Plaintiffs v Defendant

78 Goodman J did not accept those submissions. His Honour gave several reasons for that view. The last of the reasons given is the most notable for present purposes. It was expressed as follows:[178]

Finally, to the extent that the applicant's submissions rely upon the degree or quality of the Minister's evaluation of the representations advanced by the applicant, and in particular taking into account the 'human consequences' of the outcome of his decision, those submissions are misplaced following Plaintiff M1/2021: see ECE21 at [6] and [8] set out at [58] above.

79 On 26 June 2023, six days after Tikomaimaleya was decided, a Full Court of the Federal Court (Katzmann, Jackson and McEvoy JJ) decided another visa cancellation case, namely Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[179] The Full Court in Jabari did not refer to Tikomaimaleya. It did refer[180] to Plaintiff M1/2021 and to ECE21 v Minister for Home Affairs. It said that the earlier Full Court (in ECE21 v Minister for Home Affairs) had emphasised, by reference to Plaintiff M1/2021, two aspects of the relevant statutory task, and it described those two aspects as follows:[181]

[52] ...provided the decision-maker has averted to [sic] and understood the representations the applicant has made, the degree or quality of engagement they provide to a given representation is a matter for them, as long as they act within the bounds of rationality and reasonableness;...

[53] ...the weight to be afforded to any particular representation is a matter for the Minister (or other decision-maker), including forming a view that the representation should be given no weight: ECE21 at [9]. It is necessary, however, for the decision-maker to be aware of and to have understood the representation.

80 However, the Jabari Full Court went on to distinguish ECE21 v Minister for Home Affairs. It did so on the basis that, in Jabari, the relevant representations of the applicant had been made on a topic that, according to the Full Court, amounted to a mandatory relevant consideration because of a certain Ministerial direction, issued under the Migration Act, that was said to be applicable. In ECE21 v Minister for Home Affairs, no corresponding Ministerial direction had been applicable. As a result, according to the Jabari Full Court, the representations made in ECE21 v Minister for Home Affairs had not related to (and were not themselves) mandatory relevant considerations.[182] According to the Jabari Full Court, a consequence of the applicability of the Ministerial direction was that it had not been open to the decision-maker (in Jabari) to treat the representations as lacking significance. I need not stay to examine the validity or the true consequences of this suggested distinction insofar as it may apply to visa cancellation cases under the Migration Act or otherwise. There is no corresponding distinction available in the present cases, because the plaintiffs do not submit that the details of their applications for EMDs were themselves mandatory relevant considerations or that those details were directed to any mandatory relevant considerations or that the delegates failed to take into account any mandatory relevant considerations at all.

81 After Jabari was decided, although without reference to Jabari,[183] the analysis of Plaintiff M1/2021 that had been adopted in ECE21 v Minister for Home Affairs, which in turn had been followed and applied in Tikomaimaleya, was followed and applied again, this time by yet another Full Court of the Federal Court, in yet another visa cancellation case, namely Shi v Minister for Home Affairs.[184] The Shi Full Court was composed of Snaden, Anderson and Goodman JJ. Their Honours observed that in ECE21 v Minister for Home Affairs, by reference to Plaintiff M1/2021, Mortimer, Colvin and O'Sullivan JJ had explained the necessity of bearing in mind the important distinction between considering (in the sense of adverting to and understanding), the representations made by an applicant for revocation (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).[185] The Full Court in Shi went on to say that the Court 'is not to consider the degree or the quality of the Minister's evaluation of the representations'.[186]

82 In a judgment delivered on 12 September 2023, the Court of Appeal of New South Wales read and applied Plaintiff M1/2021 in much the same way as the Full Court of the Federal Court had done in ECE21 v Minister for Home Affairs and in Shi. In Ceerose Pty Ltd v A-Civil Aust Pty Ltd[187] certain issues arose in relation to the role of adjudicators under the Building and Construction Industry Security of Payment Act 1999 (NSW). Relevantly, s 22(1) of that Act requires the adjudicator to 'determine' what amounts are payable as progress payments. Sub-section 22(2) provides that, in determining an adjudication application, the adjudicator is to 'consider' five specified matters (only). Sub-section 22(3) requires that the adjudicator include in the determination the reasons for the determination, unless the parties both request the adjudicator not to do so. One issue that arose was the scope of an adjudicator's 'duty to consider' under the Act; and whether an adjudicator falls into jurisdictional error if he or she fails to investigate the 'true merits' of each sum claimed or the 'true construction' of the contract. Payne JA (with whom Ward ACJ and Basten AJA agreed) held that it was an impermissible gloss on the language of the Act for a party challenging a determination to assert that the mental process undertaken by the adjudicator was not 'active', 'intellectual' or 'genuine'. Rather, what is required is identification of a basis to conclude that consideration did not occur at all.[188] Payne JA noted that in Plaintiff M1/2021 the High Court had warned about the use of labels or formulas such as 'active intellectual process' in identifying jurisdictional error.[189] Payne JA said that a particular risk with a claim that a decision-maker has failed to engage in an active intellectual process is that the argument can readily shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits review.[190] His Honour concluded that the appellant's approach of demanding an 'active intellectual process' on the part of an adjudicator was apt to mislead because, as the High Court had explained in Plaintiff M1/2021, 'active intellectual process' is a phrase providing a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any decision-maker's decision can be scrutinised. Payne JA noted that the High Court had concluded that that was not the correct approach.[191]

83 In VWA v Jamali,[192] a judgment delivered on 12 October 2023, the Victorian Court of Appeal appears to have accepted[193] the correctness of what the Court of Appeal of New South Wales said about Plaintiff M1/2021 in Ceerose.

84 One day later, 13 October 2023, Muir J of the Supreme Court of Queensland delivered judgment in Berridge v The Independent Assessor and Anor.[194] This was a claim for judicial review based on an assertion that the decision-maker, in determining whether or not to refer the applicant's conduct to a local government disciplinary tribunal, had failed to consider the submissions made by the applicant in response to the allegations of misconduct. The decision-maker was required by statute to give written reasons for any referral. Ultimately, Muir J was not satisfied that the decision-maker had failed to adequately consider the applicant's submissions.[195] However, on the way to this conclusion, Muir J said that the 'starting point' was that, when a statute requires a decision-maker to consider a matter, the decision-maker must engage in 'an active intellectual process directed at the matter',[196] citing the judgment of the plurality of the High Court in DVO16 v Minister for Border Protection & Anor.[197] Muir J went on[198] to refer to certain passages from the judgment of the plurality in Plaintiff M1/2021. His Honour also made a passing reference[199] to the abovementioned judgment of the Full Court of the Federal Court in Jabari.

85 It is true that, in DVO16, the plurality (Kiefel CJ, Gageler, Gordon and Steward JJ) had said that each obligation to 'have regard to' information is an obligation to engage in an 'active intellectual process' directed at the information.[200] However, that observation had been made in 2021. In my view, it must be read subject to what the plurality (Kiefel CJ, Keane, Gordon and Steward JJ, with whom Gageler J relevantly agreed) said in 2022 in Plaintiff M1/2021, especially at [26] of the plurality's judgment, to the effect that to use labels like 'active intellectual process' as a kind of general warrant to scrutinise the procedural and substantive merits of a decision is 'not the correct approach'. One of the many cases referred to in Plaintiff M1/2021 with apparent disapproval in this regard was DVO16 itself.[201] In any event, as a single judge of this Court, I should read Plaintiff M1/2021 as it was read by the Full Court of the Federal Court in ECE21 and in Shi, by the New South Wales Court of Appeal in Ceerose and by the Victorian Court of Appeal in VWA v Jamali. It is also to be remembered that the proper interpretation and application of any statutory provision is a matter to be approached primarily by reference to the text and context of that particular statutory provision, rather than by reference to the words used by judges in other cases, especially other cases relating to different statutory provisions.[202]

86 Whatever may be made of Jabari, the other recent decisions of the Federal Court mentioned above reinforce my view that, in the light of Plaintiff M1/2021, the plaintiffs' reliance on Omar and Hands and like cases is misplaced. Further, those other recent Federal Court decisions, and also Ceerose and VWA v Jamali, reinforce my view that Plaintiff M1/2021 stands against, not in support of, the plaintiffs' attempt to construct a more exacting duty to 'evaluate' applications for EMDs than had been recognised by Niall JA in Donohue.

Any duty to 'evaluate' applications for EMDs does not go beyond the duty expounded in Donohue

87 In addition to the consequences of Plaintiff M1/2021 for the authority of cases like Omar and Hands (and generally), there are further reasons why the plaintiffs' contention that there is a duty to evaluate EMD applications going beyond the duty recognised in Donohue cannot be accepted.

88 To begin with, the general subject matter of s 58E of the Corrections Act is very different from that of the Commonwealth statutory scheme for the removal of visa-holders from Australia on character grounds that underlay Plaintiff M1/2021 and the Federal Court cases on which the plaintiffs have principally relied. Thus in Omar and Hands the Federal Court was deeply concerned about the 'devastating consequences' that decisions under the character provisions of the Migration Act might have on people.[203] By contrast, as mentioned above,[204] the stakes are generally not as high in applications for EMDs; and the non-granting of claimed EMDs to a sentenced prisoner is usually not apt to have 'devastating consequences' for the prisoner.

89 Consistently with this, and as I have already mentioned,[205] whereas under the Commonwealth scheme there was an express statutory provision for the making of representations against removal, there is no express statutory provision for the making of applications for EMDs. Although this does not exclude an implied duty to consider applications for EMDs, whether as an aspect of the requirements of procedural fairness[206] or otherwise,[207] it is not irrelevant to the assessment of the nature and extent of any such implied duty of consideration.[208]

90 For reasons generally corresponding to those advanced by the plaintiffs,[209] it may be accepted that the Secretary or her delegate, in considering an application for EMDs, is required to consider the applicant's individual experience of incarceration and his or her individual behaviour, to the extent that the applicant raises such matters in his or her application. The delegate must read and understand, not ignore, what the applicant says in that regard. To ignore what an applicant says would generally be to deny the applicant procedural fairness,[210] or to constructively fail to exercise jurisdiction.[211] That much is supported by Plaintiff M1/2021 and by many other cases, including some of the older cases (mainly relating to refugee status determinations) that were cited by Mr Quail in paragraphs [10] and [11] of his written submissions.[212] On the other hand, some of the propositions advanced by Mr Quail in paragraphs [10] and [11] of his written submissions are not supported, or are no longer supportable, by the cases to which he refers. For example, for the reasons given in [61]-[83] above of this judgment, Mr Quail's proposition that jurisdictional error 'arises when evidence of "significance" is not evaluated or considered' (being, in any event, an ambiguous proposition) is not, or is no longer, supportable by reference to [36] of Omar. Further, Mr Quail seems to suggest in [10] of his written submissions that the judgment of the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS[213] stands for the proposition that the absence of any 'evaluation' of 'submitted material' amounts to jurisdictional error. The Full Court certainly did not make any holding to that effect. In MZYTS, the Refugee Review Tribunal had made no reference at all in its statutory reasons to a vital matter, namely the current situation (as distinct from the past situation) in Zimbabwe with respect to political violence. It is true that material relating to the current situation had been put before the Tribunal by the applicant, but the Tribunal's error, as found, was not that it had failed to 'evaluate' material submitted by the applicant but rather that the Tribunal had ignored the vital matter of the current situation in Zimbabwe altogether. I note also that many of the cases that were cited by Mr Quail in paragraphs [10] and [11] of his written submissions had been cited to, and noted by, Niall JA in Donohue.[214] Of the cases that had been cited to Niall JA, the judgment of the Full Court of the Federal Court (Gordon, Robertson and Griffiths JJ) in Minister for Immigration and Border Protection v CZBP was the one relied upon the most in this respect by Mr Albert at the oral hearing before me.[215] Mr Albert emphasised paragraph [65] of that judgment in particular. He had also cited that particular paragraph to Niall JA in Donohue.[216] However, nothing in [65] of CZBP assists the plaintiffs, because that paragraph was merely a summary of the visa applicant's submissions. The Full Court did not anywhere say that it accepted the submissions summarised in [65] of CZBP. And, once again, it seems to me that, ultimately, CZBP goes no further than to hold that the ignoring of important material, including important material submitted by a refugee visa applicant, may be jurisdictional error.[217] Another case in this batch of cases cited by Mr Quail is the judgment of the Full Federal Court (Griffiths, Gleeson and Colvin JJ) in BIL17 v Minister for Immigration and Border Protection & Anor.[218] There the Full Court found jurisdictional error on the part of the Administrative Appeals Tribunal. The Full Court noted that the Tribunal is a formal merits review body with significant statutory obligations in relation to hearings and reasons for decision.[219] (The Secretary or a delegate dealing with an application for EMDs is, of course, in a very different position.) The Full Court said that the Tribunal had, in substance, not considered relevant country information that was before it and that had been relied on by the appellants when applying for refugee visas, being recent country information about the treatment of Christian separatists in Fiji.[220] The Full Court said also that that recent country information had not been 'substantively assessed' by the Tribunal.[221] Yet again, it seems to me that the error found by the Full Court in BIL17 amounted to ignoring important information, as distinct from failing to evaluate submissions, or failing to evaluate them sufficiently. In any event, MZYTS, CZBP and BIL17 all related to very different legislation; and all were decided before Plaintiff M1/2021 and, of course, before ECE21 v Minister for Home Affairs and the cases that have followed ECE21.

91 Moreover, unlike decision-making on applications for refugee status (such as the applications in question in MZYTS, CZBP and BIL17), decision-making under s 58E is discretionary in nature (once the pre-conditions are satisfied). Accordingly, the plaintiffs' main contention cannot prevail against the plain entitlement of the Secretary and her delegates to adopt general policies or rules (that are not inconsistent with the relevant statute and are not completely inflexible)[222] to guide decision-making under s 58E at the discretionary stage. That entitlement was expressly recognised by T Forrest J (as his Honour then was) in the abovementioned EMD case of Kheir v Secretary to the Department of Justice and Regulation.[223] The entitlement was not questioned in any of the subsequent, related litigation involving Mr Kheir.[224] Indeed, in Kheir v Robertson & Ors,[225] the Court of Appeal observed that the judgment of T Forrest J 'repays careful consideration'.

92 It is a matter of common knowledge that, in 1991, when s 58E of the Corrections Act 1986 was enacted in its original form, there were thousands of prisoners in the Victorian prison system, and that that has remained the case ever since. The evidence in the present cases, together with the experience of this Court mentioned above,[226] shows that, during the COVID-19 epidemic, the prison authorities turned their minds from time to time to the question whether to make unilateral grants of EMDs; and that, in addition, the authorities received many applications for EMDs from prisoners. High volume Departmental decision-making was called for. That made the adoption of policy guidelines all the more appropriate as a step for the prison authorities to take. Ample judicial support for the taking of such a step is available.[227] Thus in Plaintiff M64/2015 v Minister for Immigration and Border Protection,[228] a case in the High Court relating to a priorities policy adopted by the Commonwealth migration authorities with respect to decision-making on applications for refugee and humanitarian visas under certain provisions of the Migration Regulations 1994 (Cth), French CJ, Bell, Keane and Gordon JJ said (footnotes included but renumbered):[229]

Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike.[230] In particular, policies or guidelines may help to promote consistency in 'high volume decision-making',[231] such as the determination of applications for Subclass 202 visas. Thus in Drake v Minister for Immigration and Ethnic Affairs [No 2],[232] Brennan J, as President of the Administrative Appeals Tribunal, said that: '[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable' because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by 'diminishing the importance of individual predilection' and 'the inconsistencies which might otherwise appear in a series of decisions'.[233] The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines.

93 Likewise, in the same case, Gageler J said (footnote included but renumbered):[234]

It is open to the Minister in the exercise of non-statutory executive power to lay down a policy for the guidance of his or her delegates in making those determinations. Indeed, it is inconceivable that the Minister would not do so. In Nevistic v Minister for Immigration and Ethnic Affairs,[235] Deane J emphasised the importance of the adoption and consistent application of policy to the avoidance of substantial injustice in administrative decision-making, which involves 'competition or correlativity between rights, advantages, obligations and disadvantages'. Each applicant must always be entitled to have his or her application for the exercise of a decision-making power determined on its merits. But the merits of an application cannot always adequately be considered by reference to the circumstances of the applicant alone.

Where, as here, the statutory question is whether the decision-maker should be persuaded that there are compelling reasons for giving special consideration to granting one of a finite number of permanent visas to a particular applicant, the correct or preferable decision in the individual case cannot be divorced from the correct or preferable decision across the range of cases in which an exercise of that decision-making power can be expected to be sought. Blinkered and individualised decision-making would be a recipe for maladministration.

94 Just as with the determination of an application for a Subclass 202 visa as discussed in M64/2015, an application for EMDs may properly involve the consideration of matters apart from the circumstances or experiences of the individual applicant. Thus, as mentioned above,[236] in Donohue Niall JA drew attention to such matters as the needs of general prison management as perceived by the responsible authorities, with the benefit of their experience and expertise, and such matters as comparisons by the responsible authorities with situations in other prisons or outside the prison system. As is also mentioned above,[237] his Honour specifically found that it was open to the delegate in that case to deny EMDs to Mr Donohue in the absence of 'more significant disruption' such as being accommodated in a restrictive regime or having out-of-cell time significantly restricted because of COVID-19. And, of course, the parallel existence of the abovementioned 'automatic' process for the grant of EMDs was and is a matter appropriate to be taken into account in relation to any assessment of individual applications for EMDs.

95 All of this is a large distance from the concept urged by the plaintiffs for the duty to 'evaluate' applications for EMDs, namely a concept that would involve, as mentioned above,[238] an implied obligation on the Secretary or her delegate to reflect carefully on the human consequences of the instances of deprivation or disruption claimed in each individual application for EMDs. A broader approach - including an approach that can accommodate general policies or general rules and the existence of the 'automatic' EMD process - was well open to the Corrections authorities.

96 As it happens, and as counsel for the Secretary (ultimately) noted,[239] it appears that the Corrections authorities had in fact adopted a policy that informed all or most of the decision-making presently in question, namely a policy that, usually (at least), EMDs would only be granted to prisoners who had been accommodated in a restrictive regime or who had had their out of cell time significantly restricted because of COVID-19,[240] being a policy the existence and the due application of which the plaintiffs have expressly refrained from challenging in these proceedings.[241]

97 In any event, each of the following matters, individually and all the more so in combination, is more than sufficient to defeat the plaintiffs' attempt to establish a duty to 'evaluate' applications for EMDs extending beyond the duty to consider, upon application, the exercise of the s 58E power as expounded by Niall JA in Donohue,[242] namely:

• the tenor and effect of the judgment of the majority in Plaintiff M1/2021 as described above,[243] and as acknowledged (at least partly) by Mr Albert at the hearing;[244]
• that tenor and effect as confirmed by, and as applied in, ECE21, Tikomaimaleya, Shi, Ceerose and VWA v Jamali;
• the abovementioned features that distinguish the present statutory scheme from the Commonwealth scheme considered in cases like Omar and Hands;
• the appropriateness in law of the adoption of general policies for administering the EMD scheme; and
• the freedom of the relevant decision-makers to take into account the parallel existence of the 'automatic' process for the grant of EMDs.

98 The plaintiffs have not shown that, in Donohue, Niall JA was wrong, much less clearly wrong, to confine, in the way that his Honour did, the duty to consider material submitted in support of applications for EMDs. Hence, I should not,[245] and do not, treat his Honour's judgment as being too restrictive of the relevant duty. Indeed, the matters referred to in the previous paragraph indicate that the duty to consider applications for EMDs is, if anything, less demanding than as expounded in Donohue. In my view, the only real question is whether or not a challenger can demonstrate that the decision-maker did not consider the submitted material, or some significant part of that material, at all. In any event, as will further appear, whatever be the true description of the duty, the plaintiffs have failed to demonstrate any breach of it.

99 I will come to the specific facts of the present cases in due course. First, though, I should refer to the general principles relating to the ground of legal unreasonableness.

100 As mentioned above,[246] Mr Quail and Mr Thomas (both represented by Mr Albert) plead legal unreasonableness. It was common ground at the hearing that the leading cases on this ground of judicial review are the decisions of the High Court in Minister for Immigration and Citizenship v Li[247] (2013) and Minister for Immigration and Border Protection v SZVFW[248] (2018). In Li, Hayne, Kiefel and Bell JJ said that unreasonableness is a conclusion which may be applied to a decision which lacks an 'evident and intelligible justification'.[249] In SZVFW, Kiefel CJ said (footnotes included but renumbered):[250]

In the joint judgment in Minister for Immigration and Citizenship v Li[251] it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at,[252] although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational.[253] None of these descriptions could be applied to the Tribunal's decision in the present case.

...

Statements such as that made in the Wednesbury case,[254] that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent.[255] And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.

101 In the same case (SZVFW), Gageler J linked the ground of legal unreasonableness to the proper scope of judicial review of the exercise of discretionary statutory power, as identified by Brennan J in his seminal judgment in Attorney-General (NSW) v Quin.[256] Gageler J went on to observe that expressing the standard of legal reasonableness in terms of the minimum to be expected of 'any reasonable repository of the power' had the benefit of emphasising the 'extremely confined' scope and context-specific operation of the limitation it imposes.[257] Subsequently, in Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16,[258] the High Court (Kiefel CJ and Bell, Keane, Gordon and Edelman JJ) said, likewise, that a requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness 'which is usually high'.[259]

102 It is not necessary for me to deal in any greater depth with the general principles relating to this ground of judicial review, because, as will appear, neither Mr Quail nor Mr Thomas is anywhere near establishing a case of legal unreasonableness.

Onus of proof, reasons for decisions and principles of evidence

103 As indicated above,[260] the plaintiffs' claims in these proceedings are claims of jurisdictional error, only. The burden is on the respective plaintiffs to demonstrate that the challenged decisions involved, and were vitiated by, jurisdictional error.[261] At the hearing, Mr Albert of counsel acknowledged this fundamental proposition several times;[262] and Mr Crosthwaite did not dispute it. It is not enough for a challenger to show, merely, that a decision in question might have involved, and might have been vitiated by, jurisdictional error. The challenger must prove that the decision did in fact involve jurisdictional error and was in fact vitiated thereby.[263]

104 While noting that some of the plaintiffs' EMD applications were quite detailed, the Secretary submits that her delegates were not legally obliged to 'evaluate' those applications in the way suggested by the plaintiffs, ie by reflecting carefully on the human consequences of all the items of deprivation or disruption claimed by the prisoners. She submits that, in any event, regardless of the true nature or extent of any duty of delegates to 'evaluate' EMD applications, the plaintiffs have failed to prove, on the evidence, any failure by any of the delegates to perform his or her duty. She further submits that the delegates were entitled to send, and did send, decision letters that did no more, or little more, than notify each applicant of the outcome of his EMD application. The Secretary says that the decision letters should not be read as statements of reasons, because the letters did not purport to be statements of reasons; and because, as mentioned above,[264] in the absence of requests under s 8 of the Administrative Law Act 1978 for statements of reasons, the delegates were not required by law or otherwise to give any reasons, much less written reasons, for the decisions. According to the Secretary, the plaintiffs have been unable to point to any evidence to establish 'failure to evaluate', much less 'failure to consider', or legal unreasonableness.

105 As a general response, Mr Albert submitted at the oral hearing that the Secretary's proposition would invoke an 'administrative law twilight zone' - something which, he said, could not be countenanced.[265] He submitted that the absence of any statutory obligation to give reasons is 'irrelevant'.[266] He said that administrative decision-makers cannot 'shirk' scrutiny as to their compliance with the requirements of the relevant statute and of administrative law by pointing to an absence of any statutory obligation to give reasons.[267] He said that, at least, they cannot do so where they have issued something that in substance, if not in form, amounts to reasons,[268] or where they have issued things that 'look and feel a lot like a reasoning process'.[269] Relying on the judgment of North J in Santhirajah v Attorney-General (Cth),[270] Mr Albert submitted that a document may comprise the reasons of a decision-maker even if the document was written by some third party; and he submitted that in Santhirajah North J was prepared to draw an 'inference' as to what the reasons of the Attorney-General were.[271] In my view, Santhirajah does not help the plaintiffs. In that case, a Departmental briefing paper, to which there were nine attachments, including a comprehensive 53 page legal advice, had been placed before the Attorney-General. The conclusion expressed in the legal advice was that it was open to the Attorney-General to be satisfied that the requirements for surrendering the applicant to the United States had been met. The briefing paper itself, in its introductory page, summarised the relevant facts and set out a recommendation that the Attorney-General should surrender the applicant for extradition to the United States. The Attorney-General circled the word 'approve', which was printed as an option on the introductory page of the briefing paper, and signed and dated the introductory page in her own hand.[272] Unsurprisingly, North J was satisfied that the briefing paper, and in particular, the reasoning in the legal advice, represented the reasoning of the Attorney-General.[273] In the present case, by contrast, the EMD decision letters were far briefer and far less detailed than the combination of the briefing paper and attachments the subject of Santhirajah. Mr Albert himself described the decision letters as containing 'scant, inadequate' reasons.[274] When Mr Albert said that, I asked him whether, in his submission, each decision letter nevertheless purported to set out the delegate's reasons comprehensively. In response Mr Albert could only say that 'they are the reasons'.[275] These submissions of Mr Albert fail to recognise the well-established distinction between the ground of judicial review known as inadequacy of reasons (that may be available where a decision-maker is under a statutory obligation to give reasons), on the one hand, and all other grounds of judicial review, on the other hand.[276] Needless to say, the present plaintiffs cannot and do not allege that the decisions in question were invalid for inadequacy of reasons.

106 In Australia, administrators have never been under any common law (ie non-statutory) obligation to give reasons for their decisions.[277] That remains the position at common law today, despite some academic urgings to the contrary from time to time.[278] In earlier times, if (as was frequently the case) the relevant substantive legislation imposed no specific obligation to give reasons, and if the decision-maker had not volunteered detailed reasons, it was very difficult for a person dissatisfied with an administrative decision to establish that it was affected by error, much less by vitiating error. Subsequently, the position of many potential challengers came to be significantly improved by statutory developments. These mainly began in the mid- 1970s and early 1980s, especially at the Commonwealth level but also, to an extent, in Victoria; and corresponding statutory developments have since taken place in all or most other Australian jurisdictions. Thus, in Minister for Immigration and Ethnic Affairs v Pochi,[279] Deane J eloquently described the effect of one such development, namely the introduction of the Administrative Appeals Tribunal Act 1975 (Cth) (my emphasis):

The Administrative Appeals Tribunal Act 1975 did not directly impose upon decision makers, whose decisions it made subject to review, any substantive or procedural obligations to be observed in the making of such decisions. It did, however, effect a quiet revolution in regard to such decisions. The Act lowered a narrow bridge over the moat of executive silence in that, subject to limited exceptions, it conferred upon a person entitled to apply to the Tribunal for a review of a decision, the right to be supplied with a statement in writing prepared by the person who made the decision and setting out the findings on material questions of fact, referring to the evidence or other material in which those findings were based, and giving the reasons for the decision (s 28).

107 In addition, s 13 of the Administrative Decisions (Judicial Review) Act 1980 (Cth) imposed an obligation on most Commonwealth decision-makers to provide, on timely request, a detailed statement of reasons for a decision made under an enactment. Meanwhile, in Victoria, s 8 of the Administrative Law Act 1978 conferred on any 'person affected' (as defined) by a 'decision' (as defined) of a 'tribunal' (as defined) a right, subject to a time limit, to obtain a written statement of reasons for the decision. In 1984, the Victorian Administrative Appeals Tribunal was established on the model of its Commonwealth predecessor, including in relation to obligations to provide reasons for specified decisions. In 1998, the Victorian Administrative Appeals Tribunal was replaced by the Victorian Civil and Administrative Tribunal.

108 Unfortunately for the present plaintiffs, none of them made a timely request, or any request, for a statement of reasons under s 8 of the Administrative Law Act 1978 in relation to the decisions made on their applications for EMDs; and no other statutory requirement to give reasons applies. As the Secretary submits,[280] and as the plaintiffs in effect admit,[281] and as I have already mentioned,[282] the delegates were under no statutory obligation to provide reasons for their decisions in the absence of a request under s 8. Thus the plaintiffs have no statutory bridge (narrow or otherwise) over the 'moat of executive silence'.

109 However, counsel for the plaintiffs were undaunted. They sought to overcome the problem of proof in several other ways.

110 First, as mentioned above, they submitted that the executive had not been entirely silent. They pointed to the several decision letters. They disputed the Secretary's contention that the decision letters were nothing more, or little more, than notifications of the decisions. They submitted that, rather, each decision letter should be understood as having conveyed the relevant delegate's full reasons.[283] And, consistently with the amended pleadings, counsel criticised the decision letters for omitting to mention particular items of claimed 'disruption' or 'deprivation' that had been put forward in the respective EMD applications. To facilitate my analysis of these submissions, the parties jointly prepared and handed up a Supplementary Court Book containing a copy of each EMD application juxtaposed with each related decision letter.

111 In addition, to illustrate their abovementioned submission that the responses of the delegates to the EMD applications were 'formulaic' and non-compliant with the delegates' alleged duty to 'evaluate' the applications in the manner contended for by the plaintiffs,[284] counsel for the plaintiffs handed up at the hearing a colour-coded set of copies of the decision letters, highlighting any language that was common to more than one letter. This set of copies was dubbed the 'aide memoire'.

112 Putting aside my non-acceptance of the plaintiffs' attempt to erect a 'duty to evaluate' beyond anything that was recognised in Donohue, I have found the Supplementary Court Book and the aide memoire helpful for comprehending and considering the plaintiffs' submissions on the facts and the evidence; and I will say more about the detail of the respective EMD applications and decision letters when I come to the plaintiffs' individual cases. I note that the plaintiffs also formally relied on the remainder of the documentary evidence, although, apart from the abovementioned Departmental fact sheet of April 2020,[285] they did not suggest that any other particular document was helpful to their cause.

113 It is true that, as will further appear, each decision letter included some sort of explanation for the decision. But, in my view, contrary to the plaintiffs' submissions, none of the letters purported to be, or should be taken to be, a comprehensive or complete statement of the delegate's reasons for decision. I note that in Donohue[286] Niall JA took the same view of the letter there in question, which seems to have been expressed in a comparable fashion.[287] It is a view strongly supported by the following passage from the judgment of French CJ, Bell, Keane and Gordon JJ in Plaintiff M64/2015 (footnotes included but renumbered):[288]

It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision.[289] It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision,[290] and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate.[291] Further, "jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power;"[292] but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate's letter is "not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."[293]

I would emphasise their Honours' observation that 'it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate' and their Honours' further observation that 'the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision.'

114 Even where an administrative decision-maker gives reasons for decision pursuant to a statutory obligation to do so, it will often be very difficult for a challenger to demonstrate that the decision-maker did not consider the challenger's case or did not consider any other given thing. This point was made powerfully by Payne JA (with whom Ward ACJ and Basten AJA agreed) in the abovementioned decision of the Court of Appeal of New South Wales in Ceerose.[294]

115 I should also record that, at the oral hearing, counsel for the plaintiffs sought to invoke some general principles of evidence law, in case the Court was not persuaded, on the literal terms of the documents before the Court, that the decision letters represented the full reasons of the delegates and was not persuaded that it could be seen from the decision letters that the delegates had failed to duly 'evaluate' the EMD applications.

116 In this regard, towards the end of the hearing,[295] Mr Albert submitted that, where documents similar to or in the nature of the decision letters presently in question are before a court conducting judicial review of decisions conveyed by documents of that kind, a responsibility rests on the decision-makers - here, the delegates as represented by the Secretary - to adduce evidence to show that the documents do not contain the full reasons of the decision-makers. He submitted that the Secretary had failed to discharge this alleged responsibility.[296] Mr Albert described this as his 'Blatch v Archer point'.[297] Speaking generally, the 18th century case of Blatch v Archer[298] stands for the proposition that evidence is to be weighed according to the proof which it was in the power of one side to produce and the other to contradict.[299] However, it seems to me that this was, in effect, a vain attempt to shift the true location of the burden of proof.

117 I asked Mr Albert whether he could cite any judicial review case where Blatch v Archer had been successfully relied upon.[300] Mr Albert replied that he himself had successfully relied on Blatch v Archer a few times recently. He referred to three cases in this regard, namely McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[301] AZC20 v Minister for Home Affairs[302] and Hobson v Commonwealth of Australia.[303] However, each of these cases, so far as relevant, involved an application for a writ of habeas corpus. In habeas corpus cases, as was noted in McHugh itself, 'it is for the applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probability'.[304] Later, and to the same effect, in The Commonwealth v AJL20,[305] Gordon and Gleeson JJ (dissenting but not relevantly) said (first footnote included but renumbered, second and third footnotes omitted):

Mandamus and habeas are different remedies. The two remedies have different purposes and engage differences in onus of proof.[306] Those differences reflect the differences in the underlying complaint. The concern of habeas is liberty, or, more accurately, remedying unlawful detention. Mandamus remedies a failure to perform a statutory duty.

The authorities cited in the footnote reproduced herein from the judgment of Gordon and Gleeson JJ in AJL20 show beyond doubt that Mr Albert's reliance on habeas corpus cases in relation to his 'Blatch v Archer point' is misplaced. The result is that Mr Albert was unable to cite to me any authority in which Blatch v Archer had been successfully deployed by an applicant for judicial review to overcome an inability to establish, by other means, what were the reasons of a decision-maker who was under no statutory obligation to provide reasons. Mr Crosthwaite did not cite any such authority either, and I am not aware of any. Of course, that is not to say that error of law or jurisdictional error cannot be proven by an applicant for judicial review by reference to informal or piecemeal statements on the part of an administrative decision-maker.[307] But that will be particularly difficult to do in a case where (as here) the relevant ground of review depends on showing that something was not considered (or not considered in a particular way) by the decision-maker.[308] And, in such a case, it may be all the more difficult to show error where (as here) the decision-maker was under no obligation to provide reasons.[309]

118 Just before the very end of the hearing,[310] Mr Crosthwaite raised a suggestion that the rule in Jones v Dunkel[311] might assist his client Mr McPadden in a particular respect. Under the rule in Jones v Dunkel, a court may (not must) infer, from an unexplained failure by a party to call evidence on a matter, that the uncalled evidence would not have assisted that party.[312] I will return to this point briefly when I come to Mr McPadden's individual proceeding, but I mention now that, in my view, the point does not take Mr McPadden anywhere. It cannot fill the large gap in Mr Padden's evidence, and in the evidence of the plaintiffs generally, as against the Secretary.[313]

119 Returning to the plaintiffs' reliance, as a matter of evidence, on the use by the delegates in their decision letters of what the plaintiffs describe as 'mechanical' or 'formulaic' or 'shorthand' expressions, I note, by way of general comment, that, even if any of the expressions in question can properly be so described, they were not employed in relation to any disputed questions of fact. The prisoners' relevant factual assertions themselves were not controversial. The position had been the same in Donohue. Thus, in that case,[314] Niall JA, referring to the relevant decision letter, said that, on a fair reading, the defendant 'appears to have accepted the description given by [Mr Donohue] as accurate'. As will further appear, much the same can be said in relation to the relevant assertions involved in the present cases. Moreover, rather than being used in relation to questions of fact, the impugned expressions were used in relation to the delegates' assessments (or, if you will, their 'evaluations') of the significance of the kinds of factual matters relied on by the prisoners in their EMD applications, those assessments having been done as part of the discretionary stage of the delegates' decision-making.[315] At that stage, as mentioned above,[316] the application of policy was permissible and appropriate.

120 Even in relation to controversial factual questions - such as questions about conditions in a particular overseas country that might arise in migration cases relating to the same overseas country - the use of template or standard language may well be appropriate, as indicated above.[317] Template or standard language is all the more likely to be appropriate in connection with the exercise of discretionary power, especially where a general policy can be adopted.

121 Against this background, I turn now in more detail to the salient circumstances, facts and evidence in the four proceedings respectively. I will deal with them in chronological order, ie in the order in which the respective proceedings were commenced, except that I will deal with the last two (Thomas and Quail) in reverse order. Conveniently, this enables me to deal with Mr Crosthwaite's two clients (Mr McPadden and Mr Wells) one after the other, followed by Mr Albert's clients (Mr Quail (who, like Mr McPadden and Mr Wells, alleges failure to 'evaluate') and Mr Thomas (who does not)). It is convenient, also, because, as indicated above, the bulk of the pre-trial written submissions (on law and facts) in these cases was contained in the outlines drawn by Mr Crosthwaite on behalf of Mr McPadden and Mr Wells. On the other hand, Mr Albert went first, and was on his feet more, at the oral hearing; and it might be said that Mr Albert's oral submissions generally, and in particular his abovementioned oral submissions to the effect that the alleged 'duty to evaluate' applies to each and every claimed disruption or deprivation,[318] were more extreme or more stark that Mr Crosthwaite's corresponding oral submissions. However, I note also that Mr Crosthwaite's pre-trial written submissions as to the law were not inconsistent with Mr Albert's oral submissions, and I note further that Mr Crosthwaite, having heard Mr Albert's oral submissions, did not seek to distance his own clients from any of them.

122 In dealing with these four proceedings individually, I bear in mind that, at the trial, I ruled that all of the evidence in each proceeding was cross-admissible. In particular, I bear in mind that each plaintiff seeks to rely not only on the language of the letter or letters sent to him, but also on the language of the letters sent to the other plaintiffs, to suggest that all or some of the decision-making of the delegates was 'mechanical' or 'formulaic', and that there was a failure to duly 'evaluate' the material submitted to the delegates or that there was legal unreasonableness. There is another common matter to be considered too, namely the impact of emergency legislation that was in force during the COVID-19 pandemic that affected prisoners' rights under s 47 of the Corrections Act 1986 (see below).

123 On 12 April 2017, Mr McPadden was convicted of arson, conduct endangering life, obtaining property by deception and perjury.[319] On 15 April 2017, he was sentenced to 9 years' imprisonment. His non-parole period was due to expire on 27 November 2022 and his head sentence on 27 November 2025.[320]

124 At all times relevant to this proceeding, Mr McPadden was serving his sentence of imprisonment at Middleton Prison, a low to medium security prison which is part of the Loddon/Middleton Prison Complex located near Castlemaine, Victoria. As mentioned above,[321] Mr McPadden had, in his further amended originating motion filed in June 2022, challenged four EMD decisions, namely '[t]he defendant's decisions dated 18 June 2020, 12 January 2021, 24 August 2021 and 18 January 2022'.[322] Later, Mr McPadden abandoned his challenge to the decision dated 18 January 2022.

125 Mr McPadden's further amended originating motion contains a single set of 'GROUNDS RELIED UPON', expressed to be equally applicable to all four (now all three) challenged decisions, as follows:

(1) The defendant's decisions dated 18 June 2020, 12 January 2021 [and] 24 August 2021 ... were infected by jurisdictional error because the defendant failed to evaluate the material provided by the plaintiff before the defendant, in particular in respect of the impact on his right to:

1. receive at least one visit which is to last at least half an hour in each week under s 47(1)(k) of the Corrections Act 1986 (Vic), by way of Skype video calls as an alternative to in-person visits with the plaintiff's parents;
2. take part in educational programs in the prison under s 47(1)(o) of the Corrections Act 1986 (Vic), by way of engaging in programs to progress his "C1 rating".

126 In Mr McPadden's pre-trial written submissions,[323] he asserted that each delegate who decided a relevant EMD application made by Mr McPadden could be seen to have fallen into error in that:

1. each letter read individually shows a failure to engage with clear submissions made by Mr McPadden; and
2. the letters together show that they are derived from a uniform procedure or policy that precluded proper consideration, or adopted a template that was unresponsive to the facts before the decision-maker.

127 In relation to the decision letters of 18 June 2020 and 12 January 2021 in particular, Mr McPadden asserted[324] that they were bereft of any indication that the material that Mr McPadden had provided to the Department was considered. In his pre-trial written submissions, Mr McPadden made four points in this regard, as follows:[325]

(a) there was no reference to his parents' inability to engage in video visits with him, this being something which, he submitted, impacted his 'rights to visitation' under s 47(1)(k) of the Corrections Act 1986; and there was no reference to participation in education programs under s 47(1)(o) of the Act and the 'consequential' deprivation of his working towards his C1 rating and ultimately his early transfer to the Judy Lazarus Centre;

(b) there was no reference to features or facts that would support an inference that the delegates had read and considered the submissions; rather the language was generic;

(c) the letters were not accompanied by any other correspondence from the delegate;[326]

(d) the basis for refusing is indicative of a policy that only being accommodated in a restrictive regime or having out of cell time significantly restricted because of COVID-19 will result in the granting of EMDs; this suggests that other types of deprivation were not considered beyond being identified; and this is a prohibited 'decisional check list' approach falling short of genuine comparison and evaluation demanded by the statute.[327]

128 In relation to the letter of 24 August 2021, Mr McPadden asserted[328] that 'the delegates reliance on the prohibited policy referred to above was express'; and that jurisdictional error was 'clear from the words that she used'.

129 As mentioned above,[329] at the oral hearing counsel for Mr McPadden retreated a large distance from these submissions in that he abandoned any reliance on arguments relating to a 'prohibited policy' or a 'blanket rule'. Instead, counsel sought to concentrate on the alleged formulaic character of the several decision letters. Counsel also appeared to retreat from any reliance on alleged failure to evaluate the EMD applications in relation to educational programs or progress towards a 'C1 rating', being the matters referred to in ground 1(b) of Mr McPadden's further amended originating motion. Indeed, counsel did not mention educational programs or progressing towards a C1 rating at all in his oral submissions. Instead, he confined himself to the statements in Mr McPadden's EMD applications to the effect that Mr McPadden's parents were unable to take advantage of Skype or ZOOM contact.

130 Nevertheless, given that Mr McPadden's whole case is based on an alleged failure to 'evaluate' the relevant EMD applications, it is desirable that I should traverse each of Mr McPadden's relevant EMD applications in some detail and also that I deal in some detail with the corresponding decision letters. It will appear, or further appear, from what follows that the very terms of the material provided by Mr McPadden to the Secretary in his EMD applications, and the very terms of the decision letters, compound the major legal and evidentiary difficulties facing Mr McPadden (and the other plaintiffs) that have been discussed above.

