- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
SUPREME COURT OF QUEENSLAND
Court of Appeal
General Civil Appeal
22 December 2006
21 November 2006
McMurdo P, Holmes JA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made
Appeal dismissed with costs
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – appellant imprisoned indefinitely and the subject of maximum security orders for over eight years – conflict between ss 3 and 47(2) of the Corrective Services Act 2000 (Qld) – whether expressed purpose of ‘humane containment’ restricts respondent’s power to make successive maximum security orders – non-compliance with departmental policy issued under the Corrective Services Act 2000 – conflict between policy and legislation – whether non-compliance with departmental policy invalidates an order made under s 47 of the Corrective Services Act 2000
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – respondent’s criminal history and recent good behaviour – whether there were reasonable grounds for the respondent to exercise her power to make maximum security order
Corrective Services Act 2000 (Qld), s 3, s 47, s 48, s 189
Statutory Instruments Act 1992 (Qld), s 7, s 9
Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223, applied
Buck v Bavone (1976) 135 CLR 110, applied
Garland v Chief Executive, Department of Corrective Services  QSC 245, considered
George v Rockett (1990) 170 CLR 104, applied
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, applied
Puhlhofer v Hillingdon London Borough Council  AC 484, applied
N M Cooke QC, with M J Rinaudo Lewis, for the appellant
J A Logan SC, with G J Handran, for the respondent
Aboriginal & Torres Strait Islander Legal Service for the appellant
Crown Law for the respondent
 McMURDO P: I agree with Chesterman J's reasons subject only to the following observation.
 In my view the Chief Executive, in making an order under s 47 Corrective Services Act 2000 (Qld) that a prisoner be accommodated in a maximum security facility, would remain cognizant of the purpose of the Act set out in s 3:
"... community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders ... recognis[ing] that every member of society has certain basic human entitlements, and that, for this reason, an offender's entitlements, other than those that are necessarily diminished because of imprisonment ... should be safeguarded ... [and] the need to respect an offender's dignity ... [and] the special needs of some offenders by taking into account ... age, gender or race ... disability ... [and] the culturally specific needs of Aboriginal and Torres Strait Islander offenders."
 The facts set out by Chesterman J clearly demonstrate that the primary judge was entitled to conclude that the appellant's containment in a maximum security facility under the s 47 order was not inhumane in the context of his necessarily diminished entitlements because of his imprisonment whilst subject to a lawfully made order under s 47.
 The appeal should be dismissed with costs.
 HOLMES JA: I have read the reasons for judgment of Chesterman J and agree that the appeal should be dismissed, for the reasons he gives.
 CHESTERMAN J: On 23 October 1998 the applicant was sentenced to an indefinite sentence of imprisonment on each of four counts of rape. Life imprisonment was specified as the nominal sentence for each of the indefinite sentences. As well the applicant was sentenced to other concurrent sentences:
- Life imprisonment on each of three counts of indecent assault with a circumstance of aggravation.
- Five years’ imprisonment on each of two counts of indecent assault with a circumstance of aggravation, one count of burglary, one count of assault occasioning bodily harm whilst armed, and one count of abduction.
- Three years’ imprisonment on each of ten counts of deprivation of liberty, on each of fourteen counts of serious assault, on one count of indecent assault with a circumstance of aggravation, on one count of indecently dealing with a child under sixteen, on each of two counts of housebreaking and on each of two counts of unlawful use of a motor vehicle.
- Two years’ imprisonment for going armed in public so as to cause fear and for receiving.
- Six months’ imprisonment on one count of common assault.
 A description of the offences and the circumstances in which they were committed are set out in the reasons of the trial judge from whose judgment this appeal is brought. Her Honour said ( QSC 245):
‘ The circumstances of the offences were set out in the sentencing remarks by Hoath DCJ. They showed that the offences on 6 April 1997 involved Mr Garland’s abducting, raping, and forcing oral sex on a 14 year old girl who had no sexual experience and who knew and trusted Mr Garland. At the time he committed the offences he was armed with a long bladed razor which he used to threaten the complainant.
 Mr Garland then fled to Mackay. He took a young man aged 16 to a motel. Holding a gun to the young man’s head, Mr Garland punched him twice in the face and forced the young man to perform oral sex on him. Mr Garland then committed unlawful anal intercourse on the young man. Later, armed with a knife, he again forced the youth to perform oral sex on him and sodomised him on a further two occasions. That complainant then managed to flee.
 Mr Garland then forced a young couple at gunpoint to drive him out of town. As a result of threats made by Mr Garland they drove him to the residence of some friends. Mr Garland noticed two young people, a brother and sister, walking nearby. He ordered them at gunpoint to return with him to their flat which gave the young couple the opportunity to escape. Mr Garland went with the brother and sister into their flat and barricaded the doors. Later Mr Garland went outside the flat and discharged the gun several times. He came back into the flat, got the brother and sister and then went outside with them pointing the gun at them. He instructed the boy to call a man and a woman who were walking on the other side of the road over to them. The female member of that couple was then five months pregnant. Mr Garland then ordered them all to go back to the flat and again he went outside from time to time to discharge the gun.
 That night Mr Garland rang the police and told the operator that he wanted a particular Catholic priest to be there within an hour or he would kill one of his hostages. Five hours of negotiations with the police ensued during which time he made many demands including a demand for drugs and said that he would kill one or more of the hostages if those demands were not met. The male member of the couple left the flat when he was ordered to leave to get drugs. He did not return. Later in the evening the brother and sister were tied up in separate bedrooms. The girl was indecently assaulted and then raped twice. After Mr Garland fell asleep she escaped to the other bedroom where she untied her brother and they both escaped. Mr Garland then took the pregnant woman into one of the bedrooms, tied her ankle to his and then later raped her.
 He left the flat with the pregnant woman and entered another flat at gunpoint after pretending to be the police. In that flat he ordered two women and two children to leave but told the three remaining occupants that he would kill them if they did not do as he told them. They then accompanied Mr Garland into a car at gunpoint. When the car stalled, Mr Garland fired the gun but the police ran to the car. Mr Garland then held the driver at gunpoint ordering the police to retreat or the driver would be killed. Shortly afterwards the car was rammed by a police vehicle and Mr Garland was captured by the police.
 The sentencing judge said:
“Your conduct during these offences showed a calculated brutality and complete insensibility to the ordeal of your victims. The only glimmer of any understanding of the depraved sexual abuse, terror and suffering you caused to these people was your statement to [the pregnant woman] that you were sorry for what you had done to her.”’
 At the time of the offences the appellant was on parole. He had been released from gaol four months earlier after having served eleven years’ imprisonment for a number of violent sexual offences. His history was described by the trial judge:
‘ … He was brought up in an abusive and dysfunctional environment and before he was 10 was living on the streets without any parental support or guidance. The learned judge noted that since 1982, when he was convicted at 11 years of age of an offence of breaking, entering and stealing, he had only spent approximately 18 months outside jail or other institutions. The judge referred to Mr Garland’s extensive criminal history of convictions for assault, stealing, escaping lawful custody, failing to appear, robbery with intent and in company, taking and using a conveyance, being an unlicensed driver, stealing a motor vehicle, malicious injury, stealing a motorbike and resisting police.
 More significantly, Mr Garland had been convicted on three counts of sexual assault at the age of 14 in August 1985 and committed to an institution for two years. That offence was raping, sodomising and forcing a 14 year old girl to perform oral sex on him and threatening to kill her if she reported the offences. Within a fortnight of his release in respect of those offences he indecently dealt with two young girls as well as committing other offences not of a sexual nature.
 In 1987, when he was 16 years old, he brutally sodomised and forced two 14 and 15 year old youths to perform oral sex on him in the watch house at Southport. He applied pressure to the throats of each of the youths and threatened to kill one of them and threatened to harm the other youth or his parents. These were his first convictions for committing sexual offences on other persons in custody.
 A week after he committed those offences, Mr Garland escaped from custody and fled to New South Wales. In company with another youth he sodomised a 14 year old youth while holding a broken beer bottle to that youth’s throat. He was sentenced to two and a half years imprisonment and after serving about six months of that imprisonment he was extradited to Queensland to face charges arising out of the offences committed at the Southport watch house. Whilst on remand in Queensland, Mr Garland attempted to commit another sexual assault on a prisoner. He assaulted a prisoner with a pair of nail clippers and ordered him to perform oral sex on him. That prisoner was able to escape without suffering the threatened sexual abuse. He was sentenced to six months imprisonment in respect of that offence and on 27 April 1988 he pleaded guilty to the offences arising out of the incidents at the Southport watch house and was sentenced to a total of seven years imprisonment.
 While serving that period of imprisonment, in September 1988 whilst he was in the Boggo Road Prison hospital, Mr Garland sodomised and committed an act of oral sex on a prisoner whilst armed with a razor blade and whilst making threats to cut his throat. For those offences he was sentenced, after an appeal, to four years imprisonment. Mr Garland was also convicted of assault occasioning bodily harm in relation to an assault that occurred on 1 February 1989 and unlawful assault as a prisoner committed on 11 June 1989. He was convicted on three counts of wilful and unlawful damage to property which occurred on 13 July 1989.
 He was convicted on two counts of assault on a correctional services officer whilst being a prisoner which occurred on 10 October 1989 and 21 November 1989 and two counts of assault occasioning bodily harm whilst armed with an offensive weapon which were committed on 10 October 1989. He was convicted of preparing to escape lawful custody on 23 December 1989. Mr Garland was further convicted of wilful and unlawful destruction of property which was committed on 17 December 1990 and convicted of assaulting a correctional officer on 12 June 1992 and stealing on 17 May 1995. He has been convicted of 29 offences committed whilst in custody.’
 Since his conviction and imprisonment in October 1998 the applicant has been held in a maximum security unit, presently at the Arthur Gorrie Correctional Centre. His detention in that unit was authorised by s 47 of the Corrective Services Act 2000 (Qld) (‘the Act’), which has since been repealed and replaced by the Corrective Services Act 2006 (Qld). That section provides:
‘(1)The chief executive may make an order (a maximum security order) that a prisoner be accommodated in a maximum security facility.
(2) The order may be made only if –
(a) the prisoner is classified as maximum security; and
(b) the chief executive considers, on reasonable grounds, that 1 or more of the following apply –
(i) there is a high risk the prisoner will escape, or attempt to escape;
(ii)there is a high risk the prisoner will inflict death or serious injury on other prisoners or other persons with whom the prisoner may come into contact;
(iii)generally, the prisoner is a substantial threat to the security or good order of the facility.
(3) The term of the order must not be longer than 6 months.’
 By s 48 the chief executive may make a further maximum security order to take effect from the end of an existing order. That power can only be exercised on notice to the prisoner and may only be made in the last fourteen days of an subsisting maximum security order.
 The applicant has been the subject of successive maximum security orders for eight years. On 2 March 2006 the respondent made such an order on the basis provided for by s 47(2)(b)(iii) that the applicant is a substantial threat to the security or good order of the facility. On 3 March 2006 the applicant sought judicial review of the respondent’s decision on the grounds that:
(a)There was no evidence or other material to justify the making of the decision in that there was no evidence by which the respondent could on reasonable grounds consider the applicant to be a substantial threat to the security or good order of the prison.
(b) That the making of the decision was an improper exercise of power in that it was made without an independent assessment of the risk the applicant would pose to other prisoners if returned to the ordinary prison community.
(c) The decision was otherwise contrary to law in particular s 3 of the Act.
 The application was heard over three days in July and August 2006. Judgment dismissing the application was given on 7 September 2006. The applicant appeals against the dismissal of his application on the grounds that:
(a)The trial judge erred in law in not finding that the respondent gave excessive weight to the appellant’s criminal history and failed to give adequate weight to the appellant’s exemplary behaviour over the past six years in the maximum security unit.
(b) The trial judge erred in law in finding that the requirement for humane containment in s 3 of the Act does not apply to the appellant.
(c) The trial judge erred in law in finding that the containment of the appellant in the maximum security unit for six years was not inhumane.
(d) The trial judge erred in finding that there was a reintegration plan for the appellant’s eventual return into the general prison community.
(e) The trial judge erred in finding that the appellant was being managed in accordance with the policy in force for the regulation and reintegration of prisoners held in a maximum security unit.
(f) The trial judge erred in law in finding that the management plan applicable to the appellant was capable of being a ‘reintegration plan’.
 The appellant’s argument in this Court proceeded as though it were an appeal de novo to determine the correctness of the respondent’s decision made on 2 March 2006. No regard was paid to the consideration that the appeal was from the judgment of the Trial Division of the Supreme Court dismissing an application for the judicial review of an administrative decision. Once these factors are put into proper focus the issues for the appeal become quite short.
 There are three complaints. The first is that the trial judge was wrong not to have found that the respondent’s decision was unreasonable in the sense described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223, or that the respondent had given excessive weight to the appellant’s criminal history, an essentially irrelevant fact, while giving little or no weight to his good behaviour during eight years confinement in maximum security, an important fact. The second was that the decision was unlawful because it conflicted with the requirement in s 3 of the Act that the appellant be confined humanely. The third ground was that the decision was unlawful because it conflicted with the respondent’s own policy for the treatment of prisoners the subject of a maximum security order.
 It is convenient to deal with the first point last since it involves a discussion of the evidence. The other two points are points of law only which may be discussed quite briefly.
 Section 3 of the Act provides:
‘(1)The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.
(2)This Act recognises that every member of society has certain basic human entitlements, and … an offender’s entitlements, other than those that are necessarily diminished because of imprisonment … should be safeguarded.
 The appellant’s submissions were that his ‘basic human rights are recognised by s 3(2), other than those reasonably diminished because of imprisonment, and that he has such a right to be kept in humane containment whilst subject to a maximum security order.’ The submission continues that the length of the appellant’s incarceration in a maximum security unit, the severe restrictions on movement and activities occasioned by that incarceration, and the fact that there is no plan to integrate him into the wider prison community make his continued confinement in the maximum security unit inhumane.
 Although the submission does not in terms express the point, it is predicated upon the proposition of law that s 47 of the Act is subject, in its operation, to s 3. That is to say the threshold for the submission is that a maximum security order may not be made under s 47 if the consequence will be that the appellant will be inhumanely contained.
 The trial judge considered this point with great care and at some length. Her Honour concluded by noting that the appellant’s accommodation in the maximum security unit is not for punishment but for the maintenance of security in the prison environment and that the appellant was treated consistently with the Standard Guidelines for Corrections in Australia, and that the conditions of his containment were not inhumane. Both conclusions are challenged. It is said that the conditions are inhumane in any event and that their quality is not affected by the purpose for which the appellant is kept in maximum security, whether for punishment or the proper administration of the prison.
 There is no need to consider these arguments, and the facts relevant to them, if the basic premise is not made out. Unless the appellant can demonstrate that the power conferred on the respondent by s 47 must be exercised subject to the provisions found in s 3, it will not matter whether his containment is humane or not.
 It is clear that s 47 is not subject to s 3. The latter is a statement of legislative purpose. It sets out what the Act is intended to achieve. It does not contain a restriction upon the specific power conferred on the respondent by s 47. That section is quite explicit. The chief executive may make a maximum security order if a prisoner is classified as maximum security (as the appellant is) and the chief executive considers, on reasonable grounds, that (relevantly) the prisoner is a substantial threat to the security or good order of the prison. If the statutory pre-conditions are satisfied the order may be made. It is not a requirement that the chief executive be satisfied that the prisoner will be contained humanely if the order is made. Nor is it a condition of such an order that the prisoner be contained humanely so that if the condition be unsatisfied the order will lapse or become unlawful.
 The result is not as bleak as may appear from this statement of the law. As the trial judge’s careful exegesis of the topic reveals there is a great deal of scope for debate about what is, or is not, inhumane about the treatment of prisoners. There is no reason to suspect that the respondent and her officers do not treat the appellant in as humane a manner as possible consistent with the constraints on his liberty imposed by confinement in the maximum security unit. He is adequately housed, fed and clothed. He has some, though limited, access to educational and recreational resources. His capacity for movement beyond his cell and contact with other human beings is limited but this is because of the danger he has posed to other prisoners and prison officers in the past.
 The appellant is not without redress should his treatment become inhumane by reason of anything done to him by a prison officer. Should he be physically mistreated, assaulted or tortured, the fact could not be concealed and the perpetrator would be prosecuted for an offence against the Criminal Code. If the appellant were neglected and came to harm he could sue for and recover damages from the respondent.
 I mention these matters lest it be thought that the Court is indifferent to the appellant’s position. They are not, however, relevant to his legal challenge to the respondent’s decision and the trial judge’s rejection of it. This ground of challenge is not made out.
 The appellant’s next point is that his confinement in the maximum security unit is inconsistent with the policy of the Department of Corrective Services and that the policy has the force of law as a statutory instrument. The submission stops short of contending expressly that the making of the maximum security order was unlawful because the appellant’s detention pursuant to the order does not comply with the policy. Unless that submission is made, and made good, any non-compliance with departmental policy cannot invalidate an order made in accordance with the provisions of s 47. The appellant did not address this point in submissions but it is fundamental to the success of this ground of appeal.
 Section 189 of the Act provides that the chief executive must make administrative policies and procedures to facilitate the effective and efficient management of corrective services. There is a policy concerning maximum security orders and the treatment of prisoners made subject to such orders. The relevant policy was published to take effect from 15 August 2005. Its purpose is stated to be:
‘To provide that the issuing of a maximum security order, placement of a prisoner in a maximum security unit and the reintegration of the prisoner into the mainstream prison population occurs in a consistent, transparent and safe manner.’
 Paragraph 6 of the policy provides that:
‘The person in charge of a corrective services facility with a maximum security unit, must form a team to –
(a) develop a plan for a prisoner placed on a maximum security order according to the prisoner’s assessed risks and needs and specifying strategies for the reintegration of the prisoner into the mainstream prison population;
(b)review the plan and, consistent with the prisoner’s maximum security order, determine privileges according to institutional behaviour, assessed risk, and responses to programs and interventions;
 An appendix to the policy ‘Progression Guidelines for MSU Prisoners’ describes the treatment of a prisoner subject to a maximum security order from Stage 1, reception, to Stage 4, preparation for reintegration. The appendix details the privileges and restrictions afforded to a prisoner with respect to each of the four stages. If, during a period of at least 21 days in Stage 1 the prisoner ‘has met all goals in Management Plan and adhered to all procedures outlined above’ he will be eligible for a less restrictive regime in Stage 2. Again, if after 21 days, the prisoner shows promise of good behaviour by meeting ‘all goals’ and adhering ‘to all procedures’ he will be moved to Stage 3 which is described as ‘resocialisation’. If, during a period of four weeks, the prisoner meets the same criteria as for the previous two stages, he will move to Stage 4 ‘Preparation for Reintegration’ by which time the prisoner ‘will no longer be on a Maximum Security Order …’.
 The appellant has never progressed to Stage 4 and his counsel submits that the particular management plan drawn up for him does not contain any measures for moving him into the latter stages of the policy by assisting or permitting him to ‘resocialise’ or ‘reintegrate’.
 By s 7 of the Statutory Instruments Act 1992 a ‘statutory instrument’ is any document made under an act or a power conferred by an act. The appellant therefore submits that the policy made pursuant to s 189 is a statutory instrument. The policy, even if it be a statutory instrument, is not subordinate legislation. Section 9(1) describes which instruments are ‘subordinate legislation’ and none of the categories therein set out includes a departmental policy made under legislative authorisation.
 But whether or not the policy is a statutory instrument, and whether or not it is subordinate legislation, it cannot operate to amend the plain terms of s 47 of the Act. The policy does not purport to do so. It is a ‘policy’. It contains guidelines for the management of prisoners subjected to a maximum security order but it does not provide that in every case every prisoner must be treated in accordance with the policy. If it purported to do so it would be invalid as being necessarily inconsistent with s 48 of the Act which allows for successive maximum security orders to be made with respect to the same prisoner. If the circumstances warrant successive orders they may be made, so long as the statutory criteria set out in s 47 are satisfied. The operation of those sections cannot be amended or curtailed by any departmental policy, even if it amounted to a statutory instrument.
 There was debate at the trial and on the appeal about the evidence, which is said to be conflicting, concerning the terms of the appellant’s management plan and whether or not it contains proposals by which he might progress to Stage 4 of the policy. It is not necessary to rehearse the evidence or the arguments. Even if the appellant’s management plan does not comply with the policy or the guidelines, the making of the maximum security order will not be affected. The order will be valid if made in accordance with the terms of s 47.
 This leads to the third ground of appeal, which does contend that the order was not made in accordance with the sections. This ground was given prominence by the appellant’s counsel. It is the one under the guise of which the appellant sought to have the Court review the merits of the respondent’s decision to subject him to a further maximum security order. The ground is that the respondent improperly exercised the power conferred on her by s 47 in that she failed to take a relevant consideration into account and gave insufficient weight to a relevant consideration. Reliance was put on the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-42 which explained that where this kind of error occurs the decision is ‘manifestly unreasonable’.
 The appellant’s argument, in a nutshell, is that the respondent greatly over-emphasised his criminal past, including his history of violent sexual assaults upon fellow prisoners and assaults or threats of assaults against prison officers, and failed to give adequate weight to the fact that since his confinement in the maximum security unit his behaviour has been good. The appellant’s submissions are:
‘In light of ss. 47 and 48 of the … Act and the policy … the Appellant’s conduct and behaviour in the [maximum security unit] for the past six years is “a relevant factor of great importance”.
Conversely, the Appellant’s criminal history (both in and out of prison) which ceased approximately nine years ago, is “a relevant factor of no great importance”.
The decision-maker assessed the Appellant’s risk on the basis of historical criminal history which can never be changed, and gave it excessive weight. … At the same time, the Appellant has not been offered any treatment aimed at reducing [the respondent’s] perceived risk [sic] for at least two years, since the last judicial review.’
 The respondent was obliged, by an order of the Supreme Court, to give reasons for her decision of 2 March 2006. The reasons are detailed and comprehensive. They include the following:
‘Although I recognised that [the appellant] has been of good behaviour and has not committed any offences or breaches whilst accommodated in the maximum security unit, the opportunity to offend, particularly in a sexual manner, is virtually non existent within the highly structured and restrictive environment of [that] unit. Owing to the level of risk that [the appellant] poses, the department established a structured intervention program involving both experienced independent psychologists and senior departmental psychologists. I regard it as imperative that the prisoner’s identified risk be reduced before he is reintegrated into the mainstream prison population. I was briefed on 25 January 2006 on the prisoner’s progress. Although I considered he was making some progress I was not then presently satisfied … that his return to the mainstream population could be justified. My opinion was that the control required to minimise the risk to staff and other prisoners and to ensure stability and promote progression, including specialist interventions, is best met in an environment such as the maximum security unit. My opinion was that the prisoner remained a real and serious risk to the safety of others and as such posed a substantial threat to the security or good order of the facility. In reaching this decision I balanced the prisoner’s past history with those positive aspects of his case that I have mentioned … including his current positive behaviour and attitude, the fact that it has been a number of years since his last reported negative incident and his cooperation and progress through the intervention process.’
 In cross-examination the respondent expressed her concern more succinctly. She said:
‘We don’t want to create situations where he might rape or sexually assault another individual.’
 The respondent’s jurisdiction to make a maximum security order may be exercised where ‘the chief executive considers, on reasonable grounds, that … generally, the prisoner is a substantial threat to the security or good order of the facility.’ The provision is thus of a type in which the jurisdiction to make the decision depends upon the decision-maker’s opinion or belief that a certain state of affairs exists.
 As Gummow J explained in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651:
‘The “jurisdictional fact”, upon the presence of which jurisdiction is conditioned, need not be a “fact” in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase “jurisdictional fact” is an awkward one in such circumstances it will, for convenience, be retained in what follows. In Bankstown Municipal Council v Fripp … Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker. … The prosecutor was entitled to the grant … only if the Minister were “satisfied” that the prosecutor answered the description …’.
Section 47(2)(b) is of this type.
 In Eshetu (at 627) Gleeson CJ and McHugh J quoted with approval the remarks of Lord Brightman in Puhlhofer v Hillingdon London Borough Council  AC 484 at 518:
‘Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.’
 Gummow J said in Eshetu (653-4):
‘… in Buck v Bavone … Gibbs J observed … that it was not uncommon for statutes to provide that a decision-maker shall or may take certain action if satisfied of the existence of certain specified matters. His Honour noted that the nature of the matters of which the authority is required to be satisfied often largely will indicate whether the decision of the authority can be effectively reviewed by the courts.’
 In Buck v Bavone (1976) 135 CLR 110 Gibbs J said (at 118-119):
‘However, where the matter of which the authority is required to be satisfied is a matter of opinion … it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.’
It follows that there was little practical scope for the appellant’s challenge to the legal propriety of the respondent’s decision.
 Before the order can be made the respondent must be of the opinion, or ‘consider’ that the appellant was a substantial threat to the security of the prison ‘on reasonable grounds’. This requirement is that there must exist facts sufficient to induce the opinion in the mind of a reasonable person. In George v Rockett (1990) 170 CLR 104 the High Court said (at 112):
‘When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. … Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist.’
 The trial judge reviewed the evidence with great thoroughness. It is apparent from her Honour’s reasons that there was ample evidence to support the respondent’s decision. That evidence showed the appellant to have been an incorrigible, violent, depraved criminal. Because of those characteristics it has been necessary to confine him in maximum security where he has had little opportunity to demonstrate any improvement in his attitudes or propensities.
 The respondent was charged with the task of deciding whether such slight evidence as there is of improvement outweighs the substantial risk to the safety of others that the appellant has manifested. It is only if the evidence indicates that the respondent could not reasonably have considered that the appellant remained a substantial threat to the security or good order of the facility that the court might interfere and set aside her decision.
 Some of the evidence reviewed by the trial judge included the report of Ms Creamer, a psychologist who assessed the appellant to determine how he should be managed in gaol; to identify programs that might assist his rehabilitation; and to ascertain the risk that the appellant might reoffend. According to the trial judge:
‘Ms Creamer … identified the purpose of her report as being to show not only how Mr Garland’s behaviour could be explained and predicted but also controlled.’
Ms Creamer’s lengthy report contains this passage, which was cited by the trial judge:
‘… it should be further noted that the best predictor of future behaviour is past behaviour, unless there has been appropriate and targeted intervention and a subsequent change in thinking style that would reduce the risk. In Mr Garland’s case, he has undertaken a certain number of programs whilst in prison in order to address his offending behaviour, but continued to offend despite these programs.’
 Another psychologist, Ms Bennett, reported on the appellant’s progress on 25 March 2004. The trial judge summarised her report:
‘Mr Garland was reportedly negative and pessimistic about his prospects of leaving the MSU. The report contained details of an incident on 27 February 2004 where he behaved in a highly volatile and threatening way. She concluded that his outburst indicated that the risk factors identified by Ms Creamer were still readily provoked and very evident in his reasoning style, specifically aggressive thinking patterns, poor impulse control, poor cognitive style, lack of empathy, lack of consequential thinking and limited self-control. …’
 Against these considerations the appellant can point only to the fact that he has not committed any act of violence or sexual importunity since October 1998, the period he has been kept in maximum security. He has not had any opportunity to misbehave so the lack of misconduct is of very limited significance. The appellant’s counsel made much of his difficult situation. He cannot be released from maximum security unless he shows that he has a capacity for self-control and voluntary good behaviour. But he cannot demonstrate those characteristics unless he is released from maximum security. The appellant’s predicament was well described by Joseph Heller.
 One can understand the appellant’s frustration but the facts remain that there is substantial evidence that the appellant constitutes a serious risk to the safety of other prisoners if allowed access to them and limited evidence that he may have changed his ways. The evaluation of the evidence and the assessment of the risk the appellant would pose to the safety of other prisoners and the good administration of the prison was conferred on the respondent by s 47 of the Act.
 The trial judge pointed out, after her Honour’s review of the facts (at -):
‘During cross-examination, [the respondent] agreed that she was most concerned that [the appellant] might assault another prisoner if he were placed in the general prison where supervision is considerably less than in the MSU. She said, “In our correctional centres in general we have 50 bed units and there are opportunities for people to behave inappropriately if they choose to do. I’m of the view that [the appellant] represents an extreme risk of sexual re-offending in particular and a risk of physical re-offending, violent re-offending as well and that’s a concern.”
It could hardly be said that there was no evidence or other material on which [the respondent] could consider generally that [the appellant], outside of the MSU, is a substantial threat to the good order or security of the prison. That material included his serious history of sexual assaults on other prisoners, the cessation of that offending behaviour only when he lacked the opportunity to re-offend and the serious consequences to other prisoners and therefore to the good order of the prison if he did so re-offend. As a matter of reason, that material had probative value. The weight attached to that material was a matter for the decision maker. It could not be said that her decision was made not in good faith, or was made perversely, capriciously or arbitrarily.’
 Her Honour’s conclusion is, with respect, correct. The respondent had ample evidence which could lead reasonably to the opinion that the appellant posed a substantial threat to the good order of the prison unless confined in the maximum security unit.
 The order, the making of which was the subject of the appellant’s application for review, has expired. It ran for six months from 2 March 2006. Despite this the parties submitted that the Court should address the appellant’s submissions. Should any substance have been found in his complaints the Court’s explanation of any error in the decision-making process would be given proper consideration and respect by the respondent in the event that further maximum security orders are to be made.
 The appeal should be dismissed with costs.
- Published Case Name:
Garland v Chief Executive, Department of Corrective Services
- Shortened Case Name:
Garland v Chief Executive, Department of Corrective Services
 QCA 568
McMurdo P, Holmes JA, Chesterman J
22 Dec 2006
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 245||07 Sep 2006||Application for judicial review of Corrective Services decision issuing a maximum security order; not been successful in showing that there was no evidence or other material to justify the making of the decision; nor that making the decision was an improper exercise of power with the result that the exercise was so unreasonable that no reasonable person could so exercise the power: Atkinson J.|
|Appeal Determined (QCA)|| QCA 568||22 Dec 2006||Appeal dismissed with costs; the primary judge was entitled to conclude that the appellant's containment in a maximum security facility under the s 47 Corrective Services Act order was not inhumane in the context of his necessarily diminished entitlements because of his imprisonment whilst subject to a lawfully made order under s 47: McMurdo P, Holmes JA and Chesterman J.|
|Special Leave Refused|| HCATrans 154||24 Apr 2007||Special leave refused; not now right to permit the applicant to agitate the availability of ancillary relief when it is acknowledged that the principal relief cannot be granted: Kirby, Hayne and Crennan JJ.|