Smith v Chief Executive, Queensland Corrective Services; Smith v Chief Executive, Queensland Corrective Services [2026] QCA 99 (Link to AUSTLII).
The applicant Ms Smith, a prisoner aged 33 years, wished to have some of her eggs extracted and then frozen so that when she is released from prison, she has an opportunity to become pregnant and have a child in a way which reduces the risk of infertility by reason of her age on release.
The Corrective Services Act 2006(QLD), s 22, permits an application for private medical examination or treatment, but subsection 2 provides that a prisoner cannot participate in assisted reproductive technology; or apply to do that.
These proceedings were an appeal against the primary judge’s dismissal of her application for a statutory order of review of the respondent’s refusal of Ms Smith’s application pursuant to s 22(2)(b) of the Corrective Services Act 2006 (Qld) (CSA): Smith v Chief Executive, Queensland Corrective Services [2024] QSC 288.
The ground of appeal was that the primary judge erred in holding (at [55] of the reasons) that the words “assisted reproductive technology” in s 22(2)(b) of the CSA do not have an available meaning that excludes the process of egg extraction and freezing and therefore erred in concluding that the respondent’s refusal of Ms Smith’s application pursuant to that provision was correct in law.
Mullins P (Brown and Bradley JJA agreeing) held that there was no error in the primary judge’s construction of s 22(2)(a) of the CSA. At [59]:
The ordinary meaning of the words in s 22(2) in the context of the balance of s 22 and the other provisions of the CSA and the purpose of s 22 reinforced by the express intention of the Legislature in the Explanatory Note to prohibit a prisoner whilst in custody being examined or treated for participating in assisted reproductive technology means that the submissions of the respondent and the Attorney-General should be accepted that there is no constructional choice for which s 48(1) of the HRA has any application. It is therefore unnecessary to undertake consideration of the scope of the rights in s 30 or s 37 of the HRA.
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