Suncoast Community Legal Service (SCLS) is celebrating a victory in the High Court in relation to a prisoner subject to a supervision order.
Mark Lawrence, who was jailed over the rape and murder of a fellow patient in a Wacol psychiatric hospital in 1983, was released in April 2020 subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act).
Made by then Justice Bowskill in April 2020, the order obliged Mr Lawrence to “follow the rules” for 20 years, including that he obey any reasonable direction issued by a corrective services officer about “who you may not have contact with”.
In November 2022, corrective services officer Bianca Fuller gave him a document entitled Reasonable Direction: General which stated he had approved phone contact with named person but not in-person contact.
Mr Lawrence’s request for reasons for the decision was denied two months later, on the basis that the direction was not a “decision … made … under an enactment” within the meaning of the Judicial Review Act 1991 (Qld) and so was not a decision to which that Act applied.
The Supreme Court concluded Lawrence was entitled to reasons, leading to the appeal to the High Court. There, he was represented by Brisbane barristers Matt Black and Renee Berry, instructed by SCLS, while Ms Fuller was represented by Angus Scott KC and Philip O’Higgins KC, instructed by Crown Law (Qld).
Chief Justice Gageler and Justices Gordon, Edelman, Gleeson and Beech-Jones handed down their joint judgment on 4 December, agreeing with the Supreme Court.
They said the meaning of the phrase “made … under an enactment” had been considered by the same court in the 2005 case of Griffith University v Tang, where the plurality had concluded the determination involved 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”.
The criteria had been applied by numerous Australian courts in construing statutory judicial review regimes, and the use of the criteria had not been challenged by either party in this case, they said.
The parties agreed the first Tang criterion was satisfied but the appellants argued the decision failed to satisfy the second Tang criterion because the decision did not “itself” affect legal rights or obligations.
“The appellants’ narrow contention must be rejected because the source of Mr Lawrence’s obligation to comply is in the DPSO Act. The capacity of the direction decision to affect Mr Lawrence’s legal obligations is derived from the DPSO Act and, specifically, from s 16(1)(db), which required the supervision order to contain a requirement that Mr Lawrence comply with any reasonable direction of a corrective services officer, provided that any such direction is not directly inconsistent with a requirement of the order,” they said.
“In this regard, the appellants accepted that the statutory power to make a direction is conditioned by s 16C(1) of the DPSO Act, which provides that a corrective services officer may give a direction mentioned in s 16(1)(db) only if the officer reasonably believes the direction is necessary ‘to ensure the adequate protection of the community’ or ‘for the prisoner’s rehabilitation or care or treatment’.
“The direction decision ‘derives from the enactment’, the DPSO Act, in the sense that it has no legal efficacy unless it is a direction authorised by ss 16(1)(db) and 16C(1) of the Act.”
The judges said, further, that the decision exposed Mr Lawrence to penalties because it purported to add to his obligations under the supervision order, and the decision’s power to have that effect was derived from the DPSO Act.
The appeal was dismissed with costs.
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