Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405

[1] WHITE J: The applicant is a 67 year old man serving a sentence of imprisonment of 11 years imposed on 31 March 1999 for unlawfully striking with a projectile with intent to prevent lawful arrest pursuant to s 317 of the Criminal Code. He is serving a concurrent 7 year sentence for armed robbery in company. He was held on remand in respect of these offences from 12 December 1997 and 473 days pre-sentence custody were declared as time served under the sentence. The applicant was declared a serious violent offender with the consequence that he is not entitled to remission and is not eligible to apply for parole until he has served 80 per cent of his sentence, s 161D of the Penalties and Sentences Act 1992 and s 166(1)(c)(i) of the Corrective Services Act 1988 ("the Act").

[2] He is seeking review of the decision made by the delegate of the respondent on or about 11 June 1999 and subsequent decisions to place him on a maximum security order pursuant to s 43A of the Act.

[3] The applicant was initially held on remand at the Arthur Gorrie Correctional Centre but was transferred to the maximum security unit of the Woodford Correctional Centre on 23 September 1998 where he has remained.

[4] On 21 April and 28 July 1999 Moynihan SJA made certain declarations and orders about the lawfulness of the applicant's and certain other prisoners' segregation in the maximum security unit, Farr & Ors v Queensland Correctional Services Commission [1999] QSC 86.

[5] On 30 March 1999 subdivision 1A - "Accommodation in maximum security facility" - was inserted into Division 5 - "Prisoners" - of the Act. Section 43A(1) provides that the chief executive may make an order known as a maximum security order that a prisoner be accommodated in a maximum security facility if certain pre-conditions are satisfied. Those conditions require that the prisoner has been classified under a regulation into the security rating of maximum security which remains current and

"(2)(b) the chief executive considers, on reasonable grounds, that 1 or more of the following apply -

(i) there is a high risk the prisoner will escape, or attempt to escape, from prison;

(iii) generally, the prisoner is a substantial threat to prison security and good order."

A maximum security order must not be longer than 6 months, s 43A(3).

[6] The chief executive may make a consecutive maximum security order to take effect on the expiration of an existing order. A new order cannot be made earlier than 14 days before the expiration of the existing order. The chief executive may not make a new maximum security order unless he gives written notice not more than 28 days before the existing order expires that he is about to consider whether a new order should be made. The prisoner may within 14 days after receiving the written notice make submissions about anything relevant to that decision and the chief executive is required to consider those submissions, s 43B.

[7] A maximum security order must include, to the extent that it is practicable, directions about the extent to which the prisoner is to be segregated from other prisoners accommodated in the maximum security facility, direct contact visits, and privileges. Only privileges which can be enjoyed by the prisoner within the maximum security facility and which will not jeopardise prison security and good order may be received. A maximum security order may include directions about the prisoner's access within the maximum security facility to programs and services including training and counselling, s 43C.

[8] A prisoner accommodated in a maximum security facility pursuant to a maximum security order may request the general manager of the prison to refer that order to an official visitor for review, s 43D(1). After the official visitor completes the review the official visitor must recommend to the chief executive whether the order should be confirmed, amended or repealed, s 43D(7). On receiving the official visitor's recommendation the chief executive must consider the recommendation and confirm, amend or repeal the maximum security order, s 43D(8). The chief executive is not bound by the official visitor's recommendation, s 43D(9).

[9] By letter dated 12 May 1999 the applicant was informed of the new legislative provisions for the detention of prisoners in a maximum security facility and the intention to place him on a maximum security order. The documentary materials being considered by the delegate were

* particulars of sentence; * sentence calculation; * security classification history; * offender breach/incidents report; * transfer history; * criminal history; * intensive management plan for the applicant signed by the general manager of Woodford Correctional Centre. The writer stated

"You were placed in the Maximum Security Unit on 22 September 1998 following a period of time in the Detention Unit. This transfer occurred as you had been identified by staff of Arthur Gorrie Correctional Centre as demonstrating an extreme threat to the security of that centre. In taking that decision, intelligence information outlining [sic] your involvement in a plan to escape with other prisoners. Information about possible outside assistance in the escape, your known criminal associates and your access to financial resources were also considered in the decision to place you in the Maximum Security Unit."

