ADMINISTRATIVE LAW – JUDICIAL REVIEW - REVIEWABLE DECISIONS AND
CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION
APPLIES –
DECISIONS UNDER AN ENACTMENT – GENERALLY - where the applicant is subject
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW - REVIEWABLE DECISIONS ANDCONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATIONAPPLIES –DECISIONS UNDER AN ENACTMENT – GENERALLY - where the applicant is subjectto a supervision order under theDangerous Prisoners (Sexual Offenders) Act2003 (Qld) (“DPSOA”) - where the applicant received adirection from the first respondent that he not have in-person contactwith aperson - where the applicant requested reasons for the decision to direct thathe not have in‑person contact - wherethe first respondent replied thatthe applicant was not entitled to a statement of reasons under the JudicialReview Act 1991 (Qld) (“JRA”) – where the applicantsubmits that he is entitled to reasons under the JRA because the decision wasmade under the DPSOA and, therefore, was made “under an enactment” -where the respondents contend that the decisionwas not made “under anenactment” because the decision was made under the supervision order
rather than the DPSOA - whether
the decision was made under an enactment such
that the applicant is entitled to a statement of reasons under the JRA
ADMINISTRATIVE LAW – JUDICIAL REVIEW - REVIEWABLE DECISIONS AND
CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION
APPLIES –
DECISIONS UNDER INSTRUMENTS - where the applicant contends in the alternative
that the decision was made under a
supervision order which is a “statutory
instrument” and, therefore, was made “under an enactment” -
where
the respondents contend that the supervision order is not a
“statutory instrument” as defined in the Statutory Instruments
Act 1992 (Qld) – whether the supervision order is a “statutory
instrument”
Corrective Services Act 2006
(Qld)
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s
3(a), 13(1), 13(6), 16(1)(db), 16C
Judicial Review Act 1991
(Qld), s 3, 4(a)
Human Rights Act 2019 (Qld)
Statutory
Instruments Act 1992 (Qld), s 6, 7
Blizzard v O’Sullivan
[1994] 1 Qd R 112, cited
Boyy v Executive Director of Specialist
Operations of Queensland Corrective Services [2019] QSC 283,
cited
Dunkley v Queensland Corrective Services [2013] QSC 261,
cited
Fardon v Attorney-General (Qld) [2004] HCA 46
(2004) 223 CLR 575,
cited
Griffith University v Tang [2005] HCA 7
(2005) 221 CLR 99,
cited
Hanson v Walters [2021] QCA 18, cited
King v Director of
Housing (2013) 23 Tas R 353, cited
The Proprietors – Rosebank
GTP 3033 v Locke & Anor [2016] QCA 192, cited
Judgment (138 paragraphs)
[1]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES - DECISIONS UNDER AN ENACTMENT - GENERALLY - where the applicant is subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act2003 (Qld) ("DPSOA") - where the applicant received a direction from the first respondent that he not have in-person contact with a person - where the applicant requested reasons for the decision to direct that he not have in‑person contact - where the first respondent replied that the applicant was not entitled to a statement of reasons under the Judicial Review Act1991 (Qld) ("JRA") - where the applicant submits that he is entitled to reasons under the JRA because the decision was made under the DPSOA and, therefore, was made "under an enactment" - where the respondents contend that the decision was not made "under an enactment" because the decision was made under the supervision order rather than the DPSOA - whether the decision was made under an enactment such that the applicant is entitled to a statement of reasons under the JRA
[2]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES - DECISIONS UNDER INSTRUMENTS - where the applicant contends in the alternative that the decision was made under a supervision order which is a "statutory instrument" and, therefore, was made "under an enactment" - where the respondents contend that the supervision order is not a "statutory instrument" as defined in the Statutory Instruments Act1992 (Qld) - whether the supervision order is a "statutory instrument"
The Proprietors - Rosebank GTP 3033 v Locke & Anor[2016] QCA 192, cited
[16]
[1] The applicant is subject to a supervision order made pursuant to the Dangerous Prisoners (Sexual Offenders) Act2003 (Qld) ("DPSOA"). He received a direction from the first respondent that approved his having phone contact with a named individual, but denied in-person contact with that person.
