Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16

Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16

Clause 94(3) of the CAS Regulation does not authorise the Commissioner to refuse a legal practitioner visit to an EHRR inmate for reasons other than criminal record check; the Commissioner's 'drop-in' policy of monitoring phone calls does not apply to communications between EHRR inmates and their legal practitioners; there was no contravention of ss 9 or 10 of the Racial Discrimination Act in relation to the English language requirement challenged.

Jurisdiction
Australia
Judgment Date
23 February 2022
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed in part; leave to appeal granted; certain orders of lower court set aside and replaced with declarations; appeal dismissed in respect of Racial Discrimination Act grounds.
Legal Topics
['judicial Review' 'construction of Regulations' 'regulation Making Power' 'racial Discrimination' "prisoners' Rights" 'legal Professional Privilege' 'statutory Interpretation']
['administrative Law' 'constitutional Law' 'human Rights Law' 'prison Law'] ['judicial Review' 'construction of Regulations' 'regulation Making Power' 'racial Discrimination' "prisoners' Rights" 'legal Professional Privilege' 'statutory Interpretation']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether cl 94 of the CAS Regulation authorises the Commissioner to refuse a visit to an EHRR inmate by a legal practitioner for reasons other than a criminal record check' "Whether the 'drop-in' policy of monitoring telephone calls applies to communications between EHRR inmates and their legal practitioners" 'Whether language requirements in cll 101, 116, and 119(6) of the Regulation are inconsistent with ss 9(1) or 10(1) of the Racial Discrimination Act 1975 (Cth) and invalid under s 109 of the Constitution due to discrimination']

Ratio Decidendi

Clause 94(3) of the CAS Regulation does not authorise the Commissioner to refuse a legal practitioner visit to an EHRR inmate for reasons other than criminal record check; the Commissioner's 'drop-in' policy of monitoring phone calls does not apply to communications between EHRR inmates and their legal practitioners; there was no contravention of ss 9 or 10 of the Racial Discrimination Act in relation to the English language requirement challenged.

Court Disposition

Appeal allowed in part; leave to appeal granted; certain orders of lower court set aside and replaced with declarations; appeal dismissed in respect of Racial Discrimination Act grounds.

Orders

  • ['Extend time to seek leave to appeal until 24 June 2021' 'Grant leave to appeal and dispense with filing/service rules for proceeding 2016/276127' 'Allow appeal in grounds 1-4 of draft notice of appeal dated 28 May 2021' "Set aside judgment entered 22 April 2020 dismissing proceeding; declare cl 94(3) does not...