ADMINISTRATIVELAW – JUDICIALREVIEW – GROUNDSOF REVIEW – GENERALLY– where the applicant was serving an indefinite sentence – where hehad been classified as a maximum security prisonerfor almost eight years– where maximum security orders are issued every six months – wherethe applicant sought to judiciallyreview the decision to issue a consecutivemaximum security orderADMINISTRATIVELAW – JUDICIALREVIEW – GROUNDSOF REVIEW – UNREASONABLENESS– where the applicant submitted that the decision maker placedinsufficient weight on a number of factors in the applicant’sfavour andundue weight was placed on the applicant’s criminal history –whether the exercise was so unreasonable thatno reasonable person could so
exercise the power
ADMINISTRATIVE
LAW – JUDICIAL
REVIEW – GROUNDS
OF REVIEW – ERROR OF LAW – where the applicant submitted that
there was no evidence or other material to justify the making of
the decision
– whether the material relied upon by the respondent had probative
value
ADMINISTRATIVE
LAW – JUDICIAL
REVIEW – GROUNDS
OF REVIEW – ERROR OF LAW – where the applicant contended that
the decision was unlawful because the decision was contrary to the
purpose of
the Corrective Services Act 2000 and because the decision was made in
breach of the department’s policies and procedures – whether the
applicant’s
containment is ‘inhumane’
STATUTES
– ACTS
OF PARLIAMENT –INTERPRETATION
– CONSIDERATION
OF EXTRINSIC MATTERS – OTHER
MATTERS – where there is no definition of ‘humane
containment’ in section 3 of the Corrective Services Act 2000
– whether the use of international human rights instruments can be
used to aid in the interpretation of ‘humane treatment’
–
where there are general principles of statutory interpretation that govern the
use of international instruments in the interpretation
of domestic law –
whether the applicant’s containment is in breach of international human
rights standards
Acts Interpretation Act 1954 (Qld) s 32A(l)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss
5(1)(f), 5(1)(h), 5(3)Corrective Services Act 2000 (Qld) ss 3,
47, 48, 50, 189(1)Judicial Review Act 1991 (Qld) ss
20(1)(f), 20(2)(h), 21(2)(h), 24Penalties and Sentences Act
1992 s 163(1)Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1947] EWCA Civ 1
[1948] 1 KB 223, citedAttorney General (NSW) v Quin
(1990) 170 CLR 1, applied
Australian Broadcasting Tribunal v Bond [1990] HCA 33
(1990) 170 CLR 321,
discussedAustralian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10
(1997)
187 CLR 297, cited Bertran v Vanstone [2000] FCA 359
(2000) 173 ALR 63, cited
Bradley v The Commonwealth [1973] HCA 34
(1973) 128 CLR 557, cited
Bread Manufacturers of NSW v Evans [1981] HCA 69
(1981) 56 ALJR 89, cited
Bropho v Western Australia (1990) 171 CLR, cited
Buck v Bavone [1976] HCA 24
(1976) 135 CLR 110, cited Chow Hung Ching v The
King [1948] HCA 37
(1948) 77 CLR 449, discussed
Chu Kheng Lim v Commonwealth (Minister for Immigration, Local Government
and Ethnic Affairs) (1992) 176 CLR 1, discussed Coco v The Queen
[1994] HCA 15
(1994) 179 CLR 427, citedCoe v Commonwealth [1993] HCA 42
(1993) 118 ALR 193, cited
Coleman v Power [2004] HCA 39
(2004) 220 CLR 1, discussedDietrich v R
[1991] HCA 57
(1992) 177 CLR 292, discussed
Elliott v Southwark London Borough Council [1976] 1 WLR 499,
cited
Garland v British Rail Engineering Ltd [1982] UKHL 2
[1983] 2 AC 751,
citedGarland v Chief Executive, Department of Corrective Services
[2004] QSC 450, discussedGrice v State of Queensland [2005] QCA 272
[2006] 1 Qd R
222, cited Gronow v Gronow [1979] HCA 63
(1979) 144 CLR 513, cited Hall
& Co. Ltd v Shoreham-By-Sea Urban District Council [1964] 1 WLR 240,
cited Kioa v West (1985) 159 CLR, cited Kruger v The
CLR 513, cited Mabo v Queensland (No 2) [1992] HCA 23
(1992) 175 CLR
1, discussed Mallet v Mallet [1984] HCA 21
(1984) 156 CLR 605,
citedMinister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40
(1986) 162
CLR 24, discussed
Minister of Housing and Local Government v Hartnell [1965] AC 1134,
cited
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85
(1980) 31 ALR
666, appliedMinister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20
(1995)
183 CLR 273, discussed
Newbury District Council v Secretary of State for the Environment
[1981] AC 578, citedParramatta City Council v Pestel [1972] HCA 59
(1972) 128 CLR
305, cited Plaintiff S157 12002 v The Commonwealth [2003] HCA 2
(2003) 211 CLR
476, citedPickwell v Camden London Borough Council [1983] QB 962,
cited Polities v Commonwealth [1945] HCA 3
(1945) 70 CLR 60, citedPotter v
Minahan [1908] HCA 63
(1908) 7 CLR 277, cited Pulhofer v Hillington London Borough
Council [1986] UKHL 1
[1986] AC 484, discussed
R v Denmark, Eur.Comm, HR, Decision of 11 March 1985, 41 DR,
applied
R v Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1
QB 456, discussedRe MIMA
Ex parte Lam [2003] HCA 6
(2003) 214 CLR 1,
discussed Re Moore
Ex parte Co-operative Bulk Handling Ltd (1982) 56
ALJR, cited Re Pochi and Minister for Immigration and Ethnic
Affairs [1979] AATA 64
(1979) 26 ALR 247, appliedReg. v Anderson
Ex parte Ipec-Air
Pty Ltd [1965] HCA 27
(1965) 113 CLR 177, cited Reg v Hillingdon London Borough
Council
Ex parte Royco Homes Ltd [1974] QB 720, cited
Sargood Bros v Commonwealth [1910] HCA 45
(1910) 11 CLR 258, cited Sean
Investments Pty Ltd v MacKellar [1981] FCA 191
(1981) 38 ALR 363, cited Simsek v
Macphee (Minister for Immigration and Ethnic Affairs) [1982] HCA 7
(1982) 148 CLR
636, cited South Oxfordshire District Council v Secretary of State for
the Environment [1981] 1WLR 1092, cited Tasmanian Wilderness Society
v Fraser [1982] HCA 37
(1982) 153 CLR 270, cited Western Australia v
Commonwealth [1995] HCA 47
(1995) 183 CLR 373, cited
Zachariassen v Commonwealth [1917] HCA 77
(1917) 24 CLR 166, cited
Judgment (336 paragraphs)
[1]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY - where the applicant was serving an indefinite sentence - where he had been classified as a maximum security prisoner for almost eight years - where maximum security orders are issued every six months - where the applicant sought to judicially review the decision to issue a consecutive maximum security order
[2]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS - where the applicant submitted that the decision maker placed insufficient weight on a number of factors in the applicant's favour and undue weight was placed on the applicant's criminal history - whether the exercise was so unreasonable that no reasonable person could so exercise the power
[3]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW - where the applicant submitted that there was no evidence or other material to justify the making of the decision - whether the material relied upon by the respondent had probative value
[4]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW - where the applicant contended that the decision was unlawful because the decision was contrary to the purpose of the Corrective Services Act 2000 and because the decision was made in breach of the department's policies and procedures - whether the applicant's containment is 'inhumane'
[5]
STATUTES - ACTS OF PARLIAMENT -INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - OTHER MATTERS - where there is no definition of 'humane containment' in section 3 of the Corrective Services Act 2000 - whether the use of international human rights instruments can be used to aid in the interpretation of 'humane treatment' - where there are general principles of statutory interpretation that govern the use of international instruments in the interpretation of domestic law - whether the applicant's containment is in breach of international human rights standards
N M Cooke QC with M J Rinaudo Lewis for the applicant
[61]
Aboriginal and Torres Straight Islander Legal Service for the applicant
[62]
[1] This is an application for judicial review of a decision made by the respondent, the Chief Executive of the Department of Corrective Services (the "Department"), issuing a maximum security order in relation to the applicant, Raymond Garland. Mr Garland is a 35 year old man who is serving an indefinite term of imprisonment. The decision with regard to the maximum security order was made on 2 March 2006.
[63]
[2] The relevant provisions about maximum security orders were found in Division 6 of Part 2 of the Corrective Services Act 2000 (CSA).[1] Part 2 dealt generally with the management of prisoners. Section 47 of the CSA provided that the respondent might make an order that a prisoner be accommodated in a maximum security facility. However such orders could only be made in certain limited circumstances. Subsection 47(2) provided that a maximum security order might only be made if:
[64]
"(a) the prisoner is classified as maximum security; and
[65]
(b) the chief executive considers, on reasonable grounds, that 1 or more of the following apply -
[66]
(i) there is a high risk the prisoner will escape, or attempt to escape;
(ii) there is a high risk the prisoner will inflict death or serious injury on other prisoners or other persons with whom the prisoner may come into contact;
(iii) generally, the prisoner is a substantial threat to the security or good order of the facility."
[67]
The maximum security order in this case was based on the ground set forth in subsection 47(2)(b)(iii).
[68]
[3] Subsection 47(3) provided that the term of the order must not be longer than six months. Section 48 of the CSA, however, provided that there may be consecutive maximum security orders. The chief executive might make another maximum security order to take effect at the end of an existing maximum security order. The new maximum security order could not be made earlier than fourteen days before the end of an existing order. Subsection 48(3) provided for a procedure by which the chief executive must give notice to the prisoner advising that he or she was about to consider whether another order should be made and giving the prisoner the opportunity to make submissions to the chief executive about anything relevant to the decision about making the order. The chief executive must then consider any submissions by the prisoner before making any further maximum security order.
