Parole Board Queensland v McQueen
[2022] QCA 230
•22 November 2022
SUPREME COURT OF QUEENSLAND
CITATION:
Parole Board Queensland v McQueen [2022] QCA 230
PARTIES:
PAROLE BOARD QUEENSLAND
(appellant)
v
ALLAN DAVID McQUEEN
(respondent)FILE NO/S:
Appeal No 10613 of 2022
SC No 10230 of 2020DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane – [2022] QSC 27 (Brown J)DELIVERED ON:
22 November 2022
DELIVERED AT:
Brisbane
HEARING DATE:
20 October 2022
JUDGES:
McMurdo and Flanagan JJA and Freeburn J
ORDERS:
1. Appeal dismissed.
2. Pursuant to s 49(1)(d) of the Judicial Review Act 1991 (Qld), the appellant indemnify the respondent in relation to costs properly incurred in the appeal on a party and party basis, from the time the costs application was made.
CATCHWORDS:
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPERATION ACTS AND PROVISIONS – REQUIREMENT TO GIVE REASONS –where the appellant, a prisoner, was convicted of murder – where the parole board indefinitely suspended the prisoner’s parole – where the parole board’s statement of reasons stated that there was confidential information relevant to the parole board’s decision – where the parole board did not explain or release the confidential information to the prisoner – where the prisoner, the respondent, applied for the parole board’s decisions to be set aside – where the decisions of the parole board were set aside on the basis that the parole board failed to comply with the requirements of ss 208(1) and 208(4) of the Corrective Services Act 2006 (Qld) to advise the prisoner of the reason for a decision to suspend parole – where the appellant appeals the order to set aside its decisions – where the parole board submits it had a discretion to not release the confidential information pursuant to s 341(3) of the Corrective Services Act 2006 (Qld) – whether s 341(3) of the Corrective Services Act 2006 (Qld) qualifies the obligation of the parole board to give a prisoner an information notice advising the reason for the decision
ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – where the respondent, a prisoner, had their parole indefinitely suspended – where the appellant is the parole board – where the parole board appealed an order which set aside its decision – where the questions of statutory construction raised by the appeal are important – where the appellant consents to indemnify the respondent’s costs of appeal
Acts Interpretation Act 1954 (Qld), s 27B
Corrective Services Act2006 (Qld), s 15(3), s 208(1), s 208(4), s 208B, s 208C(1), s 341(3)
Judicial Review Act 1991 (Qld), s 20(2)(b), s 49Central and Northern Queensland Regional Parole Board v Finn[2018] QCA 47, cited
Chalkley v Southern Queensland Regional Parole Board[2016] QSC 236, approved
R v A2 (2019) 269 CLR 507; [2019] HCA 35, followedCOUNSEL:
S R McLeod KC for the appellant
A D Scott and A R Hughes, for the respondentSOLICITORS:
G R Cooper, Crown Solicitor for the appellant
Jahnke Lawyers for the respondent
McMURDO JA: I agree with Flanagan JA.
FLANAGAN JA: The appellant, Parole Board Queensland, appeals from orders made by Brown J setting aside two decisions of the appellant made 20 December 2021 and 7 February 2022 which confirmed a previous decision to indefinitely suspend the respondent’s parole. The orders were made on the basis that the appellant failed to comply with the requirements of ss 208(1) and (4) of the Corrective Services Act2006 (Qld) (“the Corrective Services Act”) in giving the respondent an information notice inviting him to show cause. The information notice referred to “confidential information” that the appellant would not disclose. An information notice must advise the relevant prisoner of the reason for the decision. The appellant contended both before the primary judge and this Court that in giving the information notice the appellant had a discretion, pursuant to s 341(3) of the Corrective Services Act, not to disclose the confidential information.
The appeal therefore raises the following issue. In circumstances where the appellant relies on confidential information as a reason for deciding to suspend or cancel a prisoner’s parole order, does s 341(3) qualify the appellant’s obligation under ss 208(1) and (4) to give the relevant prisoner an information notice “advising the reason for the decision”.
Background
The respondent is serving a sentence of life imprisonment for the offence of murder. He was released on parole by a Board Ordered Parole Order which commenced on 1 November 2018. This order was suspended on several occasions. On 23 July 2019, the appellant decided to indefinitely suspend the respondent’s parole order. That decision was subsequently cancelled and the respondent was re-released on parole on 26 November 2019.
