Brauer v Queensland Corrective Services Commission [1992] QSC 436 [1995] 1 Qd R 120

! :\~<6~~ :'~ . . I .~· I f\ / ' ~I THE SUPREME COURT OF QUEENSLAND No. 934 of 1992. BETWEEN: THILO ANDREAS WOLFGANG KARL HUBERTUS BRAUER Aoolicant QUEENSLAND CORRECTIVE SERVICES COMMISSION First Respondent THE HONOURABLE THE MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS (COMMONWEALTH) Second Respondent JUDGMENT - MOYNIHAN j Delivered the 18th day of December, 1992. CATCHWORDS: COUNSEL: J J Allen for Applicant G J Koppenol for Respondent SOLICITORS: Tony Keyes for Applicant KM O'Shea, Crown Solicitor, for Respondent HEARING DATE: 30 November, 1992 -- 1 of 9 -- IN THE SUPREME COURT OF QUEENSLAND No. 934 of 1992 BETWEEN THILO ANDREAS WOLFGANG KARL HUBERTUS BRAUER Applicant QUEENSLAND CORRECTIVE SERVICES COMMISSION First Respondent THE HONOURABLE THE MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS (COMMONWEALTH) Second Respondent JUDGMENT - MOYNIHAN I Delivered the 18th day of December, 1992 This is an application pursuant to the Judicial Review Act, 1991 to review a decision of the First Respondent made on 9 November, 1992 that the Applicant: (a) not be granted any further leave of absence under Part 2, Division 5·, Subdivision E of the Corrective Services Act 1988 (Queensland) unless under control of a · custodial correctional officer; and (b) He be returned to secure custody by transfer to a prison •. The directions hearing was treated as the final hearing and no point was taken about short service. The proceedings were originally instituted against the First -- 2 of 9 -- ~ I Respondent but in the course of the hearing the Second Respondent applied for and was given leave to be joined and adopted the submissions made by the First Respondent. Although the review was sought on a number of bases, as the case was argued it turned substantially on whether the First Respondent's decision of 9 November, 1992 reflected an error of law as to the consequences of the operation of the Migration Act. 1988 (Commonwealth) insofar as it applied to the Applicant. The Applicant, who was born in Germany, was arrested on 8 January, 1988 and charged with the importation of a dangerous drug. On 23 January, 1989 he pleaded '--/ guilty to the charge and was sentenced to 9 years imprisonment effectively with a 4 year non-parole period, so that he would be eligible for release on 23 January, 1993. It seems to me unnecessary to trace the history of the Applicant's classification by the correctional authorities of the State or of his transfer between institutions for which those authorities are responsible. It is sufficient to remark that so far as his conduct/sentence is concerned, the Applicant could be described as a model prisoner. His difficulties arise on account of his status as an illegal immigrant who the ~ ) ~ Commonwealth authorities propose to deport. In July, 1991 the Applicant was transferred from the First Respondent's Numinbah Corrections Centre to the Gwandalan Community Corrections Centre at Woolloongabba. After his transfer to Gwandalan the Applicant was given leave of absence to perform community work and study at the Australian College of Natural Medicine in Fortitude Valley where he also studied courses provided by the College. The Applicant travelled between Gwandalan Community Corrections Centre and the College each day unescorted. It seems that there were in fact two authorities- one of 29 July, 1991 and one of 10 February, 1992. Each is described as permanent and grants 'I -- 3 of 9 -- ' I approval to the Applicant to be absent from the correctional centre from Monday to Friday between 8 a.m. and 10 p.m. to attend the College for community work. Section 61 of the Act provides that the Commission may, subject to such conditions as it thinks fit, grant leave of absence to a prisoner for any one of a number of purposes which include participation in an approved program or attendance at any place for educational or training purposes. A grant of leave of absence is to be by an instrument and Section 61(6) provides that any period for which a prisoner is lawfully released on leave of absence counts as part of his term of imprisonment or period of '-- ·· detention. By Sub-section 2 the Commission is not to grant leave of absence to a prisoner detained pursuant to a warrant or order issued under the Migration Act of the ~. '-.