Date: 22 October 2021
Court: Supreme Court of Queensland
Judicial Officer: Martin J
Human Rights Act 2019 (Qld) Sections: ss 8, 9, 13, 17, 18, 22, 25, 29, 30, 48, 50, 51, 58, 59
Rights Considered: Right to protection from torture and cruel, inhuman or degrading treatment; Right to peaceful assembly and freedom of association; Right to liberty and security of person; Right to humane treatment when deprived of liberty
Other Legislation: Charter of Human Rights and Responsibilities Act 2016 (Vic) ss 7, 22, 32; Corrective Services Act 2006 (Qld) ss 3, 12, 13, 14, 60, 61, 62, 63; Corrective Services Regulation 2017 (Qld) ss 4, 18; Explanatory Notes, Human Rights Bill 2018; Human Rights Act 1998 (UK); Judicial Review Act 1991 (Qld) ss 20, 23; Major Crimes (Investigate Powers) Act 2004 s 39; New Zealand Bill of Rights Act 1990 (NZ); Penalties and Sentences Act 1992 s 15; Prisoners Act 1952 (UK) s 12; Uniform Civil Procedure Rules 1999 r 930; Youth Justice Act 2005 (NT) s 153
Keywords: Criminal Law and Corrective Services; Public Law Considerations: Judicial Review

An action for judicial review was brought by a prisoner in relation to two decisions: the decision to impose a maximum security order (MSO) for a further six months (following seven years of being subject to such an order); and the decision to impose a no association order. The applicant claimed that the decision-maker breached the obligation to make decisions consistently with human rights, and to consider human rights in the making of decisions. The applicant failed to make out the claims with respect to the right to protection from torture and cruel, inhuman or degrading treatment, or the right to liberty and security of person, but was successful in making out the claim in relation to the right to humane treatment when deprived of liberty.  

The applicant was sentenced to a life term of imprisonment for the brutal murder of another man. During his first three years in prison, he was convicted of a number of further offences, including attempted murder. During his third year in prison, he was issued with a MSO, which was renewed every six months for seven years. The MSO was accompanied by a No Association Decision, the combination of which effectively placed the applicant in solitary confinement. The decisions were made again every six months from January 2013 to December 2020. Review was sought under the Judicial Review Act 1991 (Qld) and the Human Rights Act 2019 (Qld) in respect of the MSO issued for the period from 18 June 2020 to 16 December 2020.

The applicant sought judicial review of the decision on five grounds:

  1. there was a denial of natural justice;
  2. the decision was unreasonable;
  3. the decision was illogical;
  4. the decision maker failed to take into account relevant considerations and took into account irrelevant considerations; and
  5. there was an incorrect finding of fact as to the risk posed by the applicant.

The applicant alleged breaches of several human rights including: the right to humane treatment when deprived of liberty (section 30(1)); the right to liberty and security of person (section 29) and the right to protection from torture and cruel, inhuman or degrading treatment (section 17(b)). 

With respect to the first ground of judicial review, Martin J found that the decision-maker had not breached the rules of natural justice, as she had given due and proper consideration to the matters set out in the applicant’s submissions: at [50]. His Honour rejected the grounds of unreasonableness and illogicality, as the decision was rationally open to the decision-maker, in light of there being evidence supportive of the conclusion the decision-maker reached: at [63]. His Honour found that the decision-maker had not taken into account any irrelevant considerations and had not made an incorrect finding of fact amounting to an error of law: at [83] and [90].

Regarding considerations that the decision-maker must take into account when making a decision, His Honour found that the decision-maker had failed to take into account the applicant’s human rights. The decision-maker had made brief reference to the applicant’s right to peaceful assembly and freedom of association (section 22 of the Human Rights Act 2019 (Qld)), but no reference to the protection from torture and cruel, inhuman or degrading treatment (section 17 of the Human Rights Act 2019 (Qld)), or to the right to humane treatment when deprived of liberty (section 30 of the Human Rights Act 2019 (Qld)): at [79]-[81]. This constituted a failure to consider a legally relevant requirement, and so the application for judicial review was successful on that ground.

Martin J then moved on to consider the claim under the Human Rights Act 2019 (Qld). His Honour outlined the issues that must be determined in the event that an applicant alleges a breach of the Human Rights Act 2019 (Qld): at [95]. The considerations were stated to include:

  • Identification of the decision and the reasons, if any, given for making it;
  • Identification of any human rights which are relevant to the decision;
  • Determining whether the applicant has shown that the decision limits those human rights. If that is done, then - 
  • Has the respondent identified the human rights that may be affected by the decision: s 58(5)(a)?
  • Has the respondent made a decision in a way that is not compatible with human rights: s 58(1)(a)?
  • In making the decision has the respondent failed to give proper consideration to relevant human rights: s 58(1)(b)?
  • Has the respondent identified the human rights that may be affected by the decision: s 58(5)(a)?
  • Has the respondent considered whether the decision would be compatible with human rights: s 58(5)(b)?

His Honour held that, in assessing whether a decision has been made compatibly with human rights (under section 58(1)(a) of the Human Rights Act 2019 (Qld)), the applicant need only establish that there is incompatibility with human rights before the burden shifts to the respondent to justify the limitation on human rights: at [128]-[131]. His Honour endorsed Richard J’s comments in Minogue v Thompson [2021] VSC 56 which allowed some deference to decision-makers in ascertaining whether the limitation on human rights is justifiable, but distinguished this from the strict question of fact of determining whether officials have given proper consideration to relevant human rights: at [140].

The relationship between the right to protection from cruel, inhuman or degrading treatment and the right to humane treatment when deprived of liberty (sections 17(b) and 30 of the Human Rights Act 2019 (Qld)) was considered. His Honour noted that section 17(b) protected any person, whether incarcerated or not, whereas section 30 protects those who are incarcerated. His Honour did not define cruel, inhuman or degrading treatment as being something that would ‘shock community conscience’ despite the international case law to this effect: at [181]. His Honour preferred an approach that took into account ‘all the circumstances of the case, including the duration of the treatment, its physical or mental effects, and the sex, age and state of health of the alleged victim’ at [186]. 

His Honour concluded that the applicant’s right to protection from cruel, inhuman or degrading treatment had not been breached: at [192]. This conclusion was reached at least in part because of a failure of the parties to actually produce evidence of the harm of solitary confinement on the applicant: at [154], [156] and [191]. The parties instead led evidence of the ‘horrific effects’ of solitary confinement: at [156]-[158]. 

When determining whether the applicant’s right to liberty and security of person had been breached (section 29 of the Human Rights Act 2019 (Qld), His Honour discussed whether prisoners have a ‘residual liberty’ while incarcerated: at [202]. After considering jurisprudence from Canada, United Kingdom and New Zealand, His Honour concluded that the right to liberty and security of person was not engaged in this case: at [234].

The right to humane treatment whilst incarcerated was held to be engaged whenever a prisoner is subject to hardship and constraint greater than the hardship and constraint that all prisoners experience by virtue of incarceration: at [237]. It was agreed by the parties that this right had been engaged. The limitation on this right could not be justified. The decision-maker merely stated that they believed that there were no reasonable alternative arrangements to manage the risk. However, this was inadequate, particularly given that the burden of proving reasonableness of limitation is a heavy one: at [250]. His Honour also emphasised that the decision-maker could not minimise the restriction of the applicant’s human rights or ignore the ultimate effect the decision had on the applicant by arguing the isolation was for only six months and instead should have recognised that the decision was to isolate the prisoner for a further six months: at [253].

The Court held that section 58(1)(a) of the Human Rights Act 2019 (Qld) was not satisfied and the decision was unlawful: at [261]. The decision-maker also failed to satisfy section 58(1)(b) of the Human Rights Act 2019 (Qld), as they failed to consider section 30 of the Human Rights Act 2019 (Qld), and therefore did not meet the requirements of the procedural limb: at [262].

Orders were reserved for a later hearing.

Visit the judgement: Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273