Maycock v Queensland Parole Board [2013] QSC 302

Judgment (194 paragraphs)

[1]

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - GENERALLY - where the applicant applies for a statutory order of review of a parole board's decision - where the applicant was given the opportunity to provide written representations and submissions to the parole board - where the applicant was refused an oral hearing - whether the applicant is entitled to appear and make oral submissions and representations to the parole board

[2]

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - where the applicant put submissions and representations before the parole board - where the parole board were required to take a relevant consideration into account under ministerial guidelines - whether not making a finding in the statement of reasons proved failure to take the relevant consideration into account

[3]

Acts Interpretation Act 1954 (Qld), s 14A, s 27B

[4]

Corrective Services Act 2006 (Qld), s 187(1), s 189, s 190, s 193(3), s 227(1)

[5]

Corrective Services Act 2000 (Qld), s 137(1), s 137(2)

[6]

Corrective Services Act 1988 (Qld), s 169(1), s 169(8)

[7]

Judicial Review Act 1991 (Qld), s 20, s 20(2)(a), s 20(2)(e), s 23, s 23(b), s 24, s 33

[8]

Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409, cited

[9]

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, cited

[10]

Baba v Parole Board of NSW (1986) 5 NSWLR 338, considered

[11]

Cutts v The Board (Queensland Regional Parole Board) [2009] QSC 208, distinguished

[12]

Cutts v The Board of the Queensland Regional Parole Board [2010] QCA 60, distinguished

[13]

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 398, cited

[14]

Johns v Release on Licence Board (1987) 9 NSWLR 103, cited

[15]

Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, cited

[16]

Leggett v Queensland Parole Board [2012] QSC 121, considered

[17]

McGrane v Queensland Parole Board [2010] QSC 209 distinguished

[18]

Minister of Aboriginal affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, distinguished

[19]

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, cited

[20]

Mulley v Southern Queensland Regional Parole Board [2009] QSC 228, distinguished

[21]

Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319, cited

[22]

Queen & The Parole Board; Ex parte Birnie [1988] WAR 249, cited

[23]

R v Parole Board; Ex parte Smith [2005] UKHL 1; [2005] 1 WLR 350, cited

[24]

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, cited

[25]

Seiffert v Prisoners Review Board [2011] WASCA 148, cited Todd v Parole Board (1986) 6 NSWLR 71, cited

[26]

Zhang v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 489; (1993) 45 FCR 384, cited

[27]

[1] JACKSON J: Gregory William Maycock, the applicant, is serving a term of life imprisonment consequent upon a conviction for a murder committed on 1 March 1995. The applicant was aged 20 years at the time of the murder. He was then serving a term of imprisonment for armed robbery committed when he was aged 18 years. The murder was of another prisoner. The applicant and two other men attacked the victim in the latter's cell. The attack was premeditated and unprovoked. The victim died of his many stab wounds.

[28]

[2] In the many years since, the applicant's behaviour and classification as a prisoner have changed. Having spent all his adult life in prison, the question underlying the present application is whether he should be granted parole.

[29]

[3] On 1 March 2008, he became eligible for parole. On 19 September 2011, he applied for a parole order. On 1 February 2013, the Queensland Parole Board, the respondent, refused to grant the application ("the second decision").

[30]

[4] The applicant applies for a statutory order of review under s 20 of the Judicial Review Act 1991 (Qld) ("JR Act"). The grounds are that there was a breach of the rules of natural justice in relation to the making of the second decision (s 20(2)(a)), or that the making of the second decision was an improper exercise of the power conferred by the enactment by which it was purported to be made (s 20(2)(e)) in that the respondent failed to take relevant considerations into account (s 23(b)).

[31]

[5] The first ground resolves into a contention that the respondent was obliged to afford the applicant an oral hearing. The applicant sought such a hearing by a letter received by the respondent after 24 December 2012 as follows:

[32]

"I invite you the Board to speak to me either in person or via video link. I feel I have been given limited chances to voice myself, to express myself. In fact the only chances I've been given to express my personality or views is via these correspondences and this seems restricted, my freedom is the topic at hand."

[33]

[6] This plea was made at the end of an over-lengthy process during which the respondent gathered material from the applicant and others about his application, apprised the applicant of its preliminary views, sought further responses from him, made a first decision not to grant a parole order, gave reasons for the first decision, withdrew the first decision, again apprised the applicant of its preliminary views and sought further responses from him, then made the second decision. The period to make the second decision, overall, well exceeded the maximum period permitted by s 193(3) of the Corrective Services Act 2006 (Qld) ("CSA") to decide the application. The fault, in that respect, appears to lie at the respondent's door.

[34]

[7] As appears from the statement of reasons furnished by the respondent, under s 33 of the JR Act, there were 77 documents which constituted evidence or material on which the findings of fact contained in the statement of reasons were said to be based.

[35]

[8] The material in support of the application included written representations made by the applicant. On 24 November 2011, an internal Parole Panel recommended that parole be ordered. On 24 November 2011, the authorised delegate concurred with the Parole Panel's recommendation.

[36]

[9] On 16 December 2011, the respondent deferred consideration of the application in order to obtain a psychiatric assessment of the applicant. On 17 February 2012, the respondent received Dr de Leacy's psychiatric assessment report. On 11 May 2012, the respondent formed a preliminary view that the applicant may pose an unacceptable risk to the community, if released on parole. On or about 23 May 2012, the respondent informed the applicant of that view. On or about 11 June 2012, the applicant responded.

[37]

[10] On 6 July 2012, the respondent decided to refuse to grant the application ("first decision"). However, on 29 November 2012 the respondent withdrew the first decision. On 7 December 2012, the respondent further considered the application and again reached a preliminary view that the applicant would pose an unacceptable risk to the community if he were released on parole at that time. On 24 December 2012, the respondent informed the applicant of that preliminary view and sought any further response. Some time after 7 January 2013, the applicant responded.[1] The applicant's plea for an oral hearing was made on that occasion.

[38]

[11] The second decision, refusing to grant a parole order, was then made on 1 February 2013.

[39]

[12] On 20 March 2013, the respondent gave its statement of reasons for the second decision. The statement of reasons records that:

[40]

"The board also declined to have the applicant appear before it either in person or via video link as it had sufficient information to come to a conclusion regarding the application without his appearance."

[41]

[13] In its statement of reasons, the respondent "relied on and accepted the findings contained in the report of Dr de Leacy" as follows:

[42]

"The prisoner does not suffer a mental illness. The crimes were not committed under the influence of drugs and alcohol and therefore drugs and alcohol are not a primary issue in this case but if he were to be given parole he should naturally refrain from illicit drugs as should any citizen and should be subjected to random urine tests. He should also not drink alcohol to excess. He would need to undergo counselling as a form of monitoring and would have to have regular follow up with his parole order.

[43]

It is quite clear that the act that he committed was extremely callous. This was the work of a psychopath. He had and probably still has to a degree an antisocial personality. Through the course that he has done he has learnt to control his antisocial tendencies but this does not necessarily mean that his personality has actually been transformed ...

[44]

It is my concern that the prisoner if released, may react adversely if he is challenged by an aggressor. He did not strike me as particularly appeasing in his demeanour at the interview and there is a risk that he could respond to aggression with aggression and the least serious scenario would see him breach parole with an outburst but with a more serious scenario it could conceivably lead to him acting with extreme violence. For this reason I would be of the opinion that his ability to resist responding to aggression needs to be further tested. The best way to do this is for him to spend more time in open custody and have further leaves of absence in the community where he will come in contact with members of the general public and his response in various settings could be tested."

[45]

[14] The extent of the respondent's reliance on Dr de Leacy's report also appears as follows:

[46]

"Taking into consideration the ministerial guidelines, the Board preferred the professional medical opinion provided by Dr de Leacy over the opinions of the Parole Board Report authors. In addition, the Board considered that the Parole Board Report recommendation was based on the applicant's institutional behaviour whereas Dr de Leacy's report was based on an assessment of risk of reoffending in the community."

[47]

[15] Under s 193 of the CSA, the respondent is required to consider a prisoner's application for a parole order and must decide either to grant the application or to refuse to grant the application. Section 193 is the enactment under which the decision was made. Provision is made for an application for a parole order under Ch 5 Pt 1 Div 1 of the CSA. Chapter 5 Pt 1 Div 2 of the CSA provides for the procedure for hearing and deciding the application, and includes s 193. Of present relevance, s 187(1) provides that the respondent may hear and decide an application for a parole order from a prisoner within particular categories which included the applicant. Sections 189 and 190 make provision for persons to appear before the respondent or a regional board as follows:

[48]

(1) Unless the Queensland board makes a requirement under subsection (2), a prisoner's agent may, with the Queensland board's leave, appear before the Queensland board to make representations in support of the prisoner's application for a parole order that may be heard and decided by the Queensland board.

[49]

(2) The Queensland board may require a regional board -

[50]

(a) to hear a prisoner's, or prisoner's agent's, representations in support of the prisoner's application for a parole order that may be heard and decided by the Queensland board; and

[51]

(b) to make a recommendation to the Queensland board on the prisoner's suitability for parole.

[52]

(3) A prisoner or the prisoner's agent may, with a regional board's leave, appear before the regional board to make representations in support of the prisoner's application for a parole order that may be heard and decided by the regional board.

[53]

(4) The chairperson of a regional board may require a corrective services officer present at a board meeting to leave and remain out of the hearing of the meeting for the time the chairperson directs.

[54]

(5) If a prisoner appearing before a regional board insults a member of the board or disrupts the board's proceedings, the prisoner's leave to appear before the board may be cancelled.

[55]

(6) This section does not stop a parole board deciding an application for a parole order if the prisoner or the prisoner's agent fails to appear before the board.

[56]

(a) appear by using a contemporaneous communication link between the board and the prisoner or the prisoner's agent; or

[57]

(b) if the person appearing is a prisoner with a special need - appear personally.

[58]

Applying for leave to appear before parole board

[59]

(1) An application for leave to appear before a parole board must be made in the approved form to the board.

