Oates v Parole Board
[2013] TASSC 10
•8 April 2013
[2013] TASSC 10
COURT: SUPREME COURT OF TASMANIA
CITATION: Oates v Parole Board [2013] TASSC 10
PARTIES: OATES, Anthony John
v
PAROLE BOARD OF TASMANIA
ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA
FILE NO/S: 1013/2012
DELIVERED ON: 8 April 2013
HEARING DATE: 15 February 2013
JUDGMENT OF: Porter J
CATCHWORDS:
Administrative Law – Judicial review – Standing to institute proceedings – Particular cases – Parole Board's refusal to release life prisoner on parole – Prisoner's interests of liberty adversely affected – Prisoner an "aggrieved person" within the meaning of the Judicial Review Act 2000 (Tas).
Aust Dig Administrative Law [1027]
Administrative Law – Judicial review – Privative clauses – Particular cases – Parole Board able to request a report from any person – Prisoner entitled on request to see a copy of the report subject to Board's discretion to withhold the whole or any part – Report obtained with prisoner's knowledge but no request made – Whether Board obliged to disclose report irrespective of the absence of a request.
Aust Dig Administrative Law [1079]
Administrative Law – Judicial review – Grounds of review – Generally – Parole Board's refusal to release life prisoner on parole – Whether Board failed to take into account relevant considerations of rehabilitation and community based treatment – Whether Board took into account an irrelevant consideration of deterrence – Whether decision manifestly unreasonable.
Aust Dig Administrative Law [1028]
REPRESENTATION:
Counsel:
Applicant: G Barns and J M White
First Respondent: No appearance
Second Respondent: A R McKee
Solicitors:
Applicant: Hobart Community Legal Service
First Respondent: Director of Public Prosecutions
Second Respondent: Director of Public Prosecutions
Judgment Number: [2013] TASSC 10
Number of paragraphs: 48
Serial No 10/2013
File No 1013/2012
ANTHONY JOHN OATES v PAROLE BOARD OF TASMANIA
and ATTORNEY-GENERAL
REASONS FOR JUDGMENT PORTER J
8 April 2013
Introduction
This is an application for judicial review of a decision of the Parole Board refusing to order that the applicant be released on parole. On 5 March 1998, the applicant, having been convicted of one count of murder, was sentenced by a judge of the Supreme Court of Queensland to life imprisonment to commence on 21 June 1996. Since 2001, the applicant has been serving that sentence in Tasmania, having been transferred here under the provisions of the Prisoners (Interstate Transfer) Act 1982. On 12 June 2009, he became eligible for release on parole. He was unsuccessfully considered for parole by the Parole Board on five occasions: 25 September 2009, 30 April 2010, 16 September 2010, 1 March 2011 and 9 November 2012.
It is the Board's refusal on the last occasion which is the subject of this application for review under the Judicial Review Act 2000 (the JRA). In the alternative the originating application seeks relief in the nature of certiorari quashing the decision. There were seven grounds of the application, the first of which contained four sub-grounds, but as argued, only grounds 1(b), 2, 4, 6 and 7 were pursued. These grounds allege an error on the part of the Board in failing to take into account a relevant consideration, and errors of law relating to the approach to the ultimate issue and to a matter of procedure: grounds 1(b), 4, 6 and 7. Ground 2 complains that the decision is manifestly unreasonable. I will deal with the grounds in that order.
Further facts
The Board gave written reasons for its decision. The following, which is a convenient summary of the relevant background of the applicant, is taken from those reasons:
"The Applicant's Prior Offending
In Victoria on the 30th May, 1969 at the age of sixteen the Applicant was convicted of murder and was held in custody at the Governor's Pleasure. …
In summary the Applicant murdered his first victim in circumstances where the Applicant attacked his victim with a knife causing sixteen wounds to the victim's body with five major wounds to the left side of the chest. Having caused his victim's death the Applicant then disposed of the body in bushland. It appears that the only provocation for the Applicant's behaviour was some racist remarks made by the victim which offended the Applicant. The Applicant appears also to have desired the use of his victim's motor vehicle.
The Applicant served in excess of fifteen years in Prison before he was released on Parole in Victoria on the 30th April, 1985. The Applicant's Parole was cancelled on the 23rd January, 1987 as a result of further offending.
