Supreme Court of Queensland|2001-05-04|Before: Ambrose J

Benson & Ors v. Chief Executive, Department of Corrective Services [2001] QSC 159 (4 May 2001)

THE SUPREME COURT [2001] QSC 159

JAMES BENSON, SIMON BONTOFT, TRENT CARTER, BLAIR COOPER, MARK EASTLEY, KELLIE ELLIOT, RUSSELL FLOYD, SUE GILL, TRACEY GREEN, RUSSELL GROGIN, IAN HASTIE, NIGEL HAUSLER, CRAIG JONES STEPHEN KENEALLY, H T LAM, TANIA MASZAK, MALCOLM McCULLOUGH, WENDY McFARLANE, LIZA McLANACHAN, LINDY MERTA, JIM MILLIOTIS, BEN OWEN, COLIN PRIEST, ROGER SHOESMITH, TONY STRUDWICK, CRAIG SUTCH, PHILIP ANTHONY TYLER, REGINALD WILLIAMS, and DARREN YOUNG.

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES

CATCHWORDS: ADMINISTRATIVE LAW- Appeals from Administrative Authorities - Judicial Review Legislation- Application for dismissal of an application for review of decisions of Corrective Services relating to eligibility- whether the "change of date of the applicant's eligibility for remission" by the Commission, offends an expectation that the applicants had, and/or whether it can be construed as punishing the applicants twice- whether s

207B of the Corrective Services Act 1988 (as amended) is invalid because it contradicts other legislation- whether s 207A and s

Corrective Services Act 1988 (Qld); s 61; s 86; s 130; s 165; s

Corrective Services Act 2000 (Qld); s 75; s 76; s278

General Steel Industries Inc v The Commissioner for Railways

McCasker v The Queensland Corrective Services Commission

Solicitors: Russo & Coburn Solicitors for the applicants

[1] This is an application by the respondent ("Corrective Services") pursuant to s 48(1) of the Judicial Review Act 1991 for the dismissal of an application for review of decisions of Corrective Services relating to eligibility of 19 prisoners, currently serving terms of imprisonment of various durations, which were imposed on various dates, prior to 24 November 2000 when the Corrective Services Act 1988 was amended by the insertion of ss 207A and 207B pursuant to s 278 of the Corrective Services Act 2000.

[2] The Corrective Services Act 2000 was assented to on 24 November 2000 and s 278

[3] The balance of the Corrective Services Act 2000 will commence on a day to be fixed by proclamation. No such proclamation has yet been made.

[4] Under s 130(e) of the Corrective Services Act 1988 regulations may be made with respect to -

"(e) the granting or forfeiting of remission of sentences of imprisonment;"

[5] Under regulation 21 of the Corrective Services Regulation 1989, made pursuant to s

130 of the Corrective Services Act 1988, it is provided inter alia -

"(1) A prisoner serving a sentence of imprisonment of 2 months or longer and who is of good conduct and industry, may at the discretion of the Commission and subject to the following provisions of this Part, be granted a remission of one third of his sentence together with such other remissions as is provided for in this Part"

[6] The Commission's power to grant remissions was delegated to the managers of various prisons, subject to the constraints of an "administrative guideline" which is recorded in the judgment of Pincus J.A. in McCasker v The Queensland Corrective Services Commission [1998] 2 QdR 261 at 268 ll 30 - 50.

[7] I refer also to the observation of Helman J. in the same case at page 280 ll 25 - 28

"Good conduct and industry will take the prisoner to the prison gate, but permission to pass through it may legitimately be withheld if that

decision is based upon proper considerations. A report by a psychologist based on observations of the prisoner in prison and a knowledge of his history, as in this case, could well provide the decision-maker with the proper basis for refusing to grant a remission."

[8] There have been a number of cases where prisoners, not granted remission by the Commission, of a sentence of imprisonment have sought to review the decision to withhold remission. In some cases such review has been successful. It is unnecessary and unhelpful to analyse those cases.

[9] One consequence of the grant of a remission of sentence of up to one third of the period of imprisonment imposed is that upon remission a prisoner ceases to be subject to any supervision by officers of the Commission.

