Lawrence v Fuller & Anor

The controversy in this case arose in circumstances where ML (the “applicant”) requested a statement of reasons from BF (the “first respondent”). The request was in relation to the first respondent making a direction which prohibited in-person contact with a named person. The request for a statement of reasons was refused on the basis that the applicant was not entitled to make such a request under the Judicial Review Act 1991. Justice Applegarth held that the Judicial Review Act 1991 does apply to a direction of this nature having been satisfied that the direction was a “decision under an enactment”. The application was allowed and the first respondent was ordered to provide a statement of reasons within 28 days.

Applegarth J

11 July 2023

Background

ML (the “applicant”) was subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003. [1]. He requested contact with a named individual. [1]. He received a direction from BF who is a corrective services officer (the “first respondent”). [1]. The direction approved him having phone contact with the named individual but denied any in-person contact (the “decision”). [1]. The applicant requested a statement of reasons pursuant to s 32 Judicial Review Act 1991. [2]. The first respondent declined to comply with the request on the basis that the applicant was not entitled to a statement of reasons under the Judicial Review Act 1991. [2]. The applicant sought an order under s 38 Judicial Review Act 1991 requiring the first respondent to give him a statement of reasons. [4].

Whether the decision was a “decision under an enactment”

Part 4 of the Judicial Review Act 1991 requires a decision-maker to provide a statement of reasons in relation to “decisions to which the Act applies”: see Judicial Review Act 1991 s 31(a). [3]. A decision “to which the Act applies” is a decision of an administrative character made under an enactment: see Judicial Review Act 1991 ss 4(a), 31(a). [3]. It was not in dispute that the decision was of “an administrative character”, nor was it in dispute that the decision did not fall within an excluded class of decisions: see Judicial Review Act 1991 ss 4(b), 31(b). [6]. The principal controversy was whether the decision was made “under an enactment” which involved application of the well-known principles discussed in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99: see [6], [9], [29].

The applicant submitted that the decision was purportedly made under the Dangerous Prisoners (Sexual Offenders) Act 2003, therefore, it was a “decision under an enactment”. [7]. The first respondent submitted that the decision was purportedly made under the supervision order and not, strictly speaking, the enactment. [8]. Justice Applegarth rejected the first respondent’s submission. [7]–[8]. The first respondent’s submission incorrectly assumed that there was a dichotomy between whether the decision was authorised under the enactment or under the supervision order, which was an instrument made under the enactment. [8]. The decision was capable of being made concurrently under both the enactment and the supervision order. [8], [12].

Justice Applegarth observed that whilst the supervision order might be characterised as the more “immediate” or “proximate” source of the first respondent’s decision-making authority, the ultimate decision-making authority was sourced from s 16(1)(db) Dangerous Prisoners (Sexual Offenders) Act 2003. [16], [21]. In any event, Tang doubted the efficacy of searching for an “immediate” or “proximate” source of decision-making authority. [27]. It is possible for a decision to be made both under the enactment and an instrument. [27]. It was held that the decision was made under an enactment. [29] – [43]. The decision was expressly or impliedly authorised by the enactment; and the decision derived its capacity to affect legal rights and obligations from the enactment. [29]–[43], [54].

Disposition

The application was allowed. [78]. It was declared that the applicant was entitled to a statement of reasons under the Judicial Review Act 1991; and the first respondent was ordered to provide a statement of reasons within 28 days. [78].

D Kerr