Plaintiff v Defendants [2025] VSC 740 | Case summary

Mr McCabe is a prisoner at Beechworth Correctional Centre. In March 2020 Corrections Victoria implemented measures to reduce the risk of COVID-19 infection and transmission for those living and working in prisons. These measures included temporary lockdowns during which prisoners were mostly confined to their cells and, in some circumstances, the requirement to go into protective quarantine.
Mr McCabe seeks judicial review of a decision made under s 58E of the Corrections Act 1986 (Vic) (Corrections Act) by a delegate of the Secretary. That section provides for the reduction of sentences of imprisonment and non-parole periods by the granting of 'emergency management days' (EMDs).
From April 2020 until about February 2023, the Secretary accepted that the COVID-19 pandemic was an emergency for the purposes of s 58E. The Commissioner of Corrections Victoria, as the Secretary's delegate, established a process for granting EMDs to certain prisoners under s 58E, on the Secretary or her delegate's own initiative. This was known as the automatic consideration process. In April 2020 Corrections Victoria produced a Fact Sheet describing the process.
The Secretary granted Mr McCabe 106 EMDs under the automatic consideration process. One hundred of these days were for full days where Mr McCabe was locked in his cell. On seventy seven of those days, Mr McCabe was not able to make a phone call or 'run-out'.
On 18 October 2022 Mr McCabe made an application for additional EMDs to the Secretary. His application attached three affidavits, respectively entitled 'Lock-in Conditions'; 'Missing Lock-In Days'; and 'Visits and Other Matters'.
On 23 February 2024 Mr McCabe filed an originating motion seeking judicial review of the Secretary's failure to determine his application for additional EMDs.
On 19 April 2024, the Secretary's delegate granted Mr McCabe an additional twelve EMDs (April decision). Mr McCabe spent ten of these days locked in his cell unable to make or receive phone calls or to 'run-out'.
Mr McCabe filed an amended originating motion on 27 May 2024.
On 28 June 2024 the delegate reconsidered Mr McCabe's application and made a new decision (June decision). The delegate confirmed the April decision of the additional 12 EMDs and decided not to grant Mr McCabe additional EMDs for full days locked-in and for loss of contact and residential visits.
Mr McCabe requested reasons for the delegate's decision of 28 June 2024. The delegate provided written reasons by letter dated 25 September 2024.
The parties agreed that the decision the subject of Mr McCabe's application for review was the delegate's decision of 28 June 2024. That decision took account of and superseded the automatic consideration process and reconsidered and replaced the decision made on 19 April 2024.
Mr McCabe filed a further amended originating motion on 20 November 2024 and a second further amended originating motion on 24 April 2025. Mr McCabe seeks an extension of time to file his further amended application for judicial review. The defendants did not oppose the Court granting Mr McCabe an extension of time.
Mr McCabe's most recently amended originating motion contained four grounds of review. While Mr McCabe's grounds are set out in full below, they can be summarised here as follows. Grounds 1.1, 1.2 and 3 are that the delegate and Secretary's discretion was unlawfully fettered by departmental policy. Grounds 1.3 and 4 allege the delegate failed to take into account relevant considerations. Ground 2 alleges that the decision to grant only 1 EMD for each full day locked-in, without access to the phone or run-out was legally unreasonable. Mr McCabe also sought a declaration that aspects of the Commissioner's policy in relation to the grant of EMDs is unlawful.
For the reasons given below, I have decided to grant Mr McCabe an extension of time. I have also decided that Mr McCabe has not made out any of his grounds of review and his proceeding must be dismissed. I have declined to make the declaration sought by Mr McCabe.

Plaintiff v Defendants [2025] VSC 740 | Case summary | Zoe

Mr McCabe is a prisoner at Beechworth Correctional Centre. In March 2020 Corrections Victoria implemented measures to reduce the risk of COVID-19 infection and transmission for those living and working in prisons. These measures included temporary lockdowns during which prisoners were mostly confined to their cells and, in some circumstances, the requirement to go into protective quarantine.
Mr McCabe seeks judicial review of a decision made under s 58E of the Corrections Act 1986 (Vic) (Corrections Act) by a delegate of the Secretary. That section provides for the reduction of sentences of imprisonment and non-parole periods by the granting of 'emergency management days' (EMDs).
From April 2020 until about February 2023, the Secretary accepted that the COVID-19 pandemic was an emergency for the purposes of s 58E. The Commissioner of Corrections Victoria, as the Secretary's delegate, established a process for granting EMDs to certain prisoners under s 58E, on the Secretary or her delegate's own initiative. This was known as the automatic consideration process. In April 2020 Corrections Victoria produced a Fact Sheet describing the process.
The Secretary granted Mr McCabe 106 EMDs under the automatic consideration process. One hundred of these days were for full days where Mr McCabe was locked in his cell. On seventy seven of those days, Mr McCabe was not able to make a phone call or 'run-out'.
On 18 October 2022 Mr McCabe made an application for additional EMDs to the Secretary. His application attached three affidavits, respectively entitled 'Lock-in Conditions'; 'Missing Lock-In Days'; and 'Visits and Other Matters'.
On 23 February 2024 Mr McCabe filed an originating motion seeking judicial review of the Secretary's failure to determine his application for additional EMDs.
On 19 April 2024, the Secretary's delegate granted Mr McCabe an additional twelve EMDs (April decision). Mr McCabe spent ten of these days locked in his cell unable to make or receive phone calls or to 'run-out'.
Mr McCabe filed an amended originating motion on 27 May 2024.
On 28 June 2024 the delegate reconsidered Mr McCabe's application and made a new decision (June decision). The delegate confirmed the April decision of the additional 12 EMDs and decided not to grant Mr McCabe additional EMDs for full days locked-in and for loss of contact and residential visits.
Mr McCabe requested reasons for the delegate's decision of 28 June 2024. The delegate provided written reasons by letter dated 25 September 2024.
The parties agreed that the decision the subject of Mr McCabe's application for review was the delegate's decision of 28 June 2024. That decision took account of and superseded the automatic consideration process and reconsidered and replaced the decision made on 19 April 2024.
Mr McCabe filed a further amended originating motion on 20 November 2024 and a second further amended originating motion on 24 April 2025. Mr McCabe seeks an extension of time to file his further amended application for judicial review. The defendants did not oppose the Court granting Mr McCabe an extension of time.
Mr McCabe's most recently amended originating motion contained four grounds of review. While Mr McCabe's grounds are set out in full below, they can be summarised here as follows. Grounds 1.1, 1.2 and 3 are that the delegate and Secretary's discretion was unlawfully fettered by departmental policy. Grounds 1.3 and 4 allege the delegate failed to take into account relevant considerations. Ground 2 alleges that the decision to grant only 1 EMD for each full day locked-in, without access to the phone or run-out was legally unreasonable. Mr McCabe also sought a declaration that aspects of the Commissioner's policy in relation to the grant of EMDs is unlawful.
For the reasons given below, I have decided to grant Mr McCabe an extension of time. I have also decided that Mr McCabe has not made out any of his grounds of review and his proceeding must be dismissed. I have declined to make the declaration sought by Mr McCabe.

[26]

Emergency Management Days

In accordance with section 58E of the Corrections Act 1986 (the Corrections Act), a prisoner may be eligible for Emergency Management Days (EMDs) if they are of good behaviour during a period of disruption or deprivation, relating to an emergency or an industrial dispute, or in other circumstances of an unforeseen and special nature. Corrections Victoria established a process to automatically consider EMDs for certain prisoners who suffered deprivation or disruption relating to the COVID-19 emergency. Deprivation or disruption includes restrictive regimes because of COVID-19 or having out of cell time significantly restricted, for example, due to being placed into protective quarantine upon reception.

In accordance with the Corrections Act, the decision to grant EMDs may only be made by the Secretary of the Department of Justice and Community Safety or her delegate. Currently, the Commissioner for Corrections and the Deputy Commissioner, Custodial Operations are the Secretary's delegates in relation to EMD decisions.

Decisions regarding the granting of EMDs are made on a case-by-case assessment, and the decision maker has discretion as to what matters they consider when determining whether to grant EMDs. The Secretary, or their delegate, has discretion not to grant EMDs even when a person has been of good behaviour in the circumstances set out in section 58E(1) of the Corrections Act.

Decision of 25 June 2024

On 25 June 2024, I made a decision regarding your EMD application dated 18 October 2022 under my delegation as Acting Deputy Commissioner, Custodial Operations. I advised you of this decision in a letter dated 28 June 2024.

In making my decision I considered the information in your application cover letter and the three supporting affidavits (all dated 18 October 2022), and your letters addressed to the Secretary, Deputy of Justice and Community Services (sic) dated 13 January 2023 and 8 November 2023 (the Material). Having considered the matters set out in the Material, I decided in accordance with section 58E of the Corrections Act to grant the following EMDs, in addition to the 106 EMDs you were granted via the automatic consideration process:

For the period 21 May 2022 to 31 May 2022: 11 EMDs

For the period 16 August 2022: 1 EMD

7. The reasons for my decision are set out below.

Affidavit One: Lock-in Conditions

You were granted 106 EMDs under the automatic consideration process for EMDs in relation to the COVID-19 emergency. Based on your Affidavit One - Lock-in Conditions and Schedule of Full Days Locked In, you applied for more EMDs to be granted for the dates listed in the Schedule, in addition to the EMDs already granted under the automatic consideration process.

In your Affidavit One, you give a timeline of lock-ins and describe your experience during lock-ins. That included confinement to your cell; limited run-outs; limitation of in-person visits, phone and Zoom calls; and cancellation of Zoom calls. You described the limitation of your access to the kitchen and perishables - meaning that you could not cook any food, and perishable items in the fridge expired; reduction in food quality; and restriction of the canteen and laundry service. You also describe you were unable to maintain your usual training routine during lock-ins, and state that you tended to have back soreness after 3-5 days of being locked in, which you attributed to not having enough leg movement.

As I explain below (under the heading "Missing Lock-In Days"), I decided to grant 11 EMDs for the period 21 May 2022 to 31 May 2022 and 1 EMD for 16 August 2022.

In addition to the EMDs granted for your Missing Lock-In Days, I considered whether to grant you any additional EMDs on account of the matters you raise in Affidavit One. Corrections Victoria implemented processes to manage and reduce the risk of the COVID-19 virus across the prison system. The impact of the COVID-19 emergency on prison operations, as well as the level of deprivation and disruption experienced by people in custody was regularly monitored. I decided not to grant additional days in relation to the COVID-19 emergency because I believe that the number of days granted, being equivalent to the days of disruption and deprivation that occurred, was reasonable, and reflected the impact of the lockdowns on your usual activities. I did not consider that the matters raised in your application represented significant deprivation beyond the natural consequences of the lockdowns, which were what led to the EMDs being granted in the first place.

Affidavit Two: Missing Lock-In Days

In your Affidavit Two - Missing Lock-In Days and Schedule of Missing Lock-In Days, you give a timeline of lockdowns which is similar to your Affidavit One. You also identified some time periods when you were in quarantine, but for which you did not receive EMDs: in paragraph 11, and in the Schedule of Missing Lock-In Days. You sought additional EMDs (in addition to the EMDs granted under the automatic consideration process) for the dates you identify as "missing lock-in days".

I decided to grant 11 EMDs for the period 21 May 2022 to 31 May 2022 due to you being in Transfer Quarantine.

I decided to grant 1 EMD for 16 August 2022 because Loddon Prison experienced a full-day lockdown relating to the COVID-19 emergency.

I did not grant any EMDs for the part-day lock-ins because in my view, the disruption or deprivation your experienced was not significant in the context of the COVID-19 emergency and so does not warrant the granting of EMDs. This is because the lockdowns you experienced were part-day only and as such, your out-of-cell time was not significantly restricted because of COVID-19.

I did not grant any EMDs for the periods of 5 June 2021 and 17 January 2022 because the lockdowns on those days were due to security issues and the lockdowns were necessary to maintain the security and good order of the facility. These circumstances are not considered an emergency, an industrial dispute or unforeseen and special and therefore do not meet the threshold for granting EMDs.

Affidavit Three: Visits and Other Matters

You also applied for additional EMDs due to restrictions on visits and other matters due to the COVID-19 emergency, as outlined in your Affidavit Three - Visits and other matters and Schedule of Visit Availability and Type. For the reasons explained below, I have decided not to grant any additional EMDs on the basis of the matters outlined in your Affidavit Three.

I considered your statements about the effect of the COVID-19 emergency on your relationships with your young son, partner, family and friends, due to restrictions on your contact visits and video calls. You say in your Affidavit Three that video calls improved communication to a limited degree, but were no substitute for in-person contact visits, and many video calls were cancelled anyway.

For all people in custody, in-person visits were suspended, or subject to special conditions, to reduce the risk of person-to-person transmission of COVID-19, which was heightened in a custodial environment. Where in-person visits were available, they were conducted in accordance with COVID-19 risk reduction measures such as visitor screening procedures (including proof of vaccination, rapid antigen testing and masking requirements) and physical distancing. Where in-person visits were not available, alternative options were implemented including video visits, increased access to telephone calls and the introduction of the prisoner email service. The restrictions and special conditions on visits eased in line with the easing of restrictions in custody in response to the COVID-19 emergency. In this context, I did not consider that the restrictions and special conditions on visits involved significant disruption that would warrant the granting of any additional EMDs.

Your Affidavit Three also describes restrictions on services offered by the prisons due to COVID-19, which affected you, including limitations on library hours; reduced access to technology (for a period); restrictions on canteen options; and the cancellation of certain programs, church services and meditation sessions. I also note that the beginning of your Graduate Diploma of Mathematics was delayed from July 2020 until March 2021.

I determined that these limitations on services and the delay to your study plans due to the COVID-19 emergency did not justify granting any additional EMDs, because I did not consider the limitations or delay to cause significant additional disruption or deprivation in the broader context of COVID-19. Where service delivery was affected, suitable alternatives were quickly provided. Examples of this include the remote delivery of programs and chaplaincy services.

I also considered your description of limitations on dental services and your requests for psychological assistance or counselling. All people in custody continued to have access to medical and mental health services during the COVID-19 emergency. At times there were some restrictions on non-emergency procedures (for example dental and physiotherapy) in line with recommendations to reduce the risk of COVID-19 transmission. In my view, the circumstances you described did not represent disruption or deprivation which would warrant the granting of any additional EMDs.

[38]

Mr McCabe submitted that because the 'policy' fact sheet states 'the number of EMDs granted will be', it defines the extent of any exercise of the discretion. The criteria identified in the fact sheet is 'close to or equivalent to the number of days of disruption or deprivation'. Mr McCabe submitted that it is not possible, on any given day, to experience greater than a day's worth of disruption or deprivation. This therefore leads to the displacement of the statutory language of 'up to 4 days for each day or part of a day on which the emergency exists in the prison' by the words '1 day for each whole day on which the emergency exists in the prison'. Part days are excluded from consideration for EMDs altogether and an upper limit of 1 day imposed for full days, despite the plain words of the regulation allowing up to 4 EMDs. According to Mr McCabe, this demonstrates a rule-like quality that purports to remove consideration of a jurisdictional fact (part days) and controls the exercise of the discretion for full days. Mr McCabe noted that there is no available policy which outlines the circumstances that might give rise to the grant of 2, 3 or 4 EMDs for 1 day of disruption or deprivation.
Mr McCabe said the justification for the restrictive regime policy and the visits policy is stated in the fact sheet to be so that decisions are 'in line with community expectations and the current level of disruption occurring in the broader community'. Mr McCabe submitted that the term 'community expectations' is an expression imputing a political purpose and that the Secretary is not entitled to act upon her view of the public interest because decisions under s 58E are not political decisions, and the reference to community expectations introduces considerations the Secretary and her delegates are ill-suited to evaluate and which are outside the context and proper scope of the Corrections Act considerations. It is taking into account an irrelevant consideration.
Mr McCabe acknowledged that in Donohue v Westin,[5] Niall JA determined that the impact of the COVID-19 pandemic felt outside the prison and the extent to which burdens are felt across the community are not irrelevant considerations that the decision maker is forbidden from taking into account. However, Mr McCabe said, Niall JA had not explained why this was the case. According to Mr McCabe there ought to at least be a causal connection between impacts on the community and those felt within the prison, which is the focus of the statutory provision. The term 'community expectations' does not establish such a link.
Mr McCabe said the policy justification focuses on the public at large and is silent on the experiences, collectively and individually, of prisoners. It does not relate to the impact of the emergency on the operation of the prison, it does not encourage or reward good behaviour, nor does it include reference to security of prisons, welfare of prisoners or any other identifiable purpose of the Corrections Act or objective of the regulations. Mr McCabe submitted this demonstrated that the policy serves a purpose foreign to that which the discretionary power was created, or at least that the policy has given excessive weight to a factor of no great importance, which is manifestly unreasonable.
Mr McCabe submitted that the terms of the Information Sheet - September 2023, that prisoners should only apply for EMDs if they were not considered for EMDs as part of the automatic process, effectively limited the pathway for prisoners to be considered for EMDs for lock-ins to the automatic process. Mr McCabe said that the terms of the information sheet conveyed the meaning that once automatic decisions had been made they were final. He submitted that the delegate was prohibited from considering additional EMDs for deprivations and disruptions during the 100 full days locked-in for which EMDs had already been granted, despite purporting to do so. Even if otherwise, the delegate was confined to the 1:1 ceiling such that there was no decision to be made. Mr McCabe said that since the Secretary's automatic decisions did not distinguish between prisoners and their individual circumstances, beyond the restrictive regime criteria, the policy effectively precluded prisoners presenting facts that might justify a departure from the policy.
Mr McCabe submitted that while the policy permitted him to apply for EMDs in relation to the 12 full days locked-in which had not been assessed under the automatic process, the delegate would not consider granting EMDs other than on a 1:1 basis. Mr McCabe said the delegate's statement, 'I did not consider that the matters raised in your application represented significant deprivation beyond the natural consequences of the lockdowns, which were what led to the EMDs being granted in the first place,' demonstrated that the 1:1 ceiling applied to all of the 'natural consequences of the lockdown' and that prisoners had no opportunity to differentiate disruptions or deprivations between them, such as days when prisoners received no run out or phone calls, or were locked in for weeks. In other words, the delegate was forbidden from evaluating the intensity of the lockdown which had been prejudged as justifying only the lowest possible favourable exercise of the discretion.
Mr McCabe said the delegate misapprehended her jurisdiction when deciding not to grant him EMDs for part days. Mr McCabe said the delegate's reasoning that the lockdowns he experienced on part days did not significantly restrict his out of cell time was a definitive statement that part-day lock-ins cannot justify EMDs, notwithstanding that the regulations explicitly allowing otherwise.
Mr McCabe referred to the section of the Emergency Management Days Information Sheet - September 2023, 'Have COVID-19 EMDs been granted at greater than 1:1 for some prisoners?' as evidence that there had not been a single departure from the policy. That section stated:

