NSW Prisons Commissioner Woodham in 2007 banned the Federal Election Special from NSW prisons. He refused to provide reasons for his decision, although 5 other states and territories accepted it without a problem.
In November 2007, Tony Haque a member of JA and a former prisoner, took action before Justice Fullerton in the Supreme Court to challenge the ban. On 31 March 2008 her decision was handed down.
In essence she refused to lift the ban on distributing it because she was not satisfied that Mr Haque had sufficient legal standing to seek judicial review of Mr Woodham’s decision.
Despite this, the decision is significant for us because Justice Fullerton reaffirmed the very important legal principle that although courts will generally not review (in this case), the decision of Commissioner Woodham based on its merits, they will review such a decision if a litigant can establish bad faith, improper purpose or manifest unreasonableness.
In this case she held that, “While for my part I can see nothing in the ‘Federal Election Special’ that could be said to prejudice the good order of the prisons . I am bound to accept that the [Commissioner] is not only in the best position to make that judgment, but that he has been charged with the responsibility of doing so”.
She 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. Despite this, importantly she put the Commissioner on notice that although Mr Haque could not establish Commissioner Woodham had acted unreasonably in this case because no reasons were given for the ban, 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.”
Rest assured, when the next edition of JUST US is published, we will be reminding Commissioner Woodham of these words and taking action if we can establish the necessary prerequisites of bad faith, improper purpose or manifest unreasonableness.
PREVIOUS REPORTS OF THE HEARING
Intimidation by the NSW prisons Department has interfered with the Supreme Court challenge. The prisoner plaintiff withdrew citing concern that he would be refused release on parole and would be made bankrupt to pay court costs. Lawyers for the Department claimed the benefit, arguing that the remaining plaintiff didn’t have sufficient “standing” and asked that the case not be heard on its merits. This is a continuation of their corrupt behaviour. We’ll be back if they try that game!
The decision has been reserved until next year. Justice Fullerton said that the newspaper would still be effective after the election and that serious legal issues needed to be considered before giving her judgement.
Report 21 November 2007
It went all day yesterday and is back again for our submissions at 2pm today, Supreme Court Tower court 11a, Haque against Commissioner in front of Justice Elizabeth Fullerton.
When JUST US was examined by the Court with copies in all hands, Steven Corry’s helicopter hovering over the masthead and Woodham’s team of four lawyers and assistants pointing out the story of Emu Plain Visiting saying that it could cause tension in the dangerous environment of prisons, we knew we had it won.
With Emu Plains women and children leading the accusation, it having gone to every politician in the country and every judge, their position is untenable no matter what the court decides. NSW prison administration has refused political parties’ requests to distribute how-to-vote papers to prisoners – the first time this has happened. Now they can see what we’ve been battling and why that lack of respect affects recividism and public safety.
Then to cap it all, our lawyers passed the message back that ACT Corrections has said it can enter their system – bringing the list to four yesses out of eight, with Victoria still chewing its nails. They all had the chance to negotiate on the content so none can complain. New Zealand is still being negotiated. That means we have the Offer of Hope being observed with information from Berrimah up in Darwin, to Fremantle in WA, to Risdon in Hobart and in Belconnen in Canberra.
Let them hear our silent minute at Midday on Mondays! No matter what the court says, JUST US has penetrated and the right of expression to and from our community members inside the jails cannot be blocked.
We have printed another 5000 copies of JUST US so let us know if you can move more. Outside prisons to visitors would be useful. After the election is fine.
All the best for our community!
Fri, 16 Nov 2007
This was in the Sydney Morning Herald this morning on p.4. It looks good but no promises anywhere in this game.
Also a big article on the same page under the heading: JAILS CRISIS about Commissioner Woodham, his woman driver and her sisters allegedly preferential treatment amounting to corruption. The Opposition has called for him to stand down.
Sydney Morning Herald
Battle over prison paper leaves little time to vote
November 16, 2007
NSW prisoners will have to wait until Wednesday next week before they know whether they can get a special edition of a newspaper for jail inmates that will advise them how they should vote in the federal
A former prisoner, Tony Haque, and a serving inmate, Michael White, have gone to the Supreme Court to challenge a decision by the Commissioner for Corrective Services, Ron Woodham, to ban the edition from the state’s jails.
Justice Elizabeth Fullerton said yesterday that the issues were important but she could only set next Tuesday aside to hear the submissions.
Ben Zipser, a barrister for the Kingsford Legal Service, said his understanding was that prisoners, who received the right to vote in a High Court decision on August 30, had a form of postal voting which meant they should vote before the election on November 24.
