SUPREME COURT OF QUEENSLAND
CITATION:
McQueen v Parole Board Queensland [2018] QSC 216
PARTIES:
ALLAN DAVID McQUEEN
(applicant)
v
PAROLE BOARD QUEENSLAND(respondent)
FILE NO:
5437 of 2018
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
2 October 2018
DELIVERED AT:
Brisbane
HEARING DATES:
3 September 2018 and 24 September 2018
JUDGE:
Dalton J
ORDERS:
1. I declare that the decision of the Parole Board made on 27 March 2018 to confirm its earlier decision to cancel Mr McQueen’s parole pursuant to s 208(2) of the Corrective Services Act was affected by error of law and ought to be regarded as invalid.
2. I direct that a copy of these reasons be provided to the President of the Board and each Deputy-President.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the Parole Board exercised its discretion to cancel the applicant’s parole due to a parole contravention – where the Parole Board confirmed its decision to cancel at a later date – where the applicant applied for judicial review of this decision to confirm – whether the Parole Board failed to take into account relevant considerations – whether the Parole Board adopted an inflexible application of policy or rule
Acts Interpretation Act 1954 (Qld), s 27B
Corrective Services Act 2006 (Qld), s 3, s 200, s 205, s 208, s 208BEast Melbourne Group Inc v Minister for Planning & Anor [2008] VSCA 217, cited
Leggett v Queensland Parole Board [2012] QSC 121, cited
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30, citedCOUNSEL:
AD Scott for the applicant
MJ Woodford for the respondent
SOLICITORS:
Guest Lawyers for the applicant
Crown Solicitor for the respondent
This is an application for an order for statutory review of a decision the Parole Board made on 27 March 2018 to confirm a peremptory cancellation of Mr McQueen’s parole. After hearing the application, but before delivering judgment, I was informed that the Board had granted another, independent application by Mr McQueen for parole. After hearing the parties, I determined to decide the matter and give reasons for my decision. There seemed utility in doing so because of the long history between the Board and Mr McQueen. In my view, the Board’s conduct in the present instance was wrong in law. That ought to be recorded as part of a history which increasingly discredits the Board.
The history of Mr McQueen’s offending and interactions with the Parole Board is given in Court Document 10. All page references below are to the exhibit bundle of that affidavit.
History of Offending
Mr McQueen was born in 1967, making him 51 years old now. He has a very long criminal history which dates back to 1979 when he was 12 years old. Terms of actual imprisonment were imposed from 1985. There were many sentences, but no sentence of over 12 months imprisonment was imposed before 1991.…
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- Case
- [2018] QSC 216
- Decision Date
CaseChat Overview and Summary
The court found that the decision to cancel the parole was indeed affected by an error of law. The Board had failed to genuinely consider relevant matters, such as the nature of the parole contravention and the purposes of the Corrective Services Act, which include community safety, crime prevention, and the safeguarding of an offender's basic human entitlements. The court noted that the Board did not discuss these matters in the information notice or the letter of 3 April 2018, and its comments gave the impression that it either did not see these matters as relevant or did not give them genuine consideration. The court concluded that the Board misunderstood the basis for its discretionary considerations, which amounted to an error of law.
Consequently, the court declared that the decision of the Parole Board made on 27 March 2018 to confirm its earlier decision to cancel Mr McQueen’s parole was affected by error of law and ought to be regarded as invalid. The court also directed that a copy of these reasons be provided to the President of the Board and each Deputy-President.
Orders
Orders of the court
1. I declare that the decision of the Parole Board made on 27 March 2018 to confirm its earlier decision to cancel Mr McQueen’s parole pursuant to s 208(2) of the Corrective Services Act was affected by error of law and ought to be regarded as invalid.
2. I direct that a copy of these reasons be provided to the President of the Board and each Deputy-President.
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
Ratio Decidendi
Legal Principle Established
The decision whether to suspend or cancel a parole order pursuant to s 205(2)(a) of the CSA is clearly discretionary. It is made without hearing the prisoner, but then the prisoner is given an opportunity to be heard. In my opinion it follows that when considering the submissions given to it by the prisoner pursuant to s 208(2), the Parole Board is obliged to revisit its discretionary decision. In this case, it was obliged to consider whether or not it should exercise its discretion to change the decision to cancel Mr McQueen’s parole because he had failed to comply with a parole order. It seems to me that the Board misunderstood this as a basis for its considerations – [74] above. This is an error of law.Failure to take into account relevant considerations The applicant submitted that the discretionary considerations pursuant to s 208(2) in this case would take into account the purposes of the Corrective Services Act at s 3, which include community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders, and also include recognition that an offender’s “basic human entitlements” other than those which are necessarily diminished because of imprisonment, should be safeguarded. The applicant further submitted that the discretionary considerations in this case, resting as it did on the fact that Mr McQueen had failed to comply with a condition of his parole order, would include the fact that a parole order may only contain a condition such as condition (y) if the Board reasonably considered such a condition necessary either to ensure the prisoner’s good conduct or stop the prisoner committing an offence – s 200(3) of the CSA. These are broad considerations, but I accept the applicant’s submissions that they were relevant to the exercise to be performed under both ss 205(2) and 208(2) in this case. I also accept that the nature of the breach of condition, including its seriousness or lack of seriousness was a relevant consideration for the Board exercising its discretion pursuant to both ss 205(2) and 208(2). I would have thought this was obvious as a matter of commonsense or logic, but if confirmation be needed, it is found in paragraph 6.2(b) of the Ministerial Guidelines. The contact here was very brief; the Parole Board could be certain of this because it had CCTV footage of it. The contact was for an obvious domestic purpose involving the welfare of a child and was in circumstances where Mr McQueen had put in place other arrangements which had failed, leaving him with a limited range of choice which would ensure that his child was safe and that his wife was amenable to further co‑operate in granting him access. Again the Board had CCTV footage of the contact, so that it could see the nature of the contact. These were obviously relevant matters for consideration by the Board. The Board does not seem to have considered them in any real or genuine way. I draw this conclusion because the Board does not discuss them in the information notice or the letter of 3 April 2018.[10] Further, because comments by the Board in these documents give the impression either that it does not see these matters as relevant to its discretion, or does not give them real genuine consideration[11] – see [70]; [71] and [72] above.[10] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346.[11] Leggett v Queensland Parole Board [2012] QSC 121 [24] and the cases cited there.