[41]

Mr McCabe's second ground was that the decision to grant only one EMD for each full day locked-in without a phone call or run out was legally unreasonable.
By this ground Mr McCabe contended that the Secretary's delegate had fallen into legal error by not exercising her discretion 'enough'. He submitted that the delegate had demonstrated legal unreasonableness because aspects of her decision showed an 'outcome focused' approach.
Mr McCabe submitted the legal test for unreasonableness is necessarily stringent with the question in each case being what is the limit upon the exercise of the power, in this case the boundary of the discretion in question. The intention of the legislation and the legal standard of reasonableness is indicated by the true construction of the relevant statute.
Mr McCabe submitted that the words of regulation 100, 'For the purposes of section 58E(1) of the Act, the Secretary may reduce the length of a sentence of imprisonment...up to 4 days for each day or part of a day..' clearly signify that disruptions or deprivations experienced for part of a day are capable of fulfilling the requirements of the statute for reducing the length of a sentence by at least a single day or two, three or four days.
Next Mr McCabe submitted that the purpose of s 58E was to encourage or reward good behaviour during times of challenge. He said it is not a purpose of the statute to promote prisoners of generally good behaviour, to be of even better behaviour, good behaviour being a pre-condition to the exercise of the discretion. In contrast, disruptions or deprivations are legislatively unconstrained. Mr McCabe argued that it follows that once the three statutory preconditions are satisfied, the decision maker is required to consider the level of disruption or deprivation, which are matters of evaluation and degree.
Mr McCabe argued that the words 'up to 4 days for each day or part of a day' in the regulation forms a discretionary scale which decision makers are required to have regard to when reflecting on the level of disruption or deprivation and the necessary encouragement or awarding of EMDs.
Mr McCabe contended that the statement of reasons made no mention of his behaviour, the intensity of the emergency, community expectations or impact on the broader community and so it could be inferred that the delegate did not consider these matters material to the exercise of her discretion. As a consequence the exercise of the delegate's discretion hinged solely on the intensity of the Mr McCabe's suffering which was reflected in the delegate's words, 'the number of days granted, being equivalent to the days of disruption and deprivation that occurred, was reasonable, and reflected the impact of the lockdowns on your usual activities'.
Mr McCabe argued that in order for the delegate to decide on an appropriate number of days to reflect his level of suffering, the delegate was required to consider the scale of the discretion available. According to Mr McCabe, granting one out of a possible four EMDs, to the extent this was required or intended to reflect an assessment of the impact of the lockdowns on his usual activities in terms of disruptions or deprivations lacked an evident and intelligible justification. The impacts were high. Days locked-in reflect the maximum deprivation or disruption a prisoner could experience.

[42]

