Bartz v Chief Executive, Department of Corrective Services [2001] QSC 222

SUPREME COURT OF QUEENSLAND CITATION: Bartz v Chief Executive, Department of Corrective Serv [2001] QSC 222 PARTIES: WADE ANTHONY BARTZ (applicant) and CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES (respondent) FILE NO: 419 of 2001 DIVISION: Trial Division DELIVERED ON: 28 June 2001 DELIVERED AT: Brisbane HEARING DATE: 28 May 2001 JUDGE: Mackenzie J ORDER: The application is refused with costs to be assessed. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY – PERSON AGGRIEVED – GROUNDS FOR REVIEW OF DECISION – IMPROPER EXERCISE OF POWER – RELEVANT AND IRRELEVANT CONSIDERATIONS – UNREASONABLENESS – CONDUCT RELATING TO MAKING OF DECISION – where an amended application for a statutory order of review seeking to review both the decision and conduct of the respondent that defaulted the applicant’s security rating to a medium security classification and refused placement in open security accommodation – whether in the making of the decision the delegate failed to take into account relevant considerations – whether the decision was unreasonable and a one which no reasonable decision maker would make – whether the decision was made in bad faith Corrective Services Amendment Regulations 1991(Qld) Bartz v Department of Corrective Services [2000] QSC 336 Crowley v The Chief Executive, Department of Corrective -- 1 of 10 -- 2 Services [2001] QSC 219 Graveson v Queensland Corrective Services Commission [2000] 1 QdR 529 COUNSEL: Mr Bartz appearing for himself Mr Thomas appearing for the respondent SOLICITORS: CW Lohe, Crown Solicitor for the respondent [1] MACKENZIE J: The amended application for a statutory order of review seeks to review "both the decision and conduct of the respondent that defaulted the applicant's security rating to a medium security classification and refused placement in open security accommodation, namely open security accommodation at Lotus Glen Correctional Centre, on 9 November 2000". [2] The applicant is aggrieved because it is recommended pursuant to Ministerial Guidelines issued to the Queensland Community Corrections Board that a prisoner is to be housed in an open security environment for a minimum of 6 months before being released to a community based order. A prisoner must obtain an open security classification to achieve such and the decision of the respondent has severely delayed the applicant's opportunity of release. [3] The applicant relies on a variety of grounds in support of the application. By way of background, he was successful in a previous application for a statutory order of review of a decision made on 28 January 2000 to change his security from low to medium. Holmes J ([2000] QSC 336) held on 29 September 2000 that there had been a failure to take relevant considerations into account in two respects and set aside the decision and referred the matter back to the delegate for further consideration. [4] The sentence management review document, which states on its face that it was last reviewed on 8 November 2000, contains the following in the form in which it is recorded: "Having regard to the fact that the Supreme Court on 29 September 2000, set aside the delegates classification decision of 28 January 2000 I advise that the delegate has now considered our security classification afresh. I advise that after viewing all relevant material a decision was made on 26 October. That your (sic) are to be classified as a medium security prisoner and remain at Lotus Glen Correctional Centre." [5] Issues are raised as to when the decision was actually made and whether it encompasses the periodical review which was due on 25 September 2000. The sentence management review document contains in its early pages reference to events which occurred after 28 January 2000. There is no reason to suppose that it was not before the delegate when the decision was made. It also makes reference to the "review date" being 25 September 2000. The decision of Homes J was -- 2 of 10 -- 3 delivered 4 days later. The section headed "Verification Details" refers to the Supreme Court decision of 29 September 2000. [6] In view of that combination of factors, the irresistible conclusion is that the decision serves both as a reconsideration of the decision of 28 January 2000 and a periodical review in light of the additional material. [7] The decision in respect of which review is sought was that the applicant should be classified as medium security and remain at Lotus Glen. However, since that decision was made there has been a further review with the result that he has now been given open security classification and approved for transfer to Lotus Glen Correctional Centre Farm. Nevertheless, the applicant pursues the application for reasons principally explained in a letter of 9 April 2001 to the Crown Law Office. In summary, he believes that if he can demonstrate disadvantage due to a flawed decision on that occasion it will be of advantage to him when seeking leave of absence or community based release. [8] The applicant seeks declarations as part of the relief. He submits that there is no other relief or equally effective remedy available to overcome and present to the Queensland Community Corrections Board the