Wotton v State of Queensland & Anor

[2011] HCATrans 191

[2011] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S314 of 2010

B e t w e e n -

LEX PATRICK WOTTON

Plaintiff

and

STATE OF QUEENSLAND

First Defendant

CENTRAL AND NORTHERN QUEENSLAND REGIONAL PAROLE BOARD

Second Defendant

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 AUGUST 2011, AT 10.20 AM

(Continued from 2/8/11)

Copyright in the High Court of Australia

FRENCH CJ:   Yes, Mr Solicitor.

MR SOFRONOFF:   Your Honours, I am interposing to respond to the question put to me by your Honour Justice Hayne and I also need to correct something I said to your Honour Justice Gummow.  The reason why the Crown would need to prove both the fact of the occurrence of the interview and that there was no approval, and indeed that the person who is charged is neither the prisoner’s lawyer nor an employee of the law enforcement agency or the ombudsman, is the decision in Woolmingtonv DPP [1935] AC 462 which was followed in Queensland in Mullen v The King (1938) St R Qd 97, and I think most recently insofar as Queensland is concerned in a decision of this Court, Griffiths v The Queen (1994) 69 ALJR 77.

The onus is on the Crown, of course, to prove all elements of the offence and to exclude all exculpatory provisions.  So in the case of manslaughter the Crown would need to prove not just the act of killing but that the Act was voluntary.  In most cases, that would be proved implicitly and would go without mention and, indeed, would not be the subject of any direction on the summing up.  If it is put in issue, then the proposition that the onus in that respect lies upon the Crown becomes more evident. 

Here, on a charge, the Crown would have prove that the defendant interviewed a person, that the person was a prisoner and that the defendant did not have the written approval of the chief executive and that the defendant was not the ombudsman, the prisoner’s lawyer or an employee of a law enforcement agency.  By comparison, section 133 is expressed in terms that a person must not, without the chief executive’s approval, take information.  So the way the offence is expressed in section 133 would suggest that a charge would properly read “the defendant did without the chief executive’s approval taken information from a record”.  But nothing would turn upon that because, in any event, the onus would lie upon the Crown.

Your Honour Justice Gummow asked me yesterday whether an approval or a refusal of an approval could be the subject of collateral challenge, and I said yes.  That remains my answer, but, of course, in a case like this it would be to the point because if there had been ‑ ‑ ‑

GUMMOW J:   It would be liable to collateral attack in view of the authorities, I think, considered by the Court in Ousley v The Queen 192 CLR 69.

MR SOFRONOFF:   But it would not get one anywhere because a wrongful refusal if attacked would leave the defendant in the position where there still had not been an approval.  Thank you, your Honours.

FRENCH CJ:   Thank you.  Yes, Mr Solicitor.

MR McLEISH:   If the Court pleases.  Inevitably much of the ground I propose to cover has already been dealt with so I shall be comparatively brief, if the Court pleases.  There are three points I wish to make about the requirement to obtain approval which, in our submission, is the burden on communication found in section 132.  The first is that the power to approve is not unbridled or unconfined.  Indeed, in our submission, it would be difficult to imagine there being such a power under our system of government.  The conditions are implied rather than expressed but they are, nonetheless, still real and operative.

As your Honours have heard already submitted, the restrictions on the exercise of the chief executive’s power to approve derive from the subject matter, scope and purpose of the legislative provision and, in particular, we would rely on section 3.  We would make the additional point that the same can be said of the Minister’s power of direction under section 268 of the Act.  Authority for that proposition, which I do not need to take your Honours to, appears in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 in the judgment of Justice Mason at page 42, which is two pages after the passage at page 40 where his Honour states the general principle about limitations on powers. So for that reason, in our submission, the existence of the Minister’s power to direct the chief executive does not alter the position.

In the case of a parolee, the limits on the power would also derive, we would submit, from the nature of parole itself, as provided for under the Act, and in particular, in section 200, bearing in mind that that requires that a person on parole be under the supervision of the chief executive, and other limitations may derive from the conditions of parole itself.  In other words, in our submission, the exercise of the chief executive’s power of approval in section 132 would in part be governed, in the case of a person on parole, by the nature of the conditions to which that person was subject.  Of course, we would submit that the exercise of the power is also governed by constitutional requirements.  We have set out authorities to that effect in paragraph 4(b) of the hand up document, most of which your Honours have already been taken to.  So that is what we wanted to say about the nature of the power to grant approval. 

