Chattaway v Minister for Health and Wellbeing
[2020] SASCFC 63
•1 July 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Case Stated)
CHATTAWAY v MINISTER FOR HEALTH AND WELLBEING & ORS
[2020] SASCFC 63
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, the Honourable Justice Peek and the Honourable Justice Stanley)
1 July 2020
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - EXERCISE - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL FUNCTIONS
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - HABEAS CORPUS - APPROPRIATENESS OF REMEDY - WHETHER HABEAS CORPUS OR APPEAL APPROPRIATE
The applicant was charged with the attempted murder of each of his parents. He was found not guilty on the ground that he was mentally incompetent to commit each offence. On 16 December 2016 a supervision order was made committing the applicant to detention under subdivision 2, division 4, Part 8A of the Criminal Law Consolidation Act 1935 (SA) with a limiting term of 10 years.
The applicant was detained at James Nash House under the custody, supervision and care of the first respondent pursuant to s 269V(1) of the CLCA.
On 26 March 2020 the second respondent, as the delegate of the Minister pursuant to s 269V(4), placed the applicant in the custody, supervision and care of the person holding or acting in the position of Chief Executive of the Department for Correctional Services pursuant to s 269V(2)(a). The Chief Psychiatrist further directed that the applicant be kept in custody in Yatala Labour Prison from 26 March 2020 until 16 June 2020 pursuant to s 269V(2)(b).
On 13 May 2020 the applicant commenced an action for habeas corpus and judicial review in respect of the direction of 26 March 2020.
On 16 June 2020 the Chief Psychiatrist gave substantially the same direction in relation to the applicant for the period from 16 June 2020 until 28 July 2020. The applicant subsequently sought to amend his application for habeas corpus and judicial review to include this further direction.
At issue in the proceedings is the question of whether there was no practicable alternative to a direction that the applicant be kept in custody in a prison in accordance with s 269V(2)(b).
The applicant contends that whether there was no practicable alternative to keeping him in custody in a prison is a jurisdictional fact which must be proved objectively as a condition precedent to giving the direction contemplated by s 269V(2)(b). Accordingly, the applicant contends that it is for the Court to determine whether the jurisdictional fact exists.
The respondent contends that the exercise of the power to direct that the applicant be kept in custody in a prison merely requires the Minister or his or her delegate be subjectively satisfied that there is no practicable alternative to that course. The Court lacks jurisdiction to find as a matter of fact whether that is the case. The only relevant inquiry the Court must make is to decide whether the Minister subjectively was satisfied that there was no practicable alternative to keeping the applicant in custody in a prison.
Against that background the trial judge referred a question of law to the Full Court, namely, whether the phrase “there is no practicable alternative” requires the existence of the objective fact that “there is no practicable alternative” as a jurisdictional fact, or the opinion or satisfaction of the Minister or delegate that “there is no practicable alternative”, or some other matter.
Held by the Court in answer to the questions of law reserved:
Question:
On the proper construction of s 269V of the CLCA does the phrase “there is no practicable alternative” in s 269V(2)(b) require:
1. the existence of the objective fact that “there is no practicable alternative” as a jurisdictional fact; or
2. the opinion or satisfaction of the Minister or delegate that “there is no practicable alternative”; or
3. some other matter.
Answer:
1. No.
2. Yes.
3. And that the Minister’s delegate formed that opinion reasonably upon the material before him.
Criminal Law Consolidation Act 1935 (SA) Part 8A, s 269V, referred to.
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200, applied.
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124; Fyfe v State of South Australia [2000] SASC 84; Uebergang v Australian Wheat Board (1980) 145 CLR 266; M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135; Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611, discussed.R v Draoui (2008) 101 SASR 267; R v Behari (2011) 110 SASR 147; Public Advocate v CB (2019) 133 SASR 353; Minister for Immigration & Citizenship v Li & Anor (2013) 249 CLR 332; Watson v South Australia (2010) A Crim R 1, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
“no practicable alternative”
CHATTAWAY v MINISTER FOR HEALTH AND WELLBEING & ORS
[2020] SASCFC 63
Full Court: Kourakis CJ, Peek and Stanley JJ
KOURAKIS CJ: I agree with the answers proposed by Stanley J and with his reasons.
