Lex Patrick Wotton v State of Queensland and Another

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Gummow,Hayne,Crennan,Bell JJ.,Heydon J.,Kiefel J.
• Judgment Date: 29 February 2012
• Neutral Citation: [2012] HCA 2,2012-0229 HCA C
• Docket Number: S314/2010
• Date: 29 February 2012

[2012] HCA 2

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

S314/2010

Lex Patrick Wotton

Plaintiff

and

State of Queensland & Anor

Defendants

Representation

R Merkel QC with A D Pound and K L Walker for the plaintiff (instructed by Levitt Robinson Solicitors)

W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar and A D Scott for the first defendant (instructed by Crown Solicitor (Qld))

Submitting appearance for the second defendant

Interveners

S J Gageler SC, Solicitor-General of the Commonwealth with C L Lenehan intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales with K M Richardson intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))

S G E McLeish SC, Solicitor-General for the State of Victoria with A M Dinelli intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

Acts Interpretation Act 1954 (Q), s 9(1).

Corrective Services Act 2006 (Q), ss 132(1)(a), 132(2)(d), 200(2).

Criminal Code (Q), s 7.

Judicial Review Act 1991 (Q), ss 20-40.

Wotton v Queensland

Constitutional law (Cth) — Operation and effect of Constitution — Interpretation — Implied freedom of political communication about government or political matters — System of representative and responsible government — Validity of ss 132(1)(a) and 200(2) of Corrective Services Act 2006 (Q) — Whether statute complies with limitations on legislative power of State — Whether the impugned law effectively burdens freedom of communicating about government and political matters — Whether provisions reasonably appropriate and adapted to serve legitimate end in manner compatible with maintenance of representative and responsible government.

Administrative law — Relationship between Judicial Review Act 1991 (Q) and determination of issues of legislative validity — Whether validity of particular conditions imposed pursuant to s 200(2) of Corrective Services Act 2006 (Q) question of constitutional law or of compliance by repository of power with statutory limits.

Words and phrases — ‘constitutionally prescribed system of representative and responsible government’, ‘effectively burdens freedom of communication’, ‘impermissibly burdening’, ‘implied freedoms’, ‘political communication’.

ORDER

Order that the questions stated in the Further Amended Special Case filed on 15 August 2011 be answered as follows:

Question 1: (a) Is s 132(1)(a) of the Corrective Services Act 2006 (Q) invalid because it impermissibly burdens the freedom of communication of government and political matters, contrary to the Commonwealth Constitution?

(b) Is s 132(1)(a) of the Corrective Services Act 2006 (Q) to be construed so as not to apply to a prisoner on parole?

Answer: Section 132(1)(a) must be read together with s 132(2)(d) and, so read, in its application to prisoners on parole it is not invalid for impermissibly burdening the freedom of communication about government and political matters.

Questions 2 and 3 should be answered together.

Question 2: Is s 200(2) of the Corrective Services Act 2006 (Q) invalid to the extent it authorizes the imposition of the conditions (t) and (v) of the plaintiff's Parole Order?

Question 3: If s 200(2) of the Corrective Services Act 2006 (Q) is construed so that the power it confers must be exercised in conformity with the freedom of communication with the government and political matters provided for under the Commonwealth Constitution, are conditions (t) and (v) of the plaintiff's Parole Order invalid because they impermissibly burden that freedom?

Answer: Section 200(2), in its application to prisoners on parole, is not invalid for impermissibly burdening the freedom of communication about government and political matters and the question of the validity of conditions (t) and (v) of the plaintiff's Parole Order does not arise in this proceeding.

Question 4: Who should pay the costs of the special case?

Answer: Each party should bear its own costs.

1 French CJ, Gummow, Hayne, Crennan AND Bell JJ. The plaintiff is an Aboriginal person who was born in 1967 on Palm Island which is located in the Coral Sea, north of Townsville in the State of Queensland. (That State is the first defendant.) The plaintiff has resided there for a substantial part of his life. He served from 1997 to 2000, and for some eight months in 2002–2003, as a councillor on the Palm Island Aboriginal Shire Council, which is established under the local government legislation of Queensland 1.

2 There is no dispute that the plaintiff, as a person under sentence but with the benefit of a parole order, has the necessary standing to maintain this action in the original jurisdiction of this Court. However, the plaintiff's interest does not go beyond that status to support a challenge to the operation of the legislation with respect to prisoners who are not released on parole.

3 There was before the Full Court a Further Amended Special Case filed 15 August 2011. The second defendant (‘the Parole Board’) entered a submitting appearance. The opposition to the plaintiff's submissions was presented by the first defendant. There were interventions by the Commonwealth, New South Wales and Victoria.

4 Some account of the plaintiff's circumstances may now be given. On 26 November 2004, there was a riot on Palm Island. This followed the death of an Aboriginal man, Mr Mulrunji Doomadgee, in police custody. Up to 300 persons were involved and there was significant damage to the Palm Island infrastructure. The plaintiff participated in that riot. At a jury trial in the District Court of Queensland, he was convicted of rioting causing destruction contrary to ss 61 and 65 of the Criminal Code (Q) (‘the Code’) 2. On 7 November 2008, Shanahan DCJ imposed a head sentence of six years imprisonment and set a parole eligibility date after two years served.

5 In his comprehensive sentencing remarks, his Honour said:

‘The history and disadvantages of Palm Island is not something for which successive administrations of this State and the Commonwealth could in any way be proud. It is a community that faces a number of

serious problems and has for a number of years. Having said that there are a number of members of that community, a large number of members, who are working towards improving that community. They should be given due recognition and support.’

Shanahan DCJ went on to describe the plaintiff as having played a lead role in the unacceptable acts of violence which took place over a period of three hours. However, his Honour added:

‘You've been involved in the Palm Island Men's Group. You've been involved with a program about alcohol and drug rehabilitation. You've made serious efforts to assist the youth of your community in relation to suicide problems and in recent years those efforts have continued. Many of the references speak highly of you and the four years that have passed since this offence enable the Court to see, in my view, that you are making significant steps to rehabilitate yourself in terms of returning to your own community and the wider community, something that was taken from it on this day.’

6 The Parole Board is a regional parole board established pursuant to Ch 5, Pt 2, Div 2 (ss 230–240) of the Corrective Services Act 200(Q) (‘the Corrective Services Act’). One of its functions is to decide applications for parole orders under Ch 5, Pt 1 (ss 176–215) of that statute. A prisoner may apply for a parole order if the prisoner has reached the applicable parole eligibility date (s 180(1)). Sections 187-194 contain detailed provisions for the hearing and making of decisions upon applications. A prisoner released on parole is to be taken as still under sentence (s 214) 3, and to remain in the custody of the chief executive until unconditionally released (s 7(4), Sched 4).

7 Subject to any direction of the Minister, the chief executive is responsible for matters including the safe custody and welfare of all prisoners and the supervision of offenders in the community (s 263(1)). However, in making decisions about particular individuals, the chief executive ‘must act independently, impartially and fairly’ and ‘is not subject to direction by any Minister’: Public Service Act 2008 (Q), s 100(2).

8 The purpose of the Corrective Services Act, stated in s 3(1), ‘is community safety and crime prevention through the humane containment,

supervision and rehabilitation of offenders’. The statute also is said to recognise pursuant to s 3(2) that ‘basic human entitlements’ of offenders should be safeguarded, ‘other than those that are necessarily diminished because of imprisonment or another court sentence’.

9 It is important for the present case to note that s 9(1) of the Acts Interpretation Act 1954 (Q) (‘the Interpretation Act’) requires that the Corrective Services Act be interpreted to the full extent of, but not to exceed, the legislative power of the State legislature. The Corrective Services Act confers various discretionary powers which are expressed in broad terms. However, in accordance with general principles 4, these powers must be understood with regard to the subject matter, scope and purpose of the statute and must be exercised on application. Further, the discretionary powers must be exercised in accordance with any applicable law, including the Constitution itself.

10 In that latter regard, the following passage from the reasons of Brennan J in Miller v TCN Channel Nine Pty Ltd5, a case concerning s 92 of the Constitution, is on point. His Honour said:

‘Of necessity, the area of the discretion must be large: the nature of the subject to be regulated requires that the...