Re Wood

[1998] QSC 179

THE SUPREME COURT

OF QUEENSLAND
  No. 7622 of 1998

[Re Wood]

IN THE MATTER of  the

Corrective Services Act 1988

- and -

IN THE MATTER of  the

Ministerial Guidelines to the

Queensland Community Corrections Board

- and -

IN THE MATTER of an application by

ROBERT PAUL WOOD for declarations

Pursuant to Order 64 Rule 1BB of the

Rules of the Supreme Court

CATCHWORDS:     Corrective Services Act 1988 - s. 139 - Ministerial Guidelines - validity - declarations.

Counsel:Mr J C Davidson for applicant

Mr G Gibson QC, with him Mr M Plunkett, for respondent

Solicitors:Poteri & Woods for applicant

Crown Solicitor for respondent

Hearing Date:               4 September, 1998

JUDGMENT - WHITE J

Judgment delivered 10 September 1998

1. The applicant is a prisoner at the Sir David Longlands Correctional Centre.  He seeks declarations that certain paragraphs of the Ministerial Guidelines to the Queensland Community Corrections Board made pursuant to the Corrective Services Act 1988 are ultra vires, invalid and void ab initio and that he is entitled to have his application for early release heard and determined by the Queensland Community Corrections Board (“the Board”) according to law without reference to the alleged invalid guidelines (“the guidelines”).  Although this is not an application for statutory review an evaluation of the guidelines should be considered in the context of the applicant’s circumstances.

2. In 1991 the applicant was sentenced to a term of imprisonment of 7 years in respect of various offences of dishonesty.  In 1993 he was sentenced to 12 years imprisonment in respect of the attempted murder of another prisoner, such sentence to be cumulative upon his existing sentence.  The sentencing judge directed that he be considered eligible to apply for release on parole after serving 3 years.  In March 1997 he was released on home detention to Logan House, a drug and alcohol rehabilitation centre.  He remained there from 25 March 1997 until 26 September 1997.  On that date he was returned to secure custody as a result of an incident at Logan House.  The incident which gave rise to his return to secure custody is set out in a letter to the Board by Mr James Toth, Clinical Director at Logan House.  It is unnecessary to detail the explanation.  Suffice it to say that the Logan House program permitted the fellow residents to have some control over who remained in that institution.  There was apparently some perception by residents that indirect threats were being made by the applicant.  They resolved that he should be discharged from the program.  Mr Toth stated that Logan House would be pleased to consider the applicant’s reapplication for inclusion on the program and that he had made significant gains during the time that he had been there.  The applicant was reclassified as a medium risk prisoner.

3. On 21 November 1997 the applicant lodged an application for parole (and home detention).  In March 1998 he received a letter dated 16 March from the Secretary of the Board.  His application was refused.

4. He instructed a solicitor of the Prisoners’ Legal Service to contact the Board for reasons.  The letter received by the solicitor enclosing a copy of the reasons stated:

   “A Ministerial Guideline issued to the Board states:-

“It is inappropriate for a prisoner serving a sentence of 10 years or more to be approved for or granted release to a community-based program until the prisoner has successfully completed a minimum of 6 months in an open custody environment.”

In the light of the above guideline the Board declined to approve Mr Wood’s application.”

1. The solicitor wrote to the Secretary of the Board by letter dated 16 April 1998 directing the Board’s attention particularly to the period that the applicant had spent at Logan House on home detention.  She requested a further and better statement of reasons and suggested that it was inappropriate inflexibly to apply a ministerial guideline without an assessment of the merits of the applicant’s case. 

2. The Board wrote by letter dated 13 May 1998 that it was investigating the circumstances in which the applicant’s home detention had been revoked and for how long he had served a period of home detention.  Under cover of a letter dated 3 June 1998 the Board set out its reasons for refusing to grant early release. 

3. The issue for decision is whether the guidelines are a valid exercise of the statutory power conferred on the Minister by s.139 of the Corrective Services Act 1988 (“the Act”).

Section 139 of the Act provides:

“(1)  The Minister may, subject to this Act, from time to time issue guidelines to the Queensland Community Corrections Board with respect to the policy to be adhered to by the Board in exercising its powers and discharging its functions under this Act.”

1. The Board is constituted by Part 3 of the Act. The source of power to be exercised in making a decision by the Board to grant home detention or parole is found in various provisions of the Act. The Queensland Corrective Services Commission may release a prisoner to serve a period of home detention but may not do so if the prisoner is serving a sentence exceeding 5 years unless approved by the Board, s.86. The Board may impose conditions relating to release on home detention as it sees fit, s.86(4). A prisoner is eligible for parole when he has served at least half the term of imprisonment to which the prisoner was sentenced, s.166(1)(d) and makes the application to the Board. Where the Board is satisfied that there are special circumstances the Board may release the prisoner on parole at any time, s.166(4). If the Board refuses an application for parole it is obliged to give reasons in writing to the prisoner, s.174(b). Other provisions relate to the period of time which the Board may set within which a prisoner may not make a fresh application, s.174, the requirements of all parole orders, s.175 and the power to cancel, vary or revoke parole orders, ss. 177, 183, 185, 186, and 191. Putting to one side the question of the guidelines, the Board has a wide discretion concerning a grant of home detention or parole, Nguyen v Queensland Community Corrections Board  App. No.7152/97, unreported decision of 7 April 1998 of Thomas J at p.7.

2. The objects of the parole scheme are not set out in the Act but clearly they have several. The Act is entitled “An Act to provide for and in respect of corrective services, the release of prisoners on parole and for related purposes”. A parole period is defined in s.10 to mean a period during which a prisoner is released on parole under the supervision of a community correctional officer. One aim of the parole system is to safeguard the community by ensuring that prisoners upon release will be subject to supervision and returned to life in the community with some prospects of successful integration within that community, Bain v R (1983) 47 ALR 472 at p. 475; Nguyen v Queensland Community Corrections Board supra at p. 7. 

1112                   The guidelines are headed:

“Ministerial Guidelines to the Queensland Community Corrections Board made pursuant to s.139(1) of the Corrective Services Act, 1988 (as amended).”

The impugned paragraphs are:

“1.        Basic Premises

...

1.3It is inappropriate for a prisoner who has not achieved a low or open security classification to be approved for or granted release to a community-based program.

1.4It is inappropriate for a prisoner serving a sentence of 10 years or more to be approved for or granted release to a community-based program until the prisoner has successfully completed a minimum of 6 months in an open custody environment.

...

3.Board Decision-Making ...

3.3It is inappropriate that a prisoner whose security classification is high or medium be approved for or granted release to a community-based program in the absence of special circumstances.

3.4It is inappropriate that a prisoner serving a sentence of 10 years or more be approved for or granted release to a community-based program until the prisoner has successfully completed a minimum of 6 months in an open custody environment.  An open custody environment could be an open security correctional centre or a secure correctional centre where the prisoner works with minimal supervision outside the secure perimeter for extended periods of time on an ongoing basis.”

Reference in the guidelines to “security classification” means the system of security ratings controlled by the Queensland Corrective Services Commission provided for in Regulation 13(1)(b) of the Corrective Services Regulations 1989 into high, medium, low medium, minimum or open security.

1. The guidelines must be consistent with the statutory scheme created for community-based release and if they are not, they are of no effect, and the Board may not have regard to them, Felton v Queensland Corrective Services Commission [1994] 2 Qd R 490 at 504.

2. It is submitted by Mr Davidson for the applicant that the guidelines “severely limit” the discretion of the Board and the use of the term “inappropriate” leaves no scope for any circumstances in which it might be “appropriate” to make a community-based release order in those of the guidelines where it appears. The Board is thus deprived, he submits, of any capacity to exercise its discretion. Section 139(1) uses the word “adhere” to describe the degree of compliance which must be accorded to the guidelines by the Board as to its policy when exercising its powers and discharging its functions. The Macquarie Dictionary, 3 ed. 1997, defines “adhere” relevantly as “to hold closely or firmly to” and the Shorter Oxford in the third meaning defines it as “to cleave to an opinion, practice, or method; to continue to maintain or observe”. The expression is not an absolute prohibition against departure under any circumstances but sets parameters which the Board is expected to follow closely.

