FEDERAL COURT OF AUSTRALIA

Clarkson v Commonwealth of Australia [2006] FCA 1348

ADMINISTRATIVE LAW – applicant convicted of Federal and State offences – applicant serving consecutive terms of imprisonment in New South Wales prisons – Arrangement made between Governor-General (Cth) and Governor of State of New South Wales for detention of federal offenders – Constitution s 120 and Crimes Act 1914 (Cth) s 3B – application under Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to eight alleged decisions – decisions attributed variously to three Commonwealth respondents and four State respondents.

ADMINISTRATIVE LAW – claim by applicant that decisions made in implementation of and pursuant to Arrangement amenable to review – claim that State officers responsible to federal offenders are acting on behalf of Commonwealth – whether alleged decisions of parties made under an enactment for purposes of AD(JR) Act.

PRACTICE AND PROCEDURE – application by first, fourth, fifth and sixth respondents for summary dismissal of proceedings under s 31A of Federal Court of Australia Act 1976 (Cth) – no reasonable prospects of success – statutory and constitutional setting of Arrangement.

Constitution s 120

Passports Act 1938 (Cth)

Crimes Act 1900 (NSW) s 184

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(1), s 6, s 7, s 11(1)(c), s 11(3), Sch 3

Crimes Act 1914 (Cth) s 3B(1), Pt 1B, s 19A, s 19AA

Federal Court of Australia Act 1976 (Cth) s 31A

Crimes (Administration of Sentences) Act 1999 (NSW) s 79, s 238

Ombudsman Act 1974 (NSW)

Federal Court Rules O 15A r 3, r 6

Crimes (Administration of Sentences) Regulation 2001 (NSW) cl 60

Airservices Australia v Transfield Pty Ltd (1999) 92 FCR 2000

St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147

S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Comcare v A’Hearn (1993) 45 FCR 441

Mees v Kemp [2004] FCA 366

R v Turnbull; Ex parte Taylor (1968) 123 CLR 28

Glasson v Parkes Rural Distributions Pty Ltd (1984) 155 CLR 234

Griffith University v Tang (2005) 221 CLR 99

International Covenant on Civil and Political Rights Opened for signature on 16 December 1966, UNTS 999, art 10, art 14

MARK ALFRED CLARKSON v COMMONWEALTH OF AUSTRALIA, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, COMMONWEALTH OMBUDSMAN, STATE NSW OMBUDSMAN, COMMISSIONER OF CORRECTIVE SERVICES FOR NEW SOUTH WALES AND THE GEO GROUP AUSTRALIA PTY LTD

No ACD 14of 2006

FINN J

13 OCTOBER 2006

ADELAIDE (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.                  The application against the first, fourth, fifth and sixth respondents be dismissed.

2.                  The applicant pay the costs of each of these respondents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant in this matter, Mark Alfred Clarkson, was at the time of the application a federal offender, he having been convicted of 12 counts under the Passports Act 1938 (Cth) and 4 counts under s 184 of the Crimes Act 1900 (NSW). He was sentenced in the New South Wales District Court to 19 months imprisonment on the Commonwealth counts and to an additional 9 months on the State counts. The Commonwealth sentences commenced on 26 November 2004 and expired on 25 June 2006.

2                     The present proceedings were instituted on 19 June 2006, i.e. at a time when the applicant was still serving a term of imprisonment in respect of Commonwealth offences. From 25 June 2006 the service of his State sentences commenced. His application and its complaints relate in various ways to the circumstances of his incarceration in New South Wales prisons. The application itself has been brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) – a matter of considerable significance as I will indicate below.

3                     There are six respondents. The first is the Commonwealth of Australia; the second, the Human Rights and Equal Opportunity Commission (“HREOC”); the third, the Commonwealth Ombudsman; the fourth, the New South Wales Ombudsman; the fifth, the Commissioner of Corrective Services (NSW); and the sixth, the GEO Group Australia Pty Ltd, a company contracted to conduct the day-to-day running of the Junee Correctional Centre, a State prison at which a portion of Mr Clarkson’s sentence was served.

