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?