Morgan v Chief Executive of Parole
[2014] QSC 253
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- Notable Unreported Decision
- Morgan v Chief Executive of Parole[2014] QSC 253
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Morgan v Chief Executive of Parole[2014] QSC 253
Morgan v Chief Executive of Parole[2014] QSC 253
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 17 October 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 August 2014 |
JUDGE: | Dalton J |
ORDER: | Set aside the decision to suspend the applicant’s parole order made on 14 August 2014, with effect from the time the decision was made. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FETTERING DISCRETION – where applicant’s urinalysis tested positive for drugs – where guidelines provide for mandatory suspension of a parole order upon positive urinalysis – where power to suspend parole under Corrective Services Act 2006 (Qld) is a discretionary one – where decision-maker did not consider matters outside the guidelines – whether the guidelines are a fetter on the discretion to suspend parole ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the decision-maker had discretion to suspend parole for a period of not more than 28 days – where no consideration given to period for which parole ought to be suspended Corrective Services Act 2006 (Qld) Judicial Review Act 1991 (Qld) Carroll v Sydney City Council (1989) 15 NSWLR 541 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577Neat Domestic Trading Pty Ltd v AWB Limited (2003) 216 CLR 277Seiffert v Prisoner’s Review Board [2011] WASCA 148Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 26 ALD 203 |
APPEARANCES: | Applicant in person G Sammon for the first and second respondents |
SOLICITORS: | Crown Law for the first and second respondent |
[1] The applicant in this matter had legal assistance to file her material but appeared for herself on the hearing of the application. On 19 March 2012 she was convicted of two counts of possessing dangerous drugs and one count of trafficking in dangerous drugs. She was sentenced to imprisonment for a period of three years and released on parole immediately.
[2] The first and second respondents are incorrectly named. The Chief Executive, Department of Justice and Attorney-General appeared by counsel and accepted that the application was properly brought against that office.
[3] On 7 August 2014, as part of her parole conditions, the applicant was subject to a urinalysis test. As part of the test she was asked to declare any medication she had been taking and declared Duromine (Phenterime) and cold and flu tablets. She denied taking any illicit substances. Ms Morgan’s urine was positive for amphetamines and methamphetamines on initial testing and was sent to a Queensland Health Laboratory for further analysis. On 14 August 2014 the Queensland Health Laboratory results were received which confirmed her urine as positive for amphetamines and methylamphetamines. The drugs which the applicant said she took prior to providing the urine sample could not have produced the result.
[4] The officer who received the results from Queensland Health was the same officer who had interviewed Ms Morgan and taken her urine on 7 August 2014, Ms Ball. Her affidavit continues the narrative from this point:
“14. … As per agency procedure a mandatory 28 day suspension of parole for [sic] is applicable for a result which is positive to amphetamines over the Australian Cut-Off Standards of >150ug/L. After further consultation with the District Manager and Regional Manager, the decision to suspend Ms Morgan’s parole order was confirmed and a warrant was issued for her arrest and return to prison for a 28 day period.
15. As I was aware that Ms Morgan had children in her care I telephoned her on 14 August 2014 to advise of the warrant being issued so as to give her the courtesy of preparing alternative child care arrangements. It was considered that she needed to make arrangements for care of children before police arrived to apprehend her on the warrant.”
[5] During the conversation about child care Ms Morgan denied having consumed amphetamines and said she had been out a few nights before the test and that someone must have spiked her drink. I note that this conversation occurred after the decision to suspend parole. The affidavit continues as to further conversations had on 16 August 2014 as to child care after arrest. Ms Ball concludes, at paragraph 20 of her affidavit, “At the end of considering all of the above, I determined that the appropriate consequence for this breach of her parole order was to suspend the order and refer the matters to the Parole Board. Attached and marked FS-11 is a true copy of the warrant for arrest dated 14 August 2014.” Despite the literal terms of this, it could not be the case that the deponent meant she had considered “all of the above”, for the conversation of 16 August 2014 at least occurred after the date the warrant issued. The material is unclear as to whether or not the conversation about the spiked drink occurred before or after the warrant issued, but I think it is quite clear on the material that it occurred after the decision to suspend the parole. Also it is hard to see that this sentence from paragraph 20 is consistent with paragraph 14 of Ms Ball’s affidavit, above. I do not think this sentence from paragraph 20 is reliable. It appears to be taken from Ms Southey’s affidavit, see below.
