Hamzy v Commissioner of Corrective Services

1. [1]

   HIS HONOUR: The plaintiff, Bassam Hamzy, is self-represented and seeks declarations from the Court and certain other orders. By order of the Court, six questions were identified to be determined separately from any other question in the proceedings. Those questions are:

   1. (1)

      Whether the plaintiff is entitled to a declaration that clause 166(5) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“the CAS Regulation”) is invalid on account of inconsistency with s 228(5) of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the CAS Act”);

   2. (2)

      Whether the plaintiff is entitled to relief setting aside or declaring invalid the decision of an Assistant Commissioner on 8 April 2022 to decline to give him (the plaintiff) permission to make a telephone call to a legal practitioner;

   3. (3)

      Whether the plaintiff is entitled to a declaration that the requirement in clause 94 of the CAS Regulation for the legal practitioners to undergo criminal record checks is invalid on account of:

   4. (4)

      Whether the plaintiff is entitled to a declaration that the decision not to approve the use of tablets by inmates at the High Risk Management Correctional Centre for the making of personal telephone calls or telephone calls to legal practitioners was invalid;

   5. (5)

      Whether the plaintiff is entitled to a declaration that clause 115 of the CAS Regulation does not permit (or validly permit) the opening and inspection, and reading and copying, of letters or parcels sent by an inmate to his or her legal practitioner; and

   6. (6)

      Whether the plaintiff is entitled to a declaration that clause 116 of the CAS Regulation does not apply (or validly apply) to correspondence sent to a legal practitioner.

2. [2]

   Pursuant to the orders made on 7 June 2024, the defendant has filed and served a statement of facts agreed between the parties, which was filed on 23 September 2024. Except for certain issues of detail, the context in which these declarations are sought is relatively uncontroversial and the facts are within short compass.

3. [3]

   The plaintiff was convicted of very serious offences, including murder; conspiracy to murder; being knowingly concerned in the importation of prohibited drugs; malicious wounding with intent to do grievous bodily harm; malicious discharge of a pistol with intent to do grievous bodily harm; discharge of a firearm with intent to commit an indictable offence; threatening to use a firearm with intent to prevent or hinder lawful apprehension; supplying a prohibited drug; supplying a prohibited drug in a commercial quantity; supplying a prohibited drug in a large commercial quantity; detaining a person in company with intent to obtain a financial advantage; assaulting a law enforcement officer; and knowingly dealing with the proceeds of crime.

4. [4]

   At the time of the Agreed Facts, the plaintiff was serving a custodial sentence of 40 years and 3 months which will expire on 14 June 2042. The plaintiff is housed in the High Risk Management Correctional Centre at Goulburn and is classified as an Extreme High Risk Restricted (“EHRR”) inmate.

5. [5]

   The proceedings came on for hearing before the Court on 10 December 2024 and the Court was aware that the legislature had introduced into the Legislative Assembly the Crimes (Administration of Sentences) Amendment Bill 2025 on 19 November 2024. It was passed on 12 December 2024.

6. [6]

   Subsequent to the hearing, the Bill was introduced into the Legislative Council on 12 February 2025, certain amendments were made, which were agreed by the Legislative Assembly on 18 February 2025. The Bill was assented to on 2 March 2025 and impacts the legislative regime governing the issues relating to the questions before the Court.

7. [7]

   As a consequence of the passing of the new legislation, leave was granted to file supplementary submissions in relation to the impact of the amending Act which were filed by the defendant and the plaintiff on 25 and 27 July 2025 respectively. The provisions of the Inspector of Custodial Services Amendment Act 2025 (NSW) have not commenced. Relevant to these issues is also the amendment made to the Crimes (Administration of Sentences) Act by the Crimes (Administration of Sentences) Amendment Act 2025 (NSW), which has commenced.

8. [8]

   However, the consolidated statute, being the Crimes (Administration of Sentences) Act 1999 (NSW) does not yet include the amendments promulgated as part of the Inspector of Custodial Services Amendment Act 2025 (a reference to schedule 2(1), (2) and (4)). The Court cannot delay the determination of the proceedings any longer and the 2025 amendments to the Inspector of Custodial Services Amendment Act 2025 may never commence. Leaving aside a short adjournment to accommodate legislation that is imminent, the Court is required to deal with the matter on the basis of the law as it stands.

Facts and background

1. [9]

   The issues between the plaintiff and the defendant have been the subject of significant litigation. Judgments of this Court have dealt with the variety of issues agitated by the plaintiff in relation to the conditions imposed upon him as a result of his incarceration. In particular, the Court of Appeal dealt with very similar issues and issued judgment on 23 February 2022. [1] The Hamzy 2022 judgment obviates the necessity to repeat or reiterate much of the reasoning that would otherwise be required, including the history of the legislation and the common law.

2. [10]

   The first question identified above deals with an invalidity that is said to exist in clause 166(5) of the CAS Regulation. The Regulation deals with the role of the Official Visitor and clause 166(5) of the CAS Regulations exempts complaints or enquiries received from, inter alia, prisoners categorised as EHRR, which is the category into which the plaintiff is classified, and other classifications (hereinafter referred to collectively as “relevantly classified inmates”).

