Whaley v Attorney-General [2025] FCA 1657

1. Mr Whaley was also convicted of and sentenced for two offences in the state of New South Wales under s 91H(2) of the Crimes Act 1900 (NSW) for possessing and producing child abuse material. His sentence in respect of these state offences has expired.
2. In respect of the Commonwealth offences, the sentencing judge imposed a term of imprisonment of 8 years and 6 months, commencing on 20 December 2019 and expiring on 19 June 2028: R v Whaley [2020] NSWDC 517 (Bourke SC DCJ). The non-parole period was specified as 5 years and 6 months.
3. The Attorney-General was required by s 19AL(1) of the Crimes Act to make a decision to grant or refuse parole before the end of Mr Whaley's non-parole period on 19 June 2025.
4. On 30 April 2025, the Attorney-General's Department sent a letter to Mr Whaley informing him that he would be considered for parole (the Adverse Considerations Letter). The Adverse Considerations Letter identified a series of adverse matters that may be considered in determining whether to grant or refuse parole. Mr Whaley was invited to make and did make written submissions on 24 May 2025.
5. On 13 June 2025, the delegate of the Attorney-General (the Delegate) made the Refusal Decision.
6. By his application to this Court, Mr Whaley seeks orders quashing the Refusal Decision and remitting the matter to the Delegate for reconsideration. By an amended originating application filed on 11 July 2025, Mr Whaley advanced a single ground of review by which it is contended that the Delegate improperly exercised the power conferred by s 19AL(1) of the Crimes Act by failing to have regard to the final of the three purposes of parole prescribed by s 19AKA(c), namely, an offender's reintegration into the community.
7. In written submissions filed on 27 October 2025, Mr Whaley reframed his application and identified two grounds of review by which he contends that:

(a) the Delegate failed to consider the evidence and supporting material independently or exercise personal discretion (Ground 1); and

(b) there is a reasonable apprehension of bias on the part of the Delegate (Ground 2).

1. For the reasons that follow, the application must be dismissed.

1. There is no entitlement to parole. The power to release a prisoner on parole is a matter for the executive: Minogue v Victoria [2019] HCA 31; 268 CLR 1 at [17] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); Khawaja v Attorney-General (Cth) [2022] FCA 334; 293 FCR 396 at [11] (Thawley J); Lazarus v Attorney-General (Cth) [2024] FCA 1021 at [10] (Abraham J).
2. The purposes of parole are identified in s 19AKA of the Crimes Act as follows:

(a) the protection of the community;

(b) the rehabilitation of the offender;

(c) the reintegration of the offender into the community.

1. As Thawley J has observed, while these purposes "cover different ground", a proper consideration of them will tend to reveal that they interact and, in some respects, overlap: Khawaja at [15]. No priority is given to any one of the three purposes. That is a matter for the decision-maker in the exercise of discretion.
2. The power to make, or refuse to make, a parole order is contained in s 19AL(1) of the Crimes Act. It provides:

The Attorney‑General must, before the end of a non‑parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole (a parole order).

Note 1: See subsection (5) if the person is subject to a State or Territory sentence.

Note 2: See also sections 19ALA (matters that may be considered in decisions about parole orders) and 19ALB (decisions about parole orders - terrorism and control orders).

1. The Attorney-General may delegate this power: s 17(2) of the Law Officers Act 1964 (Cth).
2. In the exercise of discretion under s 19AL, s 19ALA provides guidance as to the matters that may be considered. It provides:

19ALA Matters that may be considered in decisions about parole orders

(1) In making a decision under section 19AL in relation to a person, the Attorney-General may have regard to any of the following matters that are known to the Attorney-General and relevant to the decision:

(a) the risk to the community of releasing the person on parole;

(b) the person's conduct while serving his or her sentence;

(c) whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency;

(d) the likely effect on the victim, or victim's family, of releasing the person on parole;

(e) the nature and circumstances of the offence to which the person's sentence relates;

(f) any comments made by the sentencing court;

(g) the person's criminal history;

(h) any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency;

(i) the behaviour of the person when subject to any previous parole order or licence;

(j) the likelihood that the person will comply with the conditions of the parole order;

(k) whether releasing the person on parole is likely to assist the person to adjust to lawful community life;

(l) whether the length of the parole period is sufficient to achieve the purposes of parole;

(m) any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release.

(2) Subsection (1) does not limit the matters that the Attorney-General may consider in making a decision under section 19AL.

1. As the word "may" in subs (1) and the terms of subs (2) make plain, the Attorney-General has no obligation to consider any of the matters listed in subs (1) and is permitted to consider matters that are not there listed.
2. If the Attorney-General decides to refuse parole, certain obligations arise. This includes a requirement to give notice, a requirement to give reasons, and a requirement to reconsider whether a parole order should be made within one year of a refusal decision. These obligations are relevantly imposed by s 19AL(2), which provides:

(2) If the Attorney‑General refuses to make a parole order for a person ... the Attorney‑General must:

(a) give the person a written notice, within 14 days after the refusal, that:

(i) informs the person of the refusal; and

(ii) includes a statement of reasons for the refusal; and

(iii) sets out the effect of paragraph (b) of this subsection; and

(b) reconsider the making of a parole order for the person and either make, or refuse to make, such an order, within 12 months after the refusal.

1. The statutory framework dictates the nature and extent of the obligation to give reasons and is supplemented by s 25D of the Acts Interpretation Act 1901 (Cth): Lodhi v Attorney-General (Cth) [2020] FCA 1383at [85] (Bromwich J). Importantly, the requirement to give reasons under s 19AL(2), as supplemented by s 25D, does not require a decision-maker to make any particular findings of fact, but rather to do no more than to set out any findings of fact that were in fact made that were considered material to the decision not to make a parole order: Lodhi at [87]. In practice, what this means is that not every factor that was considered by a delegate must be set out in the reasons (rather, it is only the refusal grounds): Roberts v Attorney General [2022] FCA 574; 176 ALD 509 at [44] (Lee J).

1. By Ground 1, Mr Whaley contends that the Delegate failed to independently consider the evidence and materials before him and to exercise personal discretion in the making of the decision under s 19AL. During oral submissions, it was submitted on Mr Whaley's behalf that the Delegate failed to demonstrate active intellectual engagement with the subject matter of the decision and had failed to give proper, genuine and realistic consideration to the making of that decision.
2. To address these arguments, it is necessary to look at the facts.
3. On 5 June 2025, the Assistant Director of the Commonwealth Parole Office (CPO) signed a letter addressed to the Delegate with the subject line, "Consideration of release of federal offender Kurtis Whaley on parole on 19 June 2025" (the Departmental Submission or DS).
4. The Departmental Submission is comprehensive. It contains 172 paragraphs which engage with factual matters connected with Mr Whaley's offending, conviction, and prospective release into the community and is supplemented by numerous attachments including, among other things, treatment and pre-release reports (Attachments C and D), submissions made on behalf of Mr Whaley (Attachment G), and psychological assessment and treatment plans (Attachments L and M).
5. The Departmental Submission was structured as follows:

(a) paragraph 1 (headed "Proposed action") proposes that the delegate decide whether to release Mr Whaley on parole and identifies that the delegate must determine the conditions of parole if it is to be granted or sign a notice setting out reasons if it is to be refused;

(b) paragraphs 2 to 3 (headed "Release on parole") identify the three purposes of parole and relevant factors for consideration;

(c) paragraphs 4 to 6 (headed "Background") provides an overview of the legislative requirements under s 19AL of the Crimes Act and identifies that the power can be exercised by delegation;

(d) paragraphs 7 to 30 address the offences for which Mr Whaley was sentenced, the nature and circumstances of his offending, the comments of the sentencing judge, and his immigration status;

(e) paragraphs 31 to 73 identify and summarise the contents of two reports received from Corrective Services NSW (CSNSW), including as to Mr Whaley's personal circumstances, his conduct in prison, his engagement with therapeutic programs, and his post-release plans;

(f) paragraphs 74 to 120 (headed "Information submitted by the prisoner"):

(i) identify the materials provided by Mr Whaley's solicitors in support of being granted parole (which were attached to the Departmental Submission); and

(ii) address Mr Whaley's responses to the matters raised in the Adverse Considerations Letter, including, among other things, his plans for treatment, the opinion of a consultant psychologist, his insight into his offending, his mental health, his need for rehabilitative treatment in relation to alcohol and drugs, his behaviour in custody, his pro-social supports, and his risk to the community;

(g) paragraphs 121 to 167 (headed "Discussion") disclose careful analysis of Mr Whaley's circumstances by reference to each of the three purposes of parole prescribed by s 19AKA of the Crimes Act, including:

(i) at paragraphs 122 to 137, consideration of the rehabilitation of Mr Whaley by reference to the need for treatment as a sex offender and for further insight into his offending, as well as the rehabilitative needs in relation to mental health and drugs and alcohol;

(ii) at paragraphs 138 to 152, consideration of whether Mr Whaley is well-placed to be reintegrated into the community by reference to his proposed accommodation, pro-social supports and leisure activities, employment and financial supports, and professional supports; and

(iii) at paragraphs 153 to 167, consideration of whether Mr Whaley's release on parole would represent a risk to the safety of the community by reference to the duration, nature, and frequency of offending, his criminal history, and risk of reoffending in the short or long term;

(h) paragraph 168 (headed "Recommendation") sets out the recommendation of the CPO that Mr Whaley should not be released on parole at this time because the need to protect the community appears to outweigh the benefits of parole for Mr Whaley;

(i) paragraph 169 (headed "Refusal notice") sets out what are described as "potential reasons for your decision to refuse to release Mr Whaley on parole", and which comprise three numbered items spanning nine paragraphs in total;

(j) paragraphs 170 and 171 (under the same heading "Refusal notice") address the requirement to reconsider making a parole order 12 months after a refusal decision and confirm that the CPO will arrange for a notice to be sent to Mr Whaley; and

(k) paragraph 172 (headed "Administrative Review") identifies that the decision to be made is reviewable under legislation.

1. The final page of the Departmental Submission appears on its face to have been signed by the Delegate on 12 June 2025 beneath the following text:

Recommendation

I recommend that you:

(i) refuse to grant parole to federal offender Kurtis Whaley at this time, and

(ii) sign the attached notice informing him of your decision.

Signed (as amended) / Not Signed

(Emphasis in original.)

1. On or about 13 June 2025, a refusal notice was issued to Mr Whaley under s 19AL(2) of the Crimes Act (the Refusal Notice). The Refusal Notice was signed by the Delegate and conveyed the Refusal Decision. It stated that the Delegate had refused to release Mr Whaley on parole, addressed the general legislative scheme relating to the making of a parole determination, confirmed that Mr Whaley's submissions have been taken into account, and provided reasons for the Refusal Decision. Those reasons were as follows:
   1. I have had regard to the nature and circumstances of the offences to which your sentence relates, including that you used the internet to target male children and teenagers between the ages of 8 to 15 years to solicit and transmit child abuse material. After contacting the children, you would solicit sexually explicit images or videos, or engage in real time video conversations in which you would direct the children to engage in sexual activity. You would blackmail the victims if they stopped sending sexually explicit material. On 8 occasions, you followed through on your threats and distributed images or videos to friends or family members of the victim. Upon your arrest in relation to these offences, you were found in possession of 250 files of child abuse material that involved victims between the ages of 4 to 15 years. You were also found to have produced 700 files of child abuse material that involved 49 victims between the ages of 8 and 15.

The sentencing court considered your moral culpability in all of the offences was high with the offences considered serious. The sentencing court described your offences as 'cruel', 'relentless', and 'merciless'. The sentencing court stated you came to enjoy your 'systematic and sadistic' abuse of the anonymity of the internet to 'enslave' victims for your own sexual urges. The sentencing court found the content of the child abuse material involved extremely explicit sexual activity and often involved degrading acts being require to be performed by the victims. The sentencing court considered your offending was for your own sexual gratification. In relation to the production offences, they were clearly planned, organised and reasonably sophisticated. The sentencing court stated you directly exploited and abused vulnerable children with many of the offences involving the psychological manipulation of the young victims.

Taking into account the nature and circumstances of your offending, and the comments by the sentencing court, I consider that your release on parole is an unacceptable risk to community safety.

1. I consider you have ongoing rehabilitative needs in relation to sex offender treatment and insight.

While it is positive you completed the High Intensity Sex Offender Program (HISOP), the completion report raised concerns regarding impression management and that you externalised blame, minimised your responsibility for your offending, and held offence supportive attitudes. Although the Pre-Release Report received from CSNSW at a later date indicated a shift in your insight where you accepted responsibility for your actions and held remorse for the victims, I consider there are extant issues about your insight and impression management and I am not satisfied you will openly and transparently engage with Community Corrections should you be released. I consider any insight you do have is only recently developed and you would benefit from remaining in custody to further develop your insight.

Additionally, I consider your lack of confirmed and substantiated plans for sex offender treatment in the community to be a risk to community safety. While CSNSW have indicated you will be referred for their maintenance program in the community, this has not been confirmed. I consider it imperative for you to have confirmed and substantiated supervision and treatment plans in the community prior to your release. In your circumstances, I consider that your current plans are not sufficient to manage your assessed Well Above Average risk of sexual reoffending per the Static-99R.

Taking this information into account, I consider that your release on parole at this time would not be in the best interest of your ongoing rehabilitation and you may pose an unacceptable risk to the safety of the community.

1. I have had regard to the short and long-term risk to community of you remaining in custody. I consider on the evidence above that your release on parole at this time poses a risk to the community. I consider this is your first parole consideration and you will have future opportunities to be considered for release to gain benefit from parole supervision.

In coming to this view, I have had regard to the matters that weigh in favour of your release on parole at this time, including the multifaceted support of your family, and your successful completion of numerous custodial programs and educational programs.

1. In advancing his contentions in support of Ground 1, Mr Whaley placed great weight on paragraphs 168 and 169 of the Departmental Submission.
2. As to paragraph 168 of the Departmental Submission, Mr Whaley pointed out that it was expressed as follows:

Recommendation

In this case the protection of the community outweighs the benefits of parole for the offender. On the information available, it appears that Mr Whaley should not be granted parole at this time.

1. As addressed further below, Mr Whaley submitted that, even though the paragraph was entitled "Recommendation", the language used by the CPO was directive in nature, was not balanced and was tantamount to the making of the decision that was for the Delegate to make.
2. As to paragraph 169 of the Departmental Submission (the Proposed Reasons), Mr Whaley pointed out that the text here was almost identical to the actual reasons of the Delegate in the Refusal Decision as set out in the Refusal Notice. Mr Whaley submitted that only one alteration was made, being the replacement of the word "concerning" with the words "a risk to community safety".
3. To illustrate the point, the Proposed Reasons read:

Additionally, I consider your lack of confirmed and substantiated plans for sex offender treatment in the community to be concerning.

1. By contrast, the reasons for the Refusal Decision read:

Additionally, I consider your lack of confirmed and substantiated plans for sex offender treatment in the community to be a risk to community safety.

1. Mr Whaley contended that the Delegate had merely adopted the Proposed Reasons and submitted that a single, minor change was not sufficient to demonstrate the exercise of an independent and personal discretion that was required, and that the Delegate did not give active intellectual engagement with the subject matter of the decision that has been delegated to him.
2. Mr Whaley accepted that a decision-maker can permissibly adopt a draft statement of reasons if the decision-maker agrees with the recommendations and referred to the decision of Perry J in Maxwell v Minister for Immigration and Border Protection [2016] FCA 47. However, he contended that the facts in the present case are distinguishable from Maxwell, and submitted that the impugned decision in that case involved an issues paper that was "written on an even handed basis", whereas Mr Whaley argues that the advice given in the Departmental Submission "could not be said to be fairly setting out the considerations for and against the proposed decision" but was instead phrased in directive language that urges and assumes a particular outcome - that Mr Whaley be refused parole.
3. Specifically, Mr Whaley made the following submission:

In the present case, however, the advice given to the decision maker that "In this case the protection of the community outweighs the benefits of parole for the offender. On the information available, it appears that Mr Whaley should not be granted parole at this time" could not be said to be fairly setting out the considerations for and against the proposed decision. Neither could it be a situation in which no recommendation one way or the other is made. Rather, the language is directive and urges (indeed, assumes) a particular outcome.

(Emphasis added.)

1. I do not accept Mr Whaley's submissions.
2. In DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 at [12], Kiefel CJ, Gageler, Gordon and Steward JJ stated that "Each obligation to 'have regard to' information is an obligation to engage in 'an active intellectual process' directed at the information": citing Minister for Home Affairs v Ogawa [2019] FCAFC 98; 269 FCR 536 at [101] (Davies, Rangiah and Steward JJ), quoting Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [59] (Sackville J). However, in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352, it was stated by Griffiths, White and Bromwich JJ at [47]-[48] that:

Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist his decision-making, as well as other matters which arise from the relevant statutory context. We will discuss some of those statutory indicators shortly.

Before we do, however, it is appropriate to state two matters. First, a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof. Secondly, some broad guidance may be obtained from other authorities as to the kinds of circumstances in which such a finding could be made. In referring to these authorities, we do not suggest that the requisite evaluative judgment is to be conducted as though it involves a "tick the box" comparative exercise by reference to other decided cases. As we have emphasised, each case will necessarily turn on its own particular facts and circumstances

1. These considerations need to bear in mind that a decision made under s 19AL is not conditioned by a requirement to consider any particular matter. Further, whether or not one particular paragraph of the Departmental Submission fairly set out the considerations for and against the proposed decision is not decisive of the question as to whether the Delegate, as the decision maker, had discharged the statutory task of personally determining whether to make or refuse to make a parole order in respect of Mr Whaley.
2. In assessing whether the considerations for and against granting parole to Mr Whaley are fairly set out in the Departmental Submission, it is not correct to focus on a single paragraph in insolation. As Abraham J observed in Lazarus at [31]:

...regard can be had to the Departmental Submission in determining the material before the Delegate, and assessing whether that material could support the inference that he had applied the wrong test or was not "in reality" satisfied of the requisite matters. In having regard to the Departmental Submission, it should be read as a whole; parts should not be taken out of context.

(Citations omitted.)

1. As the respondent submitted, an examination of the Departmental Submission reveals that the CPO had identified several considerations in favour of releasing Mr Whaley on parole (or against refusing parole). For instance, the Departmental Submission included the following statements:

(a) "The CPO considers it positive Mr Whaley has engaged with appropriate AOD programs in custody to address his drug and alcohol use": DS [133];

(b) "If Mr Whaley is refused parole, the CPO considers that Mr Whaley has limited opportunity to further his rehabilitation in this area as he appears to have completed all relevant custodial programs": DS [133];

(c) "Mr Whaley has made significant progress and was no longer manifesting symptoms of a severe and recurring depressive disorder. The CPO considers this positive and will set up Mr Whaley to make further rehabilitative gains in the community with the support of his professional supports": DS [136];

(d) "If Mr Whaley is refused parole, the CPO considers that Mr Whaley has limited opportunity to further his rehabilitation in regard to his mental health in custody as he appears to have completed his custodial pathway. The CPO considers Mr Whaley will also have the benefit of the support of Community Corrections to continue monitoring his mental health and any emerging risk factors": DS [136];

(e) "it is positive that he has plans to obtain employment and this can be further monitored by Community Corrections upon his release": DS [149]; and

(f) "reintegration into the community does not weigh against Mr Whaley's release on parole at this time": DS [152]

1. Having reviewed the Departmental Submission in full, and in the absence of Mr Whaley having identified particular matters in the underlying materials that have been overlooked or mischaracterised, I do not consider that it can fairly be said that the Departmental Submission has been drafted in an unfair or unbalanced way.
2. Nor do I consider that it is fair to characterise the Departmental Submission as "directing" a particular outcome. As the respondent pointed out, there are several matters which make plain that the decision as to whether Mr Whaley should be granted or refused parole was for the Delegate to make, and not the CPO. This is clear from the first paragraph, which states that the proposed action is:

That you decide whether to release Kurtis Whaley on parole on 19 June 2025. If you direct that Mr Whaley is to be released on parole, you must also determine the conditions of his parole order. If you refuse to release Mr Whaley, you must sign a notice setting out the reasons for your decision.

(Emphasis added.)

1. As this paragraph exposes, from the outset the Departmental Submission proceeds on the basis that the Delegate may decide to direct or refuse Mr Whaley's release on parole. The use of the language "you" and "your" is repeated throughout the Departmental Submission, which reinforces the starting premise that the decision is one for the Delegate to make: see eg DS [4], [5], [6], [121],[122], [137], [163], [169], [170]-[172].
2. Furthermore, and as noted at [25] above, the Departmental Submission concludes with a heading "Recommendation" which sets out the CPO's recommended decision but contemplates that the Delegate may reject the recommendation, and may also refuse to sign the proposed refusal notice (including the Proposed Reasons). In this case, it appears that the Delegate chose to sign the Refusal Notice but "as amended". The Delegate also signed the Departmental Submission.
3. As a final point, and contrary to Mr Whaley's submissions, there was in fact more than one change that had been made to the Proposed Reasons. The Proposed Reasons read:

I consider that your current plans are not sufficient in managing your assessed Well Above Average risk of sexual reoffending per the Static-99R.

1. Whereas the reasons for the Refusal Decision read:

I consider that your current plans are not sufficient to manage your assessed Well Above Average risk of sexual reoffending per the Static-99R.

1. I accept that this change is minor in degree and syntactical in nature. However, when taken together with the change discussed earlier, the alterations disclose that the Proposed Reasons were looked at with a critical eye and were not merely adopted by the Delegate without adverting to the substance of the Proposed Reasons, the contents of the Departmental Submission, and the requirements of the statutory task under s 19AL. For the same reason that Abraham J identified in Stephens v Attorney-General [2021] FCA 204 at [36], the obvious inference to be drawn is that the changes were made by the Delegate following an active intellectual process of engaging with the material contained in the Departmental Submission. This is particularly so in respect of the substitution of the words "a risk to community safety" for the word "concerning", which reframes the reasoning to focus on the first of the statutory purposes of parole - the protection of the community - and links the reasoning back to the matters raised by the CPO in the Departmental Submission under the heading "Protection of the Community" at DS [153]-[167].
2. For these reasons, I do not accept that the Delegate failed to exercise a personal discretion, or failed to do so independently, or that the Delegate failed to give proper, genuine and realistic consideration to the making of the Refusal Decision. As a result, Ground 1 is not made out.

1. By Ground 2, Mr Whaley seeks to impugn the Refusal Decision on the basis that it is affected by bias. Mr Whaley contends that the Delegate was "in practical terms neither independent nor impartial, and that a well-informed bystander might reasonably apprehend that the [Delegate] might not be reasonably impartial as a result of the [Departmental Submission]". Mr Whaley made clear that his submission was that there was not any actual bias on the part of the Delegate, but a reasonable apprehension of bias.
2. Mr Whaley bears the onus of establishing a reasonable apprehension of bias. To do so, it needs to be proved that a "fair-minded lay observer might reasonably apprehend that the [decision maker] might not bring an impartial mind to the resolution of the question the [decision maker] is required to decide": Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] Gleeson CJ, McHugh, Gummow and Hayne JJ). There are two steps involved: first, one must identify "what it is said might lead a [decision maker] to decide a case other than on its legal and factual merits"; and second, there "must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits": Ebner at [8].
3. As to the first of these two steps, Mr Whaley points to the Departmental Submission as the source of bias. As to the second, he contends that the Departmental Submission "taints" the Refusal Decision because of its "directive" language including, specifically, the recommendation in paragraph 168 to the effect that: "Mr Whaley should not be granted parole at this time".
4. The question, then, is whether a fair-minded lay observer might reasonably apprehend that the Delegate did not bring an impartial mind to determining the parole determination by reason of the language and substance of the Departmental Submission.
5. An immediate issue with the claim is that the specific words extracted and impugned by Mr Whaley are selective, decontextualised, and do not fairly reflect the total effect of the Departmental Submission. As set out above at [40], the other parts of the Departmental Submission set out several considerations in favour of Mr Whaley. Despite this, Mr Whaley's submissions focussed on paragraph 168 of the Departmental Submission (as set out above at [28]). When that paragraph is read in its immediate context and in the context of the whole of the Departmental Submission, it is clear that the CPO was not directing the Delegate to make a particular decision. Rather, the CPO was expressing a recommendation based on the opinion it had formed on the available materials. Paragraph 168 is not expressed in resolute or definite language, either - it is qualified as being based on "the information available" and, as the words "it appears" make plain, this passage communicates an observation rather than a direction. The words "it appears" also implicitly acknowledge that the question of whether Mr Whaley is to be granted parole is ultimately one for the Delegate to decide. And, the word "should", read fairly and in context, is to be construed as conveying what the CPO considered would be the appropriate course, as opposed to suggesting that it was the only course open to the Delegate.
6. As Perry J observed in Maxwell, the role of the CPO is to advise the Attorney-General in accordance with the values expressed in the Public Service Act 1999 (Cth) and, specifically, s 10(5) of that Act which requires the APS to provide "the Government with advice that is frank, honest, timely and based on the best available evidence". In this case, there is no reason to doubt that the Departmental Submission was anything other than an honest distillation of the evidence available to the CPO and a frank expression of opinion about that evidence taken as a whole. In addition, and like in Maxwell, the Departmental Submission made plain that the decision was for the Attorney-General (or a delegate) to make. That the CPO formed and expressed the view that a parole order should not presently be made does not alter this fact.
7. Ground 2 is not made out.

1. For the foregoing reasons, the application should be dismissed with costs.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff.