Masters v Minister for Police and Corrective Services and Minister for Fire and Emergency Services
[2022] QSC 47
•7 April 2022
SUPREME COURT OF QUEENSLAND
CITATION:
Masters v Minister for Police and Corrective Services and Minister for Fire and Emergency Services [2022] QSC 47
PARTIES:
DAVID MASTERS
(Applicant)
v
THE HONOURABLE MARK RYAN MP, MINISTER FOR POLICE AND CORRECTIVE SERVCES AND MINISTER FOR FIRE AND EMERGENCY SERVICES
(Respondent)
FILE NO/S:
BS 13386 of 2021
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
7 April 2022
DELIVERED AT:
Brisbane
HEARING DATE:
25 March 2022
JUDGE:
Bowskill CJ
ORDERS: The application for a statutory order of review is dismissed.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the applicant is serving a life sentence for murder in a prison in Western Australia – where the applicant applied for a prisoner transfer from Western Australia to Queensland under the Prisoners (Interstate Transfer) Act 1983 (WA) – where the respondent refused to consent to the applicant’s transfer under the Prisoners (Interstate Transfer) Act 1982 (Qld) having regard to the gravity and serious nature of the applicant’s offending, the estimated costs of maintaining the applicant in custody in Queensland and the current capacity utilisation rate for male high security prisoners in Queensland – where the applicant applies for a statutory order of review of the respondent’s decision, on the ground that the making of the decision was an improper exercise of the power conferred by the Prisoners (Interstate Transfer) Act 1982 (Qld), because the Minister took irrelevant considerations into account in the exercise of the power, namely the cost of maintaining the applicant in custody and the capacity utilisation rate
Judicial Review Act 1991 (Qld), ss 20(2)(e) and 23(a)
Prisoners (Interstate Transfer) Act 1982 (Qld), ss 6, 9 and 10AAttorney-General (ACT) v Heiss (2002) 116 FCR 128
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259
Perdikaris v Deputy Commissioner of Taxation (2008) 172 FCR 412
Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517COUNSEL: C Jennings QC and J Moxon, for the Applicant
S McLeod QC and A Nicholas, for the Respondent
SOLICITORS: Behlau Murakami Grant ILP, for the Applicant
Crown Solicitor, for the Respondent
The applicant is serving a life sentence for murder in a prison in Western Australia. In April 2017, he applied for a transfer to a prison in Queensland. Such an application is dealt with under the Prisoners (Interstate Transfer) Act 1982 (Qld) and its Western Australian equivalent.
The first step in the process involves the relevant Minister in Western Australia forming an opinion about whether the prisoner to whom the request relates should be transferred and sending the corresponding Minister, in Queensland, a written request asking for the transfer of the prisoner to be accepted.[1] The next step involves the Minister in Queensland deciding whether to refuse to consent, or consent, to the transfer and giving written notice of that decision to the Minister from whom the request was received.[2]
[1]See s 6 of the Prisoners (Interstate Transfer) Act 1982 (Qld); and the equivalent provision, s 5 of the Prisoners (Interstate Transfer) Act 1983 (WA).
[2]See s 9 of the Prisoners (Interstate Transfer) Act 1982 (Qld).
In May 2018, the relevant Minister in Western Australia sent a written request to the respondent Minister. On 11 March 2021, the respondent Minister wrote to his counterpart in Western Australia advising that he did not consent to the applicant’s transfer to Queensland.
The applicant sought judicial review of that decision. The decision was set aside, by consent, by an order made on 23 August 2021. The matter was remitted to the respondent to remake the decision. On 10 September 2021, the Minister again decided not to consent to the applicant’s transfer to Queensland. A statement of reasons was provided on 11 October 2021.
Among other things, the statement of reasons records that (under the heading “protection of the community in this or any other State”):
“49.Currently, the applicant is ineligible to apply for parole in WA.
50.On 15 May 2019, the WA Attorney-General issued a direction to the Prisoners Review Board and as a result of that direction, the applicant’s case would no longer be reviewed by the Board on 14 December 2020. His case will next be reviewed by the Board on 4 December 2026, unless otherwise directed by the Attorney-General. The Attorney-General’s reasons for issuing the direction included the gravity and seriousness of the applicant’s offending and the likely traumatisation of the family of the victims should the applicant be eligible for release.
51.Were the applicant to transfer to Queensland, he would be immediately eligible to apply for parole.
52.Were such an application to be made, it would ultimately be a matter for the Parole Board Queensland whether or not to grant the applicant parole. I note that, should the applicant’s transfer to Queensland be approved, he would be eligible for consideration for release on parole immediately and subject to parole for life, as opposed to the date of December 2026 set by the WA Attorney-General and a parole period of five years.”
Under the heading “any other matter that the Minister considers relevant”, the statement of reasons records:
“53.As Minister, I may consider any other matter which I consider relevant under section 10A(f) of the Transfer Act.
54.Given the serious nature of the applicant’s offending, the applicant would be ineligible for placement in a low custody facility in Queensland. As the body of both his victims were located by police, the applicant would not be subject to ‘No Body No Parole’ provisions under section 193A of the Corrective Services Act 2006 (Qld).
55.The applicant is serving a sentence of life imprisonment and his custody would be indefinite. Queensland Corrective Services State Budget Performance Statements indicate that the estimated cost of containing a prisoner in Queensland is $215 per day. Based on this estimated cost, the cost to the State in Queensland of maintaining the applicant in custody would be approximately $78,475 annually, or:
· $392,375 to maintain the applicant in custody for five years
· $784,750 to maintain the applicant in custody for 10 years, or
· $1,177,125 to maintain the applicant in custody for 15 years.
56.While these figures are estimates only, and do not take into account specific factors in maintaining the applicant in custody, including rehabilitation costs, or consideration of CPI increases or inflation, I considered that the applicant’[s] ineligibility for a low security placement in Queensland indicates that the costs involved in maintaining the applicant in custody could reasonably be expected to be higher than that of the average prisoner. They also do not take into account any potential grant of parole. In that regard, I note that the applicant would be subject to parole for life, as opposed to the date of December 2026 set by the WA Attorney-General and a parole period of five years. This state would be required to assume responsibility for supervising any parole period for the applicant and meeting the costs of it.
57.Queensland Corrective Services reports that the current capacity utilisation rate for male high security prisoners is 144.9 per cent as at 7 September 2021.
58.I find that the current capacity utilisation rate of male high security prisoners, and the not insubstantial costs involved in maintaining the applicant in custody were he transferred to Queensland, both tend strongly against consenting to his transfer to Queensland. In my view, these factors weighed against consent to the applicant’s transfer.”
The statement of reasons concludes, in paragraphs 59 and 60, that:
“59.In reaching this decision, I have had regard to each of the matters set out above. In particular, I note the gravity and serious nature of the applicant’s offending, the estimated costs of maintaining the applicant in custody were he to be transferred to Queensland, which are not insignificant, and the fact that the current capacity utilisation rate for male high security prisoners is 144.9 per cent. In my view, these factors weigh against consenting to the applicant’s transfer.
60.Accordingly, I refuse to consent to his transfer pursuant to section 9 of the Transfer Act.”
The “capacity utilisation rate”, referred to in paragraph 57 of the statement of reasons, is taken from annexure 24 to the statement of reasons, which is headed “prisoner number stats” as at Tuesday, 7 September 2021.[3] This document identifies that there are 10,230 prisoners in custody. That figure is then divided up between male and female prisoners, and high and low security facilities. The “capacity utilisation rate” compares the number of prisoners (relevantly, for men in high security, 8712) with the number of “built cells” (relevantly, 6011), arriving at a figure of 144.9%.
[3]Affidavit of Murakami, at p 215.
The applicant applies for a statutory order of review of the respondent’s decision, on the ground that the making of the decision was an improper exercise of the power conferred by the Act, in that the respondent took into account irrelevant considerations in the exercise of the power,[4] namely:
(a)the cost of maintaining the applicant in custody if he were to be transferred to Queensland; and
(b)the “purported ‘capacity utilisation rate’ as at 7 September 2021 for male high security prisoners in Queensland”.
[4]See s 20(2)(e) and s 23(a) of the Judicial Review Act 1991 (Qld).
For the following reasons, I am not persuaded that either of these grounds has been established.
Relevantly, ss 9, 10 and 10A of the Prisoners (Interstate Transfer) Act 1982 (Qld) provide:
“9 Receipt of request for transfer to Queensland
Where the Minister receives a written request given under the provision of an interstate law that corresponds to section 6 … asking the Minister to accept the transfer of an imprisoned person to Queensland, the Minister shall either refuse to consent, or consent, to the transfer and shall give to the Minister by whom the written request was given … written notice of the Minister’s refusal or consent.
10Reports
(1) For the purpose of forming an opinion or exercising any discretion under this part, the Minister may inform himself or herself as the Minister thinks fit and, in particular, by reference to reports of parole and corrective services authorities of Queensland and of any participating State.
(2)Reports of parole and corrective services authorities may be sent to a corresponding Minister for the purpose of assisting the Minister to form an opinion or to exercise a discretion under the interstate law administered by the Minister.
10AMatters that the Minister may have regard to
When forming an opinion or exercising a discretion under this part, the Minister may have regard to any one or more of the following–
(a)the welfare of the prisoner;
(b) the administration of justice in this or any other State;
(c)the security and good order of any prison in this or any other State;
(d)the safe custody of the prisoner;
(e)the protection of the community in this or any other State;
(f)any other matter that the Minister considers relevant.”
As Weinberg J explained, in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [512]-[513], having regard to s 10A the applicant carries a significant burden in endeavouring to establish that the cost of maintaining the applicant in custody if he were transferred, or the “capacity utilisation rate”, are truly “irrelevant considerations”. By providing a list of matters the Minister may have regard to, but then allowing the Minister to take into account any other matter they consider relevant, the legislative scheme implies that “short of capriciousness, the determination of whether or not these additional matters are relevant, and what weight they should be accorded, is largely a matter for” the Minister.[5]
[5]See also Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40.
In the present context, for a consideration to be irrelevant the statute must expressly or impliedly prohibit consideration of it.[6]
[6]Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517 at [137]; Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 514. See also Perdikaris v Deputy Commissioner of Taxation (2008) 172 FCR 412 at [35] and Attorney-General (ACT) v Heiss (2002) 116 FCR 128 at [18].
The Prisoners (Interstate Transfer) Act is part of a national legislative scheme, introduced in 1982, to permit the transfer of prisoners between the various Australian jurisdictions for welfare purposes or for trial.[7]
[7]See Attorney-General (ACT) v Heiss (2002) 116 FCR 128 at [20]; see also the Prisoners (Interstate Transfer) Bill 1982, Second reading speech in Parliamentary Debates, 24 August 1982, pp 489-490.
In so far as the part of the scheme dealing with transfers for welfare purposes is concerned, as originally enacted, the only specified criteria in the Act, for a decision whether to request a corresponding Minister to accept the transfer of a prisoner from Queensland (s 6) was whether the prisoner should be transferred “in the interests of the welfare of the prisoner”. No criteria was specified for the decision whether or not to consent to accepting the transfer of a prisoner to Queensland from elsewhere (s 9).
In contrast, however, in the Commonwealth legislation enacted at the time the scheme was developed (Transfer of Prisoners Act 1983 (Cth)), the equivalent of s 6 of the Queensland Act did include a provision (s 6(3)) in the following terms:
“In exercising his powers under sub-section (1) to make an order for the transfer of a prisoner, the Attorney-General shall have regard to all matters that he considers relevant, including, but without limiting the generality of the foregoing –
(a) the administration of justice; and
(b) the welfare of the prisoner.”
In Attorney-General (ACT) v Heiss (2002) 116 FCR 128, to be discussed shortly, the Full Court of the Federal Court made reference to s 6(3) of the Commonwealth Act, and emphasised the “unrestrained scope of the considerations of which the Attorney-General could take account”.[8]
[8]Attorney-General (ACT) v Heiss (2002) 116 FCR 128 at [22].
The Queensland Act was amended in 2005, relevantly, to remove the words “in the interests of the welfare of the prisoner” where they appeared in s 6 and to add s 10A.[9] The purpose of these amendments was, expressly, “to expand [or broaden[10]] the range of matters the Minister may have regard to when considering a request by a prisoner to be transferred to or from another State or Territory”.[11] That purpose is plainly apparent from the deletion of the one specified criteria in s 6 and the language used in s 10A.
[9]Justice and Other Legislation Amendment Act 2005 (Qld), s 131.
[10]Justice and Other Legislation Amendment Bill, Explanatory Note, p 33.
[11]Justice and Other Legislation Amendment Bill, Second reading speech in Parliamentary Debates, 8 November 2005, p 3747.
The applicant submits that the two considerations he challenges (the costs involved in keeping him in custody in Queensland and the “capacity utilisation rate”) are irrelevant to the purpose of the national scheme facilitated by the Act, the “primary focus of which is the welfare and safety of prisoners”.
The scope of the matters relevant for consideration by a Minister, under the equivalent legislation in the Australian Capital Territory, was considered by the Full Court of the Federal Court in Attorney-General (ACT) v Heiss (2002) 116 FCR 128. The legislation there under consideration was in similar terms to the Queensland Act prior to its amendment in 2005 (that is, there was no equivalent of s 10A).[12]
[12]Attorney-General (ACT) v Heiss (2002) 116 FCR 128 at [9].
