R v the Superintendent of the Belconnen Remand Centre; Ex Parte Jack Victor Diamond Also Known As Victor Grzeszkiewicz [1986] ACTSC 76 (15 August 1986)

SUPREME COURT OF THE ACT

THE QUEEN v. THE SUPERINTENDENT OF THE BELCONNEN REMAND CENTRE; Ex parte JACK
VICTOR DIAMOND also known as VICTOR GRZESZKIEWICZ
S.C. No. 1243 of 1986
Prerogative Writs - Infants and Children

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Prerogative Writs - habeas corpus - nature of remedy.

Infants and Children - Child Welfare Ordinance 1957 - custody of young person committed by a Children's Court to an institution - establishment of remand centre as an institution - whether inmate of institution is in custody of Minister or person in charge of institution.

Infants and Children - Children's Court - whether Children's Court has power to order committal of young person to particular institution or class of institution.

R v. Nicholl ex parte Davies 59 ACTR 32

Thomas v. Quarmby (1982) 63 FLR 402

Ex Parte Lo Pak (1888) 9 NSWR 221

R v. Harrop (1979) VR 549

Barnardo v. Ford [1963] UKHL 3; (1892) AC 326 at p 333-334

Day v. The Queen [1984] HCA 3; (1983) 153 CLR 475

R v. Templeton (1956) VLR 709

R v. Melville (1856) VLT 417

HEARING

CANBERRA
15:8:1986

ORDER

The order nisi directed to the Superintendent be discharged.

DECISION

This is the return of an order nisi that the Superintendent of the Belconnen Remand Centre show cause why a writ of habeas corpus should not issue directed to the Superintendent to produce to the Court the person of Jack Victor Diamond otherwise known as Victor Grzeszkiewicz. Mr. Diamond ("the applicant") is presently being held in custody at the Belconnen Remand Centre. During the hearing a number of important questions were raised relating to the detention of children and young persons and to the Child Welfare Ordinance 1957 ("the Ordinance") but it is not necessary for the purposes of this judgment to decide or discuss all of them.

2. The order nisi was made by me on 22 July 1986. The application to make the order absolute came before Mr. Justice Gallop on 24 and 31 July 1986. For reasons to which I will refer, his Honour was not able to conclude the matter. The parties are agreeable that I should proceed to hear and decide the matter, Gallop J. having expressed the view that he would not regard himself as part heard if the parties wished to adopt that course.

3. The applicant was born on 16 July 1968. On 6 May 1986 he came before the Children's Court in Canberra charged with the commission of a number of criminal offences. The learned Magistrate, Mr. Nicholl, dealt with him as a young person as defined by s.5. of the Ordinance and recorded a finding of guilt on all charges. In relation to a charge of breaking, entering and stealing the terms of his order were that the applicant be "committed to an institution within the ACT until 19 December 1986". In relation to each of the other findings of guilt the order was that the applicant be "committed to an institution in the Australian Capital Territory for a period of one month". It was further ordered that the committal in respect of each of those further findings of guilt was to commence "at the expiration of his present committal". Although the evidence is by no means clear, it appears that in pursuance of the first of the committal orders referred to, the applicant was taken to and detained in what was described as "the detention centre for children in the ACT known as Quamby". An industrial dispute occurred at the Quamby detention centre. The reasons for the industrial dispute are of no concern. On 15 July 1986 the applicant was taken from the detention centre at Quamby and placed in the Belconnen Remand Centre. He still remains in the Belconnen Remand Centre.

4. To complete the picture it should be said that on 15 July 1986 the applicant was charged with a further offence before another Magistrate, Mr. Wynne, sitting in the Canberra Children's Court. In relation to that charge there was on 18 July 1986 a finding of guilt and the order of the Court was that the applicant be "committed to an institution in the Australian Capital Territory for a period of one month". It was further ordered that the committal was to commence "at the expiration of his present committal". It may be observed that on 16 July 1986, between the date of the charge and its determination, the applicant had attained the age of 18 years, but nothing turns on this. The Children's Court still had jurisdiction to deal with him and to make appropriate orders under the Ordinance: see the judgment of Kelly J. in R v. Nicholl ex parte Davies 59 ACTR 32. Nothing was put on behalf of the applicant to suggest that his attaining the age of 18 years bears upon the lawfulness of his present custody.

