Renton v Bradbury & Anor

ADMINISTRATIVE LAW - JUDICIAL REVIEW LEGISLATION - Whether Commissions' Rules made pursuant to the Corrective Services (Administration) Act 1988 have the force of law or give rise to a legitimate expectation that they will be followed - Whether administrative practices and procedures can ground the requirement to afford natural justice - Whether application should be dismissed as lacking in utility

Corrective Services Act 1988 (Qld), s 13(1), s 14, s 69

Corrective Services (Administration) Act 1988 (Qld), s 20

Abbott v Chief Executive, Department of Corrective Services Supreme Court of Qld, 21 December 2000, unreported

Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, referred to

Attorney-General v Quin (1989-1990) 170 CLR 1, referred to

Bartz v Queensland Corrective Services Commission Supreme Court of Qld, 4 October 1999, unreported, distinguished

Busby v Human Resources Commission (1888) 20 FCR 463, cited

Chamberlain v Banks [1985] FCA 416; (1985) 7 FCR 598, cited

Flynn v The King [1949] HCA 38; (1949) 79 CLR 1, approved

Graveson v Queensland Corrective Services Commission Supreme Court of Qld, 4 June 1998, unreported, distinguished

Gray v Hamburger [1993] 1 Qd R 595, cited

Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1989-1900) 169 CLR 648, discussed

Herscu v Queensland Corrective Services Commission [1995] 2 Qd R 481, discussed

Kioa v West [1985] HCA 81; (1985) 159 CLR 550, referred to

Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1985-86) 162 CLR 24, cited

Pollentine v The Attorney-General [1995] 2 Qd R 412, discussed

Re Walker [1993] 2 Qd R 345, distinguished

Stewart v Lewis [1996] Qd R 451; (1993) 70 A Crim R 88, cited

The Queen v Queensland Corrective Services Commission, ex parte Fritz (1992) 26 ALD 696, followed

The application and the circumstances giving rise to it

[1] In his amended application the applicant seeks judicial review of a decision of the second respondent made between 7 April and 4 August 1999 ("the decision") to revoke, suspend or cancel the applicant's approved transfer to the Borallon Correctional Centre and of a report of the first respondent made on or about 7 April 1999. The application in relation to the report was not pursued.

[2] The first respondent is the General Manager of Corrections Corporation of Australia Pty Ltd and the General Manager of the Borallon Correctional Centre. The respondents, for whom Mr Plunkett appeared, did not oppose the substitution of Peter Severin for Alison Hunter as the second respondent. Mr Severin is the Executive Director, Operational Support Services of the Department of Corrective Services and, at relevant times, was an authorised delegate of the Chief Executive of the Department. No point is taken about whether the Chief Executive rather than Mr Severin is the appropriate second respondent.

[3] On 9 November 1998, whilst an inmate of the Sir David Longland Correctional Centre, the applicant applied for a transfer to the Borallon Correctional Centre. That transfer was approved by the authorised delegate of the Chief Executive, Department of Corrective Services. For convenience, I will refer to such authorised delegate and also the Chief Executive as the second respondent unless the identity of the delegate is of particular relevance. The General Manager of the Sir David Longland Correctional Centre also supported the transfer decision but recommended that advice be obtained from the Police Intelligence Network and Corrective Services Investigation Unit to confirm the suitability of the transfer.

[4] On 26 July 1999 the second respondent consulted with the Serious Offenders Committee, a non statutory body which advises the Chief Executive on matters concerning prisoners serving lengthy terms of imprisonment, and, following the consultation, approved the applicant's transfer to Borallon.

[5] The Police Intelligence Network and Corrective Services Investigation Unit made a report which cast doubt on the advisability of the transfer and, in reliance on that report, the first respondent also expressed doubts about the suitability of placing the applicant at Borallon. The Serious Offenders Committee then made a determination that the applicant be transferred to the Woodford Correctional Centre but that he be "considered for transfer to ... Borallon ... at his next point of review ... on 20 January 2000". The applicant subsequently requested a transfer to the Townsville Correctional Centre and the transfer took place on a date not identified in the evidence.

