The first roadblock to a nationally distributed election-based newspaper for prisoners was encountered in 2004. NSW Corrective Services blocked the distribution of the Australian Prisoners’ Election Newspaper into NSW facilities. Justice Action Coordinator Stacy Scheff brought the case to the NSW Supreme Court, with Australia’s leading constitutional lawyer, George Williams AO, arguing before Justice Smart for the right of prisoners to receive voting information.
Legal observers believed NSW Corrective Services would lose. All Attorney Generals around Australia were notified of the urgent case, however Corrective Services NSW brought forward the polling in each prison and forced prisoners to vote before the newspaper could be distributed. With no practical effect as prisoners had voted, the case proceeded no further.
JUST US Vol. 3 was the subject of further Supreme Court action in 2007 when NSW Prisons Commissioner, Mr Woodham, banned the federal election special from being disseminated in NSW prisons. Tony Haque for Justice Action challenged the decision. Justice Elizabeth Fullerton decided that nothing published in JUST US would prejudice the good order of prisons. Justice Fullerton went on to say, “While I have real doubts as to whether [Commissioner Woodham] has in fact considered the ‘Federal Election Special’ on its merits in accordance with his stated policy…I am unable to form the certain view that he did not.”The basis she gave for forming this view was that the Commissioner gave no reasons for his decision to ban. Importantly she put the Commissioner on notice that although Mr Haque could not establish he had acted unreasonably, she warned;
“The fact that I am not prepared to draw an inference adverse to the [Commissioner] is not intended to encourage him to refrain from giving reasons in the future were Justice Action to seek permission for another edition of ‘JUST US’ to be distributed. To the contrary.”
In 2011, Justice Action was successful in the NSW Supreme Court in obtaining the right to distribute JUST US to locked hospitals as well as prisons. The Health Department had said:
“The document contains language and content that is political in nature and as such would not be deemed suitable for distribution within any NSW health facilities. Any distribution of such material by Justice Health could be viewed as being endorsed by Justice Health.”
David Bennett AC QC former Commonwealth Solicitor General led our team and the court ordered costs of $5000 in favour of Justice Action.
In 2014, The Australian Human Rights Law Centre prepared a challenge in the Supreme Court of Victoria to the initial refusal by Victorian Prisons for JUST US Vol. 5 entry. It was subsequently allowed to enter.