Bartz v Department of Corrective Services [2005] QSC 114

State Reporting Bureau jzooi} M4* Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DOUGLAS J No BS 2168 of 2005 WADE ANTHONY BARTZ Applicant and DEPARTMENT OF CORRECTIVE SERVICES Respondent BRISBANE . .DATE 19/04/2005 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date: 29 April. 2005 WARNING : The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal sffence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for heir protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those :ategories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 6 -- 1 HIS HONOUR: Mr Bartz is a prisoner who has raised an issue of construction of the Corrective Services Act 2000 in respect of payment for the postage costs of privileged mail . 19042005 T4/JAP30 M/T 1/2005 (Douglas J) Privileged mail means mail sent to or by a person who is prescribed under a regulation, see schedule 3 of the Corrective Services Act. That definition follows immediately after the definition of prisoner's mail which means mail sent to or by a prisoner. 10 2 Privileged mail may typically be sent to the Minister for Corrective Services, a prisoner's lawyer, the ombudsman, the Attorney-General, the Antidiscrimination Commissioner, the Information Commissioner or the Director of Public Prosecutions. They are all persons who have been prescribed 3i for the purpose of the sending of privileged mail. See section 7(1) of the Corrective Services Regulation 2001. It seems clear that the system is designed to provide a means by which a prisoner can have confidential communications with 40 people of that type, for example, in respect of the seeking of legal advice or the making of complaints about conditions in the prison where he is being kept. The system that has applied in the past in respect of the sending of that mail is that a blue envelope is provided to a prisoner on request 50 pursuant to section 7(3) of the Corrective Services Regulation. 2 JUDGMENT 60 -- 2 of 6 -- In the past, on Mr Bartz ' evidence, the management of the prisons where he has been kept also provided the postage to be placed on those envelopes. He is now at Wolston Correctional Centre and says that in early 2005 the system changed there to the effect that Corrective Service officers refuse to accept and process mail in blue envelopes if an expenditure voucher is not completed and attached with the mail to be sent. Corrective Services officers then determine whether postage costs will be met and he says that it is procedure at Wolston Correctional Centre not to accept privileged mail if there is no expenditure voucher attached. There is also an affidavit from Ms Lydia Pennington who is acting general manager of the Wolston Correctional Centre and has been in that position since late February 2005. She says that during her time as acting general manager she has processed requests by prisoners for sending privileged mail in accordance with a system where, if she determines that a prisoner has sufficient funds in his trust account to pay for the postage, the costs of postage are deducted from the prisoner's trust account in accordance with the expenditure form and, if she determines that a prisoner has insufficient funds in his trust account to pay for the postage, she allows the mail to be sent at departmental expense. Mr Bartz' evidence is that he, for example, receives $13.65 a week from being employed as a full-time student plus a weekly amenities allowance of $9.27 from which he has to pay $2 a week television rental, $1.25 per week for payment of 19042005 T4/JAP30 M/T 1/2005 (Douglas J) 1 10 20 30 40 50 3 JUDGMENT 60 -- 3 of 6 -- 1 19042005 T4/JAP30 M/T 1/2005 (Douglas J) litigation costs orders, STD telephone calls, toiletries, coffee and food items as well as meet costs incurred to undertake tertiary study and he says that the allowance he receives does not come close to covering those expenses and that he does not have the money to pay postage costs but that 10 the respondent claims he has the money to pay postage costs simply because all prisoners at Wolston Correctional Centre receive some form of weekly payment . What seems to be the critical section of the Corrective Services Act is section 34. Subsection 1 provides that a prisoner must purchase anything required for the prisoner's mail . Subsection 2 provides however if the person in charge is satisfied that a prisoner does not have enough money to pay the postage costs the costs may be paid for by the Chief Executive. 2P 30 Mr Bartz also pointed to section 35(4) which provides that if a prisoner is participating in an approved program that requires the prisoner to send things by mail the postage costs must be paid for by the Chief Executive. He submitted that if the postage costs must be paid for by the Chief Executive in such a case it supported his argument that there was an obligation on the Chief Executive to pay the postage costs for important mail such as privileged mail which may include complaints about the operation of the system. 40 50 One issue for determination is whether privileged mail can also be described as prisoner's mail for the purposes of 4 JUDGMENT 60 -- 4 of 6 -- section 34(1). Mr Bartz submitted that it should be treated as a different category of mail. It is, however, mail sent to or by a prisoner which falls within the definition of prisoner's mail in schedule 3 and when one looks at the uses of the terms "prisoner's mail" and "privileged mail" in section 35(1) it seems a logical conclusion there that privileged mail is treated as a subset of prisoner's mail. It seems to me that that conclusion is not affected by the other uses of the words "privileged mail" or "prisoner's privileged mail" in section 35(2) and section 35(3) and section 106 (1) . That requires the conclusion then that the discretion in the Chief Executive to pay costs required for the prisoner's mail would also extend to the privileged mail. More than that it seems to me that there is no obligation imposed by the Act on the Chief Executive to pay the postage costs for privileged mail, unlike the terms of section 35(4) which do prescribe such an obligation in respect of a prisoner's participation in an approved program that requires the prisoner to send things by mail. Nor is there any evidence of any abuse of the system that would buttress the examples suggested by Mr Bartz as supporting the conclusion he argued, namely that the existence of the discretion in the Chief Executive could thwart what are desirable aims of the legislation and the regulation that the prisoner have the ability to send privileged mail in 19042005 T4/JAP30 M/T 1/2005 (Douglas J) 1 10 20 30 40 50 5 JUDGMENT 60 -- 5 of 6 -- 19042005 T4/JAP30 M/T 1/2005 (Douglas J) confidential circumstances to the people prescribed in section 1 7(1) of the Corrective Services Regulation. In those circumstances, it does not seem to me that it is open to me on the proper interpretation of the Act to make the 10 declaration that is sought. Even if the construction urged by Mr Bartz were a possible construction there are no factual circumstances on the evidence before me that would enliven any discretion to make such a declaration as there is no evidence of any abuse of the system of the nature that Mr Bartz 2° submitted was open if the system did continue to leave a discretion in the Chief Executive whether or not postage should be paid. Accordingly, the application is dismissed. 30 HIS HONOUR: The application is dismissed with costs. 40 50 6 JUDGMENT 60 -- 6 of 6 --