[60]

(2) The secretary of the board must tell the prisoner of -

[61]

(b) if the board grants the leave - the time and place at which the prisoner or the prisoner's agent may appear before the board."

[62]

[16] Section 189(1) applies to an application for a parole order made to the respondent, including the application made in the present case. The applicant submits that subsection (1) only deals with a "prisoner's agent" and says nothing about the right of the applicant, as the prisoner, to appear before the respondent to make representations. The applicant's submission is that s 189 does not deal with a prisoner's appearance before the respondent at all. The respondent submits that the ability of a prisoner to appear before the respondent is dealt with in s 190, and is encompassed by the text: "an application for leave to appear before a parole board".

[63]

[17] It seems odd that s 189(3) refers to "a prisoner or prisoner's agent" in the case of a regional board, yet s 189(1) only refers to "a prisoner's agent" in respect of the respondent, when each is dealing with leave to appear to make "representations in support of the prisoner's application for a parole order". The context, that s 189(3) specifically refers to both a prisoner and prisoner's agent, supports the applicant's contention that s 189(1) does not deal with a prisoner's entitlement to appear before the respondent. The applicant submits that the entitlement to appear before the respondent falls to be assessed by the common law of natural justice requiring procedural fairness.

[64]

[18] It seems that the history of the legislation explains the apparent difference between s 189(1) in relation to the respondent and s 189(3) in relation to a regional board. On 28 August 2006, the CSA repealed the Corrective Services Act 2000 (Qld). On 1 July 2001, the Corrective Services Act 2000 (Qld) repealed The Corrective Services Act 1988 (Qld). The source of the anomaly starts in the Act of 1988.

[65]

[19] Section 169(1) of the Act of 1988 provided for a prisoner to be represented before the forerunner of the respondent, the Queensland Community Corrections Board, by an agent, who could make representations to the board in support of the application. But s 169(8) provided that, with limited exceptions, a prisoner may not appear before the board in respect of the prisoner's application. However, where the application was to be considered by a Regional Community Corrections Board, the prisoner or the prisoner's agent could appear and make representations.

[66]

[20] Section 137(1) of the Act of 2000 provided that a prisoner's agent may appear before the Queensland board with the leave of board and s 137(2) provided that a prisoner or prisoner's agent may appear before a regional board with the leave of that board. Thus, the prohibition previously contained in s 169(8) in the Act of 1988 upon a prisoner appearing before the Queensland Community Corrections Board was not continued for the Queensland board under the Act of 2000. However, the relevant subsection which provided for appearance before the Queensland board only expressly extended to a prisoner's agent.

[67]

[21] That structure was continued in the CSA, so that s 189(1) provides expressly for appearance before the respondent by the prisoner's agent, with the respondent's leave, whereas s 189(3) provides for such appearance before a regional board by the prisoner or the prisoner's agent with the regional board's leave.

[68]

[22] What is clear under s 189(1) is that there is no express prohibition against a prisoner appearing before the respondent. The respondent did not contend that s 189(1) should be construed in that way by implication.

[69]

[23] In Annetts v McCann,[2] it was said:

[70]

"In Tanos, Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from 'indirect references, uncertain inferences or equivocal considerations'. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v. Parole Board of New South Wales." (footnotes omitted)

[71]

[24] The respondent submitted that s 189(1) should be construed, in conjunction with s 190, as providing for representation before the respondent by either the prisoner or a prisoner's agent, with the respondent's leave. However, in my view, s 190 is a machinery provision. It provides that "an application for leave to appear" before a parole board is one which must be made in a particular manner. In context, "an application for leave to appear" is one provided for under s 189. Section 189(1) does not provide for a prisoner to make an application for leave to appear before the respondent. At first blush, it seems unlikely that was an oversight. However, having regard to the history of predecessor legislation, as set out above, that may be what happened.

[72]

[25] Section 189(1) should be interpreted so that "the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation".[3] If it could be concluded that the omission of a reference to the prisoner in s 189(1) is just a clear drafting mistake and that the operation of the subsection were absurd, it would be possible to construe it even by supplying words so as to avoid absurdity.[4] However, in my view, there is no problem of that kind which is engaged by the apparent difference between the operation of the text of s 189(1) and 189(3). Rather, s 189(1) leaves the question of any appearance before the respondent by a prisoner, as opposed to the prisoner's agent, as a matter to be resolved by the rules of natural justice.

[73]

[26] In Saeed v Minister for Immigration and Citizenship,[5] it was said by the plurality:

[74]

"In Annetts v McCann it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power. Brennan J in Kioa v West explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:

[75]

'[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that 'the justice of the common law will supply the omission of the legislature'. The true intention of the legislation is thus ascertained.'

[76]

The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann.