On 11 June 2020, a “prescribed member” of the appellant decided to indefinitely suspend the respondent’s parole order pursuant to s 208B of the Corrective Services Act.
The appellant confirmed the decision of the “prescribed member” on 15 June 2020 pursuant to s 208C(1) of the Corrective Services Act. The appellant issued an information notice to the respondent on 23 June 2020, setting out the reasons for its decision. Relevantly, the respondent was informed that the appellant possessed confidential information, the disclosure of which was not in the public interest.
The appellant subsequently reconsidered its decision made on 15 June 2020 on a number of occasions. The decision was not varied.
On 24 September 2021, the appellant gave the respondent an information notice which is set out in the primary judgment[1] at [29]:
[1]Mc Queen v Parole Board Queensland [2022] QSC 27 (“Judgment”).
“By its information notice dated 24 September 2021 the respondent gave notice to the applicant that the respondent had ‘decided not to vary its decision of 15 June 2020 to indefinitely suspend your parole granted to you which commenced on 1 November 2018.’ The notice further stated:
“Reasons for the Board’s decision –
The Board is informed that:
· On 13 July 2020, you were convicted of Driving while a relevant drug is present in blood or saliva on 11 June 2020;
· On 07 June 2021, you were convicted (with no conviction recorded) of Contravention of a Domestic Violence Order (DVO) committed between 28 February 2021 and 17 March 2021; and
· There is confidential information, that will not be disclosed because the Board considers that it is not in the public interest to do so.
The Board was further informed that:
· You were released to parole on the 01 November 2018;
· Your index offence is Murder;
· Prior to the conviction for Murder your history included violent offending, including Armed robbery, Unlawful wounding, Discharge firearm causing bodily harm, and Steal with threats of violence whilst armed in company;
· While in the community you have continued to be the subject of intelligence reports raising various concerns about your risk to community safety; and
· Your parole order has been suspended on a number of occasions.
Accordingly, the Board reasonably believes that you pose an unacceptable risk of committing an offence.
You are invited to show cause, by written submission to the Parole Board Queensland within 21 days after this notice is given, why the Parole Board Queensland should change the decision.”
On 24 December 2021 the appellant, pursuant to an order of Brown J made 9 December 2021, provided a statement of reasons for its decision of 24 September 2021 not to vary its decision of 15 June 2020 to indefinitely suspend the respondent’s parole order. Paragraph 67 – 73 of the statement of reasons referred to “confidential information” as follows:
“67.The Board was informed of the contents of intelligence materials provided to it by Queensland Corrective Services, including, one Intelligence Report, one Information Note and an Intelligence Assessment.
68.The Board considers that the content of the intelligence materials considered by the Board raise various concerns about your risk to community safety.
69.The Board had regard to Ministerial Guideline 1.2 which provides that the highest priority for Parole Board Queensland should always be the safety of the community.
70.The Board also had regard to Ministerial Guideline 5.1, and in particular 5.1 (d) which provides that when considering releasing a prisoner to parole, Parole Board Queensland should have regard to all relevant factors, including –
…
(d)intelligence information received from State and Commonwealth agencies.
71.In making its decision, the Board placed significant weight on the contents of these materials, in particular the Intelligence Assessment.
72.The Board formed the view that the intelligence material raises significant concerns that you would pose an unacceptable risk of committing a further offence if re-released on parole at this time.
73.Having considered the intelligence material, the Board requested further information. The nature of those requests for information have not been disclosed to you”.
The statement of reasons identified at paragraph 76 why the confidential information would not be disclosed by the appellant to the respondent:
“76.The Board formed the view that the substance of the material or main factors adverse to you contained within the intelligence material cannot be disclosed to you as it is considered that the disclosure of the information would undermine community safety to a significant degree.”
Paragraph 79 of the statement of reasons relevantly concluded that having regard to a number of matters including adverse intelligence reports raising various concerns about the respondent’s risk to community safety, the appellant reasonably believed that the respondent posed an unacceptable risk of committing an offence.
Subsequent to the decision of the appellant made 24 September 2021 to confirm its decision made on 15 June 2020 to indefinitely suspend the respondent’s parole order, the appellant made two further decisions on 20 December 2021 and 7 February 2022 to the same effect and which also relied on confidential information which the appellant did not disclose.
On 1 February 2022 the respondent filed an amended application for a statutory order of review in relation to the decision of the appellant made 24 September 2021. The ground of review was that a procedure that was required by law to be observed in relation to the making of the decision was not observed within the meaning of s 20(2)(b) of the Judicial Review Act1991 (Qld). This ground was particularised as a failure on the part of the appellant to comply with the procedures prescribed by s 208 of the Corrective Services Act in the giving of an information notice. More particularly, the notice failed to comply with s 208(4) which requires the notice to advise the reason for the decision.
Relevant statutory provisions
Section 208 of the Corrective Services Act provides:
“(1)If the parole board makes a written order suspending or cancelling a prisoner’s parole order, the board must give the prisoner an information notice on the prisoner’s return to prison.
(2)The parole board must consider all properly made submissions and inform the prisoner, by written notice, whether the board has changed its decision and, if so, how.
(3)If the board changes its decision, the changed decision has effect on the day stated in the written notice.
(4)In this section—
information notice means a notice—
(a)stating the parole board has decided to suspend or cancel the parole order; and
(b)advising the reason for the decision; and
(c)inviting the prisoner to show cause, by written submissions given to the board within 21 days after the notice is given, why the board should change its decision.
properly made submissions means written submissions given by or for the prisoner to the parole board within 21 days after the information notice inviting the prisoner to make the submissions is given.”
Section 27B of the Acts Interpretation Act 1954 (Qld) (“Acts Interpretation Act”) provides that:
“If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also –
(a)set out the findings on material questions of fact; and
(b)refer to the evidence or other material on which those findings were based.”
Section 341 of the Corrective Services Act provides that:
“Confidential information
(1)This section applies to either of the following (each of whom is an informed person)—
(a)a person who is performing or has performed a function under this Act or any of the repealed Acts, or is or was otherwise engaged in the administration of this Act or any of the repealed Acts;
(b)a person who has obtained access to confidential information, whether before or after the commencement of this section and whether directly or indirectly, from a person mentioned in paragraph (a).
(2)The informed person must not disclose confidential information acquired by the informed person to anyone else other than under subsection (3).
Maximum penalty—100 penalty units or 2 years imprisonment.
(3)The informed person may disclose confidential information—
(a)for the purposes of this Act; or
(b) to discharge a function under another law or if it is otherwise authorised under another law; or
(c) for a proceeding in a court, if the informed person is required to do so by order of the court or otherwise by law; or
(d) for confidential information that consists of a person’s private details—if authorised by the person to whom the information relates; or
(e)if authorised by the chief executive because—
(i) a person’s life or physical safety could otherwise reasonably be expected to be endangered; or
(ii) it is otherwise in the public interest; or
(f) if the information merely informs someone—
(i) of the corrective services facility in which a prisoner is being held in custody; or
(ii) for an offender who is subject to a parole order or a community based order—that the offender is subject to the order.
(4)In this section—
confidential information—
(a)includes information—
(i) about a person’s private details; or
(ii) that could reasonably be expected to pose a risk to the security or good order of a corrective services facility; or
(iii) that could reasonably be expected to endanger anyone’s life or health, including psychological health; or
(iv) that could reasonably be expected to prejudice the effectiveness of a test or audit; or
(v) that could reasonably be expected to divulge the identity of an informant or a confidential source of information; or
(vi) that could reasonably be expected to disclose an expert’s advice or recommendation about an offender; or
(vii) that could reasonably be expected to prejudice a law enforcement agency’s investigation; or
(viii) that could have a serious adverse effect on the commercial interests, or reveal commercial-in-confidence interests, of an engaged service provider; but
(b)does not include—
(i) information already disclosed to the general public, unless further disclosure of the information is prohibited by law; or
(ii) statistical or other information that could not reasonably be expected to result in the identification of the person to whom the information relates.
private details of a person includes the person’s identity, private residential address or contact details.”
The primary judge’s reasoning
Justice Brown, in reliance on this Court’s decision in Central and Northern Queensland Regional Parole Board v Finn [2018] QCA 47, accepted that s 208 “provides a statutory right for a prisoner to be provided with reasons in accordance with s 208(4) of the Act rather than it being a common law right of natural justice”.[2]
[2]Judgment, [79].
Her Honour further accepted, correctly in my view, that:
“The statutory language in s 208(4) of the Act reflects a legislative intention that sufficient reasons together with material facts and supporting evidence and material be given in an information notice, given the reference to giving reasons in s 208(4) of the Act incorporates the requirements of s 27B of the Acts Interpretation Act.”[3]
Her Honour continued:
“It may be inferred that the intent of the s 208(4) of the Act is to provide a prisoner with adequate reasons to enable the prisoner to meaningfully respond and make submissions to the respondent.”[4]
Her Honour quoted with approval the observations of Bond J (as his Honour then was) in Chalkley v Southern Queensland Regional Parole Board [2016] QSC 236 at [33] that a requirement to provide reasons in light of s 27B of the Acts Interpretation Act necessitates that “the actual path of reasoning by which the tribunal arrived at the opinion it was required to form, and that that must be done in sufficient detail to enable the Court to discern whether the opinion does or does not involve any error of law.”
[3]Judgment, [84].
[4]Judgment, [85].
Justice Brown noted that there was no real dispute that the appellant had not provided reasons that would satisfy s 27B of the Acts Interpretation Act unless the appellant was justified in not providing reasons or disclosing material facts or evidence by virtue of the fact that the appellant had relied on the intelligence information which was said to be confidential. Her Honour noted that there was no pathway of reasoning provided in relation to the use made by the appellant of the confidential information in reaching its decision, nor was the nature of that information identified other than it being referred to as intelligence.[5] Mr McLeod KC, who appeared for the appellant, conceded before this Court that to the extent the appellant relied on confidential information as a reason for its decision to suspend the respondent’s parole, the information notice dated 24 September 2021 did not comply with ss 208(1) and (4) of the Corrective Services Act nor with s 27B of the Acts Interpretation Act.
[5]Judgment, [136], [137].
In considering the issue of whether s 341 qualifies the obligation to advise the reason for the decision stated in s 208(4) where confidential information is relied upon by the appellant in reaching its decision, her Honour summarised the competing contentions as follows:
“The [respondent] contends that ‘may’ should be construed as providing the power or authority to disclose in the circumstances outlined. It contends that the disclosure would be ‘for the purposes of the Act’ under s 341(a) of the Act. That was not controverted by the [appellant]. The [appellant] however contends that it should be construed to provide the informed person with a discretionary power to disclose or not disclose.”[6]
[6]Judgment, [102].
In rejecting the appellant’s contention, Brown J reasoned as follows:[7]
“In the circumstances above, I do not consider that the proper construction of the Act is to read s 208 together with s 341 to provide a discretion in the respondent to reduce the reasons provided in the information notice where the respondent’s reasoning relied upon confidential information. Nor does it render s 341 of the Act without meaning when read with s 208 of the Act unless it is construed as providing such a discretion as contended by the respondent. Disclosure of the confidential information would constitute disclosure for the purposes of the Act, namely, to comply with the respondent’s obligations to provide an information notice complying with s 208 of the Act. It does not provide a “caveat” to the obligation to provide the information notice. To construe the Act as providing for an informed person to make disclosure in the circumstances in s 341(3) of the Act once the circumstances in any of (a) – (e) is established, provides a harmonious construction between the provisions. Section 208 of the Act provides for disclosure to be made where it is necessary to provide the reasons required in an information notice.
Section 341 prohibits disclosure of confidential information generally but provides an exception to that prohibition in the circumstances outlined in s 341(3) of the Act. That protects the informed person making such a disclosure from being liable for a penalty under s 341(2). No qualification was made to s 208 to exclude the disclosure of confidential information in the information notice where such exceptions were in contemplation by the legislature and made in other provisions of the Act or limit the reasons that are required to be provided, such as is the case in s 15 of the Act.”
Her Honour explained the significance of s 15 as follows:[8]
“Section 15(1) of the Act provides for an information notice to be provided to a prisoner after a review of the prisoner’s security classification under s 13 of the Act. “[I]nformation notice” includes the reasons for decision. If the prisoner’s classification is increased the prisoner must also be informed that if dissatisfied with the decision the prisoner might ask for a reconsideration of the decision within seven days after being provided with an information notice. Section 15(3) of the Act expressly states that s 27B of the Acts Interpretation Act does not apply to an information notice given under that section.”
The requirement for the provision of an information notice under s 15 is to be distinguished from the like requirement under s 208(1) in that s 15(3) expressly excludes the application of s 27B of the Acts Interpretation Act.
[7]Judgment, [110], [111].
[8]Judgment, [87].
