ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW
– PROCEDURAL FAIRNESS – GENERALLY – where the
respondent
issued a maximum security order against the applicant (“the MSO
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW– PROCEDURAL FAIRNESS – GENERALLY – where therespondentissued a maximum security order against the applicant (“the MSODecision”) – where the applicant submitsthat the decision-makerfailed to give due and proper consideration to matters set out in theapplicant’s submissions –where the respondent submits that therehas been no practical unfairness to the applicant – whether thedecision-maker breachedthe rules of natural justiceADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW– UNREASONABLENESS – where the respondent made adirection not topermit any contact associations by the applicant with other prisoners in themaximum security unit (“the NoAssociation Decision”) – wherethe applicant submits that the decision-maker failed to take appropriateprocedural steps
– where the decision-maker considered, among other
things, the recommendations of a forensic and clinical psychologist and
the
applicant’s human rights – whether the decision was so unreasonable
that it lacked an evident and intelligible justification
when all relevant
matters were considered
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW
– RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER –
where the
respondent made the No Association Decision – where the applicant submits
that the decision-maker failed to consider
the applicant’s last recorded
incident, the lack of any history of violence against prisoners and failed to
give proper consideration
to the applicant’s human rights – where
the decision-maker considered the applicant’s violation history and the
applicant’s risk of violence but failed to consider the effect on the
applicant’s human rights – whether the decision-maker
failed to take
into account a relevant consideration
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW
– IRRELEVANT CONSIDERATIONS – where the respondent
made the No
Association Decision – where the applicant submits that the decision-maker
considered and placed weight on the
applicant’s self-reporting to a
forensic and clinical psychologist – whether the decision-maker took an
irrelevant consideration
into account
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW
– ERROR RELATING TO FACTS – where the statement of
reasons contains
a finding of fact that the applicant had an extensive history of problematic
institutional behaviour – where
the applicant submits that the finding was
given significant weight – where the respondent submits that the finding
was open
on the evidence – whether the finding of fact was incorrect and
an error of law
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the respondent
made the MSO Decision and the No Association Decision (“the
Decisions”) – where the applicant submits that the failure of the
decision-maker to take the minimal steps available
constitutes treatment which
is cruel, inhuman or degrading – where the respondent, notwithstanding the
onus borne with respect
to demonstrating that any limits imposed on human rights
are justified, did not call any evidence about the effect of solitary
confinement
– whether the Decisions are unlawful because they are
incompatible with the applicant’s right to not be treated or punished
in a
cruel, inhuman or degrading way
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the applicant
submits that the failure of the respondent to take steps
to identify and apply
changes to the applicant’s treatment regime by which his circumstances
could be improved constitutes
treatment which contravenes, and continues to
contravene, his right to liberty and security of the person – where the
applicant
submits that, notwithstanding that the applicant had been imprisoned,
he still retained a form of residual liberty – whether
the Decisions are
unlawful because they are incompatible with the applicant’s right to
liberty and security of the person
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the applicant
submits that he is subject to hardship or constraint beyond
the hardship or
constraint that all prisoners experience by virtue of being deprived of their
liberty – where the respondent
has not satisfied the onus of demonstrating
that the limitation is justified – whether the Decisions are unlawful
because they
are incompatible with the applicant’s right to humane
treatment when deprived of liberty
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(February 2018)
Judgment (644 paragraphs)
[1]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - GENERALLY - where the respondent issued a maximum security order against the applicant ("the MSO Decision") - where the applicant submits that the decision-maker failed to give due and proper consideration to matters set out in the applicant's submissions - where the respondent submits that there has been no practical unfairness to the applicant - whether the decision-maker breached the rules of natural justice
[2]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS - where the respondent made a direction not to permit any contact associations by the applicant with other prisoners in the maximum security unit ("the No Association Decision") - where the applicant submits that the decision-maker failed to take appropriate procedural steps - where the decision-maker considered, among other things, the recommendations of a forensic and clinical psychologist and the applicant's human rights - whether the decision was so unreasonable that it lacked an evident and intelligible justification when all relevant matters were considered
[3]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - FAILURE TO CONSIDER - where the respondent made the No Association Decision - where the applicant submits that the decision-maker failed to consider the applicant's last recorded incident, the lack of any history of violence against prisoners and failed to give proper consideration to the applicant's human rights - where the decision-maker considered the applicant's violation history and the applicant's risk of violence but failed to consider the effect on the applicant's human rights - whether the decision-maker failed to take into account a relevant consideration
[4]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS - where the respondent made the No Association Decision - where the applicant submits that the decision-maker considered and placed weight on the applicant's self-reporting to a forensic and clinical psychologist - whether the decision-maker took an irrelevant consideration into account
[5]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR RELATING TO FACTS - where the statement of reasons contains a finding of fact that the applicant had an extensive history of problematic institutional behaviour - where the applicant submits that the finding was given significant weight - where the respondent submits that the finding was open on the evidence - whether the finding of fact was incorrect and an error of law
[6]
HUMAN RIGHTS - HUMAN RIGHTS LEGISLATION - where the respondent made the MSO Decision and the No Association Decision ("the Decisions") - where the applicant submits that the failure of the decision-maker to take the minimal steps available constitutes treatment which is cruel, inhuman or degrading - where the respondent, notwithstanding the onus borne with respect to demonstrating that any limits imposed on human rights are justified, did not call any evidence about the effect of solitary confinement - whether the Decisions are unlawful because they are incompatible with the applicant's right to not be treated or punished in a cruel, inhuman or degrading way
[7]
HUMAN RIGHTS - HUMAN RIGHTS LEGISLATION - where the applicant submits that the failure of the respondent to take steps to identify and apply changes to the applicant's treatment regime by which his circumstances could be improved constitutes treatment which contravenes, and continues to contravene, his right to liberty and security of the person - where the applicant submits that, notwithstanding that the applicant had been imprisoned, he still retained a form of residual liberty - whether the Decisions are unlawful because they are incompatible with the applicant's right to liberty and security of the person
[8]
HUMAN RIGHTS - HUMAN RIGHTS LEGISLATION - where the applicant submits that he is subject to hardship or constraint beyond the hardship or constraint that all prisoners experience by virtue of being deprived of their liberty - where the respondent has not satisfied the onus of demonstrating that the limitation is justified - whether the Decisions are unlawful because they are incompatible with the applicant's right to humane treatment when deprived of liberty
[9]
Council of Europe: Committee for the Prevention of Torture, 21st General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (10 November 2011)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 7, art 10, art 29
[103]
UN General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners, 70th sess, UN Doc A/RES/70/175 (8 January 2016), r 1, r 36, r 43, r 44, r 45
[104]
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)
[105]
Human Rights Committee, General Comment No 35: Article 9 (Liberty and security of person), 112th sess, UN Doc CCPR/C/GC/35 (16 December 2014)
[106]
Queensland Corrective Services, Custodial Operations Practice Directive: Prisoner Accommodation Management - Maximum Security Unit, 13 December 2019
[107]
Queensland, Parliamentary Debates, Legislative Assembly, 31 October 2018, 3185 (Yvette D'Ath, Attorney General and Minister for Justice)
[108]
Government of Australia, Guiding Principles for Corrections in Australia (February 2018)
[109]
F Nagorcka and K Blore for the Attorney-General intervening
[110]
P Morreau for the Queensland Human Rights Commission
[111]
GR Cooper, Crown Solicitor for the first intervener
[112]
Queensland Human Rights Commission for the second intervener
[113]
[1] In July 2007, Michael Owen-D'Arcy brutally murdered another man. He stabbed him 41 times and mutilated his corpse. On 7 December 2010, he was convicted of that murder and a life sentence was imposed. The sentencing judge described what he did as "abhorrent and violent in a high degree". He went on to say: "In view of the nature and degree of the risk to public safety he poses and in all probability will continue to pose indefinitely, the most careful scrutiny should be given to any application for parole that he may ever make".
[2] In January 2011, he was classified as a maximum security prisoner. In the three years which followed that classification he was convicted of a number of other offences, including the attempted murder of a corrective services officer. That was described by the sentencing judge as "cold, calculated and a callous act".
[3] In January 2013 a Maximum Security Order ("MSO") was issued with respect to the applicant. A new order has been issued approximately every six months since then. This application seeks to review the decision imposing an MSO for the period from 18 June 2020 to 16 December 2020. The applicant claims that, in deciding to issue the MSO the decision-maker:
[114]
(a) failed (among other things) to afford him natural justice, and
[115]
(b) breached a number of the rights the applicant enjoys pursuant to the Human Rights Act2019 ("HRA").
[116]
[4] The applicant seeks a review under the Judicial Review Act1991 ("JRA") of the decisions of the respondent to:
(b) make a direction pursuant to s 62(1)(a) of the CSA not to permit any contact associations by the applicant with other prisoners in the Maximum Security Unit ("MSU") without the approval of the authorised delegate for the duration of the consecutive MSO ("the No Association Decision").
[119]
[5] In the alternative, the applicant seeks relief under s 59 of the HRA.
[120]
[6] The applicant seeks the following relief:
[121]
(a) An order that the MSO Decision be set aside, ab initio, and remitted to the respondent to be dealt with according to law,
[122]
(b) An order that the No Association Decision be set aside, ab initio, and remitted to the respondent to be dealt with according to law,
[123]
(c) In the alternative to (a), an order pursuant to s 59 of the HRA that the MSO Decision be set aside, ab initio, and remitted to the respondent to be dealt with according to law,
[124]
(d) In the alternative to (b), an order pursuant to s 59 of the HRA that the No Association Decision be set aside, ab initio, and remitted to the respondent to be dealt with according to law, and
[125]
(e) The respondent pay the applicant's costs of and incidental to the application.
[126]
[7] The decision was made by Ms Samantha Newman, an Executive Director within the Department of Corrective Services. In any consideration of the reasons given and the determinations made by a decision-maker it is important to bear in mind the parameters of that person's authority. The difference in authority between the respondent and Ms Newman causes difficulty when considering those aspects of the applicant's case which rely upon the absence of action by the decision-maker. While the decision made is, ultimately, the responsibility of the respondent, the decision-maker did not have all the powers of the respondent.
[8] Ms Newman had been delegated the powers under ss 12-14 of the CSA to make and review a decision as to a prisoner's security classification and, under s 60 and s 61, to make MSOs.
[9] In this case, Ms Newman's power was quite confined. She was not standing in the shoes of the Chief Executive of Queensland Corrective Services.
[10] Part of the argument advanced for the applicant concerned the conditions under which he was being held, in particular, whether there were less restrictive means by which the risks associated with the applicant could be managed. It was put this way in argument:
[127]
"it is to the content of the directions, including absences .. Or omissions from that decision that most of the grounds are directed. It is not suggested that an MSO was not capable of being lawfully made. ... It is contended that the MSO containing directions which made no provision for progress towards fewer restraints and possible associations with other prisoners in MSU was not unlawfully [sic lawfully] made. So in one sense, of the complaint - and this very much goes across most or all of the grounds - is towards that specific aspect of the two orders which was made, rather than an attack on the idea of administrative segregation as the subject or an attack on administrative segregation or MSO orders as being potentially appropriate to the applicant at this point of time in his development and rehabilitation."
[128]
[11] It was not, though, within Ms Newman's remit to change the terms of the Maximum Unit Security Management Plan. The decision she was empowered to make was limited to whether or not the applicant should be subject to an MSO. That power includes the ability, under s 62, to make directions about the extent to which:
[129]
(a) a prisoner is to be separated from other prisoners accommodated in the MSU, and
[130]
[12] Apart from the matters in s 62, the way in which a prisoner the subject of an MSO was treated was not for Ms Newman to determine. But, the nature of the Maximum Security Unit Management Plan - the conditions it imposed and the provision it made for reintegration - was something which she could take into account in making her decision.
[13] The applicant argued that the fact that Ms Newman had not made certain orders or directions demonstrated that the MSO was not lawfully made. I will deal with that below.
[14] When I deal with the decisions and the reasons given for them, I will refer to Ms Newman or the decision-maker rather than the "respondent". I will refer to the "respondent" when dealing with matters outside Ms Newman's purview and the general statutory obligations.
[131]
[15] The applicant is currently imprisoned in the MSU of the Brisbane Correctional Centre. His parole eligibility date is 7 August 2025.
[16] The applicant is serving the following sentences:
[132]
Killed victim by multiple stab wounds in a "ferocious and sustained attack on a man apparently lying on his bed".
[133]
Serious assault of working corrective services officer
[134]
12 months (concurrent with 12 month sentence [#2])
[135]
Serious assault of working corrective services officer
[136]
Slashed a corrective services officer four times with a "shiv" (a razor blade connected to paddle pop sticks), including a wound to the neck area.
[137]
Bit off a portion of a corrective services officer's ear.
[138]
[17] Since 20 January 2011, the applicant has been classified as maximum security.
[18] On or about 29 January 2013, an MSO was issued against the applicant, pursuant to s 60 of the CSA, on the basis that he posed a high risk of killing or seriously injuring other prisoners or other persons with whom he may come into contact. Since then, the applicant has been issued with consecutive MSOs and has been incarcerated in the MSU since 29 January 2013.
[19] Ms Newman made the MSO Decision on 17 June 2020. The MSO Decision is effective from 18 June 2020 to 16 December 2020. The MSO Decision was made on the ground set out in s 60(2) of the CSA:
[139]
"The prisoner is currently classified under the security rating of maximum security and it is believed that -
[140]
(ii) There is a high risk of the prisoner killing or seriously injuring other prisoners or persons with whom the prisoner may come into contact."
[141]
[20] Ms Newman made the No Association Decision on the same date (together the MSO Decision and No Association Decision are referred to as "the Decisions"). The No Association Decision provides:
[142]
The prisoner is not permitted contact associations with other prisoners in the Maximum Security Unit without approval from the authorised delegate. Any association between maximum Security Unit prisoners must comply with each prisoners' Maximum Security Unit Management Plan."
[143]
(a) The prisoner is to be accommodated in a single cell within the MSU.
[144]
(b) The prisoner is not permitted contact associations with other prisoners in the MSU without approval from the authorised delegate. Any association between MSU prisoners must comply with each prisoner's Maximum Security Unit Management Plan.
[145]
(c) The prisoner is permitted two telephone calls of 10 minutes duration each week.
[146]
(d) In accordance with section 4(1)(d) of the Corrective Services Regulation2017, the prisoner must be given the opportunity to exercise, in the fresh air, for at least two daylight hours a day, unless a doctor or nurse advises that it would not be in the interests of the prisoner's health to exercise for a stated period or indefinitely. Additional out of cell exercise may be approved by the General Manager in accordance with the Maximum Security Unit Management Plan.
[147]
(e) The prisoner is entitled to one non-contact visit per week of one hour duration. Additional non-contact visits may be approved by the General Manager in accordance with the Maximum Security Unit Management Plan.
[148]
[22] The applicant requested a statement of reasons on 10 July 2020. He was given the statement on or about 5 August 2020. The reasons were structured in the following way:
[149]
(e) Reasons for the decision to issue a consecutive Maximum Security Order,
[150]
(f) Reasons for the decision not to permit contact associations within the MSU.
[151]
[23] In those reasons, the decision-maker noted, among other things, that the applicant had remained breach and incident free since the commencement of the previous MSO on 24 December 2019. The decision-maker also observed that the applicant's last recorded incident was on 10 June 2014 and that this "is a significant period".
[152]
[24] Apart from the JRA, the relevant legislation is the CSA and the HRA.
[25] The purpose of the CSA is contained in s 3:
[153]
(1) The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.
[154]
(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.
[155]
(b) the special needs of some offenders by taking into account -
[156]
(i) an offender's age, sex or cultural background; and
[157]
[26] Division 6 of the CSA contains the provisions relating to MSOs. So far as is relevant, they provide:
[158]
(1) The chief executive may make an order (the maximum security order) that a prisoner be accommodated in a maximum security unit.
[159]
(2) However, the chief executive may direct that the prisoner be accommodated for the whole or a part of the period for which the maximum security order is in effect in an area in the corrective services facility other than a maximum security unit.
[160]
(3) The maximum security order may be made only if -
[161]
(a) the prisoner's security classification is maximum; and
[162]
(b) the chief executive reasonably believes that 1 or more of the following apply -
[163]
(i) there is a high risk of the prisoner escaping, or attempting to escape;
[164]
(ii) there is a high risk of the prisoner killing or seriously injuring other prisoners or other persons with whom the prisoner may come into contact;
[165]
(iii) generally, the prisoner is a substantial threat to the security or good order of the corrective services facility.
[166]
(4) The maximum security order must not be for a period longer than 6 months.
[167]
(1) The chief executive may make a further maximum security order for a prisoner to take effect at the end of an existing maximum security order.
[168]
(2) The further maximum security order must be made not more than 14 days before the end of the existing maximum security order.
[169]
(3) However, the chief executive must not make the further maximum security order unless -
[170]
(a) not more than 28 days before the end of the existing maximum security order, the chief executive gives written notice to the prisoner advising the prisoner that -
[171]
(i) the chief executive is about to consider whether a further maximum security order should be made; and
[172]
(ii) the prisoner may, within 14 days after receiving the written notice, make submissions to the chief executive about anything relevant to the decision about making the further maximum security order; and
[173]
(b) the chief executive considers any submission the prisoner makes under paragraph (a)(ii).
[174]
(1) A maximum security order for a prisoner must include, if it is practicable, directions about the extent to which -
[175]
(a) the prisoner is to be separated from other prisoners; and
[176]
(2) The privileges the prisoner may receive while subject to the maximum security order must be limited to privileges -
[177]
(a) that can be enjoyed within the maximum security unit or in the area in which the prisoner is accommodated; and
[178]
(b) the enjoyment of which, in the circumstances of the order, may reasonably be expected not to pose a risk to the security or good order of the corrective services facility.
[179]
(3) The maximum security order may include directions about the prisoner's access to programs and services, including training and counselling.
[180]
(4) The chief executive may provide for the prisoner's reintegration into the mainstream prisoner population of the corrective services facility before the period of the maximum security order ends."
[181]
[27] The word "privileges" in s 62(1)(b) is defined as the privileges set out in a regulation. That regulation is the Corrective Services Regulation2017, in particular, s 18:
[182]
"For schedule 4 of the Act, definition privileges, the following are privileges for a prisoner -
[183]
(a) participating in an activity, course or program;
[184]
(b) making or receiving phone calls, other than phone calls to or from -
[185]
(c) associating with a particular prisoner or group of prisoners;
[186]
(d) using electronic media or an entertainment device;
[187]
(g) buying anything other than essential toiletries, writing materials and stamps;
[188]
[28] The applicant's grounds may be divided into two categories: the judicial review grounds and the human rights grounds.
[189]
[29] The applicant's judicial review application has five grounds:
[190]
(c) Ground 4: Relevant and Irrelevant Considerations
[191]
[30] The applicant submits that the Decisions breached the following three human rights:
[192]
(a) Section 30(1): the right to humane treatment when deprived of liberty.
[193]
(b) Section 29: the right to liberty and security of person.
[194]
(c) Section 17(b): the protection from torture and cruel, inhuman or degrading treatment, specifically the prohibition on a person being treated or punished in a cruel, inhuman or degrading way.
What must a decision-maker do in order to afford procedural fairness in these circumstances?
[197]
[31] In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam,[1] Gleeson CJ said that "[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice".[2] That statement was approved by the majority (Hayne, Crennan, Kiefel and Bell JJ) in Assistant Commissioner Condon v Pompano Pty Ltd.[3]
[32] A decision-maker must consider the submissions made to it. In Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs,[4] Gummow and Callinan JJ said that a failure to respond "to a substantial, clearly articulated argument relying upon established facts" was a failure to afford natural justice.[5] This was adopted by a unanimous High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia.[6]
[33] The question that flows from that statement is: what will constitute a failure to respond? This was addressed by the Full Court of the Federal Court in Mundele v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[7] where a unanimous court considered a decision of the Administrative Appeals Tribunal ("AAT") affirming a decision of a delegate of the respondent to revoke the cancellation of a visa. In that case, the appellant had been convicted of serious criminal offences and his visa had been cancelled by reason of him not passing the relevant character test. The question being considered was whether the AAT had considered relevant material.
[34] In Mundele, the decision being considered was one made by a tribunal which proceeded on an adversarial basis and where there were documents which set out, more or less, the competing contentions of the parties. That is not the case here. Ms Newman did not proceed upon a clearly defined "case" advanced by a prisoner. The closest to that is a letter from the Prisoners Legal Service ("PLS") on behalf of the applicant in which arguments are advanced against the making of the orders which were eventually made. Nevertheless, the principles relied upon by the Federal Court are of general application:
[198]
(a) it is not necessary for a decision-maker to refer to every piece of evidence and every contention made by an applicant in written submissions,
[199]
(b) an administrative body or decision-maker is not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error",
[200]
(c) nor is it necessarily required to provide reasons of the kind that might be expected of a court of law,
[201]
(d) the inference that a decision-maker has failed to consider an issue may be drawn from a failure to expressly deal with that issue in the reasons,
[202]
(e) such an inference should not too readily be drawn whether reasons are otherwise comprehensive, and the issue has at least been identified at some point, and
[203]
(f) where there is an issue raised by the evidence advanced on behalf of an applicant and submissions made and that issue, if resolved one way, would be dispositive of the matter, then a failure to deal with it in the reasons may raise a strong inference that it has been overlooked.[8]
[204]
[35] In considering the matters set out above a court will also bear in the mind that the exercise is not expanded to permit review of the merits.[9]
[205]
Ground 1 - breach of the rules of natural justice
[206]
[36] The applicant submits that Ms Newman breached the rules of natural justice within the meaning of s 20(2)(a) of the JRA, by failing to give due and proper consideration to matters set out in the applicant's submissions.[10] As a result, she breached s 20(2)(c) of the JRA by failing to exercise her jurisdiction to deal with the applicant's case as presented to her.
[37] The applicant submits that Ms Newman failed to give due and proper consideration to the submissions made on his behalf by the PLS:
[207]
(a) that the applicant's MSO Management Plan be reviewed,
[208]
(b) the review incorporate updated behavioural objectives, including short term and long term goals to facilitate his reintegration from the MSU,
[209]
(c) a Pre-Association Assessment Report be completed, and
[210]
(d) consideration be given to approving the applicant's association with another prisoner in the MSU.
[211]
[38] The applicant also argues that proper consideration was not given to the expert evidence which called for a reintegration strategy. Dr Madsen, a forensic and clinical psychologist has, since 1 July 2016, consistently recommended that particular measures, relating to the use of restraints and therapeutic psychological sessions, be put in place so as to allow the applicant to progress through the MSU.
[39] This is also supported, says the applicant, by s 63(4) of the CSA as it "indicates a policy in the legislation that reintegration is one of the objectives of maximum security orders".
[40] Section 63(4) of the CSA provides:
[212]
"(4) The chief executive may provide for the prisoner's reintegration into the mainstream prisoner population of the corrective services facility before the period of the maximum security order ends."
[213]
[41] The applicant also seeks to draw support from the "Prisoner Accommodation Management - Maximum Security Unit" directive issued by the Queensland Corrective Services which provides:
[214]
Planning for a prisoner's progression back into general prison accommodation must commence upon the prisoner's arrival at the MSU. Reintegration of a prisoner into general prison accommodation should be undertaken on a staged, progressive basis and in a manner that is consistent with the prisoner's identified coping skills. For example, staged reintegration for a particular prisoner could be facilitated through the prisoner's short term placement in suitable accommodation."
[215]
[42] The applicant submits that the Statement of Reasons "has merely paid lip service to the submissions made by PLS" in relation to the applicant's short and long term objectives.
[43] The relevant passage of the Statement of Reasons reads "I considered that [the short and long term objectives] did require further review and that suitable behavioural options would be explored in the future..."
[44] The essence of the applicant's complaint was contained in this submission made during the hearing:
[216]
"It is to the content of the directions, including absences or omissions from that decision that most of the grounds are directed. It is not contended that an MSO was not capable of being lawfully made. ... It is contended that the MSO containing directions which made no provision for progress towards fewer restraints and possible associations with other prisoners in MSU was not lawfully made. So in one sense, of the complaint - and this is very much goes across most or all of the grounds - is towards that specific aspect of the two orders which was made, rather than an attack on the idea of administrative segregation ..."
[217]
[45] In the circumstances, the applicant submits that Ms Newman breached the rules of natural justice, within the meaning of s 20(2)(a) of the JRA and failed to exercise her jurisdiction, in breach of s 20(2)(c) of the JRA.
[46] The respondent submits that there has been no 'practical unfairness' to the applicant and that this ground is not made out.
[47] The Statement of Reasons discloses the approach taken by the respondent. The following can be drawn from those reasons. Ms Newman:
[218]
(a) was aware of the substance of the submissions made on the applicant's behalf by the PLS - she incorporated them by reference into her reasons,
[219]
(b) had written to the applicant about the submissions and invited his views in relation to them and what he saw as "the best way forward" for his progression within the MSU,
[220]
(c) had received and considered the applicant's response,
[221]
(d) had taken into account the aspects of the submissions about the applicant's management and progression with the MSU, and that "further short and long term objectives should be identified and reviewed", and
[222]
(e) concluded, in direct response to the submissions:
[223]
(i) the applicant's short and long term objectives require further review,
[224]
(ii) there was no alternative way to adequately manage the applicant's risk of violence that was less restrictive and reasonably available, and
[225]
(iii) the six-month MSO was appropriate to allow for weekly intervention to be facilitated.
[226]
[48] The reasons include the following conclusion. After referring to the applicant's short and long term objectives, Ms Newman said:
[227]
"I considered that this did require further review and that suitable behavioural options would be explored in the future through his further engagement in individual intervention and participation in MSU Management Plan Review Panels giving consideration to Mr Owen-Darcy's views, the recommendations of Dr Madsen and that the safety of staff and others."
[228]
[49] As to the issue of the restrictions - both physical and more generally - on Mr Owen-Darcy's movement, Ms Newman said:
[229]
"I also considered whether there was a less restrictive and reasonably available way to manage prisoner Owen-Darcy's risk of violence other than a consecutive MSO. I did not believe there was any such alternative available that could adequately manage the risk he would present in the general prison population."
[230]
[50] The particular items set out above, read in conjunction with the rest of the reasons, demonstrate that consideration was given to the matters set out in the applicant's submissions. There was not a refusal to engage with the submissions made. Within the boundaries of the power delegated to Ms Newman she considered whether or not she could accede to the submissions made by the PLS. The fact that she decided that she could not, does not demonstrate a failure to give the necessary consideration. This ground is not made out.
[231]
[51] The applicant submits that Ms Newman failed to take appropriate procedural steps as part of making the Decisions. It was argued that error was demonstrated because, despite determining that the applicant's short and long term goals for progression through the MSU ought to be reviewed, no such review was undertaken before the Decisions were made. Similarly, no Pre-Association Assessment Report was obtained before the Decisions were made.
[52] The applicant submits that the No Association Decision was unreasonable and illogical given that:
[232]
(a) the applicant had been incident and breach free since 10 June 2014,
[233]
(b) Ms Newman acknowledges that the applicant has done everything that has been asked of him,
[234]
(c) Dr Madsen describes the applicant's risk of violence as "low and non-imminent",
[235]
(d) the respondent should be taking all steps necessary to expedite the applicant's progress and pathway out of solitary confinement,
[236]
(e) the applicant is not in a position to provide or prepare his own Pre-Association Assessment Report, nor to set meaningful short and long term goals to progress through the MSU, and
[237]
(f) in order to make a proper decision in line with the objects of the CSA[11] and in accordance with the Practice Directive,[12] the respondent should have obtained and given proper consideration to a Pre-Association Assessment Report but did not.
[238]
[53] In oral submissions, the applicant clarified that his submission about unreasonableness concerned both unreasonableness of outcome (i.e., in the Wednesbury[13] sense) as well as unreasonableness of process. The applicant conceded that this is a high bar, but submitted that the combination of the legislation, administrative documents, the long period of compliance, the objective of reintegration and the failure to take steps to progress the applicant through the MSU satisfies the test. Further, the failure to take appropriate procedural steps, and, specifically, the failure to complete an MSU Pre-Association Assessment Report, was unreasonable and illogical and breached s 23(g) of the JRA in light of the objects of the CSA.
[54] To be successful on these grounds, the applicant must persuade the court that there is no "evident and intelligible justification"[14] for the Decisions.
[55] The principles which should be applied have been considered in a number of authorities, in particular, Minister for Immigration and Citizenship v Li,[15]Minister for Immigration and Border Protection v Singh,[16] and Minister for Immigration and Border Protection v Stretton.[17] Those principles have been helpfully distilled in Minister for Immigration and Border Protection v SZVFW.[18] In that decision a Full Court of the Federal Court extracted the following principles:
[239]
there is a legal presumption that a statutory discretionary power must be exercised reasonably in the legal sense of that word (Li at [63] per Hayne, Kiefel and Bell JJ; Singh at [43] per Allsop CJ, Robertson and Mortimer JJ; Stretton at [4] per Allsop CJ and at [53] per Griffiths J);
nevertheless, there is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness (Li at [66]; Stretton at [56] per Griffiths J);
the standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker (Li at [66]; Stretton at [8] per Allsop CJ) and [76] per Griffiths J);
the legal standard of reasonableness is not limited to what is in effect an irrational, if not bizarre, decision and an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified (Li at [68]);
in determining whether in a particular case a statutory discretion has been exercised unreasonably in the legal sense, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions (Li at [74]; Stretton at [62] and [70] per Griffiths J);
legal unreasonableness "is invariably fact dependent" and requires a careful evaluation of the evidence. The outcome of any particular case raising unreasonableness will depend upon an application of the relevant principles to the relevant circumstances, rather than by way of an analysis of factual similarities or differences between individual cases (Singh at [48]; Stretton at [10] per Allsop CJ and at [61] per Griffiths J);
the concept of legal unreasonableness can be "outcome focused", such as where there is no evident and intelligible justification for a decision or, alternatively, it can reflect the characterisation of an underlying jurisdictional error (Singh at [44]; Stretton at [12]-[13] per Allsop CJ);
where reasons are provided, they will be the focal point for an assessment as to whether the decision is unreasonable in the legal sense and it would be a rare case to find that the exercise of a discretionary power is legally unreasonable where the reasons demonstrated a justification ( at [45]-[47])."
[240]
[56] The decision of the Full Court was reversed by the High Court in Minister for Immigration and Border Protection v SZVFW[19] but not because of any misstatement of the law for these purposes. Nettle and Gordon JJ summarised the nature of the Court's task in this way:
[241]
"[78] The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable.
[242]
[79] That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.
[243]
[80] Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review.
[244]
[81] How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. ..."
[245]
[57] In his examination of the task of a court, Gageler J emphasised that whether a decision-maker has exercised a power in a manner which is unreasonable does not depend upon the exercise of any discretion by the primary judge. The analogy drawn between judicial review of administrative action and appellate review of judicial discretion by the Court in Li does not mean that a House v The King[20] error must be established in the context of judicial review of administrative decisions. A court should not interfere with an administrator's exercise of discretion just because the Court would have exercised the discretion in a different way.[21]
[58] The evidence which Ms Newman considered included:
[246]
(a) The applicant is serving his fourth custodial episode.
[247]
(b) The applicant pleaded guilty to murder and was sentenced on 7 December 2010.
[248]
(c) The sentencing remarks of Byrne SJA from 7 December 2010 describe the violence of the applicant's conduct which resulted in a conviction for murder and interference with a corpse, and the lack of remorse on his part for his actions.
[249]
(d) The applicant has been classified as maximum security since 20 January 2011.
[250]
(e) On 18 January 2013, the applicant, while remaining classified as maximum security, was released into the general prison population as part of an intensive management plan.
[251]
(f) On 25 and 27 January 2013, the applicant committed serious assaults, grievous bodily harm and attempted murder. The applicant was sentenced for attempted murder and unlawful wounding.
[252]
(g) The sentencing remarks of Boddice J on that occasion note that the attempted murder was "cold, calculated and a callous act".
[253]
(h) The applicant has a significant Queensland criminal history which includes violent offences.
[254]
(i) The applicant was assessed as having a "high baseline risk" during the period of his previous MSO.
[255]
(j) The applicant has been assessed as having a "psychopathic personality".
[256]
(k) The applicant made a statement to Dr Madsen (a forensic and clinical psychologist) that if he was released to the general prison population, and wanted to return to the MSU, he would engage in violence in order to ensure his return.
[257]
(l) Dr Madsen's report of December 2018 notes that the applicant still posed a high risk of future institutional violence and that the only way to evaluate the applicant's progress would involve reducing his restrictions and "effectively giving him 'opportunities' to harm others".
[258]
[59] Ms Newman referred to the recommendations by Dr Madsen that a long-term strategy be developed, and that the applicant participate in weekly intervention sessions against Dr Madsen's report of 27 May 2020 which stated that the applicant's risk of violence had reduced and "could be regarded as low and non-imminent whilst in the [maximum security unit]". She formed the view that further review of the applicant's short and long term objectives would be explored in the future through further engagement in individual intervention and participation in the MSU Management Plan Review Panels.
[60] Ms Newman then referred to the applicant's human rights and weighed them against the human rights of other prisoners and prison staff and considered whether there was a less restrictive and more reasonable way to manage the applicant's risk of violence. She formed the belief that there was not.
[61] In light of these factors, she concluded:
[259]
(a) there remained a high risk of the applicant killing or seriously injuring other prisoners or persons with whom he may come into contact, and
[260]
(b) a six-month order was appropriate to allow for the weekly interventions recommended by Dr Madsen.
[261]
[62] It was argued for the applicant that there was no relevant history of violence against other prisoners and that, while Ms Newman referred to "serious risk to other prisoners" there was no consideration given to the details of any such incidents, such as when they occurred and whether they did in fact give rise to any actual risk. The argument presented was that notwithstanding the reference by Ms Newman to risk to prisoners there was no actual consideration given to that point. It was also contended that the "key issue under consideration for the decision-maker was finding some way in which to make incremental progress towards the ability to associate with other prisoners". That is, with respect, not a completely accurate description of the decision-maker's task. That particular responsibility had not been delegated to her.
[63] The conclusion which was reached can be seen to be drawn from the factors considered. The decision which was made was open to be made on the evidence - it fell within a range of possible, acceptable outcomes.[22] While there was no serious examination of violence to other prisoners, there was the weighty evidence from Dr Madsen on that topic of violence. The applicant complained that the respondent failed to take appropriate procedural steps as part of making the Decisions, that no review was undertaken, and that no Pre-Association Assessment Report was obtained with respect to matters which were outside the authority of the decision-maker. But, as is set out above, some of those steps were beyond the remit of Ms Newman. Apart from that, this was a decision which was rationally open to the decision-maker[23] -there was evidence and other material which was consistent with the conclusion which was drawn. There were matters which had a clear and rational connection with the decision which was reached, e.g., the evidence relating to assessed risk. It cannot be said that the decision was "so unreasonable that it lacked an evident and intelligible justification when all relevant matters were considered".[24]
[64] This ground is not made out.
[262]
Ground 4 - the No Association Decision - failure to take into account relevant considerations and taking into account irrelevant considerations
[263]
[65] The basis for deciding whether a decision-maker has either failed to take into account relevant considerations or has taken into account irrelevant considerations was considered by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs.[25]
[66] I will deal with the "considerations" raised by the applicant although none of them could be said to be dispositive of the matter.
[67] The CSA does not expressly provide for the factors the respondent should consider when making a direction under s 62. The applicant must persuade the Court that the matters he contends the decision-maker failed to consider were, "by implication from the subject-matter, scope and purpose of the Act", matters the decision-maker was obliged to consider.[26]
[68] The applicant submits that the No Association Decision comprised improper exercises of power within the meaning of ss 20(2)(e), 23(a) and 23(b) of the JRA in that Ms Newman took into account an irrelevant consideration and failed to take into account relevant considerations.[27]
[264]
[69] The applicant's behaviour in the MSU is, it was argued, a critical factor in determining his suitability for association, particularly considering the objects of the CSA[28] and the Custodial Operations Practice Directive - Prisoner Accommodation Management - Maximum Security Unit. The applicant contends that the fact that his last recorded "incident" was on 10 June 2014 was not taken into account.
[70] This assertion is not made out. In Ms Newman's reasons she set out a list of 20 documents which she considered. One of those was the applicant's "Violation History" between 6 July 2007 and 20 May 2020. It showed that the most recent "incident" was on 10 June 2014. She expressly referred to that and said: "I noted his last recorded incident was on 10 June 2014, which is a significant period". She also noted that the PLS had submitted that his positive behavioural record over the past five years demonstrated his readiness to progress further in relation to reintegration planning.
[71] The matters referred to in the preceding paragraph were not set out in the section of the Statement of Reasons with the heading "Decision to not permit contact associations within the MSU". But that is not determinative of this point. The mere format in which reasons are set out does not dictate a conclusion that the absence of a reference to a particular point in one section of the reasons means that particular point was overlooked in another area of consideration.
[72] It is a consequence of the acceptance that reasons of this kind should not be subject to overzealous scrutiny that reference to a matter in one part of a set of reasons may satisfy the requirement that it be shown to have been taken into account. It was put this way in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs:[29]
[265]
"[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected." (emphasis added)
[266]
[73] In these reasons Ms Newman has listed a number of findings of fact which she describes as findings of fact she considered when making her decision.
[267]
Relevant Consideration: No history of violence against prisoners
[268]
[74] The applicant contends that the material relied upon by Ms Newman in making the No Association Decision does not disclose any relevant history of violence by the applicant against other prisoners. He says that his instances of institutional violence have related only to prison staff, not other prisoners. This is relevant as the No Association Decision relates to the applicant's contact association with other prisoners. Thus, the applicant argues, the lack of any relevant violent offending against prisoners is a consideration which should have been, but was not, taken into account.
[75] There are two reasons to reject this contention by the applicant. First, the mere fact that violence has been inflicted upon one class of person (prison officer) does not, in the absence of other evidence, preclude reliance upon that violence as indicating a capacity for violence more generally. Secondly, the decision-maker had before her evidence (in the applicant's "Violation History") that the applicant had been involved in two violations involving a prisoner-on-prisoner assault in 2007 and 2009. That history was referred to, and taken into account, by the decision-maker in her Statement of Reasons. It is true that there is little detail in the record of those offences, in particular, who the instigator was. It is also true that, in Dr Madsen's latest opinion (May 2020) he says: "My brief assessment suggests that his risk of violence has reduced and at this time in this context could be regarded as low and non-imminent". He does not, in terms, differentiate between the risk of violence against prison officers and the general prison population. But, if there was an incorrect finding of fact on this point, then it was a finding made within jurisdiction.
[269]
[76] The applicant argues that, with respect to the No Association Decision, Ms Newman failed to give proper consideration to the applicant's human rights, that she failed to identify relevant human rights and, although she identified the right to peaceful assembly and freedom of association as a relevant human right, they were not properly considered.
[77] The applicant submits that Ms Newman paid mere lip service to the HRA rather than giving proper consideration to the human rights in question.[30] Furthermore, she did not take into account the right of the applicant, while deprived of his liberty, to be treated with humanity and with respect for the inherent dignity of the human person.[31]
[78] The question of the applicant's human rights and the decision not to permit contact associations with other prisoners in the MSU was dealt with briefly by Ms Newman. She said:
[270]
"7. I considered the impact of not permitting contact associations within the MSU on prisoner Owen-D'Arcy's human rights, particularly, the right to peaceful assembly and freedom of association under the Human Rights Act2019. As I have stated above, I believed that there was a significant risk of prisoner Owen-D'Arcy killing or seriously injuring other prisoners or persons with whom he may come into contact (persons who also have human rights that I must consider). On that basis, I determined that the limitations on prisoner Owen-D'Arcy's human rights as a result of the direction to not permit contact associations within the MSU without the approval of the authorised delegate was demonstrably justifiable."
[271]
[79] Section 58 of the HRA is considered in detail below. It requires, among other things, that a decision-maker in Ms Newman's position must identify "the human rights that may be affected by the decision" and consider "whether the decision would be compatible with human rights". Ms Newman only identified the right to peaceful assembly and freedom of association which is contained in s 22 of the HRA. The reference to "prisoner Owen-D'Arcy's human rights" does not satisfy the requirements of s 58. It cannot be the case that all the rights provided for in the HRA are rights that "may be affected by the decision". For example, the No Association Decision would not affect the right to be free from forced work (s 18).
[80] Ms Newman did not address rights which might be affected by the decision such as those provided for in s 17(b)[32] or s 30.[33] No consideration was given to them and whether the decision would be compatible with them. The consideration which was given to the rights identified by Ms Newman was superficial at best.
[81] Ms Newman failed to take into account a relevant consideration, namely, the effect of the No Association Decision on the applicant's human rights. The appropriate order to recognise that failure will be considered below.
[272]
[82] The applicant submits that Ms Newman considered and placed weight on the applicant's self-reporting to Dr Madsen which he recorded as: "you are uncertain how you will cope with reintegration and you verbalised some apprehension about how you would respond to sharing a cell or being in overcrowded circumstances for long periods". The applicant submits that:
[273]
(a) this is irrelevant because the contact associations contemplated in the No Association Decision decision-making process are one-on-one contacts between prisoners designed to be an incremental step towards reintegration, and
[274]
(b) whether or not the applicant has expressed uncertainty as to how he will respond to being in a crowded place, is irrelevant to whether the applicant should be permitted to associate with another prisoner in the MSU.
[275]
[83] I do not accept that an expression of doubt by the applicant as to his capacity to cope with reintegration - of any kind - is irrelevant to the consideration needed to be undertaken. While it may not be a compelling factor, it is nonetheless relevant that the applicant had expressed that level of concern.
[276]
Ground 5 - error of law - incorrect finding of fact
[277]
[84] The Statement of Reasons contains a finding of fact that the applicant had an extensive history of problematic institutional behaviour, including "threatening and violent behaviour towards staff and other prisoners".
[85] The applicant submits that this finding was given significant weight, as Ms Newman concluded that there was a high risk of the applicant "killing or seriously injuring other prisoners or persons with whom he may come into contact ... On that basis, I determined that the limitations on prisoner Owen Darcy's [sic] human rights as a result of the direction not to permit contact associations within the MSU without the approval of the authorised delegate was demonstrably justifiable".
[86] So far as the possibility of the applicant being violent towards other prisoners is concerned, the only evidence of actual violence that might support this finding are the notes in the applicant's violation history of two "incidents" of "Assault - Prisoner on prisoner" on 3 August 2007 and 1 March 2009. The entries do not specify whether the applicant was the perpetrator or otherwise involved.
[87] The applicant argues that the finding of fact was incorrect and, in the circumstances where there was either no or insufficient evidence to reach the conclusion, an error of law.
[88] Where a decision-maker decides a question of fact when there is "no evidence" in support of the finding then that is an error of law.[34] What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law.
[89] The respondent submits that the finding about the applicant's problematic institutional behaviour, including "threatening and violent behaviour towards staff and other prisoners", was open on the evidence.
[90] I am satisfied that there was evidence which supported that finding. I accept that the notes on the applicant's violation history are ambiguous, but there was the evidence of the applicant's behaviour towards prison staff and there were the detailed opinions provided over a number of years by Dr Madsen. In 2016 he said that the applicant was "a high risk of future violence". In 2017, he noted that the applicant acknowledged that, if he should be reintegrated to the mainstream and then wished to return to the MSU, then he would be violent in some way to facilitate this. Dr Madsen further said that it was difficult to be confident regarding the applicant's true risk and that it would likely be very high in some circumstances. In 2018, Dr Madsen said: "Little has changed with regards to my opinion of prisoner Owen-D'Arcy's risk, in that, he continues to be a high risk of future institutional violence". Finally, in 2020, Dr Madsen observed a change sufficient for him to note that his "brief assessment suggests that [the applicant's] risk of violence has reduced and at this time in this context could be regarded as low and non-imminent".
[278]
Conclusion on the application for judicial review
[279]
[92] The applicant has succeeded on one of the grounds relied upon. The application for judicial review of the No Association Decision succeeds to that extent.
[93] The parties agree that the respondent is a "public entity" within the meaning of s 9(1)(b) of the HRA and that Ms Newman in exercising delegated power was required to comply with s 58(1) of the HRA. The applicant submits that the Decisions were unlawful for the purposes of s 58(1)(a) of the HRA because they were incompatible with the applicant's human rights.
[94] The Attorney-General and the Queensland Human Rights Commission ("QHRC") intervened in this part of the application pursuant to the rights granted by s 50 and s 51 of the HRA. The Chief Executive adopted the submissions made by the Attorney-General.
[282]
A complaint is made - how should it be analysed?
[283]
[95] When a person in the applicant's position alleges that the HRA has been breached, then there are certain issues that fall to be determined. Some situations will call for more intensive examination of some issues. The considerations include:
[284]
(a) Identification of the decision and the reasons, if any, given for making it.
[285]
(b) Identification of any human rights which are relevant to the decision.
[286]
(c) Determining whether the applicant has shown that the decision limits those human rights. If that is done, then -
[287]
(i) Has the respondent shown that the limits are reasonable: s 13?
[288]
(d) Has the respondent made a decision in a way that is not compatible with human rights: s 58(1)(a)?
[289]
(e) In making the decision has the respondent failed to give proper consideration to relevant human rights: s 58(1)(b)?
[290]
(i) Has the respondent identified the human rights that may be affected by the decision: s 58(5)(a)?
[291]
(ii) Has the respondent considered whether the decision would be compatible with human rights: s 58(5)(b)?
[292]
[96] Some of these issues may overlap, in particular, that of incompatibility.
[293]
[97] The obligations of the respondent are set out in s 58:
[294]
(a) to act or make a decision in a way that is not compatible with human rights; or
[295]
(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.
[296]
(5) For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to -
[297]
(a) identifying the human rights that may be affected by the decision; and
[298]
(b) considering whether the decision would be compatible with human rights.
[299]
(a) an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and
[300]
(b) a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1)."
[301]
[98] The term "compatible with human rights" is defined in s 8:
[302]
An act, decision or statutory provision is compatible with human rights if the act, decision or provision -
[303]
(b) limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13."
[304]
[99] Section 59 deals with the relief or remedy which might be available:
[305]
(1) Subsection (2) applies if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58, unlawful.
[306]
(2) The person may seek the relief or remedy mentioned in subsection (1) on the ground of unlawfulness arising under section 58, even if the person may not be successful in obtaining the relief or remedy on the ground mentioned in subsection (1).
[307]
(3) However, the person is not entitled to be awarded damages on the ground of unlawfulness arising under section 58.
[308]
(4) This section does not affect a right a person has, other than under this Act, to seek any relief or remedy in relation to an act or decision of a public entity, including -
(b) a right to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or an exclusion of evidence.
[311]
(5) A person may seek relief or remedy on a ground of unlawfulness arising under section 58 only under this section.
[312]
(6) Nothing in this section affects a right a person may have to damages apart from the operation of this section."
[313]
[100] The parties agree that the requirements of the "piggy-back" provision of s 59 are satisfied. The Attorney-General submits that s 59 cannot be used to review an act or decision other than the decisions made by Ms Newman.[35] The applicant does concentrate some of his submissions on the "failure" by the respondent to require or to obtain an MSU Pre-Association Assessment Report. As has been referred to above, this was not something which Ms Newman could do.
[101] While the HRA cannot be used to deal with a decision which is not the subject of the judicial review application, the failure or omission, for example, to obtain a particular report or to engage in a defined regime of treatment is part of the background which can be taken into account when considering whether or not the respondent has correctly applied the provisions of the HRA. All the circumstances of the applicant's detention form part of the basis upon which consideration commences and continues.
[102] The particular rights expressed in the HRA which the applicant says have been breached by the respondent are:
[314]
"17 Protection from torture and cruel, inhuman or degrading treatment
[315]
(b) treated or punished in a cruel, inhuman or degrading way; or
[316]
(c) subjected to medical or scientific experimentation or treatment without the person's full, free and informed consent.
[317]
(1) Every person has the right to liberty and security.
[318]
(2) A person must not be subjected to arbitrary arrest or detention.
[319]
(3) A person must not be deprived of the person's liberty except on grounds, and in accordance with procedures, established by law.
[320]
(4) A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against the person.
[321]
(5) A person who is arrested or detained on a criminal charge -
[322]
(b) has the right to be brought to trial without unreasonable delay; and
[323]
(c) must be released if paragraph (a) or (b) is not complied with.
[324]
(6) A person awaiting trial must not be automatically detained in custody, but the person's release may be subject to guarantees to appear -
[325]
(b) at any other stage of the judicial proceeding; and
[326]
(7) A person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of the person's detention, and the court must -
[327]
(b) order the release of the person if it finds the detention is unlawful.
[328]
(8) A person must not be imprisoned only because of the person's inability to perform a contractual obligation.
[329]
(1) All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
[330]
(2) An accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, unless reasonably necessary.
[331]
(3) An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted."
[332]
[103] The rights conferred by the HRA are not absolute. Section 13 provides:
[333]
(1) A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
[334]
(2) In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant -
[335]
(b) the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
[336]
(c) the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
[337]
(d) whether there are any less restrictive and reasonably available ways to achieve the purpose;
[338]
(e) the importance of the purpose of the limitation;
[339]
(f) the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
[340]
(g) the balance between the matters mentioned in paragraphs (e) and (f)."
[341]
[104] The cognate provision in the Charter of Human Rights and Responsibilities Act 2016 (Vic) ("the Victorian Charter") is s 7. It has been held to embody a proportionality test.[36] Section 13 should be regarded likewise. So much was the intention of the Attorney-General in her first reading speech when the Human Rights Bill 2018 was introduced. She said:
[342]
"Clause 13, the general limitations clause, sets out the factors that may be relevant in deciding whether a limit on a human right is reasonable and justifiable. While these factors are only a guide, they are intended to align generally with the principle of proportionality, a test applied by courts in many other jurisdictions to determine whether a limit on a right is justifiable."[37]
[343]
[105] Section 13(1) provides that "A human right may be subject under law only to reasonable limits that can be demonstrably justified ...". Section 13(2) uses the words "reasonable and justifiable" when listing those factors which might be relevant to the issue of whether a limitation on rights can be effective. These are terms similar to those used in s 7 of the Victorian Charter. Section 13(1) of the HRA is relevantly indistinguishable from the first paragraph of s 7(2) of the Victorian Charter_._
[106] The effect and operation of s 7 of the Victorian Charter was considered by Warren CJ in Re Application under the Major Crimes (Investigative Powers) Act 2004.[38] Section 39 of the Major Crimes (Investigative Powers) Act 2004 (Vic) abrogated the privilege against self-incrimination in certain circumstances. An order had been made concerning the circumstances in which a particular class of individual would not be summoned to give evidence until determination of a particular question was resolved. Warren CJ considered whether s 39 of that statute constituted a reasonable limit that could be demonstrably justified by reference to s 7 of the Victorian Charter. She said:
[344]
"[144] ... Section 7 provides the criteria by which a limitation on rights might be justified. Hence, limitations on rights are permissible only when limited in accordance with s 7. The question then becomes: is the limitation on the right against self-incrimination as guaranteed by ss 24(1) and 25(2)(k) of the Charter "demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors?" (emphasis added)
[345]
"[145] A free and democratic society is the fundamental hallmark of our system of governance and way of life. Notions of the 'public interest' stem from notions of what is best for a free and democratic society. I find I am assisted by the remarks of Dickson CJ in Oakes:[39]
[346]
'The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified."[40]
[347]
[108] On the question of onus and the standard of proof when considering s 7 of the Victorian Charter, the following may be drawn from what Warren CJ said:[41]
[348]
(a) the onus of demonstrably justifying a limitation in accordance with s 7 resides with the party seeking to uphold the limitation,
[349]
(b) given what is required to be justified, the standard of proof is high,
[350]
(c) it requires a "degree of probability which is commensurate with the occasion",[42] and
[351]
(d) the issue for the Court is to balance the competing interests of society, including the public interest, and to determine what is required for a person to obtain or retain the benefit of the rights recognised or bestowed by the statute.
[352]
[109] It follows, given the analysis by Warren CJ, that the evidence required to prove the elements contained in s 7 should be "cogent and persuasive and make clear to the court the consequences of imposing or not imposing the limit".[43]
[110] The analysis by Warren CJ has been followed in a number of single judge decisions[44] and was referred to with approval by the Victorian Court of Appeal in R v Momcilovic.[45] That decision of that court was overturned in the High Court[46] but not on this particular point of construction. I see no reason not to adopt the reasoning of Warren CJ referred to above.
[111] I should note that the High Court's decision in Momcilovic was mainly concerned with a different aspect of the Victorian Charter. The Court gave a restricted interpretation to s 32(1) of the Victorian Charter (s 48(1) HRA). That section requires interpretation of statutory provisions in a way that is compatible with human rights. Section 32(1), the Court held, does not allow for "judicial rewriting" of another provision, rather it applies when different constructions are open on the language of provision interpreted having regard to its purpose.[47] In this case, there is no debate about whether the relevant provisions of the CSA are consistent with the HRA. It is whether a decision made pursuant to those provisions is one which complies with the requirements of the HRA.
[353]
[112] It is recorded in the Human Rights Bill 2018 Explanatory Notes that the human rights protected by the Bill are primarily drawn from the International Covenant on Civil and Political Rights ("ICCPR").
[113] Section 48 of the HRA provides, among other things, that:
[354]
"(3) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision."
[355]
[114] Section 48(3) states no more than would ordinarily apply when construing a statute of this nature. It is, perhaps, designed to act as a reinforcement of the capacity to refer to those laws and judgments which are relevant and of assistance. But the use of such "laws and judgments" should be subject to the observation by French CJ in Momcilovic[48] that "international and foreign domestic judgments should be consulted with discrimination and care. Such judgments are made in a variety of legal systems and constitutional settings which have to be taken into account when reading them".
[115] A similar concern was expressed by Kaye J in WBM v Chief Commissioner of Police:[49] that care should be taken in relying on and following decisions of international courts and tribunals. The manner in which rights are expressed in other treaties, covenants or statutes can be different in many ways to the manner in which they are expressed in the HRA. Expressions of opinion by international bodies may not have been arrived at in a way which is consistent with the traditional judicial function of the courts of this country.
[116] There are statements made by the United Nations Human Rights Committee ("UNHRC") which contain a series of non-binding rules or codes on detention, and they have been taken into account when considering the extent of rights afforded under the Victorian Charter - see, for example, Certain Children v Minister for Families and Children[50] and De Bruyn v Victorian Institute of Forensic Mental Health.[51]
[117] In every case the value of decisions made, or opinions expressed, by bodies whose procedures do not reflect those of the courts of this State will be a question of relevance and weight.
[356]
The provisions of the HRA should be given a wide construction
[357]
[118] The HRA falls into that broad category of legislation described as beneficial or remedial. As such, the provisions bestowing, protecting, or enforcing rights should be construed as widely as their terms permit.
[119] The appropriate principle to be applied has been considered many times by the High Court. In AB v Western Australia,[52] a unanimous court said:
[358]
"[24] ...Moreover, the principle that particular statutory provisions must be read in light of their purpose was said in Waters v Public Transport Corporation to be of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation "the courts have a special responsibility to take account of and give effect to the statutory purpose". It is generally accepted that there is a rule of construction that beneficial and remedial legislation is to be given a "fair, large and liberal" interpretation." (citations omitted, emphasis added)
[359]
[120] That the equivalent legislation in Victoria should be interpreted broadly has been restated on a number of occasions, for example, Re Application under the Major Crimes (Investigative Powers) Act 2004,[53]WBM v Chief Commissioner of Police,[54] and Bare v Independent Broad-Based Anti-Corruption Commission.[55] The same approach should be adopted with respect to the HRA.
[360]
[121] The applicant submits that the relevant provisions were contravened in these circumstances:
[361]
(a) the applicant has been the subject of MSOs on a continuing basis since 29 January 2013,
[362]
(b) the applicant has been subjected to significant levels of restraints when being escorted outside of his cell (i.e., handcuffs, leg irons and a body belt),
[363]
(c) the applicant has received limited access to fresh air, natural light and stimulation,
[364]
(d) the applicant has not been permitted to associate with another prisoner since 29 January 2013, and
[365]
(e) the respondent has not permitted the applicant to associate with another prisoner in the absence of a Pre-Association Assessment Report.
[366]
[122] These matters need to be considered against all of the background including:
[367]
(a) the fact that, at the time of making the decision, the applicant's last recorded incident was more than seven years ago,
[368]
(b) the respondent has not obtained an MSU Pre-Association Assessment Report which would allow the applicant to move towards reintegration into the prison general population, and
[369]
(c) the respondent has not provided any short or long term goals to facilitate the applicant's reintegration from the MSU.
[370]
[123] The applicant also submits that the contravention of s 29 involves the fact that the applicant has suffered and continues to suffer psychological harm in the circumstances.
[124] Thus, the applicant says that the Decisions are incompatible with human rights in that:
[371]
(a) in contravention of s 17(b), they resulted in the applicant being treated or punished in a cruel, inhuman or degrading way,
[372]
(b) in contravention of s 29, they resulted in the applicant not having liberty or security, and
[373]
(c) in contravention of s 30, they resulted in the applicant, being a person deprived of his liberty, not being treated with humanity and with respect for the inherent dignity of the human person.
[374]
[125] Section 58(1) imposes two obligations on the respondent:
[375]
(a) Substantive: not to make a decision in a way that is incompatible with human rights: s 58(1)(a),
[376]
(b) Procedural: not to fail to give proper consideration to a relevant human right in making a decision: s 58(1)(b).
[377]
[126] The phrase "compatible with human rights" is defined in s 8 and involves a "two-stage" inquiry:[56]
[378]
(a) Whether the relevant act or decision placed a limit on the human right: s 8(a),
[379]
(b) If there is a limit, whether the limit is justified under the test of proportionality set out in s 13: s 8(b)
[380]
[127] Section 8 of the HRA defines what is required for a decision to be compatible with human rights:
[381]
"8 Meaning ofcompatible with human rights
[382]
An act, decision or statutory provision is compatible with human rights if the act, decision or provision -
[383]
(b) limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13."
[384]
[128] The applicant bears the onus of establishing that the decision imposes a limit on human rights.[57]
[129] If established, the respondent bears the onus of justifying the limit.[58]
[130] An act or decision will limit a human right if it "places limitations or restrictions on, or interferes with, the human rights of a person".[59] This inquiry involves considering the scope of the right. The scope of the right should be "construed in the broadest possible way"[60] by reference to the right's "purpose and underlying values".[61]
[131] In Certain Children (No 2) Dixon J suggested a two-step process for assessing incompatibility:[62]
[385]
(a) The plaintiff/applicant for human rights relief need only establish prima facie incompatibility before the burden shifts to the defendant public entity to justify the limitations caused by their action/decision.
[386]
(b) The burden on the public entity to justify limitations is high, requiring a degree of probability commensurate with the occasion, and must be strictly imposed in circumstances where the individual concerned is particularly vulnerable.
[387]
[132] More recently, Richards J in Minogue[63] accepted that an allegation of incompatibility under the Victorian equivalent of s 58(1)(a) of the HRA could be considered in the following way:
[388]
(a) first, identify whether any human right is relevant to or engaged by the impugned decision or action of the public authority (the engagement question),
[389]
(b) secondly, determine whether the decision or action has limited that right (the limitation question), and
[390]
(c) thirdly, consider whether the limit is under law, reasonable, and demonstrably justified having regard to the matters set out in s 7(2) of the Victorian Charter [s 13(2) HRA] (the proportionality or justification question).[64]
[391]
[133] Her Honour went on to emphasise that the burden of establishing that a limit on a human right is justified or proportionate rests with the relevant public authority which, in this case, is the respondent. And that the standard of justification is stringent. The evidence required to prove that a limit on a human right is justified, having regard to the matters set out in the equivalent of s 13(2) of the HRA, should be "cogent and persuasive".[65]
[392]
[134] "Proper consideration" includes, but is not limited to, identifying the relevant human rights, and considering whether the decision would be compatible with human rights: s 58(5).
[135] The Attorney-General submits that s 58(5) is a codification of the "Castles test" which was the test enunciated by Emerton J in Castles.[66] In that case, her Honour considered the requirements of s 38 of the Victorian Charter. So far as is relevant it provides that "it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right". That test was paraphrased by Tate JA in Bare[67] in this way:
[393]
"... for a decision-maker to give 'proper' consideration to a relevant human right, he or she must: (1) understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision; (2) seriously turn his or her mind to the possible impact of the decision on a person's human rights and the implications thereof for the affected person; (3) identify the countervailing interests or obligations; and (4) balance competing private and public interests as part of the exercise of justification."
[394]
[136] I do not accept that it is correct to describe s 58(5) of the HRA as a "codification" of anything. It is not a complete statement of the law on the particular issue - it explicitly describes two elements necessary to demonstrate that proper consideration has been given to a human right but is not limited to those two elements. The discussion by Emerton J and Tate JA in the cases referred to above was with respect to a section of the Victorian Charter which does not contain a provision similar to s 58(5). The discussion by Emerton J in Castles goes on to say that under s 38 of the Victorian Charter "proper consideration need not involve formally identifying the "correct" rights". Under s 58(5) of the HRA the contrary is the case - proper consideration includes identification of the human rights that may be affected by the decision.
[137] The identification of the relevant human rights is an exercise that must be approached in a common sense and practical manner. Decisionmakers like Ms Newman are not expected to achieve the level of consideration that might be hoped for in a decision given by a judge. On this point, I agree with what Emerton J said in Castles:[68]
[395]
"[185] ... Proper consideration need not involve formally identifying the 'correct' rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.
[396]
[186] While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person's human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified." (emphasis added)
[139] The factors necessary to be considered were discussed by Richard J in Minogue.[70] That was a case which involved a prisoner being required to undergo random alcohol and drug tests and strip searches. The prisoner contended that the tests and the searches were unlawful under the Victorian Charter. Her Honour held that while the respondent had given proper consideration to human rights in relation to the general orders given for strip searches, they had not been authorised under the relevant regulations. Further, she held that some identified strip searches and urine tests imposed on the applicant were incompatible with rights which find their equivalent in s 25 and s 30 of the HRA.
[140] In reaching those conclusions her Honour adopted these principles:
[398]
(a) No latitude is to be given to a decision-maker in determining whether the decision-maker gave proper consideration to relevant human rights in making a decision. It is primarily a question of fact whether, in a given case, a decision-maker has given proper consideration to relevant rights, as required by the procedural limb of [s 58 HRA]. This is a different exercise from proportionality review of a decision for compatibility with human rights.[71]
[399]
(b) While some deference might be given to a decision-maker's assessment that a limit on human rights is justifiable - that will depend on the context in the circumstances including the extent to which the decision is supported and objectively justified by a transparent process of reasoning.[72]
[400]
(c) There is no place for deference in determining whether a decision-maker has given proper consideration to relevant human rights.[73]
[401]
(d) Proper consideration requires more than simply balancing the impact of the decision on a prisoner's human rights against the countervailing considerations of a prison administration. It requires both the identification of the human rights impacts of a decision on those it may affect, and, where a right may be limited, assessing whether the limit is justifiable in accordance with [s 13(2) HRA].[74]
[402]
[141] I respectfully agree with what her Honour said about the requirements of the Victorian equivalent of s 13 in the context of a correctional institution:
[403]
"[53] In a prison context, the exercise of justification required by s [13] of the Charter requires attention to a wider range of matters than whether the human rights impact of a decision is justifiable in the interests of the management, good order or security of the prison. Section [13] also requires a decision-maker to have regard to the nature and extent of the limitation of human rights, the relationship between the limitation and its purpose, and any less restrictive means reasonably available to achieve that purpose."
[404]
[142] The QHRC submitted that the judicial task in reviewing whether a decision complied with s 58(1)(a) involves a more significant level of intensity than is ordinarily engaged under traditional judicial review grounds.
[143] The task has been variously described as:
[405]
(a) having a "somewhat greater" intensity than under traditional grounds of review,[75]
[406]
(b) involving "an assessment that is closer to merits review than is usual in judicial review",[76]
[407]
(c) requiring the Court to assess the degree of weight to give to the original decision-makers' views in accordance with the context, relevant expertise and experience of the decision-maker, and the extent to which the decision is supported and justified by transparent reasoning.[77]
[408]
[144] The Attorney-General submitted that the Court should not set aside the decisions under review simply because it would have balanced the considerations differently. Rather, it is necessary for the Court to conclude that the decision-maker had manifestly weighed the considerations in an unreasonable or unjustifiable way. The Attorney-General relied on Haigh v Ryan[78] and Gardiner v Attorney-General(No 2)[79] as support of this proposition. I do not accept that those decisions provide that support.
[145] In Haigh a prisoner sought access to certain Tarot cards which were denied him by the prison authority. He said that the cards were necessary for the practise and observance of his of his religion, namely, Paganism. At [60] of his reasons, Ginnane J said that the determination of the question required consideration of the defendant's reasons for withholding the cards. He said that due weight should be given to the decision-maker's views about such matters and his views about the provision of the cards. He said that: "Courts generally give full scope to the power of correctional authorities to carry out prison administration and management in accordance with law".
[146] In Gardiner (No 2), Richards J was dealing with an application to amend an originating motion for judicial review and whether the grounds advanced based on the Victorian Charter should be summarily dismissed. At [57] of her reasons, Richards J referred to the jurisdiction remaining supervisory, rather than substitutionary, and that on review for unlawfulness under the Victorian Charter the Court may be drawn more deeply into the facts. Her Honour said that: "One means of guarding against a drift into merits review is to afford appropriate weight and latitude to the decision of the repository of the relevant power. What that means will vary from case to case". I agree, with respect. But neither of those cases relied upon by the Attorney-General support a conclusion that an applicant must demonstrate that a decision-maker had manifestly weighed the considerations in an unreasonable or unjustifiable way.
[147] In Patrick's Case,[80] Bell J said that a court, when judicially reviewing a decision for unlawfulness under the Victorian equivalent of the HRA, does not reconsider a primary act or decision on the merits. The jurisdiction of the Court is supervisory, not substitutionary. It is to determine whether the act or decision is unlawful by reference to the human rights standards in the HRA, not to make a determination on the merits of the matter which is in substantive issue. Relief cannot be granted simply because the court takes a different view of the act or decision on the merits. That exposition of the role of the Court has been accepted on a number of occasions and it is one which I respectfully adopt.
[409]
"[316] The difference between judicial reviewing for unlawfulness against applicable human rights standards and doing so for unlawfulness against the Wednesbury unreasonableness standard was explained by Lord Steyn in his "justly-celebrated and much-quoted" judgment in R (Daly) v Secretary of State for the Home Department. In his Lordship's view, the proportionality criteria "are more precise and more sophisticated than the traditional grounds of review". Lord Steyn went on to identify certain differences between the two standards of review, of which these are relevant to us:
[410]
First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relevant weight accorded to interests and considerations.
[411]
[317] It can be seen that, by its very nature as a standard of review, proportionality draws the court more deeply into the facts, the balance which has been struck and the resolution of the competing interests than traditional judicial review. This gives rise to the issue of how the court is to provide effective judicial protection for human rights while at the same time respecting the administrative function of the public authority under its legislation and not drifting into merits review. One important way of addressing that issue is by affording weight and latitude to the acts and decisions of primary decision-makers." (citations omitted)
[412]
What was the evidence about the effect of solitary confinement?
[413]
[150] The evidence adduced was relatively brief. There were two affidavits from Ms Blaber, the principal solicitor at the PLS, to which exhibited the documents which had been before Ms Newman and the correspondence which had passed between the representatives of the parties.
[151] There was also an affidavit from the applicant in which he describes the current conditions of his confinement. They include the fact that, apart from being escorted by officers, he has had no contact with anyone without the presence of a physical barrier since January 2013. He describes his cell and other matters in the following way:
[414]
"21. My cell is approximately 2.2 metres by 3.8 metres. The walls are concrete and bare with no shelving where I can put my clothes or personal property. I have a small window that is covered by external bars and does not open. There is little natural light. From my window, I can see a brick-wall mounted with an electric fence, though this is mostly obscured by the roof's overhang and a floodlight. I can only see a small portion of the sky.
[415]
22. I am permitted 1 x three minute shower each day. It is not uncommon for people to stop showering altogether within the confines of the MSU.
[416]
23. I am only permitted 6 flushes of the toilet each day. The system is reset at 12:00 midday which means that excrement can be left in the toilet for any number of hours. The toilet is approximately 45 cm from the head of the bed.
[417]
26. My cell is searched every day. There are generally three officers present during a cell search, though the number of officers is sometimes greater and can be inclusive of a Correctional Supervisor.
[418]
27. While a search of my cell is conducted, I am secured to the door by the use of hand-cuffs and a nightstick or baton. I placed my hands through the hatch in the door and my hands are placed in handcuffs. A nightstick or baton is then placed between my hands and the door to restrain my movement. I believe that I'm the only person in the unit who is subject to this requirement. It is usually reserved for operations within the Detention Unit.
[419]
30. I am currently on the highest restraint matrix. This means that for any movement outside of my cell, including within the MSU, I must wear a pair of hand-cups which are secured to a body-belt that is placed around my torso. I also have leg irons placed around both ankles.
[420]
56. I have not been given any indication of, nor have I received, any strategy or genuine plan regarding my eventual reintegration. Not only is there no clear and definite progression pathway identified or any reintegration plan, but the SOU persist in moving the goalposts.
[421]
57. All communication about any progression I receive comes through correspondence from Samantha Newman in head office. I have never met with Ms Newman or discussed my progression. Nobody from QCS has sat down with me and tried to work through a progression plan."
[422]
[152] Elsewhere in his affidavit, the applicant says that he is allowed two hours out-of-cell time each day inclusive of one hour of exercise time. The exercise yard is described as having "some fresh air and sunlight" with a limited range of equipment. He is permitted non-contact association with other prisoners in the B Wing of the MSU which involves him talking to other prisoners through the closed door of their cell while he stands outside the cell.
[153] The Attorney-General submitted that the applicant had worked as a cleaner in the B Wing since November 2019 which provided him with freedom to further engage with other prisoners. That was not disputed by the applicant.
[154] There is little evidence about the effect on the applicant of the conditions which have been imposed on him. There is no expert psychological or psychiatric evidence concerning the applicant which deals with this point. Likewise, there is no evidence of the effect, in general, of solitary imprisonment.
[155] The submissions made on his behalf and by the QHRC rely, to a considerable extent, on the observations made by Applegarth J in Callanan v Attendee Z,[85] In that case, his Honour considered a number of matters which relate to the potentially damaging effects of solitary confinement. Attendee Z had refused to take an oath before a hearing of the Crime and Misconduct Commission. The Commissioner brought proceedings seeking that Attendee Z be punished for his contempt. There was no debate that the finding of contempt should be made. The issue was the appropriate punishment. Pursuant to r 930 of the Uniform Civil Procedure Rules1999, the Penalties and Sentences Act1992 applies when a sentence for contempt is imposed. Section 15 of the permits a court to receive any information it considers appropriate to enable it to impose the appropriate sentence. Justice Applegarth had the advantage of that provision and he, with the apparent agreement of counsel appearing for the applicant, was provided with relevant material which contained findings about the effects of solitary confinement. That provision does not apply in this type of case.
[423]
" ... the evidence from Canada, like that reviewed by Applegarth J (prior to 2015) in Callanan v Attendee Z is well-established and ad idem about the harmful impacts of solitary confinement, and particularly, prolonged solitary confinement (meaning longer than 15 days). Professor Mendez, whose evidence featured in CCCL and was replicated in Francis, was the Special Rapporteur whose report led to the adoption in 2015 of the 15 day maximum period. His opinions - as a most eminent expert in this field - have been adopted at the international level and reflected in the Mandela Rules. In the context here, of a very lengthy detention (a 6 month MSO after 7 years of consecutive orders), this Court can accept the expert evidence that is now universally acknowledged."
[424]
[158] There is a fundamental problem with the submissions of both the applicant and the QHRC on this point. They ask the Court to accept evidence which is not before it. They point to the acceptance by other judges and the Courts of other countries of such evidence but do not produce it. The difficulty which arises is exemplified by the reference to Professor Mendez. In Corporation of the Canadian Civil Liberties Association v Canada,[86] Benotto JA (who gave the judgment of the Court of Appeal for Ontario) noted that the applicants "in these proceedings provided evidence about the horrific effects of administrative segregation that - it is submitted - outrages Canadian standards of decency".[87]
[159] Her Honour went on to observe that findings had been made by the primary judge with respect to international norms regarding solitary confinement. Mention was then made of the reliance by the primary judge on the expert evidence of Professor Mendez and a short summary of that evidence was set out.
[160] There was other evidence before the primary judge. It was given by another acknowledged expert - Dr Hannah-Moffat - and its effect was summarised by Benotto JA.[88] Over a dozen of the ill-effects caused by solitary confinement[89] were listed and it appears to be the type of evidence which would have been available for production in this case.[90] I do not quarrel with the accuracy of the summary of the evidence, but the view of another judge about evidence given in another court is not evidence in this proceeding.
[161] If the applicant in this case had wanted to demonstrate the effects of isolation upon him or, more generally, the effects of isolation in a prison environment, then appropriate expert evidence should have been adduced.
[162] The applicant, though, did describe how he felt and, in particular, he referred to the effect of his confinement in the context of having seen other prisoners commit acts of self-harm and suicide:
[425]
"It is difficult for me to describe how these experiences have impacted my mental state. I have become emotionally numb. You end up dead inside. I know it's not normal. When you are constantly in the presence of this stuff, it's not like being in a movie, it is real life. You want to distance yourself from others. What if you befriend someone else and they end up doing the same thing [committing suicide]. You want to cut yourself off from everyone because it's quite possible they will be dead tomorrow."
[426]
[163] The Attorney-General took the point that there was no evidence which specifically adverted to the effects of this type of confinement upon the applicant. Nevertheless, the Attorney-General did refer to findings made by the UNHRC to the effect that prolonged solitary confinement of a prisoner may amount to acts prohibited by art 7 of the ICCPR_._ The Explanatory Notes for the Human Rights Bill 2018 explains that s 17 is modelled on that article.
[164] The parties also referred to the reports from Dr Madsen which had been before Ms Newman and upon which she relied. All parties proceeded on the basis that this was material that was relevant and could be taken into account on this application.
[165] Dr Madsen is a psychologist who was retained by Queensland Corrective Services. He interviewed the applicant on many occasions and provided reports which were before the decision-maker and which were in the material filed in these proceedings. His reports were, in a general sense, concerned with the level of danger or risk presented by the applicant and what steps should be taken with respect to his further treatment. There was no expert evidence which had been obtained for the purposes of this application.
[166] In an opinion given in 2016, Dr Madsen had been asked to provide advice regarding the management and treatment of the applicant. He did not, in terms, deal with the effects of the confinement imposed upon the applicant. In that opinion he describes the applicant's risk of violence as being high should he be reintegrated at that time. He noted that the challenge of providing relevant treatment to the applicant and evaluating his progress in relation to such treatment, was a significant one. It is relevant, though, to the issue of the nature of the applicant's treatment to note that the recommendations included:
[427]
(a) that a longer-term strategy be developed that details specific behavioural objectives and therapeutic outcomes which are linked to progression milestones on the MSU,
[428]
(b) that this type of over-arching strategy needed to be developed in collaboration with custodial staff, therapeutic providers and key-stakeholders, and
[429]
(c) his progression plan should be time-based and linked to observable behaviour and engagement.
[430]
[167] In 2017, Dr Madsen provided a further report. He noted that, at that time, the most recent breach was in March 2012 and the most recent adverse incident was June 2014. He also records that the IOMS case notes typically describe him as being "compliant", "polite" and "quiet". Dr Madsen still remained uncertain about the applicant's risk of violence. He did observe that the majority of the applicant's violence or aggression had occurred after he had been placed in the MSU. He said:
[431]
"Prisoner Owen-Darcy's extended period of 'positive' behaviour could be evidence that his risk has reduced; however, because of the highly structured and restrictive environment of the MSU, the range of his observable behaviour is so limited that the presence of enduring positive change is difficult to determine. On the MSU there is limited "opportunity" to actually be violent, and his "stable" behaviour may simply be a function of this."
[432]
[168] Dr Madsen went on to observe that there was still no overarching strategy in regard to any therapeutic treatment and he repeated his recommendations for specific strategies linked to progression milestones.
[169] In 2018, Dr Madsen provided another report in which he again noted that there was still no over-arching strategy and that the lack of progress had undermined motivation for change and also the applicant's preparedness to engage meaningfully in relevant treatment. He also raised the prospect that the development of an "incentive base" progression pathway explicitly linked with therapeutic outcomes and behavioural objectives would be likely to positively affect his motivation with regards to both behaviour changes and treatment engagement.
[170] Finally, Dr Madsen provided a report in 2020. In it he noted that the applicant's case notes for the preceding six months were largely unremarkable and that he was repeatedly described as a compliant and polite prisoner who appeared to have maintained amicable relationships with the custodial and professional staff. In his opinion the applicant's behaviour and mental state continued to appear very stable. The applicant reported a fairly unremarkable, though, productive routine. Dr Madsen described the applicant as having made some notable changes "in regards to his general approach to things, for instance, claiming that nowadays he rarely engages in prolonged rumination about grievances or disputes with others". Dr Madsen's brief assessment suggested "that his risk of violence has reduced and at this time in this context could be regarded as low and non-imminent".
[171] In that most recent report, Dr Madsen concludes with a refrain, which appears to have gone either un-noticed or deliberately ignored, to the effect that a long term strategy needed to be developed which details specific behavioural objectives and therapeutic outcomes.
[172] As I observed above, none of these reports specifically address the effect of the conditions being imposed upon the applicant. It is possible, though, to draw the conclusion, without much difficulty, that the effect of the confinement on the applicant was stultifying.
[173] The applicant has described the anxiety he feels and has felt about his circumstances, and, in particular, the impact that suicide attempts by other inmates has had on him. There is little, apart from that, which deals with the applicant's mental health.
[433]
Section 17(b) - A person must not be treated or punished in a cruel, inhuman or degrading way
[434]
[176] Section 17 is modelled on art 7 of the ICCPR. Article 7 is set out in one sentence rather than the separate sub paragraphs of s 17. Much of the work done by the UNHRC has concerned the right not to be subject to torture.
[177] In Certain Children (No 1), Garde J collected some of the authorities on what constitutes cruel, inhuman or degrading treatment:
[435]
"[162] ... Treatment may be considered degrading if it humiliates or debases a person, causes fear, anguish or a sense of inferiority, or is capable of possibly breaking moral or physical resistance or driving a person to act against their will or conscience.[92] Degrading treatment involves more than the usual element of humiliation which follows from the very fact of being convicted and punished by a court.[93] Similarly, inhuman treatment must reach a minimum level of severity manifesting in bodily injury or intense physical or mental suffering.[94] The assessment of the minimum threshold is relative and depends on all the circumstances of the case, including the duration of the treatment, its physical or mental effects, and the sex, age and state of health of the alleged victim.[95]
[436]
[178] One of the matters which arose in this case was the interaction of the rights referred to in s 17 and those in s 30. The distinction between those two sets of rights has been the subject of consideration in both New Zealand and Victoria.
[179] It was recognised in Taunoa v Attorney-General[96] that the cognate provisions in the New Zealand Bill of Rights Act 1990 (NZ) are both "in part concerned with treatment that is to some degree deserving of the epithet 'inhuman'". The same applies to s 17(b) and s 30 of the HRA. Thus, as Elias CJ observed in Taunoa,[97] they are not simply different points of seriousness on a continuum, but identify distinct, though overlapping, rights.
[180] I respectfully agree with the description of the similar provisions in the Victorian Charter by Emerton J in Castles[98] to the effect that s 17(b) prohibits bad conduct towards any person (imprisoned or not) while s 30 mandates good conduct towards people who are incarcerated.
[181] The applicant referred to Canadian decisions concerning the threshold for what would be classed as cruel treatment. Those are, with respect, not of immediate assistance. They would impose a threshold for what would be regarded as cruel treatment as something which would "shock community conscience"[99] or would be "so disproportionate that Canadians would find it abhorrent or intolerable".[100] They are glosses on words which require a further subjective examination in which the Courts purport to be able to know what would cause the citizens of a country to find some conduct abhorrent or intolerable. There would, no doubt, be conduct which all members of a community would find abhorrent, but beyond that, what might shock one person's conscience may not shock another's. There are many grey areas in which opinions may honestly differ when dealing with these matters. It is better for courts to deal with them without purporting to be able to assess the national conscience.
[182] One of the factors which assumes considerable importance in this case is the duration of the treatment of the applicant. The circumstances of his confinement, if they were only to occur for a short period of time, might not easily come within the description "cruel, inhuman or degrading". The length of solitary confinement has been considered in a number of decisions and reports.
[437]
"Prisoners placed in segregation/separation and/ or placed in a management or high security unit are managed under the least restrictive conditions consistent with the reason for their separation and to the extent necessary to minimise the associated risk."
[438]
(a) All prisoners be treated with "the respect due to their inherent dignity and value as human beings": r 1.
[439]
(b) Torture and cruel, inhuman or degrading treatment or punishment are prohibited, for which in no circumstances may there be invoked any justification: r 1.
[440]
(c) Discipline and order shall be maintained "with no more restriction than is necessary to ensure safe custody, the secure operation of the prison and a well ordered community life": r 36.
[441]
(d) "Indefinite" or "prolonged" solitary confinement is prohibited: r 43(1).
[442]
(e) Solitary confinement is defined as confinement for 22 hours or more a day without meaningful human contact and prolonged means more than 15 consecutive days: r 44.
[443]
(f) Solitary confinement to be used only in exceptional cases as a last resort: r 45(1).
[444]
[185] The Attorney-General submits that while it may be relevant to consider the Mandela Rules, those rules aspire to be best practice and do not set a minimum standard for compliance.
[186] In Certain Children (No 2),[101] Dixon J engaged in a detailed examination of the many authorities on this area. I respectfully adopt what I regard as a correct summation of the general factors which should be taken into account when considering s 17(b). They are:
[445]
(a) the scope of the right contained in s 17(b) is conditioned by a minimum standard or threshold of severity or intensity that can manifest in bodily injury or physical or mental suffering,
[446]
(b) the combination of the adjectives - cruel, inhuman or degrading - define the prohibited treatment or punishment,
[447]
(c) the assessment of the minimum threshold is relative, and it depends on all the circumstances of the case, including the duration of the treatment, its physical or mental effects, and the sex, age and state of health of the alleged victim,
[448]
(d) most cases of breach will involve on the part of the decision-maker deliberate imposition of severe suffering or intentional conduct to harm, humiliate or debase a victim, and
[449]
(e) the purpose of the decision-maker's conduct will, at the very least, be a factor to be taken into account, though the absence of such a purpose does not conclusively rule out a violation of the right.
[450]
[187] The applicant submits that the failure of the decision-maker to take the "minimal steps available to her" constitutes treatment which breaches s 17(b).
[188] The "minimal steps" referred to in the applicant's argument were "to identify and apply incremental changes to the applicant's treatment regime by which his circumstances can be improved". Further, it was argued that this led to "the level of futility which the applicant currently experiences".
[189] These are matters which, as is explained above, were not within Ms Newman's power to effect. Further, there is a difference (which was not explored) between the claimed failure to act and the conditions themselves.
[190] In order for s 17(b) to be engaged, the applicant must demonstrate, at a minimum, that the terms of his confinement are of such a nature that they can manifest in bodily injury or physical or mental suffering. In the absence of any evidence of bodily injury or physical or mental suffering, there is only the evidence from the applicant about his anxiety generated by the conditions of his confinement and events which have occurred (such as the suicide of other prisoners). The latter are not caused by the applicant's confinement.
[191] The duration of the MSOs is something which might be thought to be cruel, but the applicant's evidence does not support a finding to that effect. Apart from that there is little to assist a conclusion in the applicant's favour so far as his age and state of health are concerned.
[192] The onus has not been satisfied.
[451]
Section 29 - right to liberty and security of the person
[452]
[193] The applicant contends that the failure of the respondent to take steps to identify and apply changes to the applicant's treatment regime by which his circumstances could be improved constitutes treatment which contravened, and continues to contravene, s 29.
[194] The extent of the application of s 29 needs to be considered in the light of the balance of the legislation. In particular, it needs to be construed in the light of s 30 which concerns the treatment of persons who have been deprived of liberty.
[195] Section 29 deals with the fact of arrest or detention. It requires that any arrest or detention not be arbitrary. It requires that deprivation of liberty only occur in accordance with grounds and procedures established by law.
[196] Section 29(5) provides that a person who is "arrested or detained on a criminal charge" must be brought promptly before a court, has the right to be brought to trial without unreasonable delay, and must be released if either of those two matters is not fulfilled. Section 29(6) refers to a "person awaiting trial". These are indications that this section relates to the procedures which occur between the time of arrest and the time of trial.
[197] Section 29 is concerned with the fact of detention or deprivation and not the circumstances of detention or deprivation. When a person has been detained then s 30 applies. It applies to persons who have been deprived of liberty by reason of conviction and sentence and to persons who are detained awaiting trial. Section 29 says nothing about the treatment of persons who have been detained.
[198] The rights confirmed or conferred by the HRA are not mutually exclusive. Different fact situations will give rise to different applications and the overlap of various rights. In this case, though, s 30 is more apt to apply to the applicant than s 29. He is a person who has been deprived of his liberty. He is a person who comes within the heading of s 30 - "Humane treatment when deprived of liberty".
[199] The Explanatory Note for the Human Rights Bill 2018 says that the principle underlying s 30 is "that a person's rights should only be curtailed to the extent necessary due to the confinement, reflecting that the punishment is intended to be limited to the deprivation of liberty". The Explanatory Note goes on to say that s 30(1) applies to detention in prison but also other places of detention, such as psychiatric facilities. Subsections (2) and (3) provides for persons who have not been convicted.
[453]
(a) In Zaoui v Attorney-General,[102] it was held that "the conditions of Mr Zaoui's detention" did not "make what would be an otherwise lawful detention arbitrary".
[454]
(b) In R (Munjaz) v Mersey Care NHS Trust,[103] it was held that seclusion or confinement of a person who is lawfully detained does not ordinarily amount to a separate deprivation of liberty which would engage the equivalent provision in the European Convention on Human Rights.
[455]
[201] The applicant argues that s 29 applies to him because, notwithstanding that he has had his liberty removed by the conviction and sentence he is serving, he retains a "residual liberty".
[456]
[202] It was argued by the applicant and the QHRC that, notwithstanding that the applicant had been imprisoned, he still retained a form of "residual liberty". In particular, it was said that the common law in Australia is developing to reflect that there is a residual liberty which a prisoner retains. It was argued that the HRA ought not be construed to limit a common law right or inconsistently with the development of the common law in Australia. The nature and existence of such a right has been explored in the Canadian cases.
[203] The applicant placed great weight on R v Miller[104] in which the Supreme Court of Canada, in considering the reach of the writ of habeas corpus, gave a wide interpretation of "deprivation of liberty", and recognised that a "prisoner has the right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution".[105] In that case the Court ordered that a writ of habeas corpus be issued to vindicate the prisoner's residual liberty. This occurred even though there was no doubt that the prisoner had to remain in detention. Le Dain J (who delivered the judgment of the court) said:
[457]
"Confinement in a special handling unit, or in administrative segregation as in Cardinal, is a form of detention that is distinct and separate from that imposed on the general inmate population. It involves a significant reduction in the residual liberty of the inmate. It is in fact a new detention of the inmate, purporting to rest on its own foundation of legal authority."[106]
[458]
[204] Section 7 of the Canadian Charter is relevantly similar to s 29(1) and (2) of the HRA.[107] It provides: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". Section 10(c) of the Canadian Charter is similar to s 29(7) of the HRA. It provides: "Everyone has the right on arrest or detention: To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful".
[205] Justice Le Dain referred to the provisions of the Canadian Charter, in particular, s 10(c) as providing the constitutional guarantee of the right to habeas corpus but did not need to consider that provision any further. The issue before the Canadian Supreme Court was whether a provincial superior court could grant habeas corpus, with certiorari in aid, to determine the validity of the confinement of a prisoner in a federal prison in a severe form of solitary confinement. It required consideration of the jurisdiction available to such a court rather than the extent of the constitutional guarantee.
[206] The gist of the decision is that habeas corpus will be available to a prisoner who has suffered a significant reduction in the "residual liberty" which would otherwise be enjoyed. The concept of "residual liberty" was discussed in this way:
[459]
"[32] The British Columbia courts in Cardinal and the Ontario Court of Appeal in the case at bar applied the notion of a 'prison within a prison' in holding that habeas corpus would lie to determine the validity of confinement in administrative segregation or a special handling unit, and if such confinement be found unlawful, to order the release of the inmate into the general population of the penitentiary. The concept of a 'prison within a prison' is referred to by Sharpe, The Law of Habeas Corpus (1976), p. 149, where he speaks in favour of such an application of habeas corpus, and by Dickson J., as he then was, in Martineau, supra, where, with reference to the decision of the disciplinary board which sentenced the inmate for a disciplinary offence to 15 days in the penitentiary's special corrections unit, he said at p. 622:
[460]
'Moreover, the board's decision had the effect of depriving an individual of his liberty by committing him to a 'prison within a prison'. In these circumstances elementary justice requires some procedural protection. The rule of law must run within penitentiary walls.'
[461]
This statement reflects the perception that a prisoner is not without some rights or residual liberty (see also Solosky v. The Queen, [1980] 1 S.C.R. 821 at p. 839) and that there may be significant degrees of deprivation of liberty within a penal institution. The same perception is reflected in the reasons for judgment of McEachern C.J.S.C. and Anderson J.A. in Cardinal and Cory J.A. in the case at bar on this issue. In effect, a prisoner has the right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution. Any significant deprivation of that liberty, such as that effected by confinement in a special handling unit meets the first of the traditional requirements for habeas corpus, that it must be directed against a deprivation of liberty.
[462]
[33] Moreover, the principle that habeas corpus will lie only to secure the complete liberty of the subject is not invariably reflected in its application. There are applications of habeas corpus in Canadian case law which illustrate its use to release a person from a particular form of detention although the person will lawfully remain under some other restraint of liberty. ... In all of these cases the effect of habeas corpus is to release a person from an unlawful detention, which is the object of the remedy. The use of habeas corpus to release a prisoner from an unlawful form of detention within a penitentiary into normal association with the general inmate population of the penitentiary is consistent with these applications of the remedy."
[463]
[207] The applicant and the QHRC also rely upon two single judge decisions in Canada: Canadian Civil Liberties Association v The Queen[108] and British Columbia Civil Liberties Association v Attorney-General.[109] They were concerned with the absence of review mechanisms for decisions under which prisoners had been segregated. The question in each was whether the segregation amounted to deprivation of the prisoners' liberty contrary to s 7 of the Canadian Charter.
[208] In the two Canadian cases, the parties, relying upon the authority of Miller, conceded that administrative segregation constituted a deprivation of liberty_._ In each of the cases there was substantial evidence submitted relating to the effect of solitary confinement, evidence which was not adduced in this case.
[209] The proposition that a prisoner enjoyed a form of residual liberty vis-à-vis the Secretary of State, or the governor of a prison was rejected by the House of Lords in R v Deputy Governor of Parkhurst Prison; ex parte Hague.[110] The members of the House of Lords were referred to Miller but did not cite it in their reasons_._ Lord Bridge referred to the relevant legislation which provided that a prisoner could be restrained within the defined bounds of a prison and said:
[464]
"Can the prisoner then complain that his legal rights are infringed by a restraint which confines him at any particular time within a particular part of the prison? It seems to me that the reality of prison life demands a negative answer to this question. Certainly in the ordinary closed prison the ordinary prisoner will at any time of day or night be in a particular part of the prison, not because that is where he chooses to be, but because that is where the prison regime requires him to be. He will be in his cell, in the part of the prison where he is required to work, in the exercise yard, eating meals, attending education classes or enjoying whatever recreation is permitted, all in the appointed place and at the appointed time and all in accordance with a more or less rigid regime to which he must conform. Thus the concept of the prisoner's 'residual liberty' as a species of freedom of movement within the prison enjoyed as a legal right which the prison authorities cannot lawfully restrain seems to me quite illusory. The prisoner is at all times lawfully restrained within closely defined bounds and if he is kept in a segregated cell, at a time when, if the rules had not been misapplied, he would be in the company of other prisoners in the workshop, at the dinner table or elsewhere, this is not the deprivation of his liberty of movement, which is the essence of the tort of false imprisonment, it is the substitution of one form of restraint for another."[111] (emphasis added)
[465]
[210] Lord Ackner said that a prisoner has no residual liberty vis-à-vis the governor of a prison. Lord Goff agreed that no action for damages for false imprisonment lay against the Secretary of State or the governor of a prison on the ground of unlawful deprivation of residual liberty. Lord Jauncey did not consider that a prisoner lawfully confined in a prison had vis-à-vis the governor, a residual liberty which could be protected by private law remedies.
[211] The decision in Miller was considered in Prisoners A to XX Inclusive v State of New South Wales.[112] The Court of Appeal, after careful analysis of decisions in Canada and the United Kingdom, held that it was unnecessary to consider whether a prisoner enjoys a right of "residual liberty" vis-à-vis the State and whether the writ of habeas corpus runs where a person is illegally held in a prison within a prison.
[212] In Bennett v Superintendent, Rimutaka Prison,[113] the New Zealand Court of Appeal considered whether there was good reason for following Miller but decided that there was not. Blanchard J (who gave the judgment of the Court) referred to the different jurisdictional position in Canada, in particular, that the problem which necessitated invoking habeas corpus was that certiorari and the other prerogative writs were not available as stand-alone remedies. The Court could not have issued an injunction. It was in this context - where other forms of relief could not be granted - that the Supreme Court of Canada had to decide whether a writ of habeas corpus could be issued to order release from a "prison within a prison".
[213] Blanchard J concluded on this point in this way:
[466]
"[74] The test of whether the form of confinement is more restrictive or severe than the normal one in an institution will very much depend upon the nature of the institution. What is normal at Wellington Prison will very likely differ from what is normal at Paramoremo.[114] Indeed, there may be differences between various parts of an institution. It is more straightforward, and avoids the possibility of jurisdictional argument delaying the substantive decision, if applicants are required to go straight to the real issue - the lawfulness of the conditions of detention - in a judicial review application."
[467]
[214] In Behrooz v Secretary of Department of Immigration & Multicultural & Indigenous Affairs,[115] Gleeson CJ referred to the availability of habeas corpus for deprivation of "residual liberty" in the context of United States decisions and said that it was unnecessary to consider, in that appeal, the issues raised in Miller and Prisoners A to XX because, among other things, enough had been said to indicate that the primary question in the United States had to be the reach of the constitutional guarantees found in express terms not seen in Australia.
[215] In State of New South Wales v TD,[116] the Court of Appeal held that the decision in Hague was principally based on the terms of the legislation under consideration. As Basten JA said: "Critical to the conclusion in that case that the imprisonment was not unlawful were the terms of s 12(1) of the Prison Act 1952 (UK), which provided that a person sentenced to imprisonment 'may be lawfully confined in any prison'".[117]
[216] The decisions which deny or doubt the existence of a residual liberty are, generally, in cases which are concerned with the application of principles relating to either the grant of habeas corpus or the tort of false imprisonment. While the reasoning in those cases exposes issues which should be considered, the conclusions are based upon principles which need to be examined through the prism of the requirements of the HRA. It will assist in the consideration of this if the underlying common law principle concerning liberty is exposed.
[217] In Williams v The Queen,[118] Mason and Brennan JJ described the fundamental right to liberty in this way:
[468]
"The right to personal liberty is, as Fullagar J. described it, 'the most elementary and important of all common law rights': Trobridge v. Hardy. Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England 'without sufficient cause': Commentaries on the Laws of England .... He warned:
[469]
'Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities.'
[470]
That warning has been recently echoed. In Cleland v. The Queen, Deane J. said:
[471]
'It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.'
[472]
The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. The issue in this case is the extent of the power of the police to detain in their custody for questioning a person who has been lawfully arrested." (citations omitted, emphasis added)
[473]
[218] It is unnecessary to embark upon an examination of the authorities so far as they concern false imprisonment, but it is appropriate to bear in mind that there is a consistent recognition that a change to the conditions of confinement must be made in accordance with the law. And the law, in this State, includes the HRA. While the House of Lords in Hague did not accept that a prisoner had a residual liberty it did premise any change in incarceration being in accordance with the relevant rules. And the decision was given before the Human Rights Act 1998 (UK) came into effect.
[219] Detailed consideration was given to the Canadian, United Kingdom and New South Wales decisions on this subject by Adams J in Sleiman v Commissioner of Corrective Services.[119] In his review of the cases (which I gratefully adopt) his Honour concluded:
[474]
"[60] So far as prisons are concerned, the Parliament has instituted a structure of laws to govern the responsibilities of those to whom is delegated the custodianship of prisoners of the State. They are given great power and considerable freedom of action. But it is not untrammelled. It is self evident that the isolation of a person from communication with others is a severe and possibly dangerous step. It must be done with considerable care and only when it is truly necessary. It cannot be doubted that for these reasons the Parliament has made specific provision in the Act dealing with the exercise of this power. This demonstrates, amongst other things, that segregated custody is regarded by the Parliament as an exceptional form of custody and requires a unique system of implementation and control, in particular by necessitating a report to the Minister, regular reviews and giving the prisoner the right to apply to the Review Council for a review. In virtually every other aspect of managing a prisoner's custody the Commissioner has almost unfettered control and authority (albeit subject to various forms of supervision) except where the prisoner is to be segregated.
[475]
[61] Having regard to the exceptional character of segregated custody so far as the wellbeing of the prisoner is concerned and the unique regime instituted by the Parliament as a safeguard, it is obvious that compliance with its requirements is no mere matter of legal technicality but of fundamental importance. To place a prisoner in segregation without such compliance and set at nought the safeguards of the Act is a serious departure from the law.
[476]
[62] This case is about what the law will do to require obedience to and redress departures from the obligations it imposes. It has nothing to do with the personal merits, or lack of them for that matter, of the prisoner. The law is blind to such considerations. The law will be enforced, not because of what is owed to the prisoner, but because of what it owes itself and the community it serves." (emphasis added)
[477]
[220] Sleiman was a case in which leave was sought to commence an action and all that had to be demonstrated was that there was an arguable case. It was considered by Hamill J in SU v Commonwealth of Australia.[120] That was another case which concerned a claim of false imprisonment. The plaintiffs were lawfully in immigration detention. They asserted that part of that detention was unlawful because, for a particular period of time, they were in the custody of a member of the Australian Federal Police after being arrested by that officer. The arrest was held to be unlawful. Hamill J considered Miller, Sleiman, Behrooz, Prisoners A to XX, Hague and TD and concluded that the cases generally support the view that the concept of residual liberty has been accepted in Australia.
[221] The legislative requirements for the imposition of a further confinement on a prisoner were considered by White J in Campbell v Northern Territory of Australia.[121] In that case, the Youth Justice Act2005 (NT) authorised a more stringent form of detention only in circumstances set out in s 153(5) of that statute. His Honour referred to the reasons given by Adams J in Sleiman and to the statement by Basten JA in TD[122] that: " ... To be imprisoned in the wrong part of a prison, where there is strict classification, according to law, is a false imprisonment for which damages may be awarded. There is nothing in Hague which throws doubt upon that distinction: on the contrary, it was upheld".[123] He went on to say that the exposition in Miller was more in keeping with correct principle than the approach adopted in
[478]
"[466] Detention in isolation is a particular form of detention involving the imposition on detainees sentenced to detention in accordance with the terms of the YJ Act[124] of an additional form of restraint. The very nature of this form of detention serves to confirm that that is so. The YJ Act authorises that more stringent form of detention only in the limited circumstances to which s 153(5) refers.
[479]
[467] Unless placed in the BMU,[125] the applicant did have some freedom of movement within Don Dale, some ability to interact with other detainees, and some ability to participate in the activities within Don Dale, albeit subject to the regimes and routines involved in 'ordinary' detention. Whether this be characterised as a 'residual liberty' seems immaterial because the applicant was entitled, at all times, to be dealt with in accordance with the law. That was a 'right' given to him by the YJ Act. In particular, he could not be lawfully restrained within Don Dale other than in circumstances authorised by the YJ Act.
[480]
[468] When the applicant was placed in the BMU, he became subject to the additional restraint and, on my findings, that additional restraint in the period between 2-9 January 2012 was unauthorised.
[481]
[469] It may be true, as Lord Bridge said in Ex parte Hague, that detention in segregation is the substitution of one form of detention for another, but in the circumstances of this case it is the substitution of detention of a more stringent kind which is permitted by the YJ Act in only limited circumstances. Absent those circumstances, the applicant's detention in isolation lacked the authority of the YJ Act. The reality of the different, and more stringent detention cannot be ignored.
[482]
[470] In these circumstances, I consider the approach adopted by Roden J in Collins v Downs, by Adams J in Sleiman, and by Basten JA in TD, and for that matter the reasoning of Le Dain J in Miller v R, as set out above, to be more in keeping with principle than the approach adopted in Ex parte Hague. In particular, it is consistent with the underlying principle that '[t]he right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes' (emphasis added): Williams v R ... (Mason and Brennan JJ). At least with respect to the forms of detention authorised by law, I respectfully agree with the approach suggested by Professor Trindade in the article to which reference was made earlier:
[483]
'The decisions of the House of Lords in Hague and Weldon that prisoners do not have a residual liberty vis-a-vis the prison authorities and that intolerable conditions in a prison do not render an otherwise lawful imprisonment unlawful thereby providing the prisoner with a potential action for false imprisonment should not, and are unlikely to, be followed by Australian courts. The decisions are based upon a strained reading of the words "may be lawfully confined in any prison" to mean "may be confined in any prison and whatever way the confinement takes place will be lawful". Such a reading is not defensible and is contrary to current notions of personal liberty, freedom of movement and equality prevalent in Australia."[126]
[484]
[471] Accordingly, I conclude that the unauthorised keeping of the applicant in isolation between 2 and 9 January 2012 constituted a form of false imprisonment which sounds in damages.
[485]
[472] This conclusion can be reached more confidently because the respondents did not refer in their submissions to any of the authorities mentioned above, did not make any submissions directed to the underlying principles, and did not make any submission to the effect that the unlawful keeping of the applicant in isolation could not constitute unlawful imprisonment. In fact, they did not make any submissions on this particular issue at all." (emphasis added)
[486]
[223] The day after White J gave his decision in Campbell, McWilliam AsJ delivered a decision dealing with similar matters - Islam v Director-General, Justice and Community Safety Directorate.[127] In that case, the applicant was a prisoner who had been disciplined for failing to do certain things and was confined in the Management Unit with associated loss of privileges. In total, he was confined for 30 days. He asserted that confinement breached his right to protection against cruel, inhuman or degrading treatment under the provision equivalent to s 17(b) of the HRA. The issue of "residual liberty" was not the subject of argument. I was referred to her Honour's observation:
[487]
"[114] The third factor is the nature of the subject matter of the hearing that gave rise to the human right. What was at stake for the plaintiff was the potential for a further deprivation of liberty by way of separate confinement within the AMC, and an associated loss of privileges. The further deprivation of liberty of a person already lawfully confined is a serious matter, which leans the evaluative assessment towards a finding that the human right has been contravened. This was not a trivial breach."
[488]
[224] In that statement, her Honour was referring to whether or not a fair trial had been afforded to the applicant rather than whether the decision of the respondent had deprived him of some form of liberty.
[225] The question which is agitated in this case is whether the applicant had some form of liberty of which he could be deprived notwithstanding that he had been lawfully deprived of his liberty in the general sense. The Canadian decisions support the idea of the existence of a "residual liberty".[128] That is, there is a right inherent in a prisoner not to be subjected to further deprivation or harsher conditions unless the provisions which allow for such action have been fulfilled. The United Kingdom and New Zealand authorities do not accept the existence of a residual liberty. To the contrary, some single judge decisions in this country favour the existence of such a class of liberty.
[226] That the word "liberty", as it appears in s 29, can encompass different categories or degrees of the personal liberty referred to in Williams v The Queen is arguably consistent with a "fair, large and liberal" construction[129] of the HRA. The HRA does not, in terms, create a residual liberty but, if it does exist, then it would apply to such a liberty and s 29(3) confirms that any deprivation of that liberty must be in accordance with the grounds and procedures established by law. It is only if there had been a failure to comply with those procedures that s 29 would have any operation.
[227] The Attorney-General argued against the existence of a "residual liberty" and that, in any case, the text of the HRA requires a conclusion that s 29 is concerned not with the conditions of detention but with the fact of detention or deprivation. These arguments need to be considered in two categories. The first concerns the proper construction of s 29 and its relationship with s 30. The second category concerns the existence of a residual liberty. Although, the arguments were advanced in a combined fashion, I do not take the Attorney-General to be arguing that "residual liberty" is denied by force of the HRA.
[228] The expression in s 29(1) that "every person has the right to liberty" should not be read as constituting a grant of that right, rather, it should be read as a recognition or a statement of an existing right. Section 29 is based upon art 9 of the ICCPR. According to the ICCPR Commentary:
[489]
"The traditional view is that the right to liberty relates solely to the fact of deprivation of liberty and the observance of the minimum guarantees specifically formulated in this context, and not to the manner in which liberty is deprived. For example, if a person is arrested and not informed of the reasons, this is a violation of personal liberty; if he or she is mistreated in the process, this has nothing to do with personal liberty. The same applies to the conditions of detention and other related issues, such as denial of contact with an attorney."[130]
[490]
[229] That description does not appear to take into account that there may be different levels of deprivation of liberty. It refers to "conditions of detention" but that needs to be read in the light of observations of the UNHRC to the effect that:
[491]
"[e]xamples of deprivation of liberty include ... Certain further restrictions on the person who is already detained, for example, solitary confinement or the use of physical restraining devices"[131]
[492]
[230] So far as other jurisdictions are concerned, the Attorney-General pointed to a series of decisions of high authority in New Zealand where the courts have declined to follow Miller in favour of the House of Lords in Hague.[132]
[231] I was also referred to the position, broadly speaking, in Europe. While that is informative, it does not assist when considering the common law position in Queensland.
[232] On that point, the Attorney-General argued that a construction of s 29 similar to the approach taken in Canada might inadvertently alter the common law of habeas corpus. It was argued that the HRA was not intended to alter the common law and that, because there is "but one common law in Australia"[133] the HRA should not be construed in a way that might appear to effect such a change.
[233] The Attorney-General also argued, as a matter of construction, that s 29 should not be construed to include "residual liberty". It was argued that s 29 is only directed towards deprivation of liberty rather than treatment after such deprivation. Section 29 was contrasted with s 30 which concerns itself with the right to humane treatment when a person is deprived of liberty. It was also argued that the specific provisions of s 30 should prevail over the more general safeguards in s 29. This is an argument often mounted on the basis that, where a statute provides specifically for a particular matter, then that specific provision is to be used rather than a more general provision which might be read to include such a matter.[134]
[234] For the purposes of this application, I prefer the reasoning of the New Zealand Court of Appeal in Bennett. The availability of judicial review is made obvious by this application. Further, s 29(7) provides that a court, where satisfied that detention is unlawful, must order the release of the person. The construction urged by the applicant would require one of two things. First, it could require that a person unlawfully detained - through the deprivation of residual liberty - be released from the prison. That only needs to be stated for it to be seen to be unacceptable. Secondly, it could require that the Court engage in an assessment of various levels of imprisonment and determine which is most appropriate for a particular prisoner. It could require that a court order that a prisoner be released from the MSU into the general prison population. That goes far beyond what I understand to be the purposes of s 29. It would place a court squarely in the position of substituting its decision for that of the relevant authority. And that would mean that the Court would be exercising a substitutionary and not a supervisory power. That is not the role of the court under the HRA. It follows, then, that s 29 has not been engaged.
[493]
Section 30 - humane treatment when deprived of liberty
[494]
[235] Section 30 applies to persons who have been deprived of their liberty. Section 30(1) provides that:
[495]
"All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person."
[496]
[236] This section is, according to the Explanatory Note, modelled on art 10(1) of the ICCPR. A similar provision in the New Zealand Bill of Rights Act 1999 (NZ) was held to protect the person, who had been deprived of liberty, from conduct that lacked humanity but fell short of being cruel; or which demeaned the person, but not to an extent which is degrading; or which was clearly excessive but not grossly so.[136]
[237] Section 30(1) is identical with s 22(1) of the Victorian Charter_._ Victorian authorities have recognised that the right in the section is relevant whenever prisoners are "subjected to hardship or constraint other than the hardship or constraint that results from the deprivation of liberty".[137] This is consistent with the principle that people are sentenced to imprisonment in a jail as punishment, not for punishment.
[238] The Attorney-General accepts that it is relevant to have regard to the Mandela Rules (which are set out above) while bearing in mind that they do not purport to set a minimum standard. Those rules, so far as is relevant to s 30, proscribe indefinite solitary confinement and prolonged solitary confinement. In those rules, "solitary confinement" means "confinement of prisoners for 22 hours or more a day without meaningful human contact", and "prolonged solitary confinement" means "solitary confinement for a time period in excess of 15 consecutive days".
[239] In her written submissions, the Attorney-General also accepts that the right to humane treatment when deprived of liberty in s 30(1) is limited. The applicant is subject to hardship or constraint beyond the hardship or constraint that all prisoners experienced by virtue of being deprived of their liberty. Further, although the applicant has some interaction with other people, that interaction is unlikely to rise to the level of "meaningful human contact" within the meaning of that term as it appears in the Mandela Rules.
[240] This section has been engaged by the applicant in his evidence.
[241] The matters which are relevant to consideration of this section include:
[497]
(b) the applicant has been in this form of confinement since January 2013,
[498]
(c) the last recorded adverse incident involving the applicant was in June 2014,
[499]
(d) Dr Madsen has repeatedly recommended from 1 July 2016 that the applicant be subject to lesser restraints and weekly therapeutic interventions,
[500]
(e) Ms Newman has acknowledged that the applicant has "done everything that has been asked of him",
[501]
(f) the applicant remains subject to the most serious level of physical restraints, and
[502]
(g) notwithstanding submissions made on his behalf, the applicant has not been provided with an MSU Pre-Association Assessment Report.
[503]
[242] In addition to those matters, it is important to note that the applicant has not been provided with any advice as to how he might behave in order to have these conditions changed or removed. He has not been provided with any indication that his situation might improve, and, in the current circumstances, he could only reasonably foresee that nothing will change.
[504]
Has the respondent satisfied the onus of demonstrating that the limitation was justified?
[505]
[243] The respondent must demonstrate that the limitation is justified. The standard of proof is high and requires a degree of probability commensurate with the occasion.
[244] In considering that matter the factors set out in s 13(2) should be addressed.
[245] The nature of the human right: Section 30 requires that persons deprived of liberty be treated with humanity and with respect for the inherent dignity of the human person. It might have been better expressed by saying that category of person should be "treated humanely" but the decisions on this point all regard the expressions as being the same. To be treated humanely requires some level of benevolence or compassion and the infliction of the minimum of pain. In Castles,[138] it was accepted that the starting point for analysing the scope of this right should be that persons who are detained must not be subject to hardship or constraint other than that which results from the deprivation of their liberty. A necessary consequence of deprivation of liberty is that some rights enjoyed by other citizens will be unavailable or compromised.
[246] The nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom. The purpose of the imposition of the Decisions was, in the decision-maker's words, to manage the applicant's "risk of violence towards other persons, including other prisoners and Corrective Services Officers". Orders of this nature are consistent with the protection of other people's rights and, subject to some matters which will be dealt with below, conceded by the applicant to have that purpose.
[247] The relationship between the limitation and it purpose including whether the limitation helps to achieve the purpose. This factor concerns whether there is a rational connection, that is, whether the limitation is rationally capable of achieving its intended purpose. That connection was not the subject of contention.
[248] Whether there were any less restrictive and reasonably available ways to achieve the purpose. Ms Newman, in her reasons concerning the issuing of a consecutive MSO said:
[506]
"22. I also considered whether there was a less restrictive and reasonably available way to manage prisoner Owen-D'Arcy's risk of violence other than a consecutive MSO. I did not believe there was any such alternative available that could adequately manage the risk he would present in the general prison population. On that basis, I considered that the limitations imposed on prisoner Owen-D'Arcy's human rights were demonstrably justified. I considered and strongly weighted the impact on others should prisoner Owen-D'Arcy engage in similar levels of violence that he has already demonstrated in the future."
[507]
[249] In the Attorney-General's written submissions the onus is sought to be reversed on this point. It was argued that where the applicant was unable to point to another way of addressing the applicant's risk of harming others, which would have a lesser impact on his human rights, it was enough to conclude that the decisions were necessary to achieve their purposes. It is not for the applicant to provide solutions; it is for the respondent to explain why there is no reasonable alternative.
[250] In reaching her conclusion, Ms Newman does not provide any basis for her belief that no such alternative was available that could adequately manage the risk. The burden on the respondent is a heavy one and cannot be discharged simply by the decision-maker reciting that he or she held a particular belief without providing any basis for that belief. Evidence of alternatives to solitary confinement has been given in other jurisdictions, for example, in McCann v The Queen.[139] In that case, the court accepted expert evidence that adequate alternatives existed which would remove the cruel and unusual aspects of solitary confinement, while at the same time achieving the necessary safety and security goals of dissociation.
[251] Balancing the importance of the purpose of the limitation and the importance of preserving the human right, taking into account the nature and extent of the limitation. The Attorney-General acknowledges that the burden on the applicant's human rights is deep. But, it was submitted, the extent of the limit is mitigated by the fact that the decisions are only effective for six months. It was further submitted that there was a possibility of reintegrating the applicant into the mainstream population before the end of the six-month period.
[252] It is, of course, important to balance the rights of others - the protection of their security and their life should weigh heavily in that balance. The decision-maker, though, cannot escape from consideration of the continuing failure to take up, in any meaningful sense, the reasoned recommendations of Dr Madsen. These are matters which, at the time of making the decision, should also have weighed heavily. While it was not for Ms Newman to implement these recommendations, she should have taken into account (or given weight to) the fact that Dr Madsen's recommendations had fallen on deaf ears and that his proposals appeared to have little prospect of implementation.
[508]
"[89] ... any further restriction of a prisoner's rights must be linked to the actual or potential harm the prisoner has caused or will cause by his or her actions (or the potential harm to which he/she is exposed) in the prison setting. Given that solitary confinement is a serious restriction of a prisoner's rights which involves inherent risks to the prisoner, the level of actual or potential harm must be at least equally serious and uniquely capable of being addressed by this means. ... The longer the measure is continued, the stronger must be the reason for it and the more must be done to ensure that it achieves its purpose."
[509]
[255] That principle was applied by the ECHR:
[510]
"101. In order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner's circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling the more time goes by. Furthermore, such measures, which are a form of 'imprisonment within the prison', should be resorted to only exceptionally and after every precaution has been taken. A system of regular monitoring of the prisoner's physical and mental condition should also be set up in order to ensure its compatibility with continued solitary confinement."
[511]
[256] A set of circumstances which bear some similarity to the present case was considered by the Supreme Court of the United Kingdom in Shahid v Scottish Ministers.[141] Shahid had abducted and murdered a 15-year-old boy. In 2005 he was placed in segregation, for his own protection, while he was held on remand. After conviction he was again placed in segregation and orders were made which resulted him remaining in that state until 2010.
[257] Lord Reed (with whom all the other justices agreed) referred to the passage from Razvyazkin set out above after saying:
[512]
"[74] There is no doubt that the appellants case presented the SPS management with a very difficult problem. Nevertheless, they had to apply their minds to find an appropriate solution. In view of the length of the appellants segregation, a rigorous examination is called for by the court to determine whether the measures taken were necessary and proportionate compared with practicable alternative courses of action." (emphasis added)
[513]
[258] The onus upon the respondent in a case like this was emphasised by Lord Reed when he discussed the alternatives which might have been available for the treatment of Shahid:
[514]
"[86] It is however unnecessary to speculate about these and other possibilities. What is apparent is that no meaningful plan was devised until a very late stage. It is for the ministers to establish that the appellants segregation for 56 months was proportionate. In my judgment, in the absence of any evidence that serious steps were taken by the SPS management to address the issues arising from his segregation until four and a half years after it had begun, they have failed to do so." (emphasis added)
[515]
[259] I bear in mind what was said by Lord Bingham in R (SB) v Governors of Denbigh High School:[142]
[516]
" ... it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. ... There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v First County Trust Ltd (No 2). Proportionality must be judged objectively, by the court: R (Williamson) v Secretary of State for Education and Employment." (emphasis added, citations omitted)
[517]
[260] By not taking the factors referred to above into account, Ms Newman failed to balance the importance of the purpose of the limitation and the importance of preserving the human right.
[518]
[261] For the reasons given with respect to the application of s 30 of the HRA, the respondent's decision to issue an MSO was not compatible with human rights (s 58(1)(a)) and, therefore, was unlawful.
[262] Ms Newman also failed to satisfy the procedural limb of s 58. So far as is relevant, she said the following with respect to her decision to issue a consecutive MSO:
[519]
"21. With regard to the impact of prisoner Owen-Darcy's human rights in deciding to issue a consecutive MSO, I considered the impacts of such an order on his human rights, including (but not limited to) the right to liberty and security of person, right to humane treatment when deprived of liberty and the right to protection from torture, cruel, inhuman or degrading treatment under the Human Rights Act2019. I balance those identified human rights against prisoner Owen-Darcy's risk of violence towards other persons, including other prisoners and Corrective Services Officers (who also have a recognised human rights under the Human Rights Act2019 that I am required to consider).
[520]
22. I also considered whether there was a less restrictive and reasonably available way to manage prisoner Owen-Darcy's risk of violence other than a consecutive MSO. I did not believe there was any such alternative available that could adequately manage the risk he would present in the general prison population. On that basis, I considered that the limitations imposed on prisoner Owen-Darcy's human rights were demonstrably justified. I considered and strongly weighted the impact on others should prisoner Owen-Darcy engage in similar levels of violence that he has already demonstrated in the future." (emphasis added)
[521]
[263] With respect to her decision not to permit contact associations within the MSU, Ms Newman said:
[522]
"7. I considered the impact of not permitting contact associations within the MSU on prisoner Owen-Darcy's human rights, particularly**, the right to peaceful assembly** and freedom of association under the Human Rights Act2019. As I have stated above, I believed that there was a significant risk of prisoner Owen-Darcy killing or seriously injuring other prisoners or persons with whom he may come into contact (persons who also have human rights that I must consider). On that basis, I determined that the limitations on prisoner Owen-Darcy's human rights as a result of the direction to not permit contact associations within the MSU without the approval of the authorised delegate was demonstrably justifiable." (emphasis added)
[523]
[264] The No Association Decision is as much a part of solitary confinement or segregation as the MSO. It is not a physical isolation, but it works to prevent the applicant from engaging in any meaningful conversations or exchanges. It places him in a cocoon of isolation from all but the slightest interaction with other human beings.
[265] The rights associated by Ms Newman on this point - the right to peaceful assembly and freedom of association - are relevant. But the No Association Decision also engages (at least) s 30 and this was not considered. Section 58(5)(a) requires that the rights be identified. It is not enough to say: "I considered the impact of not permitting contact associations within the MSU on prisoner Owen-D'Arcy's human rights, particularly, the right to peaceful assembly and freedom of association under the Human Rights Act2019". The rights must be identified if they "may" be affected by the decision. This was not done.
[266] Ms Newman satisfied s 58(5)(a) by identifying the human rights that "may be affected" by the MSO but, for the reasons given above, not the No Association Decision. She could not, then, have been able to give proper consideration to a human right relevant to that decision. The treatment of this important part of the decision-making process fails to satisfy the first, second and fourth parts of the test proposed in Bare. The effect of that failure is to render the No Association Decision unlawful.
[524]
[267] I will hear the parties on the appropriate form of orders which reflect these reasons.
[12] Queensland Corrective Services, Custodial Operations Practice Directive: Prisoner Accommodation Management - Maximum Security Unit, 13 December 2019.
[89] Referred to as "administrative segregation" in Ontario.
[602]
[90] As an example of the evidence which might be adduced, see Certain Children (No 2), and, in Canada, Francis v Ontario[2020] ONSC 1644, upheld in Francis v Ontario[2021] ONCA 197.
[130] William Schabas, UN International Covenant on Civil and Political Rights: Nowak's CCPR Commentary (NP Engel Verlag, 3rd ed, 2019).
[634]
[131] Human Rights Committee, General Comment No 35: Article 9 (Liberty and security of person), 112th sess, UN Doc CCPR/C/GC/35 (16 December 2014).
[635]
[132] For example: Bennett v Superintendent, Rimutaka Prison[2001] NZCA 286; [2002] 1 NZLR 616 where Blanchard J (speaking for the court) said that segregation does not create a new detention.
[636]
[133]Lange v Australian Broadcasting Corporation[1997] HCA 25; (1997) 189 CLR 520 at 563 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
[637]
[134] See, e.g., Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[1932] HCA 9; (1932) 47 CLR 1.
[91] There was evidence relevant to an assessment of the risk presented by the applicant to both prison staff and prisoners. Apart from the final report in 2020, the opinion presented by Dr Madsen was consistent. If the decision-maker did err in the conclusion she reached on this point, then it was an error made within jurisdiction and not one which permits a review of the kind sought by the applicant.
[148] A question which has arisen in the consideration of similar statutes and the role of the Court concerns the nature of the review undertaken by the Court. In Patrick's Case, Bell J said that the judicial review of decisions or actions for unlawfulness under the equivalent of the HRA was a more intensive standard of judicial review than traditional judicial review on, say, Wednesbury unreasonableness grounds.[83] It is, as Emerton J said in Castles,[84] a "high standard of review".
[149] I adopt what was said by Bell J in Patrick's Case on this point:
[156] In his supplementary written submissions, the applicant argued that "there is no need for evidence from a psychologist to establish the common sense proposition that eight years of continuous solitary confinement will have had an adverse psychological effect on the Applicant". Reference was again made to the decision in Attendee Z and it was then submitted that: "In the circumstances, this Court need not have reference to specific expert evidence to conclude that prolonged solitary confinement is harmful to the Applicant".
[157] In the supplementary written submissions of the QHRC, it was submitted that:
[174] Both the Attorney-General and the applicant referred to the United Nations Standard Minimum Rules for the Treatment of Prisoners - known as the Mandela Rules - and the recommendations concerning the appropriate manner in which solitary confinement might be used. The Mandela Rules do not purport to be binding, rather they are proffered as a best practice framework. In CCCL, Benotto JA described them as reflecting a general shift in social views regarding acceptable treatment or punishment.[91]
[175] The respondent, notwithstanding the onus borne with respect to demonstrating that any limits imposed on human rights are justified in accordance with s 13 of the HRA, did not call any evidence.
[183] The QHRC submits that the Court's decision should be informed by the Guiding Principles for Corrections in Australia and the Mandela Rules. The Guiding Principles provide:
[200] The distinction between s 29 and s 30 set out above is consistent with the treatment of similar provisions in other jurisdictions:
Hague.
[222] Campbell was, like so many of these cases, concerned with a claim of false imprisonment. After reviewing the authorities, White J concluded:
[253] Another matter of particular importance which, while acknowledged in passing by Ms Newman, does not appear to have been given enough (if any) weight is that the making of these decisions was not just for six months. It was for a further six months - on top of the more than seven years of MSOs which preceded the Decisions. Ms Newman does not appear to have given any or any sufficient weight to the fact that the Decisions extended a period of solitary confinement which had commenced in January 2013. The limitation was not, in that sense, just for six months. The total effect of the extension, i.e., the total length of solitary confinement, should have been considered. To do otherwise merely pays lip service to the necessary consideration of the effect on the applicant of the Decisions.
[254] The importance of taking into account the total length of time that a prisoner is in solitary confinement was implicit in the reasoning of the European Court of Human Rights ("ECHR") in Razvyazkin v Russia[140] where the Court referred to the 21st General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment: