Phillips v Parole Board Queensland

Link copied
Case Copied 14 min read

SUPREME COURT OF QUEENSLAND

CITATION:

Phillips v Parole Board Queensland [2024] QSC 275

PARTIES:

ANTHONY PHILLIPS

(applicant)

v
PAROLE BOARD QUEENSLAND

(respondent)

FILE NO:

BS 10309 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application for judicial review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 November 2024

DELIVERED AT:

Brisbane

HEARING DATES:

31 October 2024, 7 November 2024

JUDGE:

Hindman J

ORDERS:

1.   The application for a statutory order of review is dismissed. 

2.   No order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the applicant seeks a statutory order of review of the respondent’s decision to refuse his application for a parole order – where the applicant is serving a sentence of imprisonment of 14 years and 9 months for offences including manslaughter, property offences and motor vehicle related offences – where the applicant became eligible for parole on 12 June 2024 – where the applicant’s application for parole was refused on the ground that the risk the applicant presented to the community was unacceptably high, having regard to the applicant’s criminal history, previous community-based supervision and custodial behaviour – where the respondent considered confidential intelligence information in an unredacted form in reaching their refusal decision – where the applicant was provided with the some parts of the confidential intelligence information in a redacted form – whether there was a denial of procedural fairness – whether there was a failure to take into account relevant matters

Batts v Department of Corrective Services [2002] QSC 206, cited
Boyy v Parole Board Queensland [2018] QSC 175, cited
Hickson v Parole Board Queensland [2024] QSC 133, cited
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) CLR 24; [1986] HCA 40, cited
Nicholson v Parole Board Queensland [2024] QSC 232, cited

Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, cited

Corrective Services Act 2006 (Qld) s. 193

Judicial Review Act 1991 (Qld) ss. 20, 23

COUNSEL:

The applicant appeared on his own behalf
B McMillan for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Parole Board Queensland Legal Services for the respondent

Introduction

  1. The applicant makes a judicial review application under the Judicial Review Act 1991 (Qld) (JRA) in relation to a decision of the respondent (Parole Board / Board) on 3 July 2024 (made pursuant to s. 193(1) of the Corrective Services Act 2006 (Qld) CSA( ))to refuse to grant the applicant’s application for a parole order (Refusal Decision).

  2. The applicant is serving a sentence of imprisonment of 14 years and 9 months for offences including manslaughter.  He has been incarcerated now for over 8 years.  He became eligible for parole on 12 June 2024.  This was his first application for a parole order.  

  3. A judicial review application is not a…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Phillips v Parole Board Queensland and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2024] QSC 275
Decision Date

CaseChat Overview and Summary

In the case of Phillips v Parole Board Queensland, the applicant, currently serving a sentence of 14 years and 9 months for various offences including manslaughter, property offences, and motor vehicle related offences, challenged the decision of the respondent, the Parole Board of Queensland, to refuse his application for a parole order. The applicant was deemed eligible for parole on 12 June 2024 and his application was refused on the basis that the risk he presented to the community was unacceptably high due to his criminal history, previous community-based supervision, and custodial behaviour. The applicant argued that he was denied procedural fairness as the respondent considered confidential intelligence information in an unredacted form while he was only provided with some parts of this information in a redacted form.

The court examined several grounds for review, including whether there was a denial of procedural fairness, a failure to take into account relevant matters, an improper exercise of power, and whether the refusal decision was legally unreasonable. The court found that the claim for public interest immunity over the redactions in the information note was upheld, and that the applicant was fairly put on notice of the issues of substance that might be relevant for the Board to consider. The court also found that the matters considered by the Board, including the applicant's custodial behaviour and participation in a riot, were relevant and that there was sufficient evidence to justify the Board's decision. The court further determined that the Board did not make the refusal decision on the basis of the applicant's refusal to undertake certain courses and that the decision was not legally unreasonable.

The court dismissed the applicant's application for a statutory order of review and made no order as to costs. The applicant's argument that the refusal decision was unreasonable and lacked sufficient evidence was not substantiated, and the court concluded that the Board's decision was within its discretion and not subject to judicial interference. The applicant's challenge to the Board's consideration of confidential information and the redacted nature of the information provided to him was also found to be unfounded, as the Board's process was deemed to be in accordance with the principles of natural justice.

Orders

Orders of the court

1. The application for a statutory order of review is dismissed.

2. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ground 3 is not made out. Ground 4: no evidence to justify the decision The conclusion of the applicant’s outline of submissions asserts that “there is no evidence or other material to justify the making of the decision”. The basis for such a submission has not been further articulated by the applicant. The Statement of Reasons sets out in a reasonably detailed way from [30]-[129] the evidence that justifies the findings of fact made by the Board at [12]-[29] of the Statement of Reasons. The Refusal Decision is further explained at [130]-[151] of the Statement of Reasons. Ground 4 is not made out. Ground 5: improper exercise of the power It appeared to me that ground 5, which arises in [14] of the applicant’s outline of submissions, was abandoned by the applicant during the oral hearing when he was directed to consider particular documents in evidence. Regardless, I will mention the ground briefly. The ground rested on propositions that: (a)the Board had failed to take into account a relevant principle derived from the decision in Batts v Department of Corrective Services [2002] QSC 206 at [14] to the effect that to refuse to grant a remission solely on the basis that a prisoner fails to undertake a particular course is an entirely improper exercise of power; (b)here the Board made the Refusal Decision on the basis that the applicant had refused to undertake particular courses (he agreed he has refused to undertake particular courses but says that refusal has been for good reason associated with maintaining his safety). The applicant was unable to demonstrate by reference to the evidence that in fact the Board made the Refusal Decision on the basis that the applicant had refused to undertake particular courses to address outstanding treatment needs. Whilst the Board did encourage the applicant to consider undertaking certain courses,[21] it specifically recorded at [96] of the Statement of Reasons that: Whilst the Board was conscious that completing the recommended programs in custody was not a requirement of parole, it may give the Board confidence that you may be a lower risk of violence offending and present a lower risk to the community.[21] See for example at [42] of the Statement of Reasons. It is clear to me having read the Board’s preliminary view letter, the letter of 15 July 2024 containing the Refusal Decision and the Statement of Reasons, that the Board did not make the Refusal Decision on the basis of the applicant’s refusal to undertake certain recommended courses in custody. Ground 5 is not made out. Ground 6: the Refusal Decision is (legally) unreasonable The applicant’s application for a statutory order of review and outline of submissions assert that the Refusal Decision is unreasonable. No attempt has been made by the applicant to demonstrate how the Refusal Decision is legally unreasonable in a way that would justify the relief sought by the applicant in the proceeding. The principles to be applied in respect of legal unreasonableness in a judicial review of a decision regarding an application for a parole order are set out by Bowskill CJ in Nicholson v Parole Board Queensland [2024] QSC 232 from [39]-[52]. It noteworthy that the decision at [43] provides (footnotes omitted): … the test for unreasonableness is necessarily stringent because “the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”. It is strictly supervisory; it does not involve the court reviewing the merits of the decision under the guise of an evaluation of reasonableness nor does it involve the court substituting its own view as to how the discretion should be exercised.

