Herscu v Queensland Corrective Services Commission

[1995] QSC 20

IN THE SUPREME COURT

OF QUEENSLAND

No. 23 of 1995

Brisbane

Before the Hon. Justice Williams

[Herscu v. Queensland Corrective Services Commission]

BETWEEN:

GEORGE HERSCU

(Applicant)

AND:

QUEENSLAND CORRECTIVE SERVICES COMMISSION

(Respondent)

JUDGMENT - G N WILLIAMS J

Judgment delivered 02/03/1995

CATCHWORDS JUDICIAL REVIEW - Application to Commission pursuant to s. 186 of Corrective Services Act for a reduction of parole period - material supporting application submitted - decision refusing application based in part on findings on issue not raised by applicant and on which he had no opportunity to comment - held denial of procedural fairness - considerations relevant to decision discussed - Kioa v. West (1985) 159 C.L.R. 550 and Haoucher v. Minister of State for Immigration and Ethnic Affairs (1990) 169 C.L.R. 648 considered

Counsel:Sofronoff QC & Keim for applicant

Hansen QC and Flanagan for respondent

Solicitors:Robertson O'Gorman for applicant

Crown Solicitor for Respondent

Hearing date:    22 February 1995

IN THE SUPREME COURT

OF QUEENSLAND

No. 23 of 1995

BETWEEN:

GEORGE HERSCU

(Applicant)

AND:

QUEENSLAND CORRECTIVE SERVICES COMMISSION

(Respondent)

JUDGMENT - G N WILLIAMS J

Judgment delivered 02/03/1995

In circumstances which will hereinafter be set out George Herscu, the applicant, applied to the Queensland Corrective Services Commission, the respondent, for a recommendation pursuant to s. 186 of the Corrective Services Act 1988 reducing his parole period. For reasons which it gave by letter dated 19 December 1994, the respondent decided not to exercise its discretion pursuant to s. 186 and make the recommendation as sought to the Brisbane Regional Community Corrections Board. The applicant has now sought to have that decision reviewed pursuant to the provisions of the Judicial Review Act 1991. In broad terms the applicant contends that the respondent denied him "procedural fairness" and that it took into account irrelevant matters in arriving at its decision.
           The applicant was convicted on 7 December 1990 of two counts of official corruption and was sentenced to a term of imprisonment of five years.  On 4 June 1993 he was released on parole; in the normal course of events that period of parole would expire on 5 December 1995. 
The applicant's principal place of residence before sentence was in Victoria and accordingly on 15 June 1993 he was granted permission to reside in Victoria and report to the Caulfield Community Corrections Centre. Thereafter his immediate parole supervision was carried out by Victorian authorities. By a letter from his solicitor (with attached documents) dated 23 June 1994 the applicant made an application pursuant to s. 186; that section so far as is relevant provides:

"Where having regard to a prisoner's behaviour during the parole period the Commission is of the opinion that the prisoner's parole should be amended by reducing the parole period it may so recommend -

. . .

b)in the case of a prisoner released on parole pursuant to an order of a regional community corrections board - [to] any such board."

That application was made under cover of the letter from the applicant's solicitor to the Secretary of the Brisbane Regional Community Corrections Board dated 23 June 1994.  The Secretary of that Board pointed out in a letter of 14 July 1994 that in the first instance the application should be to the respondent Commission.  That caused the applicant's solicitor to furnish all the material to the Secretary of the respondent Commission under cover of a letter dated 15 July 1994. 
           For reasons set out in a letter of 2 September 1994 the respondent refused to make the recommendation sought.  The applicant applied on 29 September 1994 for a statutory order review of that decision.  Acting on legal advice the respondent agreed to consider the application afresh and consented to an order on 18 October 1994 quashing its decision and referring the application back to it for further consideration.  It was after giving the matter further consideration that the decision in question contained in the letter of 19 December 1994 was reached.
           The members of the respondent Commission were undoubtedly aware of the Regional Board's view with respect to legal representation for the applicant as communicated in its letter of 14 July 1994.  Following the order of this Court of 18 October 1994 the solicitor for the applicant wrote a long letter to the Board dated 19 October 1994 setting out some of his concerns and inferentially seeking to be of assistance to the respondent in its further consideration of the matter.  Ultimately the applicant's solicitor was notified that the application would be considered at the meeting of the respondent to be held on 16 November 1994.  By letter dated 10 November 1994 he wrote requesting that he be permitted to address the respondent in respect of the application.  The response was contained in the letter from the respondent of 14 November 1994:

