Garland v Chief Executive Department of Corrective Services

[2007] HCATrans 154

[2007] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B3 of 2007

B e t w e e n -

RAYMOND HENRY GARLAND

Applicant

and

CHIEF EXECUTIVE DEPARTMENT OF CORRECTIVE SERVICES

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO BRISBANE

ON TUESDAY, 24 APRIL 2007, AT 9.31 AM

Copyright in the High Court of Australia

MS M.J. RINAUDO‑LEWIS:   May it please the Court, I appear with MR N.M. COOKE for the applicant.  (instructed by Aboriginal & Torres Strait Islander Legal Service (Qld South) Ltd)

MR J.A. LOGAN, SC:   May it please the Court, I appear with MR G.T. HANDRAN for the respondent.  (instructed by Crown Law)

KIRBY J:   Yes, Ms Rinaudo‑Lewis.

MS RINAUDO‑LEWIS: Your Honours, the first question of general importance which this application raises is whether a provision in an Act which sets out the purpose of the Act such as section 3 of the Corrective Services Act 2000 (Qld) should be taken into account in the construction and application of other provisions of the Act. The error made by the Court of Appeal, in our submission ‑ ‑ ‑

KIRBY J: Is that really the first question, at least at this point in the proceedings, or is it the first question whether the matter in respect of which the application was first brought being spent whether there is any real matter that would be before the High Court of Australia in respect of the principal relief that you sought below? You see, unless that is so, unless there is a matter, then this Court as a federal court under the Constitution cannot or should not become involved in it.

MS RINAUDO‑LEWIS:   Your Honours, if I can take that point.  At paragraph III.26 of the applicant’s outline of argument – I think this is where you were taking me – that perhaps will require clarification.  Your Honour, what is not in question is that the ground existed for the making of the maximum security order, however, the applicant has consistently challenged the lawfulness of the respondent’s decision to make a maximum security order under the conditions which have been imposed and the conditions are part of the order itself as section 49 makes apparent.

KIRBY J:   Yes, but all of that was targeted on and incidental to the order that was made which was made in respect of a period which has now expired.

MS RINAUDO‑LEWIS:   Yes.  Your Honour, perhaps there may have been if ‑ ‑ ‑

KIRBY J:   I am sorry to raise this, because speaking for myself I have some sympathy for your issue, but unless you can overcome that problem, we really do not get to the issue that you want to agitate in the Court.

MS RINAUDO‑LEWIS: Your Honour, we accept that the applicant’s case has not always been consistently articulated in the course of the proceedings but we submit that what has consistently been argued on behalf of the applicant is that the treatment of the applicant under the maximum security order did not properly take into account section 3 of the Act and the reference in particular to the humane containment and that ‑ ‑ ‑

KIRBY J:   We all know that.  We know that and we know what you want to get to and we know what you want to argue and speaking for myself I am very interested in the argument but unless it is targeted on a still live order, then you do not really get to that issue in this Court.

MS RINAUDO‑LEWIS:   Your Honour, in the Court of Appeal the parties agreed that even though the order had expired, the court should deal with the appeal and they agreed that the order had been renewed and that is the case.

KIRBY J:   Where is that?  Where does the Court of Appeal say that?

MS RINAUDO‑LEWIS:   It was agreed in the Court of Appeal, your Honour, by the parties.

KIRBY J:   Yes, but the parties can agree as much as they like but unless there is a matter, this Court cannot join in the determination of the issue.  It is not a matter that agitates the judicial power of the Commonwealth.

MS RINAUDO‑LEWIS:   Your Honour, at application book 62 the Court of Appeal says:

The order, the making of which was the subject of the appellant’s application for review, has expired.  It ran for six months from 2 March 2006.  Despite this the parties submitted that the Court should address the appellant’s submissions.  Should any substance have been found in his complaints the Court’s explanation of any error in the decision‑making process would be given proper consideration and respect by the respondent in the event that further maximum security orders are to be made.

