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[2014] QSC 133
General information, not legal advice.
Supreme Court of Queensland
2014-06-18
Jackson J
Original judgment source is linked above.
ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWER OF A DECISION-MAKER TO REMAKE A DECISION - where the respondent rescinded and remade a decision to refuse an application for a parole order - where the respondent subsequently reconsidered the second decision, without notice to the applicant - whether the respondent was authorised in law to reconsider and affirm a decision upon an application for a parole order without notice.
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - where the respondent had refused the applicant's application for a parole order on the basis that the applicant posed an unacceptable risk to the community, if released - where the respondent had concerns as to how the applicant would cope without the constant supervision of incarceration - where a psychiatrist's report stated that the applicant was not a high risk of violent reoffending - where the applicant had stated he would submit to any parole conditions the respondent might impose - where the respondent didn't appear to consider whether appropriate conditions might reduce the risk of the applicant reoffending - whether the imposition of appropriate conditions might affect whether the applicant poses an unacceptable risk to the community was a relevant consideration that the respondent was required to take into account
Acts Interpretation Act 1954 (Qld), s 24AA
Judicial Review Act 1991 (Qld), s 20(2)(a), s 20(2)(e), s 20(2)(h), s 23(b), s 23(g)
Calanca v Queensland Parole Board [2013] QSC 294, followed
Firearm Distributors Pty Ltd v Carson [2000] QSC 159; [2001] 2 Qd R 26, cited
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, followed
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, considered
McGrane v Queensland State Parole Board [2014] QSC 17, followed
Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193, cited
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, cited
Minister for Immigration and Multicultural Affairs v Yusuf (M10 of 2000) [2001] HCA 30; (2001) 206 CLR 323, cited
**[1] Jackson J: Under s 20 of the Judicial Review Act 1991 (Qld) ("JRA"), Jorai Pangilinan applies for a statutory order of review of the respondent Board's decision to refuse to grant his application for a parole order. The decision was made on 8 October 2013 and purportedly affirmed on 6 December 2013 in extraordinary circumstances. The application for judicial review is made on many grounds. Summarising, in the face of the applicant's challenge to its first "final" decision, the respondent rescinded that decision, made a second "final" decision and then considered the matter again. The 6 December 2013 decision was thus the third "final" decision on a single application for a parole order.
[2] The applicant is serving a term of imprisonment for life for murder. The sentence was imposed, and the term commenced, on 1 February 1998.
[3] On 21 December 2012, the respondent acknowledged that it had received an application for a parole order by the applicant. He was not then eligible to apply for a parole order because he had not reached his parole eligibility date.
[4] On 1 February 2013, the applicant became eligible to apply for parole.
[5] On 22 January 2013, the respondent wrote to the applicant, informing him that on 11 January 2013 the respondent had considered the application and formed the preliminary view that the applicant may pose an unacceptable risk to the community if released on parole. It enclosed a copy of the materials considered by the respondent comprising documents numbered from 1 to 325. It stated that the respondent had taken into account the Ministerial Guidelines which state that the respondent should give the highest priority to the safety of the community when deciding an application for a parole order. It set out reasons for the preliminary view and requested that the applicant provide any further submissions within 14 days.
[6] The applicant sought and was granted more time to make further submissions. On 4 March 2013, he provided further submissions in 46 pages and many pages of attachments.
[7] On 5 April 2013, the respondent decided to refuse the application for a parole order ("first final decision").
[8] On 29 April 2013, the respondent wrote to the applicant, stating that it had fully considered his submissions and taken into account, noted or acknowledged some matters, but concluded that:**
"For the reasons set out in its previous letter to you the Board decided that you would be an unacceptable risk to the community on a parole order at this time and your application has been declined."
**[9] On 1 May 2013, the applicant sought reasons for the first final decision.
[10] On 22 May 2013, the respondent provided reasons for the decision. After setting out the history of the application and the evidence and material before the respondent on which the findings of fact were based, they continued as follows:**
1. The Applicant is serving a period of life imprisonment for the offence of Murder. The Applicant was also convicted of the offences of Grievous bodily harm with intent to do grievous bodily harm, Grievous bodily harm, Unlawful wounding, Stealing, Common assault, dealing with prohibited thing, Unlawful possession of weapon (2) for which he received lesser concurrent periods of imprisonment. The Board noted the serious, violent nature of the Applicant's offences.
2. The Applicant became eligible to apply for Parole on 01 February 2013 pursuant to section 181 of the Corrective Services Act 2006.
3. The Board noted that the Applicant has been accommodated in the secure area of correctional facilities since his incarceration in 1998. The Board deemed this unacceptable. The Parole Board Report dated 20 December 2012 records the following:
'Prisoner Pangilinan has been in secure custody since 5 February 1998, during this time he has been accommodated in a number of centres. A review of his case notes indicates that his behaviour fluctuates between acceptable and unacceptable.
At times Prisoner Pangilinan can be polite and courteous in his interactions with staff, on other occasions he can be described as manipulating a situation to achieve a desired outcome. He can also become argumentative and abusive when an outcome does not suit him. He does however maintain a very high standard of personal and cell hygiene.
A review of the prisoner's violation history since 2 February 1998 supports his sometimes unacceptable behaviour with 30 incidents and 20 breaches during that period, of these 7 incidents and 3 breaches have occurred during the last 12 months.
Prisoner Pangilinan has also been subject to a number of Intensive Management Plans (IMP) during his incarceration. Prisoner Pangilinan is currently subject to an IMP which commenced on 29 October 2012 due to his continued unacceptable institutional behaviour. This plan is due for further review on 10 December 2012'.
This report gave the Board cause for concern as it indicated to the Board that even in a highly structured environment, the Applicant was unable to control his behaviour and demonstrates poor self control. This led the Board to have concerns about how the Applicant would be able to cope in the community without the constant supervision that incarceration provides. The Board was concerned that the Applicant would be a greater risk of re-offending and pose an unacceptable risk to community safety if released into the community at this time.
4. The Board took into consideration the Applicant's submission dated 04 March 2013 that he was unable to progress to a low security facility due to being a 'protection' prisoner. The Board encourages the Applicant to progress to a low security classification and the residential area of a correctional centre to demonstrate his ability to self regulate and behave in a less structured environment.
5. The Board noted the Applicant reported that he had completed all recommended intervention programs during this period of imprisonment and there are no further recommendations at this time. It is noted that the Applicant has completed the following intervention programs:
6. The Board noted that the Applicant had incurred eight drug related breaches since his conviction. These were a result of providing positive urinalysis samples, ingesting or administering drugs/medication and possession of drugs. Furthermore, two of these major breaches occurred as recently as 26 September 2012 and 02 October 2012. It is noted that these breaches occurred despite having recently completed the drug intervention of Getting SMART Program.
