ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW
– UNREASONABLENESS – where the applicant seeks a
statutory order of
review of the respondent’s decision to refuse his application for parole
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW– UNREASONABLENESS – where the applicant seeks astatutory order ofreview of the respondent’s decision to refuse his application for parole– where the application describesthe respondent’s decision asunreasonable – where the applicant was serving a sentence for variousdomestic violence,property, motor vehicle, and other offences – where theapplicant’s application for parole was refused on the groundthat the riskthe applicant presented to the community was unacceptably high, having regard tothe applicant’s criminal history,performance under previouscommunity-based orders, and the applicant’s alleged domestic violencetowards his partner throughphone calls from prison – where the statementof reasons for the decision refusing the applicant’s parole explained howthe respondent took into account factors favourable to and adverse to theapplicant in coming to its decision – where the statement
of reasons
disclosed that an identifiable pattern of behaviour involving domestic violence
by the applicant, as well as his previous
non-compliance with parole orders,
informed the respondent’s assessment of the level of risk to the
community’s safety
if it granted the applicant parole – whether the
respondent’s decision to refuse to grant the applicant parole was
unreasonable
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW
– PROCEDURAL FAIRNESS – GENERALLY – where the
applicant
asserted that he was denied natural justice and procedural fairness –
where the applicant argued that the respondent
not interviewing him before
deciding to refuse his parole application amounted to a denial of natural
justice and procedural fairness
– where the respondent deferred making a
decision on the parole application and requested further information from the
applicant,
which the respondent subsequently received and considered –
where the respondent formed the preliminary view to refuse the
applicant’s
parole application and it invited the applicant to address the factors it had
identified which informed that preliminary
view – whether the
respondent’s decision to refuse to grant the applicant parole was made in
breach of the rules of natural
justice or procedural fairness
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW
– RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER –
where the
applicant submitted that that the respondent failed to take into account the
relevant consideration that his former partner,
who the applicant had committed
domestic violence against sent the applicant a letter in which she made
exculpatory statements as
to the applicant’s domestically violent conduct
– where there was insufficient evidence that the respondent provided
that
letter to the respondent before the decision refusing to grant the applicant
parole was made – where the applicant submitted
that the respondent failed
to take into account the relevant consideration that, if he were granted parole,
he would be living in
a different city to his partner – where the
respondent’s decision to refuse to grant parole was made based on the
applicant
residing at an address with his uncle – whether the respondent
failed to take into account a relevant consideration in deciding
to refuse to
grant the applicant parole
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW
– IRRELEVANT CONSIDERATIONS – where the applicant
submitted that the
respondent took into account an irrelevant consideration in characterising his
behaviour towards his partner in
using the prisoner telephone system as domestic
violence where there was no domestic violence order in place and where the
police
have declined to charge him – whether the applicant’s conduct
was an irrelevant consideration
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW
– FAILURE TO OBSERVE STATUTORY PROCEDURE – where
the respondent did
not make its decision within the prescribed period after it received the
applicant’s parole application
– whether the respondent’s
failure to decide the applicant’s parole application within the prescribed
period means
that procedures that were required by law to be observed in
relation to the making of the decision were not observed – whether
any
relief is available to the applicant if this ground is made out
Corrective
Services Act 2006 (Qld), s 193, s 194
Judicial Review Act 1991
(Qld), s 20, s 23
Calanca v Parole Board Queensland [2019]
QSC 34, cited
Calanca v Queensland Parole Board [2016] QSC 3
[2017] 1 Qd R 1,
disapproved
Commissioner for Australian Capital Territory Revenue v
Alphaone Pty Ltd [1994] FCA 1074
(1994) 49 FCR 576, considered
Khan v Minister for
Immigration and Ethnic Affairs [1987] FCA 457
(1987) 14 ALD 291, cited
Kioa v West
[1985] HCA 81
(1985) 159 CLR 550, cited
McGrane v Queensland State Parole Board
[2012] QSC 350, approved