[6] In response to a letter from the applicant dated 9 April 1999 seeking reasons for his failure to satisfy the requirements for placement at Borallon, the first respondent advised that -

(a) He was not the person authorised to determine the applicant's future placements;

(b) He reviewed the appropriateness of the applicant's placement at Borallon and concluded it was unsuitable for a number of reasons including reasons that: the applicant had been receiving individual psychological counselling and that that therapy was "largely unavailable at Borallon"; Borallon's "open campus management style" was thought to be unsuitable as it might provide a potential for "further criminal activity" on the part of the applicant; and, implicitly, that a "highly structured secure environment" was more suited to the applicant, as was a more graduated "progress through the system".

Reference was made to the applicant's breaching a home detention order in May 1996, to his having been unlawfully at large from that time until 21 June 1996 and to his conviction for armed robbery.

[7] Mr Davis, who appeared for the applicant on a pro bono basis, sought to challenge the above decision on the numerous grounds set out in a 37 page outline of submissions prepared by the applicant himself. The outline, although daunting in its length and detail, is generally well constructed and expressed.

The allegation that the first respondent had usurped the function of the second respondent

[8] I found, however, the first ground of challenge a little difficult to identify. In substance, it appeared to be that as the authorised delegate of the Chief Executive had approved the applicant's transfer, that approval could not be overridden or revoked by the first respondent. It was submitted that the first respondent had power to implement an order pursuant to s 39 of the Corrective Services Act 1988 for the special treatment of a prisoner but that this course had not been followed. Alternatively, it was submitted that the Chief Executive had abdicated his responsibility for the safe custody and welfare of prisoners to the first respondent.

[9] I can see no substance in any of these complaints. The first respondent did not revoke or cancel the approval for the applicant's transfer to Borallon. He expressed an opinion on the suitability of that course. That opinion was taken into account by the second respondent in deciding not to proceed with the transfer. That, one would think, was a sensible and appropriate course for the second respondent to follow. It is plain that the second respondent made the subject decision.

Relevant Rules and provisions of the Policy and Procedures Manual

[10] The applicant then sought to rely on the Commission's Rule 178 made under section 20 of the Corrective Services (Administration) Act 1988 which, in subsection (1), provides inter alia -

"The Commission may made rules, not inconsistent with this Act or the Corrective Services Act 1988 or the regulations made under either Act, providing with respect to -

(a) the management, security and good order of prisons and community corrections centres;

(b) the safe custody, welfare and privileges of prisoners ...".[1]

[11] Rule 178, under the heading "prisoner transfer practices", relevantly provides -

All prisoner transfers will be managed in accordance with the practices provided for herein.

To provide a standardised framework for the transfer of prisoners.

All prisoner transfers will be managed in accordance with the procedures outlined in Chapter 16 of the Practices and Procedures Manual, Custodial Corrections or Transfer Summons Procedures, Community Corrections."

[12] Chapter 16 of the Manual sets out very detailed procedures relating to transfers. The responsibility for selection of prisoners for transfer is vested in "The Sentence Management Team" at each correctional centre in accordance with guidelines set out in appendix 1 to Chapter 16 and in Chapter 17.[2] The provisions relating to transfer include -

* The right of a prisoner to be informed of an intention to transfer

* The prisoner's right to make oral or written submissions to the Sentence Management Team for its consideration

* The obligation to keep any such written submissions and notes of oral submissions on the prisoner's file

* The prisoner's right of appeal against a transfer decision

* The obligation to record recommendations for prisoner transfer by the Sentence Management Team and the communication of such recommendations to the prisoner and the General Manager

* Where the General Manager does not support the sentence, the requirement that the General Manager inform the prisoner of the General Manager's decision, the factors upon which it was based, alternative placement options where appropriate and the broad time frame for a transfer

* The obligation that the appropriate delegate of the first respondent must authorise the transfer.

