Lawrence v Fuller

Case [2023] QSC 156

SUPREME COURT OF QUEENSLAND

CITATION:

 Lawrence v Fuller & Anor [2023] QSC 156

PARTIES:

MARK LAWRENCE

(applicant)

v

BIANCA FULLER

(first respondent)

AND
CHIEF EXECUTIVE OF QUEENSLAND CORRECTIVE SERVICES

(second respondent)

FILE NO:

2257 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application for a statement of reasons under the Judicial Review Act 1991

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

11 July 2023

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2023

JUDGE:

Applegarth J

ORDER:

1. Declare that the applicant is entitled to a statement of reasons under s 33 of the Judicial Review Act 1991 (Qld).

2.   The respondents provide the applicant with a statement of reasons within 28 days.

3.   The respondents pay the applicant’s costs of and incidental to the application.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – GENERALLY - where the applicant is subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“DPSOA”) - where the applicant received a direction from the first respondent that he not have in-person contact with a person - where the applicant requested reasons for the decision to direct that he not have in‑person contact - where the first respondent replied that the applicant was not entitled to a statement of reasons under the Judicial Review Act 1991 (Qld) (“JRA”) – where the applicant submits that he is entitled to reasons under the JRA because the decision was made under the DPSOA and, therefore, was made “under an enactment” - where the respondents contend that the decision was not made “under an enactment” because the decision was made under the supervision order rather than the DPSOA - whether the decision was made under an enactment such that the applicant is entitled to a statement of reasons under the JRA

ADMINISTRATIVE LAW – JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER INSTRUMENTS - where the applicant contends in the alternative that the decision was made under a supervision order which is a “statutory instrument” and, therefore, was made “under an enactment” - where the respondents contend that the supervision order is not a “statutory instrument” as defined in the Statutory Instruments Act 1992 (Qld) – whether the supervision order is a “statutory instrument”

Corrective Services Act 2006 (Qld)
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3(a), 13(1), 13(6), 16(1)(db), 16C
Judicial Review Act 1991 (Qld), s 3, 4(a)
Human Rights Act 2019 (Qld)
Statutory Instruments Act 1992 (Qld), s 6, 7

Blizzard v O’Sullivan [1994] 1 Qd R 112, cited
Boyy v Executive Director of Specialist Operations of Queensland Corrective Services [2019] QSC 283, cited
Dunkley v Queensland Corrective Services [2013] QSC 261, cited
Fardon v Attorney-General (Qld) (2004) 223 CLR 575, cited
Griffith University v Tang (2005) 221 CLR 99, cited
Hanson v Walters [2021] QCA 18

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AGLC
Lawrence v Fuller [2023] QSC 156
Case
[2023] QSC 156
Decision Date

CaseChat Overview and Summary

In Lawrence v Fuller, the applicant, who was subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), sought a statement of reasons for a decision made by a corrective services officer that he not have in-person contact with a specific person. The respondents argued that the decision was not subject to the requirement to provide reasons under the Judicial Review Act 1991 (Qld) as it was made under the supervision order and not the Act itself. The applicant contended that the decision was made under the Act and thus entitled to reasons. The court had to decide whether the decision was made under an enactment and whether the supervision order was a statutory instrument, which would also entitle the applicant to reasons.

The court found that the decision was indeed made under the Dangerous Prisoners (Sexual Offenders) Act, as the corrective services officer's power to issue such a direction stemmed from the Act. The fact that the decision could not have been made without the supervision order did not negate that it was made under the Act. The court also found that it was unnecessary to determine if the supervision order was a statutory instrument, as the decision was already established to be made under an enactment.

The court ordered that the applicant was entitled to a statement of reasons under the Judicial Review Act 1991 (Qld) and directed the respondents to provide these reasons within 28 days. Additionally, the court ordered the respondents to pay the applicant's costs of and incidental to the application.

Orders

Orders of the court

1. Declare that the applicant is entitled to a statement of reasons under s 33 of the Judicial Review Act 1991 (Qld).

2. The respondents provide the applicant with a statement of reasons within 28 days.

3. The respondents pay the applicant’s costs of and incidental to the application.

Background

Background to the litigation

A supervision order differs from the unilateral making of a legislative or administrative instrument and the types of instruments in s 7(3) of the SIA that are directed to the public. It is made after a contested hearing involving a party as a respondent to an application brought by the Attorney-General. The order is directed only to the respondent. The Court makes the supervision order in adversarial civil litigation in the exercise of judicial power after hearing from the respondent. A supervision order is not made “unilaterally” in the sense that s 7(3) of the SIA uses that word.Background The DPSOA authorises the Court, on an application by the Attorney-General, to make a supervision order if the Court is satisfied that the respondent is a “serious danger to the community” as that term is defined, in the absence of an order under s 13 of the Act. The supervision order involves the exercise of judicial power.[5][5]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 (“Fardon”). The Court does not “act as a mere instrument of government policy”.[6] The Court does not exercise a legislative power or an administrative power of the kind that a statutory body might exercise in issuing a notification, standard or guideline of a public nature or in otherwise making a “statutory instrument”. [6]Fardon at [19] per Gleeson CJ. A supervision order must contain certain requirements by virtue of s 16(1) of the DPSOA. A supervision order may contain additional requirements that are stated in the order.[7] Pursuant to s 16(1)(db), one of the requirements that the order must contain is that the prisoner:“comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order”.[7]DPSOA s 16(2). A corrective services officer may give a direction mentioned in s 16(1)(db) only if the officer reasonably believes the direction is necessary:(a)to ensure the adequate protection of the community; or(b)for the prisoner’s rehabilitation or care or treatment.[8] [8]DPSOA s 16C. If a corrective services officer reasonably believes that it is necessary for such a purpose to direct a person subject to a supervision order to not have contact with a person or class of persons, or only have a certain kind of contact, for instance supervised contact, then the DPSOA authorises the officer to make a “reasonable direction”. The supervision order made on 16 April 2020 is in the following terms:“The Court orders that Mark Richard Lawrence be released from prison and must follow the rules in the supervision order for 20 years, until 16 April 2040.” To assist persons who are subject to such an order to understand its requirements, the supervision order is in a form that adopts Plain English rather than statutory language. For example, instead of using the statutory term “requirements” the order uses the word “rules”. Paragraph 6 of the order is in the following terms:“A Corrective Services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a Corrective Services officer gives you about:(a)where you are allowed to live;(b)rehabilitation, care or treatment programs;(c)using drugs and alcohol;(d)who you may not have contact with; and(e)anything else, except for instructions that mean you will break the rules in this supervision order.A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation.If you are not sure about a direction, you can ask a Corrective Services officer for more information, or talk to your lawyer about it.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Two issues arise:(1) Was the decision made under the DPSOA and, therefore, “under an enactment”? (2) If not, is the supervision order a “statutory instrument”? Summary of conclusions I conclude that the decision was made under the DPSOA. That Act was the source of the first respondent’s power as a corrective services officer to direct the applicant to not have contact with the named person. The decision to deny the applicant his right to have in-person contact with the person named in the direction derived its capacity to affect the applicant’s legal rights from the DPSOA. The Act empowers such a direction. The Act mandates that a supervision order contains a requirement for a reasonable direction to be made. The respondents’ submission that the decision was made under the supervision order and, therefore, was not made under the DPSOA, tends to present the issue as involving a choice between two possible sources. On this view, the decision must have been made under one or the other. This view denies the reality that a decision may be made under an Act and also under an instrument that is authorised by the Act. In Griffith University v Tang,[3] Gummow, Callinan and Heydon JJ stated:“The circumstance that a decision could not have been made but for the concurrence of a range of circumstances of fact and law does not deny that in the necessary sense it was “made under” a particular enactment. The search for “immediate” and “proximate” relationships between a statute and a decision deflects attention from the interpretation of the Review Act and the ADJR Act in the light of their subject, scope and purpose.” [3](2005) 221 CLR 99 at [69] (“Tang”). The fact that the decision in this case could not have been made in the absence of a supervision order does not deny that in the necessary sense it was “made under” an enactment, namely the DPSOA. I conclude that it was. This makes it unnecessary to determine the applicant’s alternative argument that the supervision order falls within the definition of a “statutory instrument”. The applicant submits that the order is an “instrument of a public nature by which the entity making the instrument unilaterally affects a right or liability of another entity” so as to fall within the definition in s 7 of the SIA. I do not accept that submission. The supervision order is an instrument because it is a document.[4] Arguably, it is “of a public nature”, being made in open court for the public purpose of ensuring adequate protection of the community. However, having regard to the nature of the order as an exercise of judicial power in determining only the rights of the applicant, I doubt that the order is “of a public nature” for the purposes of the SIA. The supervision order affected the rights of the applicant in many ways. The instrument, however, was not made “unilaterally”.[4]SIA s 6. A supervision order differs from the unilateral making of a legislative or administrative instrument and the types of instruments in s 7(3) of the SIA that are directed to the public. It is made after a contested hearing involving a party as a respondent to an application brought by the Attorney-General. The order is directed only to the respondent. The Court makes the supervision order in adversarial civil litigation in the exercise of judicial power after hearing from the respondent. A supervision order is not made “unilaterally” in the sense that s 7(3) of the SIA uses that word.Background

Ratio Decidendi

Legal Principle Established

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