131 I will turn first to Mr McPadden's first EMD application and the decision on that application; then to Mr McPadden's second EMD application and the decision on that application; and then to his third EMD application and the decision on that application. Thereafter I will refer briefly to Mr McPadden's fourth EMD application and the decision made on it, the challenge to which Mr McPadden has abandoned. I will then deal with the cases of the three other plaintiffs.

The first McPadden EMD application and decision

132 On 28 April 2020, Mr McPadden applied for EMDs by completing and submitting a non-statutory form prescribed by the Commissioner's Requirements (CR 2.3.2), to which was attached a document comprising three handwritten pages.[330] In the application form Mr McPadden indicated (by ticking boxes) that his application was based on experiencing disruption/deprivation as a result of an 'emergency' or an 'industrial dispute' or 'the existence of circumstances of an unforeseen and special nature'. He claimed 168 EMDs 'and ongoing'.

133 There is nothing in the affidavit material filed by Mr McPadden, or otherwise before the Court, to indicate that the Corrections authorities ought to have read into Mr McPadden's first EMD application (including the attachment) anything beyond what was stated on the face of it. The same applies to Mr McPadden's second and third EMD applications.

134 The 3-page handwritten document attached to the application form dated 28 April 2020 commenced with a statement that there had been a vast number of disruptions at Middleton due to 'staff cutbacks', with many services affected 'over the past couple of months'. It was then stated that 'money orders' and 'special spend' had had 'major issues'. The non-processing of 'special spend' was described as an 'ongoing issue for 12 months' because of 'no finance staff'. Obviously, those longstanding money-related complaints were not attributable to any emergency relating to the COVID-19 pandemic. (COVID-19 was not publicly recognised as a significant problem in Victoria until about February 2020, and the Victorian State of Emergency was not declared until 16 March 2020). As part of his second EMD application, Mr McPadden was to argue that his money-related complaints, and certain other longstanding complaints, warranted a grant of EMDs on the basis that the relevant disruptions were due to an 'industrial dispute' within the scope of s 58E of the Corrections Act 1986. But that argument had no basis. It was later abandoned. It was not included in Mr McPadden's reformulated case in this Court.

135 I return to Mr McPadden's first EMD application (dated 28 April 2020). It is true that Mr McPadden stated in that application that the claimed money-related disruptions - and certain other claimed disruptions relating to the movement of property - had been 'amplified' since the 'code aqua' in March 2020; and it seems that the expression 'code aqua' related to measures taken by the prison authorities to deal with the COVID-19 emergency.[331] On the other hand, a reader of Mr McPadden's first EMD application would be forgiven for thinking that Mr McPadden was more concerned about money and property related matters than anything else.

136 However, it is also true that, under the heading 'Cancellation of visits', Mr McPadden proceeded in his first EMD application to list a series of things relating to the topic of prison visits. This was a topic that achieved greater prominence in his later EMD applications and, as already mentioned, in his submissions to this Court. And it seems that Mr McPadden did, from the beginning, attribute the cancellation of prison visits to the measures taken to deal with the COVID-19 emergency, rather than to staff shortages or any industrial dispute. Mr McPadden acknowledged in the handwritten document that Skype video calls had been introduced by the Corrections authorities as one of several measures designed to ameliorate the loss of personal visits, but he claimed that Skype could not be accessed by all would-be visitors; that Skype had limited availability; and that Skype was not private. However, Mr McPadden did not state, anywhere in his first EMD application, that any member of his family or any other person who might otherwise have visited him in prison could not access or use Skype.

137 In the next part of the handwritten document attached to his EMD application, Mr McPadden acknowledged that the prison authorities had made additional phone credits available, but he asserted that this 'does not compensate for no family contact'. He acknowledged that a new prisoner email service had been introduced as well, but said that email 'cannot be accessed by all visitors'. On the other hand, he did not say that any of his own potential visitors did not have access to email.

138 Next, Mr McPadden set out a long list of different complaints, some of which he may have been attributing to (longstanding) 'staff shortages' but most of which, at least, he did seem to be attributing to measures taken in response to the COVID-19 emergency. However, apart from the priority that Mr McPadden had already seemed to accord to money and property matters, Mr McPadden did not, in this later section of the document, give any indication as to what he saw as the most important of his various complaints. Nor did Mr McPadden make clear which, if any, of the claimed absences or reductions of services or facilities that he had listed affected him personally or particularly. He referred, in this undifferentiated way, to many things, including limitations on numbers in the gym, absence of education programs, absence of other programs (including programs necessary for obtaining parole), absence of drug and alcohol supports, absence of access to external Alcoholics Anonymous and Narcotics Anonymous meetings, limited access to the resource centre (library), reduced privacy of enquiries, limited access to forms and applications, absence of new magazines, limits on the opening hours of the prisoner shop, lack of access to work external to the prison, extra security presence, absence of counselling services, two 3-hour lockdowns (20 March 2020 and 22 April 2020) and the removal of access to prison governance documents.

139 The reference in Mr McPadden's first EMD application to 'educational programs, including those necessary to obtain parole', was buried away on the second page of the handwritten document, and there was no identification of any particular program that Mr McPadden may have been attending or planning to attend himself, and no specific reference to the matter which, as indicated above,[332] he later referred to in ground 1(b) of his further amended originating motion, namely progressing to a 'C1 rating'. As will be seen, much the same comment can be made about educational programs in relation to Mr McPadden's second EMD application; and, as mentioned above, by the time of the oral hearing Mr McPadden appeared to have abandoned any reliance on the educational programs/'C1 rating' point.

140 In the handwritten document enclosed with Mr McPadden's first EMD application, Mr McPadden did say (albeit only at the end of the document) that, prior to the COVID-19 emergency, he had kept up a high level of family visits - sometimes twice a week - and that he believed it was pivotal to his rehabilitation, reintegration and mental health. Hence I would accept that Mr McPadden placed some emphasis on family visits in his first EMD application. However, the topic was certainly not front and centre.

141 Mr McPadden's first EMD application was apparently referred for comment to Mr Peter McCoombe, the General Manager of Loddon and Middleton Prisons. On 4 May 2020, Mr McCoombe endorsed the application form with a recommendation against the grant of EMDs, commenting that the application was 'not in line with EMD criteria'.[333]

142 In an affidavit affirmed on 22 February 2022 and filed in this proceeding (as it stood prior to its reformulation in June 2022),[334] Ms Westin referred to and exhibited (among other things) Mr McPadden's first EMD application and the supporting material.[335] She deposed that, on 18 June 2020, acting as the Secretary's delegate, she had decided to refuse Mr McPadden's first EMD application. She also said that she 'informed [Mr McPadden] of [her] decision by letter'.[336] She identified this letter as a letter dated 18 June 2020 exhibited to her affidavit.[337] Omitting formal parts, the letter read:

Dear Mr McPadden

Application for Emergency Management Days

I am writing in relation to your application for Emergency Management Days (EMDs). In accordance with Commissioner's Requirement 2.3.2, Emergency Management Days, a prisoner may be eligible for EMDs if they are of good behaviour during a period of disruption or deprivation, relating to an emergency.

While I note your circumstances, your application for EMDs is not approved, as you have not demonstrated that your circumstances meet the criteria.

The disruption or deprivation you have experienced has not been significant in the context of the COVID-19 pandemic and so does not warrant the granting of EMDs. Disruption has been experienced by everyone as a result of the pandemic, including the general community, so only in more significant disruptions, such as being accommodated in a restrictive regime or having your out-of-cell time significantly restricted because of COVID-19, will result in the granting of EMDs.

Yours sincerely,

Melissa Westin etc

143 As mentioned in the previous paragraph, Ms Westin referred in her affidavit to the letter of 18 June 2020 as the thing by which she had informed Mr McPadden of her decision. She did not describe it as stating or containing, whether wholly or in part, her reasons for decision. In the letter itself, Ms Westin said that, while she had noted Mr McPadden's circumstances, his application for EMDs was not approved, as Mr McPadden had not demonstrated that his circumstances met the criteria. The criteria were presumably the criteria set out in the last paragraph of the letter, namely that only 'more significant' disruptions, such as being accommodated in a restrictive regime or having out-of-cell time significantly restricted because of COVID-19, would result in the granting of EMDs. Mr McPadden did not require Ms Westin to attend for cross-examination on her affidavit, or otherwise at all. Indeed, none of the plaintiffs required Ms Westin to attend for cross-examination, notwithstanding that Ms Westin made the decision on Mr McPadden's first EMD application; that she was referred to as the decision-maker in the decision letter that dealt with Mr McPadden's third EMD application;[338] that she was clearly the decision-maker in relation to each of the challenged decisions relating to the other plaintiffs; that another affidavit of hers was filed in Wells; and that the plaintiffs had successfully pushed for cross-admissibility of all of the evidence.

144 Having regard to the general legal and evidentiary principles discussed above, to the actual terms of Mr McPadden's first EMD application (including the supporting handwritten document), to the actual terms of the decision letter of 18 June 2020 and to the absence of any cross-examination of Ms Westin, there could be no basis, without more, for an assertion that Ms Westin failed to 'evaluate' (in any sense) the material provided by Mr McPadden in his first EMD application, much less for an assertion that she failed to consider the first EMD application at all. So, it is perhaps not surprising that counsel for Mr McPadden, in his pre-trial written submissions, went through the details of all three of Mr McPadden's (still relevant) EMD applications and the details of all three of the corresponding decisions of the delegates, before coming to the arguments on which he ultimately relied in respect of Mr McPadden's position. Counsel's arguments then tended to run the three McPadden matters together. I would observe, however, that it could not be fair or appropriate to impugn Ms Westin's decision on Mr McPadden's first EMD application by reference to material that Mr McPadden had not included in his first application (or, for that matter, to impugn the decision made on Mr McPadden's second EMD application or the decision made on his third EMD application by reference to material that was not submitted with, or expressly or impliedly referred to in, those EMD applications respectively). In any event, I proceed now to Mr McPadden's second EMD application and the delegate's decision on that application.

The second McPadden EMD application and decision

145 On 18 August 2020, Mr McPadden made his second relevant application for EMDs.[339] Again, he did so by completing the relevant form and by submitting it, with an attachment, to the Corrections authorities. This time he sought EMDs 'to be calculated'. Again, he ticked all the boxes relating to the claimed causes of the claimed disruption/deprivation, including 'industrial dispute'. This time the attachment was not handwritten but rather was an 11-page typed document dated 17 August 2020, headed 'Reasons for my EMD application'. The completed form records the following under 'General Manager's comments':[340]

146 The 11-page typed attachment shows every sign of having been prepared, or at least influenced, in substantial part, by someone other than Mr McPadden, probably with the use of a template designed for numerous prisoners. I note that, in an order made by Judicial Registrar Keith on 28 October 2021 in this proceeding, in 'Other Matters', it is recited that the present proceeding was related to certain other then pending proceedings collectively described as 'the Middleton Prison Emergency Management Day Proceedings', and that one of those proceedings involved the abovementioned Mr Donohue. In any event, the 11-page typed attachment to Mr McPadden's second EMD application commences with lengthy submissions of a quasi-legal nature, which mostly proceed on the misconceived view that s 58E of the Corrections Act 1986 confers on prisoners an entitlement to EMDs in particular circumstances.[341] The quasi-legal submissions were misconceived in several other ways, too. For example, there are numerous references (especially in the first three pages of the typed document) to a history of so called 'staffing and industrial stress' as from about August 2019. Intertwined with those references are hopeless arguments as to how the resulting claimed disruption and deprivation should translate into the grant of EMDs under the 'industrial dispute' provision. As mentioned above,[342] Mr McPadden later abandoned those arguments. But, in the meantime, these things tended to obscure the material in his second EMD application which he would now seek to isolate and identify as not having been duly evaluated.

147 The material in question was obscured all the more because, overwhelmingly, the second EMD application dealt with restrictions on services and facilities for prisoners at Middleton as a body, as distinct from dealing with the impact of COVID-19 measures on Mr McPadden personally. On page six of the document there is a passing reference to an increase in stress on the part of Mr McPadden due to COVID-19 and associated delays in his appeal processes, with a suggestion that this stress impacted on his 'already poor' mental health. Otherwise, there is not a word about personal impacts on Mr McPadden in particular until about halfway down page 10 of the typed (11 page) document. I will come to what is said there in due course.

148 The typed document contains complaints (seemingly made on behalf of the prisoners at Middleton generally) about a host of things, including all or nearly all of the things that had been complained about in Mr McPadden's first EMD application and many more. The new, additional things included unfavourable comparisons with prisoners at other prisons who had allegedly been granted EMDs; impacts on the cost and availability of ordinary foodstuffs at Middleton; impacts on special dietary items such as soy milk; restrictions on dental, optometric and podiatry services; lack of access to face masks and hand sanitisers; difficulties in contacting the Ombudsman, the Adult Parole Board and Corrections Victoria; restrictions on written communications; a longer list of reduced educational programs (now including TAFE and Distance Education); difficulties with access to computers for preparing legal documents; difficulties in obtaining medical assistance; and the inconvenience of mask wearing.

149 It is true that complaints about the cancellation of prison visits and about reduced educational services were included in this new, expanded list of complaints in Mr McPadden's second EMD application. However, insofar as those two complaints were included in that list, they were in generalised form only. Mr McPadden's evident purpose in putting forward that long list of generalised complaints was to convince the Department that the prisoners at Middleton (including Mr McPadden himself) were in a 'restrictive regime'. As indicated above,[343] Mr McPadden said, within this (second) EMD application, that he had seen that expression used in Departmental documents and communications relating to EMDs.

150 Unfortunately for Mr McPadden, he was, once again, under a misapprehension. In all of the relevant documents and communications that are in evidence in these several proceedings or that are referred to in the evidence - with the exception of one early, single-page document that related to a prison other than Middleton and that was soon overtaken by events[344] - the Department had referred, expressly or impliedly, to the concept of being accommodated in a restrictive regime (or of having out-of-cell hours significantly restricted). This concept related wholly or mainly to physical restrictions, not restrictions on services and facilities.[345] It was a concept quite different from Mr McPadden's concept. Incidentally, I note that on the sixth page of the typed document submitted with Mr McPadden's second EMD application he stated that at Middleton 'there has been no disruption or deprivation of out-of-cell time except for two three-hour lockdowns on 20 March and 22 April respectively'.[346]

151 Mr McPadden intertwined his generalised complaints about restrictions on services and facilities at Middleton (including his generalised complaints about the suspension of prison visits and about reduced access to educational programs) with lengthy arguments based on the statutory rights of prisoners as set out in s 47 of the Corrections Act 1986. Subsequently, in his pre-trial written submissions,[347] as mentioned above,[348] Mr McPadden attempted to turn these references to his advantage, by pointing out that the delegates who decided his first and second EMD applications did not mention s 47 of the Corrections Act 1986, and by submitting that this betokened a lack of proper 'evaluation' of Mr McPadden's claims about (a) the alleged insufficiency of Skype as a replacement for prison visits (citing s 47(1)(k)); and (b) reduced access to educational programs that could have assisted Mr McPadden to achieve a 'C1 rating' (citing s 47(1)(o)). Those submissions, in turn, corresponded to the grounds that had been pleaded in Mr McPadden's further amended originating motion, with its references to s 47(1)(k) and s 47(1)(o) of the Corrections Act 1986.[349]

152 However, I accept the Secretary's submissions relating to s 47 of the Corrections Act 1986, as summarised in paragraphs [45]-[47] inclusive of her written submission in McPadden.[350] In particular, I agree with the Secretary that the delegates' omission to refer to ss 47(1)(k) and 47(1)(o) of the Corrections Act does not sufficiently support an inference that the material submitted by Mr McPadden was not 'evaluated', much less an inference that the application as a whole was not considered. As the Secretary submits,[351] even before the time of Mr McPadden's first application (28 April 2020), the Corrections Act 1986 had been amended by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic). The Omnibus Act inserted Part 10B (now repealed) into the Corrections Act. That Part - which, apart from certain irrelevant exceptions, applied 'despite anything to the contrary in another Part of the [Corrections Act]... or [in] any other law.'[352] - conferred extensive powers upon the Secretary and Governors in response to the COVID-19 pandemic, being powers which enabled the limitation of prisoners' rights. Relevantly, the Secretary or Governors were empowered to (subject to statutory conditions):

(a) restrict visits to prisons;[353] and

(b) order that prisoners be separated, quarantined and/or restricted in their movement.[354]

153 As the Secretary further submits,[355] the Departmental officers who made the decisions in question were repositories of powers delegated under the Corrections Act. Each held a senior position in the Department. Each made his or her decision within a distinct statutory and factual context (the emergency response to the pandemic), about which this Court can take judicial notice. Because of the pandemic and the emergency measures adopted in response to it, Mr McPadden's rights under s 47 of the Corrections Act had been affected by the operation of Part 10B. I am satisfied that each delegate would have been aware of the existence and effect of the temporary provisions of Part 10B of the Corrections Act. Perhaps it might have been informative for Mr McPadden if the delegates responding to his EMD applications had mentioned the temporary provisions, but there was no obligation on them to do so. They were not providing statements of reasons. The absence of any mention of the temporary provisions does not, of itself, supply any substantial reason for thinking that the delegates did not 'evaluate' Mr McPadden's EMD applications, much less that they failed to consider those applications at all. To the contrary, the existence of the temporary provisions at that time tends to supply an additional explanation for the absence of any mention of s 47 in the decision letters.[356] I note again the absence of any cross-examination of Ms Westin.

154 As indicated above, Mr McPadden did eventually come, in his second EMD application, to the alleged impact on him personally of the suspension of prison visits. Thus, on the tenth page of the typed document, he said:

COVID-19 has made my incarceration significantly more stressful and a drain on my mental fortitude as my parents are both in the high risk category and were my best moral support - visiting every weekend. They aren't able to Skype or ZOOM so contact is limited to phone calls.

He also said that the strain on his relationship with his partner was particularly harsh, while acknowledging, in effect, that Skype/phone calls with her were feasible.

155 It was not until he reached the last two lines of the tenth page of the typed document that Mr McPadden said anything about a 'C1 rating'. Even then, he spoke only in vague terms. He claimed that 'COVID-19' had seriously affected his progress through the prison system; that he could not progress his 'attempts' for a C1 rating; that he had lost the ability to earn 'permits' towards 'hopefully' getting to the Judy Lazarus Centre; and that the 'great opportunity' to help him reintegrate towards the end of his sentence seemed virtually impossible. Once again, Mr McPadden did not specify any particular educational or other program that he himself had been engaging in or that he himself had been planning to engage in for these purposes.[357]

156 The decision made on Mr McPadden's second EMD application was conveyed by a letter from Andrew Reaper, Acting Deputy Commissioner, Custodial Operations to Mr McPadden dated 12 January 2021. It indicates that the decision was made by Mr Reaper himself as delegate. Omitting formal parts, the letter read:

Dear Mr McPadden

Emergency Management Days

I am writing in relation to your applications dated 28 April 2020 and 18 August 2020 for Emergency Management Days (EMDs). In accordance with Commissioner's Requirement 2.3.2, Emergency Management Days, a prisoner may be eligible for EMDs if they are of good behaviour during a period of disruption or deprivation, relating to an emergency.

While I note your circumstances, your applications for EMDs are not approved, as you have not demonstrated that your circumstances meet the criteria.

The disruption or deprivation you have experienced has not been significant in the context of the COVID-19 pandemic and so does not warrant the granting of EMDs. Only more significant disruptions, such as being accommodated in a restrictive regime or having your out-of-cell time significantly restricted because of COVID-19, will result in the granting of EMDs.

Yours sincerely,

Andrew Reaper etc.

157 I note that, like Ms Westin before him, Mr Reaper expressly stated that he had noted Mr McPadden's circumstances. There is nothing in the evidence to cast doubt on that statement. Counsel for Mr McPadden made no attempt to have Mr Reaper called for questioning.[358]

158 It is true that the language of Mr Reaper's letter is very close to that of Ms Westin's letter to Mr McPadden of 18 June 2020. However, there are two differences. First, whereas Ms Westin referred to Mr McPadden's 'application' (singular) for EMDs (albeit without specifying a date for the application), Mr Reaper stated that he was writing in relation to Mr McPadden's applications (plural) dated 28 April 2020 and 18 August 2020. Thus it would seem that Mr Reaper had regard to both of Mr McPadden's first two EMD applications, including the one already dealt with by Ms Westin. Second, Mr Reaper's letter does not contain the opening words of the last sentence of Ms Westin's letter, namely:

Disruption has been experienced by everyone as a result of the pandemic, including the general community, so ...

159 In any event, in my view, taking into account everything set out above, the closeness of the language as between the first two decision letters in McPadden tends to suggest, if anything, that Departmental policy was being applied (being a matter not now challenged by Mr McPadden), rather than that either of the delegates failed to duly consider the relevant application.

The third McPadden EMD application and decision

160 Mr McPadden made what has been treated in this proceeding as his third relevant EMD application by a letter dated 22 October 2020 addressed to Ms Westin in her official capacity. Enclosed were copies of four separate single-page letters. Each of those letters was signed by a different member of Mr McPadden's family, namely his domestic partner, his mother, his step-father and his sister.[359]

161 Mr McPadden's (covering) letter of 22 October 2020 was very brief (three short paragraphs). It was expressed to be '[f]urther to' prior letters from Mr McPadden 'of 17 August 2020 and 16 October 2020'.

