Phillip Andrew Barber v Director General of Department
[2014] ACTSC 39
•7 February 2014
HUMAN RIGHTS ACT
PHILLIP ANDREW BARBER v DIRECTOR GENERAL OF DEPARTMENT
OF JUSTICE AND COMMUNITY SAFETY DIRECTORATE
[2014] ACTSC 39 (7 February 2014)
ADMINISTRATIVE LAW – Judicial Review Legislation – Judicial review does not allow the courts to re-make the decision – Judicial review can only decide the legality of an administrative decision – The power to grant a remedy of judicial review is discretionary – Decision unable to be altered effectively due the event having passed – Grant of relief declined – Application dismissed
Administrative Decisions Judicial Review Act 1989 (ACT), ss 5, 13
Corrections Management Act 2007 (ACT), ss 7, 9, 204
Human Rights Act 2004 (ACT), s 19
Judicial Review of Administrative Action (2013, 5th ed, Lawbook Co: Sydney) 301
Attorney-General of New South Wales v Quinn (1990) 170 CLR 1
Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404
Lamb v Moss (1983) 76 FLR 296
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Pilbara Investments Pty Ltd v Australian Competition Tribunal [2012] HCATrans 52
Shields v Overland (2009) 26 VR 303
X v United Kingdom (1972) 15 YB 370
X v United Kingdom (1973) 42 CD 140
EX TEMPORE JUDGMENT
No. SC 60 of 2014
Judge: Refshauge J
Supreme Court of the ACT
Date: 7 February 2014
IN THE SUPREME COURT OF THE )
) No. SC 60 of 2014
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:PHILLIP ANDREW BARBER
Applicant
AND:DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY DIRECTORATE
Respondent
ORDER
Judge: Refshauge J
Date: 7 February 2014
Place: Canberra
THE COURT ORDERS THAT:
The application be dismissed.
Phillip Andrew Barber is a sentenced prisoner. On 29 October 2013, Murrell CJ imposed a term of five years and three months’ imprisonment for eight offences, including serious offences of aggravated robbery committed while he was armed with a knife. On 23 January 2014, his wife of thirteen years died. He and his wife had five children together, aged between five and twelve years. The funeral of Mr Barber’s wife is to take place today. He applied under s 204 of the Corrections Management Act 2007 (ACT) for leave to attend the funeral. He would, of course, be escorted to funeral, he would be taken in handcuffs and may have to remain in handcuffs throughout the funeral.
His request, however, was denied. On the request form, the comment was made, “Request denied, detainee has been inform [sic] mother of deceased has refused request from detainee Barber to attend”. Mr Barber has now made application for judicial review under the Administrative Decisions Judicial Review Act 1989 (ACT) (the Judicial Review Act) of that decision. The challenge comes very late; there are reasons for that but it makes for significant difficulties.
One of the fundamental issues is that I cannot make the decision even were I to disagree with it. The only function of a court under the Judicial Review Act is to consider whether the requirements for good and legal decision-making as exemplified in the grounds set out on s 5 of that Act have been complied with and not the merits of the decision. See Attorney-General of New South Wales v Quinn (1990) 170 CLR 1 at 36. Thus my task is not to decide whether the decision to refuse Mr Barber permission to attend his wife’s funeral is right or wrong, but to decide on the legality of that decision.
The Timing
It is appropriate to refer briefly to the timing of these proceedings. As I have noted, Mr Barber’s wife, Kaylene Barber, died on 23 January 2014. On the same day, Mr Barber applied for permission to attend the funeral. At that time, the date and time of the funeral were not known. The time of the funeral was, in fact, still not known at the time of the hearing of these proceedings yesterday, though I was informed this morning that it took place at 11:00 am, that is, it commenced about half an hour ago.
The decision to refuse Mr Barber leave was apparently made on 31 January 2014. Mr Barber was informed on 2 February 2014. I am not advised as to what caused that delay. He applied for a grant of legal assistance from Legal Aid (ACT). That was granted, but, because the application was in the civil jurisdiction of the Court, a filing fee was required and an extension of aid had to be sought, and was granted, on 5 February 2014. The application was filed on 6 February 2014 and served on the defendant at about 11:35 am and on that party’s solicitors at about midday.