[17]
[2] The applicant requested reasons for the decision that he not have in-person contact. The first respondent replied that the applicant was not entitled to a statement of reasons under the Judicial Review Act1991 (Qld) ("JRA").
[18]
[3] The JRA applies to a decision of an administrative character made "under an enactment".[1] An "enactment" means "an Act or statutory instrument, and includes a part of an Act or statutory instrument".[2]
[19]
[4] The applicant seeks an order pursuant to s 38 of the JRA that the first respondent give a statement of reasons. He contends that:
[20]
(a) the decision was made under the DPSOA and, therefore, was made "under an enactment";
(b) alternatively, the decision was made under the supervision order, that the supervision order is a "statutory instrument" and, therefore, was made "under an enactment".
[21]
(a) the decision was made under the supervision order and was not made under the DPSOA; and
(b) the supervision order is not a "statutory instrument" as defined in the Statutory Instruments Act1992 (Qld) ("SIA").
[22]
(1) Was the decision made under the DPSOA and, therefore, "under an enactment"?
[23]
(2) If not, is the supervision order a "statutory instrument"?
[24]
[7] I conclude that the decision was made under the DPSOA. That Act was the source of the first respondent's power as a corrective services officer to direct the applicant to not have contact with the named person. The decision to deny the applicant his right to have in-person contact with the person named in the direction derived its capacity to affect the applicant's legal rights from the DPSOA. The Act empowers such a direction. The Act mandates that a supervision order contains a requirement for a reasonable direction to be made.
[25]
[8] The respondents' submission that the decision was made under the supervision order and, therefore, was not made under the DPSOA, tends to present the issue as involving a choice between two possible sources. On this view, the decision must have been made under one or the other. This view denies the reality that a decision may be made under an Act and also under an instrument that is authorised by the Act.
[26]
[9] In Griffith University v Tang,[3] Gummow, Callinan and Heydon JJ stated:
[27]
"The circumstance that a decision could not have been made but for the concurrence of a range of circumstances of fact and law does not deny that in the necessary sense it was "made under" a particular enactment. The search for "immediate" and "proximate" relationships between a statute and a decision deflects attention from the interpretation of the Review Act and the ADJR Act in the light of their subject, scope and purpose."
[28]
[10] The fact that the decision in this case could not have been made in the absence of a supervision order does not deny that in the necessary sense it was "made under" an enactment, namely the DPSOA. I conclude that it was.
[29]
[11] This makes it unnecessary to determine the applicant's alternative argument that the supervision order falls within the definition of a "statutory instrument". The applicant submits that the order is an "instrument of a public nature by which the entity making the instrument unilaterally affects a right or liability of another entity" so as to fall within the definition in s 7 of the SIA.
[30]
[12] I do not accept that submission. The supervision order is an instrument because it is a document.[4] Arguably, it is "of a public nature", being made in open court for the public purpose of ensuring adequate protection of the community. However, having regard to the nature of the order as an exercise of judicial power in determining only the rights of the applicant, I doubt that the order is "of a public nature" for the purposes of the SIA. The supervision order affected the rights of the applicant in many ways. The instrument, however, was not made "unilaterally".
[31]
[13] A supervision order differs from the unilateral making of a legislative or administrative instrument and the types of instruments in s 7(3) of the SIA that are directed to the public. It is made after a contested hearing involving a party as a respondent to an application brought by the Attorney-General. The order is directed only to the respondent. The Court makes the supervision order in adversarial civil litigation in the exercise of judicial power after hearing from the respondent. A supervision order is not made "unilaterally" in the sense that s 7(3) of the SIA uses that word.
[32]
[14] The DPSOA authorises the Court, on an application by the Attorney-General, to make a supervision order if the Court is satisfied that the respondent is a "serious danger to the community" as that term is defined, in the absence of an order under s 13 of the Act. The supervision order involves the exercise of judicial power.[5]
[33]
[15] The Court does not "act as a mere instrument of government policy".[6] The Court does not exercise a legislative power or an administrative power of the kind that a statutory body might exercise in issuing a notification, standard or guideline of a public nature or in otherwise making a "statutory instrument".