[77]

Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West. A failure to fulfil that condition means that the exercise of the power is inefficacious. A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid." (footnotes omitted)

[78]

[27] It follows, in my view, that the applicant's contention of a right to an oral hearing in the present case does not fall to be resolved by whether or not the respondent erred in refusing to grant "leave" to appear before it under 189(1). The question for decision is whether or not the applicant was entitled to appear and make oral submissions and representations to the respondent as a matter of common law or implied grant of statutory right. As was said in Plaintiff M61/2010E v Commonwealth:[6]

[79]

"It was said, in Annetts v McCann, that it can now be taken as settled that when a statute confers power to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, principles of natural justice generally regulate the exercise of that power. In Kioa v West, different views were expressed about whether the requirements of procedural fairness arise from the common law or instead depend upon drawing an implication from the legislation which confers authority to decide. It is unnecessary to consider whether identifying the root of the obligation remains an open question or whether the competing views would lead to any different result. It is well established, as held in Annetts, that the principles of procedural fairness may be excluded only by 'plain words of necessary intendment'." (citations omitted)

[80]

[28] There are two relevant decisions of this Court which should be noted. First, in Cutts v The Board (Queensland Regional Parole Board,[7] Dutney J considered an application for judicial review on the ground, inter alia, that the applicant was denied natural justice "in not being permitted to attend before the board to make his submissions orally". It should be borne in mind that any question of appearance in that case fell for decision under s 189(3), because it was a regional board. Dutney J said:

[81]

"The allegation of breach of natural justice has no substance. The applicant was given the opportunity to address the Board's concerns in detail. In fact, he took that opportunity. The rules of natural justice do not require personal attendance in every case. All that is required is a proper opportunity to address those matters thought to be adverse to the applicant. That opportunity has been afforded. A personal appearance by a prisoner before the Board is only permitted with the Board's leave. The application must be in the approved form. There is no evidence that such an application in the approved form was made."[8]

[82]

[29] The question of a right to an oral hearing was revisited in the Court of Appeal in Cutts.[9] Holmes JA said:

[83]

"The content of what natural justice requires depends largely on construction of the statute under which the decision is being made; the obligation is a flexible one, to

[84]

'adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.'

[85]

His Honour was right to have regard to the statutory limitation on appearance in person and to conclude in the circumstances of the case that the obligation of fairness was met by the giving of the opportunity to make submissions. The rules of natural justice did not mandate a personal appearance."[10]

[86]

[30] In Mulley v Southern Queensland Regional Parole Board,[11] de Jersey CJ dealt with a contention by the applicant for judicial review that the regional board "should have given the applicant an opportunity to be heard orally". De Jersey CJ said:

[87]

"As to (e), the respondent proceeded appropriately in accordance with the statutory framework, and was obliged to accord the applicant an oral hearing. He was given a full and fair opportunity to place relevant material before the respondent, and to utilise that opportunity."

[88]

[31] Neither Cutts nor Mulley is on point for the present case, because they were cases where leave to appear was required under s 189(3) and s 190. There does not appear to be any other case in Queensland which deals with the position of a prisoner under s 189(1).

[89]

[32] Looking further afield, there are cases where the question of a prisoner's right to make oral submissions has been considered in the context of a power to grant or to revoke parole. Thus, in 1988 in R & Parole Board; Ex parte Birnie,[12] Kennedy J said that "an oral hearing is probably not necessary" about a hearing on an application to suspend or revoke parole under Western Australian legislation.

[90]

[33] However, on a similar question under NSW legislation, in 1987 the NSW Court of Appeal in Johns v Release on Licence Board[13] followed earlier cases that decided an oral hearing may be required, concluding that:

[91]

"...the opportunity to address and endeavour to persuade the Board are all features of a decision-making process which places a high store on reaching the correct decision. Where that decision concerns directly the freedom of the individual it must be reached exhibiting such a high measure of care."[14]

[92]

[34] Of the earlier NSW cases, in the context of a power to reduce a non-parole period, in Todd v Parole Board[15] the NSW Court of Appeal considered an argument that the prisoner was entitled to an oral hearing. Hope JA said:

[93]

"Mr Allpass gave evidence of the Board's practical difficulties and I think it is fair to say that they do exist but they are by no means insuperable or so difficult that they justify denying an oral hearing in any case... I have concluded that, having regard to the seriousness of the Board's decision from the prisoner's point of view and the difficulty if the Board had to act in different ways according to the type of issue it considered was involved, the better course is to conclude that the Board should provide a right of oral hearing as part of the right to procedural fairness to which a prisoner being considered under cl 5(2) is entitled."[16]

[94]

[35] And more recently, in the context of a revocation of parole hearing, Lord Bingham of Cornhill in the House of Lords in R v Parole Board; Ex parte Smith[17] reviewed the question of an oral hearing by examining cases as to procedural fairness in that context under statute in the United Kingdom, United States, Canada and Australia, including reference to Mason J's well known statement of reasoning in Kioa v West.[18] After reference to a number of factors which may be in play where the question is whether an oral hearing is necessary, his Lordship concluded that:

[95]

"The common law duty of fairness does not, in my opinion, require the Board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think that the duty is as constricted as has hitherto been held and assumed... The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society."[19]

[96]

[36] It will be observed that none of these statements supports an unqualified right to an oral hearing for the asking, and that they were made in the context of a revocation hearing rather than an application for a grant of parole in the first place. In the same vein, reference may be made to an even more recent case, in the WA Court of Appeal, Seiffert v Prisoners Review Board.[20] The question there was whether the board was entitled to adopt a policy of not granting oral hearings. It was held that to do so fettered a statutory discretion to permit an oral hearing. However, in passing, Martin CJ said:

[97]

"...while I would accept that in many cases the nature of the decision to cancel parole would render it appropriate for the prisoner to be given an opportunity to be heard in person before that decision was made, I would not accept the proposition that the rules of procedural fairness would necessitate the provision of such an opportunity in each and every case, because there may be cases in which such an opportunity would be unnecessary. On this subject, I prefer the view expressed by Kennedy J in R & Parole Board; Ex parte Birnie [1988] WAR 249, 275 to that expressed by Burt CJ (253), and to that expressed by the Court of Appeal of New South Wales in Baba v Parole Board (NSW) (1986) 5 NSWLR 338, 345. Further, support for the view which I prefer is to be found in R v Parole Board; Ex parte Smith [2005] UKHL 1; [2005] 1 WLR 350, [35] (Lord Bingham)."[21]

[98]

"the duty to accord procedural fairness can give rise to a duty to provide an oral hearing in relation to decisions about parole."[22]

[99]

[38] These statements should not be seen as creating a clear judicial answer to the question of whether an oral hearing is required as some matter of legal principle. Speaking in 1993 in the context of migration tribunal processes, French J (as he then was) referred to the "balance to be struck between the roles of the respective arms of government" when he said in Zhang v Minister for Immigration, Local Government and Ethnic Affairs:[23]

[100]

"Although there has been considerable development in the area of procedural fairness since the decision of the House of Lords in Local Government Board v Arlidge, there is still much to be said for the observation of Lord Shaw (at 138) where, speaking of the need for administrative authorities to act honestly and by honest means, he said:

[101]

'In regard to these certain ways and methods of judicial procedure may very likely be imitated; and lawyer-like methods may find especial favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of the courts of justice is wholly unfounded.'"[24]

[102]

[39] Yet, over and again, it has been repeated that the question of the content of a requirement as to procedural fairness does depend on the context, including the circumstances of the case. For example, in a NSW Court of Appeal case dealing with a right to be heard by appearing before a parole board on a decision of rescission of a parole order, Baba v Parole Board of NSW,[25] it was said:

[103]

"The content of the rules of natural justice are not fixed but vary with the circumstances of the case. As Aickin J pointed out in Heatley v Tasmanian Racing and Gaming Commission (at 514) '...Fairness may require, or be satisfied by, different procedures even by the same statutory authority in different circumstances'."[26]

[104]

[40] In the present case, the applicant relies on two specific matters as underpinning the right to an oral hearing. First, the applicant sought to be able to respond to the "finding" by Dr de Leacy accepted by the respondent that "if released [the applicant] may react adversely if he is challenged by an aggressor. He did not strike me as particularly appeasing in his demeanour at the interview...".

[105]

[41] There is no doubt that the applicant responded to this subject matter in his written representation to the respondent.

[106]

[42] Secondly, the applicant sought to be able to respond to Dr de Leacy's opinion that the applicant "had no significant level of remorse or victim empathy." Again there is no doubt that the applicant responded to this subject matter in his written representations. Not only that, there was evidence of remorse in the reports of the "Parole Board Report authors". However, the respondent made no finding adverse to the applicant on this point. That was not inadvertent. None of the preliminary view of the respondent dated 23 May 2012, the first decision dated 13 July 2012, the statement of reasons for the first decision dated 13 August 2012, the preliminary view for the second decision dated 24 December 2012, the second decision dated 1 February 2013 or the statement of reasons for the second decision dated 20 March 2013 relied on the alleged fact that the applicant had no significant level of remorse. It is not shown, therefore, that the respondent had an adverse view to the applicant on that fact.

[107]

[43] Thirdly, in oral submissions, the applicant relied on there being a conflict of evidence that he would be able to access "more time in open custody and have further leaves of absence in the community where he would come in contact with members of the general public", as assumed by Dr de Leacy.

[108]

[44] Again this was a matter addressed by the applicant in his written representation to the respondent.

[109]

[45] Beyond those points, the applicant's contention was that as there were contradictions between his submissions and representations as to his character and the opinions expressed by Dr de Leacy and differences between the opinions of Dr de Leacy and the "Parole Board Report authors" as to whether he should be released, he should have been afforded an oral appearance.

[110]

[46] Each of the points made reduces to the core contention that the applicant ought to have been given "the opportunity to address and endeavour to persuade the board", as mentioned in Johns, above.

[111]

[47] Some particular features of the present case cause disquiet. It must be hoped that the context in which the applicant made his request for an oral hearing was unusual.

[112]

[48] The application for parole was made on 19 September 2011. By the end of November 2011, the respondent had received material and recommendations favourable to the application from the Parole Board Report authors. It then set out to obtain a further opinion, from Dr de Leacy. It received that opinion, in March 2012. In May 2012, it formed a preliminary view that it would refuse to grant a parole order. And having received further submissions from the applicant, it made the first decision to refuse to grant a parole order, in July 2012.

[113]

[49] Having been asked for, and having provided, a statement of reasons for the first decision, the respondent withdrew the first decision on 29 November 2012. It was then more than 14 months after the initial application and 12 months after the Parole Panel and authorised delegate's recommendations. Even Dr de Leacy's opinion was then 10 months old. In the absence of any further material about the applicant's progress over that time, the respondent again formed the preliminary opinion that it would refuse to grant the application, in December 2012. Having again received further submissions from the applicant, and his request for an oral hearing, it refused to grant the application on much the same grounds as the first decision. The second decision not to grant a parole order, made in March 2013, relied on the Dr de Leacy's report in preference to the Parole Board Report and recommendations, as had the first decision made on 6 July 2012.

[114]

[50] There is at least the air of formalism in this repetitive approach and process. That was part of the context in which the request for an oral hearing was refused.

[115]

[51] When the second decision was made, on 1 February 2013, the period from receipt of the application was 501 days, when the maximum period allowed under s 193(3) of the CSA was 210 days. When the applicant asked for an oral hearing, on or about 24 December 2012, the period which had passed was 462 days.

[116]

[52] In these unusual circumstances, it would have been better, in my view, if the respondent had afforded the applicant an oral hearing. But the denial of that hearing was not a breach of natural justice. In my view, the applicant was not entitled to an oral hearing in law - an opportunity to address and endeavour to persuade - by way of procedural fairness. The opportunities he was given to make representations in writing were enough to satisfy the requirement of a fair hearing.

[117]

Relevant considerations: responding appropriately to aggression and inability to progress to open custody

[118]

[53] The applicant relied on a failure to consider "the case put by the Applicant", in two respects: first, that the applicant had a demonstrated history of responding appropriately to aggression and would be able to do so if released on parole; secondly, that the applicant could not progress to open custody or take leave of absence.

[119]

[54] The first point was a response made by the applicant to Dr de Leacy's report and the respondent's preliminary view as expressed on 14 December 2012. The applicant's complaint is that apart from acknowledging receipt of the applicant's submissions, the respondent made no reference to the applicant's case (meaning written representations) in relation to these issues. They are not specifically referred to in the statement of reasons.

[120]

[55] The applicant's submission is that the respondent thereby failed to give "proper, genuine and realistic" consideration to the matter and failed to consider the case put by the applicant.

[121]

[56] Case law which identifies the need to consider "the case put by the applicant" does not precisely conform to the taxonomy of the grounds of review under ss 20, 23 and 24 of the JRA. Leggett v Queensland Parole Board[27] recognised that failure to deal with the case advanced may amount to a failure to accord natural justice or to exercise jurisdiction. And in McGrane v Queensland Parole Board,[28] a failure to consider whether an assumed premise for a decision was possible was held to be a failure to consider a matter which was an essential consideration. Although neither of those decisions is expressed in terms of failing to take a relevant consideration into account under ss 20(2)(e) and 23(b) of the JRA, in my view that is probably the appropriate analysis of McGrane, while it may be that Leggett should be seen as engaging the ground of breach of natural justice under s 20(2)(a) of the JRA.

[122]

[57] The applicant relied on Dranichnikov v Minister for Immigration and Multicultural Affairs,[29] in support of the contention that a tribunal is obliged to respond to a substantial, clearly articulated argument relying upon established facts, as an obligation to consider the case put. However, the articulation of an obligation in those terms was characterised in Dranichnikov as a failure to accord natural justice, not a failure to take into account a relevant consideration. There is a similarity and possible overlap between an obligation to consider a case put by a party and an obligation to take into account a relevant consideration but the two grounds are not the same, in my view. The difficulty of characterising Dranichnikov has been analysed by Professor Aronson.[30]

[123]

[58] In my view, if the distinction is not recognised, the failure of a decision maker to consider any one of many points put by a person seeking the exercise of power in a particular way might be elevated to failure to take into account a relevant consideration.

[124]

[59] From the proposition that the respondent was obliged to consider the case put to it and therefore to take a matter put to it into account, the applicant next invoked the contention that to take a matter into account requires a decision maker to give it proper, genuine and realistic consideration, a formulation often associated with the decision of Khan v Minister for Immigration and Ethnic Affairs.[31]

[125]

[60] The analysis of a decision by reference to these criteria may amount to nothing more than a method of reviewing the merits of a decision based on emphatic disagreement with the decision maker's view. As the High Court, faced with cognate reasoning of a court below, said (in a regrettably lengthy passage) in Minister for Immigration v SZJSS:[32]

[126]

"In Khan v Minister for Immigration and Ethnic Affairs, Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the ADJR Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister's delegate was required to '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.'

[127]

In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs, the Minister accepted that a statutory provision requiring a tribunal to give an applicant an opportunity to appear before it and give evidence implies that such evidence is to be given proper, genuine and realistic consideration. The Minister reiterated that position in this case.

[128]

In Swift v SAS Trustee Corporation, Basten JA (with whom Allsop P agreed) noted Khan's case and said of the language of 'proper, genuine and realistic consideration' (at [45]):

[129]

'That which had to be properly considered was 'the merits of the case'. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review.'

[130]

The first and second respondents contended that the Tribunal's treatment of the facts, more particularly the letters, was arbitrary, capricious, irrational and unreasonable, and accordingly was inconsistent with the tribunal's statutory duty to review. It was submitted that the Federal Court's findings of irrationality, unreasonableness (without describing it as such) and a constructive failure to exercise jurisdiction were wholly consistent with the accepted principles governing judicial review.

[131]

The Minister contended that the weight to be accorded to the letters, and the factual matters to which they gave rise, were entirely matters for the tribunal as they concerned the merits of the application. It was submitted that the Federal Court employed the language of 'proper, genuine and realistic consideration' to register the court's response to a weighing of the evidence with which the Court disagreed. This, it was said, does not amount to jurisdictional error of the kind discussed by this Court in Minister for Immigration and Citizenship v SZMDS.

[132]

...The weighing of various pieces of evidence is a matter for the Tribunal.

[133]

It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to 'any rational, reasonable approach to the evaluation' and the need for 'a proper, genuine or realistic evaluation' of the letters, the Federal Court was registering emphatic disagreement with the tribunal's assessment of the factual matters to which the letters were relevant. It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu. When employing the formula 'proper, genuine and realistic evaluation' in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the tribunal weighed the letters was the first respondent's evidence of the effects of social and political changes in Nepal.

[134]

Whether the letters were 'highly supportive' or 'powerfully corroborative' (as they appeared to the Federal Court) of the first respondent's claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal's preference for other evidence, including the first respondent's own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf's case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs."

[135]

[61] The applicant's contention that the respondent did not consider his contention that he had a demonstrated history of responding appropriately to aggression is based on the absence of any reference to that point in the respondent's statement of reasons.

[136]

[62] The starting point is that a failure to take a relevant consideration into account constitutes a ground of judicial review only where the repository of the power in question is bound to take the consideration into account.[33]

[137]

[63] Next, whether the decision maker is bound to take the consideration into account is primarily a matter of statutory interpretation which extends beyond the Act's terms and into its subject matter scope and purpose, as well as the nature of the power.[34] Where no limits are expressly imposed, the relevant considerations will be disputable in some cases.

[138]

[64] Still, the circumstances may be such that a particular factual dispute or issue, and the contentions made about it, become a relevant consideration. For example, in Peko-Wallsend, it was held that once it was concluded that the subject-matter, scope and purpose of the Act indicate that something is a vital factor to the exercise of the power, "it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the [decision-maker] has to hand."[35] And: "It would be a strange result indeed to hold that a [decision maker] is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making [the decision], and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading."[36]

[139]

[65] In the present case, there is no question that the subject matter, scope and purpose of the relevant provisions make the safety of the community and the interests of the prisoner through rehabilitation relevant considerations in exercising the power to grant a parole order.[37]

[140]

[66] The consideration of those matters was required to be based on the most recent and accurate information that the respondent had to hand. Dr de Leacy's report had raised the question that: "there is a risk that he could respond to aggression with aggression and the least serious scenario would see him breach parole with an outburst but with a more serious scenario it could conceivably lead to him acting with extreme violence. For this reason I would be of the opinion that his ability to resist responding to aggression needs to be further tested."

[141]

[67] The most recent and accurate information as to the applicant's history of responding appropriately to aggression and the submissions of the applicant about that information were, therefore, to be taken into account as part of the relevant considerations.

[142]

[68] Did the respondent fail to take those considerations into account? The applicant relies on the absence of any express reference to his submissions on the point in the statement of reasons. However: "the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."[38]

[143]

[69] The respondent did not overlook the question of the risk of the applicant's response to aggression. It relied on that risk, at least among other things, in deciding not to grant a parole order. The question is whether it overlooked information as to the applicant's history of responding to aggression or his submission about it. There is nothing in the statement of reasons to support the conclusion that it did, except for the failure to expressly refer to those matters. In the circumstances here, that is not enough to show a failure to take the relevant considerations into account. There is nothing from which it can be inferred that the information and submission must have been overlooked, rather than Dr de Leacy's view being preferred. This is not a case like Peko-Wallsend or McGrane, for example, where the particular relevant consideration by way of unchallenged information and submission could not have been taken into account because of inconsistent findings.

[144]

[70] Secondly, the applicant's contention that the respondent failed to take into account that the applicant could not progress to open custody or take leave of absence, suffers from the same weakness. It is true that the part of Dr de Leacy's report extracted in the statement of reasons includes the statement that: "The best way to do this is for him to spend more time in open custody and have further leaves of absence in the community where he would come in contact with members of the general public and his response in various settings could be tested." However, the applicant made a clear statement in his final written representation that he was not able to access open custody, because his transfer to an appropriate facility where that was available had been refused. He stated that: "open security is no longer an option. I can not progress to open custody to do LOA's."

[145]

[71] The applicant also attached a copy of a Notice of Placement Decision to the applicant from Queensland Corrective Services dated 4 January 2013 to his submission in response to the Board's correspondence dated 24 December 2012. The notice stated that: "...this transfer will not occur..."

[146]

[72] The respondent's statement of reasons states that: "The Board noted the information contained in the Applicant's submission in response to the Board's correspondence dated 24 December 2012." As well, the respondent stated that: "The Board acknowledged the recent decision by Queensland Corrective Services to decline the Applicant's transfer to a low security facility."

[147]

[73] In my view, there is no reason to infer that the respondent overlooked that the applicant could not progress to open custody while not transferred.

[148]

Relevant consideration: compliance with previous grant of community service or work programs

[149]

[74] Lastly, the applicant relied on the respondent's failure to take into account the applicant's previous compliance with community service or work programs as a failure to take into account a relevant consideration.

[150]

[75] There is no reference to this specific consideration in the statement of reasons. It had not been raised by the applicant in his lengthy written representations.

[151]

[76] The applicant must show that his previous compliance is a relevant consideration that the respondent was obliged to take into account. He relied on s 227(1) of the CSA which provides:

[152]

"The Minister may make guidelines about the policy to be followed by the Queensland board when performing its functions."

[153]

[77] A guideline made under s 227(1) is "to be followed". The Ministerial Guidelines, as made under that provision, provide that the respondent:

[154]

"should have regard to all relevant factors, including... the prisoner's previous compliance with any previous grant of community based release, resettlement leave program, community service or work programs...".

[155]

[78] In the material before the respondent there were copies of 9 grants of leave of absence for days during the period from 9 August 2011 to 7 October 2011. They were attached to his response to the respondent's correspondence dated 24 December 2012.

[156]

[79] Much earlier, the Parole Panel Report of 24 November 2011 had stated that the applicant "was maintaining a trusted position at Darling Downs Correctional Centre and was working outside the perimeter", had "been employed in the industries area" and had "been participating in leaves of absences (LOAs) for the purpose of employment while he was accommodated at Darling Downs Correctional Centre." There was a similar statement about the applicant having done so "previously" in Dr de Leacy's report.

[157]

[80] In the statement of reasons, the respondent "noted the information contained in the Applicant's submission...". It also said that it "took into account the Ministerial Guidelines...".

[158]

[81] However, there is no evidence that the respondent directly considered or did not consider the applicant's previous compliance with community service or work programs.

[159]

[82] The applicant's submission assumes that the respondent is required to expressly consider and make relevant findings of fact and evidence about Ministerial Guideline factors in the statement of reasons, or at least those arguably raised by the circumstances, failing which it will have failed to take into account a relevant consideration.

[160]

[83] I accept that the applicant's previous compliance with community service or work programs is relevant to the safety of the community and the interests of the prisoner through rehabilitation as relevant considerations. The Ministerial Guidelines reinforce that conclusion and go further. Because the respondent is required by s 227(1) to follow the guideline, it is required to have regard to an applicant's previous compliance with community service or work programs. Therefore, such compliance is a relevant consideration the respondent is required to take into account.

[161]

[84] Did the respondent fail to take it into account? The relevant information was definitely before the respondent. That the applicant had been granted LOAs for participation in a work program or programs was information apparent from the copies of the LOAs attached to the applicant's last written representation, which the respondent said it "noted". Was it necessary for the respondent to state expressly in the statement of reasons that it had considered the applicant's previous compliance with community service or work programs for it to be concluded that the consideration had been taken into account?

[162]

[85] The requirements imposed under s 27B of the Acts Interpretation Act 1954 (Qld) are that the respondent's statement of reasons set out the findings on material questions of fact, and refer to the evidence or other material on which those findings were based. In Minister for Immigration and Multicultural Affairs v Yusuf,[39] the majority said about a similar statutory obligation to set out findings of fact and to refer to the evidence:

[163]

"It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration." (emphasis added)

[164]

[86] The conclusion which follows, in my view, is that the "relevant factors" which are identified in the Ministerial Guidelines made under s 227 will inform the findings of material fact which it will be necessary for the respondent to make in order to avoid the risk that, by not making a material finding of fact, the respondent will be found not to have taken into account a relevant consideration, within the meaning of ss 20(2)(e) and 23(b) of the JRA.

[165]

[87] The respondent's failure to make a finding of fact that the applicant complied with community service or work programs thus can be said to identify that it did not take that compliance into account as a relevant consideration. Once that point is reached, even if the fact was that the respondent did take the relevant material into account, the form of the statement of reasons supports the opposite conclusion. Thus, even though both the Parole Panel report and Dr de Leacy's report referred to the LOAs and working outside the perimeter, that will not repel the inference, which follows from the form of the statement of reasons, that compliance with the relevant community service or work programs was not considered.

[166]

[88] It follows, in my view, that the applicant has made out this ground of his application that the respondent failed to take into account a relevant consideration, namely the applicant's compliance with the previous grants of community service or work programs.

[167]

[89] The outcome is that the decision must be set aside and referred to the respondent for further consideration in accordance with these reasons.

[168]

[90] I will hear the parties on the question of costs.

[169]

[1] The attached documents included a Notice of Placement Decision dated 4 January 2013 bearing a print date of 7 January 2013.

[170]

[2] [1990] HCA 57; (1990) 170 CLR 596 at 598.

[171]

[3] Acts Interpretation Act 1954 (Qld), s 14A.

[172]

[4] Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409 at 417.