Pollentine and Anor v The Honourable Jarrod Pieter Bleijie Attorney-General for the State of Queensland and Ors

[2013] HCATrans 229

[2013] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B39 of 2013

B e t w e e n -

EDWARD POLLENTINE

First Plaintiff

ERROL GEORGE RADAN

Second Plaintiff

and

THE HONOURABLE JARROD PIETER BLEIJIE ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND

First Defendant

MARLENE MORISON COMMISSIONER, QUEENSLAND CORRECTIVE SERVICES

Second Defendant

THE CHIEF JUDGE AND JUDGES OF THE DISTRICT COURT OF QUEENSLAND

Third Defendant

Summons for direction

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 SEPTEMBER 2013, AT 10.16 AM

Copyright in the High Court of Australia

____________________

MR D.P. O’GORMAN, SC:   If the Court pleases, I appear with my learned friend, MR R.W. HADDRICK, for the plaintiffs.  (instructed by Prisoners’ Legal Service Inc)

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear for the first and second defendants.  (instructed by Crown Solicitor (Qld))

HER HONOUR:   Thank you.  Mr O’Gorman, I have the draft order by consent, but before we deal with that, could I just clarify a few matters with respect to the matter?  Now, the Criminal Law Amendment Act has been somewhat overtaken by the later legislation – I am sorry, by an amendment in Part 3A, 18B, conditional release of offenders.  How does that operate in relation to the indeterminate detention under Part 3?

MR O’GORMAN:   There is no substantive difference in the application.  Certainly there was that amendment but we would submit that, for present purposes, it has no particular relevance at all.

HER HONOUR:   Does it convert the direction for detention at Her Majesty’s pleasure into a life sentence which is then subject to conditional parole?

MR O’GORMAN:   No.

HER HONOUR:   It does not do that?

MR O’GORMAN:   It remains at Her Majesty – at the Governor’s pleasure or whatever the term is, that remains, your Honour.

HER HONOUR:   Yes, I see.  So section 18B does not apply to a detainee under Part 3?  I am looking at 18B(1)(a).  What I am concerned about, of course, is whether or not there is a question of construction about how Part 3A works with Part 3 as more or less an anterior question.

MR O’GORMAN:   Not as I understand it, your Honour.

HER HONOUR:   We will leave that there for the moment.  In terms of the questions raised in the relief sought, one of the complaints is that the plaintiffs have not been examined at any point by a medical practitioner, presumably to set in train the process by which the Governor in Council would consider release, but you are not seeking mandamus in relation to that?

MR O’GORMAN:   No, your Honour. 

HER HONOUR:   I mean, it is arguably a statutory duty never fulfilled, but you want to go back and attack the statutory power which puts them in detention?

MR O’GORMAN:   That is correct, back in 1984.

HER HONOUR:   Yes.  You are attacking the provision that, in your Chapter III argument, that they cannot be released until the Governor in Council is satisfied ‑ ‑ ‑

MR O’GORMAN:   Considers it expedient.

HER HONOUR:   Expedient.

MR O’GORMAN:   Yes.

HER HONOUR:   You are also attacking the ability of the District Court judge to make the order in the first place because of what happens later, effectively.

MR O’GORMAN:   That is correct.

HER HONOUR:   Not because of any aspect of a non‑discretionary judgment because it is a discretionary judgment.

MR O’GORMAN:   No.  Sorry, your Honour, you are correct in what you understood to be the situation.

HER HONOUR:   Yes, I see.  Now, the chapter in the statement of claim – paragraph 19, effectively the particulars of the challenges to the validity of section 18 by reference to Chapter III is in the first place that the test to be applied by the District Court that some things approved are uncertain or the standard of proof is too low, is that ‑ ‑ ‑

MR O’GORMAN:   That is correct, your Honour.

HER HONOUR:   That is intended to be pressed?

MR O’GORMAN:   Yes.

HER HONOUR:   The 2, 3 and 4, the following challenges or particulars appear to focus upon the making of the order by the District Court, but with the problems inherent in an indeterminate detention left to the Governor in Council to determine.

MR O’GORMAN:   That is correct.

HER HONOUR:   In theory, this is not the only example of a court sentencing where the Executive determines what happens with the balance of the sentence and whether or not it is commuted or not.  I am just wondering what is the particular aspect of the matter.

MR O’GORMAN:   They have served their sentence, so the sentence has been served.

HER HONOUR:   But there is an additional – the court is given a discretion to add an additional direction.

MR O’GORMAN:   Pursuant to section 18.

HER HONOUR:   Yes, that they be detained beyond that sentence.

MR O’GORMAN:   That they be detained at His Majesty’s pleasure, as the Act said in 1984.