4                     Four of the six respondents, the first, fourth, fifth and sixth, have sought summary dismissal of the application as it relates to them respectively. In relation to the second respondent, the proceeding has been adjourned as Mr Clarkson has foreshadowed the filing of an amended application. HREOC does not oppose this course being taken. I will return to this matter below. The Commonwealth Ombudsman indicated in correspondence with Mr Clarkson that he had no jurisdiction to entertain the particular complaints made to him. Nonetheless the Ombudsman has objected to the competency of the proceedings on an essentially procedural ground, i.e. that the application was made outside of the period prescribed by s 11(3) of the AD(JR) Act. This proceeding also has been adjourned for further timetabling at a later date.

The Setting

5                     The setting in which this application arises relates to the arrangements under which federal offenders serve their terms of imprisonment in State/Territory prisons. Section 120 of the Constitution provides:

“Custody of offenders against laws of the Commonwealth

Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.”

6                     In giving effect to s 120, s 3B of the provides in subs (1) that:

“(1) The Governor-General may make arrangements with the Governor of a State, the Government of the Australian Capital Territory, the Administrator of the Northern Territory or the Administrator of Norfolk Island for:

        (a) officers of the State or Territory to exercise powers and perform functions; and

        (b) facilities and procedures of the State or Territory to be made available;

in relation to the carrying out or enforcement under this Act of orders made under this Act or another Act.”

7                     I would emphasise that the relevant parties to the making of the arrangements envisaged under this section are the Governor-General and, for present purposes, a State Governor.

8                     Part 1B of the same Act deals in some detail with various aspects of the sentencing, imprisonment and release of federal offenders. Some number of the provisions of this Part deal expressly with how a federal offender is to be, or can be, treated when serving a federal sentence in a State or Territory prison. It is sufficient to note for present purposes that s 19A, for example, provides:

“19A Detention of person in State or Territory prisons

         A federal offender who is ordered by a court or a prescribed authority to be detained in prison in a State or Territory, may be detained in any prison in that State or Territory and may be removed from one prison to another prison in that State or Territory as if the person were detained as a State offender or Territory offender.”

9                     Mr Clarkson has been detained in several New South Wales prisons while serving his sentences.

10                  In relation to the State of New South Wales an arrangement under s 3B was entered into on 12 November 1990 (“the Arrangement”). For presently relevant purposes it provides:

“ARRANGEMENT UNDER SECTION 3B OF THE CRIMES ACT 1914 OF THE COMMONWEALTH OF AUSTRALIA

WHEREAS Section 3B of the Crimes Act 1914 (hereinafter referred to as ‘the Act’) provides that the Governor-General may, in relation to a State, make arrangements with the Governor of that State for the exercise of powers and the performance of functions by officers of the State, and for the making available of facilities of the State, for and in relation to the carrying out of sentences passed, and orders made, under the Act.

IT IS HEREBY ARRANGED between HIS EXCELLENCY THE GOVERNOR-GENERAL OF THE COMMONWEALTH OF AUSTRALIA, acting with the advice of the Federal Executive Council, and HIS EXCELLENCY THE GOVERNOR OF THE STATE OF NEW SOUTH WALES acting with the advice of the Executive Council of that State, that –

(a) the facilities of the State of New South Wales be made available for and in relation to the carrying out of a sentence passed, or an order made, under that Act, being – 

            (i) a sentence or order known as, or similar to, a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention or an attendance order; 

… 

(b) powers may be exercised and functions may be performed by officers of the State of New South Wales for and in relation to the carrying out of a sentence passed, or an order made, under that Act, being – 

           (i) a sentence or order known as, or similar to, a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention or an attendance order.” 

11                  It is conceded by Mr Clarkson that decisions taken in relation to the Arrangement itself by the Governor-General are not reviewable under the AD(JR) Act. The reason for this is that the definition of a “decision” to which that Act applies expressly excludes “a decision by the Governor-General”: s 3(1). The significance of that exclusion is of no little importance.

12                  The primary issue that arises in the motions for dismissal of the proceedings relate to the operation of the Arrangement in the setting of the Crimes Act (Cth) and the Constitution. It is Mr Clarkson’s case that decisions made both in the implementation of the Arrangement by the Commonwealth and in respect of the oversight of the Arrangement by the Commonwealth, are amenable to review under the AD(JR) Act. It equally is his case that, though State officers are responsible for the practical implementation for the conduct of the imprisonment of federal offenders, in so acting they are acting for, and on behalf of, the Commonwealth (seemingly implementing power given to them by the Commonwealth by virtue of the Arrangement and s 3B of the Crimes Act (Cth)). In consequence Mr Clarkson contends that the Commonwealth and the State officials are taking decisions of an administrative character under a Commonwealth enactment.

13                  As the Commonwealth’s motion raises issues discrete from those of the State respondents, it is appropriate to deal with it separately.

THE COMMONWEALTH’S MOTION

14                  Mr Clarkson’s application seeks review of eight decisions allegedly made (or failed to be made) by the Commonwealth. These decisions are described as:

“1. The decision made not to amend the 1990 Commonwealth/State NSW Agreement to include provisions designed to give effect to Article 10(3) of the ICCPR.

2. The decision made not to amend the 1990 Commonwealth/State NSW Agreement to include provisions designed to give effect to Article 14 of the ICCPR.

3. The decision made not to amend the 1990 Commonwealth/State NSW Agreement to include provisions designed to give effect to the Commonwealth incentives on diet by mandating the inclusion in the diet of Federal Offenders of 3 serves of fruit and 5 serves of vegetables per day.

4. The decision made not to manage and administer the powers and functions exercised on behalf of the Commonwealth by State NSW Officers in relation to Federal Offenders to ensure that Federal Offenders incarcerated in State NSW Gaols are treated with humanity, with respect for the inherent dignity of the person and are not subjected to harassment, threats, humiliation or contained in a combatant, hostile and oppressive environment and are treated in accordance with the ICCPR Protocols, the Standard Guidelines and otherwise according to law.

5. The decision made not to intervene to prevent State NSW DCS from proscribing access by Federal Offenders to laptop computers for Educational purposes and for the preparation for legal proceedings.

6. The decision made not to intervene to prevent State NSW DCS from proscribing access by Federal Offenders to Desktop computers other than on conditions that effectively prevent them from being used for Educational purposes and for the preparation for legal proceedings.

7. The decisions made not to intervene to prevent GEO removing the Desktop computers from the Education Centre at Junee CC on 23 June 2005; deleting Federal Offender inmate files stored on HDD relating to Educational purposes and for the preparation for legal proceedings and destroying Federal Offender inmate files stored on Floppy Disks relating to Educational purposes and for the preparation for legal proceedings.

8. The decision made not to intervene to prevent GEO from withholding access by Federal Offenders to Desktop computers from 23 June 2005 until 19 September 2005.”

15                  The orders sought in the application require the doing of the various things that the Commonwealth is alleged to have decided not to do in the above decisions.

16                  Put shortly, Mr Clarkson’s claims relate, first and foremost, to the alleged consequences to him of a decision of the Commissioner of Corrective Services denying access by inmates (not simply federal offenders) of Junee Correctional Centre to personal laptop computers on 18 March 2005 because of security concerns. That decision, it is alleged, affected Mr Clarkson’s ability (a) to prepare for legal proceedings – hence the reference to Art 14 of the International Covenant on Civil and Political Rights (“the ICCPR”); and (b) to pursue educational activities conductive to his “reformation and social rehabilitation”: cf Art 10 of the ICCPR. Distinctly, he complains of the diet that has been provided and the manner in which federal offenders are treated in New South Wales prisons.

17                  The Commonwealth’s application for summary dismissal of the application under s 31A of the Federal Court of Australia Act 1976 (Cth) on the basis that Mr Clarkson has “no reasonable prospect of successfully prosecuting the proceeding” has a number of strands to it. First, it is contended that the decisions in question, though ascribed to the Commonwealth, appear to be decisions of the Governor-General and hence are not reviewable under the AD(JR) Act. This, in my view, clearly is the case in relation to the first to third of the decisions impugned and the application must to that extent be dismissed as incompetent.

18                  It is by no means clear who was, or were, the decision-maker(s) allegedly responsible for the fourth to eighth decisions ascribed to “the first respondent”. The Commonwealth’s legal representatives sought particulars of these decisions. Mr Clarkson’s response was that it was known to the Commonwealth if such decisions were ever made and by whom, assuming the Commonwealth actually addressed the matters in question. If it did not – and he has foreshadowed seeking discovery in relation to that question – he might seek to amend the application to raise claims under s 6 and s 7 of the AD(JR) Act.

19                  What it appears Mr Clarkson is doing in proceeding as he has, is to seek what is in essence preliminary discovery under O 15A of the Federal Court Rules but without having to comply with the limitations imposed by O 15A r 3 on identity discovery and O 15A r 6 on information discovery: see Airservices Australia v Transfield Pty Ltd (1999) 92 FCR 2000; St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147. The application could be said to be objectionable as an abuse of process for this reason alone.

20                  This points up the fundamental flaw in the application. It not only assumes that decisions have been made, it further assumes they were made under an enactment, so attracting the provisions of the AD(JR) Act. No tenable basis at all has been advanced to found this second assumption.

21                  Mr Clarkson has contended that the decisions were made under the Arrangement by the Commonwealth. For reasons I give below in dealing with the motions of the State respondents, I reject this. Even if the Arrangement could properly be characterised as an “enactment” for the purposes of the AD(JR) Act: see s 3(1) “enactment” (c); it neither expressly or impliedly reserves particular decision making functions to the Commonwealth of the types alleged, nor does it make the decisions of State officials relating to federal offenders by virtue of the Arrangement decisions of the Commonwealth under the Arrangement.

22                  While I am prepared to accept for present purposes that, notwithstanding the Arrangement, the Commonwealth may nonetheless retain tutelary responsibilities towards federal offenders in State prisons which might in exceptional circumstances found a claim in tort: cf S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217; or for injunctive or mandatory orders against the Commonwealth, such claims are far removed from the type of proceeding raised by this application. The present application is incompetent.

23                  There is one additional matter to which reference should be made. All of the fourth to eighth “decisions” were made in 1991 (the 4^th decision) or in 2005 (the 5^th to 8^th decision). No satisfactory explanation has been given for the long delay before the present proceeding was instituted on 19 June 2006. Were the application not otherwise objectionable, it is not one for which it is likely a court would extend time for its lodging in the Court: see s 11(1)(c) of the AD(JR) Act; and see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; Comcare v A’Hearn (1993) 45 FCR 441 at 444; Mees v Kemp [2004] FCA 366 at [93]-[99].

24                  I will order that the application against the first respondent be dismissed with costs.

THE STATE MOTIONS

25                  By way of background to these motions, it is necessary to explain how Mr Clarkson seeks to characterise the decisions of the various State respondents as decisions to which the AD(JR) Act applies. As I understand it, he contends that each of these respondents when performing functions in relation to him as a federal offender does so under the Arrangement and by so doing make decisions under an enactment for AD(JR) Act purposes, as the Arrangement, being an “instrument” made under an enactment, i.e. the Crimes Act (Cth), is an “enactment” under s 3 of the AD(JR) Act.

26                  Central to this contention is the proper construction of the Arrangement in its statutory and constitutional setting. Section 120 of the Constitution obliges the States to provide places of detention and to receive and hold federal prisoners: R v Turnbull; Ex parte Taylor (1968) 123 CLR 28 at 37. The Commonwealth, furthermore, can make laws to give effect to s 120. Section 3B and Part 1B of the Crimes Act (Cth) are such laws.

27                  When one turns to the 1990 Arrangement made under s 3B, its burden, in my view, is readily enough apparent. Against the background of the obligation imposed on the States by s 120, it provides for the utilisation of New South Wales’ facilities for, and the exercise by State officials of their powers and functions in relation to, the carrying out of sentences passed on federal offenders under the Crimes Act (Cth), when federal offenders are put in the care, custody and control of the State of New South Wales for that purpose. While Part 1B of the Crimes Act (Cth) deals with specific aspects of a federal offender’s incarceration in a State prison (e.g. the movement of prisoners: s 19A; and the remission and reduction of sentences: s 19AA), the s 3B Arrangement is general and facilitative in character. Importantly it does not change the character or status of the facilities used under the Arrangement or of the powers exercised etc by the officers of the State of New South Wales. State officers exercise State powers in State institutions albeit in relation to federal offenders. So, for example, neither the Ombudsman nor the Commissioner of Corrective Services is constituted an “officer of the Commonwealth” in consequence of the Arrangement. Equally, when the Commissioner made certain decisions about inmate access to personal computers this was done under cl 60 of the Crimes (Administration of Sentences) Regulation 2001 (NSW), which Regulations were made pursuant to s 79 of the Crimes (Administration of Sentences) Act 1999 (NSW).

