Plaintiff v First Defendant

Supreme Court of Victoria|2006-09-27|Before: GILLARD J

JUDICIAL REVIEW - Adult Parole Board's exercise of power under Serious Sex Offenders Monitoring Act 2005 - Parole Board subject to Judicial Review by Supreme Court - Power exercised concerning residence of offender - Required to reside within walls of prison - Residence not within community - Exercise of power not within statutory authority - Declared invalid - Restraints placed on offender's freedom within power.

1 In a proceeding instituted by originating motion, the plaintiff seeks judicial review of a decision by the Adult Parole Board of Victoria imposing instructions and directions upon him, with which he is bound to comply, pursuant to the 2005 ("the Act").

"(1) The main purpose of this Act is to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who are a serious danger to the community to be subject to ongoing supervision while in the community."

7 On 7 March 2006, an application was made in this Court by the Secretary for an ESO in respect of Mr Fletcher, pursuant to s.5(1) of the Act. Mr Fletcher was an eligible offender within the meaning of the Act, in that he had been the subject of a custodial sentence in respect of a relevant offence, namely, indecent assault of a child - see s.2. The application was supported by substantial material, including material from specialist medical practitioners. Material was filed on behalf of Mr Fletcher opposing the order, but on the day the matter came on for hearing before me, namely 26 May 2006, Mr Fletcher, who was represented by experienced counsel, informed the Court that he consented to an order being made under the Act for a period of five years from 12 June 2006.

8 I was satisfied on the basis of the material filed in the Court, and the consent of Mr Fletcher, that it was appropriate to make an order pursuant to s.11 of the Act. Section 11(1) authorises the Court to make the ESO if the Court is satisfied "to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on the completion of the service of any custodial sentence". (Emphasis added.) I gave brief reasons, explaining why the order should be made.[1] The order I made declared that the Court was satisfied to a high degree of probability that Mr Fletcher was likely to commit a relevant offence. Pursuant to s.15 of the Act, the Court stated the conditions which were to apply in respect to the supervision order. The conditions included that Mr Fletcher must attend at any place as directed by the Secretary or the Adult Parole Board for the purpose of supervision, assessment or monitoring, that he must report to and receive visits from the Secretary or any person nominated by the Secretary, and that he must notify the Secretary of any change of name or employment. Other conditions were that Mr Fletcher was not permitted to move to any new address without prior written consent of the Secretary, was not permitted to leave Victoria without permission, and was obliged to obey all lawful instructions and directions of both the Secretary and the Parole Board.

9 In addition, it was provided that the latest date by which the first review of the order was to take place under Division 3, Part 2 of the Act, was 11 June 2009.

10 I observed, in the course of giving my reasons, the following:

"One matter that is central to any application under this Act is the question of what the future may hold. The Court carefully considers the past, and in particular the offender's period in gaol, with particular reference to any rehabilitation. This may provide evidence as to what the future may hold, but the Court does not have the benefit of any evidence of a situation where the offender is not subject to close monitoring and supervision that takes place within the gaol.

The next three years will provide some evidence of Mr Fletcher's attitude and approach in the community, subject to monitoring. The Court should proceed in a case such as the present with caution. Mr Fletcher's behaviour leading to his conviction and sentence is a matter of concern and his attitude in gaol and the writing of letters to people in Ghana show a man who believes that the offending behaviour in the past was permitted by his religious views, and that the unusual and improper practices that he preaches to the addressees in Ghana are also accepted by his religion. Time will tell whether he learns that that type of conduct is not acceptable in this State. His conduct in the community will be monitored under this extended supervision order."

11 Once the Court had made the order, that was the end of the application. The Act authorises the Court to review any supervision orders.[2]

The Secretary and Adult Parole Board take over

12 Section 16 of the Act deals with the implementation of the ESO. Section 16(1) authorises the Secretary to give any instruction or direction to the offender that the Secretary considers necessary, and s.16(2) gives the same power to the Adult Parole Board. There is no doubt that the powers given to both the Secretary and the Parole Board are wide. Section 16(3) sets out what the Parole Board may do, but it does not purport to be a complete statement of what the Board can do, and is subject to the wide power found in sub-s.(2). The Board in fact gave instructions and directions to Mr Fletcher. He received the instructions on 12 June 2006. That was the day on which his sentence of imprisonment was completed.

13 It is necessary at this stage to set out the provisions of s.16(2), (3) and (4) of the Act. They are:

"(2) For the purposes of section 15(3)(h) the Adult Parole Board may give to an offender who is subject to an extended supervision order any instruction or direction that the Board considers necessary to achieve the purposes of the conditions of the order set out in section 15(2).

