Taylor v O'Beirne & Ors

[1] The applicant is a released prisoner within the meaning of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA). He was released under an interim supervision order made by Martin J on 28 March 2008 and a final supervision order made by Daubney J on 21 August 2008.

[2] That supervision order contained 37 conditions, including condition (5), which required that he must "comply with a curfew direction" and condition (14), which required that he "comply with every reasonable direction of a corrective services officer" (CSO).

[3] In July 2008 and September 2008, a total of six letters were written to the applicant by the relevant District Manager, at the time, of the Inala Probation and Parole Service (second, third and fourth respondents). Each letter gave the applicant notice that he had not complied with a particular direction on a specified occasion, notified him that formal contravention action was not being taken but that further failure may result in the supervision order being returned to the Supreme Court for contravention action.

[4] On 18 September 2008, he was also issued with a direction that he not attend any shopping centre between the hours of 8.00 am and 9.30 am and 2.30 pm and 4.30 pm on weekends. That direction was revoked on 5 January 2009.

[5] The applicant, by this application for a statutory order of review filed on 20 May 2009, seeks a review by this Court of the following seven decisions pursuant to s 20 of the Judicial Review Act 1991 (JRA) in the following terms:

(i) The formal censure issued by the first respondent to the applicant by way of a letter dated 21 July 2008 purporting to find that the applicant committed, on 11 July 2008, a contravention of the interim supervision order made by the Honourable Justice Martin on or about 28 March 2008 (the first decision);

(ii) The formal censure issued by the first respondent to the applicant by way of a letter dated 21 July 2008 purporting to find that the applicant had committed, on 17 July 2008, a contravention of the interim supervision order made by the Honourable Justice Martin on or about 28 March 2008 (the second decision);

(iii) The formal censure issued by the first respondent to the applicant by way of a letter also dated 21 July 2008 purporting to find that the applicant committed, on 20 July 2008, a contravention of the interim supervision order made by the Honourable Justice Martin on or about 28 March 2008 (the third decision);

(iv) The formal censure issued by the first respondent to the applicant by way of a letter dated 25 July 2008 purporting to find that the applicant committed, on 23 July 2008, a contravention of the interim supervision order made by the Honourable Justice Martin on or about 28 March 2008 (the fourth decision);

(v) The notice of contravention of supervision order issued by the second respondent by way of a letter dated 15 September 2008 purporting to find that the applicant had committed, on 12 September 2008, a contravention of the supervision order made by the Honourable Justice Daubney on 21 August 2008 (the fifth decision);

(vi) The direction issued by the fourth respondent prohibiting the applicant from attending shopping centres on weekends between the hours of 8 am to 9.30 am and between 2.30 pm and 4.30 pm (the sixth decision); and

(vii) The notice of contravention of supervision order issued by the third respondent by way of a letter dated 24 September 2008 purporting to find that the applicant had committed, on 23 September 2008, a contravention of the supervision order made by the Honourable Justice Daubney on 21 August 2008 (the seventh decision).

[6] The application sets out the following grounds as the basis for the application. The applicant claims he is aggrieved by the first, second, third, fourth, fifth and seventh decisions because:

(a) those decisions purport to find the applicant committed a criminal offence under s 43B of the Dangerous Prisoners (Sexual Offenders) Act 2003, despite there being no power reposed in the respondents to make such a finding;

(c) those decisions remain on the Queensland Corrective Services file relating to the applicant and may be used in subsequent breach proceedings under ss 20, 21 and 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003.

[7] The applicant claims he is aggrieved by the sixth decision because he is not able to enjoy his liberty as he sees fit.

[8] The application states that the grounds of the application are:

(a) in relation to the first, second, third, fourth, fifth and seventh decisions:

(i) the applicant was not given any opportunity to be heard prior to the making of the decisions and a breach of the rules of natural justice occurred;

(ii) there is no power reposed in the first, second or third respondents respectively to make those decisions;

(iii) the first, second and third respondents respectively did not have jurisdiction to make those decisions; and

(iv) the decision were not authorised by the Dangerous Prisoners (Sexual Offenders) Act 2003;

(i) That it is so unreasonable that no reasonable person could have made the sixth decision;

(ii) The applicant was not given any opportunity to be heard prior to making the decisions and a breach of the rules of natural justice occurred.