[13] Under Chapter 17 each prisoner is required to be assessed for the purposes of identifying security risks, behavioural risks and individual needs for intervention. An initial sentence plan is required to be drawn up for each prisoner dealing with matters such as parole, release to work, home detention and transfer/placement recommendations.[3] Sentence Management Review is required to be carried out "to effectively facilitate the prisoner's progression within the Correctional System and reintegration into the community.[4] Such reviews are required to be undertaken by the Sentence Management Team at a minimum of six monthly intervals in accordance with established review procedures.[5]

[14] Paragraph 1702 of Chapter 17 of the Manual provides -

* To manage a prisoner's sentence in a consistent, objective manner which mnimises public risk

* To offer structured opportunities for individual offenders to address their offending behaviour and achieve their effective re-integration into the Community.

* To involve prisoners as fully as possible in the negotiation of their own Sentence Management Plans and Reviews."

Relevant provisions of the Corrective Services Act

[15] Under section 13(1) of the Act, the Commission is "responsible for the security and management of prisons and community corrections centres and the safe custody and welfare of prisoners".

[16] Under section 14, the general manager of a prison is "responsible for the security and management of the prison and the safe custody and welfare of prisoners ...", but "subject to the Commission".

[17] By section 69 of the Act, the Commission is given authority to order the transfer of a prisoner from one institution to another.

[18] By reference to Chapter 16 entitled "Prisoner Transfer Procedures" in the second respondent's "Policy and Procedures Manual" and Chapter 17 of the Manual entitled "Sentence Management Policy" an argument was developed that the prescribed procedures had not been followed in relation to the determination not to transfer. Much of the argument centred around the applicant's medium security classification. Reference was made to paragraph 1746 of Chapter 17 of the Manual which provides -

"The Security Assessment is intended to ensure that prisoners are appropriately placed within the correctional system in terms of security levels and supervision."

[19] It was pointed out that the applicant's risk factors in respect of possible risk of escaping, risk of re-offending and risk to the community relating to all present and previous convictions were assessed at relevant times as medium. In those circumstances, it was submitted that it is not appropriate that the applicant be given a highly structured level of supervision and that the risk factors had not been duly considered in making the determination.

[20] The applicant submits that the requirements of that paragraph were not taken into account in the decision.

[21] The applicant's primary contention is that rule 178, having been made pursuant to section 20 of the Act, has the force of law and any decision made in breach of it is unlawful. I am unable to accept the submission. Section 20 of the Corrective Services (Administration) Act authorises the respondent to make rules which are not inconsistent with that Act, the Corrective Services Act or the regulations made under either Act. It is thus apparent that the rules have a lesser status than regulations.

[22] Section 20 provides that the rules made under the section shall be entitled the "Commission's Rules", and that -

"The Commission shall cause the Commission's Rules to be brought to the notice of the persons to whom they apply."

The section, however, does not provide expressly that the Commission's Rules have the force of law. Nor is it implicit that rules of such a nature promulgated by a statutory body and not gazetted as statutory instruments without the scrutiny of Parliament have the force of law. The applicant thus has failed to establish a breach of any statutory obligation in relation to the decision. Consequently, a breach of the Commission's Rules, of itself, does not, necessarily, give rise to a reviewable decision.

The recommendation of the General Manager and the decision of the second respondent were made in bad faith.

[23] Rule 178 is also relied on by the applicant with a view to establishing that the decision was made in bad faith. The following further contentions are put forward, also with a view to establishing that the decision was made in bad faith.

[24] The General Manager's recommendation, accepted by the second respondent, that the applicant be transferred to Woodford is inconsistent with the practice of graduated progression of prisoners through the prison system. There has never been an intention to "progress the applicant to stages of less restriction". If there had been an intention to treat the applicant consistently with normal practice, the applicant would have been placed in a less restrictive environment within the Woodford Correctional Centre where he has been for more than one year and three months after the decision.

[25] An ancillary argument is that the applicant, being confined in a maximum security environment, though having a medium security classification, is being subjected to double punishment in breach of section 16 of the Criminal Code. It is also submitted that the second respondent is subjecting the applicant to torture within the meaning of section 320A of the Criminal Code. Torture is said to occur because, suffering from paranoid schizophrenia allied with clinical depression, the applicant is being made to endure psychological, mental and emotional pain and distress through being exposed to traumatic events. Reference is made to violent conduct against inmates generally at Sir David Longland and also to acts of violence perpetrated on the applicant.

[26] In view of the conclusions later expressed, it is unnecessary for me to consider these grounds in any detail. I note, however, that for the reasons given later, I am not persuaded that in making any relevant decision the second respondent took irrelevant considerations into account or failed to take into account a relevant consideration which he was obliged to take into account. Nor is there any evidence which persuades me that the second respondent has acted in bad faith. The second respondent has explained the reasons for his decision in writing. That explanation and surrounding circumstances give rise to no inferences which might support the applicant's case.

Denial of natural justice - the parties' contentions

[27] The contention is that, when the applicant's transfer to Borallon was approved he had a legitimate expectation that the transfer would proceed so that he would enjoy the benefits and privileges consistent with his medium security classification. The same legitimate expectation is said to be derived from, or supported by, ministerial directives referred to in the outline of submissions. The existence of the legitimate expectation is said to confer on the applicant a right to natural justice.

[28] The applicant contends that he was denied natural justice in that he was not afforded the opportunity of being heard in respect of the matters of concern expressed by the General Manager which formed the basis of the revocation of the decision that he be transferred to Borallon. In support of the contention that the applicant had a right to be heard, reliance was placed on Pollentine v The Attorney-General[6] and Herscu v Queensland Corrective Services Commission[7].

[29] The thrust of Mr Plunkett's submissions in this regard was that decisions concerning the transfer of prisoners were prison management decisions, to which the principles of natural justice do not apply and were reviewable only on the grounds of bad faith. He relied also on authorities establishing that the privileges of prisoners are favours conferred on them and not duties of the respondents,[8] and that the powers of correctional authorities are to be interpreted broadly.[9]

Queensland authorities on prisoners' rights to natural justice

[30] Pollentine was a case in which a person ordered to be detained at Her Majesty's pleasure pursuant to section 18 of the Criminal Law Amendment Act 1945-1989, sought review of a decision of the Governor-in-Council refusing to order his release. It was held that the rules of natural justice applied to the Governor-in-Council's determination, particularly having regard to the determination's direct effect on the liberty of the prisoner and the lack of any rules or guidelines to be applied in the making of the determination.

[31] In Herscu, Williams J held that the principles of natural justice applied to a determination by a parole board of an application by a prisoner pursuant to section 186 of the Corrective Services Act for a reduction of his parole period. His Honour's conclusion was based on what he perceived to be a legitimate expectation that a reduction in the parole period would be obtained in the event that prescribed conditions were met. He found that, having regard to the fact that the determination bore directly on the applicant's liberty and the principles expressed in Kioa v West [10], the rules of natural justice applied. His Honour observed -

"The real question raised by the proceedings is whether the impugned decisions involved the exercise of a statutory power which deprived the applicant of benefit or privilege which he had a legitimate expectation of obtaining or continuing to enjoy, without according him procedural fairness."

The applicant's contention is contrary to the conclusions reached in Re Walker[11] and Bartz v Queensland Corrective Services Commission[12]. In both cases, which concerned prisoner transfer procedures, it was held that the applicant had no right, interest or legitimate expectation which was affected by the subject decision. A similar conclusion was reached by Fryberg J in Graveson v Queensland Corrective Services Commission [13].

[32] In Re Walker,[14] Williams J quoted the following passage from the judgment of Dixon J in Flynn v The King[15] -

"It is pointed out in the case of Horwitz v. Connor [1908] HCA 33; (1908) 6 CLR 38 that if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice. For if statutes dealing with this subject matter

were construed as intending to confer fixed legal rights upon prisoners it would result in applications to the courts by prisoners for legal remedies addressed either to the Crown or to the gaolers in whose custody they remain. Such a construction of the regulation making power was plainly never intended by the legislature and should be avoided."

[33] Those observations of Dixon J are as apposite today as they were when made. Affording prisoners the right to challenge decisions which are concerned with prison management matters and which do not directly impinge on their liberty has an obvious potential to interfere with the efficient administration of prisons.

[34] Nevertheless, it seems to me that the applicants did have a right to natural justice in respect of the decision and that that right was denied.

General principles concerning the circumstances which give rise to an entitlement to natural justice

[35] In Kioa v West[16] Mason J said[17] -

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, at p 109; Salemi [No. 2], at p 419; _Ratu (_1977) 137 CLR, at p 476; Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, at pp 498-499; F.A.I. Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342, at pp 360, 376-377; Annamunthodo v. Oilfields Workers' Trade Union [1961] AC 945. The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

The reference to "legitimate expectation" makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest."

[36] In Haoucher v Minister for Immigration and Ethnic Affairs[18], Deane J, after commenting that the absence of a "legitimate" or "reasonable" expectation did not necessarily lead to the result that there was no need to extend procedural fairness, observed -

"Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to "the particular statutory framework" (see Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, at p 504), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just."

"The requirements of procedural fairness are not, however, confined to the protection of rights or legitimate expectations. A hearing may be required because of a past practice of consultation or a promise or assurance previously given that a hearing would occur: Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374; Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629. But that is because, in all the circumstances, the promise to follow a certain procedure having been made, or the practice of consultation having been established, fairness may require that the public authority should be held to its promise or previous practice. It adds nothing to say that there was a legitimate expectation, engendered by the promise or practice, that a certain procedure would be followed." (emphasis supplied)

[37] McHugh J expressed the principle in a similar way, stating further[20] -

"Subject to any statutory indication to the contrary, the doctrine of legitimate expectations entitles a person to be heard in opposition to a proposed exercise of a statutory power if its exercise will deprive him or her of any right, interest, benefit or privilege which that person has a legitimate expectation of obtaining or continuing to enjoy.

A legitimate expectation that a person will obtain or continue to enjoy a benefit or privilege must be distinguished, however, from a mere hope that he or she will obtain or continue to enjoy a benefit or privilege. A hope that a statutory power will be exercised so as to confer a benefit or privilege does not give rise to a legitimate expectation sufficient to attract the rules of natural justice: South Australia v. O'Shea [1987] HCA 39; (1987) 163 CLR 378, at p 402. To attract the operation of the rules of procedural fairness, there must be some undertaking or course of conduct acquiesced in by the decision-maker or something about the nature of the benefit or privilege which suggests that, in the absence of some special or unusual circumstance, the person concerned will obtain or continue to enjoy a benefit or privilege." (emphasis supplied)

[38] In The Queen v Queensland Corrective Services, Ex Parte Fritz [21], the Court of Appeal, discussing a practice that a remission of one-third of their sentences is ordinarily granted to all prisoners who are of good conduct and industry, observed -

"The existence of a policy or practice can undoubtedly ground a legitimate expectation of a benefit which would follow if the policy or practice were implemented: Haoucher v Minister for Immigration and Ethnic Affairs ...; Attorney-General (NSW) v Quin ...".

[39] In Attorney-General v Quin[22], Mason CJ expressed the view that a legitimate expectation may be created by the giving of an assurance, the existence of a regular practice or the consequences of denial of the benefit to which the expectation relates.

[40] The following rationale for the principle that public decision makers are bound by such a course of conduct or assurance was expressed by Lord Fraser in Attorney-General of Hong Kong v Ng Yuen Shiu [23] -

"... when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and implement its promise."

Natural justice - application of principle to the relevant facts

[41] The second respondent has set up a framework for transfers of prison inmates under the statutory authority imparted by s 20 of the Corrective Services (Administration) Act 1988. That framework, as I have found, has no statutory force in itself. It does, however, prescribe procedures which Corrective Services' officers and prisoners alike are obliged to follows. Rules and regulations necessarily play an important role in prison administration. There is a strong expectation that rules, formally and solemnly prescribed, be observed. Breaches of rules on the part of prisoners may result in the imposition of sanctions, for example, in the reduction or loss of the benefit flowing from a recommendation for early parole.

[42] Against that background, it seems to me that the rules which expressly confer upon prisoners the right to be informed of an intention to transfer and to make submissions to the sentence management team concerning any such proposed transfer, give rise to a legitimate expectation that they will be followed. It is surely unacceptable, administratively and otherwise, that the second respondent not be bound by the rules to the same extent as prisoners, prison managers and prison officers. Where there is a legitimate expectation of a hearing, natural justice must be afforded in relation to the hearing.

[43] Where a prisoner, such as the applicant, is transferred from one institution to another or refused a transfer because of information received by prison authorities as to the prisoner's potential for unlawful behaviour if housed in a particular environment when other normally applicable criteria would suggest the appropriateness of a transfer to a lower security prison favoured by the prisoner, it is a denial of natural justice not to permit the prisoner to make submissions on matters which are critical to the decision.

[44] The information relied on upon by the second respondent in making his decision was of a sensitive nature and the precise details of the information and the identity of the person or persons from whom it was received are protected from disclosure by court order. Nevertheless, that did not mean that the applicant could have no right to be heard on the substance of the second respondent's concerns. After all, those concerns were spelled out by the second respondent in reasons given to the applicant. As the transfer procedures are not adversarial, it was the substance of the adverse material which needed to be provided, rather than its detail.[24]

[45] Alternatively, in the circumstances I have outlined, the solemn promulgation by the second respondent of rule 178 requires the second respondent to afford procedural fairness by following the procedures laid down by it. Of course, he must do so in such a way that they are not rendered illusory. By making rules and communicating them to prison officers and inmates the second respondent implicitly undertakes to follow them. Also, I have no reason to doubt that the transfer rules are applied as a matter of established practice.

[46] In none of the decisions referred to in paragraph [31] hereof was it argued that the Rules gave rise to a relevant legitimate expectation or grounded a requirement for procedural fairness. The decisions, the correctness of which I have no reason to doubt, are thus distinguishable. Nor do I doubt that, as a general proposition, decisions concerning the transfer of prisoners are decisions of a prison management nature.

[47] In Re Walker[25], Williams J left open the possibility that the way in which statutory powers were exercised or administrative practices implemented may give rise to an obligation to afford procedural fairness. After referring to the passage from the judgment of Dixon J in Flynn v The King, which is quoted earlier, his Honour observed -

"That statement was made, of course, before the development of the doctrine of `legitimate expectations'; but in my view the statutes and regulations in question were not intended to create legitimate expectations in prisoners except where an entitlement to a specific benefit was clearly conferred either by the legislative provision or by the administrative policy and practice which gave effect to such provision."

[48] In Abbott v Chief Executive, Department of Corrective Services [26] Williams J, after referring to the same passage from Dixon J's judgment said[27] -

"That principle is reflected in the decisions in Smith v Commissioner of Corrective Services (1978) 1 NSWLR 317 at 329, R v Classification Committee, ex parte Finnerty [1980] VicRp 53; (1980) VR 561 and Re: Walker [1993] 2 Qd R 345. As noted in Walker at 351 the position may well be different where an entitlement to a specific benefit was clearly confirmed either by the legislative provision or by the administrative policy and practice in question. But short of such considerations a court should be loathe to interfere with what are essentially operational matters within the prison system." (emphasis supplied)

[49] In the circumstances of this case, the second respondent, by rule 178, has created a situation in which it was obliged to afford natural justice. If such a state of affairs creates undue difficulties in the administration of prisons, the second respondent has the solution to the problem within his own power.

Improper exercise of power - irrelevant considerations

[50] It was contended that the following matters taken into account by the second respondent were irrelevant to his determination -

"(i) The serious nature of the offences for which the Applicant has been convicted.

(ii) The revocation of community based supervision.

(iii) The Applicant's past response to community based supervision.

(iv) The form of psychological interventions partaken by the Applicant."

The basis for the submission appears to be that none of those matters is mentioned in section 13 of the Corrective Services Regulations 1989 which specifies factors to which regard must be had in the classification of prisoners.

[51] It is further submitted that the factors prescribed in section 13 were taken into account in November 1998 when the applicant was granted medium security classification.

[52] The applicant was unable to point to any provision which made the factors prescribed by section 13 (which is directed to security classification) the sole determinants of an application for transfer and it would be surprising if such a provision existed. The matters which the second respondent took into account in making the determination are to be found in a statement of reasons provided by the second respondent pursuant to section 33 of the Judicial Review Act. The statement lists some 11 documents to which regard was had and the following "findings of fact" -

". You are currently serving sentences which total 9 years for offences of Armed Robbery, Assault, Wilful Damage and UUMV.

. You have incurred 5 assault convictions on correctional staff whilst serving current period of imprisonment.

. During the course of your sentence you have incurred 34 custodial beaches (sic) and 22 custodial incidents.

. On the date of the emergency transfer you were being managed under an Individual Management Plan as a result of the centres (sic) assessment of your inappropriate institutional behaviour.

. An incident which compromised the good order and security of the centre occurred at the Sir David Longland Correctional Centre on 30 January 2000 in an accommodation unit in which you were present.

. The General Manager of Sir David Longland Correctional Centre recommended that you be emergency transferred to Woodford Correctional Centre in an Emergency Transfer Request Form, dated 2 February 2000, as a result of the incident at that centre on 30 January 2000."

"The decision was made for the following reasons:

The General Manager of Sir David Longland Correctional Centre received reports that indicated you were involved in an incident at that centre on 30 January 2000 which resulted in the security and good order of the centre being compromised. It was considered that your placement at the centre may contribute to unrest at the centre. The General Manager of Sir David Longland Correctional Centre considered that on the basis of information provided, and pending further investigation into the incident, your transfer from the centre was required. The General Manager requested that you be transferred to Woodford Correctional Centre and submitted a request for an emergency transfer to the Office of Sentence Management. An Authorised Delegate of the Office of Sentence Management received this request, the General Manager's recommendation and reports indicating your involvement in the incident. The Delegate considered your previous custodial response which indicated that on a number of occasions your transfer between institutions has been necessitated due to you displaying inappropriate behaviour. At the time of the transfer you were being managed under a centre Individual Management Plan due to your assessed institutional risk.

It was considered appropriate that you be transferred to Woodford Correctional Centre and that your placement be reviewed four weeks from date of transfer. As per policy requirements you will be present at the review of the emergency transfer and will have the opportunity to discuss your placement with centre sentence management staff."

[53] None of the matters mentioned in the statement of reasons or the subject of the applicant's complaint appears to me to be irrelevant.

Improper exercise of power - failure to take into account relevant considerations.

[54] The applicant's outline of submissions listed some 20 considerations which allegedly should have been taken into account but which were not, including -

"(i) The length of the Applicant's sentence that has already been served.

(ii) The length of the Applicant's sentence that has already been served in Maximum Security Environments.

(iii) That the Applicant has served in excess of 73.5% of his specified and District court recommend set no parole period.

(iv) That the Applicant is able to be considered for a Low Security Classification.

(v) That the Applicant is able to be considered for an Open Security Classification.

(vi) His Honour Judge Hanger's recommendation for release upon Community Based Supervision.

(vii) The Ministerial Directive to the Queensland Community Corrections Board made pursuant to Section 139 (1) of the Corrective Services Act 1988, specifies progression onto a Low Security environment for a period of six months prior to release upon community based supervision.

(viii) The continued effort that the Applicant has demonstrated to reduce his security classification point rating to a 43 point medium.

(ix) That the Applicant has not incurred a major breach of discipline since April 1994.

(x) The Applicant has continually displayed appropriate behaviour."

[55] The thrust of the submission is that the applicant has already served a substantial part of his sentence. It is asserted that the first quarter of a non-parole period is expected to be served in a maximum security environment, the second quarter is expected to be served in a medium security environment and the remainder should focus on aiding the offender to "establish trust in preparation for release back into the community". In those circumstances, at worst for the applicant he should be accommodated in a medium security environment. Those matters, it is contended, were not taken into account and should have been taken into account.

[56] The applicant has failed to show that the second respondent did not take into account considerations which he was required by law to take into account. It should be appreciated that the second respondent's decision was made against a background in which he had already given consideration to the reports and recommendations listed in the statement made pursuant to section 33. Some of those matters had lead the second respondent to conclude, initially, that the applicant should be transferred to Borallon. The reasons listed in the statement are essentially the reasons why the second respondent changed his mind. It is obvious enough, and I think not inconsistent with the statement of reasons, that in arriving at his determination the second respondent did not disregard the matters earlier considered by him when accepting the appropriateness of a transfer to Borallon.

[57] The ground of failure to take into account a relevant consideration can be made out only if a decision-maker fails to take into account a consideration he is bound to take into account in making that decision.[28] Neither the Act nor the Corrective Services (Administration) Act purports to confine the second respondent's discretion in relation to transfers and, consequently, the factors which may be taken into account in the exercise of the discretion are similarly unconfined except to the extent that some implied limitation is to be found in the subject matter, scope and purpose of the statute conferring power.[29] No such implied limitation was identified in submissions and this ground fails also.

[58] Mr Plunkett argued that in the event that I found that the second respondent's decision had miscarried, I should nevertheless dismiss the application as lacking in utility. The point was made that the decision under review had been superseded by the applicant's later request for transfer to Townsville and by that request having been acted upon.

[59] I accept the submission that there is no point to be served by an order setting aside the decision or remitting it to the second respondent for further consideration. These reasons fulfil the role of vindicating the applicant's rights in as much as it is possible to do so in the circumstances.

[60] It seems appropriate that the applicant, having been successful in establishing the existence of a duty to afford natural justice and a breach of that duty, should be awarded costs. Any costs order, however, should reflect the fact that the applicant sought inappropriate relief and failed to make out most of the grounds on which he relied.

[61] I order that the second respondent pay one-half the applicant's costs of and incidental to the application to be assessed on the standard basis.

[1] On 1 May 1999 amendments to the Corrective Services Act and Corrective Services (Administration) Act came into force, substituting references to "the Commission" with "Chief Executive". The change does not affect the substance of the provisions.

[6] [1995] 1 Qd R 412.

[7] [1995] 1 Qd R 481.

[8] Gray v Hamburger [1993] 1 Qd R 595.

[9] Gray v Hamburger [1993] 1 Qd R 595; Re Walker [1993] 2 Qd R 345; Stewart v Lewis (1993) 70 A Crim R 88; [1996] 1 Qd R 451, Macrossan CJ and Davies JA, at 458-459; cf Pincus JA at 460-461.

[10] [1985] HCA 81; (1985) 159 CLR 550.

[11] [1993] 2 Qd R 345.

[12] Supreme Court of Queensland, 4 October 1999, unreported.

[13] Supreme Court of Queensland, 4 June 1998, unreported.

[15] [1949] HCA 38; (1949) 79 CLR 1 at 8.

[16] [1985] HCA 81; (1985) 159 CLR 550.

[18] [1990] HCA 22; (1989-1990) 169 CLR 648 at 652.

[21] (1992) 26 ALD 696 at 698.

[22] (1989-1990 170 CLR 1 at 20.

[24] Chamberlain v Banks [1985] FCA 416; (1985) 7 FCR 598 and Busby v Human Resources Commission (1988) 20 FCR 463 at 471.

[26] Supreme Court of Qld, 21 December 2000, unreported.

[28] Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1985-86) 162 CLR 24 at 39.