Ground 2: Whether the respondent denied the applicant procedural fairness by failing to provide him with an opportunity to provide evidence as to the availability, in the community, for treatment of deviant sexual preferences, treatment for attraction to children and the Sexual Offending Maintenance Program
16 As the applicant's first and second grounds each raise procedural fairness grounds, it is convenient to consider the grounds together.
17 In his first ground, the applicant contends that he was not afforded procedural fairness because he was not provided with an opportunity to provide to the delegate evidence of the qualifications of Dr Luke Hatzipetrou. In his second ground, the applicant contends that he was not afforded procedural fairness because he was not given an opportunity to provide to the delegate evidence as to the availability in the community of treatment for deviant sexual preferences, treatment for attraction to children and the Sexual Offending Maintenance Program.
18 The applicant submits that even though some of the material before the delegate contained references to Dr Hatzipetrou, "no inquiry has apparently been made by the respondent as to his qualifications and suitability". Instead, the delegate merely concluded, "that insufficient information has been provided in that regard".
19 The applicant submits that the respondent has a duty to exercise the power under s 19AL of the Crimes Act 1914 in a way that is procedurally fair or accords with principles of natural justice. The applicant submits that this duty required the delegate to give notice to the applicant that relevant information was lacking prior to making the refusal decision, and to provide the applicant with an opportunity to obtain and provide that information. The applicant also asserts that putting the applicant on notice that relevant information was lacking prior to making the refusal decision was, "also necessary because of the obligation to exercise the power in s 19AL reasonably".
20 The applicant also contends that the delegate's conclusion that there was no information that Dr Hatzipetrou had specific qualifications and experience providing sex offender treatment was not a conclusion that was obviously open on the known material, and it was therefore unfair for the delegate to reach that conclusion without first putting the applicant on notice. The applicant points to the ease at which notification could have been given as a matter demonstrating there was a denial of procedural fairness, although no authority was cited to support this contention.
21 The respondent submits that procedural fairness did not require that the delegate identify specific deficiencies and allow the applicant another attempt to bolster his submissions. The respondent submits that a decision-maker is not required to expose their reasoning for comment on an ongoing basis, and that the delegate's conclusion that there was no information to support that Dr Hatzipetrou had specific qualifications and experience providing sex offender treatment was obviously open on the known material.
22 A decision-maker must afford procedural fairness in the exercise of power under s 19AL of the Crimes Act 1914: Khazaal v Attorney-General [2020] FCA 448 at [66]. Procedural fairness requires that a person who may be affected by a decision be informed of the case against them and be given an opportunity to answer it: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ). What will constitute a reasonable opportunity depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30].
23 In Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone), the Full Court explained some requirements and limits of procedural fairness at 591-592:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
24 In the present case, the Department wrote to the applicant on 2 February 2024 indicating that, "the decision-maker may determine that you still have ongoing needs in relation to sex offender treatment". That statement was made in the context of the applicant having reoffended after having previously been convicted of using a carriage service to access child pornography material. The letter continued, "in the absence of sufficient information about your plans to engage in further rehabilitation in the community, and strategies you plan to use to identify and mitigate situations which place you at risk of reoffending, the decision-maker may consider that your release on parole at this time will not assist your lawful reintegration into the community and poses an unacceptable risk to the safety of the community".
25 In the delegate's reasons for the refusal decision of 20 March 2024, the delegate inferred that the treatment provided by Dr Hatzipetrou was in relation to the applicant's, "mental health and sexual offending". The delegate found that, "[t]here was no information to support that Dr Hatzipetrou has specific qualifications and experience providing sex offender treatment". The delegate then concluded, partly on the basis of this finding, that the applicant's, "release into the community in the absence of evidence that [he has] …independent plans for professional supports, would not be in the best interests of [his] rehabilitation and reintegration, and [he] may pose an unacceptable risk to the community". The delegate's reference to "professional supports" was plainly intended to mean "adequate professional supports", and the applicant made no submission to the contrary.
26 The applicant submits that the finding of no information to support Dr Hatzipetrou having specific qualifications and experience providing sex offender treatment was not obviously open on the known material and that, accordingly, the applicant was not provided with a reasonable opportunity to address a matter of significance to the delegate's decision.
27 However, the applicant had been placed on notice by the Department's letter of 2 February 2024 that it was for him to adduce sufficient material concerning his plans for rehabilitation to satisfy the decision-maker that his release would not be counterproductive to his reintegration and would not pose an unacceptable risk to community safety. It is evident from the applicant's responsive letter providing information about his past treatment and plans for ongoing treatment and rehabilitation that he understood the need to adduce sufficient material to so satisfy the delegate. In particular, the applicant advanced his ongoing treatment by Dr Hatzipetrou as a matter demonstrating that he is not at risk of reoffending.
28 The applicant provided no information about the nature of his treatment, nor any information indicating that treatment of sexual offenders was within Dr Hatzipetrou's area of specialisation or expertise. It should have been evident to the applicant that his assertion (based substantially upon his ongoing treatment by Dr Hatzipetrou) that he was not at risk of offending, required him to provide information explaining the nature of the treatment, Dr Hatzipetrou's qualifications and expertise to provide that treatment, and why it was and would continue to be effective. That the applicant in fact recognised the need to provide information about such matters is indicated by his assertion that Dr Hatzipetrou would be providing a letter supporting his release on parole. However, no such letter was ever provided.
29 The applicant was made aware that insufficient information about his plans for further rehabilitation in the community could result in his release on parole bring refused, and he was given an opportunity to place sufficient material about that matter before the delegate. It was for the applicant to decide how he took advantage of that opportunity, including by choosing what supporting material he would provide. The applicant, by relying on his ongoing treatment Dr Hatzipetrou as supporting his claim that he would not reoffend, implied that Dr Hatzipetrou had the qualifications and experience to provide adequate treatment to sex offenders. In my opinion, the delegate's finding that the applicant had failed to provide information supporting the inference that Dr Hatzipetrou had specific qualifications and experience in providing sex offender treatment was one that was obviously open on the known material. The requirements of procedural fairness did not oblige the delegate to expose to the applicant any provisional view that Dr Hatzipetrou had not been shown to have adequate qualifications and experience before making the refusal decision.
30 The applicant's complaint that the delegate did not make his own inquiries about Dr Hatzipetrou's qualifications and experience is misconceived. It is well established that a decision-maker is not ordinarily obliged to make their own inquiries to make out the applicant's case: see Abebe v Commonwealth (1999) 197 CLR 510 at [187]; Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25]; EXT20 v Minister for Home Affairs (2022) 291 FCR 55; [2022] FCAFC 72 at [185]-[187] (Snaden J).
31 The applicant's assertion that further notice was, "also necessary because of the obligation to exercise the power in s 19AL reasonably", appears to complain of legal unreasonableness. However, as the applicant did not make any submissions in support of that bald assertion, I have not addressed it.
32 I will turn to consider the applicant's complaint that the delegate's conclusion that the delegate denied him procedural fairness by failing to provide an opportunity to provide evidence as to the availability in the community of treatment for deviant sexual preferences, treatment for attraction to children, and the "Staying on Track: Sexual Offending Maintenance Program".
33 As has been indicated, in the letter of 2 February 2024, the applicant was put on notice that, "the decision-maker may determine that you still have ongoing needs in relation to sex offender treatment", and that, "in the absence of sufficient information about your plans to engage in further rehabilitation in the community…the decision-maker may consider that your release on parole at this time will not assist your lawful reintegration into the community and poses an unacceptable risk to the safety of the community". The applicant recognised that he ought to provide information to adequately address these matters and sought to do so by asserting that he would complete the "Sex Offender Maintenance Program", and would, "continue to work on self-enhancing activities such as self-education through self-help books, journalling, CBT, meditation, mindfulness".
34 The delegate found that while the applicant asserted that he would undertake the "Staying on Track: Sexual Offending Maintenance Program" in the community, there was no information as to whether he had been assessed for the program or when the program was to commence. The delegate went on to conclude that the applicant's release into the community in the absence of evidence that he was eligible for or enrolled in an offence-specific maintenance program or had other plans for professional supports (apart from treatment by Dr Hatzipetrou), would not be in the best interests of the applicant's rehabilitation and reintegration, and that he may pose an unacceptable risk to the community.
35 In my opinion, the delegate's findings were obviously open on the known material. The requirements of procedural fairness did not oblige the delegate to expose to the applicant any provisional view that he had failed to provide adequate information as to the availability in the community of treatment for deviant sexual preferences, treatment for attraction to children and the "Staying on Track: Sexual Offending Maintenance Program".
36 The applicant's first and second grounds of review must fail.