McKane v Commissioner of Corrective Services for New South Wales

1. [1]

   HIS HONOUR: By an amended summons filed 1 April 2020, Jeffrey Alan McKane (“the plaintiff”) sought judicial review and relief in the nature of certiorari, mandamus and injunction against the Commissioner of Corrective Services for New South Wales (“the Commissioner”) with respect to two decisions of the Commissioner concerning his security classification pursuant to cl 12 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“the Regulation”).

2. [2]

   In the amended summons, the plaintiff sought the following orders:

3. [3]

   The first decision of the Commissioner was made on 16 August 2019. The Commissioner decided to leave the plaintiff’s security classification as “Category B” (“the August 2019 decision”). The second decision was made on 5 March 2020, wherein the Commissioner decided to lower Mr McKane’s security classification from “Category B” to “Category C1” (“the March 2020 decision”).

4. [4]

   The plaintiff does not require leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute the proceedings: Pastalis v State of New South Wales [2012] NSWCA 307 (though, even if he did require leave, the Commissioner did not oppose the grant of leave).

5. [5]

   As a result of the March 2020 decision, under current policy, the plaintiff’s security classification is the most favourable category which the plaintiff could obtain until at least 11 May 2021 when he would be eligible for consideration to be moved to “Category C2”.

6. [6]

   The plaintiff recognised those circumstances negatively impacted his remedies of certiorari and mandamus and thereby ultimately confined the relief he sought to “an injunction”.

7. [7]

   As to the relief sought, by way of injunction, the plaintiff further clarified the relief sought in submissions in reply as follows:

8. [8]

   By the hearing of the matter, the plaintiff abandoned the relief sought in the amended summons vis-à-vis an injunction (paras 5 and 6 of the relief claimed) and the form of relief formulated in the written submission in reply, and pressed for his claim for injunctive relief as follows:

EVIDENCE

1. [9]

   The plaintiff relied upon his affidavit of 11 March and 1 April 2020.

2. [10]

   The Commissioner relied on the affidavit of Alyson McDade affirmed 4 May 2020. Ms McDade is the Executive Officer and Registrar of the Serious Offenders Review Council (“the SORC”).

FACTUAL BACKGROUND

1. [11]

   The plaintiff is an inmate in Junee Correctional Centre, serving a sentence of 18 years with a non-parole period of 13 years having been convicted of sexual and indecent assault. A result of that sentence (since it included a minimum term of more than 12 years’ imprisonment) was to bring the plaintiff within the definition of a “serious offender” in s 3 of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the Act”).

2. [12]

   The plaintiff has been in custody since 12 May 2011. His earliest possible release date (“EPRD”) is 11 May 2024.

3. [13]

   From 2011 to 2016, the plaintiff’s security classification was Category A2, and it appears from 14 November 2016 his security classification was Category B.

4. [14]

   In accordance with the Corrective Services NSW Inmate Classification and Placement Policy (“the Policy”), as discussed below, absent special circumstances:

   1. (1)

      the plaintiff was eligible to be considered for a reduction in his security classification from B to C1 on 11 May 2019, being the date 5 years before his EPRD; and

   2. (2)

      the plaintiff will be eligible to be considered for a reduction in his security classification from C1 to C2 on 11 May 2021, being the date 3 years before his EPRD.

5. [15]

   On 10 July 2019, the plaintiff was interviewed by an Assessment Committee of the SORC. That committee proposed that his security classification be reduced from B to C1, on the basis that he was willing to sign off for a Special Management Area Placement (“SMAP”), that he was stable and compliant, and that he had good work reports.

6. [16]

   On 13 August 2019, the SORC recommended to the Commissioner that the plaintiff’s security classification be reduced from B to C1, again noting that the plaintiff was a stable and compliant inmate with good reports and work ethic.

7. [17]

   On 16 August 2019, the Commissioner made the August 2019 decision, declining to approve the recommendation of the SORC. That decision emerged from the Commissioner’s notations on the SORC’s recommendation, a copy of which is extracted below:

8. [18]

   The result of the August 2019 decision was that the plaintiff’s security classification remained at Category B. That was communicated to the plaintiff by a letter of the SORC dated 21 August 2019.

9. [19]

   On 8 September 2019, the plaintiff wrote a letter to the Commissioner noting that he satisfied the Policy for consideration for progression (he submitted that as at 16 August 2019 he surpassed the requirements of the Policy by 3 months) and sought reasons for the decision. The plaintiff sought reasons under:

   1. (1)

      section 62 of the Civil and Administrative Tribunal Act 2013 (NSW). That section permitted a party to proceedings in NCAT to request written reasons from NCAT for NCAT’s decision.