1. an order extending the time for the filing of this application for a statutory order of review;

2. an order setting aside or quashing the first, second, third, fourth, fifth, sixth and seventh decisions;

3. a declaration that the respondent had no power to make the first, second, third, fourth, fifth, sixth and seventh decisions;

4. an order that the Respondent pay the Applicant's costs of and incidental to these proceedings.

[9] Section 20 provides:

(1) A person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision.

(2) The application may be made on any 1 or more of the following grounds -

(a) that a breach of the rules of natural justice happened in relation to the making of the decision;

(b) that procedures that were required by law to be observed in relation to the making of the decision were not observed;

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was not authorised by the enactment under which it was purported to be made;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;

(f) that the decision involved an error of law (whether or not the error appears on the record of the decision);

(g) that the decision was induced or affected by fraud;

(h) that there was no evidence or other material to justify the making of the decision;

(i) that the decision was otherwise contrary to law.

(3) This section applies only to a decision made after the commencement of this Act."

[10] In summary then the basis of the applicant's application for a statutory order of review in relation to the six letters is that he is aggrieved because:

(a) the decisions purport to find that he committed a criminal offence under s 43B of the DPSOA, despite there being no power in the respondent to make such a finding; and

(b) those decisions remain on the Corrective Services file and may be used in subsequent breach proceedings under the Act.

[11] The applicant contends that in relation to the decisions contained in the six letters he was not given any opportunity to be heard prior to the making of the decisions and that a breach of the rules of natural justice occurred. He also contends that there is no power in the respondents to make those decisions, that the respondents do not have the jurisdiction to make those decisions and that the decisions were not authorised by the DPSOA.

[12] In relation to the direction of 18 September 2008, the applicant states that he is also aggrieved by that decision as it restricts his liberty. He contends that that decision is so unreasonable that no reasonable person could have made that decision and he was not heard prior to the making of the decision and a breach of natural justice has occurred.

[13] The six letters written by the relevant District Manager at the time, all specifically refer to the requirements of conditions (5) or (14) of the supervision order, that the applicant must comply with directions of a CSO or a curfew direction. The letters then noted the time, place and nature of the failure to comply with a direction. The letters then generally stated that the letter was a "warning", that a copy of the warning would be held on the file and that failure to abide by conditions of an order without reasonable excuse may result in the matter being returned to the Supreme Court. Relevant parts of each of those letters is extracted below.

[14] The letter of 21 July 2008 from the first respondent headed "Formal Censure" stated the following: (my emphasis)

"It is noted that on 11 July 2008, you deviated from your approved travel direction without reasonable excuse.

A decision on contravention has been made and it was decided not to proceed with formal contravention action at this time but to issue you with a formal warning. A copy of this formal warning will be held on your file.

This is a warning. Any further failure to abide by the conditions of your order without reasonable excuse may result in the supervision order being returned to the Supreme Court for contravention action."

[15] The next letter from the first respondent, also dated 21 July 2008, headed "Formal Censure" states the following:

"It is noted that on 17 July 2008, you displayed ongoing inappropriate and aggressive behaviours towards your supervising officer during the scheduled report.

A decision on the contravention has been made and it was decided not to proceed with a formal contravention action at this time, but to issue you with a formal warning. A copy of this formal warning will be held on your file.

This is a warning. Any further failure to abide by the conditions of your order without reasonable excuse may result in the supervision order being returned to the Supreme Court for contravention action."

[16] A further letter from the first respondent, also dated 21 July 2008, headed "Formal Censure" states:

"It is noted that on 20 July 2008 you deviated from your approved travel direction without reasonable excuse.

A decision on contravention has been made and it was decided not to proceed with a formal contravention action at this time, but to issue you with a formal warning. A copy of this formal warning will be held on your file.

This is a warning. Any further failure to abide by the conditions of your order without reasonable excuse may result in the supervision order being returned to the Supreme Court for contravention action."

[17] The next letter dated 25 July 2008 from the first respondent headed "Formal Censure" stated:

"It is noted that on 23 July 2008, you deviated from your approved travel direction without reasonable excuse.

A decision on contravention has been made and it was decided not to proceed with a formal contravention action at this time, but to issue you with a formal warning. A copy of this formal warning will be held on your file.

This is a warning. Any further failure to abide by the conditions of your order without reasonable excuse may result in the supervision order being returned to the Supreme Court for contravention action."

[18] The next letter dated 15 September 2008 entitled "Notice of Contravention of Supervision Order" stated the following:

"Condition 5 of this order states that you must 'comply with a curfew direction or monitoring direction'.

It is noted that on 12 September 2008 you failed to return to your approved residence by 3.00pm thus breaching your curfew requirements.

Your contravention is noted and has been recorded on file. Failure to abide by the conditions of your order without reasonable excuse may result in your supervision order being returned to the Supreme Court for contravention action."

[19] A letter bearing the date of 24 September 2008 entitled "Notice of Contravention of Supervision Order" followed. It stated:

"Condition 5 of this order states that you 'must comply with a curfew direction or monitoring direction'.

It is noted that on 23 September 2008 you left your approved residence prior to the approved time without reasonable excuse.

Your contravention is noted and has been recorded on file. Failure to abide by the conditions of your order without reasonable excuse may result in your supervision order being returned to the Supreme Court for contravention action."

[20] It is clear that the starting point in a judicial review application is to search for the source of power exercised in the making of the decisions which affect the applicant's rights and liabilities.[1] The fundamental task is one of statutory construction.

[21] Section 15 of the DPSOA provides the source of power for a CSO to commence supervision of the applicant. Section 15 provides that a supervision order has effect in accordance with its terms, when the prisoner is released.

"15 Effect of supervision order or interim supervision order

A supervision order or interim supervision order has effect in accordance with its terms -

(a) on the order being made or at the end of the prisoner's period of imprisonment, whichever is the later; and

(b) for the period stated in the order."

[22] Both the interim supervision order and the supervision order contain a requirement that the applicant "be under the supervision of a CSO" pursuant to s 16(1)(d). Section 16(1)(da) requires compliance with a curfew or monitoring direction and s 16(1)(db) further provides that the released prisoner must comply with every reasonable direction of a CSO. The general requirements of supervision orders are specified in s 16 of the DPSOA:

(1) If a judicial authority orders that a prisoner's release from custody be supervised under a supervision order or interim supervision order, the order must contain requirements that the prisoner -

(a) report to a corrective services officer at the place, and within the time, stated in the order and advise the officer of the prisoner's current name and address; and

(b) report to, and receive visits from, a corrective services officer as directed by the judicial authority; and

(c) notify a corrective services officer of every change of the prisoner's name, place of residence or employment at least 2 business days before the change happens; and

(d) be under the supervision of a corrective services officer, and

(da) comply with a curfew direction or monitoring direction; and

(db) comply with every reasonable direction of a corrective services officer; and

(e) not leave or stay out of Queensland without the permission of a corrective services officer and

(f) not commit an offence of a sexual nature during the

(1) The purpose of this section is to enable the movements of a released prisoner to be restricted and to enable the location of the released prisoner to be monitored.

(2) A corrective services officer may give 1 or both of the following directions to the released prisoner -

(a) a direction to remain at a stated place for stated periods (curfew direction);

a direction to remain at the released prisoner's place of residence from 2.30p.m. to 7.00p.m. on school days, if the prisoner is not required to be at a place of employment during these hours

(b) a direction to do 1 or both of the following (monitoring direction) -

(ii) permit the installation of any device or equipment at the place where the released prisoner resides.

(3) A corrective services officer may give any reasonable directions to a released prisoner that are necessary for the proper administration of a curfew direction or monitoring direction.

(4) This section and section 16(1)(da) do not limit section 16(1)(db)."

[23] Accordingly, the DPSOA sets up a regime whereby a released prisoner is supervised by corrective service officers. The supervised release is subject to conditions which are outlined in the particular supervision order which pertains to each individual released prisoner. Those supervision orders must contain certain conditions which are mandatory requirements and they include a requirement that the released prisoner must comply with reasonable directions of a CSO and must comply with curfew and monitoring directions. The order may also contain any other requirement that the court considers appropriate, to ensure the adequate protection of the community or for the prisoner's rehabilitation, care or treatment. Clearly then, this supervision regime necessarily involves intense supervision of a released prisoner's daily activities and movements.

[24] The DPSOA then provides two mechanisms to determine whether there has been a contravention of a supervision order, namely s 22 and s 43B. Section 43B makes it a criminal offence to contravene a requirement of a supervision order "without reasonable excuse". Section 22 essentially allows the court to make further orders, including a continuing detention order, if the court is satisfied on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened a requirement of the supervision order or interim supervision order.

[25] Section 20 of the DPSOA provides the mechanism for the issuing of a warrant for the arrest of a released prisoner. The section applies if a corrective services or police officer "reasonably suspects" that there is, has been, or may be, a contravention of a requirement of a supervision order.

"20 Warrant for released prisoner suspected of contravening a supervision order or interim supervision order

(1) This section applies if a police officer or corrective services officer reasonably suspects a released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the released prisoner's supervision order or interim supervision order.

(2) The officer may, by a complaint to a magistrate, apply for a warrant for the arrest of the released prisoner directed to all police officers and corrective services officers to arrest the released prisoner and bring the released prisoner before the Supreme Court to be dealt with according to law.

(3) The magistrate must issue the warrant, in the approved form, if the magistrate is satisfied the grounds for issuing the warrant exist.

(4) However, the warrant may be issued only if the complaint is under oath.

(6) The warrant may state the suspected contravention in general terms."

[27] It is clear that the mechanism provided for under s 20 of the DPSOA, is that a police officer or CSO may bring an application by way of complaint to a magistrate for the issuing of a warrant to arrest the released prisoner, if the officer "reasonably suspects" a released prisoner is likely to contravene, is contravening or has contravened a requirement of a supervision order. The section provides that the magistrate must issue the warrant if the magistrate is satisfied that grounds for issuing the warrant exist. If a warrant does issue it directs that the released prisoner is to be brought before the Supreme Court to be dealt with according to law. The proceedings for an offence pursuant to s 43B, are taken in a summary way under the Justices Act 1886 (Qld).

[28] The applicant argues that despite those provisions in the DPSOA, the six contravention letters sent by the CSO, all purported to find that the applicant contravened the terms of the supervision order. The essence of the applicant's argument is that the six letters all indicate that a CSO has heard and determined whether a breach of a supervision order has occurred and that there is nothing in the DPSOA which gives a CSO such power.

[29] The applicant argues that the presence of two mechanisms in the DPSOA to determine a breach of a supervision order and the fact that those mechanisms are reposed in the judicial branch of Government supports the argument that the executive Government cannot hear and determine breaches of a supervision order and therefore, a CSO cannot make these decisions.

[30] In particular the applicant relies on the principle of construction outlined by Gavan Duffy CJ and Dixon J in Anthony Horden[2] as follows:

"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."

[31] However before an analysis can be undertaken as to whether the CSO had power to make the decision as the applicant argues, it is first necessary to ascertain if those decisions are decisions which can be reviewed by this court, pursuant to the Judicial Review Act 1991 (Qld) (JRA).

Is this a decision to which the Judicial Review Act applies?

[32] Section 4 of the JRA states:

"4 Meaning of decision to which this Act applies

(a) a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion); or

(b) a decision of an administrative character made, or proposed to be made, by, or by an officer or employee of, the State or a State authority or local government authority under a non-statutory scheme or program involving funds that are provided or obtained (in whole or part) -

(i) out of amounts appropriated by Parliament; or

(ii) from a tax, charge, fee or levy authorised by or under an enactment.

5 Meaning of making of a decision and failure to make a decision

In this Act, a reference to the making of a decision includes a reference to -

(a) making, suspending, revoking or refusing to make an order, award or determination; or

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; or

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; or

(d) imposing a condition or restriction; or

(e) making a declaration, demand or requirement; or

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing to do anything else; and a reference to a failure to make a decision is to be construed accordingly."

[33] What then constitutes a decision for the purposes of the JRA? As Mason CJ said in Australian Broadcasting Tribunal v Bond[3] (Bond) when referring to the Commonwealth Act,[4] the word has a relatively limited field of operation, as follows:

"[29] The fact that the ADJR Act is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word 'decision'. In this respect it is significant that s.5 does not speak of 'final decision'. It is also significant that the jurisdiction of the Federal Court to grant declaratory relief is not confined to granting relief in respect of ultimate decisions. The jurisdiction extends to questions in issue in pending proceedings: cf. Forster v. Jododex Aust. Pty. Ltd. [1972] HCA 61; (1972) 127 CLR 421, per Gibbs J. at p 438. The existence of this jurisdiction, which antedated the ADJR Act, suggests that the concept of a reviewable decision is not limited to a final decision disposing of the controversy between the parties.

[30] Nonetheless other considerations point to the word having a relatively limited field of operation. First, the reference in the definition in s.3(1) to 'a decision of an administrative character made ... under an enactment' indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s.3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J., 'a determination effectively resolving an actual substantive issue'. Thirdly, s.3(3), in extending the concept of 'decision' to include 'the making of a report or recommendation before a decision is made in the exercise of a power', to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that 'decision' comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s.3(5) suggests that acts done preparatory to the making of a 'decision' are not to be regarded as constituting 'decisions' for, if they were, there would be little, if any, point in providing for judicial review of 'conduct' as well as of a 'decision'.

[31] The relevant policy considerations are competing. On the one hand, the purposes of the ADJR Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of 'decision' is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen C.J. and Lockhart J. appeared to emphasize the first of these considerations in Australian National University v. Burns [1982] FCA 191; (1982) 64 FLR 166, at p 172; [1982] FCA 191; 43 ALR 25, at p 30, there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret 'decision' in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.

[32] The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable 'decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. (my emphasis)

[33] Another essential quality of a reviewable decision is that it be a substantive determination."

[34] It is therefore necessary to examine the decisions which are the subject of this application and apply the tests set out in Bond. This involves first a determination as to whether they are decisions which the DPSOA requires or authorizes and second a consideration as to whether the determination effectively resolved an actual substantive dispute.

[35] Of the six letters, there were two types of letters. The letters were either headed "Formal Censure" or "Notice of Contravention of Supervision Order." There were four letters of censure and two notices of contravention.

[36] The six letters have common features and all contain the following:

(i) the letters commence by informing the applicant of the content of two conditions of his supervision order, namely conditions (5) and (14), which require him to comply with reasonable directions of a CSO and with curfew directions.

(ii) The letters then give notice to the applicant that there has been a failure to comply with a direction of a CSO.

(iii) The nature of the direction is set out, ie a travel direction, a curfew direction or behaviour.

(v) The letters all indicate contravention action for a breach of a supervision order has not been taken.

(vi) All the letters indicate that the letter is a warning

(vii) All the letters clearly indicate that contravention action for breach of a supervision order may be taken if there is failure to abide by conditions of an order without reasonable excuse.

(viii) The letters indicate that contravention action occurs in the Supreme Court.

[37] It is also clear that none of the letters in any way involve a consideration as to the reasonableness of the direction as required by s 16 (db). None of the letters embark upon a consideration by the officer as to whether he has a "reasonable suspicion" that there had been a "contravention of a requirement of the supervision order' which is the necessary basis for the application to a magistrate for the issuing of a warrant. The main focus of all of the letters is the need for the applicant to comply with directions of a CSO and the fact that the applicant has not done so on a specific occasion. Construed objectively I consider that all the letters have the elements of a formal notice of a breach of a direction together with a warning as to the possible consequences of such a breach.

[38] The application identifies the decisions conveyed by the six letters, as either a formal censure or a notice of contravention of a supervision order, in each case accompanied by a finding of a contravention of an interim supervision order or a supervision order.

[39] The DPSOA makes no provision for a formal censure or a notice of contravention of a supervision order. In writing a letter conveying such a censure or giving a notice of a contravention or in otherwise administering a censure or giving such a notice, a CSO is not making a decision under an enactment. The question as to whether a decision is made under the Act, involves two criteria. The first is that the decision must be expressly or impliedly required or authorised by the enactment and second, the decision must itself "confer, alter or otherwise affect legal rights or obligations, and in that sense must derive from the enactment. A decision will only be 'made ... under an enactment' if both criteria are met".[5] It is doubtful that a censure or a notice of a contravention satisfies the first requirement. However, it seems to me to be clear that neither a censure nor a notice of contravention satisfies the second requirement. Neither will affect any legal right or obligation; much less will either depend on a statute for doing so.

[40] Section 20 of the DPSOA makes provision for a complaint by a CSO to a magistrate, for the purpose of obtaining a warrant for the arrest of a prisoner who is subject to a supervision order. It is a condition of the making of the complaint that the CSO reasonably suspects that the released prisoner has contravened (or is contravening, or is likely to contravene) a requirement of a supervision order. The formation of that suspicion is factually related to a finding of a contravention of a requirement of such an order. However, a positive finding of a breach of such a requirement, for the purpose of issuing a censure or a notice of contravention, answers a different question to that raised by s 20. On that basis, it seems to me that the findings of contraventions are not steps taken under s 20, but that each is a step along the way to the taking of an act (the censure or the giving of notice) which is not a decision under an enactment.

[41] Nevertheless, it may be appropriate to consider each finding of a contravention as the product of an enquiry envisaged by s 20 of the DPSOA. In my view, the formation of a reasonable suspicion that a released prisoner has contravened a requirement of a supervision order is not a decision under an enactment for the purposes of the JRA. Of itself, it does not affect legal rights. It is simply a condition of the power to bring a complaint before a magistrate. In the language of Bond, it is no more than a step along the way, though in a process leading to a reviewable decision.

[42] I do not consider that the fact that the notice or warnings are kept on the applicant's file affects the applicant's reputation, as there has been no relevant publication or tabling of the notice or warning without notice to the applicant, as occurred in Ainsworth v Criminal Justice Commission.[6]

[43] No doubt for obvious reasons, the application does not seek a review of decisions not to make a complaint to a magistrate under s 20 of the DPSOA. It is unlikely that the applicant could have established that he was a person aggrieved by the decision. It is also likely that such an application would be refused on discretionary grounds, if the applicant were competent to make it.

[44] Under s 21 of the JRA, a person aggrieved by conduct which has been engaged in for the purpose of making a decision under an enactment, may apply for a statutory order of review in relation to the conduct. For reasons previously stated, I do not consider that the decisions, the subject of the application, amount to conduct engaged in for the purpose of making a decision under an enactment. Further, Mason CJ in Bond[7] made it clear that:

"... the word 'conduct' points to action taken, rather than a decision made for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character ... "

The acts relied upon by the applicant are not of this character.

[45] Accordingly, I would not grant the application, insofar as the application might be said to seek a statutory order of review in relation to conduct engaged in for the purpose of making a decision under an enactment.

[46] The applicant also challenges the direction of 18 September 2008 that he was not to be at any shopping centre between the hours of 8.00 am and 9.30 am, and between 2.30 pm and 4.30 pm on weekends. The applicant argues that the direction is tainted with "extreme irrationality or illogicality" as it makes no sense. Nor, it is argued, is there any evidence to support such a decision.

[47] Without embarking on the merits of the decision, the evidence does establish that the applicant was spending a significant amount of time at shopping centres and that the direction which applied during the weekdays was simply extended to cover weekends, to limit the time he spent at shopping centres and to keep the hours the same for the sake of consistency.

[48] It is agreed that the direction was revoked on 5 January 2009. There is therefore no decision which can be set aside.

[49] I do not consider that there is any utility therefore, in the relief claimed.

[50] Accordingly, I do not consider that the applicant has established any basis for a statutory order of review under Part 3 of the JRA.

[51] The applicant relies on r 569 of the Uniform Civil Procedure Rules 1999 (UCPR), which provides:

"569 Relief based on application for review if application made for statutory order of review

(a) an application is made under rule 566 or 568 for a statutory order of review in relation to -

(ii) conduct engaged in, or proposed to be engaged in, for the purpose of making a decision; or

(i) the decision to which the application relates does not fall within the definition decision to which this Act applies in section 4 of the Act; and

(ii) any relief or remedy mentioned in section 43 of the Act may have been granted in relation to the decision, conduct or failure if it had been sought in an application for review at the time of starting the application for a statutory order of review; the court may, instead of refusing the application, order the proceeding to continue as if it had been started as an application for review at that time."

[52] Accordingly, the applicant argues that if relief is not available pursuant to part 3 of the JRA, then relief should be granted pursuant to Part 5 which does not require the decision to have been made under an enactment.

Should there be relief pursuant to Part 5 of the JRA?

[53] One form of relief made available under Part 5, is relief by way of prerogative order, in this case, in the nature of certiorari. Such relief only lies against a body having legal authority to determine questions affecting the rights of a subject.[8] The decisions the subject of the application, have no legal effect. I am therefore, not prepared to grant relief by way of prerogative order.

[54] The applicant seeks a declaration that the respondents had no power to make the decisions. That is, that the CSO should not issue a notice about the time, date and nature of a breach of a direction, a warning as to the possible consequences and an indication as to whether formal contravention action is to be taken.

[55] There is no doubt the Court has the power to grant declaratory relief. As the High Court said in Ainsworth v Criminal Justice Commission,[9] "it is now accepted that superior courts have inherent power to grant declaratory relief". However, declarations are not to be granted lightly, as was stated by the Privy Council in Ibeneweka v Egbuna:[10]

"... the general theme of judicial observations has been to the effect that declarations are not lightly granted ... Nevertheless, anxious warnings of this character appear to their Lordships to be not so much enunciation of legal principle as administrative cautions issued by eminent and prudent judges to their, possibly more reckless, successors. After all, it is doubtful if there is more of principle involved than the undoubted truth then the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration."

[56] This basis for relief was raised late in the applicant's argument and I do not consider, given my analysis of the nature of the decisions being made, that the circumstances here would give rise to the declaratory relief sought. As I have indicated, the decisions were more in the nature of warnings, they were not final and determinative and they did not impose a penalty or affect legal rights. I do not consider that the applicant has established a basis for the granting of declaratory relief. As the High Court indicated in Ainsworth, declaratory relief should be directed to the determination of legal controversies.

[57] Section 26 of the JRA provides that essentially, the period within which an application should be filed is 28 days from the date of the decision. In this case, the application was made some nine months after the last of the decisions was made. The applicant sets out in his affidavit, the reasons why he delayed filing his application. The applicant essentially outlines that the delay has occurred due to the time required to obtain legal aid, that he did not realise that he could challenge the decision under the JRA and that he misunderstood the provisions of the DPSOA and thought that "if I was successful at the final hearing then I would be free to enjoy liberty without the constraints of a supervision order. I had read all of the material that had been filed on behalf of the Attorney General and was confident that no supervision order would be made at the final hearing which was set for 28 July 2008."

[58] Despite these reasons, I do not consider that there should be an extension of time, given my view as to the applicant's prospects of success. I do not consider that there are public interest reasons as to why the extension should be granted.

[59] The application for an extension of time within which to apply under the JRA should therefore be refused.

[1] Griffith University v Tang (2005) 213 ALR.

[3] [1990] HCA 33; (1990) 170 CLR 321.

[4] Administrative Decisions (Judicial Review) Act 1977 (Cth).

[5] Griffith University v Tang (2005) 221CLR 99 at [89].

[6] [1992] HCA 10; (1991) 175 CLR 564.

[7] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [341].

[8] R v Electricity Commissioners; ex parte London Electricity Joint Committee Co (1924) 1 KB 171, 205, cited in Aronson, Dyer & Groves, Judicial Review of Administrative Action (5th ed) 808; see also Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 580-581.

[9] [1992] HCA 10; 175 CLR 564 at [581].

[10] [1964] 1 WLR 219 at [224-225].