"The Chairperson of the Commission has considered your request to make representations on behalf of Mr Herscu at the Commission meeting to be held on 16 November 1994.  However the Chairperson has decided to decline your request for the reason that sufficient written material has been received from you to date to enable the Commission to give consideration to this matter."

By a letter dated 17 November 1994 the respondent informed the applicant's solicitor that the application had been adjourned to enable a detailed parole report on the applicant to be prepared.  The respondent notified the applicant's solicitor that a Mr Kehoe had been commissioned to prepare that report and sought the applicant's co-operation in its speedy completion.  The applicant's solicitor was then in correspondence with Kehoe, and there were meetings between Kehoe and the applicant personally.  Significantly in a letter of 6 December 1994 the solicitor for the applicant said to Kehoe:

"If we can assist in relation to any aspect of the report, would be please contact us as it is important that our client's application be in a position to proceed to consideration and finalisation by the Board of the Corrective Services Commission at their meeting of 16 December 1994."

The letter of 19 December 1994 giving reasons for refusing the application detailed the evidence and other material on which the findings of fact were based and also set out 15 findings of fact.  It is only necessary at this stage to set out the last finding of fact made; it was in these terms:

"You are named as cross-defendant in civil proceedings in the United States of America involving Robert Herscu, James Munday, Peter Ryan and Biosystems Technology Corporation of America."

The letter then went on to set out the reasons for the respondent's decision in some detail; the relevant portion of the document is in these terms:

"The Commission chose to exercise its discretion not to recommend an amendment to your parole period for the following reasons:

1.In consideration of the matter the Commission was of the view that your behaviour has not been of a standard any higher than that which is expected of all parolees;

2.Since being released on parole in June 1993 you have enjoyed the freedom to travel overseas for approximately six (6) months.  In that time you were not required to physically report to your parole supervisor and this is a privilege enjoyed by very few parolees;

3.The sentencing Judge's remarks when imposing the sentence upon you emphasised the importance of the aspect of deterrents in your case, not just to yourself but to other like minded individuals.  His Honour said that your case called for 'public condemnation, a denunciatory sentence so that the community will be shown and will be satisfied that persons who bribe Cabinet Ministers will be hit hard by the courts';

4.You have failed to disclose your involvement in civil proceedings in the United States of America during the period of your parole;

Having regard to all of the above information the Commission was of the view that it would not be in the public interest to make a recommendation, pursuant to section 186(1)(b) of the Corrective Services Act 1988, to the Brisbane Regional Community Corrections Board to reduce your parole period."

