Ashley v Southern Queensland Regional Parole Board [2010] QSC 437

SUPREME COURT OF QUEENSLAND CITATION: Ashley v Southern Queensland Regional Parole Board [2010] QSC 437 PARTIES: THOMAS SIMON ASHLEY (Applicant) v SOUTHERN QUEENSLAND REGIONAL PAROLE BOARD (Respondent) FILE NO/S: BS 3614/10 DIVISION: Trial Division PROCEEDING: Originating Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 23 November 2010 DELIVERED AT: Brisbane HEARING DATE: 3 November 2010 JUDGE: Boddice J ORDER: The application for review is dismissed CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – APPLICATION FOR STATUTORY ORDER OF REVIEW – GROUNDS OF REVIEW – NATURAL JUSTICE – UNREASONABLENESS – OTHER GROUNDS – DISCLOSURE OF CONFIDENTIAL INFORMATION AND PUBLIC INTEREST IMMUNITY – where the Queensland Parole Board granted the applicant parole on conditions – whether documents used to reach the decision as to conditions are properly able to be kept from the applicant under a claim of public interest privilege Judicial Review Act 1991 (Qld) Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2005) 225 CLR 88 Associated Prudential Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 -- 1 of 8 -- 2 Australian Retailers Association & Ors v Reserve Bank of Australia (2005) 148 FCR 446 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 Elias v Commissioner of Taxation (2002) 123 FCR 499 Harms v Queensland Parole Board [2008] QSC 163 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Re Solomon [1994] 2 Qd R 97 Rogers v Home Secretary of State for the Home Department [1973] AC 388 Young v Quin (1985) 4 FCR 483 COUNSEL: The applicant appeared on his own behalf Mellifont, KA for the respondent SOLICITORS: Crown Solicitor for the respondent [1] The applicant makes application for a statutory order of review, pursuant to the Judicial Review Act 1991 (Qld), to review two conditions imposed by the respondent when granting the applicant release on parole on 25 June 2010. [2] The applicant relies on two grounds. First, a denial of natural justice. Second, that the decision to impose the second condition was “so unreasonable that no reasonable person could so exercise the power”.1 This ground reflects the principles in Associated Prudential Picture Houses Ltd v Wednesbury Corporation.2 Background [3] On 17 October 2007, the applicant pleaded guilty to an offence of maintaining an unlawful relationship with a child, namely, his step-daughter. He was sentenced to seven years imprisonment. A parole eligibility date was set at two years four months, being 16 February 2010. The full discharge date is 16 October 2014. [4] The conduct the subject of the offence occurred from 25 October 1993 (when the complainant was aged nine) to 27 October 2000 (when she was aged 16). The sexual conduct ranged from touching through to performing oral sex. It also involved exposing the complainant to pornography. The applicant made admissions in a pretext telephone call. The sentencing judge noted the offence had clearly had 1 Judicial Review Act, s 23(g). 2 [1948] 1 KB 223 at 230. -- 2 of 8 -- 3 a substantial impact on the complainant and her family resulting in emotional damage to her, including self harm by the complainant.3 Parole application [5] The applicant applied for parole on or about 20 October 2009. On 11 December 2009, the respondent advised the applicant it was considering refusing parole. It noted that the proposed parole residence (being the address of the applicant’s wife) had been assessed as unsuitable for parole supervision at that time. The applicant was advised he would need to locate alternative suitable accommodation prior to any future application.4 [6] On 30 December 2009, the applicant requested the respondent defer its decision until they receive the exit report from the Medium Intensity Sexual Offenders Program (“MISOP”) which the applicant was due to complete on or about 25 March 2010. The respondent did not respond to that request for deferral. [7] On 3 February 2010, the respondent declined parole. A statement of reasons was provided on 14 April 2010.5 In that statement of reasons, the respondent noted that successful completion of the MISOP would increase its confidence in the applicant’s ability to identify the triggers for his offending behaviour, and to develop strategies to avoid such situations. He would also need to obtain suitable alternative accommodation. [8] On 8 April 2010, the applicant filed an application for statutory order of review in respect of the decision to refuse parole. [9] On or about 27 April 2010, the respondent received an exit report from MISOP. As a consequence, the respondent decided to rescind its refusal decision, and to grant the applicant parole subject to being in receipt of a suitable home assessment. The respondent advised the applicant of its decision by letter dated 20 May 2010.6 That letter set out the proposed conditions of parole. Relevantly, they included: “(q) That the prisoner not have any unsupervised access to