In that case, a prisoner serving a sentence in the Northern Territory sought to be transferred to the Australian Capital Territory on welfare grounds. The Attorney-General for the ACT declined to consent to the transfer on the basis that, first, there was no prison in the ACT and so the ACT was not able to fully participate in the legislative scheme (at this time, prisoners sentenced in the ACT served their sentences in New South Wales); secondly, as a consequence, the ACT lacked control over the management and welfare of prisoners serving sentences in NSW prisons; and, thirdly, the cost to the ACT of accepting such a transfer.
At first instance, upon the application for judicial review of the Attorney-General’s decision, the decision was set aside on the basis that, inter alia, the Attorney had taken irrelevant considerations into account, namely the absence of a prison in the ACT, control over welfare issues and costs. In so far as cost was concerned, the judge at first instance found that there was no provision in the legislation for any Minister to refuse an interstate prisoner on the ground of cost, describing the scheme as a whole as “presumably cost neutral” and observing that “the scheme assumes that the overall cost of imprisonment in Australia is not significantly increased by the implementation of the scheme, and whatever extra cost is involved is to be shared by the various States and Territories in the interests of the welfare of prisoners”.[13]
[13]Heiss v Attorney-General for the ACT (2001) 127 A Crim R 56 at [25]; Attorney-General (ACT) v Heiss (2002) 116 FCR 128 at [12].
The decision to set aside the Minister’s decision was upheld on appeal, on the basis that, by refusing to consent because there was no prison in the ACT, the Minister had misconstrued the power conferred on him. The Full Court held that he was obliged to consider the request notwithstanding the ACT was without a prison, as the scheme contemplated a prisoner who wished to be transferred to the ACT being treated, if transferred, as an ACT prisoner (who could then be accommodated wherever ACT prisoners were). However, the Full Court took a different view in so far as the other matters were concerned.
The Full Court observed that the discretion conferred by s 9(1) of the ACT Act (the equivalent of s 9(1) of the Queensland Act) was not confined in express terms. It was therefore a matter of implication, from the subject-matter, scope and purpose of the Act, whether the discretion given was one which obliged the Attorney-General to take a particular consideration into account and whether it precluded him from taking other considerations into account. The Full Court then said:
“33We are prepared for present purposes to assume that s 9(1) required the Attorney-General to take into account the prisoner’s welfare as an element in his decision-making. Given the purpose of this form of transfer, that intent could properly be ascribed to the legislature. We would, though, go on to say that the prisoner’s welfare is not the only consideration the Attorney is entitled to take into account and that the weight to be attributed to that consideration is, within limits, a matter for him: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41.
34Textual considerations suggest that, if the legislature intended that the Attorney’s discretion was to be limited to what in his opinion was in the interests of the prisoner’s welfare, it would have done so explicitly – the more so as the discretion so limited would then reflect the opinion to be entertained by the requesting Minister which is expressly limited: s 6(1)(b). Likewise, elsewhere in the Act where the Territory Minister is required to take a decision in the interests of the prisoner’s welfare, this is indicated in express terms: s 21(1).
35When one turns to the scheme itself in its federal setting, there is in our view a ready explanation for why the legislation has not expressly and does not impliedly limit the Attorney’s consent discretion to considerations bearing on the prisoner’s welfare. While the prisoner’s welfare is itself a relevant consideration there clearly is a significant number of matters of which, potentially, an Attorney-General might wish reasonably to take account in determining whether or not to accede to a transfer request. These could relate, variously, to the suitability of the prisoner to be brought to the ACT, the ACT’s capacity or willingness to assume responsibility for the prisoner, the cost of maintaining the prisoner (for example, if he or she required on-going and expensive medical care), the effect on the administration of justice in the Territory, etc. We can see nothing in the subject matter, scope and purpose of the Act that would impliedly exclude such factors from those to which the decision-maker could legitimately have regard. This view accords with that in the Presentation Speech for the 1993 ACT Bill where the then Attorney-General instanced ‘considerations relating to prison capacity and the nature of [the prisoner’s] offences’ as considerations that might affect the giving of a consent to a transfer”. [underlining added]
Those observations are amplified when one has regard to the current form of the Queensland legislation including, as it now does, s 10A. As that provision makes clear, the factors the Minister may have regard to include, but are by no means limited to, the welfare of the prisoner. With the inclusion of s 10A(f), there is a similarly “unrestrained scope of considerations”[14] which the Minister could take into account. It is no longer apt to say, if it ever was, that the “primary focus” of the legislation is the welfare and safety of prisoners. From the time of its enactment, the Queensland Act, like the ACT Act, did not limit the Minister’s discretion – when considering whether to consent to the transfer of a prisoner from another jurisdiction to Queensland – to whether the transfer was in the interests of the welfare of the prisoner; even though that was the express criterion for consideration of a request for a prisoner to be transferred from Queensland to another State.[15]
[14]See [17]-[18] above.
