The Herald and Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329

5. Mr Papps is a journalist who describes himself as a "senior investigative journalist" employed by the plaintiff to write for the "Herald Sun" newspaper. The "Herald Sun" has a daily readership of approximately 1.5 million. In an affidavit, Mr Papps said that he is engaged "to pursue stories of significance" by his employer and is provided with resources in order to research relevant stories. For several months in late 2000 Mr Papps worked on an article which was eventually published on page one and page four of the "Herald Sun" on 13 December 2000. The article related to investigations into the role and activities of a former police sergeant named Kerry McNamara. In the article Mr Papps alleged that McNamara, whilst a member of the police force, had assaulted members of the public, stolen money and drugs and had been dismissed from the force without any criminal charges being laid against him.

8. Soon after publication of the article a handwritten letter purporting to be from Mr Tom Scarborough, and dated 13 December 2000, was delivered to the journalist. Although counsel for the Commissioner submitted that it had not been proved that the letter was written by Scarborough I will assume that to be so for the purpose of my reasons and it seems to me that in any event there is sufficient evidence to point to it being so, both directly and by inference, and it is appropriate that I make that assumption.

11. In the letter Scarborough said that he was serving a sentence of 15 years' imprisonment for shooting a police officer in February 1999. The police officer who was shot was Senior Constable Jason Streigher. Scarborough said in his letter that McNamara was partly responsible for the shooting. Scarborough said that he had made a statement to the Police Ethical Standards Department complaining about McNamara and that they had "swept it under the carpet". Scarborough concluded:

"If you'd like more information you can visit me at Barwon Prison."

15. Papps wrote to the Correctional Services Commissioner requesting an interview with Scarborough, asserting that there was a substantial public interest in such an interview as Scarborough wanted to expose corrupt practices in the police force and the inadequacy of the handling of complaints. He was requested to provide further information before a decision could be made and in response to that request from the Director of Sentence Management the solicitor for the plaintiff wrote to the Commissioner confirming that the information which was being investigated was with respect to corrupt practices of McNamara and the inadequacies of the handling of complaints by the Police Ethical Standards Department. The solicitor added that Scarborough "has also offered to provide information concerning corrupt police officers and the deficiencies of the Ethical Standards Department". The writer of the letter concluded that "this is a subject matter of intense public importance and the subject matter which Mr Scarborough himself has offered to discuss." The solicitor, on instructions, also wrote to the Secretary of the Department of Justice, the Minister for Corrections and the General Manager of Barwon Prison seeking authorisation.

18. In his letter the solicitor observed that the interview would not necessarily lead to publication of anything said by the prisoner; the value of his information had to be evaluated. The solicitor submitted that "this is a case in which the prisoner's right of freedom of expression must outweigh any perceived public interest in denying Mr Scarborough the right to free speech on this topic". The solicitor referred to and cited a passage from one of the judgments in R v Secretary of State for the Home Department; Ex parte Simms and Anor[1]

21. By letter dated 5 February 2001 the Correctional Services Commissioner, Penelope Jane Armytage, wrote to the plaintiff in the following terms:

"My office has developed a media protocol that includes amongst other criteria; that media requests not considered in the best interests of the prisoner or which may compromise safety or well-being will not normally be considered; or where the nature of the request is considered to be inappropriate and where there is the potential to embarrass, injure or emotionally upset members of the community, victims or their families. After careful consideration of your request I advise as follows: Mr Scarborough was sentenced to a substantial term of imprisonment at the Melbourne Supreme Court in June 2000 after being convicted of a number of serious charges. The court case involving Mr Scarborough was one of a high profile nature, attracted a great deal of publicity and was well documented in the print media. Whilst taking into account issues raised in your request, I am concerned that there is the potential for victims of crimes committed by Mr Scarborough, to be further distressed should other comments/allegations be made by Mr Scarborough in relation to the subject matter. Further, I am not persuaded that the nature of this request if granted would be in the best interests of Mr Scarborough, who has recently commenced a lengthy period of imprisonment. Given that the thrust of your request may impact on the above criteria, I am unable to grant your request."

25. The plaintiff asserts that in refusing to authorise the visit the Commissioner failed to take into account the following relevant considerations:

"(a) the fact that their refusal to grant the visit impermissibly infringed Mr Scarborough's fundamental right to communicate matters of public importance to members of the public; (b) granting the visit could advance the public interest in the purity of public administration; (c) granting the visit could advance the public interest in providing more information to the public about the alleged corrupt practices of a former police officer; (d) granting the visit could advance the public interest in providing more information to the public about the Police Ethical Standards Department's investigation into the former police officer's activities; (e) granting the visit could advance the public interest in providing more information to the public about the Police Ethical Standards Department's investigations generally; (f) granting the visit could advance the public interest in providing more information to the public about the alleged corrupt practices in the police force generally; and (g) the fact that Mr Scarborough invited the plaintiff to visit him at Her Majesty's Prison Barwon."

29. Additionally, the plaintiff contends that in refusing to authorise the visit the Commissioner took into account a number of factors which were irrelevant considerations, as follows:

"(a) The dictates or requirements of a `Media Protocol' said to have been developed in the Office of the Defendant; (b) The potential for victims of crimes committed by Mr Scarborough to be further distressed by comments or allegations that he might make `in relation to the subject matter'; and (c) whether the request, if granted, would be in the best interests of Mr Scarborough."

Additional grounds for the application were that there was "no evidence of any kind" to justify the decision and that the decision was so unreasonable that no reasonable decision-maker in the position of the Commissioner would have made it.

34. In his affidavit Mr Papps deposed that there was "a powerful public interest in the purity of public administration" and that the public had a legitimate interest in being informed about illegality, impropriety, sharp practice or wrong-doing in the public sector especially in the context of the Police Force. He contended that there was a real possibility that Scarborough would be able to shed light on a number of relevant matters but that at this stage he was merely to be interviewed. It was intended that he would be interviewed for the purpose of assessing the value of the information that he had to provide.

37. The plaintiff asserts that the decision denies it the opportunity to obtain information of real public interest which it might then disseminate to the readers and, as a result, it is a person affected by the decision.

40. By instrument of delegation dated 5 March 1998, pursuant to s. 8 of the Corrections Act 1986 (hereinafter referred to as "the Act"), the Commissioner was delegated a number of the powers and functions of the Secretary to the Department of Justice, one such power being the power under s. 33(g) to authorise a person to visit a prison.

