Boe v Criminal Justice Commission [1993] QSC 186 (1993)1 QAR 167

::)}''' •, ..:::>C'-(3jl::fh ' .. , . -~ · '11 State Reporting Bureau J (') '. C) u TRANSCRIPT OF PROCEEDINGS (~opyrlgbt 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 CHAMBERS de JERS_EY J No 319 of 1993 ANDREW BOE . - and-. CRIMINAL JUSTICE COMMISSJ;ON . BRISBANE .. DATE 10/06/93 ORDER 1 REVISED COPIES ISSUED ·State Reporting Bureau Date Ill 6 1 <13 Applicant Respondent -- 1 of 13 -- 100693 adt/aea (de Jersey J) HIS HONOUR: The applicant, Mr Boe, is a solicitor. Most of his work is in the criminal jurisdiction. Most of his clients cannot afford to pay for their own legal representation. The Legal Aid Office pays their costs. In his affidavit filed on 22 April, Mr Boe provides a 10 comprehensive and compelling basis for the .conclusion that the Government does not adequately fund the Legal Aid Office on the criminal side or the Office of the Director of Prosecutions. His assertions have not been contradicted. They gain support from affidavits of two other solicitors, 20 () "--- / Mr Richards and Mr Russo. Had there been some persuasive contrary view, that these bodies are adequately funded, 0I would expect the Criminal Justice Commission, the respondent, to have advanced it. 30 One of the statutory responsibilities of the Commission is to monitor and report on the sufficiency of funding for criminal justice agencies. That is specified in section 2.15(c) of the 0 Criminal Justice Act, and I would characterise it as a duty of the Commission (see Padfield (1968) AC at 1010) rather than a mere matter of authority. Those agencies include the Office of the Director of Prosecutions and the criminal side of the operation of the Legal Aid Office. The Criminal Justice Commission was set up in late 1989, and its various divisions commenced work in April 1990. Mr Boe contends that the Commission has never monitored or reported on the sufficiency of funding for criminal justice agencies. Such reports would have to go to the Chairman of the Parliamentary Committee, the speaker of the Legislative Assembly for tabling in Parliament, ORDER 2 40 0 50 60 -- 2 of 13 -- n ·100693 adt/aea (de Jersey J) and the Minister for Justice and Attorney-Geqeral. Mr Boe complained of that to the Criminal Justice Commission in a letter of 12 February 1993. The Chairman of the Commission responded on 1 March, pointing to various subjects relevant to criminal justice which its Research and Coordination Division had been researching. Those did not, however, include the sufficiency of funding for the criminal justice agencies. Mr O'Regan went on: "As you would appreciate, the Commission itself has finite resources. Because of the necessity to work within the confines of a budget, it must accord different priorities in the discharge of its functions and responsibilities, including with respect to the criminal justice issues that it can address at any particular time. It is for this :reason that the Commission's research into ways to improve the administration of criminal justice, including LegalAid funding, about which you were consulted in 1992, has not proceeded further to date." It seems clear to me that the Commission has never monitored (_) the sufficiency of funding for criminal justice agencies. In that letter, and another of 12 March. 1993, Mr O'Regan (- \ u mentioned some consultation with Mr Boe about Legal Aid funding which had occurred in 1992. The evidence shows that that was limited to a seminar in June that year at which funding was mentioned among many other topics. The Commission could not, however, be seen as having "monitored" funding by means of that isolated involvement, nor by its expression of willingness to consider Mr Bee's material from time to time or comments made by interested parties in the public forum. To monitor such funding or the sufficiency of that funding, the Commission must keep it under review, measuring its ORDER 3 10 20 30 40 50 60 -- 3 of 13 -- / 100693 adt/aea (de Jersey J) adequacy from time to time. It should take steps to ascertain the amount being spent by the Government on these agencies; inquire as to the manner in which the agencies apply that money; determine whether the amounts provided are adequate to run the offices properly, to provide efficient service to the public; consider what, if any, necessary services cannot be provided, or provided properly, because of shortage of money, and so on. This is plainly not occurring, and has not occurred throughout the life of the Commission to date. There is also no suggestion that it will happen at least appreciably within the next three years or so. In that letter of 12 March, Mr O'Regan validly makes the point that the Commission is not obliged to discharge all of its functions concurrently, and that to do so would in any case be impracticable; but, having regard to the critical importance of adequate funding to the efficient operation of the criminal justice system, it is somewhat surprising that more than three 10 20 ~ 30 and a half years into the active work of the Commission, it is ~ still not discharging this responsibility of monitoring and reporting on the sufficiency of the funding for these important offices, and especially in the context of widespread expressions of dissatisfaction about funding levels. One gathers from Mr O'Regan's letter of 1 March that he considers the Commission's budget insufficient to allow for the 40 50 discharge of this responsibility, to which the Commission has, therefore, accorded lower priority than other matters. If this is correct - and I have no reason to doubt it - then one would hope that the Government would give this Commission sufficient funds to enable it to discharge this obviously ORDER 4 60 0 -- 4 of 13 -- (j 100693 adt/aea (de Jersey J) important responsibility. Because of his conviction that the Commission was not discharging its responsibility, Mr Boe wrote on 12 February 1993 calling for an inquiry into the issue. The Commission interpreted his request as a request for a public inquiry which it courteously declined. Mr Boe wrote again on 5 March requesting '.'that the Commission properly discharge" its statutory responsibility under section 2.15(c), that is, to monitor and report on the sufficiency of funding for Legal Aid agencies. The Commission did not change its position in its response of 12 March. Mr Boe wrote yet again on 16 April (~! making it clear that he was not necessarily seeking a public inquiry. What he sought was "a hearing pursuant to section 2.17 of the Criminal Justice Act for the purpose of discharging (the Commission's) responsibility under section 2.15(c)". He acknowledged that it was up to the (_j Commission to determine whether the hearing be public or closed. Mr O'Regan's response on 19 April must be read as a refusal to hold the hearing requested, whether in pubiic or closed. Mr Boe has applied under the Judicial Review Act for an order reviewing that decision of the Criminal Justice Commission. In his application, he has characterised the Commission's decision in three ways: as a refusal to conduct a hearing; as a refusal to monitor and report on the sufficiency of funding; and, as a failure to decide to monitor and report on that matter. ORDER 5 10 20 30 40 50 60 -- 5 of 13 -- 100693 adt/aea {de Jersey J) The Commission's decision was to refuse to hold the hearir.g which Mr Boe had reque5ted. I do not think that the Commission should be regarded as having refused to monitor and report on funding. What was said, rather, is that it lacks the funds to do that now, in the context of other priorities. As to the third matter, in a constructive sense the Commission may be regarded as having failed to decide to monitor and report on funding, but it was not directly requested to do that; Mr Boe requested the Commission to have a hearing for the purpose of discharging its responsibility. The relevant decision is therefore the decision refusing a hearing. That does not necessarily involve its having failed in the sense of dereliction of duty, to monitor and report on funding. Its decision goes, rather, to the particular proposal as to the way in which it might do that; but, in the end, I do not think that this perhaps fine distinction matters much to the resolution of the application. Mr Boe may only seek the review of that decision if he is aggrieved by it, in terms of section 20(1) and section 7{1) of the Judicial Review Act. To establish that he is aggrieved in the relevant sense, he relies on his affidavit material, which, as I have said, is uncontradicted. His substantial affidavit shows that the majority of his work is funded by the Legal Aid Office, and that he is not properly remunerated. If the Commission conducted a hearing into the sufficiency of Legal Aid funding, it may well lead to an increase in the funds provided to that office, in which Mr Boe and his clients would share. I should say that I believe that Mr Boe's motivation in all of this is not directed primarily ORDER 6 10 20 0 0 30 0 40 0 50 60 -- 6 of 13 -- 100693 adt/aea (de Jersey J) to increasing his own income; it is directed towards ensuring more effective representation for those many people in our community who face the criminal Courts without financial resources of their own. But that does not mean that Mr Boe is not himself a person aggrieved by this decision. His interest need not be. simply financial or even primarily financial. This decision affects Mr Boe, arguably, much more than others. On the uncontradicted material before me, the deficiency in the proper funding of the prosecution and defence in () Queensland is so marked that I would, on this material, conclude that were there a hearing into the matter, it is highly likely that increases would be recommended which no ( responsible Government could ignore. I am, therefore, quite prepared to conclude that Mr Boe is a perso~ aggrieved by the Commission's refusal to hold this hearing. Mr Irwin, who appeared for the Commission, pointed to the speculative element involved in assessing whether Mr Boe. would likely benefit financially in the end from such an inquiry. But, allowing for that, as I have said, Mr Boe need not prove only a financial interest. His interest in the prospect of (_) improved representation for his clients would suffice. The definition in section 7(1) has a counterpart in Federal legislation, and that has been construed very broadly, importing the general approach of the High Court in Onus v. Alcoa & Conservation Foundation. I refer to Ogle v. Strickland 71 ALR 41 and United States Tobacco Co v. Minister for Consumer Affairs 83 ALR 79. There is now no warrant for reading the qualification narrowly, as also confirmed recently in Coles Myer Ltd v. ORDER 7 10 20 30 40 50 60 -- 7 of 13 -- 100693 adt/aea (de Jersey J) O'Brien (1992) 28 NSWLR 525, and, in my view, Mr Boe has demonstrated sufficiently that he is a person aggrieved within the meaning of the Act. The grounds on which I may review such a decision are set out in section 20 of the Judicial Review Act. Picking up those grounds, Mr Boe asserts first that the Commission did not have jurisdiction to make its decision. But it did have jurisdiction. Although it was obliged under section 2.15(c) to monitor and report on the sufficiency of funding, it was not obliged to hold a hearing for that purpose. Though authorised under section 2.17 to hold a hearing, it was not obliged to hold a hearing. It therefore had jurisdiction or power to decline a hear~ng, though still bound to its obligation to monitor and report. A hearing, in short, was not the only way by which it might discharge that obligation. As to Mr Bee's second and related ground, I repeat that the refusal of the hearing was within the scope of the 10 20 0 30 Commission's powers- it was within its discretion whether or 0 not to follow that course. That also covers his third ground. Mr Boe then asserts that the refusal of the hearing was an improper exercise of the Commission's power. In the first place, he says that it was improper because the Commission took irrelevant matters into account in making the decision 40 50 (see section 23). Those supposedly irrelevant matters are the work which the Commission had done on criminal justice issues through its Research and Coordination Division already, the Commission's discharge of its many other functions and responsibilities, the Commission's research into improving ORDER 8 60 0 -- 8 of 13 -- 0 ·100693 adt/aea (de Jersey J) criminal justice administration, its past consultation with the applicant, the fact that it was monitoring informed comment and its intention to continue to do that, consideration of its own funding, and the absence of any statutory obligation to hold an inquiry. Although those matters are mentioned in the Commission's letters, not all should necessarily be regarded as having materially influenced the decision not to have the hearing requested. Some are, I think, irrelevant, such as the Commission's work in other areas, but that does not necessarily invalidate the decision made. Mr Boe also contends, conversely, that the Commission failed to take 9ertain relevant matters into account, namely, its statutory responsibility under section 2.15(c), the contents of the applicant's material which evidenced the insufficiency of the funding and its adverse effect on the criminal justice system, and the benefit which might potentially be gained from the holding of an inquiry. I have. to consider now whether Mr Boe has made out what I believe to be the only arguable ground, namely, that the making of the decision was an improper exercise of the Commission's discretion whether or not to hold a hearing. In my view, the Commission did wrongly assert two matters. Its claim on 12 March that it had commenced to discharge its responsibility under section 2.15(c) through the seminar process in 1992 misstates the significance of that venture. Nothing relevant to the discharge of the responsibility under section 2.15(c) occurred after that, on the material before me. To suggest that the seminar commenced a process, implying that it thereafter continued, does not properly represent the ORDER 9 10 20 30 40 50 60 -- 9 of 13 -- 100693 adt/aea (de Jersey J) situation. Secondly, the reference on 1 March to the Commission's work on various other criminal justice issues was irrelevant really to the question of its discharge of this responsibility, to monitor and report on funding. I am not sure, however, that one should really regard that as part of the foundation for the refusal to hold a hearing. It was probably more in the nature of background material put forward in an attempt to encourage a more favourable perception in Mr Bee of the work of the Commission. The Commission's responsibility plainly emerges from section 2.15(c). It is, in the end, clear enough that its failure to discharge that responsibility to date has resulted from shortage of furids, and the priorities it has set with respect to the discharge of its several responsibilities, there apparently being insufficient funds to discharge them all properly. That must be gathered from the letter of 1 March 1993. Has the Commission properly been influenced by those priorities in declining this hearing? That it was emerges plainly from Mr O'Regan's letter of 1 March where he mentioned finite resources and differing priorities. The view that the Commission is entitled to give this issue, say, deferred priority, has underlain the refusal to convene a hearing, the request for the hearing being plainly enough directed at ensuring that the Commission discharge its monitoring obligation under section 2.15(c). The Commission has said, in effect, "We will not have a hearing, not because that may not be an efficient way of discharging our obligation to monitor, ORDER 10 10 20 0 0 30 0 40 0 50 60 -- 10 of 13 -- 100693 adt/aea (de Jersey J) but because we are short of funds tc the point where other matters must take priority over that obligation which is therefore deferred." Mr Irwin did not dissent from that characterisation of the approach. was it a permissible approach? 10 In my view it was not. That is because the nature of the obligation under section 2.15(c) necessitates its being discharged on a more or less continual or regular or recurrent basis. One obviously does not monitor a situation of a 20 continuing character like this by doing virtually nothing with respect to it for more than three and a half years and ( ~)\ ~~ offering no great hope of doing anything about it for the best (j part of the ensuing three years. Some of the Commission's responsibilities do not necessitate that continual or regular or recurrent application. Examples are those set out in paragraphs (e), (f) and (h) of section 2.15. But the nature of this particular obligation under paragraph (c) does, to my mind, preclude its being deferred in that way. The Commission has therefore been influenced by an·irrelevant consideration (the view that it might legitimately defer the obligation) or, conversely, has failed to take account of a relevant consideration, being the need for continual or regular or recurrent application to the discharge of this particular obligation. Mr Irwin, who appeared for the Commission, relied in part on section 2.14(3) of the Act which obliges the Commission to prepare a program of priorities for implementation of the Fitzgerald Report recommendations. They include all bar one ORDER 1 1 30 40 50 60 -- 11 of 13 -- 100693 adt/aea (de Jersey J) of the matters specified in section 2.15 and include paragraph (c). But, in any event, the existence of that entitlement could not be used to justify deferring the peiformance of an obligation which of its nature might not be deferred. Mr Irwin also distinguished the reference to monitoring in section 2. 15 (c) and the reference to "continually moni tor•• in section 2.14(1)(a). It may be that the adverb "continually" was included there to modify the following verbs also, or that "continually" increases to an.even higher level the need for recurrent review connoted by the word "monitor". That does not dissuade me from the view that "monitoring" as used in section 2.15(c) necessitates a much more active application on the part of the Commission than could occur with the sort of deferment it has imposed. Mr Boe asks me to order the Commission to conduct a hearing. Because on my approach the Commission has apparently misconstrued the nature of its obligation, I prefer to leave to the Commission the manner by which it sets about now to discharge that obligation. I make these orders .under section 30(1) of the Judicial Review Act: 1. Set aside the Commission's decision refusing to conduct the hearing requested by Mr Boe, as communicated by the Commission's letters dated 1 and 12 March 1993 and 19 April 1993; ORDER 12 10 0 30 40 50 60 '~---. -- 12 of 13 -- 100693 adt/aea (de Jersey J) 2. Declare that the nature of the Commission's responsibility under section 2.15(c) of the Criminal Justice Act is such that the discharge of that responsibility cannot be deferred in the manner in which the Commission has deferred it; 10 3. Refer back to the Commission the question whether a hearing should be conducted, or what other step taken, in order to ensure that the Commission discharges its responsibility under section 2.15(c) to monitor () and report on the sufficiency of funding for criminal 20 justice agencies in this State, namely, the Office of , the Director of Prosecutions and the Legal Aid Office; ) 4. Direct the Commission to inform Mr Boe prior to 10 August 1993 of the steps to be taken to ensure the 30 discharge of that responsibility; ( \ \ \ 5. Liberty to apply. As to costs, Mr Boe seeks an order under section 49, or at 40 I 'j\j least that each party bears its own costs. This is not truly adversarial litigation because of the public interest. Mr Boe has achieved a measure of success before me. I do not see why I should not order the Commission to pay his costs, to be taxed on a party and party basis, and I do so order. 50 ORDER 60 13 -- 13 of 13 --