Bartz v Department of Corrective Services [2000] QSC 336

[2] In this application, as amended by leave, the applicant sought the following relief:

"1. A declaration that the respondent has a legal duty to ensure a prisoner's security rating is reviewed at intervals not exceeding (6) months.

2. A declaration that a prisoner's behaviour, placement, or frequency of transfers, is not a determining factor as to whether the respondent affords the prisoner security rating reviews at intervals not exceeding (6) months.

3. A declaration that the plaintiff has not been afforded security rating reviews at intervals not exceeding (6) months on 7 December 1993, 22 March 1995, 13 December 1996, 2 September 1997 and 5 October 1998 and such security rating reviews are unlawful.

4 A declaration that the plaintiff has been disadvantaged resultant of the respondent not affording the plaintiff security rating reviews at intervals not exceeding (6) months.

5. A declaration that the respondent must determine a prisoner's security rating having regard, but not limited to:

* Significant issues raised to the General Manager and Sentence Management Teams in Correctional Centres, the Office of Sentence Management, issues of concern raised with the Official Visitors and Ombudsman, which are noted on the prison files of a prisoner;

* all intervention with psychologists and counsellors;

* all core programs for addressing offending behaviour;

* all voluntary involvement in programs and activities to assist staff and other prisoners;

* all voluntary involvement in programs with community based entities;

* degree of trust and responsibility within prison.

6. A declaration that the plaintiff has not had all factors determined at security rating reviews as required by the respondent and the said reviews are unlawful.

7. An Order directing the respondent to conduct all future security classification reviews at intervals not exceeding (6) months.

8. An Order directing the respondent to determine all factors when conducting future security rating reviews."

[3] No point was taken as to the declarations and orders having been sought under the now obsolete Rules of the Supreme Court rather than the Uniform Civil Procedure Rules 1999. However, counsel for the respondent, Mr Thomas, contended that the length of time it had taken the applicant to seek relief should be regarded as a factor militating against intervention by the Court.

[4] The applicant tendered material showing that he had sought advice from the Prisoners' Legal Service in relation to the matter as early as June 1998, had made a Freedom of Information application for his prison files in July 1998, and had been unable to obtain them until February 1999. The frequency of occurrence of the security rating reviews was not of significance to him until late 1997, when guidelines were implemented making security classification one of the criteria upon which eligibility for parole was determined. In June 1999, he was advised that his application for parole, home detention and release to work made in October 1998 was rejected because he had not spent six months in an open custody environment. Meanwhile, regular transfers between custodial centres had resulted in his losing the documentation necessary to make an application. His application was filed in September 1999.

[5] In all the circumstances I do not think that any delay should preclude Mr Bartz from being heard on this application.

The declarations and order sought at paragraphs 1, 3, and 7 of the originating application

[6] The first and third declarations and the first of the orders sought turned on the failure of the respondent to carry out reviews of the applicant's security classification at six-monthly intervals, and the effect of that failure.

[7] Subsection 13(2) of the Corrective Services Regulation 1989 provides as follows:

"The security rating of a prisoner shall be reviewed at intervals not exceeding six months".

[8] The authority to carry out such security rating reviews resides, since the amendments effected to the Corrective Services Act 1988 by the Corrective Services Legislation Amendment Act 1999, in the chief executive of the Department of Corrective Services, who is responsible for the "security and management of prisons and community corrections centres and the safe custody and welfare of prisoners"[1]. By section 21 of the Corrective Services (Administration) Act 1988, he or she is authorized to delegate his or her powers to "an appropriately qualified corrective services officer or employee." Mr Thomas for the respondent did not take any point about the applications having been made against the Department, as opposed to the chief executive or his delegate.

[9] It was common ground that there were at least four occasions between May 1994 and the end of 1998 when periods longer than six months were allowed to elapse between the applicant's security rating reviews. Mr Bartz argued that there was also a fifth occasion, occurring in 1993, when a review was not undertaken within the prescribed period. His argument depended on a conclusion that where a sentence was backdated, the review period must be correspondingly backdated. Whatever the correctness of that submission, it loses any practical effect given his subsequent escape and its consequences for his classification. The most recent of the agreed instances of departure from the subsection 13(2) regime involved a period between October 1997 and September or October 1998 during which no review was conducted. (There was some dispute about the actual date on which the review at the end of that period took place.)

[10] Mr Bartz argued that subsection 13(2) was mandatory in its effect. To construe it otherwise, he argued, left the chief executive at liberty to conduct reviews at whatever intervals he or she chose. That was at odds with the respondent's own sentence management principles requiring it to manage prisoner sentences in a "consistent objective manner".

[11] There is no doubt that subsection 13(2) creates an obligation in the chief executive to undertake reviews at six monthly intervals. Mr Thomas for the respondent did not seek to argue otherwise, instead submitting that there was no benefit in declaring the obvious. He submitted also that, applying the principles set out in Project Blue Sky v Australian Broadcasting Authority[2], the court should conclude that acts done in breach of the subsection were not invalid. In respect of the later submission, Mr Bartz pointed out that he sought declarations of unlawfulness, rather than invalidity, which might assist him in subsequent litigation against the respondent arising from his failure to obtain parole.