162 It is common ground that the reference to the prior letter of 17 August 2020 was a reference to the abovementioned 11-page typed document attached to Mr McPadden's second EMD application. For reasons unknown, neither Mr McPadden's covering letter of 22 October 2020 nor the enclosed letters from the members of his family came to the attention of Mr Reaper, the delegate who, on 12 January 2021, decided Mr McPadden's second EMD application. Nor, apparently, did they come to Departmental attention at all until about August 2021, when, as further indicated below, they came to be dealt with, as a separate EMD application, by a delegate other than Mr Reaper. Mr McPadden makes no complaint about any of those circumstances.

163 On the other hand, since the letter of 22 October 2020 was expressed to be 'further to' the letter of 17 August 2020, and since the letter of 22 October 2020 and its enclosures were very confined in their subject matter, I will assume, in Mr McPadden's favour, that his third EMD application should be regarded as having incorporated his second EMD application. I will so assume even though, as things turned out, a separate decision was made on the second EMD application on 14 January 2021 without regard to the letter of 22 October 2020 and its enclosures, and even though the decision letter of 24 August 2021 that conveyed the delegate's decision on Mr McPadden's third EMD application did not refer expressly to the letter of 17 August 2020.

164 There is no letter of 16 October 2020 in evidence. Mr McPadden does not suggest that any such letter is of present significance. In fact, it seems that the letter of 16 October 2020 may have been a letter seeking EMDs on the basis of a suggested 'bushfire emergency' unrelated to COVID-19.[360] Any such thing is not in issue in this proceeding.

165 In the letter of 22 October 2020, Mr McPadden says that the enclosed letters from his family members 'further show the very real impact of the disruption and deprivation caused by the COVID-19 restrictive regime that has been in place at Middleton since 20 March 2020.' Counsel for Mr McPadden contended, in his written submissions,[361] that the letters attached to the third EMD application:

... showed that Mr McPadden's experience during the pandemic included being deprived of:

1. visitation or video calls with his mother and step-father, causing damage to his psychological wellbeing;
2. the opportunity to connect with his 'close family of five', including 'visits, the bringing of gifts and the sharing of special experiences';
3. the opportunity to build a relationship with his infant nephew, including the making and gifting of toys; and
4. intimacy.

166 On or about 24 August 2021 Mr McPadden received a letter of that date from Ms Jenny Hosking, Acting Deputy Commissioner, Custodial Operations, in response to his third EMD application. Omitting formal parts, the letter from Ms Hosking read:[362]

Dear Derek McPadden

Emergency Management Days

I am writing in relation to your application for Emergency Management Days (EMDs) dated 22 October 2020. I note that you have applied for EMDs on three other occasions, which were not supported in letters dated 18 June 2020 and 12 January 2021 (both relating to the COVID-19 emergency, and 26 March 2021 (relating to the bushfire emergency).

In accordance with section 58E of the Corrections Act 1986, a person's sentence may be reduced if they are of good behaviour while suffering disruption or deprivation, during an emergency or an industrial dispute, or in other circumstances of an unforeseen and special nature.

Corrections Victoria has introduced an automatic consideration process for the COVID-19 emergency. As at 24 August 2021, you have already been granted two EMDs relating to the COVID-19 emergency.

While four EMDs (per day or part-day of deprivation/disruption) is the maximum allowance under the Act, the Commissioner has determined that in relation to the COVID-19 emergency, ordinarily the number of EMDs granted will be close to or equivalent to the number of days of disruption or deprivation that have been suffered by a person. Additional days can be granted on considering the particular circumstances of any prisoners.

Please note that Ms Melissa Westin, Deputy Commissioner, Custodial Operations has considered your circumstances, however, your application for EMDs is not approved. In Ms Westin's view, the disruption or deprivation you have experienced has not been sufficiently onerous in the context of the COVID-19 pandemic to warrant the granting of additional EMDs to you. For example, you were not accommodated in a restrictive regime unit and did not have your out-of-cell time significantly restricted because of COVID-19. Circumstances such as those would be more likely to warrant the granting of EMDs.

I understand that the COVID-19 emergency is a stressful and anxious time for many people, as outlined by your partner and family members in the letters attached to your application. In-person visits are suspended to reduce the risk of person-to-person transmission of COVID-19. I appreciate that the suspension of visits has been very difficult for prisoners and their loved ones and Corrections Victoria recognises how important it is for prisoners to maintain connection with family and friends. While I understand that it is not the same as seeing your family in person, alternative options were implemented including video visits, increased access to telephone calls and the introduction of the prisoner email service. Accordingly, prisoners will not be considered for EMDs due to the suspension of personal visits.

Your sincerely,

Jenny Hosking etc.

167 There are two main issues arising from the terms of the letter dated 24 August 2021, with some overlap between those two issues.

168 First, there is a question whether the author of the letter, Ms Hosking, was the delegate who made the decision on Mr McPadden's third EMD application, or whether the decision-maker was Ms Westin, who is referred to in the letter as having considered Mr McPadden's circumstances and as having formed the view that the disruption or deprivation he had experienced had not been sufficiently onerous to warrant the granting of additional EMDs to him. Second, there is a question whether the terms of the letter support Mr McPadden's contention that the decision maker failed to evaluate the material provided by Mr McPadden, in particular in the respects specified in his further amended originating motion.[363]

169 In Mr McPadden's pre-trial written submissions, there were three references to Ms Hosking as the decision-maker;[364] but there then followed a reference to Ms Westin as the decision-maker.[365] By contrast, in the Secretary's pre-trial written submissions the author of the letter of 24 August 2021 (Ms Hosking) was referred to as 'the delegate's representative', implying that Ms Westin was the decision-maker and that Ms Hosking was merely writing on her behalf.[366] At the hearing, Mr Albert referred in passing to Ms Hosking (as distinct from Ms Westin) as the decision-maker.[367] On the other hand, Mr Crosthwaite (who was acting for Mr McPadden) did not say anything one way or the other about this in his principal oral submissions. When leading counsel for the Secretary came to address the Court, she submitted explicitly that Ms Westin had been the decision-maker.[368] Thereafter, in his reply, Mr Crosthwaite referred to Ms Westin as the decision-maker.[369]

170 It was at this late stage of the hearing that Mr Crosthwaite made his abovementioned reference to the rule in Jones v Dunkel. He submitted, in substance, that an adverse inference or inferences could be drawn against the Secretary from her failure to adduce evidence from Ms Westin as to who had been the relevant decision-maker, and more importantly (in his submission), as to what might be drawn from the last two sentences of the letter of 24 August 2021. By this stage, Mr Crosthwaite's position appeared to be that Ms Westin was the decision-maker; that everything in the letter should be treated as the reasoning of Ms Westin for the decision; that the terms of the letter - particularly the terms of the last two sentences of the letter - called for an explanation from Ms Westin; that the only affidavit of Ms Westin filed in the McPadden proceeding said nothing about either of these issues; that the Secretary had had ample opportunity to adduce evidence from Ms Westin relating to the two issues but had not taken advantage of the opportunity; and that therefore the Court should infer that any evidence that Ms Westin might have given would not have assisted the Secretary.

171 As Mr Crosthwaite urged me to do, I accept, in favour of Mr McPadden, that the last two sentences of the letter of 24 August 2021 should be attributed to the relevant decision-maker.[370] Those two sentences seem to express a Departmental view, as distinct from a mere personal view (whether of Ms Hosking or Ms Westin). However, attributing the last two sentences to the relevant decision maker requires, in fairness, that the whole letter or, at least, the whole of the last paragraph of the letter, be attributed to the relevant decision-maker too.

172 In my view, it is clear from the terms of the letter of 24 August 2021 that the decision-maker was Ms Westin. There was no occasion for the Secretary to lead any additional evidence to establish that.

173 Nor, in my opinion, is there anything in the letter of 24 August 2021 that called for an explanation on the part of the Secretary, whether by adducing further evidence from Ms Westin or otherwise. Although the decision letter of 24 August 2021 is longer and more detailed than the decision letters of 18 June 2020 and 12 January 2021, it still does not purport to be, and should not be treated as, a comprehensive statement of reasons. There was no statutory standard (of reasons) to be met. In any event, in my view, and as I will further discuss in due course, the letter of 24 August 2021 reveals careful, earnest and sympathetic consideration of Mr McPadden's third EMD application.

174 It is true that the letter of 24 August 2021 also reveals the apparent application of Departmental policy, including in relation to the suspension of personal visits. Indeed, as mentioned above,[371] Mr McPadden himself said in his pre-trial written submissions that the letter of 24 August 2021 showed expressly that the delegate relied 'on the prohibited policy referred to above' (and that jurisdictional error was thus clear from the words that she used). He continued:[372]

1. Despite Ms Hosking [sic] expressing some empathy for Mr McPadden, his family and his partner, she refused Mr McPadden's application on the basis that "prisoners will not be considered for EMDs due to the suspension of personal visits". These words support a strong inference that, under a blanket rule applicable to prisoners, Mr McPadden's application for EMDs was not considered because it arose from his deprivation of visits. That approach was in error because it was not sufficient for the delegate to merely "note" what Mr McPadden submitted, she was required to then evaluate it.[373] The delegate never took the second critical evaluative step.
2. The inference that the delegate applied a blanket rule, and failed to give Mr McPadden's submission genuine consideration, is supported by the delegate's observation that the alternative to in-person visits included video visits. Had the delegate engaged intellectually with Mr McPadden's submissions, she would have known that he had been deprived of video visits with his parents.[374] The delegate's suggestion that the deprivation of in-person visits was ameliorated by video visits shows the disconnect between the reason for refusal and the submissions made by Mr McPadden.
3. Had Ms Westin [sic] considered Mr McPadden's submission properly, there was 'a realistic possibility that a different decision could have been made'.[375] The application of a blanket rule at the expense of genuine intellectual engagement with Mr McPadden's third application caused jurisdictional error.

I note that the expression 'blanket rule' was used by Mr McPadden (by his counsel), in each of these three paragraphs.[376]

175 Mr McPadden's pre-trial written submissions then proceeded to the proposition that the three decision letters together showed that they derived from a uniform procedure that 'precluded' proper consideration.[377] In that regard, the written submissions continued:

1. The degree to which the 18 June letter, the 12 January letter and the 24 August letter relevantly mirror each other supports the inference that they are derived from a template or formulaic process. The 18 June letter and 12 January letter are almost identical despite being authored by different people almost six months apart. The only differences are:
   1. a reference to the dates of Mr McPadden's first and second application in the 12 January letter; and
   2. an irrelevant[378] observation in the 18 June letter that '[d]isruption has been experienced by everyone as a result of the pandemic, including the general community'.

Similarly, at key points, the 24 August letter is essentially identical to the earlier letters despite being sent more than seven months after the 12 January letter and by another delegate.[379]

1. A delegate's reliance on formulaic or template reasons carries a risk of jurisdictional error.[380] Where template reasons fail to disclose an intellectual process of evaluation, the decision purportedly supported by the template reasons will be infected by jurisdictional error.[381] This is so even where the decision-maker asserts that they have, for example, 'considered the plaintiff's representations' and 'considered all relevant matters including... an assessment of the plaintiff's'.[382]
2. The consistency of language in each of the refusal letters generally, but in particular at the point of expressing the reason for refusal, "when coupled with a sparse account of subsequent evidence and slight [if any] additional analysis"[383] undermines any confidence that the delegates carried out their statutory duty with "diligence or care". Together the letters show that the process for determining applications for EMDs involved, at its absolute highest, little more than identifying types of deprivation then the application of "[m]echanical formulaic expression and pre-digested shorthand...hid[ing] a lack of the necessary reflection upon the whole consideration of the human consequences involved".[384]
3. The delegate's application of a template or formulaic process and reasons in refusing Mr McPadden's applications for EMDs, at the expense of genuine intellectual engagement with Mr McPadden's applications, caused jurisdictional error.

176 The author of the letter of 24 August 2021 stated expressly in the last paragraph that she understood that the COVID-19 emergency was a stressful and anxious time for many people, 'as outlined by your partner and family members in the letters attached to your application'. Plainly, the author had read and considered those letters. She then explained that in-person visits were suspended to reduce the risk of person-to-person transmission of COVID-19. Next, she said that she appreciated that the suspension of visits 'has been very difficult for prisoners and their loved ones'. She said that Corrections Victoria recognised how important it was to prisoners to maintain connection with family and friends. Hence, far from failing to 'evaluate' the material on which Mr McPadden now principally relies, the author seemed to be highly attuned to the 'human consequences' of the loss of prison visits.

177 In his oral submissions, as I have mentioned, Mr Crosthwaite reserved his strongest criticism of the letter for the last two sentences, which read:

While I understand that it is not the same as seeing your family in person, alternative options were implemented including video visits, increased access to telephone calls and the introduction of the prisoner email service. Accordingly, prisoners will not be considered for EMDs due to the suspension of personal visits.

178 Mr Crosthwaite submitted that those two sentences demonstrated a 'tick and flick' approach on the part of the delegate.[385] He submitted that the delegate paid no heed to the claim that Mr McPadden's parents were unable to use Skype or ZOOM. However, I am not satisfied that the last two sentences of the letter demonstrate that claim. They were addressed to something more general, namely the alternative options that had been implemented for prisoners generally, to compensate them for the suspension of personal visits. I am not satisfied that the decision-maker ignored the claimed inability of Mr McPadden's mother and stepfather to use Skype or ZOOM. I note that the previous paragraph of the letter of 24 August 2021 contains a statement that Ms Westin had considered Mr McPadden's circumstances.

179 The only express reference to the difficulty of the parents with Skype and ZOOM was contained in the second EMD application, not in the third EMD application. Even if Ms Westin did miss the subtlety relating to Mr McPadden's parents when she determined the third EMD application (though I am not satisfied of that), there is nothing to indicate that Mr Reaper had missed that subtlety when he determined Mr McPadden's second EMD application. Mr Reaper had referred expressly to Mr McPadden's document of 17 August 2020, in which Mr McPadden had said that his parents could not use Skype or ZOOM. And, as already mentioned, Mr Reaper expressly said that he had noted Mr McPadden's circumstances.

180 Further, I note again that there was no application to cross-examine Ms Westin in relation to the matter of Skype and ZOOM or otherwise, nor any attempt to have Mr Reaper called for questioning.[386]

181 In any event, there is no suggestion that either Mr McPadden's partner or Mr McPadden's sister could not use Skype or ZOOM.

182 I note also that, at the oral hearing, Mr Crosthwaite conceded that he was not seeking to characterise Mr McPadden's suffering as a result of the COVID-19 epidemic as greater than anyone else's.[387]

The fourth McPadden EMD application and decision

183 Although Mr McPadden has abandoned his challenge to the decision made on 18 January 2022 in respect of his fourth relevant EMD application, the evidentiary material relating to it remains before me, and some of it bears on the issues that remain.

184 The fourth EMD application was made on or about 1 October 2021, after Mr McPadden had received decision letters on his first three EMD applications.[388] By this time, it seems, the Department had created a COVID-19-specific EMD application form. Indeed the application form was stated to be current as at 31 August 2020. Mr McPadden used such a form for his fourth EMD application.[389] He said in the form that he claimed EMDs for 'partial loss of out of cell time' on two specified days (26 and 29 September 2021) and for a 24-hour lockdown on 28 September 2021.

185 The comments of the Loddon/Middleton Prison general manager were as follows:

This EMD's will be automatically applied. Derek has been at Middleton during COVID times. He has not suffered restrictive regime.

186 The decision letter dated 18 January 2022 was written and signed by the abovementioned Mr Reaper. However, in the letter, he attributes the decision to Ms Westin. He refers to the automatic consideration process and he advises Mr McPadden that, as of 18 January 2022, Mr McPadden had already been granted 12 EMDs relating to the COVID-19 emergency (via the automatic process). He concludes the letter as follows:[390]

Please note that Ms Melissa Westin, Deputy Commissioner, Custodial Operations has considered your circumstances, however, your application for EMDs is not approved due to EMDs that you are eligible for having already been granted.

187 This correspondence confirms (again) the parallel existence of the Department's automatic consideration process and the Department's general EMD policy as discussed above; and it provides a neat example of how the existence and operation of the process and the policy could inform decision-making on individual applications for EMDs (in a way that Mr McPadden no longer challenges, or, at least, no longer challenges under the rubric of 'fixed policy'/'prohibited policy'). It is also an example of a decision letter that, in part, was worded differently from the other decision letters in question.

Provisional conclusions in McPadden v Secretary

188 For these reasons, subject to anything sufficiently potent in the (cross-admitted) evidence in the proceedings brought by the other plaintiffs, I would not be satisfied that any of the three McPadden decisions still under challenge was affected by jurisdictional error and I would dismiss the McPadden proceeding.

189 On 25 September 2017, Mr Wells was convicted of conspiracy to defraud and receiving a secret commission. He was sentenced to eight years and nine months' imprisonment with a non-parole period of six years and three months. His non-parole period was due to expire on 10 November 2023 and his head sentence on 11 May 2026.[391]

190 Like Mr McPadden, Mr Wells was serving his sentence at Middleton Prison at all relevant times.

191 On 6 October 2020, Mr Wells applied for EMDs using the abovementioned generic Departmental form for EMD applications.[392] Attached were four pages of typed submissions and copies of two newspaper articles referred to in the submissions.[393]

192 In the typed submissions, Mr Wells, unlike Mr McPadden, concentrated on what he described as 'disruptions and deprivations that have had a significant effect on me'.[394] In substance, Mr Wells referred to four things: (i) suspension of personal visits and difficulties that he and his partner had had with Skype, ZOOM and telephone contact; (ii) increased mental stress from the COVID-19 pandemic in the context of his ongoing prison role as a 'peer listener'; (iii) loss of 'community gang work', which he had previous enjoyed; and (iv) concern about his physical health and hygiene in the context of the COVID-19 epidemic. The newspaper articles that he attached had referred in general terms to the granting of EMDs to Victorian prisoners.

193 Ms Westin decided Mr Wells' EMD application. She conveyed her decision by a letter dated 6 March 2021. Omitting formal parts, it read:

Dear Mr Wells,

Emergency Management Days

I am writing in relation to your application for Emergency Management Days (EMDs) dated 6 October 2020.

In accordance with Commissioner's Requirement 2.3.2, Emergency Management Days, a prisoner may be eligible for EMDs if they are of good behaviour during a period of disruption or deprivation, relating to an emergency.

Please note that Corrections Victoria has introduced an automatic consideration process for the COVID-19 emergency.

As at 2 March 2021, you have already been granted 1 EMD relating to the COVID-19 emergency.

Your application for additional EMDs is not supported due to EMDs that you are eligible for having already been granted.

Yours sincerely,

Melissa Westin etc.

194 Mr Wells' further amended originating motion challenges Ms Westin's decision of 2 March 2021, and also a decision made on 18 January 2022 in relation to a later EMD application made by Mr Wells. He has since abandoned his challenge to the latter, but I will say a little more about it in due course.

195 Mr Wells' further amended originating motion contains a single set of 'GROUNDS RELIED UPON', expressed to be equally applicable to both of the decisions originally challenged (now applicable only to the first of them), as follows:

(1) The defendant's decisions dated 2 March 2021 and 18 January 2022 were infected by jurisdictional error because the defendant failed to evaluate the material provided by the plaintiff before the defendant, in particular in respect of:

(a) the impact on his right to receive at least one visit which is to last at least half an hour in each week under s 47(1)(k) of the Corrections Act 1986 (Vic), by way of Skype video calls as an alternative to in-person visits with the plaintiff's partner;

(b) the increased effect of COVID-19, and consequential restrictions, on the impact on the plaintiff of the plaintiff's employment as a Peer Listener; and

(c) the cancelation, and the consequential impact, of the discontinuance of 'community gang' work.

It may be noted that the grounds do not include any reference to or reliance on Mr Wells' prior EMD submissions relating to his physical health and hygiene in the context of the COVID-19 pandemic.

196 In his pre-trial written submissions, Mr Wells asserted that Ms Westin fell into error by failing to consider Mr Wells' EMD submissions. He contended that this inference was supported by what was said in the 2 March 2021 letter, and by what was not said.[395]

197 Mr Wells proceeded to elaborate on this.[396] Mr Wells contended that Ms Westin had set out 'her reason' for refusing Mr Wells' application in the final sentence of the letter of 2 March 2021; that the letter was 'clear, direct and succinct'; that Ms Westin had 'one, complete, reason' for deciding to refuse Mr Wells' application, namely that Corrections Victoria, using its automatic EMD assessment process, had already decided that Mr Wells was entitled to one EMD; that, in other words, Mr Wells' EMD application was treated as moot. He also contended that Ms Westin's affidavit was consistent with this reading of the letter of 2 March 2021.

198 Mr Wells continued this theme by contending that 'the reason' for Ms Westin's decision was 'clearly and succinctly expressed as the whole reason'; and that Ms Westin did not, in the letter, address any of Mr Wells' submissions at all.[397]

199 Mr Wells further contended[398] that his EMD submissions were 'relevant, substantial and clearly articulated'; that, by relying on the automatic assessment process, Ms Westin had 'ignored' relevant materials and clear argument; and that this meant that Mr Wells had been denied the opportunity to be 'heard',[399] and to have his circumstances 'evaluated' and 'compared against the norm as required by s 58E of the Act.'[400]

200 As an example of an alleged failure to 'evaluate' Mr Wells' circumstances - namely, by failing to compare them with those of other prisoners - Mr Wells, in his pre-trial written submissions, quoted a particular passage from his EMD submissions and asserted, by reference to it, that he had told the delegate that he had had an 'inability' to access on-line video visits. He further asserted in the pre-trial written submissions that this claimed 'inability' had amounted to a deprivation or disruption of his 'right to visitation' under s 47(1)(k) of the Corrections Act 1986, beyond anything analogous to the restrictions suffered by the general population.[401]

201 Next (in the pre-trial written submissions),[402] there was another quote from Mr Wells' EMD submissions, this time to the effect that, during COVID-19, Mr Wells had continued his 'peer listener' work, but had not been able to participate in regular supervision or debriefing sessions with clinicians at Middleton, with a consequent increase in mental stress for Mr Wells. According to the pre-trial written submissions, Mr Wells' peer listener work had involved a cost to him, whereas it had benefited his fellow prisoners and prison management. It was put that Mr Wells' wellbeing had been disrupted, and that Ms Westin was required to make an 'evaluative comparison' of his circumstances in this regard, but did not do so.

202 Finally, Mr Wells contended (in his pre-trial written submissions)[403] that the existence of the automatic process did not excuse Ms Westin from 'evaluating' his EMD submissions, citing an observation of Gageler J, in Nathanson v Minister for Home Affairs,[404] to the effect that the importance of ensuring that a person whose interests are affected by a decision be given an opportunity to be heard before the decision is made is never greater than in those cases where there is a danger of thinking that nothing the person would be able to say could make any difference to the decision. Mr Wells contended that, 'contrary to the attitude expressed in Ms Westin's letter', it was precisely because Corrections Victoria had an automatic system for assessing EMDs that Ms Westin was required to take care to hear Mr Wells' EMD submissions and to evaluate his application.[405] The 'failure' of Ms Westin to 'consider' the application was, according to Mr Wells, a failure to comply with her statutory duty and with her duty to afford Mr Wells procedural fairness, constituting jurisdictional error.

203 At the oral hearing,[406] Mr Crosthwaite acknowledged, on behalf of Mr Wells, that the letter of 2 March 2021 did not contain a particular passage which appeared (in the same or similar form) in all of the other decision letters still in question.[407] Mr Crosthwaite acknowledged, also, that the decision letter of 2 March 2021 was different from the others still in question in that it was 'the most sparse' and in that it notified Mr Wells that his EMD application was not supported 'due to EMDs that you are eligible for having already been granted'.[408]

204 Mr Crosthwaite also referred[409] to the abovementioned fact sheet of 20 April 2020, a copy of which was contained in the evidence filed by Mr Wells.[410] Mr Crosthwaite agreed that, in relevant substance, the fact sheet told prisoners that the Department was going to deal with the matter of EMDs for prisoners by means of the automatic process, except that prisoners who had not been of good behaviour would be required to make individual EMD applications. Mr Crosthwaite said that there was another document in evidence that contradicted the Departmental fact sheet. However, it turned out that this was the abovementioned single-page document that had been issued to prisoners at Marngoneet Prison, not Middleton Prison, at a very early stage of the COVID-19 pandemic (21 March 2020). And, as mentioned above,[411] that document was soon overtaken by events, including by the issuing of the Department-wide fact sheet of 20 April 2020.

205 In the fact sheet of 20 April 2020, the Department announced that prisoners who were essential workers, including 'peer workers', would automatically be considered for EMDs.[412]

206 The Department also announced in the fact sheet that prisoners would not be automatically considered for EMDs for the suspension of personal visits. The following explanation was given:

While personal visits are suspended, this has been replaced with increased access to phone calls, video calls, and mail. Prisoner email has also been implemented at all prisons to increase communication access to family and friends.

This approach is in line with community expectations and the current level of disruption occurring in the broader community, with most individuals interacting with family and friends remotely through telephone, video and email.

207 Further, it was stated in the fact sheet that prisoners would not be automatically considered for EMDs for changes to the structured day. It was explained that many programs and services were moving to provision by way of remote technology.

208 Finally, it was advised in the fact sheet that any grant of EMDs through the automatic process would be notified by way of existing prison communication channels, not through individual letters. On the other hand, individual letters would be sent to prisoners who had been excluded from automatic consideration by poor behaviour; and such letters would explain to those prisoners how they could apply for EMDs if they wished to do so.

209 The evidence in these proceedings as a whole shows that the Department was, or became, more flexible than the fact sheet of 20 April 2020 might have suggested. The Department did not reject outright any of the individual applications made by the plaintiffs on the ground that the plaintiffs were ineligible even to apply.

210 Apart from the matters just canvassed, the submissions made orally by Mr Crosthwaite on behalf of Mr Wells were largely in line with Mr Wells' pre-trial written submissions, save that Mr Crosthwaite did not refer to the 'community gangs' point. He did address in some detail the 'peer listener' point[413] and, to a lesser extent, the in-person visits/Skype video calls point.[414]

211 Without expressing any final, overall conclusion about Mr Wells' case at this stage, I would make the following observations on Mr Wells' individual claims and arguments as set out above:

(a) having regard to the legal and evidentiary principles stated above, I do not accept that the letter of 2 March 2021 should be taken as a comprehensive statement of the reasons of Ms Westin for her decision;

(b) accordingly, I do not accept that Mr Wells has established that Ms Westin had only 'one, complete' reason for deciding to refuse Mr Wells' EMD application, namely that Corrections Victoria, using its automatic EMD assessment process, had already decided that Mr Wells was entitled to one EMD (only); and I do not accept that Mr Wells has established that his EMD application was treated as 'moot'. Ms Westin's affidavit in the matter of Wells[415] is comparable with her abovementioned affidavit filed in the matter of McPadden. In paragraph 6 of the Wells affidavit, Ms Westin deposes that Mr Wells made an application for a grant of EMDs and she exhibits a copy of the application form and the supporting letter. In paragraph 7, she deposes that, on 2 March 2021, she decided to refuse Mr Wells' application, and that she informed him of her decision by letter. She exhibits a copy of the letter. She does not say anything in the affidavit to suggest that the letter did any more than to inform Mr Wells of her decision. As already mentioned, she was not required for cross-examination;

(c) notwithstanding that Ms Westin did not, in her letter of 2 March 2021, address any of Mr Wells' specific EMD submissions, I do not accept that Mr Wells has established that the prior grant of one EMD was the 'whole reason' for Ms Westin's decision;

(d) while Mr Wells' EMD submissions might be described as 'relevant' and as 'clearly articulated', I do not accept that they were 'substantial'. Nor has Mr Wells established to my satisfaction that Ms Westin, by relying on the automatic assessment process, 'ignored' relevant materials and clear argument or that she denied Mr Wells the opportunity to be 'heard';

(e) I do not accept that s 58E of the Corrections Act 1986 required Ms Westin to 'evaluate' (in the suggested sense of that word argued by the plaintiffs) the circumstances of Mr Wells, nor that s 58E of the Corrections Act 1986 required that Ms Westin compare Mr Wells' circumstances 'against the norm' when she came to the exercise of her statutory discretion. What I said in Dudley[416] was that the pre-conditions in s 58E involved matters of evaluation and degree and matters of comparison with normal and other situations or conduct within prisons. I did not say any such thing about requirements applicable at the discretionary stage of decision making under s 58E;

(f) I note that the matters of '(physical) health and hygiene' and 'community gang work' are not, or are no longer, specifically relied upon by Mr Wells;

(g) there was a clear, stated Departmental policy from the outset that EMDs would not be granted on account of the suspension of personal visits (and I note, again, that there is no challenge to the lawfulness of any such policy);

(h) that same clear, stated, unchallenged policy extended to those prisoners whose relations had limited access, or no access, to video visits;

(i) in any event, contrary to Mr Wells' pre-trial written submissions, he had not told the delegate in his 6 October 2020 EMD application that he had a (complete) 'inability' to access on-line video visits. Rather, he had told the delegate that his partner was located in Pyramid Hill; and that, due to 'regular' NBN 'difficulties', 'those video calls have been ineffective'.[417] He had proceeded: 'To note, I attempted a video call on May 2nd 2020 at 10.15am and it was not successful due to connection issues.' He went on to refer to the lack of 'reliable and regular phone calls' and to the taxing nature of discussing issues over the phone 'when they do work', instead of face to face;[418]

(j) like the corresponding suggestion made by Mr McPadden, Mr Wells' suggestion that he had been deprived his 'right to visitation' under s 47(1)(k) of the Corrections Act 1986 pays no heed to the COVID-19 Omnibus (Emergency Measures) Act 2020 as discussed above;[419]

(k) in any event, it was surely an exaggeration for Mr Wells to contend (in his pre-trial written submissions) that the difficulties with video visits in his case were beyond being 'analogous to the restrictions suffered by the general population';

(l) as to his 'peer listener' work, Mr Wells said himself in his EMD application (no doubt with the benefit of the Departmental fact sheet of 20 April 2020) that, as a peer listener, he should be 'automatically considered for EMDs' (my emphasis). And, plainly, Mr Wells was so considered;

(m) Mr Wells was under no obligation to continue his peer listener work if the absence of regular supervision and debriefing was a real problem for him; or at all. On no view was Ms Westin legally required to make an 'evaluative comparison' of Mr Wells' circumstances in this regard;

(n) the existence of the automatic consideration process may not have permitted Ms Westin to disregard Mr Wells' EMD application completely, but, in any event, she did not do that. What had happened in relation to Mr Wells in the course of the automatic consideration process was clearly a relevant consideration for her when she came to determine Mr Wells' individual EMD application. And there is nothing to indicate that Mr Wells' circumstances had not been duly considered as part of the automatic process, being a process in relation to which the application of Departmental policy was equally open (and is unchallenged).

212 Finally, in relation to the facts, evidence and circumstances concerning Mr Wells in particular, I note that Mr Reaper advised him, by a letter of 18 January 2022,[420] that Ms Westin had decided not to grant him additional EMDs for partial days of lockdown at Middleton Prison on 30 September 2021, 3 October 2021, 5 October 2021 and 16 October 2021. It appears that this letter was a response to a letter from Mr Wells dated 25 October 2021 enquiring about whether EMDs would be granted to him with respect to those particular days.[421] Mr Reaper's letter pointed out that, as at 18 January 2022, Mr Wells had been granted 11 EMDs relating to the COVID-19 emergency. The letter was eight substantial paragraphs long. It was directly responsive to Mr Wells' letter in various ways, including in relation to impacts on services and facilities caused by the COVID-19 emergency. It is yet another EMD decision letter from around the relevant period that cannot be described as 'formulaic' or 'template'. I note that Mr Wells has abandoned his former challenge to the decision conveyed by the letter of 18 January 2022.

213 For these reasons, subject to anything sufficiently potent in the (cross-admitted) evidence in the other proceedings, I would not be satisfied that the decision made by Ms Westin on 6 March 2021 was affected by jurisdictional error and I would dismiss the proceeding brought by Mr Wells.

214 At and around the date of his EMD application - 5 July 2021 - Mr Quail was serving a sentence of imprisonment for attempted murder.[422] His sentence was initially due to expire on 11 December 2023. He had become eligible for parole on 4 July 2021.[423] However, as will appear below, he was not granted parole until about 13 months later.

215 When Mr Quail made his EMD application, he was serving his sentence at Dhurringile minimum security prison in country Victoria,[424] although it appears that for part of the COVID-19 emergency period he was housed at Barwon Prison[425] and it seems that Mr Quail had been moved to Port Phillip Prison by 27 October 2021.[426]

216 Mr Quail made his application for EMDs by completing the abovementioned COVID-19-specific EMD application form and submitting it together with an attached 7-page letter dated 5 July 2021.[427]

217 The main claim in Mr Quail's EMD application was to the effect that prisoners at Dhurringile had had to endure the same 'restrictions' as had applied at other prisons, and that inmates at other prisons, including Port Phillip Prison, had received EMDs whereas inmates at Dhurringile had not. Mr Quail asserted that inmates at Port Phillip Prison had received one day off their sentences for every day that they were incarcerated. That assertion was not accurate. However, having regard to Mr Albert's abovementioned submission to the effect that the relevant EMD applications, including Mr Quail's application, should be regarded as constituting claims that the applicants had something new or exceptional to say sufficient to warrant a departure from any applicable policy,[428] I note that, to the contrary, Mr Quail said on the first page of his letter:[429]

Speaking for myself, I do not want special treatment, I just want to receive the same time off for [EMDs], as inmates at Port Phillip Prison, have received.

218 In paragraph 14 (on pages 2 and 3) of the letter, Mr Quail added the following:[430]

14. I have lost many privileges, during this [COVID-19] Emergency.

a. Visits from family and friends. (K) section 37:

b. Education has been limited.

c. Clothing sent in from family and friends had been stopped

1. I have not been able to have my leaves out in the community for pre-release.
2. Access to the Courts and due process
3. Reduced access to recreation, and library.
4. Special Spends.
5. Cancellation of outside guests/speakers.
6. Goods from the prison shop.
7. Magazines.
8. Church [services].
9. Medical treatment.
10. Dental.
11. Whilst I was in Barwon Prison is [sic] dislocated my shoulder, which was never fixed, the physiotherapist could not come in and manipulate my shoulder to ease the pain.

219 The balance of the letter consists of misconceived assertions to the effect that Mr Quail was legally entitled to EMDs; and about the consequences that the granting of the claimed EMDs would have for his term of imprisonment and his non-parole period.

220 Self-represented, Mr Quail commenced the present proceeding by an originating motion dated 28 July 2021, which was filed on 13 September 2021. As at that time, he had not received a response to his EMD application. His originating motion was virtually a repetition of his EMD application. By way of relief, he claimed an order that the Secretary 'reassess' his EMD application in accordance with what he asserted to be the law. He did not file any affidavit in support at that stage.

221 On or about 27 October 2021, Mr Quail received a letter of that date from Ms Westin[431] in response to his EMD application. The letter was addressed to Mr Quail at Port Phillip Prison. The letter read (omitting formal parts):

Dear John Quail

Emergency Management Days

I am writing in relation to your application for Emergency Management Days (EMDs) dated 5 July 2021.

In accordance with section 58E of the Corrections Act 1986, a prisoner may be eligible for EMDs if they are of good behaviour during a period of disruption or deprivation, relating to an emergency or industrial dispute, or in other circumstances of an unforeseen and special nature.

While I note your circumstances, your application for EMDs is not approved, as you have not demonstrated that your circumstances meet the criteria.

The disruption or deprivation you have experienced has not been significant in the context of the COVID-19 pandemic and so does not warrant the granting of EMDs. Only more significant disruptions, such as being accommodated in a restrictive regime or having your out-of-cell time significantly restricted because of COVID-19, will result in the granting of EMDs.

Please note that while four EMDs is the maximum allowance under the Corrections Act 1986, the Commissioner has determined that during the COVID-19 emergency, the number of EMDs granted will be close to or equivalent to the number of days of disruption or deprivation.

In relation to the operational impacts outlined in your letter, I acknowledge that there have been restrictions as a result of COVID-19, particularly relating to special spends. However, special spends are a privilege under the Corrections Act as opposed to a right and this impact is not sufficiently onerous to warrant the granting of additional EMDs to you.

All prisoners are given access to medical and mental health services. At times there have been some restrictions on non-emergency procedures (for example, dental and physiotherapy) in line with recommendations to reduce the risk of COVID-19 transmission. Any concerns about access to medical care can also be raised with Justice Health which has overside [sic; scil., oversight] for health services in prisons.

Chaplaincy services have returned in person at times where it is safe to do so, however as with other services, have also been accessible remotely via a booking service and you can arrange this with staff should you need access to this service.

Prisoners are still able to access education services via remote learning arrangements when on site delivery is not possible.

In-person visits continue to be suspended where required to reduce the risk of person-to-person transmission of COVID-19. Please note that prisoners will not be considered for EMDs due to the suspension of personal visits as alternative options to maintain contact with family and friends have been implemented for the times when in-person visits are unable to occur.

Your sincerely

Melissa Westin etc.

222 As indicated above,[432] in or about early June 2022 Mr Albert of counsel became involved on behalf of Mr Quail. That led to the filing of an affidavit of Mr Quail dated 2 June 2022 which had been prepared by Mr Albert and in which Mr Quail said (only) that he had recently obtained legal representation and that he wished to have leave to file an amended originating motion in the form of a draft exhibited to the affidavit. As is also indicated above,[433] such leave was granted to Mr Quail on 17 June 2022; and a corresponding document headed 'Further Amended Originating Motion' dated 23 June 2022 was filed on behalf of Mr Quail on 24 June 2022.

223 In Mr Quail's further amended originating motion, the 'GROUNDS RELIED UPON' are stated as follows:[434]

1. The defendant's decision was infected by jurisdictional error by reason that the defendant failed to evaluate the material provided by the plaintiff to the defendant, in particular in respect of the impact on his right to be provided with clothing under s 47(1)(d) of the Corrections Act 1986 (Vic) and the [plaintiff's] clothing from family and friends being stopped during the COVID-19 emergency.
2. The defendant's decision was legally unreasonable in that the defendant:

1. gave emergency management days for having 'out-of-cell time significantly restricted because of COVID-19'; but
2. gave the plaintiff no emergency management days when the plaintiff was denied leave-outs in the community for pre-release because of COVID-19.

224 Mr Quail did not file any further affidavit at that time and has not done so at any time since. Indeed, the only evidence before the Court about the terms of Mr Quail's EMD application or about the terms of Ms Westin's decision letter of 27 October 2021 comes from a bundle of documents exhibited to an affidavit of Andrew Mariadason, a solicitor, affirmed on 8 April 2022 and filed on that day. Mr Mariadason is employed by the Victorian Government Solicitor, who acts for the Secretary in this proceeding. His affidavit was filed in support of the abovementioned abortive application by the Secretary to have this proceeding summarily dismissed.[435] On 17 June 2022,[436] Judicial Registrar Irving, having dismissed by consent the Secretary's application for summary dismissal, directed that any further affidavits on which Mr Quail intended to rely be filed and served by 24 June 2022 and that any affidavits 'in response' on which the Secretary intended to rely be filed by 15 July 2022. However, Mr Quail did not file any further affidavit pursuant to those directions or at all. Presumably for that reason, the Secretary did not file any affidavits 'in response' prior to the main oral hearing. In any event, no affidavit of Ms Westin has been filed in this proceeding. Apart from the two affidavits already mentioned, the only other affidavit that has been filed in this proceeding is an affidavit sworn 25 October 2023 by Tatjana Frei, a solicitor acting for the Secretary. Ms Frei's affidavit was filed in relation to an application by Mr Quail which was made after I had reserved my judgment in these proceedings and which was dealt with (by separate reasons) on 26 October 2023 and which need not be further referred to here, save to note that, in paragraph 11 of her affidavit, Ms Frei deposed that certain EMDs were granted to Mr Quail on four separate dates between 12 May 2022 and 11 August 2022. The total number of EMDs so granted was 17. The affidavit does not specify (by date or otherwise) the occasions in respect of which the EMDs were granted, nor whether they were granted via the automatic process or upon individual application. However, it is stated in [11] of Ms Frei's affidavit that Mr Quail was granted parole on 17 August 2022 (prior to the main oral hearing in this matter); and that, due the grant of EMDs to him, his sentence (and therefore his parole period) would expire on 14 November 2023. At the interlocutory hearing, Mr Albert said that there was no objection to my having regard to the information in paragraph 11 of Ms Frei's affidavit, but in the end it has made no difference to my reasoning.

Ground 1 in Quail v Secretary: failure to 'evaluate'

225 In his pre-trial written submissions,[437] Mr Quail advances submissions in support of ground 1 of his further amended originating motion as follows:

Ground 1 - non-provision of clothing from family and friends was ignored, not evaluated

...

1. While the letter acknowledged Mr Quail's 'letter' and dealt specifically with limitations on special spends, medical, chaplain and education services, as well as in-person visits, it did not even mention other forms of deprivation and disruption specifically raised by Mr Quail's application.
2. Most relevantly to this ground, Mr Quail's application noted that 'clothing sent in from family and friends had been stopped'.[438]
3. Victorian prisoners enjoy not only common law rights, but express and specific statutory rights.[439] Changes to a prisoner's access to those rights as a consequence of an emergency form part of the statutory context in which the Secretary purportedly exercised power under s 58E. Section 47(1) sets out rights identified and highlighted by Parliament as being owed to 'every prisoner'. Sub-section (d) protects:

the right to be provided with clothing that is suitable for the climate and for any work which the prisoner is required to do and adequate to maintain the health of the prisoner

This is the only protected right to property of prisoners.[440] By his application, Mr Quail specifically appealed to the emergency having limited his enjoyment of this right.

1. This form of deprivation was not acknowledged in form or substance by the decision-maker at all. Whether or not it fell within s 47(1)(d), it was a key element of Mr Quail's application and was an express reason he gave for seeking EMDs.

Mr Quail's pre-trial written submissions then proceed, in paragraph 10, to seek comfort, in ways I have already discussed at length, from cases such as Plaintiff M1/2021, Omar and MZYTS. In paragraph 11 of the pre-trial written submissions, Mr Quail submits that the legal propositions on which he relies constitute a refinement of the second of two elements of procedural fairness. He submits that the entitlement to be afforded procedural fairness requires both that an affected person have an opportunity to provide submissions[441] and a 'reflex entitlement' to be heard by the decision-maker when any submission is given.[442] Mr Quail's pre-trial written submissions on ground 1 concluded as follows:

1. Mr Quail's submissions raised information so relevant as to be related to an express statutory right protected by the Act that the Defendant was purporting to administer. Ms Westin did not engage with that fact at all. That failure caused jurisdictional error because the detail of Mr Quail's application was not 'heard'[443] nor evaluated.

