“The facts in this case were never going to sustain the legal argument that the prison authorities had acted in breach of the requirements. Not even luck could save the day,” writes legal columnist  HUGH SELBY.

JULIE Tongs, well-known CEO of the Narrabundah-based Winnunga Nimmityjah Aboriginal Health and Community Services, writes here of her dismay at the Appellate Court of our Supreme Court finding that ACT law did not require our prison administration to provide, as part of its health services, to indigenous prisoners the diagnostic tool known as the Aboriginal Health Assessment [AHA].

The decision, Brown v the Director-General of the Justice and Community Safety Directorate,
[2023] ACTCA 15, can be found on austlii.edu.au, and on the ACT Supreme Court website.

Her article, headed “Frankly how are we ever going to close the gap?” includes the following: “I have read the judgements (sic)…. but, unfortunately, the language, legalese and reasoning have left me, a non-lawyer, confused as to how or why the court decided that, in this case, “equivalent” doesn’t mean “the same as”.

Let’s explore first why the court made its findings and then turn to how, if at all, those reasons might have been more simply and clearly expressed for the benefit of non-lawyers.

As to the key facts, the indigenous appellant served prison terms with a period of freedom between them.

She had been assessed using the AHA on more than one occasion while out of prison. While in prison she did not request the AHA, but did receive other “health services”.

Before the court was the issue of how those facts intersected with our Corrections Management Act, which provides that:

• Prisoners are to receive a standard of health care equivalent to that available to other people in the ACT; 
• Arrangements are to be made to ensure the provision of appropriate health services; and,
• Prisoners must have access to regular “health checks”.

There is a useful guideline for advocates along these lines: when the facts are on your side press them, when they are against you look for a legal angle as you might be lucky.

The facts in this case (based on those referred to in the appellate court’s decision) were never going to sustain the legal argument that the prison authorities had acted in breach of the requirements set out above. Not even luck could save the day.

In that wonderful world of “might have been” the result may have been different if the facts included:

• The prisoner had never had an AHA;
• The prisoner had requested the prison authorities to provide an AHA and been refused; and,
• The prisoner was denied any health check.

Lacking those “might have beens”, the court examined the clear meaning of the statutory requirements and found that the prisoner had failed to show any shortcomings by the prison authorities.

It’s clear enough that the AHA is an established and oft used health tool.

There may be a good “health policy” argument that it should be offered to all indigenous prisoners when their imprisonment begins, and as often during their time in prison as is good medical practice.

But that’s not what the law says now and it couldn’t be stretched on the facts in this case to reach that destination. The issue of the meaning of “equivalence” (to which Ms Tongs referred) never comes into play because of the absence of “good” facts to make any argument about “equivalence”.

Which is why if there is to be an AHA offered to all indigenous prisoners in the ACT, the Barr government will have to pass a law that says so. If there’s the will then there’s a way.

A judge’s decision is written for the loser

And such a will to do things better also applies to my writing and to court decisions. Our job is to explain as clearly and succinctly as we can. We should signpost where we are going and take the readers with us.

Michael Kirby (long time judge and law reformer) reminded lawyers decades ago that a judge’s decision is written for the loser. He’s right. The winner is too happy to care much about the reasons, only that they will survive any appeal by the loser.

Many losers (necessarily about half of all litigants who go to hearing) want to
appeal but they don’t for such reasons as:

• They have run out of funds;
• They have run out of the mental reserves to keep fighting; and,
• Their lawyers – after carefully reading and thinking about the court’s decision – tell them that they will lose the appeal and then have to pay the winner’s costs.

It’s an interesting question, as to whether any judge is writing for the losers directly, or for their lawyers.

Ms Tongs assumed that the court was writing for the party Brown, and for those, like Ms Tongs, with an interest.

But perhaps the reasons in this case (and many others) were written to respond to the detail of each written and spoken argument made by the lawyers.

If so, then courts expect the lawyers to explain the reasons to their clients. The magic has to be translated: hard to do when the loss still hurts.

What about when a party has no lawyer? That’s a problem for another day.

Frankly, how are we ever going to close the gap?