Baggaley v Attorney-General (Commonwealth) [2025] FCA 968
Review of:
Decision dated 7 March 2025
File number:
QUD 190 of 2025
Judgment of:
RANGIAH J
Date of judgment:
18 August 2025
Catchwords:
ADMINISTRATIVE LAW – application for judicial review of decision to refuse applicant’s release on parole – whether there was no evidence or other material to justify the decision – whether respondent denied applicant procedural fairness by failing to take applicant’s submissions into account – whether decision was unreasonable – whether respondent failed to take into account relevant considerations – whether respondent failed to provide adequate reasons – application dismissed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Baggaley v Attorney-General (Commonwealth) [2025] FCA 968
Case
[2025] FCA 968
Decision Date
CaseChat Overview and Summary
The case of Baggaley v Attorney-General (Commonwealth) involved the applicant, who had been sentenced to a term of imprisonment for drug-related offences, seeking judicial review of the decision by the respondent to refuse his release on parole. The central issue was whether the decision to deny parole was lawful, taking into account the arguments raised by the applicant regarding procedural fairness and the consideration of relevant factors. The applicant argued that the decision was not supported by evidence, failed to consider certain relevant factors, and was therefore unreasonable.
The court examined whether the respondent had denied the applicant procedural fairness by not adequately considering his submissions. The court found that the decision-maker had taken into account the applicant’s submissions and relevant factors as required by the relevant statutory provisions. The court also assessed whether the decision was unreasonable in light of the evidence and arguments presented. The court concluded that the decision was not unreasonable as it was supported by evidence and the considerations outlined in the Statement of Reasons were valid. Furthermore, the court found that the respondent had not failed to take into account relevant considerations as the applicant suggested.
The court dismissed the application for judicial review and ordered that the applicant pay the respondent's costs of the proceeding. This decision highlights the rigorous standards applied in reviewing administrative decisions, particularly in cases involving parole where the safety of the community and the rehabilitation of the offender are paramount considerations.
Orders
Orders of the court
1. The application for judicial review be dismissed.
2. The applicant pay the respondent’s costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
It is necessary to describe the factual background, the relevant legislative provisions and the respondent’s reasons in order to give context to the grounds of review and the parties’ submissions.Background On 27 July 2021, the applicant was sentenced in the Supreme Court of Queensland to a term of 25 years’ imprisonment for the offence of attempting to import a commercial quantity of a border-controlled drug, namely cocaine, contrary to ss 11.1(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). The offence involved the applicant negotiating the purchase of a boat which was then used by the applicant, his brother and another man to collect some 512 kilograms of pure cocaine worth in excess of $130 million about 360 kilometres off the coast of Brunswick Heads in New South Wales. The applicant was successful in an appeal against his conviction and a retrial was ordered. The applicant then pleaded guilty to the same offence on a different factual basis, including that he only became aware of the importation late in the piece and was reckless as to the identity of the drug. On 4 November 2024, the applicant was resentenced to 13 years’ imprisonment with a non-parole period of 1,964 days. That was the number of days the applicant had already served in pre-sentence custody. The non-parole period therefore expired on 4 November 2024. On 2 January 2025, the Director of the Commonwealth Parole Office (CPO) wrote to the applicant giving him an opportunity to respond to concerns about his suitability for release on parole. The applicant’s legal representatives responded on 31 January 2025. They provided a letter from The Health Retreat dated 16 January 2024 (sic 2025) confirming that the applicant had been accepted into a structured rehabilitation program, and a psychological assessment prepared by Dr Yoxall dated 24 July 2021. They also provided a letter written by the applicant dated 3 February 2025 in response to issues raised by the CPO. On 4 March 2025, the CPO provided a briefing note to the respondent (the Departmental Submission). The Departmental Submission contained a detailed assessment of factors in favour of and against the applicant’s release on parole. The CPO recommended that the respondent refuse parole and sign an attached notice informing the applicant of the decision. On 7 March 2025, the respondent (through a delegate) adopted the CPO’s recommendation by notating the Departmental Submission to indicate that parole would be refused (the refusal decision). The respondent’s delegate also signed a notice which advised of the refusal decision and provided reasons for that decision (the Statement of Reasons). The Statement of Reasons provided, relevantly:In making my decision, I have taken into account submissions made by you or on your behalf. I have had regard to the matters that weigh in favour of release on parole, including your willingness to engage in interventions, your motivation to find employment, and approved accommodation plans and acceptance into The Health Retreat.The order for refusal of parole has been made for the following reasons:1. I have had regard to your criminal history.Periods of incarceration and time spent on parole do not appear to have deterred you from offending again. While you have successfully completed two parole periods, the benefits of parole have failed to prevent and deter your offending behaviour. Taking this information into account, I hold concerns with your ability to be of good behaviour and not violate any law, and cannot be satisfied that you are willing and able to comply with the conditions of a parole order. As such, I have determined that your release on parole at this time would not benefit your rehabilitation or lawful reintegration into the community, and would pose an unacceptable risk to community safety. I consider that you would benefit from a further 12 months in custody to demonstrate a prolonged period of good behaviour, without incurring additional charges or being named the perpetrator of misconduct incidents - and progression through the security classification system. 2. I have had regard to your ongoing rehabilitative needs relating to your mental health, substance abuse and insight.I note that you are waitlisted to partake in the Low Intensity and Medium Intensity Substance Intervention programs and the Build Don’t Break – Resilience program in custody.Although you have been accepted into a short residential rehabilitation program, there is no information about your longer term plans to engage with professional supports for your rehabilitative needs.You have been involved in multiple misconduct incidents in custody and you appear to minimise and justify your behaviour. This suggests your level of insight may not be sufficient to prevent you from reoffending in the community.I am not satisfied that you have sufficient insight or strategies in place to identify and mitigate situations that may place you at risk of reoffending if released. This includes how you will avoid pro-criminal associates and individuals who you have previously offended with, and how you, your family and friends will navigate your relationship with your brother. As such, I consider your release on parole at this time would not be in the best interests of your rehabilitation and poses a risk to community safety.3.I have had regard to the short and long-term risks to the community of you remaining in custody. I consider on the evidence above that your release on parole at this time poses a risk to the community. I have had regard to other risks that may be mitigated by your release on parole at this time, including that you would be able to experience the benefits of supervision in the community. I consider you have ongoing rehabilitative needs in relation to your insight and substance abuse. (Underlining added.)The grounds of review
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
On 7 March 2025, the respondent (through a delegate) adopted the CPO’s recommendation by notating the Departmental Submission to indicate that parole would be refused (the refusal decision). The respondent’s delegate also signed a notice which advised of the refusal decision and provided reasons for that decision (the Statement of Reasons). The Statement of Reasons provided, relevantly:In making my decision, I have taken into account submissions made by you or on your behalf. I have had regard to the matters that weigh in favour of release on parole, including your willingness to engage in interventions, your motivation to find employment, and approved accommodation plans and acceptance into The Health Retreat.The order for refusal of parole has been made for the following reasons:1. I have had regard to your criminal history.Periods of incarceration and time spent on parole do not appear to have deterred you from offending again. While you have successfully completed two parole periods, the benefits of parole have failed to prevent and deter your offending behaviour. Taking this information into account, I hold concerns with your ability to be of good behaviour and not violate any law, and cannot be satisfied that you are willing and able to comply with the conditions of a parole order. As such, I have determined that your release on parole at this time would not benefit your rehabilitation or lawful reintegration into the community, and would pose an unacceptable risk to community safety. I consider that you would benefit from a further 12 months in custody to demonstrate a prolonged period of good behaviour, without incurring additional charges or being named the perpetrator of misconduct incidents - and progression through the security classification system. 2. I have had regard to your ongoing rehabilitative needs relating to your mental health, substance abuse and insight.I note that you are waitlisted to partake in the Low Intensity and Medium Intensity Substance Intervention programs and the Build Don’t Break – Resilience program in custody.Although you have been accepted into a short residential rehabilitation program, there is no information about your longer term plans to engage with professional supports for your rehabilitative needs.You have been involved in multiple misconduct incidents in custody and you appear to minimise and justify your behaviour. This suggests your level of insight may not be sufficient to prevent you from reoffending in the community.I am not satisfied that you have sufficient insight or strategies in place to identify and mitigate situations that may place you at risk of reoffending if released. This includes how you will avoid pro-criminal associates and individuals who you have previously offended with, and how you, your family and friends will navigate your relationship with your brother. As such, I consider your release on parole at this time would not be in the best interests of your rehabilitation and poses a risk to community safety.3.I have had regard to the short and long-term risks to the community of you remaining in custody. I consider on the evidence above that your release on parole at this time poses a risk to the community. I have had regard to other risks that may be mitigated by your release on parole at this time, including that you would be able to experience the benefits of supervision in the community. I consider you have ongoing rehabilitative needs in relation to your insight and substance abuse. (Underlining added.)The grounds of review
Ratio Decidendi
Legal Principle Established
The applicant’s third ground of review must fail.Ground 4: Whether the respondent failed to take into account relevant considerations The applicant relies on ss 5(1)(c) and (2)(b) of the ADJR Act. The latter provision refers to, “failing to take a relevant consideration into account in the exercise of a power”. The applicant contends that, considering the subject matter, scope and purpose of s 19AL of the Crimes Act, the respondent was bound to take into account a number of relevant considerations but failed to do so. These are asserted to be:a.The risks associated with the Applicant not being released on parole.b.The conditions that could be imposed on a grant of parole to mitigate the risks associated with him being released on parole.c.The negative impact of not granting him parole on his rehabilitation and reintegration into the community.d.The fact that [the] Applicant’s eligibility date [for parole] had been fixed by the sentencing judge, and the reasons why the judge fixed that date to ameliorate the Applicant’s sentence.e.The Applicant’s inability to access the further intervention programs the decision maker [considered] would address his “ongoing rehabilitation needs relating to ... mental health, substance abuse and insight” and the absence of any information about the timeframe within which he might be able to access those programs. It may be noted that each of the factors relied on by the applicant refers to facts that are specific to his personal circumstances. The respondent contends that the delegate did take into account the enumerated factors, or, alternatively, that the decision-maker was not bound to take these factors into account. The practice of administrative law is often beleaguered by confusion about what constitutes a “relevant consideration” which a decision-maker is bound to take into account. A decision-maker may be bound to take into account a factor or matter in at least two common contexts. The first is where, as a matter of statutory construction, the decision-maker is bound to take a particular factor into account either expressly or by implication from the subject matter, scope and purpose of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Peko Wallsend). The second is that a decision maker-may be required to consider a “substantial, clearly articulated argument” or one which “clearly arises on the material”: Plaintiff M1/2021 at [25]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [13]. The obligation may extend to considering evidence or material, depending on the circumstances of the case and the nature of the document: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]-[112]; MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431 at [68]-[70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [52]-[56].