3. [11]

   The second question relates to a decision of an Assistant Commissioner to decline a request by the plaintiff to add a legal practitioner, Ms Bortolotti, to the plaintiff’s list of approved telephone contacts. As a fact, it is accepted by the parties that such a decision was reached.

4. [12]

   At the time the decision was reached, the plaintiff had included on his list of approved telephone contacts six legal practitioners and an employee of a legal practice, none of whom was Ms Bortolotti.

5. [13]

   By email dated 29 March 2022, Ms Bortolotti indicated to the defendant that she did not act for the plaintiff. Such fact is also uncontroversial.

6. [14]

   The challenge to clause 94 of the CAS Regulation, the third question, relates to legal practitioners undergoing the criminal record check before being allowed to visit an EHRR inmate. It is accepted by the parties that the defendant requires such legal practitioners to undergo a criminal check before the defendant would approve the legal practitioner as a visitor to an EHRR inmate.

7. [15]

   Lastly, in terms of the Agreed Facts, it is accepted by the parties that electronic tablets are made available to inmates at other prisons and were made available to the plaintiff at another correctional centre. Such inmates that are provided with the tablets are not permitted to use them to make personal telephone calls or telephone calls to legal practitioners.

8. [16]

   The plaintiff does not have access to an electronic tablet at Goulburn, where he is currently accommodated. He did have access to a tablet from which he was able to make telephone calls in April 2023, November 2023 and January 2024, when he was housed at the Metropolitan Remand & Reception Centre, in relation to the first two dates, and at Long Bay Correctional Centre in relation to January 2024.

9. [17]

   Apart from the Agreed Facts, affidavit evidence has been adduced in the proceedings. Objection was taken to parts of the affidavit of the plaintiff.

10. [18]

    The plaintiff, being self-represented, dealt with a number of matters that were in reality submissions and have been treated in that way, as well as some other matters that are not relevant to the determination of the separate issues that are currently before the Court. While there was cross-examination by the plaintiff of Ms Nicholson, a deponent to an affidavit, there is little controversy in the material which forms the basis for the Court to answer the questions posed.

11. [19]

    Much of the material in the affidavit of the plaintiff relates to discretionary issues associated with his poor, unlawful or inappropriate treatment in prison. It also deals with findings said by the plaintiff to be corroborative of the unfairness to which he refers.

12. [20]

    The preceding comment does not diminish the seriousness of the alleged unfairness or deprecate the complaints of the plaintiff. Nevertheless, the questions posed, which the Court must answer at this stage of the proceedings, relate to the capacity of the decision-maker, to which the Court will return.

13. [21]

    The affidavit of Susan Mitchell, sworn 12 September 2024, details the steps taken in relation to computers supplied to inmates and the steps taken to ensure that the computers that are given do not enable the prisoners to undertake activities that are seen as a security concern. The security concerns identified in the affidavit include: access to unauthorised materials; unauthorised communications between inmates (by one inmate saving a document for viewing by another, either on the hard drive or on a USB); unauthorised communications outside the gaol; covert recording of interactions between inmates or inmates and staff; and the inability of officers to monitor the use of the computers.

14. [22]

    Because of those concerns, the computers that are provided to inmates are managed by installing an “image” which alters that which would otherwise be available as a generic application on most computers. For example, the computer will not have networking capacity, may not have a USB drive, will not have access to the internet, and the like.

15. [23]

    Over and above the foregoing issues, Ms Mitchell deals with the “E-brief program” developed in 2017. The E-brief computers are pre-loaded with materials provided by the inmate’s legal practitioner or prosecuting authorities.

16. [24]

    The plaintiff has currently been given access to two E-brief laptops supplied by Corrective Services. Ms Mitchell refers to a variation of the “E-brief” computer which allows access to additional documents and was first made available by the AFP in November 2023.

17. [25]

    The E-brief program is not a system that is available to the general inmate population and is provided by the AFP to inmates being prosecuted in certain matters in which the AFP is involved. The Court is independently aware that such computers have been used in terrorism cases before this Court and was developed following issues that arose that prevented a person charged with terrorism offences from properly preparing the litigation and providing instructions to the legal representatives appearing.

18. [26]

    It has been detailed by Ms Mitchell that the complexities associated with ensuring that, when a computer is supplied to an inmate, the computer is able to upload prosecution material and material from the inmate’s legal representatives but still enable the inmate to print and otherwise supply legal representatives with the material prepared while in prison. The costs associated with the creation of such systems are also detailed but not quantified. Those costs are manifest and irrelevant to any issue required to be decided in this judgment.

19. [27]

    The affidavit of Ms Mitchell also provides the details of the different bodies responsible for each of the relevant steps. There are two affidavits of Malcolm Brown sworn 12 August 2024 and 13 September 2024. The first affidavit is irrelevant to the current proceedings. The second affidavit which exhibits records relating to the plaintiff evidences the security risks that are said to be associated with providing a laptop to the plaintiff. Some material in the affidavit is the subject of the Agreed Facts.

20. [28]

    The affidavit deals with what is alleged to be past misconduct of the plaintiff in custody, which includes breaches relating to the unlawful use of a phone or fax machine, possession of a mobile phone or part of a mobile phone and the viewing of a recording of dog fights on a computer at one of the correctional centres. Other breaches are noted, but do not relate to the possession or use of electronic communication devices. Again, I do not consider these circumstances to be relevant to the legal issues required to be decided here.

