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[2016] QSC 3
Supreme Court of Queensland
2016-01-08
Burns J
Original judgment source is linked above.
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE - where the applicant applied for parole - where the Queensland Parole Board failed to determine the application until after the period prescribed by s 193(3) Corrective Services Act 2006 (Qld) had elapsed - whether the Queensland Parole Board failed to observe the procedures that were required by the Corrective Services Act 2006 (Qld) to be observed - whether any failure to do so constitutes a ground for judicial review pursuant to s 20(2) Judicial Review Act 1991 (Qld)
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY - where the applicant's parole application was refused on the ground that he posed an unacceptable risk to the community - where the Ministerial Guidelines made pursuant to s 227(1) Corrective Services Act 2006 (Qld) provided that, where parole is refused and reasons for that refusal are given, the Queensland Parole Board should give to the applicant and to Queensland Corrective Services an indication of the improvements or activities that would be of benefit to reduce the risks the applicant posed to the community - whether the Ministerial Guidelines imposed a duty on the Queensland Parole Board to decide whether such an indication should be given for the purposes of s 22(2) Judicial Review Act 1991 (Qld) - whether such an indication was in fact given
Acts Interpretation Act 1954 (Qld) s 14A, s 14B
Corrective Services and Other Legislation Amendment Act 2009 (Qld), s 25
Statutory Instruments Act 1992 (Qld), s 7
Allison v Chief Executive, Department of Corrective Services [2007] QCA 52
Calanca v Queensland Parole Board [2013] QSC 294
DAR v The Queensland Parole Board [2009] QSC 399
Kruck v Queensland Regional Parole Board [2008] QCA 399; [2009] 1 Qd R 463
Maycock v Queensland Parole Board [2013] QSC 302; [2015] 1 Qd R 408
McGrane v The Queensland State Parole Board [2012] QSC 350
Mihkman v Royal Victorian Aero Club [2012] VSC 42
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Wigginton v Queensland Parole Board & Anor [2010] QSC 59
[1] This decision concerns what, if any, rights or remedies are available to an applicant for parole where the body entrusted by statute with the responsibility for deciding such applications fails to do so within the time limited by that statute. It also engages a consideration of the status of the Ministerial Guidelines promulgated under the statute for the making of that decision.[1]
[2] The applicant, Mr Calanca, was sentenced on 11 February 1994 to life imprisonment for murder.[2] He was 26 years of age at the time of that offence and is now aged 48.
[3] Mr Calanca became eligible for parole on 1 February 2006 pursuant to s 181 of the Corrective Services Act 2006 (Qld). On number of subsequent occasions, he unsuccessfully made application to the respondent Board for parole. Of present relevance is the application that he made to the Board on 5 February 2014. It, too, was refused - on 22 May 2015 - 471 days after it had been received.
[4] Mr Calanca commenced the subject proceeding on 4 August 2015. By it, he sought a statutory order of review pursuant to s 20 of the Judicial Review Act 1991 (Qld) in relation to the 22 May decision. To that end, he advanced various grounds that, it was contended, supported the conclusion that he had been denied procedural fairness. He sought an order referring the matter back to the Board for further consideration.
[5] The review application came on for hearing before me on 18 November 2015. Mr Calanca was not legally represented. At the conclusion of the hearing, I directed that further submissions be supplied in writing with respect to the issues identified at the commencement of these reasons. To that end, I encouraged Mr Calanca to seek legal representation and, in due course, the Prisoners' Legal Service generously agreed to provide assistance.
[6] In accordance with the directions made on 18 November, supplementary submissions were provided on behalf of the Board on 1 December and, on 14 December, on behalf of Mr Calanca. For Mr Calanca, leave was sought to amend the application in accordance with a draft amended application that was provided with his submissions. The court then enquired whether the Board had any objection to the amendment of the application or wished to provide any submissions in reply. On 16 December, the solicitor for the Board advised that there was no objection to the application being amended in the terms proposed on behalf of Mr Calanca and, further, that the Board did not wish to make any submissions in reply.
[9] As already mentioned, Mr Calanca applied for parole on 5 February 2014. His application was first considered on 17 April 2014, but the Board deferred any decision until a psychiatric assessment could be obtained with respect to Mr Calanca. The Board notified Mr Calanca of this deferral by letter dated 1 May 2014, and he subsequently authorised the release of his medical records to the psychiatrist to facilitate the assessment. The psychiatrist, Dr Sundin, provided a report dated 21 July 2014, and this was furnished to the Board on 28 July 2014.
[10] The application came before the Board for a second time on 8 August 2014, but the material before me does not establish what was discussed. Presumably, Dr Sundin's report was considered but, in any event, the Board made no decision on Mr Calanca's application.
[11] On 5 November 2014, Mr Calanca wrote to the Board requesting an update and making some further submissions. The Board considered that correspondence on 28 November 2014 when the application came before it on a third occasion. The Board again resolved to defer any decision. This time, the reason for the deferral was so that a psychological assessment of Mr Calanca could be undertaken. By letter dated 3 December 2014, the Board notified him of this deferral and, on 10 December 2014, he authorised the release of his medical records to the psychologist. On 24 December 2014, the Board requested the psychologist, Dr Palk, to assess Mr Calanca, and report back to it. However, the Board did not receive Dr Palk's report until 10 March 2015.
[12] On 20 March 2015, the Board met for the fourth time to consider the application. The Board reviewed the contents of Dr Palk's report but resolved to defer any further consideration until 10 April 2015. On that occasion, the Board formed a preliminary view that Mr Calanca posed an unacceptable risk to the community if released on parole. The Board directed that correspondence be prepared to outline to Mr Calanca the reasons for the formation of that preliminary view and to provide him with an opportunity to make any further submissions he wished to make regarding that view or those reasons.
[13] On 17 April 2015, the Board met for the sixth time with respect to Mr Calanca's application. By then, the correspondence just mentioned had been prepared. The Board approved its terms, and it was forwarded to Mr Calanca on 28 April 2015.
"Given the circumstances of [his] case, the Board gave particular weight to consideration of the conditions associated with the monitoring of close relationships. These conditions would be critical should [he] be released to parole. To be effective, conditions such as the requirement to report personal and/or intimate relationships and to disclose his offending to someone with whom he enters into such a relationship would rely heavily on open and honest engagement with his supervising parole officer and a capacity for understanding the perspective of a person with whom he becomes close.
The Board has no evidence that [he] would be able to relate in such a way. Indeed the Board has evidence to the contrary and notes that the threads of consistency amongst the Psychiatric and Psychological reports which have been completed over the years appear to [include] narcissism, lack of empathy, a controlled presentation, and the reporting of a sanitised view of [his] offending."
[20] The Board noted that these features "appear not to have altered significantly over time" and concluded with the observation that it did "not consider it practical for [Mr Calanca] to be sufficiently limited in his interactions with women or his access to alcohol and illicit drugs, so as to render [his] risk of extreme dangerousness in those circumstances acceptable to the community."
[21] Finally, in accordance with its obligation to do so under s 193(5)(b) CSA, the Board determined that Mr Calanca could lodge a further application for parole after six months had elapsed from the date of its decision.
[22] I turn now to a consideration of the grounds advanced in the amended application. They are:
Because the Board failed to decide Mr Calanca's application for parole within the time specified by s 193(3) CSA:
(a) It failed to observe the procedures that were required by law in relation to the making of that decision (s 20(2)(b) JRA); or
(b) The decision was to be regarded as an improper exercise of the power conferred by the enactment under which it was purported to be made (s 20(2)(e) JRA) in the sense that it was so unreasonable that no reasonable person could so exercise the power (s 23(g) JRA);
The Board failed to make the decision required by s 227(1) CSA and paragraph 5.6 of the Ministerial Guidelines and thereby breached the duty it owed to make that decision (s 22(2) JRA).
Failing to making the parole decision within the time specified by the CSA
[23] Prior to 2009, s 193 CSA required the Board to consider and decide an application for parole within 120 days of its receipt. If the Board failed to decide an application within 120 days, s 193(5) provided that the Board was to be "taken to have decided to refuse to grant the application."[6]
[24] Section 193 was amended by s 25 of the Corrective Services and Other Legislation Amendment Act 2009 (Qld). New time periods for deciding parole applications were introduced.[7] Where the Board wishes to defer the making of a parole decision for the purpose of obtaining additional information, the application must be decided within 210 days but, where there is no deferral for that purpose, the application must be decided within 180 days: s 193(3) CSA.
[25] Here, there can of course be no denying that the Board took 471 days to decide Mr Calanca's application. It was made on 5 February 2014 and, because it was resolved to obtain additional information, the Board had 210 days within which to decide it: s 193(3)(a) CSA. That period expired on 3 September 2014.
[26] But what, if anything, flows from this failure to decide the application within the time stipulated by the provision? The CSA does not provide for any particular consequence, and it is not otherwise apparent whether s 193 is merely a procedural provision or one which goes to the jurisdiction to make a decision.[8] In such circumstances, recourse may be had to extrinsic material.[9]
[27] The Explanatory Notes for the Corrective Services and Other Legislation Amendment Bill 2009 contain the following explanation for the amendments proposed to s 193:
Section 193(5) currently provides that a parole board must decide an application for parole within 120 days. When a decision is not made before the expiry of 120 days it is deemed to be refused. Due to the increasing complexity of parole decisions this timeframe is no longer suitable. Furthermore, there are concerns that the deemed refusal element of this provision may frustrate the judicial review process by preventing the Supreme Court from considering an application after the 120 days has expired."[10]
[28] Elsewhere in the Explanatory Notes, this appears:
"The purpose of this provision is to increase the time available to parole boards to make a decision. Where this timeframe is exceeded the parole boards will continue to have the jurisdiction to decide the application. This is achieved by the repeal of s 193(5) which acted to exclude the parole boards' jurisdiction once 120 days had elapsed since the application was received. Section 193(5) gave rise to substantial inconvenience for parole boards and prisoners as once 120 days was reached neither the parole board, nor the Supreme Court, could consider the matter."[11]
[29] In the interpretation of s 193, the construction that will best achieve the purpose of the CSA is to be preferred to any other interpretation.[12] To that end, the court must endeavour to construe the provision so that it is consistent with the language and purpose of the other provisions of the CSA, and in a way that gives the words of the provision the meaning that the legislature is to be taken to have intended them to have.[13] When regard is had to those principles, the contents of the extrinsic material to which I have referred, the scheme of the CSA and the purposes expressed in s 3, I have little hesitation in concluding that a failure on the part of the Board to decide an application for parole within the time limited by s 193 CSA does not deprive the Board of jurisdiction to continue to determine the application.[14] Indeed, if I were to hold otherwise, an application for parole that was not determined within the time stipulated would, without more, relieve the Board of the obligation to decide it. The applicant would then be forced to reapply. The legislature cannot have intended such a result, and counsel for Mr Calanca did not submit otherwise.[15]
[30] Accepting, then, the jurisdiction of the Board to make the decision refusing Mr Calanca's application, the next issue is whether the failure on the part of the Board to do so within the prescribed statutory period gives rise to a ground of review.
[31] For Mr Calanca, it was submitted that it does. As already mentioned, the two alternatives advanced were that the procedures that were required by law to be observed in relation to the making of the decision were not observed (s 20(2)(b) JRA) and that the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made (s 20(2)(e) JRA). The Board, however, did not address this question in its supplementary written submissions and has declined the opportunity to do so by way of reply to the submissions made in this regard on behalf of Mr Calanca.
[32] It is nevertheless clear that the failure on the part of the Board to decide Mr Calanca's application within 210 days meant that the procedures that were required by law to be observed in relation to the making of the decision were not observed: s 20(2)(b) JRA. Although s 193 CSA does not go to jurisdiction, it is still an important procedural provision that the Board is not free to ignore. Mr Calanca has made out this ground of review of the decision refusing him parole. It is therefore unnecessary to consider the alternative ground advanced on his behalf.
Failing to make the decision required by s 227(1) CSA and par 5.6 of the Ministerial Guidelines
"(1) The Minister may make guidelines about the policy to be followed by the Queensland board when performing its functions.
(2) The Queensland board may, in consultation with the chief executive, make guidelines about -
(a) the policy to be followed by a regional board when -
(ii) conducting its business, including, for example, the procedure at its meetings; and
(b) the matters to be dealt with, and the information to be contained, in an annual report given by a regional board to the Queensland board under section 240.
(3) The guidelines made by the Queensland board must be consistent with the guidelines made by the Minister under subsection (1)."