[12] It is clear, and, as I have already noted, it was not controversial that the chief executive was under an obligation by virtue of subsection 13(2) to review Mr Bartz's security rating at intervals not exceeding six months. However, Mr Thomas is correct, in my view, in his submission that failure to meet that obligation does not render the reviews carried out at greater intervals invalid. In considering the consequence of non-compliance one must ask "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid"[3]. In considering that purpose it is relevant to take into account the public inconvenience likely to result from a conclusion of invalidity.[4]

[13] If subsection 13(2) were to be read as Mr Bartz submits, it would be mandatory for the chief executive to conduct security reviews precisely at six month intervals whatever the circumstances, notwithstanding that it is impracticable or pointless to do so. But it is not difficult to imagine that the prospect of the chief executive breaching his or her obligations would be "far from fanciful" as was the case with the respondent in Project Blue Sky[5]. One can envisage practical difficulties created by lack of resources and the need for rapid movement of prisoners between centres which might produce that result. At the same time, to conclude that the failure to accord security reviews within the requisite six month period resulted in invalidity would cast doubt in relation to an unknown number of such reviews. If all security reviews not carried out within the time prescribed were rendered invalid, it is unlikely there would be any practical way of re-visiting each prisoner's performance and history so as to construct a notional set of reviews at the requisite six monthly periods. The inconvenience flowing from a conclusion of invalidity by virtue of breach of subsection 13(2) is of such proportions that a contrary interpretation must be accepted.

[14] Mr Bartz, however, says he is entitled to a declaration that the respondent's acts were in breach of subsection 13(2) and that the reviews which were carried out were unlawful whatever their validity. While it is clear enough that the Corrective Services Commission, the predecessor in power to the chief executive, has acted in breach of subsection 13(2) as he contends, there remains the question of the utility of such a declaration. Mr Bartz relies on a statement in Project Blue Sky to the effect that a person with sufficient interest may seek a declaration that an authority is in breach of the relevant act and, where appropriate, obtain an injunction restraining it from taking any further action based on its unlawful action[6].

[15] However, in the present case there are a number of factors weighing against the grant of such declarations and any associated order. Firstly, there is no real controversy surrounding the construction of subsection 13(2); the respondent does not contend for any other construction but that it requires six monthly reviews. Secondly, there is no suggestion that since late 1998 either the Corrective Services Commission or the chief executive has failed to comply with the subsection in conducting reviews of Mr Bartz's security classification. (That may, as Mr Bartz suggests, be the product of the present litigation) Nor is there anything to indicate that the chief executive will not continue to do so. It is accordingly difficult to see what can be achieved by such declarations.

[16] I do not find the proposition that they may assist Mr Bartz in subsequent litigation compelling. If he has a cause of action, a declaration of unlawfulness will fall far short of concluding the issue of liability; and it is preferable that the trial judge on any such action not be precluded from determining the question on all the evidence presented at that time. In Steinback v Queensland Corrective Services Commission[7] the Court of Appeal dismissed on such grounds an appeal against a refusal of a declaration.

[17] In similar vein are the comments of Kiefel J, with whom Sackville J agreed, in Minister for Immigration and Multicultural Affairs v Ozmanian [8]:

"the inquiry for the Court, when considering the grant of declaratory relief in such circumstances, cannot be whether it will be productive of any legal consequence. If the utility of a declaration is to be found in its operation within other proceedings between the parties, the Court must consider what use it will serve and what it might resolve. It is, after all, to operate by way of a remedy. And a consideration of possible outcomes does not support the order made. The example given by his Honour - the creation of an issue estoppel - highlights the problem. For what facts and issues the declaration forecloses, it had the potential to create dispute between the parties as to the extent of its operation and produce the undesirable consequence of preventing the judge, who is to hear and determine the matter, from coming to a view on an important aspect of the matter and one influential as to the appropriate relief to be granted."

[18] In the case before me, the grant of a declaration would serve no present purpose; and the fact that it might assist Mr Bartz in subsequent litigation cannot of itself provide proper justification for the making of such orders. Putting aside questions as to the correctness of the mode by which it has been sought, an order in terms of paragraph 7 of the originating application would equally be inappropriate, given the absence of evidence that any repetition of breaches of subsection 13(2) by the respondent through its chief executive is likely.

The Declarations sought at Paragraph 4 of the Originating Application

[19] The applicant sought an associated declaration that he had been disadvantaged as a result of not being afforded security rating reviews at intervals not exceeding six months.

[20] The system is one by which a prisoner commences his sentence with a certain number of points corresponding to a particular security classification (high, medium, low or open.) Positive aspects of his conduct can, in an assessment of the factors prescribed by subsection 13(1A), lead to a deduction of points, enabling him to move from higher to lower security classifications. Generally, it is important for a prisoner to reduce his points score to 24 or fewer, in order to achieve a low security classification and thus have a real prospect of consideration for parole.

[21] In support of his contention that he had been disadvantaged, Mr Bartz offered in his written submissions a schedule which, he said, showed how he would have progressed through the rating system had he been given six monthly reviews. On his calculations, he would have reached a low classification by August 1998; so that he would have completed six months in an open security environment well before he became eligible for the release to work program which is frequently a preliminary step to the granting of parole. He complained also that the failure to review him within the six month period, combined with a series of transfers in 1998 between centres, had the effect that when a review was finally undertaken, positive aspects of his behaviour at Lotus Glen, where he had previously been, were not taken into account; whereas had the review taken place at the end of a six month period, he would still have been at Lotus Glen, and favourable material as to his conduct there would have been considered. He also pointed to the following statement contained in a sentence management review report of 7 October 1998 as constituting an acknowledgment of disadvantage occasioned to him:

"as Bartz has not been reviewed as frequently as legislative time frames stipulate it is recommended that he be reviewed again in February 1999 (ie 4 months)."

[22] Exhibit WH1, a letter provided by the Queensland Corrective Services Commission in response to Mr Bartz's request for a statement of reasons (while not purporting to amount to such a statement) asserted that between 28 May 1993 and 6 November 1998 he had had the benefit of twelve security rating reviews, one more than he would have received had they been conducted strictly at six monthly intervals. Mr Bartz contested that assertion, pointing out that a number of documents related to sentence management plans rather than security classification reviews. Because the occasions on which security rating reviews had taken place were not particularised by the respondent it is difficult to ascertain where the difference lies; but the applicant's own submissions seem to accept that between December 1993 and October 1998 (a period just short of five years) there were eleven security reviews, so that in purely numerical terms he does not seem to have been disadvantaged.

[23] That is not to say that there was not some practical disadvantage caused by the irregularity in timing of reviews. Given the importance of security classification to parole decisions (acknowledged in Graveson v The Queensland Corrective Services Commission[9]) there was clearly a potential for considerable detriment to Mr Bartz's interests. One can only speculate, however, as to whether such detriment has in fact occurred. As Mr Thomas pointed out, it by no means follows that the same number of points would have been deducted on each six month review as were in fact deducted on review at longer intervals. Nor do I consider the acknowledgment contained in the respondent's letter of 7 October 1998 of failure to meet the six monthly schedule amounts to an admission of actual disadvantage.

[24] In the absence of evidence on which a finding on the balance of probability could be made as to the net effect of the failure to abide by the six month regime on Mr Bartz's points score and resultant classification, no declaration can properly be made.

The Declaration Sought at Paragraph 2 of The Originating Application

[25] On two occasions Mr Bartz has received letters (dated 20 January 1999 and 14 May 1999 respectively) advising him as follows:

"The unforseen delays in your reviews have been linked to your frequent transfers between institutions and your frequent placements within detention units."

[26] Those statements have given rise to his application for a declaration that:

"a prisoner's behaviour, placement or frequency of transfers is not a determining factor as to whether the respondent affords the prisoner security rating reviews at intervals not exceeding six months."

[27] It is difficult to see how such a declaration could sensibly be made. Although Mr Bartz argues that whatever the behaviour of a prisoner, a classification should take place at the designated time - on the papers if the prisoner's co-operation is not forthcoming - one can readily imagine circumstances in which such matters as behaviour, placement, or the need for transfer might practically affect the chief executive's ability to undertake a review, or the purpose to be served by doing so. If, for example, the prisoner were at large, there would be little point in reviewing his security rating, although he would still, strictly speaking, fall within the purview of subsection 13(2). One can imagine also that there might be situations of emergency requiring immediate transfer of a prisoner such as to disrupt the orderly carrying out of a review at the correct time. Although it is without doubt highly desirable that the chief executive meet his or her obligation to afford six monthly security reviews, I do not consider it an appropriate matter for a declaration.

The Declarations and Orders Sought at Paragraphs 5, 6 And 8 of The Application

[28] Mr Bartz has sought a declaration that a number of matters specified by him must be taken into account upon determination of a security rating, and following from that a declaration that the required factors were not taken into account in his reviews, together with an order directing the respondent to "determine all factors when conducting future security rating reviews".

[29] Subsection 13(1A) of the Corrective Services Regulation 1989 sets out the factors to which regard must be had in undertaking classification into a security rating. As Fryberg J observed in Graveson v The Queensland Corrective Services Commission [10]these are mandatory considerations.

[30] It seems to me that the matters adverted to by the applicant are in fact encompassed in factors already identified in subsection 13(1A) ((ix) "prison management reports", (x) "previous performance in prison", (xii) "physiological assessment if any, and any psychiatric history".) In any event, it is clearly inappropriate to seek to expand by declaration upon the factors already set out in the subsection.

[31] Mr Bartz does seem to have a complaint that particular pieces of evidence in his favour (as opposed to the requisite factors in a general sense) were not taken into account when he was transferred from Lotus Glen in 1998. However, I am not in a position to determine those matters on the evidence before me, and the question of failure to have regard to particular documentation is not directly raised on the application. In respect of what is sought by declaration, as set out in paragraph 6, and the order set out in paragraph 8, it seems to me that there is a clear distinction between whether the delegate took into account all the factors which it was required to consider, and whether it had before it all material favourable to the applicant in respect of each such factor. While the second aspect may fairly be said to be an area of doubt on the material before me, it is not a question, even were I in a position to resolve it, which would be properly addressed by a declaration in terms of paragraph 6, nor an order in terms of paragraph 8.

