Masters v The State of Queensland and Anor

[1] DOUGLAS J: On 2 March 1987 the applicant, Peter George Masters, was convicted of murder and sentenced to life imprisonment. He served the first 2½ years of his sentence in maximum security, and the following 4½ years in medium security. From then until 7 April 2000 his sentence was served on a prison farm.

[2] On 19 July 1999 the Queensland Community Corrections Board ("the Board") approved that the applicant be granted leave of absence for the purpose of, inter alia, seeking and engaging in employment. There were no conditions attached thereto.

[3] On 28 July 1999 the Board approved that the applicant be granted "release to work". Again no conditions were attached to that grant.

[4] On 4 October 1999 an instrument of grant of leave of absence was executed, authorising the applicant's release to work at a particular place of employment, and subsequently on 28 February 2000, the General Manager of the Townsville Correctional Centre signed an instrument of grant of leave of absence for the applicant to work at an alternative place of employment. He was progressively granted further weekly absences of leave in a similar form.

[5] On 7 April 2000 the applicant's leave of absence was revoked and upon his return to prison he was transferred from the prison farm to a maximum security detention centre.

(a) the decision to revoke the leave of absence; or

(b) the decision to transfer him from farm placement to

He has been advised by the Regional Community Corrections Board that no charges will be laid against him in connection with his transfer to maximum security.

[7] Further, on 4 October 2000 the Sentence Management Unit advised the applicant that he would be returned to the prison farm subject to the Serious Offenders' Board confirming the move, and that this would take approximately four months to implement. He was told that after six more months on the prison farm he could then apply for leave of absence to be reinstated, but that another four months would elapse whilst that application was being reviewed.

[8] It is submitted that the consequence of all of the foregoing is that by the time of the hearing, some six months had elapsed since the revocation of the leave of absence and his transfer to maximum security, and no reasons have been given as to why these things have occurred. It is submitted that the consequence of the revocation of leave, and the transfer to maximum security, is that at least another fourteen months will elapse before any decision is made on the question of reinstatement of the leave of absence.

[9] Subsequent to the decision to revoke his leave of absence the applicant's solicitors made numerous requests for reasons. A response was forthcoming on 5 May 2000 which read relevantly:

"Information that formed the basis of the decision to revoke your client's grant of leave of absence, is the subject of a claim of public interest immunity. In this regard, a certificate has been provided by the Attorney-General pursuant to section 36 of the Judicial Review Act 1992.

Having regard to the issue of the certificate by the Attorney-General and to section 37(1)(b) of the Judicial Review Act, the Department is not required and does intend to provide a statement of reason (sic) to your client in relation to the decision."

[10] The applicant's counsel submitted that notwithstanding the wording of the last sentence, it is apparent that the Department intended to say that it did not intend to provide a statement of reasons. I agree with this. In the event, no statement of reasons has been given.

[11] The Attorney-General's certificate pursuant to s 36 of the Judicial Review Act 1992 ("the JR Act") is relied upon by the first respondent for its refusal to make a statement of reasons.

[12] It is clear that in relation to the first respondent there are two material decisions which are:

(a) the revocation of the applicant's leave of absence; and

(b) the decision to decline to furnish him with a statement

As submitted by the first respondent's counsel, this is so because the applicant now has a copy of the certificate given by the Attorney-General under s 36 of the JR Act.

[13] The power to grant leave of absence is one which is discretionary and is found in s 61(1)(b) of the Corrective Services Act 1988 ("the 1988 Act"). By that section the first respondent is empowered, in the exercise of its discretion, to grant such leave. Such leave can be revoked pursuant to s 63 of the 1988 Act. The applicant says that he was not given an opportunity to be heard before his leave was revoked.

[14] There is a reluctance in the courts to review what are known as "prison management decisions". Some old interstate authorities suggest that prison management decisions are not examinable in the courts at all, see Vezitis v McGeechan (1974) 1 NSWLR 718 at 721. Even before the enactment of the JR Act, the better view was that they were examinable, but that "bad faith ... is the point at which administrative review of the courts would become necessary". See McEvoy v Lobban (1990) 2 Qd R 235 at 241 per Thomas J (Lee J agreeing). Note also the views of Macrossan CJ at 236-237 (with whom Lee J also agreed). See also Gray v Hamburger [1993] 1 Qd R 595 at 599 per Byrne J.

[15] Since the enactment of the JR Act there has been the decision in Re Walker [1993] 2 Qd R 348-351 where a similar view was reached.

[16] More modern interstate authority takes the view that a jurisdiction to review does exist, but that a court would be reluctant to exercise it in relation to prison management decisions: Modica v Corrective Services Commission (NSW) (1994) 77 A Crim R 82 at 87-88 per Dunford J.

[17] The starting point is that a prisoner has no right to leave of absence. It is a privilege. An administrative decision pursuant to s 61 of the 1988 Act to grant leave of absence could hardly give rise to a "legitimate expectation" of further grants as that term is used in cases such as Kioa v West [1985] HCA 81; (1985) 159 CLR 550, particularly at 582.

[18] It is a question then to decide what is the obligation of an authority purporting to bring to an end a grant of leave of absence. It is in my view an obligation to tell a prisoner that a decision has been made, not that it is going to be made. I am of the view that the decision to revoke this prisoner's leave of absence and to place him back in maximum security custody was one of those "prison management decisions" which a court such as this should not review. There is no suggestion that the authorities acted in "bad faith" in any respect.

[19] There remains the question of whether or not a review should be had of the first respondent's decision to decline to furnish the applicant with a statement of reasons. It was submitted by counsel for the first respondent that his client had formed the view that a statement of reasons would be false or misleading if it did not include the information to which the Attorney-General's certificate related and accordingly declined to furnish a statement of reasons. The evidence bears this out. Further, that this might be a sequel to the giving of such a certificate under s 36 is exactly what was contemplated by s 37(1)(b) of the JR Act.

[20] Section 37(3)(b) requires that the person who sought the statement of reasons be told two things - that a statement will not be given and the reason why it will not be given. As submitted the applicant has been told each of these things and no more is required by the JR Act.

[21] Even if there was some deficiency in the response to the request for a statement of reasons, that would not lead, ipso facto, to the setting aside of the revocation of the applicant's leave of absence. Further, given that the applicant now has a copy of the s 36 certificate given by the Attorney-General, the other relief sought has no practical utility.

[22] There was some discussion at the hearing as to whether or not the applicant's leave was revoked on an emergency basis. In the event this does not appear to have been so. In my view it does not matter because the decision of the first respondent was, as I found, a decision in relation to prison management.