The first ground on which the application for review is based is that the respondent failed to provide the applicant with an opportunity to comment on the matters which resulted in it making the finding of fact as to the United States litigation, and which then led to its stating as a ground of refusal the detail in para. 4.
           The second major ground on which the application was based was that the respondent took into account irrelevant considerations in formulating the reasons for refusal set out in paras. 1, 2 and 3.
           The final major ground on which the review was sought was that the respondent failed to take into account relevant considerations personal to the applicant.
           It was not disputed by counsel for the respondent that neither the applicant nor his legal advisers were made aware of the fact that the respondent considered the United States litigation to be a matter relevant to the exercise of its discretion; it was also conceded that the applicant was not given an opportunity of placing material before the respondent which may have been relevant to its findings with respect to that matter.  The principal contention advanced by counsel for the respondent was that in the circumstances it was not obliged to do so.
           Before considering the authorities some further points should be noted.  Counsel for the respondent objected to the applicant relying on an affidavit containing some factual material about the American litigation.  That material was not before the respondent and, of course, could not be relied on to challenge the findings on the merits;  indeed counsel for the applicant did not seek to rely on it for that purpose.  That part of the affidavit was said to have limited relevance only;  it indicated that if the applicant had been given the opportunity of addressing the issue before the respondent there was material, prima facie relevant, which he could have placed before it.  On that limited basis I hold that the affidavit in question is admissible.
The next matter, which is of greater significance, is that counsel for the respondent submitted that the respondent's findings with respect to the American litigation established that the application under s. 186 was false and dishonest. The contention was that the real reason for the application was not that the applicant had a job opportunity in the United States which he wished to take up (as stated in the written supporting material), but rather that he had to be in America because of his involvement in the litigation. There is nothing in the letter of 19 December 1994 which indicates a finding of dishonesty, but one can only assume from counsel's submissions that in fact the respondent regarded its finding as establishing dishonesty. That is important because it means that the respondent made a crucial finding of dishonesty against the applicant without him even being aware that it was considering the American litigation as relevant to the application.
Another interesting side issue relevant to this was the submission made by counsel for the respondent to the effect that the applicant was under a duty from the outset to disclose the American litigation to the respondent. But when questioned he was unable to indicate the source of that obligation. If the true reason for the applicant wishing to go to the United States was his involvement in the litigation, then there could well be a basis for the assertion that he was under an obligation to disclose that as his motivation behind the application. But, if one accepts that the applicant's motivation was that he had a job opportunity in America and his involvement in the litigation was only peripheral as a probable witness, it becomes difficult to see why he was under an obligation to make disclosure in the first instance. Counsel for the respondent did concede that an applicant under s. 186 was not obliged to account for every minute of his time on parole when placing material before the respondent in support of an application, and in consequence there is some onus on the respondent to indicate the issues which it considers may be relevant to its determination of the application.
           A consideration of such matters tends to emphasise the significance of the fact that the respondent collected information on the topic without checking with the applicant whether what it had received was complete and accurate, and without giving the applicant the opportunity of responding to it.
           It is hardly necessary to go past passages in Kioa v. West (1985) 159 C.L.R. 550 in order to resolve the issues raised by this application. There the High Court was concerned with a ministerial decision, made pursuant to s. 18 of the Migration Act 1958, for the deportation of a person who was a prohibited immigrant. Given an argument advanced by counsel for the respondent in this case (which I will deal with later) it is opportune to mention that the appellant in Kioa v. West had no right to remain in Australia, and in a strict sense it could not be said that he had any real expectation that he would be able to do so.  But the Court held that the Minister in arriving at a decision pursuant to the section was obliged to afford the appellant procedural fairness.
           Mason J at 584-5 noted the common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations.  He went on to point out that what was required in order to afford procedural fairness in any particular case depended upon, but was not limited to, the nature of the enquiry, the subject matter, and the rules under which the decision-maker was acting.  That led his Honour to a consideration of what procedural fairness required when a Minister was considering the exercise of his discretionary power under s. 18.  He said at 586 that it "would be going too far to say that fairness requires that in all cases in which a deportation order is to be made notice should be given to the prohibited immigrant of the intention to make such an order and of the grounds upon which it is to be made."  But he then made at 587 what, in my view, is a significant qualification, particularly in the light of the circumstances of this case;  there he said:

"The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward.  But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter."  (my emphasis)

In other words if the decision-maker regarded a particular matter as being the critical issue or factor on which the decision was likely to turn, and that matter had not been addressed by the applicant, the latter should ordinarily be given the opportunity of commenting thereon.
           It is not necessary to go to other judgments in Kioa v. West;  the propositions already referred to were clearly accepted by a majority therein.  Perhaps it is only necessary to refer to what Brennan J said in relation to "legitimate expectations" at 616-7:

"It is hardly to be thought that a modern legislature when it creates regimes for the regulation of social interests - licensing and permit systems, means of securing opportunities for acquiring legal rights, schemes for the provision of privileges and benefits at the discretion of Ministers or public officials - intends that the interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy should be accorded less protection than legal rights.  The protected interests which do not amount to legal rights are nowadays frequently described as 'legitimate expectations'."