21. [29]

    Mr Brown’s affidavit of 13 September 2024 provides greater detail about the security risks to which the affidavit of Ms Mitchell referred, and which have been described above. It is otherwise unnecessary to summarise the evidence as the questions can be answered without reference to any further material, except as otherwise specified. It is the existence of the security risk that is relevant, not its details.

Legislative framework

1. [30]

   As earlier indicated, the plaintiff’s challenge relates in part to that which are said to be implied freedoms and rights obtained or granted under the Constitution in relation, in particular, to federal offences. It also relies upon that which is said to be ultra vires conduct of the Commissioner of Corrective Services or his/her delegate.

2. [31]

   The excess of jurisdiction is dependent upon two related matters: first, that properly construed, the regulations do not permit the conduct in which the Commissioner engaged; and second, to the extent that the regulations permit such conduct they are ultra vires the statute and/or inconsistent with the rights and/or freedoms granted by the Constitution.

3. [32]

   As may have already been obvious, the relevant statutory framework is provided by the Crimes (Administration of Sentences) Act 1999 and the regulations made pursuant thereto. There is some indirect relevance associated with the operation of the Inspector of Custodial Services Act 2012 (NSW), but the relevance of this statute is affected more directly by that which may ultimately commence and has been promulgated as the Inspector of Custodial Services Amendment Act 2025.

4. [33]

   The provisions of the CAS Act relevant to the current issues are ss 79, 228(5) and 271. Those provisions are in the following terms:

5. [34]

   Before outlining the provisions in the regulations that are relevant to the current proceedings, it should be noted that the provisions of s 228(5)(c) and (d) require the Official Visitor to receive and deal with complaints and report to the Minister and Inspector of Custodial Services at least once every six months, in each case “in accordance with the regulations”. Thus, the regulations and the process prescribed by them are central to the functions there described.

6. [35]

   Many of the regulations are relevant to the current proceedings. They include clauses 94, 113, 115, 116, 119, 165, 166, 167 and 169.

7. [36]

   Clause 94 of the CAS Regulation permits a person to visit an EHRR inmate, being an inmate in the classification of the plaintiff, only in circumstances where the person has been approved by the Commissioner as a visitor to that inmate. It also permits the Commissioner to require such a visitor to undergo a criminal record check before approving the person as a visitor to an inmate classified in that way.

8. [37]

   By sub-clause (3), the Commissioner is permitted “on the basis of a criminal record check or for any other reason” to refuse to approve a person as a visitor to such an inmate and by sub-clause (4) may revoke an approval at any time.

9. [38]

   The provisions of clause 94 are said not to limit the general power of a governor to refuse to allow a person to visit an inmate under clause 106, which deals with the refusal to allow a visit where the authorised officer is of the opinion that the visit “would prejudice the good order and security” of the correctional centre. The phrase “or any other reason” was determined not to be applicable to legal practitioners as it would otherwise be beyond power. [2]

10. [39]

    Clause 113 of the CAS Regulation deals with correspondence to and from an inmate from an exempt body or exempt person and requires that the correspondence, in the case of a letter from an inmate, be sent to the exempt body or exempt person without opening, inspecting or reading the correspondence. Similarly, if correspondence is received from an exempt body or exempt person, the letter must be delivered to the inmate without opening, inspecting or reading it. There are requirements relating to a declaration from the exempt body as to the contents of the letter or parcel.

11. [40]

    By sub-clause 113(4), if the nominated officer is of the opinion that the letter or parcel may contain prohibited goods, the letter or parcel is required to be opened by the inmate in the presence of the nominated officer and, if its contents do contain prohibited goods, the nominated officer may confiscate the letter or parcel and deal with it in accordance with the directions otherwise provided.

12. [41]

    By sub-clause 113(5), the provisions of clause 113 do not apply to relevantly classified inmates. The immediately preceding exemption is contained in clause 115 which requires a governor or nominated officer (hereinafter “officer”) to open, inspect, read and copy the contents of any letter to a prisoner classified in that way.

13. [42]

    The requirement does not apply to correspondence received from an exempt body or an exempt person. Nor does it apply to a letter or parcel received from a legal practitioner, provided the letter or parcel is accompanied by a note addressed to the governor from the legal practitioner declaring, amongst other things, that it be delivered without opening, that it does not contain any prohibited goods, that its contents relate to the inmate’s affairs and are legally privileged, and if it contains the name and contact details of a person who can confirm those facts. The foregoing applies only when the nominated officer has confirmed with the legal practitioner that the practitioner has in fact sent the parcel or letter. [3]

14. [43]

    Clause 116 of the CAS Regulation deals, in similar terms, with correspondence sent by a relevantly classified inmate. It requires that the correspondence be in English or in a language approved by the Commissioner and, if not written in English, permits the governor or nominated officer to arrange for a translation. It allows an inmate classified in a similar manner to the plaintiff to send a letter or parcel only with the written approval of the Commissioner, unless the letter or parcel is addressed to an exempt body or an exempt person.

15. [44]

    Clause 117 of the CAS Regulation requires the prison system to keep a register of all correspondence sent or received by a relevantly classified prisoner.

16. [45]

    Clause 118 of the CAS Regulation prescribes that, subject to clauses 115 and 116, the CAS Regulation does not limit correspondence between an inmate and the inmate’s legal practitioner in respect of matters affecting the inmate’s trial, conviction or imprisonment.

17. [46]

    Clause 119 of the CAS Regulation relates to telephone calls and faxes. There seems to be no equivalent provision in relation to emails. Nevertheless, clause 119 prevents an inmate from making a telephone call or sending a fax without the permission of an authorised officer.

18. [47]

    Further, the inmate is not entitled to make more telephone calls or send more faxes in any week than the maximum number fixed by the Commissioner for the inmate or class of inmates. A correctional officer may terminate any telephone call or fax communication if of the opinion that it would prejudice the good order and security of the prison, constitute a threat to the personal security of any person, or if the call or communication is conducted in contravention of clause 119. The clause also requires that the telephone calls by a relevantly classified inmate must be conducted in English or another approved language, unless made to an exempt body or unless the Commissioner otherwise authorises.

19. [48]

    Clause 119B of the CAS Regulation permits, purportedly pursuant to s 79(1)(j) of the CAS Act, a telephone call made or received by an inmate to be monitored or recorded except if the call is with an exempt body or an exempt person.

20. [49]

    It is appropriate to refer to the definitions of exempt body and exempt person, each of which is contained in clause 3 of the CAS Regulation. An exempt person is defined as a Member of Parliament, a legal practitioner or a police officer. An exempt body means the Ombudsman, the Judicial Commission, the NSW Crime Commission, the Law Enforcement Conduct Commission, the Anti-Discrimination Board, the Civil and Administrative Tribunal (NCAT), the Independent Commission Against Corruption, the Inspector of Custodial Services, the Privacy Commissioner, the Information Commissioner, the Legal Aid Commission, the Legal Services Commissioner, the Legal Services Tribunal, or the Commonwealth Ombudsman, the Australian Human Rights Commission or the Australian Crime Commission.

21. [50]

    Of interest, albeit irrelevant to these proceedings, is that exempt bodies include the Legal Aid Commission but not the Aboriginal Legal Service (ALS), which gives rise to an inference that the genus relates to bodies that deal with complaints and/or appeals relating to the provision of correctional services or the provision of legal services, or unlawful or corrupt acts directed at an inmate. Visits by ALS staff are dealt with separately in the regulations and are permitted over and above the visits by legal practitioners. [4]

22. [51]

    I turn then to the provisions of Pt 7 of the CAS Regulation. Clause 165 requires the governor of a prison to notify, relevantly, all inmates at the centre of the date and time when an Official Visitor will be at the centre. Where the governor is aware that an inmate considers a complaint or enquiry made by the inmate has not been satisfactorily dealt with by a correctional officer or departmental officer, the governor is required to advise the inmate that the inmate can request an Official Visitor to deal with it. By sub-clause 165(3), the clause is said not to apply to relevantly classified inmates.

23. [52]

    Clause 166 of the CAS Regulation deals with that which the Official Visitor may or must do on receiving a complaint or enquiry. It is unnecessary, for present purposes, to detail the action that may be taken.

24. [53]

    It is necessary to note that the Official Visitor may not interfere with the management or discipline of a prison or give instructions to correctional officers and other relevant officers. Most importantly, sub-clause 166(5) purports to exclude from the operation of clause 115 any complaint or enquiry from a relevantly classified inmate.

25. [54]

    By clause 167 of the CAS Regulation, the Official Visitor supplies to the Minister a periodic report that must be in writing and is permitted to report immediately if the Official Visitor is of the opinion that immediate attention is required. Clause 169 has provisions with similar restrictions relating to a request by an inmate for permission to speak with the Minister, the Commissioner or an Official Visitor. It requires a correctional officer to refer the request to the governor of the prison without unnecessary delay and requires the governor to make a written record of the request.

26. [55]

    If the governor is capable of disposing of the matter personally, the governor is required so to do as soon as practicable and must make a written record of the action taken and ensure the record is available for inspection. Again, by sub-clause 169(5), a relevantly classified inmate is said not to be entitled or permitted to speak with an Official Visitor.

Construction of the legislation and other principles

1. [56]

   Each of the questions which the Court needs to answer, except question 3, depends upon the construction of the relevant statute and the determination of whether the statute permits regulations which are suggested as being the basis for the conduct impugned by the plaintiff. It is appropriate for the Court to reiterate the principles involved in the construction of a statute, with some particular rules relating to the interpretation of the Constitution and delegated legislation.

2. [57]

   Construing a document is not achieved by simply obtaining the dictionary definition of the words and joining them together. The legal construction of every document is a process which seeks to obtain the intention of those that have crafted the document or have agreed to it. Each of the rules of construction are directed to ascertaining its true intention.

3. [58]

   In dealing with the statutory construction, the High Court has clarified the object in construing a statute. The High Court said:

4. [59]

   In dealing with seemingly conflicting provisions, the High Court also made clear that the construction must, prima facie, be construed so as to give effect to harmonious goals. In Project Blue Sky, supra, the plurality said:

5. [60]

   To the extent that it was sometimes said that context and purpose were subsidiary to the ordinary and grammatical meaning of words, the High Court clarified that approach as well. The High Court said:

6. [61]

   Further to the above extract, Gageler J (as his Honour the Chief Justice then was), in SZTAL, supra, said:

7. [62]

   In SZTAL, Gageler was in dissent. However, the principles embodied in the above extract do not differ from the principles otherwise outlined by the High Court, are consistent with the plurality in the same judgment, and do not suffer as a consequence of the judgment being in dissent. In construing legislation, the Court is required to examine the entirety of the statute and in that context determine from the words used in the statute the proper construction of the statute, giving the words a meaning that achieves both the purposes of the statute and harmonious goals of the provisions in the statute.

