Burns v Parole Board Queensland [2024] QSC 301

SUPREME COURT OF QUEENSLAND CITATION: Burns v Parole Board Queensland [2024] QSC 301 PARTIES: CLINTON BURNS (applicant) v PAROLE BOARD QUEENSLAND (respondent) FILE NO/S: BS 9627 of 2024 DIVISION: Trial Division PROCEEDING: Application for statutory order of review ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 5 December 2024 DELIVERED AT: Brisbane HEARING DATE: 22 November 2024 JUDGE: Treston J ORDER: 1. The application is dismissed. 2. Each party is to bear their own costs. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant is serving a sentence of imprisonment and made an application for parole – where the respondent refused the parole application – where the applicant seeks a statutory order of review of the respondent’s decision on the grounds of unreasonableness, natural justice, and failure to take relevant considerations into account – whether any grounds of review are made out – whether the decision of the respondent ought to be set aside Corrective Services Act 2006 (Qld) s 180, s 193(1)(b) Judicial Review Act 1991 (Qld) s 20(2), s 22(2) Batts v Department of Corrective Services; Fogarty v Department of Corrective Services [2002] QSC 206, cited Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, cited Hickson v Parole Board Queensland [2024] QSC 133, cited Kioa v West (1985) 159 CLR 550, cited McGrane v The Queensland State Parole Board [2012] QSC 350, cited -- 1 of 11 -- 2 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, cited COUNSEL: The applicant appeared on his own behalf RC Taylor for the respondent SOLICITORS: The applicant appeared on his own behalf Parole Board Queensland Legal Services for the respondent [1] The applicant seeks a statutory order of review of the respondent’s decision of 10 July 2024, which refused his application for a parole order under s 193(1)(b) of the Corrective Services Act 2006 (Qld). [2] The application is brought pursuant to the Judicial Review Act 1991 (Qld) (“JR Act”). [3] The applicant is self-represented. He has articulated the grounds of his appeal in his written outline of submission and orally. [4] A fair summary of the grounds of the application is first, that the respondent’s decision is unreasonable; second, that there has been a denial of natural justice; third, that there has been a want of procedural fairness; fourth, that the respondent has failed to place proper weight on particular facts; and fifth, that the respondent has failed to take into account relevant considerations. [5] Some of the factors relied on and respect of each of these grounds are overlapping. [6] The respondent contends that the grounds can broadly be categorised into three parts. Ground one is unreasonableness. Ground two is a breach of natural justice (which also encompasses the ground of procedural fairness). Ground three is a failure to take relevant considerations into account (which deals with the issue of emphasis of the weight that the Parole Board put on particular facts). I therefore proposed to deal with the application by the three categories identified by the respondent, recognising that all of them incorporate each of the five matters which have been raised by the applicant. Background [7] The applicant is serving a sentence of imprisonment of seven years, three months and 24 days. The offences for which he was imprisoned comprise weapons, violence, and property related offending. [8] The applicant’s parole eligibility date was 9 November 2023, and his custodial end date is 31 October 2027. [9] The applicant applied for parole pursuant to section 180 of the Corrective Services Act on 1 February 2024. -- 2 of 11 -- 3 [10] The respondent considered his application and made a decision to refuse it on 10 April 2024. The respondent, however, failed to inform him of the outcome of that meeting. [11] On 29 April 2024, the applicant inquired as to the progress of his application. The respondent again delayed, writing to him on 5 June 2024 informing him of its decision of 10 April, and enclosing a copy of the documents that it had considered. The applicant was provided with an opportunity to respond. [12] The applicant made submissions and provided further material in response to the 10 April decision. [13] The respondent again considered his application on 10 July 2024 together with his further material. The respondent decided to refuse to grant parole pursuant to s 193(1)(b) of the Corrective Services Act. [14] On 23 July 2024, the applicant commenced proceedings for a statutory order of review of the 10 April decision pursuant to s 22(2) of the JR Act. At the time the applicant was not aware that the final decision had already been made by the Parole Board at its meeting of 10 July 2024. [15] On 31 July 2024, after the applicant had commenced this application for judicial review, the Parole Board wrote to the applicant informing him of the decision of 10 July. The Board requested that the applicant discontinue this application given that a final decision had been made. The Board offered to pay the applicant’s cost of filing the application for judicial review and respect of the 10 April decision. [16] When the matter came on for review on 8 August 2024, the Parole Board sought that the application be dismissed given that it was of no utility as a final decision had now been made. The applicant advised the court that he was seeking to review that final decision. The court ordered the respondent provide the applicant with a statement of reasons. [17] The respondent provided a statement of reasons on 22 August 2024. [18] On 18 September 2024, the applicant filed an amended application for a statutory order for review and an accompanying affidavit. [19] The decision that the applicant therefore seeks to review is the final decision of 10 July 2024 and not the preliminary decision of 10 April 2024. Legislative context in which the decision was made [20] The legislative context in which this decision was made was recently summarized by Cooper J in Hickson v Parole Board Queensland.1 I gratefully adopt his Honour’s summary of the legislative context as follows:2 “[18] The respondent is established under Ch 5, Pt 2 of the Corrective Services Act. One of its functions is to decide applications for parole orders, other than court-ordered parole orders. 1 [2024] QSC 133. 2 At [18]–[22]. -- 3 of 11 -- 4 [19] A prisoner can apply for a parole order if they have reached their parole eligibility date in relation to their period of imprisonment. After receiving an application for a parole order, the respondent must decide to either grant or refuse to grant the application. The respondent has the power, by a parole order, to release a prisoner who has reached his or her parole eligibility date. [20] The Corrective Services Act does not specify the criteria for deciding whether to grant or refuse an application for a parole order. The discretion has been described as broad and unfettered, but one which is to be exercised having regard to the subject matter, scope and purpose of the Corrective Services Act. The relevant purpose is “community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.” It has been observed that this statement expresses two purposes (community safety and crime prevention) and three equally important ways of achieving those purposes (containment, supervision and rehabilitation). [21] The Minister may make guidelines about policies to help the respondent in performing its functions. The relevant Ministerial Guidelines were issued on 20 December 2021 and took effect from 31 December 2021. Consistently with the purpose of the Corrective Services Act, clause 1.2 of the Ministerial Guidelines states that “[w]hen considering whether a prisoner should be granted a parole order, the highest priority for the Parole Board Queensland should always be the safety of the community”. Clause 1.3 states that the respondent should consider whether there is an unacceptable risk to the community if the prisoner is released to parole and whether the risk to the community would be greater if the prisoner does not spend a period of time on parole under supervision prior to the fulltime completion of their prison sentence. [22] The Ministerial Guidelines do not fetter the exercise of the broad discretion of the respondent in deciding whether to grant or refuse an application for a parole order. They do not prescribe or limit how that discretion is to be exercised. They are, however, to be regarded as a relevant factor and must be taken into account by the respondent.” (citations omitted) [21] The effect of this legislative context is that the nature of this review is a judicial review of an administrative decision. Such a judicial review is confined to the legality of the decision. It is concerned with whether the decision is one which the respondent was authorised to make. [22] The review of the decision is not a general review of the decision or a substitution of the decision which the court considers ought to have been made. Commonly, this court has referred to the fact that on an application for judicial review, it is impermissible for the court to approach it as if it were a merits review. -- 4 of 11 -- 5 Ground one – unreasonableness [23] The relevant statements of principle were articulated by the High Court in Minister for Immigration and Citizenship v Li3 and Minister for Immigration and Border Protection v SZVFW.4 Justice Cooper in Hickson’s case summarised those principles as follows:5 “(a) The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. (b) A decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. (c) Where it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the statute which confers the discretionary power, the discretion has not been exercised lawfully. Within the sphere of the statutory purpose, however, there is scope for a decision-maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts. (d) The courts’ role in applying the legal standard of reasonableness is supervisory. It does not permit an applicant to challenge a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters.” (citations omitted) [24] Any finding of unreasonableness is necessarily stringent and of extremely confined scope.6 Such a finding will not be made merely where a different decision could have been made. Rather, as summarised by Cooper J in Hickson’s case, the finding will only be made where the decision lacks an evident and intelligible justification. [25] The statement of reasons identifies the material that was before the respondent when it made the 10 July decision, when the board refused to grant the parole. [26] The material discloses the factors that were favourable to the applicant, including: (a) The availability of suitable accommodation and support in the community upon his release from custody; (b) The applicant’s employment in custody; (c) The applicant’s completion of the Low Intensity Substance Intervention (LSI) and his waitlisting for the Substance Abuse Maintenance Intervention (SAMI); (d) The provision of a clean urine analysis sample; 3 (2013) 249 CLR 332. 4 (2018) 264 CLR 541. 5 Hickson’s case at [24]. 6 SZVFW at [11] per Kiefel CJ, [52] per Gageler J, as the Chief Justice then was, and at [135] per Edelman J. -- 5 of 11 -- 6 (e) The applicant’s completion of a Relapse Prevention Plan; and (f) The applicant’s recent good behaviour in custody. [27] The reasons also set out the factors which were not favourable to the applicant, including: (a) The applicant’s criminal history; (b) The serious nature of the index offending; (c) The applicant’s poor response to his most recent grant of parole; (d) The applicant’s poor custodial behaviour, including several specific incidents; (e) The applicant’s outstanding treatment needs relating to substance abuse, and its link with his criminal history and offending; and (f) The fact that the applicant was the respondent to two active domestic violence orders. [28] The reasons demonstrate that the respondent considered both the favourable and unfavourable factors for the purposes of coming to its decision and balanced them carefully. [29] Prior to coming to its final decision, the Board received a submission from the applicant on 26 June 2024. Included in that material was a relapse prevention and management plan in which the applicant identified opportunities and risks of making positive change, including a better quality of life, employment, and being drug-free. [30] The applicant relied upon that management plan document, noting that nothing would change if he continued to make bad decisions, but that he now is not afraid to seek help from his support network. He identified the concerns he had with drugs and the steps he had in place to prevent high risk situations. The plan identified steps that the applicant proposed to take, including keeping busy, maintaining employment, building positive relationships, going to the gym and communicating with support networks. The plan identified that the applicant understood the consequences of relapses including a return to jail, losing employment, family, and friends. [31] Having reviewed all of that material the which was set out at some length in the statement of facts, the Board nevertheless concluded that there was nothing in the information which would sufficiently alleviate its concerns and concluded that the safety of the community would be better served by releasing the applicant at a later date. [32] The applicant challenges that the Board did not give sufficient weight to the positive factors such as his positive behaviour in prison, employment history, his two previous occasions of successfully completing parole orders, and his engagement in drug rehabilitation programs. [33] This is not, however, merits review. The material demonstrates that the Parole Board took all of these factors into account. [34] Of note, the applicant referred to fact that at the date of this hearing, he is still breach free, he has maintained his employment and he now has a psychologist’s report -- 6 of 11 -- 7 (which was obtained at his own expense) that is supportive of his release on parole. Those, however, were matters not known to the Board when it made its decision on 10 July. These matters may well be raised by the applicant when he is eligible to re- apply for parole on 10 January 2025, but I cannot take them into account in considering whether the Board’s decision was unreasonable in a legal sense. [35] The Board, having taken into account several factors favourable to the applicant, concluded that the factors against him weighed against a grant of parole. That conclusion does not lack “evident and intelligible justification” and it is not the role of the court to engage in an assessment of the merits of the decision. Accordingly, the unreasonableness ground is not made out. Ground two – natural justice and procedural fairness [36] The applicant’s amended application appears to articulate a submission that he was not afforded procedural fairness. [37] The High Court identified in Kioa v West7 that the “notion of procedural fairness reflects the importance which the law attaches to the need to bring a person’s attention the critical issue or factor on which an administrative decision is likely to turn so that the person has an opportunity of dealing with it”.8 [38] In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd,9 the Full Court of the Federal Court said: “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.” [39] However, the material demonstrates that the applicant was given an opportunity to put information in support of his application to the Board. As noted, the Board gave the applicant an opportunity to respond when it advised him of its preliminary decision to refuse his application for parole on 5 June 2024. Indeed, the applicant then made submissions and provided further material in response to the preliminary refusal. That material was explicitly considered in the Board’s reasons for refusing 7 (1985) 159 CLR 550. 8 Hickson’s case at [35] quoting Kioa v West (1989) 159 CLR 550 at 587. 9 (1994) 49 FCR 576, 591–2. -- 7 of 11 -- 8 the application for parole. Accordingly, it cannot be said that the Board failed to give the applicant an opportunity to respond. [40] Another particular demonstrated in oral submissions relating to procedure fairness was the submissions that the Board failed to make its decision within the prescribed time period in section 193. [41] The section ordinarily requires the Board to make a decision within 120 days.10 However, that timeframe is extended to 150 days where the Board defers its decision to obtain additional information.11 The Board made a preliminary decision to refuse the applicant’s application for parole on 10 April 2024. The applicant was advised of the Board’s preliminary decision and its reasons and asked to respond to them, which he then did. Regardless, the Board did not make its final decision until 10 July 2024 – some 160 days after the application for parole. [42] However, the delay does not itself make the decision invalid. Justice Boddice, as his Honour then was, made this clear in McGrane v The Queensland State Parole Board:12 “[29] Section 193 was amended in 2009 to increase the time period in which decisions must be made on parole applications. Those amendments repealed the then existing s 193(5) which deemed that an application was refused if it had not been decided within the specified time frame. [30] An ordinary meaning of s 193, as presently enacted, is that whilst the respondent is required to grant or refuse an application for parole within a specific period, a failure to do so does not deprive the respondent of jurisdiction to continue to determine the application. [31] This interpretation is consistent with the terms of the explanatory note to the amending bill. That explanatory note expressly provided, in respect of the proposed amendment to s 193: "The purpose of this provision is to increase the time available to parole boards to make a decision. Where this timeframe is exceeded the parole boards will continue to have the jurisdiction to decide the application. This is achieved by the repeal of s 193(5) which acted to exclude the parole boards’ jurisdiction once 120 days had elapsed since the application was received …" [32] The respondent's failure to make a decision within the time period specified within the Corrective Services Act does not mean the respondent failed to observe a procedure required by law in making its decision. The respondent made a decision on the application, as by law, albeit outside the specified time period.” 10 Section 193(4)(b). 11 Sections 193(3) and (4)(a). 12 [2012] QSC 350 at [29]–[32]. -- 8 of 11 -- 9 [43] There is also an issue that arises under this ground in relation to certain confidential information to which the Board had regard which has been redacted from a file note of the respondent’s meeting of April 2024. [44] It did not become clear during submissions that the applicant relied upon this redaction as supporting his natural justice and procedural fairness ground, nevertheless I should briefly consider it in the event the failure to rely upon it was merely a reflection of the self-representation. [45] I am satisfied that the unredacted portion of the file note was not taken into account by the respondent at that April 2024 meeting.13 There is no challenge to that evidence and accordingly it is difficult to see how it might be relevant to any argument about procedural fairness. I have also reviewed a confidential unredacted version of that material, which I have now ordered to be sealed, and that review satisfies me that the redacted material was not in any event relevant to the Board’s consideration of the parole application. [46] In the circumstances, I am not satisfied that the applicant has established that the decision to refuse the grant of parole has not been in breach of the rules of natural justice or procedural fairness. This ground is not made out. Ground three – failure to take into relevant considerations and failure to give weight to particular facts [47] The final ground, as I have said, has some overlap with the first ground as to unreasonableness. That is particularly so in respect of these submissions based around the Board’s failure to give proper weight to the favourable factors of the applicant. [48] In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,14 the High Court held that failure to take into account a relevant consideration can only be made out as a ground of review if a decision-maker fails to take into account a consideration that he or she is bound to take into account in making that decision. [49] The respondent submits that the applicant has not identified any such failure. [50] I accept that the factors that a decision-maker is bound to consider in making the decision are determined by the construction of the statute conferring the discretion. If the relevant factors are not expressly identified in the statute, then they must be determined by implication from the subject matter, scope and purpose of the statute.15 Furthermore, the decision-maker must give the factors proper, genuine and realistic consideration. Care needs to be taken to ensure that the approach does not impermissibly become a merits review of the decision. [51] Again, in his outline and in his oral submissions, the applicant contends that the Board did not place enough weight on the applicant’s: (a) Successful completion of parole orders on two previous occasions; (b) The applicant’s completion of the LSI program; 13 Second Affidavit of Mackenzie Brennan affirmed 4 October 2024 at exhibit MB 25. 14 (1986) 162 CLR 24 at 39–40. 15 Ibid. -- 9 of 11 -- 10 (c) The applicant’s asserted positive institutional behaviour; and (d) The applicant’s positive prison employment history. [52] I have already dealt with the fact that the evidence demonstrates that each of these matters were considered by the respondent. The applicant also accepts that the matters were considered, but his submission is that not enough weight was given to them. [53] As to the applicant’s contention that the respondent did not give enough weight to the programs that the applicant had completed in custody, the applicant relied on a decision of Justice Dutney in Batts v Department of Corrective Services; Fogarty v Department of Corrective Services.16 The principle that arises from Batts’ case is that it is impermissible for the respondent to refuse an application for parole solely on the basis that there has been a failure to undertake a particular course.17 It is true that the Board did not expressly refer to Batts’ case in its decision; however, it is also clear that it took into account the types of matters to which Batts’ case applies, such as: (a) the applicant’s positive features, including approved accommodation, completion of the LISI program, the fact that he is on the waiting list for the SAMI program, and his clean urine sample; (b) the applicant’s criminal history, which included a longstanding history relating to the use of substances; (c) the applicant’s recent response to parole supervision, which involved the further use of substances, a failure to engage appropriately, and the commission of further offences; (d) the applicant’s release plans, which the respondent considered as requiring improvement; (e) the applicant’s use of substances and substance based offending, despite his completion of the LISI program in 2021; (f) that the applicant was waitlisted for participation in the SAMI program; and (g) that the applicant had outstanding treatment needs in relation to substance abuse and that his risk was unacceptable whilst these needs remained outstanding. [54] I am satisfied that the Board properly took into account the relevant principle from Batts’ case, and there is no error in relation to this. [55] Generally, in relation to the applicant’s primary submission that the Board did not give proper weight to the positive factors in favour of the grant of parole, it is impermissible in a proceeding such as this for a court to engage in a merits review. This court has a limited role in reviewing the exercise of an administrative discretion. It is not the court’s function to substitute its decision for that of the administrator. [56] I take into account the applicant’s submissions that he intends to undertake counselling, to be supported by groups in his community, and takes support from his family and other qualified practitioners. Each of those matters were ones that were 16 [2002] QSC 206. 17 Batts’ case at [14]. -- 10 of 11 -- 11 identified and considered by the Board, and the applicant has not demonstrated any error in the way in which it has done so. [57] The third ground of review has not been made out. Conclusion [58] Having found that no grounds of judicial review have been made out pursuant to the JR Act, the application is dismissed. [59] The respondent ask that each party bears their own costs. Mr Burns does not oppose that order. -- 11 of 11 --