He handed up affidavits from Haque, White and Brett Collins, a principal figure in the prisoners’ rights group, Justice Action.
Justice Fullerton said she expected to make a decision within 24 hours, which would still give the prisoners
time to vote if her decision went their way.
Outside the court, Mr Collins said the Justice Action publication, originally called Framed, had been banned in NSW jails by Mr Woodham in 2002. It had changed its name to Just Us, and was distributed in Australia and New Zealand. The present edition told prisoners of their disadvantaged status, which they should take into account when voting.
Mr Collins said the West Australian and Northern Territory prison administrations had allowed the paper in the prisons, and NSW and South Australia had refused. The other states and territory had not yet replied.
Confrontation Distributing to Visitors, Silverwater Prison Complex
Saturday 10 Nov
Any doubt about how seriously the NSW Department of Corrective Services is taking our paper was dispelled by what happened on Saturday morning November 10.
An armoured car, the Malabar Emergency Unit, three police cars and about ten prison officers confronted the three JA people who were giving out JUST US on the footpath outside the Silverwater Complex on Saturday morning at 8.30am. Other JA people across the road and at the bus stop were handing out JUST US and talking with visitors.
The prison officers called the police and then removed the newspapers from the windscreens of all of the scores of prison visitors’ cars in the carpark! Dangerous material…
We continued to hand it out to all visitors, shadowed by police and prison officers with a video camera. When finally the police inspector attended he agreed that we were entitled to be there as our legitimate right to protest and interact with our community, and they backed off.
The attending police refused to accept our complaint that the taking of the newspapers from the visitors’ cars was theft and obstructed our right to expression and the visitors’ right to receive political information. Constable Davies comment noted down was: “Are you for fucking real?”
That is justice for JUST US. But they all read it.
Media release: 14th November 2007 (Background report under)
BANNED PRISONER ELECTION NEWSPAPER: COURT CHALLENGE
In the NSW Supreme Court on Thursday, lawyers for Justice Action are challenging the refusal of NSW Corrective Services to allow a prisoners election special newspaper to be distributed before the Federal Election.
The High Court of Australia reinstated prisoners’ right to vote, therefore they are entitled to receive information to decide their political preference just like other citizens. NSW is not fulfilling its responsibility to ensure citizens have their constitutional rights and dignity said Lara Daley, Justice Action Coordinator.
This election special prisoners newspaper has been approved for distribution in WA and NT prisons. Not only has NSW banned the newspaper, it has also refused how-to-votes or any campaign material from any party.
These attacks on the status of citizens who are in prison threaten our whole democracy. The rights to receive information, form and express a view are fundamental to our humanity and the social health of our community. It is no wonder many prisoners cant survive outside after such exclusion by prison authorities said Brett Collins, a spokesperson for Justice Action.
Kingsford Legal Centre and barrister Ben Zipser will be presenting the application on Thursday 15th November.
This is a report on some of the work JA and others have been doing following the victory in the High Court regaining the prisoners right to vote.
We have been talking with all the states at the Ministerial and Commissioner level to ensure that information for prisoners’ votes, such as campaign literature and ‘how to votes’ is available to them to make an informed vote.
We have suggested that the prison noticeboards in wings and pods be used for how to votes and electoral information. Also that candidates should at least be able to address the Inmate Development Committees. In addition we have contacted political parties of all persuasions informing them of this and to suggest they send on ‘how to votes’ to the AEC for mobile polling and make contact with DCS on general postal votes for those states utilising them.
We also prepared a draft JUST US Federal Election Special newspaper and contacted all eight States and Territories through our lawyers to ensure it would get access to all the prisons. Shortly it will be up on our website. We have a database of the 130 Aust prisons and have allocated one to every two prisoners throughout Australia and NZ. It also goes by name to every judge from the High Court to magistrate in every state and NZ, and every MP in both countries.
The deadline for response by the States was 5pm Monday November 5. It was emailed and faxed with followup calls on Wednesday October 31. Six have responded so far. Two were blank refusals-NSW and SA, without any reason or the requested changes that they were invited to suggest. Two states “need more time” two still responding and two have said “yes” – WA and NT.
We are running a case in the NSW Supreme Court on Constitutional and administrative law grounds in the next couple of days. Kingsford Legal Centre and Ben Zipser are handling the case. As no state took exception to the draft content we have now printed twenty thousand copies in tabloid size.
We now are distributing JUST US to visitors to prisons throughout Australia over the next weekends. We ask anyone who could coordinate a prison or help in any of the States or Territories to make contact.
Would you come back to us ASAP if you are able to assist with energy, time or money?