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In dismissing the prisoner’s application for a statutory order of review of the Minister’s decision not to consent to his transfer request, Bowskill CJ sets out the principles for establishing what is an “irrelevant consideration” in the context of a broad provision which confers discretion on the Minister to have regard to “any other matter that the Minister considers relevant”.
7 April 2022
The applicant is serving a life sentence for murder in a prison in Western Australia. In April 2017, he applied for a transfer to a prison in Queensland. His transfer application was governed by the Prisoners (Interstate Transfer) Act 1982 (“the Queensland Act”) and its Western Australian equivalent. .
On 11 March 2021, the respondent Minister wrote to the relevant Minister in Western Australia that he did not consent to the applicant’s transfer to Queensland. .
The applicant sought judicial review of that decision, which was set aside, by consent, by an order made on 23 August 2021. The matter was remitted, and on 10 September 2021, the Minister decided not to consent to the transfer. A statement of reasons was provided on 11 October 2021. .
Among other things, the statement of reasons records, under the heading “any other matter that the Minister considers relevant”, that (paraphrasing): :
- Under s 10A(f) of the Queensland Act, I may consider any other matter which I consider relevant.
- The applicant is serving a sentence of life imprisonment and his custody would be indefinite. The estimated cost to the State of Queensland of maintaining the applicant would be approximately $78,475 per year.
- Queensland Corrective Services reports that the current capacity utilisation rate for male high security prisoners is 144.9 per cent, as at 7 September 2021. (The capacity utilisation rate is taken from an annexure to the statement of reasons. It compares the number of prisoners with the number of built cells. ).
- The current capacity utilisation rate and the not insubstantial costs involved in maintaining the applicant in custody both tend strongly against consenting to his transfer to Queensland.
The applicant sought to review the respondent’s decision on the ground that (a) the cost of maintaining the applicant in custody; and (b) the “purported capacity utilisation rate” were irrelevant considerations. .
Bowskill CJ disagreed and dismissed the application. , .
Her Honour held that both the cost of maintaining the applicant in custody, and the capacity of the Queensland prison system to assume responsibility for the prisoner seeking to be transferred are relevant considerations. –. In arriving at this view, her Honour made the following observations:
- Having regard to s 10A of the Queensland Act (which allows the Minister to take into account any other matter they consider relevant), the applicant “carries a significant burden” in endeavouring to establish that either factor is truly an irrelevant consideration. .
- Framed in this way, “the legislative scheme implies that ‘short of capriciousness, the determination of whether or not these additional matters are relevant, and what weight they should be accorded, is largely a matter for’ the Minister”. .
- In the present context, for a consideration to be irrelevant, the statute must expressly or impliedly prohibit consideration of it. .
- In 2005, the Queensland Act was amended to remove the words “in the interests of the welfare of the prisoner”, with the purpose of expanding the range of matters the Minister may have regard to when considering a transfer request. .
- As s 10A of the Queensland Act makes clear, the factors the Minister may have regard to are not limited to the welfare of the prisoner. By s 10A(f), there is an “unrestrained scope” of considerations. It is no longer apt to say, if it ever was, that the “primary focus” of the legislation is the welfare and safety of prisoners. .
Z Brereton of Counsel