PEEK J: I agree with the answers proposed by Stanley J and with his reasons.
STANLEY J:
Introduction
This is a case stated on a question of law to the Full Court. The applicant was charged with the attempted murder of each of his parents. A Judge of this Court found him not guilty on the ground that he was mentally incompetent to commit each offence pursuant to s 269FA(5)(b) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). On 16 December 2016 the judge made a supervision order committing the applicant to detention under subdivision 2, Division 4, Part 8A of the CLCA with a limiting term of 10 years.
The applicant was detained at James Nash House, Oakden, under the custody, supervision and care of the first respondent (the Minister) pursuant to s 269V(1) of the CLCA.
Section 269V is found in Subdivision 5, Division 4, Part 8A of the CLCA. Section 269V provides:
(1) If a defendant is committed to detention under this Division, the defendant is in the custody of the Minister and the Minister may give directions for the custody, supervision and care of the defendant the Minister considers appropriate.
(2) The Minister may—
(a)place the defendant under the custody, supervision and care of another; and
(b)if there is no practicable alternative—direct that a defendant be kept in custody in a prison.
(3) Supervisory responsibilities arising from conditions on which a person is released on licence are to be divided between the Parole Board and the Minister in the following way:
(a)the supervisory responsibilities are to be exercised by the Minister insofar as they relate to treating or monitoring the mental condition of the person; and
(b)the supervisory responsibilities are in all other respects to be exercised by the Parole Board.
(4) The Minister or the Parole Board (as the case may be) may delegate a power or function under this section—
(a)to a person for the time being performing particular duties or holding or acting in a particular position; or
(b)to any other person or body that, in the delegator's opinion, is competent to perform or exercise the relevant functions or powers.
(5) A delegation under subsection (4)—
(a)must be by instrument in writing; and
(b)may be absolute or conditional; and
(c)does not derogate from the ability of the delegator to act in any matter; and
(d)is revocable at will by the delegator.
On 26 March 2020 the second respondent (the Chief Psychiatrist), as the delegate of the Minister pursuant to s 269V(4), placed the applicant in the custody, supervision and care of the person holding or acting in the position of Chief Executive of the Department for Correctional Services pursuant to s 269V(2)(a). The Chief Psychiatrist further directed that the applicant be kept in custody in Yatala Labour Prison (or other place as advised) from 26 March 2020 until 16 June 2020 pursuant to s 269V(2)(b). The Chief Psychiatrist also directed that:
1.The use of restraint, seclusion or other behaviour management practices will be dependent upon a risk assessment conducted by the Chief Executive of DCS;
2.The Chief Executive of DCS will seek the approval of the consultant psychiatrist at the Forensic Mental Health Service from time to time responsible for the management and treatment of Nicholas Chattaway about any significant change to the behaviour management regime; and
3.The Chief Executive of DCS and the Clinical Director of the Forensic Mental Health Service will formally review custody, supervision and care on a monthly basis and notify the Chief Psychiatrist of any recommended changes to his custody, supervision and care.
On 16 June 2020 the Chief Psychiatrist gave substantially the same direction in relation to the applicant for the period from 16 June 2020 until 28 July 2020.
On 13 May 2020 the applicant commenced an action for habeas corpus and judicial review in respect of the direction of 26 March 2020.
The applicant subsequently sought to amend that application to include the further direction of the Chief Psychiatrist of 16 June 2020.
At issue in the proceedings is the question of whether there was no practicable alternative to a direction that the applicant be kept in custody in a prison in accordance with s 269V(2)(b).
The applicant contends that whether there was no practicable alternative to keeping him in custody in a prison is a jurisdictional fact which, on an application for habeas corpus or judicial review, must be proved objectively as a condition precedent to giving the direction contemplated by s 269V(2)(b). Accordingly, the applicant contends that it is for the Court to determine whether the jurisdictional fact exists.
The respondents deny that the statutory test of “no practicable alternative” is an objective jurisdictional fact. They contend that as a matter of construction s 269V reposes in the Minister a broad, subjective, discretionary decision‑making power. The requirement for there to be “no practicable alternative” to the applicant being kept in custody in a prison merely is a mandatory relevant consideration. They accept that the Minister, or his or her delegate, as the repository of the power in s 269V to give directions for the custody, supervision and care of a detainee, must be satisfied that there is no practicable alternative to prison as a condition to giving the direction prescribed by s 269V(2)(b).
The respondents contend that the exercise of the power to direct that the applicant be kept in custody in a prison merely requires the Minister or his or her delegate be subjectively satisfied that there is no practicable alternative to that course. The Court lacks jurisdiction to find as a matter of fact whether that is the case. The only relevant inquiry the Court must make is to decide whether the Minister subjectively was satisfied that there was no practicable alternative to keeping the applicant in custody in a prison.
Against that background the following question of law was referred to the Full Court:
On the proper construction of s 269V of the CLCA does the phrase “there is no practicable alternative” in s 269V(2)(b) require:
1.the existence of the objective fact that “there is no practicable alternative” as a jurisdictional fact; or
2.the opinion or satisfaction of the Minister or delegate that “there is no practicable alternative”; or
3.some other matter.
Relevant principles
The answer to the questions referred to the Full Court is a matter of statutory construction.[1]
[1] Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 at [37], (1999) 46 NSWLR 55 at 63-64.
That requires consideration of text, context and purpose.
In Timbarra Protection Coalition Inc v Ross Mining NL[2] Spigelman CJ, with whom Mason P and Meagher JA agreed, said:[3]
[2] [1999] NSWCA 8, (1999) 46 NSWLR 55.
[3] [1999] NSWCA 8 at [39]-[44], (1999) 46 NSWLR 55 at 64-65.
Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes “jurisdictional fact” as some kind of “doctrine” is, in my opinion, misconceived. The appellation “jurisdictional fact” is a convenient way of expressing a conclusion—the result of a process of statutory construction.
Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.
Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power — it is not necessary to determine which, for present purposes — a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation), but not itself determine the actual existence or non-existence of the relevant facts.
Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker — “opinion”, “belief”, “satisfaction” — the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact: see Craig, Administrative Law, 3rd ed (1994) at 368-370; Minister for Immigration and Ethnic Affairs v Teo at 198C. Where such words do not appear, the construction is more difficult.
As Sir Frederick Jordan said in Ex parte Mullen; Re Hood at 298:
“When the jurisdiction of a court is limited, the question whether a particular matter is one the actual existence of which, notwithstanding any decision of that court, is a condition of its having jurisdiction to proceed to determine the matters which lie within its general jurisdiction, or is merely one of the matters which arise for its decision in the exercise of its general jurisdiction, is frequently one of considerable difficulty. It commonly arises in relation to a statute conferring jurisdiction in which the legislature has made no express pronouncement on the subject, and in which its intention has therefore to be extracted from implications found in inferences to be drawn from the language it has used.”
The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power…
[Citations omitted]
In Australian and International Pilots Association v Fair Work Australia[4] Perram J said:[5]
The principles in this area are well-established. In Australian Heritage Commission v Mount Isa Mines Ltd, the High Court unanimously adopted at 303 the dissenting analysis of Black CJ on this issue in the Full Court below. That judgment, which is reported as Australian Heritage Commission v Mount Isa Mines Ltd, establishes four propositions which are presently relevant: first, whether a statutory power is to be read as subject to the formation of an opinion about the existence of a matter by the decision-maker or, instead, by the bare existence of the matter itself is a question of statutory construction (at 466); secondly, the resolution of that question is assisted by an examination of the nature of the task reposed in the decision-maker — where that task is a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters, this will suggest that Parliament intended that the decision-maker would have power to make its own determination of that matter (at 466); thirdly, the inconvenience which may attend the conclusion that a matter is a jurisdictional fact is itself an indicator that this is unlikely to have been what Parliament intended (at 466); and, finally, the specialist qualifications of the members of an administrative tribunal may well be an indicator that it is this body, with its expertise, that is to resolve the issue at hand (at 467). The High Court’s reasoning in Plaintiff M70/2011 v Minister for Immigration and Citizenship at [57]-[58] per French CJ, [107]-[109] per Gummow, Hayne, Crennan and Bell JJ and [164] per Heydon J is consistent with this distillation, although the result in that case may show that its application is not always easy or without controversy.
