Hamzy v Commissioner of Corrective Services and the State of NSW

Bassam Hamzy (the plaintiff) is currently serving a sentence of full-time imprisonment. That sentence is administered by the Commissioner of Corrective Services (the defendant) [1] pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW) (the Act).

Pursuant to cl 15 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (the Regulation), which has been made pursuant to ss 79 and 271 of the Act, the defendant may designate an inmate as an extreme high risk restricted (EHRR) inmate if, and only if, he is of the opinion that:

The defendant has formed that opinion in respect of the plaintiff, and has designated him as an EHRR inmate. As a consequence, the plaintiff is serving his term of imprisonment in the High Risk Management Correctional Centre (HRMCC) in Goulburn, NSW.

Against this background, the plaintiff commenced four separate sets of proceedings in this Court in which he:

I was informed at the commencement of the hearing that the USB proceedings have been resolved on the basis of an agreement between the parties that the USB drive in question, which had remained in the custody of the Court, be returned to the plaintiff's representatives. That has now been done.

I was further informed that the plaintiff no longer wishes to pursue the BMP proceedings.

That leaves the judicial review proceedings and the RDA proceedings for determination.

The amended summons filed by the plaintiff in the judicial review proceedings seeks relief pleaded in the following terms: [6]

A joint tender bundle was admitted by consent. [9] The plaintiff read the following affidavits:

Neither the plaintiff nor Ms Burrows was cross-examined on those affidavits. It should be noted that although the joint tender bundle included three further affidavits of Ms Burrows, none of those affidavits were read.

The defendant read the following affidavits:

Neither Mr Poulsen nor Mr Ripperger was cross-examined.

A statement of agreed facts formed part of the evidence in the judicial review proceedings and is in the following terms:

In addition to the agreed facts, various parts of the affidavit evidence addressed the issues raised in the judicial review proceedings.

In his affidavit of 13 August 2017, Mr Poulsen explained that as an EHRR inmate the plaintiff is presently placed at the HRMCC. [10] This facility houses inmates who have been determined to represent a significant risk to correctional centre security as well as to the wider community, and who require a higher level of supervision than the general prison population. In terms of the restrictions placed by the defendant on communications by inmates in the HRMCC, Mr Poulsen said: [11]

Mr Poulsen also made reference to the general conditions which govern visits by legal representatives to EHRR inmates: [12]

In her affidavit of 20 September 2019, Ms Burrows deposed to the difficulties that she had experienced in being able to visit the plaintiff: [13]

Annexure D to that affidavit was an email sent by Ms Burrows to the defendant at 9:55am on 6 September 2019 in the following terms:

In terms of Ms Burrows’ visits to the plaintiff, Mr Poulsen said the following in his affidavit of 13 August 2017: [14]

In his affidavit of 15 October 2019, Mr Ripperger addressed the events surrounding Ms Burrows’ visit to the HRMCC on 6 September 2019: [15]

Ms Burrows also made reference to the issue of the plaintiff’s access to a laptop computer for the purposes of her being able to confer with him: [16]

In his affidavit of 23 September 2019, the plaintiff deposed to the difficulties that he has experienced in being given access to a computer, and to AVL facilities, whilst in custody. [17] He stated, in particular, that he had been denied access to a computer on three separate occasions since 16 August 2017, before saying: [18]

In his affidavit of 13 August 2017 Mr Poulsen said the following regarding access by inmates to computers: [19]

In terms of the plaintiff’s access to AVL facilities, Mr Ripperger explained his affidavit of 18 September 2019 that between 30 September 2009 and 4 July 2019 the plaintiff had been housed in an area of the HRMCC known as Area 1, and was transferred to Area 2 on 4 July 2019. [20] He explained that this relocation did not result in any material change to the plaintiff's access to computers, legal visits, telephone calls to legal representatives, AVL facilities or correspondence. [21] In terms of the plaintiff’s access to AVL facilities, Mr Ripperger explained that there are six AVL booths in Area 2 which are available to facilitate legal conferences on weekdays between 9:30am and 11:30am and 12:30pm and 2:30pm. [22] Mr Ripperger then said: [23]

In his affidavit of 13 August 2017, Mr Poulsen expressed his understanding that conversations over AVL could not be monitored. [24] He then said: [25]

Mr Ripperger also explained that a laptop computer owned by the defendant has now been assigned to the plaintiff, as part of the defendant's developing policy to facilitate access to computers by inmates. [26] He said that the plaintiff would shortly have access to a computer at all times when in his cell. [27]

Ms Burrows’ affidavit of 25 September 2019 annexed a bundle of documents which had been provided to her by the plaintiff. Generally speaking, those documents recorded complaints made by the plaintiff to the defendant about:

A further document issued by the defendant and entitled “Information for extreme high risk restricted inmates” was annexed to the affidavit of Ms Burrows of 25 September 2019. [28] Under the heading “Telephone calls and audio visual link (AVL) access”, the following was stated in the same document:

The contents of this document are generally consistent with that part of the affidavit of Mr Poulsen of 13 August 2017 in which he explained the practice of monitoring calls: [29]

The plaintiff has, for some time, taken issue with the defendant’s officers “dropping in” on his conversations with legal practitioners. For example, on 13 April 2016 he wrote to the defendant stating: [30]

On 2 December 2016 he again wrote to the defendant stating: [31]

In the course of argument I was taken by counsel for both parties to a number of provisions of the Act and the Regulation. They included the following.

Section 78A of the Act is in the following terms:

Section 79 provides (inter alia) as follows:

Section 232 of the Act confers a number of responsibilities on the defendant in the following terms:

The regulation making power is contained in s 271(1) of the Act:

A specific provision regarding regulations relating to high risk offenders is contained in s 271A of the Act:

Clause 3 of the Regulation defines a number of terms, including the following:

Clause 5, which is within Part 2 of the Regulation dealing with admission procedures applicable to correctional centres, is in the following terms:

Clause 15(3) gives the Commissioner power to designate an inmate as an extreme high risk restricted inmate:

Clause 82 (which is contained within Division 2) governs visits to an inmate by legal practitioners:

Clause 92 provides that Division 4, which addresses the control of visits to correctional centres and inmates, applies to all visits under Divisions 1, 2 and 3.

