Recently, Matt Black and I succeeded in a Supreme Court application to set aside directions made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA). My thoughts are as follows...
Significantly, the case considers the application of natural justice and interpretation of 'reasonableness' in the DPSOA, as well as the application of the Human Rights Act 2019 (Qld) (HRA).
- Natural Justice -
In the context of the DPSOA, Callaghan J noted that insufficient parliamentary intention exists to displace the presumption of natural justice. Displacement requires the satisfaction of an onerous threshold, namely that parliament's evinced intention be 'irresistible'. Consequently, requirements for procedural fairness under the DPSOA will be assessed on a case-by-case basis, considering factors such as urgency.
- Reasonableness -
Section 16C of the DPSOA introduced the requirement of subjective reasonableness when an officer gives directions. In assessing the DPSOA's drafting history, His Honour determined that this limitation adds to, rather than displaces, the extant requirement of objective reasonableness.
- Human Rights -
His Honour emphasised the now-established principles for considering human rights - a breach occurs where a right is engaged, limited and the limitation is not justified. The final factor, justification, requires a rational connection between the limitation of the right and its relevant purpose. In this case, the directions given under the DPSOA applied to male visitors, bearing no rational connection to the purpose of preventing sexual offending against women.
- Implications -
This case highlights the need for government bodies to be more intentional in considering procedural fairness and human rights obligations in the decision-making process. The threshold for displacing such obligations, whether in the form of exceptions to natural justice or justifications for human rights limitations, is extremely high.