What that passage makes abundantly clear is that something less than a legal right will suffice to establish the threshold issue;  if the exercise of a ministerial discretion may confer a privilege or benefit on the applicant then that may be sufficient.
           What is also of critical importance is the statement of Deane J in Haoucher v. Minister of State for Immigration and Ethnic Affairs (1990) 169 C.L.R. 648 at 651-2:

"The notion of 'legitimate expectations' which gives rise to a prima facie entitlement to procedural fairness or natural justice in the exercise of statutory power or authority is well established in the law of this country . . . The notion is not, however, without its difficulty.  For one thing, the word 'legitimate' is prone to carry with it a suggestion of entitlement to the substance of the expectation whereas the true entitlement is to the observance of procedural fairness before the substance of the expectation is denied."

In this context the passage at 80-81 in the judgment of Hope JA in Todd v. Parole Board (1986) 6 N.S.W.L.R. 7 is also relevant. There his Honour pointed out that a prisoner would not be afforded appropriate fairness if he did not know what matters were likely to be considered to his prejudice on a parole-related application. Procedural fairness required the Board to give notice of the matters which it proposed to take into account in arriving at a conclusion prejudicial to the applicant and give him an opportunity to make submissions with respect to those matters.
           All of those passages, in my view, point to the conclusion here that the respondent denied the applicant procedural fairness by not giving him the opportunity of responding to the material it had collected with respect to the American litigation and to the conclusions it has tentatively made with respect thereto.  That is particularly so when it is remembered that the respondent had indicated that, given the detailed nature of the material supplied in support of the application, it did not require further assistance from the applicant's solicitor.  That is compounded by the respondent's conduct in notifying the solicitor of its intention to obtain a detailed parole report and asking for the applicant's cooperation in its compilation.  All of that strongly suggested that the respondent was not considering any material of which the applicant was unaware.
           The main argument advanced by counsel for the respondent against such a conclusion was that in the circumstances this was not an application which required the decision-maker to observe the tenets of procedural fairness.  That surprising submission was based upon an observation by McHugh J in Haoucher at 681-2.  In particular reliance was placed on the following two sentences:

"A legitimate expectation that a person will obtain or continue to enjoy a benefit or privilege must be distinguished, however, from a mere hope that he or she will obtain or continue to enjoy a benefit or privilege.  A hope that a statutory power will be exercised so as to confer a benefit or privilege does not give rise to a legitimate expectation sufficient to attract the rules of natural justice."

It was said that here the applicant had no more than "a hope" that the respondent would exercise its discretion in a way favourable to him.  Because of that, it was said, the respondent did not have to observe either the rules of natural justice or the principles of procedural fairness.

           It was because of that submission that I made the observation earlier as to the position of the appellant in Kioa v. West.  If the observation of McHugh J is taken at face value, and if the analysis by counsel for the applicant here is correct, then the appellant in Kioa v. West would not have passed the threshold test.  That cannot be so, and in consequence there must be a fallacy in the submission.
           At least part of the error lies in the fact that it is based solely on the two sentences from the judgment of McHugh J quoted above and does not give any weight to the ensuing sentence which is in these terms:

"To attract the operation of the rules of procedural fairness, there must be some undertaking or course of conduct acquiesced in by the decision-maker or something about the nature of the benefit or privilege which suggests that, in the absence of some special or unusual circumstance, the person concerned will obtain or continue to enjoy a benefit or privilege."

When those words are accorded full effect, and when regard is also had to the passages quoted above from Mason and Brennan JJ in Kioa v. West and Deane J in Haoucher, it is clear that in a case such as this the applicant has something more than a mere hope that a statutory power will be exercised in his favour.  He has, at least, a legitimate expectation that in carrying out the decision-making process, given the nature of the material placed before it and the nature of the application itself, the decision‑maker will afford him procedural fairness before depriving him of the benefit or privilege.
           That such is the proper construction to be placed on the whole of the relevant passage from the judgment of McHugh J is confirmed by a consideration of the decision in South Australia v. O'Shea (1987) 163 C.L.R. 378 which he cited after the first two sentences quoted above. In that case at 402 Wilson and Toohey JJ did say that "hope, of itself, was not sufficient to ground an expectation that will attract legal consequences", but their overall decision made it clear that where the decision‑maker intended to take into account new matter, not appearing in the report of the recommending body, and the party affected had no opportunity of dealing with it, he would be denied procedural fairness if not afforded that opportunity.
           I can see no reason why the applicant here ought to have been deprived of the right to comment on the accuracy and relevance of material which the respondent regarded as crucial to its determination, particularly where the applicant was not even aware that the respondent had such material.
           It follows that the decision should be set aside and the matter should be remitted to the respondent for further determination after giving the applicant the opportunity of making submissions on the American litigation.
           Given that conclusion it is not strictly necessary to decide whether the respondent took into account irrelevant considerations and failed to take into account relevant considerations in arriving at findings of fact.  However as this is the second occasion on which the matter has been remitted to the respondent it is desirable that some guidance be given with respect to such matters.
Section 186 clearly gives the respondent a wide discretion; it may recommend a reduction of a parole period if it is of opinion that it should be reduced. The only legislative guidance given is that it may have "regard to the prisoner's behaviour during the parole period". Counsel for each party were in agreement that that was but one factor to be considered by the respondent in making the decision.
It may well be that, as submitted on behalf of the applicant, that one can derive from other sections of the legislation (for example s. 175 of the Corrective Services Act and s. 18 of the Corrective Services (Administration) Act) other relevant factors in a particular case;  but such matters will not necessarily be decisive.  It is difficult, if not impossible, to place a limit on what might be regarded as relevant on such an application.  Because of the almost infinite variety of personal circumstances which may have some effect on the particular application in question, it is necessary for the respondent to determine the bounds of relevance in each particular case.
Given that s. 186 expressly refers to the applicant's behaviour whilst on parole I cannot accept the submission of counsel for the applicant that the respondent's conclusion that the applicant's "behaviour has not been of a standard any higher than that which is expected of all parolees" was irrelevant. Such a finding may well not be decisive, and given other relevant considerations may carry very little weight. But given the statutory provision it cannot be said to be irrelevant.
           I also reject the submission made on behalf of the applicant that it was irrelevant for the respondent to refer to the fact that the applicant had been free to travel overseas for approximately six months while on parole, and that during that period had not been required to physically report to a supervisor.  The finding was obviously correct given the material on which the applicant relied in support of his application, and the fact that he had received such a privilege or benefit is clearly relevant.  Again it is not necessarily decisive, but that does not mean it is irrelevant.  It was but one of many factors which had to be taken into account in determining the application.
           Similarly I am of the view that the reliance placed on the remarks of the sentencing judge was appropriate.  That is something which any parole authority would ordinarily have regard to.  Again it was not decisive, but that does not mean it was irrelevant.
           It therefore seems to me that the decision could not be set aside because of the findings recorded in paras 1, 2 and 3.  What is important is that none of those matters is decisive and that each must be weighed up together with all other relevant considerations.
           In my opinion, it is of some concern that the letter of 19 December 1994 did not refer to the factors personal to the applicant on which he principally relied in support of his application.  His age, his previous standing in the community, his state of health (including psychiatric considerations), and his inability to obtain employment in Australia were all emphasised, and supported by objective material, in the written application made to the respondent.  It is, of course, not incumbent upon a body such as the respondent to refer to every piece of evidence in arriving at its decision.  But, in my view, it must at least be seen to be addressing the relevant issues.
           Obviously there are good reasons why in a case such as this the respondent could come to the conclusion that factors personal to the applicant did not outweigh other relevant considerations.  But if that is the case then a finding to that effect should be stated.  As the matter is to be further considered by the respondent those matters should be addressed.
           It is not a case in which the result of the application is clear cut.  It is obvious that there are matters which could support a decision either way.  It is for the respondent to weigh up those factors, after having afforded the applicant procedural fairness, and then reach a decision. 
           In the circumstances it is sufficient for this Court to set aside the decision under review and remit the application to the respondent for further consideration.