[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Fraser JA.  I agree with the orders proposed by His Honour, and with his reasons.

[2] MUIR JA: I agree with the reasons of Fraser JA and with his proposed orders.

[3] FRASER JA: On 1 November 2011, a judge in the Trial Division ordered that the respondent’s existing supervision order made in 2008 under the Dangerous Prisoners (Sexual Offenders) Act 2003 be amended in various respects.  The Attorney-General has appealed against the part of the primary judge’s order in paragraph 4:

“4.Insert after paragraph 2 the following paragraph:

3.The Chief Executive (Corrective Services) must provide:

a.the respondent a community based residential or outpatient alcohol relapse prevention therapy program, preferably with indigenous patients, provided by a trained drug and alcohol counsellor on a weekly basis in the first instance and then up to second weekly after 3 months and then monthly after 6 months;

b.the respondent psychiatric treatment to assist him to cope with stressful situations, manage relationships with female partners and deal with his anger and irritability, initially on a second weekly basis and then once per month after a period of 3 to 6 months;

c.the respondent with a culturally appropriate community based sexual offender program;

d.transport to Townsville precinct on 2 November 2011.”

[4] The grounds of the Attorney-General’s appeal are, in summary, that an order imposing requirements upon the Chief Executive was not authorised by the Act and that the making of the order involved a denial of procedural fairness to the Chief Executive.

Background

[5] The objects of the Dangerous Prisoners (Sexual Offences) Act 2003 are expressed in s 3:

“(a)to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and

(b)to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”

[6] The court is empowered to make “continuing detention orders” and “supervision orders” if the Attorney-General satisfies the court that the prisoner is a serious danger to the community in the absence of such an order: ss 13(1), (2), (5) and (7).  In that event, the court may order under s 13(5):

“(a)that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or

(b)that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).”

[7] Section 16 sets out requirements which a supervision order must contain and it provides for requirements which the order may contain:

“16Requirements for orders

(1)If the court or a relevant appeal court orders that a prisoner’s release from custody be supervised under a supervision order or interim supervision order, the order must contain requirements that the prisoner—

(a)report to a corrective services officer at the place, and within the time, stated in the order and advise the officer of the prisoner’s current name and address; and

(b)report to, and receive visits from, a corrective services officer as directed by the court or a relevant appeal court; and

(c)notify a corrective services officer of every change of the prisoner’s name, place of residence or employment at least 2 business days before the change happens; and

(d)be under the supervision of a corrective services officer; and

(da)comply with a curfew direction or monitoring direction; and

(daa)comply with any reasonable direction under section 16B given to the prisoner; and

(db)comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order; and

Examples of direct inconsistency—

If the only requirement under subsection (2) contained in a particular order is that the released prisoner must live at least 1km from any school—

1A proposed direction to the prisoner would be directly inconsistent if it requires the released prisoner to live at least 2km from any school.

2A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner to live at least a stated distance from something else, including, for example, children’s playgrounds, public parks or child care centres.

3A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner not to live anywhere unless that place has been approved by a corrective services officer.

(e)not leave or stay out of Queensland without the permission of a corrective services officer; and

(f)not commit an offence of a sexual nature during the period of the order.

(2)The order may contain any other requirement the court or a relevant appeal court considers appropriate—

(a)to ensure adequate protection of the community; or

Examples for paragraph (a)—

•a requirement that the prisoner must not knowingly reside with a convicted sexual offender

•a requirement that the prisoner must not, without reasonable excuse, be within 200m of a school

•a requirement that the prisoner must wear a device for monitoring the prisoner’s location

(b)for the prisoner’s rehabilitation or care or treatment.”

[8] The respondent admitted that he had contravened requirements of the existing supervision order.  The onus was then upon him to satisfy the court on the balance of probabilities that adequate protection of the community could, despite the contraventions, be ensured by the existing supervision order, as amended under s 22(7).  Section 22 provides:

“22Court may make further order

(1)The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order).

(2)Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must—

(a)if the existing order is a supervision order, rescind it and make a continuing detention order; or

(b)if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order.

…

(7)If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court—

(a)must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and

(b)may otherwise amend the existing order in a way the court considers appropriate—

(i)to ensure adequate protection of the community; or

(ii)for the prisoner’s rehabilitation or care or treatment.”

[9] Before the primary judge, the respondent contended, and the Attorney-General did not dispute, that the evidence established on the balance of probabilities that adequate protection of the community could, despite the contraventions of the existing supervision order, be ensured by an amended supervision order.  The primary judge so held, and ordered various amendments to the existing order of the kind contemplated by s 22(7)(a), to ensure that it included all of the requirements in s 16(1).  The primary judge also ordered other amendments which imposed requirements upon the respondent.  There is no challenge to those parts of the order.

[10] The Attorney-General challenged only paragraph 4 of the order, which is set out in [3] of these reasons.  Before the primary judge, counsel for the Attorney-General did not oppose the respondent’s request for that order.  The primary judge considered that the order was authorised by the provision in s 16(2) that “…[t]he order may contain any other requirement the court or a relevant appeal court considers appropriate…to ensure adequate protection of the community…or…for the prisoner’s rehabilitation or care or treatment.”

The Chief Executive’s application for joinder as a party in the appeal

[11] The Chief Executive applied under r 750 or r 69(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld) to be included as a party to the proceedings or, in the alternative, to be granted leave to intervene in the proceedings, and for leave to adduce evidence in the appeal.  Rule 750(1) empowers the Court of Appeal to order the inclusion of a person as a party to an appeal, whether or not the person was a party to the original proceeding.  The Chief Executive is entitled to challenge paragraph 4 of the order because that part of the order imposes obligations directly upon the Chief Executive.  At the hearing of the appeal the respondent did not oppose an order joining the Chief Executive as second appellant.

The arguments for the Attorney-General and the Chief Executive

[12] The Attorney-General argued that the power in s 22(7) of the Act to amend an existing supervision order is no more extensive than the power to make the initial supervision order under s 16, and that the statutory context requires s 16(2) to be construed as limiting the “requirements” in a supervision order to requirements imposed upon the prisoner.  The Attorney-General referred to Winters v Attorney-General (NSW)[1] and New South Wales v Brookes,[2] which were concerned with “extended supervision orders” made under the Crimes (Serious Sex Offenders) Act 2006 (NSW).  The Chief Executive advanced a similar argument and referred to Attorney-General v Brown.[3]  The Chief Executive also made the point that the examples for s 16(2)(a) referred to requirements imposed only upon the prisoner. 

[13] The Attorney-General and the Chief Executive also argued that paragraph 4 of the order should be set aside on the alternative ground that the Chief Executive was not a party or given any notice of the proposed order, and therefore had no opportunity to be heard and was denied procedural fairness. 

The respondent’s arguments

[14] The respondent argued in the outlines of submissions filed on his behalf that the Attorney-General and the Chief Executive were estopped from challenging the part of the order under appeal made against the Chief Executive.  That argument was abandoned at the hearing of the appeal when the respondent also abandoned his application to file new evidence in the appeal.  As a result, the Chief Executive abandoned a responsive application for leave to adduce new evidence and the Attorney-General did not bring a foreshadowed application to adduce new evidence.

[15] The respondent argued that the part of the order under appeal was authorised by s 16(2) when that provision was understood in the context of the objects of the Act expressed in s 3, s 13(4), and the expert medical evidence adduced in the Trial Division.  Section 13(4) specifies certain matters to which the court must have regard in deciding whether a prisoner is a serious danger to the community, including “(a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists…”, “(b) any other medical, psychiatric, psychological or other assessment relating to the prisoner” and “(c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future…” The effect of the expert medical evidence adduced in the Trial Division was that the matters specified in the part of the order under appeal are appropriate conditions to be imposed upon the respondent’s release upon a supervision order.

Consideration

[16] The issue depends upon the proper construction of the Act.  The New South Wales cases are not useful as precedents in relation to the Act because those cases concerned materially different legislation.

[17] The relevant part of the order amending the existing supervision order was made under s 22(7)(b), which is in Div 5 of the Act.  The power given by that provision is co-extensive with the power given by s 16(2), the terms of which are reflected in s 22(7)(b).  The examples for s 16(2)(a) are not exhaustive and do not limit its meaning,[4] but s 16(2), and thus s 22(7)(b), must be understood in the context of the provision in s 16(1) making it mandatory for a supervision order to impose specified requirements upon the prisoner.  The natural construction is that the general words in s 16(2), coming as they do immediately after the particular words in s 16(1), “are restricted to and controlled by the meaning of the particular words”,[5] so that “any other requirement” in s 16(2) comprehends only requirements imposed upon the prisoner.  Other provisions point in the same direction.  The power granted by s 13(5)(b) is to order that the prisoner be released from custody “subject to” requirements stated in the order.  That naturally connotes that the requirements are to be imposed upon the prisoner.  So much is also suggested by provisions which contemplate that the only parties to the proceedings in which a supervision order might be made,[6] and subsequently amended under Div 5 of the Act,[7] will be the Attorney-General and the prisoner.  The absence of any provision that the Chief Executive is to be a party to those particular proceedings makes it most unlikely that the legislative purpose extended to orders in such proceedings which impose obligations upon the Chief Executive.  The restriction of rights of appeal to the Attorney-General and the prisoner[8] points in the same direction, as do various other provisions.[9]  None of the functions conferred upon the Chief Executive by the Act[10] involve the Chief Executive in being a party to proceedings in which a supervision order is originally made or is amended under Div 5.

[18] Reading the Act as a whole, it is clear that the power to amend a supervision order under Div 5, like the power to make a supervision order, does not comprehend power to impose obligations upon the Chief Executive.  Consistently with that construction, supervision orders have been described as having “the character of a compact between the prisoner and the community: the prisoner is accorded a measure of personal freedom, but only provided he is willing to, and does, submit to a regime of tight control.”[11]

[19] The medical evidence to which the respondent referred supports the conclusion that the matters specified in the amendment made by paragraph 4 of the order, or at least some of those matters, might usefully be reflected in requirements imposed upon the prisoner.  It was a relevant consideration for the primary judge to consider whether those requirements could be reasonably and practicably managed by corrective services officers.[12]  In that respect, it has been held that the court should not assume that supervision will be unavailable in the absence of clear evidence to that effect and an explanation as to why the supervision is regarded as unreasonable and impracticable.[13]  In this case the evidence did not suggest that any necessary supervision would not be made available.  Indeed, the stance taken by counsel for the Attorney-General in the Trial Division presumably conveyed to the primary judge that the matters specified in the part of the primary judge’s order now under appeal would be attended to.  However, the approach of counsel cannot affect the legal position.  Upon the proper construction of the Act, it does not confer power to make orders of that kind against the Chief Executive.  The challenged part of the order was therefore beyond power.

[20] The record reveals that the Chief Executive was not a party to the proceedings in the Trial Division and it was ultimately not contentious in the appeal that the Chief Executive was not given any notice of the respondent’s application for paragraph 4 of the order.  No argument was advanced for the respondent in opposition to the Attorney-General’s and the Chief Executive’s contentions that the Chief Executive was denied procedural fairness.  As the order must be set aside in any event on the ground that it was beyond power, it is not necessary further to consider this aspect of the appeal.

Disposition and proposed orders

[21] The Attorney-General submitted that the primary judge’s order should be varied by omitting paragraph 4.  Otherwise, the Attorney-General accepted that a supervision order remained appropriate and submitted that the matter should be remitted to the Trial Division for further consideration as to the terms of the appropriate supervision order.  The respondent accepted that such orders were appropriate if the Court was minded to omit paragraph 4 of the primary judge’s orders.  The Court raised the question whether it was necessary to order that the respondent be returned to custody pending the hearing of the further proceedings in the Trial Division.  Senior counsel for the Attorney-General submitted that it was not appropriate on the evidence and disclaimed any application for such an order.

[22] Accordingly, the appropriate orders are:

1. The Chief Executive is added as the second appellant to the appeal.

2. Refuse the applications by the respondent and the Chief Executive to adduce evidence in the appeal.

3. Allow the appeal.

4. Vary the order made in the Trial Division by omitting paragraph 4.

5. Remit the proceeding to the Trial Division for further consideration of the appropriate terms of the amended supervision order.