[15]Cf and cn ss 6 and 9 of the Prisoners (Interstate Transfer) Act 1982 (Qld), as originally enacted.
In so far as the cost of maintaining the applicant in custody is concerned, it cannot be said that is an irrelevant consideration. On the contrary, having regard to the subject-matter, scope and purpose of the statute, the cost of maintaining the prisoner in custody in Queensland is clearly relevant. The applicant submits cost is not relevant because the national scheme was intended to be “cost neutral”, with the costs of maintaining prisoners in custody being shared between participating States and Territories. This submission appears to be based on the observation of the judge at first instance in the Heiss matter.[16] But that approach was rejected by the Full Court, which determined that a matter such as the cost of maintaining the prisoner in custody is one the relevant Minister might reasonably wish to take into account. The Full Court in Heiss at [35] gives an example of when that might be so – namely if the prisoner required on-going and expensive medical care. However, I do not accept, as submitted by the applicant, that cost would only be a relevant consideration in that narrow category of case. Factors such as the length of the sentence the prisoner is serving and the circumstances in which, if transferred, they would be required to serve that sentence – both of which may have cost implications for the receiving State – are matters the decision-maker might reasonably, and consistently with the scope, purpose and subject-matter of the legislation, take into account.
[16]See footnote 16 above.
As for the “capacity utilisation rate”, in my view, again, the capacity of the Queensland prison system to assume responsibility for a prisoner seeking to be transferred from interstate is a relevant consideration. In the course of oral argument, counsel for the applicant accepted that. However, he maintained that the particular matter the Minister had regard to – the so-called “capacity utilisation rate” – was a “meaningless statistic” which told the Minister nothing about capacity. That submission is based on the fact that the “prisoner number stats” calculates the capacity utilisation rate by reference to “built cells”.[17] However, according to the applicant’s solicitor,[18] Queensland Corrective Services has produced a document which sets out “prisoner accommodation capacity definitions”. In this document, “built cell capacity” is defined as the total number of built prisoner accommodation cells; but a “buddy” cell, built for two people, is counted as one built cell. In contrast, “built bed capacity” is a reference to the number of built prisoner accommodation bed places (with a “buddy” cell being counted as two beds). The applicant’s point is that, given the “prisoner number stats” uses “built cells”, and given that this could include “buddy cells”, the capacity utilisation rate is not an accurate indicator of capacity. Counsel for the applicant expressly disavowed that this argument raised any factual challenge; but maintained the submission that the “capacity utilisation rate” is an irrelevant consideration, “because that number itself doesn’t say anything about the capacity of the prisons”.
[17]See the affidavit of Murakami at p 215 (a document which was before the Minister).
[18]Affidavit of Murakami at [7] and pp 217-221 (a document which was not before the Minister).
Counsel for the respondent Minister emphasises the point made by the High Court in Minister for Immigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 at 271-272, that the reasons are meant to inform and not to be scrutinised with an eye keenly attuned to the perception of error. He submits that it is clear, on the face of the reasons, that the Minister was referring to prisons in Queensland being over capacity.
I accept that submission. Reference to that circumstance appears in the document (attachment 23) referred to by the Minister at paragraph 55 of the statement of reasons, in outlining the costs of maintaining a prisoner – relevantly, that in the 2020-21 year, the target facility utilisation rate was 90-95%, and the actual utilisation rate was 125.8%.[19] In addition, that is also the inference to be drawn from the reference to the capacity utilisation rate at paragraph 57 of the statement of reasons, which appears in the document (attachment 24) described as “prisoner number stats” as at a particular date. Even assuming, favourably to the applicant, that the percentage figure arrived at in the “prisoner number stats” document could, on interrogation, be found to require adjustment, that does not support the conclusion that the reference to it – as an indicator of capacity – is irrelevant for present purposes. Read fairly, in this part of the statement of reasons, the Minister is recording that he has taken into account that prisons in Queensland are operating above their built capacity, particularly prisons catering for male prisoners in high security. He has recorded that by reference to a statistic referred to in a document which is before him (document 24) which is, on its face, intended to convey that fact. By doing so he has not, in my view, taken into account an irrelevant consideration.
[19]Affidavit of Murakami, at pp 213-214.
For those reasons, the application is dismissed. I will hear the parties in relation to costs.
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