Smith v Chief Executive, Queensland Corrective Services - [2024] QSC 288

SUPREME COURT OF QUEENSLAND

CITATION:
Smith v Chief Executive, Queensland Corrective Services

[2024] QSC 288

PARTIES:
RACHEL SMITH

(applicant)
v
CHIEF EXECUTIVE, QUEENSLAND CORRECTIVE SERVICES
(respondent)

FILENO: 3881 of 2024

DIVISION: Trial Division

PROCEEDING: Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVEREDON: 27 November 2024

DELIVEREDAT: Brisbane

HEARINGDATE: 25 July 2024

JUDGE: Sullivan J

ORDER: The application is dismissed.

CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW –

GENERALLY – where the applicant is 33 years of age – where the applicant was sentenced to 10 years’ imprisonment – where the applicant applied under section 22 of the Corrective Services Act 2006 (Qld) for approval to undergo oocyte cryopreservation – where the respondent refused the application – where the applicant applied for a statutory order of review of the refusal – whether section 22(2)(b) of the Act does not forbid prisoners from applying for, or undergoing, oocyte cryopreservation – whether the Court ought to quash the respondent’s decision to refuse the application

ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION –

where section 22(2) of the Corrective Services Act 2006 (Qld) prohibits a prisoner from participating in assisted reproductive technology or from applying for approval to participate in assisted reproductive technology – where the applicant submits that section 22(2) prevents women from undergoing assisted reproductive procedures that could result in pregnancy

during their custodial term – where the applicant submits that oocyte cryopreservation is not one such procedure – whether

that interpretation is consistent with the text, context and purpose of the provision

ACTS OF PARLIAMENT – INTERPRETATION – COMPATIBILITY WITH HUMAN RIGHTS

LEGISLATION – where section 22(2) of the Corrective Services Act 2006 (Qld) prohibits a prisoner from participating in assisted reproductive technology or from applying for approval to participate in assisted reproductive technology – where the applicant submits that section 22(2) applies only to prevent women from undergoing assisted reproductive procedures that could result in pregnancy during their custodial term – where the applicant submits that oocyte cryopreservation is not one such procedure – where the applicant submits that this interpretation is compatible with human rights legislation – whether that interpretation ought to be adopted in the circumstances

Acts Interpretation Act 1954 (Qld), s 14A, s 14B
Assisted Reproductive Technology Act 2024 (Qld)
Corrective Services Act 2006 (Qld), s 3, s 19, s 20, s 21, s 22,
s 23, s 24
Human Rights Act 2019 (Qld), s 30, s 37, s 48

Athwal v State of Queensland [2023] QCA 156
Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd (2022) 13 QR 148
Harrison v Melhem (2008) 72 NSWLR 380
Momcilovic v The Queen (2011) 245 CLR 1

R v A2 (2019) 269 CLR 507

COUNSEL:

S Holt KC with J Underwood for the applicant S Robb KC with L Kruger for the respondent

SOLICITORS:
Owens & Associates for the applicant

Queensland Corrective Services, Legal Strategy & Services Group for the respondent

Introduction

Ms Smith is currently a 33 year old prisoner who was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QSC 288
Decision Date: 27 November 2024

CaseChat Overview and Summary

Smith, a 33-year-old prisoner sentenced to 10 years' imprisonment, sought judicial review of the respondent's decision to refuse his application for approval to undergo oocyte cryopreservation. The respondent, Chief Executive of Queensland Corrective Services, rejected the application under section 22 of the Corrective Services Act 2006 (Qld). The Court was tasked with determining whether the refusal was justified and if section 22(2)(b) of the Act forbids prisoners from applying for or undergoing oocyte cryopreservation.

The legal issue before the Court was whether section 22(2) of the Act, which prohibits prisoners from participating in assisted reproductive technology, includes oocyte cryopreservation. Smith argued that the section only prevents assisted reproductive procedures that could result in pregnancy during their custodial term, and oocyte cryopreservation does not fall into this category. The Court had to interpret the statutory language and determine whether the respondent's decision was within the scope of the Act.

The Court considered the language of section 22(2) and concluded that it was clear in prohibiting prisoners from participating in assisted reproductive technology. The Court found that oocyte cryopreservation, while not directly resulting in pregnancy, is a form of assisted reproductive technology. Consequently, the respondent's decision to refuse the application was lawful. The Court dismissed Smith's application for judicial review.

The Court's decision was final, and no further orders were made. The Court determined that the respondent's refusal was justified under the Act, and Smith's application for oocyte cryopreservation was not approved.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smith v Chief Executive, Queensland Corrective Services [2024] QSC 288
PARTIES:	RACHEL SMITH (applicant) v CHIEF EXECUTIVE, QUEENSLAND CORRECTIVE SERVICES (respondent)
FILENO:	3881 of 2024
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVEREDON:	27 November 2024
DELIVEREDAT:	Brisbane
HEARINGDATE:	25 July 2024
JUDGE:	Sullivan J
ORDER:	The application is dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where the applicant is 33 years of age – where the applicant was sentenced to 10 years’ imprisonment – where the applicant applied under section 22 of the Corrective Services Act 2006 (Qld) for approval to undergo oocyte cryopreservation – where the respondent refused the application – where the applicant applied for a statutory order of review of the refusal – whether section 22(2)(b) of the Act does not forbid prisoners from applying for, or undergoing, oocyte cryopreservation – whether the Court ought to quash the respondent’s decision to refuse the application ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – where section 22(2) of the Corrective Services Act 2006 (Qld) prohibits a prisoner from participating in assisted reproductive technology or from applying for approval to participate in assisted reproductive technology – where the applicant submits that section 22(2) prevents women from undergoing assisted reproductive procedures that could result in pregnancy during their custodial term – where the applicant submits that oocyte cryopreservation is not one such procedure – whether