disadvantage encountered under the management of the respondent. His written submissions extend to 40 pages. The specific grounds upon which he relies are: (a) failing to take relevant considerations into account; (b) unreasonable exercise of power; and (c) exercise of discretionary power in bad faith. Failure to take into account relevant considerations [9] In his written submissions the applicant refers to reg 13 of the Corrective Services Regulations 1989. He refers to paras (vii), (ix), (xv), (xvii). By the Corrective Services Amendment Regulations 1991 the criteria for determining a security rating were placed in a separate sub-s(1A). The new criteria are not expressed in precisely the same words as in the 1989 Regulations. However, the analogues of those referred to are s13(1A)(g),(i),(o) and (p). There is no material difference between the provisions relied on by him and the current provisions for present purposes. [10] The particular matter relied on in this regard is that the delegate did not consider two favourable work reports by the centre's Landscape Officer. These reports are not specifically referred to in a statement of reasons dated 22 December 2000 provided pursuant to s33 of the Judicial Review Act in relation to the decision. However, in the section containing a review of the applicant's institutional behaviour there is comment on his attitude to work, supervisors and fellow workers; the tone of these comments is favourable. More importantly, it may be inferred from the words used that the two reports not specifically referred to had been used as the source documents for the section because of similarities between the passages -- 3 of 10 -- 4 in the review and passages in the reports. The substance of the information in the work reports was before the decision maker in that form. [11] However, the applicant points to the absence of any specific reference to work attitude in the sentence review section. It is submitted that the fact that the nature of his activities was said to involve minimally supervised movement and required trust related to the question of his classification. [12] The problem with the submission is that, firstly, the reference to the applicant's work performance in the review is quite explicit. Secondly, the delegate says that he had considered all matters in the applicant's favour and had taken notice of the "various comments" that his conduct and attitude had been satisfactory and that he had been compliant with centre rules. While in some circumstances statements of this kind may be little more than platitudes, I am not satisfied that, when the comments are taken together in conjunction with the unequivocal nature of the comments in the "review" section, the delegate failed to consider the applicant's work performance in making the decision. Unreasonableness [13] Several issues are raised under this heading. The applicant's submissions are somewhat discursive. Reference is made to the same provisions in s13(1A) as above in this regard. As a general comment, where the objective is to characterise the decision not to grant open security classification and not transfer the applicant to open custody as unreasonable, it may be questionable whether attacking individual components of the decision making process is not akin to the process of attacking individual strands of circumstantial evidence. In each case such attack may affect the ultimate conclusion sought to be drawn, but it will depend on the circumstances. [14] Since the applicant's argument is structured in a way that attacks individual findings or other aspects of the decision making process, it is convenient to consider them within that structure with a view to answering the ultimate question whether the decision was one which no reasonable decision maker could reach. These remarks are, of course, directed towards the notion that the ultimate decision is unreasonable in the sense in which that term is used in administrative law. This part of the process assumes that relevant considerations have not been overlooked and that irrelevant considerations have not been taken into account. [15] The first specific matter referred to is the treatment of an incident on 15 July 2000 where the applicant's role was either "minimal" or as one where he initially intervened on the side of a "weaker inmate" and then denied others who intervened against the original attacker access to kitchen knives in the unit. He received a positive report from an intelligence officer in relation to preventing more serious consequences of the incident. The complaint is that positive aspects of his conduct were not given any or adequate weight. -- 4 of 10 -- 5 [16] It is implicit in para 57 of his submissions that the applicant intervened in the original fight in circumstances where ordinarily it would be the role of correctional officers to do so, had they arrived in a timely way. He complains that there was a failure to assess and weigh the favourable aspects of the matter properly. The effect of the information before the decision maker was that the applicant was involved in the incident, but that the intelligence officer had given a positive account of his involvement as it developed. The positive opinion of the incident on the