McQueen v Parole Board Queensland - [2024] QSC 308

SUPREME COURT OF QUEENSLAND

CITATION:

McQueen v Parole Board Queensland [2024] QSC 308

PARTIES:

ALLAN DAVID MCQUEEN

(applicant)

v
PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

BS 5631/24

DIVISION:

Trial Division

PROCEEDING:

Application for a Statutory Order of Review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2024

JUDGE:

Cooper J

ORDER:

1. The decision of the respondent of 8 April 2024 is set aside.

2. The respondent is directed to remake that decision under s 208(2) of the Corrective Services Act 2006 (Qld) according to law.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant is serving a sentence of life imprisonment for murder – where the applicant was released on parole subject to a condition that he undergo drug testing and refrain from using illegal drugs – where the applicant breached his parole order by returning a positive drug test – where the respondent cancelled the applicant’s parole order on the basis that the respondent reasonably believed that the applicant posed an unacceptable risk of committing an offence and that he failed to comply with the no-drugs condition – where the applicant submits that the respondent’s decision to cancel his parole was not authorised because the respondent’s belief that the applicant posed an unacceptable risk of committing an offence was not based on reasonable grounds – whether the respondent’s decision was authorised by the Corrective Services Act 2006

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the respondent informed the applicant that it was in possession of information that was not in the public interest to disclose – where the respondent took that information into account in deciding to cancel the applicant’s parole – where the applicant submits that the respondent should not have considered the information because public interest immunity was claimed in respect of it – whether the respondent took into account an irrelevant consideration in deciding to cancel the applicant’s parole

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the applicant submits that the notice of the respondent’s decision to cancel his parole did not comply with the requirements of the Corrective Services Act 2006 because it failed to adequately provide reasons for the cancellation decision – where the respondent conceded that the notice failed to comply with the obligation to give reasons for the cancellation decision – whether a procedure required to be observed in making the cancellation decision was not observed

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited
Chalkley v Southern Queensland Regional Parole Board [2016] QSC 236, cited
George v Rockett (1990) 170 CLR 104, cited
Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532, considered
McQueen v Parole Board Queensland (2022) 11 QR 481, cited
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173

Grounds of appeal

[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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Details

Case: [2024] QSC 308
Decision Date: 9 December 2024

CaseChat Overview and Summary

The case of McQueen v Parole Board Queensland involved the applicant, McQueen, who was serving a life sentence for murder. He had been released on parole, subject to conditions, including drug testing and refraining from illegal drug use. After McQueen returned a positive drug test, the Parole Board cancelled his parole, believing he posed an unacceptable risk of committing an offence and had failed to comply with the no-drugs condition. McQueen sought judicial review of this decision, arguing that the Board's decision to cancel his parole was not authorised because the Board's belief that he posed an unacceptable risk was not based on reasonable grounds.

The court was required to determine whether the Board's decision to cancel McQueen's parole was authorised by the Corrective Services Act 2006. The court also needed to consider whether the Board took into account irrelevant considerations and whether the Board failed to observe a statutory procedure by not providing adequate reasons for the cancellation decision. The court examined whether the Board's belief that McQueen posed an unacceptable risk was reasonable and based on accurate information, and whether the Board considered information that it claimed was in the public interest not to disclose. The court also assessed whether the notice of the Board's decision to cancel McQueen's parole complied with the statutory requirement to provide reasons for the decision.

The court found that the Board's decision to cancel McQueen's parole was authorised by the Corrective Services Act 2006, as the Board reasonably believed that McQueen posed an unacceptable risk of committing an offence. The court also found that the Board did not take into account any irrelevant considerations, and that while the notice of the decision did not adequately provide reasons for the cancellation, this did not affect the validity of the decision. Consequently, the court set aside the decision of the respondent and directed the respondent to remake the decision according to law.

Orders

Orders of the court

1. The decision of the respondent of 8 April 2024 is set aside.

2. The respondent is directed to remake that decision under s 208(2) of the Corrective Services Act 2006 (Qld) according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 340AA commenced after the Cancellation Decision and the Confirmation Decision had been made. That situation is addressed by s 490ZI which provides:“490ZI Validation of certain decisions(1)This section applies to a decision of an entity made under this Act or a repealed Act before the commencement.(2)The decision is, and is taken to have always been, as valid as it would have been if, at the time the decision was made, new section 340AA had applied to the decision.(3)Anything done as a result of the decision is, and is taken to have always been, as valid and lawful as it would have been if, at the time the decision was made, new section 340AA had applied to the decision.(3A)For subsections (2) and (3), any non-compliance with new section 340AA(1A) or (1B) is to be disregarded.(4)However, if a decision to which this section applies has, before the commencement, been found by a court to be invalid or has been set aside by court order—(a) the finding or order stands; but(b)if the decision is remade after the commencement, new section 340AA applies to the decision as remade.(5) In this section—new section 340AA means section 340AA as in force from the commencement.” Consequently, s 340AA is deemed to have applied to the Cancellation Decision and the Confirmation Decision, subject to the requirements of that provision having been met.Utility Before turning to consider the grounds of review, it is necessary to address a submission by the Board concerning the utility of the present application. The Board submits that the application for review has been overtaken by events. As already noted, after the Parole Order was cancelled, Mr McQueen re-applied for parole. Upon consideration of that fresh application, the Board has formed and maintained a preliminary view that it would grant Mr McQueen parole if he is able to find suitable accommodation. In those circumstances, the Board submits that there is no utility in the court deciding the present application. Mr McQueen submits that there is utility in determining the application because, if the Cancellation Decision and the Confirmation Decision are set aside, the Parole Order would continue to exist (albeit that it would be suspended) and the Board would lack power to grant parole under conditions set out in a new parole order. That is, the determination of the application for review may affect the power which the Board may exercise to re-release Mr McQueen on parole if that is what it decides to do. I accept that submission.Consideration of the want of authority ground Judicial review of an administrative decision is confined to the legality of the decision. It is concerned with whether the decision was one which the respondent was authorised to make. It does not permit either a general review of the decision or a substitution of the decision which the court thinks should have been made.[16][16]Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, 184-185 [23].

Ratio Decidendi

Legal Principle Established

Mr McQueen submits that there is utility in determining the application because, if the Cancellation Decision and the Confirmation Decision are set aside, the Parole Order would continue to exist (albeit that it would be suspended) and the Board would lack power to grant parole under conditions set out in a new parole order. That is, the determination of the application for review may affect the power which the Board may exercise to re-release Mr McQueen on parole if that is what it decides to do. I accept that submission.Consideration of the want of authority ground Judicial review of an administrative decision is confined to the legality of the decision. It is concerned with whether the decision was one which the respondent was authorised to make. It does not permit either a general review of the decision or a substitution of the decision which the court thinks should have been made.[16][16]Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, 184-185 [23]. The expression “not authorised” in s 20(2)(d) of the JR Act, when considered in the context of the exercise of administrative powers conferred by an enactment, refers to a decision that is expressly or impliedly forbidden by the relevant enactment.[17] That is so because, where a statutory condition upon which a decision-maker’s power depends is not established, the decision is deprived of its legal foundation.[18][17]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 378.[18]Accused A v Callanan [2009] 2 Qd R 112, 127 [58]. On this application, Mr McQueen advances the want of authority ground on the basis that the power which the Board purportedly relied upon to cancel the Parole Order was limited to that conferred by s 205(2)(iii) of the CS Act.[19] That is, the want of authority ground rests on the contention that the sole legal foundation for both the Cancellation Decision and the Confirmation Decision is that the Board reasonably believed that Mr McQueen posed an unacceptable risk of committing an offence.[19]See paragraphs 1 and 2 of the particulars of the want of authority ground in the Further Amended Application for a Statutory Order of Review filed by leave on 1 November 2024. See also paragraphs 2, 3, 30 and 31 of the submissions filed on behalf of Mr McQueen (Court document 12). Mr McQueen accepts that, when it made the Cancellation Decision and the Confirmation Decision, the Board subjectively believed that he posed such a risk. He submits, however, that the belief was not based on grounds that were reasonable in circumstances. He submits that, to the contrary, many of the grounds which the Board relied upon in forming its belief were based on demonstrably incorrect factual conclusions or information which the Board did not independently verify. To the extent that there was some evidence to substantiate the grounds which informed the Board’s belief, Mr McQueen submits that those grounds did not provide a reasonable basis for the Board to believe that he posed an unacceptable risk of committing an offence. In that context, Mr McQueen argues that no reasonable person could have believed that he posed an unacceptable risk of committing an offence, particularly if he was to be released subject to parole conditions.[20] However, he makes these submissions only in support of the want of authority ground. His challenge to the Cancellation Decision and the Confirmation Decision does not include an argument that either decision involved the exercise of a power that is so unreasonable that no reasonable person could have exercised in that way.[21][20]See paragraph 9 of the particulars of the want of authority ground in the Further Amended Application for a Statutory Order of Review filed by leave on 1 November 2024. See also paragraphs 3 and 77 to 79 of the submissions filed on behalf of Mr McQueen (Court document 12)[21]JR Act, ss 20(2)(e) and 23(g).

CITATION:	McQueen v Parole Board Queensland [2024] QSC 308
PARTIES:	ALLAN DAVID MCQUEEN (applicant) v PAROLE BOARD QUEENSLAND (respondent)
FILE NO/S:	BS 5631/24
DIVISION:	Trial Division
PROCEEDING:	Application for a Statutory Order of Review
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 December 2024
DELIVERED AT:	Brisbane
HEARING DATE:	1 November 2024
JUDGE:	Cooper J
ORDER:	1. The decision of the respondent of 8 April 2024 is set aside. 2. *The respondent is directed to remake that decision under s 208(2) of the Corrective Services Act* 2006 (Qld) according to law.**
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant is serving a sentence of life imprisonment for murder – where the applicant was released on parole subject to a condition that he undergo drug testing and refrain from using illegal drugs – where the applicant breached his parole order by returning a positive drug test – where the respondent cancelled the applicant’s parole order on the basis that the respondent reasonably believed that the applicant posed an unacceptable risk of committing an offence and that he failed to comply with the no-drugs condition – where the applicant submits that the respondent’s decision to cancel his parole was not authorised because the respondent’s belief that the applicant posed an unacceptable risk of committing an offence was not based on reasonable grounds – whether the respondent’s decision was authorised by the Corrective Services Act 2006 ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the respondent informed the applicant that it was in possession of information that was not in the public interest to disclose – where the respondent took that information into account in deciding to cancel the applicant’s parole – where the applicant submits that the respondent should not have considered the information because public interest immunity was claimed in respect of it – whether the respondent took into account an irrelevant consideration in deciding to cancel the applicant’s parole ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the applicant submits that the notice of the respondent’s decision to cancel his parole did not comply with the requirements of the Corrective Services Act 2006 because it failed to adequately provide reasons for the cancellation decision – where the respondent conceded that the notice failed to comply with the obligation to give reasons for the cancellation decision – whether a procedure required to be observed in making the cancellation decision was not observed Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited Chalkley v Southern Queensland Regional Parole Board [2016] QSC 236, cited George v Rockett (1990) 170 CLR 104, cited Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532, considered McQueen v Parole Board Queensland (2022) 11 QR 481, cited Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173