The applicant was invited to respond within 14 days. All the material save a memorandum from the "Proactive Intelligence Network" which the applicant was told was to be considered by the delegate was included.

[10] The applicant retained his present solicitors who wrote to the respondent on 16 June 1999 seeking further details of the allegations against him consistent with "legitimate security concerns". The solicitors asked

"What is the nature of the alleged plan to escape with other prisoners?

What steps has the department taken to ensure that the information received is in any sense reliable?

Who does the department assert are Mr Kidd's known criminal associates?

Upon what information has the department drawn a conclusion about Mr Kidd's `access to financial resources' and what specific resources does the department assert that he has available?"

The applicant's age was also mentioned. No reply was received to that letter.

[11] By letter dated 22 June 1999 the respondent wrote to the applicant advising him of the decision to maintain his maximum security classification, to place him on a maximum security order and to accommodate him in a maximum security unit. The reasons for making those decisions were set out

"THE DECISION WAS BASED ON THE FOLLOWING FINDINGS OF FACT:

* On 31 March 1999 you were sentenced to serve 11 years imprisonment in relation to an offence of unlawfully striking with a projectile to prevent lawful arrest. In sentencing you the court declared that the offence was a serious violent offence in accordance with the Penalties and Sentences Act 1992.

* On the same day you were convicted and sentenced to 7 years imprisonment in relation to an offence of armed robbery in company.

* You were identified by staff at Arthur Gorrie Correctional Centre as a high risk of escape, representing an extreme threat to the security of the centre.

On 22 September 1998 you were identified as being involved in a planned escape in company with other prisoners. Information about possible outside assistance in the escape, your known criminal associates and your access to financial resources were also considered in the decision to place you in the Maximum Security Unit.

The delegate concluded that you represent a high risk of escape or attempted escape from prison

The delegate formed the view that you need to be managed in a maximum security facility where the highest levels of physical security and monitoring are available. Consequently a decision to maintain you at a maximum security classification and accommodate you in a maximum security unit has been taken as it was concluded that you are a high risk of escape or attempting to escape."

[12] On 17 November 1999 the applicant was advised that for the same reason as was identified in September 1998, namely, that he was an extreme risk of escaping from custody, it was proposed to make a further maximum security order against him. The materials relied upon were as before and also included a memorandum dated 11 November 1999 from the Acting General Manager of the Woodford Correctional Centre and "documents held by the Proactive Intelligence Network". The brief report from the Acting General Manager included the following

"Robert's behaviour towards all staff is normally polite and compliant but he can at times become verbally aggressive. This is usually a reflection of the frustration he feels in continuing to be held in the MSU. He has not been breached in the past six months."

In fact there was a minor breach recorded on 19 October 1999 that the applicant behaved in an offensive manner. The applicant was invited to respond but no documents held by the Proactive Intelligence Network were included in the material.

[13] Towards the expiration of that period under the maximum security order the delegate wrote to the applicant that consideration was being given to making yet another maximum security order. An additional ground to that of being a high risk of escaping or attempting to escape from prison was added, namely "a substantial threat to prison security and good order". The same material was to be considered including a memorandum from the Acting General Manager at Woodford Correctional Centre about the applicant's response to his maximum security order. He noted that the applicant's behaviour was of an acceptable standard although he occasionally became frustrated and angry and at such times requested time out so that he could limit contact with staff and avoid contact. There were no custodial breaches or incidents recorded. The applicant was not enrolled in any educational studies or programs, did not have many visitors although was visited "approximately four times a year by his wife and two sons". He was said to write numerous letters to friends, family and other prisoners. The delegate indicated oral advice had been received by the "Department of Corrective Services Intelligence Group in relation to your escape risk".

[14] In commenting on the report from the Acting General Manager that the applicant's behaviour was of an acceptable standard the delegate wrote

"This, however, may not be necessarily sufficient to override the serious risk of escape that you would appear to present if you were to be placed in a less secure environment ... Verbal advice from the Department of Corrective Services Intelligence Group indicates that the risk of you escaping or attempting to escape remains undiminished."

The applicant was invited to make submissions but did not.

[15] The further order was made on 24 May 2000 to take effect from 5 June for six months.

[16] The applicant denies any knowledge of or being involved in any way with a plan to escape from the Arthur Gorrie Correctional Centre. He deposes that he has never been interviewed or questioned at any time in relation to any escape attempt and neither has he been charged with any offence relating to any escape attempt or plan to escape pursuant to the Criminal Code or the Act.

[17] In or about August 1999 the applicant requested the prison visitor, Ms Delma Osborne, to investigate why he was held in the maximum security unit. Ms Osborne reported on 31 August 1999. She noted that the applicant was held in a maximum security unit between 22 January 1998 and 26 August 1998 "because threats were apparently made against his life". She quotes a letter to Mr Kidd's then solicitor of 2 December 1998 which stated

"Intelligence information indicates Mr Kidd was extreme threat of escape. Information was from a reliable informant. The escape was supposed to happen within 24 hours. There was to be outside help."

"It seems to me that Mr Kidd is being held in MSU based upon an allegation made in September 1998 (one year ago) about an escape which was to have happened in 24 hours. It seems to me that Mr Kidd cannot any longer be held in MSU based upon a risk of escape, which, on the information of an un-named informant, was to have occurred one year ago."

She noted that there was nothing in the applicant's file which supported the chief executive's opinion that there was a high risk the prisoner would escape or attempt to escape other than an "informant" some 12 months ago. She recommended that the applicant be transferred out of the maximum security unit forthwith.

[18] Despite numerous attempts to do so, the applicant's present solicitors were unable to obtain a copy of that report, indeed the respondent maintained that it did not have the report either at Woodford Correctional Centre or in any other relevant office or centre conducted by the respondent. It was not until application was made to Ms Osborne by the respondent almost a year after a Freedom of Information application had been made by the applicant's solicitors that a copy of the report was provided under cover of a letter dated 21 August 2000.

[19] Mr Peter Severin, the delegate of the chief executive, deposes that until receipt of the affidavit of the applicant's solicitor, Mr Matthew Woods, sworn and filed on 13 October 2000 he had never seen Ms Osborne's report. However, he deposes that having perused it and having had regard to all the matters previously considered by him and "in particular, to the information that is subject to a claim to public interest immunity" he would not be persuaded to change his decision to place the applicant under a maximum security order. Mr Severin deposes in an earlier affidavit filed on 26 May 2000 that in addition to the material provided to Mr Kidd in November 1999 he also took into account Chapter 29 of the Queensland Corrective Services Commission Policy and Procedures Manual entitled "Maximum Security Unit Policy" and information provided by "Mr Bruce McKinlay of the Proactive Intelligence Network ... that intelligence information was held indicating that [the applicant] was an escape risk".

[20] On 25 October 1999 shortly after the request for further reasons was made a certificate pursuant to s 36(1)(b) of the Judicial Review Act 1991 was issued by the Attorney-General certifying

"... that the disclosure of further information relating to the matter of the decision of the authorised delegate of the Chief Executive, Department of Corrective Services, dated 22 June 1999 to place Robert Douglas Kidd under a Maximum Security Order pursuant to s 43A of the Corrective Services Act 1988 would be contrary to the public interest for the reasons:

That disclosure of such information is prevented on the grounds that it would reveal or would be likely to reveal the identity of police informants."

[21] The program devised for the applicant under the current maximum security order contains the following

* The prisoner is permitted to associate with other prisoners in the Maximum Security Unit. * Such association will be : (a) limited to a period of two (2) hours a day; and (b) limited to association with one (1) other prisoner at any one time. * The prisoner may have access to one (1) non-contact visit per week of a one (1) hour duration. * The prisoner is permitted one (1) telephone call of no more than 10 minutes duration each week. * The prisoner is permitted two (2) hours out of cell exercise per day. This exercise is to coincide with the periods of association with the other prisoner. * 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 Manager. * All meals are to be eaten in the prisoner's cell. * Programs, services, training and counselling are to be undertaken within the Maximum Security Unit with options to be detailed in the Individual Management Plan. These conditions could be varied by the General Manager, to the advantage of the applicant, on a case by case basis or in accordance with his Individual Management Plan.

