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.