226 In her responsive pre-trial written submissions in Quail,[444] the Secretary sets forth several powerful answers to the written submissions made by Mr Quail under ground 1.

227 I agree with the Secretary that, as a matter of fact, the evidence filed in Mr Quail's own proceeding and relied on by Mr Quail does not establish that Ms Westin failed to 'hear' or 'evaluate' (in any available sense of that word) his EMD application. As the Secretary notes,[445] Mr Quail identified 14 'privileges' that he claimed to have lost as a result of 'restrictions' imposed by Corrections Victoria. One 'privilege' that he claimed to have lost was '[c]lothing sent in from family and friends had been stopped'. Mr Quail gave no further information about this claim. The bulk of his 7-page letter addressed matters that had nothing to do with this particular 'privilege' or with the other 'privileges' that he referred to.

228 As the Secretary submits,[446] Mr Quail was correct to refer to having clothing sent in from family or friends as a 'privilege'. Privileges are to be distinguished from the prisoner rights that are set out in s 47 of the Corrections Act 1986.

229 Contrary to the claim in Mr Quail's further amended originating motion that the stopping of clothing from family and friends involved an impact on Mr Quail's right to be provided with clothing under s 47(1)(d) of the Corrections Act 1986, the case cited by Mr Quail in this regard, namely Knight v Hastings,[447] stands for the opposite proposition. In the very paragraph cited by Mr Quail,[448] Robson J held that the only right given by s 47(1)(d) was a right to clothing 'provided by the authorities'. Robson J was plainly correct. As the Secretary submits, this is the natural reading of the phrase 'provided with' in s 47(1)(d), read in its context.[449] Thus, as the Secretary submits,[450] s 47(1) does not confer a right to be provided with clothing (or food) from outside the prison. The entry of items from outside the prison is tightly regulated under the Corrections Act 1986; and the Governor of the prison is given broad discretion under s 47DB not to pass on to a prisoner a parcel sent to the prisoner but rather to place it in storage. This is quite inconsistent with interpreting the right in s 47(1)(d) as a right to receive clothing from outside the prison. I would add that, even if s 47(1)(d) had otherwise been applicable, its operation and effect would have been negated or largely negated in any event by the abovementioned COVID-19 Omnibus (Emergency Measures) Act 2020.

230 I agree with the Secretary[451] that the omission of the delegate to refer explicitly to Mr Quail's claim concerning clothing does not establish that the delegate failed to consider that matter or any other matter raised by Mr Quail. As the Secretary points out,[452] the delegate explicitly identified Mr Quail's application of 5 July 2021. She then 'noted' Mr Quail's circumstances and the 'disruption or deprivation [he had] experienced'. After referring to the pre-conditions in s 58E, she went on to explicitly refer to 'the operational impacts outlined in [Mr Quail's] letter and 'acknowledge[d]' that there had been restrictions as a result of COVID-19. As in Donohue, the delegate then referred and 'responded to many of the matters raised by' Mr Quail.[453] Given the statutory provisions relating to the provision of clothing, Ms Westin was fully entitled to regard Mr Quail's complaint about clothing from friends and family as being worthy of no weight at all. That would supply another good reason for Ms Westin not referring to clothing specifically in her decision letter.[454]

231 As the Secretary further submits,[455] ground 1 amounts to no more than a criticism of the amount of detail contained in the notification letter that Mr Quail received. To adopt the language of Niall JA in Donohue,[456] Ms Westin's letter dated 27 October 2021 did not 'purport to be a statement of reasons.' As discussed at length above,[457] there was no obligation on Ms Westin to provide reasons and her letter should not be treated as though it were a statutory statement of reasons. In any event, it is clear that Ms Westin took into account the matters that Mr Quail had raised. When Ms Westin was notifying Mr Quail of her decision to refuse his EMD application, she was not obliged, on any view, to list every matter that Mr Quail had raised. This is all the more evident in circumstances where many of the claims raised by Mr Quail were 'not clearly articulated' (particularly in the way Mr Quail's claims are now framed).[458] I note that the matter of clothing from family and friends was given no particular prominence in the list of 'lost' privileges set out in Mr Quail's EMD application. I note also that Mr Quail does not plead in his further amended originating motion that any other specific item in the list of privileges was not considered or 'evaluated' by Ms Westin.

232 The points made by the Secretary in her pre-trial written submissions in answer to Mr Quail's first ground were discussed with Mr Albert at the oral hearing.[459] In my view, Mr Albert had no good answers to the Secretary's points. Mr Albert felt constrained to submit that the problem with Ms Westin's letter was that it was not 'exhaustive'.[460] Mr Albert conceded that Mr Quail did not highlight the matter of clothing. But, according to Mr Albert, the delegate must deal explicitly with (and 'evaluate') everything relevant that is raised in an EMD application.[461] It was in the course of this discussion that Mr Albert sought to rely on paragraph 65 of the judgment of the Full Federal Court in CZBP,[462] but, as mentioned above,[463] that paragraph merely records submissions. It does not contain any holding of the Full Court, much less any holding that would support Mr Albert's submissions in the present regard.

233 Ms Westin's letter to Mr Quail of 27 October 2021 was relatively detailed. Although it contained language similar to language contained in other decision letters, it contained a considerable amount of different language too. I do not accept that Ms Westin's letter is properly described as 'formulaic' or 'template' in nature. And I reiterate that it is not appropriate to read that letter as though it were the product of a statutory obligation to give reasons. The burden of proving any relevant failure by Ms Westin to consider the matters raised in the EMD application fell on Mr Quail. The evidence filed in Mr Quail's proceeding does not discharge that burden.

234 Further, and in any event, I regard it as quite farfetched to say that Ms Westin was obliged to 'evaluate' Mr Quail's complaint about the stopping of clothing from family and friends during the pandemic, in the sense that she was impliedly required by law to contemplate the human consequences for Mr Quail of that particular development, on pain of her decision being nullified for jurisdictional error. Apart from anything else, that would, quite inappropriately, leave no room for the application of the lawful policy (as to being accommodated in a restrictive regime or having out-of-cell time significantly restricted, and as to the suspension of in-person visits) which is expressly referred to in Ms Westin's decision letter of 27 October 2021.

Provisional conclusion on ground 1 in Quail v Secretary (failure to 'evaluate')

235 For these reasons, subject to anything sufficiently potent in the (cross-admitted) evidence in the other proceedings, I would not uphold ground 1 of Mr Quail's further amended originating motion.

Ground 2 in Quail v Secretary: legal unreasonableness

236 In his pre-trial written submissions,[464] Mr Quail submits that the public law principles of legal reasonableness (or legal unreasonableness), which I have discussed above,[465] are applicable to decision-making under s 58E of the Corrections Act 1986. So much be accepted.

237 Mr Quail proceeds to make the following submissions on the facts and the evidence:[466]

1. In her brief letter, Ms Westin highlighted and sought to draw a distinction between Mr Quail's deprivation and that of others in prison in Victoria. In that regard, Ms Westin highlighted that:

Only more significant disruptions, such as being accommodated in a restrictive regime or having your out-of-cell time significantly restricted because of COVID-19, will result in the granting of EMDs.

Thus, Ms Westin identified as a sufficiently 'significant disruption' a person having 'out-of-cell time significantly restricted' as a basis to grant an EMD.

1. Mr Quail did not have any out-of-cell time restricted by reason of the COVID-19 emergency. His restriction during the COVID-19 emergency was more absolute. As his submission recorded:

I have not been able to have my leaves out in the community for pre-release.

Mr Quail was due to have leave from prison as a critical part of his reintegration preparation. They were cancelled as a result of the COVID-19 emergency and he was in prison for their duration instead.

1. It defies reason that out-of-cell time being restricted - not scrapped - yields EMDs but having time out of prison in the community scrapped - not just restricted - yields no apparent consideration nor the grant of any EMDs. It could not rationally be said that a lesser form of deprivation of liberty justifies the exercise of the discretion where a more substantial form does not. It follows that the decision was legally unreasonable and should be quashed as a result.

238 Compelling answers to these submissions are to be found in the Secretary's responsive outline in Quail.[467]

239 As the Secretary submits,[468] apart from the single sentence in Mr Quail's letter of 5 July 2021 to the effect that he had 'not been able to have' his 'leaves out in the community for pre-release', there is no evidence before the Court to support his submission that he was 'due to have leave from prison as a critical part of his reintegration preparation' or his submission that '[t]hey were cancelled'. In any event, as the Secretary further submits,[469] s 57B of the Corrections Act 1986 governs the grant of rehabilitation and transition permits, and it gives the Secretary a broad discretion to issue (or not issue) such permits. They are not an entitlement, and there is no evidence (apart from the abovementioned single sentence in the 5 July 2021 letter) to establish whether or not Mr Quail had been granted a permit or merely had an expectation of being granted a permit or otherwise.

240 I agree with the Secretary[470] that Ms Westin's differential treatment, for EMD purposes, of the non-provision of 'leave outs', on the one hand, and 'being accommodated in a restrictive regime or having your out-of-cell time significantly restricted', on the other hand, does not, of itself, show that Ms Westin's decision involved legal unreasonableness. Section 57B of the Corrections Act 1986 provides that permits for 'leave outs' can only be issued for specific rehabilitation and transition purposes. In contrast, as the Secretary submits,[471] time out-of-cell and liberty to mix with other prisoners is a requirement of humane incarceration that can only be taken away in very limited circumstances - they are not something which, under the Corrections Act 1986, the Secretary approves for specific purposes. Hence, it is not 'lacking in rational or plausible justification' for the Secretary to treat these two things differently.

241 In any event, as the Secretary further submits,[472] the Court has no evidence before it about 'leave outs' or about 'being accommodated in a restrictive regime' upon which to undertake the nuanced (merits) assessment which Mr Quail in effect calls for in asserting that the absence of the former is more significant than the presence of the latter. Mr Quail has not established that not being provided with 'leave outs' is necessarily a larger or more onerous impingement on a prisoner's residual liberty than being denied the ability to move normally within the limits of a particular, relevant prison. Mr Quail himself was in a minimum security, country prison. There is no evidence as to what escort arrangements or other restrictive arrangements might have accompanied any 'leave outs' which he might have been permitted to have in the absence of the COVID-19 pandemic. Nor is there any evidence as to the period of time that any 'leave out' for Mr Quail might have occupied. For all the Court knows, a 'leave out' might typically last a much shorter time than a lockdown. The burden of proof in relation to such matters was on Mr Quail, and he has made no attempt to discharge it.

242 The Secretary correctly submits[473] that Mr Quail's quarrel - based on a single sentence contained in a notification letter - amounts to no more than an invitation to this Court to conduct a review of the decision made on his EMD application on the merits. I agree with the Secretary[474] that it is not this Court's function to undertake its own assessment of whether, given that the decision-maker considered that being accommodated in a restrictive regime did (generally) warrant the grant of EMDs, she should also have decided that not being provided with 'leave outs in the community' also warranted the grant of EMDs. As the Secretary rightly submits,[475] it was for the delegate to determine whether any particular deprivation or disruption suffered by Mr Quail was sufficiently serious to justify the exercise of the power under s 58E(1) based on the material known to the delegate. And, as already mentioned,[476] I do not accept that Ms Westin's relatively detailed decision letter on Mr Quail's EMD application can fairly be described as 'formulaic' or 'template' in nature. To the contrary, it tends to show careful consideration of Mr Quail's EMD application.

243 At the oral hearing,[477] Mr Albert was unable to offer anything which, to my mind, answered these points, or which added anything new to Mr Quail's written submissions as to legal unreasonableness.

Provisional conclusion on ground 2 in Quail v Secretary (unreasonableness)

244 For these reasons, subject to anything sufficiently potent in the (cross-admitted) evidence in the other proceedings, I would not uphold ground 2 of Mr Quail's further amended originating motion.

245 At all relevant times, Mr Thomas was under sentence for aggravated burglary, armed robbery, aggravated rape and false imprisonment.[478] His sentence was due to expire on 21 September 2026 and his non-parole period on 23 July 2023.[479]

246 Between 20 March 2020 and 18 November 2020, Mr Thomas was serving his sentence at Ravenhall Prison on the western outskirts of the Melbourne metropolitan area. On 18 November 2020 he was transferred to the abovementioned Middleton Prison, where he remained at all relevant times thereafter.[480]

247 It is common ground that the relevant application for EMDs for Mr Thomas was made by him, or on his behalf, on 26 October 2020.[481] On that date, he was still at Ravenhall Prison. It seems that the application was not made on a Departmental form. Rather, Mr Thomas was included as one of numerous prisoners at Ravenhall Prison on whose behalf an elaborate typed submission was made to the Commissioner of Corrections Victoria in support of the grant to all Ravenhall prisoners of EMDs for every day from 21 March 2020 until Ravenhall could return to 'ordinary function'. The document comprised a covering letter of 10 pages, together with, apparently, nine annexures. The two (identical) versions of the document that appear in the Court Book omit most of the annexures.[482] The list of annexures indicates that they included three separate 'submissions' by persons held at Ravenhall. However, none of those persons is named in the list and none of their submissions is included in the Court Book. There is nothing to indicate that Mr Thomas was the author of any of the three 'submissions' referred to in the list of annexures.

248 The latest date referred to internally in the Ravenhall document is 5 August 2020. However, as mentioned above, it is common ground that this document and its annexures (at least to the extent appearing in the Court Book) should be treated as having been submitted on behalf of Mr Thomas to the Corrections authorities as an application for EMDs; and as having been so submitted on 26 October 2020. On the other hand, it is evident that the document was prepared on behalf of many other Ravenhall prisoners as well.

249 The undated document states that its 'writer' is Mr Dwayne Antojado (who is said to hold a Bachelor of Business and a Bachelor of Laws), and that there were 'contributions' by five other named persons. It states that it is to be sent to the Commissioner of Corrections of Victoria by Mr Antojado and Mr Paul Judd (one of the 'contributors') on behalf of all persons held in custody at Ravenhall. It is a prolix document full of legal or quasi legal submissions that, as confirmed in Dudley and Donohue, are mainly based on the misconceived notion that s 58E confers entitlements to EMDs. It contains various lists of facilities or services said to have been suspended or reduced at Ravenhall on account of the COVID-19 pandemic. It also contains various complaints about the alleged insufficiency of the measures taken by the authorities to compensate for the losses or restrictions involved. It claims to represent a synthesis of information gathered by the contributors from prisoners at Ravenhall.

250 The document acknowledges that ordinary prisoners at Ravenhall had been granted EMDs for 22 April 2020, 23 April 2020, 21 July 2020, 22 July 2020, 23 July 2020, 24 July 2020, 25 July 2020 and 5 August 2020, and that this had been done on a one-for-one basis, resulting in a total of eight EMDs per prisoner in respect of those days.[483] The document also indicates that prisoners in quarantine had been granted further EMDs.[484]

251 The only reference to Mr Thomas in his 'application' for EMDs is in annexure 9 thereto, which is variously entitled 'Itemised analysis of individual submissions' and 'Raw data of individual submissions'. Annexure 9 lists 103 prisoners in alphabetical order in a chart. The chart indicates which category of restriction or hardship, from amongst a list of such categories, had been mentioned by each listed prisoner in their individual 'submission' as gathered by the 'contributors'. As already mentioned, the larger document does not include any individual submission from Mr Thomas to the Corrections authorities. However, the chart indicates that Mr Thomas had mentioned to the 'contributors' restrictions or hardships that fell into seven of the categories used in the document. For Mr Thomas, those categories were: contact visits; education and rehabilitation; mental health; procurement of goods; procurement of goods by means of 'special spends'; postal and other communication delays; fears about personal health due to the epidemic; and access to the learning resource centre.

252 Without legal representation, Mr Thomas commenced this proceeding, by originating motion, on 22 March 2021. That date was prior to the date of the decision of Ms Westin which is presently under challenge, namely 16 April 2021. Mr Thomas' originating motion was supported by an affidavit affirmed on 2 March 2021. At that stage, Mr Thomas had been at Middleton Prison for about four months. Perhaps unsurprisingly, Mr Thomas' affidavit looked much like the second EMD application that had been made by Mr McPadden.[485] Mr Thomas' affidavit wrongly assumed that EMDs were entitlements of prisoners. The Court Book also contains a second affidavit of Mr Thomas, being an affidavit that was also affirmed on 2 March 2021, which was made an exhibit to his first mentioned affidavit. The second affidavit suffers from the same defects as the first affidavit.

253 On 16 April 2021 Ms Westin wrote to Mr Thomas, by now at Middleton Prison, in the following terms (omitting formal parts):[486]

Dear Mr Thomas

Emergency management days

I am writing in relation to your application for emergency management days (EMDs) dated 26 October 2020.

In accordance with Commissioner's Requirement 2.3.2 Emergency Management Days, a prisoner may be eligible for EMDs if they are of good behaviour during a period of disruption or deprivation, relating to an emergency.

Please note that Corrections Victoria has introduced an automatic consideration process for the COVID-19 emergency.

As at 16 April 2021, you have already been granted 18 EMDs relating to the COVID-19 emergency.

While I note your circumstances, your application for additional EMDs is not approved, as you have not demonstrated that your circumstances meet the criteria, and EMDs that you are eligible for having already been granted.

The disruption or deprivation you have experienced has not been significant in the context of the COVID-19 pandemic and so does not warrant the granting of EMDs. Only more significant disruptions, such as being accommodated in a restrictive regime or having your out-of-cell time significantly restricted because of COVID-19, will result in the granting of EMDs.

Yours sincerely

Melissa Westin etc.

254 On 6 May 2021, still without legal representation, Mr Thomas filed an amended originating motion. It sought to attack Ms Westin's decision of 16 April 2021 as unjustified. It still sought, by way of relief, an order that the Court require the Secretary to grant Mr Thomas EMDs as claimed originally.

255 No further evidence was filed by Mr Thomas at that stage, nor until after pro bono counsel became involved in early June 2022. At that time, Mr Thomas filed a short, formal affidavit (affirmed on 2 June 2022) seeking leave to file a further amended originating motion. As in the other cases, leave was granted. And, as in the other cases, an opportunity was provided to Mr Thomas to file and serve any additional affidavit material upon which he might seek to rely in support of his further amended originating motion. Mr Thomas did not take up that opportunity.

256 The only other affidavit filed in the Thomas proceeding is a formal affidavit of Laura D'Amico, affirmed 7 April 2022, which had been filed in support of the Secretary's abortive application for summary dismissal.

257 Mr Thomas' further amended originating motion sets out the following (only) as the 'GROUNDS RELIED UPON':[487]

1. The defendant's decision was legally unreasonable in that it was illogical or irrational, demonstrated by the defendant:
   1. Stating that the plaintiff had 'not demonstrated that your circumstances meet the criteria' and that 'the disruption and deprivation' you have experienced... does not warrant the granting of EMDs; but also
   2. Acknowledging that the plaintiff did meet the criteria and had experienced disruption and deprivation to warrant the granting of EMDs because he had 'been granted 18 EMDs relating to the COVID-19 emergency'.

258 The pre-trial written submissions filed on behalf of Mr Thomas[488] contain some erroneous or incomplete statements of fact. First, it is stated that Mr Thomas' request 'dated 26 October 2020' was for 'emergency management days'.[489] However, this does not recognise that prisoners at Ravenhall had already (ie prior to 26 October 2020) been granted some EMDs,[490] and it appears to assume the contrary. Second, it is stated that Mr Thomas' request arose and relied upon 'the restrictions imposed at Middleton within the Loddon Prison precinct by reason of the COVID-19 emergency' (my emphasis).[491] In fact the 'request' was based entirely on the restrictions imposed at Ravenhall. Mr Thomas had not been transferred to Middleton as at 26 October 2020. That did not happen until 18 November 2020. Third, it is stated that Mr Thomas lodged a 17-page application for EMDs; and for that proposition a reference is given to a bundle of documents said to be exhibited to an affidavit of Mr Mariadason dated 8 April 2022. The correct reference would have been to an exhibit bundle attached to the abovementioned affidavit of Laura D'Amico affirmed on 7 April 2022. More importantly, the length of the document (which, in its full form, presumably greatly exceeded 17 pages) was mainly due to the fact that it was prepared on behalf of all of the prisoners at Ravenhall. And, as mentioned above, annexure 9 to the document included details for 103 individual prisoners. So it is not accurate to refer to the whole thing as Mr Thomas' application for EMDs. Thus Mr Thomas' criticism (in paragraphs 3 and 9 of his pre-trial written submissions) of Ms Westin's response to his 'application', namely criticism on the basis that her response came 'almost six months later' and comprised 'less than a page' and was 'very brief', is misplaced.

259 In [4] of his pre-trial written submissions, Mr Thomas submits that Ms Westin's decision to refuse him (additional) EMDs was an exercise of the ultimate discretionary power conferred by s 58E, rather than being a reflection of a determination that the pre-conditions in s 58E had not been fulfilled. So much may be accepted. Indeed, as will be seen, this circumstance serves only to undermine Mr Thomas' case.

260 Paragraph [5] of the pre-trial written submissions deals with the principles relating to legal unreasonableness. I have already dealt with that topic.