part of the intelligence officer was specifically referred to, along with the fact of his involvement. The finding accepted that the applicant's involvement was minor and immediately after, noted the comments about the applicant's compliance with the rules of the centre during the more recent review period. I am not persuaded that it was unreasonable for the delegate to express a view of the matter in that way. The prisoner accepts in his submission that a merit review is beyond the scope of the present proceedings. [17] The next matter is concerned with what are now paras 13(1A)(f) and (p). He submits that consideration of the factors in s13(1A) is mandatory with respect to classifications (Graveson v Queensland Corrective Services Commission [2000] 1 QdR 529; Bartz v Department of Corrective Services [2000] QSC 336). The prisoner has a history of escapes which is a relevant consideration under s13(1A)(f). As against this the applicant points to his assessment as a minor escape risk. He refers to the Sentence Management Procedure r235(SM – 05) 3.9 where discretion is given to reduce a classification from medium to open where the escape assessment review indicates the offender is a minimum escape risk and to (SM – 04) 3.12 where no placement restraints apply to prisoners assessed as minimum escape risks. [18] The prisoner accepts that policy and procedure do not have the force of law. He concedes that the respondent has a discretion to administer policy and procedure. He concedes that the delegate is bound to consider his escape history. Nevertheless, it is submitted that the minimum escape risk assessment was disregarded or not given proper weight. It was submitted that deciding that a higher security classification than "open" was needed was unreasonable. He submitted that the conclusion reached by the delegate was inconsistent with the assessment that he was a minimum escape risk. [19] Where history of escapes is a specific matter to be considered, judgment has to be made as to the relevant weights to be given to competing components in criteria expressed in general terms. The current process is not a merits review. I am not satisfied that it was unreasonable for the decision maker to resolve the issue in the way in which he did. [20] The next matter argued under the heading of unreasonableness concerns an incident at Darling Downs Correctional Centre. In his written submissions an argument has developed which contrasts the use of the word "alleged" in relation to the incident in the decision of 28 January 2000, with the interpretation placed by the applicant on the present decision, that the respondent "is now satisfied that such conduct did -- 5 of 10 -- 6 occur". Building on that interpretation, the complaint is made that no further evidence subsequent to the decision of 28 January 2000 has been provided to the applicant. [21] The ground is presented in an unsatisfactory form. While the applicant constructs an argument based on his interpretation of the state of evidence concerning the incident there is no evidence concerning the incident before me, nor evidence of a kind which enables me to make any assessment whether, as a matter of fact, there is a real difference between the expression used in the decision of 28 January 2000 and the construction of the decision in respect of which review is sought. [22] Merely relying on the proposition that use of the word "alleged" on a previous occasion is proof that a materially different view has now been formed of the incident on this occasion is tenuous. If an applicant wishes to make a case of this kind, an evidentiary basis sufficient for the judge hearing the review to form an opinion as to the issue should be established. On the material before me, it is impossible to make any finding that there was unreasonableness in this respect. [23] The next ground also contains what is, in effect, a history of the applicant's behaviour from his perspective in the written submission, but as to which there is neither evidence nor a concession that it is correct. It may or may not be correct, but if the applicant wishes to rely on such information it is his responsibility to ensure that it is placed before the court in proper evidentiary form. Submissions are not a substitute for evidence. [24] The argument constructed in this particular section of the submissions is that in the statement of reasons the decision maker said that the applicant had been involved in a significant number of disruptive incidents since his placement into custody. He particularised an assault on a correctional officer in September 1995, and four separate occasions since that time of threatening staff, the last being in February 1998. A report of damaging property at Arthur Corrie Correctional Centre was also referred to. It was conceded that the respondent had authority to consider those factors in the decision making process. [25] Reference was made to r235 (SM – 03) 3.3. The section of the guidelines to which subsequent reference is made appears to be 3.4 but in any event the point that the applicant makes is that there is a "classification guideline" that where particular circumstances are current, the prisoner should not progress to open custody. Under the heading of a prisoner