   2. (2)

      section 25 of the Acts Interpretation Act 1987 (NSW). The Commissioner correctly surmised that this was most likely a reference to s 25D of that Act. That section provides clarification of what is required where Commonwealth legislation requires a person to provide written reasons for a decision. It does not impose a requirement on a decision-maker under delegated NSW legislation.

   3. (3)

      the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The Commissioner again surmised, correctly, that this was most likely a reference to r 59.9 of the UCPR. That provision permits a plaintiff in proceedings for judicial review to request written reasons. It does not permit the plaintiff to require written reasons before he commenced judicial review proceedings.

10. [20]

    On 18 September 2019, the SORC sent the plaintiff a letter providing clarification to the comments attributed to the Commissioner in SORC’s earlier letter. The SORC explained that the comments attributed to the Commissioner in its letter of 21 August 2019 were incorrect insofar as it was indicated that the Commissioner had expressed “a combined period of demonstrated compliant behaviour” as the Commissioner’s comments noted “4 ½ years to NPP – review in 6 months”. It was submitted by the plaintiff that the reason attributed to the Commissioner demonstrated that the Commissioner had no regard for the recommendations by SORC. He was, it was contended, required to do so.

11. [21]

    On 24 October 2019, the Acting Commissioner sent a letter to the plaintiff, referring to the plaintiff’s letter dated 8 September 2019. The Acting Commissioner also referred back to SORC’s 18 September 2019 letter but did not otherwise give an explanation for the reasons of the August 2019 decision.

12. [22]

    On 1 October 2019, the plaintiff sent a letter to the SORC which was received on 14 October 2019, in which the plaintiff expressed his dissatisfaction with the lack of explanation. The plaintiff noted: “While progression in classification does not currently pose a significant issue, my concern is the current delay of at least nine months will continue to increase”.

13. [23]

    By an undated letter which was received on or about 18 November 2019, the plaintiff wrote to the Acting Commissioner (“the November letter”). The plaintiff stated:

14. [24]

    In written submissions, the plaintiff contended that the November letter constituted a request, pursuant to cl 32 of the Regulation, that the Commissioner re-determine the August 2019 decision.

15. [25]

    It was not entirely clear from the November letter whether the plaintiff was intending to request a review of the decision not to provide him with further reasons (the primary request in his earlier correspondence, to which he referred in this letter) or was intending to request a review of the August 2019 decision in relation to his security classification. In any event, the plaintiff submitted that he was not given an opportunity to address the Commissioner on “why he did not consider” the recommendations.

16. [26]

    On 21 November 2019, the plaintiff commenced these proceedings seeking judicial review of the August 2019 decision.

17. [27]

    On 29 January 2020, the plaintiff was interviewed by an Assessment Committee of the SORC, which again proposed a reduction to Category C1, noting good behaviour and positive case notes since the previous recommendation.

18. [28]

    On 25 February 2020, the SORC recommended to the Commissioner a reduction in the plaintiff’s security classification from Category B to Category C1, with much the same comments as in the 13 August 2019 recommendation.

19. [29]

    On 5 March 2020, the Acting Commissioner (as the delegate of the Commissioner) made the March 2020 decision, deciding to reduce the plaintiff’s security classification from Category B to Category C1.

20. [30]

    In written submissions, the plaintiff contended that “it appears the Commissioner only approved the reduction in security classification so he could argue that the August 2019 decision is now spent”.

21. [31]

    The plaintiff also submitted:

22. [32]

    I accept the submission of the Commissioner that that the plaintiff’s contention, in this respect, has no proper basis on the evidence presently before the Court and should be rejected. The August 2019 decision included a note: “review in 6 months”. The March 2020 decision was made 6½ months later.

Applicable legislation

1. [33]

   Section 78A of the Act expressly provides that the conditions of custody of inmates are not required to be the same for all inmates.

2. [34]

   Section 79 of the Act permits the making of regulations with respect to a wide range of matters concerning the management of inmates and correctional centres. Section 79(1)(c) permits the making of regulations concerning: “the classification of inmates into different categories and the separation of inmates by reference to the categories into which they have been classified”.

3. [35]

   The Act also established the SORC. By s 197(2)(a)(i), the SORC provides advice and makes recommendations to the Commissioner with respect to the security classifications of serious offenders. By s 198(1), the SORC “must consider the public interest and any other relevant matters” when exercising that function.