8. [63]

   Despite or because of the emphasis on ascertaining the purpose of statutory provisions, and the objective nature of the task, it is the words of the statute from which the purpose and context is gleaned. However, there is a significant difference between utilising the words of the statute to determine the purpose of a provision and the resort to “narrow textualism” or the literal, non-purposive approach. [9]

9. [64]

   In that regards, Edelman J said:

10. [65]

    Leaving aside for present purposes any implied limitation by operation of the Constitution, the issues in these proceedings depend upon the invalidity or repugnancy of regulations purportedly made under a statutorily conferred power. The Court has extracted already the regulation making provisions in the CAS Act.

11. [66]

    The provisions of s 271 of the CAS Act expressly limit the power to make regulations. Regulations may be made “not inconsistent with [the CAS Act]”. The provisions of s 79 of the CAS Act are not expressly so limited, although, as determined by the Court of Appeal in Hamzy 2022, the provisions of s 79 of the CAS Act merely provide the details of a “matter that by [the CAS Act] is required or permitted to be prescribed or that is necessary or convenient for carrying out or giving effect” to the Act. [11]

12. [67]

    In dealing with the interpretation of delegated legislation, the general rule is that there is no power or authority to make regulations that are inconsistent with the statute under which the regulation is purportedly promulgated. [12] Such a concept does not limit the regulations that are purported to be made to that which is already prescribed by the statute under which the regulations are made. However, the river does not rise higher than the source. Regulations may never prescribe that which is impermissible under the statute, nor render impermissible that which is required by the statute.

13. [68]

    Such a repugnancy, if there be one, depends upon the proper construction of the statute in accordance with the ordinary principles of construction and the proper construction of the delegated legislation in accordance with the same principles. While the delegated legislation may be construed, bearing in mind the terms of the statute, the converse is impermissible. The terms of regulations made pursuant to the statutory power are not able to be utilised to extend or alter that which would be the ordinary, purposive construction of the statute.

14. [69]

    The construction of the Constitution involves a different context. The Constitution has an ambulatory application in that it must take account of alterations in technology that, were they to have existed at the time of the construction of the document, would seem to fit the purpose of the legislative provision.

15. [70]

    Nevertheless, the principles of construction, as with any document, depend upon the words of the Constitution, the purpose of the provisions and the context in which they have been promulgated. The principles of purposive construction in order to take account of the context of the Act are not novel.

16. [71]

    In the Bank Nationalisation Case, [13] Dixon J (as the learned Chief Justice then was) said:

17. [72]

    In dealing with the Constitutional principles associated with the issues in these proceedings, the defendant relied upon a passage in the plurality judgment in SDCV. [15] The terms of that judgment on which reliance was placed are:

18. [73]

    The last comment in the above extract is not intended, it seems, with respect, to be an absolute rule. Were it an absolute rule, the judgments in the Boilermakers’ Society, [17] Brandy [18] and Kable [19] would have been decided differently.

19. [74]

    Unless one interprets the words from the above extract, “within its proper field”, as excluding the separation of judicial power from legislative power in the case of the Commonwealth and the protection and integrity of the courts exercising federal power in relation to the States, the subject matter of the legislative power in Boilermakers’ Society and Brandy were plainly within the field of operation of the legislative power of the Commonwealth.

20. [75]

    Other interesting questions arise. If a law of the Commonwealth, otherwise the subject matter of a legislative grant of power, were to abolish the capacity of the courts to operate within the rule of law, there may be real issues associated with the power of the Parliament so to legislate. [20]

21. [76]

    The Court need not decide any of the above issues and merely stresses that every judgment must be understood on the basis of the issues being decided by the Court in question and the context in which those questions are decided. For relevant purposes, the plaintiff relies upon the implied freedom of political communication as a basis for invalidating restrictions placed upon communications between the plaintiff and legal practitioners.

22. [77]

    The implied freedom of political communication is based upon the circumstance that the Australian Constitution implements a parliamentary democracy, being a system of representative and responsible government and such a system cannot operate without a freedom of communication between the people and their representatives about government and political matters. As such, any impermissible restriction on such communication is inconsistent with the Constitution. It should be noted that the legislative powers conferred by ss 51 and 52 of the Constitution are conferred “subject to this Constitution”.

23. [78]

    There are many statements of the principles associated with the implied limitation on the power of the legislature impermissibly to burden freedom of communication on political and governmental matters. In Coleman v Power, [21] McHugh J, after reciting some criticisms of the “reasonably appropriate and adapted” test formulated in Lange, [22] said:

Consideration

1. [79]

   The Court needs to apply the above principles to the separate questions posed, and which the Court needs to answer. The provisions of s 228 of the CAS Act permit the Minister to appoint Official Visitors.