5. The applicant says that the respondent Superintendent of the Belconnen Remand Centre has no power to hold him in custody. The respondent Superintendent, through his counsel, submits that as a matter of law the applicant is not in his custody but in the custody of the Minister administering the Ordinance, that is to say, the Minister for Territories. Alternatively it is submitted that if the applicant is in the custody of the Superintendent then such custody is lawfully exercised. There were a number of other submissions as to why the order should not be made absolute, and I deal initially with some of these.

6. First, it was submitted that the Courts will not entertain an application for a writ of habeas corpus brought by a person held in custody subsequent to the imposition of a sentence of imprisonment imposed as a result of a conviction for a criminal offence. In my view, the submission is too widely stated as a proposition of law. I expressed that opinion on a previous occasion and gave reasons for it which I do not find it necessary to repeat: see Thomas v. Quarmby (1982) 63 FLR 402. What is correct as a matter of law is that the habeas corpus procedure may not be used as a substitution for an appeal against a conviction or sentence. The present application is not of such a nature.

7. Having said that, however, it is necessary to say something further about the terms of the orders of the Children's Court. The order committing the applicant to an institution within the Australian Capital Territory until 19 December 1986 was made pursuant to s.57 (the offence being indictable but triable summarily). The other committal orders were made either under s.57 or under s.56, the latter section relating to offences triable summarily. Sub-s 1(d) of each section is in identical terms and provides that the Children's Court may, if the child or young person admits the offence, or if the Court finds the charge proved:

". . . . . commit the child or young person to an

institution, either generally or for a specified
term (whether expiring before or after the date on
which the child or young person attains the age of
18 years) (not exceeding three years)."

8. Although the sub-section permits the term during which the committal is to have effect to be expressed generally or as a specified term not exceeding three years, there is nothing in it or elsewhere in the Ordinance about the power of the Children's Court to order that the child or young person be committed to a specific institution. It was for this reason that Gallop J. considered the question as to whether the words "within the ACT" should be regarded as part of the order or whether they should be regarded as merely a recommendation as to the type of institution in which the applicant was to be detained. The argument had apparently been raised before his Honour that if the words "within the ACT" were part and parcel of the order, then the order was beyond power. His Honour adjourned the proceedings and directed that the matters be brought to the attention of the Magistrates and the Magistrates invited to amend the orders. I have been told that his Honour's directions were complied with but that the Magistrates declined to amend the orders. In the meantime, however, it appears that the attitude of the applicant has changed in that he no longer challenges those orders. I proceed on the assumption that the orders are valid. The assumption may be justified by regarding the words "within the ACT" as severable from the rest of the order. However the Magistrates are not parties to these proceedings, no one has appeared to argue the justification of the terms of their orders and it is therefore inappropriate for me to adjudicate upon that question. It is not a question which has been litigated in these proceedings. Nevertheless, I must state that I hold very strong doubts as to the powers of a Children's Court to order that a child or young person be detained in a particular institution or class of institutions. For reasons which appear below, I am of the view that it is the function of the Minister to decide at which institution or institutions children and young persons should be detained. The matter is not without importance as far as the present applicant is concerned, because the Minister may wish at some stage to remove the applicant from an ACT institution to an institution in New South Wales pursuant to the Child Welfare Agreement Ordinance 1941 but fears have already been expressed that the New South Wales authorities may not be prepared to accept him into an institution in that State because the terms of the orders of the Children's Court do not authorise detention outside the Australian Capital Territory.