Clause 94 is contained within Division 4 of the Regulation, which makes provision for the control of visits to correctional centres and inmates. Clause 94 is in the following terms:

Clause 101 of the Regulation is in the following terms:

Particular arrangements may be made in respect of the inspection of legal documents pursuant to cl 103:

Clause 116 is in the following terms:

Clause 119 is contained within Division 7 which governs the use of (inter alia) telephones by inmates and is in the following terms:

In addressing ground 1(a) in the amended summons, senior counsel for the plaintiff emphasised the fundamental common law right of every person to choose his or her own legal representative(s). He submitted that as a person in custody, the plaintiff's right in that respect had been acknowledged, at least in part, by cl 82 of the Regulation. Senior counsel submitted that such a fundamental common law right cannot be restricted or removed except in the clearest of circumstances.

Senior counsel submitted that the evidence established that the defendant had at least restricted, if not revoked, the right of the plaintiff to choose his own legal representative by deciding to implement a policy which:

Senior counsel submitted that the defendant’s decision to implement such a policy amounted to “trampling" on the plaintiff's common law rights in a way which was unauthorised by law, and which amounted to the plaintiff being denied access to a legal practitioner. He submitted, in particular, that there was nothing contained in the Act or the Regulation which reflected any intention by the Parliament to impose restrictions on a person's right to choose, or have access to, a legal practitioner, nor was there anything in the Act or Regulation which reflected an intention to allow a practice which required a legal practitioner to submit to a CRI, and thus undergo what senior counsel described as a “burdensome" process, in order to be able to visit an EHRR inmate. Senior counsel submitted that it was both inappropriate and unlawful to require a legal practitioner to submit to a CRI in the absence of some express legislative provision permitting such a policy.

In advancing these submissions, senior counsel acknowledged that restrictions of this kind may be appropriate in the case of (as he put it) “other people” (i.e. people other than legal practitioners) who might want to visit the plaintiff. He developed this proposition by submitting that the process of requiring a legal practitioner to undergo a CRI was entirely unnecessary because it could be inferred, without enquiry, that any legal practitioner who held a current practising certificate was a person of no prior convictions. It was submitted that this demonstrated that the defendant’s policy was lacking in utility. As I understood it, senior counsel relied on that asserted lack of utility as a further indicator of the unreasonableness of the defendant’s decision to formulate and implement the policy.

It was further submitted that the proper administration of justice demanded that any legal practitioner acting for an EHRR inmate not be impeded in carrying out his or her professional duties. Senior counsel submitted that the process of requiring a legal practitioner to undergo a CRI necessarily gave rise to such an impediment.

Senior counsel further submitted that the conditions governing personal visits by a legal practitioner to an EHRR inmate, which prevent any physical contact between the two, further demonstrated the impermissible and unreasonable nature of conduct by the defendant which encroached upon the rights of the plaintiff. In this regard, senior counsel referred specifically to that part of Mr Poulsen’s evidence which, he submitted, established that an officer of the defendant may read a document for the purposes of determining whether it was prohibited. [32] It was submitted that this amounted to a violation of any legal professional privilege which might otherwise attach to material of that nature. [33]

Senior counsel for the plaintiff then turned to ground 1(b) of the amended summons, which challenged the defendant’s decision to refuse the plaintiff access to AVL facilities for the purposes of conferring with his legal representatives. Bearing in mind the evidence of Mr Ripperger as to the reasons why the plaintiff would not be granted access to AVL facilities, it was submitted that the defendant had no authority to “breach the entitlement of [the plaintiff] to complete confidentiality of discussions” with those representatives.

Senior counsel also pointed out that in the absence of being given access to AVL facilities for the purposes of such discussions, it was necessary for the plaintiff’s legal representatives to travel to Goulburn for that purpose. As I understood it, that circumstance was said to further reflect the unreasonableness of the defendant’s decision.

As to ground 1(c) of the amended summons, senior counsel for the plaintiff submitted that legal professional privilege is not a rule of practice, but an important substantive law. He submitted that there was nothing in the Act or the Regulation that abrogated that privilege, or which otherwise authorised the defendant to “drop in” on an inmate’s calls. Senior counsel submitted that there was no entitlement, absent a clear statutory intention, for any person to engage in a breach of legal professional privilege by “dropping in” on calls between a legal practitioner and an inmate. In advancing these submissions, he emphasised that the evidence established that such practice was an entirely discretionary one, in terms of determining:

It was submitted that the practice was a breach of legal professional privilege because those officers of the defendant who “dropped in" on calls necessarily gained an understanding of what legal advice an inmate was seeking and obtaining.

Beyond these matters, senior counsel relied, in support of this ground, on the submissions advanced in support of the relief sought in paragraph 1(b) of the amended summons.

Counsel for the defendant commenced by citing a number of general principles which, he submitted, were relevant to the resolution of the issues in the judicial review proceedings.

Firstly, counsel submitted that the right of a person to choose a legal practitioner was not absolute, and that there were necessarily circumstances in which that right could be curtailed, or even removed altogether, by legislation.

Secondly, whilst accepting that any inmate must not have his or her right to a fair hearing compromised, counsel submitted that what might be required to ensure that this is achieved will necessarily vary from case to case, and will depend, at least in part, on the nature of the proceedings in question, and the stage that such proceedings have reached.

Thirdly, counsel submitted that “prison legislation" such as the Act and the Regulation recognises the necessity for those who have the responsibility of administering and managing correctional authorities to have the power to properly carry out those tasks. This, it was submitted, informed any process of judicial review of the exercise of such power, and that it was necessary to strike a balance between the duties and responsibilities of correctional authorities to administer prisons, and the reluctance of the common law to construe legislation in a way which impedes access to the courts.

Against this background, counsel for the defendant turned firstly to ground (1)(a) in the amended summons. Counsel submitted that cl 94 of the Regulation does not deprive an inmate of access to a legal representative and that any inmate, including the plaintiff, remains able to choose and engage any legal representative who is willing to undergo a CRI. It was submitted that in all of these circumstances, cl 94(2) was clearly within the regulation making power conferred by the Act.

