Finn v Central and Northern Queensland Regional Parole Board [2016] QSC 233

SUPREME COURT OF QUEENSLAND CITATION: Finn v Central and Northern Queensland Regional Parole Board [2016] QSC 233 PARTIES: JEFFREY MARTIN FINN (applicant) v CENTRAL AND NORTHERN QUEENSLAND REGIONAL PAROLE BOARD (respondent) FILE NO/S: SC No 273 of 2016 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Cairns DELIVERED EX TEMPORE ON: 23 September 2016 DELIVERED AT: Cairns HEARING DATE: 23 September 2016 JUDGE: Henry J ORDER: With effect from 4pm 26 September 2016 the order of the court is that: 1. The decisions of the Respondent: (a) To suspend, for an indefinite period, the Board Ordered Parole granted to the Applicant; and (b) To amend the Board Ordered Parole granted to the Applicant; be set aside. 2. The Respondent pay the Applicant’s costs of and incidental to this application to be assessed on the standard basis. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the applicant seeks a statutory order of review quashing or setting aside the decisions of the respondent Parole Board – where pursuant to s 205(3) of the Corrective Services Act 2006 (Qld) the Board is required to give the applicant an information notice and reasonable opportunity to be heard before amending a prisoner’s parole order – where the Board did not give the applicant notice nor sufficient information for the applicant to be able to make a meaningful attempt to show cause – whether the decisions of the Parole Board should be set aside -- 1 of 5 -- 2 Acts Interpretation Act 1954 (Qld), s 27B Corrective Services Act 2006 (Qld), s 205, s 208 Judicial Review Act (1991) (Qld), s 30, s 48 COUNSEL: M Jonsson QC for the applicant D Turnbull for the respondent SOLICITORS: Philip Bovey & Co Lawyers for the applicant Crown Law for the respondent [1] HIS HONOUR: The applicant prisoner seeks a statutory order of review quashing or setting aside the decisions of the respondent Parole Board of 17 November 2015 indefinitely suspending the prisoner’s Board-ordered parole and amending the Board- ordered parole. [2] A brief overview of events in these ex tempore reasons is sufficient to demonstrate the Board’s statutory obligations, which are plainly intended to afford a parolee natural justice, were not complied with. [3] On 26 August 2015, the Board issued an information notice advising that on 26 August 2015 it had made a preliminary decision to amend the Board-ordered parole order granted to the applicant and which commenced on 20 January 2015. The amendments contemplated included requirements that the applicant complete certain sex offending programmes. The applicant is not serving a term of imprisonment for sexual offences but it is apparent from the materials there existed a basis to manage him with some care given a possible link between his drug-taking and sexual impropriety. [4] The reasons given in the information notice were: “The Board reasonably believes that you pose an unacceptable risk of committing an offence. The Board notes a Board report dated 6 July 2015 received from Probation and Parole advising that you have been assessed as requiring sexual offending treatment programs to reduce your risk of reoffending.” [5] The notice invited the applicant to show cause by written submission within 21 days why the decision should be changed. [6] While the notice unhelpfully referred to a “preliminary decision”, it is apparent it was intended to be given as an “information notice” pursuant to s 205(3) of the Corrective Services Act 2006 (Qld) in respect of a proposed decision. The respondent agrees. [7] Section 205(3) provides: “If practicable, a parole board must, before amending a prisoner’s parole order, give the prisoner an information notice and a reasonable opportunity to be heard on the proposed amendment.” [8] It is implicit in the words of s 205, including its definition at 205(6) of the term “information notice”, that the information notice is required to be in writing. Indeed, there exists an approved form, form 41, which was actually used by the Board in drafting the notice. -- 2 of 5 -- 3 [9] Pursuant to s 205(6): “…information notice means a notice – (a) stating the parole board is proposing to amend the parole order; and (b) advising the reason for the proposed action; and (c) inviting the prisoner to show cause, by written submissions given to the Board within 21 days after the notice is given, why the Board should not take the proposed action.” [10] Relevantly, the Acts Interpretation Act 1954 (Qld) provides at s 27B: “If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also – (a) set out the findings on material questions of fact; and (b) refer to the evidence or other material on which those findings were based.” [11] It is clear s 27B applies to an “information notice” under s 205 of the Corrective Services Act. [12] The purported “reason” given in the Board’s notice did not give the applicant sufficient information to be able to make any meaningful attempt to show cause. The reason was in reality a statement of belief and statement of the result of an assessment. The reasons for the belief and the result were simply not given. To use the language of s 27B generously to the respondent, these were at best findings. They did not, as they should have, refer to the evidence or other materials on which the findings were based. [13] To make matters worse, the Board did not as s 205(3) requires, “give” the applicant the information notice, apparently due to administrative error. [14] The applicant was not accorded the elementary natural justice which s 205 purports to confer of being given the notice, let alone given a notice adequately identifying the reason for the proposed action, so as to give practical beneficial effect to his purported reasonable opportunity to be heard. He was afforded no opportunity, let alone a reasonable one. [15] In the confused events which followed, it appears even when the applicant’s solicitor was engaged in correspondence with the Board and belatedly trying to show cause, he was not told what the evidence or other material giving rise to the decision was. [16] There is, then, no room for the exercise of my discretion under s 48 of the Judicial Review Act (1991) (Qld) to conclude it is not appropriate to intervene. I ought intervene, and the decision should be set aside. [17] Turning to the notice of suspension, by an information notice dated 26 November 2015 the Board purported to give notice that on 17 November 2015 it suspended for an indefinite period the Board-ordered parole order granted to the applicant which commenced on 20 January 2015. [18] The reason given for the Board’s decision was: “The Board reasonably believes that you failed to comply with the conditions (d) and (i) of the Board-ordered parole order, namely, “to give a test sample as directed by a Corrective Service officer” and “not take preparatory steps to breach, or -- 3 of 5 -- 4 otherwise evidence an intention to breach, this order”. You failed to provide a valid test sample, and attempted to provide a false sample, on 10 November 2015.” [19] The information notice then went on to refer to the matter of the amendment, before concluding with an invitation to the applicant to show cause within 21 days why the Board should change its decision. That invitation appears intended to relate to the suspension but the unfortunate inclusion in the information notice of reference to the amendment may have given rise to some confusion. Ultimately that aspect is of no particular moment in my decision-making. [20] Section 208 of the Corrective Services Act relevantly provides: “(1) If a parole board makes a written order suspending or cancelling a prisoner’s parole order, the board must give the prisoner an information notice on the prisoner’s return to prison. (2) The parole board must consider all properly made submissions and inform the prisoner by written notice whether the board has changed its decision, and if so, how.” [21] “Properly made submissions” are defined at s 208(4) as meaning: “[W]ritten submissions given by or for the prisoner to the parole board within 21 days after the information notice inviting the prisoner to make the submissions is given.” [22] Section 208(4) also defines “information notice” in the same material terms as already recited in respect of s 205. [23] The information notice was at least given to the applicant this time but once again the information notice was deficient. The purported “reason” given was that the applicant failed to provide a valid test sample and attempted to provide a false sample on 10 November 2015. This at least contained some greater reasoning than the notice referred to earlier in respect of the amendment. Nonetheless it fell short of the mark in its compliance with the requirements of an information notice as I have already discussed, coloured as they are by the requirement pursuant to s 27B of the Acts Interpretation Act, that there be set out findings on material facts and reference to the evidence or other material on which those findings were based. [24] It is apparent from the information now before me that that evidence or material included information from the officers who were administering the test to the effect that the prisoner had attempted to use a device secreted under his penis to provide a false sample. The brevity with which I have just summarised that information demonstrates the ease with which it might have been included in the information notice. [25] It seems obvious that that was a critical, relevant piece of evidence or material giving rise to the apparent conclusion, reason or finding that there had been a failure to provide a valid test sample or an attempt to provide a false sample. [26] Once again, the applicant was not provided with the information required for the giving of a reason, in order to give him any reasonable opportunity to meet the invitation to make properly made submissions. Once again, there was a failure to comply with the natural justice requirements entrenched in the Corrective Services Act. -- 4 of 5 -- 5 [27] The question whether I ought exercise my discretion under s 48 to conclude it is not appropriate to intervene is more finely balanced in respect of this decision. That is because the applicant was belatedly told some detail about the circumstances of the drug test at some later stage. However, he was not told of the circumstances alleged against him relating to police sighting of certain evidence in his car which had led to the drug test being requested. Indeed, he was never told of that prior to provision of reasons requested for the purposes of the Judicial Review Act. It is true those circumstances are not said to be the Board’s reason for suspension. But they were circumstances adverse to the applicant, they were before the Board and at the very least, informed its decision making as background information. [28] There is, moreover, the consideration that on an issue as fundamental as liberty, the applicant surely has a right to be afforded the due process afforded him, not only by the rules of natural justice but by the legislature. He was entitled to be told the Board’s reasons and in turn, attempt to provide a properly made submission within the meaning of s 208 within the timeframe stipulated. It would, I think, be trivialising those rights to take the view that they have been met by a quite different and less properly informed ad hoc process in the aftermath of the respondent’s failure to afford him natural justice and failure to comply with s 208. [29] Accordingly, this limb of the application should also be granted by the setting aside of the suspension order. [30] In setting aside the decisions, I intend, as s 30(1)(a)(ii) Judicial Review Act permits, to set a different timeframe for the implementation of my decision so as to afford the Parole Board some admittedly short notice and time within which to consider how it will deal with the dilemma that the prisoner is in custody and its decision indefinitely suspending his parole has been set aside by me. [31] I will couch the order in terms giving it effect as at 4 pm on Monday, 26 September. ... [32] HIS HONOUR: After hearing submissions it is ultimately uncontroversial that costs should follow the event on the standard basis. [33] I have amended a draft order implementing the effect of my decision with effect from 4 pm, 26 September 2016 and also implementing the costs conclusion just reached. [34] I order as per that amended draft order signed by me and placed with the papers. -- 5 of 5 --