[69]
[4] Mr Cooke QC and Ms Rinaudo Lewis, on behalf of the applicant, argued three grounds of review. The first was that there was no evidence or other material to justify the making of the decision which in their submission raised the question of whether or not the jurisdictional facts had been satisfied. The second ground was that making the decision was an improper exercise of power with the result that the exercise was so unreasonable that no reasonable person could so exercise the power. The third ground was that the decision was otherwise contrary to law because Mr Garland's continued containment in the maximum security unit (MSU) was inhumane and so contrary to the CSA and because there were breaches of the policy and procedures of the Department which meant the order made was illegal. The third ground was amended by leave, without objection, at the end of the hearing of the evidence.
[70]
[5] Before considering each of these grounds in turn it is necessary to set out the factual background so far as it was known to, and taken account of, by the decision maker. The decision maker was Alison Hunter who is the Deputy Director General of the Department. Ms Hunter had been delegated the power to make a decision under s 48 of the CSA to make a consecutive maximum security order.
[71]
[6] The material before the decision maker showed that Mr Garland is in custody as a result of sentences imposed upon him on 23 October 1998 by Hoath DCJ. On that occasion Mr Garland pleaded guilty to all charges on a 45 count indictment. He was sentenced to an indefinite sentence on each of four counts of rape under s 163(1) of the Penalties and Sentences Act 1992 (Qld). It was specified that life imprisonment was the nominal sentence on each of those counts.
[72]
[7] On each of three of the counts of indecent assault with a circumstance of aggravation, he was sentenced to life imprisonment. On each of two counts of indecent assault with a circumstance of aggravation, one count of burglary, one count of assault occasioning bodily harm whilst armed and one count of abduction, he was sentenced to five years imprisonment. He was sentenced to three years imprisonment on each of ten counts of deprivation of liberty, each of 14 counts of serious assault, one count of indecent assault with a circumstance of aggravation, one count of indecently dealing with a child under 16, each of two counts of housebreaking and each of two counts of unlawful use of a motor vehicle. For the offence of going armed so as to cause fear and one count of receiving, he was sentenced to two years imprisonment. He was sentenced to six months imprisonment on one count of common assault.
[73]
[8] The offences for which he received those sentences were committed on 6 April 1997 in Brisbane and on 8 and 9 April 1997 in Mackay. They were committed while he was on parole, within four months of his release on home detention in December 1996.
[74]
[9] The circumstances of the offences were set out in the sentencing remarks by Hoath DCJ. They showed that the offences on 6 April 1997 involved Mr Garland's abducting, raping, and forcing oral sex on a 14 year old girl who had no sexual experience and who knew and trusted Mr Garland. At the time he committed the offences he was armed with a long bladed razor which he used to threaten the complainant.
[75]
[10] Mr Garland then fled to Mackay. He took a young man aged 16 to a motel. Holding a gun to the young man's head, Mr Garland punched him twice in the face and forced the young man to perform oral sex on him. Mr Garland then committed unlawful anal intercourse on the young man. Later, armed with a knife, he again forced the youth to perform oral sex on him and sodomised him on a further two occasions. That complainant then managed to flee.
[76]
[11] Mr Garland then forced a young couple at gunpoint to drive him out of town. As a result of threats made by Mr Garland they drove him to the residence of some friends. Mr Garland noticed two young people, a brother and sister, walking nearby. He ordered them at gunpoint to return with him to their flat which gave the young couple the opportunity to escape. Mr Garland went with the brother and sister into their flat and barricaded the doors. Later Mr Garland went outside the flat and discharged the gun several times. He came back into the flat, got the brother and sister and then went outside with them pointing the gun at them. He instructed the boy to call a man and a woman who were walking on the other side of the road over to them. The female member of that couple was then five months pregnant. Mr Garland then ordered them all to go back to the flat and again he went outside from time to time to discharge the gun.
[77]
[12] That night Mr Garland rang the police and told the operator that he wanted a particular Catholic priest to be there within an hour or he would kill one of his hostages. Five hours of negotiations with the police ensued during which time he made many demands including a demand for drugs and said that he would kill one or more of the hostages if those demands were not met. The male member of the couple left the flat when he was ordered to leave to get drugs. He did not return. Later in the evening the brother and sister were tied up in separate bedrooms. The girl was indecently assaulted and then raped twice. After Mr Garland fell asleep she escaped to the other bedroom where she untied her brother and they both escaped. Mr Garland then took the pregnant woman into one of the bedrooms, tied her ankle to his and then later raped her.
[78]
[13] He left the flat with the pregnant woman and entered another flat at gunpoint after pretending to be the police. In that flat he ordered two women and two children to leave but told the three remaining occupants that he would kill them if they did not do as he told them. They then accompanied Mr Garland into a car at gunpoint. When the car stalled, Mr Garland fired the gun but the police ran to the car. Mr Garland then held the driver at gunpoint ordering the police to retreat or the driver would be killed. Shortly afterwards the car was rammed by a police vehicle and Mr Garland was captured by the police.
[79]
"Your conduct during these offences showed a calculated brutality and complete insensibility to the ordeal of your victims. The only glimmer of any understanding of the depraved sexual abuse, terror and suffering you caused to these people was your statement to [the pregnant woman] that you were sorry for what you had done to her."
[80]
[15] The sentencing judge then referred to the criminal background and personal circumstances of Mr Garland. At the time of sentencing he was 27 years of age. He was brought up in an abusive and dysfunctional environment and before he was 10 was living on the streets without any parental support or guidance. The learned judge noted that since 1982, when he was convicted at 11 years of age of an offence of breaking, entering and stealing, he had only spent approximately 18 months outside jail or other institutions. The judge referred to Mr Garland's extensive criminal history of convictions for assault, stealing, escaping lawful custody, failing to appear, robbery with intent and in company, taking and using a conveyance, being an unlicensed driver, stealing a motor vehicle, malicious injury, stealing a motorbike and resisting police.
[81]
[16] More significantly, Mr Garland had been convicted on three counts of sexual assault at the age of 14 in August 1985 and committed to an institution for two years. That offence was raping, sodomising and forcing a 14 year old girl to perform oral sex on him and threatening to kill her if she reported the offences. Within a fortnight of his release in respect of those offences he indecently dealt with two young girls as well as committing other offences not of a sexual nature.
[82]
[17] In 1987, when he was 16 years old, he brutally sodomised and forced two 14 and 15 year old youths to perform oral sex on him in the watch house at Southport. He applied pressure to the throats of each of the youths and threatened to kill one of them and threatened to harm the other youth or his parents. These were his first convictions for committing sexual offences on other persons in custody.
[83]
[18] A week after he committed those offences, Mr Garland escaped from custody and fled to New South Wales. In company with another youth he sodomised a 14 year old youth while holding a broken beer bottle to that youth's throat. He was sentenced to two and a half years imprisonment and after serving about six months of that imprisonment he was extradited to Queensland to face charges arising out of the offences committed at the Southport watch house. Whilst on remand in Queensland, Mr Garland attempted to commit another sexual assault on a prisoner. He assaulted a prisoner with a pair of nail clippers and ordered him to perform oral sex on him. That prisoner was able to escape without suffering the threatened sexual abuse. He was sentenced to six months imprisonment in respect of that offence and on 27 April 1988 he pleaded guilty to the offences arising out of the incidents at the Southport watch house and was sentenced to a total of seven years imprisonment.
[84]
[19] While serving that period of imprisonment, in September 1988 whilst he was in the Boggo Road Prison hospital, Mr Garland sodomised and committed an act of oral sex on a prisoner whilst armed with a razor blade and whilst making threats to cut his throat. For those offences he was sentenced, after an appeal, to four years imprisonment. Mr Garland was also convicted of assault occasioning bodily harm in relation to an assault that occurred on 1 February 1989 and unlawful assault as a prisoner committed on 11 June 1989. He was convicted on three counts of wilful and unlawful damage to property which occurred on 13 July 1989.
[85]
[20] He was convicted on two counts of assault on a correctional services officer whilst being a prisoner which occurred on 10 October 1989 and 21 November 1989 and two counts of assault occasioning bodily harm whilst armed with an offensive weapon which were committed on 10 October 1989. He was convicted of preparing to escape lawful custody on 23 December 1989. Mr Garland was further convicted of wilful and unlawful destruction of property which was committed on 17 December 1990 and convicted of assaulting a correctional officer on 12 June 1992 and stealing on 17 May 1995. He has been convicted of 29 offences committed whilst in custody.
[86]
[21] Whilst in prison he completed a 12 month sexual offender's treatment program (SOTP) and was released on home detention, as I have said earlier, in December 1996 and granted parole on 27 March 1997. The offences for which he is currently serving indefinite imprisonment were committed in April 1997.
[87]
[22] It has been reported that in his application for parole which led to his release in 1996, he said that he had gained outstanding benefit from the SOTP, recognised his past actions were deplorable and that he then had strategies that he could employ to deal with his sexual urges. After his apprehension for the offences which led to his current term of imprisonment, he told a psychiatrist that he was really only hoop-jumping and telling people what they wanted to hear.
[88]
[23] The learned sentencing judge took into account psychiatric reports by Dr Atkinson and Dr Grant. He particularly accepted the opinion of Dr Atkinson that Mr Garland suffered from an anti-social personality disorder complicated by predatory violent sexual drives and substance abuse. Dr Atkinson was of the view that Mr Garland was untreatable and would remain a great danger to society indefinitely. Mr Garland was then imprisoned as a maximum security prisoner. That sentence commenced on 23 October 1998.
[89]
[24] Ms Hunter took into account that Mr Garland has been convicted of 29 offences committed whilst in custody. These offences were committed between April 1988 and December 1995 and include offences of violence, sexual assaults and preparing to escape lawful custody.
[90]
[25] In addition to the offences which Mr Garland has committed in prison he has committed six breaches of discipline. Those breaches occurred in the years 1991 to 1995 and include two offences of behaving in a threatening manner. In addition he had been involved in 14 reportable incidents which had not resulted in breaches being found which occurred between January 1993 and November 1998. These included incidents of fighting with another prisoner, threats against other prisoners or staff, alleged threatening sexual behaviour and alleged sexual assault.
