Owen-D'Arcy v Chief Executive, Queensland Corrective Services
[2021] QSC 273
•22 October 2021
SUPREME COURT OF QUEENSLAND
CITATION:
Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273
PARTIES:
MICHAEL STEPHEN OWEN-D’ARCY
(applicant)
v
CHIEF EXECUTIVE, QUEENSLAND CORRECTIVE SERVICES
(respondent)
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(first intervener)
QUEENSLAND HUMAN RIGHTS COMMISSION(second intervener)
FILE NO/S:
BS No 9472 of 2020
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
22 October 2021
DELIVERED AT:
Brisbane
HEARING DATE:
14 October 2020, further submissions filed 14, 15, 22 and 23 April 2021
JUDGE:
Martin J
ORDER:
I will hear the parties on the appropriate form of orders which reflect these reasons.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the respondent issued a maximum security order against the applicant (“the MSO Decision”) – where the applicant submits that the decision-maker failed to give due and proper consideration to matters set out in the applicant’s submissions – where the respondent submits that there has been no practical unfairness to the applicant – whether the decision-maker breached the rules of natural justice
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the respondent made a direction not to permit any contact associations by the applicant with other prisoners in the maximum security unit (“the No Association Decision”) – where the applicant submits that the decision-maker failed to take appropriate procedural steps – where the decision-maker considered, among other things, the recommendations of a forensic and clinical psychologist and the applicant’s human rights – whether the decision was so unreasonable that it lacked an evident and intelligible justification when all relevant matters were considered
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the respondent made the No Association Decision – where the applicant submits that the decision-maker failed to consider the applicant’s last recorded incident, the lack of any history of violence against prisoners and failed to give proper consideration to the applicant’s human rights – where the decision-maker considered the applicant’s violation history and the applicant’s risk of violence but failed to consider the effect on the applicant’s human rights – whether the decision-maker failed to take into account a relevant consideration
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the respondent made the No Association Decision – where the applicant submits that the decision-maker considered and placed weight on the applicant’s self-reporting to a forensic and clinical psychologist – whether the decision-maker took an irrelevant consideration into account
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR RELATING TO FACTS – where the statement of reasons contains a finding of fact that the applicant had an extensive history of problematic institutional behaviour – where the applicant submits that the finding was given significant weight – where the respondent submits that the finding was open on the evidence – whether the finding of fact was incorrect and an error of law
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the respondent made the MSO Decision and the No Association Decision (“the Decisions”) – where the applicant submits that the failure of the decision-maker to take the minimal steps available constitutes treatment which is cruel, inhuman or degrading – where the respondent, notwithstanding the onus borne with respect to demonstrating that any limits imposed on human rights are justified, did not call any evidence about the effect of solitary confinement – whether the Decisions are unlawful because they are incompatible with the applicant’s right to not be treated or punished in a cruel, inhuman or degrading way
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the applicant submits that the failure of the respondent to take steps to identify and apply changes to the applicant’s treatment regime by which his circumstances could be improved constitutes treatment which contravenes, and continues to contravene, his right to liberty and security of the person – where the applicant submits that, notwithstanding that the applicant had been imprisoned, he still retained a form of residual liberty – whether the Decisions are unlawful because they are incompatible with the applicant’s right to liberty and security of the person
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the applicant submits that he is subject to hardship or constraint beyond the hardship or constraint that all prisoners experience by virtue of being deprived of their liberty – where the respondent has not satisfied the onus of demonstrating that the limitation is justified – whether the Decisions are unlawful because they are incompatible with the applicant’s right to humane treatment when deprived of liberty
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Canada Act 1982 (UK), c 11, sch B pt I, s 10
Charter of Human Rights and Responsibilities Act 2016 (Vic), s 7, s 22, s 32
Corrective Services Act 2006, s 3, s 12, s 13, s 14, s 60, s 61, s 62, s 63
Corrective Services Regulation 2017, s 4, s 18
Explanatory Notes, Human Rights Bill 2018
Human Rights Act 1998 (UK)
Human Rights Act 2019, s 8, s 9, s 13, s 17, s 18, s 22, s 25, s 29, s 30, s 48, s 50, s 51, s 58, s 59
Human Rights Bill 2018
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New Zealand Bill of Rights Act 1990 (NZ)
Penalties and Sentences Act 1992, s 15
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Queensland Corrective Services, Custodial Operations Practice Directive: Prisoner Accommodation Management – Maximum Security Unit, 13 December 2019
Queensland, Parliamentary Debates, Legislative Assembly, 31 October 2018, 3185 (Yvette D’Ath, Attorney General and Minister for Justice)Government of Australia, Guiding Principles for Corrections in Australia (February 2018)
COUNSEL:
SJ Keim SC and S Lane for the applicant
M Hickey for the respondent
F Nagorcka and K Blore for the Attorney-General interveningP Morreau for the Queensland Human Rights Commission
SOLICITORS:
Prisoners Legal Service for the applicant
GR Cooper, Crown Solicitor for the respondent
GR Cooper, Crown Solicitor for the first intervenerQueensland Human Rights Commission for the second intervener
In July 2007, Michael Owen-D’Arcy brutally murdered another man. He stabbed him 41 times and mutilated his corpse. On 7 December 2010, he was convicted of that murder and a life sentence was imposed. The sentencing judge described what he did as “abhorrent and violent in a high degree”. He went on to say: “In view of the nature and degree of the risk to public safety he poses and in all probability will continue to pose indefinitely, the most careful scrutiny should be given to any application for parole that he may ever make”.
In January 2011, he was classified as a maximum security prisoner. In the three years which followed that classification he was convicted of a number of other offences, including the attempted murder of a corrective services officer. That was described by the sentencing judge as “cold, calculated and a callous act”.
In January 2013 a Maximum Security Order (“MSO”) was issued with respect to the applicant. A new order has been issued approximately every six months since then. This application seeks to review the decision imposing an MSO for the period from 18 June 2020 to 16 December 2020. The applicant claims that, in deciding to issue the MSO the decision-maker:
(a)failed (among other things) to afford him natural justice, and
(b)breached a number of the rights the applicant enjoys pursuant to the Human Rights Act 2019 (“HRA”).
The application
The applicant seeks a review under the Judicial Review Act 1991 (“JRA”) of the decisions of the respondent to:
(a)issue a consecutive MSO pursuant to s 61(1) of the Corrective Services Act 2006 (“CSA”) on 17 June 2020 (“the MSO Decision”), and
(b)make a direction pursuant to s 62(1)(a) of the CSA not to permit any contact associations by the applicant with other prisoners in the Maximum Security Unit (“MSU”) without the approval of the authorised delegate for the duration of the consecutive MSO (“the No Association Decision”).
In the alternative, the applicant seeks relief under s 59 of the HRA.
Relief Sought
The applicant seeks the following relief:
(a)An order that the MSO Decision be set aside, ab initio, and remitted to the respondent to be dealt with according to law,
(b)An order that the No Association Decision be set aside, ab initio, and remitted to the respondent to be dealt with according to law,
(c)In the alternative to (a), an order pursuant to s 59 of the HRA that the MSO Decision be set aside, ab initio, and remitted to the respondent to be dealt with according to law,
(d)In the alternative to (b), an order pursuant to s 59 of the HRA that the No Association Decision be set aside, ab initio, and remitted to the respondent to be dealt with according to law, and
(e)The respondent pay the applicant’s costs of and incidental to the application.
Who made the decision? And by what power?
The decision was made by Ms Samantha Newman, an Executive Director within the Department of Corrective Services. In any consideration of the reasons given and the determinations made by a decision-maker it is important to bear in mind the parameters of that person’s authority. The difference in authority between the respondent and Ms Newman causes difficulty when considering those aspects of the applicant’s case which rely upon the absence of action by the decision-maker. While the decision made is, ultimately, the responsibility of the respondent, the decision-maker did not have all the powers of the respondent.
Ms Newman had been delegated the powers under ss 12-14 of the CSA to make and review a decision as to a prisoner’s security classification and, under s 60 and s 61, to make MSOs.
In this case, Ms Newman’s power was quite confined. She was not standing in the shoes of the Chief Executive of Queensland Corrective Services.
Part of the argument advanced for the applicant concerned the conditions under which he was being held, in particular, whether there were less restrictive means by which the risks associated with the applicant could be managed. It was put this way in argument:
“it is to the content of the directions, including absences .. Or omissions from that decision that most of the grounds are directed. It is not suggested that an MSO was not capable of being lawfully made. … It is contended that the MSO containing directions which made no provision for progress towards fewer restraints and possible associations with other prisoners in MSU was not unlawfully [sic lawfully] made. So in one sense, of the complaint – and this very much goes across most or all of the grounds – is towards that specific aspect of the two orders which was made, rather than an attack on the idea of administrative segregation as the subject or an attack on administrative segregation or MSO orders as being potentially appropriate to the applicant at this point of time in his development and rehabilitation.”
