Wallace v Tannock

Case [2023] QSC 122

SUPREME COURT OF QUEENSLAND

CITATION:

Wallace v Tannock & Anor [2023] QSC 122

PARTIES:

LEON FREDERICK WALLACE

(applicant)

v

BRUCE TANNOCK
(first respondent)

CHIEF EXECUTIVE OF QUEENSLAND CORRECTIVE SERVICES
(second respondent)

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(intervening)

FILE NO/S:

BS 6085/22

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

2 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

20 & 21 March 2023

Further submissions received on 30 March 2023, 4 April 2023 & 19 April 2023.

JUDGE:

Callaghan J

ORDER:

1.   The application is allowed.

2.   The decisions referred to as the “Support Workers Direction” and the “Visitors Direction” made on 21 March 2022 and confirmed in writing on 24 March 2022 be set aside.

3.   The respondents pay the applicant’s costs of and incidental to this proceeding.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the applicant was the subject of a supervision order made on 14 December 2015 under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the supervision order contained the conventional requirement that the applicant comply with every reasonable direction of a corrective services officer – where corrective services staff supervising the applicant were legitimately concerned with aspects of the applicant’s behaviour – where as a result of these concerns the first respondent issued directions – where the applicant seeks relief from the effect of aspects of the directions – whether the relief sought should be granted on the basis of three separate grounds averred by the applicant

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – PARTICULAR CASES – where the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) confers administrative power to Queensland Corrective Services to give directions – where the first respondent issued directions to the applicant – where the applicant was not accorded natural justice – whether the first respondent ought to have accorded natural justice to the applicant in making the decision to issue the directions

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) confers administrative power to Queensland Corrective Services to give directions – where the first respondent had legitimate concerns with aspects of the applicant’s behaviour – where the directions issued by the first respondent sought to allay concerns about the prospect of future sexual offending by the applicant – whether the evidence before the first respondent justified the directions issued – whether the directions were required to be and whether they were objectively reasonable

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the first respondent is a public entity in performing functions pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the first respondent is required pursuant to the Human…

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Details
AGLC
Wallace v Tannock [2023] QSC 122
Case
[2023] QSC 122
Decision Date

CaseChat Overview and Summary

Wallace v Tannock is a case concerning the judicial review of directions issued under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) against the applicant, who is a subject of a supervision order. The applicant challenges the validity of two specific directions: one restricting the applicant from having female NDIS support workers and another requiring approval for any visitors at his residence. These directions were issued by the first respondent, the manager of operations within the High Risk Offender Management Unit of Queensland Corrective Services, based on concerns about the applicant's mental health stability and the risk of future sexual offending. The applicant seeks relief from these directions on three grounds: breach of natural justice, incompatibility with human rights, and unreasonableness.

The legal issues before the court involved assessing whether the directions breached the principles of natural justice, whether they were compatible with human rights, and whether they were unreasonable. The court examined whether the applicant was denied procedural fairness by not being given notice and an opportunity to respond to the psychiatric opinions that influenced the decision-making process. Additionally, the court evaluated if the directions were compatible with the applicant's human rights, particularly his right to freedom of association, and whether the restrictions were justified under the Human Rights Act 2019 (Qld). Finally, the court assessed the reasonableness of the directions based on the evidence available to the first respondent.

The court found that the applicant was entitled to relief on the basis of a breach of natural justice. The directions were made without providing the applicant with an opportunity to respond to recent psychiatric opinions that contradicted earlier ones, which were not referenced in the decision-making process. The court held that the requirement for procedural fairness applied in these circumstances and mandated that the directions be set aside and reconsidered in accordance with the law. Although the applicant also argued that the directions were incompatible with his human rights, the court found that the limitation on his freedom of association was justified to prevent potential harm to society. However, this conclusion did not alter the outcome of the application due to the breach of natural justice.

In conclusion, the court allowed the application, set aside the contested directions, and ordered that the respondents pay the applicant's costs of and incidental to this proceeding. The decision emphasizes the importance of procedural fairness in the administration of supervision orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) and highlights the need for decisions to be made on the basis of current and relevant evidence.

Orders

Orders of the court

1. The application is allowed.

2. The decisions referred to as the “Support Workers Direction” and the “Visitors Direction” made on 21 March 2022 and confirmed in writing on 24 March 2022 be set aside.

3. The respondents pay the applicant’s costs of and incidental to this proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

This direction was confirmed in writing on 24 March 2022. On 26 April 2022, a statement of reasons for the direction was provided by the first respondent, who is the manager of operations within the High Risk Offender Management Unit of Queensland Corrective Services. The reasons included concerns about the applicant’s “ongoing mental health stability” and “the psychiatric evidence[5] including the potentially impulsive and opportunistic nature of any potential reoffending”. The reasons for the decision explicitly included reference to the abovementioned opinions of Dr Grant and Dr Sundin (“the psychiatric opinions”). [5] My emphasis. The first respondent confirmed in evidence[6] that he received “regular progress notes” on the applicant’s engagement with the “health teams”, but also that they were not “referenced in (his) statement of reasons (n)or findings in relation to the decision that he made”. [6] T1-15 L1-10. The first respondent agreed that the psychiatric opinions were prepared before the applicant’s release into the community, and therefore without regard to his current (or even recent) circumstances. These opinions were the only psychiatric evidence to which he had regard.[7][7] T1-13 L15 to 25. The applicant seeks relief from the effect of the orders that:(a)He is only permitted to have male, and is not permitted to have female NDIS support workers (“the Support Workers Direction”); and(b)He must obtain approval to have any persons at his residence, including family members and associates (“the Visitors Direction”). Specifically, pursuant to s 41 of the Judicial Review Act 1991, the relief sought is for the quashing of these aspects of the decision. As the argument evolved, it became clear that this relief was sought on the basis of three separate grounds. I was invited to consider first whether there had been a breach of the requirements of natural justice. I was also asked to consider whether the decisions were made in a way that was not compatible with human rights. Further, it was advanced that the decisions should be set aside on the basis that they were not “reasonable” in circumstances where their reasonableness was a “jurisdictional fact”.Natural justice The applicant complains that the directions were given, in effect, without notice, in circumstances where, had he been given the opportunity, he could and would have said something which was relevant and ought to have been taken into account. The focus of this argument was the psychiatric opinions. Given the context in which they were made, they necessarily represented a long term prognostication. They were dated (2015) and by 2022 were susceptible to reconsideration in light of any more recent developments – positive or negative – in the applicant’s mental state. On the other hand, the applicant can identify an existing “health team” that includes a psychiatrist and a psychologist. The applicant had, as noted above, referred to the existence of these individuals when making assertions about his mental health.

Decision

Reasons for decision

Especially is this so when the earlier psychiatric opinions were focused upon the likelihood of sexual offending against females, and the subsequent decisions included a restriction upon the way in which the applicant might associate with anyone.Conclusion – natural justice Although concerns may be expressed about the circumstances in which the Act has been deployed,[18] it has no doubt been effective in preventing the commission of an uncountable number of sexual offences. This effectiveness has come at a cost to commonly held notions about the liberty of a citizen. An individual who is subject to an order under the Act is surely amongst the most disenfranchised of all Australians. The courts should be slow to strip from them any right that has not been removed, explicitly, by Parliament. [18]Attorney-General for the State of Queensland v Thaiday [2021] QSC 227 [17] (Applegarth J); Attorney-General for the State of Queensland v Nelson-Adams [2021] QSC 257 [6] (Callaghan J). A parliament is capable of excluding the requirements of procedural fairness from specific situations if it chooses to do so.[19] The Act does not do that. Neither its structure, nor the nature of the situations created by it demands that the requirements of procedural fairness should be inapplicable to every situation in which a supervision order is being administered. [19]See, eg, Casino Control Act 1992 (NSW) s 141(4); Public Service Act 2008 (Qld) s 190(2) (now repealed). Rather, the flexible requirement for and ambit of procedural fairness must be considered on a case-by-case basis. In the particular circumstances of this case, the requirement did apply. Simple and obvious methods of compliance suggested themselves. The applicant should succeed on this ground. This conclusion necessarily dictates the outcome of the application and the form of the order – that is, I propose to order that both directions be set aside and remitted for consideration according to law. That reconsideration will be undertaken afresh, and may be made on the basis of materials that are not before me. In these circumstances it is undesirable to say more than is necessary about the other grounds, but I shall deal with them briefly. Human rights The applicant seeks also to impugn the directions on the basis that they are not compatible with his human rights. In accordance with authority, averred incompatibility with human rights should be considered in three stages: engagement, limitation and justification.[20] [20]Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250, 297 [132] (Martin J). Although originally the argument was cast in wide terms and invoked many rights, functionally the question resolves[21] to the issue of whether the directions were incompatible with the applicant’s right to freedom of association.[22][21] T1-41 L8-13.[22] Human Rights Act 2019 (Qld) s 22. It is clear enough that this right was engaged and limited by both directions. However, in the case of the Support Workers Direction, the limitation was justified. It was a move calculated to mitigate the damage to society that may arise from the applicant’s offending against a female support worker. The respondents could discharge the onus of showing that this direction, although it limited the applicant's freedom of association, was justified under s 13 of the Human Rights Act 2019 (Qld).

Ratio Decidendi

Legal Principle Established

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