Statutory framework
23 The statutory context is important for informing the administrative decision making principles and processes applicable to the decision under review: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [30]; Khazaal v Attorney-General (Cth) [2020] FCA 448 (Khazaal) at [53]; Stephens v Attorney General (Cth) [2021] FCA 204 at [21] (Stephens).
24 The statutory scheme for parole of persons serving sentences of imprisonment for Commonwealth offences is contained in part IB div 5 sub-div B of the Crimes Act.
25 There is no entitlement to parole for federal offenders. The power to release a prisoner on parole once their non-parole period has expired is a matter for the executive: Minogue v Victoria [2019] HCA 31; (2019) 268 CLR 1 at [17].
26 The operative power to make, or refuse to make, a parole order lies with the Attorney-General, and is contained in s 19AL of the Crimes Act. The Attorney-General must make a decision before the end of the non-parole period fixed for one or more of the federal sentences imposed on a person: s 19AL(1). Section 19ALA sets out a non-exhaustive list of matters that may be considered by the Attorney-General in making a decision to grant or refuse parole.
27 As to the process of considering the grant of parole, in Lodhi v Attorney-General (Cth) [2020] FCA 1383 (Lodhi) Bromwich J observed at [6(e)]:
[T]he Crimes Act contains no process for how consideration of release on parole is to be undertaken. It is essentially a matter for the Attorney-General to determine a procedure that is reasonable and will avoid practical injustice or unfairness having regard to the circumstances of the particular case. What is required may vary having regard to what has already occurred and what is said or done during the process …
28 To similar effect, In Khazaal, Wigney J observed:
... [U]nlike the statutory schemes for the grant of parole in many of the States and Territories, there is no prescribed procedure that the Attorney must follow in considering and determining whether to make a parole order. There is certainly no requirement for a hearing, no express requirement for the Attorney to notify the person affected by the decision concerning parole of any particular information, and no express requirement that the person be given the opportunity to make submissions. There is no doubt, however, that the Attorney must afford procedural fairness to the person affected by the parole decision. As the statutory scheme does not prescribe any procedure, it is entirely a matter for the Attorney to determine a procedure that will afford procedural fairness to the person and avoid any unfairness or injustice.
29 The purposes of parole are described in s 19AKA as: (a) the protection of the community; (b) the rehabilitation of the offender; and (c) the reintegration of the offender into the community. This provision was inserted into the Crimes Act by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) sch 7 pt 6, which commenced operation from 27 November 2015. The Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (Cth) stated at [446]:
Section 19AKA establishes that the purposes of parole are the protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community. The purpose of this item is to provide guidance in ensuring that parole conditions are consistent with the purposes of parole, for use in making decisions on release on parole, and when considering breaches of parole conditions.
30 The effect of a parole order is that the person is taken to be still under sentence and not to have served the part of any sentence that remained to be served at the beginning of the parole period, until: the parole period ends without the parole order being revoked; or the person is otherwise discharged from imprisonment: Crimes Act, s 19APB(1). That is, an offender is on conditional liberty while still serving their sentence, which is subject to their compliance with the specified conditions on which they were granted parole.
31 Section 19AU of the Crimes Act, the power to revoke parole, is in the following terms:
19AU Attorney‑General may revoke parole order or licence
(1) The Attorney‑General may, by instrument in writing, revoke a parole order or licence at any time before the end of the parole period or licence period:
(a) if the offender has, during that period, failed to comply with a condition of the order or licence; or
(b) if there are reasonable grounds for suspecting that the offender has, during that period, so failed to comply;
and the instrument of revocation must specify the condition that was breached or is suspected of having been breached.
(2) Before revoking a parole order or a licence, the Attorney‑General must, subject to subsection (3), by notice in the prescribed form, notify the person to whom the order or licence relates of:
(a) the condition of the order or licence alleged to have been breached; and
(b) the fact that the Attorney‑General proposes to revoke the order or licence at the end of 14 days after the day the notice is issued unless the person, within that period, gives the Attorney‑General written reasons why the order or licence should not be revoked and those reasons are accepted by the Attorney‑General.
(3) Subsection (2) does not apply where:
(a) the person's whereabouts are and remain, after reasonable inquiries on behalf of the Attorney‑General, unknown to the Attorney‑General; or
(b) there are circumstances of urgency that, in the opinion of the Attorney‑General, require the parole order or licence to be revoked without notice being given to the person; or
(ba) in the opinion of the Attorney‑General it is necessary to revoke the parole order or licence without giving notice to the person in the interests of ensuring the safety and protection of the community or of another person; or
(c) the person has left Australia; or
(d) in the opinion of the Attorney‑General it is necessary, in the interests of the administration of justice, to revoke the parole order or licence without giving notice to the person.