KIRBY J: That sounds as though the Court is not determining the question that I have been raising with you but leaving it as a possibility and against the possibility giving a bit of advice to the Executive Government and that is not something that this Court can do. We have to engage in a matter under the Constitution. It may be that you can say, unless you can come to the Court on the issue that is dealt with, the practicalities of these short term orders are that there may never be a matter that could come to this Court because they will always have expired in the effluxion of time.

MS RINAUDO‑LEWIS:   That is exactly the argument, your Honour, that was put at the Court of Appeal, the time between making an application for judicial review, the hearing of such and making an application for appeal has taken longer and often takes longer than the six month period of which these maximum security orders last.  So in that case we would be in a position and an applicant such as our client would find themselves in that position over and over again, your Honour.  We believe that the issues are not nugatory on that basis.

KIRBY J:   The problem with that theory is the way you have actually sought your relief in terms of the record, the order that you attacked.  There are two problems, first, the order you attacked was an extant order that is no longer extant and, secondly, you conceded, as I understand it, your side conceded that you were not attacking the validity of the order, whereas in the theory of the law is it not essential that you do attack the validity of the order?  You have to say the order is invalid because it has never been validly made and that is not an issue that you raised in the courts below.  You conceded that you did not attack validity.  I just do not see how that concession could properly have been made, but it was made.

MS RINAUDO‑LEWIS: Your Honour, that is the point which I would like to clarify, that in the courts below we raised the issue of the validity or the lawfulness of the making of a maximum security order perhaps in some ambiguous fashion, however, what we were clearly arguing all along was on the point of the order that by virtue of section 47 of the Corrective Services Act the conditions of confinement under an order are in fact part of a maximum security order.

A maximum security order defines the conditions of the prisoner’s conditions of confinement in the maximum security unit and therefore the conditions of detention in the maximum security unit are part of the maximum security order and it is the validity of the applicant’s detention under those conditions that is and was challenged, your Honour.  We asked for declarations of right in that respect and in another respect, your Honour, and those declarations were sought both in the Supreme Court at the judicial review and also in the Court of Appeal.

It was on that basis that we say that there are two issues that remain extant; the issue of section 3 being taken into consideration in the making of an order and the consideration of the maximum guidelines in the making of an order considering the application of the guidelines, the policies and the procedures of the Department. It is those two issues, your Honour, which remain extant, in our submission, and on the basis that ‑ ‑ ‑

KIRBY J:   What do you mean by your statement at paragraph III.26, “The validity of the order is not in question”?  I am referring to page 77, line 9.

MS RINAUDO‑LEWIS:   Yes, your Honour.  Although a slightly unfair ‑ ‑ ‑

KIRBY J:   Is not the theory of administrative law that the whole point of seeking the sort of relief you are seeking is that the order is invalid?  Do you concede that it is valid?

MS RINAUDO‑LEWIS: We are submitting to your Honours that our case has been that the order, although validly made, is invalid in respect of the conditions that that order places upon the applicant if section 3 is not taken into consideration and if the policies and procedures which we say are statutory instruments, the guidelines, the progression guidelines for prisoners who find themselves in this predicament, are not taken into consideration in the making ‑ ‑ ‑

KIRBY J:   That does not fit comfortably with what you say on page 77 at line 9, I am afraid.  Anyway, I think it is best if you just develop your argument.  I want to ask Mr Logan a few questions about how you can get here on the concerns that I have expressed.

MS RINAUDO‑LEWIS: Thank you, your Honour. If I might reiterate what we would submit would be the first question of general importance which I said was whether a provision in an Act which sets out the purpose of the Act such as section 3 of the Corrective Services Act should be taken into account in the construction and application and other provisions of the Act.  Our argument develops this way, your Honour.  We say that the error made in the Court of Appeal is set out in paragraphs [20] and [21] in the judgment of Justice Chesterman at lines 35 to 50 of application book 55 where his Honour said:

Unless the appellant can demonstrate that the power conferred on the respondent by s 47 must be exercised subject to the provisions found in s 3, it will not matter whether his containment is humane or not.

It is clear that s 47 is not subject to s 3.