Whilst on Parole the Applicant had committed further crimes including two armed robberies. On the 27th March, 1987 the Applicant was sentenced to eight years nine months imprisonment for armed robbery. On the 3rd April, 1987 he received a further sentence of imprisonment for a related crime.
A further six year sentence was imposed on the Applicant on the 30th August, 1988 with respect to an earlier armed robbery. While the Board has no information with respect to the factual details of the Applicant's offending insofar as the armed robberies are concerned the substantial sentences of imprisonment imposed by the Court is suggestive of the offending having been serious.
The Board repeats the following Paragraph of the Board's Decision of the 1st March, 2012:
'On materials provided to the Board, the Applicant was released from Prison again on Parole on the 26th November, 1993. The Board notes that the Applicant's personal circumstances existing at the date of his release from Prison on Parole in 1993 are very similar to his present personal circumstances. The Applicant has the support of his wife and family (as he did in 1993). He will be closely supervised (as he was in 1993). The Board notes that in February 1995 the Applicant's compulsory supervision be Adult Parole Board ceased and that he reoffended on the 1st June 1996.'
The offending on the 1st June 1996 was the Applicant's second murder and is the crime with respect to which the Applicant is presently incarcerated. That murder occurred in circumstances where the Applicant approached the victim whilst he was asleep and struck him to the head with a small tomahawk axe killing him and thereafter disposing of his body. The Applicant and his victim were known to each other and there had been discussions between the Applicant and his victim's spouse (the Applicant's co-accused) about killing his victim prior to the murder. There was nothing to suggest the Applicant feared his victim.
The Comments made by Justice McKenzie when sentencing the Applicant and his co-accused are set out in the Board's Decision of the 7th May, 2010. I note [sic] His Honour's Comment that:
'it seems to me there was the killing of your husband to further your mutual lust. It was nothing less than an execution of the victim while he slept. I have no doubt that both of you thought while he was alive he would be an obstacle to your plans and that you decided that he had to go.'
The Applicant's personal circumstances
As was noted in the Board's Decision of the 10th September, 2010 when the Applicant was released on Parole in May of 1985 he spent only eighteen months in the community before his Parole Order was cancelled due to his further offending.
Similarly following release on Parole in November, 1993 the Applicant committed his second murder approximately two and a half years later. While the Applicant was originally subject to a Parole Order post November 1993 for a period of five years, as a result of the outcome of a Re-Sentencing Application by the Applicant with respect to his first murder, the Victorian Adult Parole Board determined the Applicant was no longer required to remain under Parole supervision from the 7th February, 1995.
Essentially the Applicant has spent approximately thirty six of the last forty four years in prison. As previously noted by the Board there is little doubt that the Applicant has become institutionalised. The Applicant is a model prisoner. The Applicant's conduct whilst incarcerated in Tasmania has been exemplary. The Board notes from the Transcript of Proceedings before Justice Cummins in relation to the Applicant's Application made pursuant to Section 13 (2) (c) of the Sentencing Act 1991 (Vic) the Applicant was described as being an 'exemplary prisoner' following the cancellation of his Parole on the 23rd January, 1987.
The Board in its Decision of the 7th May, 2010 expressed concern regarding the Applicant's ability to function outside the structured confines of the prison system. Since that time the Applicant has participated in a significant number of conditional releases pursuant to Section 42 of the Corrections Act 1997. While having participated in such leave since 2008 the Applicant has been participating in overnight leave continuously since August 2011. The Board notes that all such leave has occurred without incident.
The Board previously in its reasoning has raised its serious concerns regarding the Applicants intention to immediately cohabit with his wife and children. As has been previously noted even during the short period the Applicant has spent in the community the Applicant's relationship with his wife failed. In the Applicant's Appeal of Conviction in the Queensland Criminal Court of Appeal the Applicant submitted that the evidence of his wife and children regarding admissions he had made to them with respect to his crime amounted to collusion. These facts cause the Board concern regarding the appropriateness of the Applicant being accommodated with his wife and children.
The Board now notes however that the Applicant has secured accommodation through REO services with a Unit available for the Applicant with external support and integration which would afford the Applicant and his wife the opportunity to maintain their relationship without the pressure of immediately cohabitating. The Board notes it has received a report from REO outlining details of the accommodation and support being afforded to the Applicant.
The Board also notes that the Applicant is engaged in relationship counselling with Relationships Australia together with his wife. Counselling commenced on the 12th August, 2011 and had been ongoing. The Board has been advised that the Applicant's counselling relates to the exploration of 'what it means to have a healthy and strong relationship in the context of preparing for the resumption of normal family life'.