Consideration
The issue raised in this appeal is one of statutory construction and in particular whether s 341(3) should be construed as qualifying the appellant’s obligation under ss 208(1) and (4) to give an information notice which advises the reason for the decision. As explained by Kiefel CJ and Keane J in R v A2 [2019] HCA 35; (2019) 269 CLR 507, [32] – [37] while construing a statute commences with a consideration of the words of the provision itself it is necessary to have regard to the context for the provision which is to be understood in its widest sense.
The appellant submits that pursuant to s 341(3) it has a discretion whether to disclose confidential information for the purposes of giving a prisoner an information notice under ss 208(1) and (4). This submission however, misconstrues the effect of s 341(3). Section 341 falls within a different chapter to s 208. Section 208 is contained in sub-division 2, division 5 of chapter 5 of the Corrective Services Act. Chapter 5 is headed “Parole”. Division 5 is concerned with “amending, suspending or cancelling parole order” with sub-division 2 being headed “Parole board powers generally”. This is to be contrasted with s 341 which falls within division 3, part 13 of chapter 6 of the Corrective Services Act. Chapter 6 is headed “Administration”. Part 13 is headed “Information” and division 3 is headed “Other Provisions About Information”. Section 341(1) identifies persons to whom the section applies. The relevant person is referred to as “an informed person” and encompasses a person who is performing “a function under this Act”. It is common ground between the parties that this would include the appellant and more generally persons dealing with parole under chapter 5 of the Corrective Services Act. Section 341(2) creates an offence provision. It prohibits an informed person from disclosing confidential information acquired by the informed person to anyone else other than under s 341(3). Section 341(3) provides a series of circumstances in which an informed person may disclose confidential information. If an informed person does disclose confidential information in those circumstances, that person does not commit the offence created by s 341(2).
Each of the circumstances identified in s 341(3) creates, in effect, a lawful excuse for an informed person to disclose confidential information. Relevantly for the present appeal, if the appellant was to disclose confidential information for the purposes of giving an information notice under s 208(1), it would not commit an offence under s 341(2) as the disclosure would fall under s 341(3)(a), namely a disclosure “for the purposes of this Act”. While s 341(3) provides a lawful excuse for the appellant to disclose confidential information in giving an information notice pursuant to s 208 there is nothing in the language of s 341(3) which bestows a general discretion not to disclose. The operation of s 341(3), properly construed, is limited to identifying those circumstances in which disclosure of confidential information does not fall within the general prohibition created by s 341(2).
When s 341(3) is viewed in the context of creating circumstances that constitute exceptions to the general prohibition created by s 341(2), the word “may” in s 341(3) cannot be construed as creating a general discretion whether to disclose confidential information where the Corrective Services Act would otherwise require such disclosure. The word “may” in s 341(3) should be construed as being either facilitative or permissive. As correctly submitted by the respondent, the word “may” “… permits the [appellant] to disclose information to comply with its obligation in s 208…, when it would otherwise be prohibited from doing so by s 341(2). It does not give the [appellant] a discretion to avoid that obligation.” If the appellant relies on confidential information as a reason to confirm a decision to suspend or cancel a prisoner’s parole, the appellant is required to comply with ss 208(1) and (4) of the Corrective Services Act and s 27B of the Acts Interpretation Act. Section 341(3) does not relieve the appellant of this obligation.
Justice Brown’s reasoning as to the proper construction of ss 208 and 341 of the Corrective Services Act set out at [21] above is orthodox and does not disclose appealable error. Her Honour’s construction permits the two sections to be read harmoniously. In contrast, the appellant’s construction would impermissibly limit the operation of s 208 in circumstances where there are no express words in either ss 208 or 341 which impose such a limitation nor does such a limitation arise as a matter of necessary implication.
The appeal should therefore be dismissed. In those circumstances, it is unnecessary for the Court to deal with the respondent’s notice of contention. The respondent applies pursuant to s 49 of the Judicial Review Act 1991 (Qld) for an order that the appellant indemnify the respondent’s costs of the appeal. The appellant does not oppose the making of this order. In light of the financial resources of the respondent and the important question of statutory construction raised by the appeal it is appropriate for the Court to make this order.
Disposition
I would make the following orders:
1. Appeal dismissed.
2. Pursuant to s 49(1)(d) of the Judicial Review Act1991 (Qld), the appellant indemnify the respondent in relation to costs properly incurred in the appeal on a party and party basis, from the time the costs application was made.
FREEBURN J: I agree with the reasons prepared by Flanagan JA.
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