The Second Application For Declarations S5383/00

[32] Mr Bartz sought declarations as to the proper construction of subsections 48 (4)(a) and (b) of the Corrective Services Act 1988. The declarations sought were in the following terms:

" 1. A declaration that Section 48(4)(a) and (b) of the Queensland Corrective Services Act 1988 is to be conducted by a medical officer, a registered nurse who is an office of the commission or a legally qualified medical practitioner.

2. A declaration that the conducting of Section 48(4)(a) and (b) by a custodial correctional officer, a community correctional officer, or any employee of the Department of Corrective Services who is not a medical officer, a registered nurse who is an officer of the commission or a legally qualified medical practitioner, is unlawful. 3. A declaration that only the general manager of a prison or any person delegated with the powers, authorities, functions or duties of the general manager and only such person may order a prisoner to provide a urine sample pursuant to section 48(4)(a) of the Queensland Corrective Services Act 1998.

4. A declaration that the urine samples ordered from Wade Anthony Bartz on 27 December 1993, 12 April 1995 and 14 September 1995 were not ordered by the general manager of a prison or any person delegated with the powers, authorities, functions and duties of the general manager and were unlawful."

[33] The relevant subsections of section 48 are as follows:

(a) may order a prisoner to provide a sample of the prisoner's breath or the prisoner's urine;

(b) may authorise a medical officer, a registered nurse who is officer of the commission or a legally qualified medical practitioner to take samples of a prisoner's blood, saliva or hair;

if the general manager believes on reasonable grounds that the sample may afford evidence of the commission of an offence by the prisoner during the prisoner's term of imprisonment or period of detention or the commission of a breach of discipline by the prisoner.

(5) The general manager or the medical officer, nurse or medical practitioner may give directions to the prisoner concerning the manner which the prisoner is required to provide any sample referred to subsection (4)."

[34] Mr Bartz argued that the reference in subsection 48(5) to "the medical officer, nurse or medical practitioner" as having authority to give directions as to the provision of samples applied equally to subsections 48(4)(a) and (b). Thus, when the general manager ordered provision of a sample of breath or urine, it was clear that a "medical officer, nurse or medical practitioner" must be involved in its taking. Accordingly, on his submission, the taking of any sample of the kinds described in subsections 48 (4) (a) and (b) (breath, urine, blood, saliva or hair) by anyone other than "a medical officer, a registered nurse or is an officer of the Commission or a legally qualified medical practitioner" was unlawful. Mr Bartz explained his practical concern for having a medical practitioner involved in the taking of urine samples as one of security.

[35] I do not consider that it follows from the ability to give directions as to the way in which a sample is provided under section 48(4)(a) that the subsection requires actual involvement in the sample's provision. Moreover, the clear distinction in expression between subsections 4(a) and 4(b), the latter specifying who may take the sample while no equivalent provision is made in the former, provides a clear indication that the legislature did not intend the procedures to be identical. One can readily see why this should be so. The omission of urine and breath, in the course, respectively, of micturition and respiration are ordinary bodily functions. It is difficult to imagine how either could be extracted, with or without medical expertise. Blood, saliva and hair, on the other hand are all capable of physical removal, by force if necessary; and whether or not compulsion is involved, there is an obvious need for expertise in the process of removal, to avoid both physical harm to the subject and transmission of disease. There seems no warrant for reading into subsection 48(4)(a) a requirement for physical involvement of one of the specified persons holding medical expertise in the taking of samples, although it is perfectly logical that such a person or the general manager might, as provided by subsection (5), participate to the extent of giving directions.

[36] The net result, in my view, is that there is no restriction on the persons to whom a prisoner may be required to provide a sample under s 48 (4)(a), provided that the order for the sample's provision has emanated from the general manager or his delegate. There is, therefore, no basis for the making of a declaration in terms of the first declaration sought.

[37] As to the second declaration, I have already expressed the view that because of the nature of the samples, there is no scope for immediate physical involvement in their provision, and there is no limitation on the persons to whom such samples may be required to be provided. It is clear from the terms of subsection 4(b) that only a person holding one of the positions specified in the subsection (medical officer, nurse or medical practitioner) may be authorised to take samples, so that it would be unlawful for a custodial correctional officer, a community correctional officer, or any employee of the respondent who did not fall within one of the specified positions to take a sample. However, there is no suggestion that that has occurred, or is likely to occur; and there is no practical purpose to be served by making such a declaration.

The power to order the provision of a sample or to authorise the taking of a sample reposes in the general manager as defined in section 10 of the Corrective Services Act. However, section 15(1) of the Act enables the general manager by instrument to delegate any of his powers, authorities, functions or duties to any corrective services officer. Clearly, the power to order samples or authorise one of the designated persons to take samples could be so delegated. Such a delegation may be to a person by name, or to the holder of a specified office[11]; and may be "general or limited"[12].