It was submitted that on the whole of the evidence, there was no basis for concluding that any of the decisions of the defendant regarding the approval of the plaintiff’s legal representatives were unreasonable, illogical or irrational. Counsel for the defendant submitted, in particular, that in the context of a high risk prison environment, it was not unreasonable for the defendant to approach issues relating to the approval of legal representatives on the fundamental premise that no individual can be assumed to be incorruptible.

It was further submitted that the requirement for a legal practitioner wishing to visit an EHRR inmate to undergo a CRI was far from burdensome, and was a practice which, not unreasonably, ensured that the defendant had up-to-date information about such practitioners. It was submitted that for the same reasons, it was not unreasonable for the defendant to implement a system of ongoing approval of legal practitioners by requiring that such process be repeated at 12 month intervals.

In terms of ground 1(b) of the amended summons, counsel for the defendant submitted that whilst it may be more convenient for the plaintiff to have access to AVL facilities, the evidence did not establish that the absence of access to such facilities had restricted his ability to properly prepare for litigation, or receive advice, to the point where his access to the courts, or his right to a fair hearing, had been compromised. It was submitted that the evidence of Mr Ripperger and Mr Poulsen established that a permissible consideration in determining whether the plaintiff should be given access to AVL facilities for the purpose of speaking with his legal representatives was the risk posed by the fact that conversations could not be monitored. It was submitted that the evidence did not establish any basis for concluding that the refusal to grant the plaintiff access to AVL facilities was unreasonable.

In terms of ground 1(c) of the amended summons, it was submitted that the defendant’s practice of “dropping-in" on calls was lawful. It was submitted, in particular, that the powers contained in the Act clearly included a power to monitor an inmate's telephone calls and that properly read, cl 119(6) of the Regulation necessarily implied that such monitoring was capable of extending to calls between an inmate and his or her legal representative. It was submitted that cl 119(6) reflected a legislative intention, as well as an expectation, that an appropriate balance be struck between the importance of the free flow of communication between an inmate and his or her legal representative, and the necessity for the defendant to maintain security and good order in those correctional centres which he administers.

In advancing these submissions, counsel for the defendant acknowledged the importance of, and the fundamental right to, legal professional privilege. However, he submitted that the effect of the practice of an officer “dropping in” on a call was to allow that officer to monitor a conversation in a way which did not permit that officer to become privy to the substance of what was being discussed. It was submitted that in these circumstances, no privilege was breached.

There are a number of general principles which provide an appropriate starting point for consideration of the issues in the judicial review proceedings.

To begin with, it is beyond doubt that every person has the right to choose his or her legal representative. In R v Khazaal Whealy J stated the principle in these terms: [34]

That right of choice is consistent with the principle that all persons are entitled to unimpeded access to the Courts. In Knight v Commissioner, Corrections Victoria Hollingworth J regarded such entitlement as part of the fundamental right to a fair trial. [35] In Commissioner of Corrective Services v Liristis Basten JA took the view that the right to a fair trial was not a single right, but one which encompassed a range of rights and entitlements necessary for the proper administration of justice. [36] In my view, however the scope of the right to a fair trial is approached, it must include the right of a person to choose his or her own legal representative.

The issues which arise in the judicial review proceedings must obviously be determined in the context of the plaintiff serving a term of imprisonment. Clark v Commissioner for Corrective Services [37] was a case in which it was asserted by an inmate of a correctional centre that aspects of his conditions of custody impeded him in the pursuit of various legal proceedings to which he was a party. A number of general principles concerning the management of correctional facilities, the powers conferred by the Parliament on those who carry out that function, and the limited extent to which Courts will generally interfere with decisions made in the exercise of such powers, emerge from the judgments of the members of the Court in that case, as well as from other authorities.

Firstly, it is important to recognise that within a custodial setting, rules can properly be applied to take account of individual circumstances. [38]

Secondly, the fact that a request for particular facilities which is made by an inmate might be regarded as reasonable does not establish that a refusal to meet the request is either unlawful or unreasonable. [39] Where the request relates to access to facilities for the preparation of legal proceedings, the particular stage which the proceedings have reached has a bearing upon whether an inmate needs to be provided with the facilities which have been requested. [40] To the extent that an application for judicial review relates to a refusal to provide such facilities to an inmate, it is relevant to consider the particular tasks which need to be undertaken, and why doing so is not practicable in the absence of the inmate being provided with the facilities which are sought. [41]

Thirdly, statutes which govern the discipline and control of those in custody must be construed and understood as being generally indicative of Parliament’s intention to give to those responsible for the administration and management of correctional facilities a broad discretion to make decisions, commensurate with the nature of the task, and the balancing of potentially conflicting considerations. [42]

Fourthly, whilst the breadth of any discretion given to those who are responsible for making decisions in the administration and management of a correctional facility is a matter of statutory construction, legislation conferring such a discretion should ordinarily be interpreted in a manner which gives full scope to the power of a correctional authority to carry out its tasks without undue influence from the courts. [43]

Further, whilst it must be recognised that prisoners are in a position of disadvantage, and that any abuse of power by prison authorities is unacceptable and can often have serious ramifications, the limits of a Court’s jurisdiction must be carefully observed, and Courts should generally avoid becoming enmeshed in the merits of decisions which are made in the context of prison management. This is primarily on account of the fact that the management of prisons involves complex practical considerations and security implications with which a Court may not be familiar, and which a Court may not fully appreciate. [44]

Finally, each of grounds 1(a) and 1(b) in the amended summons asserts that the defendant has acted unreasonably. In Associated Provincial Picture Houses v Wednesbury Corporation Lord Green MR observed that if a decision is so unreasonable that no reasonable authority could ever have come to it, then a court can intervene to rectify it. [45] Subsequent authorities have considered the meaning of the term “unreasonable" in the sense to which his Lordship referred.