During his incarceration the Applicant has made considerable efforts within the Prison system to engage in all available Programs. He has accessed psychological counselling which he intends continuing post release. The Board has confirmation from his Psychologist to that effect. The Applicant has undertaken further education whilst incarcerated and hopes to continue such education in the community should he be released on Parole."
Release on parole under the Corrections Act 1997
4 The Corrections Act 1997 (the Act), s72(1), provides that if a prisoner is eligible to be released on parole, the Board is to consider whether the prisoner should be so released before the date on which the prisoner becomes eligible to be released. The Board is not limited to that one consideration, but the Act does not provide for applications to be made by prisoners to the Board. The provisions of s72 include the following:
"(3) The Board may —
(a)order that a prisoner be released on parole —
(i) at such time as is specified in the order; and
(ii) for such period as the Board considers appropriate and as is specified in the order; or
(b)defer making a decision on whether or not the prisoner should be released on parole; or
(c)refuse to release the prisoner on parole.
(4) In determining whether or not a prisoner should be released on parole, the Board is to take into consideration —
(a)the likelihood of the prisoner re-offending; and
(b)the protection of the public; and
(c)the rehabilitation of the prisoner; and
(d)any remarks made by the court in passing sentence; and
(e)the likelihood of the prisoner complying with the conditions; and
(f)the circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment; and
(g)the behaviour of the prisoner while in prison and, if he or she has been in a secure mental health unit, while in that secure mental health unit; and
(h)the behaviour of the prisoner during any previous release on parole; and
(i)the behaviour of the prisoner while subject to any order of a court; and
(j)any reports tendered to the Board on the social background of the prisoner, the medical, psychological or psychiatric condition of the prisoner or any other matter relating to the prisoner, including in the case of a prisoner who is or has been a forensic patient any report of the Chief Forensic Psychiatrist; and
(k)the probable circumstances of the prisoner after release from prison; and
(ka) …
(l)any other matters that the Board thinks are relevant.
…".
Although the Act does not provide for it, the practice seems to be that prisoners "apply" for release on or before the date on which they become eligible to be released, and also at later times if not released. However, s72(10) provides that if the Board refuses to release a prisoner on parole, it may not further consider the release of the prisoner on parole until the expiration of three months from the date of the last refusal.
The Board's reasons
In its reasons, the Board firstly set out the brief history of the relevant sentence and the previous refusals. "For the avoidance of doubt", the Board then noted all of the documents which it had before it and to which it had regard. Forty-five documents were listed which included, apart from obvious things such as judges' comments on passing sentence and lists of prior convictions, submissions and correspondence prepared by the applicant and sent to the Board, transcripts of previous appearances before the Board, psychological and prison reports, and submissions made by the applicant's lawyers. Having then noted s72(4) of the Act, and setting out the applicant's prior offending and personal circumstances, it dealt with the issue of the risk of the applicant re-offending.
This was primarily done on the basis of two reports from a consultant clinical psychologist, Mr Damien Minehan, the first dated 24 August 2009, the more recent one dated 6 November 2012. The applicant was assessed by Mr Minehan at the Board's request. A report of another consultant psychologist, Ms Wendy Northey, had been obtained at the request of the applicant and provided to the Board in support of a previous parole consideration. In its reasons, the Board noted that there was very little difference in the opinions of the two psychologists. I will return to the terms of Mr Minehan's reports.
The Board's reasons conclude with a section entitled "Issues for consideration". This section contains the essence of the Board's reasoning in refusing to release the applicant on parole. It reads as follows:
"Issues For consideration
The real issue for the Board to determine with respect to this Application is whether the Applicant's risk factors can be adequately managed to prevent or substantially alleviate the risk of a relapse into offending if the Applicant is granted Parole. All of the Applicant's prior offending has been violent. The Applicant has been found guilty of two murders, one in 1969 and the other in 1996. He received lengthy sentences in 1987 for a number of armed robberies. All of these crimes involved the use of weapons. This history of high level violence places the Applicant amongst a group of individuals at an increased risk of future violence.
The Board repeats the following extract of Mr Minehan's Report of the 6th November, 2012;
I have been unable to locate any relevant research in relation to individuals who have been convicted of murder on two separate occasions and then have been granted Parole, likely due to the fact that this is a very rare event. There may be some individual cases, however there is nothing to inform the risk assessment further.'
Given the Applicant's high risk rating on any comprehensive assessment of future violence risk, noting the very serious prior offending and in particular that offending occurring during the period of Parole the Board is not satisfied that the substantial risk to the public can be sufficiently addressed by the risk management plan that the Applicant has presented to the Board.
The Board notes the comments of Justice McMurdo in Paragraph 21 of Folling v Queensland Parole Board referred to in the Applicant's Counsel's Submissions dated the 5th December, 2010 where his Honour states:
'What the Respondent [Parole Board] was required to do was to balance its valid concerns for the safety of the Public against the potential benefit to be gained from a structured and supervised release with appropriate conditions.'
Having taken all relevant matters into account it is the Boards view that the potential risk identified to the community of violent reoffending by the Applicant, is not sufficiently mitigated by the Applicant's risk management plans. On balance the need for the protection of the community outweighs the potential benefits to the Applicant and/or the community of the Applicant being released on Parole with appropriate supervision and conditions."
Is the applicant "a person aggrieved" by the Board's decision?
As a preliminary matter, counsel for the Attorney-General submitted that the applicant is not "a person aggrieved" within the meaning of that phrase in s7 of the JRA, and that accordingly the application is incompetent. As a precursor to that argument, it was rightly pointed out that, as I have noted, the scheme does not provide for applications by prisoners for parole. There is no right to parole, nor is there any right to apply for it. In strict terms, the Board is obliged to consider only once the eligibility of a prisoner to be released on parole, and that is before his or her eligibility date.
Section 7 of the JRA relevantly provides:
"7 Meaning of 'person aggrieved'
(1) In this Act, a reference to a person aggrieved by a decision is taken to be a reference to —
(a)a person whose interests are adversely affected by the decision; …"
The essence of the Attorney-General's submission is that because the applicant had no entitlement to apply for parole, and had no entitlement to an order that he be released on parole, the decision did not deprive him of anything recognised by the law as constituting a right or interest. In the submission, "entitlement" was equated with "a right or interest". Counsel for the Attorney-General relied on the following well-known statement of Mason J in Kioa v West (1985) 159 CLR 550 at 582 (omitting references):
"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: … The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests."
The Attorney's submission was maintained, notwithstanding the express statement in that passage that the concept of "right or interest" must be understood as relating to personal liberty. In my view the submission is plainly untenable, and is contrary to authority. I simply cannot see how the interests of a person who is serving a term of imprisonment in a gaol are not "adversely affected" by a decision which would keep him or her in that institution and not serving the term at large in the community, albeit subject to supervision and conditions.
Further, there are a number of authorities, including a Tasmanian one, which establish that rules of procedural fairness apply to proceedings before parole boards when dealing with release on parole, revocation of parole and the reduction of a non-parole period pursuant to statutory powers: see Re Scott [2001] TASSC 34, Baba v Parole Board of New South Wales (1986) 5 NSWLR 338, Todd v Parole Board (1986) 6 NSWLR 7, R v Chairman of Parole Board; Ex parte Patterson (1986) 43 NTR 13, Orreal v Queensland Community Corrections Board (1995) 81 A Crim R 212 and R v Parole Board; Ex parte Wilson [1992] 1 QB 740. In several of the Australian cases, the statement of Mason J in Kioa v West was applied. Very obviously, parole involves liberty. That is an interest, impact on which in a relevant context gives standing to persons affected, and attracts the operation of the rules of natural justice. I hold that the applicant is a person aggrieved by the decision of the Board.
Ground 1(b) – a failure to take into account a relevant consideration?
This ground is one aspect of an allegation made under s17(2)(e) of the JRA of an improper exercise of power, the other aspects of which were abandoned. By s20(b), an improper exercise of power includes failing to take a relevant consideration into account. As drafted, the ground is that the Board "failed to take into account a relevant consideration namely that community-based counselling and treatment were available in the community and the Applicant was willing to undertake such counselling whilst on parole". In written submissions, this was expanded from community-based risk reduction treatment to include "the fact that the Applicant has served his non-parole period, and the contents of the reports of two psychologists"; Mr Minehan and Ms Northey. In argument however, the relevant consideration which it is said the Board failed to take into account seemed to be confined to the counselling and treatment which was available in the community, and which the applicant was willing to undertake.