[37] Pursuant to this provision, Ministerial Guidelines to the Queensland Parole Board were made on 23 August 2012.[17] Paragraph 5.6 was in these terms:
"When an application is refused and reasons for the refusal are given, the response should also give an indication to both the prisoner and Queensland Corrective Services of the improvements or activities that would be of benefit in reducing the risks posed to the community by the prisoner".[18]
[38] Mr Calanca contended that the Board failed to follow this paragraph of the Ministerial Guidelines and, in particular, gave no indication of the "improvements or activities that would be of benefit in reducing the risks posed to the community" if he were released on parole. It was submitted that this was a critical omission. He argued that he had "done every course that's been available for me to do"[19] and that, without some indication of the way or ways in which he might be able to satisfy the Board's concerns, he was left in a state of uncertainty. The point was also made that any future application for parole could hardly be expected to be a worthwhile exercise, let alone to meet with any success, if neither Mr Calanca nor Queensland Corrective Services was given any guidance by the Board.
[39] For the Board, it was submitted that it had complied with par 5.6. In support of that submission, reliance was placed on certain passages from the statement of reasons extracted above (at [19]). It was argued that the Board's observations that "any close relationships that [Mr Calanca] may establish on parole would need to be closely monitored and that his offending history would need to be disclosed to such persons" as well as the observation that such "circumstances required an open and honest engagement with his supervising parole officer" were a sufficient indication for the purposes of the guideline. It was also argued that the express mention in the statement of reasons of the so-called "threads of consistency amongst the psychiatric and psychological reports" - i.e., "narcissism, lack of empathy, a controlled presentation and the reporting of a sanitised view of the ... offending" - informed Mr Calanca of the "improvements that need to be made in order to reduce the risk that he poses to the community if released on parole."[20]
[40] I do not accept the Board's submissions in these respects.
[41] In the first place, the observations which are relied on by the Board were not made in any remedial sense; they went to explain why the imposition of conditions were not considered to be an acceptable way of reducing the risk to the community if Mr Calanca was released on parole. They otherwise offer no indication of the improvements or activities that might be of benefit in reducing that risk. Secondly, even if such an indication had been given to Mr Calanca, there is no evidence that it was also given to the Queensland Corrective Services when par 5.6 plainly contemplates the indication being given to both the prisoner and Queensland Corrective Services.
[50] I have found that the Board failed to follow the procedures that were required by s 193 CSA to be observed in relation to the making of the decision refusing parole and that the Board failed to decide whether to give an indication to Mr Calanca and Queensland Corrective Services within the meaning of par 5.6 of the Ministerial Guidelines. Section 30 JRA sets out the range of remedies that may be deployed when a ground of review is made out.
[51] As to the failure to follow the procedures that were required by s 193 CSA, it was submitted for Mr Calanca that a declaration should be made to "vindicate [his] rights where no other relief is available".[37] The Board submitted that no order should be made.[38] True it was, as submitted for Mr Calanca, that the delay on the part of the Board in deciding the application went largely unexplained. Even so, I am not persuaded that there would be any practical benefit, or utility, in the making of a declaration. In such circumstances, a declaration will not be made because to do so would be futile.[39]
[52] In contrast, however, is the position so far as relief is concerned to address the Board's failure to decide whether to give an indication to Mr Calanca and Queensland Corrective Services of the improvements or activities that would be of benefit in reducing the risks posed to the community by him within the meaning of par 5.6 of the Ministerial Guidelines. For the reasons earlier expressed, whether such an indication should be given is an important matter for the consideration, and decision, of the Board. Pursuant to s 30(3)(a) JRA, the Board will be directed to decide whether to give such an indication.
[53] Mr Calanca has applied for costs in the event that his application succeeds. Section 49 JRA empowers the court to entertain such an application, and there is no reason why costs should not be ordered in such a way as to follow the event.
[54] The Board will be ordered to pay Mr Calanca's costs of and incidental to this application to be calculated on the standard basis.
[1] Minister for Police and Community Safety, Ministerial Guidelines to the Queensland Parole Board (at 23 August 2012).
[2] The remarks made by the learned sentencing judge, Dowsett J, were in evidence: Affidavit of Angela Balzer, Exhibit AB-64. The circumstances of the offence were summarised by Margaret Wilson J in Calanca v Queensland Parole Board [2013] QSC 294 at 2 - 3, [5] - [7].
[3] Although this "failure" was referred to by Mr Calanca in the submissions he filed in support of his application as originally constituted, it was not said to give rise to a separate matter for the decision of the Board or, at least, not in the sense now conveyed in the proposed amended application.
[4] Affidavit of Angela Balzer, Exhibit AB-14.
[5] Affidavit of Angela Balzer, Exhibit AB-16.
[6] The terms of s 193, prior to amendment, are set out in the judgment of Keane JA in Kruck v Queensland Regional Parole Board [2008] QCA 399 at 4 - 5 [15]; [2008] QCA 399; [2009] 1 Qd R 463 at 471.
[7] The full text of s 193, in its current form, is as follows:
"(1) A parole board required to consider a prisoner's application for a parole order must decide -
(2) However, subject to subsection (3), the parole board may defer making a decision until it obtains any additional information it considers necessary to make the decision.
(3) The parole board must decide the application within the following period after receiving the application -
(a) for a decision deferred under subsection (2) - 210 days;
(4) The parole board may grant the application even though a parole order for the same period of imprisonment was previously cancelled.
(5) If the parole board refuses to grant the application, the board must -
(a) give the prisoner written reasons for the refusal; and
(b) if the application is for a parole order other than an exceptional circumstances parole order - decide a period of time, of not more than 6 months after the refusal, within which a further application for a parole order (other than an exceptional circumstances parole order) by the prisoner must not be made without the board's consent."
[8] See, eg, Mihkman v Royal Victorian Aero Club [2012] VSC 42 at 14 [39].
[9] Acts Interpretation Act 1954 (Qld), s 14B.
[10] Explanatory Notes, Corrective Services and Other Legislation Amendment Bill 2009 (Qld), 3.
[12] Acts Interpretation Act 1954 (Qld), s 14A.
[13] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69], [78]; [1998] HCA 28; (1998) 194 CLR 355 at 381 [69], 384 [78].
[14] The same conclusion as to the proper construction of s 193 CSA was reached by Boddice J in McGrane v The Queensland State Parole Board [2012] QSC 350.
[15] Applicant's Outline of Argument dated 14 December 2015, [7].
[16] Allison v Chief Executive, Department of Corrective Services [2007] QCA 52, [3], [22].
[17] Affidavit of Angela Balzer, Exhibit AB-17. These Guidelines have since been superseded by the Ministerial Guidelines made pursuant to s 227(1) CSA on 8 September 2015.
[18] In the Ministerial Guidelines made on 8 September 2015 this paragraph has been renumbered as par 5.8.
[19] Transcript of Proceedings, Calanca v The Queensland Parole Board (Supreme Court of Queensland, 7604/15, Burns J, 18 November 2015) 1-39.
[20] Outline of Submissions for the Respondent dated 11 November 2015, [51] - [52]. See also Transcript of Proceedings, Calanca v The Queensland Parole Board (Supreme Court of Queensland, 7604/15, Burns J, 18 November 2015) 1-29 - 1-31.
[21] Statutory Instruments Act 1992 (Qld), s 7.
[23] See also Maycock v Queensland Parole Board [2013] QSC 302 at 19 - 20 [83]; [2015] 1 Qd R 408 at 424 [83] per Jackson J.
[25] Wigginton v Queensland Parole Board & Anor [2010] QSC 59 at 8 [29] per Martin J. See also par 1.1 of the Ministerial Guidelines which requires the Board to exercise "care ... to ensure that decisions are made with regard to the merits of the particular prisoner's case".
[26] DAR v The Queensland Parole Board [2009] QSC 399 at 17 [35] per Atkinson J.
[27] Supplementary Outline of Submissions for the Respondent dated 1 December 2015, [26].
[30] By s 241 CSA, which confers power on the Board to "do all things necessary or convenient to be done for, or in connection with, the performance of its functions".
[31] Applicant's Outline of Argument dated 14 December 2015, [27], [38].
[32] Such as par 3.3(a), (b) and (d) which prescribe what information "must not be" disclosed or released to an applicant for parole.
[33] Such as par 4.1 which provides that the Board "may" grant leave for an applicant to appear before it.
[34] It will only apply where parole is refused and reasons for that refusal are given.
[35] Supplementary Outline of Submissions for the Respondent dated 1 December 2015, [28].
[36] Affidavit of Angela Balzer, Exhibit AB-17.
[37] Applicant's Outline of Argument dated 14 December 2015, [23].
[38] Supplementary Outline of Submissions for the Respondent dated 1 December 2015, [34].
[39] As discussed by Keane JA in Kruck v Queensland Regional Parole Board [2008] QCA 399 at 7 - 8 [28] - [30]; [2008] QCA 399; [2009] 1 Qd R 463 at 474 - 475 and Martin J in Wigginton v Queensland Parole Board & Anor [2010] QSC 59 at 19 - 20 [71] - [74].
Calanca
The Queensland Parole Board [2016] QSC 3
(1998) 194 CLR 355
[7] By the amended application, Mr Calanca continues to challenge the decision refusing parole, but on the sole ground that the Board failed to make its decision within the time specified by s 193(3) CSA. Thus, it was contended, the decision refusing parole is reviewable on the basis that the procedures that were required by law to be observed in relation to the making of the decision were not observed (s 20(2)(b) JRA) or, alternatively, on the basis that the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made (s 20(2)(e) JRA) in the sense that the decision was so unreasonable that no reasonable person could so exercise the power (s 23(g) JRA). The amended application also seeks to lay challenge to what is contended to have been a failure on the part of the Board to make a decision required by s 227(1) CSA and par 5.6 of the Ministerial Guidelines. It is claimed that this failure is reviewable on the basis that the Board had a duty to make that decision (s 22(2) JRA). Mr Calanca then seeks relief in the form of a declaration that the decision refusing parole was made in contravention of s 193(3) CSA and an order directing the Board to make the decision which, it was contended, was required by s 227(1) CSA and par 5.6 of the Ministerial Guidelines.
[8] Under s 27 JRA, an applicant for a statutory order of review is not limited to the grounds set out in the application. But, here, the amended application goes much further than the addition or substitution of new grounds; it also seeks to take aim at what is said to have been a failure on the part of the Board to make a decision on a matter that was entirely separate to the decision which was initially challenged, that is, the decision that it is now submitted to have been required by s 227(1) CSA and par 5.6 of the Ministerial Guidelines.[3] Nevertheless, in circumstances where the Board makes no objection, leave to amend the application will be granted to Mr Calanca.
[14] On 6 May 2015, the Board received written submissions from him in response to the 28 April correspondence.
[15] On 22 May 2015, the Board met for the seventh and final time with respect to Mr Calanca's application. After considering the further submissions made by him, the Board decided not to grant parole. Mr Calanca was advised of this outcome by letter from the Board dated 26 May 2015.[4]
[16] On 3 June 2015, Mr Calanca requested a statement of reasons, and this was provided under the hand of the President of the Board on 25 June 2015.[5]
[17] The statement of reasons details the Board's consideration of the circumstances of Mr Calanca's offending, the contents of the reports of Dr Sundin and Dr Palk, his behaviour in custody and his participation in rehabilitative programs.
[18] The decision of the Board refusing parole, and the reasons for that decision, are unremarkable. Although the Board took account of Mr Calanca's "positive engagement in courses, programs and activities during the period of his incarceration" and had regard to his "consistent satisfactory institutional conduct and ... low security classification", it considered that the risk he posed to the community if released on parole would be unacceptably high. In this regard, the Board found the following factors to be compelling:
[19] The Board also considered whether the risk to the community could be managed by the imposition of parole conditions but, after having regard to the psychiatric and psychological evidence, concluded that Mr Calanca would be unable to comply with any such conditions. The Board observed that:
[33] For completeness, I add two brief observations.
[34] First, because s 193 CSA fixes a period within which the Board is required to make its decision, any failure on the part of the Board to do so will not give rise to a ground of review under s 22 JRA. Nor will s 21 JRA assist because that provision applies to proposed decisions and, here, the Board eventually decided the application. In the result, the only possible ground of review with respect to the Board's failure to decide Mr Calanca's application within time arose under s 20 JRA.
[35] Secondly, in order to decide whether the Board failed to observe the procedures that were required by law to be observed in relation to the making of the decision, it was not necessary to examine why the Board took so long to decide the application. The Board either followed the required procedures or it did not. However, the delay in doing so, together with any reasons for it, can sometimes have relevance to the question of relief.
[42] I therefore find that, having refused parole and given reasons for that refusal, the Board did not give an indication within the meaning of par 5.6 of the Ministerial Guidelines. It is necessary, then, to consider the status of those guidelines.
[43] The Ministerial Guidelines constitute a statutory instrument[21] and, if a decision is required to be made under them, that decision will be capable of being judicially reviewed.[22] It is clear from the terms of s 227(1) CSA that they are guidelines about policy and that they must be followed by the Board when performing its functions.[23] Those functions include deciding applications for parole.[24] Whilst the guidelines are not to be "so rigidly enforced as to deny a true and honest assessment of the merits" of a particular application,[25] and provided they are consistent with the functions to be performed by the Board under the CSA,[26] they must be followed by the Board.
[44] It was accepted on behalf of the Board that par 5.6 of the Ministerial Guidelines "has utility in terms of the purposes of the CSA".[27] That must be so. Although the Board's primary functions under the CSA are to decide parole applications and to determine whether parole orders should be amended, suspended or cancelled,[28] one of the objects of the CSA is "community safety and crime prevention through ... rehabilitation of offenders."[29] Thus, the giving of an indication of the "improvements or activities that would be of benefit in reducing the risks posed to the community" if the prisoner is released on parole will in many cases serve to benefit both the prisoner and Queensland Corrective Services and, thereby, advance the rehabilitative aims of the CSA. The giving of such an indication would not be inconsistent with the functions to be performed by the Board under the CSA and would certainly be within power.[30]
[45] For Mr Calanca, though, it was contended that the "combined effect" of s 227(1) CSA and par 5.6 of the Ministerial Guidelines is that the Board "has a duty to give the indication described" in that paragraph.[31] I do not entirely agree. The terms of some of the guidelines may be thought to have a mandatory effect,[32] but others are expressed in discretionary language.[33] Importantly, though, the expression in par 5.6 that the Board "should ... give an indication" must be read with par 1.1 which requires the Board to exercise "care ... to ensure that decisions are made with regard to the merits of the particular prisoner's case." The merits of a particular case may or may not mean that an indication should be given. To the point, it is for the Board to decide whether an indication should be given and, if so, in what terms.
[46] In my view, when it applies,[34] the purpose of par 5.6 is to guide the Board to a consideration of, and decision on, whether an indication should be given. This guideline must be followed. Thus, in any case where the Board has refused parole and reasons for that refusal are given, it is obliged to consider and decide whether to give an indication of the "improvements or activities that would be of benefit in reducing the risks posed to the community" if the prisoner is released on parole. As such, the "combined effect" of s 227(1) CSA and par 5.6 of the Ministerial Guidelines" is not that the Board has a duty to give an indication; it has a duty to decide whether to do so.
[47] Furthermore, the decision of the Board whether to give such an indication will be a decision that is quite separate from its decision on the application. That is because par 5.6 only comes into focus after a decision has been made by the Board refusing parole and where reasons for that refusal are given. In this, a decision under par 5.6 is not unlike the determination required of the Board by 193(5)(b) CSA where, after refusing a parole application, the Board must decide a period of time, of not more than six months after the refusal, within which a further application must not be made without the Board's consent.
[48] The question then becomes whether the Board followed par 5.6. For the Board, it was submitted that "it took the Guidelines into account" and "was not bound to give guidance" to Mr Calanca in the circumstances of his particular case.[35] Although I accept that the Board was not obliged to give an indication to Mr Calanca and Queensland Corrective Services within the meaning of par 5.6, I am not satisfied on the evidence before me that the Board considered whether that should be done. I am certainly not persuaded that it reached any decision on that point. All that can be gleaned from the affidavit material is the listing, in the statement of reasons, of the Ministerial Guidelines in the index of material on which the Board's "findings of fact were based".[36] No finding was made with respect to the desirability or otherwise of giving an indication under par 5.6, let alone a decision to that effect. Had the Board considered the giving of an indication and made a decision on that question, I would have expected to see some record to that effect in the statement of reasons. There is nothing, and nor could counsel for the Board point to anything apart from the passages from the statement of reasons extracted earlier (at [19]) which I have, in any event, dismissed as giving any indication within the meaning of par 5.6. By reason of these matters, I find that the Board did not decide whether to give an indication to Mr Calanca and Queensland Corrective Services within the meaning of par 5.6 of the Ministerial Guidelines.
[49] In circumstances where, having refused parole and given reasons for that refusal, the Board had a duty to decide whether to give an indication within the meaning of par 5.6 of the Ministerial Guidelines but no decision was made, a ground of review under s 22(2) JRA is made out.