21 May 2007
Key Points:
Where the legislature has conferred a discretion, decision-makers must remain free to exercise that discretion on the terms upon which it was conferred, even where to do so might run contrary to an established policy.
A recent decision of the Queensland Court of Appeal considered a decision that departed from Departmental policy. The case is a useful reminder to administrative decision-makers on the role of policy – a useful decision-making tool but a tool which cannot operate to amend the terms of the empowering legislation by restricting the exercise of a discretion conferred by the legislature.
The courts have often noted the utility of policy in ensuring consistent, transparent and open decision-making: see for example, Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206. However, a policy cannot fetter a decision-maker’s discretion and impermissibly substitute a rule where Parliament had decided to give a discretion: Administrative Decisions (Judicial Review) Act 1977 (Cth), section 5(2)(f).
In Garland v Chief Executive, Department of Corrective Services [2006] QCA 568, the Queensland Court of Appeal considered whether a decision made by the Chief Executive of the Department of Corrective Services under section 47 of the Corrective Services Act 2000 (Qld) (which has since been repealed and replaced) was unlawful on the basis that it did not accord with the then current Departmental policy.
The Chief Executive of the Department decided under section 47 of the Act to make a maximum security order for the detention of Mr Garland in a maximum security unit. Mr Garland sought to invalidate the maximum security order on various grounds, including that it did not comply with Departmental policy. The issue before the court was whether a departure from Departmental policy could amount to an error of law.
Mr Garland had been sentenced to an indefinite sentence on each of four counts of rape, with concurrent sentences for a number of other sexual offences, abduction, housebreaking and assaults. Mr Garland had an extensive history of sexual (and other) offences, including sexual assaults upon and sodomy of other prisoners while armed.
Section 47 of the Act said that the Chief Executive "may make [a maximum security] order" if the Chief Executive "considers, on reasonable grounds" that there is a high risk of escape or attempted escape, there is a high risk that the prisoner will inflict death or serious injury on other prisoners or others, or generally, the prisoner is a substantial threat to the security and good order of the facility. Under section 47, a maximum security order must not be longer than six months but, the Chief Executive could make a further maximum security order under section 48 to take effect from the end of the existing order.
In this case, Mr Garland had been the subject of successive maximum security orders for eight years. Mr Garland sought to challenge the most recent order, made on the ground that he was generally a substantial threat to security or good order. One ground of challenge was that the order conflicted with the Department’s own policy for the treatment of prisoners the subject of a maximum security order. Mr Garland’s argument was that his confinement in the maximum security unit was inconsistent with the policy and that the policy had the force of law as a statutory instrument. As Justice Chesterman noted, Mr Garland’s submissions stopped short of contending that the making of the order was unlawful because Mr Garland’s detention pursuant to the order did not comply with the policy.
Justice Chesterman stated that "unless that submission is made, and made good, any non-compliance with departmental policy cannot invalidate an order made in accordance with the provisions of section 47".
Section 189 of the Act provided that the Chief Executive must make administrative policies and procedures to facilitate the effective and efficient management of corrective services. The Chief Executive had made such a policy in relation to maximum security prisoners which provided that a team must be formed to develop a plan for a prisoner specifying strategies for the reintegration of the prisoner into the mainstream prison population. Under the policy, the Progression Guidelines for MSU Prisoners set out a four stage process through which, if the prisoner achieved all goals and adhered to all procedures, the prisoner moved from stage to stage until stage 4, "Preparation for Reintegration" by which time the prisoner would no longer be on a maximum security order. Mr Garland never reached stage 4.
Mr Garland alleged that the policy was a "statutory instrument" in terms of the Statutory Instruments Act 1992 (Qld) as it was made under an act or a power conferred by an Act. Justice Chesterman found that the policy was not subordinate legislation as defined by the Statutory Instruments Act because none of the categories set out in the section 9(1) description of which instruments are subordinate legislation included a departmental policy made under legislative authorisation.
Justice Chesterman went on to state that:
"But whether or not the policy is a statutory instrument, and whether or not it is subordinate legislation, it cannot operate to amend the plain terms of section 47 of the Act. The policy does not purport to do so. It is a ‘policy’. It contains guidelines for the management of prisoners subjected to a maximum security order but it does not provide that in every case every prisoner must be treated in accordance with the policy. If it purported to do so it would be invalid as being necessarily inconsistent with section 48 of the Act which allows for successive maximum security orders to be made with respect to the same prisoner. If the circumstances warrant successive orders they may be made, so long as the statutory criteria set out in section 47 are satisfied. The operation of those sections cannot be amended or curtailed by any departmental policy, even if it amounted to a statutory instrument."
This case illustrates that, where the legislature has conferred a discretion, decision-makers must remain free to exercise that discretion on the terms upon which it was conferred, even where to do so might run contrary to an established policy. Failure to comply with a departmental policy might fall foul of another ground of judicial review – such as defeating a legitimate expectation that the policy would be taken into account – but cannot in itself invalidate a decision where the legislation conferring the discretion was complied with. Garland illustrates that affected persons will not always be treated alike in the sphere of discretionary decision-making, that consistency is not a free-standing ground of judicial review.
For further information, please contact Jan Cumming.