[34]
[16] A supervision order must contain certain requirements by virtue of s 16(1) of the DPSOA. A supervision order may contain additional requirements that are stated in the order.[7] Pursuant to s 16(1)(db), one of the requirements that the order must contain is that the prisoner:
[35]
"comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order".
[36]
[17] A corrective services officer may give a direction mentioned in s 16(1)(db) only if the officer reasonably believes the direction is necessary:
[37]
(a) to ensure the adequate protection of the community; or
(b) for the prisoner's rehabilitation or care or treatment.[8]
[38]
[18] If a corrective services officer reasonably believes that it is necessary for such a purpose to direct a person subject to a supervision order to not have contact with a person or class of persons, or only have a certain kind of contact, for instance supervised contact, then the DPSOA authorises the officer to make a "reasonable direction".
[39]
[19] The supervision order made on 16 April 2020 is in the following terms:
[40]
"The Court orders that Mark Richard Lawrence be released from prison and must follow the rules in the supervision order for 20 years, until 16 April 2040."
[41]
[20] To assist persons who are subject to such an order to understand its requirements, the supervision order is in a form that adopts Plain English rather than statutory language. For example, instead of using the statutory term "requirements" the order uses the word "rules".
[42]
[21] Paragraph 6 of the order is in the following terms:
[43]
"A Corrective Services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a Corrective Services officer gives you about:
[44]
(a) where you are allowed to live;
(b) rehabilitation, care or treatment programs;
(c) using drugs and alcohol;
(d) who you may not have contact with; and
(e) anything else, except for instructions that mean you will break the rules in this supervision order.
[45]
A "reasonable direction" is an instruction about what you must do, or what you must not do, that is reasonable in that situation.
[46]
If you are not sure about a direction, you can ask a Corrective Services officer for more information, or talk to your lawyer about it."
[47]
[22] Subparagraph (e) of paragraph 6 is a simplified form of words for the mandatory requirement imposed by s 16(1)(db) of the Act.
[48]
[23] Subparagraph (d) of paragraph 6 contemplated that one of the directions that might be made pursuant to the mandatory direction imposed by s 16(1)(db) was a reasonable direction about with whom the applicant may not have contact.
[49]
[24] In addition, paragraph 52 of the order made specific provision in relation to contact with children. It stated that the applicant was not allowed to have any contact with a child under 16 years of age unless he first got written permission from a corrective services officer. As for adults, the supervision order did not require the applicant to not have contact with a nominated adult or a class of adult. Instead, s 16(1)(db) of the DPSOA imposed a mandatory requirement and thereby authorised a corrective services officer to give a reasonable direction to not have contact with a nominated adult, such as the person nominated in the first respondent's direction.
[50]
[25] The first respondent's decision in November 2022 to direct the applicant not to have in-person contact with the person named in the direction could not have been made in the absence of the DPSOA's provisions about directions or in the absence of a supervision order. It depended on a supervision order being made and on various other circumstances, including the formation by the first respondent of a reasonable belief that the direction was necessary to ensure the adequate protection of the community or for the applicant's rehabilitation or care or treatment.
[51]
[26] To adopt the words of Tang quoted above, the decision "could not have been made but for the concurrence of a range of circumstances of fact and law". One such fact was the making of a supervision order. The supervision order might be said to be a source, even a proximate source, of the authority given to the first respondent to make the direction that she did. In that sense, the decision to make the direction was made under the supervision order. However, the authority to make that kind of direction was sourced in the Act. It was derived from the Act since the Act authorises the making of such a direction and demands that a supervision order contain a requirement that the person comply with such a direction.
[52]
[27] The High Court's decision in Tang eschews a search for an "immediate" or "proximate" source for the making of the relevant decision. It is possible for a direction to be made "under an enactment" and also under an instrument authorised by that enactment.
[53]
[28] The issue of whether the decision was "made under" the DPSOA is decided by having regard to the subject, scope and purpose of the JRA.
[54]
[29] In Tang, Gummow, Callinan and Heydon JJ stated the relevant test as follows:[9]
[55]
"The determination of whether a decision is 'made ... under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice."
[56]
[30] The DPSOA confers extraordinary powers on corrective services officers to give directions to persons who are subject to a supervision order. The decision to make the relevant direction in this case was impliedly authorised by s 16(1)(db) of the DPSOA, provided the first respondent had the relevant belief about the direction's necessity and the direction was reasonable.
[57]
[31] The fact that the DPSOA does not descend to detail about the many kinds of directions that may be given pursuant to the mandatory requirement in s 16(1)(db) does not mean that a direction of the kind given in this case is not authorised by the Act. As was observed in Tang:[10]
[58]
"... no statute could possibly spell out the detail of every single decision or step in the decision-making process, which it requires of its administrators. Some statutes are admittedly more detailed than others, whilst some do little more than stipulate the administrator's end goals and a few methods. But, whether the statute be detailed or broad brush, they all need to contain a provision which states in substance and in very broad terms that a Minister, bureaucrat or other agency has the power (or even the duty) to administer this Act, and to do all things necessary in that regard. The recent trend is to treat decisions which can find no other statutory source of authority than such a clause as not being made under an enactment for ADJR purposes, although there has been scant attempt to identify why that approach should be adopted as a matter of principle."
[59]
[32] It is sufficient that the decision is "expressly or impliedly"[11] authorised by the relevant Act. It need not be specifically authorised. The DPSOA authorised a corrective services officer to make the kind of reasonable directions that s 16(1) states must be contained in a supervision order, provided the officer has the reasonable belief stated in s 16C. One such direction is that a person not have contact with an individual or class of individuals, not have certain forms of contact, or not have contact unless certain conditions are satisfied.
[60]
[33] The decision in respect of which the applicant seeks reasons was to make such a direction. Provided the direction was reasonable and based on a reasonable belief, the decision was authorised by the DPSOA.
[61]
[34] The decision to give the direction clearly affected the legal rights or obligations of the applicant. These included the legal right or liberty to speak to or otherwise have personal contact with another person. It is unnecessary to list the legal rights stated in the Human Rights Act2019 (Qld) ("HRA") that are affected by a direction to not have contact with another person. The legal rights that may be affected include freedoms that are recognised by the general law and by the HRA, including freedom of expression and freedom of association.
[62]
[35] Given the extraordinary powers conferred by the DPSOA on corrective services officers to affect the rights of individuals who are subject to supervision orders, there is nothing in the subject, scope or purpose of the JRA to suggest that such a decision is not one made "under an enactment".
[63]
[36] The respondents submit that at the time the decision was made the legal rights of the applicant were already the subject of a supervision order and the relevant decision imposed a temporary condition on the applicant's permitted contact with the named individual. It is said to have not finally affected any legal right or obligation that was not already subject to the supervision order. I disagree. The supervision order did not require the applicant to have contact with only nominated adults or groups, or to not have contact with certain nominated adults or groups unless approved by a corrective services officer. Instead, it envisaged that a corrective services officer might give a reasonable direction about who the applicant should not have contact with and about "anything else" (provided it was not inconsistent with a requirement of the order). The first respondent purported to give a reasonable direction in directing the applicant to not have in‑person contact with the named individual.
[64]
[37] Although the decision contemplated that the applicant could request a reassessment in six months' time, there was nothing temporary or provisional about the decision. It affected the applicant's legal right to have personal contact with the named person. The direction was operative and remained effective for an indefinite period. It finally affected the applicant's rights.
[65]
[38] A supervision order having been made, the first respondent engaged a power derived from the DPSOA to make a reasonable direction that was not directly inconsistent with the requirement of the order. The supervision order obliged the applicant to comply with its requirements (or rules). The relevant requirement to comply with every reasonable direction of a corrective services officer was a requirement that was imposed by operation of s 16(1)(db) of the DPSOA.
[66]
[39] The DPSOA also obliged the applicant to comply with such a direction. Section 43AA of the DPSOA makes it a criminal offence to fail to comply (without a reasonable excuse) with a direction that is given as a result of a requirement imposed by s 16(1)(db). A failure to comply also exposed the applicant to a contravention proceeding under Division 5 of Part 2 of the Act.
[67]
[40] The majority in Tang formulated the general issue under the second criterion as follows:[12]
[68]
"... does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?"
[69]
[41] Applying those tests, the decision in question did not derive its capacity to affect legal rights and obligations from the general law, for example, under a contract by which the applicant agreed that he might be given such a direction.[13] The decision derived its capacity from the DPSOA which authorised the making of reasonable directions about such a subject matter by a corrective services officer. The officer's authority to make a direction that affected the applicant's rights was derived from the DPSOA, which compelled the supervision order to contain a requirement that obliged the applicant to comply with reasonable directions.
[70]
[42] The decision derived its capacity to affect legal rights and obligations from the DPSOA and no other statute. The Court had no choice but to include the requirement in s 16(1)(db) in its order. Absent the DPSOA, the Court had no power to impose such a requirement.
[71]
[43] The decision in question derived its capacity to affect the applicant's legal rights and obligations from the DPSOA.
[72]
The source of the officer's authority to make a decision that affected rights and the applicant's obligation to comply with a direction
[73]
[44] The obligation to comply with a valid direction depends on a supervision order that orders the applicant to "follow the rules" in it. The authority to give a direction is derived, however, from the Act. The supervision order, in requiring the applicant to follow the rules and in informing him that he "must obey any reasonable direction" that a corrective services officer gives him about the matters stated in paragraph 6, contemplates or assumes the giving of such a direction. It does not expressly authorise the giving of such a direction. This is because s 16 of the Act impliedly authorises a corrective services officer to decide to give a reasonable direction if certain circumstances exist.
[74]
[45] If, however, it is said that paragraph 6 of the order impliedly authorises the giving of a reasonable direction, the order's authority in that regard is sourced in the Act. The Court had no free-standing authority to vest such powers in a non-party such as a corrective services officer. The authority to give a direction is derived from the Act which also authorises the making of a supervision order that must include a requirement about complying with directions.
[75]
[46] In conclusion, the authority to make a decision to give a direction to not have contact with a named person, or to not have a certain form of contact with a named person, is derived from the DPSOA.
[76]
[47] The respondents submit that this conclusion is inconsistent with Dunkley v Queensland Corrective Services.[14] The applicant notes that Dunkley is an ex tempore decision in a case involving a self‑represented litigant in which the Court did not have the benefit of full argument on the issue that arises in this case.
[77]
[48] Dunkley concerned different facts and a different kind of decision. Mr Dunkley sought a review of a decision made by an officer to impose a condition on an approval to have contact with his stepson. The supervision order in Dunkley specifically prohibited the offender having contact with children under 16 years of age, unless approved in writing. Approvals were granted to Mr Dunkley to have contact with his stepson subject to a condition that such contact be supervised by his mother-in-law. Mr Dunkley sought a statement of reasons for imposing the condition about the presence of his mother-in-law.
[78]
[49] Margaret Wilson J concluded that the imposition of that condition was not the making of a decision under an enactment but was "the imposition of a condition under the authority of, and pursuant to, a Court order". That finding was stated as follows:[15]
[79]
"On analysis, the condition imposed by Mr Wilson was not the making of a decision under an enactment. On the contrary, it was the imposition of a condition under the authority of, and pursuant to, a Court order. In those circumstances, it is not open to the Court to review the imposition of the condition on an application for a statutory order of review."
[80]
[50] Unlike paragraph 6 of the order in this case, the order in Dunkley prohibited contact without approval. Approval was granted subject to a condition and it was this condition to which Mr Dunkley objected. Here, the order did not prohibit contact with the named individual or any other adult. Having regard to s 16(1)(db) of the Act, it contemplated that a reasonable direction might be made about many unstated matters. One would be not having in-person contact with a named adult.
