ADMINISTRATIVE LAW – JUDICIAL REVIEW – STANDING TO INSTITUTE
PROCEEDINGS – GENERALLY – where the Applicant
prisoner applies to
the Court for judicial review of the Respondent Chief Superintendent’s
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – STANDING TO INSTITUTEPROCEEDINGS – GENERALLY – where the Applicantprisoner applies tothe Court for judicial review of the Respondent Chief Superintendent’sdecision to house prisoners on thecommon area floors of the CorrectionalCentre’s ‘huts’ – where the Applicant currently occupieshis own privateroom in one such ‘hut’ and is not a prisoner who ishoused on the common area floors – where the Applicant contendshe isnevertheless adversely affected by the decision due to the overcrowding of the‘huts’ and its associated inconvenience– whether theApplicant is a person adversely affected by the decision – whether theApplicant has standing to bringthese proceedings.ADMINISTRATIVE LAW– JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY –where the Applicant prisoner applies
to the Court for judicial review of the
Respondent Chief Superintendent’s decision to house prisoners on the
common area floors
of the Correctional Centre’s ‘huts’ –
where the Applicant contends that the Respondent ‘failed to consider
the
humanity, dignity and safe custody of inmates’ in making this decision, as
per s 30(1) of the Human Rights Act 2019 (Qld) and s 5A of the
Corrective Services Act 2006 (Qld) – whether such failure is a
source of relief for the Applicant.
ADMINISTRATIVE LAW – JUDICIAL
REVIEW – PREOGATIVE WRITS AND ORDERS – CERTIORARI – NATURE AND
APPROPRIATENESS
OF REMEDY – GENERALLY – where the Applicant prisoner
applies to the Court for judicial review of the Respondent Chief
Superintendent’s decision to house prisoners on the common area floors of
the Correctional Centre’s ‘huts’
– where the Applicant
seeks an order ‘quashing’ the decision – whether such a
decision is one which has legal
effect – whether an order in the nature of
certiorari is available.
ADMINISTRATIVE LAW – JUDICIAL REVIEW
– GENERALLY – where the Applicant prisoner applies to the Court for
judicial
review of the Respondent Chief Superintendent’s decision to house
prisoners on the common area floors of the Correctional Centre’s
‘huts’ – whether declaratory relief would be appropriate in
circumstances where not all potentially interested
prisoners have had an
opportunity to be heard in this application – whether there would be
practical utility in declaratory
relief.
Corrective Services Act 2006
(Qld), s 5A, s 18
Human Rights Act 2019 (Qld), s 30, s 58
Judicial Review Act 1991 (Qld), s 4, s 7, s 20
Ainsworth v
Criminal Justice Commission (1992) 175 CLR 564
[1992] HCA 10,
applied
Argos Pty Ltd v Corbell (2014) 254 CLR 394
[2014] HCA 50,
applied
Cordina Chicken Farms Pty Ltd v Poultry Meat Industry
Committee [2004] NSWSC 197, cited
Hot Holdings v Creasy (1996)
185 CLR 149
[1996] HCA 44, cited
Innes v Electoral Commission of
Queensland (No 2) (2020) 5 QR 623
[2020] QSC
293, cited
London Passenger Transport Board v Moscrop [1942] AC
332, cited
Sons of Gwalia Ltd v Margaretic (2006) 149 FCR 227
[2006] FCAFC 17,
cited
Judgment (67 paragraphs)
[1]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS - GENERALLY - where the Applicant prisoner applies to the Court for judicial review of the Respondent Chief Superintendent's decision to house prisoners on the common area floors of the Correctional Centre's 'huts' - where the Applicant currently occupies his own private room in one such 'hut' and is not a prisoner who is housed on the common area floors - where the Applicant contends he is nevertheless adversely affected by the decision due to the overcrowding of the 'huts' and its associated inconvenience - whether the Applicant is a person adversely affected by the decision - whether the Applicant has standing to bring these proceedings.
[2]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY - where the Applicant prisoner applies to the Court for judicial review of the Respondent Chief Superintendent's decision to house prisoners on the common area floors of the Correctional Centre's 'huts' - where the Applicant contends that the Respondent 'failed to consider the humanity, dignity and safe custody of inmates' in making this decision, as per s 30(1) of the Human Rights Act 2019 (Qld) and s 5A of the Corrective Services Act 2006 (Qld) - whether such failure is a source of relief for the Applicant.
[3]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PREOGATIVE WRITS AND ORDERS - CERTIORARI - NATURE AND APPROPRIATENESS OF REMEDY - GENERALLY - where the Applicant prisoner applies to the Court for judicial review of the Respondent Chief Superintendent's decision to house prisoners on the common area floors of the Correctional Centre's 'huts' - where the Applicant seeks an order 'quashing' the decision - whether such a decision is one which has legal effect - whether an order in the nature of certiorari is available.
[4]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY - where the Applicant prisoner applies to the Court for judicial review of the Respondent Chief Superintendent's decision to house prisoners on the common area floors of the Correctional Centre's 'huts' - whether declaratory relief would be appropriate in circumstances where not all potentially interested prisoners have had an opportunity to be heard in this application - whether there would be practical utility in declaratory relief.
[1] Mr Pilcher is serving a sentence of life imprisonment in the Townsville Men's Correctional Centre. He is housed in an area of the Centre called the Village. It consists of multiple single storey buildings, each consisting of two abutting self-contained huts. The built form of each hut is designed to accommodate five prisoners, one for each of its five cells, each of which contains a single bed. However, because of high prisoner numbers, the Chief Superintendent decided to place two temporary beds in each of the huts' common living areas to accommodate seven, rather than five, prisoners per hut.[1] The decision inevitably makes for a more adverse accommodation environment in the Village than when it is housing the normal number of prisoners it was built to accommodate.
[2] Mr Pilcher challenges the decision by application for judicial review per s 20Judicial Review Act 1991 (Qld). He contends the Chief Superintendent's decision failed to consider the humanity, dignity and safe custody of inmates.
[3] The Chief Superintendent submitted Mr Pilcher lacks standing to bring the application and even if he does, that its grounds lack legal foundation and no potentially relevant form of relief is appropriate to the circumstances of the case.
[4] Mr Pilcher does not lack standing, but, for reasons developed below, his application's grounds lack legal foundation and the potential forms of relief canvassed in this review are not apt to the case.
[5] The issues to be addressed in explaining why his application must therefore be dismissed are:
What was the decision?
Does Mr Pilcher lack standing?
What is the factual foundation for the alleged failure to consider the humanity, dignity and safe custody of inmates?
Is there a legal foundation for the application's reliance on a failure to consider the humanity, dignity and safe custody of inmates?
What potential forms of relief arise for consideration?
[16]
[6] Mr Pilcher's application identified the decision sought to be reviewed as a decision of the Townsville Men's Correctional Centre's Chief Superintendent 'to force men to sleep on the common area floors of the Centre's accommodation areas'.[2] Read literally the application relates to any decision to house prisoners on any of the common area floors of the Centre's accommodation areas but the filed materials indicate it was a decision relating to the Village.
[7] The Village is one of a variety of accommodation areas in the Centre. The Centre is divided into 'secure' cell-style accommodation and 'residential' accommodation'. Secure accommodation is typically for prisoners requiring higher levels of supervision, management and monitoring. Residential accommodation is for prisoners requiring lower levels of supervision and management.
[8] Prisoners generally start their sentence in secure accommodation and work towards transferring to residential accommodation. The progression of such transfers is influenced by considerations including behaviour in custody, individual special needs, history of drug use, employment status, risks of self-harm, medical or psychological status and escape history.
[9] Once transferred to residential accommodation, prisoners in turn progress within the available four units of residential accommodation at the Centre. Those units are the Blocks, McCann, S11 and the Village. Prisoners generally start their time in residential accommodation in the Blocks, progressing to McCann and then to S11 or the Village. It appears some prisoners may progress further, to low security accommodation beyond the Centre, including accommodation elsewhere within the broader Townsville Correctional Complex. However, Mr Pilcher understands that is not an option for prisoners serving a sentence of life imprisonment, as he is.
[10] Most prisoners moving to the Village move from McCann, which is more densely occupied than the Village. For example, most cells in McCann contain two beds, whereas it is one bed per cell in the Village huts. Since 17 August 2022 Mr Pilcher has occupied a cell in a hut in the Village and is thus his cell's sole occupant.
[17]
(a) The Village is the most favourable accommodation environment to which prisoners can progress in the Centre. The system of progressing prisoners towards being accommodated there promotes good behaviour, order and safety. That system is undermined by the decision because it is not a 'progression' if a prisoner is moved from being accommodated in a cell elsewhere to the relatively less secure and safe environment of a Village hut's common area.
(b) Increasing the occupation of huts designed to accommodate five men, by two additional men, increases traffic and strain on communal amenities which is in turn likely to lead to animosity, tension and a heightened risk of violence.
(c) The progression of prisoners to increasingly favourable accommodation slows to a bottleneck after arrival at the Village because some cannot progress past that point to corrective facilities beyond the Centre. Therefore, men being accommodated in the common area of Village huts will be required to do so for prolonged periods of at least several months before a cell within the hut becomes available.
(d) The above adverse consequences will heighten demands upon corrective officers but it is unlikely extra officers will be allocated.
[18]
[31] Mr Pilcher's letter of 7 January 2025 to 'Queensland Corrective Services' articulated the above risks and impacts plus two additional risks or impacts, namely:
[19]
(e) The situation to which the decision gives rise is 'dismissing the dignity of inmates'.
(f) Accommodating men and their possessions in the open common area of a hut exposes them to a relatively higher risk of violence to them and theft of their possessions than accommodating them in a cell.
[20]
[32] Mr Pilcher's letter of 1 January 2025 to the Chief Superintendent requested an 'official Statement of Reasons', 'so the matter can be escalated'. Mr Pilcher's letter of 7 January 2025 to Queensland Corrective Services advised that if the current situation was not rectified 'an official Statement of Reasons' was requested 'in order to escalate the matter to a judicial process'.
[33] Mr Pilcher's affidavit exhibits a letter to him dated 10 January 2025 from Chief Superintendent Kneeshaw. Its content does not say it is a statement of reasons and the Chief Superintendent did not depose that it was. The letter said:
[21]
Thank you for your Blue Letter regarding your concerns around prisoners on the floor in the Village.
[22]
Due to an increase in the number of inmates at the Townsville Correction complex we have had to utilise additional capacity.
[23]
In determining the most suitable accommodation option, I have considered a range of associated risks including the risks and impacts you have outlined, the timeframe for the proposed activity, employment and activity levels of those impacted areas, staffing levels, intelligence holdings and assess suitability of those individuals involved to be accommodated in lower security accommodation.
[24]
Whilst I appreciate your perspective and certainly share your commitment to respectful accommodation options, I balanced a range of risks and determined the accommodation option to be the most appropriate available. (emphasis added)
[25]
[34] That explanation asserted that the risks and impacts outlined in Mr Pilcher's letter had been considered. Less clear is which of Mr Pilcher's letters the Chief Superintendent was referring to, a point not clarified in submissions. It was probably the letter to the Chief Superintendent of 1 January 2025. If that is right it is unclear whether the Chief Superintendent appreciated she had been requested to provide a statement of reasons within the meaning of pt 4Judicial Review Act, for that letter spoke of the prospect of escalating the matter, as distinct from escalating it to a judicial process, as was said in the letter to Queensland Corrective Services of 7 January 2025_._
[35] But for other difficulties with Mr Pilcher's application these points may have assumed some potential significance. That is because the Chief Superintendent's letter of 10 January 2025, in asserting she had taken into account the risks and impacts raised by Mr Pilcher, ought not be taken as having asserted that she had taken into account the two extra risks and impacts only mentioned in Mr Pilcher's letter to Queensland Corrective Services of 7 January 2025 (see (e) and (f) above). One of those impacts went to the dignity of inmates.
[36] The Chief Superintendent deposed that State-wide and local policies govern the assessment and allocation of accommodation of prisoners at the Centre. In particular, she has identified her department's custodial operations' practice directive 'Prisoner accommodation management - cell allocation' as at December 2024 as relevant. Mr Pilcher highlights that while that directive refers to the need to treat incarcerated persons humanely, it makes no mention of respect for the inherent dignity of inmates - a curious omission from a document which on its face purports to aid Human Rights related decision-making. In any event there is no evidence the practice directive actually informed the making of the decision in question, so it remains unclear whether the decision's impact on the dignity of inmates was considered.
[37] It appears Mr Pilcher was unaware of the importance, in demonstrating reviewable error, of clearly bedding down a statement of reasons from the decision-maker. He seemingly advanced the application on the basis that the living arrangements to which the decision gave rise were so obviously unreasonable as to demonstrate a failure to take relevant considerations into account. The difficulty with that approach is that management of a correctional facility with finite resources involves weighing an array of competing considerations including the competing needs of all prisoners. In the absence of clarity as to what, if any, statement of reasons was before the Court, it would have been difficult to sensibly assess whether Mr Pilcher had established his grounds.
[26]
Whenever practicable, each prisoner in a corrective services facility must be provided with a room that is not shared with any other prisoner.
[27]
[40] Mr Pilcher acknowledges that due to the overcrowding across the Centre, it is not practicable for all inmates to be provided with a room that is not shared with any other prisoner. Unable to deploy s 18 in support of his application, Mr Pilcher took another path.
[41] Mr Pilcher's application, relying upon s 20(2)(b) and (e) Judicial Review Act, advances grounds that, in making the decision, the Chief Superintendent:
[28]
...failed to observe the procedures that were required by law to be observed and simultaneously employed an improper exercise of power by failing to make relevant considerations in the exercise of her power.
[29]
The grounds elaborate on the singular legal source of those dual alleged shortcomings by then asserting that in making the decision the Chief Superintendent:
[42] Those grounds misconceive what is 'stipulated' by s 5A. To explain why, it is first necessary to explain two sections in the Human Rights Act 2019 (Qld).
(a) to act or make a decision in a way that is not compatible with human rights; or
[36]
(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision. ...
[37]
The Chief Superintendent comes within the definition of a public entity in s 9.Section 58 thus makes it unlawful for the Chief Superintendent, in making a decision of the present kind, to make it in a way which is incompatible with, or fails to give proper consideration to, prisoners' rights per s 30 to be 'treated with humanity and with respect for the inherent dignity of the human person'.
[38]
[45] Section 58(1)'s potential relevance in a judicial review is explained by s 59, which relevantly provides:
[39]
(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.
[40]
(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).
[41]
(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.
[44]
(5) A person may seek relief or remedy on a ground of unlawfulness arising under section 58 only under this section.
[45]
[46] The exclusory effect of the above emphasised words 'other than' and 'only' is important. The practical effect of s 59 here is that unlawfulness under s 58, by virtue of a decision's incompatibility with or failure to properly consider s 30, is irrelevant unless relief is also sought on some ground other than a breach of s 58.[6] In lay terms, a ground based on such incompatibility or failure cannot stand alone; it needs some other ground to piggyback on. This qualifying effect of s 59 is naturally not well appreciated by those who complain their human rights have not been taken into account. However, it is the clear effect of a statute which, in articulating rights, is prone to being misunderstood as offering more than it delivers, with some exceptions.[7]
[47] Returning now to the relevance of Mr Pilcher's reliance on some subsections of s 5A Corrective Services Act, s 5A relevantly provides:
(1) This section applies to the chief executive's or a corrective services officer's consideration of - ...
[48]
(b) the Human Rights Act 2019, section 30 in relation to managing a prisoner in a corrective services facility where it is not practicable for the prisoner to be provided with the prisoner's own room under section 18.
[49]
(2) To remove any doubt, it is declared that the chief executive or officer does not contravene the Human Rights Act 2019, section 58(1) only because the chief executive's or officer's consideration takes into account - ...
[50]
[48] The intended meaning of s 5A(2) in its use of the words 'only because' is not apparent, considered in isolation. However, read in context with s 58, it means a decision which must be reached considering a prisoner's right to be treated with humanity and, with respect for the inherent dignity of the human person, will not be made unlawful by additionally considering the safe custody and welfare of all prisoners. That interpretation is also consistent with p 9 of the explanatory notes to the Human Rights Bill 2018.
[49] It follows, to the extent s 5A has relevance here, its practical effect is triggered when a decision-maker is reaching a decision about how to manage a prisoner where it is not practicable for the prisoner to be provided with the prisoner's own room, and in that process is considering the prisoner's right to be treated with humanity and with respect for the inherent dignity of the human person. When that occurs, the decision will not be made unlawful by additionally taking into account the safe custody and welfare of all prisoners.
[50] In short, s 5A's effect is permissive of decision-making which has regard to the safety and welfare of all prisoners. It is not a source of relief. Contrary to what is suggested in Mr Pilcher's grounds, it does not stipulate consideration of the humanity, dignity and safe custody of inmates.
[51] Mr Pilcher's grounds can only be read as in effect relying upon the unlawfulness per s 58 of a failure to consider his human rights per s 30.[8] It is only that pathway which, in the application as advanced, could sustain his grounds' allegations of failing to observe the procedures required by law and failing to make relevant considerations in the exercise of the Chief Superintendent's power.
[52] It follows the application is not based on some ground other than the decision being unlawful because of s 58. Because of the absence of some other ground for that ground to piggyback upon, s 59 has the consequence Mr Pilcher is not entitled to the remedy he seeks and his application must therefore be dismissed.
[51]
Is a declaration an apt form of relief here?
[52]
[60] Mr Pilcher's application did not in terms seek a declaration, but such relief was the subject of submissions. Such relief would involve an order declaring the rights of the parties in relation to any matter to which the decision relates - see s 30(1)(c)Judicial Review Act.
[61] Such a declaration would have the potential to impact the interests of more prisoners than Mr Pilcher. My acceptance that Mr Pilcher has standing means that every occupant of the Village huts to which the decision applies, whether they are housed on the common area floors or in their own cells, must have an interest in the potential making of a declaration. Those prisoners housed on the common area floors would have a greater interest in the making of such a declaration. Some may not want such a declaration to be made. They may prefer to put up with the existing arrangement rather than be returned to McCann. If they have prospects of progressing to low security accommodation beyond the Centre they may prefer to put up with the existing arrangement, rather than jeopardise their prospects of progression.
[62] It is well established that a declaration of rights should not ordinarily be made if persons who have a real interest which may be affected by the making of the declaration have not had an opportunity to be heard.[11] There is no suggestion the potentially substantial number of prisoners who may be affected have been given and have declined an opportunity to be heard. That makes a declaration an inappropriate form of relief here.
[63] Two other points should be made on this topic. Firstly, the large number of potentially interested prisoners who ought have an opportunity to be heard might arguably be less if confined only to the prisoners accommodated in the common spaces of the Village huts. But that would be contrary to the conclusion, successfully pressed for by Mr Pilcher, that the interests of prisoners accommodated in the cells of the huts are also affected by the decision.
[64] Secondly, the breadth of interested persons reflects the reality that the Chief Superintendent, in making decisions about accommodating prisoners with the resources available, must weigh the competing needs of all prisoners. Declarations should not be made unless they have utility, and there would be no practical utility in a declaration in such a labile environment. That is because the management of accommodation resources is a continuing process which must be responsive to needs which will inevitably be fluctuating and not to needs as they stood at the moment of the declaration.
[53]
[65] I have found the application must be dismissed. Such a finding would not give Mr Pilcher a basis to seek a costs order in his favour. There was uncertainty expressed at the hearing as to whether the Chief Superintendent would seek a costs order in the event of such a finding. My orders should therefore allow for the possible need to hear the parties about costs.
[66] My orders are:
[54]
Application dismissed.
2. If the Chief Superintendent seeks an order as to costs:
[55]
(a) she must notify the Registry of that fact within 28 days; and
>
> (b) the Registry will then list this matter for further hearing as to costs (out of town parties having leave to appear by videolink) on the next available applications morning, notifying the parties and issuing a notice to produce Mr Pilcher by videolink.
[56]
[1] There is some conflicting information in the evidentiary materials as to whether the huts have five or six cells but the predominantly mentioned number is five. The inconsistency requires no resolution here because the issues derive from the impact of the huts accommodating two additional prisoners and accommodating them in the hut's common area.
[57]
[2] The Chief Superintendent is actually the Chief Superintendent of the Townsville Correctional Complex, not just the Men's Correctional Centre, but nothing turns on that.
[7] For example, the Act does provide a path to consideration of complaints by the Human Rights Commission.
[63]
[8] Mr Pilcher's Outline of Argument also asserted, 'The decision is also arguably in breach of Rules 13 and 14 of The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)'. However, he did not advance that argument when he made his submissions and it is no part of his grounds.
Townsville Men's Correctional Centre [2025] QSC 231
Legislation Cited (4)
Rights Act 2019
Services Act 2006
Review Act 1991
Civil Procedure Rules 1999
Cases Cited (4)
(1992) 175 CLR 564
(2014) 254 CLR 394
(1996) 185 CLR 149
(2006) 149 FCR 227
Is the decision apt to attract an order quashing it or setting it aside?
Is a declaration an apt form of relief here?
[11] The decision of concern to Mr Pilcher resulted in two extra prisoners per hut being housed in the common area of huts in the Village, where Mr Pilcher is located.
[12] The huts in the Village each contain communal facilities including a laundry, toilet and bathroom abutting a large common area onto which the cells also open. The common area has a kitchenette and dining areas towards one end and common space towards the other end. It is into that common space that two temporary beds were placed.
[13] Those beds consist of a mattress and so-called canoe bed. The latter is a plastic shaped bed frame with canoe shaped base into which the mattress is placed, although some prisoners choose not to use it and only use the mattress. Their personal property is placed at the end of their bed.
[14] The decision resulting in this increase in residents in the Village huts appears to have been made on 30 December 2024, when the acting Chief Superintendent and General Manager of Townsville Correctional Complex made an 'operational decision' to 'increase prisoner capacity' in the Village huts by two prisoners per hut (excluding one hut housing disabled prisoners and carers).
[15] According to the affidavit of Ms Louise Kneeshaw, the Chief Superintendent and General Manager, she returned from leave in December 2024 and continued to make the same decision. She deposed in swearing her affidavit that the arrangement implemented by the decision 'continues to be operationally necessary to manage bed capacity and accommodation of prisoners at TMCC'.
[16] It appears the increase in residents per hut resulting from the decision occurred and continued from 1 January 2025.
Does Mr Pilcher lack standing?
[17] Section 20 of the Judicial Review Act permits a person to apply for a statutory order of review if the person 'is aggrieved by a decision to which this Act applies'.
[18] It is not in issue that the decision is a decision to which the Act applies. For example, it appears to meet the requirements of s 4 of the Act that it is a decision of an administrative character made by an employee of the State.
[19] Whether Mr Pilcher has standing, as a person 'aggrieved by' the decision, is in issue. Section 7 of the Act provides a person aggrieved by a decision includes a reference to 'a person whose interests are adversely affected by the decision'.
[20] The Chief Superintendent submits Mr Pilcher lacks standing to bring the application because his interests are not adversely affected. The submission's premise is narrow, namely that no additional prisoner is housed in his room because of the decision. However, the reality is not so confined - Mr Pilcher is also a user of the communal area of the hut in which the additional two prisoners are housed.
[21] The evidence of the adverse effects of the heightened demand upon communal space and facilities caused by the presence of two additional prisoners living and sleeping in that space is not as clear as may be. Mr Pilcher's outline of argument made an array of factual assertions, many of which are not contained in the affidavits before me and thus not in evidence.
[22] However, there is evidence of the content of correspondence by Mr Pilcher complaining to persons including Ms Louise Kneeshaw, the Chief Superintendent and General Manager of Townsville Correctional Complex, about prisoner overcrowding and the practice of housing prisoners on common area floors of huts in McCann and the Village. It appears from the correspondence that the practice has at times ceased, only to re-commence due to increases in prisoner numbers.
[23] Mr Pilcher's correspondence contains a number of factual predictions that, as a result of the increase in hut accommodation capacity, an excess of traffic, odour and strain on amenities will foster animosity and tension between inmates leading to an increase in violence. The correspondence does not cite any specific example of such violence occurring since the decision, but asserts violence occurred after past decisions to house prisoners more densely and would be likely to occur again following this decision.
[24] Despite the poor state of the evidence as to the actual effects of the decision, it remains that in a hut designed to accommodate five men and in which five men normally use the hut's communal space and facilities, the decision increases that use by two men, as well as sleeping them in that space. Instead of five men accessing kitchen, dining and communal space there will be seven men, and thus less conveniently available access, as well as less overall communal space. Instead of five men using laundry, toilet and bathroom facilities there will be seven men and thus less conveniently available use.
[25] As a simple matter of mathematics, the decision adversely impacts the level of convenient access and use usually enjoyed by the hut's prisoners in respect of the communal space and facilities. It is unnecessary to speculate upon the degree to which this adverse impact may in turn raise tensions between prisoners, heightening the relative risk of violence. That would depend upon the individual personal qualities of the mix of prisoners being housed together and there is no evidence about that. In any event that would be one of an array of potential secondary consequences of the primary consequence relevant to Mr Pilcher's standing, of which there is evidence. That primary consequence is the diminution in the normal level of convenient access and use of communal space and facilities, evidenced by the raised number of hut occupants.
[26] That consequence adversely affects Mr Pilcher's interests. That is not to say it adversely affects his legal rights. However, it is well established in this context that the term 'person who is aggrieved' should not be interpreted restrictively and interests that may be adversely affected by a decision may take a variety of forms.[3] The adverse effects of a decision on a person are relevant where those effects upon the person's interests are different from the decision's effects upon the public at large.[4]
[27] It follows Mr Pilcher is a person 'aggrieved by' the decision. He does not lack standing. However, more must be established to justify this Court's interference.
What is the factual foundation for the alleged failure to consider the humanity, dignity and safe custody of inmates?
[28] It will be recalled the Chief Superintendent's decision was an operational decision which she deposed continues to be operationally necessary to manage the bed capacity and accommodation of prisoners at TMCC.
[29] In letters of 1 January 2025 to the Chief Superintendent and 7 January 2025 to 'Queensland Corrective Services' Mr Pilcher raised his concerns about the risks and impacts of the decision.
[30] In summary, the risks and impacts identified in the letter of 1 January 2025 to the Chief Superintendent were:
[38] Had his grounds not also been lacking legal foundation I would probably have adjourned the proceeding to ensure a statement of reasons was unambiguously before the Court.
Is there a legal foundation for the application's reliance on a failure to consider the humanity, dignity and safe custody of inmates?
[53] That conclusion makes what follows unnecessary in determining the application. I include it to explain why, in any event, it would not have been appropriate to grant the relief sought.
What potential forms of relief arise for consideration?
[54] Mr Pilcher's application seeks orders quashing or setting aside the decision - see s 30(1)(a) Judicial Review Act. He also seeks accompanying orders remitting the decision back to the Chief Superintendent to be determined in accordance with law. Such relief is a potential adjunct, per s 47(3), to an order setting aside the decision, as distinct from a form of relief in its own right,
Is the decision apt to attract an order quashing it or setting it aside?
[55] It is contended by the Chief Superintendent that an order quashing or setting aside the decision is only available in respect of an exercise or purported exercise of power which has an apparent legal effect; this decision not being such an exercise of power. The Applicant submits the decision 'indeed had a legal effect, in that it's infringed on my human rights by compromising my dignity and safety'.
[56] The order sought is an order in nature of certiorari. The effect of s 41(2)Judicial Review Act is that an order in the nature of certiorari is only available in circumstances where the Court would have been able to grant such relief in the exercise of its original or inherent jurisdiction.
[57] It is well established that the function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review and that the decision or order must have legal effect or consequences in order to be quashed.[9] Thus, for an order in the nature of certiorari to be made, Mr Pilcher must demonstrate that the 'decision' had 'a discernible or apparent legal effect upon rights'.[10]
[58] The decision may have been adverse to Mr Pilcher's interests but it did not have a legal effect upon his rights. The high point of Mr Pilcher's submission to the contrary is his reliance upon s 30Human Rights Act. These reasons have explained how s 30 has no relevant legal operation unless relief is sought on some ground other than a breach of s 58. It is not so sought here.
[59] The result is that it would not have been appropriate to make an order quashing or setting aside the decision and remitting the matter to the Chief Executive for further consideration.