[91]
[26] On 16 February 2000, a referral was made for consideration for Mr Garland to be admitted to the MSU at the Arthur Gorrie Correctional Centre (AGCC). He was said to satisfy five of the inclusion criteria at that time being (1) serious assault on staff or other prisoners; (2) escapees or attempted escapees who have resorted to violence, use of firearms or motor vehicles, including evidence an escape is planned from secure custody; (3) substantiated threats against staff or other prisoners; (4) repeated substantiated incidents of physical assaults or disruptive behaviour directed at staff or other prisoners; and (5) repeated verbal threats of violence to staff or prisoners where it is considered there is a possibility of the threat being carried out.
[92]
[27] The referral showed that he had been on special treatment orders since 11 March 1998 because of concerns for his personal safety and because he was considered a threat to other inmates in the centre. His separation from other prisoners whilst on special treatment orders gave him little opportunity to commit offences against other offenders or correctional staff but the referral said that records prior to his placement on the special treatment order showed frequent incidents and breaches involving sexual assaults against other offenders, physical assaults against other offenders and serious threats against correctional staff. The threats against correctional staff apparently continued whilst he was on special treatment orders.
[93]
[28] At the time that the first maximum security order was made on 31 March 2000, reliance was placed on relatively recent psychiatric assessments by Dr. Mathews, Dr. White, Dr. Scott and Dr. Kingswell as well as several reports from the psychologists Dr. Habicht, Ms Western and Ms Dowling.
[94]
[29] Mr Garland has been detained in the maximum security unit at the Sir David Longland Correctional Centre (SDL) and since its closure in about August 2005, once again at AGCC, on maximum security orders since that time. No reportable incidents have been recorded against him during the period that he has been the subject of maximum security orders.
[95]
[30] An Official Visitor's report by Peter Butler, dated 23 September 2001, on reported inconsistency in approach between AGCC and SDL when Mr Garland was first moved to SDL observed:
[96]
"The sense of utter powerlessness, frustration and understandable consequential resentment engendered by such inconsistent and arbitrary administration of maximum security orders within the corrective services system is counter-productive to an offender's 'rehabilitation' and, in my opinion, may be regarded as 'inhumane confinement'. This is contrary to the purpose of corrective services: see Corrective Services Act 2000, s 3(1)."
He recommended that Mr Garland be permitted to use his computer in his cell for educational purposes.
[97]
[31] On 20 August 2002, an experienced consultant psychologist, Catherine Creamer, prepared a psychological assessment of Mr Garland for the stated purposes of establishing a baseline reference to explore future management options, identifying possible interventions and ascertaining Mr Garland's risk of sexual and violent re-offending. Ms Creamer further identified the purpose of her report as being to show not only how Mr Garland's behaviour could be explained and predicted but also controlled.
[98]
[32] Ms Creamer noted that Mr Garland presented as articulate and polite. This was in accordance with my observation of him whilst he was giving evidence on the hearing of this matter before me. She noted the psychological damage caused to Mr Garland by his prolonged period in solitary confinement and expressed the opinion that the planning for his movement out of such confinement should start immediately. She said that a further aim of the report was to aid in that planning process and to help identify when it might be safe to move Mr Garland to a "normal location." She warned that:
[99]
"This report does not explicitly say that it will necessarily be safe to move Mr Garland but that without suitable intervention, it may never be safe. Suffice to say the conditions under which Mr Garland is currently detained will do nothing to rehabilitate him."
[100]
[33] Ms Creamer noted that he was of normal intelligence, was still sexually aroused by thoughts of coerced sex but that he appeared to understand that he needed help to change his behaviour. She thought that he would be at risk of suicide if he were to perceive that he would remain in the MSU indefinitely.
[101]
[34] Ms Creamer referred to Mr Garland's childhood experiences where it appears that he witnessed his alcoholic father violently forcing sex on his mother who was also an alcoholic. Mr Garland witnessed his father having sex with other women and was physically and sexually abused himself by his father. In this household, Ms Creamer observed, rape was the norm.
[102]
[35] From the age of 10, Mr Garland moved through a series of boys' homes where the regimes were disciplined and impersonal and officers regularly fondled boys. Mr Garland started his sexual offending behaviour against other boys. He then lived on the streets and prostituted himself. Ms Creamer noted that he lacked the social skills to be normally assertive but eventually explodes. He had very little experience of non-coercive, consensual sexual relationships. His sexual offending behaviour particularly in prison had been marked by significant coercion, manipulation, threats and persuasion to ensure compliance.
[103]
[36] Ms Creamer examined the motivations apparent in the offending which resulted in his sentencing to indefinite detention and the relevant research on risk factors for re-offending. She observed:
[104]
"In terms of risk assessment, it should be further noted that the best predictor of future behaviour is past behaviour, unless there has been appropriate and targeted intervention and a subsequent change in thinking style that would reduce the risk. In Mr Garland's case, he has undertaken a certain number of programs whilst in prison in order to address his offending behaviour, but continued to offend despite these programs."
[105]
• lack of emotionally intimate relationships;
• aggressive thinking patterns;
• poor impulse control;
• poor cognitive style, lack of empathy, lack of consequential thinking;
• poor self-control;
• sexual preoccupation; and
• sexualised violence.
[106]
[38] Ms Creamer considered that his sexual offending risk remained high. She noted that he had received supportive counselling, intensive therapy from psychologists and suicide prevention whilst in the MSU at SDL. Ms Creamer recommended a detailed treatment program which has, for the most part, been followed. So far as his continued detention in the MSU was concerned, Ms Creamer's opinion was the risk of moving him out of the MSU at that time was unacceptable but that there was:
[107]
"a significant possibility that if the recommendations are strictly adhered to Mr Garland may well reach a stage where his risk is lowered to such an extent that he can be moved to a normal location."
[108]
[39] Block 1 of the therapy recommended by Ms Creamer commenced in December 2002 with two or three sessions of one-on-one therapy every week. A senior psychologist, Ms Stocks, reported on his progress in April 2003 and recommended that the therapy continue and be expanded. Block 1 was completed in June 2003 when Block 2 commenced. Block 3 was commenced in September but then abandoned and Block 2 was resumed. Block 2 was completed on 27 November 2003. Ms Stocks reported on his progress on 10 October 2003. She noted the effectiveness of the therapeutic program and recommended that it cease at the completion of Block 2 and that Mr Garland's future treatment needs be identified in any re-integration plan with relapse prevention as a key focus.
[109]
[40] Another senior psychologist, Ms Bennett, reported on his progress on Block 2 of the program on 1 December 2003. She reported progress but noted the likely difficulties he would face on being moved out of the low stimulus environment of the MSU. Her conclusions and recommendations were:
[110]
"Prisoner Garland's response to this component of the intervention has been positive and encouraging. The intervention appeared to help him come to terms with a number of painful issues in his life and to improve his confidence in his ability to think and act differently if he chooses. However, the arousal control component of this intervention must still be considered a work in progress because, in the MSU, it remains relatively untested. Therefore, it will be important to provide ongoing assessment of and assistance with prisoner Garland's management of his sexual fantasy life.
After years of ambivalence where prisoner Garland has vacillated between self-loathing and feelings of victimisation and hatred of others, he expresses a greater sense of acceptance and tolerance, both of himself and others. This battle is far from over and any attempts to move prisoner Garland out of the low stimulus environment of the MSU will need to be supported by careful relapse prevention planning. There will need to be a particular emphasis on helping prisoner Garland manage the likely increase in sexual arousal and fantasising he will experience and in assisting him to form appropriate, non-abusive relationships.
Prisoner Garland understands the importance of dealing with his problems and difficulties when they arise and the danger of resorting to deception, avoidance and hostile brooding as a panacea to his frustrations and anxiety. He still struggles with his instinct to hide his true thoughts and feelings from others. In addition, it is his habitual tendency to perceive strangers and novel situations as threatening and hostile until proved otherwise.
Should prisoner Garland experience future difficulties, he knows that it is vital that he has access to and seeks out appropriate sources of support and guidance. At this point, I remain uncertain whether prisoner Garland would make appropriate use of such support. If left to his own devices, I suspect he may revert to his previous antisocial thought processes and behaviours rather than apply the more recently acquired alternatives when he encounters difficult situations. Prisoner Garland recognises that any attempt at reintegration will need to be highly structured and involve high levels of ongoing support in order to optimise outcomes."
[111]
[41] Ms Stocks' recommendation on 2 December 2003 was that the program be considered closed and that the original assessor "re-assess in terms of mediation of risk factors." She noted that Mr Garland had made significant progress.
[112]
[42] A further report was prepared by Ms Bennett on 25 March 2004 with regard to what was referred to as the maintenance phase of the intervention program and the difficulties involved. Mr Garland was reportedly negative and pessimistic about his prospects of leaving the MSU. The report contained details of an incident on 27 February 2004 where he behaved in a highly volatile and threatening way. She concluded that his outburst indicated that the risk factors identified by Ms Creamer were still readily provoked and very evident in his reasoning style, specifically aggressive thinking patterns, poor impulse control, poor cognitive style, lack of empathy, lack of consequential thinking and limited self-control. On the other hand she expressed the view that he had made some progress and particularly drew attention to the fact that in February 2004 he commenced studying with the Tertiary Preparation Program (TPP) of the University of Southern Queensland (USQ).
[113]
[43] In a further report on 2 August 2004, Ms Bennett identified that the maintenance phase had provided Mr Garland with a break from intensive therapeutic intervention and allowed him to concentrate on the educational goal of completing the TPP at USQ. She noted that he had been successful in his studies. He continued to receive supportive counselling from Ms Bennett on a weekly to fortnightly basis. During those sessions he expressed his despondency at not being released from the MSU despite his compliance and efforts at reform. Her conclusions and recommendations included:
[114]
"Consideration needs to be given to the progression of prisoner Garland's treatment intervention. At this juncture, it seems appropriate to propose formal assessment of prisoner Garland's progress to date and identification [of] any remaining areas that need to be targeted through treatment, such as, victim issues.
As recommended previously, prisoner Garland needs to experience some sense that the department recognises that he is progressing. Unfortunately as a consequence of the murder of prisoner Mark Day in the SDL MSU last October, maximum security prisoners have experienced increased isolation and loss of privileges despite any progress they may have made.
