Gough v Southern Queensland Regional Parole Board

The applicant was said to have been "placed on a priority waitlist for program allocation in view of his proximity to his release dates".

[15] The Board's statement of reasons for its final decision of 9 July 2008 included a statement that the Board "was not convinced that you have sufficiently responded to its major concerns, which are the triggers that led to your offending". The reasons continued:

"Nor have you in place sufficient protective factors in relation to this type of offending. These remain largely unaddressed. The Board also considered on the evidence before it, that the identified intervention needs remained largely unaddressed.

The Board recommends that you seriously re-visit your relapse prevention plan so that you can that you [sic] have a realistic relapse prevention plan in place. The Board may then have confidence that when you come across any of your risk factors or triggers you may act appropriately and so minimise your risk of re-offending in the community.

Although not insisting that you do so, the Board recommends that you participate in the Getting Started: Preparatory Program and the New Directions: Medium Intensity Sexual offending Program. The Board understands the Getting Started: Preparatory Program is designed to assist offenders in overcoming resistance and other responsivity barriers to treatment; reduce anxiety and fears to enable them to learn and practice behaviours required in intensive group therapy; encourage the development of realistic expectation about themselves and others; and motivate them to participate in further group intervention. This program is generally between 6-8 weeks in duration and consists of 2 x 2.5 hour sessions per week.

The Board believes your participation in the recommended programs may assist you in addressing your apparent lack of insight into your offending and its effects upon your victim and the community. Your participation may also assist in developing a realistic relapse prevention plan indicating that you know and appreciate your risk factors and that you have appropriate strategies in place to assist in avoiding further offending.

Despite offering you advice and outlining the Board's concerns in its letter dated 4 June 2008 you chose not to respond. Therefore there was no further evidence or submissions before the Board and it decided on 9 July 2008 that its concerns remained unaddressed.

The Board considered that its primary obligation remains the protection of the community and, despite taking all matters in favour of granting your application into account; it considered you may not be an acceptable risk to the community if released to parole at this time and refused your application."

[16] The applicant is self-represented. His application for a Statutory Order of Review contains numerous grounds under the Judicial Review Act 1991 (JRA), including breach of natural justice, failure to observe procedures required by legislation, lack of jurisdiction and a variety of grounds upon which it is contended that there was an improper exercise of power. These include a ground that the decision involved the exercise of a discretionary power in accordance with a rule or policy without regards to the merits of the case. Another is that the exercise of power "was so unreasonable that no reasonable person could so exercise such power".

[17] The applicant's written submissions provided pursuant to court directions were structured under 16 headings that broadly reflect the application for judicial review. The Board's written submissions responded under each of these headings. At the hearing, the applicant supplemented his written submissions with a further outline of submissions.[3] This document consists of 50 pages of discursive submissions, and contains some grounds that are not included in the application for judicial review. The application for judicial review had indicated that the applicant reserved his right to add further grounds. Mr Horneman-Wren of Counsel, who appeared for the Board, did not take any point in relation to the late emergence of these additional grounds. The applicant's written submissions merge, and, to a large extent, confuse:

(a) arguments about the merits of the decision to refuse the application for parole;

(b) the applicant's grievances about the decision and the process of decision-making; and

[18] To determine the application for judicial review it is necessary to distil from the applicant's discursive written submissions matters that invoke arguable grounds for judicial review. The applicant's written submissions argue practically every ground for judicial review contained in the JRA. Some parts of the written submissions develop separate submissions. For instance, Ground A, which is headed "Breach of Rules of Natural Justice", contains four separate submissions relating to:

(a) the fact that the application for parole was received by the Sentence Management Centre at WCC, and not the Board to which the application was directed;

(b) the alleged biased opinion of "the panel of WCC" in its recommendation to the Board: the involvement of the panel being said to be inconsistent with the Act and the need for the decision to be made by an impartial and unbiased decision-maker;

(c) disregard of the sentencing Judge's remarks and reliance on further information that was used to support a determination of unacceptable risk; and

(d) the fact that the applicant had not seen a copy of the STATIC-99 or the STABLE-2000 documents, that the material given to him only reported the conclusions of those assessments and the contention that the applicant had no meaningful opportunity to respond to those conclusions.

[19] In order to properly determine the numerous grounds of judicial review that are relied upon by the applicant, it is appropriate to first identify his essential grievances, which are expressed in various ways in the application for judicial review and his submissions. This will permit a clearer identification of the legal and factual basis of his case for judicial review, and the rejection of arguments that, upon analysis, seek merit review, rather than judicial review. The JRA does not make the Supreme Court a merit review tribunal.[4]

[20] The applicant's grievances may be summarised as follows:-

1. The decision was effectively made by another party, namely the panel of QCS employees who produced the PBAR.

2. The decision was prejudiced by the PBAR produced by QCS employees, with the result that the decision was not made by an impartial and unbiased person.

3. The applicant did not receive any documents to support the adverse finding that he was an unacceptable risk to the community,[5] and, in particular, did not receive a copy of the STATIC-99 or the STABLE-2000 documents.

The applicant was not required by law or by the approved form of application for parole[6] to supply a relapse prevention plan but, in any event, supplied one that showed that he had enough insight to prepare one, and that he was fully committed to a course of action that would minimise the risk of offending. This included organising a counsellor in the community and a preparedness to do any programs that the Board wanted him to do in the community as a condition of parole.

The decision was based on an alleged failure to address "intervention needs" in circumstances in which the applicant was unable to undertake prior to his parole eligibility date programs that the panel and the Board recommended. In the applicant's words:

"The programs were not offered before my parole eligibility date through no fault of my own. I feel I am being further punished because of QCS employees' incompetence."[7]

The decision of the Board was said to involve the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the case. In essence, the applicant contends that the Board adopted the recommendations of the panel that produced the PBAR and acted in accordance with a policy to refuse parole when the prisoner has not completed recommended programs.

6. The exercise of power was so unreasonable that no reasonable person could so exercise the power.

[21] The applicant pointed to s 180(3)(b) of the Corrective Services Act, 2006 ("CSA") which requires an application for a parole order to be made to the Parole Board. He complained that the process in fact followed was that the application was received by the Sentence Management Unit at WCC rather than by the Board. He further complained of the intervention of the panel of QSC employees which made its own recommendations to either grant or refuse parole. The essential complaint for the purpose of judicial review was that procedures required by law were not observed, with the result that the unauthorised intervention of the panel's recommendation "contaminates the Sole Independent Decision Making Process" and denies a true and honest assessment of the merits of an application for parole.[8] This grievance was developed in a number of other ways for the purpose of seeking judicial review. It was said to involve a breach of natural justice, in that the matter was prejudged by QSC employees who assumed the same powers as the Board, in circumstances in which the decision should be made by an impartial body.[9] It was also said to involve an unauthorised delegation of the Board's powers to QCS employees.[10] The decision was alleged to be not authorised by law.[11]

The applicant's submission was that the Board must be truly independent of any particular stakeholder, including the correctional facility "of which it must not be a captive".[12] The intervention of the panel that prepared the PBAR was said to render the decision one that was not authorised by the empowering enactment[13] and one which conflicted with the fundamental principle of the Board being an independent statutory authority.[14] Allied with this submission is the contention that the Act does not provide the power to employees of WCC to make the decision or to recommend and report on parole applications.[15]

The Board submits that the decision was made by it and not by those who prepared the PBAR. It submits that any fair reading of the reasons for the decision would lead to the conclusion that, whilst the PBAR was taken into consideration by the Board, as it ought to be, and its recommendations given appropriate weight, as they ought to be, the decision of the Board was its own decision.

Section 245(a) of the CSA relevantly provides that if asked to do so by a parole board, the chief executive must give the board "a report on, or information relating to", a prisoner's application for a parole order.

Section 192(a) of the CSA provides that when deciding whether to grant a parole order, a parole board is not bound by the recommendation of the sentencing court if the board "receives information about the prisoner that was not before the court at the time of sentencing". The section does not explicitly limit the information to information that is such as to place the board in a better position than the sentencing court: all that is required is that the board receive information that was not before the sentencing court.[16]

The applicant correctly states that s 180(3)(b) provides for an application for a parole order to be made to the parole board, and is aggrieved that his application was, in effect, intercepted by QSC employees at the WCC who did more than merely transmit it to the Board. The application was assessed by a panel and the PBAR produced by the panel included a recommendation that the applicant not be granted parole.

In some statutory contexts the word "information" includes opinion, and the word in its ordinary meaning is apt to cover both fact and opinion.[17] A similar view should be taken of the word "information" in s 192(a) by virtue of the example given in that section of a psychologist's report obtained during the prisoner's period of imprisonment. Such a report would be expected to include matters of opinion. If a parole board makes the kind of request contemplated by s 245 then there is no statutory prohibition on the report so provided containing opinions or recommendations. More generally, the CSA does not expressly prohibit a report provided to a parole board including opinions or recommendations about whether an application for a parole order should be granted or refused, or the conditions that might be imposed upon any such order. Such a prohibition did not arise as a matter of necessary implication from the terms or purposes of the CSA.

The fact that the CSA does not make specific provision for the communication to a parole board of a PBAR that includes recommendations does not mean that the provision of such a report is unauthorised. It does not mean that the process that was followed in this case was not in accordance with "procedures that were required by law to be observed in relation to the making of the decision".[18]

The fact that the recommendation contained in the PBAR was considered and effectively adopted by the Board does not mean that the decision under review was not the Board's decision. The panel did not assume the jurisdiction of the Board, and the Board exercised the jurisdiction conferred upon it.

The grounds of judicial review relating to this area of grievance are not established.

[31] The applicant contends that the panel's recommendation was biased, with the consequence that there was a breach of natural justice. His original outline of submissions did not point to any specific matters to support the allegation of bias by those who prepared the PBAR. It complained of the Board's decision being "prejudged" by the PBAR , and that

"one of the parties have [sic] private access to the decision maker in the absence of the prisoner. The applicant has reasonable suspicion of bias opinion of QCS",

and asserted that the decision should be made by "an impartial and unbiased person who has no stake holder [sic] of custody of the prisoner".[19]

[32] These submissions tend to confuse two matters. The first is the alleged bias of the panel. The second is the implications of the alleged bias of the panel on the body making the decision under review which, as I have found, was made by the Board and not by the panel. Under the JRA a breach of the rules of natural justice that happens "in relation to" the making of a decision to which the JRA applies provides a ground for judicial review.[20] As a general proposition, any prejudice or bias that is displayed by one party towards another in the course of making submissions to a decision-making body does not render the body biased, or mean that there has been a breach of the rules of natural justice in relation to the making of the body's decision. The applicant's submissions seem to challenge that general proposition.