children under the age of 16 years. (y) That the prisoner not enter or remain within the Redland Bay Regional City Council area.” [10] On 16 June 2010, the respondent gave further consideration to the applicant’s application, including a home assessment in respect of a different address. Although the proposed residence was unacceptable, the respondent gave the applicant the opportunity to propose another place of residence which would be consistent with the proposed conditions.7 In its letter advising the applicant of its proposed course of action, the respondent stated: “In making a decision as to whether grant or refuse parole, the board’s task is to assess the risk involved in granting to a prisoner the privilege of completing part of your sentence in the community. In 3 Sentencing remarks, affidavit of James Wedmaier filed 15 June 2010, exhibit JW-9. 4 Affidavit of James Wedmaier filed 15 June 2010, exhibit JW-3. 5 Affidavit of James Wedmaier filed 15 June 2010, exhibit JW-8. 6 Affidavit of James Wedmaier, filed 15 June 2010, exhibit JW-20. 7 Affidavit of James Wedmaier filed 16 June 2010, exhibit JW-29. -- 3 of 8 -- 4 further considering your application on 16 June 2010, the Board remained of the view that although there are risks involved in granting you parole, the conditions framed in the letter to you of 20 May 2010, ameliorate that risk. Put another way, the Board considers that, on the information presently available to it, releasing you on parole on the conditions set out in the letter of 20 May 2010 is an acceptable risk.” [11] On 25 June 2010, the respondent received a favourable home assessment in respect of OZCARE South Brisbane. The applicant was granted parole subject to conditions, including conditions (q) and (y). Release from custody was effective on 29 June 2010. On 9 August 2010, the applicant requested the respondent reconsider those conditions, together with a reconsideration of the two earlier home assessments. [12] On 18 August 2010, the respondent declined to remove condition (y) as it was required “in order to ameliorate the risk the applicant presented to the community while on parole, and that it was necessary in order to ensure the good conduct of the applicant while on parole and to stop the applicant from committing an offence”.8 The respondent advised the applicant of its decision that there would be no amendment to condition (y) by letter dated 24 August 2010. That letter advised the respondent was awaiting further advice in regards to condition (q).9 That remained the position at the time of the hearing of this application. Review application [13] Whilst the applicant’s application sought to review the imposition of condition (q), the applicant, at the hearing of the application, advised it was “not the actual condition” he was seeking to change as he could “quite understand” the respondent’s position that he should not have unsupervised access to children under age 16.10 Instead, the applicant sought to review a direction given to him by a Corrective Services Officer as part of his parole. That direction required the applicant not have supervised or unsupervised access with children under the age of 16 without the prior written consent of the probation officer. The respondent submits, correctly in my view, that that direction was not made by the respondent, or any of its officers. It was made by an officer of Corrective Services. Accordingly, review of that direction is not properly the subject of this application. Natural justice [14] In reaching its decision to impose condition (y), the respondent had regard to material not provided to the applicant. At the hearing of the application, leave was sought to read and file an affidavit of Peter McInnes, President of the respondent, sworn 16 June 2010. That affidavit exhibited the information relied upon by the respondent in reaching its decision which had not been disclosed to the applicant. A claim for public interest immunity was made in relation to that documentation. 8 Affidavit of Peter McInnes filed 22 October 2010, para 6. 9 Affidavit of Sue Travers filed 6 September 2010, exhibit ST-6. 10 Transcript 1-8/50. -- 4 of 8 -- 5 [15] A Court’s power to privately examine documents the subject of a public interest immunity claim is ordinarily exercised sparingly.11 In deciding whether to undertake that course, it is relevant to have regard to the statute creating the power as well as the circumstances of the particular case.12 [16] The respondent did not object to the Court viewing those documents in order to determine that claim. The applicant was “quite happy” for the Court to consider and receive those documents.13 On that basis, I received the affidavit and considered its contents. [17] Having considered the annexures attached to Mr McInnes’ affidavit, I was satisfied those documents were properly the subject of public interest immunity. The respondent was granted leave to read and file the affidavit and its exhibits, which were placed in a sealed envelope with an order that they not be opened without a further order of the Court. The applicant was informed I proposed to consider account that material in the application.14 [18] The applicant asserts that the respondent’s reliance on the information not disclosed to him amounts to a denial of natural justice as he is unable to properly respond to material relied upon by the respondent he has not seen and about which he is unaware of its content, and of its source. [19] The rules of natural justice require that the applicant be properly informed of the information relied upon by the respondent in making its decision and, that the applicant be afforded an opportunity to make submissions in relation to it prior to any decision being made by the respondent. Absent the claim for public interest immunity, those rules would require the applicant be at least informed of the case made against him, if not necessarily that he be provided with copies of the relevant documentation, and that he be given an opportunity to reply to that material.15 [20] Where a decision-maker relies on material properly the subject of a public interest immunity, the obligation to accord procedural fairness may be moulded to accommodate public interest immunity.16 Public interest immunity can extend to those who give information to government authorities or departments.17 Regard must be had for the fact that to reveal the contents or the nature of the information provided could assist in identifying the informant or informants with a deleterious effect on the public interest in protecting the confidentiality of an informant. [21] Maintenance of confidentiality of informants in an appropriate case is important if a parole authority is to properly undertake its task of assessing the risks to the community in granting an applicant release on parole. In that respect, there is an analogy with the public interest immunity principle afforded to police informants. 11 Young v Quin [1985] 4 FCR 483 at 484. 12 Kioa v West (1985) 159 CLR 550 at 611, 614. 13 Transcript 1-4/18. 14 Transcript 1-4/55. 15 See, for example Kioa at 582; Re Solomon [1994] 2 Qd R 97 at 111. 16 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 98 [24]. 17 VEAL at 98-100; D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218. -- 5 of 8 -- 6 That protection can encompass material from which the identity of the informer may be discerned.18 [22] The applicant had been provided with a copy of the affidavit of Peter McInnes sworn 16 June 2010, excluding exhibits, by correspondence dated 16 June 2010. In that affidavit, Mr McInnes set out the circumstances in which the respondent resolved to grant parole on conditions, including the imposition of conditions (q) and (y). Relevantly, the affidavit states: “3. In forming the view that these conditions would be necessary to ameliorate the risk that the Applicant presented to the community, such as to make him an acceptable risk for release on parole, the Respondent considered some documents which were not disclosed to the applicant. In respect of those documents which were not disclosed to the applicant privilege is claimed over them. … 4. On 16 June 2010 the Respondent further considered the Applicant’s application for parole. The respondent remained of the view that the proposed conditions of parole, as set out in the letter of 20 May 2010, including proposed conditions (q), (r), (u), (v) and (y) were necessary conditions to ameliorate the risk that the applicant would present to the community if released on parole. In its further consideration, the Respondent considered some documents which were not disclosed to the Applicant. … 5. I have personally considered the information contained in the affidavits and the other documents referred to in the preceding two paragraphs, and, being conscious of the responsibilities I have by virtue of my authorisation to make this affidavit, I say that I have formed the opinion that it would be injurious to the public interest and the administration of the Department if the documents or the information contained within them were to be disclosed to any person. I further say that if the said information was to be disclosed to the applicant the public interest will be prejudiced. 6. The reason I say that the disclosure of the said information would be injurious to the public interest are that such disclosure would undermine public confidence and the confidentiality of information provided to the Department deterring potential informants from divulging useful information.”19 [23] I am satisfied the respondent appropriately directed its mind to whether it was appropriate to reveal the contents of this information to the applicant prior to making its decision, and that the respondent satisfied itself that, having regard to the nature of the information and the risk that it would reveal the source or sources, it 18 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 674-675. 19 Affidavit of Liam Byrnes filed 16 September 2010 exhibit LB-1. -- 6 of 8 -- 7 was appropriate this information not be disclosed to the applicant in the public interest. Having perused the material myself, I am also satisfied that to provide the applicant with details of the nature of the information provided to the applicant would be likely to inform the applicant as to its source or sources, or at least give him a shrewd idea of that identity.20 For that reason, I reject the applicant’s contention there has been a denial of natural justice by reason of the fact that the respondent had regard to material not disclosed to him prior to making its decision. Unreasonableness [24] The applicant’s contention that the decision of the respondent was so unreasonable that no reasonable board could reach that conclusion is a difficult ground to establish where the criterion of which the decision-maker is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ.21 It is not sufficient to show that another board acting reasonably may have reached a different conclusion. To succeed, the applicant must show that no reasonable board could make that decision. [25] Having regard to the information available to the respondent, including the information the subject of public interest immunity, I am satisfied a reasonable board acting on that information reasonably could reach the decision made by the respondent in relation to the imposition of condition (y). That condition provides a proper safeguard as to the applicant’s movements whilst on parole. Further, it is no more restrictive than is reasonably required to ameliorate the risks if the applicant is granted parole. Whilst that condition imposes a restriction on the applicant in relation to the area in which he may reside, as well as persons he may visit, the restriction does not prevent persons from the Redland Bay area leaving that area to visit the applicant at his residence outside that area. [26] The applicant has not established the imposition of condition (y) was unreasonable in accordance with the Wednesbury principles. The decision made by the respondent was reasonably open to it in the exercise of its power. Other grounds [27] Although the applicant did not advance any other ground in support of his application for review at the hearing, his amended outline of argument relied on other grounds. I am satisfied there is no substance to any of these grounds. I shall briefly outline my reasons. Improper exercise of power [28] Although the applicant contended the respondent is not allowed to impose pre- requisites or pre-conditions in making its decision, the respondent has a responsibility, when assessing an application for parole, to determine what, if any, conditions are appropriate to impose having regard to the overriding obligation to minimise any risk to the community by a grant of parole. The imposition of 20 Rogers v Home Secretary [1973] AC 388 at 401; Harms v Queensland Parole Board [2008] QSC 163 at [19]. 21 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654 [137]. -- 7 of 8 -- 8 condition (y) is consistent with that obligation. It did not involve an improper exercise of the power. Irrelevant/relevant considerations [29] Reliance upon relevant or irrelevant considerations as a ground of judicial review involves consideration of whether a decision-maker has properly applied the law.22 Where, as here, the discretion conferred on a decision-maker is in broad terms, it is generally for the decision-maker to decide what is relevant and what is not.23 [30] The imposition of condition (y) did not involve having regard to irrelevant considerations. The conditions to be imposed on any grant of parole to the applicant, so as to address any risks that may arise on the grant of parole, is a relevant consideration. [31] Similarly, it cannot be said the respondent failed to have regard to relevant considerations. The applicant’s complaint amounts to no more than a contention that the respondent gave too little attention to the matters relied upon by him. The comparative importance to be given to those considerations was ultimately a matter for the respondent.24 The applicant’s contentions do not establish the respondent improperly exercised its power by failing to take account of relevant considerations. Bad faith [32] Notwithstanding receipt of the information the subject of the confidential exhibit, the respondent was prepared to grant the applicant parole, albeit on conditions. There is no basis to assert the respondent, in imposing condition (y), acted in bad faith. Conclusion [33] The applicant has failed to establish any ground to review the respondent’s decision to impose conditions (q) and (y) on its grant of parole to the applicant. [34] The application for review is dismissed. 22 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 348. 23 Australian Retailers Association & Ors v Reserve Bank of Australia (2005) 148 FCR 446 at 577 [525]. 24 Elias v Commissioner of Taxation (2002) 123 FCR 499 at 511 [57]. -- 8 of 8 --