Forbes v Wilmot

The sole issue in this case was whether the issuance of an official notice for consorting with recognised offenders, pursuant to s 53BAC Police Powers and Responsibilities Act 2000, was judicially reviewable decision. Callaghan J found the issuance of such a notice is judicially reviewable because this was clearly contemplated by Parliament, upon reviewing the relevant provisions. A decision to issue such a notice is also not excluded by the Judicial Review Act as a decision relating to the administration of criminal justice. A statement of reasons for the decision was thus ordered to be delivered to the applicant.

Callaghan J

18 August 2022

Background

Police issued the applicant an official warning, pursuant to s 53BAC Police Powers and Responsibilities Act 2000 (“PPRA”) on suspicion the applicant was “consorting” with “recognised offenders”. [1]–[2].

Contention then arose as to whether the issuance of the notice was judicially reviewable. The applicant’s solicitors, after the notice was issued, wrote to the Queensland Police Service Legal Division (“QPSLD”) stating the applicant intended to judicially review the issuance of the notice and requesting reasons for the decision, per s 32 Judicial Review Act 1991 (“JRA”). [2]. The QPSLD replied that the notice, as it was a decision relating to the administration of criminal justice, was not reviewable under the JRA. [3].

Subsequently, the applicant sought an order under s 38 of the JRA that reasons be supplied for the notice issuance.

Decision of the Supreme Court

A decision to issue a notice pursuant to s 53BAC is judicially reviewable. [16]–[17].

Schedule 2 of the JRA sets out examples of decisions relating to the administration of criminal justice, for which reasons need not be given. [5]. Those examples do not limit the scope of decisions relating to the administration of criminal justice, which includes ancillary decisions. [6].

Reviewing the offence provision of s 77B Criminal Code 1899, habitually consorting with recognised offenders, the issuance of the official warning is an element of that offence. [7]–[8]. While the decision to charge a person pursuant to s 77B is a decision relating to the administration of criminal justice, the issuance of the notice itself is not. [8]–[9]. The issuance of the notice is separately established by the PPRA and may not result in a charge. [9]. “In fact, the very concept of a warning is calculated to regulate behaviour in such a way as to avoid the need for criminal justice to be administered at all.” [9].

Parliament was also on notice, following a review of s 53BAC by the Legal Affairs and Community Safety Committee, that judicial review of such warnings would presumably still be available under the JRA. [10]–[11]. Also, s 53BAC(3) indicates “a clear statement of parliamentary intention as to the conditions precedent to the issue of a warning”. [13]. However, s 53BAC(8) provides that failure to comply with section 53BAC(3) does not affect the validity of the warning. [12]–[14]. Thus, review must be available under the JRA lest the intention of subsection (3) would be rendered meaningless. [14]–[15].

A Hughes of Counsel