McQueen v Parole Board Queensland

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SUPREME COURT OF QUEENSLAND

CITATION:

McQueen v Parole Board Queensland [2022] QSC 27

PARTIES:

ALLAN DAVID McQUEEN

(applicant)

v
PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

BS 10230 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2021

Further hearings – 1 February, 14 March 2022

Further submissions – 16, 23, 24 March 2022

JUDGE:

Brown J

ORDER:

The Order of the Court is that:

1. The decisions of 20 December 2021 and 7 February 2022 be set aside. The respondent is directed to remake the decision under s 208 of the Act according to law.

2.   The respondent should pay the applicant’s costs of and incidental to the application on the standard basis.

3.   The parties have liberty to apply on three business days’ notice.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – NATURAL JUSTICE – where the applicant applies for judicial review of a decision of the respondent to refuse his application for parole – where the respondent made a decision to indefinitely suspend the applicant’s parole – where the applicant contends that it has a unqualified statutory right to be given reasons–where the respondent restricted the reasons on the basis of confidential information – whether the respondent has proceeded an erroneous basis and failed to provide an information notice in accordance with the Act

Acts Interpretation Act 1954 (Qld) ss 4, 13, 14A, 27B, 32CA
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 13A, 14
Corrective Services Act 2006 (Qld) ss 13, 15, 16, 17, 61, 116, 208, 205, 208B, 208C, 242E, 290, 341
Corrective Services Bill 2006 (Qld)
Judicial Review Act1991 (Qld) ss 35, 36

Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, cited
Ashley v Southern Queensland Regional Parole Board [2010] QSC 437, considered
Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667, cited
Baker v Campbell (1983) 153 CLR 52, cited
Central and Northern Queensland Regional Parole Board v Finn [2018] QCA 47, considered
Chalkley v Southern Queensland Regional Board [2016] QSC 236, considered
Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 44, cited
Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595, cited
Commissioner of Police, New South Wales v Guo (2016) 332 ALR 236, cited
Finn v Central and Northern Queensland Regional Board [2016] QSC 233, considered
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, cited
Gold Coast City Council v Sunland Group Ltd [2019] QCA 118, considered
Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532, cited
Harms v Queensland Parole Board [2008] QSC 163, considered
HT v R (2019) 269 CLR 403, considered
Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, cited
Kioa v West (1985) 159 CLR…

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Details
Case
[2022] QSC 27
Decision Date

CaseChat Overview and Summary

The applicant, McQueen, sought judicial review of decisions made by the respondent, the Parole Board Queensland, to suspend his parole indefinitely. McQueen, who is serving a life sentence for murder, had his parole suspended on multiple occasions due to breaches of parole conditions and alleged new offences. The primary legal issues before the court were whether the respondent had correctly applied the statutory requirement to provide reasons for its decision, and if it had discretion to withhold certain information on the grounds of confidentiality. The court examined whether the statutory obligation to provide reasons under the Act should be interpreted flexibly, akin to the common law principle of natural justice, and whether the respondent's discretion under the Act allowed it to withhold confidential information when providing reasons.

The court found that while the respondent was required to provide reasons for its decisions, it did not have unfettered discretion to withhold information on the basis of confidentiality. The statutory requirement to provide reasons must be interpreted with the same rigour as the common law principle of natural justice. The court held that public interest immunity, which might justify withholding certain information, was not incorporated into the statutory requirement to provide reasons. Therefore, the respondent's decision to withhold information on the grounds of confidentiality was erroneous. The court also noted procedural irregularities in the timing and communication of the decisions, which added to the unfairness of the process.

The court set aside the decisions made by the respondent on 20 December 2021 and 7 February 2022, directing the respondent to remake these decisions in accordance with the law. The court ordered the respondent to pay McQueen's costs of the application and granted liberty to apply for further orders on three business days' notice.

Orders

Orders of the court

The Order of the Court is that:

1. The decisions of 20 December 2021 and 7 February 2022 be set aside. The respondent is directed to remake the decision under s 208 of the Act according to law.

2. The respondent should pay the applicant’s costs of and incidental to the application on the standard basis.

3. The parties have liberty to apply on three business days’ notice.

Background

Background to the litigation

However, there are a number of subsidiary issues that are required to be considered in order to answer that question, namely:(a)should the requirements of s 208 of the Act in relation to the provision of reasons be treated as having the same flexibility as the requirements to accord procedural fairness under the common law right of natural justice;(b)does the respondent have a discretion to determine what fairness requires in terms of disclosure of confidential information in providing reasons, findings of material facts and evidence relied upon by the respondent in discharging its obligations under s 208 by virtue of s 341 of the Act; and(c)whether public interest immunity is “picked up” by s 341 of the Act or excluded by s 208 of the Act. Background to the application I heard a judicial review application for the review of several decisions by the respondent on 13 September 2021. The applicant was self-represented at the time. At the time I expressed surprise that the matter had been set down only some ten days before the applicant was due to go on trial on charges which followed events in June 2020, in circumstances where those charges were one of the matters taken into account by the respondent when he was suspended.[1] In particular, the respondent had advised the applicant on 23 July 2021 that it was awaiting the outcome of outstanding Court matters before making a determination. [1]While reference to the date of hearing was contained in the affidavit material it appears it was not brought to the attention of the Court when the hearing date was set down. No evidence was subsequently offered by the Director of Public Prosecutions and the charges were dismissed by the Magistrate on 23 September 2021. The respondent determined on 24 September 2021 that it would not vary the decision to suspend the applicant’s parole indefinitely. When the Court notified the parties in December 2021 that it was going to hand down its decision, it was then advised by the respondent’s legal representative that the respondent had agreed to the applicant’s request to reopen the proceedings and to his amending his judicial review application to challenge the decision of 24 September 2021. That had been agreed some weeks prior to the Court being notified. At the time the applicant was self-represented. Given it was the operative decision of the respondent and for reasons outlined at the time, I determined it was in the interests of justice to proceed in the way agreed. I made directions to hear the matter on an expedited basis in early February 2022. Notwithstanding I confirmed with the parties at the February 2022 hearing that the September 2021 decision was the operative decision which the Court had to consider, I was subsequently notified that the respondent had made further decisions of 20 December 2021 and of 7 February 2022, that the applicant wished to amend his judicial review application and the parties wanted to make further submissions. The failure to bring the Court’s attention to those decisions was highly unsatisfactory, although I accept it was a matter of oversight on behalf of the instructing lawyers for both sides. That is of little comfort however to the applicant. Conscious that the respondent had the benefit of legal representation and that the parties agreed that the December 2021 and/or February 2022 decisions were the operative decisions, I gave leave for the applicant to file a further amended application and for the parties to provide further submissions. That of course resulted in consideration of the matter being delayed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The parties agree if the applicant is successful in his challenge to the decision of 24 September 2021, the decisions of 20 December 2021 and 7 February 2022 should be set aside. It is necessary therefore to consider the arguments raised in the original hearing as well as the additional arguments raised in the supplementary submissions.The decisions of the respondent The applicant is serving a sentence of life imprisonment for the offence of murder. The applicant’s current parole order commenced on 1 November 2018 and was most recently amended on 25 October 2019. On 23 July 2019, the respondent made a decision to indefinitely suspend the applicant’s parole order. On 12 November 2019, the respondent made a decision to cancel the order suspending the applicant’s parole order. The applicant was re-released to parole on 26 November 2019. On 18 March 2020, the respondent suspended the applicant’s parole order for ongoing disengagement from order conditions and illicit substance abuse. On 28 April 2020, the respondent determined it would cancel the suspension, which took effect on 12 May 2020. On 11 June 2020, the applicant was charged with possessing tainted property and driving while a relevant drug is present in blood or saliva. The applicant was remanded in custody. Queensland Corrective Services (QCS) advised the respondent of the charges and of the following matters, namely that: (a)the applicant was listed as a respondent on a current Domestic Violence Order which remains in force until 23 July 2024, although there was no information suggesting the applicant had contravened the order during the current period of supervision;(b)in accordance with order (j) of the Parole order, the applicant was fitted with an Electronic Monitoring device. Despite signing the relevant directions indicating he would engage with all Electronic Monitoring requirements, he failed to charge it on 22 May 2020. Once called, he placed his device on charge within 10 minutes;(c)the applicant contravened his curfew condition (p) on 12 May 2020, by failing to allow enough time to be home by 9:00pm and arrived at 9:12pm at his inclusion zone;(d)the applicant has continued to engage with pro-criminal associates; and(e)the applicant has engaged with a forensic psychologist and had a future session booked for 30 June 2020. The recommendation of QCS was that the applicant was deemed to pose an unacceptable risk of committing a further offence, that his parole order be suspended, and he show cause as to why the order should not be cancelled. On 11 June 2020, a prescribed member of the respondent made a decision to indefinitely suspend the applicant’s parole pursuant to s 208B(5) of the Act. On 15 June 2020, the respondent confirmed the decision of the member to indefinitely suspend the applicant’s parole pursuant to s 208C(1) of the Act. The respondent issued an information notice to the applicant on 23 June 2020, setting out the reasons for the decision. The respondent stated that the facts and evidence informing its decision to confirm the decision of 11 June 2020 was that the respondent was informed that: (a)the applicant allegedly committed further offences, namely possess tainted property and driving while a relevant drug is present in blood and saliva on 11 June 2020; (b)the applicant failed to charge his electronic monitoring device on 22 May 2020 in breach of his parole condition (j); (c)the applicant failed to comply with his curfew on 12 May 2020 in breach of his parole condition (p); (d)the applicant was re-released on parole on 12 May 2020 following a suspension on 16 March 2020, and a previous suspension on 4 April 2019 was lifted on 2 July 2019; (e)there was a link between the applicant’s substance abuse and past offending, including offences of violence and engagement in organised crime for financial gain;(f)the applicant’s monitoring device indicated his association with pro-criminal associates;(g)the respondent possessed confidential information, the disclosure of which was not in the public interest;(h)the applicant failed to keep his electronic monitoring device charged on 22 May 2020 and breached his curfew condition on 12 May 2020, but otherwise had been compliant with his parole order; and (i)The applicant had engaged with a forensic psychologist and had a future session booked for 30 June 2020.

Ratio Decidendi

Legal Principle Established

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