The threshold issue is the allegation of bias made against the panel. The applicant's first outline of submissions does not point to any particular factor in relation to the members of the panel from which bias might be inferred. The fact that their employer, QCS, is, in the applicant's words, a "stakeholder" in the custody of the applicant does not give rise to a reasonable apprehension of bias. The applicant's longer submissions about this aspect of alleged breach of natural justice cross-refer to grounds of review which allege improper purpose and bad faith.[21] Those submissions assert that the panel acted in bad faith when it recommended that the applicant do a recommended program and that the employees acted dishonestly in attaching reports "to cover the mistakes created by WCC by offering courses that were not offered before parole eligibility date".[22]

The evidence concerning the applicant's attempt to undertake a recommended program will be separately considered. The evidence does not support a finding that the panel acted in bad faith or dishonestly in the preparation of the PBAR. The applicant's submissions on this aspect are not supported by any evidence. A submission of bad faith or dishonesty should not be made without a proper evidentiary foundation, and in this case there is none.

The expression of opinions by the panel in the PBAR concerning the applicant, with which the applicant strongly disagrees and which the applicant says he found insulting, does not render the panel biased. I reject the submission that the panel or its recommendations were biased against the applicant.

The PBAR was likely to prove influential in the Board's decision. It included information, including opinions that were adverse to the applicant. However, the relevant issue is provision of natural justice or procedural fairness by the Board in relation to the parts of the PBAR and other material that was adverse to the applicant's interests. The panel was not itself determining the application. By involving itself in the process it assumed certain responsibilities. But it was not required to determine the application as an impartial adjudicator. It provided information, including recommendations.

I conclude that the applicant's contention that the panel produced biased recommendations does not advance his claim for judicial review of the Board's decision. The applicant was notified of the preliminary view taken by the Board, and that the material upon which it relied in reaching that preliminary view included the PBAR.[23] He was provided with a copy of the PBAR under cover of the Board's letter of 4 June 2008. The alleged bias of the panel's recommendation does not contaminate the Board with bias. There may be cases in which bias on the part of a body whose conduct forms part of a statutory process results in a finding that there was a breach of natural justice "in connection with" or "in relation to" the ultimate decision.[24] This is not such a case. In circumstances in which the applicant had the opportunity to contest the panel's report and its recommendations before the Board made its operative decision, this aspect of the applicant's claim for breach of natural justice fails.

The applicant's grievance, whilst cast in terms of biased recommendations by the panel, is essentially about the manner by which his parole application was processed, the way in which the panel reached its conclusions and the merit of those conclusions. The panel's report is not the subject of an application for judicial review. The decision under review is the Board's decision. In alleging a breach of natural justice in relation to that decision the applicant alleges that the Board failed to apply "weight to the applicant's whole application and applied heavy weight to PBAR".[25] This is the first of many places in the applicant's submissions in which, in one form or other, there is a complaint about the influence of the panel's report upon the Board's decision.

The allegation that the Board gave excessive weight to the PBAR does not provide a sound basis for judicial review on the ground of breach of natural justice or for judicial review in general. Excessive reliance on the panel's report may be relevant to certain grounds of judicial review, for instance, if as a result of excessive and unreasonable reliance upon the PBAR, the Board made a decision that no reasonable decision-maker in its position would make. Excessive reliance upon a flawed report may provide some evidence that the Board was engaged in the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the applicant's case. These grounds of judicial review will be separately considered. In the absence of any statutory indication of the weight to be given to various considerations,[26] it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power.[27] The applicant's submissions that excessive weight was given to the PBAR, or that the Board's decision was against the weight of the evidence, do not provide a proper basis for judicial review.

The grounds for judicial review relating to alleged bias of the panel and its impact upon the decision under review are not established.

[41] The applicant says that he did not receive any documents to support the adverse finding that he was an unacceptable risk to the community, but the only particulars given of this general allegation are that he did not receive a copy of the STATIC-99 or the STABLE-2000. He claims a breach of natural justice because he "had no meaningful opportunity to respond to the conclusions in the STATIC-99 or the STABLE-2000".[28] He makes the point that neither the STATIC-99 nor the STABLE-2000 were listed under the heading "Evidence or other material on which finding of fact were based" in the Board's statement of reasons.[29] He says that he has not seen a copy of the STATIC-99 or the STABLE-2000 assessment, and that because the material given to him only repeated their conclusions, he was denied natural justice because he had no meaningful way to respond to those conclusions.

The Board did not have a copy of the STATIC-99 or the STABLE-2000 assessment. Instead, at the time the Board reached its preliminary decision on 14 May 2008 it had a copy of the Memorandum from the Manager Offender Development at WCC dated 8 February 2008 which advised that the applicant was assessed on 15 November 2007 for suitability to participate in a sexual offending program, and what the assessment had determined, namely that the applicant represented a low risk of sexual recidivism and was found to have intervention needs in the moderate range.

By letter dated 4 June 2008 the Board advised the applicant of its preliminary view and attached the materials that it had considered, including the Memorandum. The letter of 4 June 2008 effectively summarised the contents of the Memorandum. It also advised that the Board was considering declining to grant parole on the basis that the applicant posed an unacceptable risk to the community, and invited the applicant to show cause by a written submission within 14 days of receiving the letter why the Board should not decline his application.[30]

The applicant did not make such a written submission, and did not request copies of the STATIC-99 or the STABLE-2000 documents. It is almost certain that access to these documents (which the Board did not have or consider in reaching its preliminary and final decisions) would not have made a difference to the process or the ultimate decision. A psychologist who the applicant consulted explained on 20 June 2008 in a letter to the applicant that:

"as far as the STATIC-99 and the STABLE-2000 are concerned, there is no way to have a different opinion on them. They are what they are, and they are based on various facts about the offences which do not change. They are also not about you but they are about how many people who have committed similar offences might be expected to re-offend."[31]

[45] Relevantly for present purposes, the Board based its preliminary decision of

14 May 2008 and its operative decision of 9 July 2008 on, amongst other things, the Memorandum which communicated the relevant information. The applicant was given a copy of the Memorandum, was told the substance of what it said and was given the opportunity to respond. The Board discharged its obligations of procedural fairness and the applicant's grounds for judicial review in relation to this matter are without merit.

Failure to act on the applicant's relapse prevention plan and the weight given to other matters

[46] The applicant correctly contends that he was not required by law, or by the approved form for making an application for a parole order, to supply a relapse prevention plan. However, he did so. Under various headings in his submissions the applicant complains that the Board failed to place appropriate weight upon the contents of his application for parole, his relapse prevention plan and a number of matters which were in his favour, including certain parts of the sentencing court's remarks, the applicant's good conduct, his positive attitude, his good family contacts with after care supports and his employment prospects upon release. The applicant complains that the Board placed greater weight on other factors including the simple fact that he is a prisoner and what was said to be unsubstantiated assertions in the PBAR. He also complains that the Board was bound to consider, amongst other things, what the sentencing judge "did not say". This includes the fact that the sentencing judge did not say that the applicant had any "criminogenic needs", that there was any requirement for the applicant to attend any course or process or that the applicant presented a danger to the community if granted early release.

[47] The applicant's contentions about these matters were framed as involving an improper exercise of power by the Board by, amongst other things, taking irrelevant considerations into account and in failing to take relevant considerations into account.[32] The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration that it is bound to take into account in making that decision.[33]

In Minister for Immigration & Multicultural Affairs v Yusuf[34] McHugh, Gummow and Hayne JJ stated that the grounds of judicial review that:

"fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether a decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making particular findings of fact upon which the decision-maker acts".

[49] In Australian Retailers Association v Reserve Bank of Australia[35] Weinberg J observed that:

"where a discretion is conferred in broad terms, it is generally a matter for the decision-maker to decide what is relevant and what is not, and it determines the comparative importance of matters which are regarded as relevant."

His Honour drew on the following passage from the judgment of Hely J in Elias v Commissioner of Taxation[36]:

"As long as the decision-maker considers those things that the legislation requires to be taken into account and ignores any prohibited consideration, the grounds of failing to take into account a relevant consideration, or taking into account an irrelevant consideration, will not be available. Nor are those grounds available where the essence of the complaint is that the decision-maker paid either too little or too much attention to a relevant factor..."

[50] Upon analysis, the applicant's complaint, although cast in terms of relevant and irrelevant considerations, is that the Board paid too little attention to the facts and submissions that he advanced for its consideration and placed too much weight upon the contents of the PBAR. The applicant's submissions do not make out a case for improper exercise of power on the basis of taking account of irrelevant considerations or failing to take account of relevant considerations.

[51] Two other matters raised in this context should be mentioned. The first is that under the ground of irrelevant considerations the applicant made the contention that the Board cannot refuse parole because

"the applicant has not completed a course or is regarded (as) an untreated sex offender or has outstanding treatment needs".

The Board acknowledged in its written submissions that if it was to make its decision based solely upon any of those matters without considering whether the prisoner was an unacceptable risk to the community, it may commit reviewable error.[37] This aspect is considered below.

[52] The second matter is that as part of his case concerning relevant considerations the applicant contended that the Board was bound to consider that it "cannot assess the magnitude of risk of the offender".[38] The Board submitted in response that it merely took into account, as it was entitled to do in the proper discharge of its duty in considering whether the applicant posed an unacceptable risk to the community, an assessment of the likelihood of his re-offending. The applicant's submission is misconceived. The matter contended for by the applicant is not a relevant consideration.

In conclusion, the applicant's grounds for judicial review relating to relevant and irrelevant considerations are without merit, and invite the court to undertake an impermissible review of the merits of the decision and the weight given by the Board to the matters that it considered.

Exercise of power in accordance with a rule or policy and without regard to the merits and circumstances of the applicant's case

[54] The applicant submits that the Board adopted the recommendations of the panel that produced the PBAR, did not have regard to the circumstances or merits of his individual case and acted in accordance with a policy to refuse parole when the prisoner has not completed recommended programs. In order to determine this aspect of his claim for judicial review,[39] it is necessary to address the relevant facts, the reasons of the Board and the arguments of the parties.

In early March 2007 the applicant asked Sentence Management about his eligibility for a course. On 26 March 2007 he wrote to the authorities seeking help to enrol in the course stating that he was

"...very interested in starting as I seem to be getting closer and closer to my parole date. I know I've done wrong but want to work hard on doing the course and hopefully be able to go home and continue on with my life."[40]

On 10 April 2007 the applicant was informed by QCS that he would be assessed "with due consideration of your February 2008 parole eligibility date and in an equitable process inclusive of other similarly placed offenders." The letter concluded:

"Queensland Corrective Services is mindful of its responsibility to ensure offenders' program requirements are completed, as far as practicable, prior to their parole eligibility dates."[41]

A further letter was written by the applicant on 19 April 2007 asking to be assessed so that he could complete the courses before his parole eligibility date.[42]

[56] On 16 August 2007 the applicant was advised that he was "waitlisted for assessment and this will occur in consideration of your 24 February 2008 parole eligibility date".[43] For reasons that are unexplained, and despite the applicant's acknowledged enthusiasm to undertake assessment and intervention programs, no program was offered to him, let alone completed, prior to the 24 February 2008 parole eligibility date.

On 5 March 2008 the applicant wrote to the Board and QCS, noting that on

1 March 2008 he had been approached to sign on the Getting Started Program and had been told that the program would not commence for about six to eight weeks and it would take four to six weeks to complete, following which he would start the MISOP program at some uncertain future date. The applicant had been told that these recommended programs were available in the community. The applicant's letter advised that he had lobbied over the last year to be put on the recommended programs, had been assessed for them nearly four months earlier and was still waiting to be offered a program. He expressed concern that he

"would be signing myself up for another 16 to 18 months, maybe even longer to get through the Recommended Programs as the wait in between could be a while and would put me nearer to my full time".

The applicant expressed the view that he felt it was then too late, that QCS had failed him and that he would like his parole so that he could rebuild his life in a positive way. For reasons that are unexplained by the evidence, in the applicant's case QCS did not meet its acknowledged "responsibility to ensure offenders program requirements are completed, as far as practicable, prior to their parole eligibility dates". No affidavit evidence was given to the court that it was not practicable for the applicant to enter and complete the recommended programs prior to his parole eligibility date. In circumstances in which he had been asking since March 2007 to be placed on the recommended programs, the attitude of the applicant in March 2008 that it was "too late" is understandable.

[58] When regard is had to the Board's reason for decision, one finds no reference to the reasons why the applicant had not completed the recommended programs. The PBAR included a section headed "Progress in completing recommended interventions". That section started:

"There was no information to indicate that offender Gough has completed any intervention programs aimed at addressing his criminogenic needs."

The PBAR made passing reference in its later discussion to the fact that the applicant had "stated that he had consistently applied to gain placement on a program", but said nothing to confirm that fact. The PBAR said nothing about when the recommended programs would be available to the applicant if he remained in custody, or how long they would take to complete.

[59] The Board's reasons for decision did not refer to the applicant's circumstances of seeking to commence and complete the programs and to the failure of QCS to offer the recommended programs in a timely fashion so that they could be completed prior to the parole eligibility date.

[60] Neither the PBAR nor the Board's reasons for decision address the availability of the recommended programs in the community, notwithstanding that the PBAR recorded the applicant's intention to

"seek out support and services available in the community post release to assist him with his re-integration, counselling and general assistance".[44]

The Board had received the applicant's letter of 5 March 2008 that the programs were available in the community.

[61] In April 2007 QCS had acknowledged to the applicant its "responsibility to ensure offenders' program requirements are completed, as far as practicable, prior to their parole eligibility dates". No reference was made in the Board's reasons to this acknowledged responsibility, and whether the applicant's case for parole would have been enhanced had QCS ensured that the applicant had completed program requirements before his parole eligibility date. The Board's reasons for decision make no reference to these circumstances. Yet, the PBAR had stated that what it claimed to be the applicant's limited insight and knowledge regarding the patterns of his offending behaviour "was to be expected, given that he had not completed any interventions".[45]

During the hearing before this Court, Mr Horneman-Wren of Counsel, on behalf of the Board, frankly recognised the failure of QCS to deliver the recommended programs in a timely fashion despite the applicant's requests to undertake them. His submission, however, was that the lack of timeliness of QCS in not offering a place in a recommended program until after the applicant's parole eligibility date did not provide a ground to review the operative decision made on 9 July 2008. The fact of the matter was that the applicant had not participated in, or completed, the recommended programs at that date, and the Board was entitled to take account of that fact.

The applicant challenged the decision on the basis that the Board cannot refuse parole because he has not completed a course or is regarded as an untreated sex offender or has outstanding treatment needs. As previously noted, the Board accepted that were it to make a decision based solely upon any of those matters without considering whether the applicant is an unacceptable risk to the community, it may commit reviewable error. However, the Board contended that the reasons for its decision made it apparent that:

"whilst the fact that the applicant had not at the time of the decision participated in any recommended intervention courses, and that for him to do so would be desirable, and that he had intervention needs related to his risk of sexual recidivism in the medium range, the applicant's application was not refused simply because of the existence of those facts."[46]

[64] The Board further contended that the application was not refused because there was a policy that dictated its refusal in circumstances in which such facts existed. It was said that the Board merely considered those matters as part of its overall consideration of the parole application.

[65] The Board defends its decision on the basis that the relevant consideration was the fact that the applicant had not completed the programs. However, a proper consideration of the merits of the application required it to consider the circumstances in which the applicant had not completed the programs, and the applicant's offer to complete the programs in the community as a condition of his parole. The system having failed the applicant through no fault of his own, the Board should have considered the merits of the applicant's case to undertake the recommended programs in the community, particularly in circumstances where it was a number of months after his parole eligibility date and QCS had assessed the applicant as having a low risk of sexual recidivism.

[66] The Board's statement of reasons does not suggest that it had regard to these circumstances. The Board said that its concerns about the applicant's intervention needs had not been adequately addressed in the applicant's relapse prevention plan, and recommended that he undertake two programs. However, it did not consider the issue of whether its concerns existed because the applicant had not been offered a place on the programs before he wrote his relapse prevention plan, and whether its concerns could be met by his undertaking the programs as a condition of his parole, and by the imposition of other parole conditions.

[67] The applicant relied upon a number of decisions of this Court including Marriner v The Board, West Morton Regional Community Corrections Board[47] in which the respondent board was found not to have addressed the question the relevant Act required of it in a case in which the applicant was not offered a sexual offender's course or program because of his refusal to accept his guilt. The Board distinguished Marriner's case on the basis that in the present case the Board asked itself the right question and did not fall into legal error of the kind found in that case and other cases such as Batt v Department of Corrective Services[48] and Fogarty v Department of Corrective Services.[49]

It is true that in this case the Board did not state in its reasons that it refused the application solely because the applicant had not completed a course. However, one looks in vain to find any consideration in the reasons of the Board for why the applicant had not completed the course. One looks in vain in the reasons of the Board to find any reference to the applicant's preparedness throughout 2007 to undertake and complete the recommended programs.

The Board did not address whether perceived intervention needs and suggested shortcomings in the relapse prevention plan were due in part, or in whole, to QCS' failure to ensure that the applicant undertook the recommended courses in a timely manner. The reasons of the Board contain no reference to the availability of these programs in the community and the applicant's preparedness to complete them in the community, even at his own cost, and as a condition of parole.

[70] The Board did not simply state that it refused the application because the applicant had not completed the programs or had been assessed as having intervention needs, and thereby fall into legal error. However, in circumstances in which significant reliance was placed in its decision upon what were asserted by the PBAR to be intervention needs, a consideration of the merits of the applicant's case and the proper exercise of the Board's powers required it to ask why these alleged intervention needs existed, whether they might be met by intervention programs, and, importantly, whether they should be met by intervention programs undertaken in the community. This last aspect warranted consideration in circumstances in which the applicant had been assessed as a low risk of re-offending, his parole eligibility date had long passed and the PBAR did not address the possibility of undertaking the programs in the community.

[71] The reasons for decision of a body such as the Board should not be overzealously scrutinised in a search for error.[50] However, in circumstances in which the Board's decision turned upon what were said to be outstanding intervention needs and the contention that the applicant's relapse prevention plan did not adequately address the Board's concerns, it is significant that the Board apparently did not consider why the applicant had been unable to complete the programs that it recommended. The Board stated that it was "not convinced" that the applicant had sufficiently responded to its major concerns and it considered that the applicant did not provide it with "an adequate relapse prevention plan". The reasons for these conclusions are sparse, to say the least. The Board did not address in its statement of reasons the content of the applicant's relapse prevention plan, or address in any detail the matters in it and in the applicant's submission that were in his favour.

[72] When regard is had to the reasons as a whole, and without subjecting them to excessive and unfair textual analysis, their substance is that the Board refused to find that the applicant was an acceptable risk to the community if released to parole because it required the additional assurance that would be forthcoming if the applicant underwent the recommended programs. It reached this conclusion apparently without having any regard as to why the applicant had yet to complete those programs, and that their completion presumably may have enhanced the quality of the applicant's relapse prevention plan. The Board did not address whether its concerns and doubts that the application "may not be an acceptable risk" could be met by imposing a condition of parole that the applicant undertake the recommended programs in the community.

[73] The failure to consider why the applicant had not undertaken the programs whilst in custody and the failure to consider the applicant's request to undertake them in the community (even at his own cost and as a condition of parole) indicates that the Board did not have proper regard to the circumstances in favour of the grant of parole, and did not consider the particular circumstances of the applicant in relation to undertaking the recommended programs. It is possible to characterise the Board's failure to consider the merits of the application in these respects as constituting an error of law. However for the purposes of s 23(f) of the JRA I find that the Board did not have regard to the merits of the particular case.

[74] The Board stated in its reasons that it did not insist upon the applicant participating in the programs. Such a statement may formally avoid the legal error which might have arisen if the Board had stated that it refused parole because the applicant had not completed the programs. However, the fact that the Board did not fall into legal error in that respect does not compel rejection of the submission that it exercised its power in accordance with a rule or policy and without regard to the particular circumstances of the applicant and the merits of his case.

[75] The Board does not contest the applicant's assertion that he was told by a counsellor on 15 November 2007 that he "wouldn't get parole" as he had not done the recommended programs. The PBAR did not say this in terms, but the fact that the applicant had not completed intervention programs was the first matter mentioned by it in the section of the report dealing with preparation for release, and it recommended that he participate in the recommended programs prior to release to parole. The Board's reasons for decision are carefully worded to state that the Board did not insist on the applicant completing the programs. But the implication from its reasons was that the Board had to be convinced that the suggested intervention needs had been addressed, that the way to do so was to undertake the recommended programs and that until the applicant had done so the Board would not alter its conclusion that the applicant "may not be an acceptable risk to the community if released to parole".

[76] The only solution in the Board's contemplation was for the applicant to undertake the recommended programs in custody. This rule or policy applied even in the case of an applicant for parole such as the applicant in this case. The applicant was assessed as a low risk of re-offending, his parole eligibility date had long passed, he presented a strong case for parole based on his preparations for release, his acknowledged responsibility for his crimes, his acknowledgement that (to quote the PBAR) "his sexual offending had a massive impact on others", his preparedness prior to his parole eligibility date to undertake intervention programs to give him more insight and his willingness to undertake such programs in the community as a condition of parole.

[77] In the circumstances, I find that the Board exercised its discretionary power in accordance with a rule or policy, namely that where the PBAR or other material identified intervention needs then parole should not be granted if the applicant had not completed the recommended programs whilst in custody. As Gummow J said in Khan v Minister for Immigration, Local Government and Ethnic Affairs: [51]

"..what was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy...".

[78] I have already concluded that the application for parole was not considered on its merits by the Board and with regard to his particular circumstances. Accordingly, the decision was the result of the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the case. This constitutes an improper exercise of power under the JRA.[52]

Wednesbury unreasonableness - exercise of a power that is so unreasonable that no reasonable person could so exercise the power

[79] My conclusion that the applicant has established a basis under the JRA to set aside the decision under review makes it strictly unnecessary to decide the final arguable basis of his claim. This is the contention that the decision involved an improper exercise of power because the decision was "so unreasonable that no reasonable person could so exercise the power".[53] The ground of statutory judicial review in s 23(g) of the JRA reflects Wednesbury unreasonableness, namely the principle that if an exercise of power is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action, then the court holds the purported exercise of the power to be invalid. Lord Greene MR in Associated Prudential Picture Houses Ltd v Wednesbury Corporation[54] stated that "to prove a case of that kind would require something overwhelming".

It is "extraordinarily difficult in proceedings for judicial review to challenge findings of fact"[55] and Wednesbury unreasonableness is largely confined to review of discretionary decisions. In cases where the exercise of power depends upon the decision-maker being satisfied in respect of a matter of opinion it may be very difficult to show that the decision or the exercise of power was so unreasonable that no reasonable person could have arrived at the opinion or exercised the power.[56] As Gummow J stated in Minister for Immigration and Multi-cultural Affairs v Eshetu:[57]

"...where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way."

[81] It is arguable that the exercise of power by the Board on 9 July 2008 was "so unreasonable that no reasonable person could so exercise the power".

[82] The numerous matters which the applicant advanced in support of his application and which did not find clear expression in the Board's reason for decision, the fact that the applicant was assessed as presenting a low risk of sexual recidivism, the fact that his parole eligibility date had passed, the fact he had tried to commence and complete the recommended programs before his parole eligibility date and was prepared to undertake those programs as a condition of parole make it arguable that any reasonable decision-maker would grant the application subject to appropriate conditions. Even in circumstances in which, as I have found, the Board did not properly consider the merits of the case, the Board did not find that the applicant was an unacceptable risk to the community if released on parole. Instead, it found in those circumstances that he "may not be" an acceptable risk to the community if released to parole.

[83] A case of Wednesbury unreasonableness is arguable. The applicant's case is stronger than the case of the applicant in Thompson v Brisbane Regional Community Corrections Board[58] in which there was no evidence of unjustifiable delay in finding the applicant a placement on a program. However, the limitation on power arising under Wednesbury unreasonableness is narrow, and the applicant's case is not so overwhelming to persuade me that the exercise of power in this case was so unreasonable that no reasonable person could so exercise the power. Accordingly, I find that the applicant has failed to establish this ground.

[84] The foregoing disposes of grounds of judicial review that I found to be arguable. For completeness, I shall deal in a summary way with the other grounds.

[85] Many grounds outlined in the applicant's submissions and in the supplementary submissions that became Exhibit one upon the hearing, were premised on the contention that the operative decision was made by the QCS employees who prepared the PBAR, and not by the Board. I have rejected that contention.

[86] The applicant contends that the decision involved the exercise of power for an improper purpose and in bad faith.[59] The evidence does not support this contention.

The applicant contends that the power was exercised at the behest of another.[60] The submissions advanced in support of this ground are without merit.

Ground J in the applicant's outline of submission contends that there was no evidence or other material to justify the making of a decision. This ground took no account of the provisions of s 24 of the JRA and is not made out.

The applicant contended that the decision was otherwise contrary to law or was an exercise of power that was an abuse of power. To the extent that this ground related to QCS employees providing the PBAR, I have dealt with this aspect. The allegation that the Board allowed the QCS employees to intimidate the applicant by raising convictions for offences for which he had been sentenced is without merit. The applicant's convictions needed to be addressed by those who produced the PBAR and raising those matters with the applicant was not an abuse of power by the QCS employees, let alone by the Board.

Ground N asserted various errors of law by reference to a variety of statutes. To the extent that the applicant relies upon the Board's failure to make "a proper assessment of the applicant's risk to the community and the immediate circumstances"[61] the failure to consider the application on its merits and relevant circumstances arguably constituted an error of law. It is unnecessary to determine that issue since the Board's failure to do so constitute an element of a separate ground for judicial review which I have found to be established.

I reject the contention that the decision was induced or effected by fraud.[62] There is no basis in the evidence for this assertion.

Finally, the respondent purported to challenge the Board's failure to make a decision within the legislative period time frame of 120 days. The Board's initial failure to make such a decision is not a matter that is subject to review.[63]

[93] I have rejected the applicant's claim that the decision was made by the panel of QCS employees that prepared the PBAR and not the Board. The Board was able to receive that report. Parts of that report and its recommendations were prejudicial to the applicant, but there was no breach of natural justice on the part of the Board because the applicant had an opportunity to respond to those matters. He also had an opportunity to respond to the contents of the Memorandum dated 8 February 2008 that reported the results of an assessment on 15 November 2007 about his suitability to participate in a sexual offending program and that concluded that he was a low risk of sexual recidivism and that his intervention needs were in the moderate range.

[94] The applicant was not required by law to provide a "relapse prevention plan", but he did so, and it provided a strong case for the grant of a parole order after his parole eligibility date of 24 February 2008. The weight to be given to the material and submissions advanced by the applicant to the Board, the PBAR and other material was a matter for determination by the Board. Judicial review does not provide the occasion for a court to entertain arguments that the Board gave too much weight to certain factors and not enough weight to others.

[95] I have concluded that in making its decision to refuse the application the Board failed to consider the particular circumstances of the applicant. His application was not considered on its merits.

[96] The Board exercised its power in accordance with a rule or policy to the effect that perceived intervention needs should be addressed by an applicant undertaking recommended programs whilst in custody. This policy was applied in the case of the applicant, who was assessed as presenting a low risk of re-offending, whose parole eligibility date had passed, who had tried to commence and complete the programs before his parole eligibility date and who was prepared to undertake those programs in the community as a condition of parole.

[97] I have concluded that the Board exercised its discretionary power in accordance with a rule or policy and without regard to the merits of the applicant's particular case. This establishes a ground for judicial review.[64] The application for judicial review is allowed.

[98] The decision under review should be set aside.

[99] The legislative period allowed for the Board to make a decision on the applicant's parole application will expire in a matter of days. If possible, the Board should determine the merits of his application before then, and in the light of these reasons.

[100] Subject to hearing from the parties concerning the terms of the orders that I propose and the issue of costs, the orders of the court will be:

2. The decision of the respondent made on 9 July 2008 to refuse the applicant a parole order is set aside.

3. The application to which the decision relates be referred to the respondent for further consideration and be dealt with by the respondent forthwith according to law.

1. [1] Affidavit of Janice Dwyer filed 1 September 2008; JD-17, p 113.
2. [2] This program is referred to elsewhere in the evidence by the acronym MISOP.
3. [3] Exhibit One.
4. [4] Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343 at 346-347.
5. [5] The Board did not find as a fact that the applicant was an unacceptable risk to the community. Its reasons were cast in terms that "it considered [the applicant] may not be an acceptable risk to the community if released to parole at this time".
6. [6] Corrective Services Act, 2006, s 180(3)(b), Form -29.
7. [7] Affidavit of the applicant sworn 5 August 2008, filed by leave 5 September 2008, para 11.
8. [8] Applicant's outline of submissions, ground B; Exhibit 1 p 14-15, particularly paras 124-132.
9. [9] Applicant's outline of submissions, ground A; Exhibit 1 p 9-10, particularly para 81.
10. [10] Applicant's outline of submissions, ground C.
11. [11] Applicant's outline of submissions, ground D.
12. [12] Exhibit 1 para 306.
13. [13] Applicant's outline of submissions, ground D.
14. [14] Exhibit 1 para 249.
15. [15] Applicant's outline of submissions, ground D, Exhibit 1 para 248.

of Corrective Service [2002] QSC 206; SB v Queensland Community Corrections Board [2005] QSC 155.

38. [38] Outline of submissions, ground F, p 6.
39. [39] JRA ss 20(2)(e) and 23(f).
40. [40] Affidavit of Janice Dwyer filed 1 September 2008, JD-1 p 52.
41. [41] Ibid p 41.
42. [42] Ibid p 53.
43. [43] Ibid p 42.
44. [44] Affidavit of Janice Dwyer sworn 1 September 2008 - JD-17, p 118.
45. [45] Ibid.
46. [46] Board's outline of submissions para 26.
47. [47] Unreported, QSC No. 5735 of 2006, 22 December 2006 per Chesterman J.
48. [48] [2002] QSC 206.
49. [49] [2002] QSC 207.
50. [50] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
51. [51] Unreported, Federal Court, Gummow J 11 December 1987 at 11-12; followed in Surinakova v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87 at 98.
52. [52] Ss 20(2)(e), 23(a).
53. [53] JRA s 23(g).
54. [54] ; at 230. See also at 36-37.