Parole Board Queensland v McQueen - [2022] QCA 230

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 2020

DIVISION:

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 49

Central 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, followed

COUNSEL:

S R McLeod KC for the appellant
A D Scott and A R Hughes, for the respondent

SOLICITORS:

G R Cooper, Crown Solicitor for the appellant
Jahnke Lawyers for the respondent

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCA 230
Decision Date: 22 November 2022

CaseChat Overview and Summary

The Parole Board Queensland appealed against the decision of the Supreme Court of Queensland to set aside its decision to indefinitely suspend the parole of McQueen, a prisoner serving a life sentence for murder. The primary issue in the appeal was whether the obligation of the Parole Board to provide a prisoner with an information notice advising the reason for the decision to suspend parole is qualified by the requirement not to disclose confidential information. The prisoner had applied for the decision to be set aside on the basis that the Board had not complied with its statutory obligations to advise him of the reason for the decision. The trial judge held that the obligation to provide an information notice was not qualified by the requirement not to disclose confidential information, and dismissed the Board's appeal.

The Court of Appeal considered whether s 341(3) of the Corrective Services Act 2006 (Qld) qualified the obligation of the Board under ss 208(1) and (4) of the Act to give an information notice which advises the reason for the decision. The Board argued that s 341(3) provided a discretion to not release confidential information, and that this qualified the obligation to provide an information notice. However, the Court of Appeal rejected this argument, holding that the correct construction of the Act was to read s 208 together with s 341 to provide a harmonious construction between the provisions. Section 341 prohibited disclosure of confidential information generally but provided an exception to that prohibition in the circumstances outlined in s 341(3). Disclosure of the confidential information would constitute disclosure for the purposes of the Act, namely, to comply with the Board's obligations to provide an information notice complying with s 208 of the Act. The Court of Appeal held that there was no qualification 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.

The appeal was dismissed, and the Parole Board was ordered to 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.

Orders

Orders of the court

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.

Background

Background to the litigation

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.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.

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 2020
DIVISION:	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 49 Central 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, followed
COUNSEL:	S R McLeod KC for the appellant A D Scott and A R Hughes, for the respondent
SOLICITORS:	G R Cooper, Crown Solicitor for the appellant Jahnke Lawyers for the respondent