Attorney-General for the State of Queensland v Grant (No 2)

This case note considers the human rights issues that arose in a Dangerous Prisoners (Sexual Offenders) Act 2003 (“DPSOA”) proceeding in which a supervision order was made pursuant to s 13(5)(b). Applegarth J held that the Human Rights Act 2019 (“HRA”) is applicable to the court’s exercise of discretion under s 13(5) of the DPSOA. Section 5(2)(a) of the HRA provides that Act applies to a court or tribunal to the extent of its functions under Part 2 of the HRA. Adopting an “intermediate” or “functional” approach to interpreting this section, his Honour found the application of s 5(2)(a) depends on “the specific function the Court is performing, the relevant right, and the circumstances of the case.” At the least in the present case, the right to liberty (s 29(1) HRA), right to humane treatment when deprived of liberty (s 30(1) HRA), and arguably the right to not be subject to arbitrary detention (s 29(2) HRA) were human rights relevant to the courts functions in a s 13(5) proceeding. Ultimately, Applegarth J determined that a supervision order was appropriate, despite impacts of “inflexible” QCS’s policies on the human rights of someone in the first respondent’s position.

Applegarth J

16 November 2022

Background

A supervision order was made under s 13(5)(b) Dangerous Prisoners (Sexual Offenders) Act 2003 (“DPSOA”) in respect of the first respondent, a 78-year-old sex offender, on the basis this was appropriate to protect the community. [1], [31]–[32]. The first respondent experienced significant mobility and health issues which required support, including transport to medical appointments and delivery of groceries. [2], [50].

Applegarth J identified, as he had in earlier proceedings involving the respondent, that issues arose as to compliance with the Human Rights Act 2019 (“HRA”). [27]–[28]. In particular, his Honour considered whether the HRA was applicable to the Court’s exercise of discretion under s 13(5) of the DPSOA.

A separate question, not argued or determined in this proceeding, was whether the Queensland Corrective Services’ (“QCS”) “inflexible policy” in relation to precinct house residents in the first respondent’s position complied with the HRA. [49]–[51].

Decision of the Supreme Court

Applegarth J held the HRA was relevant to the exercising of the discretion under s 13(5) of the DPSOA. [59]–[60].

Section 5(2)(a) HRA provides that Act applies to a court or tribunal to the extent of its functions under Part 2 of the HRA. [71]. Three interpretations of s 5(2)(a) HRA arise: “narrow”, “intermediate”, and a broad “list of rights approach”. [73]–[78], [89]. The “narrow” approach requires the Court only to enforce those rights that are “explicitly and exclusively addressed by the Courts”. [76]. Meanwhile, the “intermediate” or functional approach requires the Court to focus on the rights relating to the substance, rather than process, of the function the Court is performing in the particular proceeding. [75], [96]–[98]. A broad “list of rights” approach, on the other hand, suggests all human rights in the HRA are applicable for courts and tribunals to enforce under s 5(2)(a). [71].

Applegarth J determined the intermediate “functional approach” should be adopted. [75], [78], [86]. The broad and narrow approaches were considered hard to justify, [71], [78]–[85], whereas the intermediate approach was “better supported by the text and structure of the HRA” and aligned with authorities in both Victoria and Queensland. [78], [91]–[101].

The functional approach requires consideration of “the specific function the Court is performing, the relevant right, and the circumstances of the case.” [105]. In some cases, the function may be to determine proceedings in which a right, like the right to a fair trial, has direct application because it relates to the core functions of the Court. [103], [105]. In other cases, the function may be the exercise of a discretionary power and the right will be a factor relevant to exercising that discretion. [104], [105]. The Court may be required to enforce a right or to consider the right along with other considerations when exercising the discretion. [105].

In the present case, the Court had determined the first respondent was a serious danger to the community in the absence of a continuing detention or supervision order. [106]. Therefore, the function of the Court’s discretion under s 13(5) of the DPSOA was to either make: (1) a continuing detention order for the person to be detained in custody for an indefinite term, (2) a supervision order that the person be released on conditions, or (3) make no order. [106]. There was no suggestion the Court should make no order in respect of the first respondent, [62], nor were the terms of the supervision order contested. [109]. The issue was therefore whether any of the rights in Pt 2 of the HRA apply in deciding whether a continuing detention order or supervision order should be made. [109].

The human rights relevant to the Court’s exercise of discretion include at least:

• the right to liberty - section 29(1) HRA; [114]–[118], [145];
• the right to humane treatment when deprived of liberty - section 30(1) HRA; [119]–[128], [145]; and arguably
• the right not to be subject to arbitrary detention - section 29(2) HRA; [114], [131].

His Honour expressed doubt as to whether the right to access to health services without discrimination, under s 37(1) of the HRA, was relevant to the exercise of the discretion, but refused to determine the question in this case. [132].

Applegarth J concluded:

“A supervision order [of 10 years] should be made despite the unsafe and inhumane conditions that the first respondent will face for whatever period he resides in a precinct house. This conclusion is based upon the principle just stated, that individual liberty should be constrained to no greater extent than is warranted by the statute that authorises the constraint. It is reinforced by the first respondent’s informed choice to prefer a supervision order to a continuing detention order. I should exercise my discretion, if possible, to respect his autonomy. The discretion under s 13(5) should not be exercised in favour of making a continuing detention order based simply on the view that the first respondent would be better off in a prison rather than in a precinct house.” [165].

His Honour made that order acknowledging that the QCS’s current policies would likely mean the first respondent would not have adequate access to food, safe accommodation, and health services while at the precinct. [166]. This decision was considered appropriate for two reasons. First, the first respondent’s autonomy to prefer a supervision order, even under such conditions, to a continued detention order to be served in custody were particularly relevant in that respect. [31], [172]–[174]. Second, the only alternative order available was to impose a continuing detention order of indefinite duration, which his Honour deemed “inappropriate”. [179].

In addition to the human rights issues, Applegarth J noted that the DPSOA may be invalid in respect of the first respondent (not generally), because in his particular case the DPSOA may have a punitive effect. [53]–[55]. As the parties did not raise this point, it was not considered further. [56]. Similarly, as the first respondent did not seek relief on the ground that the QCS had acted unlawfully under s 58 of the HRA, his Honour did not provide an advisory opinion on that question. [57]–[58].

A Hughes of Counsel