___.. Commonwealth. A person released on leave of absence and not under the control of a correctional officer, is to be furnished with a copy of the instrument granting leave and to retain a copy in his possession while on leave and produce it to a police officer or officer of the Commission when required. By Section 61(2) the Commission is not to grant leave of absence detained pursuant to a warrant or order issued under the '-__./ Migration Act of the Commonwealth. Shortly after his transfer to the Gwandalan Community Correctional Centre in July 1991 the Applicant was interviewed by an officer of the Department of Immigration, Local Government and Ethnic Affairs (Commonwealth) who informed him that he was under arrest under the Migration Act (Commonwealth) and that he would be deported when he was released but that the order would not be made under shortly before his release on parole which was due in January, 1993. On 17 July, 1992 the Applicant was served with a deportation order and arrested or re-arrested by an officer of the Commonwealth Department. He was, according to a document he acknowledged receiving, informed that "if necessary" he would be held -- 4 of 9 -- in the custody of the Commonwealth Department "under Section 93" of the Migration Act. It would seem that at that time, subject to the issues which arise here, the leave of absence of 10 February, 1992 continued to be effective to authorise the Applicant's attendance at the College. By letter of 21 July, 1992 the Applicant wrote to the Minister for justice of the Commonwealth complaining to the effect that as a consequence of the service of the deportation order the First Respondent had stopped his attendance at the College. The Minister replied to this and an earlier letter declining to grant the Applicant a licence ~. "-----' for early release. The letter went on that the Applicant's eligibility to continue with his formal studies and work at the College pending his deportation was a matter for the ~~ "--/ immigration authorities. By letter of 22 September, 1992 the First Respondent advised the Applicant that the restrictions placed on his leave of absence, apparently as a consequence of the service of the deportation order were revoked and the position with respect to the grant of the leave of absence prior to 11 August be restored. On 17 November, 1992 the First ~. "-.. · Respondent advised the Applica~t of the decision which he seeks to have reviewed; that I I "--/ he not be granted any further leave of absence unless under the control of a custodial correctional officer and that he be returned to secure custody by transfer to a prison. The reasons given were that should he remain at the Gwandalan Centre or be granted leave of absence from it, he was required to be under "restraint" i.e. under the control of a custodial correctional officer on the one hand and that 24 hour a day detention at the centre would be too restrictive on the other. The decision was expressed to be founded on advice from the Department of Immigration (Commonwealth) including a judgment by B hett J of the Federal Court handed down on 14 October, 1992 in a matter of Gre -v Minister for Immi ration Local Government and Ethnic Affairs -- 5 of 9 -- (QG115 of 1992)(Melbourne 14 October 1992). It will be necessary to give some consideration to that decision in due course. The Corrective Services Act (Queensland) provides, by the combined effect of Sections 10 and 12, for any premises or place to be declared a Community Corrections Centre. The Commission constituted by the Act is responsible for the security and management of community corrections centres and for the safe custody and welfare of prisoners, Section 13. Section 33(1) of the Act deems that upon a person being admitted to a prison the person is in the custody of the Commission notwithstanding the provision ~ ~ of any warrant or other authority committing him to the custody of another person. By Section 33(2) of the Act a person deemed to be in the custody of the Commission ~ '-.____./ remains in that custody: "Until discharged (except for any period for which he is by law thereafter in the custody of another person) notwithstanding that he is at any time not being detained in a prison by reason of being transferred, attending legal proceedings or serving a period of home detention or for any other reason authorised by this Act." By Section 69 of the Act prisoners may be transferred from one institution to another and an institution is defined to include a community corrections centre or a place prescribed by rules. The Crimes Legislation Amendment (No. 2) Act of 1990 (Commonwealth) authorises the detention of a Federal offender such as the Applicant in a Federal Institution. Thus S. 19 provides that a Federal offender ordered by a court to be detained in a State prison, may be detained at any prison in the State and removed from one prison to another as if detained as a State offender. There is then provision for release on parole of a person imprison under a Federal sentence as here together with -- 6 of 9 -- power for such a person to be granted release on licence. Section 19 AZD(1) of the Act provides that a law of State providing for a State offender to be granted leave of absence applies to a Federal offender as if he were a State offender serving an equivalent State sentence. As I have said the Applicant's difficulties arise because he is an illegal immigrant the subject of a deportation order. Section 11 of the Migration Act 1958 (Coinmonwealth) provides that for the purposes of that Act a person: "shall not be taken to be in custody under this Act or in the custody of an officer, unless the person is: (a) being held; (i) in a detention centre established under this Act; (ii) in a prison or remand centre of the Commonwealth of a State or Territory; (iii) in a police station or watchhouse; (iv) in another place approved by the Minister in writing; or (b) in the company of, and restrained by; (i) an officer; or (ii) other person directed by the Secretary to a company and restrain that person." Section 93 of the Migration Act provides that where an order for the deportation of a person is in force, the person to whom it applies may be arrested without warrant and kept in custody as a deportee in accordance with Sub-section 8. Sub-section 8 provides to the effect that a deportee may be kept in such custody as the Minister or Secretary directs pending deportation until placed on board a vessel for deportation or at a port or on board the vessel. -- 7 of 9 -- 1 ' • Section 94 of the Act provides as follows: "(1) This section applies where a deportation order is made in respect of a person who is, otherwise than other this Act, in the custody of an authority of the Commonwealth of a State or of a territory, (2) The Secretary may give the person written notice: (a) stating that the deportation has been made; (b) setting out particulars of the deportation order; (c) stating that, from the time when the person would otherwise be entitled to be released from the custody referred to in Sub-section 1 (in this section called the custody transfer time), the person shall be kept in custody under this Act. (3) Where a person is given notice under Sub-section (2) this Act (other than Sections 93(1) and (3) applies in relation to the person as if he or she had been arrested under Section 93(1) at the custody transfer time." It will be recalled that when he was served with a deportation order on 17 July the Applicant was given a document stating "if necessary" he would be held in the custody of the Department under S. 93 of the Migration Act. The issue is whether the Applicant was in the custody of the First Respondent when he was on leave of absence his unaccompanied attendances to, work at and return from the College at Fortitude Valley. The relevant consideration is the meaning of custody as it is used in the Migration Act; as Burchett J pointed out in Grey (ante) - the case referred to by the First Respondent as forming part of its reasons for revoking the Applicant's leave of absence arrangements. In Grey Burchett J construed release on parole pursuant to the terms of the Queensland legislation as not being custody in terms of the Migration Act. He pointed -- 8 of 9 -- out that as an ordinary English word "custody" referred to imprisonment and not to release on term such as parole involved. He cited a number of cases establishing the distinction between custody and parole or conditional liberty upoh recognisance in the context of rights of appeal in relation to orders allowing or regulating release on parole or upon recognisance; Griffith -v- The Queen (1977) 137 C.L.R. 239, The Queen -v- Carngham (1978) 140 C.L.R. 487, R V Chi Sun Tsui (1985) 1 N.S.W.L.R. 308. I respectfully agree with pis conclusions. The Migration Act contains no extended definition of the meaning of custody and does not seem to me apposite to pick up and incorporate any extended definition provided by other legislation such as the Corrective Services Act. I respectfully agree with Burchett J's construction of custody as it is used in the Migration Act. Thus understood the Applicant was not in the custody of when he was on leave of absence for the purpose of attending the Australian College of Natural Medicine. There is a complication in this case in addition to that which confronted Burchett J in Grey in that it seems likely that while he was combined to the Gwandalan Community Correctional Centre the Applicant was in custody. Nevertheless it seems to me that the combined effect of Sections 93 and 94 of the Migration Act and the notification of 17 July is that when the Applicant would otherwise be entitled to be released from that custody the Migration Act authorises that he be kept in custody under that Act. The Commission's decision of 9 November, therefore, did not reflect an erroneous view of the operation of the Migration Act or of the application of the decision in Grey. As I understand the basis on which the matter was argued, that is sufficient to determine the outcome of the proceedings which is that the application for a statutory order of review is refused. -- 9 of 9 --