Anderson v President of the Parole Board Queensland [2025] QSC 123

SUPREME COURT OF QUEENSLAND CITATION: Anderson v President of the Parole Board Queensland [2025] QSC 123 PARTIES: RODNEY GEORGE ANDERSON (applicant) v THE PRESIDENT OF THE PAROLE BOARD QUEENSLAND (respondent) QUEENSLAND HUMAN RIGHTS COMMISSION (intervener) FILE NO/S: BS 9292/23 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 30 May 2025 DELIVERED AT: Brisbane HEARING DATE: 17 March 2025 JUDGE: Treston J ORDER: I will hear the parties as to the appropriate form of orders which reflect these reasons. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the respondent made a restricted prisoner declaration in respect of the applicant under s 175E of the Corrective Services Act 2006 (Qld) for a period of 8 years and 6 months – where as a consequence of the declaration the applicant is prohibited from applying for parole until 6 December 2031 – where the applicant has poor mobility and suffers from a range of ill- health conditions – where the applicant contends that his medical condition is likely to significantly deteriorate in the future such that his medical needs cannot be properly met in custody – where the applicant seeks judicial review of the respondent’s decision regarding the term of the declaration not the declaration itself – where the applicant contends that the respondent’s decision involved an error of law within the meaning of s 20(2)(f) of the Judicial Review Act 1991 (Qld), by failing to, in consideration of the public interest as required by provisions of the Corrective Services Act 2006 (Qld), have -- 1 of 20 -- 2 regard to the applicant’s right to be treated with dignity while deprived of his liberty with particular regard to the applicant’s special medical needs – whether the respondent’s decision in respect of the term of the declaration involved an error of law HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the applicant contends that the respondent’s reasons for the term of the declaration do not refer to any human rights considerations, whether to inform the public interest consideration as required by provisions of the Corrective Services Act 2006 (Qld) or as required by s 58 of the Human Rights Act 2019 (Qld) – where the applicant and intervenor contend that the respondent’s reasons for the term of the declaration do not provide a “proper consideration” of the human rights relevant to the decision as required by s 58 of the Human Rights Act 2019 (Qld), in particular the applicant’s right to be treated with dignity while deprived of his liberty as described in s 30 of the Act and at common law – whether the respondent’s decision with respect to the term of the declaration complied with the duty prescribed in s 58 of the Human Rights Act 2019 (Qld), such that the decision was lawful Corrective Services Act 2006 (Qld), ss 3, 175D, 175G, 175H, 175I, 175E, 176B, 176C, 188, 193AA, Judicial Review Act 1991 (Qld), s 20 Human Rights Act 2009 (Qld), ss 30, 58, 59 Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129 Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423 O’Sullivan v Farrer (1989) 168 CLR 210 Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250 Morant v Ryan (State Coroner) (2023) 15 QR 208 COUNSEL: A D Scott KC and H Edwards for the applicant S Robb KC and N Congram for the respondent P Morreau KC for the intervenor SOLICITORS: Prisoner’s Legal Service for the applicant Parole Board of Queensland Legal Services Unit for the respondent Queensland Human Rights Commission for the intervenor -- 2 of 20 -- Introduction [1] On 3 October 1997, the applicant was convicted and sentenced to life imprisonment for the murder of a 77-year-old woman in her home, which murder he committed when he was 42 years of age. [2] The applicant was then sentenced on 8 November 2000 for the murder of another prisoner, which murder took place whilst serving his first sentence. That second offence occurred when he was 46 years old. He became eligible for parole on 8 November 2020. [3] On 5 June 2023 the respondent made a restricted prisoner declaration under s 175E of the Corrective Services Act 2006 (Qld) (the CS Act) for a period of eight years and six months. The maximum allowable term for such a declaration is 10 years.1 [4] As a consequence of the declaration, the applicant is prohibited from applying for parole until 6 December 2031. By then he will be 78 years of age. [5] This application is an application to judicially review the respondent’s decision in relation to the term of eight years and six months, not the fact of the declaration. The legislative framework [6] The President of the Parole Board may make a declaration under Chapter 5 Part 1AB of the CS Act, being a restricted prisoner declaration, about a restricted prisoner.2 [7] Section 175D of the CS Act defines a restricted prisoner to be a prisoner who has been sentenced to life imprisonment for: (a) a conviction of murder and the person killed was a child; or (b) more than one conviction of murder; or (c) one conviction of murder and another offence of murder was taken into account; or (d) a conviction of murder and the person has on a previous occasion been sentenced for another offence of murder. [8] Mr Anderson is therefore a “restricted prisoner” within the meaning of s 175D. [9] When deciding to make a restricted prisoner declaration, the President must take into account the matters contained in s 175H of the CS Act: “175H Deciding to make restricted prisoner declaration (1) The president may make a restricted prisoner declaration about a restricted prisoner if the president is satisfied it is in the public interest to do so. 1 Corrective Services Act 2006 (Qld), s 175I(3). 2 Ibid, s 175E. -- 3 of 20 -- 4 (2) In considering the public interest the president must have regard to the following matters— (a) the nature, seriousness and circumstances of the offence, or each offence, for which the prisoner was sentenced to life imprisonment; (b) any risk the prisoner may pose to the public if the prisoner is granted parole; (c) the likely effect that the prisoner’s release on parole may have on an eligible person or a victim. (3) Also, in deciding whether to make a restricted prisoner declaration the president must have regard to the following information— (a) the restricted prisoner report about the prisoner; (b) if an eligible person has, under section 188, at any time made a submission in relation to a parole application made by the prisoner—the submission; (c) any relevant remarks made by a court in a proceeding against the prisoner for the offence for which the prisoner was sentenced to a term of life imprisonment; (d) if the prisoner made a submission under section 175G(3)(d)—the submission. (4) Without limiting subsections (2) and (3), the president may have regard to any other matter or information the president considers relevant to the public interest. (5) If the president considers it reasonable in the circumstances, the president may─ (a) defer deciding whether to make the restricted prisoner declaration; and (b) ask any person for further information or documents the president reasonably requires to decide whether to make the declaration. (6) The president must decide whether to make the restricted prisoner declaration within the following period─ (a) if the president has deferred making the decision under subsection (5)—150 days -- 4 of 20 -- 5 after receiving the restricted prisoner report; (b) otherwise—120 days after receiving the restricted prisoner report. (7) A failure to make a decision within the period mentioned in subsection (6) does not affect the validity of the president’s decision. (8) In this section─ victim see the Victims of Crime Assistance Act 2009, section 5.” [10] As a starting proposition therefore, the President must be satisfied that it is in the public interest to make a restricted prisoner declaration pursuant to s 175H(1). That public interest criteria then informs the application of the section. [11] In considering the public interest, the mandatory matters to which the President must have regard are those in s 175H(2) being the nature, seriousness and circumstances of the offence, the risk which the prisoner may pose to the public if granted parole and the likely impact that the prisoner’s release may have on an eligible person or victim. [12] In deciding whether to make a restricted prisoner declaration, the President must also have regard to the following information set out in s 175H(3): (a) the restricted prisoner report about the prisoner; (b) if an eligible person has, under s 188 of the CS Act, at any time made a submission in relation to a parole application made by the prisoner – the submission; (c) any relevant remarks made by a court in a proceeding against the prisoner for the offence for which the prisoner was sentenced to a term of life imprisonment; (d) if the prisoner made a submission under s 175G(3)(d) of the CS Act – the submission . [13] Sub-sections 175H(2) and (3), do not purport to exhaustively define the matters that must be considered by the President in determining the public interest.3 Rather, the President may have regard to any other matter or information which the President considers relevant to the public interest. [14] If the President makes such a restricted prisoner declaration, then the matters which the declaration must set out are contained in s 175I of the CS Act: “175I If restricted prisoner declaration made (1) If the president makes a restricted prisoner declaration, the declaration must state— (a) the reasons for the decision; and 3 Corrective Services Act 2006 (Qld), s 175H(4). -- 5 of 20 -- 6 (b) the day the declaration takes effect; and (c) the day the declaration ends; and (d) that the restricted prisoner may not apply for parole under section 180 while the declaration is in force; and (e) if the prisoner’s application for parole was deferred under section 193AA(2)—that the application for parole is refused. (2) The day the declaration takes effect must not be— (a) if a restricted prisoner declaration is in force for the prisoner—a day before the current declaration ends; or (b) otherwise—a day before the day the declaration is made. (3) The day the declaration ends must not be later than 10 years after the day the declaration takes effect. (4) In deciding the term of the declaration the president must— (a) be satisfied the term is in the public interest; and (b) have regard to the matters mentioned in section 175H(2). (5) The president must give a copy of the declaration to— (a) the prisoner; and (b) the chief executive; and (c) the parole board. (6) In this section— current declaration see section 175G(2).” [15] Specifically in deciding the term (or length) of the declaration, the President must be satisfied that the duration of the declaration is in the “public interest” pursuant to s 175I(4)(a), and having regard to the matters in s175H(2). The applicant’s medical circumstances [16] Mr Anderson’s medical history includes: (a) non-functioning pituitary adenoma, requiring neurosurgery review six monthly; (b) type-2 diabetes, managed with oral hypoglycaemic agents; -- 6 of 20 -- 7 (c) central hypothyroidism, for which he takes replacement therapy; (d) hypogonadotropic hypogonadism, for which he takes replacement therapy; (e) right radial nephrectomy in September 2019 for renal carcinoma for which he has ongoing neurology follow-up; (f) lower urinary tract symptoms, managed with medication; (g) epilepsy, his last seizure being in July 2020 for which he takes appropriate medication; (h) poor mobility secondary to diabetic neuropathy for which he is awaiting physiotherapy; (i) likely chronic obstructive airways disease (COAD) managed with inhaler medication; (j) pain, both in his lower back and diabetic foot neuropathy; (k) hypertension (high blood pressure) for which he takes anti-hypertensive medication; and (l) chronic kidney disease stage 3a. [17] The senior medical officer of the Wolston Medical Centre expressed the opinion in December 2021: “West Moreton considers the patient’s medical needs are currently able to be met in custody, though this may change in the short to medium term with the progression of illness and in the context of multiple co-morbidities. The Parole Board may wish to seek further information from the relevant specialty area at the PAH [Princess Alexandra Hospital] to assist with its decision.” [18] Some 14 months later West Moreton Health was asked to provide a further update in relation to the patient’s current medical problems, to which the same Senior Medical Officer advised: “Mr Anderson has a number of chronic medical conditions and symptoms which require further investigation, monitoring, and specialist input. None of his conditions are immediately life threatening, however, he is at risk of acute deterioration due to his underlying health issues. His mobility is very poor and he is experiencing regular falls. In order to adequately manage his medical conditions Mr Anderson requires reliable access to primary care, specialist care and allied health. His needs would be better able to be met in a supported community or respite setting. Mr Anderson has complex health issues requiring ongoing medical and mental health care. The patient’s needs are likely to become more difficult to meet in the corrective environment and his care may be more appropriately managed in a supported community or nursing home setting. The Parole Board may wish to seek further information -- 7 of 20 -- 8 from the relevant speciality area at the PAH [Princess Alexandra Hospital].” [19] The applicant places particular emphasis on the fact that his medical needs are likely to significantly deteriorate in the future, and even if his needs cannot be properly met in the corrective services environment, he will not be able to apply for parole until 6 December 2031. The basis for the application for review and the opposition to it [20] On both sides, there was considerable development in the arguments advanced between the grounds as filed, the written submissions and the oral arguments. [21] Ground one of the application (as amended) was that the making of the decision involved an error of law4 by failing to, in consideration of the public interest, have regard to human rights particularly in considering the duration of the declaration. [22] In considering the public interest under the CS Act, and in particular the duration of the declaration, the applicant submits that the President was required to have regard to the impact of the declaration on the prisoner’s right to dignity while deprived of his liberty, and in particular his special medical needs. In the context of the applicant suffering from a range of ill-health conditions which can reasonably be expected to deteriorate over the coming eight years and six months, the applicant contends that the President did not take into account those factors. This ground arises out of the construction of s 175H of the CS Act, and as such is said to be an error of law within the meaning of s 20(2)(f) of the Judicial Review Act 1991, in that there has been a failure to take into account a relevant consideration. [23] Further, by force of s 58 of the Human Rights Act 2019 (the HR Act), the respondent was required to give “proper consideration” to the HR Act equivalent to the right to dignity, however no such consideration was given to that right, or to the same right that exists independently of s 30(1) of the HR Act. [24] The applicant submits that these principles are enshrined in s 3 of the CS Act which provides the Act’s purpose as follows: “3 Purpose (1) The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders. (2) This Act recognises that every member of society has certain basic human entitlements, and that, for this reason, an offender’s entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded. (3) This Act also recognises— 4 Judicial Review Act 1991 (Qld), s 20(2)(f). -- 8 of 20 -- 9 (a) the need to respect an offender’s dignity; and (b) the special needs of some offenders by taking into account— (i) an offender’s age, sex or cultural background; and (ii) any disability an offender has.” [25] Although the Further Amended Application relied upon other particulars in the Criminal Code and elsewhere, those other aspects were not pressed in written or oral submissions. [26] The second ground was that s 58(1)(b) of the HR Act declares that it is unlawful for a public entity to make a decision without giving proper consideration to a human right relevant to the decision. Section 30(1) of the HR Act identifies one such right, namely that, “all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.” This requires a public entity, at a minimum, to demonstrate an understanding in general terms, as to which of the rights affected by the decision may be relevant. Whilst the applicant accepts that a contravention of this requirement is not, by itself, a basis for challenge of an administrative decision, if a person may seek any relief or remedy in relation to the decision on another basis (such as the first set out above), they may also seek that relief or remedy on the basis of contravention of s 58 of the HR Act.5 [27] There is a third ground, closely related to the second, that relies upon s 58(1)(a) of the HR Act. Here it is alleged that there was a failure to comply with the duty prescribed in s 58(1)(a) to ensure the decision is compatible with the applicant’s human rights. I deal with this as part of ground two. [28] The respondent’s position on the application was that: (a) there was no independent ground of review. The grounds of review rely upon a failure to have regard to the right protected in s 30(1) of the HR Act and must depend on s 58 of the HR Act. In the result ground one is incompetent and ground two is without an independent ground, hence the application ought to be dismissed; (b) ground one is subsumed within ground two that advances the applicant’s allegation the respondent failed to meet their procedural obligations under s 58(1)(b) of the HR Act, so the grounds can be dealt with together; (c) the applicant’s right to humane treatment when deprived of liberty is not a mandatory relevant consideration that bore upon deciding the term of the declaration; it was not engaged nor limited by deciding the term of eight years and six months; (d) the respondent gave the applicant’s right to humane treatment when deprived of liberty proper consideration in deciding the term in any event; 5 See s 59 of the Human Rights Act 2019 (Qld). -- 9 of 20 -- 10 (e) any limit to the applicant’s right to humane treatment when deprived of liberty caused by deciding the term is reasonable and justified within the meaning of ss 8, 13 and 58(1)(a) of the HR Act. The declaration and the reasons [29] It is necessary to set out the process leading to the decision, the decision itself and the respondent’s reasons, at some length. [30] On 5 September 2022 the Parole Board considered the applicant’s parole application and identified him as a restricted prisoner pursuant to s 175D of the CS Act and deferred consideration of the application. Notice was given to the President of the Parole Board that the prisoner had applied for parole. [31] On 27 September 2022 the President received a restricted prisoner report about the applicant pursuant to s 175F(2). [32] The applicant then made multiple submissions to the President including handwritten pieces of correspondence from the applicant to the President received 14 September 2022, 18 November 2022 and 9 December 2022. [33] On 19 December 2022 the President considered whether to make a restricted prisoner declaration about the applicant pursuant to s 175H of the CS Act, deferred deciding whether to make such declaration, and requested an updated Queensland Health assessment about the applicant and an interview with Dr Ken Arthur in relation to a psychiatric report he had completed earlier in 2022. [34] The President then received multiple further submissions from the applicant dated 19 December 2022, 27 December 2022, 3 January 2023, 23 January 2023, 1 February 2023 and 13 February 2023. [35] On 7 February 2023 the President received an updated Queensland Health report about the applicant, and on 31 March 2023 the President further considered whether to make a restricted prisoner declaration about the applicant. [36] The President then interviewed Dr Ken Arthur about the psychiatric report he produced about the applicant dated 24 May 2022 and deferred deciding whether to make a restricted prisoner declaration. The transcript of interview between the President and Dr Arthur is dated 31 March 2023. [37] On 5 April 2023 the President further considered whether to make a restricted prisoner declaration, and formed a preliminary view that such a declaration might be made for a period of eight to ten years. [38] On 11 April 2023 the President issued correspondence to the applicant providing notice of that preliminary view and provided a copy of the documents which formed the basis for the President’s decision. The applicant was invited to provide a response to the notice of the preliminary view within 21 days. [39] On 14 and 17 April 2023 the President received further submissions from the applicant. -- 10 of 20 -- 11 [40] On 28 April 2023 the President received an independent submission in support of the applicant. [41] On 24 April 2023 the President received information from Queensland Corrective Services regarding the applicant’s use of the Prisoner Telephone System and shortly thereafter requested copies of the referenced calls from Queensland Corrective Services, and transcriptions of the recordings. [42] On 19 May 2023 the President further considered whether to make a restricted prisoner declaration about the applicant and the transcriptions of the three telephone calls involving him. [43] Copies of the transcriptions of the prisoner telephone recordings were provided to the applicant along with an Addendum Notice of the President’s preliminary view. [44] On 1 June 2023 the President received an undated independent submission from a friend of the applicant. [45] On 5 June 2023 the President further considered whether to make a restricted prisoner declaration about the applicant, and decided to so make that declaration for a period of eight years and six months to take effect from 6 June 2023. [46] Pursuant to s 193AA(4) of the CS Act the applicant’s parole application was therefore taken to have been refused by the Board on 5 June 2023. [47] The decision to make a restricted prisoner declaration for a period of eight years and six months was set out in the letter from the President to the applicant which provides follows: “On 5 June 2023, I further considered your application and decided to make a Restricted Prisoner declaration about you for a period of eight (8) years and six (6) months as I am satisfied it is in the public interest to do so. The declaration is specified to have taken effect on 6 June 2023 and cease on 6 December 2031.” [48] The declaration set out that the President was “satisfied that it is in the public interest to make a declaration about [the prisoner]” and that the President had made the declaration because: “- Of the nature, seriousness and circumstances of the offence for which the prisoner was sentenced to life imprisonment; - Of the risk the prisoner may pose to the public if the prisoner is granted parole; and - Of the likely effect that the prisoner’s release on parole may have on an eligible person or a victim.” [49] In making the restricted prisoner declaration, the President recorded that he took into account: (a) each of the submissions which had been made to him; -- 11 of 20 -- 12 (b) the very violent nature of first murder where he attacked the elderly woman in her own home in what was described as prolonged and extraordinarily violent circumstances; (c) that in respect of the second murder, whereby the prisoner used a television aerial cord to strangle the victim, the prisoner claimed that he did so because the victim was “irritating” those around him; (d) the psychiatric evidence which demonstrated that the prisoner had a psychopathic personality with poor impulse control and demonstrated high levels of aggression; (e) that both murders were inexplicable and a demonstration of gratuitous violence; (f) that the prisoner had demonstrated a lack of any true guilt or remorse for his behaviour which was in line with his psychopathic personality; (g) the comprehensive psychiatric and psychological assessments carried out between 1970 and 2022, including the President’s own recorded discussions with Dr Arthur; (h) that the prisoner had an established history of fire-setting with three arson related convictions, beginning before the first murder in 1976; (i) that in relation to the prisoner’s urge to continue to set fires the prisoner had expressed to Dr Arthur, and to others in telephone calls, that he could not help the urge to set fire to things; (j) the prisoner’s poor custodial history; and (k) that despite his advancing age the prisoner was still a high risk of violent recidivism and, pragmatically speaking, there was no role for psychiatric treatment of him. [50] No party challenged the conclusion that the prisoner is a psychopath and a pyromaniac who continues to pose a moderately high risk of violent recidivism despite his advancing age and his health issues. [51] The appeal centres around the term (duration) of the order, fixed at eight years and six months. Ground one [52] In O’Sullivan v Farrer6 the High Court said: “… the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 505, per Dixon J.” 6 (1989) 168 CLR 210 at 216. -- 12 of 20 -- 13 [53] In Bare v Independent Broad-Based Anti-Corruption Commission,7 Santamaria JA observed that legislation frequently expressly requires decision-makers to take into account the public interest, but the term has no fixed meaning; generally speaking, it will “take its colour” from the context in which it is used.8 It is therefore necessary to consider the scope and purpose of the legislation to identify the considerations by reference to which a decision is to be made. Accepting that the public interest cannot be defined within the precise boundaries, his Honour observed, that “… opinions have differed and will always differ as to what is within the public interest …”9 [54] Santamaria JA went on: “[554] As there are ‘rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law’, then, even in the absence of the Charter, a statutory requirement that the public interest be considered will require consideration of the human rights of members of the community as a whole and of particular individuals.” (footnotes omitted) [55] As a question of construction, ss175H and 175I of the CS Act do not expressly require the President to take into account the prisoner’s right to dignity while deprived of his liberty, and in particular his special medical needs; but when one has regard to the subject matter, scope and purpose of the particular power that is being exercised by the President, the statutory context dictates that those human rights be considered, even absent the provisions of the HR Act. Put another way, the public interest in s 175I of the CS Act cannot be considered only in the context of the types of matters set out at [49] above, directed to the violence of the offences and the risks to the community of violent recidivism, but also invokes weighing those considerations against the interests of the particular individual affected by the decision. That is because decisions with “devastating consequences” call for “genuine consideration of the human consequences” and “demands honest confrontation of what is being done to people.”10 [56] The respondent submits that being satisfied that the term is in the public interest enlivens the power to decide the term, but is not relevant to deciding the term. Deciding the term, it is submitted, is the product of two decisions: the first is the formation of the requisite state of satisfaction which enlivens the discretion because the term is in the public interest, and the second is the exercise of the discretion to decide the term, having regard to the s 175H(2) matters.11 But those matters, the respondent submits, are matters expressly directed to the public interest, and not to the individual prisoner’s interests. 7 (2015) 48 VR 129 (“Bare”). 8 Ibid at [548]. 9 Ibid. 10 Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423 at [3] (Allsop CJ, Markovic and Steward JJ agreeing). 11 Morant v Ryan (State Coroner) (2023) 15 QR 208 at [35]. -- 13 of 20 -- 14 [57] In support of this, the respondent points to Bare, which describes the concept as “protean…but not at large.”12 The decisionmaker should be reminded that there are interests that need to be considered in the making of the decision other than those of persons immediately affected by the decision.13 [58] I do not accept the respondent’s construction. [59] Section 175I(4) of the CS Act provides that in deciding the term of the declaration, the President must firstly be satisfied the term is in the public interest (s 175I(4)(a)), and must then have regard to the matters in s 175H(2) (s 175I(4)(b)), such that the matters in s 175I(4)(a) cannot be limited by the matters in s 175(4)(b). As a matter of construction, the matters in s 175I(4)(a) must be broader than merely the matters in s 175I(4)(b) otherwise s 175I(4)(a) would merely be a repetition of s 175I(4)(b). [60] That construction is consistent with s 48 of the HR Act, which provides that all statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is consistent with human rights. The respondent’s construction is not so consistent. [61] Here, the President when providing his reasons to accompany the Declaration of 5 June 2023, noted that the prisoner had a not insignificant history of medical issues. The President had regard to the contemporaneous report from Queensland Health which detailed a history of renal carcinoma, kidney disease, diabetes, epilepsy, and mobility concerns which have resulted in the prisoner’s use of a wheelchair. The President noted that although the prisoner was less physically capable of causing serious physical harm, in light of his medical comorbidities, there was still a risk when he was exposed to physically vulnerable persons. The President went on: “I am cognisant that given the prisoner’s advancing age, level of institutionalisation and health issues, it is likely that he would require supported accommodation if he were to be released e.g. a nursing home. On this point, Dr Arthur highlighted the unsuitability of such a placement due to the prisoner’s risk to vulnerable persons, particularly that regardless of his health issues, there are no barriers which would prevent him from engaging in his fire-setting behaviours. … I have been informed that the prisoner presents as requiring a high level of support if he were to be released, the kind which is most likely to be facilitated in a nursing home. However, given his particular risk towards vulnerable persons, it is unlikely this plan would be feasible. … Given the above and considering all information and material before me, I am satisfied that there is a risk the prisoner may pose to the public if he is granted parole, particularly as the prisoner is a psychopath and a pyromaniac who continues to pose a moderately high risk of violent recidivism despite his advancing age and noted health issues.” 12 Bare at [549]. 13 Ibid at [552]. -- 14 of 20 -- 15 [62] The balance of the consideration of the health issues contained between the extracted paragraphs above sets out at some length the opinion of Dr Arthur’s on the prisoner’s risk of future violence as well as details about whether the prisoner should have received psychological treatment in custody. [63] A fair reading of the reasons demonstrate that the President was concerned to consider those matters which were directed towards assessing the risks if the prisoner were to be released, and the support which he would probably require if he were so released. To that extent, the President had regard to evidence relating to risk, which was, of course, a proper consideration in the assessment of the public interest under s 175H(2), and therefore s 175I(4)(b). The President seemed rightly concerned with the risk of releasing a pyromaniac into an aged care home where vulnerable people might be at significant risk from his actions. But the reasons did not descend into any consideration as to the term of the declaration, until December 2031, or the way in which the decline in the applicant’s health, if any, would be managed in prison, rather than in the community, in the way in which he ought under s 175I(4)(a). The selection of eight years and six months in that context seems, on the face of the reasons, without particular explanation. [64] Given that the applicant will be 78 years of age before he is again entitled to apply for parole on 6 December 2031, it seems to me that the President has failed to give genuine consideration to the human consequences of the duration of the declaration, and the effect of it on the applicant in light of his various medical conditions. Nowhere in the decision did the President expose his reasoning for not allowing the applicant to have his suitability for parole genuinely considered at an earlier date than 6 December 2031. In my view, it was an error for him to have failed to do so. [65] That is sufficient to dispose of the application, and to set aside the term of the declaration made by the respondent as invalid in that in involved an error of law. Ground two [66] The applicant submits that the respondent’s reasons of 5 June 2023 do not refer to any human rights considerations, whether informing the public interest test in s 175H or as required by s 58(1) of the HR Act. [67] Whilst it is observed that there is a brief reference to human rights in the Notice of Preliminary View dated 11 April 2023, where the President noted that the applicant’s “human rights including your right to humane treatment whilst deprived of liberty”, simply identifying a human right that may be affected by a decision does not satisfy the requirement in s 58 of the HR Act that “proper consideration” be given to that right. Moreover, the applicant submits that nowhere did the President’s reasons distinguish between consideration of human rights for the purpose of making a declaration as distinct from determining its duration. Instead, the reasons merely rely on the same reasons for both purposes. In that context, the applicant submits that the President failed to have regard to the applicant’s right to dignity and the HR Act equivalent provided by s 30(1) in determining the duration of the declaration. [68] A “proper consideration” of human rights by those engaged in public administration involves a higher standard of consideration than that generally applicable at common -- 15 of 20 -- 16 law to take into account a relevant consideration.14 In Bare, the court held that what is required is a “weighing up, or balancing, of human rights against countervailing public and private interests”, describing it as an obligation of “some stringency”.15 [69] Martin SJA in Owen-D’Arcy’s case16 held that the term “proper consideration” in the HR Act includes, but is not limited to, identifying the relevant human rights and considering whether the decision would be compatible with human rights HR Act.17 But his Honour did not accept it was correct to describe s 58(5) of the HR Act as a codification, or a complete statement of the law. Rather Martin SJA described that the identification of the relevant human rights was an exercise that must be approached in a “common sense and practical manner”, involving an understanding, in general terms, of which rights of the person may be affected, and whether (and if so, how), those rights will be interfered with by the decision that is made.18 [70] The Queensland Human Rights Commission, as intervenor, submits that nothing in the reasons given identifies, let alone seeks to weigh, what the rights to be affected are, the impact of the decision on the person’s human rights and the implications for the affected person, the countervailing interests and obligations, nor balance the competing public and private interests as part of the justification. [71] The respondent places some emphasis on the extent to which it had regard to the evidence of the applicant’s health and treatment whilst in custody, and it is correct that the decision set out the applicant’s medical circumstances in some depth. In addition to the matters already set out above, in the preliminary notice of 11 April 2023, the respondent noted: “106. You have a not insignificant history of medical issues. I have had regard to a Queensland Health report dated 7 February 2023 which details your medical history and ongoing treatment requirements. I have particularly noted your history of renal cell carcinoma, kidney disease, type 2 diabetes, epilepsy, and your mobility concerns which have resulted in your use of a wheelchair to prevent falls. 107. Dr Arthur considered your health comorbidities in assessing your risk to the community. Dr Arthur opined that although you had a demonstrable tremor in your hands, at interview you appeared to have reasonable control of your torso muscles and upper limbs. Dr Arthur concluded that although you appeared less physically capable of causing serious physical harm, there is still a risk, particularly if you are exposed to physically vulnerable people, such as those that would be accommodated in a nursing home. 108. When Dr Arthur appeared before me on 31 March 2023, I asked him to expand further about your risk given your partial incapacitation. Dr Arthur stated: 14 Bare at [235]. 15 Ibid. 16 Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250. 17 Ibid at [134]. 18 Ibid at [137] citing Castles v Secretary, Department of Justice (2010) 28 VR 141 at [185]-[186]. -- 16 of 20 -- 17 I mean, when you’re with vulnerable people there’s ways of acting out, there’s physical intimidation, there’s violence, there’s threats, and there’s lighting fires and he’s a man who will push the boundaries. In gaol, he knows the boundaries, he understands the boundaries in gaol. But I think when he gets out, he’ll want his needs met and that everything that he wants, he’ll expect to get it. And if he doesn’t get it, then there’s a risk that he will act out. 109. The assessment of your risk to vulnerable persons is particularly relevant when I consider the reality of releasing you to the community and your own plans for release. By your own admission to Dr Arthur, you are highly institutionalised and have spent most of your adult life in some form of institution, whether it be jail, hospital, or a mental health facility. I am of the view that given your health comorbidities, advancing age and level of institutionalism, it is unlikely that you would be suitable for release anywhere other than accommodation akin to a nursing home. 110. When Dr Arthur appeared before me, I asked him about whether there were any parole conditions release options which may be able to manage your risk, particularly in a nursing home environment. Dr Arthur stated: … this man can only exist in supported accommodation, realistically with his level of institutionalisation dependency. And, so to provide that supported accommodation, he’s going to be in a nursing home environment, realistically, and in that environment, he’s still going to have access to vulnerable people. He can’t be in a locked environment, because nursing homes only – locked nursing homes only exist for people with dementia. He doesn’t have dementia. So even if you put him in a place where he has one to one, you know, care- which I don’t he requires or should require – he’s going to be around other people and he’s not going to have the same restrictions placed upon him … Unless you isolate him or put him in a place that’s just like gaol, where he has all these strict boundaries and that people around him are as capable as he is of protecting themselves.” (errors in original) [72] The President then observed, in forming a preliminary view to make a declaration of eight to ten years that: “I note that the parole board is a public entity in accordance with the Human Rights Act 2019 (Qld). In forming this preliminary view, I have had regard to your human rights including your right to humane -- 17 of 20 -- 18 treatment whilst deprived of liberty and that a Restricted Prisoner Declaration may curtail such a right. The limitation to your human right achieves the dual purpose of the legislation which is to both protect victims’ families, friends, and the broader community from the trauma of prisoners such as yourself being considered for parole at short intervals but also protects the community from prisoners who present an unacceptable risk to the community applying for parole and being released. I am cognisant of the burden this places on you by depriving your ability to apply for parole for several years particularly with regard to your age and health issues.” [73] Relevant to the applicant’s health and his right to humane treatment, the respondent relies upon the following in the Reasons: “• The prisoner has a not insignificant history of medical issues. I have had regard to a contemporaneous report from Queensland Health dated 7 February 2023 which details a history of renal carcinoma, kidney disease, diabetes, epilepsy, and mobility concerns which has resulted in the prisoner’s use of a wheelchair. • Dr Arthur considered his medical comorbidities when assessing the prisoner in 2022. He noted that although the prisoner appears less physically capable of causing serious physical harm, there is still a risk when he is exposed to physically vulnerable persons. • I am cognisant that given the prisoner’s advancing age, level of institutionalisation and health issues, it is likely that he would require supported accommodation if he were to be released e.g. a nursing home. On this point, Dr Arthur highlighted the unsuitability of such a placement due to the prisoner’s risk to vulnerable persons, particularly that regardless of his health issues, there are no barriers which would prevent him from engaging in his fire-setting behaviours. • Dr Arthur assessed the prisoner’s risk of future violence … Dr Arthur concluded: Despite his advancing age, prisoner Anderson is rated as a high risk of violent recidivism based on instruments that appraise both static and dynamic risk variables. Furthermore, he fulfils the criteria for Psychopathic Personality which is associated with higher rates of violent recidivism and has implications for both treatment and supervision. As is often seen, it appears that the actual frequency and intensity of violent acts has reduced over time, which is likely to be attributable to a number of variables including developing maturity and increasing physical frailty. However, there does not appear to have been an appreciable change in his attitudes towards violence or levels of insight, nor capacity to take responsibility for his actions. It is also concerning that despite his advancing age, he continues to engage in -- 18 of 20 -- 19 aggressive, antiauthoritarian behaviour and has been accused of sexually assaulting other inmates. … • … Based on the material before me, including the prisoner’s recent disclosures of being unable to control such urges, it cannot be excluded that the prisoner would not engage in fire-setting behaviour which presents a high risk of harm. • I have been informed that the prisoner presents as requiring a high level of support if he were to be released, the kind which is most likely to be facilitated in a nursing home. However, given his particular risk towards vulnerable persons, it is unlikely this plan would be feasible. … • Given the above and considering all information and material before me, I am satisfied that there is a risk the prisoner may pose to the public if he is granted parole, particularly as the prisoner is a psychopath and pyromaniac who continues to pose a moderately high risk of violent recidivism despite his advancing age and noted health issues.” [74] The respondent contends that the President is not required to give reasons for the length of the term, the term not being “the decision” referred to in s 175I(1)(a) of the CS Act. I do not accept that the term of the declaration is not a part of the decision itself and therefore not covered by the need to provide reasons. It is a necessary part of the declaration that the President identify the term, or duration.19 The term is therefore explicitly part of the decision, and the duty to provide reasons for the term follows as a matter of course. The respondent’s submission to the contrary must be rejected. [75] The respondent also contends that the possibility of exceptional circumstances parole justifies the limitations on the applicant’s human rights. Exceptional circumstances parole is available to all prisoners serving a term of imprisonment in custody who are not otherwise held on remand20 or subject to a non-cooperation declaration under the no body, no parole framework.21 Accordingly, should the applicant become incapacitated to the extent that he is not physically able to cause harm to another person or become so unwell that he is in imminent danger of dying and not physically able to cause harm to another person, then the discretion to consider granting an exceptional circumstances parole order may be enlivened. [76] Exceptional circumstances parole is no answer to deciding the term of the declaration. It is available only in the very limited circumstances provided for in the section. It does not apply to circumstances where, for example, a prisoner’s health deteriorates to such an extent that his medical needs can no longer be met in prison. Secondly, the availability of exceptional circumstances parole does nothing to inform the selection of eight years and six months as the term of the declaration. That is because 19 Corrective Services Act 2006 (Qld), s 175I(1)(b)-(c). 20 Ibid, s 176C. 21 Ibid, s 176B. -- 19 of 20 -- 20 the expiration of the declaration period does not result in an automatic grant of parole, but rather only to the circumstance where the applicant, if eligible, may apply for parole. The argument is of no assistance to the respondent. [77] Were it necessary to so decide, I would have found that ground two is also made out, and set aside the term of the declaration made by the respondent as invalid in that in involved an error of law. Orders [78] In the circumstances, I find that the period imposed under the Restricted Prisoner Declaration of 23 June 2023 is invalid and should be set aside. [79] I will, however, hear the parties as to the appropriate form of order. -- 20 of 20 --