261 Paragraphs [6]-[9] of Mr Thomas' pre-trial written submissions should be set out in full. They are as follows:

1. Ms Westin's letter is internally inconsistent and her reasons were thus irrational or illogical.
2. Ms Westin acknowledged that Mr Thomas had received 18 EMDs. He could only have been given those according to law if Mr Thomas had endured disruption or deprivation of sufficient magnitude during the COVID-19 emergency, and he had been of good behaviour during that period.
3. However, Ms Westin rejected Mr Thomas' application for further EMDs, on the basis that his circumstances did not meet the criteria and the disruption and deprivation he had experienced did not warrant the granting of EMDs. This is incoherent with the acknowledgement that he had received EMDs. Mr Thomas would not have received any EMDs if his circumstances failed to meet the criteria. Equally, Mr Thomas would not have received any EMDs if his experience of disruption and deprivation did not warrant EMDs being granted.
4. The Court can safely draw the inference - including by reliance on what is clearly regurgitated language from other EMD refusal letters - that the decision in respect of Mr Thomas relied on 'mechanical formulaic expression and pre-digested shorthand expressions [which] hide a lack of the necessary reflection upon the whole consideration of the human consequences involved'[492] and the submissions made by Mr Thomas. As has been observed in like circumstances:

Ordinarily, it might be possible to determine from the balance of the reasons of a delegate what the actual process of reasoning was and, more importantly, whether the insertion of the incorrect statement was merely an editorial error - perhaps an errant cut and paste - rather than something going to the root of the reasoning process. However, unfortunately this is not possible. Apart from very generalised statements... there is little in the way of forensic substance to the balance of the delegate's reasons. The impression that there has been carried out a mechanical process of cutting and pasting devoid of cognitive activity is not in any way dispelled by observing that at least two paragraphs of the reasons have clearly been copied... My impression is that the reasons of the delegate bespeak a desire to dispose of the appellant's application by the route involving the least amount of effort on the delegate's part.[493]

The very brief and self-contradictory response by Ms Westin to Mr Thomas' lengthy submission could be described in similar terms. However the letter is described, it reveals an irrationality that infects the exercise of power fundamentally enough to amount to jurisdictional error in the form of legal unreasonableness.

262 The thrust of [9] of Mr Thomas' pre-trial submissions has largely been dealt with above.[494] As to the 'cut and paste' case of SZNZK to which Mr Thomas refers, I would acknowledge that the decision letters in the present case may have involved some cutting and pasting, but not, in all the circumstances, to an extent that I would regard as concerning. The facts in SZNZK were very different. There, a delegate of the Commonwealth Minister for Immigration had rejected a claim for refugee status. Due to a mix up, the delegate had not taken into account the applicant's statement of his claims, but rather the statement of someone else altogether. This emerged from the delegate's statutory statement of reasons, which was required to be in the usual detailed form.[495] Of course, there was no equivalent requirement here. SZNZK does not avail Mr Thomas.

263 During discussions about the Thomas matter at the oral hearing, it became apparent that, inconsistently with [4] of Mr Thomas' pre-trial submissions as described above, Mr Albert's whole argument in Thomas depended upon the proposition that, in her letter of 16 April 2021, Ms Westin was using the expression 'criteria' to refer to the pre-conditions specified in s 58E, as distinct from any criteria that the Department (as a matter of policy) might have adopted in relation to the circumstances in which the discretion to grant EMDs to prisoners who met the pre-conditions would be exercised.[496]

264 In my view, that reading of Ms Westin's letter is quite untenable.

265 Mr Albert submitted that there was no evidence to support the view that Ms Westin was referring to policy-related criteria.[497] I disagree. There was a large amount of such evidence. It included the abovementioned Departmental fact sheet of 20 April 2020, and the references in the evidence to that document and to other similar Departmental documents.[498] It included the very terms of Ms Westin's letter to Mr Thomas of 16 April 2021. In the letter, Ms Westin referred to the automatic EMD process, which in turn is referred to in the Departmental fact sheet of 20 April 2020, and which plainly sets out certain criteria that are to apply in Departmental decision making in relation to EMDs, being criteria additional to the statutory pre-conditions. Correspondingly, Ms Westin stated, in the last paragraph of the letter of 16 April 2021, that the disruption or deprivation that Mr Thomas had experienced had not been 'significant' in the context of the pandemic; and that only more 'significant' disruptions, such as being accommodated in a restrictive regime or having one's out-of-cell time significantly restricted because of COVID-19, would result in the granting of EMDs. In my view, just as I held in Dudley[499] in relation to the corresponding passage of the decision letter sent by Ms Westin to Mr Dudley, Ms Westin was not, in in her letter to Mr Thomas, referring to the matter of 'significant' disruption or deprivation in connection with the 'third step' of EMD decision-making (which concerns the pre-conditions) but rather in connection with the 'fourth step', namely the exercise of the ultimate discretion.

266 As is now common ground, the fact is that Mr Thomas had been granted 18 EMDs as at 16 April 2021. There is no suggestion in Ms Westin's letter that those EMDs were wrongly granted. Presumably, those EMDs were granted, in accordance with Departmental policy, as a result of (to use a shorthand term) 'lockdowns'. In the letter, Ms Westin was explaining that, in her view, the circumstances outlined in Mr Thomas' application did not warrant the grant of 'additional' EMDs. Plainly, conditions within a prison can vary from time to time. On some occasions, it seems, the conditions were such that the relevant decision-maker decided that Mr Thomas should be granted EMDs. He received 18 EMDs accordingly. However, Ms Westin was apparently of the view that, on all other occasions, the conditions in the relevant prison or prisons were different. In Ms Westin's estimation, any disruption or deprivation that Mr Thomas had experienced had not been 'significant' on those other occasions. Hence, in the view of Ms Westin (applying the relevant Departmental policy), the discretion did not fall to be exercised.

267 In my opinion, there is absolutely nothing irrational or devoid of plausible justification in that.

268 Mr Albert invites me to adopt a reading of Ms Westin's letter that would involve extraordinary self-contradiction. It would also be inconsistent with what Ms Westin said herself in the letter of 16 April 2021 and with what was said, in similar language, in several other (cross-admitted) decision letters set out above.

269 The High Court has ruled that even statutory statements of reasons of administrators are to be read in a benign fashion.[500] As is pithily remarked in the leading Australian text on judicial review of administrative action, there is to be no 'nitpicking'.[501]

270 When this principle was raised with Mr Albert at the oral hearing,[502] he said that, while nitpicking is not permitted, courts should not put on blinkers but should engage with what the decision-maker actually said; and should assume that the decision-maker meant what they said. For that proposition, Mr Albert cited W375/01A v Minister for Immigration and Multicultural Affairs.[503] Mr Albert's reference was presumably to paragraph [16] of W375/01A. That was a case relating to the Refugee Review Tribunal, which was determining matters of very great moment, and which was subject to strict requirements as to the provision of written reasons. It was in that context that, in paragraph [16], the Full Court of the Federal Court said that, 'provided the Court acts with due caution, it may look closely at the decision to see whether there is legal error'. Indeed, the Full Court noted that, in reviewing the reasons of the Refugee Review Tribunal, the Court was entitled to take into account the fact that that Tribunal was constituted by trained personnel; that the Tribunal had obvious expertise in the performance of its functions; that it had legal advice available to it; and that its members were familiar with the relevant legal principles. It was only after making those observations that the Full Court said that there was no reason to suppose that the Refugee Review Tribunal does not mean what it says, or that it does not say what it means. The Full Court was not purporting to lay down any general principle, along those lines, applicable to all administrators. It was referring only to the Refugee Review Tribunal. By comparison, although Ms Westin may have been a senior and experienced public servant, there is nothing to indicate that she had legal training or legal assistance in the making of the decisions in question. Moreover, Ms Westin was not under any statutory obligation to give reasons, much less written reasons. Further, the issue in W375/01A was not an issue concerning unreasonableness. The question was whether the Refugee Review Tribunal had made an error of law. The present situation is very different.

271 The burden of proving that the decision of Ms Westin was legally unreasonable rested squarely upon Mr Thomas. It is not enough for Mr Thomas to show that the decision might have been legally unreasonable. He needed to prove that it was legally unreasonable.[504] That is a very difficult burden to discharge. I note that no attempt was made on behalf of Mr Thomas to question Ms Westin in relation to her letter of 16 April 2021.[505]

272 For these reasons, subject to anything sufficiently potent in the (cross-admitted) evidence in the proceedings brought by the other plaintiffs, I would not be satisfied that the decision of Ms Westin made on 16 April 2021 was affected by jurisdictional error and I would dismiss the Thomas proceeding.

273 It will be apparent from the above that, in my view, the cross-admitted evidence tends strongly, in each case, to favour the Secretary rather than the relevant plaintiff. In particular, it tends to confirm that each decision under challenge was made in accordance with a rational Departmental policy that has not been challenged. That sufficiently explains any repetitive language in the decision letters.

274 For these reasons, I am not satisfied that any of the decisions in question is affected by jurisdictional error. Although, as indicated above, I will grant extensions of time in McPadden, each of the four proceedings will be dismissed.

275 I will hear counsel as to the form of final orders and as to costs.

[1] See Dudley v Secretary to the Department of Justice & Community Safety [2021] VSC 567; (2021) 66 VR 403 ('Dudley'); Donohue v Westin [2022] VSC 37 ('Donohue'). See also Donohue v Westin [2022] VSC 794 [57]-[63].

[2] Dudley 435 [82]; Donohue [55]. Regulation 109 and the other relevant provisions are set out in full in Dudley 415-416 [21]-[24].

[3] Defendant's outline of submissions dated 26 September 2022 in proceeding number S ECI 2020 04527 ('Defendant's outline in McPadden'), [11]-[26]: Court Book ('CB') 559-563.

[4] Defendant's outline in McPadden [12].

[5] I will direct that a copy of the chronology of 10 October 2022 be kept on the file.

[6] Transcript of hearing before Cavanough J on 7 and 10 October 2022 ('T'), 167.

[8] Defendant's outline in McPadden [9], [31]-[32].

[9] Outline of submissions for Mr McPadden dated 14 September 2022 [43(d)], [44], [45]-[47] and [48]-[49].

[10] T218, referring to the document at CB 224-225. As will be seen, the Secretary ultimately relied on the existence of the policy or general rule to justify or explain the language used in the decision letters and thereby to support her answers to the complaints made by the plaintiffs in these cases: see esp T217-219, 229-231.

[11] Letter dated 17 August 2020 from Mr McPadden to the Corrections authorities, page 3: CB 26, Supplementary Court Book ('SCB') 17.

[19] [2018] VSC 222. The policy-related grounds that had succeeded in Kheir had been labelled as error of law ([2018] VSC 222 at [33]) and ostensible bias ([2018] VSC 222 at [38]-[39]). See also and compare British Oxygen Co Ltd v Minister of Technology [1970] UKHL 4; [1971] AC 610, 624-625, 630-631; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, 194 [54], 198 [68]-[69]; Minister for Home Affairs v G & Anor [2019] FCAFC 79; (2019) 266 FCR 569, 586-587 [57]-[62].

[23] Mr Thomas' outline of submissions dated 14 September 2022 [9].

[24] Citing Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589, 607 at [37] quoting, in turn, Hands v Minister for Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]. See further below.

[27] Outline of submissions for Mr McPadden dated 14 September 2022, [48].

[31] See [31] (fn 10) and [32] above of this judgment.

[34] See the cases referred to in [32] (fn 19) above of this judgment.

[35] T65, 68-69, 72, 75-76, 107-109, 111.

[37] See and compare Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; (2020) 281 FCR 578, 586-687 [34]-[37].

[38] See [31] above of this judgment.

[39] As to the distinction between error of law on the face of the record and jurisdictional error, see Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 492 [26]. As to jurisdictional error generally, see Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215 [38]-[41], [46]-[50] (Payne JA, with whom Ward ACJ and Basten AJA agreed).

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

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

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

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

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

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

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

[63] Donohue [34], [50], [71], [74].

[65] Dranichnikov [2003] HCA 26.

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

[67] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

[68] [1995] FCAFC 1726; (1995) 57 FCR 451.

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

[70] [2010] NSWCA 182.

[73] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.

[74] [2021] VSC 567.

[75] Evidence Act 2008, s 91.

[83] Donohue [35]-[50], esp at [42] and [49].

[85] See [44] above of this judgment.

[86] Outline of submissions for Mr McPadden dated 14 September 2022, [45].

[90] (2022) 96 ALJR 497, 512-513 [41] (Kiefel CJ, Keane, Gordon and Steward JJ); 514-515 [48], [52] (Edelman J, dissenting); 524 [104] (Gleeson J, dissenting).

[93] Outline of submissions for Mr McPadden dated 14 September 2022 at [41].

[98] Outline of submissions for Mr Wells dated 14 September 2022 at [20].

[99] Outline of submissions for Mr Quail dated 14 September 2022 at [10].

[101] Building on the observations of Niall JA in Donohue at [56].

[102] Plaintiffs' common written submissions [9].

[104] Plaintiffs' common written submissions [11], citing Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at [8]; and citing also Minogue v Victoria [2018] HCA 27; (2018) 264 CLR 252 at [47] regarding the operation of the principle in the context of the Parole Board's powers under the Corrections Act 1986.

[105] Ibid, citing Dudley at [82]. But see the references, in [46] above of this judgment, to the holding of Niall JA in Donohue to the effect that s 58E does not engage the Charter rights to liberty and freedom of movement.

[106] Ibid [12], citing Mashood v Commonwealth [2003] FCA 1147; (2003) 133 FCR 50 at [21] and Hobson v Commonwealth of Australia [2022] FCA 418 at [17].

[107] Citing Marrogi v The Secretary of the Department of Justice [2015] VSC 429 at [11].

[108] Citing McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 at [54].

[109] Citing Donohue at [19]-[20] and [62].

[110] Citing Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589, 607 [37].

[111] Citing Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628, 630 [3].

[113] Citing, as mentioned in footnote 20 above, citing Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589, 607 at [37] quoting, in turn, Hands v Minister for Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3].

[115] See [58] above of this judgment and the footnotes thereto.

[116] [2019] FCAFC 188; (2019) 272 FCR 589, 607 [37].

[117] [2018] FCAFC 225; (2018) 267 FCR 628, 630 [3].

[118] [2017] FCAFC 107; (2017) 252 FCR 352. Carrascalao involved two judicial review proceedings which were heard together. The appellants claimed that the Minister failed to give 'proper, genuine and realistic consideration' to the merits of their cases when the Minister cancelled their visas on character grounds under s 501(3) of the Migration Act.

[119] [2019] FCAFC 188; (2019) 272 FCR 589, 605-607 [36].

[120] [2019] FCAFC 188; (2019) 272 FCR 589, 606 [36(b)].

[121] Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451.

[122] [2019] FCAFC 188; (2019) 272 FCR 589, 606 [36(d)].

[123] Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589, 607 [37].

[124] Plaintiffs' common written submissions, [13].

[126] Outline of submissions for Mr Thomas dated 14 September 2022 [9].

[127] Outline of submissions for Mr McPadden dated 14 September 2022 [45], [50]; outline of submissions for Mr Quail dated 14 September 2022 [10]; outline of submissions for Mr Thomas dated 14 September 2022 [9] (being the paragraph referred to above).

[128] (2022) 96 ALJR 497, 508-510 [22]-[27]. And see the concurring judgment of Gageler J, especially at [43] and [47].

[129] Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 94 ALJR 897 at [36]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 at [13]. See also Australia, House of Representatives, Migration Amendment (Character and General Visa Cancellation) Bill 2014, Explanatory Memorandum, p 16 [92].

[130] See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 at [13]. See also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; 60 ALJR 560; Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [41].

[131] Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 94 ALJR 897 at [36]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 at [13]. See also Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 462, 476, 495; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [81]-[82]; 75 ALJR 889; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24], [88], [95]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13], [105]; [2019] HCA 3; 93 ALJR 252; DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 95 ALJR 375 at [12].

[132] Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 495.

[133] See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; 60 ALJR 560; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [197]; [1999] HCA 14; 73 ALJR 584; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33]; [2010] HCA 48; 85 ALJR 306.

[134] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 at [14].

[135] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 at [13]. See also R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430; Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [34]; [2000] HCA 5; 74 ALJR 490; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [73]; 75 ALJR 679; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [38]; Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [90]- [92]; [2013] HCA 18; 87 ALJR 618; Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [33]; [2015] HCA 51; 90 ALJR 213.

[136] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; 60 ALJR 560; CRI026 v Republic of Nauru [2018] HCA 19; (2018) 92 ALJR 529 at [66]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13], [105]; [2019] HCA 3; 93 ALJR 252; AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 at [15].

[137] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24], [95]; CRI026 v Republic of Nauru [2018] HCA 19; (2018) 92 ALJR 529 at [66]. See also Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 462-463; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [59].

[138] See Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 94 ALJR 897 at [33]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 at [15]; cf Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [78].

[139] See, eg, Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 462; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45]- [46]; He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 at [53]; Singh v Minister for Home Affairs (2019) 267 FCR 200 at [30]; Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [38]; Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [37]; Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 at [45]; MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215; (2020) 282 FCR 285 at [20], quoting Hernandez v Minister for Home Affairs [2020] FCA 415 at [16]- [20]; DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 95 ALJR 375 at [12].

[140] See, eg, Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 11 December 1987) at 11; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [37], [171]; 80 ALJR 367; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [29]- [30]; [2010] HCA 48; 85 ALJR 306; Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 at [43]; [2017] HCA 8; 91 ALJR 402. See also Swift v SAS Trustee Corporation (2010) 6 ASTLR 339 at [45]-[47].

[141] Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [24], quoting Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 at [65]. See also Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [29]- [34]; [2010] HCA 48; 85 ALJR 306; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [54]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [32]- [34]; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [42]; CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [35]; AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56]; XFCS v Minister for Home Affairs [2020] FCAFC 140 at [22].

[142] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; see also 30, 71; 60 ALJR 560.

[143] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; [1995] HCA 58; 69 ALJR 873; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [27]; [2010] HCA 48; 85 ALJR 306, citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]-[84]; 75 ALJR 1105; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [25]; [2015] HCA 50; 90 ALJR 197; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13]; [2019] HCA 3; 93 ALJR 252; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 at [22]. See also Aronson, Groves and Weeks_, Judicial Review of Administrative Action and Government Liability_, 6th ed (2017), pp 271-274 [4.770].

[144] See Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13], [105]; [2019] HCA 3; 93 ALJR 252. See also Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24]-[25], [95].

[145] R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [81]-[82]; 75 ALJR 889; Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [33]; [2015] HCA 51; 90 ALJR 213.

[146] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [88].

[148] Ibid. My emphasis. See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 at [13], as cited by the plurality in Plaintiff M1/2021 at [22]. As explained further below, the statutory scheme for the grant of EMDs is quite different.

[149] (2022) 96 ALJR 497 [23]. My emphasis.

[157] (2022) 96 ALJR 497, 526 [111].

[158] Here Gleeson J cited seven judgments of the Federal Court delivered in 2019 or 2020.

[159] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 266; 70 ALJR 568; Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [10]; MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; (2015) 234 FCR 154 at [66]; Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]; Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 at [7], [51].

[161] (1996) 185 CLR 259, 266. See also at 292 (Kirby J).

[162] (2022) 96 ALJR 497, 512-513 [36]-[42] (Kiefel CJ, Keane, Gordon and Steward JJ), [43] and [47] (Gageler J).

[163] See [65] above of this judgment.

[166] Ibid, 524 [104] (fn 119), [111] (fn 130).

[168] Donohue [21]-[25], esp at [24]. See above at [44] of this judgment.

[170] [2023] FCAFC 52.

[172] [2023] FCA 659.

[175] Reproduced in paragraph [74] above of this judgment.

[178] Ibid [67]. My emphasis on the word 'evaluation'.

[179] [2023] FCAFC 98.

[182] Ibid [55]. However, compare Chang v Neill [2019] VSCA 151; (2019) 62 VR 174, 194-195 [67]-[73]; and my judgment in Jordan v Kotsios [2022] VSC 332 [69]-[74].

[183] Subsequently, Jabari was referred to in passing in Berridge v The Independent Assessor & Anor [2023] QSC 228 [50] (fn 28) (see further below). Jabari was also referred to in Mijalkov v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC 2G 999 at [38]-[40], but not in a manner inconsistent with my views about Plaintiff M1/2021 as expressed in this judgment. Very recently, in I Cook Foods Pty Ltd v State of Victoria [2023] VSC 654 [220] (fn 333), McDonald J cited Jabari (and many other cases) in relation to a quite different point. Otherwise, Jabari has not been judicially referred to until now.

[184] [2023] FCAFC 136.

[186] Ibid [24], citing ECE21 [8].

[187] [2023] NSWCA 215.

[188] [2023] NSWCA 215 [55]-[62], [175].

[191] Ibid [175], referring to Plaintiff M1/2021, particularly at [26] of that judgment.

[192] [2023] VSCA 240.

[193] [2023] VSCA 240 [93]-[97].

[194] [2023] QSC 228.

[197] [2021] HCA 12; (2021) 273 CLR 177, 189 [12].

[198] [2023] QSC 228 [40].

[199] [2023] QSC 228 [49] (n 28).

[200] [2021] HCA 12; (2021) 273 CLR 177, 189 [12].

[201] See Plaintiff M1/2021 (2022) 96 ALJR 497 at [26]. Note that DVO16 is one of the cases listed in a footnote to that paragraph, namely footnote 49. See also and compare [24] of Plaintiff M1/2021 and footnote 41 thereto, where DVO16 had also been listed.