[Citations omitted]
[4] [2012] FCAFC 65, (2012) 202 FCR 200.
[5] [2012] FCAFC 65 at [147], (2012) 202 FCR 200 at 233-234.
Applicant’s submissions
The applicant submits that whether there is no practicable alternative to keeping him in custody in a prison is a jurisdictional fact for a number of reasons. First, the text of s 269V(2)(b) does not expressly condition its operation on the Minister being “satisfied” of the relevant fact. Second, the test posed requires the Court to undertake a confined rather than a wide-ranging, complex inquiry. Third, the decision turns on the existence of the fact prescribed by the provision. Fourth, the decision concerns the fundamental right to personal liberty.
The statutory scheme
It is convenient to commence with a consideration of the scheme of Part 8A of the CLCA.
Part 8A establishes, inter alia, a scheme of supervision for persons who are considered not criminally responsible for an offence under the criminal law owing to mental incompetence. It represents an important safeguard for vulnerable individuals charged with criminal offences. The purpose of Part 8A is to provide for the detention of, or release of, defendants who suffer a mental impairment.[6] The safety of the community is the paramount consideration in determining whether to release a defendant, or the conditions of a licence to be imposed, and outweighs the principle that the restrictions on the defendant’s freedom and personal autonomy should be kept to a minimum.[7] The detention of a defendant is for the purpose of the protection of the community and his or her treatment and care.[8] The principal statutory mechanism to achieve this objective is the making of supervisions orders. This is provided for by Part 8A Division 4.[9] The purpose of the supervision order is not to penalise but to protect the public and to secure to the defendant such supervision and treatment as is available and appropriate.[10]
[6] R v Draoui [2008] SASC 188 at [44], (2008) 101 SASR 267 at 277.
[7] Section 269NI.
[8] R v Draoui [2008] SASC 188 at [68], (2008) 101 SASR 267 at 281.
[9] Section 269MI-s 269VA
[10] R v Draoui [2008] SASC 188 at [68], (2008) 101 SASR 267 at 281.
Section 269O provides three options if a defendant is declared liable to supervision. The Court can release the defendant unconditionally, or make a supervision order releasing a defendant on licence on conditions determined by the Court, or make a supervision order committing the defendant to detention. Where the Court makes a supervision order the Court must fix a limiting term equivalent to the term of imprisonment that would have been appropriate if the defendant had been convicted of the offence.[11]
[11] Section 269O(2).
Section 269P empowers the Court to vary or revoke a supervision order during the limiting term. Section 269Q provides that if the defendant is liable to supervision, the Minister must provide to the Court a report of a psychiatrist or appropriate expert as to the prognosis and diagnosis of the defendant’s mental conditions and treatment plan. Section 269T specifies the matters to which the Court should have regard in determining whether to release a defendant unconditionally, commit the defendant to detention or release the defendant on licence, and the extent of the conditions imposed as part of the licence. Those matters are the nature of the defendant’s mental impairment; whether the defendant is a danger to others; whether there are adequate resources available for the defendant’s treatment and support in the community; whether the defendant is likely to comply with the conditions of a licence; and any other relevant matter. Section 269U provides that where a person contravenes, or is likely to contravene, the condition of a licence the Court may review the supervision order, and either confirm it, amend it or make an order for detention.[12] Section 269UA and s 269UB provide for the making of continuing supervision orders committing a defendant to detention or releasing him or her on licence if the Court is satisfied the defendant, if left unsupervised, poses a serious risk to the safety of the community. Section 269UC allows the Court to vary or revoke those supervision orders. Section 269X empowers the Court to release on bail or detain a defendant on an interim basis while the Court determines whether to investigate a defendant’s mental competence or decide how to deal with him or her.[13] An interim order for detention should not be in prison unless there is, in the circumstances of the case, no practicable alternative.[14]
[12] Section 269U(2)(b).