By ground 1.3 Mr McCabe alleged the delegate failed to properly take into account the natural consequences of a lockdown when she decided to only grant twelve additional EMDs for missing full days locked-in cell and not to grant any additional EMDs for 100 full days locked-in cell.
In paragraph 11 of the delegate's reasons, the delegate stated that having regarded the matters raised in Mr McCabe's Affidavit One, she did not consider those matters to represent significant deprivation 'beyond' the natural consequences of the lockdowns, which were what led to the EMDs being granted in the first place. Mr McCabe submitted that the use of the word 'beyond' demonstrated that in fact the delegate did not consider the natural consequences of the lockdowns because the dictionary definition of 'beyond' includes, 'outside the limits or scope of'. This meant the delegate has said that Mr McCabe needed to demonstrate significant deprivations outside the scope of the natural consequences of a lockdown to get additional EMDs. Mr McCabe submitted that the delegate was not willing to consider granting two, three or four EMDs for the natural consequences of a lockdown. In other words the delegate was not assessing the impact with regard to the discretion to grant up to four EMDs. This was a constraint imposed by the delegate which was inconsistent with the statute.
Mr McCabe contended that the delegate has failed to understand the way he put his argument for additional EMDs because his argument was not based on a premise that his case was exceptional when considered against other prisoners' experience of lockdowns. In this way Mr McCabe argued that the delegate's acceptance of the policy misled the delegate as to true understanding of Mr McCabe's case.
Mr McCabe argued that the delegate failed to make a qualitative assessment of the disruptions and deprivations on him in addition to a quantitative assessment (how many days). He said the policy however, mandated that lockdowns be evaluated only in terms of their duration, not their qualitative impact. This, Mr McCabe said amounted to both unlawful fettering and also a failure to fulfil the statutory task, which required evaluation of both the qualitative and quantitative impact of lockdowns.
Mr McCabe's fourth ground was that the delegate fell into jurisdictional error by failing to take into account a relevant consideration, namely deprivations suffered by him on account of being separated from his fiancé, newborn son and wider family.
Mr McCabe put his argument on this ground as follows. Mr McCabe said that because the delegate was under a statutory obligation to provide reasons, the Court could assume that the reasons disclosed the delegate's entire reasoning process. He agreed that paragraph 18 of the delegate's letter demonstrated that she had listened to and understood his representations. However, Mr McCabe argued that reading and understanding is not to be conflated with considering, which required the delegate to weigh the contents of Mr McCabe's application against the matters the delegate relied upon to reject this aspect of his application. Mr McCabe argued that in paragraph 19 of the delegate's reasons for decision the delegate explained why cancelling visits was justified and explained that restrictions were eased at different times in response to the COVID-19 emergency, which is not the same as weighing and reasoning through his arguments and representations. Mr McCabe said that the delegate's explanation of the arrangements made to ameliorate the impact of cancelling visits did not address his representations that these measures were almost meaningless in his particular case because they did not alleviate his suffering. Mr McCabe contended that the terms of paragraph 19 show the delegate did not address his arguments and representations, leaving it unclear whether the delegate accepted or rejected them or what weight, if any, the delegate attached to them. Mr McCabe argued that because the evidence showed the delegate did not evaluate his representations the Court could infer that she did not consider them and therefore failed to exercise jurisdiction. A pre-condition to the exercise of the discretionary power to grant EMDs and to determine how many EMDs to allow, was that Mr McCabe had suffered deprivation.
Mr McCabe said that the delegate's error was not saved by the contents of paragraph 24 of her statement of reasons because this paragraph was a summary about loss of visits and other matters, including education, expressed at a high degree of generality.
Mr McCabe argued that the delegate overrode the terms of the statute by not considering the absence of visits as a disruption or deprivation for the purpose of considering whether to grant additional EMDs for lock-in conditions.

[48]

In my view the use of the words 'close to or equivalent' are consistent with an indication of how the discretion will normally be exercised rather than an inflexible policy that will only be exercised in a particular way in a limited range of circumstances.
The Fact sheet also stated that prisoners would not be automatically considered for EMDs for the suspension of personal visits. In my view the use of this language clearly precludes the grant of EMDs for suspension of personal visits under the automatic consideration process. It does not preclude an application by a prisoner for EMDs for the suspension of personal visits. That this is so is confirmed by the facts of this case. Mr McCabe made an application for EMDs for the suspension of his personal visits. That application was considered by the delegate. While ultimately unsuccessful, the delegate did not refuse Mr McCabe's application on the basis that it was an impermissible application.
Mr McCabe took exception to the inclusion in the Fact Sheet of the words, 'The approach is in line with community expectations and the current level of disruption occurring in the broader community'. Mr McCabe argued these words demonstrated the policy served a purpose foreign to the statutory purpose for which the discretionary power was created.
I do not accept that the fact sheet, as the relevant policy, serves a purpose foreign to that which the discretionary power was created because it does not reference the purposes of the Corrections Act or the objectives of the regulations. The facts sheet is, on its face, a document prepared for prisoners. It provides a definition of emergency management days and explains the statutory pre-requisites to consideration of a grant of EMDs by reference to the Corrections Act and regulations. The discretion given to the Secretary and her delegates to award EMDs is broad. The Corrections Act does not set out a list of relevant considerations. Notwithstanding the breadth of the discretion, the fact sheet attempts to provide the standard the decision maker will usually apply, being the grant of EMDs close to or equivalent to the number of days of disruption or deprivation. In my view the inclusion of the statement that the approach is in line with community expectations and the current level of disruption in the broader community, cannot be taken to intend that is the only factor guiding the stated approach. The facts sheet notes that decision about granting EMDs will be made on a case by case basis. Individual consideration of cases is necessary and appropriate given the breadth of the discretion contained in the legislation.
Additionally, as found by Niall J in Donohue, the impact of COVID-19 outside the prison and the extent to which burdens are felt across the community are not irrelevant considerations in the exercise of the discretion to grant EMDs.[9] That decision is not plainly wrong and I am bound to follow it.
While discussed further below in relation to Mr McCabe's grounds 1.3 and 4, I do not accept that the delegate would not consider or was forbidden by the policy from granting him EMDs other than on a 1:1 basis. I do not accept that as a fair characterisation of the reasons. This aspect of Mr McCabe's submission is, in substance, an attack upon the delegate's qualitative assessment of his affidavit materials. It seeks to challenge the merits of the delegate's decision which is beyond the proper scope of judicial review.
The same can be said for Mr McCabe's argument that the delegate misapprehended her jurisdiction when deciding not to grant him EMDs for part day lockdowns. I cannot agree that the delegate's reasons for not granting Mr McCabe EMDs for part-day lock-ins amounted to a definitive statement that part-day lock-ins can never justify EMDs. In my view this is beyond the natural meaning to be attributed to the delegate's reasons. Again, Mr McCabe's argument invites the Court to review the delegate's assessment of the appropriate number of EMDs to award in the circumstances described by Mr McCabe. This review of the merits of the delegate's decision is beyond the scope of judicial review.
Accordingly, I do not accept that in its terms the Fact Sheet represents an unlawful policy.
Mr McCabe argued that the fact that the Fact Sheet operated to unlawfully fetter the decision of the delegate in his case could be inferred from:

[50]

The defendants' counsel objected to Mr McCabe's reliance on the PEAC hearing transcript on the basis of parliamentary privilege. I accept that the transcript of the PAEC hearing is not admissible as proof of the truth of the statements made in the transcript and nor is the substance of statements made in the transcript able to be used by the Court to draw an inference[10] and I have not had regard to it.
I decline to draw the inference that the use in the June decision and September reasons of similar language to that used in the Fact Sheet and across at least two other decisions is evidence of the use of a template that unlawfully fettered the decision of the delegate. As noted above, the purpose of a policy is to promote consistency in decision making. The crucial matter remains whether the delegate had regard to Mr McCabe's individual submissions. The use of similar or even the same language across decisions, or between a decision and the Fact Sheet does not demonstrate that the delegate did not have regard to Mr McCabe's submissions.
I also decline to infer from the terms of the Information Sheet that the delegate's decision was unlawfully fettered by the Facts Sheet. The Information Sheet states the outcome of an unspecified number of applications for EMDs. It is not clear how many of these outcomes were as a result of the application of the automatic consideration process as opposed to individualised applications, supported by submissions. The Information Sheet gives no background as to the content of any submissions put forward by any prisoner. In the absence of this information it is simply not possible for the Court to infer that the most probable reason no prisoner was granted EMDs at a greater rate of 1:1 was because of unlawful fettering by the policy.
For the reasons given above grounds 1.1, 1.2 and 3 are not made out.
In circumstances where Mr McCabe submitted an application supported by submissions in the form of the three affidavits accompanying his affidavit, the delegate's obligation to afford procedural fairness to Mr McCabe required her to take into account what Mr McCabe said.[11]
In Donohue,[12] Niall J considered the nature of the task required of the decision maker:

[51]

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

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

Such phrases, whether in the context of procedural fairness or the consideration of relevant considerations, may have some utility in emphasising that the statutory task and the decision making process must be one that is undertaken in a genuine rather than tokenistic way...

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

...

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

[57]

The submissions in support of those main contentions tended to criticise the Reasons as failing to fully and meaningfully engage with the representations as to the likelihood of indefinite detention in circumstances where it was a likely consequence based on the Minister's own findings set out in the Reasons. Particular reliance was placed upon the reasoning in Minister of Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 (Omar) at 607. There may be difficulties with such an approach given the reasoning of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 96 ALJR 497 (Plaintiff M1/2021) and the criticism in those reasons of aspects of the reasoning in Omar (and other Full Court decisions of this Court).

Having regard to what their Honours said in Plaintiff M1/2021, two aspects of the statutory task must be borne in mind for present purposes. The first aspect is that there is an important distinction between considering (in the sense of adverting to and understanding) the representations made by an applicant seeking the revocation of a visa cancellation under s 501CA(4) (on the one hand) and considering the same representations, in the sense of evaluating their significance in the course of making the decision (on the other hand). What was emphasised by their Honours in Plaintiff M1/2021 was the width of the discretionary power conferred by s 501CA(4). The consequence is that it is for the Minister, acting reasonably and rationally and having demonstrably identified and understood the representations being made, to determine whether a particular matter is of significance. Therefore, a reviewing Court will need to decide if a failure to refer to a particular matter in the Minister's reasons, even a matter clearly articulated by the applicant or which clearly arose on the materials, may indicate that the Minister was not persuaded that it was of significance, or whether that failure is evidence that the decision-maker did not identify and understand the representations being made.