43. In her affidavit sworn 24 May 2001 Ms Armytage deposed that Scarborough was received into custody on 25 February 1999 upon being arrested and charged with 13 offences, including three counts of attempted murder, two of assault and one of recklessly causing serious injury and two counts of recklessly discharging a firearm. He pleaded guilty to all offences. On 26 June 2000 Teague J sentenced Scarborough to 20 years' imprisonment with a non-parole period of 15 years and his Honour summarised the offences as being a series of random violent episodes over a period of a week, several of which could be described as road rage incidents. In one incident Scarborough smashed the windows of a vehicle, threatening the driver; in the second, he fired a hand gun at another vehicle; in a third incident he fired six shots at a vehicle (striking the driver) and then with a second hand gun fired further shots, three of which also struck the vehicle, in addition to the six earlier shots which had done so. On 21 February 1999, in a separate incident, Scarborough fired shots at Mr Fong Nguyen, causing injuries to his chest, abdomen, arm and leg and also shot another occupant of the car in the leg and foot. On 23 February 2001 when apprehended by police officers he fired shots at those police officers, shooting Mr Streigher in the chest before being arrested.

46. There were, in all, nine victim impact statements which were filed in the Supreme Court. His Honour described Scarborough's days of crime as being "a few days of explosive violence" which his Honour said "have materially changed for the worst the lives of those nine men and women".

49. The media protocol to which Ms Armytage referred in her letter of 5 February 2001 was in a draft form (dated November 2000) but had already been distributed within the Department. The document which was entitled "Media Contact: Guidelines and Procedures Protocol" stated, expressly, that:

"Each request for media contact will be considered on its merits."

"In keeping with the Department of Justice's vision for a safe and fair Victoria, public confidence in the criminal justice system and the correction system must be maintained and enhanced through a commitment to educate and inform. The Victorian corrections system is committed to openness and accountability and is aware of its responsibility to be frank and honest with all of its stakeholders, including the media. The Department of Justice's goal of accountability and education is based on the belief that accurate information will contribute to informed and balanced debate about the prison system. These protocols are based on the belief that positive promotion of the correctional system and an enhanced understanding of the realities of imprisonment are best achieved by a straightforward approach - one that is consistent and not confined to responses primarily of a reactive nature. The protocols are intended to outline procedures and conditions for access to custodial and community correctional centres, offenders under the Department's control (whether in custody or under community supervision), employees of the organisation and its contract services providers."

57. Under the heading of "Principles" the protocol stated:

"Access to facilities and programs will be granted to both media and non-media bodies in cases where: [diamond] the rights of victims and their families are maintained [diamond] information provided is accurate, balanced and timely [diamond] the public may become aware of the work undertaken in the correction system [diamond] the order and safety of any institution is not compromised [diamond] the achievements of staff and the positive contributions of offenders can be highlighted [diamond] the offender does not receive publicity or receive financial compensation or anything of value for interviews with the news media [diamond] it is in the best interests of the offender and will not compromise his/her safety or well-being [diamond] the positive aspects of the corrections industry in Victoria can be highlighted."

61. The protocol identified a range of issues, activities, policy announcements and areas of operation for which media responses would be the primary responsibility, respectively, of the Minister, the Premier, the Secretary of the Department of Justice, the Deputy Secretary, the Correctional Services Commissioner and others. A section of the report dealt expressly with media protocol for visits to prisons, and stated that all such requests to visit prisoners by the media must be directed to the Commissioner. In a section dealing with interviews with prisoners the protocol stated:

"When the media request permission to interview prisoners in order to provide a prisoner's perspective of prison life, the prisoners will be given the opportunity to volunteer for interviews. However, there is a need to take into account the potential for victims of crime to be traumatised by prisoners appearing on television, radio or in the newsprint media. Prisoners convicted of sex offences, violent offences or other high profile crimes as so determined by OCSC will not be considered for interview."

65. The protocol then listed a number of conditions which would apply to any visit, which included that the prisoners must volunteer to be interviewed; the interview must be in the best interests of the prisoner and not likely to result in an adverse impact on the prisoner or the prisoner's emotional stability; they were not to be interviewed about their crimes and about their court cases; the prisoners were to be briefed on the context of the interview and a written consent was to be provided by them. The protocol dealt with a range of other matters which are not relevant for present purposes.

68. A guideline in the media protocol states that:

"Due consideration must be given to the purpose of the media contact, the proposed approach, appropriate sensitivities toward the victims of crime, and responsibilities of persons to be interviewed prior to any decision to approve the media contact. These must be balanced against the need to ensure that daily operations are not unduly disrupted and that the continued good order of each prison is maintained. Prior to a final decision being made the Commissioner will liaise with the press secretary of the Department of Premier and Cabinet. The Commissioner will advise the provider of the decision and the specific arrangements to apply in each occasion."

72. The Commissioner gave evidence before me and told me that a contact was made with the press secretary to the Department of Premier and Cabinet but she was duly advised that it was the view of the responsible ministers that it was a decision to be taken by herself.

75. In her affidavit Ms Armytage set out a range of matters which she said she took into account prior to making her decision. She agreed that the protocol stated that an interview with a person such as Mr Scarborough (whom she agreed was imprisoned for "violent offences or other high profile crimes", as referred to in the protocol) "will not be considered for interview". However, notwithstanding the apparent blanket approach suggested by those words Ms Armytage told me that that did not express either the general policy or the approach which was adopted in this or any similar case. She said that in each instance any such request would be treated on its merits. She said that that is what she did in this case.

78. Ms Armytage said she had regard to a range of considerations including the welfare of other prisoners, the security and good order of the prison and similar factors, and said that she took into account the fact that Scarborough was, at his own request, in "protection", which involved his segregation from the main prison population in order to ensure his physical safety. Ms Armytage said that at the time of this decision she knew that the decision to place Scarborough into protection and to keep him there was a decision based on reports that he had substantial reasons to fear that he would be the subject of physical attacks from other prisoners.

81. Ms Armytage said that in making her decision, as conveyed in her letter to the plaintiff's solicitor, she took into account what she saw as being the probability that any media exposure of Scarborough's views would increase his profile in the prison community. In her affidavit, the Commissioner added:

"(a) I formed the view any media exposure was likely to result in an increased risk to his safety and security within the prison because, if any publicity were given by the media to the fact of Mr Scarborough providing information about the matters raised by Mr Papps in his affidavit, the result would be to highlight Mr Scarborough's circumstances in prison and attract notoriety within the prison population. (b) I formed the view that any such notoriety would probably stimulate suspicions in other prisoners about Mr Scarborough's motives in speaking out about matters involving the police and make Mr Scarborough a greater target for physical attack by other prisoners. (c) The increased risk of attack on Mr Scarborough would in turn increase the risk of instability in the prison unit in which Mr Scarborough has been placed and intensify the difficulties of prison management."

85. In making her decision Mr Armytage also deposed that she took into account the interests of the nine victims, the offences having been committed relatively recently as at the time of the request for an interview. She said that she understood that Scarborough's victims had been extremely distressed by their involvement and that they could suffer further emotional disturbance if his concerns were agitated in the public arena.