[202] Ogden Industries Pty Ltd v Lucas [1968] UKPCHCA 1; (1968) 118 CLR 32, 38 (Lord Upjohn, speaking for the Privy Council); McNamara v Consumer Tribunal [2005] HCA 55; (2005) 221 CLR 646, 661 [40] (McHugh, Gummow and Heydon JJ); D Pearce, Statutory Interpretation in Australia, 9th ed, 2019 [1.9]-[1.11].

[203] [2019] FCAFC 188; (2019) 272 FCR 589, 607 [37], quoted in [62] of this judgment.

[204] See [50] and [51] above of this judgment.

[205] See [1] and [71] above of this judgment.

[206] See Dudley [65]-[67]. See also Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, especially the judgment of Flick J (dissenting, but not relevantly) at 577-578 [389]-[391]. See also Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737, 751 [51] (Gageler J).

[207] See Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 [12]-[24]; Ceerose [2023] NSWCA 215 [41], [44]-[48].

[208] See and compare Plaintiff M1/2021 (2022) 96 ALJR 497, 508 [22], as discussed in [71] above of this judgment. See also my judgment in Jordan v Kotsios [2022] VSC 332 [70].

[209] See [54]-[57] of this judgment.

[210] See, again, Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, 577-578 [389]-[391] (Flick J, dissenting, but not relevantly).

[211] See, again, Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 [12]-[24]; Ceerose [2023] NSWCA 215 [41], [44]-[48].

[212] Outline of submissions for Mr Quail dated 14 September 2022 at [10]-[11].

[213] (2013) 230 FCR 431 at [44], [50].

[214] Donohue [16] and [17]. See [44] above of this judgment.

[216] Donohue [17]. See [44] (fn 61) above of this judgment.

[218] [2019] FCAFC 6; (2019) 268 FCR 114.

[222] See [32] (fn 19) and [39] above of this judgment.

[223] [2018] VSC 222 [38]. See [32] above of this judgment.

[224] Kheir v Secretary to the Department of Justice and Regulation [2019] VSC 76 (Richards J); Kheir v Robertson & Ors [2019] VSC 422 (McDonald J); Kheir v Robertson & Ors [2019] VSCA 229.

[225] [2019] VSCA 229 [17].

[226] See [14] and [15] of this judgment.

[227] See again [32] (fn 19) and [39] above of this judgment.

[228] [2015] HCA 50; (2015) 258 CLR 173.

[230] R v Anderson; ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 at 201-202, 204-205; Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 51 FLR 325 at 333-335; [1981] FCA 41; 34 ALR 639 at 646-647.

[231] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206.

[232] (1979) 2 ALD 634 at 642.

[233] Drake v Minister for Immigration and Ethnic Affairs [No 2] (1979) 2 ALD 634 at 640.

[234] [2015] HCA 50; (2015) 258 CLR 173, 198 [68]-[69].

[235] [1981] FCA 41; (1981) 51 FLR 325 at 34; [1981] FCA 41; (1981) 34 ALR 639 at 647.

[238] See [44] and [47] above of this judgment.

[239] T229-230. See also the Secretary's written submissions on policies dated 10 October 2022.

[240] See [30]-[32], [34], [36] and [38] above of this judgment.

[241] See [32] and [39] above of this judgment.

[242] See esp Donohue [29], as referred to in [45(c)] above of this judgment.

[243] See [64]-[73] above of this judgment.

[244] See [73] above of this judgment.

[245] See and compare Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 105 [21]-[24] (Bell J); Engebretson v Bartlett [2007] VSC 163; (2007) 16 VR 417, 429 [63] (Bell J) and see also and compare my judgment in Kinnersley v Johnson [2018] VSC 752 [31], [40] (fn 53).

[246] See [40] above of this judgment.

[247] [2012] HCA 61; (2013) 249 CLR 332.

[248] [2018] HCA 30; (2018) 264 CLR 541.

[249] [2012] HCA 61; (2013) 249 CLR 332, 367 [76]; cf Donohue [70].

[250] [2018] HCA 30; (2018) 264 CLR 541, 550-551 [10]-[11].

[251] [2012] HCA 61; (2013) 249 CLR 332 at 367 [76].

1. [252] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 230.

[253] Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at 364 [68].

[254] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 230.

[255] Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at 376 [108].

[256] (1990) 170 CLR 1 at 35-36.

[257] [2018] HCA 30; (2018) 264 CLR 541, 564 [51]-[52], citing Brennan J in Quin (1990) 170 CLR 1 at 36. See also, more generally, SZVFW [2018] HCA 30; (2018) 264 CLR 541, 564-567 [51]-[60] (Gageler J). Cf Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15, [31] (Gordon J, sitting alone).

[258] [2020] HCA 46 [26].

[259] Citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at 551 [11], 564 [52], 575 [89] and 586 [135].

[260] See [40] above of this judgment.

[261] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 616 [67], 623 [91]-[92]; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, 185 [24]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, 524 [39]; Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215 [61]; VWA v Jamali [2023] VSCA 240 [93].

[263] See my judgment in Jordan v Kotsios [2022] VSC 332 at [27]-[29] and the cases there cited, especially Maimonis v Bourke [2019] VSCA 302 [51]. See also VWA v Jamali [2023] VSCA 240 [62(d)].

[264] See [7] above of this judgment. See also Donohue at [26], quoted in [44] above of this judgment.

[267] T121. See also at T79. As to those requirements, Mr Albert again relied on CZBP, but see my comments on that case in [90] above of this judgment.

[270] [2012] FCA 940; (2012) 206 FCR 494.

[272] [2012] FCA 940; (2012) 206 FCR 494, 502 [25]-[27].

[273] [2012] FCA 940; (2012) 206 FCR 494, 502 [29], 561-2 [282], 563 [291].

[276] See Re Minister for Immigration and Ethnic Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212, 226 [48], 227 [55]; Sherlock v Lloyd [2010] VSCA 122; (2010) 27 VR 434, 444 [43]; Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362, 376-384 [43]-[60] (Kenny J); 388-389 [91]-[92] (Rares J); Colquhoun v Capital Radiology (2013) 29 VR 296, 301-303 [25], 309 [53]; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 499-500 [49].

[277] Public Service Board (NSW) v Osmond (1986) 159 CLR 656.

[278] See Aronson, Groves & Weekes, Judicial Review of Administrative Action and Government Liability, Law Book Company, 2022, [3.100] (last sentence); G Hooper, 'The Rise of Judicial Power in Australia: Is there now a culture of justification?' (2015) 41 Monash University L Rev 102.

[279] [1980] FCA 85; (1980) 31 ALR 666, 685-686.

[280] See [104] above of this judgment.

[281] See [105] above of this judgment.

[282] See [7] above of this judgment. See also Donohue at [26], quoted in [44] above of this judgment.

[284] See [33], [35] and [58]-[59] above of this judgment.

[285] See [37] above of this judgment.

[286] Donohue [29], quoted in [44] of this judgment.

[287] It is true that in Donohue, the decision-maker had also written a separate letter dealing with Mr Donohue's complaints in more detail, but this was not determinative of the conclusion reached by Niall JA.

[288] [2015] HCA 50; (2015) 258 CLR 173, 185 [25]. Emphasis included in original. The only other member of the Court in Plaintiff M64/2015, Gageler J, agreed in the result, substantially for the reasons given by French CJ, Bell, Keane and Gordon JJ: [2015] HCA 50; (2015) 258 CLR 173, 196 [62].

[289] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 278, 282.

[290] Migration Act 1958 (Cth), s 66(2)(c), (3).

[291] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 605-605 [31]-[33], [66], [73].

[292] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 175 [27]; see also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-352 [82]-[84].

[293] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

[294] [2023] NSWCA 215 at [51], [62]-[69]. See also and compare VWA v Jamali [2023] VSCA 240 [97].

[298] [1774] EngR 2; (1774) 1 COWP 63 at 65; [1774] EngR 2; 98 ER 969 at 970.

[299] See McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602, 619-620 [60] (Allsop CJ).

[301] [2020] FCAFC 223; (2020) 283 FCR 602.

[302] [2021] FCA 1234 (Rangiah J), especially at [47]. As Mr Albert disclosed, the judgment of Rangiah J was overturned on appeal, partly as a result of the intervening judgment of the High Court in Commonwealth of Australia v AJL20 (2021) 273 CLR 43: See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52 (Jagot, Mortimer and Abraham JJ) [6]-[9] and generally.

[303] [2022] FCA 418 (SC Derrington J).

[304] Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54, 97 [176] (Black CJ, Sundberg and Weinberg JJ), as cited by Allsop CJ in McHugh [2020] FCAFC 223; (2020) 283 FCR 602, 619 [60].

[305] (2021) 273 CLR 43, 89 [93].

[306] For the onus on habeas applications, see Liversidge [1941] UKHL 1; [1942] AC 206 at 245-246; Trobridge [1955] HCA 68; (1955) 94 CLR 147 at 152; Plaintiff M47/2018 [2019] HCA 17; (2019) 265 CLR 285 at 299 [39]; McHugh [2020] FCAFC 223; (2020) 283 FCR 602 at 608 [5]. For the onus in judicial review applications where mandamus is sought see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 616 [67], 623 [91]-[92]; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at 185 [24].

[307] See generally and compare East Melbourne Group Inc v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605, 661-662 [228] (Ashley and Redlich JJA). See also Plaintiff M64/2015 [2015] HCA 50; (2015) 258 CLR 173, 185 [25].

[308] Ceerose [2023] NSWCA 215 [63]-[69]; VWA v Jamali [2023] VSCA 240 [97].

[309] Plaintiff M64/2015 [2015] HCA 50; (2015) 258 CLR 173, 185 [25] (quoted in [113] above of this judgment).

[311] [1959] HCA 8; (1959) 101 CLR 298.

[312] See J D Heydon, Cross on Evidence, 9th Edition, 2013, [1215].

[313] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308, 312, 320-1.

[314] Donohue [32], quoted in [44] of this judgment.

[315] See and compare ECE21 v Minister for Home Affairs [2023] FCAFC 52 [7], especially the last sentence of that paragraph, which is reproduced and emphasised in [74] above of this judgment.

[316] See [91], [96]-[97] above of this judgment.

[317] See [67] and [68] of this judgment and the cases there cited, especially Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 266, 292. Compare SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146, 150 [19]-[24] (Siopis, Perram and Davies JJ). See also Donohue [33], as referred to in [45(g)] above of this judgment.

[318] See [39] above of this judgment.

[319] Affidavit of Ms Westin affirmed 23 February 2022, [5]: CB 306.

[321] See [3] above of this judgment.

[322] Mr McPadden's further amended originating motion filed 24 June 2022: CB 112-114.

[323] Outline of submissions for Mr McPadden dated 14 September 2022 [40].

[325] Ibid [43(a), (b), (c) and (d)].

[327] Citing the plaintiffs' common written submissions [7], [13].

[328] Outline of submissions for Mr McPadden dated 14 September 2022 [44].

[329] See [32] above of this judgment.

[331] See p.3 of Mr McPadden's second EMD application (dated 18 August 2020): CB 322, SCB 13.

[332] See [125] above of this judgment. Compare [129] above of this judgment.

[334] Ms Westin's affidavit was filed pursuant to directions given by Judicial Registrar Keith in this McPadden proceeding on 28 October 2021.

[340] CB 313; SCB 8. It appears that these comments were made by Mr Steven Comte, as the then Acting General Manager, Loddon Prison and Middleton: CB 332; SCB 27.

[341] See and compare [14] above of this judgment.

[342] See [134] above of this judgment.

[343] See [31] above of this judgment.

[344] A copy of this early document appears at CB 90 within Mr McPadden's material, and another copy appears within Mr Wells' material at CB 207. It is dated Saturday 21 March 2020, ie very early in the COVID-19 emergency period. On p 13 of an affidavit of Mr McPadden affirmed on 26 March 2021, it is described as a notice issued to prisoners at Margoneet Prison (not Middleton Prison) (CB 64). It is similarly described on p 13 of a similar affidavit of Mr Wells affirmed on 8 March 2021 (CB 193). This document was discussed with Mr Crosthwaite at the oral hearing: T197-201.

[345] See, for example, the reference to being 'accommodated in a restrictive regime unit' in the letter dated 24 August 2021 which conveyed the decision made on Mr McPadden's third EMD application: CB 126-127; SCB 28-29.

[346] And it seems that Mr McPadden was granted EMDs for 20 March 2020 and 22 April 2020 under the automatic process: see the third paragraph of the letter dated 24 August 2021 from Ms Jenny Hosking to Mr McPadden reproduced below. See also the fifth paragraph of the letter dated 18 January 2022 from Mr Andrew Reaper to Mr McPadden at CB 130, referred to at [186] below of this judgment.

[347] Outline of submissions for Mr McPadden dated 14 September 2022 [33], [43(a)].

[348] See [127(a)] above of this judgment.

[349] See [125] above of this judgment. But note again that, at the oral hearing, counsel for Mr McPadden appeared to retreat from ground 1(b): see [129] and [139] above of this judgment.

[350] Defendant's outline of submissions in McPadden dated 26 September 2022 [45]-[47].

[355] Defendant's outline of submissions in McPadden dated 26 September 2022 [47].

[356] See and compare Ceerose [2023] NSWCA 215 [66].

[357] And note, again, that counsel for Mr McPadden did not refer to this point in his oral submissions, appearing thereby to have abandoned it: see [129] and [139] above of this judgment.

[358] Compare Mooney v James [1948] VicLawRp 57; [1949] VLR 22, 28 (Barry J); Mok v Minister for Immigration (No 1) [1993] FCA 545; (1993) 47 FCR 1, 22; JD Heydon, Cross on Evidence, 9th ed [17160], esp at p 510.

[359] CB 36, 38, 40, 42, 44; SCB 23-27.

[360] See the first paragraph of the decision letter dated 24 August 2021 from Jenny Hosking to Mr McPadden: CB 126-127; SCB 28-29. The terms of that decision letter are set out below.

[361] Outline of submissions for Mr McPadden dated 14 September 2022 [37]. Footnotes omitted.

[363] This way of describing the second question treats both grounds (1)(a) and (b) as remaining alive, despite Mr McPadden's apparent abandonment of ground (1)(b): see [129] and [139] above of this judgment.

[364] Outline of submissions for Mr McPadden dated 14 September 2022 [40], [44], [45].

[366] Secretary's outline of submissions dated 26 September 2022 [49(c)].

[370] As indicated below, my view is that Ms Westin was the relevant decision maker. At the oral hearing counsel for the Secretary (Ms Fitzgerald) initially submitted (T232-233) that the last paragraph of the letter of 24 August 2021 should be read as emanating from Ms Hosking, as a sympathetic expression of hers arising from an ongoing welfare relationship with Mr McPadden, rather than as emanating from Ms Westin as the decision-maker. After discussion, however, Ms Fitzgerald was less adamant about that: T234-235.

[371] See [128] above of this judgment, referring to the outline of submissions for Mr McPadden dated 14 September 2022 [44].

[372] Outline of submissions for Mr McPadden dated 14 September 2022, [45]-[47]. Emphasis by italics in original. Emphasis by bold type added by me.

[373] Citing Omar v Minister for Home Affairs [2019] FCAFC 188; (2019) 272 FCR 589 at [43].

[375] Citing Nathanson v Minister for Home Affairs [2022] HCA 26 at [33] per Kiefel CJ, Keane and Gleeson JJ.

[376] But see [30]-[32] and [39] above of this judgment.

[378] Citing Donohue at [66]. However, the observation was not irrelevant: see Donohue at [65].

[379] It seems to me that, at the time of filing his pre-trial written submissions, Mr McPadden was intending to say that Ms Hosking, not Ms Westin, was the decision-maker on the third EMD application.

[380] Citing SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146 at [20].

[381] Citing Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [111]. Note: as mentioned above, this was a reference to the dissenting judgment of Gleeson J.

[382] Citing the same judgment (ie the dissenting judgment of Gleeson J) at [114].

[383] Citing Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [10].

[384] Citing Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3].

[386] See [157] above of this judgment.

[391] Affidavit of Melissa Westin affirmed 22 February 2022: CB 421-422.

[395] Outline of submissions for Mr Wells dated 14 September 2022, [17].

[399] Citing Donohue at [19] (but note that, in Donohue at [19], Niall JA was merely recording the parties' submissions); and citing also, among other cases, Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, 578 [389] (Flick J). See the references to SZQRB, and to the requirements of procedural fairness generally, at [89]-[90] (including footnotes 206 and 210) above of this judgment.

[400] Citing Dudley at [15]. But see below.

[401] Outline of submissions for Mr Wells dated 14 September 2022, [22].

[404] [2022] HCA 26; (2022) 96 ALJR 737, 751 [51]. Nathanson was a case about whether a breach of procedural fairness needed to be material before it could justify the setting aside of a decision on judicial review. Gageler J agreed with the majority that it did need to be material.

[405] Outline of submissions for Mr Wells dated 14 September 2022, [25].

[407] I note that the particular passage did not appear, either, in the decision letters for the two decisions that are no longer in question.

[408] It is evident that the prior grant of an EMD to Mr Wells had occurred pursuant to the automatic process.

[410] CB 224-225. See also at [31] and [39] above of this judgment.

[411] See [150] above of this judgment and the footnotes thereto.

[415] Being an affidavit affirmed on 23 February 2022: CB 421-422.

[419] See [151]-[153] above of this judgment.

[422] Affidavit of Andrew Mariadason, a solicitor acting for the Secretary, affirmed and filed on 8 April 2022 [6].

[424] Outline of submissions for Mr Quail dated 14 September 2022 [1].

[425] See page 3 of Mr Quail's EMD application dated 5 July 2021: CB 487.

[426] See the address to which the relevant delegate, Ms Westin, sent her decision letter of 27 October 2021 relating to Mr Quail's EMD application: CB 492-493; SCB 67-68.

[427] Document 1 in the bundle of documents exhibited to the affidavit of Andrew Mariadason of 8 April 2022: CB 483-491; SCB 58-66.

[428] See [39] above of this judgment.

[431] Document 2 in the bundle of documents exhibited to the affidavit of Andrew Mariadason of 8 April 2022: CB 492-493; SCB 67-68.

[432] See [15] above of this judgment.

[433] See [16] above of this judgment.

[435] See [15] and [16] above of this judgment.

[436] See [17] above of this judgment.

[437] Outline of submissions for Mr Quail dated 14 September 2022 [6]-[9].

[439] Citing Corrections Act 1986 s 47(2); Castles v Secretary to the Department of Justice and Ors [2010] VSC 310 at [35].

[440] Citing Knight v Hastings [2010] VSC 99 [116].

[441] Citing, principally, Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180, 207 [83].

[442] Citing, principally, NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, 526 [172].

[444] Outline of submissions for the Secretary dated 26 September 2022 [14]-[21].

[447] [2010] VSC 99.

[449] Outline of submissions for the Secretary in Quail dated 14 September 2022 [17]-[18]. Note the contrast with the right given by s 47(1)(e) which grants remanded prisoners the right to wear suitable clothing owned by the prisoner.

[453] See and compare Donohue [31].

[454] For a similar observation, see [153] above of this judgment, and note in particular the reference there to Ceerose [2023] NSWC 215 [66].

[455] Outline of submissions for the Secretary in Quail [21].

[457] Especially at [104]-[114] above of this judgment.

[458] Compare Plaintiff M1/2021 (2022) 96 ALJR 497, 509 [25].

[462] (2014) FCAFC 105.

[463] See [90] above of this judgment.

[464] Outline of submissions for Mr Quail dated 14 September 2022 [13], citing Dudley [45], [89].

[465] At [100]-[102] above of this judgment.

[466] Outline of submissions for Mr Quail dated 14 September 2022 [14]-[16] (footnotes omitted).

[467] Secretary's outline of submissions in Quail [23]-[29].

[476] See [233] above of this judgment.

[478] Affidavit of Laura D'Amico, a solicitor acting for the Secretary, affirmed on 7 April 2022 and filed on behalf of the Secretary, [4]: CB 382-384.

[480] Affidavit of Mr Thomas affirmed on 2 March 2021, page 13/14: CB 143.

[481] T137-138. And see the index to the bundle of documents comprising exhibit 'LD-1' to the affidavit of Laura D'Amico affirmed 7 April 2022: CB 386.

[485] See[145]-[149] above of this judgment.

[488] Outline of submissions for Mr Thomas dated 14 September 2022.

[490] As mentioned in [250] above of this judgment.

[491] Outline of submissions for Mr Thomas dated 14 September 2022 [1].

[492] Citing Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [37].

[493] Citing SZNK v Minister for Immigration and Citizenship [2010] FCA 651 at [38]-[39].

[494] See [59]-[86] above of this judgment.

[495] See Migration Act 1958 ss 65 and 66 and Acts Interpretation Act 1901 (Cth) s 25D.

[498] See especially [31], [39] and [204]-[209] above of this judgment.

[499] [2021] VSC 567; (2021) 66 VR 403, 420 [37].

[500] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

[501] Arronson, Groves and Weeks, Judicial Review Administrative Action and Government Liability, 2022 [5.260]. See also Grujovska v Brand [2023] VSCA 59 at [24] and the cases referred to in footnote 17 thereto.

[504] See [103] above of this judgment.

[505] See and compare [157] and [180] above of this judgment.