Attorney-General for QLD v Grant (No 2) [2022] QSC 252

Date: 16 November 2022
Court: Supreme Court of Queensland
Judicial Officer: Applegarth J
Human Rights Act 2019 (Qld) Sections: ss 5, 6, 9, 13, 15, 17, 19, 21, 29, 30, 31, 32, 37, 48, 58, 59, Schedule 1
Rights Considered: Right to recognition and equality before the law; Right to protection from torture and cruel, inhuman or degrading treatment; Freedom of movement; Right to freedom of expression; Right to liberty and security of person; Right to humane treatment when deprived of liberty; Right to a fair hearing; Rights in criminal proceedings; Right to health services
Other Legislation: Dangerous Prisoners (Sexual Offenders) Act (Qld) 2003; ss, 13, 16, 16B; Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 6, 24
Keywords: Supervision order; deprivation of liberty

The matter concerned the appropriateness of a supervision order under section 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) when there was evidence that access to necessary supports would be significantly impacted by the making of that order, but where the Applicant preferred to accept those limitations if the only alternative was to stay in prison. The Court found that a supervision order of 10 years’ duration imposed on Mr Grant was appropriate in the circumstances.

A key issue in proceedings was whether Mr Grant, an elderly man with serious health and mobility issues, could be released into the accommodation provided by Queensland Corrective Service (‘QCS’) to persons living under Dangerous Prisoners (Sexual Offenders) Act (Qld) 2003 orders. QCS policy prohibited visitors including food delivery, and health and aged care providers from attending at the accommodation.

Notably, Mr Grant did not seek any declaratory relief in relation to the unlawfulness of the QSC’s policy under section 58 of the Human Rights Act 2019 (Qld) or seek to agitate his other relevant rights such as the right to health services without discrimination.

Nonetheless, Applegarth J, engaged in a detailed examination of the application of the Human Rights Act 2019 (Qld) to his judicial functions, and the exercise of his discretion under the Dangerous Prisoners (Sexual Offenders) Act (Qld) 2003. He rejected the AG’s submissions that none of the rights under the Human Rights Act 2019 (Qld) related to the proceedings, and found that at least sections 29(1), 29(2) and 30(1) were applicable to the exercise of the Court’s function under section 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld): at [132]. He observed that there will be circumstances, including in this case, where an exercise of judicial discretion, ordinarily not subject to the Human Rights Act 2019 (Qld) by application of section 5, will nonetheless require the Court to consider human rights: at [110-114].

The Court found that a continuing detention order would deprive the First Respondent of the right to liberty pursuant to section 29 of the Human Rights Act 2019 (QLD). The Court defined “arbitrary” under that section to mean capricious, unpredictable, unjust or unreasonable in the sense of not being proportionate: at [111]. Additionally, a supervision order would impede the First Respondent’s freedom of movement under s 19: at [115]. The Court found that the right to humane treatment when deprived of liberty (section 30) in the Human Rights Act 2019 (Qld) was complementary to section 17b of the Human Rights Act 2019 (Qld), being the right to protection from torture and cruel, inhuman or degrading treatment.

In determining between those two options Applegarth J gave weight to the wishes of Mr Grant that he would prefer community supervision over continued detention, notwithstanding the risks to his health and wellbeing. A supervision order of ten years was therefore made.

In highlighting the shortcomings of the accommodations planned for Mr Grant in community, Applegarth J noted:

A question remains whether QCS’s practices and policies in relation to a person with the first respondent’s medical conditions are compatible with the HRA, particularly ss 30 and 37. They are questions for another day and possibly for another court. It may even be the Coroners Court. In such a forum, QCS may have to justify its inertia in response to Chief Justice Holmes’ 2017 judgment in Guy’s case. It may have to justify the inflexible application of policies that may be reasonable and justifiable for many other individuals who are accommodated at the precinct but distinctly inappropriate for an individual with acute medical and mobility problems: at [178].

Visit the Judgment: Attorney-General for QLD v Grant (No 2) [2022] QSC 252