4. [36]

   The presently applicable regulation is the Regulation. Similar provisions to those discussed below were present in the previous versions of the Regulation (cll 10-20 of the Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995 (NSW); cll 22-28A of the Crimes (Administration of Sentences) Regulation 2001 (NSW); and cll 21A-29 of the Crimes (Administration of Sentences) Regulation 2008 (NSW)).

5. [37]

   In particular, cl 12 of the Regulation requires the classification of male inmates into one of the categories set out in that clause, from Category AA to Category C3. The categories relevant to these proceedings are:

6. [38]

   Clause 12(2) of the Regulation provides that the Commissioner may at any time vary or revoke a classification.

7. [39]

   By cl 11(2), an inmate’s classification under cl 12 is to be reviewed at least once every 12 months and at the other times the Commissioner determines.

8. [40]

   The Commissioner’s power in cl 12(2) to vary or revoke classifications is subject to cl 17, which provides in cl 17(1)(c) that the Commissioner must not cause a serious offender to have his or her classification changed without seeking and considering the recommendations of the SORC (absent exceptional circumstances: cl 17(4)). It does not say in terms that there is an equivalent requirement for a decision not to change a serious offender’s classification. In Davison v Commissioner for Corrective Services [2011] NSWSC 699 (“Davison”) at [26], McCallum J considered that the requirement in cl 17(1)(c) would extend to such a decision. Whilst there is no occasion to further consider that question in this judgment, I note that the distinction drawn in cl 17(1)(c) can be reconciled on the basis that changing an inmate’s security classification could potentially have adverse consequences (on the inmate, if the security classification is increased; or on the protection of the public, if the security classification is decreased), whereas refusing to change the security classification merely preserves the status quo until the next review.

9. [41]

   Clause 32 of the Regulation provides:

Applicable policy

1. [42]

   Ms McDade deposed that the Commissioner has adopted the Policy. The Policy contains the Time-Frame Guidelines for Consideration for Progression in Classification (“the Guidelines”). The Commissioner has adopted the Guidelines for purposes of exercising his powers under Pt 3, Div 1 of the Regulation, which relevantly includes decisions concerning the security classification of serious offenders.

2. [43]

   Ms McDade has annexed to her affidavit the current version of the relevant section of the Policy (commencing on 25 October 2019) as Annexure C; and the previous version applicable at the time of the August 2019 decision as Annexure D. Nothing turns on the different versions because the Guidelines have remained substantially unchanged throughout each version of the Policy.

3. [44]

   Taking the version in the current policy, under the heading “Commissioner’s Time−Frame Guidelines for Consideration for Progression in Classification”, cl 4.6 provides the following:

4. [45]

   The Policy then includes a table setting out the guidelines not applicable to “non-serious offenders” by reference to gender and inmate classification. The relevant portion of that table is extracted below (excluding reference to “C2-C3” guidelines and female guidelines):

5. [46]

   It is permissible for a decision maker to develop criteria for the exercise of a discretionary statutory power and to take account of policy in doing so: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; [1979] FCA 39. In this particular context, in Clark v Commissioner for Corrective Services [2016] NSWCA 186 (“Clark”), Basten JA emphasised at [31]:

6. [47]

   The plaintiff sought to confine the authority to one concerning the giving of preferred treatment to inmates but the authority to which I have referred concerns the circumstances in which the exercise of a discretionary statutory power may properly be exercised by taking into account the general policy.

Reviewability of Security Classification Decisions

1. [48]

   The Commissioner appeared to accept that, pursuant to ss 23, 65 and 69 of the Supreme Court Act 1970 (NSW), the Supreme Court has jurisdiction to review the decisions of the Commissioner in relation to the plaintiff’s security classification, although pointed to authority which may cast some doubt on that question.

2. [49]

   Reference was made to the following passage from Clark, in which Emmett AJA observed at [77]:

3. [50]

   The Commissioner submitted that it was not clear from the context of that passage whether, in the second sentence (commencing with, “Thus…”):

   1. (1)

      his Honour was merely reciting counsel’s submissions;

   2. (2)

      his Honour was reciting counsel’s submissions in a manner that approved of those submissions; or

   3. (3)

      his Honour was providing his own reasons, expanding upon the submission recorded in the first sentence.

4. [51]

   In Davies v R [2018] VSCA 315 at [49], the Victorian Court of Appeal (per Kaye, McLeish and T Forrest JJA) specifically cited this paragraph of Clark, suggesting that that Court viewed the second sentence of the paragraph as Emmett AJA’s own reasoning.

