Citation: Haque v Commissioner of Corrective Services [2008] NSWSC 253
Court: Supreme Court of New South Wales
Date: 31 March 2008
Judge(s): Fullerton J
Background
Shortly before the November 2007 federal election, a community organisation called Justice Action sought to distribute a newsletter titled "Just Us – Federal Election Special" to all New South Wales correctional centres. A solicitor at Kingsford Legal Centre wrote to the Commissioner of Corrective Services on the organisation's behalf, inviting him to raise any concerns about the content before a formal decision was made.
The Commissioner refused permission to distribute the newsletter, providing no reasons. The refusal was made under s 232 of the Crimes (Administration of Sentences) Act 1999, which governs the Commissioner's powers over materials entering correctional facilities.
The plaintiff, a member of Justice Action, sought judicial review of that refusal. He applied for orders quashing the Commissioner's decision and compelling distribution of the newsletter (or at least compelling the Commissioner to reconsider according to law). The proceedings were heard on an urgent basis in late November 2007.
Legal Issues
- Whether the plaintiff had standing to seek judicial review of the Commissioner's decision
- Whether the Commissioner's refusal was lawfully made under s 232 of the Crimes (Administration of Sentences) Act 1999 and the associated regulation, including whether relevant considerations were ignored and irrelevant ones taken into account
- Whether the Commissioner was required to take into account the common law right to freedom of communication when making the decision
- Whether the implied constitutional freedom of communication on governmental and political matters imposed a mandatory consideration on the Commissioner's exercise of power
- Whether certain business records tendered in evidence were admissible under the Evidence Act 1995
Decision
Standing: Fullerton J identified a real question about whether the plaintiff, as an individual connected to the organisation that produced the newsletter, had sufficient standing to seek judicial review. The court received all evidence on the assumption that standing existed, but ultimately found it unnecessary to resolve the point in the plaintiff's favour, given the substantive claims failed.
Statutory power and relevant considerations: The court examined the scope of the Commissioner's power under s 232 and assessed whether the decision took into account irrelevant matters or ignored relevant ones. No error of the kind that would warrant quashing the decision was established on the evidence before the court.
Common law freedom of communication: The court considered whether any common law right to freedom of communication imposed an obligation on the Commissioner in exercising his statutory discretion. This argument did not succeed.
Constitutional implied freedom: Fullerton J held that the implied constitutional freedom of communication on governmental and political matters is a freedom from laws that effectively prevent such communications. It is not a positive right to communicate at large, nor does it create an entitlement to compel another party to provide a means of communication. The court was not satisfied that this freedom could be deployed to require the Commissioner to distribute anything to inmates.
The court also observed that the urgency underpinning the proceedings was overstated. The newsletter contained only a tangential connection to the federal election, and proper arrangements had already been made to allow eligible prisoners to vote. By the end of the hearing, the plaintiff had also expressly abandoned the relief that would have required distribution or reconsideration of the decision.
Orders Made
- The relief sought by summons was refused.
- The plaintiff was ordered to pay the defendant's costs.
Key Takeaways
- The implied constitutional freedom of communication on governmental and political matters operates as a restriction on laws that prevent such communications. It does not confer a positive right to communicate, nor does it compel third parties to provide a channel of communication.
- A plaintiff seeking judicial review of a decision affecting a community organisation's activities must establish standing in their own right. The court proceeded on an assumed basis here but left the point unresolved, given the substantive claims failed.
- Under s 232 of the Crimes (Administration of Sentences) Act 1999, the Commissioner holds a power to control the distribution of materials to correctional centres. The court confirmed the scope of that power and assessed the relevance of considerations brought to bear on its exercise.
- No error in the Commissioner's decision sufficient to ground judicial review was established on the evidence. Abandonment of key relief by the plaintiff partway through the hearing also narrowed the practical scope of what the court was asked to decide.
- Fullerton J noted, for completeness, that the newsletter's connection to the federal election was tenuous, and that existing arrangements already provided for eligible prisoners to exercise their vote.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), s 232
- Crimes (Administration of Sentences) Regulation 2001 (NSW)
- Evidence Act 1995 (NSW), s 11
- Human Rights and Equal Opportunity Commission Act 1986 (Cth)
- Judiciary Act 1903 (Cth), ss 78A, 78B
Key Cases:
- Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1; 146 CLR 493
- Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; 194 CLR 247
- Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520
- Mulholland v Australian Electoral Commission [2004] HCA 41; 220 CLR 181
- McClure v Australian Electoral Commission [1999] HCA 31; 73 ALJR 1086
- Roach v Electoral Commissioner [2007] HCA 43; 239 ALR 1
- Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
- Nicolopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R
- Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86
- Herald and Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329
- R v Secretary of State for the Home Department; Ex parte Simms and Another [2000] 2 AC 115