Hence when it was said in Plaintiff M1/2021 that "a decision-maker must read, identify, understand and evaluate the representations" (at [24]), noting that this does not extend to claims that are not clearly articulated or which do not clearly arise on the materials (at [25]), reference was being made to comprehending what was being advanced by the applicant. Similarly at [27] when it was said that relevant facts or materials or substantial and clearly articulated arguments must not be ignored or overlooked. In respect of both these propositions, the reasons of a decision-maker must demonstrate this has occurred. Accordingly, approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister: at [26].[26]

[58]

Read fairly, the delegate's September reasons for decision shows that the delegate considered Mr McCabe's affidavit materials. While Mr McCabe submitted that the reasons made no mention of his good behaviour, the necessity his good behaviour was a prerequisite to the grant of EMDs. The intensity of the lockdowns was the subject of Mr McCabe's affidavit material which detailed the practical impacts of the lockdowns on Mr McCabe's conditions and activities. Mr McCabe's complaint was that the delegate did not consider his evidence 'enough'. As is clear from the authorities discussed above, questions about the appropriate weight to be attached to matters put before the decision maker are not grounds for judicial review. Rather, they stray into impermissible merits review of the decision.
In deciding whether to grant Mr McCabe EMDs, the delegate was required to assess the level and impact of the disruption. Contrary to Mr McCabe's submission, there is nothing in the delegate's reasons that implies that the delegate was unwilling to consider granting more than one EMD for each day of lockdown. Indeed the language of paragraph 11 of the reasons explicitly refers to the delegates consideration of whether to grant Mr McCabe additional EMDs (in addition to those granted for the missing lock-in days) on account of the matters raised in his Affidavit One. The delegate's reasons explain that she did not consider that the matters raised in Mr McCabe's affidavit represented significant deprivation beyond the natural consequences of the lockdowns. Mr McCabe conceded that the delegate had read and understood his representations. As is plain from the authorities, an assessment of the weight to be attached to any particular matter raised by a prisoner in his application for EMDs is a matter for the delegate. Mr McCabe's submissions are directed towards a review of the weight the delegate attached to Mr McCabe's representations, which invites a review of the merits of the delegate's decision. Merits review is beyond the scope of judicial review.
I do not accept that the delegate did not consider the absence of visits as a disruption or deprivation for the purpose of considering whether to grant Mr McCabe additional EMDs. A fair reading of the delegate's reasons shows that the delegate considered Mr McCabe's representations about the impact of restrictions on visits due to the COVID-19 emergency, including that some measures put in place to ameliorate the impact had limited benefit for Mr McCabe. The delegate then considered the range of measures put in place to ameliorate the impact of those restrictions, including the timing of the easing of those restrictions. The delegate decided not to grant additional EMDs to Mr McCabe because in the context of the extent of the restrictions and the measures taken to try to ameliorate their impact, the delegate did not consider the restrictions and special conditions on visits involved significant disruption that warranted the grant of additional EMDs. It is clear that the delegate did consider the absence of visits as a disruption or deprivation, however assessed their impact on Mr McCabe in context as not significant such as to warrant further EMDs being granted.
Accordingly, Mr McCabe has not made out grounds 1.3 and 4.
A decision which lacks an 'evident and intelligible justification' is legally unreasonable.[27] The test for unreasonableness is 'necessarily stringent' because 'the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion'.[28]
In my view the delegate's September reasons do not lack an evident and intelligible justification. The delegate's decision set out, albeit in summary form, the content of Mr McCabe's affidavits, took account of the COVID-19 context, the general custodial conditions, the justification for restrictive conditions as a COVID-19 risk reduction measure and the ongoing monitoring of the conditions. I accept that each of these matters logically bear on the impact of the COVID-19 emergency within the prison and the capacity of prisoners to tolerate the impact.
The delegate undertook a qualitative assessment of the impact of the disruptions and deprivations. As was recognised in Donohue[29] and McPadden, that is a power reposed in the Secretary and her delegates who are best placed to assess the level and impact of any disruption. The fact that Mr McCabe may not agree with the delegate's assessment of the impact on him does not make the delegate's decision legally unreasonable. To the extent Mr McCabe asks the Court to stray into an assessment of the merits of the delegate's assessment, that is impermissible.
It follows that ground 2 must be rejected.

Plaintiff v Defendants

At a glance

Court

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Judgment (76 paragraphs)

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Legislation Cited (2)

Cases Cited (9)