[81]
[51] Unlike in Dunkley, the present issue is not the imposition of a condition on an approval for in-person contact, being an approval contemplated by the terms of the order which otherwise prohibited such contact. The decision here is the making of a decision to make a direction that there be no in-person contact.
[82]
[52] That the matter in issue in Dunkley concerned the imposition of a condition on an existing approval seems to be essential to the briefly stated ex tempore conclusion. The ex tempore reasons for decision quoted above did not expose the analysis for that conclusion. It did not purport to state some broader proposition that a direction made to a person against whom a supervision order has been made can never be the subject of a decision under the DPSOA. It is unnecessary for me to consider the correctness of Dunkley about the factual issue that it decided.
[83]
[53] To the extent Dunkley might be said to support the proposition that a decision of the kind made in this case is incapable of being a decision under an enactment because it was made under the authority of a supervision order, I decline to adopt that proposition for the reasons I have given.
[84]
Conclusion - the decision was made under the DPSOA
[85]
[54] In summary, the decision to make the relevant direction derived its capacity to bind the applicant and affect his rights both from the DPSOA and the making of a supervision order. That the decision depended on the making of a supervision order and the existence of other circumstances does not mean it was not made under the DPSOA. The decision derived from the DPSOA the capacity to affect the applicant's legal rights or obligations. I conclude the direction was made under an enactment, namely the DPSOA.
[86]
Is the supervision order a statutory instrument?
[87]
[55] The applicant's alternative submission that the supervision order is a "statutory instrument" was raised in the event I concluded that the decision was not made under the DPSOA. I shall address this argument despite having concluded that it was.
[88]
[56] To be a statutory instrument, as defined by s 7 of the SIA, an "instrument" (defined in s 6 to mean any document) must be made under one of the matters stated in s 7(2)and be of one of the types mentioned in s 7(3).
"(1) A statutory instrument is an instrument that satisfies subsections (2) and (3).
[91]
(a) an Act; or
(b) another statutory instrument; or
(c) power conferred by an Act or statutory instrument and also under power conferred otherwise by law.
[92]
an instrument made partly under an express or implied statutory power and partly under the Royal Prerogative.
[93]
(3) The instrument must be of 1 of the following types -
[94]
• another instrument of a public nature by which the entity making the instrument unilaterally affects a right or liability of another entity.
[95]
(4) However, to remove doubt, an Executive Council minute is not itself a statutory instrument."
[96]
[58] The applicant focuses on the last dot point in s 7(3) and submits that a supervision order is "of a public nature" and that by making the instrument, the Court (as an entity) "unilaterally affects a right or liability of another entity", namely the respondent in the proceeding in which the supervision order is made.
[97]
[59] The respondents reply that the supervision order, like any other order of a court, lacks the character of a "statutory instrument" when regard is had to s 7 as a whole, including the types of instruments mentioned in s 7(3). They dispute that the court order is "of a public nature" as that phrase is used in that context or that the Court in making a supervision order "unilaterally" affects a right or liability.
[98]
Is a supervision order "of a public nature" within the meaning of s 7 of the SIA?
[99]
[60] The last dot point in s 7(3) and other amendments to s 7 were introduced to make explicit what Thomas J (as his Honour then was) found was implicit in the form in which s 7 was passed in 1992.[16] Thomas J in Blizzard v O'Sullivan[17] accepted a submission that the definition of "statutory instrument" in s 7 must be read in the context of the examples that indicate "a character which may be described as legislative, public or having an effect through unilateral exercise of power".
[100]
[61] In Locke the Court of Appeal was concerned with by-laws made by a body corporate in relation to a group title. Such by-laws, if valid, bind the body corporate, the proprietors, mortgagees, lessees, and occupiers. Phillip McMurdo JA stated:[18]
[101]
"By-laws under the plan do not have a public function, in that they are in place only to affect the relationships between private entities and not for any public purpose. In that sense, by-laws under the Act are not instruments of a public nature. An alternative view is that the quality of a "public nature" would exist simply whenever the instrument is, or is intended to be, made public."