5. [52]

   The authority cited in support for the second sentence is Kelleher v Commissioner of Department of Corrective Services [1999] NSWSC 86, a 1999 decision which concerned an application for access to tattoo removal and cosmetic surgery; and did not refer to the applicable legislative basis to make decisions concerning security classification (at the time, the Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995 (NSW)).

6. [53]

   In Clark, the plaintiff requested access to a computer and 11 tubs of legal files in his cell and the ability to use a large screen monitor, for the purpose of various legal proceedings: see [1]-[2] (in particular, the challenge to security classification was abandoned). Accordingly, any comments in Clark concerning prisoner classification are obiter dicta.

7. [54]

   In Clark, Emmett AJA did not refer to Davison, in which McCallum J set aside a decision by the Commissioner not to reduce an inmate’s security classification from C1 to C2. While her Honour did not expressly consider the judicial power to review the decision, her Honour did set out at [7]-[12] the Commissioner’s statutory basis for making decisions concerning security classification under the Act and the previous version of the Regulation.

8. [55]

   It is sufficient, given the limited submissions of the parties, to observe that it is consistent with principle that the Court should exercise constraint in reviewing managerial decisions made within a prison: see Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82; Davison; Hamzy v Commissioner of Corrective Services and the State of NSW [2020] NSWSC 414 at [75]-[76]. As stated in Clark at [84]-[85] (per Emmett AJA):

9. [56]

   Finally, it is relevant to note that, in relation to the remedy ultimately sought by the plaintiff, there is no doubt that relief is discretionary, even if the error is jurisdictional: Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52 at [41]. In particular, as to the remaining relief sought such a discretion exists, in relation to an injunction in the field of public law, see example, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [23] and [58] and Smethurst v Commissioner of Police [2020] HCA 14 (“Smethurst”) at [96], [98], [132], [191] and [272].

INJUNCTIONS

1. [57]

   The plaintiff’s submissions as to the remaining part of the relief he sought relate to some earlier points of his submissions based upon other forms of relief, namely, certiorari and mandamus. Those contentions were to the effect that, first, the Commissioner had not taken into account the SORC recommendations and, secondly, that he had improperly ignored such recommendations.

2. [58]

   As to the first such contention, it was submitted:

3. [59]

   As to the latter submission, the plaintiff submitted:

4. [60]

   Returning then to the plaintiff’s submissions as to injunctive relief, the following is a further extract from his written submissions:

5. [61]

   In oral submissions, the plaintiff expanded upon these contentions as follows:

6. [62]

   The reference to “Smethurst” was no doubt a reference to Smethurst v Commissioner of Police [2020] HCA 14. The passage of Smethurst referred to by the plaintiff was as follows:

7. [63]

   As to the reference to earlier determination regarding the classification, attention was directed to an “Inmate Profile Document” where the following entries appeared:

8. [64]

   An injunction is a recognised public law remedy, issued to prevent future acts in excess of power: Smethurst at [176].

9. [65]

   There appears to be two fundamental problems with the injunctions sought by the plaintiff: first, that they are premature; and second, that they are not sufficiently clear and precise.

10. [66]

    Dealing with the first issue, Sackville AJA held in Director-General, Department of Trade & Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436 at [137]-[141], especially [138]-[139], observed:

11. [67]

    In this case, the plaintiff did not demonstrate that there is “a strong probability, almost amounting to a moral certainty” that he will be denied procedural fairness when the Commissioner comes to reconsider his security classification in circumstances where he will not, in any event, be eligible under the Policy for a reduction to a C2 classification at that review. The processes that will apply at his next review time are not currently known. It is not enough for the plaintiff to show even a significant risk that the Commissioner will not afford procedural fairness. In any event, the risk may on the evidence before the Court be doubted.

12. [68]

    Dealing with the second issue, the difficulty with the plaintiff’s proposed injunction, as expressed in the amended summons, and in his reply submissions vis-à-vis clarity and certainty, appears to have substantially (but not entirely) dissipated in the final form of the relief sought in the plaintiff’s final oral submissions. In my view, the relief sought in the oral submissions is expressed in sufficiently clear terms to reject the second part of the Commissioner’s submissions. The Commissioner would, by reading the proposed injunction (if expressed in more formal terms), and without more, be able to know what it is that he or she must do or refrain from doing in order to comply with its terms.

CONCLUSION

1. [69]

   For the reasons set out above, the amended summons should be dismissed.

2. [70]

   The Commissioner did not seek an order for his costs.

ORDER

1. [71]

   The Court orders the amended summons filed 1 April 2020 be dismissed.