2. [80]

   Under the provisions of s 228(3), it is a requirement that Official Visitors be independent of the staff and/or management of correctional facilities. The function of an Official Visitor is to visit the correctional facility for which the person is responsible and give interviews to correctional officers, other members of staff, offenders held in custody, and to examine the correctional facility. The Official Visitor is required to receive and deal with complaints, in accordance with the regulations.

3. [81]

   The purpose and context of s 228 involve the supervision of prisons, and Official Visitors who are appointed by the Minister are, by the section, required to ensure that any correctional officer or prisoner who has a complaint as to, inter alia, corrupt, improper or inappropriate conduct, has a procedure by which such complaint may be aired. The terms of Schedule 4 to the CAS Act confirm the need for independence of the Official Visitor and the limited basis upon which an Official Visitor may be removed from office. It also confirms the importance of having an Official Visitor appointed for each correctional facility.

4. [82]

   The provisions of s 228(5) require the Official Visitor, unless prevented by illness or other such cause, to visit the complex or centre, inter alia, for the purpose of giving interviews to offenders held in custody at that complex or centre. Properly construed, the provisions of s 228(5)(a) are mandatory. The CAS Act requires the Official Visitor to attend a correctional centre for which the Official Visitor is responsible at least once a month for the purpose of giving interviews to offenders held there.

5. [83]

   The provisions of s 228(5) of the CAS Act utilise the terms “may” and “must” and, properly construed, when using the term “must”, render the function mandatory. The reference in s 228(5)(c) to the receipt and dealing with complaints “in accordance with the regulations” does not allow for the proposition that the regulations could prohibit particular offenders or offenders within a particular class from lodging a complaint. Further, the provisions of s 228(5)(c) do not deal with “interviews” for offenders, which interviews are required under the provisions of s 228(5)(a)(ii).

6. [84]

   The provisions of s 228(6) of the CAS Act point to the legislature’s attention to any exception to the requirement to give interviews to offenders held in custody, being that such interviews may occur only when the interviewee consents to such interview. Further, the chapeau to s 228(5)(a), particularly the limited basis on which the visit may not occur, points irrefragably to the mandatory nature and necessity of the Official Visitor’s visit to the correctional facility for which the Official Visitor is responsible for the purpose of giving such interviews.

7. [85]

   While the provisions of s 79 of the CAS Act specify the capacity for the regulations to classify inmates into different categories and to specify requirements in relation to the management of such inmates, those provisions do not allow for an exception to the capacity to complain to and/or to be interviewed by the Official Visitor. The reference in regulation 79 to the provisions of s 271A is irrelevant for present purposes. Section 271A of the CAS Act refers to post-sentence custody of high-risk offenders.

8. [86]

   The reference to “visitors” is a reference to visitors other than the Official Visitor, who could not be someone whom the Commissioner was able to approve or disapprove in relation to visitation. The provisions of clause 94 of the CAS Regulation do not and cannot apply to the Official Visitor.

9. [87]

   The distinction between ordinary visitors and the Official Visitor is also highlighted by a comparison of the provisions of ss 79 and 228 of the CAS Act. Further, s 271 of the CAS Act clarifies that regulations may be made only to the extent not inconsistent with the statute.

10. [88]

    Moreover, the provisions of clause 106 of the CAS Regulation also make clear that an ordinary visitor or an ordinary visit is quite distinct from the functions of the Official Visitor. The requirements of s 228 of the CAS Act could be rendered nugatory if the staff at a correctional facility were, pursuant to the CAS Regulations, and in particular clause 106, able to refuse the Official Visitor permission to visit inmates. No exception exists for different classes of inmates who are capable of providing a complaint or being interviewed and whom the Official Visitor is required to interview and from whom the Official Visitor is required to receive complaints.

11. [89]

    The mandatory nature of the duty imposed upon the Official Visitor under s 228 of the CAS Act and the absence of any exception to the duty imposed upon the Official Visitor, results in a prohibition on the regulations preventing the Official Visitor from receiving complaints or conducting interviews.

12. [90]

    Were the regulations, or the directions of the Commissioner or any correctional officer, capable of preventing the Official Visitor from receiving complaints from particular classifications of inmates, then the fundamental purpose underpinning the provisions of s 228 of the CAS Act and the appointment of Official Visitors would be rendered nugatory. Consequently, the provisions of sub-clause 166(5) of the CAS Regulation is inconsistent with the duty imposed upon the Official Visitor by the statute. The regulation has been made without authority and is ultra vires.

13. [91]

    Question (1) should be answered in the affirmative

14. [92]

    I next deal with the issues raised by separate Questions (5) and (6). As earlier indicated, clause 115 of the CAS Regulation allows the governor to open, inspect and read the contents of any letter or parcel sent to or received from a relevantly classified inmate, being an inmate classified in the same way as the plaintiff. Relevantly classified inmates who receive a letter from a legal practitioner (or who send a letter or parcel to a legal practitioner) are not covered by the general provisions in sub-clause 115(1). Rather, any such letter or parcel is governed by the provisions of sub-clauses 115(4), 115(5), 115(6) and 115(7).

15. [93]

    Thus, if a legal practitioner sends a letter or parcel to the plaintiff and the letter or parcel is accompanied by a note addressed to the governor of the prison requesting it be delivered without being opened, inspected or read, declaring that it does not contain prohibited goods, claiming that the contents are the subject of legal privilege and providing a contact detail for confirmation, the letter or parcel must be dealt with either by providing it to the inmate or providing it to the inmate in the presence of a nominated officer if the nominated officer is of the view that it may contain prohibited goods.