[13] Section 269X(1) and (2).
[14] Section 269X(1)(b) and (2)(b).
It can be seen that the Court’s role under Part 8A Division 4 is only to make, vary or revoke a supervision order. In exercising those powers, the Court must consider the safety of the community and whether the defendant would likely endanger others.[15]
[15] Section 269NI and s 269T(1)(b).
Part 8A Division 4 seeks to resolve the tension between making available to a defendant treatment and support while curtailing the defendant’s personal liberty only to the extent necessary to meet the paramount consideration of protecting community safety. The making of supervision orders and limiting terms avoids indeterminate detention and facilitates their prophylactic and remedial purposes.[16] The policy of avoiding indeterminate detention of people in the applicant’s position is not addressed by s 269V. That object is addressed by s 269O, s 269P and s 269UC.
[16] R v Behari [2011] SASC 111 at [13], (2011) 110 SASR 147 at 150.
Nonetheless, an order for detention whether made pursuant to s 269O, s 269UB or s 269V involves a deprivation of individual liberty.[17] That is so irrespective of whether the detention is ordered to be in a forensic hospital or in a prison. A direction pursuant to s 269V(2)(b) merely alters the location where the defendant is detained.
[17] See, e.g., Public Advocate v CB [2019] SASCFC 58 at [57], [61]-[62], [64] and [72], (2019) 133 SASR 353 at 367, 369, 371.
Consideration
As a matter of construction I accept the respondents’ submission that s 269V(1) and (2) should be read together. Section 269V(2) is subject to the terms of s 269V(1) that a defendant is committed to detention under Division 4 of Part 8A of the CLCA and is in the custody of the Minister. That enlivens the power of the Minister to give directions for the custody, supervision and care of the defendant that the Minister “considers appropriate”. Section 269V(2) expressly provides for directions that the Minister may make for the custody, supervision and care of the defendant that the Minister considers appropriate.
Whether a direction should be made pursuant to s 269V(2)(b) turns on the sole question of whether in the circumstances there is no practicable alternative to a defendant being kept in custody in a prison. This is an exhaustive and exclusive criterion. In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd[18] Allsop J (as he then was) referred to the meaning of the word “impracticable”. He said it means “that cannot be carried out, that is not feasible”.[19] But he emphasised that the meaning of the word depended upon its context.[20] In my view, there is no reason to treat “impracticable” as having a different meaning from “no practicable”. The expressions are essentially identical. In the context in which the phrase is used in s 269V(2)(b) I consider “no practicable alternative” to mean that it is not possible or feasible as a matter of fact to keep a defendant in custody anywhere other than in prison. It is the antithesis to any practicable alternative existing. It evinces a legislative intention that prison should be the last resort. However, this involves an evaluative judgment which might require consideration of matters that extend beyond the personal position, condition and circumstances of the particular defendant. It might involve consideration of the resources available for keeping the defendant in custody. That could extend to questions of cost and availability of personnel, training, treatment and accommodation. The judgment might be difficult and complex. The judgment required could encompass the circumstances and needs not only of the defendant concerned, but of other, if not all, detainees. It is to be remembered that the repository of the power in s 269V is the Minister. The Minister must exercise the power coherently, and generally consistently, with the Minister’s other statutory responsibilities not only for the particular defendant but for all detainees within his custody, supervision and care. While such evaluative judgments can be undertaken by a court, they are not judgments that readily lend themselves to what is effectively merits review, involving the careful assessment of complicated facts and the formation of opinions and value judgments on a potentially wide range of matters. This is a strong indicium of a legislative intention that the evaluation of whether there was no practicable alternative to keeping a defendant in custody in a prison is to be determined by the executive.
[18] [2007] FCA 124.
[19] [2007] FCA 124 at [5]-[14].
[20] [2007] FCA 124 at [13].
The point is validly made, albeit in the different context of prisoners being held in custody in accordance with sentencing law, in Fyfe v State of South Australia[21] on an application for judicial review by a prisoner. Martin J (as he then was) said:[22]
There can be no question that it is the duty of this Court to conduct a careful review and to closely scrutinise the reasons advanced for the decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the Court's jurisdiction must be carefully observed and the Court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the Court is not familiar and which it is difficult for the Court to understand or fully appreciate from the comfort of the court surroundings.
[21] [2000] SASC 84.
[22] [2000] SASC 84 at [18].
These considerations are particularly important where the answer to the question depends upon the allocation of scarce resources. I accept that it is theoretically possible to contemplate a wide range of options for the custody, supervision and care of a defendant, in the position of the applicant, absent resource constraints. What is practicable, however, in the sense I have indicated, requires a careful evaluative judgment as to the allocation of limited resources by the decision-maker.
In Uebergang v Australian Wheat Board[23] Stephen and Mason JJ said that the word “practicable” was “concerned very largely, if not exclusively, with whether or not a particular statutory scheme is feasible from the viewpoint of those administering it”.[24]
[23] [1980] HCA 40, (1980) 145 CLR 266.
[24] [1980] HCA 40, (1980) 145 CLR 266 at 305-306.
In M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs[25] the Full Court of the Federal Court held that a provision requiring an immigration officer to remove an unlawful non-citizen as soon as “reasonably practicable” was “to be largely, if not entirely, concerned with whether the removal is possible from the officer’s viewpoint”.[26]
[25] [2003] FCAFC 131, (2003) 131 FCR 146.
[26] [2003] FCAFC 131 at [65], (2003) 131 FCR 146 at 165.
Those observations apply equally to the construction of Part 8A.
Next, I consider that it would be inconvenient if the existence of the relevant fact prescribed by s 269V(2)(b) is an objective jurisdictional fact. In effect, it would render the direction as provisional. It would create uncertainty as to the validity of a direction given pursuant to the provision until the completion of a de novo review. That uncertainty can scarcely have been intended by the Parliament, particularly where what is at issue is not whether the defendant’s personal liberty is curtailed, but rather the place where that occurs.
I do not accept that the decision required by s 269V(2)(b) is concerned with the fundamental right to personal liberty. The applicant in this case is already subject to an order for detention. That order was made pursuant to s 269O. His grievance is not amenable to the remedy of the old writ of habeas corpus. He does not seek to be brought before the Court for the purpose of restoring his freedom from unlawful detention. He is lawfully detained pursuant to s 269O. What is in issue is where he is detained. However, the inapplicability of habeas corpus is largely academic as his complaint is amenable to judicial review or declaration if the direction made pursuant to s 269V(2)(b) is unlawful. But the fact that the exercise of the power prescribed by s 269V does not effect a defendant’s detention contraindicates the satisfaction of “no practicable alternative” being an objective jurisdictional fact.
Accordingly, I do not accept the submission that s 269V(2)(b) evinces a legislative intention that the fact that there is no practicable alternative to prison is an objective jurisdictional fact. While I accept it is a fact that conditions the giving of the direction, the concern of the Court is confined to whether the Minister, or his or her delegate, held the opinion that in the applicant’s case there was no practicable alternative to keeping him in custody in prison. However, while it is necessary to prove that the Minister, or his or her delegate, held that opinion, that is not sufficient. The Minister, or his or her delegate, must have formed that opinion reasonably on the material before him or her.
In Corporation of the City of Enfield v Development Assessment Commission & Anor[27] Gleeson CJ, Gummow, Kirby and Hayne JJ, in their joint reasons said that where a statutory provision is expressed to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker.[28]
[27] [2000] HCA 5, (2000) 199 CLR 135.
[28] [2000] HCA 5 at [34], (2000) 199 CLR 135 at 150.
In Minister for Immigration and Citizenship v SZMDS & Anor[29] Crennan and Bell JJ held that the issue of the “reasonableness” of an administrative decision has often been considered in circumstances where a public officer must be “satisfied” of some fact or circumstance. They said:[30]
[29] [2010] HCA 16, (2010) 240 CLR 611.