[38] Mr Bartz, however, says that he has been ordered to provide urine samples in circumstances where there had been no such order or authority from the general manager or his delegate. Accordingly, he seeks a broad declaration as to the restriction of the power to order provision of a urine sample to the general manager or his delegate; and a declaration that the orders to him to provide urine samples on 27 December 1993, 12 April 1995 and 14 September 1995 were unlawful as not having emanated from the general manager or his delegate. He relied on each of those instances as supporting a need for the more general declaration to be made, and also relied on a more recent instance, in March 2000, when he had refused to supply a specimen because he was not shown written authorization for the procedure.

[39] In the material provided in support of his application Mr Bartz included a copy of an order from the general manager of the Arthur Gorrie Centre for provision of a sample of urine under section 48(4). Similar documents were provided, he said, at Borallon Correctional Centre. His contention that there was no similar order for provision of a sample on the four occasions nominated in his application for the fourth declaration appeared to be based on the fact that no similar document had been shown to him on those occasions. However, while showing the prisoner a copy of the relevant order is undoubtedly sound practice, avoiding precisely the sense of distrust engendered in Mr Bartz, subsection 48(4) contains no requirement that the general manager's order be in writing; nor is there any provision in the statute requiring the instrument of delegation of the general manager to be shown to an affected prisoner.

[40] Mr Bartz argued that I should infer that there was no valid instrument of delegation from the fact that the respondent had not produced any copy of such an instrument. He referred to section 207(d) of the Corrective Services Act which provides:

"a person who purports to do or to have done anything for the purposes of this Act pursuant to the authority of an instrument of delegation made pursuant to this Act or the Corrective Services (Administration) Act 1988 shall, if the person purported to have made the delegation could pursuant to either Act have done that thing, be presumed to act or to have acted in accordance with a valid instrument of delegation unless the contrary is proved"

and to a decision of Mackenzie J in Mott v Queensland Community Corrections Board [13], in which his Honour said: "the onus is on the applicant to prove that [a person sitting as a member of the Queensland Community Corrections Board] was not acting in accordance with a valid instrument of delegation". That statement and section 207(d) seem, contrary to Mr Bartz's submission, to support the existence of a presumption that a valid instrument of delegation existed in each case.

[41] However, Mr Bartz relied particularly on a report made on 28 March 2000 in respect of his refusal to supply a urine sample as demonstrating that at least in that instance no instrument of delegation had existed. The report in question deals with Mr Bartz's refusal to provide a urine sample in the absence of written authorisation from the general manager. It appears to have been written by a Mr Hogan who was the supervisor who had sought the sample. It reads in part as follows:

"I asked him [Mr Bartz] why he would not provide a urine sample, he informed me that he would only provide a urine sample if he had written authorisation from the General Manager. I informed him that he did not require written authorisation, I informed inmate Bartz that, Section 48, Sub-section {4}of the Corrective Services Act 1988, states "The General Manager of a prison - {a} May order a prisoner to provide a sample of his breath or his urine", I informed him that my interpretation of that was that no written authorisation was required."

[42] I read the report as stating, correctly, that the general manager's order did not have to be in written form, rather than as stating that the general manager's delegation did not need to be by instrument. Accordingly, it does not provide any basis for concluding that Mr Hogan acted otherwise than in accordance with an instrument of delegation. I do not, therefore, consider that Mr Bartz has rebutted the presumption that officers acted pursuant to the authority of an instrument of delegation of the general manager on each of the occasions pointed to by him. It follows that I do not consider that either of the declarations sought in the third and fourth paragraphs of the application is justified.

[43] Finally, Mr Bartz sought review of a decision to change his security classification from a low classification to a medium classification, that decision having been made on 28 January 2000. He relied on two grounds:

"That the making of the decision was an improper exercise of power (section 20(2)(e) of the Judicial Review Act 1991) and that there was no evidence to justify the making of the decision (section 20(2)(h)) of the improper exercise of the power".

[44] Mr Bartz's submission on the first ground incorporated arguments that the respondent had both taken into account irrelevant considerations and failed to take into account relevant considerations.

[45] The history of the matter appears to have been that Mr Bartz was transferred on 6 July 1999 to the Darling Downs Correctional Centre. On 12 August 1999, an incident report was lodged by a Corrective Services Officer named Dwyer, alleging that a prisoner who had been instructed to change the placement of a prison television had been abused by a group of inmates which included Mr Bartz. On 13 August, Mr Bartz was found in another prisoner's cell; and, it was said, when asked if he had permission to be there, replied in the negative. A breach report form was completed. Mr Bartz, however, says, and it is not contradicted, that he was found not guilty of the breach, because he in fact had permission from an officer to be in the other prisoner's cell block.

[46] On 17 August 1999, Mr Bartz was transferred to Borallon Correctional Centre. He sought and was given reasons for the transfer. Those reasons referred to a number of documents placed before the Court by Mr Bartz as exhibits to his affidavit material, including those relating to the television incident and the unproved breach. There were, in addition, two memoranda which were not before the court, in respect of which public privilege was claimed. The findings of fact contained matters which go beyond the documents in evidence, asserting that Mr Bartz was "identified as having threatened physical harm to another prisoner"; "identified as standing over another prisoner for medication" and "identified as employing stand over tactics to coerce another prisoner to establish a medication regime".