88. In addition, Ms Armytage deposed that she had taken into account the fact that Scarborough could raise his concerns about the Police Ethical Standards Unit with the Ombudsman. She deposed that she concluded that "the public interest in exposing any abuse of power by public officials and any right of Mr Scarborough to freedom of expression" were outweighed by the need to preserve his safety and the security and good order of the prison, and to preserve the interests of the victims.

91. In her evidence before me, Ms Armytage conceded that she had made no contact with any of the victims to see whether they did, in fact, oppose an interview being granted in these circumstances. Senior Constable Streigher was subpoenaed to give evidence (a quite unnecessary imposition on him, in my view, since, had the plaintiff's solicitor raised the matter with the defendant's solicitor, the matter could have been the subject of discussion and agreement between the parties). Having been brought to the court Mr Streigher confirmed, without it becoming necessary that he give evidence, that he would not oppose the interview taking place.

94. Section 21(1) of the Act provides:

"The Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of prisoners."

98. By s. 37(1), the Act permitted the relatives or friends of a prisoner to visit the prisoner and ss. 40(1) and 41(1), respectively, permitted a lawyer and a member of the police force to enter the prison and to visit a prisoner without there being any requirement for the permission to be given by the Governor. Visits by relatives or friends did require such permission. Section 47 of the Act specified that in addition to any other rights, including any common law rights, the prisoner had:

"(k) the right to receive at least one visit which is to last at least half an hour each week under s. 37."

102. Pursuant to s. 17(1) of the Act the Secretary of the Department may exercise the powers and functions of a Governor and by s. 8(1) the Secretary may delegate to the Commissioner the functions, powers, duties and responsibilities of the Secretary, and the Secretary had delegated the Secretary's powers and functions under s. 17 to the Correctional Services Commissioner.

106. There were a number of preliminary issues raised at the outset of the proceedings. In the first place, in her affidavit Ms Armytage sought to expand on the reasons for her decision beyond those which were contained in the letter to the solicitor for the plaintiff which I have earlier quoted. Mr Houghton QC, senior counsel for the plaintiff, submitted that it was not permissible for the Commissioner to expand upon or add any grounds to those which had been stated in her letter dated 5 February 2001.

109. In submitting that I ought not have regard to the expanded reasons for decision discussed in the affidavit and evidence of Ms Armytage, and ought confine consideration of the application to those reasons for decision which were set out in the letter of 5 February 2001, Mr Houghton referred to a number of decisions of English appellate courts: R v Tower Hamlets LBC, Ex parte Chetnik Developments Ltd[2]; R v Westminster City Council, Ex parte Ermakov[3]; R v The Licensing Authority for Goods Vehicles for the Metropolitan Traffic Area; Ex parte B.E Barrett Ltd[4]. In my opinion, none of those decisions establishes a proposition of the breadth, or with the application to the present case, for which Mr Houghton contended.

112. It is important to note, at the outset, that in all three cases the question whether further evidence should be received was substantially influenced by the fact that the relief sought was discretionary, and in none of the cases was an absolute prohibition of the receipt of such further material recognised.

115. In the Barrett case Lord Goddard CJ rejected an attempt by the statutory tribunal, which had rejected an application for a goods vehicle licence, to provide to the court evidence that contradicted the reasons given to the applicant. Thus, His Lordship held that it would be wrong for the court to permit the tribunal by affidavit "to try to explain that the tribunal... meant something different from what it said". His Lordship noted the undesirability of such a course, given that a litigant had to decide whether or not to seek judicial review based on the reasons which were given. In the case before me, however, the Commissioner does not seek to resile from the reasons given, but to specify additional considerations to which she also had regard. Furthermore, it was not contended by Mr Houghton that the additional reasons which were set out in the affidavit would have had any bearing on the plaintiff's decision to seek judicial review. Thus, the policy considerations addressed by Lord Goddard in Barrett do not apply in the present case.

118. In the Chetnik case the attempt in the House of Lords by the local authority to rely on additional grounds for its decision came after the Court of Appeal had considered and rejected the basis for the decision on the grounds which had been expressed at the time of the decision. Lord Bridge held that what the Council was attempting to do was to advance reasons for the correctness of its original decision which were not the reasons which it advanced at the time. In particular, the Council contended that it should not be bound by the terms of its own solicitor's letter which advised the original grounds to the party. Lord Bridge (with whom the other members of the court agreed) held that it would be absurd to permit the Council to take that course when its opponent had brought the proceedings on the basis of the reasons given, and had shown that the decision was wrong. Once again, the discretionary nature of the relief was important to that decision.

121. Finally, the Ermakov decision does not help the plaintiff. In that case a homeless person sought housing relief under the Housing Act 1985. That Act provided expressly that the tribunal was obliged to give reasons for its decision in rejecting an application. In this case the decision-maker swore an affidavit stating that the reasons given by him in writing were wrong, in that the reasons given were not in truth the reasons for his decision. He sought to set out what he said was the true reason why the application failed. The Court of Appeal held that the Act required that reasons be given and if either no reasons or wholly deficient reasons were given then the applicant was entitled to succeed in his review of the decision, it having been an unlawful decision. Hutchison LJ, with whose judgment the other members agreed, held that the court could "in appropriate cases" admit evidence to elucidate, or, exceptionally, to correct or add to reasons given, but should be very cautious in doing so. Generally, so His Lordship held, such supplementing should only occur by way of "elucidation, not fundamental alteration; confirmation not contradiction", and held that where the real reasons were said to be wholly different from those stated at the time the court should not permit the additional evidence. Once again , the policy considerations identified by the court included the applicant's need to make decisions as to judicial review based on what reasons had been given to him, and also the discouragement of sloppy decision-making processes, and the likelihood that proceedings for review would be bogged down by requests to cross examine deponents, leading to longer, more expensive reviews. His Lordship emphasised the discretionary nature of the relief sought.

124. In the case before me, counsel for the plaintiff sought, and I granted, a right to cross examine the Commissioner on the contents of her affidavit. Apart from the brief time taken for that exercise no other factors apply to the present case as applied in the Ermakov decision. In particular, the present case is not a review of one of a great many such applications (as was the case with the Housing Act applications). Furthermore, the affidavit, in my view, amounts to an elucidation, not a fundamental alteration to the original reasons.

127. Any policy considerations which might militate against permitting receipt of the affidavit evidence - such as the inconvenience and delay occasioned by permitting such material to be received - must be weighed against other policy considerations. One such consideration is this. The Commissioner contends that the considerations identified in her affidavit were indeed relevant to her decision. Those considerations bear upon important issues of the maintenance of good order and safety (including the safety of the prisoner) in a dangerous prison environment. The question whether the new information is reliable and accurate as to the reasons which actually motivated the decision is a matter which the court can readily assess. If I concluded that these were indeed relevant considerations, and that they had been taken into account at the time but had, for whatever reason, not been identified to the applicant at the time, then there would be an air of unreality if I was to disregard those considerations.

130. Were I to quash the decision without having regard to the additional reasons for decision then a new decision could be taken, this time articulating the additional grounds. It would be even more absurd to make an order of mandamus, by reference to the limited reasons for decision, compelling permission be given for such an interview (as the plaintiff seeks) whilst having no regard for what were regarded by the decision-maker to be weighty considerations which militated against permitting the visit to take place.

133. I note that, as discussed in the decision of the House of Lords in Simms[5], not only was the Minister permitted to file affidavits before the trial judge, setting out what were said to be the problems of discipline which accompanied interviews of prisoners by journalists, the trial judge having expressed his view that he was unimpressed with that evidence the Court of Appeal then allowed the Minister to file additional affidavits. I note, too, that in Craig v South Australia[6] the High Court held that where certiorari was being sought on the ground of jurisdictional error (as is the case here) the court may "subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it".

136. Mr Hanks QC, for the Commissioner, submitted that the Commissioner was quite content to have the case considered on the basis of the reasons for decision which she stated in her letter, but submitted that the affidavit was entirely justified, not only because it merely elucidated the reasons for decision given in the letter, but also by virtue of the fact that one of the bases for challenging the decision was the contention that there was no evidence to support the Commissioner's reasons for decision. The plaintiff had submitted that there could be no basis for the Commissioner's concern about the reaction of victims of the prisoner's crimes, nor any basis for concern about the prisoner's own welfare. If it was to be asserted that the reasons which she did identify had no basis in fact, then, so Mr Hanks submitted, it must be permissible for the Commissioner to produce evidence of the facts to which she did make reference. That contention also seems to me to have force.

139. I conclude, that there are no principles of law nor considerations of policy which in this case would necessitate a refusal to consider the additional evidence which expands or elucidates the reasons for decision of the Commissioner and the facts to which she made reference at the time of reaching her decision. Accordingly, I have had regard to this evidence both in the affidavit and in oral evidence of the Commissioner. The importance, weight or credibility which I attach to the additional material are matters I have addressed in these reasons for decision.

143. Mr Hanks, counsel for the defendant, submitted, at the outset, that the plaintiff had no entitlement to relief by way of certiorari because the Commissioner was neither an inferior court nor a tribunal exercising governmental powers, as suggested by the High Court in Craig v South Australia[7] to be the only circumstances in which certiorari would apply. Whilst not contending that relief by way of a declaration would necessarily be unavailable to the plaintiff to assert that the decision had been erroneous, Mr Hanks submitted that relief by way of certiorari should be regarded as being unavailable to the plaintiff. Mr Houghton, in reply, submitted that Order 56(2) referred to "the court, tribunal or person" with respect to whom proceedings were brought for judicial review, and Order 56(3) spoke of the relief being sought against a judicial or public authority or the holder of a public office. The Commissioner is holder of a public office by virtue of s. 8A of the Act.

146. In Craig, the High Court was not directly concerned with tribunals other than an inferior court, but as to other tribunals which might be amenable to the writ the Court expressly cited as authority R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd[8] and Ridge v Baldwin[9]. In the former case Aikin L.J. held that the writ extended to "any body or persons having legal authority to determine questions affecting rights of subjects, and having the duty to act judicially". In the latter case Lord Reid held that the requirement "to act judicially" was not a prerequisite, or a requirement to be narrowly understood.

149. Mr Houghton contended that the Commissioner's decision affected the "rights" of his client, namely the right to investigate matters of important public interest and the right to expose corruption, but counsel tended to advance his client's claim to relief by arguing that its application was really the assertion of the prisoner's right to free speech, a somewhat more readily demonstrable "right", and no doubt adopted for that reason[10].

152. Having regard to the conclusion I have reached as to the substantive challenge to the Commissioner's decision, it is not necessary that I resolve the question of jurisdiction, but will simply assume, without deciding, that the decision was amenable to judicial review under Order 56.

156. The plaintiff's case was that the decision amounted to jurisdictional error in that the Commissioner identified the wrong issue, asked herself the wrong question, ignored relevant material and relied upon irrelevant material, such factors being identified as constituting error of law amounting to jurisdictional error by the High Court in Craig v South Australia[11]. The primary focus was on what were said to be relevant considerations which had not been taken into account by the Commissioner. Counsel for the plaintiff adopted alternative arguments under this heading.

159. Mr Houghton accepted that for a successful claim to be made for judicial review, on this basis, the plaintiff would have to show that the omitted factor was one which the Commissioner was bound to take into account, that obligation arising expressly or by implication from the subject matter, scope and purpose of the Act[12]. Furthermore, the plaintiff would have to show, as a fact, that the factor was not taken into account and, finally, that if it was not then the failure to have taken it into account could have materially affected the Commissioner's decision.

162. Counsel identified the factors which the Commissioner was bound to take into account as being, firstly, Mr Scarborough's "fundamental right to communicate matters of public importance to members of the public" (also identified as his fundamental right to free expression), secondly, the possibility that such an interview could advance the public interest in the investigation and reporting of matters concerning corrupt practices in the Police Force, the failures of the Police Ethical Standards Department in conducting investigations into corrupt police practices and matters affecting the purity of public administration. A third factor was said to be the fact that the prisoner had invited the journalist to visit him for these purposes.

165. The prisoner's fundamental right to free expression and communication was said to have been recognised in R v Secretary of State for the Home Department; Ex parte Simms and Anor[13].

51 Simms' case concerned an application brought by two prisoners seeking judicial review, by way of a declaration that the decision of the Secretary of State was unlawful in denying to the prisoners visits by journalists for the purpose of publication of the prisoners' complaints that their convictions constituted miscarriages of justice. In making his decision the Home Secretary adopted as policy an interpretation of Standing Orders, which had been promulgated concerning visits to prisoners, which interpretation the House of Lords held to be erroneous. The Home Secretary had adopted the policy that there was to be a total ban on all interviews of prisoners by journalists, except on condition that an undertaking was given not to publish what the prisoner said. The House of Lords rejected the contention that the Standing Orders were themselves ultra vires, but held that the policy of the Secretary was unlawful.

169. The House of Lords held that whilst the fact of imprisonment necessarily constrained the right to freedom of expression which a prisoner might enjoy, an indiscriminate ban on interviews with journalists was unlawful in that it constituted an unjustifiable curtailment of the prisoners' freedom of expression and denied to prisoners access to justice. In the leading judgement of Lord Steyne (with whom Lord Browne-Wilkinson, Lord Hoffman and Lord Millett agreed) his Lordship held that a prisoner retained all civil rights which were not taken away expressly or by necessary implication[14]. The context of the applications, as His Lordship noted, was that there had been a series of miscarriages of justice which had only been exposed by the work of investigative journalists who had interviewed prisoners, necessarily, for the purpose of such investigations.

172. As was noted by Lord Steyne, at 124, the case argued for the prisoners was confined to asserting a right to be interviewed by a journalist on the topic of the prisoners' wrongful conviction. No broader right was being asserted. The issue was whether the written Home Office policy was ultra vires. In a passage of the judgment on which reliance was placed both in the plaintiff's solicitor's letter to the Commissioner and in argument before me, Lord Steyne enumerated the purposes which freedom of expression serves, noting that it was "the lifeblood of democracy", and that it "facilitates the exposure of errors in the government and administration of justice of the country" - the latter being the issue in those appeals . His Lordship continued[15]:

"The value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value. For example, no prisoner would ever be permitted to have interviews with a journalist to publish pornographic material or to give vent to so-called hate speech. Given the purpose of a sentence of imprisonment, a prisoner can also not claim to join in a debate on the economy or on political issues by way of interviews with journalists. In these respects the prisoner's right to free speech is outweighed by deprivation of liberty by the sentence of a court, and the need for discipline and control in prisons. But the free speech at stake in the present cases is qualitatively of a very different order. The prisoners are in prison because they are presumed to have been properly convicted. They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more important function which free speech might fulfil."

176. Lord Steyne frequently noted the limited right which was being asserted, and balanced that against the evidence provided by the Secretary of the disruption to prison discipline which accompanied any such interviews. His Lordship held that the written policy instructions were so wide as to constitute a blanket ban on interviews. Whilst accepting, and taking into account, the essential public interest in maintaining order and discipline in prisons, His Lordship held that the limited purpose for which the interview was requested was consistent with order and discipline and that the right to have an alleged miscarriage of justice investigated was a fundamental or basic human right.

179. Lords Hoffman and Hobhouse, both held that the instruction constituted a blanket ban. Lord Hoffman held that fundamental rights had to be overridden by express words in legislation if they were to be denied, and Lord Hobhouse held that the instruction was so wide as to constitute an unreasonable and disproportionate restraint on the prisoners' rights. Both Lord Hobhouse[16] and Lord Millett[17] expressly noted that it was quite appropriate that the access of journalists to prisoners, generally, should be restricted, Lord Millett observing that it was a natural and intended consequence of a custodial sentence that a prisoner did not have a right to be visited by whomever he liked, as often as he liked.

182. Counsel for the plaintiff contended that this action asserted "Mr Scarborough's fundamental right to communicate matters of public importance to members of the public". It was said that that right was recognised by the House of Lords in Simms.

185. As may be seen, the prisoners' right which was identified in Simms was narrowly stated. It was quite different to the right asserted here, but Mr Houghton submitted that the right to challenge the correctness of a conviction was not more important than the public's right to have corruption exposed.

188. Although the plaintiff advances the human rights of the prisoner in the present case, it is in fact its own rights which it is seeking to have enforced, namely, the right of the media, in the public interest, to investigate stories about corruption and, to that end, to gain access to possible sources of information.

191. Earlier statements of courts often quite narrowly confined the right of prisoners to review managerial or administrative decisions of prison authorities, and emphasised the lack of rights of prisoners. Arguably, later developments in administrative law have seen the adoption of a less structured approach (although the later authorities continue to emphasise the inappropriateness of courts too readily interfering with the management of prisons, and many of the earlier authorities also acknowledged the retention by prisoners of some civil rights): Contrast Flynn v King[18], Bromley v Dawes[19], Vezitis v McGeechan[20], R v Classification Committee; Ex parte Finnerty[21], on the one hand, with McEvoy v Lobban[22], R v Deputy Governor of Parkhurst Prison; Ex parte Leech[23], R v Home Secretary; Ex parte Simms and Anor[24], on the other hand.

194. Counsel for the Commissioner did not seek to argue that the prisoner had no civil rights, and, in particular, had no right to freedom of speech, merely because he was imprisoned. But the defendant submitted that the House of Lords in Simms recognised that such rights were necessarily constrained by the effect of imprisonment. The defendant did not concede that the prisoner had as an aspect of a fundamental right of free speech a right to be visited by the media for purposes of an interview exposing corruption and maladministration in public affairs. No such right had been held to exist in Simms, nor was any decision referred to acknowledging that right. Mr Houghton submitted that, by reference to the "principle of legality" to which I will later refer, the right was to be presumed to exist unless taken away from the prisoner by clear words of a statute.

197. As my discussion of Simms will later note, the parameters of the "right to free expression" are such that even in the general community there must be constraints imposed on its exercise. In a prison context, the constraints will be necessarily more pronounced. Civil rights do not cease to be rights because their free exercise is limited by reference to the rights of others or by considerations of public order or comity. It may be concluded, therefore, that the prisoner in this case does have a right to free speech, and that he wishes to exercise it in this instance in order to speak to the journalist for the purpose of exposing matters in which there is a public interest, being corruption and maladministration. I will treat this application as asserting the prisoner's right to free expression (although the prisoner is not the plaintiff).

200. I will assume, too, that what the plaintiff also seeks to assert on its own behalf is indeed a right, namely, its own right as a member of the media to conduct investigations in the public interest into such matters and to interview the prisoner to advance that right. Those were all assertions which were made by the plaintiff to the Commissioner when seeking approval for the interview.

203. Mr Hanks submitted that none of the factors which the plaintiff contended should have been taken into account, as relevant considerations, were matters which the Commissioner was bound to take into account (because neither the Act nor any decision of the courts imposed that obligation) but, in any event, all of the matters which had been identified as being factors which should have been taken into account, had, in fact, been taken into account by the Commissioner. Mr Houghton conceded that Ms Armytage purported to have taken all of those matters into account but submitted that she had not had regard to these factors in a genuine way, and her assertion to the contrary should be rejected.

206. Assuming that all of the matters identified by the plaintiff as being relevant factors, were, in fact, relevant factors in the present case, and assuming further that the Commissioner was bound to have regard to those factors before making a decision, did she fail to take them into account?

209. Mr Houghton, adopting statements from authority, submitted that I should discount the assertion to the contrary and conclude that the Commissioner did not take the relevant considerations into account in "any real sense"[25], nor did she consider them "genuinely and realistically"[26] nor give them "proper consideration"[27], or "proper, genuine and realistic consideration"[28].

212. As against those bald assertions I have the statement of the Commissioner in her letter to the plaintiff's solicitor of 5 February 2001, advising that she had regard to the issues raised in the solicitor's request, and I also have the sworn evidence of the Commissioner contained in her lengthy affidavit and in oral evidence which asserts that she did indeed genuinely take into account all of the factors which it is contended she did not, or did not genuinely, take into account. The Commissioner was subjected to cross examination and her assertions in those respects were not shown to be untrue or insincere. I accept her evidence as to the matters which she had regard to, and I reject the contention that insofar as any of the identified matters were matters that the Commissioner was bound to take into account she failed to do so.

216. A second, and alternative, basis on which it was contended that the Commissioner failed to take into account relevant matters related to the effect of s. 33(g) and the "principle of legality", which it was submitted governed the approach to applications under that section, but which principle was said not to have been taken into account by the Commissioner.

219. In R v Secretary of State for Home Department; Ex parte Pierson[29], Lord Browne-Wilkinson stated the principle to be that in interpreting any legislation general words in a statute are to be impliedly limited, in that parliament is presumed not to have intended to change the common law unless it indicated as much by express words or necessary implication. One basic right which it was held would not be taken to be affected by general words of legislation would be a prisoner's right to unimpeded access to the courts. The principle of legality was discussed and applied in Simms, by Lord Steyne (who had been a member of the Court in Pierson), and Lord Hoffman, the latter stating the principle to be that fundamental rights cannot be overridden by general or ambiguous words employed in legislation[30].

222. The principle of legality is not dissimilar to the principle of statutory construction applied by the High Court in Bropho v State of Western Australia[31]. As the Court stated, clear and unambiguous words are required before a statutory provision will be construed as displaying a legislative intent to abolish or modify fundamental common law principles or rights. Mr Houghton submitted that the prisoner's right to free expression could not therefore be curtailed save for clear words in the Act specifying that result to be permitted.

225. The principle of legality is a rule requiring that legislation, including subordinate legislation such as Standing Orders or regulations[32], is interpreted so as not to deny fundamental rights, unless there be clear words demonstrating that intention. The only legislation identified here is s. 33(g). The Commissioner did not mention that section, either in her rejection letter or otherwise, as the source of power for her decision. In fact, s. 33(g) is merely a definition section, which appears at the commencement of Division 2 - which is titled "Access to Prisons". The word "visitor" is defined so as to include as (g) "a person authorized to visit a prison by the Minister, the Secretary or a Governor".

228. Whilst s. 33(g) contains general words the defendant does not contend that it gives legislative approval to deny the fundamental rights of the prisoner. The defendant accepts that the prisoner retains fundamental human rights to the extent that such rights are not necessarily curbed by virtue of the necessities of imprisonment and the maintenance of discipline and order in the prisons. The narrow right identified in Simms is not challenged, within its own terms, but the defendant contends that it is not that right which is being contended for here. As to the right which is said to have been denied in this case, and which therefore is said to require redress by certiorari, the Commissioner submits it is a right of the media, not the prisoner.

231. As earlier noted, the defendant did not concede that the prisoner had as an aspect of a fundamental right of free speech a right to be visited by the media for purposes of an interview exposing corruption and maladministration in public affairs. No such right had been held to exist in Simms, nor was any decision referred to acknowledging that right. Mr Houghton submitted that the right was to be presumed to exist unless taken away from the prisoner by clear words of a statute. That is the effect of the "principle of legality" which, he contends, must apply.

234. However, even if it be assumed that these proceedings seek to vindicate a prisoner's right - in the terms identified by the plaintiff - that right, in my opinion, could not be regarded as being of a character as fundamental as the right identified in Simms. As I have noted, in Simms a prisoner's right to free speech was narrowly identified, as being the right to be interviewed by a journalist for the purpose of advancing his claim that he had been the victim of a miscarriage of justice. However, even in acknowledging that right to exist none of the judges suggested that it was an absolute right, which meant that any prisoner must be afforded such facilities irrespective of any other considerations. The terms in which their Lordships discussed the entitlement to the exercise of the right reflect the fact that the Governor's decision to allow the exercise of even so narrowly defined and so fundamental a right was accepted as requiring a balancing exercise in any given case.

237. Thus, Lord Steyne noted that "(F)reedom of expression is not an absolute right. Sometimes it must yield to other cogent social interests[33]", and that there would be situations where "the prisoner's right to free speech is outweighed by deprivation of liberty by the sentence of a court, and the need for discipline and control in prison[34]." Lord Steyne had regard to affidavit evidence relating to the impact on prison discipline of interviews conducted for the narrow purpose of exposing miscarriage of justice in a prisoner's conviction, and concluded that no adverse impact had been established. He acknowledged, however, that that might not always be so, and that decided cases from the United States suggested that problems had arisen where unlimited access to prisoners had been allowed to journalists. His Lordship concluded that "I have taken full account of the essential public interest in maintaining order and discipline in prisons. But, I am satisfied that consistently with order and discipline in prisons it is administratively workable to allow prisoners to be interviewed for the narrow purposes here at stake . . .[35]"

240. Lord Hobhouse stated that the limitations on interviews as stated in the Standing Orders were appropriate, and the Governor should have a breadth of discretion. His Lordship accepted "the need for regulation and control", but held that those needs did not justify a blanket ban. There could be a "permissible restraint upon the rights of the prisoner" and interviews could properly be "subject to suitable supervision and safeguards. The conduct of interviews with journalists for the narrow identified purposes should be regarded as being exceptional, he held, and requests for interviews had to take account of practicalities. His Lordship stressed that "respect must be had for those who have the responsibility of running penal establishments[36]". His Lordship affirmed the right of the Governor to regulate access of the media to penal establishments, as a necessary part of running such places[37].

243. Lord Millett held that it was "an inevitable and intended consequence of a custodial sentence that the prisoner should be deprived of the right to be visited by anyone he likes when and as often as he likes[38]". A special case would need to be made out for such an interview, and the Standing Orders imposed appropriate conditions, he held.

246. The Standing Orders in that case, which provided that, "in general", interviews with journalists should not be permitted, and which required that journalists had to give an undertaking that any material obtained in the interview would not be used professionally save as agreed to by the Governor, were not held to be ultra vires. What was found to be unlawful was the interpretation of those orders, as made policy of the department, that (save for instances where, in his absolute discretion, the Secretary chose to do so, in exceptional cases) the Standing Orders provided for a blanket prohibition against all such interviews, including ones for the purpose of exposing miscarriages of justice. Their Lordships held that the Standing Orders did not impose a blanket prohibition; they were subject to the rights of prisoners, as identified, to argue a case of miscarriage. It was the interpretation of them as imposing a blanket prohibition which was unlawful.