Minister for Aboriginal Affairs v
Peko-Wallsend Ltd (1986) 162 CLR 24, applied
Minister for Immigration
and Border Protection v SZVFW [2018] HCA 30
(2018) 264 CLR 541,
applied
Minister for Immigration and Citizenship v Li [2012] HCA 61
(2013)
249 CLR 332, applied
Minister for Immigration and Citizenship v SZJSS
[2010] HCA 48
(2010) 243 CLR 164, cited
Plaintiff M64/2015 v Minister for Immigration
and Border Protection [2015] HCA 50
(2015) 258 CLR 173, cited
Judgment (99 paragraphs)
[1]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS - where the applicant seeks a statutory order of review of the respondent's decision to refuse his application for parole - where the application describes the respondent's decision as unreasonable - where the applicant was serving a sentence for various domestic violence, property, motor vehicle, and other offences - where the applicant's application for parole was refused on the ground that the risk the applicant presented to the community was unacceptably high, having regard to the applicant's criminal history, performance under previous community-based orders, and the applicant's alleged domestic violence towards his partner through phone calls from prison - where the statement of reasons for the decision refusing the applicant's parole explained how the respondent took into account factors favourable to and adverse to the applicant in coming to its decision - where the statement of reasons disclosed that an identifiable pattern of behaviour involving domestic violence by the applicant, as well as his previous non-compliance with parole orders, informed the respondent's assessment of the level of risk to the community's safety if it granted the applicant parole - whether the respondent's decision to refuse to grant the applicant parole was unreasonable
[2]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - GENERALLY - where the applicant asserted that he was denied natural justice and procedural fairness - where the applicant argued that the respondent not interviewing him before deciding to refuse his parole application amounted to a denial of natural justice and procedural fairness - where the respondent deferred making a decision on the parole application and requested further information from the applicant, which the respondent subsequently received and considered - where the respondent formed the preliminary view to refuse the applicant's parole application and it invited the applicant to address the factors it had identified which informed that preliminary view - whether the respondent's decision to refuse to grant the applicant parole was made in breach of the rules of natural justice or procedural fairness
[3]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - FAILURE TO CONSIDER - where the applicant submitted that that the respondent failed to take into account the relevant consideration that his former partner, who the applicant had committed domestic violence against sent the applicant a letter in which she made exculpatory statements as to the applicant's domestically violent conduct - where there was insufficient evidence that the respondent provided that letter to the respondent before the decision refusing to grant the applicant parole was made - where the applicant submitted that the respondent failed to take into account the relevant consideration that, if he were granted parole, he would be living in a different city to his partner - where the respondent's decision to refuse to grant parole was made based on the applicant residing at an address with his uncle - whether the respondent failed to take into account a relevant consideration in deciding to refuse to grant the applicant parole
[4]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS - where the applicant submitted that the respondent took into account an irrelevant consideration in characterising his behaviour towards his partner in using the prisoner telephone system as domestic violence where there was no domestic violence order in place and where the police have declined to charge him - whether the applicant's conduct was an irrelevant consideration
[5]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE - where the respondent did not make its decision within the prescribed period after it received the applicant's parole application - whether the respondent's failure to decide the applicant's parole application within the prescribed period means that procedures that were required by law to be observed in relation to the making of the decision were not observed - whether any relief is available to the applicant if this ground is made out
[1] Pursuant to the Judicial Review Act 1991 (Qld), the applicant seeks a statutory order of review of the respondent's decision on 28 November 2023 to refuse his application for a parole order under s 193(1)(b) of the Corrective Services Act 2006 (Qld).
[2] The court documents filed by the applicant identify various bases upon which he seeks to challenge the respondent's decision.