[10] On 18 December 2000 a "prisoner information bulletin" was published in various correctional institutions, containing, inter alia, the following information -

"IMPORTANT Information for prisoners

Changes to the Corrective Services Act 1988"

[11] The bulletin then advised that s 207B of the Corrective Services Act 1988 "came into operation on 24 November 2000". It was stated that "the aim of this information bulletin is to advise you of the changes to remission eligibility that result from the commencement of s 207B."

"You may be aware that the Government and the general community prefer that prisoners be reintegrated into the community through a graduated supervised release program. That is, through a release to work program, home detention or parole. The recent changes to the current Act work toward this purpose by removing a prisoner's eligibility for remission if the prisoner is granted release to work or release to home detention or parole."

1. If you are (or if you have been) granted release to work or release to home detention or parole you are no longer eligible to be considered for remission.

2. If you are returned to custody following cancellation of your release to work, home detention or parole, you will not be eligible for remission on any sentence that you are serving. However, grants of remission made before your release to work or release to home detention or parole will still be valid."

[14] It is convenient to set out ss 207A and 207B -

207A.(1) This section applies to the failure under this Act -

(a) before the commencement of this section - to discharge a prisoner who was eligible for remission; or

(b) after the commencement of this section - to discharge a prisoner who is eligible for remission.

(2) If a proceeding in relation to the failure was started before the commencement of this section, the proceeding may not be continued.

(3) No proceeding in relation to the failure may be started after the commencement of this section.

(4) Subsections (2) and (3) do not apply if the failure was motivated by malice.

(5) This section is a law to which the Acts Interpretation Act 1954, section 20A applies.

"proceeding" means a proceeding for damages for any damage or loss, including for example loss of liberty.

207B. (1) This section applies to a prisoner who was, before the commencement of this section, or who is, after the commencement of this section -

(a) granted leave of absence, under section 61(1)(b) or (c), to engage or seek employment; or

(b) released, under section 86, to serve a period of home detention; or

(2) If this section applies to the prisoner because of subsection (1)(a), the prisoner's eligibility for remission -

(a) if the prisoner was granted leave of absences before the commencement of this section - is taken to have been extinguished when the prisoner was granted leave of absence; or

(b) if the prisoner is granted leave of absence after the commencement of this section - is extinguished when the prisoner is granted leave of absence.

(3) If this section applies to the prisoner because of subsection

(1)(b) or (c), the prisoner's eligibility for remission -

(a) if the prisoner was released before the commencement of this section - is taken to have been extinguished when the prisoner was released; or

(b) if the prisoner is released after the commencement of this section - is extinguished when the prisoner is released.

[15] It may be observed that no reference in the prisoner information bulletin published on 18 December 2000 is made to s 207A.

[16] It is clear from the material, which I will not attempt to analyse, that when each of the applicant prisoners commenced to serve the sentence of imprisonment imposed upon him or her, he or she was advised of the dates when he or she could expect to become eligible for various community-based orders, remissions of sentence or for

"full-time discharge" if there was no remission of sentence.

[17] Each applicant complains in the application to review, that what is asserted to be the Commission's purported "change of date of the applicants' eligibility for remission" offends an expectation that he or she at all times had that "given the applicant was of good conduct and industry and complied with previous legislation, the applicant would have been granted remission on or about the 'old date'."

[18] Each applicant then contends that s 207B of the Corrective Services Act 1988 (as amended) is invalid because it -

s 20 of the Acts Interpretation Act (Qld) 1954 as amended

s 20C of the Acts Interpretation Act (Qld) 1954 as amended

s 180 of the Penalties and Sentences Act (Qld) 1992 as amended s 16 of the Criminal Code (Qld) as amended"

[19] Consequently the "decision" published by Corrective Services in its bulletin of 16

December 2000, and/or alternatively, the alterations made to the records of each of the applicant prisoners relating to his or her eligibility for "earliest discharge" was contrary to law and reviewable. Each applicant claims an order directing Corrective Services to reinstate the previous decision, which it had made as to his or her eligibility for remission of sentence i.e. the decision made prior to the coming into effect of s 207A and 207B of the Corrective Services Act 1988.