Of course, this ground of review only applies where the decision-maker was bound or obliged to take the identified consideration or factor into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39. The only concern is whether or not the matter was considered. How it is to be taken into account and what weight it is to be accorded in all of the circumstances are matters within the authority of the decision-maker: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 224 at [16]. The applicant submits that the Board was required to take into account the consideration or factor of his community-based risk reduction treatment, because it was a consideration relating to the likelihood of his re-offending, his rehabilitation and his probable circumstances after release as respectively referred to in s72(4)(a), (c) and (k) of the Act.
The material which the Board had before it as to the aspect of community-based risk reduction treatment consisted of the following:
· a report from Dr O'Donnell, a forensic and clinical psychologist, dated 6 May 2012;
· three letters from Mr Lewis, a counsellor with Relationships Australia, dated 15 May 2012, 28 August 2012 and 4 October 2012;
· a Post-Release Options Project proposal for the applicant from Bethlehem House;
· a letter from the Prison Service Chaplin dated 17 February 2012;
· a letter from a pastor of "Church With No Walls", the Street Ministry Arm of Hobart Baptist Church, dated 1 March 2012;
· a Salvation Army Prison Support Services Reintegration for Ex-Offenders Case Plan, dated 4 September 2012.
In short summary, this material amounts to detailed, and in most instances confirmed, proposals for the applicant's accommodation, vocational training, medical and psychological treatment and counselling and pastoral support. The material includes attestations by persons of responsibility to the applicant's very positive attitude to rehabilitation and to his capacity to rebuild his life. There could have been little doubt in the minds of the Board members that a range of appropriate and structured measures were in place for the applicant's transition. In the operative part of the Board's reasons, which I have set out at par[8] above, there is reference to "the risk management plan" which the applicant presented to the Board. In this application, the applicant concedes that the reference to the risk management plan is a reference to the material which I have identified.
The applicant also concedes that some of the factual matters relating to his rehabilitation, such as successful conditional releases under s42 of the Act, cohabitation with his wife and children, secured accommodation and relationship counselling were discussed by the Board in its reasons. However, the submission is that notwithstanding this reference, and notwithstanding the later comment that the Board had taken "all relevant matters into account", the Board glossed over the material relevant to the identified required considerations and focussed almost exclusively on Mr Minehan's report of 6 November 2012.
The difficulty which the applicant faces is that the Board has discussed some of the relevant matters, and has specifically referred to the "risk management plan". This is not a case in which there is no reference to the relevant material, and hence impliedly to the required considerations. It is not a case in which, whether a matter has been overlooked or there has been a failure to give consideration to it, is to be inferred from a fair reading of the whole of the reasons: Beale v GIO New South Wales (1997) 48 NSWLR 430 per Meagher JA, at 443; State of Tasmania v Clements [2010] TASSC 59 at [16] – [17].
The fact is that ultimately the bulk of relevant material was referred to as the "risk management plan". That does not serve to establish that any relevant material was overlooked, and the required matters not taken into consideration. Beyond that point, the exercise trespasses into the area of merits review. I accept that in certain circumstances a casual or perfunctory mention of a matter, taken in the context of the whole of the reasons, might establish a failure to take into account a particular consideration. I do not see that to be the case here. It follows that ground 1(b) should fail.
Ground 4 – taking into account an irrelevant matter; deterrence?
This ground derives its authority from ss17(2)(e) and 20(a) of the JRA. It was pursued without much vigour. The submission is that the Board erred in taking into account the factor of deterrence "in circumstances where the applicant had served his statutory non-parole period of 13 years and where [the Board] had before it evidence as to the applicant's good behaviour in prison and during s42 visits, psychological evidence and evidence as to proposed community support …".
The applicant accepts that in its reasons the Board said nothing about deterrence, but submits that the discussion under the heading "Issues for consideration", when put into the context of the available favourable material, demonstrates that the Board must have taken the view that specific deterrence was at least one of the factors which justified not ordering the applicant's release.
Counsel for the applicant referred to the remarks of Malcolm CJ in Lauritsen v R (2000) 22 WAR 442 at 459 where his Honour said (omitting references):
"… the non-parole term should reflect the seriousness of the offence, the need for deterrence and punishment, and the offender's prospects for rehabilitation. The objectives for parole are to lessen the burden on the offender, recognise that that offender will eventually be released and provide for rehabilitation under supervision to promote greater self-determination and development of social skills: …".
Counsel also referred to Reid v The New Zealand Parole Board [2006] NZCA 232, in which the Court of Appeal held that considerations of general deterrence were not relevant when the Parole Board was considering applications for release. This was in a legislative setting which contained a principle that offenders must not be detained any longer than is consistent with the safety of the community, and that the Board may order an offender be released on parole only if it is satisfied on reasonable grounds that the offender would not pose an undue risk to the safety of the community. The Court acknowledged that factors relating to the particular individual that may affect the safety of the community remain relevant.
It can be accepted that factors relevant to sentencing, such as general deterrence, are not relevant to the Board's consideration of release on parole. Section 72(4)(a) and (b) of the Act specifically require the Board to take into consideration the likelihood of a prisoner re-offending, and the protection of the public. To that extent, the effect of the sentence on the prisoner has to be assessed. Obviously, there will be some overlap between the functions of a sentencing court and those of the Board when assessing those factors, but otherwise, it is not the function of the Board to take a course designed to deter a prisoner from further offending.
The difficulty for the applicant in this case is that there is nothing at all in the Board's reasons to suggest that it has misunderstood its role, and gone beyond what is involved in assessing considerations of re-offending and public protection. Ground 4 is not made out.
Ground 6 – the Board's failure to provide the applicant with a psychological report
This ground complains of an error of law in that the Board failed to provide to the applicant a copy of the report from Mr Minehan dated 6 November 2012. As argued, the complaint became one of a breach of the rules of natural justice, that ground being provided for in s17(2)(a) of the JRA. Section 74 of the Act relevantly provides:
"…
(2) The Board may request any person to provide and furnish it with a report.
(3) Subject to subsection (5), a prisoner in respect of whom a report has been provided to the Board is entitled, on request, to see a copy of the report.
(4) A person who prepared the report may request the Board to withhold a report or part of the report from the prisoner.
(5) The Board may, after considering the request of a person who prepared a report or of its own motion, withhold the report or part of the report from the prisoner."
It seems to be common ground that the Board met to consider the applicant's eligibility for parole, and decided that an update of Mr Minehan's earlier report of 24 August 2009 was desirable. A few days later the applicant was told that a further report was to be requested. Mr Minehan interviewed the applicant several weeks later after which he provided the further report to the Board, using "Board' in a generic sense. A differently constituted Board then dealt with the matter, but did not give the applicant a copy of the new report. There is no suggestion that Mr Minehan requested that his further report be withheld. As also seems to be common ground, the Board did not show or give to the applicant a copy, because he did not ask to see it.
Ordinarily, subject to legislative provisions, the requirements of natural justice manifested in the hearing rule, would require the disclosure of all material which has relevance to the matter in issue, particularly that which is to be used or considered by the decision-maker. The process of the Board in this case is inquisitorial, as distinct from adversarial. Information gathered by a decision-maker should be divulged to the parties affected, and they should be given an opportunity to respond to it: Brighton Council v Compost Tasmania Pty Ltd [2000] TASSC 49 at [33].
At the very least, a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account. "[I]n the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made": Kioa v West (above), at 629; see also Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per McHugh J at 96 – 97 [140].
The applicant submits that in the circumstances and notwithstanding the applicant's knowledge and the lack of a request, natural justice obliged the Board disclose the report to him. The question is whether the Board has an obligation to disclose a report obtained by it, containing at least adverse material, notwithstanding that no request has been made by a prisoner. Counsel for the Attorney-General submits that the disclosure aspect of the hearing rule has been modified by s74. There is no argument that for exclusion or limitation of the rules of natural justice to be achieved, there needs to be a clear manifestation of such an intention by way of words of "irresistible clearness": Kioa v West (above) at 584; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 259 [14].
The Attorney-General submits that as a result of the clear wording of s74, there is no general obligation on the part of the Board to make available to a prisoner any report which it obtains. Any such obligation only potentially arises upon a request to see a copy of the report, and the obligation is qualified in that s74(5) enables the Board to withhold all or part of it. For the following reasons, and subject to one matter which I will later explain, I think it can be accepted that the ordinary obligations of disclosure are modified by s74 in relation to reports requested by the Board under s74(2).
The words of s74 are to be given their literal meaning in the light of their context. I do not think it is possible or sensible to construe s74 to the effect that it provides for requests for reports by the Board and makes specific provision for an entitlement in the prisoner upon request to see a report (subject to a qualification), but otherwise leaves at large an entitlement to be provided with reports sought by the Board or advised of relevant material in them.
I think it is sufficiently clear that by the combined operation of subs(2), (3) and (5), Parliament intended that a prisoner is entitled to see a copy of any report requested by the Board and furnished to it, but that the entitlement is dependent on a request being made. The entitlement arises irrespective of the content, (adverse, relevant or otherwise), but it is expressly made subject to subs(5); the Board may, in its unfettered discretion, withhold the report or part of it. The words "withhold the report" (my emphasis) in subs(5), confirm the combined operation of subss(3) and (5), so that the report referred to in subs(5) is that which the prisoner has requested to see.
However, the matter to which I earlier referred is an obvious deficiency in the scheme relating to reports requested by the Board. Making a request to see such a report triggers the entitlement to do so, subject to subs(5), but to make a request creating that conditional entitlement, a prisoner must have knowledge that a report has been furnished to the Board. I can see no solution other than that the Board remains under an obligation to comply with natural justice disclosure obligations, to the extent of informing the prisoner that it has the particular report.
Subject to the obligation to advise of the existence of a report requested and furnished, I take the view that, as I have said, the language of the section is sufficiently clear to limit the Board's obligation of disclosure of a report which it has requested, to when a prisoner has requested to see it. That obligation is subject to the exercise of the discretion under subs(5). I repeat that s74(5), of course, would only relate to reports obtained by the Board pursuant to its power under subs(2). In this case the applicant knew of the further report at the time of the Board's consideration of his eligibility for release, and did not ask for it. The Board was under no obligation to allow him to see it or to give him a copy. In any event the matter can be resolved on another basis. That relates to the nature of the report and what response the applicant would have made if he had known of its contents.
Substance gives way to form when considering whether there has been a denial of natural justice. I accept that a court should be slow to hold that a decision-making process is flawed by a breach of a rule of natural justice, but uphold the decision. That may be the outcome where a court is satisfied that, as a matter of substance rather than form, the particular breach or failure made no difference to the party's case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, per Gleeson CJ at 13 [36], McHugh and Gummow JJ at 35 [106], Hayne J at 36 [112] and Callinan J at 48 [149]. A court might be satisfied that there is no real possibility that a different outcome might have been reached: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, per Gleeson CJ, at 88 – 89 [4]. The proper approach is not to attempt to characterise breaches or failures as "trivial" or "technical": Aala per Gaudron and Gummow JJ at 109 [59].
In this case the applicant accepts that Mr Minehan's report of 6 November 2012 effectively said that little had changed since his 2009 report, except to the extent of matters which went in the applicant's favour. In a passage set out by the Board in its reasons, Mr Minehan said:
"My previous report broadly identified a number of dynamic social and relationship factors as well as disengagement from services and support networks as prominent red flag risk signs. Since this time Mr Oates has made effort to address those issues that can be improved to some degree. As always future events, and Mr Oates [sic] reaction to them, remain unpredictable. It is hoped that a risk management plan will equip him with the support and psychological resources required to deal with stressful and difficult situations, such as health problems, relationship issues, psychosocial stressors or illness/death of a family member."
The particular passage from Mr Minehan's report on which counsel for the applicant focussed is the one quoted in the "Issues for consideration" section of the Board's reasons. That is set out in par[8] of these reasons. I will repeat the passage from the report for the sake of convenience:
"I have been unable to locate any relevant research in relation to individuals who have been convicted of murder on two separate occasions and then have been granted Parole, likely due to the fact that this is a very rare event. There may be some individual cases, however there is nothing to inform the risk assessment further."
Counsel for the applicant was not able to offer any suggestion as to how this statement by Mr Minehan would have been addressed by the applicant. It is difficult to see what response could have been made, other than to produce relevant research which demonstrated a different and more favourable approach to the risk assessment process. The applicant did not claim that such material was available. On that basis, the failure to provide the further report had no material effect: Re MIMA; Ex parte Lam (above). This ground must also fail.
Ground 2 – a manifestly unreasonable decision?
By this ground the applicant asserts that the decision to refuse his release on parole was manifestly unreasonable. In its terms, the ground is based on ss17(2)(e) and 20(g) of the Act which embody the traditional "Wednesbury" unreasonableness test; that is, no reasonable tribunal in the position of the Board could have made the decision.