assessed as unacceptable for progression there is a section entitled "behaviour identified as a risk to staff/prisoners". What is stated in the guideline is as follows: "In cases where a prisoner has demonstrated a pattern of: • aggressive behaviour towards staff and/or prisoners; and/or • involvement in impulsive, uncooperative behaviour; and/or • non-compliance with centre rules and regulations; • progression to open custody may be delayed. -- 6 of 10 -- 7 [26] I note that the prisoner uses more imperative language in the sense of "will not progress to open custody" and "will be delayed" instead of the more discretionary language used in the copy of r235 to which I have access. However, nothing turns on that for present purposes. The applicant submits that those provisions are the only factors which could have been relied on to delay his progression to open security classification. He takes issue whether the behaviour identified as a risk to staff/prisoners can be identified as "current" and whether the behaviour which undoubtedly is recurrent can be described as a "pattern". He relies on dictionary definitions to support these arguments. He also refers, in a way which has already been commented on, to what he says is his history of classification reviews to support the notion that there is no "pattern" of inappropriate behaviour. [27] The thrust of the applicant's argument is that he had not incurred a breach of prison discipline for a period of 35 months, and incident of allegedly threatening staff for 33 months and that the allegation of threatening another prisoner had occurred 15 months previously. He submitted that this did not demonstrate a pattern of at risk behaviour of staff/prisoners nor one that was current. What constitutes a pattern and what is current has to be viewed in the context of the applicant's behaviour and, in my view, the length of the sentence and history of the custody. It plainly cannot mean that one has to look at the prisoner's behaviour as if it were a snapshot of the conduct on the day when the decision was made. In any particular sentence it is a relative thing. I am not satisfied that it was unreasonable for the decision maker to take the view which he took. [28] To the extent that the applicant focuses on the issue of unreasonableness of the ultimate decision not to give an open security classification, para 99 of the written submissions appears to relate to the issue. It is acknowledged that it is not the role of the court to review a decision on its merits. It is conceded that the court will not be pedantic about managerial decisions. It is submitted that the applicant is not requesting that the court consider the decision on the merits. It is submitted that the unreasonableness grounds are issues of law. It is conceded that the respondent may well reach the same decision but because it has not considered all relevant material and has not considered and weighed up the evidence considered reasonably the decision must be reviewed. For the accumulation of reasons given above, I consider that this ground is not made out. Bad faith [29] This ground is concerned with inferences which the applicant submits ought to be drawn from consideration of the process followed. It will be recalled that the order to reconsider the decision of 28 January 2000 was made on 29 September 2000. [30] On 25 October 2001 the applicant sent a fax to the Crown Law Office pointing out that it had been almost 4 weeks since the judgment had been delivered and there had been no indication that the department was going to reconsider the decision. It foreshadowed the filing of an appropriate application in the court. The applicant concedes in his written outline that the respondent was not under any statutory -- 7 of 10 -- 8 obligation to reconsider the decision within 28 days. There was no obligation under the order of Holmes J, to do so either. However, it seems that the applicant believed that 28 days was a reasonable time within which to make a decision. [31] Correspondence had also been sent to the Minister for Police and Corrective Services on the applicant's behalf. On 30 October 2000 the Minister replied in the following terms: "I understand this review has now taken place and your son has been reclassified to open security." Either the Minister was misinformed or information was given to his office which was misinterpreted since the information conveyed in the letter was partly incorrect. [32] On 1 November 2000 the Ombudsman, at a meeting at Lotus Glen was told that a decision would be made in the very near future. [33] In a letter of 7 November 2000 the Minister advised that it was not correct that a decision had been made. It was stated that the review had been conducted and that the recommendations had been sent to the authorised delegate. The Centre had recommended a reduction in classification to open security. However, the prisoner's classification would not be verified until the authorised delegate made his decision. The previous information had been given on the basis of information from Lotus Glen, but was not the delegate's decision. [34] The applicant sent a fax on 8 November 2000 threatening an application to the court over delays in reconsidering the decision of 28 January 