[47] An investigation was carried out by the Corrective Services Investigation Unit. It is not clear what matter or matters were investigated although it appears probable that they were the allegations that Mr Bartz had "stood over" another inmate. According to documents from a sentence management review conducted in October 1999, the CSIU investigations resulted in no further action being taken, since there was insufficient evidence to support any charge. The recommendation on that review resulted in Mr Bartz's classification being restored to low, with a score of 21, on 6 December 1999.

[48] On 30 November 1999, Mr Bartz was charged with a breach, "without the permission of a correctional officer uses any drug or medication". His urine test had given a positive result for the presence of tetrahydracannabinol. Mr Bartz swears in an affidavit that the breach charge was dismissed because of a failure to apply correct sampling procedures.

[49] On 4 December 1999, Mr Bartz's cell was searched and a number of soft drink tokens he had accumulated were seized. It appears that the tokens, available to prisoners, were used as the fee for entry in a touch football competition. On the following day, Mr Bartz requested the return of the tokens asserting that their confiscation put him at serious risk of assault by those inmates to whom they belonged. According to Mr Bartz, he was in fact assaulted. His medical record from the 5 December 1999 contains the following entry "seen in DU had been in an altercation states punched in head, nil swelling, complaining of headache".

[50] On 6 December 1999 Mr Bartz was transferred to Sir David Longlands Correctional Centre. In January 2000, the reclassification of which Mr Bartz complained occurred.

[51] Mr Bartz was provided with reasons for the reclassification decision under section 33 of the Judicial Review Act 1991. Those reasons list the evidence upon which the decision was based. Not all of those documents are available to the court. It is said in the reasons that findings of fact were made, including the following:

"You were identified as being involved in the standover of other prisoners at the Darling Downs Correctional centre, following your transfer to that centre in July 1999....

You were involved, with other prisoners, in assaulting another prisoner at Borallon Correction Centre on 5 December 1999....

The department has information that whilst at Borallon Correction Centre you were allegedly involved in illegal activities, including distributing drugs and gambling."

[52] The basis for the second finding is unclear. As to the first and third findings, Mr Thomas for the respondent tendered a document "Recommendations for emergency transfer Borallon CC" which appears to correspond with item 15 of the documents listed in the reasons as constituting "the materials and other evidence upon which the decision was based". In relation to Mr Bartz, the following allegations were made by Mr RJ Bradbury, general manager at Borallon, and the author of the document:

" 1. On Sunday 5 December a series of violent incidences occurred involving racial disputes between Bartz, [unidentified inmate] as well as several other minor players.

2. Inmate Bartz was implicated in gambling issues, with a quantity of tokens confiscated. Bartz and [an inmate name deleted] have also been identified as main players in moving drugs through the centre. There is very current intelligence on CIS in relation to these issues."

[53] Of the remaining documents on which it said the decision was based, eight, by their dates would appear to relate to matters occurring at Darling Downs Correctional Centre; two as already noted, were not provided to the court. Other documents entitled sentence calculation, particulars of sentence, security classification history, and offender profile transfer history appear unlikely to contain particulars of allegations of standover, assault, drug distribution or gambling. It is conceivable that a document listed as " a memorandum from M Brown dated 27 January 2000" was the source of the finding that Mr Bartz was involved in assaulting another prisoner.

The Darling Downs Correctional Centre allegations

[54] Mr Bartz complained that documents which concerned allegations made about his behaviour at the Darling Downs Correctional Centre in August 1999 were taken into account, notwithstanding an earlier conclusion that the allegations were unsubstantiated.

[55] It seems clear from the reasons that the allegation that Mr Bartz had stood over other prisoners at Darling Downs Correctional Centre had been taken into account. I do not consider, however, that simply because those matters did not result in charges and had not precluded Mr Bartz's reclassification to low on a previous occasion, they could be said to be an irrelevant consideration for the purposes of the January review.

[56] Although no specific finding of fact was made in this regard, the reasons for the decision include a statement which Mr Bartz contended was also an irrelevant consideration:

"It was further noted that you were involved in an incident where it is alleged that you stabbed a prisoner."

[57] Mr Bartz tendered an affidavit exhibited to which was a certificate of the Registrar of the Supreme Court at Rockhampton to the effect that Mr Bartz had been found not guilty of charges of attempted murder and grievous bodily harm with intent. While it is difficult to see what weight could attach to a bare allegation of stabbing in circumstances where an acquittal had resulted, I would not be prepared to say that such a matter was incapable of being a relevant consideration in reviewing security classification.

Failure To Take Relevant Considerations Into Account

[58] Mr Bartz identifies five areas in respect of which he says the respondent failed to take into account relevant considerations. The first concerns the respondent having taken into account documents relating to incidents at the Darling Downs Correctional Centre. Mr Bartz says that the delegate, if he were to have reference to that material, including reports in relation to the allegation that he was found in another prisoner's cell without permission, should have taken into account also other records. Those records would have shown Mr Bartz's concerns about placement at Darling Downs, the difficulties which faced him there, the fact that he was given permission to be in the area in question, and that the breach was dismissed, as well as his own requests to be interviewed by the Corrective Services Investigation Unit in relation to the incident.