The Facts
Mr Barber has a long criminal history. While most of his offences are traffic or dishonesty offences, he has more recently been convicted of offences involving weapons, including prohibited firearms and knives. He has, as I have noted above (at [1]), most recently been sentenced to a lengthy term of imprisonment for a series of serious offences, three involving a knife. He and his deceased wife were married for thirteen years; it was said, however, that they are estranged. I did not have further details of that.
In 2012, Mr Barber was involved as a passenger in a motor vehicle collision when a car which his wife was driving collided with a bus. He was admitted to hospital with serious injuries, which required significant surgery. He and his deceased wife were both heroin users and the offences for which Mr Barber were convicted were said to have allegedly have been committed together with his wife. I have noted that Mr Barber was sentenced to imprisonment for five years and three months from 12 June 2013 with a non-parole period ending on 11 December 2016.
The Application
The application for judicial review set out five grounds as follows:
That a breach of the rules of natural justice has happened.
That an improper exercise of the power has occurred, in that the power was exercised
Taking into account an irrelevant consideration;
Failing to take into account a relevant consideration;
Acting at the direction or behest of another person; and
So unreasonably that no reasonable person would have so exercised the power.
The breach of natural justice was based on the fact that Mr Barber was not told of the attitude of his mother‑in‑law and invited to comment on it and make any submissions that he may have wished about her attitude or the circumstances that this would involve at the funeral. It was submitted, for example, that there may have been a family member who may have been able to negotiate with Mr Barber’s mother‑in‑law to resolve the situation and I will address that below.
Their relevant consideration was said to be the attitude of his mother-in-law, which it was submitted should have played no part in the consideration of his application for leave. I reject that contention. As pointed out by Mr N Hancock, who appeared for the Defendant, a statutory purpose imposed on correctional services is that they be managed to achieve the objects of the Corrections Management Act, which include that detainees are treated in a decent, humane and just way, and one of which was
ensuring that public safety is the paramount consideration in decision making about the management of detainees.
The statute is important, for it sets the bounds around the considerations that are relevant and irrelevant, thus, as Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39
The ground of failure to take account of a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision.
The same reasoning applies to the ground of taking into account irrelevant considerations; it must be in the terms of the relevant statute a consideration that the decision maker is forbidden to take into account.
Given the statutory obligations, it is difficult to see why the attitude of the person organising the funeral would not be very relevant to issues of public safety.
The relevant considerations were said to be issues such as the benefit of the children who may need to be supported, and, indeed, Mr Barber’s wishes. Given that the expressed reasoning is brief and that there is, mainly, I suspect, because of time, no statement of reasons under s 13 of the Judicial Review Act, this is a very difficult ground to be made out by Mr Barber. One simply does not know whether these matters were taken into account or not.
I am satisfied that they are relevant; the obligation to provide decent and humane treatment would justify that. It is important, however, to make the distinction between the fact that a ground is considered, and I accept that there must be a consideration that is proper, genuine and realistic so as to distinguish it from no consideration or no real consideration, and the weight accorded to a consideration, which is a matter for the decision maker and not for the court: see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 174-6. I am not satisfied on the material that these matters were not considered.
The next ground was unreasonableness. It was submitted by Ms T Warwick, who appeared for Mr Barber, that no reasonable person could have made the decision to refuse Mr Barber permission to attend the funeral. This is a difficult ground to prove. Indeed, Gummow J described it, in Pilbara Investments Pty Ltd v Australian Competition Tribunal [2012] HCATrans 52, as the “last resort of the desperate”. Thus, the thresholds are very high. Relevant factors such as the estrangement of Mr Barber from his deceased wife, the attitude of his mother-in-law and his criminal history at least combine, in my view, to show that the decision, whether I agree with it or not, and this is irrelevant, is not irrational.