[20] In a ministerial statement made on 14 November 2000 it was observed -

"In a number of recent decisions the Queensland Courts have departed from established attitudes towards the granting of remission for prisoners sentenced to terms of imprisonment in this State. Those decisions have opened up a number of possibilities in relation to the early discharge of prisoners which this Government finds intolerable... "

"Put simply, these recent Court decisions have the potential to transform the granting of remission into a right of release, rather than

a privilege granted in cases where it is deserved. These decisions potentially mean two things -

Firstly, prisoners who are on parole - that is receiving supervision on their release back into the community, must be granted remission when the two thirds point in their sentences is reached. That removes them from the supervision of the Department. Secondly, prisoners released on parole who are taken back into secure custody for breaches of their parole conditions, may be able to sue for unlawful imprisonment if they are kept behind bars past the point where they may have been granted remission... "

"The people of Queensland do not owe these prisoners early release. They certainly do not owe them compensation for so called unlawful imprisonment if those prisoners are kept behind bars beyond the two thirds point of their sentences. The Beattie Labour Government will act to close off any potential loopholes that these Court decisions may have made in the current legislation, to ensure that there is no flood of litigation as a result."

[21] In construing the legislative effect of s 207B of the Corrective Services Act, which became effective on 24 November 2000, it is helpful, indeed necessary, to consider relevant parts of the Corrective Services Act 2000 which will become operative on a date to be proclaimed.

[22] In particular, it is relevant to consider Chapter 2 Part 2 Division 11 of that Act

["Management of Prisoners"] (ss 14-85) which relates to remission and conditional release of prisoners.

"75.(1) A prisoner is eligible for remission only if -

(a) the prisoner is serving a term of imprisonment, as defined in this Act, imposed for an offence committed before the commencement of this section; and

(b) the term of imprisonment is 2 months or more; and

(c) during the prisoner's period of imprisonment, the prisoner has not been -

(i) granted leave of absence, under the Corrective Services Act

1988, section 61(1)(b) or (c), to engage in or seek employment; or

(ii) released, under the Corrective Services Act 1988, section 86, to serve a period of home detention; or

(iii) released on parole under an order made under the Corrective

(iv) released under a post prison community based release order.

(2) Subject to subsections (3) and (4) the chief executive may grant remission of up to one-third of the term of imprisonment if satisfied -

(a) that the prisoner's discharge does not pose an unacceptable risk to the community; and

(b) that the prisoner has been of good conduct and industry; and

(3) If, before the chief executive has granted remission, the prisoner is charged with an offence allegedly committed during the term of imprisonment, the chief executive must not grant remission until after the charge is decided."

[24] There are other sub sections of s 75 to which it is unnecessary to refer for the purpose of determining the matters argued in this case.

[25] Section 76(1) of the Corrective Services Act 2000 provides that a prisoner is eligible for conditional release after serving two thirds of the period of imprisonment and provided that the prisoner has not been convicted of an offence during the period of imprisonment.

[26] Conditional release may be ordered if the Chief Executive is satisfied that such release will not pose an unacceptable risk to the community, and that the prisoner has been of good conduct and industry; such a conditional release may contain a condition designed to help the prisoner's reintegration into the community and secure his good conduct and prevent him from committing another offence.

[27] Obviously the proposed conditional release order permits the imposition of conditions designed to secure the supervision of a prisoner similar to those traditionally imposed as conditions upon the grant of parole. Chapter 5 of the Corrective Services Act 2000 deals with "post-prison community based release".

[28] Interestingly, under the proposed new regime, a release to work order or a home detention order or a parole order are all characterised as "post-prison community based release" and all involve a degree of supervision during the period of the operation of those orders.

[29] In my view, reference to the ministerial statements prior to the passing of the

Corrective Services Act 2000, and a consideration of Chapter 5 and Chapter 2 Part 2

Division 11 of that Act, and particularly s 75(1)(a) in Division 11, makes it clear that it was the intention of the legislature to repeal legislation and regulations made under it, permitting remission of part of a sentence of imprisonment imposed in respect of all offences committed after the proclamation of the Corrective Services Act 2000.

[30] In effect, s 75 retains eligibility for remission of sentence only in respect of a term of imprisonment imposed with respect to an offence committed before the coming into operation by proclamation of the balance of the Corrective Services Act 2000. However, more important, for the purpose of construing s 207B of the Corrective Services Act 1988, as inserted by s 278 of the Corrective Services Act 2000, is the provision of s 75(1)(c) of the new Act.

[31] It is abundantly clear that, for a prisoner sentenced to imprisonment with respect to an offence committed prior to s 75 of the Act coming into force, the prisoner will not be eligible for parole should he or she, during his or her period of

imprisonment, have been granted a leave of absence under s 61 of the 1988 Act or a release to home detention under s 86 of that Act or a release on parole under s 165 of that Act.