[6] Ms Ball’s affidavit is poorly drawn. It is imprecise as to the relevant facts. The reference to “FS-11” is a reference to an exhibit to an affidavit of Ms Southey, see below. There are no exhibits to Ms Ball’s affidavit. This, and other indications in the affidavits of Ms Ball and Ms Southey, suggest that they were produced using “copy and paste” techniques. It is important that solicitors drawing affidavits take proper instructions from witnesses and accurately and precisely record the facts that are relevant to the legal questions in issue. If there is more than one witness, this process must be performed independently for each witness: the affidavits they swear must be their evidence, not some amalgam constructed by the solicitor.
[7] The warrant for arrest is dated 14 August 2014. It recites:
“Under Section 201 of the Corrective Services Act 2006, the prisoner’s parole order has been suspended for a period of 28 days from 14/08/2014.”
It is signed by a Carmen Park, District Manager, on behalf of Fiona Southey, Regional Manager.
[8] Fiona Southey swore an affidavit. Ms Southey’s affidavit is also badly drawn. It is so full of bureaucratic terms that it is hard to discern any concrete information from it. One gleans from paragraphs 14, 15, 16 and 20 that on 7 August 2014 she was told that the applicant had tested positive for drugs because it was she who had the delegated power to make decisions to suspend parole orders under s 201 of the Corrective Services Act 2006 (Qld). Ms Southey’s affidavit manages to avoid saying that she made the decision to suspend the applicant’s parole. The closest it gets is at paragraph 21 – she says, “My decision was based on the information the District Office had prepared”. I take it from that, and the fact that the warrant for arrest is signed on her behalf on 14 August 2014, that she did make the decision, and that she made it on or before that day, but it is not clear from her affidavit. Ms Ball’s affidavit is similarly obscure as to this fundamental matter – see the parts extracted from paragraphs 14 and 20 above.
[9] Paragraphs 16-31 of Ms Southey’s affidavit contain a mishmash of information relevant to the merits of the decision to suspend parole; the procedures in the Department for suspending parole, and other material which seems to be the result of Ms Southey’s reviewing the written material relating to the applicant for the purpose of preparing the affidavit. Paragraphs 23, 24, 26 and 27 are all worded as though Ms Southey has obtained the information to put in her affidavit, not as though she had the information before the decision to suspend the applicant’s parole was made. Paragraphs 19 and 30 are similar. They recite (hearsay) that the applicant was advised of her positive test on 14 August 2014 and given the opportunity to explain the result, but Ms Southey does not say that the applicant’s theory that her drink had been spiked was considered before the decision to suspend parole was made, or was indeed relayed to Ms Southey, the decision-maker, before the decision was made.
[10] I do not regard the introductory clause to paragraph 32, “At the end of considering all of the above, I determined that the appropriate consequence for this breach of her parole order was to suspend the order and refer the matter to the Parole Board” as meaning that every fact between paragraphs 16 and 31 was considered by Ms Southey before making the decision to issue the warrant of 14 August 2014. This is not the way the preceding part of the affidavit reads and given how poorly drafted the whole thing is, I would not put much weight on the introductory phrase at paragraph 32. I note that phrase is in exactly the same terms as the introductory phrase in Ms Ball’s affidavit at paragraph 20. I note it appears under the same heading as precedes that phrase in Ms Ball’s affidavit. Further, it is paragraph 20 of Ms Ball’s affidavit that contains the wrong exhibit reference, “FS-11”. As earlier remarked, it seems that one paragraph has been copied into both affidavits.
[11] Paragraph 28 of Ms Southey’s affidavit says, “I am aware that Ms Morgan has never been to prison before and considered this during the decision-making process and the significant consequence her actions would have.” The fact that Ms Southey particularly says she considered this circumstance “during the decision-making process” might indicate that this was in contradistinction to the other matters between paragraphs 16 and 31. On the other hand, that may be attributing too much sophistication to the words used.
[12] Mixed up in all the other information between paragraphs 16 and 31 of Ms Southey’s affidavit is the following paragraph:
“17. Probation and Parole Operational Practice Guidelines specifically outline action required in relation to breaches of order conditions. The Operational Practice Guidelines outline in the Contravention Procedures the following. [sic] ‘Suspension is mandatory upon confirmation of a positive urinalysis for amphetamines, methamphetamines, opiates and/or cocaine unless the offender has provided proof from a medical practitioner that s/he has been prescribed medication or has been recommended to use over‑the‑counter medication that would explain the result. Attached and marked ‘FS-8’ is a copy of this policy document.’”
[13] The guidelines to which Ms Southey refers were exhibited and read as follows:
“SUSPENSION OF PAROLE ORDER
Mandatory suspension
Suspension is mandatory upon confirmation of a positive urinalysis for the below substances unless the offender has provided proof from a medical practitioner that s/he has been prescribed medication or has been recommended to use over-the-counter medication that would explain the result.
•amphetamines
•methamphetamines
•opiates
•cocaine
Notify district/regional manager
An officer is to advise the district manager of the mandatory suspension as soon as practicable after the triggering event. In this instance the district manager is not required to consult the regional manager prior to the suspension. The district manager must notify the regional manager as soon as practicable following the decision to suspend. The regional manager is to acknowledge the mandatory suspension.
Case conference
Consultation with a district manager and endorsement of a decision to suspend a parole order by a regional manager is to be recorded on IOMS. This is conducted by way of a case conference, see Guideline – Case Management Risk Identification & Management.
The case conference must clearly state the reasons for the decision being either:
•The offender has failed to comply with the board ordered parole order or continued failure to comply in relation to a court ordered parole order
•The offender poses a serious risk to another person
•The offender poses an unacceptable risk of re-offending
•The offender is preparing to leave Queensland without permission
•Positive urinalysis confirmation report to amphetamines, methamphetamines, opiates and/or cocaine
Decision made to suspend
The district manager in consultation with the regional manager may suspend a parole order if he/she reasonably believes the offender:
•has failed to comply with the board ordered parole order or continued failure to comply in relation to a court ordered parole order
•poses a serious risk to another person
•poses an unacceptable risk of re-offending
•is preparing to leave Queensland without permission.”
[14] It seems that the guidelines contemplate suspension of a parole order in two circumstances – mandatory suspension upon positive urinalysis, and suspension after a decision according to criteria listed in four dot points in cases where there is no positive urinalysis. Despite its being located between these two alternatives, it seems the information under the heading “Case Conference” applies to both of them – see the five dot points.
[15] The power to suspend parole is found at s 201(2) of the Corrective Services Act 2006 (Qld) which provides:
“201Amendment or suspension
…
(2)The chief executive may, by written order, suspend a parole order if the chief executive reasonably believes the prisoner—
(a)has failed to comply with the parole order; or
(b)poses a serious and immediate risk of harm to someone else; or
(c)poses an unacceptable risk of committing an offence; or
(d)is preparing to leave Queensland, other than under a written order granting the prisoner leave to travel interstate or overseas.
…
(4)A written order suspending a parole order has effect for the period of not more than 28 days, stated in the written order, starting on the day the order is made.”
[16] The conditions of the applicant’s parole order were as follows:
“The prisoner’s release is subject to the following conditions, that the prisoner –
a)be under the supervision of the chief executive, Queensland Corrective Services –
a.until the end of the prisoner’s period of imprisonment; or
b.if the prisoner is being detained in an institution for a period fixed by a judge under the Criminal Law Amendment Act 1945, part 3 – for the period the prisoner was directed to be detained;
b)carry out the chief executive or delegate’s lawful instructions;
c)give a test sample as directed by the chief executive or delegate;
d)report to and receive visits as directed by the chief executive or delegate;
e)notify the chief executive or delegate within 48 hours of any change of address or employment during the parole period;
f)not commit an offence.”
[17] Further, a direction to the applicant was made on 19 March 2012 by Queensland Corrective Services: “In accordance with condition (c) of your parole order … you are hereby directed to abstain from all illicit and prohibited substances and be available and provide a sample for testing as directed by your supervising officer. … All results, including positive results and failure to supply a sample within a reasonable time, will be provided to your supervising officer for appropriate action including contravention action. FAILURE TO COMPLY WITH THIS DIRECTION MAY RESULT IN CONTRAVENTION ACTION.”
[18] The applicant’s case was poorly articulated both in correspondence and on the application for review, but was understood by counsel appearing for the Attorney‑General as being that the decision amounted to an improper exercise of power under s 20(2)(e) of the Judicial Review Act 1991 (Qld) because it was the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case – see s 20(2)(e) and s 23(f) of the Judicial Review Act, and that the applicant had not been afforded natural justice in relation to the decision – see s 20(2)(a) of the Judicial Review Act.
[19] When I raised the ambiguity of Ms Southey’s affidavit – see above – with counsel appearing for the Attorney-General, he could not assist. He said that his position was that Ms Southey had acted in accordance with the guidelines to which she refers at paragraph 17 of that affidavit. Curiously enough, he asserted that she considered other things as well in making her decision. For the reasons already outlined, I do not interpret the affidavit of Ms Southey to say that she did consider things other than the guidelines in making her decision. The exception to that is her express statement at paragraph 28 that she did consider Ms Morgan had never been to prison. However, logically, Ms Southey could not have given any real consideration to that or any other matter except the positive urinalysis if she did in fact apply the guidelines. She may have noted the existence of other circumstances pertinent to Ms Morgan, but if she acted in accordance with the guidelines, nothing but the positive urine result was a real consideration for her in making the decision to suspend parole.
[20] The power to suspend parole is a discretionary one. That discretion must be exercised by the executive reasonably in an administrative law sense. The matter stated at s 23(f) of the Judicial Review Act is part of this broad principle. It is, “the rule that those exercising statutory discretionary power must never place fetters upon the factors they can properly consider when exercising it in individual cases”.[1] In discussing this rule, Aronson, Dyer and Groves say:
“Most of the cases have stressed that the predetermined ‘rule’ must never be so inflexible that the decision maker refuses to listen to an argument for exemption. In other words, the rule against fettering requires guidance rules either to contain their own waiver rule within them, or to be capable of being put to one side where individuals argue against their application to their own cases.” – [5.140]
[21] There are numerous cases to this effect. The New South Wales Court of Appeal in Carroll v Sydney City Council[2] makes it clear that a policy governing a discretionary decision-making power, “needs to be expressed in such a way that it is flexible enough to deal with individual cases …”.
[22] To like effect is the decision of Seiffert v Prisoner’s Review Board: “However, consistently with the principles relating to invalid fetter of a discretionary power, any such policy must admit of the possibility of exception depending on the circumstances of a particular case”.[3]
[23] There are cases to the effect that where there is a policy, “a decision-maker must take care to ensure that he does not slavishly follow a policy and disregard the particular circumstances of a case”.[4] Further as to this see Skoljarev v Australian Fisheries Management Authority: “Absent a statutory provision requiring compliance with the policy, a decision-maker may depart from policy and, in an appropriate case, should do so.”[5] In this case, Ms Southey distinctly did not say that she considered the guidelines, decided that they fettered her, and accordingly considered the individual circumstances of the applicant. As put by counsel appearing for the Attorney, the Crown’s position was that the guidelines were applied. I act on that basis, ie., that the guidelines were applied.
[24] The power to suspend pursuant to s 201(2) of the Corrective Services Act is a discretionary power. The guidelines in evidence before me were a fetter on that power because suspension of parole was the only outcome if there was a positive result on a urine test, unless the person providing the urine was on medication which would account for the result. Suspension of parole had to occur regardless of any other matter pertaining to the circumstances of the individual tested. The decision made pursuant to the guidelines was accordingly invalid at law. To properly exercise the power at s 201(2) of the Act, the delegate would have to consider all relevant matters, not just the guidelines.
[25] A delegate exercising the discretion at s 201(2) of the Act would also have to consider whether or not there had been the occurrence of one of the four matters listed in s 201(2) of the Corrective Services Act 2006. That does not seem to have been done. Instead, what seems to have been considered was whether or not the directive dated 19 March 2012 had been breached. A breach of that directive might not necessarily be the result of, or result in, one of the four factual preconditions at s 201(2) of the Corrective Services Act 2006.
[26] Additionally, under the Act the discretion was to suspend parole for a period “of not more than 28 days”. There is no indication on any of the material here that any consideration at all was given to the period for which parole ought to be suspended. It seems to me that is an additional reason why the making of the decision was improper within the meaning of s 20(2)(e) of the Judicial Review Act.
[27] I am not concerned with the merits of the decision to suspend parole in this case. I am concerned with whether or not the law regarding suspension of parole has been complied with. It seems that it has not. When the liberty of the subject is at stake, it is important that the executive acts properly in accordance with the law. Pursuant to s 30(1)(a)(i) of the Judicial Review Act¸ I set aside the decision to suspend the applicant’s parole order made on 14 August 2014, with effect from the time that decision was made. I note that the warrant was recalled by the Crown soon after this application was made, there is no need for any further order in this regard.
Footnotes
[1] Judicial Review of Administration Action, 4th edition, Aronson, Dyer and Groves [5.120].
[2] (1989) 15 NSWLR 541, 550.
[3] [2011] WASCA 148 [124], citing Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Neat Domestic Trading Pty Ltd v AWB Limited (2003) 216 CLR 277, 289.
[4] Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 26 ALD 203, 208.
[5] (1995) 133 ALR 690, 696.