Ford v Commissioner for Corrective Services of New South Wales

1. [1]

   At the time of the hearing the plaintiff, Mr Bruce William Ford, was an inmate of the Clarence Correctional Centre. He is serving a sentence of imprisonment of 21 years duration and his non-parole period expires on 19 November 2025. As an inmate he is subject to the exercise of a wide range of statutory powers reposed in the Commissioner for Corrective Services for, speaking generally, the management and operation of NSW correctional centres and for conduct and safety of the incarcerated.

2. [2]

   By Summons filed on 30 April 2020, Mr Ford seeks to impugn a number of directions given to him by the Commissioner – or more accurately the Commissioner’s delegates – requiring him to provide samples for urinalysis for drug testing, rather than directing him to subject himself to an alternative form of sample collection for that purpose, such as an oral buccal swab. It is Mr Ford’s case that due to certain psychological impediments stemming from trauma when he was young, which need not be recounted, he is unable to provide urine upon demand in front of others. It is important to understand that it is the long-standing policy of Corrective Services NSW that inmates are visually observed while giving urine samples to attenuate the risk of inmates diluting, tampering with or otherwise altering the samples taken.

3. [3]

   Mr Ford has consistently failed to provide a sample for the purposes of drug testing upon request save for two exceptions. The first exception was one instance of successful compliance with a request for a urine sample on 5 November 2011. The second exception was his compliance with an oral buccal swab at Clarence Correctional Centre on 16 November 2020, which came back with a negative reading for the drugs capable of being tested by the buccal swab. These aside, between him entering custody and the hearing date Mr Ford has refused or failed to supply a sample on ten occasions (Exhibit JKM-1 p 6).

4. [4]

   A failure to provide a urine sample constitutes a correctional centre offence, even where there is no suspicion that the inmate has used or is under the influence of drugs: regs 159 and 160 Crimes (Administration of Sentences) Regulation 2014 (NSW) (“CAS Regulations”). Correctional centre offences, of course, have attendant consequences in the NSW correctional system for withdrawable privileges such as purchasing goods, pursuing a hobby, telephone access and contact visits: reg 163 CAS Regulations; s 57(2) Crimes (Administration of Sentences) Act 1999 (NSW) (“CAS Act”) authorises the imposition of a penalty of deprivation of withdrawal privileges for a period of up to six months on proof beyond reasonable doubt of an offence of failing or refusing to provide a sample contrary to s 57(1). An offender’s custodial disciplinary record may also be a relevant consideration for eligibility for parole or upon review of an inmate’s security classification, as has occurred here. Mr Ford also seeks consequential relief by way of expungement of the record of his correctional centre offences.

5. [5]

   With respect, although Mr Ford is a sophisticated and intelligent man, he is inexperienced in legal matters and unfamiliar with the Supreme Court’s supervisory jurisdiction. His summons and submissions call for some interpretation in order to make them legally workable. One problem is that Mr Ford has not particularised the specific directions to provide a sample the subject of his challenge. One aspect of his case is forward-looking; he does not want to be subjected to urinalysis again. Another aspect of his case is backward-looking; he impugns the legality of previous directions given to him. Obviously, there is a clear issue as to what relief the Supreme Court can grant to Mr Ford in these circumstances, particularly in relation to any future directions.

6. [6]

   I have concluded that the relief sought, if Mr Ford is otherwise entitled, is declaratory in nature. If I were persuaded that that the previous drug testing directions made to him were unlawful, then this Court could make a declaration to that effect and also make a declaration that the attendant disciplinary proceedings and punishments were, too, unlawful: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10. As for any future exercise of the Commissioner’s power to subject Mr Ford to urinalysis, an injunction to restrain the Commissioner from requiring Mr Ford to supply a sample for urinalysis could be fashion, if Mr Ford made good his case.

Two preliminary points

1. [7]

   As will be apparent from the summary of Mr Ford’s argument set out below, he submits that a direction that he provides a sample for urinalysis contravenes s 274.2 Criminal Code (Cth), prohibiting torture. As arguably, a question as to the application of s 109 of the Constitution (Cth) could arise concerning the inconsistency of the relevant provisions of the CAS Act and Regulations with the Criminal Code (Cth), the Crown Solicitor took the precaution of issuing notices under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General of the Commonwealth, States and Territories. The matter was heard by me on 19 May 2021, by then the Attorneys-General for the Commonwealth and each of the other States had responded that he or she did not seek to intervene. No response had been received from the Attorneys General for the Northern Territory and the Australian Capital Territory. As the notices had been served on 5 May 2021, I was satisfied that sufficient notice of the matter to comply with s 78B(1) had been given to the Attorneys-General and a reasonable time had elapsed since the giving of that notice for the Attorneys-General to consider the question of intervention, as permitted me to proceed with the hearing of the matter.

2. [8]

   Mr Ford applied for a suppression order or non-publication order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the ground specified in s 8(1)(c) of the Act that the order was necessary to protect his safety. He explained that he was concerned that if his challenge to the legality of the Commissioner’s procedures and his reasons for bringing it became widely publicised, he may be subject to vilification, victimisation or even assault. The Commissioner opposed the order and argued that there was no evidence that there is a risk to Mr Ford relevant to these proceedings having been brought. The Commissioner also argued that the matters put forward by Mr Ford did not displace the consideration mandated by s 6 of that Act that a primary object of the administration of justice is safeguarding the public interest in open justice.

3. [9]

   I was of the view that the material put before the Court by Mr Ford was insufficient to displace the primacy of the open justice principle in the case. There was simply no evidence before me from which I could infer that Mr Ford’s safety was in fact at risk, even potentially for the reasons he advanced. One may accept that correctional centres may be hard places and a person’s safety may be put at risk for no good reason. But there was nothing in the case tending to show that this consideration rose above the hypothetical. There was certainly no tangible evidence of any actual risk. There was no evidence about whether it was known or not that Mr Ford had brought the proceedings and the attitude of others whether inmates or officers within the correctional system to him due to the proceedings. I was not satisfied that grounds for the order sought had been established and accordingly I refused Mr Ford’s application at the hearing.

4. [10]

   During the course of argument about this issue it emerged that Mr Ford had a particular concern, which I considered could be managed without taking the step of making a suppression order or non-publication order even if there could be no guarantee about the effectiveness of those measures (22.10 - .44T).

Argument of Mr Ford

1. [11]

   Mr Ford’s summons seeks orders against various State government entities including the Department of Corrective Services, the NSW Parole Authority and the Department of Justice Community Corrections Division. At the beginning of the hearing it was clarified between the parties and the Court that the only appropriate defendant is the Commissioner (2.40 T). I dismissed the proceedings against all other named defendants.

2. [12]

   The first order sought is an order in terms that the Commissioner immediately cease and desist from making any further demands for Mr Ford’s urine and/or faeces from the date of lodgement of the proceedings.

3. [13]

   The second order sought is an order that the Commissioner allow for one or more of the alternative forms of sampling listed under the definition of “non-invasive sample” under s 3 of the CAS Act or “drug test sample” under cl 3 of the CAS Regulations for the remainder of his incarceration whenever a sample is required of him. Those alternative forms of testing provided for by the CAS Act and CAS Regulations include testing the breath, saliva by buccal swab, nail, hair or sweat.

4. [14]

   The third order sought is an order expunging the record of all prior correctional centre offences related to his inability to provide urine.

5. [15]

   Mr Ford puts forward three major submissions in his affidavit of 21 March 2020, in support of the relief sought. The first submission is that each direction to him to provide a drug test sample by way of urinalysis contravenes the prohibition on torture in s 274.2 Criminal Code 1995 (Cth). The second submission, largely to the same substantive effect as the first, is that the directions to him to submit to urinalysis contravene the prohibition on torture as correctional punishment under reg 164 of the CAS Regulations. Finally, he argues that demanding urinalysis for drug test sampling when there are reasonable alternatives available under the Act and Regulations is “unnecessarily restrictive”. I agree with Ms Pham, counsel appearing on behalf of the Commissioner, that the crux of Mr Ford’s third argument is a challenge to the legal reasonableness of the Commissioner’s directions. I will deal with this third strand in this way.

Legislative framework

1. [16]

   The Commissioner has the care, control and management of all correctional complexes and facilities: CAS Act s 232(1)(a). The Commissioner also has the care, control and management of all offenders in custody: CAS Act s 232(1)(a1).

2. [17]

   Section 79(1)(v) of the CAS Act provides for the making of regulations in respect of:

3. [18]

   The corresponding regulations relevant to the drug testing of inmates are contained Part 6 of the CAS Regulations entitled, “Correctional centre discipline” and under Division 4 of Part 6 entitled, “Testing for alcohol or drugs”. Regulation 159 provides for drug testing where drug use by an inmate is suspected by a correctional officer holding a certain rank or above. Regulation 160 provides for random drug testing where drug use is not suspected, or more specifically “whether or not drug use [is] suspected”. Regulation 160, which is the pertinent provision for present purposes, relevantly provides:

4. [19]

   Both regs 159 and 160 are discretionary powers given to officers of a certain rank to request a “drug test sample”. The officers are also given the power to give directions about how the drug test sample is to be provided. The exercise of the reg 159 power is conditioned by the forming of a suspicion that an inmate has used drugs; reg 160, on the other hand, is not so conditioned. Compliance with a regs 159 and 160 direction is mandatory and failure to comply may result in a correctional centre offence: s 57 CAS Act; reg 160(3) CAS Regulations.

5. [20]

   The language of “drug test sample” picked up in regs 159 and 160 is defined in reg 3 as: “in relation to a person, means a sample of the person’s breath, urine or oral fluid”.

6. [21]

   “Non-invasive sample” as it appears in the regulation-making power in s 79(1)(v) of the CAS Act is defined in s 3 of that Act in the following terms:

7. [22]

   Generally speaking, the officer has the discretionary power to direct how that sample is given, so far as that direction is for the provision of a “non-invasive sample” and satisfies the definition of “drug test sample”, being of urine, breath or oral fluid.

The evidence of Mr Ford

1. [23]

   Mr Ford’s affidavit contained both submissions and evidence. He deposes that on 26 January 2019 he wrote a letter providing express permission that he be catheterised for the purpose of supplying a drug sample, although it is unclear who he gave that permission to. I interpolate that as the Commissioner is empowered to require non-invasive samples only the “permission” is not to the point, and hardly practicable in most custodial settings. It is not necessary to consider this matter further.

2. [24]

   Mr Ford states that on each occasion he has been required to provide a drug test sample it has always been a urine sample until his proceedings were commenced. By the time of the hearing, he had been directed once only to provide an oral buccal swab, and this was at Clarence Correctional Centre. On each other occasion, bar one, he has failed to provide a urine sample because he says he is unable to do so in front of others and he has been charged with a correctional centre offence.

3. [25]

   He further deposes that on each of the occasions he has failed to supply urine he has fully utilised the two-hour window given to him by Corrective Services NSW and accepted the prescribed amount of water to assist him comply, to no avail.

4. [26]

   Mr Ford tendered bundle of documents dated 8 April 2021. Document A was a Serious Offender Review Council classification recommendation dated 1 December 2020, recommending inter alia that Mr Ford’s security classification be reduced from A2 to B and that he remain at Clarence Correctional Centre. Those recommendations were accepted by the Commissioner.

5. [27]

   Documents B, C and D were documents taken from the Draeger Corporation, a company that apparently provides drug testing devices. The documents generally related to the testing capabilities of particular ‘oral’ testing devices. These devices are able to test for cocaine, opiates, cannabis, amphetamines, and methamphetamines. This evidence is of little importance given the Commissioner’s appropriate concession that there are alternative methods of testing available to the Commissioner under the CAS Act and CAS Regulations, including the oral testing of inmates.

6. [28]

   Finally, document E was an email sent to Mr Ford from a man presumably employed or at least in some way connected to a website, ‘Druginfo.com’. That document contained comparisons about the effectiveness of different testing methods such as urinalysis and oral buccal swab, the timespan since consumption within which the methods could detect drugs in the system and which drugs could be detected. I accepted the Commissioner’s objection to that document on the basis it fell short of the requirements for the admissibility of expert evidence and rejected its tender.

7. [29]

   As submitted by Ms Pham, one critical lacuna in Mr Ford’s evidence is the failure to adduce any evidence relating to his claimed psychological impediment to providing urine in front of others in the manner admittedly required of him by Corrective Services NSW. Indeed, the evidence provided by the Commissioner demonstrates that at no point did the Commissioner or his delegates have any tangible evidence before them supporting Mr Ford’s objections, other than his own say so. To the contrary, the evidence, as mentioned above, demonstrates that Mr Ford has on one past occasion successfully complied with a direction to provide a urine sample.

8. [30]

   There is also evidence adduced on behalf of the Commissioner that two conflicting opinions regarding his failure to provide urine on demand were before the 5 November 2019 Serious Offenders Review Council meeting (Exhibit JKM-1 p 290). Dr Scott, who then had yet to provide a written, made representations to the Council that he took Mr Ford’s claims at face-value. Dr Elliot, a forensic psychiatrist, on the other hand, in a report dated 7 December 2018, expressed his doubts as to the veracity of Mr Ford’s claims. There is no evidence of any follow-up in relation to Mr Ford’s claims by either Drs Scott or Elliot.

The evidence for the Commissioner

1. [31]

   The Commissioner relied on an affidavit of Mr Terrence Murrell, the General Manager of the State-wide Operations Branch of the Custodial Corrections Division of Corrective Services NSW, dated 29 July 2020. In his role, he is responsible for the Custodial Operations Policy and Procedures, which sets out the policy for Corrective Services NSW operations. He has been consulted and was involved in the development of the drug testing policies at Corrective Services NSW. He receives a collated state-wide report on urinalysis testing from the Urinalysis Administration Coordinator.

2. [32]

   Attached as Annexure A to Mr Murrell’s affidavit is the Custodial Operations Policy and Procedures (Version 1.7), Part 18 of which relates to the policy for the testing of inmates for drug use (“Drug Testing Policy”). Section 1.3 of the Drug Testing Policy is in the following terms:

3. [33]

   Importantly, neither section 1.3, in particular, nor the Drug Testing Policy read in its entirety, make provision for forms of sampling permitted by the legislative scheme other than urinalysis.

4. [34]

   Section 1.5 provides that correctional centres participating in random testing are to test five percent of the inmate population each month, subject to staff demands and time constraints.

5. [35]

   Section 4.1 provides that “all urine collection areas must have clear lines of sight into the toilet to allow the inmate to be observed at all times providing a sample”. Mr Murrell deposes that inmates must be observed while providing a sample to guard against the risk of dilution or substitution of the sample (Court Book, p 82).

6. [36]

   Given his experience in developing the Drug Testing Policy, Mr Murrell deposes that drug testing in NSW correctional centres serves two main policy objectives (CB, p 81). First, it aims to maintain good order in correctional centres by reducing drug-related behavioural problems. Secondly, identification of drug-use allows Corrective Services to divert those inmates to programs to help manage their drug-use issues. Additionally, drug testing reduces risk to the community from those inmates on supervised release and ensures their effective participation in external programs.

7. [37]

   He states that oral swabs are used in the Community Corrections Divisions of Corrective Services NSW for offenders who are not in full-time custody (CB p 87). Mr Murrell said, however, the context is quite different. The drugs of concern are different. Many male offenders are supervised in the community by female officers and supervised collection is inappropriate.

8. [38]

   Mr Murrell further deposes that pre-screen urine cup testing is used to test for morphine, cocaine, methamphetamine, benzodiazepines, barbiturates, cannabis, methadone, amphetamine, tricyclic antidepressants, buprenorphine, tramadol, synthetic cannabinoids, and oxycodone. If the pre-screen test comes back positive, then the sample is sent to the laboratory for further testing.

9. [39]

   Finally, Mr Murrell was involved in the tender process comparing urinalysis to oral buccal testing in the correctional setting in 2016. He advances the following three reasons why urinalysis is preferred:

   1. (1)

      Oral swab testing tests for fewer drugs compared to urinalysis; only cannabis, benzodiazepines, cocaine, opiates, amphetamines, methamphetamines and methadone (Mr Murrell’s evidence was corrected to include methadone per in his affidavit of 22 April 2021). They are not, for example, able to detect buprenorphine and suboxone;

   2. (2)

      Oral swab testing has a much narrower window for the detection of drugs. For example, cannabis may be detected within 4 to 6 hours of use with an oral test but, 1 to 45 days for urinalysis. For methamphetamine, the period is 24 hours for an oral swab compared to 14 days for urinalysis; and

   3. (3)

      Oral fluid testing is more expensive than urinalysis.

10. [40]

    Mr Murrell also provided a subsequent affidavit, dated 5 March 2021. This affidavit largely related to Mr Ford’s oral buccal swab at the Clarence Correctional Centre on 16 November 2020, which occurred after his original affidavit was sworn. He deposes that Clarence is a privately operated correctional centre and that urinalysis is still the only form of testing carried out by Corrective Services NSW (CB p 197).

11. [41]

    Mr Murrell expresses the following concerns regarding the oral testing of inmates on an individual basis (CB p 198):

    1. (1)

       The Drug Testing Policy does not provide for any protocols or procedures for the carrying out of an oral buccal swab test;

    2. (2)

       There is a lack of protocols regarding the proper chain of custody for oral buccal swab samples when collected;

    3. (3)

       In a similar vein as previously, the oral buccal swabs may be of limited utility;

    4. (4)

       Corrective Services NSW currently has no contractual arrangements in place for the procurement or testing of oral buccal swabs; and

    5. (5)

       Inmates who receive special, individualised treatment may attract negative attention from other inmates.

12. [42]

    I interpolate, that Mr Murrell’s fifth point accords with what was said by Garling J in Bernard-Ross v State of New South Wales [2018] NSWSC 182 at [47]:

13. [43]

    Mr Murrell’s evidence was not challenged and I accept it.

Torture – CAS Act and Criminal Code

1. [44]

   The prohibition on torture in s 274.2 of the Commonwealth Criminal Code Act 1995 is in the following terms:

2. [45]

   Sub-section (2) of s 274.2 is identical to sub-s (1) except the conduct is engaged in for the purpose of discrimination.

3. [46]

   Sub-section (4) specifies that the section does not apply to:

4. [47]

   The ground relating to Division 274 of the Criminal Code can be readily dismissed for the following reasons. To begin with, there is no evidence that the first limb in either ss 274.2(1)(a) or 274.2(2)(a) is satisfied. Mr Ford has not provided evidence, except for his own untested statements unsupported by expert opinion, that urinalysis causes him “severe physical or mental pain or suffering”. Clearly the pain, if suffered, must be mental not physical.

5. [48]

   Even were I to proceed on the footing that this limb has been made out, it is clear that the urinalysis is incidental to and inherent in Mr Ford’s custody as an inmate and thus excluded from the operation of the section pursuant to s 274.2(4). Mr Ford was sentenced to imprisonment by a judicial officer according to law after entering pleas of guilty to the offences he was charged with. He is now serving that sentence and is accordingly under the control and powers of the Commissioner. The conduct complained of here is clearly consistent with the International Covenant on Civil and Political Rights (indeed, it’s hard to think of a better example of conduct inherent to lawful sanction and consistent with the ICCPR than the drug testing of inmates imprisoned according to the law).

6. [49]

   Mr Ford argued in his summons that the information sought under the second limb found in s 274.2(b) was the result of his urine test. Ms Pham submitted that the provision, read properly, did not contemplate information such as the result of a drug test from a sample. I agree. Division 274 contemplates the use of violence to force and coerce someone to provide “information or a confession”. The prime example of unlawful conduct caught by this provision is the use of torture as an aid to interrogation by officers of the state. The unintentional infliction of mental anguish by the requirement to provide a sample for drug testing by an inmate for the maintenance of order and discipline in a custodial centre is about as far from the language of the provision as may be contemplated.