249. None of the judges suggested that the Governor was obliged to grant such an interview when requested, even if it was to be for the limited purpose of exposing a miscarriage. The decision-making was that of the Governor, but he could not commence with the assumption that there was a blanket ban authorised by the Standing Orders, which overrode the prisoners' civil right to challenge their conviction by resort to media interviews.

252. The freedom of speech identified in the present case, in my view, is not of the same order as a prisoner's right to seek to expose a miscarriage of justice in his own conviction, or a prisoner's right to have access to the courts. The principle of legality was adopted by Lord Steyne and Lord Hoffman because in that case the Governor was contending that subordinate legislation created an absolute ban on the exercise of the civil right identified in that case. The principle has no practical application in the present case because not only does s. 33(g) not purport to limit the prisoner's rights to free speech, over and above the limitation which imprisonment must necessarily impose, the Commissioner was not claiming that it did so. The Commissioner identifies her power not by reference to the definition section, but by s. 21(1), which makes the Governor (and would embrace the Commissioner who has overarching responsibility for Governors) responsible for "the management, security and good order" of the prison. The Commissioner does not contend that that section overrides the civil rights of prisoners, save to the extent that their exercise can not be permitted due to considerations relating to management, security and good order of the prison. That is not a blanket ban on the exercise of the right of free speech.

255. Section.47(2) of the Act which sets out "Prisoner's Rights" expressly states that the rights set out in that section "are additional to, and do not affect any other rights which a prisoner has under an Act other than this Act or at common law" (my emphasis). Mr Houghton was unable to refer me to any decision in which a common law right of a prisoner to free speech for the purpose of exposing corruption or maladministration in public affairs had been recognised. Thus, resort to the "principle of legality" was adopted to achieve the result that if an example of free speech could be articulated, and in this case the articulation was of the free speech to expose corruption and maladministration in public affairs, then the "right" as articulated was to be deemed to apply to the prisoner. The decision-maker, in turn, was obliged to acknowledge that what had been identified was a "right of free speech" which was the prisoner's entitlement. Although Mr Houghton did not go so far as to suggest that such a right was absolute, the letters requesting the interview came very close to making that assertion.

258. Because the principle of legality has its application to the interpretation of legislation, counsel for the plaintiff were obliged to attach their argument to some legislation for the purpose of introducing and applying the concept to this case. Thus, the completely artificial resort to s. 33(g) as the vehicle for introducing discussion of the concept, done with the object of clothing the purpose of the interview with the label of a fundamental human right.

261. In my view, once it is understood that the prisoner's "right of freedom of speech" which is being asserted by the plaintiff in support of its own application, must, on any view, even if identified as a fundamental human right, be regarded as being so much less fundamental to the prisoner than that under discussion in Simms, then the principle of legality may be seen to introduce no additional consideration which has any bearing on the question whether the decision of the Commissioner constituted jurisdictional error. Whilst the Commissioner did not expressly acknowledge that the request for an interview did involve a "right of freedom of expression" the Commissioner acknowledged that she had regard to the assertion that it was such a right of the prisoner and neither the protocol nor the expanded reasons for decision demonstrate that any such right was being denied to prisoners. Indeed, Ms Armytage said that prisoners had been interviewed for the purpose of exposing what they claimed was maladministration in her own department.

264. The Commissioner's decision addressed the contention by the plaintiff's solicitor that the right of freedom of expression of the prisoner "must outweigh any perceived public interest in denying Mr Scarborough the right to free speech on this topic". In addressing that question I do not consider that an express acknowledgment was required from the Commissioner that the purpose of the interview which was being advanced was properly to be described as an instance of the "right" of free expression. However it was described, it was taken into account, and, as I have said, I can not see in what way the principle of legality could bear upon the question whether the decision in the present case, as to the "right" which was identified here, constituted jurisdictional error.

267. To reiterate, I am not persuaded that there is anything in the approach towards her powers which suggests that the Commissioner was approaching the decision with an assumption that the prisoner had no civil rights, and specifically no right to freedom of speech. In her evidence the Commissioner disavowed such an approach on her part and I accept her evidence as to that. In other words, the Commissioner is not asserting that she is entitled to deny prisoners' rights in the manner or to the extent that the Home Secretary was asserting in Simms.

270. Whether or not the request concerned a civil right of the prisoner, the Commissioner was entitled to balance the request as against other relevant considerations, and, indeed, was obliged to have regard to those considerations imposed on her by virtue of s. 21(1). I can identify nothing in her approach which would amount to jurisdictional error.

274. Mr Houghton submitted that the Commissioner took into account a number of irrelevant considerations. First, that she had regard to the prospect that the victims of the prisoner would be distressed by publication of anything he had to say. That was an irrelevant consideration, Mr Houghton submitted, because, in the first place, the interview was not with respect to the crimes committed by the prisoner, but as part of an investigation into police corruption. Thus, the interview could have had no impact on the victims. Secondly, the Commissioner took this factor into account without informing herself as to whether the victims did have any objection, at all, to the interview being conducted.

277. In my view, it is impossible to say that the impact of the interview on the prisoner's victims was an irrelevant consideration. Whilst it may have been that the interview might lead to no story being published, at all, or else, might not produce any references to the prisoner, let alone to his crimes, it seems to me that the Commissioner was entitled to have regard to the possibility that he might be quoted in newspaper articles about corruption and that the mere fact that he was being quoted and treated as a person whose opinion was deemed credible would upset the victims. What weight that consideration was given, and whether the absence of information from the victims made it a matter of less weight, were questions of weight and judgement, which was properly the province of the decision-maker to assess. In any event, it is to be kept in mind that what the prisoner had said about McNamara was not divorced from the facts of his own offences.

280. In his interview with police after his arrest, Scarborough alleged that the Vietnamese man he shot in one of the incidents for which he was imprisoned had, some fifteen months earlier, set him up, in collaboration with McNamara, to cause Scarborough, to be confronted by McNamara. In his note to the journalist, Scarborough said that McNamara was also partly responsible for him later shooting the police officer in a separate incident, in his attempt to escape arrest. He said that he had feared that if he was arrested by police then he might be handed over to McNamara who would frame him, bash him and plant drugs on him. But, once again, these are just questions of weight. Even if the Commissioner did not consider all of these factors to this degree, or at all, that would not render her decision an instance of jurisdictional error.

283. In considering the impact of any publication on victims the Commissioner did not seek the opinions of the victims, but she had regard to sentencing remarks of Teague J which had mentioned the terror and anxiety of the victims about the offences. As Mr Hanks observed, had the Commissioner disregarded the question of the reactions of victims altogether she might have been regarded as failing to properly exercise her discretion at all.

286. Another suggested irrelevancy was said to be the Commissioner's concern about the adverse effect on the prisoner himself which publication might produce. The prisoner was the best judge of the effect of publicity on himself, Mr Houghton submitted, and he had made it clear by his invitation to the journalist that he did not perceive any risk to his own interests. Once again, this is a question of the weight to be attached to a relevant consideration. Just because the prisoner perceived no disadvantage in being interviewed, that does not mean that his perception was well based. In her evidence, the Commissioner said that the prisoner was already under protection at his own request, there having been evidence that he was at risk of attacks from other prisoners. In making her decision she had had regard to that fact and to her experience that any media exposure which gains added notoriety for a prisoner, even one who already had such notoriety, was capable of causing resentment among other prisoners. Once again, it was a relevant consideration, and the importance of that consideration was a matter for the Commissioner, in my view.

289. Finally, Mr Houghton submitted that the Commissioner had regard to an irrelevant consideration in that she had regard to the media protocol. The terms of that document constituted a blanket prohibition on a visit by a journalist, he submitted, and failed to have regard to prisoners' civil right of free expression.

292. The terms in which the protocol is couched certainly suggest that a blanket policy of refusal had been adopted as to interviews involving persons who had been involved in violent crimes and high profile cases. Ms Armytage swore that the protocol did not accurately state the true position, which was that in such cases she would be the one to make the decision, and she did not adopt a blanket policy, but dealt with each case on a case by case basis. Although the Commissioner in her evidence emphasised that the terms of the protocol overstated the extent of restrictions on interviews, it may be observed that, as written, the terms apparently entirely deny interviews by journalists with prisoners (or, at least, with violent, high profile, prisoners). The written terms of the protocol, in that respect, are not dissimilar to the Standing Orders in Simms, which the court held had to be read to be subject to the civil right of prisoners to pursue the overturning of their conviction. Their Lordships concluded that the Standing Orders, when so understood, were not unlawful, even though they imposed very substantial restrictions on the opportunity for prisoners to participate in such interviews with the media. I conclude on the evidence before me that the media protocol did not impose a blanket ban on interviews, which, had it been the case, might have constituted taking into account an irrelevant consideration.

296. A further basis for attack on the decision was that it was so unreasonable that no reasonable decision-maker could have made it: Associated Provincial Picture Houses Ltd v Wednesbury Corp[39]. This argument tended to embrace a range of the arguments which I have already addressed.

299. Mr Houghton submitted that while this may be a difficult ground to make out in most cases[40], it was less difficult where the decision-maker had ignored what, he submitted, was so fundamental a civil right as was involved here, i.e. Mr Scarborough's right "to communicate with the public about matters of intense public interest". Furthermore, the Commissioner had regard to matters as being established fact which had no foundation in fact, such as the impact of an interview on victims and on the prisoner. Those considerations were so fanciful, it was submitted, and there was such an absence of evidence to demonstrate that there was any basis for them, as to make them factors which only an unreasonable decision-maker could have considered.

302. I respectfully agree with the observations of McInerney J in an unreported decision to which I was referred that: "The Courts in Australia have tended to interpret prison legislation so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the courts[41]." A review of the cases demonstrates that to be so. The question whether the impact on victims and on the prisoner would be such as to justify a refusal of the request fell for the exercise of the judgment and discretion of the Commissioner, not the court, and as was held by Lord Brightman in Reg v Hillington L.B.C.; Ex parte Pulhofer[42], where the assessment of facts "involves a broad spectrum ranging from the obvious to the debatable, to the just conceivable, it is the duty of the court to leave the decision of (those facts) to the public body to whom Parliament has entrusted the decision-making power save in cases where it is obvious that the public body, consciously or unconsciously, (is) acting perversely".

305. For the reasons earlier stated, I do not consider that the Commissioner had regard to inappropriate considerations, nor do I consider that there was no possible evidential basis for those considerations which the Commissioner regarded to be relevant. Mr Houghton advanced a number of arguments which he suggested would have been persuasive, had they been addressed by the Commissioner, in leading her to conclude that there was no basis for her concern as to the matters which she took into account. It is unnecessary to consider these further. They are merely matters of argument which might or might not have impressed the Commissioner, but it was she who had to make the decision and I am not persuaded that her decision was so unreasonable as to offend Wednesbury principles.

309. In my opinion, the decision of the Commissioner has not been shown to be tainted by error such as would justify relief in the nature of certiorari. The application should be dismissed, with costs.

[1] [1999] UKHL 33; [2000] 2 AC 115.

[2] [1988] 1 AC 858 at 878.

[3] [1996] 2 All ER 302 at 315.

[4] [1949] 2 KB 17 at 22.

[6] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, at 176

[7] Craig v South Australia supra, at 174-5.

[8] R v Electricity Commissioners; ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171, at 205.

[9] Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, at 74-79.

[10] See the later discussion about the rights of prisoners. In Bromley v Dawes [1983] 34 SASR 73, at 103 the Full Court considered certiorari to be an appropriate remedy to be sought by a prisoner against a Governor, but only when challenging a judicial rather than administrative decision.

[11] Craig v South Australia supra, at 179.

[12] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, at 39-40.

[13] [1999] UKHL 33; [2000] 2 AC 115.

[14] R v Home Secretary, Ex parte Simms and Anor, at 120, citing Raymond v Honey [1983] AC 1, at 10; Reg v Secretary of State for Home Department; Ex parte Leech [1993] EWCA Civ 12; [1994] Q.B 198, at 209.

[18] Flynn v King [1949] HCA 38; (1949) 79 CLR 1 at 8

[19] Bromley v Dawes [1983] 34 SASR 73, at 107.

[20] Vezitis v McGeechan (1974) 1 NSWLR 718

[21] R v Classification Committee; Ex parte Finnerty [1980] VicRp 53; [1980] VR 561, at 568-9.

[22] McEvoy v Lobban [1990] 2 Qd R 235, at 241-2

[23] R v Deputy Governor of Parkhurst Prison; Ex parte Leech [1988] UKHL 16; [1988] AC 533

[24] R v Home Secretary; Ex parte Simms and Anor, at 120

[25] Turner v Minister for Immigration & Ethnic Affairs [1981] FCA 65; (1981) 35 ALR 388, at 392, per Toohey J.

[26] Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169, at 195.

[27] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, at 604, per Wilson J.

[28] Hindi v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 1, at 13.

[29] [1997] UKHL 37; [1998] AC 539, at 573-575; 587-590.

[31] Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1, at 17-18.

[39] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223, at 229-230

[40] See Reg v Secretary of State for the Environment; Ex parte Nottinghamshire C.C. [1985] UKHL 8; [1986] AC 240, at 247-248.

[41] Kelleher v Commissioner , Department of Corrective Services, unreported, Supreme Court NSW, 3 March 1999.

[42] Reg v Hillington L.B.C.; Ex parte Pulhofer [1986] UKHL 1; [1986] 1 AC 484, at 518.