28                  Turning to the various State motions, first it can only be said that the proceeding against the NSW Ombudsman is entirely misconceived. On 15 August 2005 Mr Clarkson made a complaint to the Commonwealth Ombudsman concerning circumstances at Junee Correctional Centre. On 24 August, that Ombudsman wrote to Mr Clarkson informing him that he could not investigate the actions of the NSW Department of Corrective Services, but had referred the complaint to the NSW Ombudsman. On 1 November 2005, the State Ombudsman wrote to Mr Clarkson advising him that a decision not to investigate his complaint had been made. That decision was later reviewed and confirmed by the Ombudsman. Mr Clarkson then challenged that decision in the present AD(JR) Act proceedings.

29                  I simply have no jurisdiction to entertain this application. The NSW Ombudsman is an office established under the Ombudsman Act 1974 (NSW) and has the functions conferred or imposed on the Ombudsman by or under that Act or any other New South Wales Act.

30                  In investigating etc Mr Clarkson’s complaint, the NSW Ombudsman was acting under State legislation and did not make any decision under any enactment to which the AD(JR) Act applied (whether via Schedule 3 of that Act or otherwise).

31                  Finally, in receiving Mr Clarkson’s complaint, i.e. via the Commonwealth Ombudsman, the NSW Ombudsman did not exercise any powers or functions of the Commonwealth Ombudsman. The transfer of the complaint occurred simply because Mr Clarkson forwarded his complaint to the incorrect complaint-handling body rather than as a result of any exercise of Commonwealth power.

32                  Secondly, the Commissioner of Corrective Services’ motion. The eight decisions of the Commissioner impugned in the application are the counterparts of the eight decisions of the Commonwealth I have earlier dealt with. The first three such decisions (relating to not amending the 1990 Arrangement) are wholly misconceived. The Commissioner is not a party to that Arrangement: see Crimes Act (Cth), s 3B. The fourth “decision” (i.e. not to manage and administer powers to ensure federal offenders were treated with humanity, etc) is not even plausibly related to an enactment sufficient to attract AD(JR) Act supervision. Neither is any actual decision as such identified. To the extent that this ground complains of a failure to make a decision, it is not suggested there was a duty to do so. Decisions 5 and 6 (relating to access to laptop computers) were, as already noted, taken under State legislation and not under any enactment to which the AD(JR) Act applies. Decisions 7 and 8 (relating to failures to act in relation to the sixth respondent), appears to focus on the alleged responsibilities the Commissioner may have had in oversight of GEO Group Australia Pty Ltd in its performance of a management agreement for a correctional centre entered into under s 238 of the Crimes (Administration of Sentences) Act 1999 (NSW). Assuming the Commissioner made the decisions alleged, those decisions clearly were made in the exercise of State power and were not made under an enactment to which the AD(JR) Act applied. I would reiterate that Mr Clarkson has not suggested any statutory source of these decisions other than the Crimes Act (Cth) and the Arrangement.

33                  I will order that the application against the fifth respondent be dismissed with costs.

34                  The GEO Group’s motion. The eight “decisions” alleged to have been made by this respondent replicate the decisions made against the Commonwealth and the Commissioner, save that they are adapted to take account of the fact that, as the body actually conducting Junee Correctional Centre, its decisions were simply management decisions. These need not be set out here. The company’s motion must succeed and on a simple basis. The operative instruments which were the source of the power of the GEO Group to take decisions (or for that matter to perform duties) were the management contract or the Crimes (Administration of Sentences) Act 1999 (NSW): Glasson v Parkes Rural Distributions Pty Ltd (1984) 155 CLR 234 at 241. It was from these that the GEO Group derived such capacity as it had to affect Mr Clarkson as a prisoner at Junee Correctional Centre: cf Griffith University v Tang (2005) 221 CLR 99 at [78] ff. The sixth respondent did not, relevantly, take decisions under an enactment for AD(JR) Act purposes. The application against it will be dismissed with costs.

CONCLUSION

35                  I will order that the application against the first, fourth, fifth and sixth respondents be dismissed and that the applicant pay the costs of each of these respondents.

Associate:

Dated: 13 October 2006