Roberts v Attorney-General (Cth)

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FEDERAL COURT OF AUSTRALIA

Roberts v Attorney-General (Cth) [2022] FCA 574   

File number: NSD 128 of 2022
Judgment of: LEE J
Date of judgment: 18 May 2022
Catchwords: ADMINISTRATIVE LAW – application for judicial review of parole decision under s 19AL(1) of the Crimes Act 1914 (Cth) – survey of principles informing federal parole decisions – where applicant unable to access offence-specific treatment in custody – whether Attorney-General failed to consider arguments advanced by applicant – whether decision affected by procedural unfairness – whether decision lacked evident and intelligible justification – where Attorney-General balanced risks of release against risks of refusal of parole – where no material deficiencies in information before Attorney-General – application dismissed
Legislation:

Acts Interpretation Act 1901 (Cth) s 25D

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Crimes Act 1914 (Cth) ss 19AL, 19AKA, 19ALA

Criminal Code Act 1995 (Cth) ss 474.19, 474.24A

Judiciary Act 1903 (Cth) s 39B

Crimes Act 1900 (NSW) s 91H

Cases cited:

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352

Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389

DYS21 v Attorney-General (Cth) [2021] FCA 1331

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Keliher v Attorney-General of the Commonwealth of Australia [2021] FCA 1641

Khawaja v Attorney-General (Cth) [2022] FCA 334

Khazaal v Attorney-General [2020] FCA 448

Lodhi v Attorney-General (Cth) [2020] FCA 1383

Lopez-Avila v K & S Freighters Pty Ltd [2015] FCA 962; (2015) 68 AAR 86

Masri v Attorney-General (Cth) [2022] FCA 17; (2022) 398 ALR 509

Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Minogue v Victoria [2019] HCA 31; (2019) 268 CLR 1

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590

Pulini v Assistant Minister to the Attorney-General (Cth) [2021] FCA 1543; (2021) 397 ALR 192

R v Roberts [2019] NSWDC 282

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212

Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115

Stambe…

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Details
Case
[2022] FCA 574
Decision Date

CaseChat Overview and Summary

The case of Roberts v Attorney-General (Cth) involved a legal challenge by the applicant, Mr Roberts, against the decision of the Attorney-General to refuse his application for parole. Mr Roberts contended that the decision was flawed on several grounds, including procedural unfairness and lack of evident and intelligible justification. The Federal Court of Australia was tasked with reviewing the decision under the relevant provisions of the Crimes Act 1914 (Cth) and the Administrative Appeals Act 1978 (Cth).

The central legal issues before the court were whether the Attorney-General had failed to consider arguments presented by Mr Roberts, whether the decision was affected by procedural unfairness, and whether the decision lacked evident and intelligible justification. The court examined the principles of administrative law relevant to judicial review, including the statutory framework for parole decisions and the broad discretion afforded to the Attorney-General. The court considered whether the Attorney-General's decision to balance the risks of release against the risks of refusal of parole was supported by the evidence and whether the decision-making process was fair.

The court found that the Attorney-General had properly exercised her discretion by considering all relevant factors, including those raised by Mr Roberts. The decision was supported by material evidence and did not exhibit procedural unfairness or lack of justification. The court held that it was not appropriate to conduct merits review of the decision and that the Attorney-General was entitled to rely on departmental advice. The detailed submissions made by Mr Roberts were adequately addressed in the decision-making process, and the decision was well-reasoned and justifiable.

The final order of the court was to dismiss the amended originating application with costs. The court ruled that the application for judicial review was without merit and that the decision of the Attorney-General should be upheld.