9. Something further needs to be said about the nature of the relief sought. The ancient writ of habeas corpus has become another legal fiction. A writ is not an order of a court. A writ is a command made by the Sovereign as part of the prerogative power requiring the person to whom it is directed to act according to its terms. Some writs, including a writ of habeas corpus, issue through the medium of a superior court and are regarded as part of its process. A writ of habeas corpus (or, more precisely, a writ of habeas corpus ad subjiciendum, one of the five varieties of a writ of habeas corpus) requires the person to whom it is directed to produce to the court the body of another whom he has in custody so that a decision may be made according to law relating to the liberty of the person in custody. As a matter of procedure, a writ of habeas corpus does not issue as of course, unlike a writ of summons and the now abolished writs of subpoena. Long ago in New South Wales it was held that where the respondent takes part in proceedings leading to the granting of a rule authorising the issue of a writ of habeas corpus, all matters may be dealt with upon the return of the rule nisi which could be dealt with upon the return of the writ itself: Ex parte Lo Pak (1888) 9 NSWR 221. The procedure laid down in this Territory by rules of court is that an order nisi is obtained in the first instance calling upon the respondent to show cause why a writ of habeas corpus should not issue. By Order 55 Rule 49 when an order to show cause has been made, the Court or judge may, on the return of the order direct the discharge or other disposition of the person in question without the issue of a writ of habeas corpus, and any other such order shall be as effectual as if it had been made on the return of the writ. In the light of these considerations, Mr. Palmer who appeared for the applicant conceded that he was not seeking the liberation of the applicant but simply such order as would ensure that the applicant was placed in the custody of a person who had authority to receive him into custody in accordance with the orders of the Children's Court that the applicant be detained in an institution. It may be noted that in a case in which the facts were not very dissimilar from the present, a juvenile ordered to be held in a youth training centre in Victoria unsuccessfully sought a writ of mandamus directed to the Director-General of Social Welfare (who carries out functions similar to those of the Minister in this Territory) to show cause why a writ of mandamus should not issue commanding him to give effect to the sentence imposed: R v. Harrop (1979) VR 549. I express no view as to whether the present proceedings should have been made by way of application for a writ of mandamus rather than by application for a writ of habeas corpus. It is hardly constructive to suggest that one archaic procedure is preferable to another. It is desirable that the writs be abolished and the Court empowered to grant relief and make orders having an effect similar to those of the writs. This has been the course followed in New South Wales: Supreme Court Act 1970 (NSW) s.69.

10. The basic submission pressed on behalf of the applicant was that he could not be lawfully detained in the Belconnen Remand Centre. However, in my view that is not the precise issue that falls to be determined. The respondent to the application is the Superintendent of the Belconnen Remand Centre and it is the power of the respondent to hold the applicant in custody that is in question. Anticipating that a question might arise as to whether that power might reside in some person other than the Superintendent, I directed that notice of the proceedings be served on the Director of Welfare. However the Director has not sought to intervene and no other person has sought to appear to claim or disclaim the custody of the applicant. One of the submissions put by Mrs. Bonsey who appeared on behalf of the Superintendent was that the applicant was not in the custody of the Superintendent but in the custody of the Minister. If that submission were correct, a writ directed to the Superintendent would not lie: Barnardo v. Ford [1963] UKHL 3; (1892) AC 326 at p 333-334. Ultimately, for reasons to which I will refer in a moment, I reject the submission that the applicant is not in the custody of the Superintendent, but the submission does at least highlight the limited nature of the issue with which I am required to deal on this application for a writ of habeas corpus directed to the Superintendent. Furthermore, it raises the question, which in the event I do not have to decide, as to whether an application for a writ of habeas corpus is the appropriate way of seeking relief where there is alleged to be something unlawful or improper about the manner in which a custodian exercises his lawful power to detain another in custody.

11. The precise case which the applicant seeks to make out is that he is in the custody of the Superintendent and that the Superintendent has no power to detain him in that custody. Whilst it is undisputed as a matter of fact that the applicant is detained at the Belconnen Remand Centre, issue is joined as to whether he is in the custody of the Superintendent. The Belconnen Remand Centre is a remand centre declared by the Minister under s.4 of the Remand Centres Ordinance 1976 and the Superintendent is the person appointed as Superintendent under s.6. The applicant relies on s.15 and particularly sub-s.4 thereof. The relevant parts of s.15 are in the following terms:

"15(1) The following persons may be detained in a
remand centre:

(a) . . . . .

(b) . . . . .

(c) a person convicted by a court in the
Territory and sentenced to a period of
imprisonment, whether with or without any
other punishment;

(d) . . . . .

(e) . . . . .

(f) a juvenile who -

(i) is required by an order of a court of
the Territory to be kept in custody;
and

(ii) is, in the opinion of the Minister,
not a suitable person to be detained
in a shelter.

(g) . . . . .

(h) . . . . .

(2) A person referred to in paragraph (1)(c) or
(1)(d) shall not be detained in a remand centre
for any longer than is necessary while awaiting
transport to another institution.

(3) A convicted person, other than a convicted
person referred to in sub-section (1), shall not
be detained in a remand centre.

(4) A person who is detained in a remand centre is,
by virtue of this sub-section, in the custody of
the Superintendent of the remand centre.

(5) . . . . ."

12. The power and duties of the Superintendent are set out in s.9 which provides as follows:

"9. Subject to this Ordinance, the regulations
and standing orders, the Superintendent -

(a) is responsible for the day-to-day running
of the remand centre in respect of which he
is appointed;

(b) has control of, and is responsible for, all
detainees in the remand centre; and

(c) has such duties as are prescribed."

13. The applicant contends that of the categories set out in s.15(1) the only category into which he could possibly fall is that described in paragraph (c), namely that he is a "person convicted by a court in the Territory and sentenced to a period of imprisonment, whether with or without any other punishment". At first glance it would appear that having been dealt with in a Children's Court the applicant could not be regarded as a person convicted and sentenced to a period of imprisonment. However s.110 of the Ordinance provides as follows:

"110. The words "conviction", "sentence" and
"imprisonment" shall not be used in relation to a
child or young person dealt with summarily and a
reference in a law in force in the Territory to a
person convicted, a conviction, a sentence or
imprisonment shall, in the case of a child or
young person so dealt with, be construed as a
reference to a person found guilty of an offence,
a finding of guilt, an order made upon such a
finding or a detention, as the case may be."

14. Accepting then that the applicant is a person who falls within s.15(1)(c), the submission is that because sub-s.2 prohibits his detention in a remand centre "for any longer than is necessary while awaiting transport to another institution", the onus is upon the respondent to show that at the time of the hearing the applicant had not been detained for any longer than necessary whilst awaiting transport to another institution and further there was no evidence that the applicant was awaiting transport to another institution in any event. It may be noted that the word "institution" is not defined in the Remand Centres Ordinance 1976.

15. The submissions put in answer on behalf of the Superintendent are that the applicant is being held in the Belconnen Remand Centre by the combined operation of a number of provisions of the Child Welfare Ordinance 1957 and the Remand Centres Ordinance 1976. The submissions may be summarised in the following series of propositions:

1. The applicant was ordered by a Children's
Court to be detained in an institution
under s.57 of the Child Welfare Ordinance
1957.

2. The Minister has power under s.16(1) to
establish institutions for the detention
and maintenance of children and young
persons.

3. The Minister by instrument in writing dated
15 July 1983 and notified in the
Commonwealth Gazette on 23 July 1986
established the Belconnen Remand Centre as
an institution for the detention and
maintenance of children and young persons.

4. The applicant is a ward of the Minister as
defined by s.6 of the Ordinance as
including a child or young person who has
been committed to an institution. The
Minister is by virtue of s.19(1) of the
Ordinance the guardian of a ward and by
virtue of s.20 has the care of a ward.

5. The Minister being guardian and having the
care of a ward has the power to move or to
authorise the removal of a ward from one
institution to another.

6. The applicant has at all times since his
committal to an institution been in the
exclusive custody of the Minister and
remains in the custody of the Minister
despite his removal to the Belconnen Remand
Centre.

16. I think that with the exception of the sixth proposition, the submission is well founded. The applicant contended that the Minister has not established the Belconnen Remand Centre as an institution under the Child Welfare Ordinance 1957. It is necessary to deal with this point only briefly. Section 16 of the Ordinance provides that the Minister may establish, inter alia, an institution for the detention of young persons. There is no provision in s.16 as to the procedure to be adopted for the establishment of an institution or any of the other places mentioned in s.16. The applicant contends that the Minister may not establish an institution by the execution of an instrument but, if I understand the argument correctly, must proceed by way of legislation to dedicate an area defined by metes and bounds upon which the institution might stand and to spell out the rights and duties of those confined within it. It was suggested that support for the submission was to be found by contrasting the requirement in sub-s.2 of s.16 that the Minister shall cause notice of the establishment of a depot, shelter, home or hostel to be published in the gazette, with the silence of the section in relation to notification in the gazette of the establishment of an institution. In my view, the suggestion lends no support to the submission that an institution may be established only by legislation. On the contrary, sub-s.2 assumes that depots, shelters, homes and hostels may be established by instrument and upon that assumption requires notice of the establishment of the depot, shelter, home or hostel by publication in the gazette of the instrument of establishment. As far as the establishment of an institution is concerned, there is simply no requirement that there be notice in the gazette.

17. It was further submitted for the applicant that whilst the Minister has the legal power and duty to exercise custody and control over those in his wardship, including young persons ordered to be detained in an institution, the Minister had authorised the removal of the applicant from that custody into the actual custody of the Superintendent, that the Minister had no power to divest himself of the custody of the applicant, that the Superintendent had no power to receive the applicant into his custody, and that the exercise by the Superintendent of custody of the applicant was unlawful. Whilst the Minister has the power to delegate all or any of his powers and functions by writing under his hand, that power is not relied upon in the present case. The question that arises then relates to the power and duty of the Minister to keep all wards under his custody. It may be noted that in accordance with s.20 the Minister has the care of a ward, other than particular categories of wards, but including a ward who is an inmate of an institution, other than a State institution, that is to say other than an institution in New South Wales as defined in the Child Welfare Agreement Ordinance 1941. However, custody and care are not necessarily co-extensive terms. The term custody itself is an elastic one. Its meaning reflects the context in which the term is to be found. The concept of custody is discussed by the Justices of the High Court in Day v. The Queen [1984] HCA 3; (1983) 153 CLR 475, a decision which bears upon the present case but which was not referred to in argument. That case involved consideration of the Prisons Act 1903 of Western Australia which provided that the Director of the Department of Corrections shall have the care and direction of all prisons and the custody of all convicted prisoners. In the judgment of the majority at p.481 the Act created a dual custody, encompassing both the Director and the officer in charge of the particular establishment where the prisoner is held. Their Honours drew a distinction between the actual custody of the gaoler of a particular prison and the notional custody of the Director. I think that similar considerations apply in relation to the concept of custody of wards of the Minister insofar as such custody may be vested in the Minister by virtue of s.19 and s.20 of the Ordinance and insofar as the Minister may place wards in the actual custody of persons in charge of particular institutions. A nice question may arise in individual cases as to the identity of the person who has the actual custody of the child or young person, but in my view where a child or young person is subject to an order of a Children's Court that he or she be confined in an institution then while the child or young person is confined in such an institution that child or young person is in the custody of the person in charge of the institution. It is to be remembered that "institution" is defined by s.5 to mean either (a) a State institution (that is to say an institution as further defined in the agreement in the schedule to the Child Welfare Agreement Ordinance 1941 and situated in New South Wales), or (b) an institution established by the Minister. It is not necessary for me to decide whether the Minister (at present the Minister for Territories of the Commonwealth of Australia) is to be regarded as the custodian of a child or young person detained pursuant to the Child Welfare Agreement Ordinance 1941 in an institution established by the law of New South Wales and administered by an instrumentality of the Government of that State. At least whilst the child is within an institution within the Australian Capital Territory, it is not difficult to regard the person in charge of the institution and the Minister as having dual custody. In any event I find that the applicant is in the actual custody of the Superintendent of the Belconnen Remand Centre.

18. There was a final argument on behalf of the applicant based on the Victorian decisions of R v. Templeton (1956) VLR 709 and R v. Melville (1856) VLT 417. In each case the facts were similar. The prisoner was convicted and sentenced to a term of imprisonment. In pursuance of the sentence he was sent to prison A and then removed to prison B. He was charged with escaping from the lawful custody of the gaoler of prison B. The prosecution was unable to prove the warrant removing him from prison A to prison B. In each case the Victorian Supreme Court said that the lack of proof of such a warrant entitled the prisoner to an acquittal. It was held that the Habeas Corpus Act of 1679 (which would appear to be in force in the Australian Capital Territory) provided that no person should be removed from one place of custody to another without lawful warrant, and that without proof of such warrant the gaoler was unable to prove that the prisoner was in his lawful custody.

19. Templeton and Melville were considered in Day v. The Queen. The provisions of the Habeas Corpus Act of 1679 were considered as also were a number of statutory provisions relating to the custody and removal of prisoners under the Western Australian Prisons Act 1903 and particularly s.53. After stressing the importance with which the courts will approach matters touching the proprietory of procedures relating to the custody of prisoners, their Honours in the majority judgment went on to say that it may be doubted whether the evils that existed in the seventeenth century exist today so as to invest the statutory provisions relating to removal of prisoners with the same importance as attached previously to the Habeas Corpus Act of 1679. Their Honours went on to make the following remarks at p 484 relating to the custody of a prisoner serving a sentence:

"Upon the sentence being imposed the prisoner is
thenceforth in the custody of the Director and it
is for the Director to determine the prison or
prisons in which that sentence is to be served.
Neither the order of the Court nor the calendar
makes that determination for him. If a prisoner
having been lodged in a particular prison is moved
thereafter to another prison without compliance
with s.53, then there is a breach of the statute
for which the Director may be held responsible.
But we can find no warrant for a conclusion that
such an unauthorised removal renders unlawful the
continued custody of the prisoner in the
Director."

20. The legislative provisions in the Australian Capital Territory relating to the detention of children and young persons pursuant to an order of the Children's Court are not, of course, on all fours with the Western Australian law relating to the custody of prisoners. But in my view the essence of what the members of the majority in the High Court had to say in the passage quoted about the lawfulness of the custody vested in the Director applies in the present case, the more so because those responsible for drafting the Ordinance have not seen it necessary to make specific provision relating to the Minister's approval of the removal of a child or young person from one institution to another. In my view, the position of the Minister is not to be equated with that of a person responsible for the administration of a prison system. The responsibility of the Minister towards his wards is, I think, to be regarded in a quite different category. No doubt the courts must when called upon give every possible consideration to the equal treatment of children under the law, but the fact is that the Minister responsible for child welfare in this Territory is given sweeping powers over children and young persons in his wardship that would be quite inappropriate in the case of adult prisoners of full capacity but which are common in child welfare legislation in Australia. The whole scheme of the system of wardship, institutions, shelters and the like is such that it is not correct to regard s.8 of the Habeas Corpus Act 1679 as applying to it. The lack of evidence that the Minister has given his warrant for removal of a child or young person from one institution or another (or simply from one particular place established under s.16 to another similar place) does not mean that the child or young person in passing from one to the other ceases to be in the lawful custody of the Minister.

21. The Belconnen Remand Centre serves not only as a remand centre within the meaning of the Remand Centres Ordinance 1976 but also as a duly established institution under the Child Welfare Ordinance 1957 and the applicant whilst detained there in pursuance of the committal orders to which he is subject is in the dual custody of the Minister and of the Superintendent or more precisely in the notional custody of the Minister and the actual custody of the Superintendent. The custody exercised by the Superintendent is lawful. The order nisi directed to the Superintendent is discharged.