It was not, though, within Ms Newman’s remit to change the terms of the Maximum Unit Security Management Plan. The decision she was empowered to make was limited to whether or not the applicant should be subject to an MSO. That power includes the ability, under s 62, to make directions about the extent to which:
(a)a prisoner is to be separated from other prisoners accommodated in the MSU, and
(b)the prisoner is to receive privileges.
Apart from the matters in s 62, the way in which a prisoner the subject of an MSO was treated was not for Ms Newman to determine. But, the nature of the Maximum Security Unit Management Plan – the conditions it imposed and the provision it made for reintegration – was something which she could take into account in making her decision.
The applicant argued that the fact that Ms Newman had not made certain orders or directions demonstrated that the MSO was not lawfully made. I will deal with that below.
When I deal with the decisions and the reasons given for them, I will refer to Ms Newman or the decision-maker rather than the “respondent”. I will refer to the “respondent” when dealing with matters outside Ms Newman’s purview and the general statutory obligations.
Factual background
The applicant is currently imprisoned in the MSU of the Brisbane Correctional Centre. His parole eligibility date is 7 August 2025.
The applicant is serving the following sentences:
#
Sentence
Date Imposed
Parole Eligibility
Offence
Short particulars
1
Life
7 December 2010
7 August 2025
Murder
Killed victim by multiple stab wounds in a “ferocious and sustained attack on a man apparently lying on his bed”.
2
12 months (cumulative on life sentence [#1])
23 May 2011
4 July 2022
Serious assault of working corrective services officer
3
12 months (concurrent with 12 month sentence [#2])
11 August 2011
4 July 2022
Serious assault of working corrective services officer
4
14 years (serious violent offence)
26 May 2014
7 August 2025
Attempted murder
Slashed a corrective services officer four times with a “shiv” (a razor blade connected to paddle pop sticks), including a wound to the neck area.
5
4 years (cumulative on 14 year sentence [#4])
26 May 2014
-
Assault occasioning grievous bodily harm
Bit off a portion of a corrective services officer’s ear.
6
3 years (cumulative on 14 year sentence [#4])
26 May 2014
-
Serious assault
Pushed a corrective services officer.
Since 20 January 2011, the applicant has been classified as maximum security.
On or about 29 January 2013, an MSO was issued against the applicant, pursuant to s 60 of the CSA, on the basis that he posed a high risk of killing or seriously injuring other prisoners or other persons with whom he may come into contact. Since then, the applicant has been issued with consecutive MSOs and has been incarcerated in the MSU since 29 January 2013.
Ms Newman made the MSO Decision on 17 June 2020. The MSO Decision is effective from 18 June 2020 to 16 December 2020. The MSO Decision was made on the ground set out in s 60(2) of the CSA:
“The prisoner is currently classified under the security rating of maximum security and it is believed that—
(ii)There is a high risk of the prisoner killing or seriously injuring other prisoners or persons with whom the prisoner may come into contact.”
Ms Newman made the No Association Decision on the same date (together the MSO Decision and No Association Decision are referred to as “the Decisions”). The No Association Decision provides:
“Associations:
The prisoner is not permitted contact associations with other prisoners in the Maximum Security Unit without approval from the authorised delegate. Any association between maximum Security Unit prisoners must comply with each prisoners’ Maximum Security Unit Management Plan.”
The MSO contained the following terms:
(a)The prisoner is to be accommodated in a single cell within the MSU.
(b)The prisoner is not permitted contact associations with other prisoners in the MSU without approval from the authorised delegate. Any association between MSU prisoners must comply with each prisoner’s Maximum Security Unit Management Plan.
(c)The prisoner is permitted two telephone calls of 10 minutes duration each week.
(d)In accordance with section 4(1)(d) of the Corrective Services Regulation 2017, the prisoner must be given the opportunity to exercise, in the fresh air, for at least two daylight hours a day, unless a doctor or nurse advises that it would not be in the interests of the prisoner’s health to exercise for a stated period or indefinitely. Additional out of cell exercise may be approved by the General Manager in accordance with the Maximum Security Unit Management Plan.
(e)The prisoner is entitled to one non-contact visit per week of one hour duration. Additional non-contact visits may be approved by the General Manager in accordance with the Maximum Security Unit Management Plan.
The applicant requested a statement of reasons on 10 July 2020. He was given the statement on or about 5 August 2020. The reasons were structured in the following way:
(a)Introduction,
(b)Background,
(c)Materials and documents which were considered,
(d)Findings of facts which were considered,
(e)Reasons for the decision to issue a consecutive Maximum Security Order,
(f)Reasons for the decision not to permit contact associations within the MSU.
In those reasons, the decision-maker noted, among other things, that the applicant had remained breach and incident free since the commencement of the previous MSO on 24 December 2019. The decision-maker also observed that the applicant’s last recorded incident was on 10 June 2014 and that this “is a significant period”.
The legislation
Apart from the JRA, the relevant legislation is the CSA and the HRA.
The purpose of the CSA is contained in s 3:
“3 Purpose
(1)The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.
(2)This Act recognises that every member of society has certain basic human entitlements, and that, for this reason, an offender’s entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.
(3)This Act also recognises—
(a) the need to respect an offender’s dignity; and
(b) the special needs of some offenders by taking into account—
(i)an offender’s age, sex or cultural background; and
(ii)any disability an offender has.”
Division 6 of the CSA contains the provisions relating to MSOs. So far as is relevant, they provide:
“60 Maximum security order
(1)The chief executive may make an order (the maximum security order) that a prisoner be accommodated in a maximum security unit.
(2)However, the chief executive may direct that the prisoner be accommodated for the whole or a part of the period for which the maximum security order is in effect in an area in the corrective services facility other than a maximum security unit.
(3)The maximum security order may be made only if—
(a) the prisoner’s security classification is maximum; and
(b) the chief executive reasonably believes that 1 or more of the following apply—
(i) there is a high risk of the prisoner escaping, or attempting to escape;
(ii) there is a high risk of the prisoner killing or seriously injuring other prisoners or other persons with whom the prisoner may come into contact;
(iii) generally, the prisoner is a substantial threat to the security or good order of the corrective services facility.
(4)The maximum security order must not be for a period longer than 6 months.
61Consecutive maximum security orders
(1)The chief executive may make a further maximum security order for a prisoner to take effect at the end of an existing maximum security order.
(2)The further maximum security order must be made not more than 14 days before the end of the existing maximum security order.
(3)However, the chief executive must not make the further maximum security order unless—
(a) not more than 28 days before the end of the existing maximum security order, the chief executive gives written notice to the prisoner advising the prisoner that—
(i)the chief executive is about to consider whether a further maximum security order should be made; and
(ii)the prisoner may, within 14 days after receiving the written notice, make submissions to the chief executive about anything relevant to the decision about making the further maximum security order; and
(b) the chief executive considers any submission the prisoner makes under paragraph (a)(ii).
62Other matters about maximum security order
(1)A maximum security order for a prisoner must include, if it is practicable, directions about the extent to which—
(a) the prisoner is to be separated from other prisoners; and
(b) the prisoner is to receive privileges.
(2)The privileges the prisoner may receive while subject to the maximum security order must be limited to privileges—
(a) that can be enjoyed within the maximum security unit or in the area in which the prisoner is accommodated; and
(b) the enjoyment of which, in the circumstances of the order, may reasonably be expected not to pose a risk to the security or good order of the corrective services facility.
(3)The maximum security order may include directions about the prisoner’s access to programs and services, including training and counselling.
(4)The chief executive may provide for the prisoner’s reintegration into the mainstream prisoner population of the corrective services facility before the period of the maximum security order ends.”
The word “privileges” in s 62(1)(b) is defined as the privileges set out in a regulation. That regulation is the Corrective Services Regulation 2017, in particular, s 18:
“For schedule 4 of the Act, definition privileges, the following are privileges for a prisoner—
(a)participating in an activity, course or program;
(b)making or receiving phone calls, other than phone calls to or from—
(i) the prisoner’s lawyer; or
(ii) the ombudsman;
(c)associating with a particular prisoner or group of prisoners;
(d)using electronic media or an entertainment device;
(e)using a musical instrument;
(f)using library facilities;
(g)buying anything other than essential toiletries, writing materials and stamps;
(h)accessing the prisoner’s property;
(i)receiving a contact visit.”
Grounds of the Application
The applicant’s grounds may be divided into two categories: the judicial review grounds and the human rights grounds.