We submit that the issue is not whether section 47 is subject to section 3 but, rather, that section 47 has to be construed in the light of section 3. If the Court accepts that proposition, then whether the applicant’s containment under a maximum security order is humane or not does matter in the exercise of the power conferred on the respondent by section 47. In this case the decision‑maker had a substantial body of material on which she could have formed the view that certain aspects of the conditions of the maximum security order were inhumane or that they were unnecessarily restrictive.

HAYNE J:   That is an argument, is it not, about the engagement of section 49. If you go to the Act, section 47 is make an order or not make an order.

MS RINAUDO‑LEWIS:   Yes.

HAYNE J:   Section 49 then says, amongst other things, that:

(1)      A maximum security order for a prisoner must include, to the extent it is practicable, directions about the extent –

of segregation and the extent of privileges.

MS RINAUDO‑LEWIS:   Yes, your Honour.

HAYNE J:   Is your complaint a complaint about the extent of segregation and the nature of the privileges?

MS RINAUDO‑LEWIS:   Your Honour, our complaint is based on the extent of segregation.  The lack of the decision‑maker taking into consideration those particular factors, the length of time, the types of conditions, the lack of association over now seven years and two months, yes, your Honour.

HAYNE J:   The procedures below were procedures for judicial review, were they not?

MS RINAUDO‑LEWIS:   Yes, your Honour.

HAYNE J:   You contend, do you, that the decision of the Corrective Services authorities was so unreasonable that no reasonable decision‑maker could have arrived at that conclusion?

MS RINAUDO‑LEWIS: Your Honour, in the originating application to the Supreme Court our application was for the setting aside of the decision of the respondents to make the maximum security order in respect of the applicant, but as the application before the primary judge developed, in the course of argument the applicant sought declarations. Those declarations were sought under the power conferred under section 30(1)(c) and (d) of the Judicial Review Act which provides that:

On an application for a statutory order of review in relation to a decision, the court may make all or any of the following orders . . . 

(c)an order declaring the rights of the parties in relation to any matter to which the decision relates;

(d)an order directing any of the parties to do, or to refrain from doing, anything that the court considers necessary to do justice between the parties.

HAYNE J:   The declarations you sought included this second declaration that Mr Garland must be managed in accordance with some published documents, is that right?

MS RINAUDO‑LEWIS:   Yes, your Honour.

HAYNE J:   The Corrective Services people would say, as I understand it, that he is being managed in accordance with these documents because the benefits that you say or the lack of detriment that you say he should have is not allowable to him because he is still a sufficient threat, is that the essence of the way in which you understand the argument to be joined?  They say Mr Garland presents such a risk that he should be managed this way.  You say, no, he is not.  Is that right?

MS RINAUDO‑LEWIS:   In a sense, your Honour, we are not saying that.  We are saying that Mr Garland while in the maximum security unit under continuing maximum security orders has a right to expect that he will be managed in accordance with the policies and the guidelines which include a progression guideline which includes four stages of release which can be achieved over a minimum of 126 days.  We are now at the seventh year and the second month.  Mr Garland has no idea how to progress through the stages because the stages have not been applied.  We are now told he has been ‑ ‑ ‑

HAYNE J:   But the progression is not automatic, is it?  The progression depends upon Corrective Services reaching a view.  You say they should reach the view that Mr Garland is at a stage where he should go on the progression, is that right?

MS RINAUDO‑LEWIS:   Mr Garland and all prisoners who are under a maximum security order have the right to expect that the progression stages begin on the day that they enter the maximum security facility.  The guidelines are written in that way.  They discuss reintegration and consistent and transparent management of the prisoners.  The stages are then annexed to the guidelines which begin on day one and which allow prisoners who perhaps do not present the same type of risk as our client, Mr Garland, to progress according to those stages within a period of 126 days.

It gives them clear goals to attain and, your Honour, we say that the decision‑maker has had substantial evidence that indicates that that is what is missing in the management of this particular prisoner.  Your Honour, at application book page 15 her Honour, Justice Atkinson, quoted and referred to much evidence along these lines, however, it is beginning as far back as 2001.  If we could take your Honour to Dr Smallbone’s comments in 2005 just prior to the order made before the judicial review application.  He says:

Of particular concern, treatment goals have not been linked systematically to methods of outcome evaluation.  One unfortunate result has been that no‑one, including Mr Garland himself, seems clear about how he could demonstrate his readiness to be relocated to a less restricted setting . . . One way to more systematically evaluate his progress would be to develop and use a goal attainment schedule.  Small, clearly defined steps with clearly defined goals would not only help to organise the intervention but would give Mr Garland the opportunity to achieve a series of “successes”.

Your Honours, we say that the Department had in their hands the progressive guidelines, the stages of release with clear goals, with a progression of privileges, if one is able to move from stage 1 to stage 2 there is a possibility of some associations which we tell the Court, even though on stage 2 our client has no association, then from stage 2 to stage 3 and so on until at stage ‑ ‑ ‑

HAYNE J:   Do you say the Department must allow this progression? 

MS RINAUDO‑LEWIS:   Your Honour, we do not say and, your Honour, if special leave were to be granted it may be that a rewording – we would seek leave to amend the wording of the declarations that have been sought because of the confusion that has arisen from some of the inconsistencies that ‑ ‑ ‑

KIRBY J:   You are now back to the matter that is concerning me.  Once you get into the substance of the matter I am much more interested but my problem is getting you over that hurdle.  I see your time is up so we will have to ask Mr Logan about that point.

MS RINAUDO‑LEWIS:   Thank you, your Honour.

KIRBY J:   Mr Logan, there may be different views about the substance but there is this procedural and, indeed, constitutional impediment that I see at the moment in the applicant getting into the Court, that the actual relief sought was targeted on a particular order and the order is now spent and therefore that if the matter came to the Court, we would not have a matter

within the Constitution. We would be addressing, in a sense, a theoretical question about the good management of the Corrective Services.

My problem is, how on that theory, given that these are orders that are for particular intervals, could it ever be that the applicant could get into the Court because in the time the matter would wend its way through a single judge in the Court of Appeal of Queensland, almost certainly the order would be spent and therefore we would not have a matter.  What is the answer to that problem?  There must be an answer.

MR LOGAN:   Yes, the answer, in our submission, because we have not taken a constitutional point in the response ‑ ‑ ‑

KIRBY J: Yes, but we have to be satisfied there is a matter. It is not for you to take it. We have to see that the Constitution engages our jurisdiction.

MR LOGAN:   Quite.  In the event that there were no utility in the setting aside of an order because it had expired, the Court could, in our submission, make a declaration in the event that there were some utility in the construction of the Act having regard to, if it be the case, a continuum of custodial management in that kind of facility and that is this case.

KIRBY J:   But the complaint is not about custodial utility.  As I understand it, the applicant accepts that there is a necessity of custodial detention.  The question is whether or not, having regard to the indicia in the legislation or the orders made under the legislation, the progression that is envisaged is going to be taken and is going to be on a transparent basis which is understood both by custodial services and by the prisoner alike.

MR LOGAN:   Yes.  There was always, with respect, a disharmony between that particular order and the nature of the proceeding before the court which was judicial review of a decision to make an order rather than to manage someone pursuant to it.  The utility that is perceived is that the man was, at the time when the application was heard both at first instance before the Court of Appeal and for that matter now, still in jeopardy of the possibility of a further order being made so that any error in legal approach by the decision‑maker, the making of the earlier order would still have utility in terms of any decision as to whether to make a further order, the legislation and material forms not having changed.

KIRBY J:   You say you did not take a constitutional point.  Did you before the Court of Appeal accept that there was a live legal question for the Court of Appeal to determine on the hypothesis that the approach that the custodial services had taken to the applicant would inferentially continue as it has been and not as the applicant says it should be?

MR LOGAN:   Yes, that is what informed the absence of challenge to the utility below and it still informs that ‑ ‑ ‑

HAYNE J:   How can that be, Mr Logan?  Our jurisdiction is to make such order as the Court of Appeal of Queensland should have made.  How could the Court of Appeal of Queensland have made an order of the kind sought in the originating process, as amended, in the Supreme Court of Queensland?  That would be the matter that would come to us, what order should the Court of Appeal have made in respect of that originating process, as amended?