Finally, Ms Warwick submitted that the decision maker was acting at the direction or behest of Mr Barber’s mother-in-law and that this was improper. While this ground is usually relied on in the context of governmental direction or dictation, such as in Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404 at 441, I see no reason why other persons should not equally be prohibited from unlawful interference in proper decision making. The approach has been summarised by Mark Aronson and Matthew Groves, in Judicial Review of Administrative Action (2013, 5th ed, Lawbook Co: Sydney) 301; [5.340], as requiring decision makers to “turn their own minds to [the] exercise [of the decision making power], rather than doing the bidding of others”.
I do not consider that this is what occurred here, though the articulation of the reason for refusing leave may appear that way. I do not see the attitude of Mr Barber’s mother-in-law as being a direction to the decision maker, but rather information, a relevant consideration, which was important and indeed here was seen as ultimately determinative. Ms Warwick referred also to the Human Rights Act 2004 (ACT), and in particular s 19, which requires Mr Barber, as person deprived of his liberty, to be treated with humanity and with respect for the inherent dignity of the human person. This is an important right in a civilised society and to be respected. It seems, however, that the Corrections Management Act, in ss 7(c) and 9(a)-(c) at least, respect those obligations statutorily.
There are decisions of the European Court of Human Rights that uphold refusals to permit prisoners to attend family funerals as not being in breach of the prisoner’s human rights. See X v United Kingdom (1972) 15 YB 370 and X v United Kingdom (1973) 42 CD 140. I think all prisoners in the United Kingdom are now called X!
It does seem, to me, however, that natural justice required that the attitude of Mr Barber’s mother-in-law should have been put to him and he to be given the opportunity to respond and make any submissions he wished to make before a decision is finally made.
Ordinarily, there is an obligation to disclose material on which a decision will be made where there is to be a hearing: Shields v Overland (2009) 26 VR 303 at 332. This is not limited to adverse material. It seems, to me, that in a situation such as this, at the very least adverse information of the kind with which we are here concerned should ordinarily be referred to a detainee, such as Mr Barber, for consideration and comment. Further, I was concerned that there may be a further breach, though, not identified by Mr Barber.
Given the speed with which the application had to be brought on, I felt I should raise it, and Mr Hancock, very properly, with the fairness I expect from government lawyers who have a duty to act for a party which is a model litigant, did not object. There was a risk that the decision was the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case. Mr Hancock confirmed that there is a policy that the wishes of the person who is organising such a funeral should be consulted and their wishes respected. I may not have articulated that policy quite accurately, but it was to that effect.
If Mr Barber was not consulted about the issue there was a danger that the decision became an improper exercise of power, because it simply applied the policy without investigating the particular circumstances of the case. I raised these issues with Mr Hancock, and, after discussion, considered that there should be an opportunity for the decision maker either to reconsider the decision, or if natural justice had not been applied and there was no decision, to make the decision. That of course is, as Mr Hancock pointed out, always a possibility of which Mr Barber did not avail himself. He may well have not been so advised and no criticism can be made of that in the circumstances.
I have now been advised of the position as a result. After I adjourned the proceedings, Mr Barber was consulted, the information was put to him and he was offered the opportunity to make submissions and comment. He did so and the decision was referred to the Superintendent and confirmed. In any event, the funeral has now been held and any decision I now make is moot. Whether to grant a remedy of judicial review is always a matter of discretion as held in Lamb v Moss (1983) 76 FLR 296 at 311-13. In this case, the decision is now unable to be altered effectively, as the funeral has been held before arrangements could be made for Mr Barber to attend.
Having done all that could be done to give Mr Barber fairness, it seems to me that in the exercise of a discretion and regardless of any breach of the Judicial Review Act obligations, I should decline to grant relief. I do hope, however, that these reasons may prove of assistance when such decisions have to be approached in the future. Accordingly, I will dismiss the application.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2 April 2014
Counsel for the applicant: Ms T Warwick
Solicitor for the applicant: Legal Aid (ACT)
Counsel for the Respondent: Mr N Hancock
Solicitor for the Respondent: ACT Government Solicitor
Date of hearing: 6 February 2014
Date of judgment: 7 February 2014
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