32 Where notification of the revocation is not given, s 19AX applies:
19AX Where person on parole or licence not notified of revocation
(1) Where a prescribed authority before whom a person is brought under section 19AV because of an order revoking a parole order or licence is satisfied that the person so brought is the person named in that revocation order but is not satisfied that the person was notified by the Attorney‑General of the proposal to make that revocation order, the prescribed authority must:
(a) immediately notify the Attorney‑General that the person has been brought before that prescribed authority; and
(b) order that the person be detained in custody until the Attorney‑General orders that the revocation order be rescinded or until the completion of proceedings under subsection 19AW(1) as applied by subsection (6) of this section.
(2) Where the Attorney‑General is notified that a person has been brought before a particular prescribed authority, the Attorney‑General must, as soon as practicable, notify the person, in writing, of the conditions of the parole order or licence alleged to have been breached and request that the person give him or her, within 14 days of notification of those reasons, a written submission stating why that parole order or licence should not have been revoked.
(3) If, within 14 days of a person receiving notification under subsection (2), the person fails to make a written submission to the Attorney‑General, the Attorney‑General must, as soon as practicable after the end of that period, notify the prescribed authority of a decision not to rescind the revocation order.
(4) If, within 14 days of notification under subsection (2), the person makes a written submission to the Attorney‑General, the Attorney‑General must decide, as soon as practicable after receiving that submission, and on the basis of that submission and any other material the Attorney‑General considers to be relevant, whether or not to rescind the revocation order and must, as soon as practicable after so deciding, inform the prescribed authority and the person, in writing, of the decision.
(5) If the prescribed authority is notified of a decision to rescind the revocation order, the prescribed authority must immediately order the person to be released from prison.
(6) If the prescribed authority is notified of a decision not to rescind the revocation order made in respect of the person, subsection 19AW(1) applies to the person so as to authorise the issue of a warrant as if the prescribed authority had been satisfied of the matters referred to in paragraphs 19AW(1)(a), (b) and (c) and subsections 19AW(3), (4), (5) and (6) apply to that person according to their terms.
33 Given the terms of s 19AX(6) it is appropriate also to refer to s 19AW, which is as follows:
19AW Where person on parole or licence notified of revocation
(1) Where a prescribed authority before whom a person is brought under section 19AV because of an order revoking a parole order or licence is satisfied:
(a) that the person is the person named in that revocation order; and
(b) that the person was notified by the Attorney‑General of the proposal to make the revocation order; and
(c) that the revocation order is still in force;
the prescribed authority must issue a warrant, in the prescribed form:
(d) authorising any constable to take the person to a specified prison in the State or Territory in which the person was arrested; and
(e) directing that the person be detained in prison in that State or Territory to undergo imprisonment for the unserved part of the sentence, or of each sentence, of imprisonment (in this section called the outstanding sentence or sentences) that the person was serving or had yet to serve at the time of his or her release; and
(f) subject to subsections (3) and (3A), fixing a non‑parole period in respect of the outstanding sentence or sentences.
(2) If the prescribed authority cannot complete the hearing under subsection (1) immediately, the prescribed authority must issue a warrant for the remand of the person in custody pending completion of the hearing.
(3) The prescribed authority is not required to fix a non‑parole period under paragraph (1)(f) if:
(a) the prescribed authority considers it inappropriate to do so because of the serious nature of the breach of the conditions of the order or licence that led to its revocation; or
(b) the unserved part of the outstanding sentence or sentences is, or aggregates, 3 months or less.
(3A) Before fixing a non‑parole period under paragraph (1)(f) in respect of the outstanding sentence or sentences, the prescribed authority must have regard to the period of time spent by the person on parole or licence before the parole order or licence was revoked under subsection 19AU(1).
(4) Where a prescribed authority issues a warrant, the prescribed authority must specify in the warrant the particulars of the unserved part of each outstanding sentence and, if a non‑parole period is fixed, particulars of that period.
(5) A non‑parole period fixed under this section has effect as if it had been fixed by a court in respect of the outstanding sentence or sentences and section 19AL applies in relation to that non‑parole period according to its terms.
(6) Where a person brought before a prescribed authority under section 19AV is dealt with in accordance with this section, the unserved part of any outstanding sentence or sentences that the person was serving or had yet to serve at the time of his or her release, is to be reduced by any period of remand under subsection (2).
34 It is necessary to consider the provisions in respect to revocation in the context of the statutory scheme in which they appear.
35 As apparent from those provisions, the discretion to revoke parole arises in circumstances where the federal offender has failed to comply with a condition of parole or where "there are reasonable grounds for suspecting the offender has, during that period, so failed to comply": s 19AU(1). Revocation can occur with or without notification to the offender. The latter can only occur in certain circumstances, which include: circumstances of urgency that, in the opinion of the Attorney-General, require the parole order to be revoked without notice; and when in the opinion of the Attorney-General it is necessary to revoke the parole order without giving notice to the person in the interests of ensuring the safety and protection of the community: s 19AU(3). The terms of the provision therefore expressly exclude the duty to afford procedural fairness in advance of revocation in the circumstances identified. The text of the provision also reflects that the circumstances in which parole can be revoked without notification, apart from where the offender's whereabouts are unknown or where they have left the jurisdiction, are circumstances of urgency.
36 Section 19AU(3)(ba), which was relied on in this case, was introduced in 2020. The Explanatory Memorandum, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2020 (Cth), stated at [6]-[9] of Schedule 1:
Section 19AU of the Crimes Act outlines when the Attorney-General can revoke a parole order or licence and the procedures that must be followed when doing so. Currently, unless certain circumstances apply, before revoking a parole order or licence, a person must be notified of the specific conditions of the order or licence that they are alleged to have breached and given 14 days to respond.
This item amends section 19AU(3) to provide that a federal offender's parole or licence may be revoked without notice if doing so is necessary to ensure the safety and protection of the community or of another person. This provides an option to revoke a person's parole or licence in circumstances that require a response before the current 14 day timeframe, but would not otherwise meet the current threshold of urgency (which implies a need for immediate action).
Including this in the current list of exceptions will ensure that if the Attorney-General or their delegate becomes aware that a person who has been released into the community on parole or licence poses a threat to the safety of the community or to another person, that person can be taken into custody immediately.
Importantly, the person is still afforded procedural fairness as they retain the opportunity under section 19AX of the Crimes Act to make a written submission to the Attorney-General as to why the parole order should not be revoked. However, during this time the person will be remanded in custody, where they cannot cause harm. If, after considering the person's submission, the Attorney-General decides to rescind the revocation order, he or she would be immediately released from prison.
37 Procedural fairness is accommodated after the decision is made in these circumstances by s 19AX, with the federal offender retaining the opportunity to make submissions after notice of revocation.
38 Section 19AX sets out a two stage process. Following the federal offender being brought before a prescribed authority, the Attorney-General (or delegate) must, as soon as practicable: notify the person in writing of the conditions of the parole order alleged to have been breached; and request the person give the Attorney-General (or delegate), within 14 days of notification, a written submission stating why that parole order should not have been revoked. The submission could address both the issue of the precondition to revocation and/or matters relevant to the exercise of the discretion, the precondition having been established. The provision then specifies the next step, which is dependent on the existence and content of that submission, and the consequences thereof.
39 If no submission is made, the Attorney-General must notify the prescribed authority as soon as practicable, of the decision not to rescind: s 19AX(3). If a submission is made, within 14 days of it being received, the Attorney-General must decide as soon as practicable, on the basis of that submission and any other material the Attorney-General considers to be relevant, whether or not to rescind the revocation. If the decision is to rescind, the prescribed authority and federal offender must be informed, and on being informed the federal offender must be immediately released: ss 19AX(4)-(5). If, however, the decision is not to revoke, the matter proceeds according to s 19AW. That is also the situation where a federal offender does not make written submissions: s 19AX(6).
40 The only notice requirement in relation to revocation is of the condition alleged to have been breached and of the opportunity to make submissions: ss 19AU(2) and 19AX(2). This approach is to be contrasted to the requirement imposed on the Attorney-General if they refuse to grant parole, which requires, inter alia, the provision to the federal offender of a statement of reasons: s 19AL(2)(a)(ii). I note, as the applicant submitted, that the latter part of s 19AX(2) refers to "those reasons", which purports to refer back to an earlier reference to reasons. However, there is no earlier reference in that provision to any requirement to give reasons. Rather, it is confined to notification of the conditions breached. I also note that the phrase "those reasons" does not appear in s 19AU(2), which applies when notice is given of the intention to revoke. There would be no basis to differentiate between the two circumstances as to the extent of the notification requirement.
41 That said, as accepted by the first respondent, it can be inferred that the process requires the Attorney-General (or delegate) "to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made": Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591-592 (Alphaone).
42 In Alphaone at 591-592 the Full Court said:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. ...
43 Given that inadequacy of reasons is not a ground of review, it is not necessary in the circumstances of this case to consider, beyond that, the particular information the offender should be given. That said, it is appropriate to note that the applicant relied in his submissions on a passage from Khazaal at [62], contending what is required is the applicant be provided with "specific adverse information that is credible, relevant and significant". However, that passage was said in respect to a refusal to grant parole, where the statutory scheme expressly refers to the provision of a statement of reasons. Further, in contrast to the grant of parole, the basis on which parole is revoked is dependent on satisfaction of a statutory precondition (which includes "reasonable grounds for suspecting" a breach of a condition). I also note that the applicant in advancing the submission did not refer to the decisions, also in the grant of parole context, which are to the contrary, nor, that the approach he contends for was said to only apply in "some cases": see Westlake v Attorney-General [2017] FCA 1058 at [40] and Duxerty v Minister for Justice and Customs [2002] FCA 1518; (2002) 136 A Crim R 373 at [22], as summarised by Wigney J at [60]-[62] of Khazaal. Also see, in respect to reasons in respect to refusal of parole: Lodhi at [84]-[96]; Stephens at [29]-[34].
44 If the decision is to revoke parole, or the decision of revocation made without notice is not rescinded, s 19AW applies. Section 19AW(3A) requires that, before the prescribed authority fixes a non-parole period, it must have regard to the period of time spent by the federal offender on parole or licence, before the parole order or licence was revoked. Moreover, the prescribed authority retains discretion when fixing a new non-parole period under s 19AW: see, for example, Cant v Commonwealth Director of Public Prosecutions [2014] QSC 62 at [25]; Dobie v Commonwealth [2013] FCA 1224; (2013) 216 FCR 300 at [40] (which includes fixing a non-parole period at zero months, which would result in immediate release of the offender).
45 Pausing there. A consideration of the provisions which govern the assessment of whether to grant parole are, in some respects, in different terms to those applicable to the revocation of parole. This reflects the different nature of the decisions and the circumstances in which they may arise. For example, there is no identification of factors which may be considered in the revocation decision akin to s 19ALA (which applies to the grant of parole). The consideration of the grant of parole occurs in each case, with the federal offender in a position to make submissions and provide material for consideration by the Attorney-General in support of their case for conditional release before a decision is made. This occurs while the federal offender is still serving their sentence in prison. By contrast, the decision as to whether parole is to be revoked occurs while the federal offender is on conditional release in the community, although still serving their sentence. Their right to remain in the community is dependent on compliance with the conditions imposed by the Attorney-General. The decision may, as recognised in s 19AU, be considered in circumstances where there is some urgency, and in circumstances where community safety may be at issue. It may, in some circumstances, be taken without notification to the federal offender because of those features. Given these differences, one cannot simply transpose, without attention being given to the relevant statutory provisions, the assessment process or the procedural requirements that apply to the consideration of whether to grant parole, to the decision whether to revoke parole.
46 Against that background, given the grounds of this application, it is appropriate to consider s 19AU(1)(b) (the relevant precondition to the Revocation Decision) in more detail.
47 It is important to focus on the text of s 19AU(1)(b), which states that "reasonable grounds for suspecting" the federal offender has failed to comply with a condition of parole must exist. That statutory formula of "reasonable grounds for suspecting", is widely used: see, for example, McKinnon v Secretary Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 at [9]-[10]; Prior v Mole [2017] HCA 10; (2017) 261 CLR 265 at [23] (Prior v Mole). What is required to satisfy a precondition expressed in that way is set out in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 112 ff (George v Rockett).
48 In George v Rockett, the Court stated that when a statute prescribes that there must be "reasonable grounds" for a state of mind, including suspicion, it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person: at 112. It is an objective test. George v Rockett concerned Queensland legislation empowering the issue of a search warrant if there were reasonable grounds for suspecting that there was incriminating evidence in a house. The High Court considered the meaning of reasonable grounds for suspecting and said, as to suspicion, at 115-116:
Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam, "in its ordinary meaning is a state of conjecture of surmise where proof is lacking: 'I suspect but I cannot prove.'" The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, "was unable to pay [its] debts as they became due" as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (65):
"A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors."
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
49 During oral submissions the applicant accepted that the relevant standard for reasonable grounds for suspecting is that set out in George v Rockett, and the written submission which sought to impose a different and higher standard was withdrawn.