Re Criminal Justice Commission

[1998] QSC 234

IN THE SUPREME COURT

OF QUEENSLAND
  O.S. No. 8438 of 1998
Brisbane

Before Mr Justice Muir

[Re Criminal Justice Commission]

IN THE MATTER OF The Criminal Justice Act 1989

and

IN THE MATTER OF An Application by the Criminal Justice Commission

and

IN THE MATTER OF Julie Maree Dick, the Parliamentary Criminal Justice Commissioner

CATCHWORDS: STATUTORY INTERPRETATION - powers of Parliamentary Criminal Justice Commissioner under s.118U(5) of Criminal Justice Act 1989 (Qld) - whether that section prevails over more general s.118R - construction of s.118U(5) Criminal Justice Act - declaratory relief.

Counsel:Mr W. Sofronoff QC and with him Mr G. Newton for the applicant

Mr R.R. Douglas QC and with him Mr Logan for the respondent Parliamentary Criminal Justice Committee
Mr McLennan for the respondent Parliamentary Criminal Justice Commissioner

Solicitors:McCullough Robertson for the applicant

Crown Solicitor for the respondent Parliamentary Criminal Justice Committee

Hearing date:          11 November 1998     

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 12 November 1998

1. I gave my reasons for judgment in this matter on 2 November and ordered that the summons of the applicant Criminal Justice Commission (“CJC”) be dismissed. My Associate was approached later that day by Mr Sofronoff Q.C., who had appeared for the CJC on the hearing of the summons, with a request that the matter be listed for further argument as the CJC wished to submit that, on my findings, it was appropriate that declarations, other than those sought in the summons, be made. As the orders made by me had not been perfected, I acceded to the application and heard argument yesterday. I reserved my decision as no court reporters were available.

2. The making of the declarations sought by the CJC was opposed by Mr Douglas Q.C. who appeared with Mr Logan for the Parliamentary Criminal Justice Committee (“the Committee”).

3. The declarations were opposed on the basis that they were sought in the summons and were, in any event, unnecessary. However, he put forward draft alternative declarations. Mr Sofronoff Q.C. submitted, and I accept, that the alternative declarations proposed by the Committee are of little or no practical utility.

4. I am concerned that the declarations sought by the CJC approach the giving of an advisory opinion as to the meaning and effect of parts of s.118U of the Criminal Justice Act 1989. On balance, however, I have concluded that the matters addressed by the declarations bear upon the dispute between the parties which led to the summons and are likely to be of practical utility. As the declarations sought by Mr Sofronoff, with the exception of the matter I am about to raise, were within the scope of the matters argued on the hearing of the summons and were within the scope of my reasons, I propose to accede to the CJC's request. In the course of argument, Mr McLennan, who appeared for the Parliamentary Criminal Justice Commissioner, expressed concern that the second of the declarations sought by the CJC might contain the inference that the Commissioner was obliged to conduct the review required by s.118U(3) before undertaking an investigation required of her by the Committee pursuant to s.118R(2) where there may be an overlap between the subject matter of the investigation and the matters arising on a review of the records of the CJC inquiry under s.118U(3). In order to meet that concern I have reworded the second of the two declarations sought.

5. The declarations I make are as follows -

   “1.No direction to or requirement of the Parliamentary Criminal Justice Commissioner (‘the Commissioner’) by the Parliamentary Criminal Justice Committee under s.118R of the Criminal Justice Act 1989 (‘the Act’) can override the statutory obligations, imposed by s.118U of the Act on the Commissioner:

   (i)to decide if the records of the CJC inquiry as defined in s.118U(5) of the Act disclose an ‘investigation matter’; and

   (ii)to refer any ‘investigation matter’ so disclosed to ‘the appropriate agency for investigation’, the Commissioner not being such an agency.

   2.The Commissioner is not empowered to investigate or continue to investigate a matter referred to her by the letter from the Parliamentary Criminal Justice Committee dated 5 May 1998 where that matter corresponds with, is part of or is within the scope of a matter which the Commissioner has identified as an ‘investigation matter’ within the meaning of s.118U of the Act.”

6. I rescind my earlier order.