[102]
[62] In Boyy, Bowskill J (as the Chief Justice then was) considered the meaning of "statutory instrument" and the limitation "of a public nature" in s 7(3) in the context of a document headed "sentence management - assessing and planning". It set out procedures that apply during the course of a prisoner's sentence in a correctional facility. Bowskill J stated:[19]
[103]
"... I do not consider that the mere fact that the document (or at least some parts of it) is available to the public makes it a guideline of a public nature [made under an Act] for the purposes of the definition of "statutory instrument". The document sets out administrative procedures relating to the assessment of risk posed by, and planning for the management of, prisoners serving a custodial sentence. Whilst it may be made available, at least in part, to the public for information purposes, the document has no public function, purpose or operation."
[104]
[63] The document in question was contrasted with Ministerial Guidelines that provided guidelines to help the Parole Board in performing its functions. Such guidelines were said to have a public function, purpose or operation because they contained guidelines to be taken into account by a statutory body in performing its decision-making functions under the Corrective Services Act2006 (Qld).
[105]
[64] The applicant accepts that a supervision order does not have the public quality of a "statutory instrument" simply because it is made in public or is available to the public. However, he seeks to distinguish a supervision order from the body corporate by‑laws in Locke that were in place only to affect the relationship between private entities and not for any public purpose. The applicant submits that, by contrast, the supervision order has a public function and was not made to quell a private controversy between parties. According to the applicant, it was not made to regulate a private relationship but was made on application by the Attorney-General for the purpose of ensuring adequate protection of the community and, in that way, it had a "public nature".
[106]
[66] The purpose of the DPSOA is to ensure adequate protection of the community.[20] The public purpose of the Act, however, does not mean that an order made pursuant to it is "of a public nature" within the meaning of s 7 of the SIA. Most legislation may be said to serve a public purpose, and orders made pursuant to such legislation may likewise be said, in a general sense, to advance that statutory purpose. A court order, including a supervision order, binds only the parties whose rights and obligations it determines. It does not affect the rights or liabilities of persons or entities who are not bound by the decision. It does not affect the public (or a section of the public, save for the parties) in the way that other statutory instruments of the types stated in s 7(3) do. Those instruments are typically directed to the public or a section of the public. An example is the Credentialing Procedure considered in Hanson v Walters[21] that regulates credentialing for the provision of health services to the public and had "a public function, purpose or operation".[22]
[107]
[67] The supervision order in this case does not regulate a private relationship between private entities, but, contrary to the applicant's submissions, it did resolve a justiciable dispute between the Attorney-General and the present applicant as to whether a supervision order should be made and its terms. The fact that the Attorney-General brought the proceeding does make the order "of a public nature".
[108]
[68] Viewing those words in isolation, the order might be thought to be of a public nature, being in the form of a public declaration of the applicant's rights and obligations. However, as Bowskill J observed in Boyy:[23]
[109]
"It is important to construe the definition in s 7 of the Statutory Instruments Act as a whole, including by reference to the types of instrument contemplated in s 7(3)."
[110]
Doing so, it is not apparent that a supervision order is a "statutory instrument" within the meaning of that section.
[111]
[69] While the supervision order defined the rights and obligations of the respondent, it did not purport to regulate the rights or liabilities of any other person. It was a judicial determination of the respondent's rights and liabilities in the context of civil litigation between parties to a dispute. I am not persuaded that the supervision order that resolved that dispute is an instrument "of a public nature" within the meaning of s 7 of the SIA.
[112]
Did the Court "unilaterally" affect a right or liability?
[113]
[70] The respondents submit that a supervision order does not "unilaterally" affect the rights of another person, since it is only made after an adjudicative process in which the Court determines whether to grant an order following hearings in which the affected party is entitled to fully participate. In reply, the applicant submits that the proper distinction is between unilateral acts (such as the issuance of a rule or order) and consensual acts (such as the making of a contract). It submits that the making of the order was unilateral, notwithstanding the opportunity that the applicant had to be heard. He notes that, even if the parties had consented to the making of an order, it remained for the Court to consider whether to exercise its discretion to make it.
[114]
[71] The meaning of "unilaterally" in s 7(3) is not determined simply by the distinction made by Thomas J in Blizzard v O'Sullivan between the exercise of an administrative power that unilaterally affects the rights of another person and the making of a document in the exercise of a power to enter into a contract. Thomas J was concerned in that specific context with contract cases, but was disposed to accept a submission that the character of a statutory instrument may be described as "legislative, public or having an effect through unilateral exercise of power".
[115]
The word "unilaterally" in s 7(3) is not used simply to distinguish between an act that is unilateral and one which is bilateral or consensual. Having regard to its context, it certainly embraces the process of acting or reaching a decision without the agreement of another or others. The word "unilateral" has a variety of meanings, including "undertaken or performed by one side only" or "concerned with or considering only one side of a matter or question; one-sided".[24]
[116]
[73] The statutory context suggests a document, including a regulation, by-law, proclamation or notification of a public nature, that is issued by an authority (typically a legislative or administrative body), that is directed to the public (or a section of the public) and that affects rights or liabilities. Such an instrument may be made without consultation, let alone without the agreement of the persons to whom it is directed and who may be affected by it.
[117]
[74] Having regard to its context, the statutory term does not seem to describe a judicial determination of the rights of parties in private litigation. This is despite the fact that a court order, like the supervision order in this case, is not the product of a bilateral or multi-lateral agreement. Having regard to the section as a whole, the term "statutory instrument" does not appear to apply to a court order that is directed to only a party to litigation and that affects only the rights or liabilities of that party. It might apply to a court issuing a practice direction or rule to the public in something akin to a legislative or administrative capacity.
[118]
Conclusion - the supervision order is not a "statutory instrument"
[119]
[75] A court order that is the product of a judicial process in which the parties are heard and in which the parties' rights are determined, as distinct from a unilateral exercise of a legislative or administrative power, does not readily fall within the definition of a "statutory instrument". It does not have the public function, purpose or operation required of a statutory instrument. It is not made "unilaterally" in the sense that s 7(3) uses that word.
[120]
[76] Therefore, had I been required to determine the applicant's alternative submission on the assumption that the decision had not been made under the DPSOA, I would not have concluded that the supervision order is a "statutory instrument" within the meaning of s 7 of the SIA.
[121]
[77] The applicant has succeeded upon his principal submission. The decision was made "under an enactment", having been made under the DPSOA. The applicant is entitled to obtain a statement of reasons regarding the decision to prohibit him from having in-person contact with the person named in the first respondent's direction.
[122]
[78] Subject to any submissions to the contrary, I propose to grant the form of relief claimed by the applicant, namely:
[123]
Declare that the applicant is entitled to a statement of reasons under s 33 of the Judicial Review Act1991 (Qld).
The respondents provide the applicant with a statement of reasons within 28 days.
The respondents pay the applicant's costs of and incidental to the application.
[124]
[79] Finally, it should be made clear to the applicant and others that my decision turns on a question of law about whether the decision in question was made "under an enactment". My decision says nothing about the merits of the decision, let alone its vulnerability to judicial review. While the first respondent declined to provide a statement of reasons under the JRA, she helpfully explained to the applicant in writing why the decision was made. That explanation seems rational and reasonable. The disposition of this application is not intended to provide any encouragement to the applicant to pursue an application to review the decision or any subsequent decision to like effect. The provision of a statement of reasons under the JRA may enable him to obtain legal advice about the utility or futility of doing so.
[10]Tang at 123-124 [65], quoting Aronson, Dyer and Groves, Judicial Review of Administrative Action (Thomson Reuters, 2004, 3rd ed) 73-74. Emphasis in original.
[132]
[13] Compare King v Director of Housing(2013) 23 Tas R 353 at 370 [64] where the decisions derived their force from the contractual relationship between the parties.
[16]The Proprietors - Rosebank GTP 3033 v Locke & Anor[2016] QCA 192 at [132] ("Locke") where the explanatory note to the 1993 amendments is quoted; Boyy v Executive Director of Specialist Operations of Queensland Corrective Services[2019] QSC 283 at [35] ("Boyy").