(3) Without limiting sub-section (2), instructions or directions given by the Adult Parole Board may include instructions or directions as to -

(a) where the offender may reside;

(b) times at which the offender must be at home;

(c) places or areas that the offender must not visit or may only visit at specified times;

(d) treatment or rehabilitation programs or activities that the offender must attend and participate in;

(e) the types of employment in which the offender must not engage;

(f) community activities in which the offender must not engage;

(g) persons or classes of person with whom the offender must not have contact;

(h) forms of monitoring (including electronic monitoring) of compliance with the extended supervision order to which the offender must submit;

(i) personal examinations by a medical expert for which the offender must attend for the purpose of the Board being given a report by the expert to assist6 it in determining the need for, or form of, any instruction or direction under this section.

(4) The Secretary or the Adult Parole Board may at any time vary an instruction or direction given under this section by the Secretary or the Board, as the case requires."

14 Section 15(3)(h) of the Act contains a condition of the ESO that the offender must - "(h) obey all lawful instructions and directions of the Adult Parole Board given under s.16(2)."

15 It is noted that the instructions or directions that the Board make must, in the opinion of the Board, be necessary to achieve the purposes set out in s.15(2). Section 15(2) provides -

(a) to ensure that the community is adequately protected by monitoring the offender;

(b) to promote the rehabilitation, and the care and treatment, of the offender."

16 In my opinion, Mr Fletcher is bound to obey the lawful instructions and directions of the Board. Further, the power given in s.16(2) is wide, and authorises the Board to give instructions and directions which the Board considers necessary to achieve the purposes in s.15(2). It is to be noted that the purposes of the conditions are twofold, namely, to protect the community by monitoring, and, secondly, to promote the rehabilitation and care and treatment of the offender. Mr Hanks QC, who appeared with Ms McKenzie for the defendants, conceded, as indeed, in my view, he had to, that the Secretary and the Board had to take into account in giving the instructions and directions the care and treatment of the offender, namely Mr Fletcher. I further am of the opinion that s.16(3) is not an exhaustive list, and contains examples of the type of instructions or directions that the Board may give.

17 It is important to note that under s.16(4), both the Secretary and the Board may at any time vary an instruction or direction given.

18 Further, in my opinion, the conditions which have been imposed do not constitute a fixed regime. One would anticipate and expect that Mr Fletcher's position would be under constant consideration, and that the conditions and instructions would be varied from time to time as Mr Fletcher demonstrates, by his conduct and attitude, that the purposes of the conditions are being satisfied.

Instructions and directions of the Parole Board

19 On 7 June 2006, the Parole Board gave the following instructions and directions, which bound Mr Fletcher, and which the Board considered were necessary to achieve the purposes of the conditions set out in s.15(2) of the Act. The conditions are -

"The Board gives you the following instructions and directions, which it considers are necessary to achieve the above purposes of the conditions of the extended supervision order:

a) that you carry out the lawful instructions of the supervising community corrections officer;

b) that you report as and when directed by the supervising community corrections officer;

c) that you comply with any form of electronic monitoring, and any other form of monitoring, as directed by the Centre Manager;

d) that you undergo assessment and treatment for alcohol or drug addiction or submit to medical, psychological or psychiatric assessment and treatment as directed by the Centre Manager;

e) that you attend the Community Forensic Mental Health Service for assessment, as required, and undergo such treatment as directed by the Director, Victorian Institute of Forensic Mental Health or his nominee;

f) that you have no contact supervised or unsupervised with children or young persons under the age of eighteen;

g) not without reasonable excuse enter or loiter near any school or children's playground or child care area;

h) not join, affiliate with, attend on the premises of, or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there is either child membership or child participation;

i) that you are not permitted to leave your designated residential address except in the company of a Corrections Victoria approved escort;

j) not without reasonable excuse be within 500 metres of a school between 8 am to 9:30 am and 2:30 pm to 4:00 pm on school days or be in an area within 300 metres of a school at any time, nor enter school premises at any time;

k) not visit public parks without written permission from the supervising community corrections officer;

l) that you adhere to the curfew between 8.00 pm and 7.00 am except with the written permission of the supervising community corrections officer;

m) that you have no contact whatsoever either directly or indirectly with the victims;

n) that you reside at the Extended Supervision Order Temporary Accommodation Unit in Ararat and not move from this address without the prior written consent of the Secretary to the Department of Justice;

o) that you report before the Board for interviews as and when directed by the Board;

p) that you be assessed for participating in the Sexual Offender Supervision Program (SOSP) and, if found suitable, that you participate in the SOSP as directed by the supervising community corrections officer; and

q) that you not use or access the internet."

Mr Fletcher's complaint

20 On the day that he was released, Mr Fletcher was given the said instructions and directions. Condition (n) required him to reside at the Extended Supervision Order Temporary Accommodation Unit in Ararat. This, in fact, was a security unit forming part of the Ararat Prison. The unit comprised 10 cells and Mr Fletcher occupied one of them. In his affidavit sworn 7 August 2006, he set out in some detail the conditions under which he lived, which were far from comfortable. In his affidavit, he also complained about the fact that he was denied freedom of movement, and that he could only leave the premises in the company of an approved escort. That was the position as at the institution of this proceeding. On 9 August 2006, he was moved from the Serious Sexual Offender Unit to a completely separate unit within the grounds, but still inside the perimeter of the Ararat Prison. The new residence was located on a portion of land which was degazetted as a result of an Order in Council made on 27 July 2006. This no longer formed part of the Ararat Prison. However, the fact is that the area is within the walls of the Ararat Prison. The degazetted land was fenced off using cyclone fencing, and shade cloth screening on three sides, in order to provide privacy for any occupants and visitors. A house described as a "relocatable unit", comprising a two bedroom weatherboard dwelling with a small kitchen, bathroom and lounge-dining area, was erected on the site. Mr Fletcher has occupied the residence since 9 August 2006.

21 Located outside the prison walls is a residence near the facilities for the Prison Officers, which recently has been occupied by another person. It is anticipated that Mr Fletcher may be moved to that location. He has not been moved as yet.

22 Mr Fletcher, in his affidavits and supporting evidence, eloquently sets out the restrictions on his freedom and states that when he is permitted to leave the degazetted land, he must be accompanied by an approved escort. This severely restricts his opportunities to leave the area. He makes two general complaints about the conditions imposed, namely -

First, that he is occupying a residence within the boundaries of Ararat Prison, and to that extent, is treated as if he was still a prisoner; and

Secondly, that the conditions severely restrict both his freedom of movement and who he may have contact with.

23 The prison is located in the countryside, three kilometres to the east of the township of Ararat. The nearest residence is approximately 500 metres from the area, and the nearest street, where there are a number of residential properties, is approximately one kilometre away.

24 There is no doubt that the present conditions severely interfere with Mr Fletcher's freedom of movement and, further, that the residence that has been supplied is within the grounds and behind the walls of the prison, although the particular area is now no longer gazetted as part of the prison.

25 Mr Fletcher's solicitor made representations to the Secretary in respect of where Mr Fletcher wished to reside. He wished to reside with a priest of the Australian Church of Antioch at an address in West Melbourne. His wishes were communicated to the Secretary of the Parole Board on 7 June 2006. Eventually, an environmental scan of the proposed accommodation was performed, and the Parole Board was advised that it was unsuitable for Mr Fletcher to reside there at that time, being June this year. It was asserted from the Bar table that Mr Fletcher had also suggested other addresses, but it appeared to the Court that at this time, no decision had been made concerning other accommodation.

26 In support of the application, Mr Fletcher affirmed two affidavits and his solicitor, Richard Eric Oakley, swore three affidavits. The first was sworn on 10 July 2006, in relation to an application for a review of the extended supervision order under s.21 of the Act, which has been adjourned sine die. The affidavit material in detail provides ample evidence of the strict controls which are in place, and which severely curtail Mr Fletcher's freedom, movements and activities. The defendants have filed four affidavits. The first was affirmed by Brendan Gerard Murphy on 28 August 2006. Mr Murphy is the Centre Manager of the Extended Supervision Order Temporary Accommodation Centre at Ballarat. He swore a further affidavit on 13 September 2006. An affidavit was affirmed by Brendan Francis Money, who is the acting General Manager of the Sex Offenders Management Unit, a division of Corrections Victoria. The last affidavit was sworn by David Murray Provan, who is Secretary to the Adult Parole Board. The affidavits relied upon by Mr Fletcher, and those relied upon by the defendants, to some extent deal with the merits of various factual aspects of the decision made by the Parole Board that is the subject of this review. This review is not an enquiry into the steps taken by the authorities to implement orders made under the Act. The jurisdiction is limited. Whilst I note that there are complaints made by and on behalf of Mr Fletcher as to his living conditions and the restraints placed upon his freedom of movement, and also I note the facts stated by the defendants' witnesses, much of what is debated back and forth in the affidavits is of little relevance or weight in the present application. It cannot be overlooked that the legislation is new to this State, and places heavy obligations on the authorities to protect the community from a person who is subject to a ESO. The Parliament has entrusted the implementation of an ESO to the Secretary to the Department and the Adult Parole Board, and not the Court. The Act does not provide any avenue of appeal from conditions imposed by the Parole Board.

Judicial Review

A. Adult Parole Board

27 The Adult Parole Board was established by the Corrections Act 1986. See s.61. It comprises two judges of this Court, a County Court judge, the Secretary to the Department of Justice, who may appoint a delegate, and a number of members appointed by the Governor in Council. It has a number of functions, but its primary one is to determine whether a State prisoner, in respect of whom a non parole period has been set, should be released into the community on parole at the expiration of the non parole period. The Board has also been given powers under the Act in respect of the implementation of an ESO. Indeed, it has the primary role under that Act with respect to the implementation of such orders. The decision that is the subject of the present judicial review was made by the Board chaired by a member of this Court. As the Chairman is a colleague of mine, I disclosed that fact to the parties and raised the question of whether there was any objection to me hearing this review. No objection was made.

28 At the outset, the Court raised with counsel for the parties the question of whether the Parole Board was amenable to the jurisdiction of this Court. It is noted that the provisions of the Administrative Law Act 1978 do not apply because the statutory body is presided over by a Supreme Court judge, and the same applies with respect to a review under the Ombudsman Act 1973. It also observed that s.69(2) of the Corrections Act states that the Board is not bound by the rules of natural justice.

29 Nevertheless, the Parole Board is a statutory body. It does make decisions which affect the rights of a person. It has made a decision, which it was authorised to do under the Act and which has the force of law, relating to the implementation of the ESO made in respect to Mr Fletcher. Neither counsel demurred from the proposition that the decision made by the Adult Parole Board was subject to judicial review. In O'Brien v Chairman and Members of the Adult Parole Board,[3] the question was raised in the Full Court, and the Court said at p 262 -

"Before us both parties were represented by counsel. It was not conceded on behalf of the Board that the Board is amenable to prerogative relief or to judicial review under order 56 but, in the result, there was no need for the Court to consider that question because both parties agree that, should the Court be minded to uphold the plaintiff's contention, it would be open to the Court - and sufficient - if the Court made a declaration to that effect."

30 In that case, the Full Court held that the decision made by the Adult Parole Board was wrong, and made a declaration to that effect.

31 Neither party wished to argue to the contrary in the present application. There have been any number of cases in the last 20 years which have judicially reviewed decisions made by a parole board, for example, Kola v Parole Board of South Australia & Ors,[4] Esho v Parole Board Authority of NSW,[5] and R (Giles) v Parole Board.[6] All of those cases were concerned with the common law prerogative writ jurisdiction, and no suggestion was made in any of them that a parole board's decision was not subject to judicial review.

32 In Varney v Parole Board (WA),[7] the Full Court of Western Australia considered a number of decisions made by the Parole Board, and it was not disputed that the Court could grant a writ in the form of certiorari in relation to the Board's decision. Of course, the cases are dealing with the legislation concerning the Parole Board in question, but nevertheless, they do provide some support for the proposition that the Board is subject to the common law jurisdiction of this Court.

33 In my opinion, the Parole Board in this State, being a statutory body which makes decisions affecting the rights of others, although not bound to accord the rules of natural justice, is subject to the ancient common law prerogative writ jurisdiction, which is now regulated by Order 56 of the Rules. The jurisdiction is subject to statute and because the Board is not bound by the rules of natural justice it is not open on the review to argue procedural unfairness. I interpolate to observe that although a Supreme Court judge chairs the Board, in so doing, the Supreme Court judge does not act as a judge of this Court, but as chairperson of the Parole Board.

34 In the originating motion, Mr Fletcher sought an order that he be given leave to issue a writ of habeas corpus requiring that he be released. On 22 August 2006, the Court granted him leave to issue a writ of habeas corpus against the Secretary to the Department of Justice, and on 11 September 2006, the writ was issued. It required the Secretary to have Mr Fletcher brought before the Court and at the hearing, Mr Fletcher was present.

35 On 15 September 2006, the Secretary's solicitors filed a notice stating the grounds of Mr Fletcher's detention in response to the writ of habeas corpus. The grounds were that an ESO had been made against Mr Fletcher and that he was subject to it, and that the instructions and directions of the Adult Parole Board given to him on 12 June 2006 and made pursuant to s.16(2) of the Act, provided the lawful authority for his detention.

B. Limited Jurisdiction

36 The common law jurisdiction of this Court to review decisions and orders made by the Parole Board is subject to the procedure set out in Order 56 of the Rules of Court. The jurisdiction is limited. The principles that this Court applies in a judicial review are well established and I have discussed them in a number of cases. I refer to the case of Mr and Mrs X v the Secretary to the Department of Human Services & Anor,[8] where the principles are discussed. It is unnecessary for me to repeat them here. Nevertheless, there are a number of matters that must be emphasised. The Adult Parole Board is a statutory body and the common law jurisdiction of this Court enables it to review a decision of a statutory body. However, the jurisdiction, as I have stated, is limited. It is supervisory and does not entitle this Court to canvass matters that it would on an appeal. The jurisdiction is different to the jurisdiction exercised on an appeal. An appeal is the creature of statute. See Fox v Percy.[9] On other hand, the judicial review jurisdiction is a creature of the common law.

37 The present application is concerned with the authority and the legality of what was done by the Adult Parole Board when it issued the instructions and directions which bind Mr Fletcher. The Court is not concerned with the merits of the decision under review. In particular, it is not concerned with whether the decision was fair or correct.

38 Order 56 is concerned with procedure. It does not interfere with the old common law prerogative writ jurisdiction. It did abolish the remedies of the old prerogative writs, but nevertheless, it preserves the jurisdiction of this Court to make prerogative writ-type orders. The rules do not affect the common law jurisdiction. This Court does have jurisdiction to make an order in the form similar to the old prerogative writ of certiorari, namely, quashing the decision under review.

39 The scope of the jurisdiction was discussed by the High Court in Craig v South Australia.[10] The High Court identified the most important and well established grounds, namely, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud, and error of law on the face of the record. When exercising this limited jurisdiction, this Court is not entitled to examine whether, in fact, the Adult Parole Board's instructions and directions were proper in the circumstances, or whether the conditions and instructions are fair or reasonable, but is concerned instead with ensuring that the Adult Parole Board acted with authority, and that in performing its decision-making process, it complied with the law.

40 The question on this judicial review is whether the Adult Parole Board, in giving the instructions and directions it gave to Mr Fletcher, acted outside its jurisdiction, that is, in excess of its statutory power. The instructions and directions must be authorised by the Act in order to be valid. If any instruction or direction is not authorised by the Act, then it is a nullity and ought to be quashed. A declaratory judgment is an alternative remedy, in that it declares the ultra vires exercise of the power to be a nullity in law.

41 If this Court declared that an instruction or direction was in law a nullity, then what flows from that is that there is no instruction or direction. In other words, the effect is as if nothing had happened. A declaration does not quash the instruction or direction. However, the Board would give effect to the declaration.

Grounds of review

42 Rule 56.01(4) of the Rules of Court requires that the grounds upon which relief is sought must be specified in the originating motion. The originating motion in this proceeding did not state the grounds, but one can infer what the grounds are from the relief sought. Reference to the supporting affidavits confirms this approach.

43 The first ground is that the instructions and directions of the Parole Board, which were served on the plaintiff on 12 June 2006, were ultra vires the Act. This is a broad and sweeping ground.

44 The second ground is that clause (n) of the instructions and directions was ultra vires the Act.

45 Thirdly, it was apparent from the submissions put that a general complaint was made about the restrictions on the movement and freedom of Mr Fletcher. Specific reference was made to clause (i) of the instructions and directions, which I will treat as constituting a ground that that particular instruction and direction was ultra vires the Act.

A. Instructions and directions ultra vires

46 This is a wide and general ground. The Parole Board was authorised by s.16(2) to make any instruction or direction that it considered necessary to achieve the purposes of the conditions of order set out in s.15(2). Section 15(2) contains two potentially conflicting purposes, namely, the adequate protection of the community by monitoring Mr Fletcher, and the promotion of his rehabilitation, care and treatment. I am not persuaded that the instructions and directions being (a) to (q) (inclusive) were made beyond power. The ground is far too general and wide and fails to address particular directions. In my view, it is not a proper ground.

B. Residence pursuant to instruction and direction (n)

47 Instruction and direction (n) is -

"That you reside at the Extended Supervision Order Temporary Accommodation Unit in Ararat and not move from this address without the prior written consent of the Secretary to the Department of Justice."

48 In order to understand this instruction and direction, it is necessary to identify what is the Extended Supervision Order Temporary Accommodation Unit in Ararat.

49 The affidavit of Brendan Francis Money, who is the acting general manager of the Sex Offenders Management Unit, identifies the unit referred to in the instruction and direction. His evidence says that he considered temporary accommodation options in and around Ararat Prison, and that from about 7 June 2006, he assisted with the development of the temporary procedures. By 12 June 2006, the unit included two facilities. The first was the Wimmera Unit Annexe, which is and forms part of the Ararat Prison buildings. It is a housing option within the Ararat Prison, which accommodates minimum security prisoners. It is an open style, 10 bedroom unit with ordinary domestic doors, ordinary, that is, non-prison furniture, and conventional beds. The evidence showed that the unit is somewhat removed from the other units in the Ararat Prison, but nevertheless forms part of the prison buildings. Mr Fletcher took up residence in that unit on 12 June 2006. According to Mr Money, there was another facility which fell within the definition of Extended Supervision Order Temporary Accommodation Unit, namely, a residence located outside the Ararat Prison perimeter fence. There is such a residence. At all relevant times, it was occupied by another person.

50 In order to expand the options for the accommodation of offenders subject to supervision orders, a third option was developed, which was the erection of a relocatable residence on a section of land inside the prison perimeter fence, and close to the prison gate. The section of the prison land was some distance from the existing buildings of the Ararat Prison, but was nevertheless contained within the walls of the prison. On 27 July 2006, an Order in Council was made providing that that part of the Ararat Prison grounds was to become degazetted land. It was then fenced off, and screened on three sides. The remaining section is not screened, and provides a view over grassed land and away from the prison buildings. As I have stated, erected on this land is a temporary portable home. Mr Fletcher was transferred from the Wimmera Unit to that home on 9 August 2006.

51 Mr Money has stated that the arrangements in relation to Mr Fletcher's accommodation were intended to be temporary only, and that it was hoped that more suitable alternative accommodation would be found as soon as possible. He notes that it is open to Mr Fletcher to put forward a proposal for suitable accommodation.

52 It was asserted from the Bar table that the residence outside the walls may be available to Mr Fletcher. However, in deciding this proceeding, it is necessary for me to consider the matters as at present. For present purposes, it can be stated that the Extended Supervision Order Temporary Accommodation Unit in Ararat comprises the Wimmera Unit, forming part of the prison building, the degazetted part of the land within the prison walls, and a residence located outside the prison walls and entrance. Mr Fletcher is now residing in the portable home on the degazetted land, but within the prison walls.

53 It was submitted that instruction and direction (n) was an instruction or direction which was ultra vires the Act and hence a nullity. It was submitted that the unit, as constituted by at least two of the three possible areas, is part of the prison and that the power given to the Board by the Act requires Mr Fletcher to reside in the community and not within a prison.

54 Mr Marshall of counsel, who appeared with Mr Healy of counsel for Mr Fletcher, submitted that the effect of the instructions and directions given is that Mr Fletcher is being treated as if he was still subject to a sentence of imprisonment. In putting the submission, counsel emphasised the residential restriction placed upon Mr Fletcher and that he is not permitted, by reason of instruction (i), to leave the residential address, except in the company of a Corrections Victoria approved escort. His movements depend very much upon the availability of an approved person at a particular time. There is no doubt that there are substantial constraints made on Mr Fletcher's freedom. However, in considering the question of the Board's powers, it is appropriate, at least at the outset, to consider each particular instruction which it is said was made beyond power.

55 I will deal with the question of residence first, and separately from any other instruction dealing with his freedom. Section 16(3)(a) gives power to the Board to include an instruction or direction as to "(a) where the offender may reside". Allied with this power is the power given in s.16(3)(b), which deals with the times at which Mr Fletcher must be at home. Instruction (l) does provide for a curfew between 8 pm and 7 am.

56 Mr Marshall referred to what Deane J said in Re Bolton; ex parte Beane.[11] It is appropriate to be reminded of what his Honour said there about the basic freedoms that we all enjoy. He said -

"The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorise or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. That being so, it is the plain duty of any such officer to satisfy himself that he is acting with the authority of the law in any case where, in the name of the Commonwealth, he directs that a person be taken and held in custody. ... It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny."

57 Counsel also referred to what Isaacs J said in Ex parte Walsh & Johnson; Re Yates,[12] where his Honour referred to Chapter 39 of Magna Carta. However, as his Honour pointed out, whilst primarily every free man has a right to life, liberty, property and citizenship, those rights must always yield to the necessities of the State and "the law of the land is the only mode by which the State can so declare its will".

58 Our law does recognise and protect the rights that we all have, but there is no such thing as an absolute right. The right to free speech is not an absolute one. It is subject to the laws of defamation and the criminal law. The right to practise our religion is not absolute either. It, too, is subject to the law. No person can purport to practise a religion which involves activities contrary to the criminal law.

59 The point was eloquently made by Professor Sir William Wade in his Administrative Law 6th Edition at p 239, where the learned author said -

"When the question arises whether the public authority is acting lawfully or unlawfully, the nature and extent of its powers or duty has to be found by seeing the intention of Parliament as expressed or implied in the relevant Act. The principles of administrative law are generalised rules of statutory interpretation. They do not derive from a written constitution which safeguards them against amendment by every day legislation: an Act of Parliament is sovereign, and all legal rights are at its mercy."

(Emphasis added)

60 Mr Fletcher is the subject of an ESO under the Act. Responsibility for implementation of the order is given to the Secretary to the Department and the Adult Parole Board. The effect of the order is, of its very nature, a restraint upon some of the rights that the average citizen enjoys. Mr Fletcher is now subject to those restraints. However, appeal to learned observations about the rights of a person really does not carry the argument very far. I do not dispute, however, that the common law which protects those rights can only be varied, modified or ignored where Parliament has made clear its intention to do so.

61 There is no doubt that the Parole Board does have the power to issue a instruction or direction as to where Mr Fletcher may reside. That is clear from s.16(3)(a). But in exercising that power, the Board must do so in accordance with the purposes of the conditions of the order set out in s.15(2). In other words, it would not be open to the Board to require Mr Fletcher to continue to reside in a prison. In my opinion, it is clear that the ESO is to apply taking into account the fact that Mr Fletcher has served his term of imprisonment, and is no longer subject to any order of imprisonment. The Act is dealing with the situation post-sentence. It must follow that the Board's power would not be lawfully exercised if, upon exercise, its effect was that Mr Fletcher was to continue to reside in a prison.

62 It was submitted on Mr Fletcher's behalf that it was the intention of Parliament that he should reside in the community. Reference was made to a number of provisions in the Act which supported the submission.

63 First of all, reference was made to s.1(1), which deals with the main purpose of the Act. I have set it out above.[13]

64 It is observed that the purpose is achieved by the making of an ESO after custodial sentence has been served. Secondly, it is noted that there is to be supervision of the offender while in the community.

65 Section 11 deals with the when a court may make an ESO, and provides that the Court may only make such an order if satisfied -

"That the offender is likely to commit a relevant offence if released in the community on the completion of the service of any custodial sentence".

(Emphasis added)

66 Section 15, which deals with the conditions of an ESO and the purposes of such conditions, states that the conditions are to ensure "that the community is adequately protected by monitoring the offender". Conditions set out in s.15(3) include a provision in (e) that requires that the offender must not move to a new address without the prior written consent of the Secretary, and a provision in (f) that prevents the offender from leaving Victoria, except with the permission of the Secretary.

67 In further support of the submissions, counsel referred to what the Minister for Corrections said in the Second Reading Speech on 22 February 2005.

68 The Minister, Mr Holding, said -

"Extended supervision orders will only be in force when the subject is resident in the community. An extended supervision order is suspended automatically if the subject of the order is detained in custody and will recommence upon discharge from custody."[14]

(Emphasis added).

69 In my opinion, the power given to the Board to include an instruction or direction as to where an offender may reside, is not lawfully exercised by requiring him to reside in a place other than in the community. I am satisfied that to incarcerate a person inside prison walls, even though on land which is now degazetted as a prison, does not constitute a lawful exercise of the power. In those circumstances, the person is not residing in the community. What residing in the community is, is an interesting question, and one that is unnecessary for me to decide, save to say that Mr Fletcher's present location within the prison walls cannot be considered residing in the community. The present condition requires Mr Fletcher to reside in a unit, which includes, for present purposes, at least two locations within the prison walls. In my opinion, the power has not been lawfully exercised whilst Mr Fletcher is required to either reside in the Wimmera Unit or in the portable dwelling inside the grounds of Ararat Prison.

70 I am reinforced in that conclusion by a consideration of the intended operation of an ESO, as contemplated by the Act. Power is given to the Board to vary any instruction or direction given.[15] It is contemplated by the Act that the supervision of Mr Fletcher will be subject to consideration by the Board from time to time, which may lead to the lessening of the controls and restraints on Mr Fletcher, and to more freedom, consistent with the clear purpose of the supervision order. Mr Fletcher must not overlook the fact that the purposes include not only a concern for the community, but also a concern for him. It should not be lost upon him that there may be sections of the community who find his views repugnant and his past deeds appalling, and who may seek to cause him harm. There has to be a balance. However, in order for Mr Fletcher to establish that the community is not threatened by him, his actual conduct in the community will provide some evidence of that fact. I accept what Mr Hanks QC said on behalf of the Secretary, that Mr Fletcher can seek to establish, in ways other than his conduct in the community, that there is little danger to the community if he is accorded greater freedom, for example, by receiving appropriate treatment, and by his general conduct, even in a restricted environment. Whilst I accept that that is so, more weight should be given to Mr Fletcher's conduct within a community setting.

71 It follows that condition (n), insofar as that it requires him to reside at what was defined as an Extended Supervision Order Temporary Accommodation Unit within the walls of the Ararat Prison, is made without power, in that it is not a proper and lawful exercise of the power which is given to the Board. It is appropriate, in my opinion, to declare that the first part of condition (n) is unlawful and of no effect insofar as it requires him to reside behind the prison walls.

72 It is not necessary for the Court to seek to define what is meant by residing in the community. It will, however, be necessary for the Board to make another decision which does not result in Mr Fletcher residing behind the prison walls.

73 It is clear, from the material provided to the Court by the defendants, that the operation of this Act is in its infancy, and that it will be necessary for the Secretary to provide further assistance. It appears to be recognised by the Board that the present residential facilities within the Ararat Prison walls are not appropriate, and that the Department is looking at other options. To that extent, the Board's hands are tied, but nevertheless, that does not provide an excuse for an instruction which is not the product of the lawful exercise of the power.

74 Section 70 of the Corrections act 1986 requires the Secretary to

"Provide such employees of the Department of Justice and such other assistance to the Board as is necessary to assist the Board -

(ab) in supervising persons subject to an extended supervision order under the Serious Sex Offenders Monitoring Act 2005."

75 I discussed with counsel the issue of who was to provide accommodation to persons subject to an ESO. In my view, the answer that is inherent in the Act is that, in the absence of suitable accommodation put forward by the offender, the Secretary, in order to discharge the obligation to the community, must provide appropriate residential accommodation.

76 Whilst the Adult Parole Board can only work with the facilities, resources and assistance that it has, nevertheless, it is bound to lawfully exercise its power under the Act. It has not been able to do so in this case because the facilities presently provided do not answer the description of residence in the community.

C. Detention of Mr Fletcher

77 It was submitted that the Act did not lawfully permit the Board to impose conditions that would lead to the detention of Mr Fletcher. In particular, condition (i) does not permit Mr Fletcher to leave his residential address, except in the company of a Corrections Victoria approved escort. It is said that in combining his present residence with that condition and the curfew, Mr Fletcher enjoys very few freedoms of movement. Section 16(3)(b) authorises the Board to include an instruction or direction as to the times at which Mr Fletcher must be at home. In addition, s.16(3)(h) authorises the Board to include an instruction concerning a form of monitoring of compliance with the order, to which the offender must submit. But, in addition, s.16(2), which is the general wide power, entitles the Board, if it considers it necessary, to impose any instruction or condition to achieve the purposes of s.15(2). The latter requires the Board to give effect to the purposes of the conditions, which include an obligation to ensure that the community is adequately protected by the monitoring of the offender.

78 Mr Fletcher is subject to the order and has been so since 12 June 2006. In my view, the Board has power to impose the conditions relating to his movement. It is for the Board to consider all relevant facts and to impose such conditions which will ensure that the community is adequately protected. The instructions and conditions have been in operation for a period slightly in excess of three months. The power is given to the Board to form its opinion as to whether the conditions are necessary to achieve the purposes. The Board has information as to Mr Fletcher's criminal activities, which led to his conviction and sentence, and as to his conduct in gaol. Indeed, parole was refused because of Mr Fletcher's conduct and attitude, in particular, his attitude to treatment and, further, his activities in gaol, which, on one view, tended to show that he was a person who was prepared to advocate and maybe commit criminal offences which he justified by his religion.

79 The purpose of the Act, and the reason why it was passed, was because it was considered that the community should be protected from persons who had served custodial sentences for certain sexual offences, and who were considered to be a serious danger to the community. There is no doubt that the present instructions and conditions impose severe restraints upon Mr Fletcher's movements and freedom. However, the power is given to the Board to impose such conditions. In my opinion, it has not been shown that the conditions imposed were ultra vires. In my opinion, this ground has not been established.

Habeas corpus

80 The result of making a declaration that the first part of condition (n) is unlawful means that when effect is given to the declaration, the condition has no effect. However, the other instructions and conditions apply and they clearly restrain Mr Fletcher. That restraint, in my view, is lawful. I would anticipate that when the Board amends the condition in accordance with these reasons and with the declaration made, it will impose some other condition relating to residence. In my opinion, it is therefore inappropriate to make any order on the return of the writ. By reason of Rule 57.08, where a person who is detained is brought before the Court pursuant to the writ, the Court shall make such order concerning custody as it thinks fit. I do not propose to make any order concerning Mr Fletcher's custody. The other instructions and conditions apply. Condition (n) will continue to apply until the Board gives effect to the reasons and the declaration. No doubt, the Board will make another instruction concerning Mr Fletcher's residence. As long as the place specified is within the community, the Board's exercise of power will be lawful.

Conclusion

81 I am satisfied that the first part of condition (n) is ultra vires the powers of the Board, in that its exercise concerning where Mr Fletcher may reside was not lawful in respect of the two facilities made available, which were within the grounds of Ararat Prison, and not in the community. Accordingly, the power relating to residence was not lawfully exercised. I will hear counsel on the form of declaration and costs.

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At a glance

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Judgment (31 paragraphs)

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Cases Cited (5)