MR LOGAN: Yes. In that regard the Court of Appeal could have made a declaration that it was a relevant consideration in the making of an order to take into account a prescription in section 3 for humane confinement.

HAYNE J:   You say that would be a declaration of rights, would it?  It is not immediately apparent to me that it would be a declaration of right at all.  It would be an advisory opinion.

MR LOGAN:   Your Honour, that is perhaps, with respect, where the boundaries of declaratory judgments are difficult in relation to federal matters.

KIRBY J:   Let us look at the application for the statutory order as it was actually made and litigated in the Queensland courts.

MR LOGAN:   Yes.

KIRBY J:   Is there anything in that that presents an application by the applicant that was litigated in these proceedings before the primary judge and the Court of Appeal that is a live question or would be a live question if we brought this matter up to this Court?

MR LOGAN:   Not as we apprehend it, no.

KIRBY J: On that basis I do not understand how it can be suggested that there is a matter. You see, we are not a court at first instance. This is not an engagement of federal jurisdiction under section 75(v) of the Constitution or some other original jurisdiction of the Court. This is an appeal. We are addressing what the Court of Appeal of Queensland did primarily and they were addressing in turn the application that was before them and that application does not seem to raise an application for a declaration of the kind that you say might have been an engagement of that court’s jurisdiction, so we would both have to provide or allow for such an application now belatedly to be made and determine the matter for ourselves on a basis that has never been litigated in the courts below.

MR LOGAN:   Your Honour, we are endeavouring to assist the Court but the basic premise of the respondent’s argument is that the relief that is now sought is disharmonious with the nature of the matter that was below and relates to a management question rather than a making of an order question so that in that sense what is promoted before this Court is truly not a matter which was ever agitated below.  It is not a matter for constitutional purposes.

KIRBY J:   Given the intermittent nature of the orders that are made below for relatively short periods of time and the periodicity of those orders and the need, if the applicant wants to get to this Court, to have the matter brought to the Court, is there any practical way in a future application that the matter could proceed that you can think of?  Because for my own part I have hesitations in knocking the applicant out on a point that you do not yourself press the constitutional question, but on the other hand, I cannot agree to a matter coming up here on an appeal from these orders and these reasons which do not address an application for a declaration of right of the kind you say might have been sought but was not.

MR LOGAN:   Yes.

KIRBY J:   Do you understand the problem that is raised?  You were on notice.  Both parties were on notice of the fact that the Court had this problem.

MR LOGAN:   Indeed.  It would theoretically be possible to have an expedited hearing both in the original jurisdiction of the Supreme Court and on appeal.  It would still be very tight, though, to make it into this Court inside the life of an order.

HAYNE J:   Can I put the acid right on you, Mr Logan.  You may not be in a position to answer it because this is a matter for which you would need instructions, but are Corrective Services going to cooperate with the applicant to ensure that if he wants to bring this forward they will do their best to ensure that it is expedited and put through the system as quickly and as hard as it can be?

MR LOGAN:   Your Honour, that should not, with respect, be a matter for instructions.  The State is duty bound to undertake that source of conduct in litigation.

KIRBY J:   So the answer to his Honour is yes?

MR LOGAN:   The answer is definitely yes.  It is embarrassing to have to ‑ ‑ ‑

KIRBY J:   Yes, well, that may be the way to ensure that the matter comes up here on a matter and on a matter that has in the courts below specifically sought relief of the kind that this Court would then be addressing and not relief of a different kind addressed to an order which is spent, the validity of which curiously the applicant did not challenge in the courts below.

MR LOGAN:   Yes.  With respect, the problem is really one in terms of the way in which the applicant’s case was pleaded from the outset.

KIRBY J:   Pleaded and argued.

MR LOGAN:   Pleaded, indeed, and it leads to the present predicament.

KIRBY J:   Yes, thank you very much.  We do not need to hear any from you, Mr Logan.

MR LOGAN:   If the Court pleases.

KIRBY J:   Is there anything in reply to that, Ms Rinaudo‑Lewis?