Since October 2003, prisoner Garland has had only limited association with one other very demanding prisoner and this relationship is now showing understandable signs of tension and strain. At this point, increasing prisoner Garland's level of association with other MSU prisoners would be of benefit in terms of support and social stimulation."
[115]
[44] Further consecutive maximum security orders were made on 12 March 2004 and 13 September 2004 ("the 2004 decisions"). Those maximum security orders were reviewed by an Official Visitor on 21 April, 17 June and 23 October 2004. The reports by the Official Visitor on 23 April and 17 June 2004 noted the lack of an up to date assessment and recommended that Mr Garland be assessed by an independent psychologist such as Dr. Stephen Smallbone from Griffith University. Dr Smallbone was requested to undertake a psychological assessment of Mr Garland by letter dated 26 August 2004. He was requested to assess Mr Garland's progress in the program of psychotherapy with which he had been engaged since December 2002 and to advise on the prospects for future intervention, including whether psycho-pharmacological treatment might be indicated.
[116]
[45] An application to judicially review both of the 2004 decisions was heard in the Supreme Court on 6 and 7 December 2004 and dismissed by White J on 17 December 2004. Her Honour's reasons are recorded at [2004] QSC 450.
[117]
[46] Dr Smallbone examined Mr Garland in December 2004 and reported on 20 January 2005. Dr Smallbone said that the current concerns about Mr Garland were focused on the risks he might pose within the prison setting and on how best to manage those risks. This was because he had committed a broad range of non-sexual and sexual offences against correctional staff and fellow prisoners. He noted that three breaches of discipline had been recorded in the seven years since Mr Garland began his current period of imprisonment: October 1998 (damage to property); November 1998 (threats to staff); and February 2003 (damage to property). He observed that the most significant constraint on Mr Garland's sexually aggressive behaviour had been the virtual elimination of opportunities by keeping him isolated from other prisoners.
[118]
[47] However, the danger in that course was that Mr Garland might descend into a state of hopelessness and that his incarceration imposed severe constraints on his opportunities to learn, practise, and consolidate interpersonal attitudes and behaviour. Dr Smallbone expressed the opinion that carefully targeted psychotherapy would "continue to be a critical element of intervention", but was unlikely by itself to solve Mr Garland's complex behavioural problems. He said that there was no way of measuring whether Mr Garland had the capacity and willingness to exercise behavioural self-restraint unless he was observed consistently doing so in a less restricted social setting. At present it was unclear to both Mr Garland and to staff precisely how he was to demonstrate his readiness to be accommodated safely with other prisoners.
[119]
[48] Dr Smallbone reported that previous psychological assessments of Mr Garland showed that he was not psychopathic. A medical assessment had shown that his plasma testosterone level was normal. Psychological assessments had repeatedly highlighted the profound "developmental adversity" to which he appeared to have been subjected as a child.
[120]
[49] The assessment discussed in great detail his distal or developmental antecedents, the proximal antecedents, that is the factors likely to precipitate sexually aggressive incidents, and contextual factors, that is interpersonal and environmental conditions that served to increase imminent risk. Dr Smallbone said that if Mr Garland were to be housed outside the MSU, he would need to be housed in single cell accommodation in a small unit with no blind spots, separately from vulnerable inmates who might be potential victims and other high-risk inmates who might be potential co-offenders. There would be need for education of other prisoners and careful staff selection, briefing, training and supervision. He would require well organised supervision, security arrangements and vigilant monitoring.
[121]
"My own view is that, with appropriate psychological interventions and good custodial management practices, Mr Garland could be safely relocated to a less socially restricted setting within the prison environment. Apart from the obvious opportunity-reduction effects of his accommodation in the MSU, it is difficult to see what else could be achieved there that would further reduce the risk of his relocation. Indeed, continued confinement within the MSU clearly risks contributing to new psychological, emotional, and behavioural problems.
The psychological assessments that have informed the interventions employed over the last two years have, in my opinion, lacked clear and specific points of focus. Of particular concern, treatment goals have not been linked systematically to methods of outcome evaluation. One unfortunate result has been that no-one, including Mr Garland himself, seems clear about how he could demonstrate his readiness to be relocated to a less restricted setting.
It will be important for Mr Garland to continue with a program of psychotherapy, and I hope the present report is of some assistance in reviewing the current intervention plan. I recommend that a new plan be developed. Whilst psychotherapy would need to be long-term, specific elements could be implemented and evaluated over quite short periods (e.g., imaginal desensitisation). One way to more systematically evaluate his progress would be to develop and use a goal attainment schedule. Small, clearly defined steps with clearly defined goals would not only help to organise the intervention but would give Mr Garland the opportunity to achieve a series of "successes".
The present report has also taken up issues relating to custodial management. Ideally, his day-to-day custodial management should be carefully integrated with his ongoing psychological interventions. The effects of his immediate environment on his behaviour are of critical importance. Attention needs to be given to both his physical and interpersonal environment. The former raises critical questions about where and with whom he might safely be accommodated, the best systems of surveillance and monitoring, and so on. The latter presents challenges with respect to the roles and responsibilities of case managers, custodial staff, professional staff, and fellow inmates. Ensuring that best-practice standard for both psychological intervention and custodial management are maintained may be the key challenge."
[122]
[51] Dr Smallbone was called to give evidence by the applicant on this review. That evidence was not before the decision maker and did not add anything of relevance to the grounds of judicial review.
[123]
[52] On 12 March 2005, the respondent made a further consecutive maximum security order with regard to Mr Garland.
[124]
[53] On 8 May 2005, Mr G Lee, the Official Visitor at SDL, reviewed the consecutive maximum security order to which Mr Garland was then subject pursuant to s 50 of the CSA. This section, found in Div 6 of Pt 2 of the CSA, provided:
[125]
"Review of maximum security orders
[126]
(1) A prisoner accommodated in a maximum security facility under a maximum security order may ask the person in charge to refer the order to an official visitor for review.
[127]
(2) The person in charge must refer the order to an official visitor as soon as practicable.
[128]
(3) The official visitor must review the order as soon as practicable.
[129]
(4) If the term of the order is 3 months or less, the prisoner may not ask for the order to be referred more than once.
[130]
(5) If the term of the order is more than 3 months, the prisoner may not ask for the order to be referred more than twice.
[131]
(6) Despite subsection (4) and (5), the prisoner may also ask for the order to be referred to an official visitor if the chief executive amends the order, other than under subsection (9).
[132]
(7) When reviewing the order, the official visitor may exercise the powers mentioned in section 215.
[133]
(8) After completing the review, the official visitor must recommend to the chief executive whether the order should be confirmed, amended or cancelled.
[134]
(9) On receiving the recommendation of the official visitor, the chief executive must -
(a) consider the recommendation; and
(b) confirm, amend or cancel the order.
(10) To remove doubt, it is declared that the chief executive is not bound by the official visitor's recommendation."
[135]
[54] Mr Lee recommended that the maximum security order be confirmed subject to Mr Garland's having the opportunity to increase his association with other prisoners. He observed that a maximum security order was an order of last resort which must be considered only after all other management and placement options have been explored. He also observed that there was nothing more that Mr Garland could do to prove himself whilst he remained in the MSU and that he appeared to be progressing positively. He recommended that an independent psychometric assessment of Mr Garland be undertaken as soon as possible.
[136]
[55] On 3 August 2005, Mr Garland was transferred from the MSU at SDL to the MSU at AGCC. It was reported that he maintained a good standard of behaviour and stable presentation during the transfer and that he had shown considerable patience and tolerance notwithstanding that some of his privileges were withdrawn not because of any fault on his part but due to "infrastructure differences." Another unfortunate consequence of the move was that he was no longer able to have social interaction with another prisoner as he had been able to enjoy at SDL. Mr Garland referred to the detrimental effects of those differences in his affidavit filed in this matter.
[137]
[56] At about the time of his transfer, the Department of Corrective Services commissioned Dr Moyle, a psychiatrist who is a specialist in assessing and treating serious sex offenders, to undertake an independent psychometric assessment of Mr Garland and to consider the possible use of medication to reduce his sexual predatory behaviour. This was in accordance with Dr Smallbone's recommendation. Because of Dr Moyle's other commitments, he was not able to see Mr Garland until June 2006.
[138]
[57] On 23 November 2005 Ms Hunter, the decision maker of the order under review, went to AGCC to speak to Mr Garland. She knew him previously as part of her duties in Moreton Correctional Centre where he was imprisoned prior to his release on parole in 1997. She found him to be in good physical and mental health although concerned about when he might be released from the MSU.
[139]
[58] On 8 January 2006, Mr Garland was offered employment as the cleaner on pod 1 of the MSU. It was reported that he displayed a keen attitude in that position and completed the work to a good standard.
[140]
[59] At a Sentence Management Review team (the SMR team) meeting on 12 January 2006, a recommendation was made that Mr Garland remain in the MSU. The SMR team consisted of James Fisher, General Manager of AGCC, Tim Ryan and Claudia Gibson, psychologists attached to the MSU at AGCC, John Haffner, the Correctional Manager of the MSU at AGCC, and Marty Kriesh, the Sentence Management Co-ordinator at AGCC. The report of the SMR team on 17 January 2006 says that greater weight was placed on the following factors:
[141]
• "the prisoner has not fully addressed the issues that lead to his initial placement in the MSU.
• Psychologist reports indicate Garland still requires extensive intervention to address his sexual offending behaviour.
• Length of sentence imposed and period remaining.
• Violent nature of the prisoner's offending.
• Considered to be high risk to the good order and security of a correctional centre."
[142]
[60] The SMR team noted that no programs or interventions for addressing offending behaviour and therefore reducing risk had been recommended during the period under review and therefore Mr Garland's present risk to the community could not be "validated with any certainty." Mr Garland reported that he had undertaken every program offered to him within the correctional system to address his offending behaviour, some more than once. His institutional behaviour during the period had been exemplary however "the risk to the good order and security of the centre and community" had not been clearly identified within the period. It was also noted that Mr Garland's motivation to achieve educational objectives during the period had been "exceptional". It was proposed to undertake a comprehensive assessment during the following six months including measures specifically aimed at the potential dangers of sex offenders (referred to as the PAI, the VRG and the SORAG) and an evaluation of his current criminogenic needs in terms of the SOTP as well as clinical interviewing "to ascertain the specific measures of overt and covert behaviours related to sexual offending, internal and external antecedents, as well as conditions surrounding behaviours and the consequences."
