Wallace v Tannock[2023] QSC 122

SUPREME COURT OF QUEENSLAND

1. [1]
   The indigenous applicant was born in 1973.
2. [2]
   In August 1988 he was convicted of rape. The applicant was just 14 years old, and the complainant was more than twice that age. Some details are not entirely clear, but it would seem that the incident was preceded by some consensual intimacy. Considered in  isolation, this incident could not reasonably have been regarded as a predictor of events which would follow.
3. [3]
   Specifically, I refer to events that occurred in 1992. As a result of these, the applicant was convicted of rape (four counts) and sentenced to 13 years imprisonment. The distressing circumstances were detailed by Ann Lyons J^[1] in Attorney-General for the State of Queensland v Wallace [2015] QSC 354 at [3]–[4].
4. [4]
   In 1993 the applicant was also convicted of an offence of attempted murder committed whilst he was in custody.^[2] For that he received a sentence of 10 years imprisonment, which was ordered to be served cumulatively upon the 13 years already imposed.^[3]
5. [5]
   In the result, the applicant’s full time release date was 20 December 2015. However, before the date arrived the Attorney-General made application for a Supervision Order (“the order”) pursuant to provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“DPSOA”/“the Act”). Amongst the materials upon which the application was brought were assessments by three psychiatrists, including Dr Sundin (5 June 2014) and Dr Grant (1 March 2015).
6. [6]
   Dr Grant opined that the applicant represented a moderate to high risk of future sexual reoffending. Such offending would, he thought, be likely to take the form of a sexual assault or rape committed whilst the applicant was either intoxicated or suffering from a relapse of his schizophrenia.
7. [7]
   Dr Sundin thought that the applicant represented a significant risk for future violent or sexual reoffending that may occur with little warning. In that context, she noted the relevance of mental illness, along with the possibility for mood swings and delusional ideations.
8. [8]
   On 14 December 2015, Ann Lyons J allowed the Attorney-General’s application and ordered that the applicant be placed on a supervision order until 20 December 2025.
9. [9]
   The order contains a number of conditions. These include the conventional requirement that the applicant comply with every reasonable direction of a corrective services officer, so long as that direction is not directly inconsistent with a requirement of the order.
10. [10]
    The applicant was released from prison, subject to the effect of that order. For some time he has lived alone in a residential property. He has been able to enjoy his independence in part because he is a participant in the National Disability Insurance Scheme (“NDIS”), and has received funding from that scheme since 2019. This funding enables him to receive services from support workers, who attend upon him at his residence. They assist with tasks such as cooking, cleaning, and shopping. The applicant is able to exercise control over this situation by use of an “app” from which he can make requests for support workers. Separately, he is able to – and does – engage the services of sex workers.
11. [11]
    The applicant is, in accordance with the order, monitored by the staff of Queensland Corrective Services (“QCS”). The evidence includes records of many conversations between the applicant and QCS staff, including one that occurred on 7 December 2021. In this exchange the applicant appeared “to be very keen to demonstrate that he was travelling well” with regard to his mental health. He had identified a “health team” – Dr Chong, Dr Heyman and Bruce Hamilton – from whom he receives support. He claimed that they think his “mental health is good”.^[4]
12. [12]
    Notwithstanding this assertion, there are concerns about aspects of the applicant’s behaviour. QCS staff who were enforcing the supervision order conducted reviews of material found on his mobile phone during 2021. It was thought that this material suggested sexual preoccupation and that the applicant was “blurring the lines” between the role of NDIS workers and sex workers. Specifically, it appeared that he was searching for escorts and pornography which depicted women who resembled his NDIS support workers.
13. [13]
    On 19 March 2022, QCS staff visited the applicant's residence whilst a female support worker was present. Interactions between the applicant, worker and QCS staff may have had their curiosities, but they involved no illegality nor indeed any breach of the order. Nevertheless, it seems that at this time the concerns felt by QCS reached a “tipping point”.
14. [14]
    As a result, on 21 March 2022, the applicant was issued with a direction in these terms:

    1. (a)
       you are only permitted to have male NDIS support workers;
    2. (b)
       You are not permitted to have any female support workers;
    3. (c)
       you are not permitted to have escorts at your residence without written approval from QCS;
    4. (d)
       You must obtain approval to have any persons at your residence, including family members and associates; and
    5. (e)
       any non-compliance with the above conditions may result in you being returned to the precinct.
15. [15]
    This direction was confirmed in writing on 24 March 2022. On 26 April 2022, a statement of reasons for the direction was provided by the first respondent, who is the manager of operations within the High Risk Offender Management Unit of Queensland Corrective Services. The reasons included concerns about the applicant’s “ongoing mental health stability” and “the psychiatric evidence^[5] including the potentially impulsive and opportunistic nature of any potential reoffending”. The reasons for the decision explicitly included reference to the abovementioned opinions of Dr Grant and Dr Sundin (“the psychiatric opinions”).
16. [16]
    The first respondent confirmed in evidence^[6] that he received “regular progress notes” on the applicant’s engagement with the “health teams”, but also that they were not “referenced in (his) statement of reasons (n)or findings in relation to the decision that he made”.
17. [17]
    The first respondent agreed that the psychiatric opinions were prepared before the applicant’s release into the community, and therefore without regard to his current (or even recent) circumstances. These opinions were the only psychiatric evidence to which he had regard.^[7]
18. [18]
    The applicant seeks relief from the effect of the orders that:

    1. (a)
       He is only permitted to have male, and is not permitted to have female NDIS support workers (“the Support Workers Direction”); and
    2. (b)
       He must obtain approval to have any persons at his residence, including family members and associates (“the Visitors Direction”).
19. [19]
    Specifically, pursuant to s 41 of the Judicial Review Act 1991, the relief sought is for the quashing of these aspects of the decision. As the argument evolved, it became clear that this relief was sought on the basis of three separate grounds.
20. [20]
    I was invited to consider first whether there had been a breach of the requirements of natural justice. I was also asked to consider whether the decisions were made in a way that was not compatible with human rights. Further, it was advanced that the decisions should be set aside on the basis that they were not “reasonable” in circumstances where their reasonableness was a “jurisdictional fact”.

Natural justice

21. [21]
    The applicant complains that the directions were given, in effect, without notice, in circumstances where, had he been given the opportunity, he could and would have said something which was relevant and ought to have been taken into account.
22. [22]
    The focus of this argument was the psychiatric opinions. Given the context in which they were made, they necessarily represented a long term prognostication. They were dated (2015) and by 2022 were susceptible to reconsideration in light of any more recent developments – positive or negative – in the applicant’s mental state.
23. [23]
    On the other hand, the applicant can identify an existing “health team” that includes a psychiatrist and a psychologist. The applicant had, as noted above, referred to the existence of these individuals when making assertions about his mental health.
24. [24]
    In these circumstances, there was a self-evident potential for contemporaneous assessment of the applicant’s mental health to be relevant to the analysis performed by the first respondent. The existing material was stale. It was calculated to address the broad questions raised on a DPSOA application, and not targeted at the highly specific questions raised by the applicant’s disturbing behaviour. A diagnosis of “good” mental health might have informed any reasonable decision based on conclusions reached about the applicant’s behaviour.
25. [25]
    Importantly, the applicant does not contend that the situation had to be dealt with by way of anything like a written notice of intention, nor that QCS ought to have proceeded with any degree of formality. He insists, however, that before any decision was made he should have been given notice of their concerns and the basis for them. He could then at least have identified the existence of his “health team” and the potential relevance of their opinions. It is allowed that the first respondent was not bound to accept any opinion – indeed, he might have taken the view that expert opinion was not necessary at all. However, if he was proposing to take into account (as he did, explicitly) the dated psychiatric opinions, he should in these particular circumstances have alerted the applicant to that prospect.^[8]
26. [26]
    The first respondent accepts that in the circumstances, the onus is on him to demonstrate that he was not required to afford procedural fairness to the applicant.^[9] It was also accepted that the relevant decision was reflected in the verbal direction and that the later, written version, was the same decision. The relevant question is therefore whether, if there was an obligation to give the applicant the opportunity to be heard, it ought to have been afforded before the verbal direction.^[10]
27. [27]
    The respondents maintain, however, that there was no obligation, in the circumstances, to afford procedural fairness at all. Even if there was, so their argument runs, there was no “realistic possibility” that if it had been provided, the decisions might have been any different.
28. [28]
    The respondents support the first limb of their argument with an averment that the general requirement for observance of procedural fairness was, in this situation, removed by the DPSOA. There is no express provision that effects this excision, but I am asked to examine the structure of the DPSOA and infer that this was, necessarily, Parliament’s unambiguous intention. 
29. [29]
    The respondents point to the fact that the Act contains a now well understood regime that consists of two distinct phases. There is first an application to the Supreme Court. It is accepted that the requirements of procedural fairness attach to this part of the process – indeed, given the circumstances, it might be thought that observance of such requirements at this point should meet a “gold standard”. So exacting are these requirements that it can be inferred, so the respondents submit, that following the making of an order, the requirement for procedural fairness vanishes. The management of the supervision order is something left to QCS officers, free from the need to observe such requirements. Prisoners should not, so the respondents said, be given further opportunity to be heard with respect to any decisions made about any and all aspects of their supervision and direction.
30. [30]
    In order to make good their argument, the respondents had to confront the proposition that:

3. A statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme.^[11]

3. An “irresistible”^[12] level of clarity is required in order to achieve displacement.

31. [31]
    I am unable to discern such an overt parliamentary intention from the mere presence of a dual phase statutory procedure. The existence of the first phase does not strip, from the second phase, the existence of powers that are apt to affect privacy and liberty.^[13] Such powers remain very much a part of the scheme.
32. [32]
    The respondents did attempt to reinforce their position by asserting that “it would be impractical…. to afford, in all circumstances, a right to be heard prior to the giving of a direction under a supervision order”.^[14]
33. [33]
    That may be so, but it does not meet the applicant’s argument, which does not depend for its success upon a requirement that procedural fairness be extended “in all circumstances”. On the contrary, the applicant allows that the requirement for procedural fairness depends very much on the circumstances of individual cases. Determining the ambit of the requirement demands a corresponding degree of flexibility. Far from insisting that the requirement exists “in all cases”, the applicant’s argument goes no further than it needs to, and amounts to no more than a contention that it was required in the particular circumstances of this case. There was therefore, as noted above (at [25]) no requirement for written particulars or anything of that nature. It is unnecessary to speculate about the many other sorts of decisions that might be made by someone supervising an order, or the infinite number of circumstances in which such decisions might be made. Some may no doubt need to be made urgently; others could for different reasons “lead to serious difficulties and danger to the community” ^[15] if not implemented immediately and in advance of any notice to the prisoner. The requirement for procedural fairness will vary in each case.
34. [34]
    This particular case does not appear to have been one in which immediate implementation was demanded.  In any event, on the evidence, the requirement could very quickly have been satisfied. The first respondent could have called the applicant and told him what he was going to do and the basis on which he was going to do it. The applicant could have directed the first respondent to his “health team”. An initial verbal report would at least have disclosed whether or not some more recent evaluation ought, as a matter of common sense and fairness, to have been considered alongside the dated opinions upon which the first respondent was placing reliance. Failure to take such steps amounted to a breach of the requirements that existed in these circumstances.
35. [35]
    The respondents also submit that, even if it was allowed that the applicant ought to have been afforded procedural fairness, no practical consequence can be identified to flow from the failure to do so.^[16]
36. [36]
    This submission is to be considered in light of the proposition that:

3. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions.^[17]

37. [37]
    In the particular circumstances of this case, there was a requirement that the applicant ought to have been told about the orders that were being considered, and the basis upon which they were made. The psychiatric opinion was dated and there was, readily available to the respondents, a source of potentially relevant material to which the applicant could point. Since the focus of concern was so tight - that is, on material that was relevant to a psychiatric assessment of the applicant - then at least the possibility of a different conclusion being reached was realistic.
38. [38]
    Especially is this so when the earlier psychiatric opinions were focused upon the likelihood of sexual offending against females, and the subsequent decisions included a restriction upon the way in which the applicant might associate with anyone.

Conclusion – natural justice

39. [39]
    Although concerns may be expressed about the circumstances in which the Act has been deployed,^[18] it has no doubt been effective in preventing the commission of an uncountable number of sexual offences. This effectiveness has come at a cost to commonly held notions about the liberty of a citizen. An individual who is subject to an order under the Act is surely amongst the most disenfranchised of all Australians. The courts should be slow to strip from them any right that has not been removed, explicitly, by Parliament.
40. [40]
    A parliament is capable of excluding the requirements of procedural fairness from specific situations if it chooses to do so.^[19] The Act does not do that.  Neither its structure, nor the nature of the situations created by it demands that the requirements of procedural fairness should be inapplicable to every situation in which a supervision order is being administered.
41. [41]
    Rather, the flexible requirement for and ambit of procedural fairness must be considered on a case-by-case basis. In the particular circumstances of this case, the requirement did apply. Simple and obvious methods of compliance suggested themselves. The applicant should succeed on this ground.
42. [42]
    This conclusion necessarily dictates the outcome of the application and the form of the order – that is, I propose to order that both directions be set aside and remitted for consideration according to law. That reconsideration will be undertaken afresh, and may be made on the basis of materials that are not before me. In these circumstances it is undesirable to say more than is necessary about the other grounds, but I shall deal with them briefly.

Human rights

43. [43]
    The applicant seeks also to impugn the directions on the basis that they are not compatible with his human rights. In accordance with authority, averred incompatibility with human rights should be considered in three stages: engagement, limitation and justification.^[20] 
44. [44]
    Although originally the argument was cast in wide terms and invoked many rights, functionally the question resolves^[21] to the issue of whether the directions were incompatible with the applicant’s right to freedom of association.^[22]
45. [45]
    It is clear enough that this right was engaged and limited by both directions.
46. [46]
    However, in the case of the Support Workers Direction, the limitation was justified. It was a move calculated to mitigate the damage to society that may arise from the applicant’s offending against a female support worker. The respondents could discharge the onus of showing that this direction, although it limited the applicant's freedom of association, was justified under s 13 of the Human Rights Act 2019 (Qld).
47. [47]
    That could be done in the same way as any onus must be discharged, and that is by reference to the evidence before the court.
48. [48]
    That same evidence did not justify the limitation represented by the Visitors Direction, as written.
49. [49]
    The onus might have been discharged in respect of a direction that was confined to ensuring that QCS was appraised about any prospect of the applicant's association with women. However, a direction that extends to a requirement for approval of “any persons” represents a limitation on the applicant’s right to associate with men, including those from his own family. The materials do not justify such an exacting requirement.
50. [50]
    The supervision order was made because there was concern about the prospect of a sexual offence being committed against women. It was contemplated that such offending may be impulsive and opportunistic, and further orders, such as the Support Workers Direction, may play a logical enough role in allaying the relevant concern.
51. [51]
    In contrast, there was no rational basis^[23] upon which to found concern that the proleptic offending might involve a male victim, still less one from the applicant’s own family. Even if it was convenient to cast the first part of such a direction in wide terms, exceptions could have followed.
52. [52]
    The Attorney-General intervening, submitted that requiring approval for:

3. Some people and not others would not be as effective in ensuring QCS (is) aware of who is attending the applicant’s home. As they are not as effective in achieving the purpose, they do not qualify as true alternatives for the purposes of s 13(2)(d)…^[24]

53. [53]
    However, ensuring awareness of every visitor is not the relevant purpose. Safety of the community is.  No evidence establishes that complete awareness of every male visitor to the applicant's residence is essential for the purposes of ensuring community safety.
54. [54]
    It can be accepted that the applicant’s human rights are already inhibited by the supervision order and directions made pursuant to it. It follows that the relevant concern is only to identify the “incremental” burden of the direction, and then to determine whether there is anything in the material that might justify it. In this case, the relevant “increment” may not be of great magnitude, and if there was any material to weigh in the balance it might have been justified.  It remains that, as a matter of logic and proof, no such material can be identified.
55. [55]
    When pressed on this, the respondents again pointed to the psychiatric opinions.^[25] The evidentiary foundation for these reports was a history of sexual offences against women. That was the possibility about which predictions were being made. An onus cannot be discharged by speculation, but without indulging in such an exercise these reports do not justify a restriction upon, for example, an unannounced visit to the applicant by a male member of his family.
56. [56]
    The Visitors Direction, as written, should be set aside not only because there was a breach of procedural fairness, but also because it was an invalid limitation on the applicant's right to freedom of association.
57. [57]
    Given that the decision must in any event be reconsidered, concepts such as “severance” or “rectification” of the direction need not be addressed. The reconsideration might be based on any material that is relevant at the time it is undertaken. It is therefore undesirable to express any view, based only on the materials before me, about the way in which a compliant decision might be expressed.
58. [58]
    The conclusion I have reached under this ground would have resulted in an order identical to the one I propose to make, as a consequence of the conclusions expressed above.

Reasonableness

59. [59]
    As noted, the order contained a conventional requirement that the applicant comply with every reasonable direction of a corrective services officer. This requirement reflected the terms of s 16(1)(db) of the Act. The applicant maintains that, in order to be effective, any directions given pursuant to the order must objectively be reasonable.
60. [60]
    In support of the argument that they were not, the applicant invokes the same reasoning said to be applicable to considerations of natural justice and human rights. That is, he submits the decision to give the directions was based on psychiatric opinions which were inadequate for the purpose. Further, it is said that the directions were unreasonable in a number of other ways. In effect, these reduced to complaints that the situation with which QCS was confronted could have been dealt with in other “less obtrusive” ways, and that the directions given were “disproportionate” and/or “excessive”.
61. [61]
    The respondents disputed the need for objective reasonableness. They pointed to s 16C of the Act and insisted that, so long as the subjective belief referred to in that section had been formed, then there was no further requirement referable to the concept of “reasonableness”.
62. [62]
    That part of the argument cannot be accepted. Section 16(1)(db) appeared in the Act as passed in 2007. It contains no reference to the formation of a subjective belief and as a matter of first principles must be taken to have imported into the Act, at that point, an objective requirement. Section 16C was enacted three years later^[26] and should be regarded as a further fetter or limitation upon the power to give a direction, and not as a provision calculated to remove the important protection that was contained in the Act as drafted.
63. [63]
    One consequence of the way in which the respondents put their argument is that, as averred by the applicant, they have “not engaged with the objective reasonableness of the relevant direction”.
64. [64]
    Strictly speaking that is true, but in the course of their submissions about “subjective reasonableness” the respondents did point to the ample material that justified concerns about the applicant’s behaviour. And they did make good the point that the applicant’s arguments about “excess”,  “obtrusiveness” and “proportionality” were, in effect, ways of expressing disagreement with the decisions, rather than a basis for impugning them.^[27] HoHowever, the already identified inadequacy of the psychiatric opinions did provide such a basis. So too did the width of the direction that applied to “all visitors” including, for example, male members of the applicant’s family. These aspects of the directions affected, adversely, any assessment of “reasonableness”. The consequence is, as before, no more than the need for an order in terms as foreshadowed above. The reasonableness of any subsequent decision will, as I have made clear, fall to be assessed on the basis of the materials that exist at the time that decision is made.