BY ANNA KRETOWICZ

Introduction

In March 2021, there were an estimated 2,100 undecided new applications at the Parole Board Queensland (the Board). While administrative backlogs are undesirable (one need only think of the Administrative Appeals Tribunal, where a backlog of 53,000 applications in 2018 left the body in chaos), the problem here compounds with the legislative requirement in Queensland that the Board must make decisions on parole applications within a specified timeframe – in addition to their usual workload deciding parole suspensions, deferred applications, exceptional circumstances parole, and preliminary refusals, for example. For some months now, the Board has been unable to meet the deadlines, leaving prisoners detained for uncertain periods – sometimes up to many months longer than they ordinarily would be.

To be clear, there is no imputation of blame, fault or malice by the Board. Indeed, the backlog is likely due to a number of external factors beyond the Board’s control: the COVID-19 pandemic and the increased number of applications made out of concern of an outbreak in prisons, the Board’s prioritisation of applications of vulnerable persons (see the Board’s 2019-20 Annual Report, pp 9-10), post-release accommodation shortages and uncertainty (pp 12-13), and the slowly increasing prison population. The Board has met increased demands to an extent, such as by appointing more members and convening extra meetings (2019-20 Annual Report, p 10), but the problem remains.

Some prisoners have sought to take matters into their own hands by instituting proceedings for judicial review on the ground of failure to decide (Judicial Review Act 1991 (Qld), s 22(2)). Administrative law is the classic avenue for effecting public accountability, but these particular circumstances raise the question of whether liability (of the Board, or the Department of Corrective Services) arises elsewhere. This piece will consider whether private law, specifically the tort of false imprisonment, can provide a remedy by reference to the UK Supreme Court decision in R (WL (Congo)) v Secretary of State for the Home Department [2012] 1 AC 245 (Lumba) and Australian case law.

Legislative Context

The Board is an independent statutory authority established under ch 5, pt 2 of the Corrective Services Act 2006 (Qld) (the CSA). Its function is to decide applications for parole orders, and perform any other functions given to it under the CSA or other legislation (CSA, s 217). There are a variety of determinations the Board is responsible for, including parole applications other than those ordered by the sentencing court, exceptional circumstances parole, suspensions, amendments, and ‘No Body No Parole’ matters. This piece will focus on applications for ‘Board Ordered Parole’ (BOP) and the timeframes surrounding them.

A BOP application is where the sentencing court has set a parole eligibility date (PED) for a prisoner at sentencing, upon which date the prisoner may apply to the Board to be released from custody (CSA, s 180). The decision-making framework is provided in the CSA, the crucial provision being s 193.

Section 193 provides that after receiving a prisoner’s application for parole, the Board must decide to either grant or refuse the application. The ordinary time frame is within 120 days, unless the Board defers their decision to obtain any additional information it considers necessary to make the decision, in which case it is 150 days (the ‘decision-by-date’, or DBD).

Due to the backlog, and despite a slightly increased capacity, the Board has been unable to make decisions within these timeframes, at least for the entirety of 2021. These circumstances thus create the opportunity for private and public law to collide, as prisoners are being detained beyond a date when they may be eligible for release. Could tort law provide an alternative avenue of accountability, in an action for false imprisonment?

Liability in false imprisonment

The tort of false imprisonment

The tort of false imprisonment is an intentional, total and direct restraint on a person’s liberty; the gist is deprivation of liberty, in the sense that the defendant must have intended the plaintiff suffer that consequence (Barker et al, The Law of Torts, 48; Ruddock v Taylor (2005) 222 CLR 612 at [141]). Liability is strict in the sense that the defendant does not have to intend to act unlawfully or to cause injury (Ruddock at [141]). It is actionable per se (ie, proof of damage is not required).

It is a defence if the defendant acted with lawful authority (Barker et al, 79). Here, that could be authority to detain the prisoner in custody from the sentencing court’s initial order.

The complicating factor for prisoners is whether they, as persons who already have their liberty restricted, have any ‘residual liberty’ to be deprived. Australian case law takes the view that they do, although it has been suggested that this ‘reconceptualises the basis of the tort… and should be seen as an exception to the general rule’ (Barker et al, 52). As such, this post operates on the premise that prisoners have a ‘residual liberty’ to support a claim.

Public law unlawfulness and false imprisonment

Australian case law indicates that any breach of public law principles can found an action at common law for damages for false imprisonment (stated by Refshauge J in Lewis v Australian Capital Territory (2018) 329 FLR 267 at [82], citing Holgate-Mohammed v Duke [1984] AC 437 at 443). But this is a not a new concept. Justice Deane remarked in the early case of Re Bolton; Ex parte Beane (1987) 162 CLR 514 that

[t]he common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive, who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate… The lawfulness of any such administrative direction, or of actions taken pursuant to it, may be challenged in courts by the person affected… (at 528-9, emphasis added).

Later, in Morro v Australian Capital Territory (2009) 4 ACTLR 78, the ACT government admitted liability for false imprisonment where there were arrests made due to misinterpretation of legislation and failures to afford procedural fairness in hearings. More recently, Refshauge J in Lewis v Australia Capital Territory emphatically stated that there was ‘no doubt’ that a breach of public law principles can found an action in false imprisonment. The unlawfulness in Lewis was that the ACT Sentence Administration Board (SAB, the ACT equivalent of the PBQ) failed to afford natural justice at the relevant hearings (see Lewis v Chief Executive of Dept of Justice and Community Safety of the Australian Capital Territory (2013) 280 FLR 118).

An interesting comparison is with UK law, where the Supreme Court decision in Lumba is not as generous and arguably would not support an action for a mere breach of procedural fairness.

The relevant unlawfulness in Lumba was that the Home Secretary applied a ‘secret’ policy in decisions on whether or not to release foreign national prisoners on temporary bail, where they were pending deportation after having served their sentence. The official government policy at the time was a presumption in favour of bail unless there were ‘strong grounds for believing that a person would not comply with conditions imposed on temporary release’ (quoted at [12] in Lumba). The Home Secretary, however, applied ‘a near blanket ban on release, regardless of whether removal can be achieved and the level of risk to the public linked to the nature of the… original offence’ (quoted at [5]).

Relevantly, on appeal to the Supreme Court, six out of nine Justices concluded that the Home Secretary was liable for false imprisonment, because on ordinary administrative law principles Lumba’s continued detention was unlawful. This was despite the fact that Lumba would have been detained on either policy. The Home Secretary’s ‘secret’ policy unlawfully fettered their discretion, and moreover, the Secretary had a legal duty to apply the official policy (unless there were good reasons for not doing so) (at [26], [34]-[35] per Lord Dyson).

None of the Lords could agree on what level of public law unlawfulness would be sufficient to ground a claim in false imprisonment. Lord Dyson JSC, with Baroness Hale JSC agreeing, considered that the breach of public law should ‘bear on and be relevant to the decision to detain’, that is, be material (at [68]). Lord Collins JSC agreed with Lord Dyson JSC but considered that the official misbehaviour must amount to a ‘serious breach’ where ‘[f]undamental rights [were] in play’ (at [219]-[221]). Lord Walker JSC, with Lord Hope DPSC and Lord Kerr JSC agreeing, considered that only in cases where there was an absence of power, or a misuse of power which ‘amounted to an abuse of power’ could generate liability in false imprisonment (at [193]). Finally, Lord Brown JSC, with Lord Rodger JSC agreeing, considered that there should be no liability where it would be unjust to award substantial damages (at [342]). This would be limited to cases where a decision had been made without power (at [343]).

While there was no consensus, none of the approaches in Lumba seem to accept a mere breach of procedural fairness as sufficient to ground a claim in false imprisonment, as Australian law appears to do. It is significant that Refshauge J’s remarks in Lewis, emphasising that any public law wrongfulness grounds an action, post-date Lumba and the case was not referred to in reaching his conclusion. The appeal to the High Court in Lewis (2020) 381 ALR 375 was on the appropriate award of damages, and that was the only point on which Lumba was cited.

Application to the present circumstances

Whether construed as procedural fairness or simply a legislative requirement, the Board’s failure to make decisions on parole applications within the legislated time frame arguably grounds a claim in false imprisonment, where the delay has caused a prisoner to be detained beyond their DBD and/or PED. There is no suggestion of any more serious public law unlawfulness, like malice or abuse of power, as the Lumba tests require.

The issue is therefore whether the defence of lawful authority applies. The above-mentioned Federal Court decision in Lewis is instructive. Mr Lewis was originally sentenced to a term of imprisonment to be served wholly by periodic detention (where the offender is held in prison only from Friday evening to Sunday evening). Following a number of failures to attend, the SAB held an inquiry without Mr Lewis present and made a decision to cancel his periodic detention. He was subsequently arrested and taken into full-time detention for 82 days. As mentioned above, the SAB’s decision was held to be invalid for failure to afford natural justice. The hearing’s invalidity meant that there was no authority for committing him to the 82 days of full-time imprisonment.

Lewis is arguably distinguishable from the present situation in Queensland. For prisoners awaiting a decision on a new parole application, no decision has been made beyond the initial court order for imprisonment. This is not a case where a fresh decision to detain was infected by wrongfulness, nor is it a case where a prisoner is detained beyond a certain release date (see, for example, Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 and R v Governor of Brockhill Prison, Ex parte Evans [1997] QB 443). It seems to sit in a grey area, where there is not clearly no authority to detain prisoners beyond the DBD and/or PED where it is a new application for parole and no prior decision has been made (for a similar UK case, see R (Faulkner) v Secretary of State for Justice and another; R (Sturnham) v Parole Board and another (Nos 1 and 2) [2013] 2 AC 254). The original detention order remains, conferring lawful authority.

Furthermore, it was observed in Re Pennant [1997] 2 VR 85 (at 86-87) and endorsed in Re Zoudi (2006) 14 VR 580 (at 587), that the expiry of a non-parole period (that is, reaching the PED) does not trigger automatic release of a prisoner. It follows that a prisoner does not have a right to release on their DBD or PED. This is reinforced by considering the available remedies in administrative law, where a court may make a declaration that the Board has acted unlawfully in breaching the legislative requirements, and by order of mandamus compel the Board to make a decision. While a court can compel a decision, this is not equivalent to ordering release.

In sum, while the basic elements of false imprisonment are substantiated, the defence of lawful authority may plausibly apply. This may provide some relief, but if that conclusion were wrong, the threat of liability still does not seem great. The High Court in Lewis held that vindicatory damages, merely recognising that the right to liberty has been infringed, are not recognised in Australia (at [2], [22], [51], [176]). Further, an award of nominal damages was appropriate as Lewis could demonstrate no measurable loss (for further commentary on the case, see Katy Barnett’s piece on the Melbourne Law School High Court Blog).

Similar logic applies to the Board’s circumstances, the crucial fact being that a decision does not guarantee release. So, in at least some cases, it would not be clear that a decision made on time would have avoided the false imprisonment. Neither the Australian approach nor the UK approach would lead to liability, but the latter may be considered slightly more favourable as the inquiry stops at the earlier stage of whether there is a sufficiently serious breach of public law.

On a theoretical note, the UK approach may be more consistent with Australian administrative law generally, which maintains a distinction between jurisdictional and non-jurisdictional errors (Craig v South Australia (1995) 184 CLR 163). Accepting that distinction, it is not clear why a non-jurisdictional error, which is often procedural and arguably includes a breach of statutory time frames (see, eg, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369), would ground an action in false imprisonment but not invalidate a decision in administrative law.

Tort law may therefore prove an unwieldy tool for effecting public accountability in these circumstances, but the delays at the Board remain an undesirable state of affairs. Recently, some courts have even given reduced sentences to prisoners acknowledging the lengthy time they have already served in custody as a consequence of the ‘lengthy delays in parole applications’ (GSB v Commissioner of Police [2021] QDC 196). Prisoners are a vulnerable group in society, so merely because no spectre of liability clearly looms does not mean that every effort should not be made to remedy the situation.

Anna Kretowicz is a recent graduate of the TC Beirne School of Law at the University of Queensland.

Suggested citation: Anna Kretowicz, ‘Delays in Parole Applications at the Parole Board Queensland: An Action in False Imprisonment?’ on AUSPUBLAW (27 August 2021) <https://auspublaw.org/2021/08/delays-in-parole-applications-at-the-parole-board-queensland-an-action-in-false-imprisonment/>