M (A Child) v Chief Executive Officer of the Department of Justice - [2019] WASC 331

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   M (A CHILD) -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF JUSTICE [2019] WASC 331
CORAM:   QUINLAN CJ
HEARD:   30 AUGUST 2019
DELIVERED          :   30 AUGUST 2019
PUBLISHED           :   10 SEPTEMBER 2019
FILE NO/S:   CIV 2464 of 2019
BETWEEN:   M (A CHILD)
Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF JUSTICE
First Respondent
LOUISE SCHNURIGER
Second Respondent

Catchwords:

Administrative law - Application for judicial review - Interim application -Young offenders - Detention offences - Decision of visiting justice - Whether regulations complied with - Where parties agree that certiorari should issue

Legislation:

Children and Community Services Act 2004 (WA)
Young Offenders Act 1994 (WA)
Young Offenders Regulations 1995 (WA)

Result:

Writ of certiorari issued

Representation:

Counsel:

Applicant	:	Ms A Lachal
First Respondent	:	Ms R Hartley
Second Respondent	:	Ms R Hartley

Solicitors:

Applicant	:	Aboriginal Legal Service - Perth
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Ex parte Rushton (Unreported, WASC, Library No 2758, 29 November 1979)
Re Fawcett; Ex parte Ord (Unreported, WASC, Library No 940299, 15 February 1994)

QUINLAN CJ:

(This judgment was delivered extemporaneously on 30 August 2019 and has been edited from the transcript.)

The applicant is a child who is in detention pursuant to the Young Offenders Act 1994 (WA) (Young Offenders Act).
This is an interim application brought within the context of an application for judicial review of the determination by a visiting justice of certain detention offences within the meaning of the Young Offenders Act.
The hearing in relation to the detention offences took place before the visiting justice on 16 July 2019.
The visiting justice found the applicant guilty of four detention offences, in relation to three of which the applicant had pleaded not guilty. The visiting justice gave the same cumulative penalty for each of the offences, namely, an order, pursuant to s 173 of the Young Offenders Act, that the earliest release day for the sentence that the applicant was serving be altered by making it 14 days later. That is, the applicant's earliest release day was deferred by a total of 56 additional days. In addition, the visiting justice ordered that the applicant be confined to sleeping quarters, or a designated room, for a period not exceeding 48 hours in relation to each charge.
The application for judicial review seeks both a writ of certiorari and a writ of prohibition. The writ of certiorari is sought in relation to the hearing which occurred before the visiting justice on 16 July 2019 and the penalties that were imposed on that day. The writ of prohibition is sought to prohibit any further proceedings in relation to the incidents giving rise to the detention offences.
The matter comes before me today to deal with part of the matter, by consent. That is, that the parties are agreed that certiorari should issue in relation to the decisions by the visiting justice made on 16 July 2019 and that the penalty imposed under s 173 in each case be quashed.
There was some urgency associated with the matter as the applicant's earliest eligible release date would otherwise have been 23 August 2019 and he is due to appear before the Supervised Release Review Board on 4 September 2019.
The respondents, quite properly, consented to the order for certiorari. Nevertheless, being a proceeding of the Crown side of the Court, it is necessary that I am independently satisfied that the writ should issue.
I am satisfied that a writ of certiorari should issue as consented to by the parties and, to that end, I will give brief reasons for so concluding.
In Ex parte Rushton, Burt CJ said, in relation to prison offences heard before visiting justices: [1]
The proceedings before a visitor upon a complaint charging a prisoner with the commission of a minor prison offence are, I think, of a kind amenable to control by a prerogative writ and the power and the duty to 'hear the complaint' require that they be conducted in a way which does not offend the rules of natural justice.
[1] Ex parte Rushton (Unreported, WASC, Library No 2758, 29 November 1979) 4 (Burt CJ).
In Re Fawcett; Ex parte Ord, Wallwork J (with whom Franklyn and Owen JJ agreed) said, in reference to the above passage:[2]
I would add to the above that the hearing of complaints against prisoners within the confines of the prison involves a very serious responsibility with which the authorities have been entrusted. The proceedings must be conducted properly in accord with the Act and Regulations and the principles of natural justice.
[2] Re Fawcett; Ex parte Ord (Unreported, WASC, Library No 940299, 15 February 1994) 11 (Wallwork J).
Those remarks apply equally and, indeed perhaps with more force, in relation to detention offences brought against a child who is in detention under the Young Offenders Act.
In the present case, the relevant requirements of the Young Offenders Regulations 1995 (WA) which, to a degree, codify aspects of the requirements of natural justice, include requirements for the notification of the hearing and for the detainee to be permitted representation.
Those requirements are set out in reg 38 and reg 39 of the Young Offenders Regulations 1995:
38. Notification of hearing
(1)If -
(a)a detainee is charged with a detention offence; and
(b)a date is set for the hearing of the charge,
the superintendent is to take reasonable steps to notify a responsible adult of the date set for the hearing and of the right of the responsible adult to be present at the hearing.
(2)It is sufficient compliance with subregulation (1) if the superintendent causes written notification of the hearing to be forwarded to the last address recorded at the detention centre for the responsible adult.
39. Representation of detainee
(1)The superintendent or visiting justice is to permit a suitable person, other than a legal practitioner, nominated or agreed to by the detainee charged to assist and represent the detainee at the hearing of the charge.
(2)It is for the superintendent or visiting justice to determine whether a person nominated or agreed to under subregulation (1) is a suitable person for the purposes of that subregulation.
In the present case, neither reg 38 nor reg 39 were complied with.
In particular, the applicant who, is subject to a protection order under the Children and Community Services Act 2004 (WA), is subject to the parental responsibility of the Chief Executive Officer of the Department of Communities.
The applicant's child protection worker, Jackson Stephen John Reddy, swore an affidavit of 15 August 2019 in support of the application for judicial review. That affidavit deposes that Mr Reddy received an email advising of the detention offences but was not told that the appellant was entitled to be represented by Mr Reddy at the hearing:
5.At 6:33 pm on Saturday 13 July 2019 I received an email from Mr Chari Viviers, a Unit Manager at BHDC, advising me that [the applicant] had been charged with 4 detention centre offences relating incidents at BHDC (the Detention Offences) and that the charges would be heard by the superintendent at 9:00 am on Monday 15 July 2019. …
6.I was not told by anyone at BHDC that I was allowed to be present at the hearing of the Detention Offences.
7.I did not know that young people in BHDC who are charged with detention centre offences are allowed to have a responsible adult or other representative with them at a hearing of those offences, whether before the superintendent or a visiting justice.
8.I did not receive any further correspondence from BHDC in relation to the hearing of the Detention Offences before the superintendent on Monday 15 July
It is apparent from the annexures to that affidavit that Mr Reddy was advised at 6.33 pm on Saturday, 13 July 2019 of the fact that the applicant had been charged with the offences, but was not advised that a responsible adult had the right to be present at any hearing.
In any event, after the hearing before the superintendent on 15 July 2019, there was no further advice that the matter was to be heard by a visiting justice the following day. In that regard, reg 38 or reg 39 were not complied with at all.
In those circumstances, I am satisfied that the regulations were not complied with and that, in all of the circumstances, the applicant was denied natural justice in relation to the four detention offences.
It is not necessary for the purposes of these orders for me to go further and deal with any of the other matters that are set out in the affidavits in support of the judicial review application generally.
I order that a writ of certiorari issue and that the decisions made on 16 July 2019 in respect of the four detention offences against the applicant be quashed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Research Associate to the Honourable Chief Justice Quinlan
10 SEPTEMBER 2019