Decision

Reasons for decision

The applicant seeks an order directing that the respondent reconsider the Refusal Decision according to law within a period of 7 days, plus costs. The only recoverable costs that have been incurred by the applicant is the payment of the filing fee. Summary of relevant decision history The applicant applied for a parole order on 20 December 2023, received by the Board on 21 December 2023 (Application). On 27 May 2024, the Board sent the applicant correspondence stating that the Board had considered the Application (on 26 February 2024) and had formed a preliminary view that the Application should be refused and that a non-reapply period would be decided. The Board included with that correspondence a copy of the documents that had been considered by the Board. One of the documents, an information note produced by Corrective Services, was partially redacted. The Board’s correspondence invited the applicant to make further written submissions before the Board made its final decision. The applicant did so. On 3 July 2024, the Board met and considered the Application and made the Refusal Decision. The applicant was informed of the Refusal Decision by a letter dated 15 July 2024. This proceeding was commenced on 5 August 2024. A statement of reasons for the Refusal Decision (Statement of Reasons) was provided on 21 August 2024. Ground 1: (material) denial of natural justice and procedural fairness This ground concerns the fact that the Board had and considered the information note mentioned at [8] above in an unredacted form, but that the applicant was only provided with the information note in a redacted form. The applicant says he was thereby (materially) denied natural justice in the decision making process. The information note was provided to the applicant in a redacted form only as a consequence of a claim of public interest immunity being maintained in relation to the redacted portions of that document. In this proceeding the applicant challenged the claim for public interest immunity. The respondent relied upon a partially redacted affidavit of Julie Sharp in support of the claim for public interest immunity over the redactions in both documents (the information note and the affidavit itself). On 7 November 2024, during the hearing of this proceeding, I heard submissions about the claim, and upheld the claim for public interest immunity (without finding it necessary to consider the unredacted version of either document), and I provided ex tempore reasons for that decision which are unnecessary to repeat here. The fact that the applicant did not in the parole order application process have the benefit of having access to the unredacted form of the information note that was before the Board, does not automatically mean that there was a denial of natural justice. The obligation to afford natural justice to an applicant in such a situation must be moulded to accommodate the public interest immunity claim. I consider that the Board did so here. Having now perused the redacted material for myself (as I was invited to do so by the Board for the purpose of undertaking this analysis) I am satisfied that: (a)the information note has been redacted only to the extent necessary to maintain the properly claimed public interest immunity; (b)the Board’s preliminary view letter set out the substance of the issues that were raised by the information note and invited submissions from the applicant regarding the same;[9] (c)the unredacted parts of the information note that the applicant was provided with, that the applicant was able to address by way of further submissions (which he did), fairly put the applicant on notice of the issues of substance that might be relevant for the Board to consider. [9] At page 10 of the letter under the heading Custodial Behaviour, 21 December 2023.

Ratio Decidendi

Legal Principle Established

Ground 2 is not made out. Ground 3: an irrelevant consideration was taken into account / too much weight given to the consideration In the applicant’s oral submissions it became clear that the applicant was concerned that the Board had given any or too much weight to issues that had arisen in custody that he himself considered “historical” (that is, more than 5 years old). Two matters were mentioned falling into that category: (a)his accepted “poor” custodial behaviour in the early stages of his sentence; (b)specifically his custodial history of participating in a riot situation that occurred on 18 August 2016. Those matters are plainly relevant matters for the Board to have considered. As above, issues of weight are for the Board, and are not a proper ground of review. Ground 3 is not made out. Ground 4: no evidence to justify the decision The conclusion of the applicant’s outline of submissions asserts that “there is no evidence or other material to justify the making of the decision”. The basis for such a submission has not been further articulated by the applicant. The Statement of Reasons sets out in a reasonably detailed way from [30]-[129] the evidence that justifies the findings of fact made by the Board at [12]-[29] of the Statement of Reasons. The Refusal Decision is further explained at [130]-[151] of the Statement of Reasons. Ground 4 is not made out. Ground 5: improper exercise of the power It appeared to me that ground 5, which arises in [14] of the applicant’s outline of submissions, was abandoned by the applicant during the oral hearing when he was directed to consider particular documents in evidence. Regardless, I will mention the ground briefly. The ground rested on propositions that: (a)the Board had failed to take into account a relevant principle derived from the decision in Batts v Department of Corrective Services [2002] QSC 206 at [14] to the effect that to refuse to grant a remission solely on the basis that a prisoner fails to undertake a particular course is an entirely improper exercise of power; (b)here the Board made the Refusal Decision on the basis that the applicant had refused to undertake particular courses (he agreed he has refused to undertake particular courses but says that refusal has been for good reason associated with maintaining his safety). The applicant was unable to demonstrate by reference to the evidence that in fact the Board made the Refusal Decision on the basis that the applicant had refused to undertake particular courses to address outstanding treatment needs. Whilst the Board did encourage the applicant to consider undertaking certain courses,[21] it specifically recorded at [96] of the Statement of Reasons that: Whilst the Board was conscious that completing the recommended programs in custody was not a requirement of parole, it may give the Board confidence that you may be a lower risk of violence offending and present a lower risk to the community.[21] See for example at [42] of the Statement of Reasons.