Bartz v Qld Corrective Services Commission

IN THE SUPREME COURT
OF QUEENSLAND
No. 11033 of 1998
Brisbane
Before Wilson J.
[Bartz v Qld Corrective Services Commission]
BETWEEN: WADE ANTHONY BARTZ

Applicant

AND: QUEENSLAND CORRECTIVE SERVICES COMMISSION

Respondent

REASONS FOR JUDGMENT - WILSON J.
Delivered on the 4th day of October 1999

This is an application to review the decision of the Queensland Corrective Services Commission made on 27 May 1998 to transfer the applicant Wade Anthony Bartz, under involuntary emergency transfer procedures, from the Townsville Correctional Centre to the Arthur Gorrie Correctional Centre.
The applicant is a prisoner serving a sentence of 18 years 2 months for armed robbery. On the hearing of the application he appeared without legal representation, and the Commission was represented by counsel.
The application was based on three grounds, the first two of them expressed in the application, and the third contained in submissions made by both sides at the hearing:-
(a)the respondent breached the rules of natural justice by failing to give the applicant an adequate or any opportunity to respond to information adverse to his position and which was untrue (Judicial Review Act1991 s 20(2)(a));
(b)there was no evidence or other material to justify the making of the decision (Judicial Review Act s 20(2)(h)); and
(c)procedures required by law to be observed in relation to the making of the decision were not observed (Judicial Review Act s 20(2)(b)).
In his application the applicant said he was aggrieved by the decision because the transfer was involuntary and because it resulted in reduced access to educational and other facilities and delayed his progression through the security classification system. By the time of the hearing he was being held at the Borallon Correctional Centre. He did not wish to be sent back to Townsville, but wanted relevant documents, etc removed from his file.
In the application the following relief was sought:-
(a)an order quashing or setting aside the decision;
(b)an order directing the Commission to reconsider its decision according to law, and within 28 days of the date of the order;
(c)further or alternatively, a declaration that, where a prisoner is transferred involuntarily as a result of allegations of demonstrated behaviour posing a threat to the good order and security of the correctional centre, particulars of the allegations must be provided to the prisoner for reply.
On 18 May 1998 the security/intelligence adviser at the Townsville Correctional Centre sent a memorandum to the General Manager of that institution in the following terms:-
“1.On 24 March 1998, prisoner Wade Anthony BARTZ was transferred from Lotus Glen Correctional Centre to Townsville Correctional Centre.
2.The main issue surrounding BARTZ’s transfer was his obsessional fixation on psychologist Vanessa Bailey. A compounding factor was BARTZ’s jealousy towards other prisoner clients of Ms Bailey and his propensity to intimidate and/or assault them.
3.On 11 May 1998, Ms Bailey transferred to Townsville Correctional Centre as a psychologist. A major factor influencing Ms Bailey’s decision to accept the position was the assurance that BARTZ would have no contact with her.
4.Since Ms Bailey commenced duty at this Centre on 11 May, BARTZ has resumed the pattern of behaviour that he exhibited at Lotus Glen Correctional Centre.
5.On 14 May 1998, BARTZ confronted Ms Bailey in the Spine of the Harold Gregg Units. BARTZ made a pretence of apologising to Ms Bailey and then made reference to her being suspected of passing information to Management regarding illegal drug use at Lotus Glen Correctional Centre.
6.On 15 May 1998, Ms Bailey was engaged in an impromptu counselling session with prisoner Raymond Paul MARTIN on the catwalk in front of Block Five. BARTZ was in the Sports and Recreational Area at this time. When BARTZ observed Ms Bailey in conversation with MARTIN, he started yelling abuse and obscene comments at Ms Bailey.
Having concluded her conversation with MARTIN, Ms Bailey started walking back to her office. Shortly there-after, BARTZ was let out of the Sports area. Staff then observed BARTZ sprint after Ms Bailey. BARTZ pulled up as he approached the area between the Village and the Harold Gregg Units. Observing staff noted that at this time, Ms Bailey had reached Four Tower. Staff formed the opinion that BARTZ was not prepared to approach Ms Bailey near Four Tower because of the number of witnesses and staff members in that vicinity.
7.Ms Bailey reports that MARTIN is now concerned about his safety and has requested that any future counselling sessions with her be conducted without BARTZ’s knowledge. Ms Bailey has had two counselling sessions with MARTIN and it now appears that BARTZ is becoming jealous of MARTIN.
8.It is apparent that BARTZ’s obsessional behaviour towards Ms Bailey will continue and Ms Bailey reports that she feels uncomfortable and threatened by this situation.
9.In my opinion, BARTZ presents both a direct and indirect threat to the personal safety and well-being of Ms Bailey. The degree of probability that the risk will be realised increases with each day that BARTZ remains in this Centre. BARTZ’s behaviour towards Ms Bailey and the attending risk/threat assessment have been clearly documented. Should an incident occur, it would clearly breach QCORR’s duty of care obligation toward Ms Bailey.
10.I recommend that BARTZ be transferred out of Townsville Correctional Centre as a matter of urgency.”
On 18 May 1998 the General Manager of the Townsville Correctional Centre wrote to the Principal Adviser, Sentence Management of the Commission requesting that Bartz be transferred to the Woodford Correctional Centre under the provisions of the Emergency Transfer Policy. On 26 May 1998 a delegate of the Commission decided to transfer him to the Arthur Gorrie Correctional Centre by way of emergency transfer. The decision was set out on a form headed “Emergency Transfer Decision”. It included the following:-

Ö

The prisoner is to be given written advice and reasons for the impending transfer by staff
  at TWNCC.
    AH

Ö

The prisoner is NOT to be given notice of the impending transfer

Forwarded to: TOWNSVILLE Correctional Centre General Manager

  ARTHUR GORRIE Correctional Centre General Manager

Signature:

Alison Hunter
Authorised Delegate

Date:   26 May 1998

On 26 May 1998 the applicant wrote to the Commission asking for a statement of reasons. The decision was implemented the next day. Subsequently on 17 June 1998 a statement of reasons was provided as follows:-
“1. INTRODUCTION
(1)Section 13 of the Corrective Services Act 1988 provides that the Commission shall be responsible for the security and management of the prisons and the safe custody and welfare of prisoners.
(2)On 18 May 1988 the General Manager of Townsville Correctional Centre requested the emergency transfer of Wade Anthony Bartz out of the Centre.
(3)The emergency transfer request was approved by the Authorised Delegate.
(4)Wade Anthony Bartz was transferred from Townsville Correctional Centre to Arthur Gorrie Correctional Centre on 27 May 1998.
(5)The Office of Sentence Management, Queensland Corrective Services Commission received a letter from prisoner Wade Bartz requesting a written statement of reasons in relation to the decision to transfer him from Townsville Correctional Centre to Arthur Gorrie Correctional Centre.
2.EVIDENCE AND OTHER MATERIAL ON WHICH FINDING OF FACT WERE BASED
In arriving at the decision, the Authorised Delegate considered the following material:
(1)Corrective Services Act 1988 (Sections 13, 14 and 69).
(2)Chapter 16, the Prisoner Transfer Policy and Procedures Manual.
(3)Queensland Corrective Services Commission emergency transfer request form requesting transfer of prisoner Wade Anthony Bartz from Townsville Correctional Centre.
(4)A Memorandum to the General Manager dated 18 May 1998 from Security/Intelligence Advisor, Townsville Correctional Centre.
(4)A letter to the Principal Adviser Sentence Management from the General Manager Townsville Correctional Centre.
3.FINDINGS ON MATERIAL QUESTIONS OF FACT
The following findings of fact were made:
(1)Prisoner Wade Anthony Bartz was identified by the Management of Townsville Correctional Centre as displaying inappropriate behaviour toward a staff member including outbursts of a verbally aggressive nature.
(2)Based on the most recent incident and the information provided by Townsville Correctional Centre another prisoner was feeling threatened by prisoner Bartz’ behaviour.
(3)The transfer of prisoner Wade Anthony Bartz was in accordance with the Emergency Transfer provisions of the Practices and Procedures for the Prisoner Transfers.
(4)The transfer was approved by the Authorised Delegate.
4.REASONS FOR THE DECISION
(1)The General Manager, Townsville Correctional Centre advised the Office of Sentence Management that prisoner Wade Anthony Bartz was demonstrating behaviour that indicated that he was a risk to the security and good order of the Centre. A transfer was requested as soon as this could be arranged.
(2)Prisoner Bartz’ poor behaviour is outlined in reports from Townsville Correctional Centre which state for example, that prisoner Bartz ‘started yelling abuse and obscene comments’.
(3)Reports stated that ‘Bartz presents both a direct and indirect threat to the personal safety and well being’ of a staff member.
(4)The decision was made to ensure that the security, good order and discipline of Townsville Correctional Centre was maintained.”
Further particulars were sought and on 14 October 1998 the Commission wrote:-
“The reports provided upon which the findings of fact were made are summarised as follows:
·Prisoner Wade Anthony Bartz was identified by the Management of Townsville Correctional Centre as displaying inappropriate behaviour toward a staff member including outbursts of a verbally aggressive nature. Whilst each individual incident was not recorded by way of time, date and place it was inferred in the Memorandum to the General Manager dated 18 May 1988 from Security/Intelligence Advisor, Townsville Correctional Centre and in the letter to the Principal Adviser Sentence Management from the General Manager Townsville Correctional Centre that more than one occasion could be recounted.
·Based on the most recent incident and the information provided by Townsville Correctional Centre another prisoner was feeling threatened by prisoner Bartz’ behaviour. Under the Corrective Services (Administration) Act 1988 Section 61 we are unable to provide any documentation or information in relation to another prisoner.
·Information contained in the Memorandum to the General Manager and the letter to the Principal Adviser Sentence Management, together with an assessment of prisoner Bartz using the Corrective Services Act 1988 (Sections 13, 14 and 69), resulted in the General Manager, Townsville Correctional Centre assessing that prisoner Bartz was a risk to the security and good order of the Centre.
·Prisoner Bartz’ poor behaviour is outlined in reports from Townsville Correctional Centre which state for example, that prisoner Bartz ‘started yelling abuse and obscene comments’.
·Reports stated that ‘Bartz presents both a direct and indirect threat to the personal safety and well being’ of a staff member. Whilst each individual incident was not recorded by way of time, date and place it was intimated in the reports provided that more than one occasion could be recounted.”
Insofar as the application is based upon a breach of the rules of natural justice, it is necessary first to consider whether the decision was one in relation to which the rules were applicable. As Williams J put it in Re Walker [1993] 2 Qd R 345 at 348-349:-
“The real question raised by the proceedings is whether or not the impugned decisions involved the exercise of a statutory power which deprived the applicant of a benefit or privilege which he had a legitimate expectation of obtaining or continuing to enjoy, without according him procedural fairness. (cf Kioa v West 159 CLR 550; Haoucher v. Minister for Immigration and Ethnic Affairs (1990) 169 C.L.R. 648, and Annetts v. McCann (1990) 170 C.L.R. 596.”
The decision was one which the Commission was authorized to make pursuant to its responsibility for the security and management of the prison and the safe custody and welfare of prisoners. At the time the decision was made the Corrective Services Act 1988 provided:-
“Functions of commission concerning prisons and community corrections centres
13. (1)   Subject to this Act and to any direction of the Minister, the commission shall be      responsible for the security and management of prisons and community corrections centres and the safe custody and welfare of prisoners.