In Secretary of State for Education and Science v Tameside Metropolitan Borough Council, [46] Lord Diplock said:

In Bromley London Borough Council v Greater London Council Lord Diplock described decisions falling into that general category as decisions that: [47]

That formulation was adopted by Wilcox J in Conyngham v Minister for Immigration and Ethnic Affairs, [48] before being considered by the High Court in Minister for Immigration and Citizenship v Li. [49] The following propositions can be drawn from the judgment of the plurality (Hayne J, Kiefel J (as her Honour then was) and Bell J) in Li:

With these matters in mind I turn to consider the specific grounds in the judicial review proceedings.

Ground 1(a) encapsulates two primary propositions, namely that:

As to the first of those propositions, the regulation making power is contained in s 271 of the Act. That power is complemented by s 79 of the Act which sets out the matters in respect of which regulations may be made. Those matters include visits to inmates. [57] The aspects of visits in respect of which regulations may be made include, but are not limited to:

The Regulation also includes the following:

Clause 92 makes it clear that a visit by a legal practitioner to an inmate, in exercise of the inmate’s entitlement under cl 82, is a visit to which Division 4 applies. That leads to the inevitable conclusion that the reference to “visitor” in cl 94(2) (which is within Division 4) must be taken to include a legal practitioner. The proposition that cl 94 does not apply to visits by legal practitioners tends wholly against the only sensible construction of these provisions of the Regulation.

In these circumstances, the entitlement of an inmate to be visited by his or her legal practitioner which is conferred by cl 82 must be read as being subject to cl 94(1) and (2). In other words, an EHRR inmate is entitled to be visited by a legal practitioner only if that person has been approved by the defendant. Part of that approval process may involve the legal practitioner having to undergo a CRI. Such an interpretation is consistent with the context and purpose of the Regulation as a whole.

Further, as I have previously set out, the authorities support the general proposition that legislative instruments such as the Act and the Regulation are to be interpreted in a way which gives full scope to the defendant to carry out the task of prison administration, and the associated task of the management of inmates, without undue influence from the Courts. There is, obviously, a need for the defendant to be able to exercise control over custodial facilities, and to maintain discipline, safety and security, [61] the importance of which cannot be understated. Clause 94(1) reflects that need.

The defendant’s approval of persons who visit EHRR inmates is necessarily an important regulatory function in the context of prison administration. Cl 94(1) reflects the intention of the Parliament to confer a power on the defendant to make decisions which are conducive to the good order and management of the correctional facilities that it administers.

In all of these circumstances I am satisfied that cl 94(1) of the Regulation is valid.

The plaintiff’s second proposition under ground 1(a) centred upon the asserted unreasonableness of the defendant’s decision to require legal representatives of the plaintiff to undergo a CRI before being granted approval to visit the plaintiff. For a number of reasons, I am unpersuaded that such decision is unreasonable.

Firstly, contrary to the submissions advanced on behalf of the plaintiff, cl 94(2) of the Regulation does not deny the plaintiff access to a legal representative. What it does is give the defendant power to require a legal representative to undergo a CRI before being approved to visit the plaintiff (or any other EHRR inmate). The proposition that cl 94(2) “tramples" upon the plaintiff's common law right to choose a legal practitioner should be rejected. There is nothing whatsoever in cl 94(2) which prevents the plaintiff from choosing, engaging, giving instructions to, conferring with, and receiving advice from, any legal practitioner. It requires only that if such legal practitioner is to visit the plaintiff in custody, he or she undergo a CRI, respond to any follow-up queries that may arise, and be approved.

Secondly, it is not unreasonable for the defendant to require any legal practitioner who wishes to visit the plaintiff (or for that matter, any other EHRR inmate) to undergo a CRI. One of the defendant’s fundamental tasks is to ensure the maintenance of good order in any correctional centre that he administers. No individual can be assumed to be incorruptible. Contrary to the submission advanced on behalf of the plaintiff, it is simply not open to assume that because a person is the holder of a current practicing certificate enabling him or her to engage in legal practice, he or she is a person of no prior convictions. As counsel for the defendant pointed out, there have been many instances in which the names of legal practitioners have not been removed from the roll notwithstanding convictions for serious misconduct. [62] In these circumstances, the proposition that that the defendant’s policies and decisions lack utility, and that this is indicative of unreasonableness, cannot be accepted. Moreover, the defendant’s policy of requiring a legal practitioner to undergo a CRI at 12 month intervals is similarly not unreasonable, and provides an important mechanism for ensuring that the information held by the defendant in relation to a particular legal practitioner is up to date.

Thirdly, requiring a legal practitioner to undergo a CRI is not, as the plaintiff would have it, a burdensome requirement at all, nor is it one which impedes a legal practitioner from going about his or her professional duties. On the evidence before me, the procedure involves a legal practitioner simply completing a form and providing it to the defendant. To the extent that the plaintiff relied upon the evidence of Ms Burrows regarding the events of 6 September 2019 to establish the unreasonableness of the defendant’s decision to require a legal practitioner to undergo a CRI, the unchallenged evidence of Mr Ripperger is that Ms Burrows was initially not permitted to enter the HRMCC because she had not made the necessary arrangements, firstly in terms of the booking process, and secondly in terms of ensuring that her approval was up to date. The unchallenged evidence of Mr Poulsen is that like any other legal practitioner, Ms Burrows must comply with relevant operational requirements in order to visit the plaintiff, or any other inmate at the HRMCC. Those requirements include seeking approval 48 hours in advance. Mr Poulsen also made reference to the fact that other applications by Ms Burrows have been refused by the defendant (inter alia) because of her failure to give advance notice. In these circumstances, it can be safely inferred that Ms Burrows was aware of the relevant requirements. The circumstances surrounding the events of 6 September 2019 arose from the failure of Ms Burrows to comply with those requirements, not from any unreasonableness on the part of the defendant.

Fourthly, there is nothing unreasonable in the defendant’s decision to require a legal practitioner, even if he or she has approval to visit one particular inmate, to obtain approval if some other inmate is sought to be visited. Such a decision is expressly contemplated by s 78A of the Act which provides that nothing in the Act requires that conditions of custody be the same for all inmates. Clearly, the Parliament has foreseen that situations may arise where inmates need to be treated differently in terms of their custodial conditions. It is not difficult to envisage that for a variety of reasons, there may be particular security issues that arise in respect of one inmate, but not in respect of another.