[22] Mr Davidson, for the applicant, raised article 7 of the United Nations International Covenant on Civil and Political Rights which came into force on 28 March 1979. It was ratified by Australia and entered into force for Australia on 13 November 1980. Article 7 provides

"No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment. In particular no one shall be subjected without his free consent to medical or scientific experimentation."

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into Australian municipal law by statute. The International Covenant on Civil and Political Rights has not entered into the domestic legislative sphere. Where such provisions have not been incorporated they cannot operate as a direct source of individual rights and obligations. However, because of an assumption that the legislature intends to give effect to Australia's obligations under international law, where a statute or subordinate legislation is ambiguous it should be construed in accordance with those obligations, particularly where they are undertaken in a treaty to which Australia is a party, Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 per Mason CJ and Deane J at 287, per McHugh J at 315; Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 per Dawson J at 70-1. In the absence of any further submissions or evidence as to how the maximum security order lasting as it has for over two years in one form or another might be said to offend article 7, how the respondent in continuing to make the maximum security orders that it has might have offended against article 7, and what obligation lies on the respondent to have regard to article 7, I will not consider it further. Article 7 is not raised as a ground for review in the amended application.

[23] The application concerns the issue of procedural fairness and whether, in the circumstances, it has been accorded to him. As was observed in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576 per Mason CJ, Dawson, Toohey and Gaudron JJ

"It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may `destroy, defeat or prejudice a person's rights, interests or legitimate expectations'. Thus, what is decisive is the nature of the power, not the character of the proceeding which attends its exercise."

The applicant's interest in not being held under a maximum security order with the loss of the usual prisoner privileges, for example, freedom of association within the prison community consistent with good conduct, dictate that there is an interest in the applicant being accorded procedural fairness when a decision is made to consider placing him on a maximum security order with all the limitations that that order contains on the applicant's prison privileges. The difficulty is to fashion a process which will be fair to the applicant as well as recognising legitimate security interests.

[24] From a perusal of the Attorney-General's certificate and Ms Osborne's report, although the delegate does not expressly say so, it would seem that the respondent declines to give the applicant or his legal advisers any further material relating to the risk which continues to be seen because the identity of an informant(s) might be revealed. The identity of such persons has long been protected because the public has an interest in the prevention and prosecution of crime and sources of information to the police and similar agencies would dry up if not protected, Hennessy v Wright (1888) 21 QBD 509 at 519; Marks v Beyfus (1890) 25 QBD 494 per Lord Esher MR at 498 and Bowen LJ at 500; and Rogers v Home Secretary [1973] AC 388 at 401 per Lord Reid. Stephen J expressed the rationale for the protection in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 65-6 as

"... the clearest public interest in preserving the flow of information by ensuring confidentiality and by not countenancing in any way breach of promised confidentiality."

Hunt CJ at Common Law in Attorney-General (NSW) v Stuart (1994) 75 A Crim R 8 explained

"This particular public interest in protecting the identity of police informers appears to be part of a broader public interest, the maintenance of social peace and order (as it is described in D v National Society for Prevention of Cruelty to Children (at 231)). As another part of that broader public interest, it is essential that nothing used by police in their pursuit of criminals should be disclosed which may give any useful information concerning continuing enquiries to those who organise criminal activities: Conway v Rimmer (at 953-954); or which impede or frustrate the police in that pursuit (at 972) ..." at 14-15.

[25] However the disclosure of the identity of an informant will be ordered when required to establish the innocence of an accused person, Marks v Beyfus at 498, 500; D v National Society for Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 at 218, 232; and Attorney-General (NSW) v Stuart, ibid. The decisions under review do not fall into this category but there are concerns which because the delegate has given virtually no explanation as to how the decisions were reached, have not been addressed.

