Hunter v Minister for Corrections

1. [1]

   HIS HONOUR: Terry Hunter is a former inmate of a New South Wales correctional centre. He was released to parole on 14 August 2015 and is currently serving the balance of his sentence in the community. Prior to the expiration of his non-parole period, the New South Wales Government introduced a regulation banning inmates from smoking in the State’s prisons. Mr Hunter has strong views about the correctness of that decision and before his release filed a summons in this Court on 17 July 2015 challenging the validity of the regulation. The Minister for Corrective Services has responded by notice of motion filed on 13 August 2015 seeking to have the summons dismissed or struck out pursuant to UCPR 4.15 or 13.4(1). Despite Mr Hunter’s informative and passionate advocacy in aid of his contentions, I am satisfied that the relief sought in the summons is not supported by any reasonable cause of action. My reasons for coming to that view are set out in what follows.

Background

1. [2]

   Regulation 322 of the Crimes (Administration of Sentences) Regulation 2014 is in the following relevant terms:

2. [3]

   Mr Hunter’s summons describes the nature of his challenge in these terms:

3. [4]

   UCPR 59.1 and 59.4 apply to Mr Hunter’s summons. Those rules provide as follows:

4. [5]

   The summons is not accompanied by any current affidavit but that is not raised as a ground upon which the summons is challenged. Mr Hunter effectively gave evidence in the course of his submissions to which Mr Herzfeld of counsel for the defendant quite reasonably in the circumstances did not take objection.

Consideration

1. [6]

   Mr Hunter appeared for himself on this application. He is not apparently legally trained. He did not direct any submissions to the legal bases identified in the defendant’s written submissions dealing with why the proceedings should be dismissed.

2. [7]

   Mr Hunter did however speak at some length about why the regulation had caused significant disruption to the otherwise relatively organised workings of prison life. Cigarettes and tobacco had for decades operated as a form of de facto currency. Smokers and non-smokers alike within the prison system knew and understood the significance and utility of readily accessible legal products that were easily obtainable by visitors for supply during regular and orderly prison visits. According to Mr Hunter, this currency operated well and smoothly with little or no resistance from inmates, including non-smokers.

3. [8]

   The regulation has turned that system upside down. Other illicit substances have now achieved an additional prominence as a substitute for cigarettes. Relatives and friends who visited inmates in the past are now being placed under considerable pressure to provide cigarettes in breach of the regulation. This is causing tension both within the prisons and between or among prisoners and their visitors. Non-smoking prisoners are also being “stamped” or victimised and bullied into securing cigarettes from their own visitors having regard to the limited access to such products following the ban. This is causing further disruption and tension within the system. The fact that prison officers were not themselves also subject to the same restrictions is a further source of unrest and resentment.

4. [9]

   Mr Hunter also asserted that the right to smoke was a fundamental or basic human right with which the New South Wales parliament could not legally interfere. Banning cigarettes and tobacco from prisons was also cruel, having regard to the involuntary withdrawal from serious addiction to which a large majority of the prison population was automatically subjected as a consequence. It was implicit in Mr Hunter’s arguments concerning cruelty that prisoners who were also smokers had little enough by way of diversion whilst incarcerated and the removal of this last remaining pleasure only served to exacerbate and heighten the sense of loss and deprivation with which inmates were necessarily already confronted on a daily basis.

5. [10]

   The defendant’s application was not directed at these arguments for reasons that will be obvious. The defendant argued that Mr Hunter neither had standing to bring the proceedings in the first place, nor could he demonstrate the existence of a cause of action known to the law in the second place.

6. [11]

   Dealing first with the second of those, the defendant emphasised that neither Australia nor New South Wales has a Bill of Rights. There is no right to smoke in a correctional facility in New South Wales created by any legislation. The so-called right is presumably a common law right or possibly even a right discernible by reference to some international convention or other instrument. The asserted right was novel at best and patently illusory.

7. [12]

   More fundamentally, even assuming for the sake of the argument that the so-called right did exist, a perceived or asserted infringement of that right did not mean that the regulation that is said to infringe it is thereby invalid as a consequence or that it amounts to a ground upon which it may be challenged: The fact that reg 322 may on Mr Hunter’s argument alter the common law (which the defendant does not accept) or derogate from international law does not thereby cause it to be invalid.