In all of these circumstances, I am not satisfied the defendant’s decision to require the plaintiff’s legal representatives to undergo a CRI is unreasonable.

It follows that ground 1(a) is not made out.

The plaintiff asserts that the defendant’s decision to deny him access to AVL facilities is both invalid and unreasonable. In dealing with this ground, two matters must be noted at the outset.

Firstly, a court should not grant declaratory relief unless there is a dispute, the facts are established, and a finding is made. [63] Granting declaratory relief on the basis of a set of hypothetical circumstances is inappropriate. Mr Ripperger’s evidence is that since the introduction of a revised system governing access to AVL facilities by EHRR inmates in the area where the plaintiff is currently held, the plaintiff has not made any application for such access. [64] However, Mr Ripperger has candidly stated that the inability to monitor conversations held over AVL would be a powerful consideration against granting any application made by the plaintiff for access to such a facility. In those circumstances, the impugned decision is anticipated, and thus hypothetical, rather than actual. However, in circumstances where the ground has been fully argued, it is appropriate that it be considered. Given the conclusion that I have reached, the fact that the impugned decision is hypothetical is of no consequence.

Secondly, some of the evidence adduced by the plaintiff, and some of the submissions made on his behalf based on that evidence, tended to venture into areas which extended well beyond the strict parameters of this ground. Those areas included a complaint about a lack of access to a laptop computer, as well as a complaint about the defendant’s policy in relation to the handling of documents produced in the course of legal conferences. It is necessary to bear firmly in mind that this ground is limited to challenging to the defendant’s decision to deny the plaintiff access to AVL facilities. It does not extend to a challenge to the conditions under which any access, if granted, would be exercised.

Fundamentally, the plaintiff has not explained why he needs access to an AVL facility to confer with any legal representative. The only affidavit of the plaintiff which was read in the judicial review proceedings was that of 23 September 2019. That affidavit does not contain any reference to other litigation in which the plaintiff engaged, much less does it establish that any such litigation has been compromised, to any degree, as a consequence of the fact that he has not been given access to AVL facilities. More specifically, the plaintiff has not asserted that these proceedings have been compromised in any way because of his lack of access to such facilities. There is no evidence whatsoever which establishes that the plaintiff’s right to a fair trial, or his right to access to the Courts, has been compromised in any way whatsoever by any decision to deny him access to AVL facilities for the purposes of conferring with his legal representatives.

One of the plaintiff’s principal complaints appears to be that access to AVL facilities for the purposes of conferring with his lawyers would be more convenient. That is not to the point. Inconvenience is not to be equated with unreasonableness. Further, the plaintiff’s expressed belief that he is the only inmate who is restricted from accessing AVL facilities is irrelevant. [65] Rules which operate within a custodial facility can be tailored to address individual circumstances. [66] In that regard it is evident, both from the agreed facts and the unchallenged evidence of Mr Ripperger, that any decision to refuse the plaintiff’s access to AVL facilities has been made, or would be made, partly on the basis that the defendant is not able to monitor conversations which take place when those facilities are used. The unchallenged evidence of Mr Poulsen is that granting the plaintiff access to AVL facilities would pose a significant security risk, and would give rise to an increased likelihood of the plaintiff engaging in illegal activities. In my view, it is entirely reasonable for the defendant to take such matters into account in determining whether to grant the plaintiff access to AVL facilities. In fact, it would be absurd if the defendant did not do so, given firstly, the nature of his responsibilities and secondly, the plaintiff’s lengthy criminal history which, significantly, includes the commission of offences whilst in the defendant’s custody. [67]

Finally, and importantly, it remains the case that within the bounds of the parameters discussed in the context of ground 1(a), the plaintiff has access to his legal representatives. For the reasons already stated, even if the requirement for those legal representatives to travel to Goulburn to see the plaintiff is viewed as inconvenient, that does not mean that the defendant’s decision to deny the plaintiff access to AVL facilities is (or would be) unreasonable.

For all of those reasons, ground 1(b) is not made out.

It is an agreed fact that under the defendant's policy, a call made by an EHRR inmate to his or her lawyer can be monitored. [68] In practical terms, that means that an officer of the defendant can listen to a call, briefly and randomly, to determine whether the call is being conducted:

If, during the period in which the call is monitored, the officer determines that one (or both) of these conditions has not been met, the call can be disconnected. A determination that a call be monitored obviously involves the officer making an evaluative judgment. In the event that a decision is made to monitor a call, the officer is then required to exercise his or her discretion at a number of different levels, including how often, and for how long, such monitoring should take place.

Clause 119(4) of the Regulation authorises the termination of an inmate's telephone call by a correctional officer on specific grounds. Further, clause 119(6) of the Regulation requires that all calls made by an EHRR inmate be conducted in English. Nothing in the text of either cl 119(4) or 119(6) suggests that those provisions should not apply to calls between an inmate and a legal practitioner.

In order to determine whether a particular ground is made out so as to justify the termination of a call, the defendant’s officer must obviously be privy, at least in a general sense, to the content of the call. The exercise of the power to terminate a call is dependent upon the defendant’s officer forming the view that there is a proper basis for taking that action. That necessarily assumes that the conversation is being monitored, to some degree, by that officer. The power to monitor such conversations is a necessary incident of the wide ranging responsibilities conferred on the defendant by s 232 of the Act. For the reasons previously discussed, all of these provisions must be construed as being indicative of the Parliament’s intention to give the defendant a broad discretion in maintaining security and discipline within a correctional facility.

Whilst it must be recognised that legal professional privilege is a fundamental right, [69] and whilst its importance cannot be gainsaid, I accept the submission that the defendant’s practice of “dropping in” to calls reflects the striking of an appropriate balance between the right of an inmate to maintain the confidentiality and privilege of communications with a legal representative, and the necessity for the defendant to effectively manage, and to monitor inmates housed in, a correctional facility. The fact that such a balance is appropriate is evident from the fact that on the unchallenged evidence before me, calls are monitored briefly and randomly, and only for such period of time as is necessary to ensure that the conversations are being conducted according to the defendant’s policy. [70] Based on this evidence, I am satisfied that monitoring calls in that way does not allow the officer in question to become privy to the substance of what is being discussed.

An analogy can be drawn between this practice and the inspection, in a custodial setting, of correspondence which may be subject to privilege. For example, in R v Secretary of State for the Home Department; Ex Parte Simms Kennedy LJ concluded that the practice of searching cells within a prison carried with it a power to examine correspondence for the limited purpose of determining whether it was bona fide correspondence between an inmate and his legal representative. [71] His Honour concluded that although this may involve what he described as an “impairment” of privilege, the maintenance of security was an essential aspect of prison administration, and there was a “self-evident and pressing need” for that degree of scrutiny. Such observations are apt in the present case.

The opposite approach was taken by Lord Bingham in R (Daly) v Secretary of State for the Home Department in which the House of Lords considered rules which authorised prison guards to examine (but not read) legally privileged communications. [72] In respect of the conclusion reached by Kennedy LJ in Simms, his Lordship said: [73]

Three observations may be made about his Lordship’s conclusions. Firstly, it is evident that such conclusions were based, at least in part, on his Lordship’s assessment that the degree of intrusion was greater than that which was justified by the policy. For the reasons I have already expressed, that does not represent the situation in the present case. The degree of intrusion brought about by the defendant’s practice of monitoring telephone calls is no greater than is justified in order to achieve the objectives of such practice.

Secondly, and in any event, the approach to this issue in Australia has been generally consistent with that adopted in Simms. [74] In a different context, the practice of looking at a document for the limited purpose of determining whether it is privileged has been described as a “lawful violation” of privilege. [75] I am fortified in that view by cl 103 of the Regulation which authorises an officer to inspect or examine, but not read, any document that is taken into a correctional centre by an inmate’s legal practitioner for the purpose of discussing or transacting legal business. There is no equivalent provision applicable to the telephone system operating in the HRMCC to which the plaintiff has access and which is subject to the monitoring process that I have described. However, that monitoring process is, functionally speaking, the equivalent of that provided for in cl 103 with respect to documents, and which the authorities have recognised as appropriate.

Thirdly, the issues in Simms and R (Daly) arose in a context of determining whether legislation abrogated the relevant privilege. The issues in the present case are raised, at least in part, in a context of considering the nature and extent of the defendant’s responsibility to provide a facility to inmates to have confidential communications with lawyers. The defendant is not under an obligation to provide facilities which allow inmates to have completely confidential conversations. In Smith v Commissioner of Corrective Services [76] Hutley JA, having noted the right of a person to prevent the disclosure of privileged communications, said:

For all of these reasons I am satisfied that the monitoring process does not breach the plaintiff’s access to confidential communications with his legal practitioners to any extent greater than that which is required for its stated purposes, or to an extent greater than the legislation allows. It follows that in my view, the defendant’s decision to monitor the plaintiff’s calls is not contrary to law.

Ground 1(c) is not made out.

For the foregoing reasons, the judicial review proceedings are dismissed.

The amended summons filed by the plaintiff in the RDA proceedings seeks relief pleaded in the following terms:

The affidavits read in the judicial review proceedings were also read in the RDA proceedings. The document issued by the defendant which was annexed to the affidavit of Ms Burrows of 25 September 2019 included the following about visits to inmates: [77]

The primary evidence in the RDA proceedings was a further statement of agreed facts in the following terms:

The principal legislative provisions which bear upon the issues raised in the RDA proceedings include clauses 101, 116 and 119 of the Regulation which have already been set out. [78] The following additional provisions are relevant.

Section 9 of the Racial Discrimination Act 1975 (Cth) (RDA) is in the following terms:

Section 10 of the RDA is in the following terms:

Section 109 of the Commonwealth of Australia Constitution Act (the Constitution) is in the following terms:

Senior counsel emphasised that the plaintiff had sought, for some time, to have the right to speak to members of his family in the Arabic language when they visit him in custody. It was submitted that a person’s right to speak in his or her own language is a right which is able to be exercised by any Australian, and that any prohibition on the exercise of that right was unjustified, discriminatory, and contrary to law. It was submitted that no state, or state instrumentality, was entitled to interfere with such a right, and that any justification for doing so which had been advanced by the defendant in the present case was contrary to law.

Senior counsel submitted that the prohibition placed upon EHRR inmates in terms of speaking a language other than English was not something which was done for their benefit, nor was it something done for the purposes of “advancing them in life”. Senior counsel submitted that it was put in place in order to restrict their entitlements and that there was nothing permitting the defendant to take that course.

Counsel for the defendant submitted that the purpose of clauses 101, 116 and 119(6) of the Regulation was not to constrain the right of any inmate to freedom of expression but rather to ensure that the communications of EHRR inmates could properly be monitored for security and related reasons. Counsel submitted that those clauses were concerned with the security of both the correctional centre and the broader community.

Counsel for the defendant emphasised that it was necessary to give these provisions a practical and sensible construction. He submitted that in order for the defendant to properly carry out his functions, it was necessary for communications be conducted in a language that was capable of being properly and effectively monitored and that as a practical matter, that language was English. It was submitted that this reflected not only the fact that English is Australia's most widely spoken language, but also the fact that it is Australia's “de facto" national language, in the sense that it is the language of the legislative, executive and judicial arms of the Government of this State.

Counsel for the defendant identified that a central question raised in the RDA proceedings was what was meant by the requirement that a communication be conducted in English. It was submitted that a communication will be in English if a hypothetical ordinary English speaker listening to or reading the communication would be able to understand it. It was submitted that understanding was crucial because without it, there could be no meaningful monitoring on the part of the defendant for security and related purposes, which the clauses under consideration were designed to ensure.