MS RINAUDO‑LEWIS:   The only thing, your Honour, I was going to perhaps flag the type of amendment that would be made to the wording of the declaration we were seeking, however, that may also be nugatory at the moment but if your Honours ‑ ‑ ‑

KIRBY J:   You understand that the Court is concerned about bringing this matter up in the state of the record, but you have heard what Mr Logan has said.  It does not appear as though much is going to change in the management of the applicant and if there is cooperation between the parties, the issue of principle may be capable of being brought to the Court on the premises of the approach of the Court of Appeal and on the primary judge in the earlier proceedings but within a space of time that would ensure that the Court has a real matter for it and on a record that includes an application for a declaration that is in the appropriate form.

MS RINAUDO‑LEWIS:   Yes, your Honours, I understand that.

KIRBY J:   Yes, thank you.

MS RINAUDO‑LEWIS:   Thank you.

KIRBY J:   Justice Hayne will give the reasons of the Court and pronounce its orders.

HAYNE J:   The applicant sought judicial review of a decision made by the Chief Executive of the Department of Corrective Services to make a maximum security order in relation to the applicant pursuant to provisions governing such orders made by the Corrective Services Act 2000 (Qld). The applicant contended that there was no evidence or other material to justify the decision to make such an order; that the decision was an improper exercise of power in that its exercise was so unreasonable that no reasonable person could have exercised it in the way it was; and, lastly, that the decision was otherwise contrary to law because the applicant’s containment in the maximum security unit was inhumane and otherwise contrary to the Corrective Services Act “because there were breaches of the policy and procedures of the Department which meant the order made was illegal”.  The application for judicial review was dismissed at first instance and an appeal to the Court of Appeal of Queensland failed. 

The order that was in question in the proceedings in the courts below is now spent and was spent when the Court of Appeal considered the matter.  Further, in this Court, the applicant stated in the written argument that the validity of the order is not in question, rather, the core of the complaint that the applicant would seek to agitate in this Court is that he is being managed in the maximum security unit in a way that does not accord with certain procedures, policies and documents published by the Department of Corrective Services. 

That complaint is said to fall within the matter that would arise in this Court if special leave to appeal were to be granted on the basis that his amended application for relief in the Supreme Court of Queensland sought, amongst other things, declarations that he must be managed in accordance with the procedures described in the documents mentioned and that his detention in a maximum security unit, now for more than seven years, “constitutes inhumane containment and was in breach of his human rights guaranteed by section 3 of the Corrective Services Act 2000”.

Those declarations were claimed as relief ancillary or incidental to the principal relief sought in respect of the decision to make a maximum security order.  The courts below have dealt with the matter on that basis and it would not now be right to permit the applicant in this Court to agitate the availability of that ancillary relief when it is acknowledged that the principal relief cannot be granted.

In the course of argument counsel for the respondent acknowledged that, if a fresh application were to be instituted on behalf of the applicant, the respondent would take all reasonable steps necessary to co‑operate, to ensure the prompt disposition of any such application in such a way as to ensure that the issues raised by it would remain alive such as might give rise to a properly constituted matter in this Court.

In the circumstances described, however, special leave to appeal must be refused.

KIRBY J:   Do you seek costs, Mr Logan?

MR LOGAN:   Yes, I am instructed to seek costs.

KIRBY J:   Do you have anything to say in relation to that, Ms Lewis?

MS RINAUDO‑LEWIS:   Your Honour, the applicant is in solitary confinement and under a sentence of an indefinite period.  He has around $800 in his bank account at present and has no prospects of earning money in the future, even in the prison where he is a cleaner in the maximum security unit, and on that basis he has no capacity to pay, nor to work. 

However, also, in the interests of justice, your Honour, applicants such as this, if orders as to costs were to be made, they would prohibit the likely making of any further applications.  They have the effect of reducing the availability of people in this position to the justice system and to ever obtain the relief that we are trying to seek.  I would say that it is not in the interests of justice to make such an order.

KIRBY J:   The Court makes no order as to costs.

The Court will now adjourn briefly to reconstitute for the following applications.

AT 10.11 AM THE MATTER WAS CONCLUDED