[30] [2010] HCA 16 at [122]-[125], [128]-[129], (2010) 240 CLR 611 at 644-648.
In R v Connell; Ex parte Hetton Bellbird Collieries Ltd, it was not suggested that such an officer must prove his or her satisfaction. However it was found that a requirement that a public officer be “satisfied” of certain facts or have “reasonable cause” to believe facts imports a requirement that the opinion is one that could be formed by a reasonable person. The Chief Justice went on to state: “If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.” Further, satisfaction of the existence of facts must amount in point of law to what an empowering provision prescribes or specifies. As explicated subsequently by Gibbs J in Buck v Bavone, this means a decision-making authority which must be satisfied of certain facts “must act in good faith; it cannot act merely arbitrarily or capriciously”. His Honour went on to say that even if certain specified errors could not be established “the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it”. Such formulations convey the idea that a court should not lightly interfere with administrative decision-making.
Judicial review has commonly been relied on to set aside a discretionary decision which “is so unreasonable that no reasonable authority could ever have come to it” or decisions “which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful”. As remarked by Gaudron J in Abebe v The Commonwealth: “[I]t is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it.” This Court has observed with reference to s 75(v) of the Constitution and jurisdictional error that where a statutory power is conferred the legislature is taken to intend that the discretion is to be exercised reasonably and justly.
More recently it has been suggested that statutory tribunals must not only act reasonably as intended by the legislature, they must also act rationally. If rationality is a separate freestanding common law standard for good administrative decision-making it seems at least related to the implied standard of reasonableness following the articulation by Lord Greene MR of what has come to be known as “Wednesbury unreasonableness”. It appears closely allied also to the requirement in Avon Downs that extraneous reasons should not be taken into consideration but relevant considerations must be. It appears to be allied as well to the principle that fact finding must be based on probative material, one correlative of which is that a decision based on no evidence displays jurisdictional error. Accepting rationality, as a freestanding common law requirement in decision-making, with the consequence that irrationality may attract judicial review, is complicated by three considerations. First, describing reasoning as “illogical or unreasonable, or irrational” may merely be an emphatic way of expressing disagreement with it, and to describe a conclusion that a decision maker is not satisfied as “irrational” might mean no more than that, on the material before the decision maker, the court would have reached the required state of satisfaction.
Secondly, the word “irrationality” is conventionally defined as “the quality of being devoid of reason”, “illogicality” is conventionally defined as “unreasonableness” and “unreasonableness” is conventionally defined as “irrationality”.
…
If, despite the undeniable semantic overlap between “irrationality”, “illogicality” and “unreasonableness”, “Wednesbury unreasonableness” is confined to the exercise of a discretion in circumstances where no reasons are required, then the approach articulated in SGLB emphasised above can be seen as occupying somewhat different ground. On the other hand, to the extent that a standard of reasonableness, of wide application to decision-making, has emerged from Wednesbury, there will be inevitable overlap with that standard and a standard of rationality.
… accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do “illogicality” and “irrationality” fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is “clearly unjust”, “arbitrary”, “capricious” or “Wednesbury unreasonable”?
In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
These reasons have subsequently been approved and followed by French CJ and Gageler J in Minister for Immigration & Citizenship v Li & Anor[31] and by Doyle CJ, with whom Anderson and Peek JJ agreed, in Watson v South Australia.[32]
[31] [2013] HCA 18 at [29] and [89], (2013) 249 CLR 332 at 351 and 370.
[32] [2010] SASCFC 69 at [102], (2010) A Crim R 1 at 21-22.
In my view, the limit of this Court’s jurisdiction in conducting a review of the direction given pursuant to s 269V(2)(b) is to ascertain whether, as the Minister’s delegate, when he gave the direction, the Chief Psychiatrist held the opinion that there was no practicable alternative to the applicant being kept in prison for the period from 16 June 2020 until 28 July 2020, and that he formed that opinion reasonably upon the material before him.
Conclusion
I would answer the questions reserved:
1.No.
2.Yes.
3.And that the Minister’s delegate formed that opinion reasonably upon the material before him.
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