To the extent that the plaintiff submitted that provisions of the Regulation contravened, or were inconsistent with, ss 9(1) and 10(2) of the RDA, counsel for the defendant emphasised that both of those sections operated by reference to rights. Those rights are defined in ss 9(2) and 10(2) of the RDA to include rights of a kind referred to in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (“the Convention”) which is in the following terms:

Counsel submitted that it was necessary for the plaintiff to clearly and precisely identify the right(s) he sought to protect. It was submitted that in light of the submissions advanced on behalf of the plaintiff, only one such right had clearly been identified, namely the asserted right of the plaintiff to speak and/or otherwise express himself in Arabic. In addressing the central question of whether that right engaged s 9(1) or s 10(1) of the RDA, counsel for the defendant submitted that it was appropriate to have regard to decisions of international courts and tribunals, other international decision-making bodies, and foreign municipal courts. It was submitted that reference to materials of that kind established that the rights referred to in Article 5 of the Convention were not exhaustive, and were informed by other international instruments including, in particular, The International Covenant on Civil and Political Rights (“the Covenant”).

Counsel for the defendant accepted that there is a human right to freedom of expression. He submitted that properly understood, the principal issue in the present case was whether that right extended to, or encompassed the plaintiff’s asserted right to communicate with others in the language of his choice in all circumstances. By reference to various authorities, counsel submitted that such right did not engage either ss 9(1) or 10(1) of the RDA.

It was further submitted that even if the plaintiff’s asserted right did engage one or other of those sections, the plaintiff’s case should nevertheless fail. It was submitted, in particular, that no issue arose under s 109 of the Constitution because no provision of the Regulation:

In light of the submissions of the parties, the resolution of the RDA proceedings involves a consideration of four questions, namely:

In determining what constitutes a conversation “in English”, it is relevant that the following facts are agreed:

Self-evidently, a communication will be in English where it consists entirely of English words, phrases and expressions. However, in light of the development of the English language, a conversation may be in English even when it includes words which have been “borrowed' from other languages, and thus incorporated into the English language. In English Vocabulary Elements [86] the authors make the following relevant observations: [87]

Further, a conversation may be in English where it consists predominantly of English words, expressions and phrases, but where it also includes foreign words, expressions and phrases. For example, the agreed facts in the RDA proceedings include Arabic phrases which are based on Quranic verses which can obviously be understood by those who are party to conversations in which they are included. [88]

Sections 9 and 10 of the RDA operate by reference to identified rights. It follows that a fundamental step in determining whether the relief sought by the plaintiff should be granted is to identify, clearly and precisely, the rights which are asserted. [89]

The agreed facts include the following: [90]

The written submissions of senior counsel for the plaintiff made reference to the plaintiff having sought “for some time the right to speak to members of his family during visits in the Arabic language". [91] The submissions then made reference to “the right to speak in a person’s language". These references were repeated in oral submissions in the following terms: [92]

In these circumstances I have proceeded on the basis that for the purposes of the RDA proceedings, the right asserted by the plaintiff is a right to speak and/or express himself in Arabic in all circumstances. I should say that although the submissions made tangential references to the plaintiff’s religion, no such right was ever asserted in precise terms on the plaintiff’s behalf. It is obviously incumbent upon the plaintiff to clearly articulate the right(s) he asserts. It is not for the Court to guess what is relied upon.

The RDA ratifies the Convention, and those parts of it which are included in the Schedule to the RDA are incorporated into Australian law. [93] The effect of this was explained by Brennan J (as his Honour then was) in Koowarta v Bjelke-Petersen: [94]

It follows that decisions of international courts and tribunals are appropriately taken into account in determining the meaning of provisions of the Convention, as well as any Australian law (such as s 9(1) of the RDA) that gives effect to it. However, when taking into account such decisions, it is important to bear in mind the caution expressed by French CJ in Maloney: [95]

Article 5(d)(viii) of the Convention identifies a right to freedom of opinion and expression. Given the way in which the plaintiff’s case has been put, the question for this Court is whether that right either extends to, or encompasses, a human right to communicate with other people, in all circumstances, in the language of a person's choice (in this case the Arabic language). The determination of that question necessitates reference to a number of authorities.

In Iliafi & Ors v Church of Jesus Christ of Latter-Day Saints Australia the respondent had been established for (inter alia) the furtherance of religious purposes. [96] Within its structure, it created Samoan-speaking groups known as “wards”, of which the appellants were members, and within which the appellants worshipped as a group in their native Samoan language. The respondent closed the wards, following which it announced that the appellants were no longer permitted to use any language other than English in public worship. As a consequence, the respondents could no longer publicly sing or testify in the Samoan language in religious services.

The appellants brought proceedings in the Federal Magistrates Court (as it was then known) asserting that the respondents had acted contrary to s 9 of the RDA. Having noted that the appellants sought to invoke the right to freedom of expression in Article 5(d)(viii) of the Convention in support of the existence of a right to worship publicly as a group in the Samoan language, [97] Kenny J (with whom Greenwood and Logan JJ agreed) concluded: [98]

His Honour went on to say: [99]

The latter conclusion was reached by his Honour by reference to the decision of the Human Rights Committee of the United Nations in Ballantyne v Canada. [100] In that case, those bringing the proceedings conducted various businesses in Québec. Their mother tongue, and that of many of their clients, was English. They each asserted breaches of provisions of the Covenant by the Federal Government of Canada, as well as by the Province of Québec, on the basis that they were forbidden to use English for the purposes of advertising on commercial signs outside their business premises, or use English within the names of their respective firms. The Committee concluded that the restrictions which had been placed on advertising in the English language violated the right to freedom of expression contained in Article 19 of the Covenant. Significantly however, the Committee also said: [101]

The corollary of that proposition is that a state may exclude the freedom to express oneself in a language of one's choice within spheres of what might be regarded as “public life”.