[143]
[61] An Intelligence Profile on Mr Garland was updated on 12 January 2006. It noted that since the commencement of the maximum security order to which he was then subject, which had commenced on 10 September 2005, he had not had any breaches, incidents or intelligence reports.
[144]
[62] On 25 January 2006 Ms Hunter met with the members of an Offender Progression Review Committee to discuss Mr Garland for the purpose of Ms Hunter's considering whether or not to issue a new maximum security order in respect of him. She consulted with the members of the SMR team referred to earlier and Michael Airton, the Executive Director of Offender Assessment and Services. With the exception of Mr Airton those are the persons directly responsible for the day to day management of Mr Garland. Mr Fisher, Mr Ryan, Ms Gibson and Mr Haffner told Ms Hunter of their concerns about the serious risks that Mr Garland continued to pose within the general prisoner setting both to prisoners and to correctional staff and that he was to be the subject of a comprehensive independent psychometric assessment by Dr Moyle, who was also to provide advice as to what options there were, including the possibility of medication, to assist Mr Garland in controlling the sexual urges that had been a feature of his past criminal behaviour.
[145]
[63] Mr Fisher and Mr Ryan recommended to Ms Hunter that Mr Garland remain in the MSU pursuant to a new maximum security order. Mr Ryan said that Mr Garland had not undertaken any therapeutic programs during the currency of the maximum security order to which he was then subject but that he continued to have access to one on one sessions with Mr Ryan which he generally engaged in on a weekly basis and that he was continuing with his educational programs outside his cell.
[146]
[64] On 15 February 2006, a new Individual Management Plan (IMP) was introduced for Mr Garland. In the IMP it was said that he would be managed in accordance with Stage 2 of the Reintegration Plan Behavioural and Reintegration objectives therein set out. The proposed intervention, counselling, therapy and educational programs were also set out. The IMP also listed time allowed out of his cell, conditions for external and internal movement, meals, visits, telephone calls, exercise, employment and approved property as well as medical visits.
[147]
[65] Ms Hunter decided to advise Mr Garland that consideration was being given to extending the maximum security order for a period of six months. On 16 February 2006, in accordance with the requirements of s 48(3)(a) of the CSA, she wrote to Mr Garland setting out the matters she had taken into account in forming the preliminary view that he posed a substantial threat to the security and good order of the facility and inviting him to make submissions about anything relevant to the making of the order. He responded by letter dated 17 February 2006 saying that he believed a decision had already been made and that a submission by him would be an exercise in futility.
[148]
[66] On 2 March 2006, Ms Hunter decided to issue a new maximum security order on the ground previously set out in s 47(2)(b)(iii). This is the decision under review. The maximum security order provided for the following conditions:
[149]
"Directions regarding the prisoner's conditions during the period of the maximum security order:
[150]
(a) The extent to which the prisoner is to be segregated from other prisoners accommodated in the maximum security facility:
The prisoner is permitted to associate with other prisoners in the maximum security unit.
(b) The extent to which the prisoner is to receive privileges:
Telephone Calls:
The prisoner is permitted two (2) telephone calls of 10 minutes duration each week. Additional telephone calls may be approved by the General Manager in accordance with an Individual Management Plan.
Exercise:
The prisoner is permitted two (2) hours of out of cell exercise per day. Additional out of cell exercise may be approved by the General Manager in accordance with an Individual Management Plan.
Property:
With the exception of the basic issue of bedding and clothing, all other property to which the prisoner is permitted access is to be approved by the General Management in accordance with an Individual Management Plan.
Meals:
All meals are to be eaten in the prisoner's cell unless otherwise approved by the General Manager in accordance with an Individual Management Plan.
(c) The extent to which visits to the prisoner may involve direct contact between prisoner and visitor:
The prisoner may have access to one (1) non contact visit per week of one (1) hour duration. Additional non-contact visits may be approved by the General Manager in accordance with an Individual Management Plan.
Contact visits may be approved by the General Manager on a case by case basis.
(d) The extent to which the prisoner may access programs, services, training and counselling:
Programs, services, training and counselling are only to be undertaken within the maximum security unit with options to be detailed in the Individual Management Plan."
[151]
[67] Mr Garland is accommodated in a small cell in the MSU which is 8.28 square metres in area, being 3.6 metres by 2.3 metres. I am aware from a visit by judges to this facility in 2002 that the cells in the MSU while relatively new and modern are small and sparsely furnished. He is also able to access on a daily basis a room which contains a computer solely for his use and an exercise yard. This exercise yard is 40.8 square metres. It is paved and fully enclosed and has transparent roofing, unlike the MSU at SDL, where Mr Garland had access to a grassed area. He uses the computer for study. Having completed the TPP, he has enrolled in a Bachelor of Information Technology at USQ. He is not permitted to interact with any other prisoner. He does however communicate with Aboriginal and Torres Strait Islander counsellors at AGCC and also with approved persons by telephone. In addition to correctional staff, he sees a psychologist regularly, is visited by a priest approximately once a month and by an educational tutor twice a week. His affidavit refers to his frustration and despair at being kept for so long in the MSU. He complains of not being allowed to have a computer in his cell but it appears that no prisoner is permitted to have a computer in his cell.
[152]
[68] On 24 April 2006, Dutney J of this court ordered that a formal statement of reasons for her decision be given by Ms Hunter. The formal statement of reasons was provided on 25 May 2006.
[153]
[69] Ms Hunter referred to the materials she considered in various documents, verbal briefings from Mr Fisher and Mr Ryan, the letter from Mr Garland of 17 February 2006, her own knowledge of Mr Garland, the MSU at AGCC and prison administration and management, as well as her recollection of his file and proceedings in the previous Supreme Court review heard and determined in December 2004. She referred to Mr Garland's criminal history, his history on parole and on programs such as SOTP, his breaches of discipline and reportable incidents in custody, his placement in the MSU, therapy received and the report by Dr Smallbone. She also took account of the fact that Mr Garland was regularly examined by a medical practitioner who had not raised any concerns about his physical or mental health arising from the circumstances of his imprisonment.
[154]
[70] Setting out the reasons for her decision, Ms Hunter said she took account of the following:
[155]
• Mr Garland's lengthy and prolonged history of unlawful sexual misconduct and violent unlawful behaviours and the severity of this conduct;
[156]
• His conviction for 29 offences whilst in custody, at least nine of which were of a sexual nature and another 10 with the use of violence;
[157]
• That correctional officers were the victims of some of the offences involving violence;
[158]
• That the last conviction for having committed an offence of violence in custody was in 1992;
[159]
• That in 1997, shortly after being released and whilst on parole, Mr Garland committed a number of extremely serious sexual and violent offences against a number of complainants both male and female;
[160]
• That Mr Garland in doing so demonstrated an inability to apply the concepts and strategies from the 12 month SOTP program that he had completed just prior to his release from prison to avoid re-offending;
[161]
• That he was subject to an indefinite period of imprisonment and how such a sentence could be reviewed and what the conditions of release could be;
[162]
• That Mr Garland had several reportable incidents recorded against him which were allegations of sexual assault against prisoners and others were allegations of threats against staff;
[163]
• That the last recorded breach of discipline was in September 1995 and the last reportable incident was in November 1998;
[164]
• That Mr Garland had not committed a breach of discipline nor had a reportable incident since his placement in the MSU;
[165]
• That Mr Garland had been detained in an MSU since 31 March 2000;
[166]
• That following his return to custody in April 1997 he had been closely supervised and placed under strict management conditions;
[167]
• That additional benefits extended to Mr Garland while at SDL were reduced when he was transferred to AGCC;
[168]
• That Mr Garland did not have any prisoner association as no suitable MSU protection prisoners had been identified at AGCC;
[169]
• That Mr Garland had daily interaction with correctional staff and was employed as a cleaner within the MSU;
[170]
• That his placement in the MSU limited his contact with other prisoners virtually eliminating any opportunity to commit a sexual offence or to assault another prisoner;
[171]
• That no assaults on staff members had occurred whilst he was in the MSU but that staff interacted with prisoners in the MSU in a highly structured routine;
[172]
• That given his history of offending, a risk remained of predatory or opportunistic sexual conduct;
[173]
• The harm that would be suffered by an individual should Mr Garland commit further acts of misconduct against staff or other prisoners;
[174]
• That in her experience of prisoner management, misconduct between prisoners can lead to tensions and on occasion violence between prisoners or between prisoners and staff as prisoners try to take matters into their own hands to prevent or punish misconduct;
[175]
• That Mr Garland had exhibited a good attitude to staff and complied fully with directions;
[176]
• That Mr Garland had progressed in his educational pursuits and was highly motivated and devoted many hours to his studies;
[177]
• That Mr Garland had been and remained subject to a highly structured intervention program designed to address the specific level of risk that he posed;
[178]
• That Mr Garland had completed a number of phases of his intervention program during 2003 and since then had been participating in a maintenance phase;
[179]
• The caution expressed by Ms Bennett as to the problems that might arise on his being moved out of the low stimulus environment of the MSU;
[180]
• Dr Smallbone's report together with his recommendation that an experienced psychiatrist be engaged;
[181]
• The engagement of Dr Moyle to conduct a psychiatric evaluation which assessment would occur in the near future;
[182]
• That a psychologist had been tasked to administer a range of diagnostic assessment tools and a different psychologist had been tasked to undertake an evaluation of Mr Garland's criminogenic needs;
[183]
• That Mr Garland had agreed that assessments and future needs were an accurate account of his recent performance;
[184]
• That Mr Garland requested that consideration be given to his removal from the MSU;
[185]
• That in considering alternative placement options, the level of supervision that would be required to maintain the safety of other prisoners and Mr Garland could not be delivered in any existing high security protection unit;
[186]
• That Mr Garland had written to her saying that he regarded responding to her letter dated 16 February 2006 to be an exercise in futility;
[187]
• That the general manager had made certain recommendations.