Orders

Orders of the court

1. The amended originating application be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 19ALA sets out a non-exhaustive list of matters that may be considered by the Attorney-General in making a decision to grant or refuse parole: 19ALA Matters that may be considered in decisions about parole orders(1)In making a decision under section 19AL in relation to a person, the Attorney‑General may have regard to any of the following matters that are known to the Attorney‑General and relevant to the decision:(a)the risk to the community of releasing the person on parole;(b)the person’s conduct while serving his or her sentence;(c)whether the person has satisfactorily completed program[mes] ordered by a court or recommended by the relevant State or Territory corrective services or parole agency;(d) the likely effect on the victim, or victim’s family, of releasing the person on parole;(e)the nature and circumstances of the offence to which the person’s sentence relates;(f)any comments made by the sentencing court;(g) the person’s criminal history;(h)any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency;(i)the behaviour of the person when subject to any previous parole order or licence;(j)the likelihood that the person will comply with the conditions of the parole order;(k)whether releasing the person on parole is likely to assist the person to adjust to lawful community life;(l)whether the length of the parole period is sufficient to achieve the purposes of parole;(m)any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release.(2)Subsection (1) does not limit the matters that the Attorney‑General may consider in making a decision under section 19AL. As is clear on its face, s 19ALA does not designate any of the matters under s 19ALA(1) as mandatory considerations, nor does it limit the matters to which the Attorney-General may have regard: Lodhi (at [6(d)] per Bromwich J). The broader statutory context also guides the Attorney-General’s task: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 (at 355 [30] per Kiefel, Bell and Keane JJ); Khazaal (at [52]–[53] per Wigney J). That context includes the purposes of parole, being: (a) the protection of the community; (b) the rehabilitation of the offender; and (c) the reintegration of the offender into the community: see s 19AKA of the Crimes Act. Although these purposes “cover different ground”, they “interact and in some respects overlap”: Khawaja (at [15] per Thawley J). The statutory scheme entrusts the Attorney-General with a broad discretion: Lodhi (at [6(c)] per Bromwich J). There is no prescribed procedure the Attorney-General must follow in determining whether to make a parole order, as explained by Wigney J in Khazaal (at [66]):There is certainly no requirement for a hearing, no express requirement for the Attorney to notify the person affected by the decision concerning parole … of any particular information, and no express requirement that the person be given the opportunity to make submissions.

Ratio Decidendi

Legal Principle Established

The Court should, above all, be guided by the overarching purpose of the law concerning procedural fairness, to “avoid practical injustice”: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 (at [37] per Gleeson CJ); Masri (at 517 [26] per Bromwich J). E.2 Consideration In substance, review grounds one and two allege no legal error. Mr Roberts’ contention that the Attorney-General did not adequately address his submissions reflects his subjective and unsurprising view that the Attorney-General did not make the correct decision. This Court cannot indulge in merits review of the Attorney-General’s decision. The remarks of Allsop CJ, Besanko and O’Callaghan JJ in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1 (at 23 [103]–[105]), albeit made in a different statutory context, are instructive. Parliament has made clear that the Attorney-General may refuse to make a parole order, on the condition reasons for the decision are provided, and with the liberty to consider the factors in s 19ALA of the Crimes Act. If the Attorney-General does so, she has properly exercised the jurisdiction entrusted to her. Whether or not another person in the Attorney-General’s position would have come to the same decision is not to the point. A cynic might speculate that the documents recording the decision-making process undertaken by the Attorney-General might suggest that what was going on was some sort of kabuki dance, involving no more than the uncritical adoption of the advice of a departmental officer. But such a submission is not made, and such an inference should not be lightly drawn. The Attorney-General was entitled to obtain assistance from departmental officers, although the relevant question is directed to what the Attorney-General considered, not what members of the Department considered. As noted above, that question may be answered by drawing appropriate inferences from the relevant circumstances, including the Refusal Notice and the material prepared by the Attorney-General’s Department: Khawaja (at [95] per Thawley J). As explained above at [22]–[23], the combined operation of s 19AL(2) of the Crimes Act and s 25D of the AI Act requires only that the Attorney-General “set out” any findings of fact that she did in fact make and considered material to the decision not to grant parole. Each of the four arguments that Mr Roberts alleges were not properly considered by the Attorney-General (enumerated above at [35]) was indeed dealt with on the face of the Refusal Notice, and with considerable depth and care in the Departmental Submission. There is no injustice in having submissions addressed at length in a submission to the Attorney-General, or on the covering page to the Departmental Submission, rather than being explicitly referred to in the Attorney-General’s reasons. What matters is the fact that the submissions were considered by the Attorney-General, not the manner in which that consideration was recorded: Masri (at 517–518 [27] per Bromwich J).