Criminal Justice Commission v Queensland Advocacy Incorporated [1995] QCA 51 [1996] 2 Qd R 118

[1995] QCA 051 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 90 of 1994 Appeal No. 91 of 1994 Brisbane [CJC and Public Trustee of Qld v. Qld Advocacy Incorporated] BETWEEN CRIMINAL JUSTICE COMMISSION and PUBLIC TRUSTEE OF QUEENSLAND Appellants AND: QUEENSLAND ADVOCACY INCORPORATED Respondent Macrossan CJ Davies JA Demack J Judgment delivered 08/03/1995 SEPARATE REASONS FOR JUDGMENT OF EACH MEMBER OF THE COURT, DAVIES JA DISSENTING. MACROSSAN CJ AND DEMACK J CONCURRING AS TO THE ORDERS MADE. APPEAL ALLOWED AND ALL ORDERS MADE BELOW SET ASIDE. NO ORDER FOR COSTS OF THE PROCEEDINGS BELOW OR OF THE APPEALS. CATCHWORDS: ADMINISTRATIVE LAW - STATUTORY REVIEW - investigation pursuant to Criminal Justice Act 1989 - whether QAI is "a person concerned in the proceedings" within s.95 of the Criminal Justice Act 1989 - representative rights of Public Trustee - role of legal friend. Counsel: Mr Sofronoff QC with him Ms Springer for the first appellant. Mr Fleming for the second appellant. Mr Keim for the respondent. -- 1 of 23 -- Solicitors: Mr Marxson for the first appellant. Mr Nickel for the second appellant. Mr Keeley for the respondent. Hearing Date: 1/05/94 -- 2 of 23 -- THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 90 of 1994 Appeal No. 91 of 1994 Brisbane Before Macrossan CJ Davies JA Demack J [CJC and Public Trustee of Qld v. Qld Advocacy Incorporated] BETWEEN: CRIMINAL JUSTICE COMMISSION and THE PUBLIC TRUSTEE OF QUEENSLAND Appellants AND: QUEENSLAND ADVOCACY INCORPORATED Respondent REASONS FOR JUDGMENT - THE CHIEF JUSTICE Judgment delivered 08/03/1995 The significant issues to be resolved on this appeal are those raised in the arguments presented on behalf of the Criminal Justice Commission (CJC) and Queensland Advocacy Incorporated (QAI). Other submissions devoted attention to the extent to which the Public Trustee or the Legal Friend might be thought to be involved or should be permitted to be involved in the subject matter of the inquiry being conducted by Mr Stewart. In those further submissions reference was made to the statutory framework relevant to -- 3 of 23 -- 2 the situation of the two named entities but it is not necessary to make detailed reference to those matters. Broadly it can be said that the clearest or most significant involvement of the Public Trustee in respect of the residents of the Basil Stafford Centre is in connection with their legal property interests but this appeal is not much concerned with interests of that kind. Putting their property interests to one side, the Public Trustee does not have a clear and definite function in respect of the general situation of the residents and did not press to undertake representation on their behalf in the subject inquiry. The Legal Friend, with a number of statutory functions and responsibilities, did not appear and seek to be accorded formal representative rights in the inquiry. For the resolution of the essential matters on this appeal, his situation can be put to one side together with that of the Public Trustee. Not all of the matters central to the issues raised on the appeal were in contention. Neither Counsel for the CJC nor Counsel for QAI contended that the residents of the centre were other than "persons concerned" within the meaning of that phrase in s.95 of the Criminal Justice Act 1989 with whatever rights of representation in the inquiry followed from that fact. When the terms under which the inquiry was constituted are examined and attention is given to the situation of the residents who, it can be assumed, are persons suffering substantial intellectual impairment, then it can be understood why no debate arose on this issue. -- 4 of 23 -- 3 The residents, or numbers of them, may have been involved in events alleged to constitute examples of the misconduct being investigated and may indeed have been victims of it if it had occurred. The residents would, as well, be likely to be involved in any recommendations for the future operation of the centre which might be the outcome of the inquiry. These considerations could give them claims to be regarded as persons concerned. It was accepted that Mr Stewart, who was conducting the inquiry, had been properly appointed under s.66 of the Act for that purpose. In his rulings on the submissions made to him, he did not reach a conclusion that the residents were "persons concerned" under s.95 and indeed he regarded the matter as doubtful. Subsequently, this issue became more clearly removed from contest, the main protagonists accepting that the residents were "persons concerned." However, at no stage of proceedings has anyone appeared on behalf of the residents claiming to have been appointed in that capacity in any formal way. The residents themselves have not engaged anyone to represent them, and the general understanding was that they lacked capacity to take that step on their own behalf. QAI nevertheless argued that it should be regarded as representing or should be accepted as representing the residents. In the ruling which he gave, Mr Stewart based himself on the view that QAI not only had no mandate from the residents but should be regarded as having no separate standing on its own behalf as a result of which it could -- 5 of 23 -- 4 insist that it be accorded a role in the inquiry. Notwithstanding this, Mr Stewart ordered that QAI continue to be furnished with a transcript of the proceedings and that it be permitted to make written submissions. Some distinctions, perhaps no more than semantic, may be intruding in this area. In deciding that QAI had no "standing" on its own behalf, Mr Stewart seems to have been saying no more than that the role which it should be permitted to perform was a matter within his discretionary control. However, he perceived an interest QAI had which could be usefully recognised by allowing it some participation although only of a limited kind. Following Mr Stewart's rulings, the matter went to a Judge of the Supreme Court on an application for judicial review. Essentially the findings of the Judge which are now the subject of this appeal are as follows: The residents of the centre are "persons concerned" within the meaning of s.95, but QAI is, for itself, not a person concerned; QAI is nevertheless an appropriate body to "represent" the residents who can be heard through it; the limited participation already accorded by Mr Stewart to QAI should be judged sufficient to satisfy the requirement that the residents be represented, and the order made by Mr Stewart providing for that degree of participation is justifiable under s.95. The first live issue is whether QAI had a right to insist on more extensive representation than it was accorded. A related point is whether any applicable -- 6 of 23 -- 5 discretion exercisable by Mr Stewart miscarried in the order for limited participation which he made. It should be concluded that these questions are to be answered by considering the effect of the provisions of s.95. The conclusion of the Judge at first instance that QAI is not a "person concerned" should be accepted. In Whiting v. The Criminal Justice Commission, Appeal No. 120 of 1992, 8/4/93 unreported, an examination was made of the provisions of the Act as they then stood. After particular attention to the then equivalent of s.95, I made some observations upon the effect which resulted from presence within the category of "person concerned" drawing attention to the fact that the ambit of the category itself might have to be considered in greater detail on another occasion. Other decisions have offered interpretations of somewhat similar phrases in other legislation. The phrase "person aggrieved" had to be considered in Ogle v. Strickland (1987) 71 A.L.R. 41 and in the reasons delivered in that case notice was taken of other phrases such as "person interested" and "person with affected interest". No fixed and readily transposable interpretation will be given to such phrases. The question of interpretation which is involved will depend upon the context in which the phrases are found and on the purpose sought to be achieved by the legislation which contains the phrases. Unless the matter is more precisely governed by legislation, the approach now taken by the courts tends to look for some "special interest" in a person if he is to be -- 7 of 23 -- 6 accorded standing to take part in proceedings brought under public interest statutes. That is, that there should be an interest in and relation to the subject matter in question beyond that of other members of the public. Considered alone the holding of beliefs and opinions on a topic is not enough: see especially Onus v. Alcoa (1981) 149 C.L.R. 27. In the absence of a statute making special provision on the matter, it can be accepted that there has been some shift in the doctrines which the courts apply to determine standing and a greater willingness to find that standing exists. In coming to a decision on the matter of standing, the Court may have to make its assessment of relevant factors. Whether in the present case if more detailed indications in the statute were absent, the character of QAI and its relation to the subject matter of the inquiry would be adjudged as sufficient to confer appropriate standing is an interesting question but it is not necessary to resolve it here. It may be noticed from the objects of QAI (to which attention is given in the reasons of Demack J.) that the very purpose of its existence involves it in advancing the cause of persons with disabilities and in placing those persons more advantageously in their social context. QAI is an entity formed under a legislative structure made available for such a purpose and it is to an extent sustained in its operations by public funding. It projects its role to the public and it could be said that it is accorded a degree of public acceptance and recognition. In -- 8 of 23 -- 7 the shifts towards widening the umbrella of standing which have occurred and been commented on above, it might be thought that in a more general context, if it arose for consideration, QAI would have significant claims to assert standing. For example, the way in which it should be regarded in relation to the subject matter of the present inquiry might be thought comparable to that of the two clergymen in Ogle v. Strickland (supra). But the matter does not presently fall to be judged simply in a general context because s.95 makes a number of detailed provisions to which effect should be given. Before turning to those provisions, it may be observed that the decision whether a particular person is a "person concerned" may involve investigation and assessment just as when a more generalised claim of standing when it arises for consideration. Of course there may also be some discretionary right in a tribunal to permit participation in its proceedings. Mr Stewart, however, did not, under the Act applicable here, have jurisdiction to declare that QAI should, in any conventional sense, represent the residents. A tribunal of this character was not empowered to make such orders. On the assumption that QAI may have been permitted by Mr Stewart to appear, an order made by him enabling it to do so would not have made it a representative of the residents. On the other hand, he could have been determined that QAI in its own right should be accepted as a participant in the proceedings. Section 95 can now be considered. In Whiting (supra) -- 9 of 23 -- 8 in my reasons, the view was expressed that a "person concerned" had the right to appear and participate in person or by legal representative, that is that it should be understood as having that right in that portion of any proceedings in which it was viewed as being "concerned". I see no reason to depart from the conclusion there expressed. While accepting that it will not always necessarily be a simple task to decide whether a particular person is a "person concerned" the category should be taken as conveying some personal and relatively direct involvement in the outcome being investigated. To adopt a phrase used in another context, more than "a mere intellectual or emotional concern" in the subject matter must exist: see per Gibbs CJ in Australian Conservation Foundation v. The Commonwealth (1980) 146 C.L.R. 493 at 530. Pursuing some necessarily loose analogy with civil proceedings in a court of law, the relevant comparison is more with a party than a mere witness. The proposition that a meaning more of this kind should be adopted for the phrase tends to be supported by the considerations that "persons concerned" are given a right of appearance and representation and that the conferral of multiple rights of appearance uncontrolled by the tribunal could hardly be expected, and if availed of could have a capacity to lead to unwieldiness and even loss of control by the tribunal itself. A further consideration which tends to support the notion of some substantial limitation on the width of the category of "person concerned" in s.95(1) is that additional opportunities for -- 10 of 23 -- 9 appearance and participation, although subject to discretionary control, appear to be envisaged by s.95(2) under the reference to "any person authorised by the Commission to appear in any proceedings of the Commission". The very reference to such a supplementary category tends to narrow the meaning which it is appropriate to give to the category of "person concerned" in the earlier subsection: that is that "person concerned" is to be given a particular and less expansive construction in this statute because of the context in which it appears. The conclusion which should be reached then is that it was a matter within the discretion of Mr Stewart to determine the extent of the participation that he would accord QAI in the proceedings and it could not be said that he decided inappropriately or erred in the decision which he made to confirm that it should only receive the transcript and have an opportunity to make written submissions. Accordingly the appeal should be allowed and all of the orders made below set aside. These include the orders declaring that the proceedings before Mr Stewart were not being conducted fairly, declaring that QAI was appropriate to represent the residents and ordering the setting aside of Mr Stewart's order refusing leave to QAI to appear to represent the residents. There will also be set aside the order that the residents are persons concerned in the proceedings. This order dealt with a collateral matter as to which there is no present dispute and which had no practical consequence since the residents are not themselves -- 11 of 23 -- 10 asserting any right to appear. I agree with the suggestion of Demack J. and with the reasons which he gives for it, that there should be no order for costs made either in respect of the proceedings before the Judge below, or on the two appeals including on the order previously made by this Court reserving costs. -- 12 of 23 -- 11 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 90 of 1994 Appeal No. 91 of 1994 Brisbane Before Macrossan C.J. Davies J.A. Demack J. [CJC and Public Trustee of Qld. v. Qld. Advocacy Incorporated] BETWEEN: CRIMINAL JUSTICE COMMISSION Appellant PUBLIC TRUSTEE OF QUEENSLAND Appellant by leave AND: QUEENSLAND ADVOCACY INCORPORATED Respondent REASONS FOR JUDGMENT - DAVIES J.A. Judgment delivered the 8th day of March 1995 These are an appeal and a notice of contention by the Criminal Justice Commission ("CJC") and Queensland Advocacy Incorporated ("QAI") respectively against declarations and orders made in the Trial Division upon review under the Judicial Review Act 1991 of a decision of the Honourable D. G. Stewart made on 23 March 1994. The Public Trustee, on his application, was also made an appellant but in the view which I take his contentions were irrelevant to the issues in this appeal. Mr. Stewart purported to make his decision as a person appointed under s.66 of the Criminal Justice Act 1989 to -- 13 of 23 -- 12 conduct an investigation pursuant to s.29(2)(d)(ii) into alleged or suspected official misconduct by persons holding appointment at the Basil Stafford Centre ("the Centre") concerning the abuse of residents, the gross neglect of residents and the harassment or intimidation of those persons who have complained of, or would be likely to complain of the abuse or gross neglect of residents during a specific period. His appointment purported to extend, pursuant to s.29(2)(e), to rendering advice by making recommendations concerning any statutory provision, policy, practice or procedure relevant to the treatment of residents of the Centre or the reporting of treatment or any related matters. Although it is not entirely clear to me that Mr. Stewart was engaged to conduct the investigation and to report thereon "to enable the Commission" to discharge its functions under s.29, as the appointment says, rather than to discharge those functions himself, no point was made, either below or before this Court, concerning the validity of his appointment. The Act is by no means clear in this respect and, in the absence of argument on this question, I am prepared to assume that the investigation was within the power conferred on Mr. Stewart pursuant to s.66. The Centre is an establishment operated by the Queensland Government, the residents of which are adults and children with severe intellectual disabilities. It is common ground that they are unable to give instructions to legal representatives. -- 14 of 23 -- 13 The decision reviewed was one refusing leave to QAI to appear for those residents (variously called clients, patients and residents) or in its own right upon a hearing conducted in the course of such investigation. QAI is an incorporated association formed with the worthwhile objects of promoting and protecting the needs and rights of disabled people. It receives a government grant. There can be no doubt of the altruistic motives of its members in seeking to represent the residents of the Centre or in seeking representation for QAI in its own right. It was common ground below and before this Court that QAI had standing to seek review of Mr. Stewart's decision. Upon that review the learned Primary Judge made certain declarations, ordered that the decision be set aside and directed the Honourable D. G. Stewart to grant leave to QAI to appear in the hearing to represent the interests of the residents upon such terms and conditions as he sought fit but not inconsistent with the reasons for judgment. The learned Primary Judge decided that QAI was not entitled to appear in its own right. There were two reasons why Mr. Stewart refused leave to QAI to appear for the residents. The first was that he thought that they would not be denied procedural fairness by not being specifically represented and that no rights to which they were entitled would be violated by a refusal to grant leave for such representation. And the second was that, as neither the residents nor anyone on their behalf had given instructions to QAI, it had no mandate or standing -- 15 of 23 -- 14 to appear. He also doubted, but did not decide, whether the residents were persons concerned within the meaning of s.95 of the Criminal Justice Act. That section relevantly provides: "(1) In any proceedings of the Commission a person concerned in the proceedings may appear in person or by counsel or solicitor, or by an agent approved by the Commission. (2) A legal practitioner appointed to assist the Commission in any proceedings, any counsel, solicitor or other agent authorised by the Commission to represent a person concerned in the proceedings of the Commission and any person authorised by the Commission to appear in any proceedings of the Commission may examine and cross-examine any witness on any matter relevant (in the Commission's opinion) to the subject matter of the Commission's proceedings, subject always to the direction of the person conducting the proceedings." The learned Primary Judge decided that the residents were persons concerned in the proceedings and that conclusion was not questioned by the CJC in this Court. No question was raised, either below or before this Court, as to the applicability of s.95 to the proceedings before Mr. Stewart, it being assumed by the parties, by Mr. Stewart and by the learned Primary Judge that it does so apply. Whether it does depends on whether those proceedings are "proceedings of the Commission", within the meaning of that phrase in s.95(1). These include proceedings conducted in discharge of any of the functions of the Official Misconduct Division of the Commission under s.29: s.85(b). But this raises the question, adverted to earlier, whether a person appointed pursuant to s.66 may discharge the functions of the Official Misconduct Division under s.29; and, the -- 16 of 23 -- 15 further question whether, if he may not, it can be said that the proceedings conducted by that person are "conducted in discharge of" the functions of the Division within the meaning of s.85(b). I would be disinclined to conclude that s.95 did not apply to these proceedings without giving the parties the opportunity to argue that question. It is unnecessary to consider it so far as the rights of residents are concerned. Section 9(2) of the Disability Services Act 1992 provides that people with disabilities have rights to: "(a) respect for their human worth and dignity as individuals; and (b) realise their individual capacities for physical, social, emotional and intellectual development; and (c) services that support their attaining a reasonable quality of life in a way that supports their family unit and their full participation in society; ... " The residents, who were people with disabilities, had at least legal legitimate expectations arising from these provisions which, at common law, entitled them to be heard before any of those legitimate expectations were adversely affected: Annetts v. McCann (1990) 170 C.L.R. 596 at 598; Ainsworth v. Criminal Justice Commission (1992) 175 C.L.R. 564 at 575-6. The investigation concerned possible infringement of each of those legitimate expectations and Mr. Stewart had power to make findings with respect to their infringement and recommendations with respect to their protection. For those reasons the residents were persons who were, under the common law, entitled to be heard in the investigation though -- 17 of 23 -- 16 the extent of that right depended on the course of the investigation. Their difficulty, however, was that they had no capacity to instruct legal representatives. Absent that capacity the only way in which any body such as QAI could give those instructions would be by statutory authorisation. Section 26 of the Intellectually Disabled Citizens Act 1985 provides for a legal friend appointed pursuant to the Public Service Management and Employment Act 1988 to have the power, subject to the direction of the Minister, to instruct a solicitor to act for and on behalf of an intellectually disabled adult where the legal friend is satisfied that that person cannot effectively instruct a solicitor. In doing so the legal friend shall endeavour to carry out the wishes of the intellectually disabled person. Sub-section (2) provides that the legal friend shall act in such manner as the legal friend considers the person would wish to act if that person were able to express his or her wishes. No such legal friend had been appointed in respect of any of the adult residents of the Centre at the time of the decision sought to be reviewed. Nor, in any event, would that provision have authorised QAI to be the legal friend or in any other way to give those instructions. Nor is there any other legislative provision pursuant to which QAI may, on behalf of an intellectually disabled person who is unable to give instructions, give those instructions. It is irrelevant whether or not the Public Trustee had power to give those instructions on behalf of any of the residents. -- 18 of 23 -- 17 QAI cannot therefore give such instructions however altruistically it may be acting. It does not have the legal right to do so. Assuming, as I would hold, that QAI has no right to instruct a barrister or solicitor to act for any of the residents, it contends by its notice of contention that it is a person concerned in the proceedings. That contention was rejected both by Mr. Stewart and by the learned judge below. There being no common law right, interest or legitimate expectation of QAI affected by any finding or recommendation of Mr. Stewart, it is necessary to decide whether s.95 applies to this investigation. The provisions of the Act in this respect, as in many others, is by no means clear. However, I conclude that Mr. Stewart was not, by virtue of his appointment, purporting to discharge the functions of the Commission but that his investigation was nevertheless conducted in the discharge of those functions within the meaning of s.85(b). Accordingly s.95 applies to this investigation. In order to determine whether Mr. Stewart's decision in this respect was an improper exercise of power, it is necessary to state in more detail the functions of QAI. I have already stated its objects in summary. More specifically its mission is: "To promote, protect and defend, through advocacy, the fundamental needs and rights and lives of the most vulnerable people with disability in Queensland." And its objects are: -- 19 of 23 -- 18 "1. To affirm and put first people with disability in Queensland. 2. To do systems advocacy that strives to promote, protect and defend the fundamental needs and rights and lives of the most vulnerable people with disability in Queensland. 3. To take an active leadership role in advocating for the fundamental needs and rights and lives of the most vulnerable people with disability in Queensland. 4. To support, promote and protect the development of advocacy initiatives for the most vulnerable people with disability in Queensland. 5. To be accountable to the most vulnerable people with disability in Queensland. 6. To adhere to and constantly reaffirm the following beliefs and principles: . All human life has intrinsic dignity and worth. . People with disability must positively and actively be accorded worth, dignity, meaning and purpose through being included in and with their community. . Social Advocacy is functioning (speaking, acting, writing) with minimum conflict of interest on behalf of the sincerely perceived interests of a person or group, in order to promote, protect and defend the welfare of, and justice for, either individuals or groups, in a fashion which strives to be emphatic and vigorous, and/or which is actually, or very likely to be, 'costly' to the actor, eg in terms of: . time or other resources . emotional stress . bodily demands . social opprobrium, rejection, ridicule . self-esteem, self certainty . socio-economic security, livelihood . physical safety, life and the essential elements of Social Advocacy are: . strict partiality . minimal conflict of interest . emphasis on fundamental needs and issues . vigorous action . cost to the advocate -- 20 of 23 -- 19 . fidelity . being mindful of the most vulnerable person." The learned Primary Judge drew the conclusion from QAI's annual report that it is a vigorous organization involved throughout Queensland in promoting the rights of people with disability, both by way of submissions to government for funding and improved services and by raising consciousness amongst members of the community of the worth of such people. I agree with that conclusion. It follows from what I have said earlier that QAI is not a person concerned in the proceedings or otherwise entitled to be heard in the proceedings by reason of the fact that they may involve the protection or enforcement of any individual rights of residents of the Centre. A more difficult question is whether it is a person concerned in the wider role of the investigator to make recommendations generally concerning statutory provisions, policy, practice or procedure relevant to the treatment of residents of the Centre or the reporting of such treatment or related matters. Mr. Stewart gave no reason for concluding that it was not. Indeed he did not advert to any interest which QAI may have had in the proceedings by reason of his role in making the recommendations referred to. His failure to so advert was, in my view, an improper exercise of power: Judicial Review Act 1991 s.23. The concept of a person concerned in a proceeding contemplated by s.95, like the similar concept of a person -- 21 of 23 -- 20 who has standing to institute or be joined in an action to enforce a public right, has widened in recent years as community values in this respect have changed: Australian Conservation Foundation v. Minister for Resources (1989) 19 A.L.D. 70 at 73. Moreover when the question involved is how a topic should be regulated in the future the concept is likely to be of wider ambit than where it involves the existence or infringement of existing rights. Nevertheless in the determination of this question there is considerable room for differences of opinion and had Mr. Stewart adverted to this question I would have been reluctant to hold that his conclusion was an improper exercise of power. However he did not and the learned Primary Judge and this Court were required to consider it afresh. In my opinion, having regard to the above view of the concept and its application to the facts in this case, QAI is, by reason of its objects and functions, a person concerned in the proceeding to the extent that it may involve recommendations of the kind to which I have referred. But, because its concern is limited to such matters, its right to examine and cross-examine any witness and to make submissions may be limited to that which is relevant to those matters. In view of my reasons, I would therefore have made the following orders in lieu of those made by the Trial Judge: declare that QAI may appear in person or by counsel or solicitor to examine or cross-examine witnesses and to make submissions upon such matters as are relevant to any -- 22 of 23 -- 21 recommendation which the Honourable D. G. Stewart may make concerning any statutory provision, policy, practice or procedure relevant to the treatment of residents of the Centre or the reporting of treatment of such residents or any related matters. Because in my view, QAI remains successful in part I would have made an order as to costs similar to that made by the learned Primary Judge; that is that the CJC pay one half of QAI's costs here and below and that there be no order as to costs in respect of the Public Trustee's appeal. -- 23 of 23 --