[32] Section 75(1)(a) and (c) are clearly in the nature of transitional provisions of the Act to avoid depriving a prisoner convicted of an offence committed before s 75 comes into effect of the privilege of remission available under the 1988 Act and Regulations made under it which clearly is abrogated with respect to all prisoners convicted of offences committed subsequent to s 75 of the Corrective Services Act

2000 coming into effect upon proclamation.

[33] Section 75(2) of the Act clearly imposes the same sort of constraint on the granting of remission as that imposed by Regulation 20 of the 1989 Regulations as interpreted in McCasker (supra).

[34] Upon the construction of s 207B of the Corrective Services Act 1988 (as amended) for which Corrective Services contends, prisoners serving sentences of imprisonment for offences committed prior to the amendments to the 1988 Act effected on 24 November 2000, have the same constraint upon eligibility for remission imposed upon them as will prisoners sentenced upon convictions for offences committed prior to the proclamation of the Corrective Services Act 2000 pursuant to s 75 of the Corrective Services Act 2000.

[35] It is convenient to deal with the bases upon which the applicants contend that s

207B of the Corrective Services Act 1988 is invalid -

(i) SECTION 20 AND 20C OF THE ACTS INTERPRETATION ACT QLD (1954)

[36] Section 20(2)(c) provides -

"(2) The repeal or amendment of an Act does not -

(a)...

(b)...

(c) affect a right, privilege or liability acquired, accrued or incurred under the Act; or

(d) affect a penalty incurred in relation to an offence arising under the Act or

(e) affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraphs (c) or

(d).

(3) The investigation, proceeding or remedy may be started, continued or completed and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment have not happened."

[37] Section 20C(3) of the Acts Interpretations Act provides -

"(3) If an Act increases the maximum or minimum penalty, or the penalty, for an offence, the increase applies only to an offence committed after the Act commences."

[38] For the applicants it is contended that a proper construction of s 207B requires that it be read with s 207A. It is argued that they are complementary sections designed

to protect state instrumentalities from liability in damages brought by prisoners for wrongful detention beyond their remission eligibility date. It is contended that these sections achieve this result only when read together. It is said that s 207A extinguishes the right of a prisoner to commence proceedings and s 207B extinguishes a prisoner's eligibility for remission, thus removing any basis upon which that prisoner might make a civil claim for unlawful detention beyond his or her "remission eligibility date". It is contended that neither s 207A nor 207B abolishes the power of Corrective Services to grant remission. It is contended that those sections simply remove the notion of "eligibility" for release for the purpose of extinguishing any prisoner's "right" to bring an action for wrongful detention. It is contended that s 207B does not operate to effect a variation in the standard eligibility date for remission which existed prior to 24 November 2000 for prisoners at that time serving sentences of imprisonment. In considering the effect of ss 20 and 20C of the Acts Interpretation Act one must keep in mind that the Acts Interpretation Act does not purport to constrain or fetter the power of the legislature to amend existing legislation to abrogate existing privileges. The Act merely provides for the application of cannons of construction when amending legislation does not clearly indicate an intention to effect a privilege acquired or accrued under a previous Act.

[39] The starting point in construing the effect of ss 207A and 207B of the Corrective Services Act 1998 inserted by the 2000 Act is the provision of s 4 of the Acts Interpretation Act which provides -

"4. The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in any Act."

[40] The argument advanced on behalf of the applicants is based upon the contention that ss 207A and 207B may reasonably be construed to have the effect and purpose for which the applicants contend.

[42] In my view consideration of each new section demonstrates that each may and should be read independently of the other. Section 207A, on its face, unequivocally prohibits the institution of proceeding for damages based upon a failure to discharge a prisoner eligible for remission - whether that failure occurred before or after s

207A became operational on 24 November 2000.

[43] In my view s 207B, on a proper construction of both sections, cannot be given the limited effect of being designed merely to narrow the category of prisoners who might be deemed to be eligible for remission for the purpose of s 207A. That section is quite unequivocal in its expression and, in my view, it is impossible to restrict the effective operation of s 207B to define only the category of prisoners eligible for remission to which s 207A(1)(a) and (b) refer.

[44] To my mind s 207B must be considered standing alone. On its face it purports to apply to prisoners who were, either before or after 24 November 2000, granted release into the community under s 207B(1)(a)(b) or (c) while serving imprisonment.

[45] Section 207B(2) and (3) exhibit a clear legislative intent to extinguish the eligibility for remission of prisoners categorised under s 207B(1)(a)(b) or (c).

[46] In my view, there is simply no room to call in aid s 20 of the Acts Interpretation Act or s 20C of that Act, because a "contrary intention" within s 4 of the Act clearly appears on the face of s 207B. That intention is made even more clear when that section, which became effective on 24 November 2000, is considered in the context of the Corrective Services Act 2000 (Vide Chapter 2 Division 11) which has been enacted and only awaits proclamation to become operative.

[47] (ii) SECTION 180(1) OF THE PENALTIES AND SENTENCES ACT (QLD)

"S. 180(1) If a provision of this or another Act increases the sentence, or the maximum or minimum sentence, for an offence, the increase applies only to offences committed after the commencement of the provision."

[48] In my view this provision does not support the contention of the applicants. Section

207B of the Corrective Services Act 1988 does not purport to increase the sentence imposed upon each of the prisoners prior to 24 November 2000. On its face, the section merely provides that prisoners released from custody during their imprisonment, in the circumstances categorised in that section, shall not be eligible for remission.

[49] It is clear in my view that the effect of s 270B is not to increase the length of sentence imposed upon prisoners whether before or after section 207B became operative in November 2000. The section, on its face, only removes the eligibility to take the benefit of a privilege that might, prior to November 2000, have eventually become available to some of those prisoners. For the reasons annunciated in McCasker v The Queensland Corrective Services Commission

(supra), the extension of the privilege of remission was always subject to the exercise of a discretion on the part of the Commission. Undoubtedly, the exercise of that discretion was subject to administrative review. That consideration however, to my mind, does not support an argument that failure to extend the privilege of a remission to a prisoner - whether or not upon a sound exercise of discretion - has the consequence of increasing the sentence initially imposed. To my mind, s 180(1) lends no support to this contention of the applicants.

[50] (iii) SECTION 16 OF THE CRIMINAL CODE (QLD)

"16. A person cannot be twice punished ... for the same act or remission."

[51] In my view, it is impossible to contend that either a failure to grant remission to a prisoner "eligible" for a grant of that privilege prior to November 2000, or a change to the system after that date, by which Corrective Services manages and/or controls the release of prisoners from strict custody, whether by remission of sentence or otherwise, can be construed as punishing such prisoners twice for the offence for which they have had a term of imprisonment imposed upon them.

[52] It was contended, finally, that an application to dismiss an application for review pursuant to s 48(1) should be approached the same way that one approaches an

application to terminate summarily an action. Reference was made to the observations of Barwick CJ in General Steel Industries Inc v The Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128 - 9.

[53] I adopt that approach upon this application and consider that, for the reasons I have outlined, there is no reasonable basis advanced by the applicants for the review of any "decision" of Corrective Services reflected in the publication of its bulletin of

16 December 2000, or alternatively, any decision made at the date of or subsequent to the publication of that bulletin to alter the records of the applicant prisoners relating to their eligibility for "earliest discharge" from strict custody in which they are held pursuant to the various terms of imprisonment imposed upon them. Such decisions merely implement the legislative constraints imposed upon the discretionary grant of remission by s 207B of the Corrective Services Act 1988 on and from 24 November 2000.

[54] I apply s 48(1)(d) of the Judicial Review Act 1991 adopting the general approach considered by Barwick CJ in General Steel Industries.

[55] I therefore dismiss the applications brought to review the decision/decisions of the

Chief Executive, Department of Corrective Services by each of the applicants.

[56] The grounds advanced on behalf of the applicants are based essentially upon the effect of amendments to the current Corrective Services Act 1988 made in November 2000. The points of law advanced to support those grounds seem not to have been directly ruled upon to date.

[57] In the circumstances, I would be inclined to make no order with respect to the costs of the application, however, I will hear submissions on the question of costs.

Benson & Ors v. Chief Executive, Department of Corrective Services [2001] QSC 159 (4 May 2001)

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Judgment (132 paragraphs)

Benson & Ors v. Chief Executive, Department of Corrective Services [2001] QSC 159 (4 May 2001)

Legislation Cited (1)

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