Judicial Review Application
The applicant’s judicial review application has five grounds:
(a)Ground 1: Natural Justice
(b)Grounds 2 and 3: Unreasonable and Illogical
(c)Ground 4: Relevant and Irrelevant Considerations
(d)Ground 5: Incorrect finding of fact
Human Rights Complaint
The applicant submits that the Decisions breached the following three human rights:
(a)Section 30(1): the right to humane treatment when deprived of liberty.
(b)Section 29: the right to liberty and security of person.
(c)Section 17(b): the protection from torture and cruel, inhuman or degrading treatment, specifically the prohibition on a person being treated or punished in a cruel, inhuman or degrading way.
THE JUDICIAL REVIEW ACT APPLICATION
What must a decision-maker do in order to afford procedural fairness in these circumstances?
In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam,[1] Gleeson CJ said that “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”.[2] That statement was approved by the majority (Hayne, Crennan, Kiefel and Bell JJ) in Assistant Commissioner Condon v Pompano Pty Ltd.[3]
[1](2003) 214 CLR 1.
[2]Ibid at 13-14 [37].
[3](2013) 252 CLR 38 at 99 [156].
A decision-maker must consider the submissions made to it. In Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs,[4] Gummow and Callinan JJ said that a failure to respond “to a substantial, clearly articulated argument relying upon established facts” was a failure to afford natural justice.[5] This was adopted by a unanimous High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia.[6]
[4](2003) 73 ALD 321.
[5]Ibid at 326 [24].
[6](2010) 243 CLR 319 at 356 [90].
The question that flows from that statement is: what will constitute a failure to respond? This was addressed by the Full Court of the Federal Court in Mundele v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[7] where a unanimous court considered a decision of the Administrative Appeals Tribunal (“AAT”) affirming a decision of a delegate of the respondent to revoke the cancellation of a visa. In that case, the appellant had been convicted of serious criminal offences and his visa had been cancelled by reason of him not passing the relevant character test. The question being considered was whether the AAT had considered relevant material.
[7][2020] FCAFC 221 (“Mundele”)
In Mundele, the decision being considered was one made by a tribunal which proceeded on an adversarial basis and where there were documents which set out, more or less, the competing contentions of the parties. That is not the case here. Ms Newman did not proceed upon a clearly defined “case” advanced by a prisoner. The closest to that is a letter from the Prisoners Legal Service (“PLS”) on behalf of the applicant in which arguments are advanced against the making of the orders which were eventually made. Nevertheless, the principles relied upon by the Federal Court are of general application:
(a)it is not necessary for a decision-maker to refer to every piece of evidence and every contention made by an applicant in written submissions,
(b)an administrative body or decision-maker is not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”,
(c)nor is it necessarily required to provide reasons of the kind that might be expected of a court of law,
(d)the inference that a decision-maker has failed to consider an issue may be drawn from a failure to expressly deal with that issue in the reasons,
(e)such an inference should not too readily be drawn whether reasons are otherwise comprehensive, and the issue has at least been identified at some point, and
(f)where there is an issue raised by the evidence advanced on behalf of an applicant and submissions made and that issue, if resolved one way, would be dispositive of the matter, then a failure to deal with it in the reasons may raise a strong inference that it has been overlooked.[8]
[8]Ibid at [46]-[47] per Middleton, Farrell and White JJ.
In considering the matters set out above a court will also bear in the mind that the exercise is not expanded to permit review of the merits.[9]
The Application for Judicial Review
[9]Bruce v Cole (1998) 45 NSWLR 163 at 186 per Spigelman CJ.
Ground 1 – breach of the rules of natural justice
The applicant submits that Ms Newman breached the rules of natural justice within the meaning of s 20(2)(a) of the JRA, by failing to give due and proper consideration to matters set out in the applicant’s submissions.[10] As a result, she breached s 20(2)(c) of the JRA by failing to exercise her jurisdiction to deal with the applicant’s case as presented to her.
[10]See Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at 326 [24] per Gummow and Callinan JJ.
The applicant submits that Ms Newman failed to give due and proper consideration to the submissions made on his behalf by the PLS:
(a)that the applicant’s MSO Management Plan be reviewed,
(b)the review incorporate updated behavioural objectives, including short term and long term goals to facilitate his reintegration from the MSU,
(c)a Pre-Association Assessment Report be completed, and
(d)consideration be given to approving the applicant’s association with another prisoner in the MSU.
The applicant also argues that proper consideration was not given to the expert evidence which called for a reintegration strategy. Dr Madsen, a forensic and clinical psychologist has, since 1 July 2016, consistently recommended that particular measures, relating to the use of restraints and therapeutic psychological sessions, be put in place so as to allow the applicant to progress through the MSU.
This is also supported, says the applicant, by s 63(4) of the CSA as it “indicates a policy in the legislation that reintegration is one of the objectives of maximum security orders”.
Section 63(4) of the CSA provides:
“(4)The chief executive may provide for the prisoner’s reintegration into the mainstream prisoner population of the corrective services facility before the period of the maximum security order ends.”
The applicant also seeks to draw support from the “Prisoner Accommodation Management – Maximum Security Unit” directive issued by the Queensland Corrective Services which provides:
“Reintegration Planning
Planning for a prisoner’s progression back into general prison accommodation must commence upon the prisoner’s arrival at the MSU. Reintegration of a prisoner into general prison accommodation should be undertaken on a staged, progressive basis and in a manner that is consistent with the prisoner's identified coping skills. For example, staged reintegration for a particular prisoner could be facilitated through the prisoner's short term placement in suitable accommodation.”
The applicant submits that the Statement of Reasons “has merely paid lip service to the submissions made by PLS” in relation to the applicant’s short and long term objectives.
The relevant passage of the Statement of Reasons reads “I considered that [the short and long term objectives] did require further review and that suitable behavioural options would be explored in the future…”
The essence of the applicant’s complaint was contained in this submission made during the hearing:
“It is to the content of the directions, including absences or omissions from that decision that most of the grounds are directed. It is not contended that an MSO was not capable of being lawfully made. … It is contended that the MSO containing directions which made no provision for progress towards fewer restraints and possible associations with other prisoners in MSU was not lawfully made. So in one sense, of the complaint – and this is very much goes across most or all of the grounds – is towards that specific aspect of the two orders which was made, rather than an attack on the idea of administrative segregation …”
In the circumstances, the applicant submits that Ms Newman breached the rules of natural justice, within the meaning of s 20(2)(a) of the JRA and failed to exercise her jurisdiction, in breach of s 20(2)(c) of the JRA.
The respondent submits that there has been no ‘practical unfairness’ to the applicant and that this ground is not made out.
The Statement of Reasons discloses the approach taken by the respondent. The following can be drawn from those reasons. Ms Newman:
(a)was aware of the substance of the submissions made on the applicant’s behalf by the PLS – she incorporated them by reference into her reasons,
(b)had written to the applicant about the submissions and invited his views in relation to them and what he saw as “the best way forward” for his progression within the MSU,
(c)had received and considered the applicant’s response,
(d)had taken into account the aspects of the submissions about the applicant’s management and progression with the MSU, and that “further short and long term objectives should be identified and reviewed”, and
(e)concluded, in direct response to the submissions:
(i)the applicant’s short and long term objectives require further review,
(ii)there was no alternative way to adequately manage the applicant’s risk of violence that was less restrictive and reasonably available, and
(iii)the six-month MSO was appropriate to allow for weekly intervention to be facilitated.
The reasons include the following conclusion. After referring to the applicant’s short and long term objectives, Ms Newman said:
“I considered that this did require further review and that suitable behavioural options would be explored in the future through his further engagement in individual intervention and participation in MSU Management Plan Review Panels giving consideration to Mr Owen-Darcy’s views, the recommendations of Dr Madsen and that the safety of staff and others.”
As to the issue of the restrictions – both physical and more generally – on Mr Owen-Darcy’s movement, Ms Newman said:
“I also considered whether there was a less restrictive and reasonably available way to manage prisoner Owen-Darcy’s risk of violence other than a consecutive MSO. I did not believe there was any such alternative available that could adequately manage the risk he would present in the general prison population.”
The particular items set out above, read in conjunction with the rest of the reasons, demonstrate that consideration was given to the matters set out in the applicant’s submissions. There was not a refusal to engage with the submissions made. Within the boundaries of the power delegated to Ms Newman she considered whether or not she could accede to the submissions made by the PLS. The fact that she decided that she could not, does not demonstrate a failure to give the necessary consideration. This ground is not made out.
Grounds 2 and 3 – unreasonable and illogical
The applicant submits that Ms Newman failed to take appropriate procedural steps as part of making the Decisions. It was argued that error was demonstrated because, despite determining that the applicant’s short and long term goals for progression through the MSU ought to be reviewed, no such review was undertaken before the Decisions were made. Similarly, no Pre-Association Assessment Report was obtained before the Decisions were made.
The applicant submits that the No Association Decision was unreasonable and illogical given that:
(a)the applicant had been incident and breach free since 10 June 2014,
(b)Ms Newman acknowledges that the applicant has done everything that has been asked of him,
(c)Dr Madsen describes the applicant’s risk of violence as “low and non-imminent”,
(d)the respondent should be taking all steps necessary to expedite the applicant’s progress and pathway out of solitary confinement,
(e)the applicant is not in a position to provide or prepare his own Pre-Association Assessment Report, nor to set meaningful short and long term goals to progress through the MSU, and
(f)in order to make a proper decision in line with the objects of the CSA[11] and in accordance with the Practice Directive,[12] the respondent should have obtained and given proper consideration to a Pre-Association Assessment Report but did not.
[11]Corrective Services Act 2006, s 3.
[12]Queensland Corrective Services, Custodial Operations Practice Directive: Prisoner Accommodation Management – Maximum Security Unit, 13 December 2019.
In oral submissions, the applicant clarified that his submission about unreasonableness concerned both unreasonableness of outcome (i.e., in the Wednesbury[13] sense) as well as unreasonableness of process. The applicant conceded that this is a high bar, but submitted that the combination of the legislation, administrative documents, the long period of compliance, the objective of reintegration and the failure to take steps to progress the applicant through the MSU satisfies the test. Further, the failure to take appropriate procedural steps, and, specifically, the failure to complete an MSU Pre-Association Assessment Report, was unreasonable and illogical and breached s 23(g) of the JRA in light of the objects of the CSA.
[13]Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (“Wednesbury”).
To be successful on these grounds, the applicant must persuade the court that there is no “evident and intelligible justification”[14] for the Decisions.
[14]Flegg v CMC & Anor [2014] QCA 42 at [3].
The principles which should be applied have been considered in a number of authorities, in particular, Minister for Immigration and Citizenship v Li,[15] Minister for Immigration and Border Protection v Singh,[16] and Minister for Immigration and Border Protection v Stretton.[17] Those principles have been helpfully distilled in Minister for Immigration and Border Protection v SZVFW.[18] In that decision a Full Court of the Federal Court extracted the following principles:
[15](2013) 249 CLR 332 (“Li”).
[16](2014) 231 FCR 437 (“Singh”).
[17](2016) 237 FCR 1 (“Stretton”).
[18](2017) 248 FCR 1.
“[38] …
•there is a legal presumption that a statutory discretionary power must be exercised reasonably in the legal sense of that word (Li at [63] per Hayne, Kiefel and Bell JJ; Singh at [43] per Allsop CJ, Robertson and Mortimer JJ; Stretton at [4] per Allsop CJ and at [53] per Griffiths J);
•nevertheless, there is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness (Li at [66]; Stretton at [56] per Griffiths J);
•the standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker (Li at [66]; Stretton at [8] per Allsop CJ) and [76] per Griffiths J);
•the legal standard of reasonableness is not limited to what is in effect an irrational, if not bizarre, decision and an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified (Li at [68]);
•in determining whether in a particular case a statutory discretion has been exercised unreasonably in the legal sense, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions (Li at [74]; Stretton at [62] and [70] per Griffiths J);
•legal unreasonableness “is invariably fact dependent” and requires a careful evaluation of the evidence. The outcome of any particular case raising unreasonableness will depend upon an application of the relevant principles to the relevant circumstances, rather than by way of an analysis of factual similarities or differences between individual cases (Singh at [48]; Stretton at [10] per Allsop CJ and at [61] per Griffiths J);
•the concept of legal unreasonableness can be “outcome focused”, such as where there is no evident and intelligible justification for a decision or, alternatively, it can reflect the characterisation of an underlying jurisdictional error (Singh at [44]; Stretton at [12]-[13] per Allsop CJ);
•where reasons are provided, they will be the focal point for an assessment as to whether the decision is unreasonable in the legal sense and it would be a rare case to find that the exercise of a discretionary power is legally unreasonable where the reasons demonstrated a justification (Singh at [45]-[47]).”
The decision of the Full Court was reversed by the High Court in Minister for Immigration and Border Protection v SZVFW[19] but not because of any misstatement of the law for these purposes. Nettle and Gordon JJ summarised the nature of the Court’s task in this way:
“[78] The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable.
[79]That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.
[80]Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review.
[81]How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. …”
[19](2018) 264 CLR 541.
In his examination of the task of a court, Gageler J emphasised that whether a decision-maker has exercised a power in a manner which is unreasonable does not depend upon the exercise of any discretion by the primary judge. The analogy drawn between judicial review of administrative action and appellate review of judicial discretion by the Court in Li does not mean that a House v The King[20] error must be established in the context of judicial review of administrative decisions. A court should not interfere with an administrator’s exercise of discretion just because the Court would have exercised the discretion in a different way.[21]
[20](1936) 55 CLR 499.
[21]Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 574 [85]-[86] per Nettle and Gordon JJ.
The evidence which Ms Newman considered included:
(a)The applicant is serving his fourth custodial episode.
(b)The applicant pleaded guilty to murder and was sentenced on 7 December 2010.
(c)The sentencing remarks of Byrne SJA from 7 December 2010 describe the violence of the applicant’s conduct which resulted in a conviction for murder and interference with a corpse, and the lack of remorse on his part for his actions.
(d)The applicant has been classified as maximum security since 20 January 2011.
(e)On 18 January 2013, the applicant, while remaining classified as maximum security, was released into the general prison population as part of an intensive management plan.
(f)On 25 and 27 January 2013, the applicant committed serious assaults, grievous bodily harm and attempted murder. The applicant was sentenced for attempted murder and unlawful wounding.
(g)The sentencing remarks of Boddice J on that occasion note that the attempted murder was “cold, calculated and a callous act”.
(h)The applicant has a significant Queensland criminal history which includes violent offences.
(i)The applicant was assessed as having a “high baseline risk” during the period of his previous MSO.
(j)The applicant has been assessed as having a “psychopathic personality”.
(k)The applicant made a statement to Dr Madsen (a forensic and clinical psychologist) that if he was released to the general prison population, and wanted to return to the MSU, he would engage in violence in order to ensure his return.
(l)Dr Madsen’s report of December 2018 notes that the applicant still posed a high risk of future institutional violence and that the only way to evaluate the applicant’s progress would involve reducing his restrictions and “effectively giving him ‘opportunities’ to harm others”.
Ms Newman referred to the recommendations by Dr Madsen that a long-term strategy be developed, and that the applicant participate in weekly intervention sessions against Dr Madsen’s report of 27 May 2020 which stated that the applicant’s risk of violence had reduced and “could be regarded as low and non-imminent whilst in the [maximum security unit]”. She formed the view that further review of the applicant’s short and long term objectives would be explored in the future through further engagement in individual intervention and participation in the MSU Management Plan Review Panels.
Ms Newman then referred to the applicant’s human rights and weighed them against the human rights of other prisoners and prison staff and considered whether there was a less restrictive and more reasonable way to manage the applicant’s risk of violence. She formed the belief that there was not.
In light of these factors, she concluded:
(a)there remained a high risk of the applicant killing or seriously injuring other prisoners or persons with whom he may come into contact, and
(b)a six-month order was appropriate to allow for the weekly interventions recommended by Dr Madsen.
It was argued for the applicant that there was no relevant history of violence against other prisoners and that, while Ms Newman referred to “serious risk to other prisoners” there was no consideration given to the details of any such incidents, such as when they occurred and whether they did in fact give rise to any actual risk. The argument presented was that notwithstanding the reference by Ms Newman to risk to prisoners there was no actual consideration given to that point. It was also contended that the “key issue under consideration for the decision-maker was finding some way in which to make incremental progress towards the ability to associate with other prisoners”. That is, with respect, not a completely accurate description of the decision-maker’s task. That particular responsibility had not been delegated to her.
The conclusion which was reached can be seen to be drawn from the factors considered. The decision which was made was open to be made on the evidence – it fell within a range of possible, acceptable outcomes.[22] While there was no serious examination of violence to other prisoners, there was the weighty evidence from Dr Madsen on that topic of violence. The applicant complained that the respondent failed to take appropriate procedural steps as part of making the Decisions, that no review was undertaken, and that no Pre-Association Assessment Report was obtained with respect to matters which were outside the authority of the decision-maker. But, as is set out above, some of those steps were beyond the remit of Ms Newman. Apart from that, this was a decision which was rationally open to the decision-maker[23] –there was evidence and other material which was consistent with the conclusion which was drawn. There were matters which had a clear and rational connection with the decision which was reached, e.g., the evidence relating to assessed risk. It cannot be said that the decision was “so unreasonable that it lacked an evident and intelligible justification when all relevant matters were considered”.[24]
[22]Li at 375 [105] per Gageler J.
[23]Ibid at 351-352 [30] per French CJ.
[24]Flegg v CMC & Anor [2014] QCA 42 at [3] per McMurdo P.
This ground is not made out.
Ground 4 – the No Association Decision – failure to take into account relevant considerations and taking into account irrelevant considerations
The basis for deciding whether a decision-maker has either failed to take into account relevant considerations or has taken into account irrelevant considerations was considered by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs.[25]
[25](2003) 236 FCR 593.
I will deal with the “considerations” raised by the applicant although none of them could be said to be dispositive of the matter.
The CSA does not expressly provide for the factors the respondent should consider when making a direction under s 62. The applicant must persuade the Court that the matters he contends the decision-maker failed to consider were, “by implication from the subject-matter, scope and purpose of the Act”, matters the decision-maker was obliged to consider.[26]
[26]Minister for Aboriginal-Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40 per Mason J.
The applicant submits that the No Association Decision comprised improper exercises of power within the meaning of ss 20(2)(e), 23(a) and 23(b) of the JRA in that Ms Newman took into account an irrelevant consideration and failed to take into account relevant considerations.[27]
[27]See Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40.
Relevant Consideration: Last recorded incident
The applicant’s behaviour in the MSU is, it was argued, a critical factor in determining his suitability for association, particularly considering the objects of the CSA[28] and the Custodial Operations Practice Directive – Prisoner Accommodation Management – Maximum Security Unit. The applicant contends that the fact that his last recorded “incident” was on 10 June 2014 was not taken into account.
[28]Corrective Services Act 2006, s 3.
This assertion is not made out. In Ms Newman’s reasons she set out a list of 20 documents which she considered. One of those was the applicant’s “Violation History” between 6 July 2007 and 20 May 2020. It showed that the most recent “incident” was on 10 June 2014. She expressly referred to that and said: “I noted his last recorded incident was on 10 June 2014, which is a significant period”. She also noted that the PLS had submitted that his positive behavioural record over the past five years demonstrated his readiness to progress further in relation to reintegration planning.
The matters referred to in the preceding paragraph were not set out in the section of the Statement of Reasons with the heading “Decision to not permit contact associations within the MSU”. But that is not determinative of this point. The mere format in which reasons are set out does not dictate a conclusion that the absence of a reference to a particular point in one section of the reasons means that particular point was overlooked in another area of consideration.
It is a consequence of the acceptance that reasons of this kind should not be subject to overzealous scrutiny that reference to a matter in one part of a set of reasons may satisfy the requirement that it be shown to have been taken into account. It was put this way in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs:[29]
“[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.” (emphasis added)
[29](2003) 236 FCR 593 at 604-605 per French, Sackville and Hely JJ.
In these reasons Ms Newman has listed a number of findings of fact which she describes as findings of fact she considered when making her decision.
Relevant Consideration: No history of violence against prisoners
The applicant contends that the material relied upon by Ms Newman in making the No Association Decision does not disclose any relevant history of violence by the applicant against other prisoners. He says that his instances of institutional violence have related only to prison staff, not other prisoners. This is relevant as the No Association Decision relates to the applicant’s contact association with other prisoners. Thus, the applicant argues, the lack of any relevant violent offending against prisoners is a consideration which should have been, but was not, taken into account.
There are two reasons to reject this contention by the applicant. First, the mere fact that violence has been inflicted upon one class of person (prison officer) does not, in the absence of other evidence, preclude reliance upon that violence as indicating a capacity for violence more generally. Secondly, the decision-maker had before her evidence (in the applicant’s “Violation History”) that the applicant had been involved in two violations involving a prisoner-on-prisoner assault in 2007 and 2009. That history was referred to, and taken into account, by the decision-maker in her Statement of Reasons. It is true that there is little detail in the record of those offences, in particular, who the instigator was. It is also true that, in Dr Madsen’s latest opinion (May 2020) he says: “My brief assessment suggests that his risk of violence has reduced and at this time in this context could be regarded as low and non-imminent”. He does not, in terms, differentiate between the risk of violence against prison officers and the general prison population. But, if there was an incorrect finding of fact on this point, then it was a finding made within jurisdiction.
Relevant Consideration: Human rights
The applicant argues that, with respect to the No Association Decision, Ms Newman failed to give proper consideration to the applicant’s human rights, that she failed to identify relevant human rights and, although she identified the right to peaceful assembly and freedom of association as a relevant human right, they were not properly considered.
The applicant submits that Ms Newman paid mere lip service to the HRA rather than giving proper consideration to the human rights in question.[30] Furthermore, she did not take into account the right of the applicant, while deprived of his liberty, to be treated with humanity and with respect for the inherent dignity of the human person.[31]
[30]See Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441 at 450 [514]-[515] per Dixon J (“Certain Children (No 2)”).
[31]Human Rights Act 2019, s 30.
The question of the applicant’s human rights and the decision not to permit contact associations with other prisoners in the MSU was dealt with briefly by Ms Newman. She said:
“7.I considered the impact of not permitting contact associations within the MSU on prisoner Owen-D’Arcy’s human rights, particularly, the right to peaceful assembly and freedom of association under the Human Rights Act 2019. As I have stated above, I believed that there was a significant risk of prisoner Owen-D’Arcy killing or seriously injuring other prisoners or persons with whom he may come into contact (persons who also have human rights that I must consider). On that basis, I determined that the limitations on prisoner Owen-D’Arcy’s human rights as a result of the direction to not permit contact associations within the MSU without the approval of the authorised delegate was demonstrably justifiable.”
Section 58 of the HRA is considered in detail below. It requires, among other things, that a decision-maker in Ms Newman’s position must identify “the human rights that may be affected by the decision” and consider “whether the decision would be compatible with human rights”. Ms Newman only identified the right to peaceful assembly and freedom of association which is contained in s 22 of the HRA. The reference to “prisoner Owen-D’Arcy’s human rights” does not satisfy the requirements of s 58. It cannot be the case that all the rights provided for in the HRA are rights that “may be affected by the decision”. For example, the No Association Decision would not affect the right to be free from forced work (s 18).
Ms Newman did not address rights which might be affected by the decision such as those provided for in s 17(b)[32] or s 30.[33] No consideration was given to them and whether the decision would be compatible with them. The consideration which was given to the rights identified by Ms Newman was superficial at best.
[32]The right not to be treated or punished in a cruel, inhuman or degrading way.
[33]The right to be treated with humanity and respect for the inherent dignity of the human person when otherwise deprived of liberty.
Ms Newman failed to take into account a relevant consideration, namely, the effect of the No Association Decision on the applicant’s human rights. The appropriate order to recognise that failure will be considered below.
Irrelevant Consideration: Self-reporting
The applicant submits that Ms Newman considered and placed weight on the applicant’s self-reporting to Dr Madsen which he recorded as: “you are uncertain how you will cope with reintegration and you verbalised some apprehension about how you would respond to sharing a cell or being in overcrowded circumstances for long periods”. The applicant submits that:
(a)this is irrelevant because the contact associations contemplated in the No Association Decision decision-making process are one-on-one contacts between prisoners designed to be an incremental step towards reintegration, and
(b)whether or not the applicant has expressed uncertainty as to how he will respond to being in a crowded place, is irrelevant to whether the applicant should be permitted to associate with another prisoner in the MSU.
I do not accept that an expression of doubt by the applicant as to his capacity to cope with reintegration – of any kind – is irrelevant to the consideration needed to be undertaken. While it may not be a compelling factor, it is nonetheless relevant that the applicant had expressed that level of concern.
Ground 5 – error of law – incorrect finding of fact
The Statement of Reasons contains a finding of fact that the applicant had an extensive history of problematic institutional behaviour, including “threatening and violent behaviour towards staff and other prisoners”.
The applicant submits that this finding was given significant weight, as Ms Newman concluded that there was a high risk of the applicant “killing or seriously injuring other prisoners or persons with whom he may come into contact … On that basis, I determined that the limitations on prisoner Owen Darcy’s [sic] human rights as a result of the direction not to permit contact associations within the MSU without the approval of the authorised delegate was demonstrably justifiable”.
So far as the possibility of the applicant being violent towards other prisoners is concerned, the only evidence of actual violence that might support this finding are the notes in the applicant’s violation history of two “incidents” of “Assault – Prisoner on prisoner” on 3 August 2007 and 1 March 2009. The entries do not specify whether the applicant was the perpetrator or otherwise involved.
The applicant argues that the finding of fact was incorrect and, in the circumstances where there was either no or insufficient evidence to reach the conclusion, an error of law.
Where a decision-maker decides a question of fact when there is “no evidence” in support of the finding then that is an error of law.[34] What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law.
[34]Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 [91] per Hayne, Heydon, Crennan and Kiefel JJ.
The respondent submits that the finding about the applicant’s problematic institutional behaviour, including “threatening and violent behaviour towards staff and other prisoners”, was open on the evidence.
I am satisfied that there was evidence which supported that finding. I accept that the notes on the applicant’s violation history are ambiguous, but there was the evidence of the applicant’s behaviour towards prison staff and there were the detailed opinions provided over a number of years by Dr Madsen. In 2016 he said that the applicant was “a high risk of future violence”. In 2017, he noted that the applicant acknowledged that, if he should be reintegrated to the mainstream and then wished to return to the MSU, then he would be violent in some way to facilitate this. Dr Madsen further said that it was difficult to be confident regarding the applicant’s true risk and that it would likely be very high in some circumstances. In 2018, Dr Madsen said: “Little has changed with regards to my opinion of prisoner Owen-D’Arcy’s risk, in that, he continues to be a high risk of future institutional violence”. Finally, in 2020, Dr Madsen observed a change sufficient for him to note that his “brief assessment suggests that [the applicant’s] risk of violence has reduced and at this time in this context could be regarded as low and non-imminent”.
There was evidence relevant to an assessment of the risk presented by the applicant to both prison staff and prisoners. Apart from the final report in 2020, the opinion presented by Dr Madsen was consistent. If the decision-maker did err in the conclusion she reached on this point, then it was an error made within jurisdiction and not one which permits a review of the kind sought by the applicant.
Conclusion on the application for judicial review
The applicant has succeeded on one of the grounds relied upon. The application for judicial review of the No Association Decision succeeds to that extent.
THE HUMAN RIGHTS ACT APPLICATION
The parties agree that the respondent is a “public entity” within the meaning of s 9(1)(b) of the HRA and that Ms Newman in exercising delegated power was required to comply with s 58(1) of the HRA. The applicant submits that the Decisions were unlawful for the purposes of s 58(1)(a) of the HRA because they were incompatible with the applicant’s human rights.
The Attorney-General and the Queensland Human Rights Commission (“QHRC”) intervened in this part of the application pursuant to the rights granted by s 50 and s 51 of the HRA. The Chief Executive adopted the submissions made by the Attorney-General.
A complaint is made – how should it be analysed?
When a person in the applicant’s position alleges that the HRA has been breached, then there are certain issues that fall to be determined. Some situations will call for more intensive examination of some issues. The considerations include:
(a)Identification of the decision and the reasons, if any, given for making it.
(b)Identification of any human rights which are relevant to the decision.
(c)Determining whether the applicant has shown that the decision limits those human rights. If that is done, then –
(i)Has the respondent shown that the limits are reasonable: s 13?
(d)Has the respondent made a decision in a way that is not compatible with human rights: s 58(1)(a)?
(e)In making the decision has the respondent failed to give proper consideration to relevant human rights: s 58(1)(b)?
(i)Has the respondent identified the human rights that may be affected by the decision: s 58(5)(a)?
(ii)Has the respondent considered whether the decision would be compatible with human rights: s 58(5)(b)?
Some of these issues may overlap, in particular, that of incompatibility.
The legislation
The obligations of the respondent are set out in s 58:
“58 Conduct of public entities
(1)It is unlawful for a public entity—
(a) to act or make a decision in a way that is not compatible with human rights; or
(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.
…
(5)For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—
(a) identifying the human rights that may be affected by the decision; and
(b) considering whether the decision would be compatible with human rights.
(6)To remove any doubt, it is declared that—
(a) an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and
(b) a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).”
The term “compatible with human rights” is defined in s 8:
“8 Meaning of compatible with human rights
An act, decision or statutory provision is compatible with human rights if the act, decision or provision—
(a)does not limit a human right; or
(b)limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.”
Section 59 deals with the relief or remedy which might be available:
“59 Legal proceedings
(1)Subsection (2) applies if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58, unlawful.
(2)The person may seek the relief or remedy mentioned in subsection (1) on the ground of unlawfulness arising under section 58, even if the person may not be successful in obtaining the relief or remedy on the ground mentioned in subsection (1).
(3)However, the person is not entitled to be awarded damages on the ground of unlawfulness arising under section 58.
(4)This section does not affect a right a person has, other than under this Act, to seek any relief or remedy in relation to an act or decision of a public entity, including—
(a) a right to seek judicial review under the Judicial Review Act 1991 or the Uniform Civil Procedure Rules 1999; and
(b) a right to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or an exclusion of evidence.
(5)A person may seek relief or remedy on a ground of unlawfulness arising under section 58 only under this section.
(6)Nothing in this section affects a right a person may have to damages apart from the operation of this section.”
The parties agree that the requirements of the “piggy-back” provision of s 59 are satisfied. The Attorney-General submits that s 59 cannot be used to review an act or decision other than the decisions made by Ms Newman.[35] The applicant does concentrate some of his submissions on the “failure” by the respondent to require or to obtain an MSU Pre-Association Assessment Report. As has been referred to above, this was not something which Ms Newman could do.
[35]Goode v Common Equity Housing [2014] VSC 585 at [44]-[45] per Bell J; Innes v Electoral Commission of Queensland [No 2] [2020] QSC 293 at [276] per Ryan J.
While the HRA cannot be used to deal with a decision which is not the subject of the judicial review application, the failure or omission, for example, to obtain a particular report or to engage in a defined regime of treatment is part of the background which can be taken into account when considering whether or not the respondent has correctly applied the provisions of the HRA. All the circumstances of the applicant’s detention form part of the basis upon which consideration commences and continues.
The particular rights expressed in the HRA which the applicant says have been breached by the respondent are:
“17 Protection from torture and cruel, inhuman or degrading treatment
A person must not be—
(a)subjected to torture; or
(b)treated or punished in a cruel, inhuman or degrading way; or
(c)subjected to medical or scientific experimentation or treatment without the person’s full, free and informed consent.
…
29Right to liberty and security of person
(1) Every person has the right to liberty and security.
(2) A person must not be subjected to arbitrary arrest or detention.
(3) A person must not be deprived of the person’s liberty except on grounds, and in accordance with procedures, established by law.
(4) A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against the person.
(5) A person who is arrested or detained on a criminal charge—
(a)must be promptly brought before a court; and
(b)has the right to be brought to trial without unreasonable delay; and
(c)must be released if paragraph (a) or (b) is not complied with.
(6) A person awaiting trial must not be automatically detained in custody, but the person’s release may be subject to guarantees to appear—
(a)for trial; and
(b)at any other stage of the judicial proceeding; and
(c)if appropriate, for execution of judgment.
(7) A person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of the person’s detention, and the court must—
(a)make a decision without delay; and
(b)order the release of the person if it finds the detention is unlawful.
(8) A person must not be imprisoned only because of the person’s inability to perform a contractual obligation.
30Humane treatment when deprived of liberty
(1) All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
(2) An accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, unless reasonably necessary.
(3) An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.”
Limitations on rights and proportionality
The rights conferred by the HRA are not absolute. Section 13 provides:
“13 Human rights may be limited
(1)A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
(2)In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
(a) the nature of the human right;
(b) the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
(c) the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
(d) whether there are any less restrictive and reasonably available ways to achieve the purpose;
(e) the importance of the purpose of the limitation;
(f) the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
(g) the balance between the matters mentioned in paragraphs (e) and (f).”
The cognate provision in the Charter of Human Rights and Responsibilities Act 2016 (Vic) (“the Victorian Charter”) is s 7. It has been held to embody a proportionality test.[36] Section 13 should be regarded likewise. So much was the intention of the Attorney-General in her first reading speech when the Human Rights Bill 2018 was introduced. She said:
“Clause 13, the general limitations clause, sets out the factors that may be relevant in deciding whether a limit on a human right is reasonable and justifiable. While these factors are only a guide, they are intended to align generally with the principle of proportionality, a test applied by courts in many other jurisdictions to determine whether a limit on a right is justifiable.”[37]
[36]Momcilovic v R (2011) 245 CLR 1 at [22], [34] per French CJ, [432] per Heydon J, [555]-[557] per Crennan and Kiefel JJ.
[37]Queensland, Parliamentary Debates, Legislative Assembly, 31 October 2018, 3185 (Yvette D’Ath, Attorney General and Minister for Justice).
