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[2008] QSC 163
General information, not legal advice.
Supreme Court of Queensland
2008-08-04
Douglas J
Original judgment source is linked above.
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING - DISCLOSURE OF EVIDENCE AND MATERIAL FACTORS - where the applicant was serving a term of imprisonment - where the Queensland Parole Board rescinded a grant of parole - whether documents used to reach the decision are properly able to be kept from the applicant under a claim of public interest privilege
Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, distinguished
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88, distinguished
Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667, considered
D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, distinguished
Duncan v Cammell, Laird & Co Ltd [1942] UKHL 3; [1942] AC 624, cited
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 82 ALJR 454, cited
Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405, cited
Kioa v West [1985] HCA 81; (1985) 159 CLR 550, cited
R v Abdullah & Ors [1999] NSWCCA 188, cited
R v Harms [2000] QCA 419, cited
Rogers v Home Secretary [1973] AC 388, cited
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, cited
[1] Douglas J: The issue in this case is whether documents used by the Queensland Parole Board in deciding to rescind its earlier decision to release the applicant on parole are properly able to be kept from him because of a claim of public interest privilege.
[2] The applicant has been in prison since 18 December 1999 when he was convicted of the attempted murder of someone alleged to have been a police informant and sentenced to nine years and six months imprisonment. Subsequently, on 1 March 2001, he was also convicted of a number of drug offences and sentenced to a head term of eight years and six months imprisonment to be served concurrently with the earlier sentence. He was also sentenced on 31 October 2001 in the District Court to six months imprisonment wholly suspended for receiving and unlawful possession of a motor vehicle with a circumstance of aggravation. His full time discharge date is 31 August 2009 but he was eligible for consideration for release on parole from 12 April 2007. On 7 September 2007 the respondent, the Queensland Parole Board, approved his release on parole to a program which was to commence when accommodation became available. Before his release the Board decided to rescind its order. It did so because it had received further information on 14 September 2007, 22 October 2007, 23 October 2007 and 26 October 2007 from the Queensland Police Service and the Queensland Corrective Services Investigation Unit.
[3] Having considered that information the Board decided that it was credible and of such concern that the Board should exercise its discretion pursuant to s 24AA of the Acts Interpretation Act 1954 to repeal the decision to offer the applicant a parole order and invite him to show cause why the Board should not decline his application. The Board considered that it had sufficient reason not to provide the new documents to the applicant as it thought it had "credible grounds for believing that disclosure of certain information in a document to you may put innocent individuals at risk of reprisals."[1]
The Board, therefore, made a public interest immunity claim in respect of the new documents relied on by it which encouraged it to change its earlier decision. The claim is supported by two affidavits, one of Mr Peter McInnes, the President of the Board and one by Mr Bruce Welk, the manager of the Queensland Corrective Services Intelligence Group.
The affidavit of Mr McInnes included the following passage:
"The reasons I say that the disclosure of the said information would be injurious to the public interest are that such disclosure would:
(a) Disclose the modus operandi of the Department as it relates to the detention of prisoners and the collection, collation and analysis of information regarding prisoners and the dissemination of consequential intelligence regarding prisoners;
(b) Undermine public confidence in the confidentiality of information provided to the Department deterring potential informants from divulging useful information;
(c) Undermine confidence of the Department's officers in the confidentiality of departmental files, deterring such officers from recording full and frank memoranda of events and occurrences and from making candid analytical assessments of information;
(d) Hinder the effective functioning of the Department in that documents containing intelligence material (of which the subject documents are examples) play an essential role in the making of prison management decisions within Queensland's prison system; and
(e) Result in a real risk of harm to the individual or individuals the source of the confidential information provided to the Department."
"4. I have reviewed the records of the QCS as they relate to Colin Gordon Harms, specifically his custodial history. I am aware that Mr Harms was sentenced for the offence of attempted murder and that the circumstances of this crime involved him conspiring to attempt to murder a person whom he believed had informed on him previously in a drug related matter.
[7] The applicant argues that he has been denied natural justice because of the respondent's failure to disclose the further information relied on by it in making its decision. In the absence of the claim to public interest immunity it is clear that the applicant would be entitled to know at least the case made against him, if not necessarily to be provided with the relevant documents, and be given an opportunity of replying to it.[2]
Although the claim to privilege made in the affidavits in support canvassed classes of documents, such as those disclosing the modus operandi of departmental intelligence officers, and also argued the necessity of maintaining the confidence of departmental officers in the confidentiality of their files, particularly because they may reveal the source of confidential information, the focus of the Board's argument was that this claim to public interest immunity was better regarded as a "contents" rather than a "class" claim.[3] That seems to me to be an accurate view of the nature of the claim made because the most significant aspect of it focuses on the "real risk of harm to the individual or individuals the source of the confidential information provided ..."[4].
In that context Mr O'Gorman SC for the applicant conceded that, if I was satisfied that it was properly regarded as a contents claim, it would be appropriate for me to examine the documents for which the privilege was claimed. Similarly Mr Flanagan SC for the Board contended that it was appropriate for me to examine the documents. They were provided to me, together with a separate submission in respect of their contents, in an envelope that I have sealed and ordered not to be opened without the leave of the Court or a judge. I should also record that the Board, through Mr Flanagan, offered to permit Mr O'Gorman, but not his client, to read the documents and the further written submission. Mr O'Gorman informed me that he, on instructions, did not take that opportunity.
Because of the nature of the claim, said to reflect the risk that disclosure of the documents "may put innocent individuals at risk of reprisals"[5], it was my view that I should read the information.
Mr Flanagan also drew my attention to the Ministerial Guidelines promulgated for the Board which state in subs. 1.1 that the Board's highest priority should always be the safety of the community and that, in considering the level of risk that the prisoner may pose to the community under subs. 2.3, it should have regard to all relevant factors including but not limited to the prisoner's prior criminal history and any patterns of offending. It was significant, as I have already pointed out, that the applicant's conviction for attempted murder was based on his involvement in a plan to kill somebody mistakenly believed to be a police informant.[6]
[12] It then becomes a question of determining what the content of the requirement to observe procedural fairness is in a case of this nature.
[13] In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88, the High Court recently considered the necessary content of the requirement that procedural fairness be provided to an applicant for a protection visa where the department had received an unsolicited letter whose author made certain allegations against the male applicant. The Tribunal there did not tell him that it had received the letter or ask him about the substance of the allegations made in it, saying in its reasons for decision that it had been unable to test the claims made in the letter and accordingly gave it no weight.
[14] The Court took the view that procedural fairness required the Tribunal to inform the applicant of the substance of the allegations made against him in the letter before reaching its decision but that it was not required to provide a copy of the letter to him or to disclose any information that may have revealed the author's identity. In discussing the approach to take the Court said:[7]
"The existence of that public interest [in ensuring that information that has been or may later be supplied by an informer is not denied to the Executive government when making its decisions] is not to be understood as requiring the conclusion that there is an absolute rule against an administrative decision-maker disclosing to a person, whose interests may be affected by the decision that is to be made, information that has been supplied by an informer. Nor does it necessarily mean that there is an absolute rule against disclosing the identity of an informer to such a person. It is neither necessary nor appropriate to attempt to state some all-encompassing rules about how administrative decision-makers should deal with information supplied in this way. Not least is that because use of the expression 'informer' in the context of administrative decision-making not only does not reveal what kind of information is conveyed by the informant, but also does not reveal what relevance the information may have to the decision that is to be made. The application of principals of procedural fairness in a particular case must always be moulded to the particular circumstances of that case."
[15] Mr O'Gorman drew some comfort from another passage to the following effect:[8]
"It follows that to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter. Only then could he attempt to answer the suggestions made by the author of the letter that the appellant had reasons other than Convention reasons to absent himself from Eritrea and that he did not have a well-founded fear of persecution for a Convention reason."
[16] That passage was not expressed, however, in this context, where it is argued that to reveal the contents or the nature of the information provided could assist in identifying the informant or informants and put them at real risk of harm.
[17] Mr Flanagan drew an analogy with the public interest immunity principle recognised as protecting the identity of police informants.[9] There is an exception to that approach "where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure."[10] This case does not, however, fall within that exception. The applicant has already been convicted of a criminal offence for which he is serving a term of imprisonment. Although his interest in securing his release on parole may be compared loosely with the right to be at liberty this is not a case where it could be said that disclosure of the identity of an informer could help to show that the applicant was innocent of an offence.
"The identity of a police informer has as a matter of public policy been protected against disclosure since at least Marks v Beyfus (1890) 25 QBD 494 at 498, 500, if not earlier. This species of public interest immunity was recognised in many cases, including Duncan v Cammell, Laird & Co Ltd [1942] UKHL 3; [1942] AC 624 at 633-634, in Rogers v Home Secretary (at 401, 407) in Sankey v Whitlam (at 61) and in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 233-234, 242, 246-247. It covers any material by which a shrewd idea might be conveyed as to the identity of the informer: Rogers v Home Secretary (at 401). Its rationale is that, if the identity of the informer were liable to be disclosed in a court of law, sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime: D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 at 218, 232, 241; Sankey v Whitlam (at 65-66); Cain v Glass (No 2) (at 247)."
[19] On my perusal of the documents in question there is a real risk that disclosure of their contents would reveal the identity of the informer or informers or at least give the applicant what was described by Lord Reid in Rogers v Home Secretary as a "very shrewd idea" from whom the information had come.[13] The High Court's decision in VEAL[14] was, by comparison, not one where disclosure of the substance of the information would have revealed the identity of the informant.
Mr Flanagan also submitted that the content of the rules of procedural fairness may be diminished even to nothingness to avoid frustrating the purpose for which the power was conferred, in reliance on a statement to that effect of Brennan J in Kioa v West.[15] In that context he pointed to the obligation of the Board to give its highest priority to the safety of the community in subs. 1.1 of the Ministerial Guidelines to the Board and the risks to members of the community that could eventuate from the release of the documents.
He also argued that the applicant had gleaned the "gist" of the information by his statement in response to the Board's decision to rescind his parole where he said:[16]
"It seems to be suggested that I intend to harm someone and that I am or will be a risk to the community. I hereby state that I have never threatened any person and that I have no intention of breaking the law in any way, if I am released on parole."
[22] The submission that that statement said as much as could be said to contradict anything contained in the information relied on by the Board is not particularly convincing as it must be conceded that, if the applicant were provided with the information, it would be likely to be easier for him to contradict it, if it were not true. One also has to bear in mind what White J said in Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405 where her Honour said:[17]
"I accept that to answer all of the questions posed by the applicant's solicitors on 16 June 1999 may tend to reveal the respondent's sources of information. The delegate should demonstrate that he has directed his mind to the currency of the risks expressed in the maximum security order and, if he is satisfied on reasonable grounds that those risks continue as high risks he must explain, without revealing the sources of his information, why that is so. He must also demonstrate that he has satisfied himself that there is independent support for the information from the informant and that there is no risk that this is a case of 'prison politics'."
[23] Having read the material provided to me, however, I have satisfied myself that there has been an appropriate investigation of the risks associated with the release of the information and that proper attempts have been made to verify independently the information relied on and to relate it to current circumstances.
[24] It is also my view that, were the applicant to be provided with the gist of the information contained in the documents, beyond the inference drawn by him that it contains allegations he intends to harm someone, then, in this case, it would be information that could give him a shrewd idea of the identity of the informant. His history, particularly his conviction of the attempted murder of an alleged informant, highlights the risk that disclosure of that information could create. I am, therefore, satisfied that the claim to privilege is made out because disclosure of the documents may put innocent individuals at risk of reprisals.
[25] The application will be dismissed. I shall hear the parties as to costs.
Harms
Qld Parole Board
(1984) 154 CLR 404
(2005) 225 CLR 88
(1994) 34 NSWLR 667
(2008) 82 ALJR 454
(1985) 159 CLR 550
(1978) 142 CLR 1
(1985) 3 NSWLR 230