7. [50]

   In a similar vein, s 274.2(3) provides that absolute liability applies to the ‘official capacity’ limb of the provision. Absolute liability is not extended to the first two limbs of the provision: that the person engages in conduct that inflicts severe physical or mental pain and suffering and that it is for the purpose of obtaining information. The legislature’s failure to extend strict liability to these two limbs imports a requirement of intention. In the absence of any evidence suggesting that Mr Ford did suffer from the directions, and in the absence of any evidence suggesting the Commissioner intentionally caused that suffering to extract information from Mr Ford, the directions cannot amount to torture as contemplated by s 274.2.

8. [51]

   Mr Ford’s complaint that the directions amount to torture under CAS Regulation 164 is also misplaced. Regulation 164 is found in Part 6, Division 5 of the CAS Regulations entitled, “Punishments”. There are two regulations under Division 5. Regulation 163 defines “withdrawable privileges” as that term is deployed throughout the regulations in relation to the punishment of offenders (including in relation to a failure to supply a drug test sample when directed). Regulation 164 is entitled, “Prohibited punishments” and is in the following terms:

9. [52]

   Read within its legislative context and alongside the definition of “withdrawable privileges”, which relates to lawful means of punishment, it is clear that a direction to provide a urine sample for the purpose of drug testing is not for the purpose of punishing an offender. A direction to test an inmate for drugs relates to the ordinary and routine management of correctional facilities and inmates. Of course, punishment may flow from a positive drug test sample result, but that does not mean that the original direction itself is for the purpose of punishing an inmate. Quite the contrary, a regime of random drug testing may be taken to be for the purpose of deterrence.

10. [53]

    Even if I were wrong about that, for the reasons rehearsed under the Criminal Code submission, the directions complained of do not amount to torture. Nor am I persuaded that any of the other prohibitions in reg 164(1)(b) relate to the directions given. The expression “cruel, inhumane or degrading treatment” picks up the language used by the Convention against Torture and reflects a lower threshold to torture for a form of punishment.

11. [54]

    Assuming for the sake of argument that the directions were for the purpose of punishing Mr Ford, then perhaps reg 164(1)(c) could be engaged. But even then, without tangible evidence in front of the Commissioner that Mr Ford does in fact suffer from a diagnosable psychiatric illness preventing him from providing urine on demand and in front of others because of mental pain or anguish, none of which has made its way into evidence, the decision-maker has no basis to expect on reasonable grounds that a direction to give a sample for urinalysis would adversely affect Mr Ford’s physical or mental health.

Legal Unreasonableness

1. [55]

   Brennan CJ observed in Kruger v Commonwealth (1997) 190 CLR 1; [1997] HCA 27 (at 36) of the exercise of a discretionary power:

2. [56]

   Citing Kruger more than 15 years later, Hayne, Kiefel and Bell JJ in Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 stated the following (at [63]):

3. [57]

   The plurality in Li went on to describe (at [76]), in a manner of speaking, the symbiosis of the function of an appellate court in the House v King sense, where the court may infer error on the basis the decision arrived at was unreasonable or plainly unjust, and the court’s review of an exercise of a statutory discretion for unreasonableness:

4. [58]

   Logically, the broader the discretion conferred by the statute, the less likely an exercise of that power goes beyond its legislative ambit. Apropos the CAS Act, in the context of an application for judicial review of decisions related to the ability to conduct one’s own legal proceedings from custody, Emmett AJA in Clark v Commissioner for Corrective Services [2016] NSWCA 186 (with whom Simpson JA agreed) stated the following (at [84] – [85]):

5. [59]

   Beyond the broad approach to construing discretionary powers in the CAS Act espoused in Clark, there are number of characteristics flowing from the drug testing discretionary power that also support its broad construction. First and importantly, the power to request drug test sampling in CAS Regulation 160 is not conditioned on a relevant officer forming an actual suspicion of drug use on the part of an inmate. The regulation provides for random testing. First, there is clearly a regulatory intent that the safe and effective management of prisons requires that every inmate could possibly be subject to drug testing at any time. Secondly, refusal to provide a drug test sample even where there is no suspicion of drug use attracts a correctional centre offence. It is clear that drug test sampling and compliance with that requirement is intended to apply to every inmate and is critical enough to the management of prisons that coercive punishment exists to dissuade non-compliance. As much is clear from the position of the discretionary power under Part 6 entitled, “Correctional centre discipline”.

6. [60]

   Although the legislature is taken to have intended the Commissioner’s discretionary power to be exercised reasonably in the manner postulated by Brennan CJ in Kruger, the legislature also intended that power to be of broad compass, commensurate with the task of managing facilities and inmates entrusted to them. Inherent to that task is the maintenance of order within, and security of, the prison populace.

7. [61]

   The fact that the Drug Testing Policy relied on by the Commissioner is of universal, inflexible application is also of potential relevance. In McKane v Commissioner of Corrective Services of New South Wales (No. 3) [2018] NSWSC 1060 Davies J collected the authorities related to the discretionary powers of the Commissioner for Corrective Services (including Clark) and stated at [48]:

8. [62]

   His Honour also refers to the decision of Carroll v Sydney City Council (1989) 15 NSWLR 541, where Kirby P observed that the application of a “general policy” (at 551):

9. [63]

   Carroll related to the exercise of a council’s planning power to regulate licensed premises for arcade machines in accordance with a resolution of general application. Those in the business of providing public amusements are entitled to have their applications dealt with on their merits. But can the same be said about an inmate subject to a drug testing policy? The policy here relates to a broad power conferred for the security, and maintenance of order of Corrective facilities in NSW. The Drug Testing Policy facilitates this according to its terms, and by only allowing for urinalysis it seeks to do it as effectively and practically as possible. It is illogical that the Commissioner could lawfully direct every inmate to provide a sample for urinalysis in the absence of the policy, but the same direction would be unlawful because the Drug Testing Policy gave effect to that preference.

10. [64]

    Mr Ford made the following oral submission (50.13 T):

11. [65]

    As articulately as Mr Ford puts his position, his submission cannot surmount the lacuna of evidence in his case. Had there been tangible medical evidence placed before the Commissioner and his delegates relating to Mr Ford’s claimed disability, this matter may have proceeded, and been dealt with, differently. It is not a case such as the one analogised by Mr Ford. In that example, the Commissioner’s direction to the wheelchair-bound inmate that he assemble atop a flight of stairs would be patently unreasonable; the Commissioner would have before him before him clear proof that the inmate is unable to reach the top of the stairs unaided.

12. [66]

    From the evidence of Mr Murrell, I find that there are clear and compelling reasons for the Commissioner’s preference for urinalysis over an oral buccal swab. First, but not foremost, urinalysis is cheaper than the alternative contended for by Mr Ford. Economy is a not unreasonable consideration in the context of a large network of correctional centres housing a large prison population. Secondly, urinalysis is more effective at detecting illicit substances than oral buccal swabbing. Thirdly, collecting samples for urinalysis is even less invasive than the other non-invasive methods permitted. Fourthly, the effective testing of inmates is an indispensable aspect of the safe and orderly management of both the facilities and the inmates. This is particularly so, where many inmates will have substance use disorders or would seek to profit off the trade of drugs in custody. Fifthly, there are tried and tested protocols in existence for the testing and management of the chain of custody of urine samples. Sixthly, the object of security of inmates and the correctional centre is promoted by a common approach to discipline across the system. Finally, I repeat, there is no objective evidence that Mr Ford has special needs justifying any departure from the established system.

13. [67]

    I am not persuaded that the development and application of the Drug Testing Policy throughout the prison system is legally unreasonable.

Orders

1. [68]

   As a result of my finding that the directions made to Mr Ford were made according to law, I need not consider further the relief that may have been available to him.

2. [69]

   At the conclusion of the hearing, Ms Pham informed me that the Commissioner would not be seeking the costs of the proceedings.

3. [70]

   Accordingly, my orders are:

   1. (1)

      Mr Ford’s Summons dated 30 April 2020 is dismissed; and

   2. (2)

      Each party to bear their own costs.