3. Some of the guidelines are expressed more broadly than others, for example, the first guideline sets out the basic premise which the Board should follow, namely,  the protection of the community.  So too the guideline that community-based release is to be a staged process of decreasingly restrictive supervision.  These are plainly guidelines which leave the Board with a wide discretion in considering an application for release.  The next two guidelines are said by the applicant to be expressed in such mandatory terms as to deprive the Board of any capacity to exercise its discretion and are thereby ultra vires the power conferred by the Act. They state that it is inappropriate for a prisoner who has not achieved a low or open security classification to be granted release to a community-based program and inappropriate for a prisoner serving a sentence of 10 years or more to be approved for or granted release to such a program unless the prisoner has successfully completed a minimum of 6 months in an open custody environment. The first of those guidelines (1.3) can be seen as the obverse of guideline 3.3, about which the applicant complains, which states that it is inappropriate for a prisoner with a high or medium classification to be granted a community based program in the absence of special circumstances. Guideline 3.4 simply reflects basic premise 1.4 but suggests what might constitute an open custody environment. Although the question of a prisoner’s security classification is one for the Queensland Corrective Services Commission, the Board is not directed not to approve release to a community-based order if the classification is high or medium but is cautioned against doing so in the absence of special circumstances. The good sense and purpose of those approaches to release to a community-based program are evident. If a prisoner has been unable to achieve a low security rating risk within the prison system it is doubtful if he is ready to live outside the system and the security of the public might be compromised. A prisoner who has been sentenced to a period of imprisonment of 10 years or more, it might be expected, would be very vulnerable to the quite different life which would be faced outside the system where he would no longer be regulated in all aspects of his daily living. The wisdom of a training period with necessary support is apparent.

4. Mr Davidson submitted that the word “inappropriate” had a distinctly prohibitory ring to it.  It is a word much used to describe anti-social behaviour without condemning too trenchantly the person concerned. The Macquarie Dictionary ibid defines “inappropriate” as “not appropriate” and “appropriate” as “suitable or fitting for a particular purpose, person, occasion, etc. ... belonging or peculiar to one ... to set apart for some specific purpose or use ... to take to or for oneself; ...”.  The Oxford Dictionary defines “inappropriate” as “not appropriate; unsuitable to the particular case; unfitting, improper.”  “Appropriate” is defined, relevantly, as “specially fitted or suitable, proper” or “to make, or select as, appropriate or suitable”.  The use of the word “inappropriate” does not prohibit a departure from the stated proposition.  Rather, in the usual case, this will be the course for the Board to follow, but that there may be individual cases with a variety of circumstances where the Board should exercise its discretion in favour of departing from the guidelines as an exceptional case McCasker v Queensland Corrective Services Commission CA No. 10495 of 1997 per Helman J at p.11 of his reasons.  Mason and Deane JJ in Norbis v Norbis (1986) 161 CLR 513 at 519-20 discussed the meaning of guidelines:

   “The term “guidelines”, though not commonly used in relation to judicial discretions, is familiar enough in the bureaucratic and administrative world, where it denotes rules or standards which are not binding and may be relaxed when it is expedient to do so in order to do justice in the particular case.”

1. The legislation and guidelines are quite different from the situation in Riddell v Secretary, Department of Social Security (1993) 114 ALR 340 where the Act in question gave the decision-maker a discretionary power and also empowered the relevant Minister to give directions relating to the exercise of the power. The Full Federal Court held at p. 346:

   “When the determination [directions] purports to lay down quite precise rules dictating the result of all, or nearly all, applications, it departs radically from the statutory scheme because it is not giving guidance in the exercise of the power, but attempting to deny the existence of the power.”

2. That is not the case here. As has been discussed above, s.139 directs that the Board should closely follow the guidelines and the expressions used in the guidelines reinforces that approach but does not deprive the Board of its legislatively given discretionary role. It is, of course, permissible to express rules which must be followed by a body when performing its function as occurred in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287, but the Court there warned against the use of the description “guidelines” when mandatory language was employed.

3. Although the decision of the Board is not under review, the letter of reasons from the Board dated 3 June 1998 slightly misstates the effect of s.139 as obliging “the Board to adhere to particular guidelines issued to it” and a rather unhappily expressed proposition appears “It is clearly important to determine whether the legislative requirement to adhere to the guidelines should be complied with”. But there is no sense that the Board regarded itself as impermissibly fettered in the exercise of its discretion.

4. I have concluded that the guidelines are not ultra vires the power given to the Minister by s.139 of the Act. The declarations sought should therefore be refused and the summons dismissed.