[26] There is no suggestion that any fresh information has been received by the respondent which confirms the likelihood of a continuing risk. The applicant's criminal history is not extensive containing one charge in 1976 of possessing housebreaking implements which did not proceed to conviction, presumably because the applicant failed to appear since a warrant was issued. The other recorded offence was conspiracy with three others in respect of which he was convicted. It was clearly a serious crime because he was sentenced to 4 years hard labour on 13 May 1983. His history contains no offences of escape or attempted escape from custody. The applicant has not been breached for behavioural problems whilst confined under the maximum security order since October 1999 and that was, on its face, not serious.

[27] An obvious concern not addressed in the reasons of the delegate is the possibility that a person, be it a prisoner or anyone else not well-disposed to the applicant, could pass on to the authorities untrue information about an escape plan which would cause the applicant to be confined without privileges.

[28] The delegate did not take into account the official visitor's recommendation when making his decision as he was legally required to do. That he was not able to do so because it was not provided to him raises the concern that those charged with the management of the prisoner and the decision to impose a regime of maximum security orders may have decided that the applicant is to remain for the future on such an order and there was therefore no effort made to put the report on the applicant's file. The loss of the report and the apparent disinterest in obtaining a copy from as long ago as October 1999 lends some support for this. For the purpose of this application, in light of the delegate's deposition that even if he had access to Ms Osborne's report he would still have made the maximum security order, it would be a waste of time and resources to send the matter back to the delegate to take into account Ms Osborne's report and recommendation. I will therefore proceed on the assumption that the delegate took them into account.

[29] There are two concerns. There is nothing to show that the delegate satisfied himself "on reasonable grounds" as to the currency of the high risk that the prisoner will escape, or attempt to escape, from prison. There is no explanation for including the additional ground that the prisoner "is a substantial threat to prison security and good order" which must, it might be thought, mean something else than the disruption to prison discipline which an escape or attempted escape would entail.

[30] Neither is there anything to indicate that the delegate took any steps to verify the information given by the informant. In Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193 the Minister charged with the power to order the deportation of the respondent who had been convicted of an offence received confidential reports from the parole and prison medical authorities which were not disclosed to the respondent. A concern was expressed that to do so would expose the writers and persons named in the reports to possible harm. Each of the members of the Full Federal Court concluded that whatever the justification might have been for withholding the reports in the first instance, if the Minister was to take their contents into account, consistently with Kioa v West [1985] HCA 81; (1985) 159 CLR 550, he was bound to afford the respondent an opportunity to make submissions in relation to them. This, their Honours suggested, could be done by making the reports available to the respondent's legal adviser on appropriate undertakings so that proper submissions to the Minister could be considered, Neaves J at 197, Ryan J at 205 and Gummow J at 223.

[31] If s 43B of the Act which concerns the conditions in accordance with which a consecutive maximum security order may be made, is to be anything more than legislative lip service to the concept of procedural fairness, information adequate for a prisoner to respond must be given. That has not occurred here. I accept that to answer all of the questions posed by the applicant's solicitors on 16 June 1999 may tend to reveal the respondent's sources of information. The delegate should demonstrate that he has directed his mind to the currency of the risks expressed in the maximum security order and, if he is satisfied on reasonable grounds that those risks continue as high risks he must explain, without revealing the sources of his information, why that is so. He must also demonstrate that he has satisfied himself that there is independent support for the information from the informant and that there is no risk that this is a case of "prison politics".

[32] A statement containing adequate information so that the applicant can make submissions in response can be given which will not transgress the Attorney-General's certificate. Should the statement prove inadequate the court may need to consider an order under s 37(5) to disclose documents or to require the giving of evidence on this matter.

(i) The order of the delegate made on 5 June 2000 subjecting Robert Douglas Kidd to a maximum security order pursuant to s 43B of the Corrective Services Act 1988 be set aside. (ii) The matter be referred to the delegate of the respondent for his further consideration in the light of these reasons.