As far as this exercise is concerned, and this is the second point, we submit that there are three significant aspects to this.  The first is that the exercise attracts an obligation to give reasons and that appears in the Judicial Review Act in the provisions to which we have referred in paragraph 4(d) of the hand up outline and sections 20 and 31 to 33.  We would submit that a failure to decide an application for approval would also be capable of being reviewed under section 22 of the Judicial Review Act on the basis that there would be a duty on the chief executive to decide an application for approval.

The solicitor for the Commonwealth referred your Honours to cases to that effect yesterday and we would add to that a reference of Justice Dixon’s judgment in Swan Hill v Bradbury, which your Honours have already been taken to. I do not need to take your Honours to it, but it is 56 CLR 746. His Honour refers to this aspect at 757 to 758. It was submitted for the plaintiff that what was necessary in this context to ensure that a broad discretion survived scrutiny was merits review, and your Honours were taken to judgments in Cunliffe v The Commonwealth, which were said to support that proposition.  In our submission, that is not so.

In Cunliffe there was, of course, both merits review and judicial review available, but what was critical was not so much, in our submission, the nature of the review, but what that review would achieve, and that appears most clearly in the judgment of Chief Justice Mason at page 303. This is 182 CLR 272. On that page at about halfway down the page, his Honour says:

The question is whether legal remedies are available which will effectively provide protection against an abusive power by the Board.  The deficiencies associated with relief by way of prerogative writ, certainly so long as a decision‑maker is not obliged by the general law to give reasons for a decision –

That, of course, is not the present case.  After reviewing the mechanisms available, his Honour says at the end of the paragraph –

The availability of these procedures will ultimately ensure that decisions of the Board will conform to constitutional requirements and limitations.

In our submission, that is the case with judicial review in a situation where there is an obligation to give reasons, irrespective of whether merits review is also available.

FRENCH CJ:   I suppose the availability of judicial review is not a matter simply relevant to a particular case but also to the establishment in a public way of principles limiting the exercise of the discretion or informing the exercise of the discretion if it be exercised unlawfully.

MR McLEISH:   In the normative sense of informing future exercises of the discretion, yes, we would ‑ ‑ ‑

GUMMOW J:   What is the significance of the factor that there is a question, is there not, arising under the Constitution?  Federal jurisdiction is immediately engaged anyway, is it not, regardless of any State system of judicial review?

MR McLEISH:   That might well be so, your Honour, in a case where the question is whether there is a constitutional prohibition informing the interpretation of the statute, yes, your Honour.  The other authority we wanted to take your Honours to in reference to this issue is Miller v TCN Channel Nine Pty Ltd 161 CLR 556, and in particular in the judgment of Justice Brennan which his Honour refers to in a footnote in Cunliffe as amplifying a more extended discussion of this issue on his part, in particular at page 613.  This concerned a broad discretion as your Honours will see in the paragraph commencing:

True it is that the discretion conferred by s. 5 is not confined by statutory criteria.

There is the reference there to Justice Dixon’s judgment in Swan Hill v Bradbury again, to which your Honours have already been taken.  At about point 8 of the page, going on, Justice Brennan says:

Although guidelines may be prescribed, in the result the discretion must remain at large.  So it is under s. 5.  Yet the s. 5 discretion must be exercised bona fide in furtherance of the purpose for which it was given.  Of necessity, the area of the discretion must be large:  the nature of the subject to be regulated requires that the discretion be wide.

GUMMOW J:   We can worry about Swan Hill from here to kingdom come, but it seems to me that 629 and 630 in Shrimpton, what Sir Owen Dixon was putting his finger on when he talked about discretion in the Constitution was matters of federal jurisdiction. This case has been in some way obscured by lack of appreciation of that, and once it is accepted that Lange is a restraint upon State legislative power by reason of what is in the Constitution this Court, apart from anything else, is immediately engaged because of 76 of the Constitution and the provisions in the Judiciary Act and so on.

MR McLEISH:   What we derive in addition from Justice Dixon in the Swan Hill Case, your Honour, is the endorsement of the concept of a broad discretion allied with those possibilities for review.  That brings me to the third point in our submission and that is that the approval requirement or the regime for approval, we would submit, satisfies the reasonably appropriate and adapted test having regard to the diversity of circumstances in which it may be necessary to apply the provision.  Like the broad discretion in Swan Hill v Bradbury or in Miller’s Case, it is, we would submit, notorious that prison and corrective services management can give rise to a variety of issues, complex issues, and matters that are not necessarily susceptible of setting out a prescriptive approach in advance. 

In that context, we would refer your Honours to the judgment of Justice Nettle in Anderson v Pavic [2005] VSCA 244. All we cite it for, your Honours, is that in paragraph 32 his Honour remarks – we say this is illustrative of the approach of the courts – at the top of page 11:

that prison legislation should ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the courts.

We would submit that that approach recognises the width of discretion or is consistent with the width of discretion found in section 132 and the approach to it which we are advancing.

BELL J:   Can I just take up one aspect associated with this submission, but it arises in 4(c) of your outline, where you place emphasis on the volatility of the correctional environment and the diversity of circumstances that may arise, I assume within that context, as support for the proposition that the power is reasonably appropriate and adapted.  One can understand that respecting prisoners but when one looks to it also extending to parolees, do you depend on the volatility of the correctional environment in that respect?

MR McLEISH:   It is going to have less force, your Honour.  I think it was submitted yesterday by the Solicitor for Queensland that there will be less circumstances in which approval might be refused in the parole situation than there would be in the prison situation, but the variety of different kinds of case that might come before the chief executive for approval is noted nonetheless, we would submit.  It really depends on what the statement involves.  If it is a statement about conditions within the prison or prison informers, for example, matters of that nature, the volatility of the correctional environment could come into play, but we would accept it ‑ ‑ ‑

BELL J:   I think the Solicitor for Queensland noted that parole is a privilege and one either applies for it or does not, but it is a little difficult to see the force of some of those submissions when one considers a person who for whatever reason either does not apply or is not suitable for parole

and does not receive the benefit of it.  There is no restraint on their statements the day they leave prison.  It is one thing to look at restraints on people’s communication within the volatile environment of a prison, and it does seem to me to be perhaps different when one looks at the circumstances of a person who is in the community, albeit serving the balance of the sentence.

MR McLEISH:   We would submit those differences play out in the application of the provision but not in the provision itself.  In other words, the requirement for approval is nonetheless justified in relation to persons under the supervision of the chief executive, but, yes, in its application it may be different.  Of course, this case does not involve the application of the provision to the plaintiff in particular because there has been no application for approval which has been made.  As the Solicitor for the Commonwealth submitted yesterday, in our submission, the question can only arise at the level of, is the legislation valid.

I just wanted to add a reference to Anderson v Pavic, also to what is said in the United States case which your Honours have been taken, Martinez v Procunier at 404 and 405.  Again, I will not take your Honours to it, but it is in terms of the breadth of situations which the courts might find themselves dealing with in relation to correctional matters and the deference, for want of a better word, to the correctional authorities in that context – or the latitude, perhaps would be a better word, given to the correctional authorities in that context.

We would submit that the chilling or muffling effect to which some of the Australian cases refer is quite different to the requirement to obtain approval before making a statement.  The notion of a chilling or muffling effect describes, I would submit, a particular phenomenon and that is where the publication of a statement, the making of a statement, has attached to it a risk of some kind of harm and, typically, the risk of a defamation action and that the presence of that risk is what might be calculated to cause people not to say anything and to chill their speech in that sense. 

In our submission, that is quite different to an approval requirement where the person knows when they make the statement whether or not they have got approval.  There is nothing unknown, there is nothing hanging over – no uncertainty hanging over the person as to whether their speech may or may not attract any sanction or adverse consequences.  If the Court pleases, those are the submissions on behalf of the Victorian Attorney.

FRENCH CJ:   Yes, thank you, Mr Solicitor.  Yes, Mr Merkel.

MR MERKEL:   If the Court pleases, can I hand up three sets of documents to your Honours.  Could I take your Honours to the questions ‑ ‑ ‑

GUMMOW J:   Is this an application to amend the special case?

MR MERKEL:   Yes.  My learned friend, the Solicitor, and ourselves are in agreement that these are the appropriate questions to bring before your Honours given the way in which the matter has been argued and we would ask for leave to amend the special case by admitting the questions so they are in the form of paragraph 32 as handed up to your Honours.

HEYDON J:   I think it needs a little further amendment.  In 1(b), line 1 between “to” and “construed” the word “be” should be inserted?

MR MERKEL:   Yes, your Honour.  Sorry about that.  We are sorry for the hand written changes too.

KIEFEL J:   In relation to question 3, conditions (t) and (v) are invalid because they impermissibly burden that freedom.  That is said to be in accordance with the Lange test, is that right?

MR MERKEL:   Yes, your Honour.

KIEFEL J:   It is not tested against the Queensland legislation?

MR MERKEL:   No, your Honour.  We make it entirely clear that it is last two paragraphs of our submissions that raise this point purely under a constitutional heading.  There is no ultra vires question other than the Lange question.  I notice that (u) should be crossed out there too, your Honour.  It has not been.

FRENCH CJ:   I think it is.

MR MERKEL:   Sorry, not in mine.  Thank you.

FRENCH CJ:   The Court will reserve the question of leave.

MR MERKEL:   Yes, thank you, your Honour.  The second document, we had mentioned yesterday we would look at the Public Service Act.

FRENCH CJ:   I am sorry.

MR SOFRONOFF:   No, quite right, your Honour.  I did not get an up‑to‑date version, but I see the error that appears in my earlier draft has been corrected in the version handed up.

FRENCH CJ:   Thank you, Mr Solicitor.

MR MERKEL:   We looked at the Public Service Act.  We said we would check this overnight.  Section 100 of that Act contains provisions about:

A chief executive is subject to the directions of the departmental Minister –

and says that in respect of decisions about particular individuals there must be –

(a)must act independently, impartially and fairly; and

(b)is not subject to direction –

and then subsection (3) –

is subject to another Act –

but that would not apply in respect of section 296 because that is not a limiting direction.  Section 10 says a chief executive in relation to a department is the head of that department.  We have not been able to check that the correctional services is a department.  If we could just check that, we assume it is, but if we could inform your Honours about that.  So that would appear to apply to the chief executive’s decision‑making and role in respect of an individual.

Thirdly, my learned friend yesterday had handed up a policy document and we had reserved the question of whether that was applicable at the relevant time and pre‑dated the litigation.  We have also found there is another document which is linked to the one that was handed up, and my learned friend has no objection to that being handed up.  It is the document procedure interviewing offenders.  So both documents currently appear as a statement of policy.  I just wanted to draw your Honours’ attention this relates specifically to 132 and under the heading “Approval to interview an offender” it says, the last paragraph:

The chief executive or delegate . . . may grant approval for an offender to be interviewed provided –

a.the purpose of interview is considered reasonable –

There is a reference to security and –

c.the interview, or any portion of the interview, is not published or made public except with permission of the relevant executive director –

Then there are some other provisions, and under “Access by media” at paragraph 5, I understand that is a hyperlink to the document my learned friend the Solicitor handed up to your Honours.  We would only observe further to the kind of issue we raised with your Honours yesterday about the difficulty of seeking approval under section 132 in practice.  One example would be if Mr Wotton was at a public meeting and spoke, as he is entitled to, in Townsville and a member of the press approached him, he would not be able to speak to the member of the press or have an interview, unless he got the approval, and the approval there would appear to be bound by “we will allow you to speak” if he was successful, “but you have to come back and we will have the right to inspect and effectively censor what you have said, prior to publication.” 

Can we go to the gravamen of what we really want to say in reply and can I tell your Honours, in advance where we are heading.  We have had certain concessions made in the submissions particularly from Queensland, my learned friend, the Solicitor from Queensland, to the effect that it will be on only rare occasions that section 132 would arise in practice to have a legitimate interest.  He gave two examples – and I will take your Honours to the transcript – the Ferguson example of a sex offender being hounded in the community and someone gaining notoriety, but his very words were “it was a rare occasion”. 

Your Honour the Chief Justice helpfully pointed us to a case yesterday, Hyland v Procunier, in the United States.  It is not coincidental that that arose, not in the context of a provision like 132 but as a condition of parole.  Where we are heading in response to our learned friend’s submissions is that Chapter 5 provides an entire, complete and comprehensive code that satisfies all of the requirements that this Court would regard as reasonable and appropriate and adapted to the protection of the burden which seems to be acknowledged to exist in section 132.  I will take your Honours to it in a moment, but we say that all the discretions residing in a body that is established for the purpose of parole is an incomplete answer to the case put against us.

Can I take your Honours to the examples given in Wainohu and AMS and say that our Chapter 5 approach to the way in which this matter should be resolved accords entirely with what the Court said in both Wainohu and AMS.  Chapter 5 is not concerned with freedom of speech or any burden of freedom of speech.  It is concerned with rehabilitation of an offender and it is concerned with protection of the community.  So, as an incident, there may be an occasion where a parole condition will be imposed, such as occurred in the present case, that was said to be within the purview of Chapter 5 and the discretions of the Parole Board would, of course, have to conform to constitutional requirements.

Chapter 5 provides for hearings, applications, amendment.  It is a qualified body independently set up to deal with parole applications headed by a retired judge or a lawyer of some five years experience or more, and I will take your Honours to it.  It is comparable to Wainohu.  In Wainohu the Court, of course, was dealing with declared organisations and a court’s power to grant some dispensation from the operation, given some exceptional circumstances, that may have an incidental burden on political association. 

In AMS the Family Court had power in respect of the welfare of children to direct that they be within a particular State and the parents be within a particular State.  Incidentally, in the exercise of that jurisdiction there was a burden on the freedom of movement or freedom of movement between States.  The court is admirably equipped, in open hearing, with the requirement for natural justice, with a right of appeal to deal with those issues.  Of course, in both cases the procedures set out in the statute were reasonable and appropriately adapted to protect any burden that may incidentally arise on an implied freedom.  We say exactly the same applies to Chapter 5. 

Can we contrast that with section 132(1)(a) and the approval under (1)(d).  It has not been disputed by our learned friends, as far as we can glean, that this is a burden on political communication.  It creates an offence which is superimposed into Chapter 5.  The Chapter 5 framework begins with the creation of an offence under 132(1)(d).  We had pointed this out in our submissions and that therefore affords the Parole Board a power that really is exercised and should be exercised in a prison environment to carry it over to a parole environment and justify a condition such as condition (u) which was deleted.  We say to import an offence provision into the broad discretions of Chapter 5 is both unnecessary and unreasonable. 

Can I take this in steps.  We say the following on section 132(1)(d).  The prohibition is created as an offence unless the chief executive exercises the power to grant an approval which, if refused, is judicially reviewable under the Judicial Review Act.  Secondly, the substance of the burden is that a person requires the chief executive’s approval to engage in political communication with the prisoner.  We outlined that in great detail in our submissions in‑chief and it was not really disputed by our learned friends.  Thirdly, the substantial and direct burden is particularly difficult to justify, as has been conceded in arguments against us, for a parolee who is not in detention but yet they are both subject to the same statutory regime.

Can I take your Honours to what my learned friend, the Solicitor for Queensland said at pages 76 and 77 of the transcript when pressed by your Honour Justice Bell to try and give an instance where a parolee might be appropriately dealt with under section 132.  Your Honour raised that at page 76 at 3373 because my learned friend had taken you through a raft of provisions in the Act, including in section 7 about change of name, to look at objectives and they all related to good order within a prison environment.  Your Honour raised the issue with my learned friend and said, “This is all directed to considerations of the good order and discipline”.  Then my learned friend, the Solicitor, said, at 3383, well, we have got the welfare of the prisoner and gave the example of Ferguson, an extreme and extraordinary case, and then 3392, equally the notoriety of statements made by a prisoner.  We have accepted Olson could be a case where rehabilitation would require parole conditions to deal with that matter.  Then, my learned friend said:

The point I wish to draw from this and I hope which would be of assistance is this, that just as the chief executive has the means to prevent trouble to the prisoner or to the prison community by his powers to direct the conduct of prisoners within the prison, equally he has such powers with respect to parolees outside prison only for that purpose.

It may be, as is implied by your Honour Justice Bell’s question to me, that the occasions upon which that would happen would be rare and that must be so but they may arise and it is one arrow in the chief executives quiver that is available for use.

We say Chapter 5 entirely answers what my learned friend has said should be available to the chief executive and to the Parole Board and there is absolutely no basis in terms of the second Lange question to superimpose the offence provision of section 136 on that regime.  In my learned friend’s outline, the same can be said of paragraphs 12, 13 and 15, and I will try and develop this by reference to the sections briefly, if I may, but my learned friend said:

The Act provides means to achieve its purposes in the case of a paroled prisoner –

We say Chapter 5 –

some continue as before when the prisoner had been confined while others, notably the system of conditional parole, arise only upon a parole order being made.

Relevantly, where a prisoner on parole seeks to give an interview or statement to media, circumstances may still arise where to do so would not be conducive either to good order and discipline within the prison –

Well, that is hard to imagine arising, and my learned friend did not try and give an example of that –

would be damaging to the public’s confidence in the criminal justice system or damaging to the welfare of the paroled prisoner.

Two ends which are fairly and squarely within Chapter 5, at the heartland of Chapter 5.  At paragraph 15, my learned friend:

The plaintiff has acknowledged (rightly, it is submitted) that the Chief Executive could lawfully give a direction “tailored to particular circumstances” which would prevent the plaintiff’s attendance at a public meeting.  If that is correct, there can be nothing constitutionally wrong with either s 132 or with condition (t) which require, for their operation, a correct exercise of discretion.

We say that that is precisely what Chapter 5 is designed to do.  Can I take your Honours to the context in which we say this arises and it is raised, we say, squarely by the discussion in Lange 189 CLR 520 at 568. It starts at the very bottom of 567 where the Court said:

If the first question is answered “yes” and the second is answered “no”, the law is invalid.

Then as an example, and we say this is fairly within precisely what this paragraph is addressing –

In ACTV, for example, a majority of this Court held that a law seriously impeding discussion during the course of a federal election was invalid because there were other less drastic means by which the objectives of the law could be achieved.  And the common law rules, as they have traditionally been understood, must be examined by reference to the same considerations.

Can we interpose there in the context of this argument, the parol law rules as outlined in the statute and as founded upon a well‑established system of common law rules about the purpose and function of parole serve exactly the purpose that their Honours referred to, and in that context:

If it is necessary, they must be developed to ensure that the protection given to personal reputation –

and we say here to the community –

does not unnecessarily or unreasonably impair the freedom of communication about government and political matters which the Constitution requires.

We say every legitimate object that has been put forward or could be put forward and every criticism that we have made of section 132 is answered comprehensively by the way in which this Act deals with parole.  Can I take your Honours through, briefly, how we say this should operate.  We, with respect, adopt my learned friend, the Solicitor for the Commonwealth’s, submission that we go at the outset to section 3 of the Act to look at the purposes which should govern the statutory objects which should govern the exercise of statutory discretions. 

We say the Court should reject the approach put forward yesterday by my learned friend, the Solicitor for Queensland, that you go through a raft of sections including – he took your Honours to section 27 which is about change of name of someone in prison to try and inform the objects of section 132.  We say that inquiry is entirely unnecessary, it is very unhelpful and very problematic.

KIEFEL J:   But it would not be incorrect in statutory interpretation, would it, to have regard to the Act as a whole other provisions to discern other unstated concerns and objects which might inform section 3 and thus section 132?

MR MERKEL:   Yes, we are putting that argument at the forefront, your Honour, and we say the answer, rightly or wrongly, your Honours will determine, but the answer within this statutory scheme is to be found entirely in Chapter 5.  It meets all of the criticisms that one could reasonably and properly make of the operation of 132 in respect to parolees.

KIEFEL J:   But is that submission addressed so much to a question of what are the whole of the purposes and concerns that one can discern from the Corrective Services Act or is your submission addressed more to a question of section 132 being unnecessary?

MR MERKEL:   Well, it goes further than that, your Honour.  We say it is necessary and appropriate for a prison environment but having regard to the objects of the Act, and I will take your Honour to the ones that are relevant to parolees, it is unreasonable and unnecessary for it to apply – or inappropriate.  I just wish to use the wording of the second Lange question.  It is not reasonably and appropriately adapted to parole and it imposes a burden that is not reasonably appropriately adapted to the freedom that should be protected because the protection is all found in Chapter 5 and we can see it in section 3 because this Act does deal separately with the prison environment and separately with the parole environment. 

Section 132, for no reason that has been able to be demonstrated, conflates the two and we say it is that conflation that imposes the burden that is impermissible.  The answer to the second question is to be found by looking at how the Act has provided for parolees and therefore there is no reason put forward – one cannot even find – forget a substantial reason, there is no reason for section 132 to superimpose its offence provision on Chapter 5.  If I can just make good that point because there are a few provisions, but they make the point quite compelling we would, with respect, submit.  In section 3(1):

The purpose of corrective services –

which would include parole –

is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.

Parole is concerned with community safety, rehabilitation and crime prevention.  Subsection (2) is something highly favourable to a person on parole, and that is:

This Act recognises that every member of society has certain basic human entitlements, and that, for this reason, an offender’s –

which is in the dictionary defined as a prisoner, plus others, but relevantly a prisoner, and a prisoner’s –

entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.

Then (3) deals with the rights of offender’s dignity and special needs.  So they are the general objects that inform the discretions under the Act.  But can I go to section 200 because we then have the very specific objects that inform the parole regime.  The parole regime includes conditions requiring the – and these are the mandatory conditions under section 201 – “to be under the chief executive’s supervision” and (b) “carry out the chief executive’s lawful instructions” and (f), relevantly, “not to commit an offence”.  So there one has the chief executive’s powers regulated under section 100 of the Public Service Act to deal with before, during and after, a discretionary power to be exercised lawfully and, with respect, constrained by the constitutionally protected freedom, and I note, just as it was in Wainohu.  We go further, because we have then subsection (2) which informs the objects of a parole order and it says:

A parole order granted by a parole board may also contain conditions the board reasonably considers necessary –

the Wu Shan Liang test –

(a)to ensure the prisoner’s good conduct; or

(b)to stop the prisoner committing an offence.

Examples are given.  Then in sections 201 through to 205 are important powers of amendment.  So we have flexibility arising.  The Parole Board can amend on application.  We also have powers of enforcement, which means if you breach a condition, the order can be suspended and a warrant for your arrest issued.  So there is an entirely comprehensive code to cover all of the objects in section 3 supplemented by the objects in Chapter 5 to deal with the very subject matter of 132.  But, can we add to that, the process that is afforded under Chapter 5 can be contrasted with section 132 which imposes a direct and substantial burden on the freedom of communication. 

Here we have an incidental burden and we start with the application that is made under section 187.  We have a Parole Board that can hear and decide an application, a submission in 188 from an eligible person, an appearance in 189, exactly the kind of protections your Honour found in Wainohu and in AMS, a proper procedure where natural justice and fairness will be observed and an opportunity to address the Board.  But it goes further.  A decision is then made under section 193 to grant or refuse the application.  That decision will, of course, be constrained by the constitutional limitation and is judicially reviewable to protect against any abuse of power or any excess of power if the constitutional restraint is not observed.  There is a review of the board’s refusal of a parole under subdivision (3).

Then can we take your Honours to who the parole boards are.  That is set out in Part 2 at 218 to 219.  So we have the chief executive having a role governed by section 100 of the Public Service Act concerning instructions, but then we have a specialist body set up for the very purpose of dealing with the very problem addressed by section 132 in respect of a parolee and we find there is a Queensland and a regional board.  The Queensland board has in 218(1)(a) a retired judge of a court or a lawyer engaged in legal practice for at least five years and other members who are to be representative, in a sense, of the community set out in 218(1)(b) and a public service officer. 

Then there are provisions for disqualification, persons who may have an interest in the matter and they are carefully set out in section 219.  Section 224, we have meetings provided for.  Section 227, we have ministerial guidelines provided for and in the court book your Honours will see, and I do not need to take you there but I ask your Honours to note, in the special case book at 71 and 83 are the Minister’s guidelines to the Board and to the regional board.  I should mention, your Honours, the regional board is provided for in section 224 – sorry, no, I have got that wrong – I think regional board is section 232, again, structured in the same way as the main Parole Board.  At 241 to 242, we have got the general powers of the Parole Board, including under 242 to require attendance at a stated time and place and produce documents.  We go to 245, “Chief executive must prepare and give report to parole board”.  We go to 247:

A document made by a parole board for this Act is sufficiently authenticated if it is signed by the president –

So we have within this statutory hierarchy the very kind of, if you want, scheme that satisfied the judges in Cunliffe and, we say, has satisfied your Honours as reasonably appropriate and adapted in Wainohu and in AMS and, indeed, in other cases.  What your Honours are confronted with in this case to which there is simply no answer given by any of our learned friends is an unprecedented statutory provision that has not been found to have any replication in respect of parolees anywhere in the world that has been produced. 

We could not find any and yesterday we were given a decision by your Honour the Chief Justice, which again, not surprisingly, found the condition was imposed not to talk at public meetings by the Parole Board as a parole condition.  My learned friend, the Solicitor for Queensland, talked of us conceding the constitutional validity of an order or condition tailored to meet the exigencies of the case.  We say that is precisely what Chapter 5 has provided for.  So we say that our analysis of what this Act seeks to achieve ‑ ‑ ‑

GUMMOW J:   Is this in reply, Mr Merkel?

MR MERKEL:   Sorry, your Honour?

GUMMOW J:   You seem to be airborne beyond a reply.

MR MERKEL:    Well, your Honour, we were replying to what our learned friend, the Solicitor, had put about the need for section 132 and we were struck by his failure to offer any circumstances that 132 could apply to.  We had always put at our forefront the problem with 132 applying to

parolees.  The distinction between the parole conditions in 132 was a formal one in the sense as long as condition (u), in effect, existed, therefore it was even more stringent that 132.  But, with respect, it is a response to the way in which our learned friends have put the case and it is an analysis of, we say, how this Act works.  I must say, I am almost at the end of the submissions, but we had in our principal submission ‑ ‑ ‑

FRENCH CJ:   That is a usual response to a question of that kind.

MR MERKEL:   Can I just conclude on this basis.  We say that when you ask, is 132 reasonably appropriately adapted in the second Lange question, we say it is not and we say, rather, it is unnecessary and an unreasonable burden given the Act’s objects and the purpose of the constitutional freedom.  We say that 132(1)(d) in its application to parolees has always been the heart of the battle ground between the parties and we made this clear at paragraph 65 at page 17 of our original submissions. 

We say that because it operates in the way it does, your Honours should find that the answers to our questions are that it impermissibly burdens, in terms of question 1(a), but in terms of question 1(b) it should be construed so as not to apply to a prisoner on the basis of the constitutional freedom being infringed if it did.  We say in respect of 200(2), by the deletion of (u) much of the heat is taken out of that subsection and the operation of that section, but we do maintain that condition (t) in particular – if 132 falls in respect of parolees and now (u) is gone, much of the heat goes out of the blanket ban that existed on Mr Wotton’s freedom, but we say condition (t) still goes too far having regard to the Parole Board’s intended operation of that to prevent political participation and political communication. 

We would say that the appropriate answer to 3 is that condition (t) and, incidentally, condition (v), although much of the steam goes out of (v) if 132 and (u) do not apply, do impermissibly burden the freedom and that we otherwise seek the orders that we had previously sought.  So we say that those are the matters we would wish to put in reply, even if partly airborne, if your Honours please.

FRENCH CJ:   Mr Merkel, Justice Gummow has directed my attention to rule 27.08.6 relating to the special case.  It really seems to be a matter that the amendment of the special case is a matter between the parties and it will be necessary for you simply to comply with the procedural requirement of 27.08.6 in order to put those questions properly before the Court.

MR MERKEL:   Yes, if your Honour pleases.  Thank you, your Honour.

FRENCH CJ:   The Court will reserve its decision and the Court adjourns until midday.

AT 11.17 AM THE MATTER WAS ADJOURNED