HER HONOUR:   Yes.

MR O’GORMAN:   Unless it considered expedient to release, but we will be submitting that the application of that by the District Court judge back in 1984 was unconstitutional because section 18 itself is unconstitutional.

HER HONOUR:   It is unconstitutional because, in summary?

MR O’GORMAN:   For the reasons outlined in paragraph 19.

HER HONOUR:   Effectively it leaves to the Executive.  That is the essential point?

MR O’GORMAN:   That is certainly the central point, yes.

HER HONOUR:   It does not attack the nature of the order made by the District Court, which is a direction in addition to a sentence.

MR O’GORMAN:   Well, it does insofar as that order is made pursuant to section 18.

HER HONOUR:   How is it said to affect the institutional integrity of the District Court?  There is one reference to effectively joint and not independent functions but I do not quite follow that.  It is not a joint exercise.  Whatever is done between the court and the Executive happen at different times, do they not?

MR O’GORMAN:   They do, yes.  It will be submitted that in applying section 18 the District Court is, in effect, being co‑opted into being part of this system that enables the prisoner to be detained at Her Majesty’s pleasure until and if the Governor in Council considers it expedient to release the person.

HER HONOUR:   Co‑opting suggests lack of choice, but you have a discretion in section 18, do you not?  I am just trying to get to what the essential argument here is in relation to Chapter III.  It is not immediately apparent to me.

MR O’GORMAN:   Your Honour, it is more the continuing detention of the prisoners via the section 18 route which we say breaches Chapter III because of, amongst other things, the consecutive decisions, the uncertainty of the test to be applied to release them, that is that it be expedient, et cetera.

HER HONOUR:   But how does that reflect back upon the court, because that is the question that institutional integrity poses?  I mean, it is not unknown that in sentencing the Executive has quite a lot to do after the court has completed its role in sentencing.  So what is it here that the Executive does that reflects back?

MR O’GORMAN:   In particular, your Honour, acting upon the order made by the District Court pursuant to section 18 and we say that section 18 in itself is unconstitutional. 

HER HONOUR:   Would provide some kind of platform for executive action.

MR O’GORMAN:   Yes.

HER HONOUR:   But that is within the choice of the court.  Anyway, I just raise these matters because it was not immediately apparent to me, at least in the particulars as they are framed, how you seek to draw that back to reflect upon the court in some way which, at present at least, is the requirement of the test.  Could we just have a look at the questions of law then which were posed in the submissions, I think – yes, the outline of submissions – 6.1.3?  That is not a Chapter III point really, is it?  That is where you say – and I suppose 6.1 should be restricted to, and will be in the case stated, section 18, not the whole of the Criminal Law Amendment Act.

MR O’GORMAN:   Yes, certainly.

HER HONOUR:   But 6.1.3 is not really addressed to a Chapter III question, is it – is otherwise outside the legislative power of the State of Queensland?  Paragraphs 6.1.1 and 6.1.2 appear to be addressed to Chapter III but ‑ ‑ ‑

MR O’GORMAN:   I certainly take your Honour’s point relating to 6.1.3.

HER HONOUR:   Yes, a matter for consideration in any event.  Paragraph 6.2, I just wonder if that is properly a question for the Court.  It looks more like an opinion surveying ‑ ‑ ‑

MR O’GORMAN:   Yes, your Honour, it is probably unnecessary.

HER HONOUR:   And 6.3 – I do not really see how that is tied in either.

MR O’GORMAN:   Probably the same category.

HER HONOUR:   Matters for consideration.

MR O’GORMAN:   Thank you, your Honour.

HER HONOUR:   Now, what you are proposing is to state a case.

MR O’GORMAN:   Yes, your Honour.

HER HONOUR:   There should not be any contested facts in this case.  It should be very straightforward.  In terms of the draft, the only difficulty is the date, 27 November.  The Court will be sitting in ‑ ‑ ‑

MR O’GORMAN:   Your Honour, of course that is just a ‑ ‑ ‑

HER HONOUR:   The following week – the 27th is a Wednesday – the following Wednesday would be in order, 4 December.  Would that be suitable?

MR O’GORMAN:   Yes, thank you, your Honour.

MR SOFRONOFF:   Yes, your Honour.

HER HONOUR:   Mr Sofronoff, is there anything you wish to say on the directions hearing?

MR SOFRONOFF:   No, your Honour.

HER HONOUR:   All right then.  Well, with the alteration of that date to paragraph 4 of the draft consent there will be orders in terms of the draft consent order produced to the Court, initialled by me.  The Court will adjourn.  Thank you.

MR O’GORMAN:   Thank you, your Honour.

AT 10.31 AM THE MATTER WAS CONCLUDED