The applicant identified the relevant task of the Board as that outlined by Stuart-Smith LJ and Simon Brown J in the following passage from R v Parole Board; ex parte Bradley [1991] WLR 134 at 146. (Counsel for the Attorney-General also relied on this passage.) The case concerned the release on licence of a person serving a life sentence, referred to as "discretionary lifers". The relevant part of the joint judgment is as follows:
"It follows that we reject [the] contention that the Parole Board is fixed with the same standard as the sentencing judge. But that leaves still wholly undefined the level of risk required to justify continued detention of post-tariff discretionary lifers. Yet undefined we fear it must remain. Unless the required test is expressed in percentage terms … which is surely impossible, it seems inevitable that one can say really no more than this: first, that the risk must indeed be 'substantial' … but this can mean no more than that it is not merely perceptible or minimal. Second, that it must be sufficient to be unacceptable in the subjective judgment of the Parole Board to whom Parliament has of course entrusted the decision - the decision … Third, that, in exercising their judgment as to the level of risk acceptable, the Parole Board must clearly have in mind all material considerations. Certainly one such consideration should be the intrinsic and increasing unfairness of leaving the prisoner languishing in gaol, ex hypothesi for longer than punishment requires, unless there is sufficient public risk to justify this.
What it all comes to is this. The Parole Board have to carry out a balancing exercise between the legitimate conflicting interests of both prisoner and public. They must clearly recognise the price which the prisoner personally is paying in order to give proper effect to the interests of public safety. They should recognise too that it is a progressively higher price. Accordingly, the longer the prisoner serves beyond the tariff period, the clearer should be the Parole Board's perception of public risk to justify continued the [sic] deprivation of liberty involved."
The applicant relies on the significant body of material relating to his rehabilitation and on "risk management plan" for his release. That this body of material seems to have been overlooked is said to make the decision manifestly unreasonable. It is impractical and unnecessary to detail the material, or to attempt to summarise it. I have read what was identified by the applicant's counsel, together with with much of the associated documentation. As I have noted, there is no doubt that it is quite favourable to the applicant.
The Board is required to assess the level of risk which the applicant may present in terms of likelihood of re-offending and the protection of the public. As has been shown, the Board took the view that the potential risk to the community of violent re-offending was not sufficiently mitigated by the risk management plans, and that, on balance, the need for public protection outweighed the potential benefits to the applicant and the community of him being released on parole with appropriate supervision and conditions. There was material which supported a finding of a risk of re-offending, and the applicant does not suggest otherwise.
Counsel for the Attorney-General referred to a decision of Atkinson J dealing with judicial review of a maximum security order made in relation to a man serving an indefinite term of imprisonment: Garland v Chief Executive, Department of Corrective Services [2006] QSC 245. At [91] her Honour said:
"It is not the role of the court on an application for judicial review to substitute its own view of what might be a fair and reasonable outcome in place of a decision entrusted by the legislature to a member of the executive arm of government. Attorney General (NSW) v Quin (1990) 170 CLR 1 at 37-38. The test is not one of fairness or reasonableness but whether the decision was so unreasonable that no reasonable person could so exercise the power. This test was explained by Gaudron and Kirby JJ in Minister for Immigration v Eshetu: (1999) 197 CLR 611 at 640 [101].
'In essence, an unreasonable decision is one for which no logical basis can be discerned'."
Whilst a different view might reasonably have been taken of the applicant's suitability for release on parole, I am not persuaded that on the whole of the material the Board's decision was unreasonable in the relevant sense. That the assessed risk to the public was such that continued imprisonment was not justified, was not the only reasonable conclusion available. This is not such a clear case in which it can be said that no reasonable tribunal could have come to the decision made, and the ground must fail.
Ground 7 – Failing to have regard to s72(4) matters
The ground as drafted raises the issue of an error of law in that the Board failed to have proper regard to the matters set out in s72(4) of the Act. In argument, it was accepted that this ground was really subsumed within the arguments put in relation to grounds 1(b) and 2. As such it does not need separate consideration. It must suffer the same fate as those grounds.
Outcome
There is no need for me to consider the alternative relief. The case was argued on the basis of judicial review under the JRA, and there is no suggestion that examining relief in the nature of certiorari would produce any different outcome. It follows that the application is dismissed.
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