7. The Applicant submitted a relapse prevention plan with his Application which did not fulsomely detail how he proposed to manage his behaviour upon release into the community. The Board considered the relapse prevention plan to be deficient in addressing his chronic drug addiction. The Board had concerns that the Applicant's inability to create an appropriately detailed relapse prevention plan demonstrates that he does not appreciate the challenges that parole may pose and that the aspects of his plan identified above need to be more fulsomely addressed before the Board can consider the Applicant to be an appropriate candidate for Parole. The Board acknowledged receipt of a further offending and substance abuse relapse prevention plan from the Applicant, which was considered prior to a final decision having been made.
8. The Board consented to the Applicant reapplying for parole six months from the date of the final decision.
Based on the findings listed above, including the serious violent nature of the Applicant's offences, his fluctuating institutional behaviour resulting in his failure to progress to a lower security environment, his chronic drug abuse history and recency of drug related breaches, the Board considered the Applicant poses an unacceptable risk to the community and decided to refuse his application for parole."
**[11] On 30 May 2013, the applicant filed the application for a statutory order of review.
[12] On 1 July 2013, Margaret Wilson J made directions for the hearing of the application.
The rescission of the first final decision and the making of the second final decision
[13] On 13 September 2013, the application for judicial review was to come on for hearing. Before it did, the respondent determined to rescind the first final decision. It further considered the application for a parole order and (again) formed the preliminary view that the applicant would pose an unacceptable risk if released on parole at that time.
[14] Thus, on 13 September 2013, Dalton J adjourned the application for judicial review to a date to be fixed and made further directions.
[15] On 18 September 2013, the respondent wrote to the applicant, informing him that on 13 September 2013 it had rescinded the first final decision, reconsidered the application for a parole order and (again) formed the preliminary view that the applicant may form an unacceptable risk to the community of released on parole. It enclosed copies of documents numbered 1 to 447 considered by the respondent in reaching the preliminary view. It stated that the respondent had taken into account the Ministerial Guidelines. It set out reasons for the preliminary view and invited any further submissions by the applicant by 25 September 2013.
[16] On 24 September 2013, the applicant made further submissions in 64 pages and many pages of attachments.
[17] On 8 October 2013, the respondent decided to refuse the application for a parole order ("second final decision"). On 9 October 2013, the respondent wrote to the applicant, informing him of the second final decision. It stated that the respondent had taken into account the applicant's submission dated 24 September 2013, acknowledged some matters and noted others. It concluded that the application for a parole order was declined "[f]or the reasons set out in this letter and its previous letter to you".
[18] On 11 October 2013, the respondent wrote to the applicant enclosing a statement of reasons for the second final decision. After setting out the history of the application and the evidence and material relied upon for the material findings of fact, they continued as follows:**
1. The Applicant is serving a period of life imprisonment for the offence of Murder. The Applicant was also convicted of the offences of Grievous bodily harm, Unlawful wounding, Stealing, Common assault, Dealing with prohibited thing, Unlawful possession of weapon (2) for which he received lesser concurrent periods of imprisonment. The Board noted the serious and violent nature of the Applicant's offences.
2. The Applicant became eligible to apply for Parole on 01 February 2013 pursuant to section 181 of the Corrective Services Act 2006.
The Board noted that the Applicant has been accommodated in the secure area of correctional facilities since his incarceration in 1998. The Board deemed this unacceptable, as evidenced in the Parole Board Report dated 20 December 2012 as follows:
'Prisoner Pangilinan has been in secure custody since 5 February 1998, during this time he has been accommodated in a number of centres. A review of his case notes indicates that his behaviour fluctuates between acceptable and unacceptable.
At times Prisoner Pangilinan can be polite and courteous in his interactions with staff, on other occasions he can be described as manipulating a situation to achieve a desired outcome. He can also become argumentative and abusive when an outcome does not suit him. He does however maintain a very high standard of personal and cell hygiene.
A review of the prisoner's violation history since 2 February 1998 supports his sometimes unacceptable behaviour with 30 incidents and 20 breaches during that period, of these 7 incidents and 3 breaches have occurred during the past 12 months.
Prisoner Pangilinan has also been subject to a number of Intensive Management Plans (IMP) during his incarceration. Prisoner Pangilinan is currently subject to an IMP which commenced on 29 October 2012 due to his continued unacceptable institutional behaviour. This plan is due for further review on 10 December 2012'.
4. The Board considered that the Applicant has incurred eight drug related breaches of discipline since his conviction, which include providing positive urinalysis samples, ingesting and administering medication/drugs or possession of drugs. The Board was concerned that two of these breaches occurred less than twelve months ago and
following completion of the Getting SMART Program. The Getting SMART Program is designed to assist prisoners with substance abuse histories.
In addition, the Board considered advice that in September 2013, the Applicant has been observed to display unacceptable behaviour including not presenting himself appropriately for required custodial headcount, being observed in an unauthorised location and having been verbally abusive and argumentative with staff.
The Board is of the opinion that, as evidenced by the above, the Applicant's self control is poor and his behaviour fluctuates between being compliant if things are going his way to argumentative and abusive when they are not. The Board also noted that because of this behaviour, the Applicant was subject to an Intensive Management Plan as recently as January 2013.
The Board was concerned as even in a highly structured environment and despite the length of time he has been in custody, the Applicant was unable to control his behaviour and demonstrates poor self control. This led the Board to have concerns about how the Applicant would be able to cope in the community without the constant supervision that incarceration provides. The Board was concerned that the Applicant would be a greater risk of re-offending and pose an unacceptable risk to community safety if released into the community at this time.
The Board paid careful regard to the Applicant's explanations in respect to the breaches recorded in the recent months. However, the Board is not persuaded that he has been completely blame free in respect to those matters.
5. The Board took into consideration the Applicant's submission dated 04 March 2013 that he was unable to progress to a low security facility due to being a 'protection' prisoner. The Board advised the Applicant that while he is a 'protection' prisoner, this is not a determinative factor when making a decision regarding security classification.
Furthermore, the Applicant is able to progress to a low security classification despite his 'protection' status. The Applicant's history of self-harm also does not preclude the Applicant from progressing to a low security classification. The Board noted the Applicant's explanation in his submission dated 24 September 2013 as to why he has not yet achieved a low security classification, however were of the opinion that despite the length of time he has been in custody, he has not achieved low classification although that classification is potentially available to him.
The Board encourages the Applicant to make every endeavour to progress through the correctional system, obtaining a low security classification and progressing to residential accommodation where he is able to exercise self control in a less structured and regulated environment.
6. The Board noted the Applicant reported that he had completed all recommended intervention programs during this period of imprisonment and there are no further recommendations at this time. It is noted that the Applicant has completed the following intervention programs:
7. The Applicant submitted a relapse prevention plan with his Application which did not fulsomely detail how he proposed to manage his behaviour upon release into the community. The Board received a further improved plan which was deemed adequate. However, the Board still had concerns of the Applicant's ability to abide by the plan, given his unacceptable institutional behaviour while being accommodated in such a structured environment, The Board would have more confidence in the Applicant's ability to abide by the plan if he were able to demonstrate acceptable, stable behaviour within the custodial environment.
8. The Board determined that there was no information contained in the Applicant's submission dated 24 September 2013 which would alleviate its concerns raised in its correspondence to him dated 18 September 2013.
9. The Board consented to the Applicant reapplying for parole six months from the date of the final decision.
Based on the findings listed above, including the serious violent nature of the Applicant's offences, his fluctuating institutional behaviour resulting in his failure to progress to a lower security environment, his drug abuse history and recency of drug related breaches, the Board considered the Applicant poses an unacceptable risk to the community and decided to refuse his application for parole."
[19] On 23 October 2013, the applicant filed an amended application for a statutory order of review of the second final decision.
[20] On 16 November 2013, the applicant filed particulars of the amended application.
[21] On 18 November 2013, Dalton J made further directions and the matter was set down for hearing on 9 December 2013.
[22] On 4 December 2013, the respondent "noted" the second final decision to decline the application for a parole order. There is no explanation as to why that was done.
[23] Without notice to the applicant, on 6 December 2013 the respondent considered the applicant's "matter" again. The respondent "determined to affirm their decision made on 8 October 2013 to decline the applicant's application for parole" ("third final decision"). There is no explanation as to why that was done.
[24] The grounds of the amended application for judicial review relate to the second final decision only. That is because the respondent rescinded the first final decision and gave the applicant no notice of the making of the third final decision.
1. the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made (s 20(2)(e) of the JRA) because:
1.1 the exercise of the power was so unreasonable that no reasonable person could so exercise the power (s 23(g));
1.2 the respondent failed to take relevant considerations into account (s 23(b));
1.3 the respondent acted in accordance with a rule or policy without regard to the merits of the particular case (s 23(f));
2. a breach of the rules of natural justice happened in relation to making the decision (s 20(2)(a)) because of:
2.2 the applicant's legitimate expectation of being granted parole; and
3. procedures required by law to be observed in relation to the making of the decision were not observed (s 20(2)(b));
4. there was no evidence or other material to justify the making of the decision (s 20(2)(h)).
**[26] The applicant abandoned ground 2.3 to the extent that it was based on not having been provided with an officer's report referred to in the statement of reasons. The relevant report was the Parole Panel's Report which he had been provided with before the making of the first final decision and the second final decision. Otherwise, he relied on the grounds as particularised.
The central provisions of the enactment under which the decision was made
[27] The application for a parole order was made under s 180 of the Corrective Services Act 2006 (Qld) ("CSA"). The decision to refuse to grant the application was made under s 193 of the CSA.
[28] The function of the respondent is to decide applications for parole orders: s 217(a) of the CSA. The Board meets as often as is necessary to perform this function: s 224(1) of the CSA. Its decisions are made by a meeting of four members or more. The chairperson is the President or deputy President and the chairperson must identify and decide all questions of law that need to be decided at the meeting. All other questions are decided by majority votes of members present. If there is an inequality of votes the chairperson has a casting vote: s 224 of the CSA. The Minister may make guidelines about the policy to be followed by the Board when performing its functions: s 227(1) of the CSA.
[29] The Board has power to all things necessary or convenient to be done before or in connection with the performance of its functions: s 241 of the CSA.
[30] The rescission of the first final decision, the making of the second final decision and the path to the third final decision show that the respondent considered that it was authorised to withdraw and re-make the first final decision. As well, after the second final decision was made, the respondent acted on the basis that it was authorised to "further consider" the application and to "affirm" the second final decision, by the third final decision, without notice to the applicant.
[31] The hearing set down for 9 December 2013 was the second time the applicant had brought his challenge to the respondent's refusal of his application for a parole order to a final hearing. At the hearing on 9 December 2013, the respondent relied on the third final decision as the operative decision dismissing the applicant's application for a parole order.
[32] In those circumstances, I directed that the hearing also proceed as an application for a statutory order of review of the third final decision, returnable instanter, on the footing that the applicant not be required to file any further application or amended application for review. The applicant submitted that the third final decision was made in breach of natural justice because he was neither notified of any withdrawal of the second final decision nor given notice of the respondent's intention to consider the application for a parole order again.
[33] I raised the question of the respondent's power to make the third final decision. The respondent submitted that it was entitled to reconsider and affirm (or repeal) a decision on an application for a parole order under s 24AA of the Acts Interpretation Act 1954 (Qld) which provides that:**
"24AA Power to make instrument or decision includes power to
If an Act authorises or requires the making of an instrument or decision -
(a) the power includes power to amend or repeal the instrument or decision; and
(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision."
**[34] The respondent referred to Firearm Distributors Pty Ltd v Carson[1] as relevant to the power to reconsider and affirm the second final decision. Reference might also be added to other authorities.[2] There are helpful articles written on the subject as well.[3] The respondent also submitted that it was not required to give the applicant notice of its intention to make the third final decision.
[35] It is necessary to analyse the relevant statutory provisions with some care in reaching a decision on these points.
[36] A number of provisions regulate the process of making a decision upon an application for a parole order made under s 180 of the CSA. Under that section, an application may only be made if a prisoner has reached the prisoner's parole eligibility date. If a previous application for a parole order has been made and refused, a prisoner may not bring another application until the earlier of the end of the period decided by the parole board or after 180 days have elapsed from the prior decision, unless the parole board consents.
[37] Under s 188 of the CSA, after receiving a prisoner's application, a parole board must give the chief executive notice of the application and the chief executive must notify eligible persons. The notice to an eligible person must advise the person that the prisoner has applied for parole and the parole board is about to consider whether the parole order should be made. The eligible person has a right to make submissions, within 21 days after the date of the notice, about anything relevant to making the parole order that was not before the court at sentencing.
[38] Under s 189 of the CSA, a prisoner's agent or prisoner may appear before the parole board with leave.
[39] Under s 245 of the CSA, the chief executive must give a report on the prisoner's application to the parole board, if asked to do so by a parole board.
[40] Under s 193 of the CSA, the parole board must decide to grant or to refuse the application. The decision on the application must be made within 180 days of receiving the application or, if the decision is deferred until the board obtains additional information, within 210 days. If the board refuses to grant the application, it must give the prisoner written reasons for the refusal and, in most cases, decide a period of time of not more than six months during which the prisoner must not make a further application for a parole order, without the Board's consent.
[41] Where a decision is made under s 193 to grant a parole order, there are detailed specific provisions which provide for amendment, suspension and cancellation of the parole order in Div 5 Pt 1 of Ch 5 of the CSA.
[42] As mentioned previously, s 241 of the CSA provides that the respondent has "power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions" and the functions of the respondent set out in s 217 of the CSA include the primary function "to decide applications for parole orders".
[43] Where a decision is made under s 193 to refuse an application for a parole order, it might be suggested that s 241 supports an argument that the respondent has power to further consider and affirm the decision or grant the application under. For example, in some cases it has been held that the terms of a statute implied a power to revisit a decision. However, the respondent did not rely upon s 241 or any implied power to reconsider a decision made under s 193. It relied on s 24AA of the AIA.
[44] A useful starting point in the case law is found in the following passage from Gummow J's reasons in Minister for Immigration and Ethnic Affairs v Kurtovic:[4]**
"There was 'an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise': Halsbury's Laws of England (1st ed), Vol 27, p 131. However, s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed 'from time to time as occasion requires'. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resign from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue."
**[45] Section 24AA of the AIA is in similar, if wider, terms to s 33 of the Acts Interpretation Act 1901 (Cth). Notwithstanding the terms of s 24AA, it is a question of construction of s 193 of the CSA whether the power to refuse an application for a parole order confers the power to "repeal" or "amend" the decision under s 24AA. The answer to that question turns on whether the application of s 24AA is displaced by a contrary intention appearing in the CSA.[5]
[46] There are indications of a contrary intention appearing. In my view, any amendment, cancellation or suspension of a parole order must be made in accordance with specific statutory powers under Div 5 Pt 1 of Ch 5. It is not open to the respondent to simply reconsider its decision to grant a parole order under s 193.
[47] Next, if a decision is made to refuse the grant of a parole order, there are a number of provisions which are engaged before an applicant can seek to have the question revisited. First, it will be recalled that, leaving aside an exceptional circumstances parole order, a decision of a parole board is one which is engaged by an application for a parole order made by a prisoner under s 180 of the CSA and that the prisoner may only make the application in qualifying circumstances, being the attainment of a parole eligibility date. Second, following a refusal, a further application cannot be made, unless a parole board consents, until a further specified period of time has elapsed, although that period must not be longer than six months from the decision.
[48] Further, a final decision on the application must be made within a limited period of time. Nothing suggests that the CSA contemplates that after making a decision the respondent might choose to revisit the question of its own motion outside that time.
[49] The present case presents an example of the problems that can arise if the respondent can recall and re-make a decision to refuse an application for a parole order of its own accord. The application was forwarded to the respondent before the applicant reached his eligible parole date, but was treated as though it had been made after that date, which was 1 February 2013. A decision on the application was required to be made within 180 or 210 days, depending on the circumstances. The date that was 180 days was 31 August 2013.
[50] When the first final decision was rescinded, the applicant was given a further opportunity to make representations. On 24 September 2013, the applicant made further representations in writing. On 8 October 2013, the second final decision was made. It provided that the applicant could not make a new application for six months from the date of the decision.
[51] On 6 December 2013, there was nothing further of that kind. Without notice, the respondent purported to reconsider the application and to make a further decision "affirming" the second final decision. The third final decision did not provide any time within which the applicant might make a new application. It is unclear whether the time under s 180(2) of the CSA is the time provided in the second final decision or whether there is now no time provided. If no time is provided, the respondent would have contravened s 193(5)(b) of the CSA.
[52] The respondent did not rely on s 23 of the AIA as authorising the third final decision. Under that section "if an Act confers a function or power on a... body, the function may be performed, or the power may be exercised, as the occasion requires." In my view, the respondent was right not to rely on s 23. The power to make a decision under s 193 of the CSA is not one that can simply be exercised from time to time by the repository of the power as it sees fit. An application by a prisoner for a parole order is a required first step in the process.
[53] Although there is no express provision made for the right of a prisoner to make representations on an application for a parole order, that right is undoubted. With the leave of the respondent, a prisoner's agent may appear to make representations, as provided under s 189(1) of the CSA. That section appears to assume the existence of a right to make representations without a right to appear. Section 190 of the CSA provides for an application for leave to appear. Sections 189 and 190 assume that the prisoner will know that the parole board is to hear and decide the application. A prisoner who does not have notice of an intention to further consider an application for a parole order cannot exercise the right to apply for leave for an agent to appear.
[54] In my view, these statutory provisions do not operate consistently with the notion that, where the respondent decides to refuse an application under s 193 of the CSA, it may in all cases, of its own motion, recall and decide to further consider the application. In my view, at least where the respondent has made a decision which is a legally effective decision for the purposes of s 193, it thereafter has no power to recall and to reconsider the decision already made.
[55] On the other hand, where the exercise of a power is affected by a legal error, in some cases the outcome may be characterised in law as no exercise of the power at all. In such a case, a so-called further consideration or revisiting of the exercise of the power by the repository may be both possible and required by law, because the authority and duty to exercise the power have not been exercised lawfully in the first place.
[56] This kind of question can easily lead to complex considerations of the concepts of validity and invalidity which attend the judicial review of administrative decisions. For example, in Minister for Immigration and Multicultural Affairs v Bhardwaj,[6] the High Court considered whether the Immigration Review Tribunal had the power to recall and reconsider a decision not to revoke a decision to cancel a student visa. By mistake, the tribunal had not been aware that Mr Bhardwaj, the applicant for the visa, was unable to attend the hearing on the scheduled date. The delegate's decision to cancel the visa was confirmed by the tribunal. On learning of the mistake, the tribunal reconvened its hearing and reconsidered its first decision not to revoke the cancellation of the visa. On the merits, it then revoked the decision to cancel the visa. In the High Court, the Minister contended that the tribunal was functus officio after its first decision. The applicant relied on s 33 of the Acts Interpretation Act 1901 (Cth) as a source of power for the tribunal to reconsider its first decision. The High Court found that the first decision of the tribunal was made in jurisdictional error. Because of that, it was "no decision at all".[7]
[57] In the present case, on 13 September 2013, the respondent decided to "rescind" the first final decision. After that, following a process which gave the applicant a further opportunity to make representations in relation to the respondent's reformulated preliminary views on the application, the respondent proceeded to consider the application for a parole order again. In my view, that course of action by the respondent is consistent with the conclusion that the first final decision did not operate as a legally effective decision under s 193 of the CSA, because it was affected by an error which was either a jurisdictional error or another error which had the consequence that the first final decision was "no decision at all". That characterisation is at least consistent with the decision making process followed by the respondent.
[58] However, the approach of the respondent in relation to the third final decision was different. It did not "rescind" the second final decision, and thereby acknowledge that it had no legal effect for jurisdictional or other vitiating error. It did not give notice to the applicant of an intention to reconsider the application or an opportunity to make representations as to any reformulated preliminary views. It purported, without notice to him, to reconsider the application. An available inference is that the respondent had regard to the applicant's amended application for judicial review of the second final decision. That is, the process involved a partial reconsideration of the second final decision having regard to some matter not previously considered. The respondent also took into account further information not available to it at the time of the second final decision.
[59] In my view, the respondent was not authorised in law to proceed in that fashion. Section 24AA of the AIA did not give it the power to do so, for the reasons previously stated. Nor, in my view, did s 241 of the CSA.
[60] It follows, in my view, that the third final decision is reviewable as a decision not authorised by the enactment under which it was purported to be made and that the respondent did not have jurisdiction to make the decision under s 20(2)(c) and (d) of the JRA.
[61] It is, therefore, necessary to deal with the applicant's amended application for a statutory order of review of the second final decision
[62] The grounds of the application and the particulars of those grounds set up no less than 60 separate complaints. Unusually, they begin with the ground that the second final decision was an exercise of power so unreasonable that no reasonable person could exercise the power and end with the allied ground that there was no evidence or other material to justify the decision, but they are not confined to that.
[63] In support of the grounds, the applicant filed detailed written submissions in 61 pages which he supported by oral submissions. The affidavits on which he relied ran to many hundreds of pages of exhibits. This manner of making the application made it difficult to isolate the true substance of the grounds advanced.
[64] I have read and re-read the materials. Before dealing with separate subject matters, some points may be made that will shorten the length of these reasons.
[65] As mentioned, the applicant's first ground of review is that the exercise of the power to grant or refuse to grant his application for a parole order by the respondent was so unreasonable that no reasonable person could so exercise the power: s 20(2)(e) and 23(g) of the JRA.
[66] He relies on the contention that there was a "failure to give proper realistic and genuine regard to critical information, having drawn inferences on the basis of an erroneous view of the facts, having established a critical finding on speculation there was a lack of evident and intelligible justification in the exercise of discretion, having interfered with a right interest or freedom in a manner disproportionate to the objectives sought to achieve and that there was a failure to consider that the decision and findings not only had the power to interfere with an interest right or freedom could also injure my reputation."
[67] In different places, the applicant repeatedly relies on the proposition that the respondent failed to give proper, realistic and genuine regard to or failed to properly, genuinely and realistically consider a particular subject matter or matters. The formulation of "proper, genuine and realistic" consideration is one associated with the judgment of Gummow J in Khan v Minister for Immigration and Ethnic Affairs.[8] The context was a decision upon permanent resident status which might have the effect of breaking up a family unit. The passage was:**
"However, what was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy: Howells v Nagrad Nominees Pty Ltd [1982] FCA 177; (1982) 66 FLR 169 at 195, Kioa v West (above) at 604, Chumbairux v MIEA (1987) 74 ALR 480 at 492-494. That consideration included, in respect of each application, the effect or likely effect of refusal of the application upon members of the family; cf Tabag v MIEA [1982] FCA 276; (1982) 70 FLR 61 at 67, referred to by Wilson J in Kioa v West (above) at 604. The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense: Turner v MIEA [1981] FCA 65; (1981) 35 ALR 388 at 392, Chumbairux v MIEA (1987) 74 ALR 480 at 495-496."
[68] However, in the context of a ground of review based on unreasonableness, Gummow J's formulation may only serve to emphasise that the person who uses it disagrees on the merits with the challenged decision. As was said in Minister for Immigration and Citizenship v SZJSS:[9]
"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':
'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.'" (citations omitted)
[69] Second, the recent reconsideration of Wednesbury unreasonableness by the High Court in Minister for Immigration and Citizenship v Li[10] may be thought to have breathed new life into that ground of review. Nevertheless, the following salutary warning appears in the reasons of the plurality:
"This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
In Klein v Domus Pty Ltd, Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority, requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.
Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury has been criticised for 'circularity and vagueness', as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury..."[11] (footnotes omitted)
**[70] The power to decide to grant or refuse an application for a parole order is a broad discretion. The respondent is a specialist body constituted to exercise the power using expertise derived from the qualifications and experience of its members and in the busy day to day dispatch of its business. It makes its decisions having regard to a number of relevant matters including policies developed by it and matters it is required to take into account. Notwithstanding the frequency of applications for judicial review of a decision to refuse an application for a parole order, cases where a decision is set aside for unreasonableness are rare birds. There is no reason to think that Li's case has changed that legal scenario.
[71] The power to make the decision was succinctly analysed by Margaret Wilson J in Calanca v Queensland Parole Board:[12]**
"[28] The parole system is an integral part of the sentencing and corrective services arrangements in this State. Except where the sentencing court fixes a parole release date pursuant to s 160C of the Penalties and Sentences Act 1992 (Qld), a prisoner has no right to release on parole. Rather, he becomes eligible for parole at a point in his sentence which is determined either by legislative prescription or by the sentencing court (having regard to matters provided for in the applicable sentencing legislation). Then it is for a parole board, on application by the prisoner, to decide whether to grant parole.
[29] The decision whether to grant parole is within the discretion of the parole board. The factors the parole board may take into account in the exercise of that discretion are not expressly stated in the Corrective Services Act, and must be determined by implication from the subject-matter, scope and purpose of that act.
[30] The Corrective Services Act deals with many aspects of the corrective services system beyond parole. The purpose provision, s 3, applies to the whole act, not just to those provisions which are concerned with parole. As counsel for the respondent submitted, there are twin purposes expressed in s 3(1), namely community safety and crime prevention, and three equally important ways of achieving those purposes, namely containment, supervision and rehabilitation.
[31] There are several inter-related factors at play in the determination of an application for parole.
[32] Parole involves serving the balance of a term of imprisonment in the community, subject to supervision, and with the prospect of having to return to custody in the event of further offending or other breach of the conditions of the parole. Where an offender is serving a fixed term of imprisonment, parole can effectively be a form of graduated release. That cannot be so where a prisoner has no prospect of full-time release because he is serving a sentence of life imprisonment.
[33] A parole board has to assess what effect a prisoner's release on parole would have on community safety and crime prevention, both at the time of his release and in the future. Rehabilitation of an offender is a means of attaining community safety and crime prevention. The extent of a prisoner's progress towards rehabilitation whilst in custody may be some indication of how he will perform if released on parole.
[34] The orderly management of prisons is another means of attaining community safety and crime prevention. The principled determination of parole applications in accordance with a regime that is fair to prisoners is conducive to good behaviour by persons in custody, as well as to their rehabilitation." (footnotes omitted)
[72] The applicant's complaints of unreasonableness start with the time taken by the respondent to decide the application. The first final decision was made within the time required by the statute. The second final decision was made outside that time, but the circumstances were that the respondent had rescinded the first final decision after the applicant had applied for judicial review to set it aside. That cause of the delay did not make the second final decision unreasonable.
[73] The applicant submits that the fundamental reason actuating the respondent in making the second final decision was the respondent's finding that the applicant had poor self control. He contends that the respondent relied on that opinion erroneously in finding that he was an unacceptable danger to the community. Although he accepts that there was some material before the respondent from which that view might have been formed, he submits that other information he placed before the respondent evidenced the significant difficulties he had experienced adapting to and coping with prison. In that connection he relies on medical evidence of his anxiety disorder and depression over the period of his incarceration. He submits that it was not "reasonably open to draw a linear sole cause and effect relationship between my institutional response and poor self control".
[74] The thrust of the applicant's submission is that his responses to stimuli in prison which may evidence lack of self control are not a sound indicator of how he would respond outside the prison environment. He may be right or he may be wrong in thinking that his responses would be better on parole. Yet, the contrary view is not so impossible as to render the second final decision unreasonable.
[75] An offshoot of the applicant's contention about the respondent's view of his poor self control is that he submits that there is an absence of evidence that he has criminal tendencies or would reoffend. In this connection he relies upon a report he obtained from Dr James Freeman in May 2013. Dr Freeman is a well known and respected psychiatrist. He opined that "in general the prisoner appears to have undergone a considerable cognitive shift during his custodial period and he now presents as an individual who can identify alternatives to engaging in violence... he currently presents with the cognitive capacity and reported strategies to avoid placing himself in similar high risk situations in the future. Taken together, and after consideration of the actuarial instruments (PCL-R, VRAG & HCR-20), he can be considered in the low risk category for violent recidivism."
[76] It may be accepted that Dr Freeman's report is an important piece of evidence. Its conclusions speak to the parole environment as opposed to the applicant's in-prison behaviour. But it does not thereby cover the field of the evidence to be taken into account by the respondent. That evidence included the information before the respondent as to the applicant's behaviours in prison. That evidence was relevant to the view or opinion which the respondent formed in considering the applicant's potential behaviours if admitted to parole.
[77] The respondent rightly submitted that Dr Freeman also opined that: "Mr Pangilinan presents as continuing to be somewhat vulnerable to react inappropriately during interpersonally volatile situations, which has recorded custodial breaches in the past".
[78] In a similar vein, the applicant submitted that it was unreasonable for the respondent to pay attention to two prejudicial statements in the parole panel report out of twenty elements covered by the report. The applicant characterises the second final decision as being infected by the respondent fettering consideration to only two prejudicial factors.
[79] The respondent's statement of reasons included the following findings of fact, taken from the parole panel report:**
"'Prisoner Pangilinan has been in secure custody since 5 February 1998, during this time he has been accommodated in a number of centres. A review of his case notes indicates that his behaviour fluctuates between acceptable and unacceptable.
At times Prisoner Pangilinan can be polite and courteous in his interactions with staff, on other occasions he can be described as manipulating a situation to achieve a desired outcome. He can also become argumentative and abusive when an outcome does not suit him. He does however maintain a very high standard of personal and cell hygiene.
A review of the prisoner's violation history since 2 February 1998 supports his sometimes unacceptable behaviour with 30 incidents and 20 breaches during that period, of these 7 incidents and 3 breaches have occurred during the past 12 months.
Prisoner Pangilinan has also been subject to a number of Intensive Management Plans (IMP) during his incarceration. Prisoner Pangilinan is currently subject to an IMP which commenced on 29 October 2012 due to his continued unacceptable institutional behaviour. This plan is due for further review on 10 December 2012'."
**[80] First, in my view, it is an error for the applicant to submit that the respondent's decision was "fettered" by those findings, or that its consideration of the parole panel report was fettered in some way. It must not be forgotten that the respondent's primary function requires it to deal with many applications. In refusing an application for a parole order, it is required by statute to give written reasons for the refusal: s 193(5)(a) of the CSA. The requirement for written reasons engages s 27B of the AIA so that the respondent must "set out the findings on material questions of fact; and... refer to the evidence or other material on which those findings were based." Still, the respondent is not required to set out in the reasons every piece of evidence or material which it considered, on which the findings on material question of fact are not based. Failure to refer to that evidence does not lead to the conclusion that the respondent fettered its consideration.
[81] It must also be kept in mind that the parole panel report, which was obtained as information for the purpose of making the decision on the application for parole, found that the applicant "has demonstrated unacceptable institutional behaviour during this custodial episode" and recommended that "[a]fter considering all factors including, but not limited to the Prisoner's criminal history, length of sentence, sentencing remarks, eligibility dates, previous response to community based orders, application and interview... that Prisoner Pangilinan be [sic] not be granted release to parole at this time." The reference to community based orders was an error, since the applicant's present life sentence is the first term of imprisonment he has been ordered to serve. Nevertheless, the applicant understates the overall effect of the parole panel report by characterising the respondent's approach as focussing on two prejudicial statements out of twenty elements covered in the report.
[82] The applicant relied on the positive factors which might have led the respondent to grant his application for a parole order. There was no shortage of them. That articulation introduced his submission that there was a lack of reasonable proportionality between what was relied on by the respondent to find that he was an unacceptable risk of reoffending and the consequences of the decision to refuse the application. He relied on statements of the "principle of proportionality" derived from English administrative law cases.[13] As yet, the High Court has not endorsed that approach.[14] Secondly, he relied on a combination of statutory provisions, including s 3 of the CSA.[15] In particular, he relied on the references in s 3(2) of the CSA to "basic human entitlements" and "the need to respect an offender's dignity". However, as Margaret Wilson J said in Calanca above, the purposes of s 3 are not solely concerned with parole and the primary purposes are "safety and crime prevention through the humane containment, supervision and rehabilitation of offenders."
[83] In my view, the applicant's reliance on proportionality does not advance the analysis of the second final decision. As the plurality said in Li:**
"Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense."[16]
**[84] As a matter of substance, the applicant's proportionality argument was founded on two steps. First, he submitted that there was an absence of cogent evidence that he would reoffend if a parole order were granted. Second, he submitted that in the absence of that evidence there was an absence of proportionality between the degree of the risk of reoffending and the consequence of the decision to refuse the application.
[85] The applicant developed this argument and made several related submissions challenging the reasonableness of the decision in the light of the evidence and materials he provided in support of the application for a parole order which were either not regarded by the respondent or not given sufficient weight. Summarising to a significant degree, he submitted that:**
(a) the respondent failed to deal with many of his arguments;
(b) the differences between the material findings of fact and reasons for the first final decision and the second final decision show capricious reasoning because the evidence and materials did not change in any substantial way;
(c) the respondent did not mention Dr Freeman's detailed report or conclusions or the Corrective Services Psychological Reports and Criminogenic Exit Reports relating to the applicant in reaching its view that he was an unacceptable risk to the community;
(d) the respondent's findings as to the applicant's poor self control have had a negative effect on his support network and injured his reputation;
(e) the respondent did not have regard to the effect on the applicant's partner and the financial burden to her if he is not granted parole;
(f) the respondent did not have regard to the prospect that the applicant's support in the community would be likely to diminish if he is not granted parole, risking that he might not reintegrate into the community at a future time;
(g) the respondent did not give sufficient consideration to the role and benefit that community support represents for his rehabilitation and reintegration; and
(h) the respondent did not give sufficient consideration to the applicant's potential rehabilitation.
**[86] Despite the length and passion with which the applicant made these submissions, in my view they do not show any error in the respondent's process of reasoning in making the second final order that falls within the category of unreasonableness.
[87] In particular, the respondent's failure to deal with all the applicant's arguments does not warrant that conclusion. The strongest point of that kind is that the respondent made no reference to Dr Freeman's report but that is neither an error nor an error showing unreasonableness, where there was other evidence pointing in a contrary direction.
[88] It would be unhelpful to expand further on either the applicant's submissions or the evidence and materials before the respondent. Although an unreasonableness challenge is a factual ground of review, the consideration is still constrained by the context that the challenge is made to the legality of the decision. In the circumstances of this case, it is neither desirable nor incumbent upon this court as the reviewing court, in considering whether the ground is made out, to explicate every one of the arguments advanced in support of the overall conclusion of unreasonableness or to deal with them seriatim.
Ground 2 - failure to take into account relevant considerations
[89] In furtherance of his submissions as to proportionality, the applicant relied on the provision in s 200(2) of the CSA for a parole order granted by a parole board to contain conditions the Board reasonably considers necessary to ensure the prisoner's good conduct or to stop the prisoner committing an offence. He submitted that the respondent ought to have considered whether to grant the application for a parole order on the footing that appropriate conditions would manage his identified risk factors in the community. However, alternatively, he also relied on that consideration as a particular of the ground that the respondent failed to take relevant considerations into account. He submitted that eight particular conditions would manage the risk to the community if he were granted parole, including conditions as to a curfew from 9 pm to 6 am, abstention from alcohol, not entering licensed premises, not taking certain medications without approval, nominating a GP and chemist, and breath and urine testing.
[90] These conditions were not considered by the respondent in making the second final decision. But the applicant had not submitted that they were conditions that should be contained in a parole order at any time before any of the final decisions was made. In his submission dated 4 March 2013, made before the first final decision, the applicant submitted that he would accept and would adhere to all conditions set for him. The matter was not raised again, either by the reasons for the first final decision, or after that by the applicant, until he filed his particulars of the amended application for review of the second final decision on 18 November 2013.
[91] In McGrane v Queensland State Parole Board,[17] Philip McMurdo J considered whether the failure of the respondent to assess whether the risk of commission of an offence upon "any particular premise of the possible conditions" of parole might affect the relative possibility of reoffending. His Honour said:**
"Section 200(1) of the Corrective Services Act 2006 (Qld) ("the Act") requires a parole order to include the conditions which are there specified. It could be inferred that the respondent had at least those conditions in mind.
Section 200(2) allows for further conditions to be imposed, as follows:
'(2) A parole order granted by a parole board may also contain conditions the board reasonably considers necessary -
• a condition about the prisoner's place of residence, employment or participation in a particular program
• a condition requiring the prisoner to give a test sample.'
Section 200(2) thereby recognises that, at least in some cases, the risk to the community from the prisoner's release can be reduced to an acceptable level by the imposition of appropriate conditions.
Section 201(1)(a) of the Act permits a parole order to be amended where the chief executive reasonably believes that the prisoner has failed to comply with the parole order. It also permits the chief executive to suspend a parole order if he reasonably believes that the prisoner has failed to comply with the order, poses a serious and immediate risk of harm to someone else or poses an unacceptable risk of committing an offence."[18] (footnotes omitted)
[92] In that case, there was evidence before the respondent of possible conditions that might be imposed to reduce the risk of the prisoner reoffending if a parole order was made. His Honour held:
"The respondent's assessment of an unacceptable risk to the community was made without reference to the possible imposition of relevant conditions of parole pursuant to s 200(2) of the Act. The opinions of Dr Moyle and Dr Palk demonstrate the potential relevance of a particular regime under which the applicant might be paroled. In my view, that possible regime, or put another way a possible set of conditions of parole, was something which the respondent had to consider in order to make a logical and appropriate assessment of the relevant risk and in turn of the merits of the applicant's case for release.
Had that matter been considered by the respondent, it may or may not have made any difference to the respondent's ultimate decision. But the respondent was obliged to consider it and for that reason, the evidence and in particular the respondent's statement of reasons, reveals a ground for a statutory order of review under s 20(2)(e) and s 23(b) of the JRA. During the hearing I raised with the respondent's counsel the potential for relief under this ground and it was not suggested that relief should be refused because the ground was not specified in the application as filed."[19]
**[93] The question in the present case is whether the possibility of conditions of a parole order that might reduce the risk of the applicant reoffending is a relevant consideration that the respondent was required to take into account but failed to take into account.
[94] In Maycock v Queensland Parole Board,[20] I analysed when a matter raised by the circumstances of an application for a parole order might become a relevant consideration which must be taken into account as follows:**
"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.
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. Where no limits are expressly imposed, the relevant considerations will be disputable in some cases.
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.' 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.'" (footnotes omitted)
**[95] In my view, in the present case, the provisions of s 200 of the CSA and the submission by the applicant that he would submit to any conditions that the respondent might impose taken together with the powerful support that Dr Freeman's report gave for a finding of material fact that the applicant was not a high risk of violent reoffending were sufficient to raise whether the conditions of a parole order might sufficiently reduce the risk of his reoffending to an acceptable risk, as a relevant consideration which must be taken into account.
[96] In McGrane, Philip McMurdo J considered that because the decision was made "without reference to the possible imposition of relevant conditions" it followed that the relevant consideration in that case had not been taken into account. Where a statement of reasons for decision is given, a court may infer from the absence of any reference to a relevant consideration in the findings of material facts, the identification of the evidence on which the findings are based, or the reasons for decision that the relevant consideration was not taken into account. As Gleeson CJ said in Minister for Immigration and Multicultural Affairs v Yusuf (M10 of 2000),[21] if a decision maker who is required to set out the material findings on any question of fact does not set out a finding on a fact, that "will indicate that it made no finding on the matter; and that, in turn, may indicate that the [decision-maker] did not consider the matter to be material." This approach tends to equate failing to make a finding of fact with failing to take into account a relevant consideration. But, as Gleeson CJ also said, "[t]he difference between failing to make a finding on a question of fact and failing to take a relevant consideration onto account is elusive". On the other hand, as so often repeated, "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."[22]
[97] Whether a parole order should contain appropriate conditions is an everyday question faced by the respondent in performing its function of deciding an application for a parole order. In the case of a prisoner who is serving a life sentence, the Ministerial Guidelines provide that "careful consideration should be given to the imposition of a requirement that the prisoner wear an electronic monitoring device as directed by the Chief Executive, and that the prisoner comply with a curfew direction by the chief Executive to remain at a place during specified periods of time."
[98] There is no reason to think that the respondent does not often consider the appropriate conditions for the making of a parole order. However, the present question is whether it considered that the risk of the applicant reoffending might be reduced by appropriate conditions in deciding whether to grant or refuse his application for a parole order.
[99] As is apparent from my analysis of the unreasonableness ground, a central consideration upon the present application was the respondent's concern that "the applicant's self control is poor and his behaviour fluctuates between compliant if things are going his way to argumentative and abusive when they are not. The Board also noted that because of this behaviour, the applicant was subject to an Intensive Management Plan as recently as January 2013... This led the Board to have concerns about how the Applicant would be able to cope in the community without the constant supervision that incarceration provides."
[100] In my view, given these concerns, whether appropriate conditions of a parole order might reduce the risk of the applicant reoffending and thereby affect whether he poses an unacceptable risk to the community if released on parole was a relevant consideration that the respondent was required to take into account. After careful consideration, I have formed the view that the respondent's concerns as to how the applicant would cope without the constant supervision that incarceration provides called up as a relevant consideration whether, in the light of Dr Freeman's report, appropriate conditions might reduce the risk of reoffending to and acceptable level.
[101] That conclusion is supported by the objects of "supervision and rehabilitation" contained in s 3(1) of the CSA, as well as s 200.
[102] In my view, guided by the principle of the approach taken in McGrane, on the balance of probabilities, the applicant has made out that the respondent did not do so.
[103] It follows that the second final decision is reviewable as a decision made as an improper exercise of the power conferred by the CSA under which it was purported to be made because the respondent failed to take a relevant consideration into account in the exercise of the power under ss 20(2)(e) and 23(b) of the JRA.
[104] Each of the third final decision and the second final decision should be set aside under s 30 of the JRA with effect from today's date.**
[2] Re Petroulias [2004] QCA 261; [2005] 1 Qd R 643, 655 [50]; Ping v Medical Board of Queensland [2004] 1 Qd R 282, 283; REB Engineering Pty Ltd v Workers' Compensation Board of Queensland [1996] 1 Qd R 196, 199; Thompson v Minister for Education [1994] 1 Qd R 83, 90-91.
[3] Campbell E, Revocation and Variation of Administrative Decisions[1996] MonashULawRw 2; , (1996) 22(1) Monash University Law Review 30 and Allars M, Perfected Judgments and Inherently Angelical Administrative Decisions: the powers of courts and administrators to reopen or reconsider their decisions, (2001) 21 Aust Bar Review 50.
[4] [1990] FCA 22; (1990) 21 FCR 193, 211.
[5] Firearm Distributors Pty Ltd v Carson [2000] QSC 159; [2001] 2 Qd R 26, 28 [31] and 31 [40] ff.
[7] [2002] HCA 11; (2002) 209 CLR 597, 614-616 [51]-[54] and 618 [63].
[9] [2010] HCA 48; (2010) 243 CLR 164, 175-6 [30].
[11] [2013] HCA 18; (2013) 249 CLR 332, 363-4 [67]-[69].
[12] [2013] QSC 294, [28]-[34].
[13] Council of Civil Service Unions v Minister for Civil Service [1985] AC 375, 410 and R v Home Secretary; ex rel Daly [2001] UKHL 26; [2001] 2 AC 532.
[14] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, 621 [27].
[15] Other provisions, such as the Human Rights Act 2004 (ACT) and Charter of Rights and Responsibilities Act 2006 (Vic) do not apply in Queensland.
[16] [2013] HCA 18; (2013) 249 CLR 332, 366 [72].
[18] [2014] QSC 17, [15]-[16].
[19] [2014] QSC 17, [37]-[38].
[21] [2001] HCA 30; (2001) 206 CLR 323, 330-331 [5]-[8].
[22] Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287, cited in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
Pangilinan
Queensland Parole Board [2014] QSC 133
(2013) 249 CLR 332
(1990) 21 FCR 193
(2002) 209 CLR 597
(2001) 206 CLR 323
(1982) 66 FLR 169
(1987) 74 ALR 480
(1982) 70 FLR 61
(1981) 35 ALR 388
(2010) 243 CLR 164
(2010) 240 CLR 611
(1993) 43 FCR 280
(1996) 185 CLR 259