Some assistance in interpreting what is meant by “public life” in this context is to be found in the decision of the European Commission (the predecessor to the European Court of Human Rights) in Fryske Nasjonale Partij v Netherlands. [102] In that case, members of a Frisian political party had attempted to engage in correspondence with people in various tiers of the Government of the Netherlands using the Frisian language. They refused to submit translations of their correspondence into the Dutch language and argued that the Government’s refusal to allow them to use the Frisian language for administrative purposes constituted a violation of the Convention. The Commission found that the communications related to “administrative matters”, a private context which did not confer a right to use the language of one’s choice: [103]

A similar approach was taken by the Human Rights Committee in Guesdon v France. [104] The complainant in that case was a Breton. His mother tongue was Breton and although he could speak French, Breton was the language in which he could best express himself. He was charged with having damaged public property and had requested before a Correctional Tribunal that he and his witnesses be permitted to give their evidence in Breton, on the basis that this was the language used by each of them on a regular basis. That request was refused by the Tribunal and the hearing proceeded. The complainant was given a suspended sentence and asserted before the Committee that the French Courts had violated a number of his rights, including his right to freedom of expression, his right to equal treatment, and his right to the enjoyment of minority rights such as the use of a minority language. The Committee concluded that the right to freedom of expression in Article 19 of the Covenant did not give a person a right to use his or her preferred language in a Court proceeding, such a proceeding being one conducted in the exercise of a public function by the State. Having observed that the fact that a person is not able to speak the language of his or her choice did not raise any issue under Article 19 of the Covenant, [105] the Committee concluded: [106]

The decision of Kenny J in Iliafi is authority for the proposition that the right to freedom of expression does not guarantee a right to use the language of one’s choice in all circumstances. The common thread to be drawn from the decisions in Ballantyne, Fryske and Guesdon is that in determining whether there are circumstances which do guarantee that right, an important distinction is to be drawn between communications made in a public context and those made in a private context. If the communication falls into the former category, there is no right to use the language of one’s choice. It may be otherwise if the communication falls into the latter category.

In my view, the application of these principles to the plaintiff’s case leads to a conclusion that the right to freedom of opinion and expression does not encompass the right that the plaintiff asserts, namely the right to speak and/or express himself in Arabic in all circumstances, including the circumstance of his being an inmate in a correctional centre. As was the case with the Court in Guesdon, a correctional centre is a public facility operated by the State, a circumstance which can be contrasted with the private contexts considered in Ballantyne and Fryske.

The decision Nguyen v Refugee Review Tribunal provides, by way of analogy, some further support for this view. [107] In that case, the appellant had made an application for refugee status and a temporary entry permit. The documents supporting those applications were written in the Vietnamese language, and accompanied by an English translation. A letter was sent to the appellant, in English, advising him that his applications had been refused, and also advising him of his right to seek a review of that decision before the Refugee Review Tribunal. An application to that Tribunal was rejected because of a failure to submit it within the stipulated 28 day period. A further letter, again written in English, was sent to the appellant advising him of that rejection. The appellant asserted that because his inability to read English, he was less able to enjoy the right to be notified of the decision than a person of another race who was able to understand English. In dismissing the appeal Tamberlin J observed: [108]

Sundberg J said: [109]

The communications sent to the appellant in Nguyen were sent in the discharge of a public function by the Government. The effect of the Court’s decision is that in such circumstances, it is open to the Government to determine the language in which such communications can be made. In the present case the State, represented by the defendant, has an obvious interest in the language in which inmates communicate. That interest stems from the defendant’s responsibility to administer, and maintain good order in, correctional facilities. That interest is sufficient to warrant the defendant being able to select the language in which such communications can occur.

For these reasons, the right to freedom of opinion and expression in Article 5(d)(viii) of the Convention does not extend to, or encompass, a human right to communicate with other people, in all circumstances, in the language of a person's choice. It follows that the plaintiff's asserted right is not a human right as a matter of international law. Accordingly, it is not a right which engages either ss 9(1) or 10(1) of the RDA.

Before leaving these issues, I should emphasise that nothing that I have said in the preceding paragraphs should be construed as expressing a view that a person who is in custody is to be regarded as (as counsel for the defendant described it) “civilly dead", or a person whose human rights are “checked at the door". Under English law, any convicted prisoner, in spite of his or her imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. [110] That is also the position in Australia. [111] At the same time, the rights of the plaintiff, as an EHRR inmate, are necessarily curtailed as a consequence of the fact of his imprisonment. It is in those circumstances that I have reached the conclusions set out above.

Even if I am wrong in those conclusions, there are further reasons why the RDA proceedings must fail.

Section 9(1) of the RDA makes it unlawful for a person to do any act:

For the reasons I have previously expressed, I am not satisfied that the right asserted by the defendant is a human right, in which case the requirement in (iv) would not be made out. However, even if it was, the RDA proceedings, insofar as they are based upon s 9(1) of the RDA would still fail.

The effect of s 9(1) is that is prohibits certain acts which are based on race, colour, descent or national or ethnic origin. In the context of the present case, the plaintiff asserts that the act of the defendant requiring him to speak English in the course of visits is one which is based on one or more of those factors.

The submissions of counsel for the defendant pointed out that conflicting views have been expressed as to the meaning of the term “based on” when used in this context. One line of authority favours the view that an act will be (for example) based on race if it is an act done by reference to race, such that there is no need for a causal relationship between the two. [113] The other line of authority favours the view that a causal relationship must exist between the matters that influenced the act, and the act itself. [114] On that basis, the relevant enquiry is whether the relevant distinction is a material factor in performing the relevant act. [115]

It is not necessary for me to attempt to resolve that conflict. In the present case, the act of the defendant about which the plaintiff complains is the act of requiring him to speak English when being visited, pursuant to cl 101 of the Regulation. There is no evidence whatsoever that it is an act based on race, be it in the sense of an act done by reference to race, or an act done in which race is a material factor in the act being performed. Accordingly, irrespective of how the phrase “based on” might be interpreted, s 9(1) of the RDA has no application, and no issue under s 109 of the Constitution arises.

Finally, s 10(1) of the RDA operates to confer, upon persons who are discriminated against, the enjoyment of a relevant right to the same extent as it is enjoyed by persons of another race, colour or national or ethnic origin. [116] For the reasons I have previously expressed, I am not satisfied that the right asserted by the plaintiff is one which falls within s 10(1). Even if it did, the plaintiff’s action based on s 10(1) would fail. This is because there will be no breach of s 10(1) if a person does not enjoy a human right, or does so to a lesser extent, because of his or her individual personal circumstances. [117] In the present case, the fact that the plaintiff is required to speak English during visits arises from the personal circumstances of his being in custody.

Accordingly, s 10(1) of the RDA has no application and similarly no issue under s 109 of The Constitution arises.

For the reasons set out, the RDA proceedings are dismissed.

I make the following orders: