Reflections on Wotton v Queensland

Earlier today I posted a summary of the High Court’s decision in Wotton v Queensland in which the High Court upheld provisions of the Queensland Corrective Services Act that made it an offence to obtain an interview from a prisoner without the written approval of the chief executive officer of the Department of Corrective Services, and authorised the imposition of conditions upon a parolee, which conditions in the case of Mr Wotton also restricted his ability to speak to the media about matters which, it was accepted, related to political and governmental affairs.

Co-incidentally, today a journalist was charged with contravening a similar provision in the NT following an interview with Bradley Murdoch (convicted of murdering Peter Falconio) conducted without the necessary approval.

Through the course of the day following further reflection and discussions with various people about the case, and reports of the case in the media, it is apparent there are a number of unfortunate aspects about the case.

To begin with, there is something unsatisfactory about the way the case reached the High Court.  The adoption of the Special Case procedure enabled the High Court to rule on the constitutionality of the legislative provisions, and leave to one side whether the powers being exercised could properly be exercised consistently with the constitutional freedom of communication.  This arose in two ways. 

Firstly, in respect of the interview offence, the Court was able to say that that provision was valid because it was always open to obtain the written approval of the chief executive officer.  For the purposes of the Special Case, no such application for approval had been made and refused, and the High Court was therefore not required to rule on whether any such refusal would itself have amounted to an impermissible burden on Mr Wotton’s freedom of political communication.  This is an issue that would be addressed separately, by way of judicial review of the chief executive officer’s decision, if such an application were made and refused.

Secondly, in respect of the parole conditions imposed, the challenge was to the validity of the legislation which authorised the imposition of parole conditions, and not to the parole conditions themselves.  Again, the High Court considered that this gave rise to a question of constitutionality of the provision, and not whether the conditions themselves impermissibly burdened the freedom of political communication. Again, this is an issue that would arise in the context of a challenge to the validity of the parole orders on administrative law grounds, not on constitutional grounds.

Another unsatisfactory aspect of the decision appears in the judgment of Kiefel J, who goes some way towards providing a justification for refusing to permit interviews and imposing conditions upon the parole restricting access to the media.  Her Honour notes that there might be some utility in terms of maintaining discipline in preventing prisoners becoming figureheads in the prison population as a result of their media profile.  An illustration of this is provided in the US Supreme Court case of Pell v Procunier.  However, this teaser aside, there is no discussion of the extent to which such conditions could appropriately serve a legitimate end in respect of parolees.  Nor is there any discussion of what factors might legitimately be called in aid by the State of Queensland to justify the particular conditions imposed upon Mr Wotton.

Apart from what can be gleaned from Kiefel J’s judgment, there is nothing in the judgment that provides any guidance as to whether or not the particular conditions imposed upon Mr Wotton do or do not impermissibly burden his freedom of political communication, and if so (or if not) why?

Wotton v Queensland

The High Court this morning delivered judgment in Wotton v Queensland in which a prisoner sought to challenge certain conditions imposed upon him as a parolee, as being impermissible burdens on his freedom of political communication.

Mr Wotton is an Aboriginal person, born on Palm Island, and who has been an active participant in public life in Palm Island and a leader in the Palm Island Aboriginal community.  He has been, and wishes to continue to be, an active participant in public discussion on political and social issues affecting Aboriginal persons on Palm Island, and more generally throughout Australia.  He also wishes to participate in public discussion on issues relating to the prison system (about which he became aware during his incarceration).

In November 2008 Mr Wotton was sentenced to six years’ imprisonment for his part in the Palm Island Riots on 26 November 2004, which followed the controversial death of Mulrunji whilst in police custody the week before.  He was eligible for, and released on, parole in July 2010.  The Parole Board released Mr Wotton pursuant to an order made under section 200(2) of the Corrective Services Act 2006.  The parole order imposed a number of conditions on Mr Wotton, including that he:

• Not attend public meetings on Palm Island without the prior approval of the corrective services officer;
• Be prohibited from speaking to and having any interaction whatsoever with the media;
• Receive no direct or indirect payment or benefit to him, or through any members of his family, through any agent, through any spokesperson or through any person or entity negotiation or dealing on his behalf with the media.

The parole order imposed on Mr Wotton is due to expire on 18 July 2014.

By way of Special Case in the High Court of Australia, Mr Wotton seeks declarations to the effect that the relevant provisions of the Corrective Services Act 2006 (Qld) are invalid because they impermissibly burden, or authorise the imposition of parole orders that so burden, Mr Wotton’s freedom of communication about government and political matters contrary to the Commonwealth Constitution.  The challenged provisions included section 132(1)(a) which made it an offence in certain circumstances for a person to interview, or obtain a written or recorded statement from, a prisoner without the written approval of the chief executive of the Dept of Corrective Services.  Prisoner was defined to include a parolee such as Mr Wotton. 

In its judgment delivered on 29 February 2012, the High Court of Australia unanimously dismissed the challenge. 

The majority (French CJ, Gummow, Hayne, Crennan and Bell JJ, and Keifel J in separate reasons) held that the challenged sections of the Corrective Services Act 2006 effectively burden freedom of communication about government or political matters (a matter conceded by the Commonwealth intervening, but denied by the State of Queensland).  The relevant burden imposed by section 132(1)(a) is the obligation to seek and obtain the written approval under section 132(1)(d) of the chief executive to interview a parolee, such as Mr Wotton. The relevant burden imposed by section 200(2) is the observance of conditions the Parole Board reasonably considers necessary to ensure good conduct of the parolee and to stop the parolee committing an offence. 

Nonetheless, the majority held, the sections were reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government.  The legitimate end of section 132 (1)(a) was to be found in the statutory purposes set out in section 3(1) of the Act, which expresses the need to consider community protection and crime prevention through humane containment, supervision and rehabilitation of offenders.  It is not apparent from the plurality judgment how that end is in any way furthered by the restriction imposed by section 132(1)(a).  Keifel J however explains it by reference to the need to maintain order and discipline within the prison, something that may be compromised by public statements made by parolees upon release, which may have repercussions for other prisoners and the prison system.  Her Honour notes that in Pell v Procunier press attention to a small number of prisoners had resulted in them becoming “public figures” within the prison society, gaining a degree of notoriety and influence with other prisoners and becoming the source of severe disciplinary problems. 

Importantly, the Court noted that it would be incumbent upon the chief executive in exercising the power of approval under section 132(2)(d) to have regard to the restraint upon legislative power identified by Brennan J in Miller v TCN Channel Nine Pty Ltd  in the following terms:  “where a discretion, though granted in general terms, can lawfully be exercised only if certain limits are observed, the grant of the discretionary power is construed as confining the exercise of the discretion within those limits.”  There had not been an application under section 132(2)(d) in respect of Mr Wotton.  If there were such an application made, then the majority seems to e suggest that in determining that application the discretion will be limited so as not to impermissibly burden Mr Wotton’s freedom of political communication.

The legitimate end of section 200(2) was the imposition of conditions the Parole Board considers reasonably necessary to ensure good conduct to stop the parolee committing an offence.  The question of the validity of the parole orders therefore depended not upon the validity of section 200(2) itself, but on whether or not in imposing them the Parole Board had exceeded the power conferred by section 200(2).  That was not a question that arose in the proceedings.  The majority noted that if, on its proper construction, the statute complies with the constitutional limitation, any complaint respecting the exercise of power in any given case does not raise a constitutional question, but instead raises a question of the exercise of statutory power, which is capable of being challenged in separate judicial review proceedings.

Heydon J held that the provisions (and the parole order made under section 200) did not threaten his freedom of communication about political or governmental affairs:  a limitation on the place at which a communication may be made does not prevent the substance of what he wants to communicate from being communicated.  Similarly, a ban on payment for making communications about political or governmental matters does not prevent the making of unpaid communications about those matters.  And in relation to section 132, it does not burden communication because it prohibits only the obtaining by a third party, and not the publishing, of a statement by the prisoner. 

Forthcoming judgments from the High Court

 On Wednesday the High Court will deliver four judgments.

The first is in Wotton v State of Queensland in which a prisoner challenges provisions of the Qld Corrective Services Act and a parole order made under that Act as impermissible burdens on his freedom of communication on government and political matters.  The order purported to prevent him from attending public meetings on Palm Is without approval, and from speaking to the media.

The second is in a rather technical case involving construction of provisions governing the power of appointment of teachers under the South Australian Education Act 1972.

The third is also a rather technical case arising out of a demarcation dispute between industrial organisations in the education sector, and the operation of the registration scheme under the Fair Work Act.

The fourth is the judgment in Waller v Hargraves Secured Investments Ltd which raises an important issue under the NSW Farm Debt Mediation Act as to whether an agreement to extinguish a farm debt and create a new farm debt (where the new farm debt is secured by the original security) creates a separate "farm mortgage" with the effect that before possession proceedings can be taken under the new farm debt the mediation procedures must be invoked a second time.

In the High Court commencing 28 February 2012

The High Court has now released details of what case, are going to heard (and when) over the next two weeks and so I have set out below an updated version of last week’s post, and included a case that I omitted.

First up on Tuesday, 28 February 2012 is the appeal in Baker v The Queen.  In this case the appellant invites the High Court to create an exception to the rule against hearsay of the kind considered in, but not determined by, Bannon v The Queen.  The issue is this:  in a joint trial where the Crown relies upon admissions made by an accused  in proof of guilt of the accused, and the admissions tend to exculpate a co-accused, should a trial judge be required (or have a discretion) to direct that the evidence of the accused’s admissions is also evidence in relation to the co-accused and should be considered as evidence in exculpation of the co-accused?

On Wednesday and Thursday the Court will hear argument in in Forrest v ASIC, an appeal against the Full Federal Court’s decision upholding an application by ASIC for civil penalties to be imposed on Twiggy Forrest and Fortescue Metals.  The proceedings related to alleged misrepresentations about to contracts entered into with a number of Chinese companies for the construction of certain railway infrastructure for Fortescue Metal’s Pilbara iron ore project.  At first instance ASIC’s application was dismissed in one of its many spectacular failures in the courts in recent years.  At issue will be the extent to which, and the circumstances in which, a statement of opinion (and in particular an opinion as to the effect of a contract) will be held to be misleading.

Then, on Friday, 2 March 2012 the appeal in R v Khazaal is listed for hearing.  This is, unusually, a Crown appeal against a decision by the NSW Court of Criminal Appeal upholding an appeal against conviction but ordering a retrial.  The accused had been convicted of terrorism-related charges arising out of his publication of an electronic book entitled “Provisions on the Rules of Jihad – Short Judicial Rulings and Organisational Instructions for Fighters and Mujahedeen against Infidels.”  The relevant provision of the Criminal Code (section 101.5) makes it an offence to make a document if the document is connected with preparation for, or assistance in, a terrorist act, and the person is aware of that connection.  However, it is not an offence if the making of the document was not intended to facilitate preparation for, or assistance in, a terrorist act.  At issue in the appeal is where the onus lies in proving or disproving that intention.

The following week commencing on Monday, 5 March 2012 is the further argument in Harbour Radio Pty Ltd v Trad which was adjourned after the original estimate proved to be insufficient.

On Tuesday and Wednesday, 6 and 7 March 2012 the Court will hear argument in a series of related cases that will either be reported as National Competition Council v Hamersley Iron Pty Ltd or as Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal.  This case involves Part IIIA of the Competition and Consumer Act 2010.  Part IIIA provides a regime whereby certain pieces of privately-owned infrastructure that cannot be economically duplicated can be “declared”, with the consequence that they must be made available for use by competitors. Upon an application by Fortescue Metals Group, privately-owned railway facilities in the Pilbara used by Hamersley Iron and Robe River Mining to transport iron ore were declared for a period of 20 years.  At issue in this appeal is which of two different methods (the “social cost approach” or the “private profitability approach”) should be used in determining whether or not “it would be uneconomical for anyone to develop another facility”.

Finally, on Thursday 8 March 2012, R v Getachew raises for consideration the burden of proof in relation to the mental element for the offence of rape where the complainant was asleep at the time of penetration, and the evidence is silent as to whether or not the accused knew the complainant was asleep, ought to have known the complainant was asleep, or thought the complainant was awake.

Breath testing to ensure compliance with bail

It is not uncommon, particularly in the western districts of NSW, for bail to be conditioned upon the accused refraining from consuming alcohol, and requiring an accused to submit to breath testing as required by a police officer.

In the recent decision of Garling J in Lawson v Dunlevy [2012] NSWSC 48 it was held that the second part of the condition, requiring submission to breath-testing, was invalid.

The essence of the decision is that the imposition of the breath test condition did not satisfy any of the purposes for which a bail condition could be imposed, namely:  promoting effective law enforcement; the protection and welfare of a particular person or the community; or promoting the treatment or rehabilitation of the accused.

It was not suggested that the condition could be imposed for the purpose of promoting the treatment or rehabilitation of the accused (although there is no reason why in an appropriate case that could not be a relevant purpose).  It is also difficult to see (as Garling J found) how that condition could have the purpose of protection and welfare.

However, with great respect to Garling J, the reasoning by which his Honour found it did not have the purpose of promoting law enforcement is unconvincing.  This reasoning is in essence based upon the proposition that breaching a bail condition (such as the one prohibiting the consumption of alcohol) is not an offence but simply renders the accused liable to be apprehended and brought back before the courts for redetermination of bail (either by confirming the existing bail, imposing new bails conditions, or dispensing with bail altogether).

While that proposition is undoubtedly correct (leaving aside the offence created for ultimately failing to appear), it takes too narrow a view of "law enforcement", and suggests that "law enforcement" is directed only towards the prevention and detection of criminal offences.  It is difficult to see why promoting the observance of bail conditions (and facilitating the detection of their breach) is not also a species of law enforcement. That the legislature has decided that the consequence of breach shall be the redetermination of bail, rather than creating an offence that may be punished in the ordinary way, would seem to be beside the point.

The current review of the Bail Act 1978 can be expected to result in legislative changes that will reverse the effect of this decision.