ALQ March 2022 Judicial review

Issue: March 2022

Judicial review

Court of Appeal considers access to lawyers and communication rights at Goulburn Supermax

Access the decision: Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16

The plaintiff, an inmate housed at the High Risk Management Correctional Centre at Goulburn Correctional Complex and designated 'extreme high risk restricted' (EHRR) under the Crimes (Administration of Sentences) Regulation 2014 (CAS Regulation), challenged:

  1. The application to lawyers of cl. 94 of the CAS Regulation, which permits the Commissioner to refuse to permit visits to EHRR inmates by any person 'on the basis of a criminal record check or for any other reason'.

  2. A drop-in policy by which Corrective Services officers randomly and briefly monitored telephone calls made by EHHR inmates to legal practitioners to determine whether they were being conducted in English and with the approved recipient.

  3. cll. 101, 116 and 119(6) of the CAS Regulation, which require that most communications by EHRR inmates be in English on the basis that they were contrary to ss. 9 and/or 10 of the Racial Discrimination Act 1975 (Cth) (RD Act).

As to cl. 94 and the drop-in policy, the Court applied the principle of legality in holding that a regulation or policy that curtails access to and communication with lawyers will not be authorised in the absence of a clear expression of statutory intent.  On that basis, the Court held that the drop-in policy and that part of cl. 94 that permitted visits by lawyers to be refused 'for any reason' other than a criminal records check, were invalid or unlawful.

The RD Act challenge was dismissed on bases relating to the way in which the plaintiff formulated his claim.

Pandemic parole power is non-compellable

Access the decision: Frankcom v Commissioner of Corrective Services [2022] NSWSC 225.

The Supreme Court held that the Commissioner of Corrective Services cannot be compelled to exercise his power under s. 276 of the Crimes (Administration of Sentences) Act 1999 to release inmates on parole in the context of the COVID-19 pandemic.

Under the Act, the power is a discretionary, non-compellable power to release certain inmates on parole if satisfied that it is reasonably necessary to do so because of the risk to public health or to the good order and security of correctional premises arising from the COVID-19 pandemic. The Court held that the power was directed at public health, rather than at the health of individual inmates.

Supreme Court dismisses challenge to exhumation decision

Access the decision: Carr v Carr & Secretary, NSW Ministry of Health [2022] NSWSC 166.

Leeming JA held that the Public Health Regulation 2012 contemplates that there may be multiple nearest surviving relates who may apply to the Secretary, Ministry of Health for permission to exhume deceased remains. Moreover, the Secretary is not confined to considering matters of public health, or the views of a 'nearest surviving relative', in deciding whether to permit an exhumation.

Supreme Court clarifies standing to seek parentage declarations and the application of the Aboriginal child placement principles

Access the decision: Principal Officer, Family Spirit Adoption Services v D (ANONYMISED) [2022] NSWSC 142.

The Supreme Court held that:

  • the Principal Officer of an accredited adoption service providers has standing to apply for a declaration of parentage under the Status of Children Act 1996

  • the term 'Aboriginal parent' in s. 35(4) of the Adoption Act 2000 includes a parent who is of Aboriginal descent notwithstanding that they do not satisfy the tripartite test in the definition of 'Aboriginal' in the Aboriginal Land Rights Act 1983

  • where a child has one Aboriginal and one non-Aboriginal parent, s. 35(4) of the Adoption Act 2000 displaces the Aboriginal child placement principles in ss. 35(2) and (3).

Other decisions in this edition 

Last updated:

16 Nov 2022

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