8. [13]

   In Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977 at 986-7, Isaacs J said this with respect to a challenge to a by-law made by a local authority prohibiting any person from injuring or destroying the water table, side drain or gutterway of any road by depositing therein any material calculated to impede or obstruct the course of the waterflow:

9. [14]

   In Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 69, Latham CJ said this in respect of s 13A of the National Security Act 1939-1943 which provided that the Governor-General could make such regulations making provision for requiring persons to place themselves, their services and their property at the disposal of the Commonwealth, as appear to be necessary or expedient for securing the public safety:

10. [15]

    Mr Hunter’s contention that the regulation was “cruel” also does not assist him. The wisdom or justice of the regulation or its necessity or suitability as a response to the issue to which it is directed are exclusively matters for the legislature to determine. This point was made with enviable clarity by the High Court in South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161at 167-8 as follows:

11. [16]

    The first ground upon which the defendant contends that the summons does not disclose a reasonable cause of action is that Mr Hunter is no longer a prisoner in a New South Wales gaol and therefore is not subject to the operation or force of the regulation. As such Mr Hunter is no longer a person with sufficient (or indeed any) standing to challenge the regulation or to maintain these proceedings to do so. His status as a person on parole does not provide him with standing because he is no longer a resident at a correctional centre, even though when he commenced these proceedings he was a resident when the regulation came into force.

12. [17]

    In order to have standing Mr Hunter must be able to demonstrate that he has some special interest in the action, greater than an ordinary member of the public. This is made clear by the recent decision of the High Court in Kuczborski v Queensland [2014] HCA 46, (2014) 254 CLR 51 at [175] – [181]:

13. [18]

    The plaintiff in Kuczborski had no standing to challenge the laws he wished to impugn because he was not affected by them any more than an ordinary member of the public. That is precisely the position that Mr Hunter is in here. Now that he is no longer a resident of a correctional centre, Mr Hunter is no longer affected by reg 322. The fact that he is potentially liable to be imprisoned if he fails to comply with the conditions of his parole or commits a breach of the law is beside the point. The prospect that any citizen is liable to imprisonment if he or she exposes himself or herself to that possibility by breaching the criminal law, or is even suspected of doing so, does not provide that person with the current status of someone to whom the regulation applies. The fact that Mr Hunter’s risk of imprisonment may be higher than citizens who are not on parole is also irrelevant: see Kuczborski at [182].

14. [19]

    UCPR 13.4(1) provides as follows:

15. [20]

    No reasonable cause of action is disclosed if the proceeding is so obviously untenable that it cannot possibly succeed or is manifestly groundless or hopeless: see Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Commonwealth Bank of Australia v ZYX Learning Centres Ltd [2014] NSWSC 1676; (2014) 103 ACSR 476 at [47] – [70].

16. [21]

    Mr Hunter’s proceeding falls into this category. He cannot succeed. I am aware that Mr Hunter wants an opportunity to proceed to a full hearing at which he is confident that evidence he anticipates he will be able to assemble will convince the Court of the correctness of his claims. Indeed, much of this type of material has been placed before me, together with significant reliance upon the recent New Zealand decision of Taylor v The Attorney-General [2013] NZHC 1659. As interesting as that material is, and as persuasive as it may be from a political perspective, it does not demonstrate the existence of a cause of action known to the law. Nor does it provide a proper basis to conclude that Mr Hunter has standing to litigate it even if it did. I am therefore not satisfied that Mr Hunter’s proceeding can withstand the current challenge. Taylor was a case dealing with whether or not the anti-smoking regulation was ultra vires the New Zealand Corrections Act 2004 or whether it came within the scope of the applicable regulation making powers. No similar or cognate issue arises from Mr Hunter’s challenge to reg 322 in these proceedings. I accept without reservation that Mr Hunter has genuine and strongly held concerns about the effect of the regulation upon current inmates in New South Wales, and upon the safe and harmonious administration of prisons in which they are housed. However, Mr Hunter’s passion and commendable belief in his cause does not operate to salvage what on any view is an otherwise hopeless case.

Conclusion

1. [22]

   In my view the proceedings must be dismissed with costs.