSC 407; [2012] 39 VR 50.

[179] [2012] VSC 407; [2012] 39 VR 50, [151].

[180] Transcript 15/12/23, T184.13-.22.

[181] Cf Knight v Anderson [2007] VSC 278; (2007) 16 VR 532, [15].

[182] Transcript 13/12/23, T95.14-.17; Transcript 15/12/23, T178.16-.17, T182.20-.29.

[183] Citing Momcilovic v The Queen (2011) 245 CLR 1, 153-154 [385]-[389] (Heydon J).

1. [184] Transcript 12/12/23, T18.8-.13: 'Section 26 isn't actually decisive on anything in this - in this hearing. Because Corrections is already governed by s 53(4) and s 53(6) which excludes more than one punishment for disciplinary offences. But I think it is still important. I'm not going to spend too much time on s 26.'

[185] Defendants' Supplementary Submissions dated 29 November 2023, [23].

[186] Defendants' Supplementary Submissions dated 29 November 2023, [23], citing R v Wigglesworth [1987] 2 SCR 541, [20]-[24] and R v Shubley [1990] 1 SCR 3; Transcript 13/12/23, T147.26-.30.

[187] Transcript 13/12/23, T147.26-148.5.

[188] Transcript 13/12/23, T145.31-146.2.

[190] R v Wigglesworth [1987] 2 SCR 541, 554, 560 (Wilson J); R v Shubley [1990] 1 SCR 3, 18 (McLachlin, Gonthier, McLachlin JJ).

[192] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [78], [80], [82], [84]; Plaintiff's Submissions dated 23 October 2023 (Westin Proceeding), [5]-[9]; See also Transcript 13/12/23, T105.11-.24.

[193] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [77]-[78].

[194] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [82]-[84]; Plaintiff's Submissions dated 23 October 2023 (Westin Proceeding), [5]-[9].

[195] Transcript 12/12/23, T67.25-68.1, T74.11-.13.

[196] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [80]-[81]; Plaintiff's Submissions dated 23 October 2023 (Westin Proceeding), [6].

[197] Defendants' Submissions dated 9 November 2024, [100].

[198] Defendants' Submissions dated 9 November 2023, [99], quoting Commissioner's Requirement 2.1.2 at [2.2], [4.1.1], [4.1.2]: First Westin Affidavit, Exhibit MSW-1, 83.

[199] Transcript 15/12/23, T171.17-.22.

[200] R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 186, 193 (Gibbs CJ), 202-203 (Stephen J); Barreto v McMullen [2014] WASCA 152, [135] (Buss JA, with whom Martin CJ and Mazza JA agreed).

[201] R v Toohey [1981] HCA 74; (1981) 151 CLR 170, 186 (Gibbs CJ); Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; (2016) 51 VR 473, 529-530, [283]-[289] (Garde J); Barreto v McMullen [2014] WASCA 152, [150] (Buss JA, with whom Martin CJ and Mazza JA agreed).

[202] R v Toohey [1981] HCA 74; (1981) 151 CLR 170, 193 (Gibbs CJ).

[203] W Everton Park Pty Ltd v Minister for Planning [2022] VSCA 243, [95] (Emerton P, Walker JA, Quigley AJA), citing Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120, [194] (Maxwell, Redlich JA, Beach JA), [179], citing Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264, [51] (McLure J).

[204] Golden v V'landys [2016] NSWCA 300; (2016) 339 ALR 610; 630 [134]-[135] (McColl, Leeming and Payne JJA); Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276, 289-290 [64]-[67] (McLure JA, with whom Buss JJA agreed).

[205] Barretto v McMullan [2014] WASCA 152, [155] (Buss JA, with whom Martin CJ and Mazza JA agreed).

[206] Knight v Falkingham [2021] VSC 185, [65]; Knight v Wise [2014] VSC 639, [18] (Emerton J); Davies v The Queen [2018] VSCA 315, [49]. See also, in the context of the Prisons Act 1981 (WA), which refers to powers to issue orders 'as are necessary for the good government, good order, and security of the prison', Barretto v McMullan [2014] WASCA 152, [156] where Buss JA, with whom Martin CJ and Mazza JA agreed, observed that 'on the basis of the apparent purpose or object underlying s 36(3), in the context of the Act as a whole ... "good government, good order and security of the prison" are words of very wide import ... The requirement of a relevant connection between the orders made by the superintendent, on the one hand, and the pursuit, maintenance or accomplishment of good government, good order or security within the prison ... on the other, should be liberally applied.'

[207] Plaintiff's Response to the Defendants' Submissions dated 24 November 2023, [34] (in relation to Pickering decision).

[208] See paragraphs [256] to [273] below_._

[209] Transcript 13/12/23, T103.29-104.15, T106.16-107.5.

[210] Defendants' Submissions dated 9 November 2023, [100].

[211] Transcript 12/12/23, T64.3-.9; Transcript 13/12/23, T108.7-.13.

[212] Cf Mr McCabe's submissions at Transcript 12/12/23, T64.19-65.13.

[214] Transcript 12/12/12, T64.30-65.3.

[215] [2001] VSC 420; (2001) 124 A Crim R 259, [38].

[216] (1990) 45 A Crim R 364, 371, where Byrne J observed with respect to the power to transfer a prisoner from one unit or correctional centre to another, arising under the broader statutory powers pertaining to the responsibility for the security and management of the prison and the safe custody and welfare of prisoners in ss 14 and 44 of the Correctional Services Act 1988 (Qld): 'An incentive scheme is a useful management tool. Its adoption is not at all surprising.'

[217] Deterrence was acknowledged to be the primary criterion in civil penalty regimes in Australian Building and Construction Commissioner v Pattinson & Anor [2022] HCA 13; (2022) 274 CLR 450, [15] notwithstanding the potential difficulties with general deterrence identified by Edelman J, at [75]-[83].

[218] Anderson v Pavic [2005] VSCA 244, [32]-[33] (Nettle JA); Davies v R [2018] VSCA 315, [49] (Kaye, McLeish and T Forrest JJA); Moran v Secretary of the Department of Justice and Regulation [2015] VSC 593; (2015) 48 VR 119, 126-127 [26] (McDonald J).

[219] Such as the degrading strip searches undertaken for the purposes of deterring drug use referred to in Thompson v Minogue [2021] VSCA 358; (2021) 67 VR 301, where the prison authorities had the onus of justifying the limitation on the privacy and dignity rights under s 4 of the Charter, pursuant to s 7(2) of the Charter. See 398, [356] (Kyrou, McLeish, and Niall JJA).

[220] [2012] HCA 61; (2013) 249 CLR 332, 367, [76] (Hayne, Kiefel, Bell JJ).

[221] Plaintiff's Submissions 23 October 2023 (Westin proceeding), [12].

[223] Plaintiff's Submissions dated 23 October 2023 (Westin proceeding), [14].

[224] First McCabe Affidavit, Exhibit A (Letter dated 21 February 2023).

[225] First McCabe Affidavit, Exhibit A (Letter dated 23 March 2023).

[226] Amended Originating Motion filed 15 August 2023 (Pickering Proceeding), para [2] of 'Impugned Decision'.

[227] Further Amended Originating Motion filed 1 December 2023 (Westin Proceeding), para [2] of 'Impugned Decision'.

[228] First Westin Affidavit, [16]-[17]; Transcript 12/12/23, T36.19-37.12, T61.28-62.11.

[229] Transcript 12/12/23, T40.6-.30 (Mr McCabe); Transcript 13/12/23, T111.4-112.14 (Crown Counsel).

[230] First Westin Affidavit, [4] (re: delegated powers from Secretary). While Ms Westin did not give evidence about the making of the instrument, the version of Deputy Commissioner's Instruction 3.04, dated 7 December 2021, which was in evidence, showed her name as the authorising officer (First Westin Affidavit, Exhibit MSW-1, 162).

[231] First Westin Affidavit, Exhibit MSW-1, 135.

[232] First Westin Affidavit, Exhibit MSW-1, 135-136.

[233] Transcript 12/12/23, T48.4-.22, T81.24-.27.

[234] Transcript 12/12/23, T62.1-.11; First McCabe Affidavit, Exhibit C; First Westin Affidavit, [17]; Exhibit MSW-1, 162.

[236] Plaintiff's Submissions dated 14 November 2023 (Westin Proceeding), [3], [5].

[237] Plaintiff's Submissions dated 14 November 2023 (Westin Proceeding), [6].

[238] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [33].

[239] Plaintiff's Submissions dated 14 November 2023 (Westin Proceeding), [6]-[8].

[240] Transcript 12/12/23, T26, T29, T51.28-52.4.

[241] Defendants' Supplementary Submissions dated 29 November 2023, [15] (referring to Deputy Commissioner's Instruction 3.04, at p9), [19], [23]. First Westin Affidavit, Exhibit MSW-1, 135.

[242] Defendants' Supplementary Submissions dated 29 November 2023, [15]; Second Westin Affidavit, [9].

[243] Defendants' Supplementary Submissions dated 29 November 2023, [16]; Transcript 13.12.23, T114.13-.27, T131.7-.16.

[244] Transcript 12/12/23, T75.10-.31.

[246] [2001] VSC 420; (2001) 124 A Crim R 259.

[247] [2001] VSC 420; (2001) 124 A Crim R 259, [7]-[10].

[248] [2001] VSC 420; (2001) 124 A Crim R 259, [18]-[19].

[249] [2001] VSC 420; (2001) 124 A Crim R 259, [32].

[250] [2001] VSC 420; (2001) 124 A Crim R 259, [38].

[251] [2001] VSC 420; (2001) 124 A Crim R 259, [55]-[57].

[252] [2001] VSC 420; (2001) 124 A Crim R 259, [55].

[253] [2001] VSC 420; (2001) 124 A Crim R 259, [57].

[254] [2001] VSC 420; (2001) 124 A Crim R 259, [44].

[255] See for example Engebretson v Bartlett [2007] VSC 163; (2007) 16 VR 417, [63] (Bell J); Hamilton Island Enterprises Pty Ltd v Commissioner of Taxation [1982] 1 NSWLR 113, 119 (Rogers J).

[256] See in the related context of the purposes of s 43(1A) of the Act which provides a power to prohibit certain persons entering prisons for visits: AS v Secretary to the Department of Justice [2017] VSC 310, [67]-[69], [76]-[79].

1. [257] Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138, 143 [5] (Gleeson CJ); CFMEU v Mammoet Australia Pty Ltd (2013) 248 CLR 619, 632-633 [40]-[41] (Crennan, Kiefel, Bell, Gageler and Keane JJ); See also Jolin Nominees Pty Ltd v Daniel Investments (Aust) Pty Ltd (2022) 68 VR 504, [49] (Sifris, Niall and Walker JJA).

[258] Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138, 142-143 [5]-[7].

[259] (1983) 34 SASR 73, 105 (Mitchell ACJ), 109 (Legoe J).

[260] [2001] VSC 420; (2001) 124 A Crim R 259, [55] (Eames J).

[262] Cf Bromley v Dawes (1983) 34 SASR 73, 109 (Legoe J).

[263] Cf with respect to the earlier (but apparently broadly similar) iteration of a contact visiting programme authorised under s 38: Kaufman [2001] VSC 420; (2001) 124 A Crim R 259, [56]-[58].

[264] Pickering Affidavit, Exhibit PP-1, 81.

[265] Crown Counsel, for Ms Westin in submissions at the hearing acknowledged that the language 'demonstrable justification' was unfortunate in that it suggests a Charter analysis, which was not intended by the Deputy Commissioner, and that rather this was directed to the need for a clear justification to depart from the Contact Visits Programme policy: Transcript 13/12/23, T122.5-.18.

[266] Second Westin Affidavit, [11] (emphasis added). The final sentence, relating to the power of General Managers to depart from the terms of Deputy Commissioner's Instruction 3.04, does raise some issues about the status of the Instruction which is established by instrument pursuant to a specific statutory power, rather than being an administrative policy as is the case with the Commissioner's Requirement. That is discussed further below at [ 306] to [307] , but is not directly relevant to the issue of whether the provisions relating to loss of contact visits involve imposition of punishment, given that it relates to choosing not to withdraw access to visits.

[267] Kaufman [2001] VSC 420; (2001) 124 A Crim R 259, [38], [57].

[268] Transcript 12/12/23, T61.28-62.11.

[269] Plaintiff's Submissions dated 14 November 2023 (Westin Proceeding), 2-3.

[270] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [30].

[271] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [44].

[272] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [33]; See also [21].

[273] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [46]; See also [16] re the purported status of contact visits as a right.

[274] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [18].

[275] Transcript 12/12/23, T36.24-.30.

[276] Defendants' Supplementary Submissions dated 29 November 2023, [7].

[277] Defendants' Supplementary Submissions dated 29 November 2023, [12].

[278] Defendants' Supplementary Submissions dated 29 November 2023, [15], [19].

[279] Defendants' Supplementary Submissions dated 29 November 2023, [21]-[23]; Transcript 13/12/23, T142.27-143.4.

[280] Transcript 13/12/23, T112.7-.14.

[281] [1980] FCA 38; (1980) 29 ALR 333, 347 (emphasis added). Mr McCabe relied on Refrigerated Express in a different context of saying that the Ineligibility Conditions were repugnant to s 38's sole authorised purpose of prison welfare in facilitating contact with family and friends: Plaintiff's Submissions dated 11 November 2023 (Westin Proceeding), [4]. I have rejected the premise that the only purpose for which the discretion in s 38 may be exercise is welfare at [239] above.

[282] Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1.

[283] [1932] HCA 9; (1932) 47 CLR 1, 7.

1. [284] R v Wallis; Ex parte Employers Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529, 550-551 (Dixon J); Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, 678 (Mason J); Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219, 236 [43] (French CJ, Hayne, Crennan, Kiefel and Keane JJ); Crime and Corruption Commission v Carne (2023) 97 ALJR 737, 748 [65]-[67] (Kiefel CJ; Gageler and Jagot JJ).

[285] [2006] HCA 50; (2006) 228 CLR 566.

[286] [2006] HCA 50; (2006) 228 CLR 566, 589 [59].

[287] (2009) 238 CLR 489, 502-504 [39]-[47] (French CJ, Heydon, Crennan, Kiefel and Bell JJ).

[288] [2011] NSWSC 120; (2011) 80 NSWLR 296.

[289] [2011] NSWSC 120; (2011) 80 NSWLR 296, [41]-[46], [126]-[130] (Johnson J).

[290] [2011] NSWSC 120; (2011) 80 NSWLR 296, [134]-[135], [147] (Johnson J).

[291] (1987) 48 SASR 500.

[292] (1987) 48 SASR 500, 509-510.

[293] [2022] WASC 274.

[294] [2022] WASC 274, [59]-[63] re Young Offender Regulations 1995 (WA), regs 73-77.

[295] [2022] WASC 274, [64]-[65] re Young Offender Regulations 1995 (WA), regs 78-79.

[296] [2022] WASC 274, [82].

[297] [2001] VSC 420; (2001) 124 A Crim R 259, [47], [59].

[298] [2001] VSC 420; (2001) 124 A Crim R 259, [47].

[299] [2001] VSC 420; (2001) 124 A Crim R 259, [58]-[59].

[300] [2001] VSC 420; (2001) 124 A Crim R 259, [60].

[301] [2001] VSC 420; (2001) 124 A Crim R 259, [43] (emphasis added).

[302] [2001] VSC 420; (2001) 124 A Crim R 259, [47].

[307] Anthony Hordern [1932] HCA 9; (1932) 47 CLR 1, 7.

[308] It does not contain language which refers to a relationship with other provisions of the Act such that it could be regarded as permitting an instrument which would deal with matters that have been addressed by other specific provisions of the Act, in any inconsistent way. Section 53 and the other provisions relating to prison discipline also do not contain any language making them subject to other parts of the Act; cf Minister for Immigration v SZKTI (2009) 238 CLR 489, 503 [43]-[45].

[309] [2001] VSC 420; (2001) 124 A Crim R 259, [59].

[310] [2001] VSC 420; (2001) 124 A Crim R 259, [43].

[311] [2001] VSC 420; (2001) 124 A Crim R 259, [58].

[312] [2001] VSC 420; (2001) 124 A Crim R 259, [59].

[313] [2001] VSC 420; (2001) 124 A Crim R 259, [54].

[314] See the Ineligibility Conditions set out at para [223] above.

[315] Defendants' Supplementary Submissions dated 29 November 2023, [22]; Transcript 13/12/23, T142.27-143.4.

[316] [2001] VSC 420; (2001) 124 A Crim R 259, [47]. Section 21(1) was the section relied on to authorise the Drug Strategy, which was the primary basis on which the plaintiff's contact visits had been suspended in that case.

[317] Transcript 12/12/23, T60.5-.7, T61.4-.8.

[319] Defendants' Submissions dated 9 November 2023, [40].

[320] Grounds 1, 2, 3, 4 and 7 of the Amended Originating Motion filed 15 August 2023.

[321] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [4].

[322] Defendants' Submissions dated 9 November 2023, [38], [40], [56], [64], [70].

[323] Transcript 13/12/23, T127.1-.6, T129.3-.22.

[324] Transcript 15/12/23, T162.6-.14.

[325] Defendants' Submissions dated 9 November 2023, [64].

[326] Transcript 13/12/23, T130.11-.15.

[327] Transcript 13/12/23, T130.18-.20.

[328] See Australian Postal Corporation v Forgie [2003] FCAFC 223; (2003) 202 ALR 63, 69-76 and in particular at [49], [54]-[55] (Black CJ, Merkel, Stone JJ); Cf Buck v Comcare [1996] FCA 1485; (1996) 137 ALR 335, 337, 339 (Finn J).

[329] Pickering Affidavit, Exhibit PP-1, 25.

[330] Pickering Affidavit, [16(g)]-[16(i)].

[332] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [16]; Transcript 12/12/23, T34.2-.26, T42.4-.10.

[333] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding) [14], [18]-[20], [24]; Transcript 12/12/23, T49.8-.14.

[334] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [18]-[20]; Transcript 12/12/23, T28.17-29.18.

[335] Defendants' Submissions dated 9 November 2023, [42], [47].

[337] The instrument could constitute a legislative instrument - see Subordinate Legislation Act 1994 (Vic), s 3(1), which relevantly defines a legislative instrument as 'an instrument made under an Act or statutory rule that is of a legislative character', but not including various categories of instrument such as statutory rules and instruments of 'purely administrative character'. Section 3(2) defines an instrument of a 'purely administrative character' by reference to categories not readily applicable to a s 38 instrument containing eligibility requirements and conditions for a contact visiting programme. It is unnecessary to conclude whether in fact the Contact Visiting Programme section of Deputy Commissioner's Instruction 3.04 is such an instrument.

[338] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [14]-[28]; Plaintiff's Submissions dated 14 November 2023 (Westin Proceeding), [3].

[339] See, for example, Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, 193-194.

[340] Pickering Affidavit, [16(g)], [16(h)], [20].

[341] If I am correct in finding that the Fourth Ineligibility Condition of the Contact Visiting Programme was beyond power, there may be a basis on which Ground 1 succeeds. As noted in [290] above, I will hear the parties' submissions on that issue with all submissions about relief.

[342] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [29]-[46]; Plaintiff's Submissions dated 14 November 2023 (Westin Proceeding), [5].

[343] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [45].

[344] Pickering Affidavit, Exhibit PP-1, 25.

[345] Pickering Affidavit, Exhibit PP-1, 23.

[346] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [49]-[52].

[347] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [52]; Transcript 12/12/23, T52.24-.27

[348] Consolidated McCabe Affidavit, [17].

[349] Plaintiff's Submissions dated 23 October 2023 (Pickering Proceeding), [53].

[350] Defendants' Submissions dated 9 November 2023, [65].

[351] Defendants' Submissions dated 9 November 2023, [66].

[352] Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 666 [97] (Gummow, Hayne, Crennan and Bell JJ).

[353] Pickering Affidavit, Exhibit PP-1, 75.

[354] [2017] VSC 310.

[355] [2017] VSC 310, [80].

[356] [2017] VSC 310, [8].

[357] [2017] VSC 310, [36], [39], referring to Kioa v West [1985] HCA 81; (1985) 159 CLR 550.

[358] [2017] VSC 310, [78].

[359] [2017] VSC 310, [102], [123].

[360] [2017] VSC 310, [123].

[361] Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180.

[362] Consolidated McCabe Affidavit, [9]-[13]. Pickering Affidavit, [17] contains Mr Pickering's account of what was said during the hearing. No reference is made there or otherwise in his affidavit to any discussion with Mr McCabe of the loss of contact visits.

[363] First McCabe Affidavit, Exhibit B.

[364] Defendants' Submissions dated 9 November 2023, [66].

[365] Second Westin Affidavit, [15].