Fuller & Anor v Lawrence

In this case the appellant, a Corrective Services Officer, appealed from a decision of the Trial Division ordering her to provide a statement of reasons to the respondent in relation to a direction she made concerning contact with an individual. The respondent was a prisoner subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003. The appellant argued that the learned trial judge erred in applying the test in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 when concluding that the direction was a decision “under an enactment” for the purpose of the Judicial Review Act 1991. Justice Morrison (with whom the Chief Justice and Bond JA agreed) rejected this argument. The decision to give the direction to the respondent was a decision made under an enactment for the purpose of the Judicial Review Act 1991. The source of the power to make the decision was expressly or impliedly conferred by the Dangerous Prisoners (Sexual Offenders) Act 2003; and the decision itself altered or affected legal rights. The appeal was dismissed.

Bowskill CJ and Morrison and Bond JJA

15 December 2023

Background

ML (the “respondent”) was subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003. [2]. BF (the “appellant”), a corrective services officer, gave a direction to the respondent approving phone contact with a named person including FaceTime or video calls, but denied any in-person contact with this individual (the “decision”). [3]. The respondent requested reasons for the decision. [4]. The respondent refused the request on the basis that he was not entitled to a statement of reasons under the Judicial Review Act 1991. [4]. The respondent applied for declaratory relief and an order to comply with his request under s 38 Judicial Review Act 1991. [5]. The learned primary judge declared that the respondent was entitled to a statement of reasons and made the order to comply: see Lawrence v Fuller [2023] QSC 146 (per Applegarth J). [6]. The learned primary judge was satisfied that the decision was a decision made under an enactment having applied the following test from Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99:

“The determination of whether a decision is ‘made … under an enactment’ involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be ‘made … under an enactment’ if both these criteria are met”. [38].

Whether the decision was a decision under an enactment

The learned primary judge was said to have erred in applying the test in Tang when concluding that the decision was a decision made under an enactment for the purpose of the Judicial Review Act 1991. [8]. The question of whether a decision is impliedly or expressly required or authorised by an enactment requires an analysis of the statute and the individual facts of a case: Nona v Barnes [2012] QCA 346; [2013] 2 Qd R 528. [12]. Justice Morrison carefully considered the statutory provisions under the Dangerous Prisoners (Sexual Offenders) Act 2003 in particular s 16 sub-s (da) and s 16C sub-s (1): see generally [13]–[28]. Justice Morrison (with whom the Chief Justice and Bond JA agreed) held that s 16C sub-s (1) should be construed as having either expressly or impliedly conferred the power to make the decision, which satisfied the first requirement of Tang. [1], [29]–[36], [39], [55]–[59]. However, what was said to be the misapplication of the second limb of the test in Tang was the thrust of the appellant’s challenge on appeal. [40].

The appellant emphasised the High Court’s use of the phrase “decision must itself confer, alter or otherwise affect legal rights or obligations” to submit that in the circumstances of this case the decision itself did not alter or otherwise affect legal rights, because, without the supervision order, the decision had no legal effect. [40]–[42]. Justice Morrison (with whom the Chief Justice and Bond JA agreed) considered that this submission must be rejected for three reasons. [1], [43], [55]. First, the supervision order was merely the vehicle for which the decision was made enforceable. [44]–[45]. Second, the submission reads the emphasised phrase as “the decision must itself, and only itself, … alter or otherwise affect legal rights” (emphasis in original). [46]. To confine the High Court’s expression in this way is to read Tang as if it were a statute requiring construction. [46]–[47]. The High Court also rejected the search for immediate and proximate relationships between the enactment and the decision. [46]–[47]. The decision did, itself, affect or alter legal rights. [48].

Disposition

The appeal was dismissed. [1], [53]–[55].

D Kerr