16. [94]

    When a letter or parcel is provided in the presence of a nominated officer, the relevantly classified inmate is then required to open the letter or parcel in the presence of the nominated officer (or the governor) and, once the letter or parcel is seen not to contain contraband or prohibited goods, the nominated officer is required to allow the inmate to possess the contents of the letter or parcel and the nominated officer (or governor) is not able to read, inspect or otherwise deal with the letter or parcel.

17. [95]

    In relation to letters or parcels from a relevantly classified inmate to a legal practitioner, the CAS Regulation makes specific provision for the inspection of letters or parcels sent by a relevantly classified inmate. However, by sub-clause 116(3), approval of the Commissioner is required for a relevantly classified inmate to send a parcel or letter.

18. [96]

    Such approval is not required where the letter or parcel is sent to an exempt body or an exempt person. The definition of an exempt body and exempt person has been set out above.

19. [97]

    A legal practitioner is an exempt person. The terms of clause 116(3) have the effect that a relevantly classified inmate does not need to have the approval of the Commissioner to send a letter or parcel to a legal practitioner and, if the contents of a letter or parcel are written in English or another approved language, there is no authority on the Commissioner to prevent the sending of a letter to such legal practitioner.

20. [98]

    In that respect, the provisions of clause 118 confirm that, subject to the requirements of clauses 115 and 116, there is no limit on the correspondence between an inmate and the inmate’s legal practitioner in respect of any matter affecting the inmate’s trial, conviction or imprisonment. It is necessary to note that the provisions of clause 118 refer to the inmate’s legal practitioner, while the terms of clauses 115 and 116 and the definition of an exempt person include any legal practitioner.

21. [99]

    The issues raised in these proceedings were, at least in part, the subject of discussion in the Court of Appeal. [24] The Court of Appeal stated the general principle in the following terms:

22. [100]

    After stating the general principle and acknowledging that it applied in New South Wales, albeit more recently than it had applied in the United Kingdom and Canada, Leeming JA traced the history, including the state of being attainted applicable to a person convicted of a felony and sentenced to death. His Honour then discussed the principle of “legality”, citing authority to the effect that “a citizen’s right to unimpeded access to the courts can only be taken away by express enactment”. [26]

23. [101]

    In particular, Leeming JA referred to the approval given to the statement in Raymond v Honey in the judgment of the High Court in Coco. [27] Leeming JA came to the view that where it is said that there is an impact upon fundamental rights, the legislation requires “nothing short of express language in primary legislation” or language of “necessary implication”. [28]

24. [102]

    The statement of general principle in Coco was the subject of comment by the High Court in Electrolux. [29] In Electrolux, Gleeson CJ, citing the general principle of legality that “courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakeable and unambiguous language”, [30] referred to the “presumption”, if it be a presumption, and that the generality of the principle “requires some qualification”.

25. [103]

    The judgment of Gleeson CJ in Electrolux cited with approval the comments of McHugh J [31] and referred to the circumstance that “modern legislatures regularly enact laws that take away or modify common law rights”. [32] Gleeson CJ went on to say that “[t]he assistance to be gained from a presumption will vary with the context in which it is applied”. [33] In Electrolux, McHugh J, referring to the comments made by him in Gifford, referred to above, reiterated that the presumption as to “legality” was strong “when the right is a fundamental right of our legal system” and “weak when the right is merely one to take or not take a particular course of action”. [34]

26. [104]

    Nevertheless, the Court of Appeal refers to a citizen’s right to unimpeded access to the courts being a fundamental right to be taken away only by express enactment or words of necessary intendment. [35] Further, the Court of Appeal differentiates between legislation necessarily directed at the curtailment of the right to physical liberty, such as the CAS Act, and the different right associated with the right to an inmate’s right to choose a lawyer and confer with that lawyer.

27. [105]

    Notwithstanding the foregoing, the Court of Appeal determined that a regulation-making power could, as a matter of hypothesis, be capable of sustaining regulations which materially detract from the right to a lawyer of an inmate’s choice and to the privilege of communications with a lawyer.

28. [106]

    Leeming JA referred to the long list of detailed matters enumerated in s 79(1) of the CAS Act and commented that, notwithstanding the regulation power descending into significant detail, there is an absence of any conferral of power to make regulations which materially diminish an inmate’s right to the lawyer of his or her choice. Having made those comments, the Court of Appeal did determine that the right to require a criminal check by regulation was not inconsistent with the CAS Act and was not ultra vires.

29. [107]

    However, the plaintiff challenges the validity of clause 94 of the CAS Regulation on the basis of its alleged inconsistency with Chapter III of the Constitution and/or the infringement of the “constitutionally implied” freedom of political communication.

30. [108]

    Accepting as I do that Chapter III of the Constitution involves the requirement that judicial determination accord with the rule of law and that the Constitution, as a whole, reflects the existence of a constitutional democracy involving the application of the common law, it does not follow that clause 94 of the CAS Regulations is inconsistent with the Constitution. First, if in any proceedings a judicial officer were satisfied that a fair trial was impossible or that an accused or party was, as a consequence of these regulations, incapable of obtaining a reasonable opportunity to prepare and to present his or her case, [36] then the judicial officer could, in the case of a prosecution, grant bail and stay the proceedings either permanently or on condition, or otherwise give directions, the effect of which would be to permit the party to be able to exercise the party’s rights so as to produce a fair trial, and, in exceptional cases, grant a stay of prosecution.

