Wallace v Tannock [2023] QSC 122

Date: 2 June 2023
Court: Supreme Court of Queensland
Member: Callaghan J
Human Rights Act 2019 (Qld) Sections: 13, 22
Rights Considered: Right to peaceful assembly and freedom of association.
Other Legislation: Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld); Judicial Review Act 1991 (Qld)
Keywords: Criminal Law and Corrective Services: Parole; Public Law Considerations: Judicial Review

This case concerned an application for judicial review of directions made under a supervision order issued pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The Court considered the applicant’s right to freedom of association (section 22) pursuant to the Human Rights Act 2019 (Qld) and found that the applicant’s human rights were limited by the imposition of the directions. The Court held that the part of the order that permitted the applicant access to only male NDIS support workers was a justifiable limit on such right, however the part of the order that required the applicant to get approval to have any person at his residence - including family members and associates - was not justifiable.

The applicant was recognised to have a history of violent and sexual offending, as he was convicted of rape at the age of fourteen in 1988 and was then charged with an additional four counts of rape in 1992. He was sentenced to thirteen years of imprisonment, and subsequently in 1993, whilst incarcerated, was convicted of attempted murder and received a ten-year sentence to be served cumulatively to the thirteen-year sentence.

Prior to the applicant’s release date of 20 December 2015, the Attorney-General made an application for a Supervision Order pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The Attorney-General relied on, inter alia, assessments from three psychiatrists which recognised that the applicant had a moderate to high risk of future sexual reoffending, particularly whilst intoxicated or during a relapse of his schizophrenia.

The applicant was released subject to the Supervision Order, and for some time enjoyed relative independence in part due to his participation in the NDIS from 2019 onwards. Such funding enabled the applicant to receive services from support workers who attended his residence to assist with cooking, cleaning, and shopping, and also enabled him to engage sex workers: at [10].

During the time in which the applicant was monitored by Queensland Corrective Services (QCS) pursuant to the Supervision Order, QCS staff became concerned about pornographic material on the applicant’s phone that suggested a dangerous preoccupation with female NDIS workers: at [12]. It was suggested that there was a ‘blurring of the lines’ between sex workers and female NDIS support workers in the applicant’s mind: [12]. On 21 March 2022, the applicant was issued with a direction which required, inter alia that he have only male NDIS workers (“the Support Workers Direction”); and that he would be required to obtain prior approval before having any persons, including family and associates, at his residence (“the Visitors Direction”).

The applicant sought relief from those orders the basis that the orders involved a breach of natural justice and his human rights and were unreasonable. The Court referred to authority establishing that incompatibility with human rights should be considered in three stages: engagement, limitation and justification: [43]. The Court accepted that the applicant’s right to freedom of association pursuant to s 22 of the Human Rights Act 2019 (Qld) was engaged and limited by both the Support Workers Direction and the Visitors Direction: [45].

In the case of the Support Workers Direction, the Court held that this limitation was justified within the meaning of s 13 of the Human Rights Act 2019 (Qld), as it was calculated to reduce the damage to society that may arise from the applicant potentially reoffending against a female support worker: [46]. However, the Court held that, on the evidence before it, the Visitors Direction was not a justified limitation of the applicant’s human rights. The Visitors Direction applied to any visitor, including visitors against whom the risk of sexual offending was very low, such as male family members. Accordingly, there was no rational connection between the breadth of the restriction and the legitimate objective, which was the safety of the community. The Court ordered for the Visitors Direction to be set aside as it was an invalid limitation of the applicant’s right to freedom of association pursuant to s 22 of the Human Rights Act 2019 (Qld): [48] - [56].

Visit the Judgment: Wallace v Tannock [2023] QSC 122