[59] Mr Thomas for the respondent says that it is apparent that the events at the Darling Downs Correctional Centre should not be regarded as more than a background as opposed to later events at Borallon. That can be inferred, he says, from the fact that the previous reclassification to low security at Borallon, which postdated the events at Darling Downs Correctional Centre, was not questioned by the delegate.

[60] Mr Bartz also contended that before relying on the allegations that he had been involved in gambling at Borallon and had been involved in an assault there, the delegate should have taken into account material which would have given the context of the seizure of tokens from his cell and the subsequent dispute. In relation to the first issue, he says from the Bar table that the tokens were held as prizes for the touch football competition. He asserts that the delegate should have taken into account a notice in respect of the touch football competition, which was widely displayed throughout Borallon, setting out the details of the competition (including the two token entry fee); and his request for the return of the tokens because of his apprehension that the inmates to whom they had belonged would blame him for the loss. That material also had relevance to the allegation of assault, which, he says, arose from his being set upon for that reason by other inmates; and in this regard he says that the delegate should have taken into account the medical record showing his attendance for treatment on 5 December.

[61] Mr Thomas in response contended that the real issue for the delegate was whether Mr Bartz posed a security problem, whatever the correctness of the allegations against him. Since it was neither necessary nor practicable for the delegate to determine the rights and wrongs of the allegations, material which the applicant contended favoured him would not assist nor, it followed, be relevant. In any event, the request to retrieve the tokens could not assist one way or another, and the existence of the football competition would not resolve whether the tokens were being used for gambling purposes. The court could not undertake a merits review to determine whether Mr Bartz's explanation was such as to displace the inference of gambling drawn from the report of Mr Bradbury.

[62] The reasons for decision included the statement:

"Whilst serving this period of imprisonment, you have been involved in appropriate programs to address your offending behaviour and also educational programs. However you have also continued to display inappropriate behaviours."

[63] Mr Bartz argued that the finding that he had "continued to display inappropriate behaviours" during his period of imprisonment was made without regard to references in the records to positive behaviour. He referred to an "Inmate's Sentence Management Review Plan" completed at Borallon Correctional Centre on 26 October 1999 in which, under "Institutional Behaviour", is recorded "Maintain good unit reports". Similarly, in an Induction/review Case Plan dated 7 January 2000 is recorded "maintain stable breach free behaviour". The use of the verb "maintain" gave rise to an inference, he argued, that his behaviour to that point had been appropriate and breach free. Finally, he relied also on the sentence management review inquiry completed at Borallon Correctional Centre on 19 September 1999 in which under "Conduct" it was noted that "Mr Bartz generally interacts and communicates positively only when approached ...but still positive....always compliant with all rules and procedures". Mr Thomas made the point that the last two documents pre-dated the alleged gambling and assault incidents.

[64] Finally, Mr Bartz pointed out there were two factors specified respectively at subsection 13(1A)(a) and (n) to which the delegate had not specifically referred, those being "the perceived risk of the prisoner to the public" and "likely influence on family relationships."

[65] A consideration of what material that might have been relevant to the decision making process becomes, as I observed to Mr Thomas during the course of argument, difficult when one has not all the material before the decision maker. The possibility exists that there was something in the material being considered so overwhelming as to have rendered each of the matters which the applicant says are pertinent, entirely irrelevant. However, in circumstances where the applicant's submissions were in the possession of the respondent in advance of the hearing, I consider I am entitled to infer that those documents adverted to in the reasons but not before the court would not have assisted the respondent in demonstrating the irrelevance of the matters to which Mr Bartz adverts.

[66] In relation to the allegations arising out of Mr Bartz's stay at the Darling Downs Correctional Centre, two of the documents before the delegate concerned the allegation that Mr Bartz had been found, unauthorised, in another prisoner's cell. Although those materials were not specifically referred to in the findings of fact, subsection 27B(b) of the Acts Interpretation Act 1954 requires reference in a statement of reasons to " the evidence or other material on which those findings [of fact] were based"; and the two documents were included under such a heading. It seems reasonable to infer, therefore, that they formed part of the basis for the findings of fact, which included a finding that Mr Bartz had been involved in the standover of other prisoners at Darling Downs. It seems likely that there was other evidence which led the delegate to this conclusion; but it is reasonable to suppose that the documents to which I have just referred played some part in that conclusion.

[67] In considering Mr Bartz's behaviour at Darling Down Correctional Centre and in a context in which material relating to the allegation he was in another prisoner's cell without authorisation was before the delegate, it was in my view relevant to take into account what became of the breach investigation. (Mr Bartz says, unchallenged, that the charge of breach was dismissed upon the evidence of Mr Gillan, a corrective services officer, that he had given permission for Mr Batz to enter the area in question.) Accordingly, I find that the delegate failed to take a relevant consideration into account in this regard.

Material in relation to the gambling and assault allegations

[68] Similarly in relation to the gambling and assault allegations, I conclude that the delegate should have taken into account the context in which those matters occurred. Mr Bartz has not sworn to the fact (as opposed to asserting from the Bar table) that the tokens were intended as prizes for the football competition, and there seems an extremely strong possibility that in fact there was an element of gambling. However, it was relevant in my view for the delegate to consider the nature of the competition, and the fact that the tokens had at least been acquired as entry fees in circumstances in which the terms of the notice advertising the competition were generally known and approved.