[3] The amended application[1] describes the respondent's decision as being unreasonable[2] and asserts that the applicant was denied natural justice and procedural fairness.[3]
[4] In his written submissions,[4] the applicant asserts that in making its decision the respondent:
[20]
(a) took an irrelevant consideration into account,[5] namely the respondent's conclusion that the applicant had used the prisoner telephone system to exhibit domestic violence towards his wife;
(b) failed to take relevant considerations into account,[6] namely:
(i) a letter from WN dated 20 September 2020; and
(ii) that if released on a parole order the applicant would be residing in Brisbane whereas his wife resides in Rockhampton;
(c) placed insufficient weight on several relevant considerations, namely:
(i) the applicant's completion of the Moderate Intensity Substance Intervention Program during his incarceration;
(ii) the applicant's positive institutional behaviour; and
(iii) the applicant's accommodation in the residential and farm sections of the correctional centre and his low security classification.
[21]
[5] During his oral submissions at the hearing of the application, the applicant also emphasised the respondent's delay in making the decision.
[22]
[6] The applicant is currently serving a sentence of six years imprisonment for the following offences:
[23]
(a) 27 counts of Contravention of a Domestic Violence Order (Aggravated Offence);
(b) Dangerous Conduct with a Weapon;
(c) 4 counts of Common Assault - Domestic Violence Offence;
(d) 2 counts of Dangerous Operation of a Vehicle with 2 prior convictions;
(e) 2 counts of Dangerous Operation of a Vehicle with 2 prior convictions - Domestic Violence Offence;
(f) 7 counts of Driving Without a Licence Disqualified by a Court Order;
(g) Enter Premises and Commit Indictable Offence;
(h) Enter Premises and Commit Indictable Offence by Break;
(i) Enter/Is in Dwelling and Commit Indictable Offence - Domestic Violence Offence;
(j) Authority Required to Possess Explosives;
(k) Unlawful Use of Motor Vehicles, Aircraft or Vessels - Use;
(l) Evasion Offence - Type 1 Vehicle Related Offence;
(m) 3 counts of Evasion Offence;
(n) Driving of Motor Vehicle Without a Driver Licence Disqualified by Court Order - Type 2 Vehicle Related Offence;
(o) Receiving Tainted Property;
(p) 2 counts of Stealing;
(q) 2 counts of Wilful Damage;
(r) 5 counts of Stealing - From a Locked Receptacle Possessing Dangerous Drugs;
(s) 2 counts of Possess Utensils or Pipes Etc for Use;
(t) Possession of Property Suspected of Being the Proceeds of an Offence Under Drugs Misuse Act;
(u) Offence of Driving Etc While Relevant Drug is Present in Blood or Saliva, Holder of Learner, Probationary or Provisional Licence;
(v) Possession of a Knife in a Public Place;
(w) 3 counts of Possess Dangerous Drug Specified in Schedule 1 or 2; and
(x) Unlawful Possession of Weapons Category D/H/R Weapon.
[24]
[7] The applicant became eligible for parole on 18 April 2023.
[8] The respondent received the application for a parole order on 3 May 2023. It first considered that application at its meeting on 18 July 2023 and deferred making a decision.
[9] By letter dated 19 July 2023, the respondent informed the applicant that it did not approve him residing at the address provided in the parole application, noting the vulnerability of his partner and his history of significant domestic violence, and that it had deferred making a decision on the parole application until the applicant provided an alternate accommodation review and a relapse prevention plan addressing how the applicant would deal with his risk of returning to domestic violence and other high harm offending.
[10] The respondent further considered the parole application on 25 October 2023. On that occasion, the respondent made a preliminary decision to refuse to grant the application.
[11] On 3 November 2023, the applicant filed an application for a statutory order of review in relation to the respondent's failure to decide his parole application within the prescribed period of 150 days.[7]
[12] The respondent notified the applicant of its preliminary decision in a letter dated 9 November 2023. The reasons provided for reaching the preliminary decision referred to several factors in favour of granting the application. However, the respondent informed the applicant that its preliminary view was that the risk the applicant presented to the community was unacceptably high and that the parole application should be refused having regard to the following factors:
[25]
(a) the applicant's criminal history;
(b) the applicant's performance under previous community-based supervision orders;
(c) the remarks made by Judge Lynham when sentencing the applicant on 16 April 2021;
(d) the applicant's custodial behaviour, including the assertion that the applicant had been committing domestic violence against his partner in the form of coercive control and verbal abuse during calls made on the prisoner telephone system.
[26]
[13] The respondent's preliminary conclusion was expressed as follows:
[27]
"The Board considered the risk to the community in releasing you to parole with supervision now, as compared to after you have shown a sustained period across which you remain incident free and demonstrate appropriate custodial behaviour.
[28]
Having regard to your conduct in custody via the [prisoner telephone system] and your criminal history, the Board formed the preliminary view that as you have been unable to maintain acceptable behaviour within the structured environment of a correctional centre, it cannot yet have confidence that you would comply with the conditions the Board is entitled to impose as part of a parole order to ensure your good conduct and that you do not commit an offence. The Board reasonably believes that you present an unacceptable risk to community safety, at this time."
[29]
[14] The respondent invited the applicant to provide it with further submissions or supporting documents addressing the issues raised by the preliminary decision before a final decision was made about the parole application.
[15] The respondent received a further submission from the applicant and correspondence from the applicant's partner on 23 November 2023.
[16] On 28 November 2023, the respondent further considered the parole application and decided to refuse to grant that application. The respondent notified the applicant of the decision in a letter dated 28 November 2023. That letter also stated that the respondent consented to the applicant lodging a fresh application for a parole order after six months from the date of the decision (28 May 2024).[8]
[17] The applicant was granted leave to amend his application for an order of review to review the respondent's decision to refuse his application for a parole order. The applicant then requested a statement of reasons in respect of the decision to refuse to grant the parole application. The respondent provided that statement of reasons on 4 January 2024 (Reasons). I will refer to relevant parts of the Reasons in addressing the grounds of review below.
[30]
Legislative context in which the decision was made
[31]
[18] The respondent is established under Ch 5, Pt 2 of the Corrective Services Act. One of its functions is to decide applications for parole orders, other than court-ordered parole orders.[9]
[19] A prisoner can apply for a parole order if they have reached their parole eligibility date in relation to their period of imprisonment.[10] After receiving an application for a parole order, the respondent must decide to either grant or refuse to grant the application.[11] The respondent has the power, by a parole order, to release a prisoner who has reached his or her parole eligibility date.[12]
[20] The Corrective ServicesAct does not specify the criteria for deciding whether to grant or refuse an application for a parole order. The discretion has been described as broad and unfettered, but one which is to be exercised having regard to the subject matter, scope and purpose of the Corrective Services Act.[13] The relevant purpose is "community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders."[14] It has been observed that this statement expresses two purposes (community safety and crime prevention) and three equally important ways of achieving those purposes (containment, supervision and rehabilitation).[15]
[21] The Minister may make guidelines about policies to help the respondent in performing its functions.[16] The relevant Ministerial Guidelines were issued on 20 December 2021 and took effect from 31 December 2021. Consistently with the purpose of the , clause 1.2 of the Ministerial Guidelines states that "[w]hen considering whether a prisoner should be granted a parole order, the highest priority for the Parole Board Queensland should always be the safety of the community". Clause 1.3 states that the respondent should consider whether there is an unacceptable risk to the community if the prisoner is released to parole and whether the risk to the community would be greater if the prisoner does not spend a period of time on parole under supervision prior to the fulltime completion of their prison sentence.
[32]
[23] Before considering the different grounds on which the applicant challenges the respondent's decision, it is important to recall the limits on the task undertaken on a review such as this. Judicial review of an administrative decision is confined to the legality of the decision. It is concerned with whether the decision was one which the respondent was authorised to make. It does not permit either a general review of the decision or a substitution of the decision which the court thinks should have been made.[18]
[33]
[24] Review on the grounds of legal unreasonableness was considered by the High Court in Minister for Immigration and Citizenship v Li,[19] and in Minister for Immigration and Border Protection v SZVFW.[20] Those decisions provide the following relevant statements of principle:[21]
[34]
(a) The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power.[22]
(b) A decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification.[23]
(c) Where it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the statute which confers the discretionary power, the discretion has not been exercised lawfully. Within the sphere of the statutory purpose, however, there is scope for a decision-maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts.[24]
(d) The courts' role in applying the legal standard of reasonableness is supervisory.[25] It does not permit an applicant to challenge a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters.[26]
[35]
[25] The Reasons identify the material which was before the respondent when it made the decision to refuse to grant the parole application.[27] That material disclosed factors which were favourable to the applicant:
[36]
(a) the availability of suitable accommodation to the applicant and support in the community upon release from custody;
(b) the applicant's generally good custodial behaviour, evidenced by his accommodation in a residential unit in custody, his previous placement on the farm, and his low security classification;
(c) the applicant's employment in custody as a farm hand and laundry worker;
(d) completion by the applicant of the Moderate Intensity Substance Intervention program, as well as numerous Adult Education, Vocational Education and Training courses;
(e) completion of the applicant's Relapse Prevention Plan in response to the respondent's request.
[37]
[26] The Reasons explained how the respondent had taken these favourable factors into account in coming to its decision.[28]
[27] The Reasons also set out the adverse factors the respondent considered:
[38]
(a) the applicant's criminal history (in accordance with cl 2.1(a) of the Ministerial Guidelines), and the remarks made about that criminal history by Judge Lynham when the applicant was sentenced on 16 April 2021;[29]
(b) the remarks made by Judge Lynham about the facts of the applicant's offending, and particularly his domestic violence offending, when the applicant was sentenced on 16 April 2021 (in accordance with cl 2.1(e) of the Ministerial Guidelines);[30]
(c) the applicant's non-compliance with a previous parole order (in accordance with cl 2.1(i) of the Ministerial Guidelines), resulting in his return to custody and the cancellation of that previous order upon his conviction for offences while subject to the order;[31]
(d) the applicant's behaviour towards his partner demonstrated by his use of the prisoner telephone system, which the respondent characterised as being consistent with acts of domestic violence, specifically the use of coercive control and verbal abuse;[32]
(e) the applicant's conduct in making threats to third parties during a conversation with his partner.[33]
[39]
[28] The respondent considered the further submissions and material which the applicant provided after being notified of the respondent's preliminary decision. This included the information that the applicant's partner had confirmed that there was no domestic violence order naming her as the aggrieved and that police had investigated the alleged acts of domestic violence and concluded that the allegations were unfounded.[34]
[29] Notwithstanding this further information, the respondent formed the view that there was an identifiable pattern of behaviour by the applicant towards his partner.[35] The respondent ultimately concluded that the applicant's use of the prisoner telephone system and conduct towards his partner was particularly relevant when considered with his previous non-compliance with parole orders and his history of domestic violence. It was those matters which informed the respondent's assessment of the community's safety, including the safety of his partner, if it granted the parole application.[36]
[30] The respondent considered the potential benefits if the applicant was to be released subject to conditions imposed by a parole order.[37] It also considered the risk to the community if it granted the parole application as opposed to the applicant being released on parole after he has demonstrated that he is able to behave appropriately on the prisoner telephone system and refrain from engaging in domestic violence.[38]
[31] Ultimately, the respondent concluded that the level of risk the applicant posed to the community at the time it decided the parole application was such that it could not be mitigated by way of parole conditions and that the applicant posed an unacceptable risk to the safety of the community.
[32] Having regard to the material which was before the respondent, and the various factors which it took into account in making its decision to refuse to grant the parole application, it cannot be said that the decision lacked an evident and intelligible justification or that the dominating, actuating reason for the decision was outside the scope of the purpose of the Corrective Services Act.
[40]
Second ground - natural justice and procedural fairness
[41]
[35] The notion of procedural fairness reflects the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which an administrative decision is likely to turn so that the person has an opportunity of dealing with it.[39]
[36] In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd,[40] the Full Court of the Federal Court said:
[42]
"Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."
[43]
[37] These principles are reflected in cl 3.2 of the Ministerial Guideline, which states:
[44]
"At a minimum, the principles of procedural fairness require that the substance of the material or main factors adverse to the prisoner be disclosed (including the proper disclosure of documents to the prisoner which may be relied upon in coming to a decision), and the prisoner be given an opportunity to comment before a decision is made."
[45]
[38] It became clear during the applicant's oral submissions that his complaint is that the respondent did not interview him before deciding to refuse to grant the parole application.[41] This complaint is misplaced.
[39] The respondent has a discretionary power to give a written notice requiring a person to attend a meeting of the respondent to give information relating to a prisoner's application for a parole order.[42] It did not exercise that discretionary power in considering the applicant's parole application. That is not a basis, however, to conclude that the applicant was denied natural justice or procedural fairness by the respondent in making its decision to refuse to grant the parole application.
[40] The respondent's letter notifying the applicant that it had deferred making a decision on the parole application identified the further information which the respondent sought from the applicant in order to further consider his application. The applicant subsequently provided that information and it was considered by the respondent.
[41] The letter advising the applicant of the respondent's preliminary decision identified the factors which had led the respondent to form a preliminary view that the applicant presented an unacceptable risk to community safety at that time. It invited the applicant to provide further submissions and supporting documents which addressed the issues raised in the letter. The applicant accepted that invitation and provided further material. The respondent considered that further material but concluded that there was no new information which alleviated the concerns identified in the preliminary decision.
[42] In those circumstances, I am not satisfied that the respondent made its decision to refuse to grant the parole application in breach of the rules of natural justice or procedural fairness.
[43] The second ground of review is not made out.
[46]
Third ground - failure to take into account a relevant consideration
[47]
[44] A failure to take into account a relevant consideration can only be made out as a ground of review if a decision maker fails to take into account a consideration that he or she is bound to take into account in making that decision. What factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose.[43]
[45] Where a decision maker is bound to take into account a consideration, there is a requirement to give that matter proper, genuine and realistic consideration.[44] However, care needs to be taken to ensure that the requirement does not encourage a "slide" into an impermissible merits review of the decision.[45]
[46] Not every consideration that a decision maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.[46]
[47] The applicant's submissions identified two relevant considerations which he claims the respondent failed to take into account:
[48]
(a) a letter from WN dated 20 September 2020;
(b) the fact that, if the parole application was granted, the applicant would be living in Brisbane on a parole order whereas his partner resides in Rockhampton.
[49]
[48] WN is the applicant's former partner. She is named as the aggrieved in a domestic violence order which commenced on 15 February 2021 and expires on 14 February 2026. The applicant is named as the respondent to that order. The applicant pleaded guilty to 27 contraventions of that order on 1 November 2021.
[49] The applicant stated in his oral submissions that he received the letter from WN while he was in custody.[47] In the letter, WN stated that she was not of sound mind in the period from 17 February 2020 to 25 February 2020 due to her severe drug use. She spoke highly of the applicant's character. She said that she had no idea what she had said in her statements (I infer statements made to the police) and that she could not let the applicant sit in jail because of lies she did not even know she had told. The applicant stated in his oral submissions that he pleaded guilty to domestic violence offences when he was not guilty of those offences but was now seeking, based on WN's letter, to have those convictions overturned.
[50] The applicant deposed to having provided the respondent with a copy of WN's letter on a date that he no longer recalls. The applicant's partner deposed to having provided a copy of the letter to police on 8 October 2023. The applicant also referred in his oral submissions to the letter having been forwarded to police. The evidence filed by the respondent included an affidavit of Ms Kennedy who deposed to having searched the respondent's file, including the parole application and its annexures, as well as submissions made by and on behalf of the applicant. The letter from WN was not contained in the respondent's file, nor was it recorded in Annexure 1 of the Reasons which identifies the materials before the respondent at the time it made the decision.
[51] I am not satisfied on the available evidence that the applicant provided a copy of WN's letter to the respondent (as distinct from the police), before the decision to refuse to grant the parole application was made. The respondent's decision-making process did not miscarry because it did not take the letter into account.