Section 13(1) provides that “A human right may be subject under law only to reasonable limits that can be demonstrably justified …”. Section 13(2) uses the words “reasonable and justifiable” when listing those factors which might be relevant to the issue of whether a limitation on rights can be effective. These are terms similar to those used in s 7 of the Victorian Charter. Section 13(1) of the HRA is relevantly indistinguishable from the first paragraph of s 7(2) of the Victorian Charter.
The effect and operation of s 7 of the Victorian Charter was considered by Warren CJ in Re Application under the Major Crimes (Investigative Powers) Act 2004.[38] Section 39 of the Major Crimes (Investigative Powers) Act 2004 (Vic) abrogated the privilege against self-incrimination in certain circumstances. An order had been made concerning the circumstances in which a particular class of individual would not be summoned to give evidence until determination of a particular question was resolved. Warren CJ considered whether s 39 of that statute constituted a reasonable limit that could be demonstrably justified by reference to s 7 of the Victorian Charter. She said:
“[144] … Section 7 provides the criteria by which a limitation on rights might be justified. Hence, limitations on rights are permissible only when limited in accordance with s 7. The question then becomes: is the limitation on the right against self-incrimination as guaranteed by ss 24(1) and 25(2)(k) of the Charter “demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors?” (emphasis added)
[38](2009) 24 VR 415.
Her Honour went on to say:
“[145] A free and democratic society is the fundamental hallmark of our system of governance and way of life. Notions of the ‘public interest’ stem from notions of what is best for a free and democratic society. I find I am assisted by the remarks of Dickson CJ in Oakes:[39]
‘The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.”[40]
[39]R v Oakes [1986] 1 SCR 103.
[40]Ibid at 136 [40].
On the question of onus and the standard of proof when considering s 7 of the Victorian Charter, the following may be drawn from what Warren CJ said:[41]
(a)the onus of demonstrably justifying a limitation in accordance with s 7 resides with the party seeking to uphold the limitation,
(b)given what is required to be justified, the standard of proof is high,
(c)it requires a “degree of probability which is commensurate with the occasion”,[42] and
(d)the issue for the Court is to balance the competing interests of society, including the public interest, and to determine what is required for a person to obtain or retain the benefit of the rights recognised or bestowed by the statute.
[41]Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415 at 448-449 [147].
[42]See Bater v Bater [1951] P 35 at 37 per Denning LJ.
I was also referred to the position, broadly speaking, in Europe. While that is informative, it does not assist when considering the common law position in Queensland.
On that point, the Attorney-General argued that a construction of s 29 similar to the approach taken in Canada might inadvertently alter the common law of habeas corpus. It was argued that the HRA was not intended to alter the common law and that, because there is “but one common law in Australia”[133] the HRA should not be construed in a way that might appear to effect such a change.
[133]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
The Attorney-General also argued, as a matter of construction, that s 29 should not be construed to include “residual liberty”. It was argued that s 29 is only directed towards deprivation of liberty rather than treatment after such deprivation. Section 29 was contrasted with s 30 which concerns itself with the right to humane treatment when a person is deprived of liberty. It was also argued that the specific provisions of s 30 should prevail over the more general safeguards in s 29. This is an argument often mounted on the basis that, where a statute provides specifically for a particular matter, then that specific provision is to be used rather than a more general provision which might be read to include such a matter.[134]
[134]See, e.g., Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1.
For the purposes of this application, I prefer the reasoning of the New Zealand Court of Appeal in Bennett. The availability of judicial review is made obvious by this application. Further, s 29(7) provides that a court, where satisfied that detention is unlawful, must order the release of the person. The construction urged by the applicant would require one of two things. First, it could require that a person unlawfully detained – through the deprivation of residual liberty – be released from the prison. That only needs to be stated for it to be seen to be unacceptable. Secondly, it could require that the Court engage in an assessment of various levels of imprisonment and determine which is most appropriate for a particular prisoner. It could require that a court order that a prisoner be released from the MSU into the general prison population. That goes far beyond what I understand to be the purposes of s 29. It would place a court squarely in the position of substituting its decision for that of the relevant authority. And that would mean that the Court would be exercising a substitutionary and not a supervisory power.[135] That is not the role of the court under the HRA. It follows, then, that s 29 has not been engaged.
[135]Patrick’s Case.
Section 30 – humane treatment when deprived of liberty
Section 30 applies to persons who have been deprived of their liberty. Section 30(1) provides that:
“All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.”
This section is, according to the Explanatory Note, modelled on art 10(1) of the ICCPR. A similar provision in the New Zealand Bill of Rights Act 1999 (NZ) was held to protect the person, who had been deprived of liberty, from conduct that lacked humanity but fell short of being cruel; or which demeaned the person, but not to an extent which is degrading; or which was clearly excessive but not grossly so.[136]
[136]Taunoa v Attorney-General [2008] 1 NZLR 429 at 501-502 [177] per Blanchard J.
Section 30(1) is identical with s 22(1) of the Victorian Charter. Victorian authorities have recognised that the right in the section is relevant whenever prisoners are “subjected to hardship or constraint other than the hardship or constraint that results from the deprivation of liberty”.[137] This is consistent with the principle that people are sentenced to imprisonment in a jail as punishment, not for punishment.
[137]Castles at 169 [108] per Emerton J.
The Attorney-General accepts that it is relevant to have regard to the Mandela Rules (which are set out above) while bearing in mind that they do not purport to set a minimum standard. Those rules, so far as is relevant to s 30, proscribe indefinite solitary confinement and prolonged solitary confinement. In those rules, “solitary confinement” means “confinement of prisoners for 22 hours or more a day without meaningful human contact”, and “prolonged solitary confinement” means “solitary confinement for a time period in excess of 15 consecutive days”.
In her written submissions, the Attorney-General also accepts that the right to humane treatment when deprived of liberty in s 30(1) is limited. The applicant is subject to hardship or constraint beyond the hardship or constraint that all prisoners experienced by virtue of being deprived of their liberty. Further, although the applicant has some interaction with other people, that interaction is unlikely to rise to the level of “meaningful human contact” within the meaning of that term as it appears in the Mandela Rules.
This section has been engaged by the applicant in his evidence.
The matters which are relevant to consideration of this section include:
(a)the nature of the confinement,
(b)the applicant has been in this form of confinement since January 2013,
(c)the last recorded adverse incident involving the applicant was in June 2014,
(d)Dr Madsen has repeatedly recommended from 1 July 2016 that the applicant be subject to lesser restraints and weekly therapeutic interventions,
(e)Ms Newman has acknowledged that the applicant has “done everything that has been asked of him”,
(f)the applicant remains subject to the most serious level of physical restraints, and
(g)notwithstanding submissions made on his behalf, the applicant has not been provided with an MSU Pre-Association Assessment Report.
In addition to those matters, it is important to note that the applicant has not been provided with any advice as to how he might behave in order to have these conditions changed or removed. He has not been provided with any indication that his situation might improve, and, in the current circumstances, he could only reasonably foresee that nothing will change.
Has the respondent satisfied the onus of demonstrating that the limitation was justified?
The respondent must demonstrate that the limitation is justified. The standard of proof is high and requires a degree of probability commensurate with the occasion.
In considering that matter the factors set out in s 13(2) should be addressed.
The nature of the human right: Section 30 requires that persons deprived of liberty be treated with humanity and with respect for the inherent dignity of the human person. It might have been better expressed by saying that category of person should be “treated humanely” but the decisions on this point all regard the expressions as being the same. To be treated humanely requires some level of benevolence or compassion and the infliction of the minimum of pain. In Castles,[138] it was accepted that the starting point for analysing the scope of this right should be that persons who are detained must not be subject to hardship or constraint other than that which results from the deprivation of their liberty. A necessary consequence of deprivation of liberty is that some rights enjoyed by other citizens will be unavailable or compromised.
[138](2010) 28 VR 141.
The nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom. The purpose of the imposition of the Decisions was, in the decision-maker’s words, to manage the applicant’s “risk of violence towards other persons, including other prisoners and Corrective Services Officers”. Orders of this nature are consistent with the protection of other people’s rights and, subject to some matters which will be dealt with below, conceded by the applicant to have that purpose.
The relationship between the limitation and it purpose including whether the limitation helps to achieve the purpose. This factor concerns whether there is a rational connection, that is, whether the limitation is rationally capable of achieving its intended purpose. That connection was not the subject of contention.
Whether there were any less restrictive and reasonably available ways to achieve the purpose. Ms Newman, in her reasons concerning the issuing of a consecutive MSO said:
“22.I also considered whether there was a less restrictive and reasonably available way to manage prisoner Owen-D’Arcy’s risk of violence other than a consecutive MSO. I did not believe there was any such alternative available that could adequately manage the risk he would present in the general prison population. On that basis, I considered that the limitations imposed on prisoner Owen-D’Arcy’s human rights were demonstrably justified. I considered and strongly weighted the impact on others should prisoner Owen-D’Arcy engage in similar levels of violence that he has already demonstrated in the future.”
In the Attorney-General’s written submissions the onus is sought to be reversed on this point. It was argued that where the applicant was unable to point to another way of addressing the applicant’s risk of harming others, which would have a lesser impact on his human rights, it was enough to conclude that the decisions were necessary to achieve their purposes. It is not for the applicant to provide solutions; it is for the respondent to explain why there is no reasonable alternative.
In reaching her conclusion, Ms Newman does not provide any basis for her belief that no such alternative was available that could adequately manage the risk. The burden on the respondent is a heavy one and cannot be discharged simply by the decision-maker reciting that he or she held a particular belief without providing any basis for that belief. Evidence of alternatives to solitary confinement has been given in other jurisdictions, for example, in McCann v The Queen.[139] In that case, the court accepted expert evidence that adequate alternatives existed which would remove the cruel and unusual aspects of solitary confinement, while at the same time achieving the necessary safety and security goals of dissociation.
[139](1975) 68 DLR (3d) 661 (FCTD).
Balancing the importance of the purpose of the limitation and the importance of preserving the human right, taking into account the nature and extent of the limitation. The Attorney-General acknowledges that the burden on the applicant’s human rights is deep. But, it was submitted, the extent of the limit is mitigated by the fact that the decisions are only effective for six months. It was further submitted that there was a possibility of reintegrating the applicant into the mainstream population before the end of the six-month period.
It is, of course, important to balance the rights of others – the protection of their security and their life should weigh heavily in that balance. The decision-maker, though, cannot escape from consideration of the continuing failure to take up, in any meaningful sense, the reasoned recommendations of Dr Madsen. These are matters which, at the time of making the decision, should also have weighed heavily. While it was not for Ms Newman to implement these recommendations, she should have taken into account (or given weight to) the fact that Dr Madsen’s recommendations had fallen on deaf ears and that his proposals appeared to have little prospect of implementation.
Another matter of particular importance which, while acknowledged in passing by Ms Newman, does not appear to have been given enough (if any) weight is that the making of these decisions was not just for six months. It was for a further six months – on top of the more than seven years of MSOs which preceded the Decisions. Ms Newman does not appear to have given any or any sufficient weight to the fact that the Decisions extended a period of solitary confinement which had commenced in January 2013. The limitation was not, in that sense, just for six months. The total effect of the extension, i.e., the total length of solitary confinement, should have been considered. To do otherwise merely pays lip service to the necessary consideration of the effect on the applicant of the Decisions.
The importance of taking into account the total length of time that a prisoner is in solitary confinement was implicit in the reasoning of the European Court of Human Rights (“ECHR”) in Razvyazkin v Russia[140] where the Court referred to the 21st General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment:
“[89] … any further restriction of a prisoner’s rights must be linked to the actual or potential harm the prisoner has caused or will cause by his or her actions (or the potential harm to which he/she is exposed) in the prison setting. Given that solitary confinement is a serious restriction of a prisoner’s rights which involves inherent risks to the prisoner, the level of actual or potential harm must be at least equally serious and uniquely capable of being addressed by this means. ... The longer the measure is continued, the stronger must be the reason for it and the more must be done to ensure that it achieves its purpose.”
[140][2012] ECHR 1364 (“Razvyazkin”).
That principle was applied by the ECHR:
“101. In order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner’s circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling the more time goes by. Furthermore, such measures, which are a form of ‘imprisonment within the prison’, should be resorted to only exceptionally and after every precaution has been taken. A system of regular monitoring of the prisoner’s physical and mental condition should also be set up in order to ensure its compatibility with continued solitary confinement.”
A set of circumstances which bear some similarity to the present case was considered by the Supreme Court of the United Kingdom in Shahid v Scottish Ministers.[141] Shahid had abducted and murdered a 15-year-old boy. In 2005 he was placed in segregation, for his own protection, while he was held on remand. After conviction he was again placed in segregation and orders were made which resulted him remaining in that state until 2010.
[141][2016] AC 429.
Lord Reed (with whom all the other justices agreed) referred to the passage from Razvyazkin set out above after saying:
“[74] There is no doubt that the appellants case presented the SPS management with a very difficult problem. Nevertheless, they had to apply their minds to find an appropriate solution. In view of the length of the appellants segregation, a rigorous examination is called for by the court to determine whether the measures taken were necessary and proportionate compared with practicable alternative courses of action.” (emphasis added)
The onus upon the respondent in a case like this was emphasised by Lord Reed when he discussed the alternatives which might have been available for the treatment of Shahid:
“[86] It is however unnecessary to speculate about these and other possibilities. What is apparent is that no meaningful plan was devised until a very late stage. It is for the ministers to establish that the appellants segregation for 56 months was proportionate. In my judgment, in the absence of any evidence that serious steps were taken by the SPS management to address the issues arising from his segregation until four and a half years after it had begun, they have failed to do so.” (emphasis added)
I bear in mind what was said by Lord Bingham in R (SB) v Governors of Denbigh High School:[142]
“ … it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. … There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v First County Trust Ltd (No 2). Proportionality must be judged objectively, by the court: R (Williamson) v Secretary of State for Education and Employment.” (emphasis added, citations omitted)
[142][2007] 1 AC 100.
By not taking the factors referred to above into account, Ms Newman failed to balance the importance of the purpose of the limitation and the importance of preserving the human right.
Were the Decisions unlawful in the s 58 sense?
For the reasons given with respect to the application of s 30 of the HRA, the respondent’s decision to issue an MSO was not compatible with human rights (s 58(1)(a)) and, therefore, was unlawful.
Ms Newman also failed to satisfy the procedural limb of s 58. So far as is relevant, she said the following with respect to her decision to issue a consecutive MSO:
“21.With regard to the impact of prisoner Owen-Darcy’s human rights in deciding to issue a consecutive MSO, I considered the impacts of such an order on his human rights, including (but not limited to) the right to liberty and security of person, right to humane treatment when deprived of liberty and the right to protection from torture, cruel, inhuman or degrading treatment under the Human Rights Act 2019. I balance those identified human rights against prisoner Owen-Darcy’s risk of violence towards other persons, including other prisoners and Corrective Services Officers (who also have a recognised human rights under the Human Rights Act 2019 that I am required to consider).
22.I also considered whether there was a less restrictive and reasonably available way to manage prisoner Owen-Darcy’s risk of violence other than a consecutive MSO. I did not believe there was any such alternative available that could adequately manage the risk he would present in the general prison population. On that basis, I considered that the limitations imposed on prisoner Owen-Darcy’s human rights were demonstrably justified. I considered and strongly weighted the impact on others should prisoner Owen-Darcy engage in similar levels of violence that he has already demonstrated in the future.” (emphasis added)
With respect to her decision not to permit contact associations within the MSU, Ms Newman said:
“7.I considered the impact of not permitting contact associations within the MSU on prisoner Owen-Darcy’s human rights, particularly, the right to peaceful assembly and freedom of association under the Human Rights Act 2019. As I have stated above, I believed that there was a significant risk of prisoner Owen-Darcy killing or seriously injuring other prisoners or persons with whom he may come into contact (persons who also have human rights that I must consider). On that basis, I determined that the limitations on prisoner Owen-Darcy’s human rights as a result of the direction to not permit contact associations within the MSU without the approval of the authorised delegate was demonstrably justifiable.” (emphasis added)
The No Association Decision is as much a part of solitary confinement or segregation as the MSO. It is not a physical isolation, but it works to prevent the applicant from engaging in any meaningful conversations or exchanges. It places him in a cocoon of isolation from all but the slightest interaction with other human beings.
The rights associated by Ms Newman on this point – the right to peaceful assembly and freedom of association – are relevant. But the No Association Decision also engages (at least) s 30 and this was not considered. Section 58(5)(a) requires that the rights be identified. It is not enough to say: “I considered the impact of not permitting contact associations within the MSU on prisoner Owen-D’Arcy’s human rights, particularly, the right to peaceful assembly and freedom of association under the Human Rights Act 2019”. The rights must be identified if they “may” be affected by the decision. This was not done.
Ms Newman satisfied s 58(5)(a) by identifying the human rights that “may be affected” by the MSO but, for the reasons given above, not the No Association Decision. She could not, then, have been able to give proper consideration to a human right relevant to that decision. The treatment of this important part of the decision-making process fails to satisfy the first, second and fourth parts of the test proposed in Bare. The effect of that failure is to render the No Association Decision unlawful.
Orders
I will hear the parties on the appropriate form of orders which reflect these reasons.
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