[188]
"After considering these matters, I formed the view that prisoner Garland continued to pose a substantial threat to the security or good order of the facility. His history of behaviour demonstrates that he has a propensity towards engaging in threatening, sexually violent and/or violent behaviour both in the community and whilst in custody. The severity of the offending in the past is a significant concern and demonstrates that this risk has to be very carefully managed. I recognised that his behaviour since his return to custody in 1997 and specifically since his placement in the maximum security unit has been contained and managed. Although I recognised that prisoner Garland has been of good behaviour and has not committed any offences or breaches whilst accommodated in the maximum security unit, the opportunity to offend, particularly in a sexual manner, is virtually nonexistent with the highly structured and restrictive environment of the maximum security unit. Owing to the level of risk that prisoner Garland poses, the department established a structured intervention program involving both experienced independent psychologists and senior departmental psychologists. I regard it as imperative that the prisoner's identified risk be reduced before he is reintegrated into a mainstream prison population. I was briefed on 25 January 2005 on the prisoner's progress. Although I considered he was making some progress I was not then presently satisfied on the information I considered or recollected and the briefing that I received that his return to the mainstream population could be justified. My opinion was that the control required to minimise the risk to staff and other prisoners and to ensure stability and promote progression, including specialist interventions, is best met in an environment such as the maximum security unit. My opinion was that the prisoner remained a real and serious risk to the safety of others and as such posed a substantial threat to the security or good order of the facility. In reaching this decision I balanced the prisoner's past history with those positive aspects of his case that I have mentioned above, including his current positive behaviour and attitude, the fact that it has been a number of years since his last reported negative incident and his cooperation and progress throughout the intervention process."
[189]
[72] Ms Hunter in her evidence said that she also took into account Mr Garland's Aboriginality and recognised that that can be a factor in the management of a prisoner. She was apparently responsible for implementing the various recommendations of the Royal Commission into Aboriginal Deaths in Custody.
[190]
[73] She also said that she took the reference by the SMR team to Mr Garland's risk to the good order and security of the centre and the community not being clearly identified during the period to refer to the fact that in the MSU he did not have the opportunity to display the predatory sexual offending against other prisoners in which he had engaged in the past. She observed that they did not want to create situations where he might rape or sexually assault another prisoner.
[191]
[74] Subsequent to Ms Hunter's decision, Mr Garland was seen by Dr Moyle on 19 June 2006. His report had not yet become available at the time of the hearing of this matter.
[192]
[75] I shall now consider each of the grounds of judicial review in turn. There was however some degree of overlap between them.
[193]
[76] The applicant's counsel submitted that there was a "jurisdictional question, because in order to make a maximum security order there must ... be facts of probative value on which the decision maker may reach the decision on reasonable grounds that he poses a substantial threat to the security [or] good order of the facility."
[194]
[77] This ground relied upon s 20(2)(h) and s 24 of The Judicial Review Act 1991 (Qld) (the JR Act). Section 20(2)(h) provides that an application for statutory order of review can be made on the ground "that there was no evidence or other material to justify the making of the decision." This ground of review is further elucidated in s 24 of the JR Act which provides:
[195]
"24 Decision without justification - establishing grounds (ss 20(2)(h) and 21 (2)(h))
[196]
The ground mentioned in sections 20(2)(h) ... is not to be taken to be made out -
[197]
(i) the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and
(ii) there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or
(b) unless -
(i) the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and
(ii) the fact did not or does not exist."
[198]
[78] The particulars as set out in the application were:
[199]
"(a) There is no evidence or material on which the Respondent could, on reasonable grounds, consider the Applicant to be a substantial threat to the security or good order of the prison;
(b) The Respondent based the decision on the existence of a fact, viz. that the alleged risk could not be managed in accommodation other than a Maximum Security Unit, which was untrue;
(c) There is no evidence or material on which the Respondent could, on reasonable grounds, concluded there was a high risk that the Appellant will inflict death or serious injury on other prisoners or other persons with whom he may come into contact with."
[200]
[79] Reliance was placed on a number of Australian and English authorities by the applicant's counsel. The first of these was a decision of the Court of Appeal in England: R v Deputy Industrial Injuries Commissioner, Ex parte Moore.[2] The case concerned the type of evidence which may be considered by a quasi-judicial decision maker. Such a decision maker is not bound by the rules of evidence. Diplock LJ held:
[201]
"The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based on material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer; but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his."[3]
[202]
This decision was quoted with approval by Brennan J (as his Honour then was) at first instance in RePochi and Minister for Immigration and Ethnic Affairs[4] and by Deane J on the appeal in the same case.[5]
[203]
[80] A similar view was accepted by Gleeson CJ and McHugh J in Minister for Immigration v Eshetu[6] where their Honours quoted with approval from the judgment of Lord Brightman in Pulhofer v Hillington London Borough Council:[7]
[204]
"Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."
[205]
[81] The respondent referred to Australian Broadcasting Tribunal v Bond[8] which considered the equivalent sections of the Commonwealth legislation.[9] Mason CJ referred to the line of English authorities which could be traced back to the judgment of Diplock LJ in R v Deputy Industrial Injuries Commissioner: Ex parte Moore which support a "no sufficient evidence" test in the context of judicial review of findings of fact. His Honour said that the approach adopted in those cases had not been accepted in the High Court of Australia.
[206]
[82] His Honour then considered the statutory grounds of judicial review found in the ADJR Act. He held[10] that the "error of law" ground of review (JR Act s 20(1)(f); ADJR Act s 5(1)(f)) encompassed the "no evidence" ground of review as it was accepted and applied in Australia before the introduction of the ADJR Act. The ground set out in s 5(1)(h) of the ADJR Act (JR Act s 20(2)(h)), as elucidated in s 5(3) (JR Act s 24) is an expansion of the "no evidence" ground in the situations to which s 5(1)(h) (JR Act s 20(2)(h)) applies. His Honour said:[11]
[207]
"Within the area of operation of par (a)[JR Act s 24(a)] it is enough to show an absence of evidence or material from which the decision maker could reasonably be satisfied that the particular matter was established, that being a lesser burden than that of showing an absence of evidence (or material) to support the decision.
At 359-360 of his judgment, Mason CJ concluded:
[208]
"... a finding of fact will be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing."
[209]
[83] The statutory justification for making a maximum security order in this case was found in s 47(2)(b)(iii) of the CSA. The particular matter that must be established is that the chief executive considers, on reasonable grounds, that generally Mr Garland is a substantial threat to the security or good order of the prison. This depends on her opinion that the relevant state of facts exists.[12] During cross-examination, Ms Hunter agreed that she was most concerned that Mr Garland might assault another prisoner if he were placed in the general prison where supervision is considerably less than in the MSU. She said, "In our correctional centres in general we have 50 bed units and there are opportunities for people to behave inappropriately if they choose to do. I'm of the view that Mr Garland represents an extreme risk of sexual re-offending in particular and a risk of physical re-offending, violent re-offending as well and that's a concern."
[210]
[84] It could hardly be said that there was no evidence or other material on which Ms Hunter could consider generally that Mr Garland, outside of the MSU, is a substantial threat to the good order or security of the prison. That material included his serious history of sexual assaults on other prisoners, the cessation of that offending behaviour only when he lacked the opportunity to re-offend and the serious consequences to other prisoners and therefore to the good order of the prison if he did so re-offend. As a matter of reason, that material had probative value. The weight attached to that material was a matter for the decision maker. It could not be said that her decision was made not in good faith, or was made perversely, capriciously or arbitrarily.[13]
[211]
[85] Ms Hunter, if she did consider that generally he was a substantial threat to the good order or security of the prison, was entitled to exercise the discretion given to her by the statute[14] to impose a maximum security order. That discretion is required to be exercised reasonably[15] which leads to the next ground on which review is sought.
[212]
[86] This ground of review relied on s 20(2)(e) and s 23 of the JR Act. Section 20(2)(e) provides that a ground of review is "that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made." This ground is explained in s 23 of the JR Act. The application relied on subsections (b) and (g) of s 23 which provide:
[213]
"23 Meaning of "improper exercise of power" (ss 20(2)(e) and 21(2)(e))
[214]
In sections 20(2)(e) ..., a reference to an improper exercise of a power includes a reference to -
[215]
...
(b) failing to take a relevant consideration into account in the exercise of a power; and
...
(g) an exercise of power that is so unreasonable that no reasonable person could so exercise the power;
..."
[216]
[87] The particulars set out in the application were:
[217]
"(a) The decision was made without having an independent assessment of the Applicant's risk to other prisoners if returned to the ordinary prison community, and by such failure, the Respondent failed to take into account a relevant consideration.
(b) Insufficient weight was given to the following relevant factors:
[218]
(i) The Applicant's confinement in the Maximum Security Unit for approximately 8 years;
[219]
(ii) The Applicant had met all the requirements of his Personal Management Plan;
(iii) No treatment to reduce perceived risk had been given to the Applicant since 2001;
(iv) The reports of independent visitors and psychologists, most recently Dr Smallbone, had recommended release from the Maximum Security Unit;
(v) The effect of a long term confinement in a Maximum Security Unit was having a detrimental effect on the Applicant's health and long term prospects of rehabilitation and reintegration into the general prison community
and
undue weight was given to the Applicant's pre-prison criminal record of 8 years ago
with the result that the exercise of power was so unreasonable that no reasonable person could so exercise the power."
[220]
[88] The relationship between the weight a decision maker gives to evidence before him or her, the alleged failure to take account of a relevant matter and the unreasonableness ground of review was considered by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd: [16]
[221]
"The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.[17]
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.[18] I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene MR in Wednesbury Corporation,[19] in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss 5(2)(g) and 6(2)(g) of the ADJR Act [JR Act s 23(g)] in these terms. The test has been embraced in both Australia and England.[20] However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied.[21] But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice. So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits."
[222]
[89] In this case, it does not appear that the decision maker has failed to give adequate weight to a relevant matter of great importance or has given excessive weight to a relevant factor of no importance so as to render the decision so unreasonable that no reasonable person could so exercise the power.