[69] Similarly, in relation to the assault, it is my view that it could not properly be considered without regard to its context; and that made it relevant for the delegate to take into account what Mr Bartz had had to say on 5 December about his position in relation to the seizure of the tokens and the likelihood of reprisal. It is difficult to see how the delegate could act on the allegation that Mr Bartz was involved in the assault of another prisoner without some information as to the circumstances in which the assault occurred; but in terms of the larger context concerning the tokens and the events of the assault itself, there is nothing in his findings or before me as to the material which he had which would indicate that he had either. Again, I conclude that a relevant consideration was not taken into account.

[70] It is no doubt correct, as Mr Thomas submitted, that the primary concern of security classification is to maintain security; so that in many circumstances it will be necessary to act on allegations which cannot be finally resolved. That is a different issue, however, from whether the delegate has taken into account alternative explanations in deciding whether to act on the allegations at all; and that is at the crux of my conclusions here. It must also be said that while security is the primary concern, it does not follow that the interests of the prisoner affected are to be disregarded. As earlier observed, the classification of a prisoner has a direct impact on his ability to gain his freedom, because of its immediate connection with his capacity to obtain parole. In those circumstances, a decision maker cannot fulfil his or her responsibilities by having regard only to those matters on the negative side of the equation.

[71] I do not consider, however, that those matters pointed to by Mr Bartz as establishing appropriate behaviour were of such force as to amount to a relevant consideration not taken into account by the delegate. The references in the exhibits "Inmate's Sentence Management Review Plan" and "Induction/review Case Plan" to maintaining good behaviour were far too slight to support the inference Mr Bartz argued for, of previous good behaviour. The conduct comment in the earlier document arising out of the sentence management review inquiry of September 1999 pre-dated, of course, and might reasonably said to have been displaced by, the later allegations of misconduct at Borallon. I do not find any failure to take into account relevant considerations in this respect.

[72] The argument that the delegate failed to take into account the applicant's perceived risk to the public is without substance. Although not explicitly referred to in those terms, it is plain from the statement of reasons that risk was a major factor in the delegate's decision-making process. Nor do I think there is anything in the argument that the delegate failed to have regard to the "likely influence of family relationships" in circumstances where there is nothing to suggest that there was, as a matter of fact, anything for him to consider in this regard.

[73] Mr Bartz argued that there was no evidence to justify the making of the decision in two respects. Firstly, he referred to the fact that in the reasons for decision the following statement was made:

"Whilst at large he committed further offences which included armed robberies, unlawfully using a motor vehicle on three occasions, arson, stealing and break and enter."

[74] That statement is wrong, in that while Mr Bartz was convicted of an offence of arson, it had occurred prior to his initial imprisonment and not during any period of escape. Mr Thomas conceded the incorrectness of the reference. However, it seems to me that the argument in this respect misconceives the "no evidence" ground. The error in this instance could by no stretch of the imagination be said to have been critical to the decision, either by itself or in combination with other facts. It was not in my view correctly described either as "a small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links" or "a finding of fact that, critically leaves the decision maker to take one path in the process of reasoning rather than another", Curragh Qld Mining v Daniel[14].

[75] The second "no evidence" ground relied on by Mr Bartz concerned a statement in the findings of fact: "you have been...subject to breach proceedings on six occasions". Mr Bartz pointed out that while his departmental "Violation History" shows six instances in which breaches were alleged, he had in fact been the subject of seven breach proceedings, and had been found guilty on only three occasions. He was able to demonstrate a finding of not guilty on one occasion by production of a document showing the substitution of a not guilty conclusion upon review.

[76] However, the statement that Mr Bartz has been subject to breach proceedings on six occasions is literally correct and it cannot be said that there is no evidence on that matter. One might question how it can assist a decision maker to advert to the fact that proceedings have occurred, without further reference to their outcome; but as a no evidence ground Mr Bartz's contention cannot succeed.

[77] Because I have concluded that there was in two respects a failure to take relevant considerations into account, it follows that the delegate's decision must be set aside and referred to him for further consideration.

[1] S.13(1) Corrective Services Act 1988 as amended.

[2] [1998] HCA 28; (1998) 194 CLR 355 at pp. 390-391

[3] [1998] HCA 28; (1998) 194 CLR 355 at p 390.

[4] [1998] HCA 28; (1998) 194 CLR 355 at p 392.

[5] [1998] HCA 28; (1998) 194 CLR 355 at p 392.

[6] [1998] HCA 28; (1998) 194 CLR 355at p 393.

[7] Appeal No. 10836 of 1998; 14 October 1999.

[8] [1996] FCA 1017; (1996) 71 FCR 1 at pp 32-33

[11] Acts Interpretation Act 1954 subsection 27A(1)

[12] Acts Interpretation Act 1954 subsection 27A(2)

[13] No. 3812 of 1997; 2 November 1997 at p.2

[14] [1992] FCA 44; (1992) 34 FCR 212 at 221.