2000 and the review on 27 September 2000. It appears he believed that prompt notification of the decision after that fax was sent demonstrated that the decision was made immediately after the "assertive facsimile". While the applicant believes that it is the case that the decision was made on 8 November 2000, the statement of reasons says that the decision was made on 26 October 2000, as does a letter of 7 November 2000 to the applicant, signed by the Acting Senior Adviser, Centre Management. That precedes the fax which the applicant believes precipitated the decision. [35] The last sentence of the management review document appears to have been administratively finalised on 8 November 2000. It too refers to the decision having been made on 26 October 2000. The notion of backdating a decision to deceive the court in the event of an application which would not have been based on any breach of an obligation to make the decision within a specific time and which was never brought is not compelling. [36] The issue whether the recommendations of the sentence management staff at Lotus Glen were considered by the authorised delegate is also raised under this heading. It has been pointed out earlier that, on the face of it, much of the material in the first -- 8 of 10 -- 9 three pages of the sentence management review relates to events subsequent to the decision of 28 January 2000. There is no reason to suppose that they were not taken into account in addition to the material relating to the decision remitted for reconsideration. [37] There is also a submission that the respondent has made the decision purportedly addressing the recommendations of 27 September 2000 in bad faith by not considering the material at the relevant meeting. It is submitted that the two ministerial letters, the fax of 3 November 2000 threatening to bring proceedings, a letter to the Ombudsmen of 1 November 2000 and the fax to the Serious Offenders Committee dated 8 November 2000 evidenced the fact that the decision was not made on 26 October 2000. It is submitted that the statement of reasons is an attempt to assert that the recommendations of 27 September 2000 were considered when in fact they were not. This is said to be further evidence of bad faith. [38] It is unfortunate that the combination of erroneous information and giving out of information prematurely about recommendations which had not been endorsed and were subsequently not endorsed has led to the obvious concern on the part of the applicant about the process followed in making the decision. However, in my view the arguments relied on fall well short of establishing a direct or circumstantial case of bad faith. [39] I would simply add one more piece of information. It does not form a ground for reaching the decision that bad faith is not made out. However, because of the accused's concern about the process it is desirable to make it plain what the process appears to be in cases of this kind. [40] Almost contemporaneously with the present case, evidence was given in an application for a statutory order of review Crowley v The Chief Executive, Department of Corrective Services and Anor [2001] QSC 219 concerning the administrative processes with regard to sentence management reviews. The information appears principally at pages 6 and 10 of the transcript of the hearing. In summary it is the following. When asked how the sentence management review document came into existence the witness (who was the decision maker in both proceedings) said the following: "That is generated by the sentence management team originally on our computer data base. They fill in the relevant parts of the information. Some of it is generated through previous reports and this document, together with other documents as relate to the case, are then forwarded to myself for consideration, and after the consideration or after the decision is made, the last part of the document, … is generated through the senior adviser on the basis of my decision." [41] He went on to say that, with the exception of the last part of the document which subsequently records the decision, the information was sent to him electronically. After receiving all relevant information the delegate's decision was made. Minutes -- 9 of 10 -- 10 of meetings at which decisions were taken were kept and signed by the decision maker. Following that, a passage reflecting the decision would be inserted into the electronic document by the sentence adviser in plain language so that the reasons for the decision could easily be understood by the prisoner. After that had been done accuracy of the information was verified and the whole document transmitted electronically to the relevant correctional centre. It was then printed off with a copy being given to the prisoner and a copy retained in the commission's records. [42] Based on that system, the most likely explanation for the regrettable confusion is that the administrative processes involved in verifying and translating the decision into the records of the commission and sending it to Lotus Glen have taken some time to be completed, leading to the conflicting information being given. [43] Since none of the grounds are made out the application is refused with costs to be assessed. -- 10 of 10 --