[223]
[90] Further, to the extent that failure to take account of a relevant factor is a separate ground of review in the current application, the applicant has not shown any relevant factor which the decision maker failed to take into account.
[224]
[91] It is not the role of the court on an application for judicial review to substitute its own view of what might be a fair and reasonable outcome in place of a decision entrusted by the legislature to a member of the executive arm of government.[23] The test is not one of fairness or reasonableness but whether the decision was so unreasonable that no reasonable person could so exercise the power. This test was explained by Gaudron and Kirby JJ in Minister for Immigration v Eshetu:[24]
[225]
"In essence, an unreasonable decision is one for which no logical basis can be discerned."
[226]
[92] The fact that no independent assessment had been made of Mr Garland during the previous six months, while lamentable, would not be sufficient to invalidate the decision if there were nevertheless sufficient information available about him for the decision maker to reach the relevant opinion. There was sufficient information in this case so that it could not be concluded that the decision made or the opinion reached was so unreasonable that no reasonable decision maker could have arrived at that opinion or made that decision. It was not one for which no logical basis could be discerned.
[227]
[93] The third ground of the application was that the decision was otherwise contrary to law because:
[228]
(a) Mr Garland's continued containment in the MSU was inhumane and so contrary to s 3 of the CSA; and
[229]
(b) It was made in breach of the Department's policies and procedures as set out in the policy regarding maximum security orders dated 15 August 2005.
[230]
Was the decision made contrary to the purposes of the CSA?
[231]
(1) The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.
(2) This Act recognises that every member of society has certain basic human entitlements, and that, for this reason, an offender's entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.
[232]
(3) This Act also recognises -
(a) the need to respect an offender's dignity; and
(b) the special needs of some offenders by taking into account -
[233]
(ii) any disability the offender has; and
(c) the culturally specific needs of Aboriginal and Torres Strait Islander offenders."
[234]
Does containment in the MSU for an extended period of time amount to 'inhumane treatment'?
[235]
[95] The applicant contents that Mr Garland's continuous containment in the MSU for more than 6 years is inhumane by United Nations and Australian standards and therefore in breach of s 3 of the CSA. His counsel submitted that his containment in the MSU amounted to 'virtual solitary confinement.'
[236]
[96] There is no definition of 'humane containment' within the CSA. As an aid to the interpretation of 'humane containment' the applicant seeks to rely upon the Standard Guidelines for Corrections in Australia, revised in 2004 (Australian Guidelines) which are based on the United Nations Standard Minimum Rules and as well as the Council of Europe Standard Minimum Rules, modified to accommodate trends in correctional practice since the 1970s.
[237]
[97] The applicant also submitted that the International Covenant on Civil and Political Rights[25] (ICCPR) would also be relevant to the examination of what is 'humane' together with the UN Basic Principles for the Treatment of Prisoners (the UN Basic Principles).[26]
[238]
[98] Ms Hunter acknowledged that both the Australian Guidelines and the UN Principles inform the Department in the development of their policies and procedures and infrastructure when they are making decisions about how to manage the correctional system.
[239]
Rules of Statutory Interpretation and International Law
[240]
[99] The general rule is that treaties and other rules of international law have no direct effect in domestic law unless implemented by legislation.[27] The respondent's counsel argued that the CSA did not import any international conventions. However the following principles regarding the use that can be made of international law, and in particular international human rights norms, are generally accepted:
[241]
• that international law, particularly treaty law, is a source for the development of the common law;[28]
• Courts will not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms (including those set out in international law) unless such an intention is manifested by unmistakable unambiguous language;[29] and
• in the case of ambiguity in a statute, courts favour a construction which accords with Australia's obligations under a treaty, on the basis that they presume that Parliament intends to legislate in accordance, rather than contrary to, international obligations.[30]
[242]
In other words, Australia is not a juridical island. International law is relevant to an understanding of Australian law. This is reflected in the language used in s 3 of the CSA with its reference to, for example, the safeguarding of an offender's "basic human entitlements".
[243]
[100] In Chow Hung Ching v The King,[31] Dixon J held that "international law is not a part, but is one of the sources of English law".[32] That decision has been referred to in a number of cases including Mabo v Queensland (No 2)[33] in which Brennan J held:
[244]
"the common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights."
[245]
[101] This broad statement of principle was discussed by the High Court in Dietrich v The Queen.[34] In Dietrich, the applicant sought recognition of a common law right to legal representation at public expense. The Court was referred to Article 14(3)(d) of the ICCPR which provides:
[246]
"In the determination of any criminal charge against him, everyone shall be entitled to the following... to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it."
[247]
[102] Mason CJ and McHugh J considered that the right sought would fall within a category such that recognition of the right "would be to declare that a right which has hitherto never been recognised should now be taken to exist".[35] Dawson J held that, even if the principle could be extended to the common law, it could only be used to resolve ambiguities or uncertainties, and not to effect a fundamental change.[36] Brennan J also found that the right to counsel at public expense had not previously been recognised at common law. He outlined the capacity of courts to develop the common law to correspond with the contemporary values of society. However, Brennan J recognised the limits of this principle based on separation of powers and policy grounds. He acknowledged that the ICCPR was a concrete indication of contemporary values and recognised it to be a 'legitimate influence on the development of the common law',[37] even though it had not been implemented in domestic law. Toohey J acknowledged that where the common law is unclear, an international instrument could be used by the court as a guide to that law. Moreover, he recognised that certain English authority tended to support an argument that a court may, perhaps must, consider the implications of an international instrument where there is a lacuna in the domestic law.[38]
[248]
[103] Ultimately in Dietrich, the court relied on the existing common law right to a fair trial and found that in some circumstances, lack of representation may lead to an unfair trial.
[249]
[104] In the recent High Court decision in Coleman v Power[39] Gleeson CJ outlined a number of relevant principles applicable to the question of whether or not international treaties should be used to interpret the statute in question.[40] The Chief Justice outlined the general principles of statutory interpretation by reference to international obligations. His Honour cited the judgment of Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, "courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty."[41] His Honour then referred to the footnote which supported that proposition. The footnote referred to what was said by Lord Diplock in Garland v British Rail Engineering Ltd:
[250]
"[I]t is a principle of construction of United Kingdom statutes ... that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it."[42]
[251]
[105] The Chief Justice then cited with approval a passage from the joint judgment of Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh:[43]
[252]
"Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law." (emphasis added)
[253]
[106] In my view, international law, treaties and guidelines provide an interpretative guide to concepts such as "humane containment" and "basic human entitlements" found in s 3 of the CSA.
[254]
What are the relevant international legal principles?
[255]
[107] It would seem that the use of solitary confinement is not, per se, regulated in international treaty law, although numerous complaints relating to isolation during detention and imprisonment have been brought to the attention of the international monitoring organs, which have given some further interpretative guidance with regard to recourse to this particularly serious form of confinement.
[256]
[108] The United Nations Manual on Human Rights for Judges, Prosecutors and Lawyers[44] notes that as a starting point, the use of solitary confinement does not per se violate international human rights law such as articles 7 and 10(1) of the ICCPR, but that the question of lawfulness will depend on the aim, length and conditions of the confinement in each particular case.[45]
[257]
[109] This was the approach adopted in R v Denmark,[46] where, during his detention on remand, the applicant spent 17 months in solitary confinement. The European Human Rights Commission held that "when a measure of solitary confinement is considered, a balance must be struck between the requirements of the investigation and the effect which the isolation will have on the detained person." While "the applicant was isolated for an undesirable length of time", the Commission concluded that "having regard to the particular circumstances of the confinement in question, it was not of such severity as to fall within the scope of article 3 of the Convention."[47]
[258]
[110] The Commission noted in this respect that the applicant was kept in a cell of approximately six square metres, that he could borrow books from the prison library, that he was in contact with the prison staff several times a day and sometimes also with other persons in connection with police interrogations and court hearings, that he was under medical observation, and finally, that although he was subjected to restrictions with regard to visits during this periods, he was allowed to receive controlled visits from his family.[48]
[259]
[111] The United Nations Committee against Torture[49] has recommended that the use of solitary confinement be abolished, particularly during the period of pre-trial detention, other than in exceptional cases, such as when the security or the well being of persons or property are in danger. It has further recommended that the use of this exceptional measure be "strictly and specifically regulated by law" and subjected to judicial control.[50]
[260]
[112] In Mr Garland's case, he is not being held in pre-trial detention and the decision to keep him in the MSU was specifically regulated by the CSA and is subject to judicial review, although not appeal on the merits.
[261]
[113] The UN Standard Minimum Rules are not a treaty entered into by Australia.[51] The UN General Assembly has resolved that the rules are of great value and influence in the development of penal policy and practice.[52] Justice Wood, then Chief Judge of the Common Law Division of the Supreme Court of New South Wales, in a speech delivered at the China - Australia Human Rights Technical Cooperation Programme: Workshop on Prisoners and Detainees in Xian in May 2004 said that:
[262]
"The [Standard Minimum Rules] perform the role of providing standards which individual nations are encouraged to incorporate into their local laws, with suitable adaptation for local conditions. Since they do not have the status of international conventions or treaties they have no other legal effect or standing."[53]
[263]
[114] Although the UN Standard Minimum Rules are not binding, they are useful in providing assistance to resolve the meaning of 'humane treatment' under the CSA. Rule 32(1) provides:
[264]
"32. (1) Punishment by close confinement or reduction of diet shall never be inflicted unless the medical officer has examined the prisoner and certified in writing that he is fit to sustain it."
[265]
[115] Here, the rules refer to solitary confinement in the context of punishment and discipline which is not the situation in Mr Garland's case. Indeed the Standard Minimum Rules appear to contemplate the need for prisoner segregation in some instances. For example, Rule 57 provides:
[266]
"57. Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation."
[267]
[116] One of the other relevant international instruments which may aid in the interpretation of the CSA is the ICCPR. Article 10 provides:
[268]
"1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
...
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.
..."
[269]
However, the convention offers little by way of clarification of the meaning of humane treatment.
[270]
[117] The relevant principle outlined in the UN Basic Principles[54] provides:
[271]
"7. Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged."
[272]
[118] The Australian Guidelines contain provisions relating to punishment by solitary confinement. Section 1.75 provides:
[273]
"Prolonged solitary confinement, corporal punishment, punishment by placement in a dark cell, reduction of diet, sensory deprivation and all cruel, inhumane or degrading punishments should not be used."
[274]
[119] However, Mr Garland's incarceration in the MSU is not for the purpose of punishment. As White J observed in her decision of Garland v Chief Executive, Department of Corrective Services[2004] QSC 450 at [87], "[the] rule is made in the context of discipline and punishment. The applicant's accommodation in the maximum security unit is not for punishment but for the maintenance of security in the prison environment."
[275]
[120] Relevant rules pertaining to the segregation of prisoners for the maintenance of good order and security in a prison in the Australian Guidelines include:
[276]
"1.77 Prisoners placed in segregation for the security and good order of the prison are to be managed under the least restrictive conditions consistent with the reasons for their placement.
1.78 A record should be made of the reason(s) for the segregation and the regime under which access to facilities and privileges is determined.
1.79 The prisoner should be informed verbally and in writing of the reason(s) for the segregation and the period of the segregation placement.
1.80 Every prisoner who is placed in segregation for management or administrative reasons should be visited daily by a member of the prison management and as frequently as practicable (preferably daily) by a representative of the medical officer. The medical officer or their representative should advise the officer in charge of the prison if they consider the termination or alteration of the segregation is necessary on grounds of physical or mental health."
[277]
[121] Other rules pertaining to physical sport and recreation include:
[278]
"2.47 Weather permitting, prisoners should be allowed access to open air for at least one hour every day.
2.48 Wherever possible, prisoners should be allowed access to a range of sports, recreational and cultural activities.
2.49 Prisoners should have access to a library adequately stocked with both recreational and information resources, which is operated according to standard library practice. Prisoners should be encouraged to make full use of the library.
2.50 Prisoners should have access to computers for legitimate study purposes. However, internet access should be strictly controlled."
[279]
[122] The applicant appears to be provided with all these conditions within the MSU. His containment does therefore not appear to be 'inhumane' in light of the Standard Guidelines for Corrections in Australia. The respondent urged caution in reviewing prison management decisions. Were Mr Garland's confinement to be considered inhumane, however, and thus ultra vires the power given by the CSA, there can be no doubt that the court could properly intervene on an application for judicial review notwithstanding that the decision is one involving prison management. The courts exist to vindicate the legal rights of all who properly invoke their jurisdiction.[55]
[280]
[123] As stated above in relation to the Australian guidelines for Corrective Services, Mr Garland's confinement is not the result of punishment; rather it is for the administrative purpose to maintain the peace, security and good order of the prison. The decision does not appear to be in breach of international or national guidelines. This ground of review must therefore fail.
[281]
Alleged breach of the Department's policies and procedures
[282]
[124] The applicant's counsel referred to s 189(1) of the CSA which provided that the chief executive must make administrative policies and procedures to facilitate the effective and efficient management of corrective services. A departmental procedure has been made by Ms Hunter with regard to maximum security orders. The current procedure which is publicly available (the "MSO policy") came into effect on 15 August 2005 and was tendered in these proceedings. It sets out a number of procedural matters regarding maximum security orders about which no complaint is made.
[283]
[125] Counsel for the applicant, however, said that there had been a failure to comply with the policy with regard to re-integration into the mainstream prison. The MSO policy relevantly provides:
[284]
"Planning for a prisoner's progression back into the mainstream prison accommodation must commence with the prisoner's arrival at the MSU. Reintegration of a prisoner into mainstream prison accommodation should be undertaken on a staged and progressive basis and in a manner that is consistent with the prisoner's coping skills."
[285]
[126] Attached to the MSO policy is an appendix which provides for progress guidelines for MSU prisoners from Stage One (Reception), Stage Two (Ongoing Intervention), Stage Three (Re-socialisation) to Stage Four (Preparation for Reintegration). When a prisoner has reached Stage Four, the MSO policy provides that the prisoner will no longer be on a maximum security order.
[286]
[127] It was submitted that there was no reintegration plan as required by the MSO policy; and that Mr Garland had complied with all of the requirements but that nevertheless he had not progressed from one stage to the next as envisaged by the Appendix to the MSO policy. It was submitted that "those stages under the guidelines haven't even been considered for him."
[287]
[128] In fact the IMP dated 15 February 2006, referred to earlier in these reasons, was the individual plan developed for Mr Garland in accordance with the MSO policy. It provided that he was to be managed "in accordance with conditions specified under Stage 2 of the Reintegration Plan." Mr Fisher gave evidence to the same effect. In oral evidence, Mr Fisher said:
[288]
"Prisoners are eligible for consideration for movement from one stage to another after a specified minimum period in which they have met all the goals of their IMP and adhered to all the procedures of the stage in which they are. However that the decision that prisoners move from one stage to another is, according to the MSO policy, subject to approval and review by the MSU Management Team."
[289]
[129] Ms Hunter was of the view that there was not presently any reintegration plan for Mr Garland but that appears to be because he had not reach stage 4 - preparation for reintegration. However, in my view the IMP could properly be considered to be a reintegration plan.
[290]
[130] The submissions appear to have conflated eligibility for movement through the various stages of a maximum security order with the right to do so. Mr Garland was being managed in accordance with the MSO policy. This ground of review was therefore without merit.
[291]
[131] The applicant has not been successful in showing that there was no evidence or other material to justify the making of the decision; nor that making the decision was an improper exercise of power with the result that the exercise was so unreasonable that no reasonable person could so exercise the power. While the applicant has succeeded in his argument that international law is relevant in determining the meaning to be given to s 3 of the CSA, he has not shown any breaches of international law, treaties or guidelines nor of the Australian guidelines based on them. Accordingly the third ground of review, that the decision was contrary to law because Mr Garland's continued containment in the MSU was inhumane and so contrary to the CSA, has not been made out. Nor has he succeeded in showing that there were breaches of the policy and procedures of the Department which meant the order made was illegal. As none of the grounds for judicial review has been successful, the application must be dismissed.
[292]
[1] As of 28 August 2006 the Corrective Services Act 2006 came into force. The sections of the Corrective Services Act 2006 that deal with maximum security orders are substantially the same as the previous sections under the Corrective Services Act 2000, however the sections have been renumbered.
[9] Section 20(2)(h) of the JR Act is the equivalent of s 5(1)(h) of the Administrative Decisions (Judicial Review) Act1977 (Cth) (ADJR Act). Section 24 of the JR Act is the equivalent of s 5(3) of the ADJR Act. Section 5(1)(f) of the ADJR Act is the equivalent of s 20(1)(f) of the JR Act, that is the decision involved an "error of law."
[21] Compare, for example, Wednesbury Corporation (supra) at 230, and Parramatta City Council (supra) at 328, with the conclusions reached in South Oxfordshire District Council v Secretary of State for the Environment [1981] 1WLR 1092 at 1099; [1981] 1 All ER 954 at 960; Shoreham-By-Sea Urban District Council (supra), and Minister of Housing and Local Government v Hartnell[1965] AC 1134 at 1173.
[25]International Convention on Civil and Political Rights UN Doc. A/6316 (1966), opened for signature 16 December 16 1966, entered into force 23 March 1976.
[314]
[26] Adopted and proclaimed by the General Assembly resolution 45/111 of 14 December 1990.
[315]
[27]Chow Hung Ching v The King[1948] HCA 37; (1948) 77 CLR 449 at 479 (Dixon J); Bradley v The Commonwealth[1973] HCA 34; (1973) 128 CLR 557 at 582 (Barwick CJ and Gibbs J); Simsek v Macphee (Minister for Immigration and Ethnic Affairs)[1982] HCA 7; (1982) 148 CLR 636 at 641-642 (Stephen J); Tasmanian Wilderness Society v Fraser[1982] HCA 37; (1982) 153 CLR 270 at 274 (Mason J); Kioa v West[1985] HCA 81; (1985) 159 CLR 550 at 570-571 (Gibbs CJ); Mabo v Queensland (No 2)(1992) 175 CLR 1 at 55 (Brennan J, Mason CJ and McHugh J concurring), 79 (Deane and Gaudron JJ); Chu Kheng Lim v Commonwealth (Minister for Immigration, Local Government and Ethnic Affairs)(1992) 176 CLR 1 at 74 (McHugh J); Dietrich v R[1992] HCA 57; at 305 (Mason CJ and McHugh J), 359-60 (Toohey J); ; at 200-201 (Mason CJ); ; at 287 (Mason CJ and Deane and Gaudron JJ concurring), 370 (Toohey J), 284 (McHugh J); (supra) at 71 (Dawson J); ; at 104 (Kenny J).
[44]Human Rights in the Administration of Justice: A Manuel on Human Rights for Judges, Prosecutors and Lawyers (2002) Office of the United Nations High Commissioner for Human Rights, Geneva.
[328]
[46]Eur.Comm, HR, R v Denmark, Decision of 11 March 1985 on the admissibility, 41 DR.
[329]
[47] Ibid at 154. Article 3 of The European Convention on Human Rights states that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
[50] UN Docs. GAOR, A/53/44, p.17, para. 156 (Norway) and GAOR, A/52/44, p 34, para.225 (Sweden).
[332]
[51] Despite this, Human Rights Watch argues they "constitute an authoritative guide to binding treaty standards." Human Rights Watch is an independent, non-governmental organisation, supported by contributions from private individuals and foundations worldwide. It is a United States-based organisation that conducts research and advocacy on human rights. See http://hrw.org/prisons/ standards.html.
[54] Adopted and proclaimed by General Assembly resolution 45/111 of 14 December 1990.
[336]
[55]Attorney General (NSW) v Quin (supra) at 35 per Brennan J quoted with approval by Gummow J in Minister for Immigration v Eshetu (supra) at [132]; 651-652.
Parties
Applicant/Plaintiff:
_Garland
Respondent/Defendant:
Chief Executive, Department of Corrective Services_