31. [109]

    Secondly, there is no evidence before the Court that any communication of the plaintiff to a legal practitioner or from a legal practitioner to the plaintiff involved an infringement of the right to freedom of political or governmental communication. In order for the plaintiff to succeed, the Court must answer the question as to whether the provisions of clause 94 of the CAS Regulation prevents or controls communication upon political and governmental matters in a manner which is inconsistent with the system of representative government.

32. [110]

    Assuming, as I do, that an inmate may seek to have his or her legal representative petition a Member of Parliament as to, for example, the onerousness of the conditions of incarceration, is the requirement in clause 94 for a legal representative to undergo a criminal record check inconsistent with the system of representative government?

33. [111]

    In my view, the answer to that is in the negative. If a particular legal representative does not satisfy the Commissioner on the criminal record check, then another legal practitioner who was already approved would be available. In this area, the subject matter of the visit does not relate to the capacity of the inmate to obtain legal advice, to prepare proceedings or otherwise engage the legal practitioner in actions necessary for or ancillary to any justiciable controversy that is before the Courts.

34. [112]

    Penultimately, it is necessary to deal with the issues raised by Question 4. The evidence before the Court does not satisfy the Court that the decision not to approve the use of tablets to make telephone calls has inhibited the capacity of the plaintiff (or any other inmate) to obtain legal advice or has, in any way, impeded the access of the plaintiff to the Courts.

35. [113]

    In those circumstances, the Court is not satisfied that there is any invalidity in the restriction on the use of tablets to make personal telephone calls or telephone calls to legal practitioners. It is unnecessary to determine whether the restriction is a reasonable one, as was explained by the Court of Appeal, but it is clear that the unregulated making of telephone calls may present a security risk, and the CAS Act permits regulations prescribing a process or processes which deal with security risks. I answer Question 4 in the negative.

36. [114]

    Lastly, it is necessary to deal with the issues raised by Question 2. The circumstances pertaining to the decision of the Assistant Commissioner on 8 April 2022 are that the plaintiff sought to make a telephone call to a particular legal practitioner. The particular legal practitioner was not on the approved list for the plaintiff. The Assistant Commissioner declined permission for the plaintiff to make the call.

37. [115]

    I have already discussed the requirement that a limitation on the unimpeded access to the Courts and, as a corollary, the capacity to instruct and to retain legal representatives of an inmate’s choice, subject to some limitations, can be abrogated only by express words or words of necessary intendment. Permission to engage in a telephone call with the particular legal practitioner was refused on the basis that the legal practitioner was not a previously authorised contact or legal practitioner for the plaintiff. There is no suggestion that the identified legal practitioner was a person with a criminal record that would not otherwise satisfy the provisions of clause 94 to disallow contact.

38. [116]

    The fundamental right to instruct and/or to retain a legal practitioner of the inmate’s choice is wholly abrogated if the inmate is restricted to legal practitioners that have already been retained or instructed. The capacity to choose one’s legal practitioner for the purpose of representing an inmate in a justiciable controversy is the corollary to unimpeded access to the Courts.

39. [117]

    To deny contact with a legal practitioner on the basis that there has not previously been a retainer of such legal practitioner is to prevent an inmate from choosing a different legal practitioner. There is no express capacity so to do and there are no words of necessary intendment to permit such a course.

40. [118]

    I reiterate that the definition of an exempt person includes “a legal practitioner”. It does not specify that the legal practitioner must have already been retained. Nor does it specify that the legal practitioner must have already been the subject of approval by the Commissioner or another authorised officer.

41. [119]

    The Court is satisfied that the only basis for the refusal of permission was the circumstance that the legal practitioner in question had not previously been the subject of a retainer, had not previously been instructed and was not presently acting for the plaintiff. Such a reason impedes the right of the plaintiff to retain a legal practitioner of his choice, and the decision is not otherwise authorised under the CAS Act or the CAS Regulation.

Conclusion

1. [120]

   For these reasons, the Court is of the view that Questions 3 and 4 should be answered in the negative and the other separate questions posed should be answered in the affirmative. While the questions posed ask whether there is an entitlement to a declaration, having decided that there is, it seems such declarations should be made.

2. [121]

   The Court makes the following orders:

   1. (1)

      The Court answers the separate questions posed in the following manner:

   2. (2)

      The Court declares that clause 166(5) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“the CAS Regulation”) is invalid on account of inconsistency with s 228(5) of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the CAS Act”).

   3. (3)

      The Court declares that the decision of an Assistant Commissioner on 8 April 2022 to decline to give the plaintiff permission to make a telephone call to a legal practitioner is and was invalid.

   4. (4)

      The Court declares that clause 115 of the CAS Regulation does not validly permit the opening and inspection, and reading and copying, of letters or parcels sent by an inmate to his or her legal practitioner.

   5. (5)

      The Court declares that clause 116 of the CAS Regulation does not validly apply to correspondence sent to a legal practitioner.

   6. (6)

      Costs reserved.

   7. (7)

      The proceedings are referred to the Registrar for further directions.