(2) The commission shall provide such medical services as are necessary for the welfare of prisoners.
(3)   The commission shall keep a register (the “prisoner register”) that shall be in the prescribed form and shall contain such details in respect of each prisoner as are prescribed.
General manager responsible for prison
14. The general manager of a prison shall, subject to the commission, be responsible for         the security and management of the prison and the safe custody and welfare of prisoners detained in or who, for the time being, may be detained in the prison.
Transfer of prisoners
69.    (2) Subject to the provisions of the Mental Health Act 1974, the commission may,    by instrument and subject to such conditions as it thinks fit, order the transfer of a prisoner           from 1 institution to another.
(3)   An instrument made under subsection (2) shall be in the prescribed form and      shall specify -
(a)the person or class of person who will have control of the prisoner during the transfer;
(b)the place to which and the purpose and period for which the prisoner is to be transferred;
(c)any other conditions to which the transfer is subject.”
The applicant did not have any right, interest or legitimate expectation which was affected by the decision. He had no specific benefit clearly conferred by statute which was affected. He submitted that his progression through the security classification system (as to which see Corrective Services Regulations 1989 s 13) had been delayed. In fact his classification was not elevated as a result of the transfer and there was really no evidence as to whether it had been delayed. But be that as it may, he had no legitimate expectation that it would not be altered. Insofar as he suggested that the transfer may in the future have an adverse effect on his entitlement to be considered eligible for parole, I respectfully adopt what Fryberg J said in Graveson v Queensland Corrective Services Commission (unreported, 4 June 1998);
“The transfer decision, like the decision to segregate prisoners referred to in McEvoy v Lobban [1990] 2 Qd R 235 is much more of a managerial decision than a decision which has a relevance to a man’s freedom on parole.”
In short, this was not a decision which would affect a right, interest or legitimate expectation and so not a decision to which the rules of natural justice were applicable. I find against the applicant on the first ground of the application.
The second ground is that there was no evidence or other material to justify the making of the decision. Section 24 of the Judicial Review Act provides:-
“Decisions without justification - establishing ground (ss 20(2)(h) and 21(2)(h))
24. The ground mentioned in sections 20(2)(h) and 21(2)(h) is not to be taken to be made out -
(a)unless -
(i)the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and
(ii)there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or
(b)unless -
(i)the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and
(ii)the fact did not or does not exist.”
Paragraph (b) is relevant to the present application.
The onus was on the applicant to put forward evidence that not only established that there was no probative evidence to support the fact or facts relied upon by the Commission, but which also negated their existence: Curragh Qld Mining Ltd v Daniel (1992) 34 FCR 212 at 224. Judicial review proceedings do not encompass merits review, and it is not the role of the court to weigh the reliability of evidence relied on or to resolve inconsistencies in conflicting evidence. It is simply to determine whether there was evidence, and as Fryberg J observed in Graveson, the amount of evidence will vary depending upon the nature of the decision.
The applicant submitted that the memorandum of 18 May 1998 was based on speculation, and that it contained information which was incorrect, false and misleading. He disputed the facts set out in the memorandum. He said that while he was an inmate of the Lotus Glen Correctional Centre Ms Bailey was employed there, and there were rumours of an inappropriate relationship between them. In fact there was a friendship between his mother and Ms Bailey, and Ms Bailey had breached s 104(6) of the Corrective Services Act by sending a letter to his mother in a parcel that was being sent on his behalf to his mother. Further, the applicant pointed out that 12 days elapsed after the alleged incident on 15 May 1998 before the transfer was effected, and in the meantime no restrictions were placed on him. After the transfer was effected his security classification was not elevated. He submitted that in the circumstances the authorities could not have been too concerned about the incident in question.
This was a decision to effect an emergency transfer of a prisoner in order to maintain prison security and discipline. There was evidence available to the decision maker to justify the making of the decision. The applicant’s version of events is different, but it is not for me to try to resolve this dispute. I rule against the applicant on the second ground of the application.
The third ground argued at the hearing was the failure to observe procedures required by law in relation to the making of the decision. The applicant relied on alleged non-observance of procedures contained in a policy document approved in principle by the Commission in June 1997. It contained a “Prisoner Transfer Policy” and “Prisoner Transfer Procedures”. The applicant alleged:-
(a)that he was not given reasons for the transfer, despite a direction to that effect on the Emergency Transfer Form (Form 3B). However, there is no requirement to give notification in the case of an emergency transfer where it is considered that such notice may pose a security risk (see Prisoner Transfer Procedures para 1647);
(b)that he was not advised of his right to appeal by the sending Custodial Correctional Centre (see Prisoner Transfer Procedures para 1654; Form 4);
(c)that a Transfer Summary Form (see Prisoner Transfer Policy para 1605) addressing matters of health, self harm and matters requiring immediate attention was not completed. Prisoner Transfer Procedure para 1658 requires that the form be completed as close as possible to the time of transfer and no more than 24 hours prior to that expected time (Form 7). A copy is then to be sent by facsimile to the Manager Programs/Duty Manager of the receiving Custodial Correctional Centre;
(d)that his security classification (see Prisoner Transfer Policy para. 1619) was not re-assessed by the Sentence Management Team at the receiving correctional centre within the specified four (4) week period.

For this ground of review to be made out it must be established that the procedures were required by law to be observed. There may well have been sound reasons for the compilation of the policy and procedure document. However, it was not prescribed by statute or regulation and it did not have the force of law. Accordingly, the third ground of the application for review fails. 19 Counsel for the Commission pointed also to the fact that many of the matters complained about related to events subsequent to the making of the decision. This submission is probably correct despite the potential width of the phrase “in relation to” contained in s 20(2)(b) of the Judicial Review Act, but it is unnecessary for me to determine the point.
In the circumstances the application is dismissed with costs, including reserved costs.
IN THE SUPREME COURT
OF QUEENSLAND
  No. 11033 of 1998
Brisbane
[Bartz v Qld Corrective Services Commission]
BETWEEN:              WADE ANTHONY BARTZ
Applicant
AND:  QUEENSLAND CORRECTIVE SERVICES COMMISSION
Respondent
REASONS FOR JUDGMENT - WILSON J.
Delivered the 4th day of October 1999
CATCHWORDS:     ADMINISTRATIVE LAW - application for judicial review - decision of QCSC to authorise emergency transfer of applicant - rules of natural justice not applicable - not court’s role to weigh reliability of evidence or resolve inconsistencies - no review for non-compliance with procedures not having force of law
Re Walker [1993] 2 Qd R 345
Graveson v Queensland Corrective Services Commission (SC,   unreported, 4 June 1998, Fryberg J)
Curragh Qld Mining Ltd v Daniel (1992) 34 FCR 212
Judicial Review Act 1991 ss 20(2)(a), 20(2)(h), 20(2)(b), 24.
Corrective Services Act 1988 ss 13, 14, 69
Counsel:  Applicant in person
Mr M O Plunkett for the respondent
Solicitors:  Applicant in person
Mr B T Dunphy, Crown Solicitor for the respondent
Hearing date:13 April 1999

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Citations

Bartz v Qld Corrective Services Commission [1999] QSC 237

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SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706

[1999] QSC 237

4 October 1999