[52] Even if the applicant had satisfied me that he provided WN's letter to the respondent before it made its decision, I would not have been satisfied that the respondent was bound to take the letter into account. It was not a statement made under oath or affirmation. Although the applicant now asserts that he was not guilty of the domestic violence offences to which he pleaded guilty, he made no submission to that effect to the respondent. In those circumstances, I cannot see how the respondent could be bound to take into account an unsworn statement which casts doubt upon the applicant's conviction. If the respondent had received the letter but disregarded it in deciding to refuse to grant the parole application, it would not have committed an error of law.
[50]
Location of the applicant's proposed residence and of his partner's residence
[51]
[53] The Reasons disclose that the respondent knew of the address where the applicant's partner lived. This was the address where the applicant proposed to reside when he first made the parole application. The respondent did not approve the applicant living at that address with his partner.[48] Instead, it deferred making a decision and requested that the applicant provide an alternative accommodation review. The respondent received an accommodation review for 50/3813 Pacific Highway, Tanah Merah, where the applicant proposed to reside with his uncle.[49] The respondent's decision to refuse to grant the parole application was made based on the applicant residing with his uncle at the Tanah Merah address.[50]
[54] In these circumstances, I am satisfied that the respondent did take into account the fact that (if released under a parole order) the applicant would be living at a different address than his partner, and the location of each of those addresses, in making the decision to refuse to grant the parole application.
[52]
[55] The third ground of review is not made out on either basis advanced by the applicant.
[53]
Fourth ground - taking into account an irrelevant consideration
[54]
[56] Similar reasoning applies to this ground of review as to the previous ground. Taking into account an irrelevant consideration can only be made out as a ground of review if a decision maker is, on the proper construction of the statute conferring the power to decide, prohibited from considering the matter.[51] Not every irrelevant consideration which is taken into account will justify setting aside the impugned decision.[52]
[57] The applicant submits that the respondent's characterisation of his behaviour towards his partner, through his use of the prisoner telephone system, as being consistent with acts of domestic violence was an irrelevant consideration where there is no domestic violence order in place and where the police have investigated his conduct and declined to charge him with any offence.
[58] It is clear from the Reasons that the respondent considered the applicant's conduct towards his partner in the knowledge that there was no domestic violence order naming his partner as the aggrieved, nor any charges resulting from the police investigation of the applicant's use of the prisoner telephone system.[53] The question is whether in those circumstances the Corrective Services Act, properly construed, prohibited the respondent from taking the applicant's use of the prisoner telephone system, and specifically the manner in which he interacted with his partner via that medium, into account in deciding whether to grant the parole application. That question must be answered "no". The respondent considered the applicant's use of the prisoner telephone system in its assessment of the risk which the applicant posed to the safety of the community. Having regard to the subject matter, scope and purpose of the Corrective Services Act (see [20]-[21] above), the respondent's consideration of this aspect of the applicant's conduct cannot be characterised as reflecting an extraneous or improper purpose, nor did it render the decision bitrary or capricious.54
[55]
Fifth ground - failure to make the decision within the prescribed period
[56]
[60] The respondent acknowledged in its written submissions that it did not make its decision within the prescribed period of 150 days after it received the parole application.[55]
[61] This failure to decide the application within the prescribed period did not deprive the respondent of the jurisdiction to continue to determine the application outside the prescribed time.[56]
[62] There is a difference of opinion in earlier decisions as to whether the failure on the part of the respondent to decide the parole application within 150 days means that procedures that were required by law to be observed in relation to the making of the decision were not observed.[57] In McGrane v Queensland State Parole Board,[58] Boddice J (as his Honour then was) answered this question in the negative, concluding that although the respondent might have decided the application outside the specified time period, it nevertheless made a decision on the application as required by law. In Calanca v Queensland Parole Board,[59] Burns J reached the opposite conclusion.
[63] I prefer the view expressed by Boddice J in McGrane. That is because it seems clear that the Judicial Review Act makes separate provision for a person in the applicant's position, who is aggrieved by the failure to make a decision within a period fixed by a law such as s 193 of the Corrective Services Act, to apply for a statutory order of review in relation to the failure to make the decision within the prescribed period.[60] To the extent that Burns J indicated to the contrary in Calanca,[61] I would respectfully disagree. The applicant has made out a ground of review in relation to the failure of the respondent to make the decision within 150 days. What then is the appropriate form of relief?
[57]
(a) an order directing the making of the decision (which has no application in the present circumstances);
(b) an order declaring the rights of the parties in relation to the making of the decision; or
(c) an order directing any of the parties to do, or refrain from doing, anything that the Court considers necessary to do justice between the parties.
[58]
[66] The substance of the applicant's complaint about the respondent's delay in making the decision was that, if his parole application had been refused within 150 days, the time fixed by the respondent before he could make a further application for a parole order would have commenced and concluded earlier.[64] If the period during which the applicant was precluded from filing a further application for a parole order was still in effect then there might have been utility in making an order directing the respondent to accept a further application at an earlier date to reflect the impact of the delay in making the decision beyond the 150 days. In the present case, however, the date on which the applicant became eligible to make a further application has passed (see [16] above), such that there would be no utility in making an order to that effect. Nor can I see any utility in making any form of declaration in the circumstances of this case.
[67] The end result is that, although the applicant has made out a ground of review in relation to the failure of the respondent to make the decision within 150 days, I am not satisfied that it is appropriate to make any order.
[59]
[68] As I am not satisfied that the circumstances warrant the Court making any order provided for by the Judicial Review Act, the application will be dismissed. I will hear the parties as to costs.
[21] See also in this Court: Flegg v Crime and Misconduct Commission[2014] QCA 42, [3] and [13]-[16]; Francis v Crime and Corruption Commission[2015] QCA 218, [33]; WB Rural Pty Ltd v Commissioner of State Revenue[2018] 1 Qd R 526, 544-546 [64]-[65].
[45]Swift v SAS Trustee Corporation (2010) 6 ASTLR 339, 351-352 [45]; Minister for Immigration and Citizenship v SZJSS[2010] HCA 48; (2010) 243 CLR 164, 175-176 [30].
[51]Lo v Chief Commissioner of State Revenue(2013) 85 NSWLR 86, 89 [9]; Eclipse Resources Pty Ltd v McNamara, Chief Executive Officer, Dept of Environment and Conservation (No 2)[2012] WASC 264, [137]-[141].
[22] The Ministerial Guidelines do not fetter the exercise of the broad discretion of the respondent in deciding whether to grant or refuse an application for a parole order. They do not prescribe or limit how that discretion is to be exercised. They are, however, to be regarded as a relevant factor and must be taken into account by the respondent.[17]
[33] The applicant's submissions focus upon considerations which he asserts were taken into account but given insufficient weight by the respondent (see [4](c) above). To frame the challenge to the decision in that way shows that the applicant seeks to have this Court engage in a merits review of the decision to refuse to grant the parole application. As the authorities on the unreasonableness ground make clear, that is not a course which the Court will take on an application such as this.
[34] The first ground of review has not been made out.
[59] I am not satisfied that the respondent's consideration of the applicant's use of the prisoner telephone system meant that it took an irrelevant consideration into account. The fourth ground of review is not made out.
[64] The applicant seeks an order directing the respondent to reconsider its decision according to law. The Judicial Review Act provides that on an application for a statutory order for review of a decision, the Court may make an order quashing or setting aside the decision and referring the matter to the respondent for further consideration.[62] I doubt that such relief is available in circumstances where the respondent's failure to decide the parole application within 150 days is the only ground of review that the applicant has made out. Even if the discretion to make such an order has arisen in the present case, I am not satisfied that it would be appropriate to exercise that discretion in the way the applicant seeks.
[65] The Judicial Review Act makes separate provision for the orders that the Court may make on an application in relation to a failure to make a decision within the required period: that is, any or all of the following:[63]