Alternative Law Journal
CHRIS BUTLER and PAULETTE DUPUY[*]
In 2006 the Queensland government enacted a new Corrective Services Act 2006 (Qld) (‘CSA’). Heralded as a legislative solution for the perceived urgent need to ‘get tough’ on prisoners, the CSA makes a number of important changes to the capacity of prisoners to gain information about administrative decisions which affect them and to engage in judicial review of those decisions. These changes will have a drastic impact on prisoners who are affected by flawed and improper decision-making. In this article we will discuss this impact and analyse the rationale behind the government’s denial of prisoners’ access to judicial review and failure to provide adequate alternative methods of accountability. We will demonstrate that this rationale is misplaced and can be best explained as a concerted attempt to gain supremacy in the narrow and counter-productive politics of ‘law and order’. The privative clause provisions of the CSA are a significant attack on the principles of administrative justice introduced since the reforms of the post-Fitzgerald era. We argue that all those interested in defending our system of administrative justice should exert continuing pressure on the Queensland government to repeal these provisions.
The most contentious provisions of the CSA are ss 17, 66(6) and 68(6) which remove the application of Parts 3, 4 and 5 of the Judicial Review Act 1991 (Qld) (‘JRA’) to decisions about security classifications, and the transferral of a prisoner to a work camp or to another facility. These sections effectively deny prisoners the right to make applications for statutory orders of review under Part 3 of the JRA, and also remove the ability of prisoners to gain access to statements of reasons for decisions affecting them, which are provided for under Part 4 of that Act. Section 71 of the CSA provides prisoners with the opportunity to apply to the chief executive for a reconsideration of decisions made under ss 66 and 68 and a similar form of internal review is provided under s 16 for decisions about security classifications. However, in all these cases, the operation of Parts 3 and 4 of the JRA are explicitly excluded from applying to these internal merits review decisions. These provisions of the CSA also state the intention to oust the jurisdiction of the Supreme Court to issue common law remedies under Part 5 of the JRA.
A prisoner’s everyday existence differs markedly from that of the free citizen. Through the deprivation of liberty and imposition of a high degree of behavioural regulation, prison imposes an extremely controlled, restrictive and punitive environment on individual prisoners. A prisoner is the captive object of a regulatory apparatus that subjects them to the micro-governance of every aspect of their daily life. This apparatus invests prison officers, prison managers and other prison staff with wide discretionary powers which may have significant affects on a prisoner’s autonomy, access to resources, healthcare and rehabilitation services. A prisoner’s security classification and transfer status affect the manner in which they are daily managed and housed, their diet, their access to healthcare, resources and programs, their access to family members through visits, and the ability and resources to parent young children.
Because prisoners live in this environment of micro-control, they are especially vulnerable, and require a set of rights that can act as a counterbalance to the potential misuse of administrative power. However, it is important to note that, even before the introduction of the new CSA, the courts had generally been reluctant to interfere with prison ‘management decisions’. Transfer and security classification decisions have often been placed in this category, leaving prisoners unable to successfully use judicial review to challenge decisions of this type in the absence of bad faith. Nevertheless, the formal removal of judicial review by the provisions of the CSA noted above exacerbates this difficulty and leaves prisoners with wholly inadequate alternative review mechanisms for decisions about transfers and security classifications.
A right of access to external review is a crucial mechanism through which prisoners can assert their case against unfair or illegal classifications or transfer decisions that have caused them to suffer significant disadvantage or detriment. The CSA attempts to ensure that challenges to decisions about these issues may now only be made to the chief executive or referred to the Official Visitor or the Office of the Queensland Ombudsman. While the Official Visitor and the Queensland Ombudsman can review the merits of Department of Corrective Services (‘Department’) decisions, their decisions and recommendations are not binding on the chief executive. Challenges to these aspects of prison management will be finally determined by the Department itself. The Minister for Police and Corrective Services, Judy Spence, stated in her second reading speech:
I will continue to support prisoners’ unfettered access to complaint mechanisms such as official visitors and the Ombudsman’s Office but this legislation makes it clear that prisoners will no longer have a right to request that these management decisions be judicially reviewed.
Some of the concerns with removing judicial review from these decisions were raised by the Scrutiny of Legislation Committee, before the Corrective Services Bill 2006 (Qld) went to Parliament. One of this Committee’s tasks is to assess the compliance of proposed legislation with fundamental legislative principles as detailed in the Legislative Standards Act 1992 (Qld). These foundational principles are described in the Act as underlying ‘a parliamentary democracy based on the rule of law’, and are intended to ensure that Queensland legislation is drafted in accordance with these principles. These legislative principles require Queensland laws to have sufficient regard to the rights and liberties of the individual. In so doing, legislation must, for example, ensure that rights and liberties or obligations dependent on administrative power are sufficiently defined and subject to appropriate review. Legislation should also be consistent with principles of natural justice and not adversely affect the rights and liberties of individuals.
The Scrutiny of Legislation Committee listed a number of clauses in the Corrective Services Bill 2006 (Qld) that provided no avenue for review or a non-binding review process, which it considered may be inconsistent with fundamental legislative principles. The Committee noted that ‘in virtually no cases is there a binding, external merits-based review process’. The Committee made specific reference to the express intention set out in cll 17(1), 66(6), 68(6) and 71(4) to abolish judicial review in relation to decisions concerning prisoner classification and transfer, noting the contrast with the previous Corrective Services Bill introduced in 2000. The Committee specifically drew Parliament’s attention to the likelihood that the Bill might breach s 4(3)(a) and (b) of the Legislative Standards Act 1992 (Qld), raising
the question of whether the absence, or limited nature of, avenues of review provided in relation to a range of significant administrative decisions affecting prisoners, and the general absence of express obligations to accord natural justice, are reasonable in the circumstances.
In addition, the Committee made a critical assessment of the role of the Official Visitor as set out in the Corrective Services Bill 2006 (Qld). The function of Official Visitors is to investigate complaints made by prisoners. However, as the Committee noted, ‘the chief executive is not bound to accept that recommendation’. The Committee expressed surprise that even though the intention of the Official Visitor system is to operate as an accountability mechanism, the appointment of Visitors is at the discretion of the chief executive who has wide powers to terminate their appointment. In fact, the Committee suggested that Official Visitors should be appointed for a statutory minimum term and that their appointment should be mandatory in the case of prisons. Despite these warnings, the Official Visitor system set out in the Act is entirely subservient to the chief executive and thus poorly equipped to provide aggrieved prisoners with even the semblance of an independent forum for review. The remaining avenue of external review rests with the Office of the Queensland Ombudsman. Whilst the Ombudsman does boast wide powers of review, the absence of binding powers undermines the Office’s capacity to provide decisive relief in the case of prisoners who have suffered injustice as a result of an improper classification or transfer decision.
It is interesting to note that the removal of the right to judicially review a decision concerning prisoner transfers in the CSA follows a previous unsuccessful attempt in 2000. The Scrutiny of Legislation Committee made a referral to the Parliament in respect of cl 53(7) of the Corrective Services Bill 2000 (Qld), regarding review provisions for decisions about prisoner transfers. At that time, it was noted by the Committee that cl 53(7) sought to deny any right of review or appeal beyond that carried out by the chief executive. Clause 53(7) was not enacted and it is not clear that any specific developments in prisoner transfers have occurred since 2000 to justify removing judicial review of these decisions by the CSA.
The effect of removing judicial review for prisoners should not be assessed solely by reference to the numbers of prisoners who have applied to the court or other review bodies for relief. There is a broader public benefit in ensuring that decision-makers conduct the business of government administration in a transparent and accountable manner. The availability of judicial review as a form of redress exerts a quietly moderating influence on the powers of prison managers, who may otherwise lapse into a pattern of decision-making that fails to give proper regard to the interests of the individual prisoner in favour of managerial convenience. Thus it is to the deeper motivations of the government in enacting these privative clause provisions that we now turn.
In 1995, Brendan Abbott, a prisoner of the Sir David Longland Correctional Centre in Brisbane, brought an application for judicial review of a number of special treatment orders made against him in the case of Re Abbott & Ors. The court found that these orders should be set aside and a declaration was made to the effect that the orders were unlawful. Accordingly, the Minister’s delegate was required to consider the decision afresh. In March 2006, a press release issued by the Minister offered the following as an explanation of the urgent need for the curtailment of judicial review in the Corrective Services Act 2000 (Qld):
(J)udicial review will be abolished, meaning prisoners will no longer be able to challenge prison management decisions about their security and placement. …This follows a report into the Sir David Longland breakout by Brendan Abbott and four other prisoners in 1997, which found that allowing prisoners to challenge decisions gave them inappropriate participation in decision making and was not conducive to the safe and secure management of correctional centres …
The link drawn by the Minister between Abbott’s right of access to judicial review in 1995 and his escape in 1997 appears tenuous and based on an obtuse reading of the effect of the orders made in Re Abbott & Ors. In her press release, the Minister suggested that the findings made in the case permitted Abbott to participate in the decision-making of the prison in an inappropriate manner. This, in turn, prejudiced the safe and secure management of the prison to the extent that it had some bearing on Abbott’s escape, some two years later. Even if this complex web of causation is correct in Abbott’s case, using it as an example to justify the privative clause provisions in the new CSA appears quite illogical as these provisions do not apply to the equivalent of the ‘special treatment orders’ challenged by Abbott in that case. It is arguable that at the heart of the Minister’s justification for introducing these provisions is the managerial desire to eliminate challenges to departmental decisions by all prisoners affected by classification or transfer decisions.
The Explanatory Notes which accompanied the Corrective Services Bill 2006 (Qld) provide even greater insights into the government’s rationale for the abolition of judicial review in this context:
while the focus of incarceration has moved substantially towards rehabilitation, it rightly retains a punitive and deterrent element. On that basis, it is inevitable that a prison environment will afford prisoners fewer facilities and personal freedoms than those enjoyed by the general public.
Whilst emphasising prison’s role as punishment, this statement also reveals that the withdrawal of prisoners’ access to judicial review is accepted by the Department as a legitimate feature of the prison’s punishment regime. This conflation of punishment with the denial of fundamental rights to access the courts reveals much about the inherent conflict between the agenda of prison managers to control and to punish, and the rights of the prisoner as an unfree, individual citizen. It has already been noted that this conflict has been habitually resolved by the courts in favour of prison management. However, the removal of access to statutory judicial review entirely raises the substantial dangers of relying upon internal merits review as a reasonable and workable alternative in this area of administrative decision-making.
Nevertheless, the rationale for the exemption from the JRA of classification and transfer decisions is stated clearly in the following terms:
decisions relating to the supervision, security and placement of prisoners are fundamental to the operation of a safe and secure correctional environment and prisoners should not be able to challenge or influence security requirements. … Any possible breaches (of fundamental legislative principles) must be balanced against the safety of the community and staff and the security and good order of the corrective services facilities.
The courts have recognised for some time that certain prison management decisions are so integral to the nature of imprisonment that the correctional system would become unworkable if these decisions were made reviewable. In the case of powers relating to the accommodation and supervision of prisoners, the purpose of such powers is to give proper effect to the original decision of the court to restrict an offender’s liberty by imprisonment.
Judicial review provides a crucial means of questioning the absolute authority of departmental officers. However threatening it may appear to the Minister and departmental administrators, the 1997 example of the Abbott escape is a thin justification for the complete abolition of this form of review for all prisoners wishing to challenge classification or transfer decisions. Nine years after that escape, the CSA’s privative clause provisions are a belated and impotent response to that event.
As we have seen, the removal of access to judicial review and a right to reasons in relation to decisions about security classifications and transfers is clearly based on a presumption that these accountability mechanisms inherently compromise the security and effective management of prisons. The Minister's second reading speech, and the Explanatory Notes to the Bill both articulate the view that ‘prisoners should not be able to challenge or influence security requirements’ via judicial review. This argument demonstrates a poor appreciation of the remedies available to the court when determining an application for an order of review. In particular, the court does not have the power to substitute decisions under review. As a matter of course, most orders in favour of an applicant merely remit the matter to the delegate for reconsideration in accordance with the law.
Our analysis of Supreme Court proceedings for 20 applications brought by prisoners between Re Abbott & Ors in 1995 and the enactment of the CSA, in relation to decisions affecting their transfer or classification (including special treatment orders and maximum security orders), shows that in only eight of these proceedings were orders made favouring the applicant.
Table 1 Classification Decisions (Including Special Treatment Orders and Maximum Security Orders)
Table 2 Transfer Decisions
These cases demonstrate the general reluctance of the court to intervene in cases concerning transfer or classification decisions. Given that this small number of cases also includes a number of applications to review special treatment and maximum security orders (which remain judicially reviewable under the CSA), it is even more difficult to accept the Minister’s argument that access to judicial review in respect of prisoner classification and transfer decisions represents an inappropriate interference with the safe and secure operation of prisons. Portraying the power of the court to determine that a decision was unlawfully made as a threat to the security of the prison system is a misrepresentation that undermines the capacity of the court to uphold integrity and rigour in government decision-making.
Perhaps even more alarmingly, the CSA’s exclusion of Part 4 of the JRA is premised on the assumption that prisoners who seek or obtain a statement of reasons from the Department in respect of a decision to classify or transfer them, pose a threat to the security of the community. The required content of a reasons statement, set out in s 3 of the JRA, includes factual findings, evidence on which such findings were based and the actual reasoning process behind the decision. Such statements provide a crucial avenue of accountability by forcing decision-makers to justify their decisions to those affected by them. Indirectly, the provision of statements of reasons also contributes to the quality and consistency of decision-making, by encouraging departmental officers to develop well-argued explanations for their decisions.
It can be safely assumed that, in terms of potential threats to community safety, the Department is particularly concerned with the release of security information. However, the risk of exposure in such cases is minimal, as the furnishing of a statement of reasons is not an indiscriminate exercise. To suggest otherwise is to admit that the Department is incapable of intelligently presenting relevant information to a prisoner in a sensible and risk-averse manner. For example, the Department need not reveal the details of certain security practices, where to do so would provide a prisoner with information that could facilitate an escape. Similarly, an agency’s response to a request for information by an applicant for judicial review need not divulge sensitive details of intelligence information where the provision of such information could prejudice the security of the institution or informants.
In the case of Onea v Chief Executive, Department of Corrective Services, Mullins J observed:
It is recognised that when a decision maker is relying on privileged or confidential information, it may not be appropriate for full details of that information to be disclosed to the person affected by the decision, but in order to afford procedural fairness, the person likely to be affected by the decision must be given sufficient notice of that information, to enable that person to respond, before the decision is made …
The Department should be capable of exercising judgment to determine the level of relevant information to be provided to a prisoner, in a manner that is both reasonable and does not endanger the security of the prison. Any risk to the safety and security of the community posed by a request for a statement of reasons can be adequately and reasonably addressed by the Department without resorting to such extreme measures as the outright abolition of the right to reasons for decisions.
On the surface, the introduction of these privative clause provisions and the removal of a right to reasons by the CSA can be explained simply as the action of a government intent on reducing transparency and leaving itself less accountable to those with legitimate grievances against its decisions. It certainly attempts to wind back whatever vestiges of transparency and accountability still remain from the Kennedy reforms of the Queensland prison system. Prior to the new CSA, the right to an explanation of the reasons for a decision provided the Department with an opportunity to justify and perhaps correct errors in decision-making. Likewise, the prospect of potential judicial review remedies encouraged the Department to behave as if it might be reviewed for any decision. All those with knowledge of the principles of administrative law know how healthy these mechanisms of accountability are for the development of a culture of good administration. The more secret, opaque and immune from challenge that decision-making becomes, the easier it is for decision-makers to misuse or abuse their powers.
However, the rationale for the government’s introduction of these privative clauses reveals a deeper agenda, one that is linked to its unsavoury participation in the political cesspit of law and order politics. Just as State and Territory political parties all over the country have engaged in competitions to be the toughest on crime, so too prison policy has become an easy means of showing political firmness and, if necessary, ruthlessness. The provisions of the CSA that we have analysed here hack away at the already narrow platform of prisoners’ rights, converting it into a gangplank walk — back into an era of civil death. These developments are intrinsically linked to the rise of forms of authoritarian populism which have driven the implementation of privative clauses in other jurisdictions (such as migration decision-making at the federal level), and it is difficult to divorce them from the global ascent of neo-liberalism as the dominant ideology in public sector management.
The privative clause provisions of the CSA represent a huge and unjustified attack on the legal system’s principles of administrative justice, are based on flawed assumptions and pander to vaguely articulated community fears. They also clearly breach a number of fundamental legislative principles, with the aim of reducing the ability of prisoners to both understand the reasons for decisions affecting them and their capacity to seek effective external review of such decisions. The truly radical nature of these changes can be demonstrated by the fact that, during the post-Fitzgerald reform era, the Electoral and Administrative Review Commission Report on Judicial Review of Administrative Decisions and Actions did not contemplate or even receive submissions regarding the exclusion of administrative decisions made with respect to prisons or prisoners.
Nevertheless, those working in the area of prisoners’ advocacy may take heart from one issue that has not yet been clarified since the introduction of the CSA. It is debatable whether the Act, given the way it is drafted, will be successful in completely removing the Supreme Court’s general jurisdiction to grant equitable remedies such as injunctions or declarations in relation to decisions about security classifications and transfers. The privative clause provisions in ss 17, 66, 68 and 71 all remove the operative parts of the JRA by including a variant of the following passage: ‘the Judicial Review Act 1991, parts 3, 4 and 5, other than section 41(1), do not apply to a decision made, or purportedly made under’ the relevant section. In addition, each of these sections specifies that the meaning of ‘decision’ in the relevant section ‘includes a decision affected by jurisdictional error’.
The key element in the wording of these sections is the retention of the operation of s 41(1) of the JRA, which states that ‘the prerogative writs of mandamus, prohibition and certiorari are no longer to be issued by the Court’. Bill Lane persuasively argues that this section does not actually abolish the writs, so that if at some future point the CSA was repealed, they would be revived. By retaining s 41(1), the drafters have attempted to prevent potential applicants from invoking the Supreme Court’s latent, general jurisdiction to issue prerogative writs now that statutory or prerogative orders of review can no longer be granted. However, this drafting technique does not appear to have ousted the Court’s inherent jurisdiction to issue traditional equitable remedies in the form of injunctions or declarations. Judicial comments in several recent Supreme Court cases lend support to the argument that despite the existence of a privative clause, the general jurisdiction of the Court to issue such remedies will be enlivened where a ‘decision’ about a classification or transfer has been affected by a jurisdictional error.
This interpretation of the privative clause provisions of the CSA has yet to be judicially tested. Even if at some future time a court determines that these avenues of review through the general law have also been removed for prisoners wishing to challenge decisions about transfers and classification, there are still strong grounds for keeping up the pressure on the Queensland government to restore prisoners’ rights to judicial review of these decisions. The court as an independent, external authority is appropriately placed to draft orders required to address any injustice done to a prisoner without compromising the security of the prison. A court hearing an application from a prisoner for a review of a classification or transfer decision must balance the good order and security of the prison against the rights of the individual. The government has clearly stated its view that the courts’ power to review decisions concerning classification or transfer is in itself an unacceptable risk to the safety of the community and the security of prisons. We firmly disagree with this view and encourage all those interested in defending our system of administrative justice to work towards the repeal of these provisions. They are a defective and hysterical response to a non-existent problem, and should not be permitted to continue compromising access to the law for some of the most vulnerable and disadvantaged citizens in Queensland.
[*] CHRIS BUTLER is a lecturer in the Law School at Griffith University.
PAULETTE DUPUY is the Vice President of Sisters Inside Inc.
The authors would like to thank an anonymous referee for helpful comments on an earlier version of this article.
© Chris Butler and Paulette Dupuy
 The CSA was assented to on 1 June 2006.
 Queensland, Parliamentary Debates, Legislative Assembly, 29 March 2006, 940 (Judy Spence).
 CSA s 17.
 CSA s 66(6).
 CSA s 68(6).
 JRA s 32.
 Richard Edney, ‘Judicial Deference to the Expertise of Correctional Administrators: The Implications for Prisoners’ Rights’  AUJlHRights 5; (2001) 7(1) Australian Journal of Human Rights 91; Matthew Groves, ‘Administrative Segregation of Prisoners: Powers, Principles of Review and Remedies’  MelbULawRw 1; (1996) 20 Melbourne University Law Review 639, 687.
 Re Walker  2 Qd R 345, 349-350; Bartz v Chief Executive  QSC 392;  2 Qd R 114, 118; Middleton v Department of Corrective Services  QSC 356 (Unreported, Philippides J, 16 October 2002); Corrigan v Chief Executive  QSC 384 (Unreported, de Jersey CJ, 22 November 2002).
 Unless otherwise indicated, the classification decisions referred to in this article only relate to decisions made under ss 12, 13, 14, 66 and 68 of the CSA. Decisions about safety orders (s 53) or maximum security orders (s 60) are not affected by the privative clause provisions of the CSA.
 CSA s 290(6) and Ombudsman Act 2001 (Qld) ss 50–52.
 See above n 2.
 Legislative Standards Act 1992 (Qld) s 4.
 Scrutiny of Legislation Committee, Alert Digest, Issue No 4 of 2006 (Tabled 19 April 2006) 12.
 Ibid 11–12.
 Ibid 8. See CSA s 290(6).
 CSA ss 285, 288.
 Scrutiny of Legislation Committee, Alert Digest, Issue No 4 of 2006 (Tabled 19 April 2006) 9.
 Ombudsman Act 2001 (Qld) ss 50-52.
 Scrutiny of Legislation Committee, Alert Digest, Issue No 10 of 2000 (Tabled 22 August 2000) 10.
 Tables 1 and 2 in this article highlight the small number of judicial review applications concerning the various types of classification and transfer decisions that came before the courts between 1995 and the introduction of the new CSA.
  QSC 233 (Unreported, de Jersey J, 21 July 1995).
 Minister for Corrective Services, Judy Spence, ‘New Corrective Services Bill Introduced to Parliament’ (Press Release, 28 March 2006).
 Such orders are equivalent to ‘safety orders’ provided for under s 53 of the CSA.
 Explanatory Notes, Corrective Services Bill 2006 (Qld) 20
 See Edney, above n 9; Groves, above n 8. See also the cases referred to in n 10.
 CSA ss 17, 71.
 Explanatory Notes, Corrective Services Bill 2006 (Qld) 32.
 Ibid 33
 In most of these cases, orders were made to set aside the original decision and to remit the matter to the delegate for further consideration.
 Partly based on information provided in LCARC, ‘The Accessibility of Administrative Justice’, Discussion Paper (December 2005), Appendix B. Cases marked * do not appear in Appendix B.
 The use of the term ‘community’ here includes the prison community.
 See Kidd v Chief Executive, Department of Corrective Services  QSC 405;  2 Qd R 393, 402 and the discussion that considers the cases of Minister for Immigration and Ethnic Affairs v Kurtovic  FCA 22; (1990) 21 FCR 193 and Kioa v West  HCA 81; (1985) 159 CLR 550: at 401.
  QSC 420; (2002) 136 A Crim R 488.
 Ibid 493.
 David Brown, ‘Prisoners as Citizens’ in David Brown and Meredith Wilkie (eds), Prisoners as Citizens: Human Rights in Australian Prisons (2002) 308; John Pratt et al (eds), The New Punitiveness: Trends, Theories, Perspectives (2005); David Brown, ‘The Politics of Law and Order’ (2002) 40(9) Law Society Journal 64; and David Brown and Russell Hogg, ‘The Uncivil Politics of Law and Order’ (1998) 33 Arena 43.
 Karen Fletcher, ‘Globalisation and Criminal Injustice’ (2002) 28(1) Hecate 132.
 EARC, 1990.
 Sections 17(2), 66(7), 68(7) and 71(5).
 Law Book Company, Queensland Administrative Law, vol (at 1–1352) [1.2720].
 For a variant of this argument see Mark Plunkett, ‘The Corrective Services Bill 2006 and Judicial Review of Corrective Services Decisions’ (Paper presented at the Crime of Punishment Forum on the Corrective Services Bill 2006, Brisbane, 15 May 2006) 9–10 <http://www.sistersinside.com.au/media/PaperMarkPlunkett.pdf> at 13 May 2007.
 See AMACSU v Ergon Energy Corporation Ltd & Ors  QCA 351 (Unreported, Jerrard and Keane JJA, Cullinane J, 23 September 2005  (per Jerrard JA) and – (Keane JA); and Carey v President of the Industrial Court of Queensland  QCA 62;  2 Qd R 359, 365–66 (McPherson JA). For an exercise of the court’s jurisdiction to grant declarations in relation to special treatment orders see Farr & Ors v Queensland Corrective Services Commission  QSC 86 (Unreported, Moynihan J, 21 April 1999).