Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QSC
  3. 2022
  4. McQueen v Parole Board Queensland - [2022] QSC 27

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • Appeal Determined (QCA)

McQueen v Parole Board Queensland[2022] QSC 27

Reported at (2022) 11 QR 481

McQueen v Parole Board Queensland[2022] QSC 27

Reported at (2022) 11 QR 481

SUPREME COURT OF QUEENSLAND

CITATION:

McQueen v Parole Board Queensland [2022] QSC 27

PARTIES:

ALLAN DAVID McQUEEN

(applicant)

v

PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

BS 10230 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2021

Further hearings – 1 February, 14 March 2022

Further submissions – 16, 23, 24 March 2022

JUDGE:

Brown J

ORDER:

The Order of the Court is that:

  1. The decisions of 20 December 2021 and 7 February 2022 be set aside. The respondent is directed to remake the decision under s 208 of the Act according to law.
  2. The respondent should pay the applicant’s costs of and incidental to the application on the standard basis.
  3. The parties have liberty to apply on three business days’ notice.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – NATURAL JUSTICE – where the applicant applies for judicial review of a decision of the respondent to refuse his application for parole – where the respondent made a decision to indefinitely suspend the applicant’s parole – where the applicant contends that it has a unqualified statutory right to be given reasons–where the respondent restricted the reasons on the basis of confidential information – whether the respondent has proceeded an erroneous basis and failed to provide an information notice in accordance with the Act

Acts Interpretation Act 1954 (Qld) ss 4, 13, 14A, 27B, 32CA

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 13A, 14

Corrective Services Act 2006 (Qld) ss 13, 15, 16, 17, 61, 116, 208, 205, 208B, 208C, 242E, 290, 341

Corrective Services Bill 2006 (Qld)

Judicial Review Act 1991 (Qld) ss 35, 36

Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, cited

Ashley v Southern Queensland Regional Parole Board [2010] QSC 437, considered

Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667, cited

Baker v Campbell (1983) 153 CLR 52, cited

Central and Northern Queensland Regional Parole Board v Finn [2018] QCA 47, considered

Chalkley v Southern Queensland Regional Board [2016] QSC 236, considered

Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 44, cited

Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595, cited

Commissioner of Police, New South Wales v Guo (2016) 332 ALR 236, cited

Finn v Central and Northern Queensland Regional Board [2016] QSC 233, considered

Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, cited

Gold Coast City Council v Sunland Group Ltd [2019] QCA 118, considered

Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532, cited

Harms v Queensland Parole Board [2008] QSC 163, considered

HT v R (2019) 269 CLR 403, considered

Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, cited

Kioa v West (1985) 159 CLR 550, considered

McQueen v Parole Board of Queensland [2018] QSC 216, considered 

McLaren v Rallings [2015] 1 Qd R 438, cited

Middendorp Electric Co Pty Ltd v Law Institute of Victoria and Anor [1994] 2 VR 313, cited

Minister for Immigration and Border Protection v Kumar (2017) 260 CLR 267, cited

Oak Valley (Maralinga) Inc v Aboriginal and Torres Strait Islander Commission (1999) 98 FCR 1, cited

Onea v Chief Executive Department of Corrective Services [2002] QSC 420, considered

R v A2 (2019) 269 CLR 507, considered

R v Holley: ex parte Attorney-General (Qld) [1997] 2 Qd R 407, cited

R v Wassmuth; ex parte Attorney-General (Qld) [2022] QCA 113, cited

Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183, considered

Re Smith [1990] QSC 312, considered

Sabag v Health Care Complaints Commission [2001] NSWCA 411, considered

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, considered

Samad v District Court of New South Wales (2002) 209 CLR 140, considered

Sankey v Whitlam (1976) 142 CLR 1, cited

Ward v Williams (1954-1955) 92 CLR 505, cited

COUNSEL:

A D Scott for the applicant

S A McLeod for the respondent

SOLICITORS:

Jahnke Lawyers for the applicant

Crown Law for the respondent

  1. [1]
    Mr McQueen (the applicant) has been in custody since June 2020 following which a decision was made by the Parole Board Queensland (the respondent) on 15 June 2020 to suspend his parole indefinitely after he was arrested driving a vehicle in June 2020. The respondent has since that time refused to vary its decision of 15 June 2020 to suspend his parole on a number of occasions for varying reasons.
  2. [2]
    The principal question for this Court is whether the respondent complied with its statutory obligations under s 208 of the Corrective Services Act 2006 (Qld) (the Act), particularly in providing the applicant with the required information notice dated 24 September 2021. If the respondent did not provide an information notice in accordance with s 208 of the Act that would invalidate decisions of the respondent of 20 December 2021 and 7 February 2022 purportedly made under s 208(2) of the Act.
  3. [3]
    However, there are a number of subsidiary issues that are required to be considered in order to answer that question, namely:
    1. (a)
      should the requirements of s 208 of the Act in relation to the provision of reasons be treated as having the same flexibility as the requirements to accord procedural fairness under the common law right of natural justice;
    2. (b)
      does the respondent have a discretion to determine what fairness requires in terms of disclosure of confidential information in providing reasons, findings of material facts and evidence relied upon by the respondent in discharging its obligations under s 208 by virtue of s 341 of the Act; and
    3. (c)
      whether public interest immunity is “picked up” by s 341 of the Act or excluded by s 208 of the Act.

Background to the application

  1. [4]
    I heard a judicial review application for the review of several decisions by the respondent on 13 September 2021. The applicant was self-represented at the time. At the time I expressed surprise that the matter had been set down only some ten days before the applicant was due to go on trial on charges which followed events in June 2020, in circumstances where those charges were one of the matters taken into account by the respondent when he was suspended.[1] In particular, the respondent had advised the applicant on 23 July 2021 that it was awaiting the outcome of outstanding Court matters before making a determination.  
  2. [5]
    No evidence was subsequently offered by the Director of Public Prosecutions and the charges were dismissed by the Magistrate on 23 September 2021.  The respondent determined on 24 September 2021 that it would not vary the decision to suspend the applicant’s parole indefinitely.
  3. [6]
    When the Court notified the parties in December 2021 that it was going to hand down its decision, it was then advised by the respondent’s legal representative that the respondent had agreed to the applicant’s request to reopen the proceedings and to his amending his judicial review application to challenge the decision of 24 September 2021. That had been agreed some weeks prior to the Court being notified. At the time the applicant was self-represented. Given it was the operative decision of the respondent and for reasons outlined at the time, I determined it was in the interests of justice to proceed in the way agreed. I made directions to hear the matter on an expedited basis in early February 2022.
  4. [7]
    Notwithstanding I confirmed with the parties at the February 2022 hearing that the September 2021 decision was the operative decision which the Court had to consider, I was subsequently notified that the respondent had made further decisions of 20 December 2021 and of 7 February 2022, that the applicant wished to amend his judicial review application and the parties wanted to make further submissions. The failure to bring the Court’s attention to those decisions was highly unsatisfactory, although I accept it was a matter of oversight on behalf of the instructing lawyers for both sides. That is of little comfort however to the applicant. Conscious that the respondent had the benefit of legal representation and that the parties agreed that the December 2021 and/or February 2022 decisions were the operative decisions, I gave leave for the applicant to file a further amended application and for the parties to provide further submissions. That of course resulted in consideration of the matter being delayed.
  5. [8]
    The applicant now seeks review of the decisions of 20 December 2021 and 7 February 2022 on the basis that the respondent has failed to comply with the procedures required by s 208(1) of the Act to provide an information notice as provided for in s 208(4) of the Act.
  6. [9]
    The parties agree if the applicant is successful in his challenge to the decision of 24 September 2021, the decisions of 20 December 2021 and 7 February 2022 should be set aside. It is necessary therefore to consider the arguments raised in the original hearing as well as the additional arguments raised in the supplementary submissions.

The decisions of the respondent

  1. [10]
    The applicant is serving a sentence of life imprisonment for the offence of murder.  The applicant’s current parole order commenced on 1 November 2018 and was most recently amended on 25 October 2019.
  2. [11]
    On 23 July 2019, the respondent made a decision to indefinitely suspend the applicant’s parole order.  On 12 November 2019, the respondent made a decision to cancel the order suspending the applicant’s parole order.  The applicant was re-released to parole on 26 November 2019.
  3. [12]
    On 18 March 2020, the respondent suspended the applicant’s parole order for ongoing disengagement from order conditions and illicit substance abuse. 
  4. [13]
    On 28 April 2020, the respondent determined it would cancel the suspension, which took effect on 12 May 2020.
  5. [14]
    On 11 June 2020, the applicant was charged with possessing tainted property and driving while a relevant drug is present in blood or saliva.  The applicant was remanded in custody.  Queensland Corrective Services (QCS) advised the respondent of the charges and of the following matters, namely that:
    1. (a)
      the applicant was listed as a respondent on a current Domestic Violence Order which remains in force until 23 July 2024, although there was no information suggesting the applicant had contravened the order during the current period of supervision;
    2. (b)
      in accordance with order (j) of the Parole order, the applicant was fitted with an Electronic Monitoring device.  Despite signing the relevant directions indicating he would engage with all Electronic Monitoring requirements, he failed to charge it on 22 May 2020.  Once called, he placed his device on charge within 10 minutes;
    3. (c)
      the applicant contravened his curfew condition (p) on 12 May 2020, by failing to allow enough time to be home by 9:00pm and arrived at 9:12pm at his inclusion zone;
    4. (d)
      the applicant has continued to engage with pro-criminal associates; and
    5. (e)
      the applicant has engaged with a forensic psychologist and had a future session booked for 30 June 2020.
  6. [15]
    The recommendation of QCS was that the applicant was deemed to pose an unacceptable risk of committing a further offence, that his parole order be suspended, and he show cause as to why the order should not be cancelled.
  7. [16]
    On 11 June 2020, a prescribed member of the respondent made a decision to indefinitely suspend the applicant’s parole pursuant to s 208B(5) of the Act.
  8. [17]
    On 15 June 2020, the respondent confirmed the decision of the member to indefinitely suspend the applicant’s parole pursuant to s 208C(1) of the Act.
  9. [18]
    The respondent issued an information notice to the applicant on 23 June 2020, setting out the reasons for the decision.  The respondent stated that the facts and evidence informing its decision to confirm the decision of 11 June 2020 was that the respondent was informed that:
    1. (a)
      the applicant allegedly committed further offences, namely possess tainted property and driving while a relevant drug is present in blood and saliva on 11 June 2020;
    2. (b)
      the applicant failed to charge his electronic monitoring device on 22 May 2020 in breach of his parole condition (j);
    3. (c)
      the applicant failed to comply with his curfew on 12 May 2020 in breach of his parole condition (p);
    4. (d)
      the applicant was re-released on parole on 12 May 2020 following a suspension on 16 March 2020, and a previous suspension on 4 April 2019 was lifted on 2 July 2019;
    5. (e)
      there was a link between the applicant’s substance abuse and past offending, including offences of violence and engagement in organised crime for financial gain;
    6. (f)
      the applicant’s monitoring device indicated his association with pro-criminal associates;
    7. (g)
      the respondent possessed confidential information, the disclosure of which was not in the public interest;
    8. (h)
      the applicant failed to keep his electronic monitoring device charged on 22 May 2020 and breached his curfew condition on 12 May 2020, but otherwise had been compliant with his parole order; and
    9. (i)
      The applicant had engaged with a forensic psychologist and had a future session booked for 30 June 2020.
  10. [19]
    The respondent concluded that it reasonably believed that the applicant posed an unacceptable risk of committing an offence and that the applicant failed to comply with conditions of his parole.  The respondent requested that the applicant show cause and provide submissions within 21 days as to why the respondent should change its decision.  The respondent received the applicant’s show cause submission on 24 July 2020.

Decision of the respondent on 18 August 2020

  1. [20]
    The respondent met on 18 August 2020 to consider the decision to indefinitely suspend the applicant’s parole order.
  2. [21]
    The respondent determined not to vary its decision of 15 June 2020 to suspend the applicant’s parole for an indefinite period.  The respondent issued an information notice to the applicant on 25 August 2020 and wrote to the applicant giving notice of its decision. 
  3. [22]
    At its meeting on 18 August 2020, the respondent “amended” the information notice to remove the reference to offences of violence and engagement in organised crime for financial gain.  The respondent otherwise stated that it reasonably believed the applicant posed an unacceptable risk of committing an offence and that he failed to comply with conditions of his parole order.  The respondent invited the applicant to show cause by providing submissions within 21 days as to why the respondent should change its decision.
  4. [23]
    In a letter dated 25 August 2020, the respondent advised the applicant of its decision not to vary the suspension.
  5. [24]
    The respondent again considered the applicant’s parole suspension on 22 January 2021 and decided not to vary its 11 June 2020 decision.
  6. [25]
    On 21 January 2021, QPS offered no evidence in relation to the applicant’s charge of possessing tainted property and the charge was discontinued.  The Verdict and Judgment Record was before the respondent. According to the respondent’s letter of 8 February 2021, the respondent met on 5 February 2021 and determined not to vary its decision of 15 June 2020. 
  7. [26]
    On 20 April 2021, the respondent again determined not to vary the decision to suspend the applicant’s parole indefinitely.

Decision of the respondent on 23 July 2021

  1. [27]
    On 23 July 2021, the respondent decided not to vary the decision of 15 June 2020. 
  2. [28]
    The respondent stated that it had determined that it would not vary its decision of 15 June 2020 to indefinitely suspend the parole order and was awaiting the outcome of the outstanding court matters before making a determination. 

Decision of the respondent on 24 September 2021

  1. [29]
    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.”

  1. [30]
    According to a statement of reasons dated 24 December 2021, the respondent was informed of the contents of intelligence materials provided to it by QCS, including one Intelligence Report, one Information Note and an Intelligence Assessment. 
  2. [31]
    Paragraphs 71 to 73 of the statement of reasons stated as follows:

“71. In making its decision, the Board placed significant weight on the contents of these materials, in particular the Intelligence Assessment.

  1. 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.
  1. Having considered the intelligence material, the Board requested further information.  The nature of those requests for information have not been disclosed to you.”
  1. [32]
    The respondent stated that it had formed the view that the substance of the material or main factors adverse to the applicant contained in the intelligence material could not be disclosed to him as it considered the disclosure of the information would undermine community safety to a significant degree.  The respondent further stated:

“The Board formed the view that the nature of the Board’s requests for information cannot be disclosed to you having regard to factors outlined in Ministerial Guideline 3.3.”

  1. [33]
    The conclusion of the statement of reasons at paragraph 79 was in the following terms:

“79. Notwithstanding the fact:

a. your outstanding charges in relation to the events of 11 June 2020 have been finalised;

b. you have suitable accommodation at 32 Gorman Street, Darling Heights with family support; and

c. your submissions;

having regard to the totality of matters, including:

a. your history of offending and the fact your parole order has been suspended by the Board on a number of occasions;

b. your conviction for driving while a relevant drug is present in blood or saliva and your contravention of a domestic violence order;

c. your misuse of the Prisoner Telephone System (identified by your conviction for contravention of a domestic violence order); and

d. adverse intelligence reports raising various concerns about your risk to community safety

the Board reasonably believes that you pose an unacceptable risk of committing an offence as per section 205(2)(a)(iii) of the Corrective Services Act 2006.  Accordingly, the Board decided not to vary its decision of 15 June 2020 to suspend your parole order.

You were provided with an information notice dated 24 September 2021 which invited you to show cause by written submission to the Parole Board Queensland within 21 days after the notice is given, why the Parole Board Queensland should change the decision.”

Decision of the respondent on 20 December 2021

  1. [34]
    In its decision of 20 December 2021, the respondent again stated that it decided not to vary its decision of 15 June 2020. It stated that the applicant’s proposed accommodation was unsuitable for the purposes of parole and further that “There is confidential information, that it is not in the public interest to disclose at this time.” It also stated that it would await the outcome of the outstanding court matters before making a further determination on the suspension matter. Notwithstanding that the applicant had been discharged in relation to the charges in respect of possessing tainted property, the respondent stated:

“Additionally, the Board requests you that (sic) show cause, in writing, in relation to the incident dated 11 June 2020 whereby you were the sole occupant of a vehicle with $98,000 cash. The Board notes the conflicting versions that have been provided by you to date. The Board acknowledges that the charges in relation to this incident have been discontinued however as you are aware, the Board can take into account all relevant materials whether subject of charges or not.”

  1. [35]
    On Board made a decision that on 7 February 2022 it had considered the matter and decided not to vary its decision to indefinitely suspend the applicant’s parole and would await the outcome of the matter before the Court.
  2. [36]
    Following a request being made for a statement of reasons the respondent provided reasons on 8 March 2022 to the applicant’s solicitors. Given the reasons were not the subject of further submissions by the parties I will not set them out in detail.The reasons concluded that:

“After considering the submissions made by you and on your behalf, your criminal history, your outstanding Court matters, confidential information and all other material held by the Board, the Board decided not to vary its decision of 15 June 2020 to suspend your parole order granted to you which commenced on 1 November 2018. The Board reasonably believes that you pose an unacceptable risk of committing an offence as per section 205(2)(a)(iii) of the Corrective Services Act 2006.

You were informed of the Board’s decision by way of correspondence dated 21 December 2021.”

Contentions

  1. [37]
    It is submitted on behalf of the applicant that at no time has the respondent ever given the applicant an information notice that complies with s 208 of the Act because:
    1. (a)
      the information notice did not provide reasons for the decision together with findings on material questions of fact and evidence or other material on which those findings were based, particularly because purported information notices of 23 June 2020, 25 August 2020 and those that followed stated the respondent’s belief that the applicant was an unacceptable risk of committing a further offence without articulating the reasons for that belief and result. Further it referred to confidential information and did not identify the information nor the role that it played in the respondent’s “path of reasoning” to its conclusion that the applicant posed an unacceptable risk and referenced matters of which the respondent was informed without identifying the role of that information in the respondent’s conclusion;
    2. (b)
      the letter of 22 January 2021 both informed the applicant of a decision to confirm the suspension of the applicant’s parole order at the same time as inviting the applicant to “show cause” when s 208 of the Act provides for a two-step process of providing an information notice setting out the respondent’s decision to suspend the parole order, inviting the prisoner to show cause and after consideration of any submissions by the applicant, a written information notice advising the prisoner of whether or not it had decided to change its decision;
    3. (c)
      no valid information notice preceded the respondent’s decisions of 21 April 2021, 23 July 2021 and 24 September 2021 and 20 December 2021 before the respondent purported to make its purported decisions to confirm the suspension of the applicant’s parole.
  2. [38]
    Focussing specifically on the purported information notice of 24 September 2021, the applicant contends that:
    1. (a)
      the notice sets out the respondent’s decision of 24 September 2021 not to vary its decision of 15 June 2020, demonstrating the respondent had already made its decision under s 208(2) of the Act without first having given the applicant an information notice and inviting the applicant to “show cause” before determining whether or not to change the decision;
    2. (b)
      set out matters of which the respondent was “informed” without setting out any findings  of material facts and the evidence or material relied upon;
    3. (c)
      concluded that the respondent reasonably believed the applicant posed an unacceptable risk of committing an offence without setting out any path of reasoning. In that regard the applicant’s counsel pointed to the statement of reasons provided in respect of the 24 September 2021 decision on 24 December 2021 set out material findings of fact and reasons not referred to in the 24 September 2021 information notice demonstrated the deficiencies of the 24 September 2021 notice. Further the reasons stated the respondent had placed significant weight upon intelligence material and “formed the view that the intelligence raises significant concerns that you would pose an unacceptable risk of committing a further offence if re-released into the community” without setting out any reasons it held that view of what findings of fact it made; and
    4. (d)
      the information invites the applicant to “show cause” when it had already stated it had determined that it would not change its decision, contrary to s 208.
  3. [39]
    The applicant submits that the 20 December 2021 decision appears to purport to be a final decision under s 208(2) of the Act and therefore depends upon whether the 24 September 2021 notice was a valid information notice. It further contends that the respondent in the letter conveying the 20 December 2021 decision requests the applicant to show cause in relation to the event for which charges were discontinued for the second occasion on 24 September 2021, when it has no statutory power to do so.
  4. [40]
    The applicant contends however that it does not appear to form part of the reasons why the respondent made its decision. While the respondent disputes that it lacks the statutory power to ask the prisoner to “show cause” in the terms it did, it agrees that it does not form part of the reasons for the decision insofar as it requires an explanation by the applicant at a future time.
  5. [41]
    The respondent accepts that the operative decision is the 20 December 2021 decision and that the validity of the 20 December 2021 decision is dependent on whether the 24 September 2021 notice complied with s 208 of the Act. In light of this concession, I do not need to consider whether the previous decisions and information notices complied with the Act.
  6. [42]
    The applicant contends that the Act has expressly abrogated the common law principles of natural justice in relation to decisions to suspend parole and provided a statutory obligation in s 208 of the Act to give reasons, which the respondent must comply with in its stead.  In particular, the applicant contends that the obligation to provide the information referred to in the information notice it is not subject to a qualification that the information notice does not have to include information that the respondent regards as confidential or that it considers would be contrary to the public interest to disclose.
  7. [43]
    As the obligation is not a natural justice obligation, the applicant contends that the reliance by the respondent on the Ministerial Guidelines and use of confidential information was misconceived. It further contends that the disclosure of the confidential information was “for the purposes of the Act” and s 341 of the Act does not excuse the non-disclosure of confidential information under the obligation in s 208 of the Act, nor is there any other qualification to be read into s 208 and the obligation to provide reasons, particularly given the beneficial nature of the duty involving the liberty of the subject.
  8. [44]
    While the respondent agrees that the requirement to give an information notice is a creature of the Act and the rights of a prisoner are confined to the requirements imposed by s 208 of the Act, it submits that the extent to which it is required to advise the applicant of the reason for the decision in the information notice will depend upon what reason is relied upon and that it is not obliged under the Act to provide reasons which would disclose confidential information.
  9. [45]
    As to s 341 of the Act, the respondent contends that it provides it with a discretion which can result in the respondent determining that it will not disclose any confidential information in the information notice required to be given under s 208 of the Act.  While the respondent accepts that an information notice is required to advise the applicant of the reasons for the decision to indefinitely suspend his parole order, it contends it did not have to set out material findings of fact or the pathway of reasoning if in fact it disclosed confidential information, as the statement of reasons stated had been determined by the respondent. As a result of s 341 it is said the Board carries out an evaluative judgment in relation to the confidential information and disclosure that can be made in fairness to the prisoner. It contends that on a proper construction of s 208 of the Act, the obligation to provide reasons is qualified.
  10. [46]
    It contends that the present case is similar to the circumstances considered by Douglas J in Harms v Queensland Parole Board[2] (Harms) and that s 341 of the Act operates to alter the obligation of the Board to give reasons as the respondent considers appropriate.
  11. [47]
    The respondent also contends that s 208 of the Act provides for the prisoner concerned to be afforded natural justice or procedural fairness and therefore, it was also relevant for the respondent to have regard to cl 3.2 and cl 3.3 of the Ministerial Guidelines[3] in relation to how the respondent was to approach natural justice given confidential information is involved. It also contended that the operation of s 341 of the Act for which it contends is not inconsistent with procedural fairness.
  12. [48]
    According to the respondent the obligation to provide reasons is a varying standard, as applies in determining the content of procedural fairness in light of the use of confidential information and the notice was not inadequate.
  13. [49]
    The applicant’s counsel rejected the respondent’s contention and contends  s 341 of the Act is permissive, not discretionary and allows the respondent to disclose that confidential information as required by s 208 of the Act without penalty. 

Scheme of the Act

  1. [50]
    It is necessary to construe s 208 of the Act having regard to the statutory scheme and Act as a whole.[4] The interpretation which best achieves the Act’s purpose is to be preferred to any other interpretation.[5]
  2. [51]
    Following a request by QCS for suspension of the applicant’s parole, a prescribed member of the respondent determined to suspend the applicant’s parole on 11 June 2020.  Provision for such a decision is made under s 208B of the Act.
  3. [52]
    Under s 208C of the Act if a prescribed member of the respondent decides under s 208B to suspend the parole order and issue a warrant for the prisoner’s arrest, the respondent must, within two business days of that decision being made, either confirm the decision, cancel the parole order or set aside the decision.
  4. [53]
    Section 208C(2) of the Act provides that s 208 applies to the decision of the respondent to confirm the prescribed member’s decision “as if it were a decision to suspend or cancel a parole order under s 205(2).”
  5. [54]
    Section 205(2) of the Act provides:

“The parole board may, by written order—

(a) amend, suspend or cancel a parole order if the board reasonably believes the prisoner subject to the parole order—

(i) has failed to comply with the parole order; or

(ii) poses a serious risk of harm to someone else; or

(iii) poses an unacceptable risk of committing an offence; or

(iv) is preparing to leave Queensland, other than under a written order granting the prisoner leave to travel interstate or overseas; or…

(c) amend or suspend a parole order if the prisoner subject to the parole order is charged with committing an offence; or

(d) suspend or cancel a parole order if the board reasonably believes the prisoner subject to the parole order poses a risk of carrying out a terrorist act.”

  1. [55]
    The decision of 15 June 2020 was therefore, by virtue of s 208C(2) to be taken as if it were a decision under s 205(2) of the Act.
  2. [56]
    Section 208 of the Act provides:

“(1) If a 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.

(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.”

  1. [57]
    The applicant contends that the Act operates in the following way.  The decision of the respondent to confirm the prescribed member’s decision to suspend or cancel a parole order under s 208C(2) of the Act is treated as a decision to vary or suspend a parole order under s 205(2) of the Act.  That decision then triggers the procedure in s 208 of the Act. Prior to making a decision whether to vary its decision under s 208(2) of the Act the respondent is required to issue a valid information notice in accordance with s 208(1) of the Act.
  2. [58]
    According to the applicant, the decisions of the respondent which followed the decision of 15 June 2020 were therefore decisions which purported to be decisions under s 208(2) of the Act. According to the applicant the 24 September 2021 purported notice was given under s 208(1) of the Act and the 20 December 2021 decision purported to be a final decision under s 208(2) of the Act. The respondent now accepts that characterisation.
  3. [59]
    It is uncontroversial that what is required to give reasons in s 208(4) of the Act incorporates the requirements set out in s 27B of the Acts Interpretation Act 1954 (Qld) (the Acts Interpretation Act).  It 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.”

  1. [60]
    In McQueen v Parole Board of Queensland[6] Justice Dalton stated that the combination of s 208(1) of the Act and s 27B of the Acts Interpretation Act meant that the information notice had to provide full reasons for the pre-emptory decision under s 205(2)(a) of the Act. I agree with her Honour. Her Honour also noted that the power to suspend or cancel parole under s 205 was a discretionary one and that s 208(2) of the Act obliges the respondent to revisit its discretionary decision. That is plainly correct. Although the Act does not provide for reviews of the respondent’s decision after the initial review under s 208 of the Act, it is implicit that each time the Board is going to consider whether to vary its decision to suspend parole that it should comply with s 208(1) of the Act prior to making a decision under s 208(2) of the Act.
  2. [61]
    Section 341 of the Act provides that:

“(2) The informed person must not disclose confidential information acquired by the informed person to anyone else other than under subsection (3).

…

(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

…

(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…”

  1. [62]
    Section 341(1) of the Act identifies who is an “informed person”, which relevant to this proceeding includes a person who is performing or has performed a function under the Act or is or was otherwise engaged in the administration of the Act. The respondent would fall within that definition.
  2. [63]
    It is submitted on behalf of the respondent that the information withheld was of the type that would meet the definition in (4) and could properly be withheld.
  3. [64]
    The present application does not call for the Court to determine whether the respondent has properly asserted its claim that the intelligence information is confidential information, given the contention of the applicant is that s 208 of the Act provides a duty to provide reasons which did not vary depending on whether the subject matter of the reasons was confidential. No claim for public interest immunity was made by the respondent nor was a contention raised by the applicant that the respondent had failed to provide the “gist of the information”. As a result, this application did not call for the Court to review the confidential information. If the respondent is correct as to how s 341 operates there would not be an occasion for the Court to review the confidential information.

What reasons must be provided under s 208 of the Act?

  1. [65]
    In Kioa v West[7](Kioa), Mason J observed that in respect of the common law doctrine of natural justice “when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”[8] In Saeed v Minister for Immigration and Citizenship[9] the High Court confirmed it was settled law that where a statute confers a power to destroy or prejudice a person’s rights or interests, the principles of natural justice regulate the exercise of that power.
  2. [66]
    If the rules of natural justice do apply, Brennan J in Kioa[10]  observed that the content of the principles to be observed is determined in light of the particular circumstances.[11] In particular, Brennan J noted that in the “ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made”[12] (emphasis added). His Honour also stated that an implication that a statutory power is conditioned on observance of the principles of natural justice does not prevent the repository of the power from modifying procedure to meet the particular exigencies of the case.[13]
  1. [67]
    The common law right of natural justice and what is necessary to accord procedural fairness will be moulded to the circumstances of the case, including where there is a claim of public interest immunity where there is a public interest in information not being disclosed.[14]
  2. [68]
    According to Mason J in Kioa, if the decision in question “is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute.”[15] It is a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the case to ensure a statutory power is exercised fairly. Mason J further stated:

“The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case….”[16]

  1. [69]
    The applicant contends that s 208 provides it with an unqualified statutory right to be provided reasons, not a common law right of natural justice. In particular it relies on the Court of Appeal’s decision in Central and Northern Queensland Regional Parole Board v Finn[17] (Finn CA). In that case the Court found that on its proper construction the Act, the Act excluded any right to natural justice in relation to a decision to suspend or cancel parole under s 205(2) of the Act.
  2. [70]
    In Finn CA, Fraser JA (with whom Gotterson JA and North J agreed) discussed the inter-relationship in s 205 and s 208 and rejected a contention that upon the proper construction of the Act, a decision to suspend a parole order is required to be attended by natural justice in the manner provided for in s 208 of the Act.  At paragraph [20], Fraser JA noted that four inter-related aspects of the statutory provisions were inconsistent with the two incidents of the common law right of natural justice. In particular his Honour stated:

“...Thirdly, s 208(2) does not confer upon a prisoner a right to challenge the decision made under s 205(2). Instead, it entitles the prisoner to make a submission that the parole board should in the circumstances prevailing at a subsequent time make a different decision: see in particular s 208(1) and subsection (c) of the definition of “information notice” in s 208(4), and s 208(2). Fourthly, if and to the extent that the decision under s 208(2) differs from the earlier decision under s 205(2), the subsequent decision will commence to have effect under the enactment from the time of that subsequent decision, leaving intact the legal effect of the decision under s 205(2) at all times before the making of the subsequent decision: see s 208, which must be understood in the context of ss 205(5) and 206.” (emphasis added)

  1. [71]
    Fraser JA therefore found that when a prisoner’s parole order was suspended or cancelled there was no requirement to provide an information notice prior to the decision being made. Rather:[18]

“The rights of a prisoner in this respect are confined to the requirements imposed by s 208 that the parole board give the prisoner an information notice when the prisoner returns to prison, that the parole board consider any “properly made submissions” (as defined in s 208(4)), and that the parole board make a decision whether or not to change the decision previously made under s 205(2) to suspend or cancel a parole order. Thus any common law obligation to afford natural justice as a condition of the efficacy of a decision prejudicial to a person affected by the decision is in this statute replaced by a provision for subsequent review under s 208(2) of an order under s 205(2) cancelling or suspending a parole order. The purpose of the requirement in s 208(1) that the parole order give the prisoner an information notice on the prisoner’s return to prison is explained in s 208(4). The prisoner is given a right to show cause, by written submissions given to the parole board why it should change its decision. Those submissions are not to be directed to the question whether the original decision suspending or cancelling parole was correctly made. Rather, the subject of this limited statutory opportunity to be heard is whether at a time subsequent to the original decision the board should make a different decision.” (emphasis added)

  1. [72]
    Thus it is the decision under s 208(2) of the Act which is amenable to judicial review, namely the decision whether or not to change the previous decision under s 205(2) of the Act to suspend parole, not the original decision to suspend.[19]
  2. [73]
    The above analysis is of some importance to the applicant’s argument.  According to the applicant, the effect of the provisions of the Act as interpreted by the Court of Appeal in Finn CA, is that common law principles of natural justice have been superseded and replaced by the provisions in the Act, particularly s 208 of the Act. The applicant contends that s 208 of the Act is an express statutory duty that is purely a creature of statute which stands in the stead of an obligation to accord natural justice. Thus according to the applicant provisions of the Ministerial Guidelines and the question of how principles of natural justice may be reduced due to reliance on information which is the subject of public interest immunity as discussed by Douglas J in Harms[20] have no application to s 208 of the Act.
  3. [74]
    While the respondent agrees that the requirement to give an information notice is a creature of the Act and that the rights of the prisoner are confined to the requirements imposed by s 208 of the Act, it contends that s 208 of the Act does require the applicant to be afforded procedural fairness which is supported by Fraser JA in Finn CA at paragraph [11].
  4. [75]
    Paragraph [11] of Finn CA outlines the argument presented on behalf of the Board at the appeal where it was submitted that:

“…A decision suspending or cancelling a prisoner’s parole order under s 205(2) is not attended by any process for natural justice. The Act instead provides a process for review by the parole board under s 208 of a decision by it suspending or cancelling a parole order under s 205. That process is attended by a natural justice regime regulated by s 208. Non-compliance with that process might have consequences for a review decision under s 208(2) but it could have no consequence for the initial decision to suspend or cancel parole under s 205(2).”

  1. [76]
    While that provides context to the decision made by the Court of Appeal, Fraser JA did not adopt the notion that s 208 of the Act introduced a natural justice regime. That is borne out by his Honour’s reference at [23] underlined above. Further, while his Honour in Finn CA makes reference at [24] to the explanatory note and that the section “sets out the process by which prisoners are afforded natural justice for decisions to suspend or cancel a parole order” which “may be regarded as a reasonable precis of the effect of s 208 even though a non-compliance with that provision does not affect the validity of the original decision under s 205(2)”, it is not a recognition that natural justice attaches to the statutory obligation. Nor did the respondent contend that right of natural justice applied notwithstanding the terms of s 208 of the Act. His Honour recognised that the statutory process which is put in place in s 208 of the Act is modelled on a process that would be adopted to accord natural justice but not that it was a natural justice right. Thus, the flexible concept of natural justice that arises at common law does not apply to the statutory process provided for by s 208 of the Act. The Act sets out the process required for the prisoner to seek an alteration of the original decision as a result of the displacement of the common law right of natural justice in relation to the original decision to suspend.
  2. [77]
    As Fraser JA pointed out one of the statutory features which is inconsistent with the common law right of natural justice is the lack of a right to be heard before the prejudicial exercise of the statutory power under s 205 of the Act to suspend or cancel parole and that the decision is immediately efficacious notwithstanding the prisoner has had no opportunity to be heard. Under s 208 of the Act there is right to make a different decision.
  3. [78]
    The logic of the regime introduced by the Act where parole is suspended or cancelled is self-evident. It provides for the respondent to make decisions to cancel or suspend parole on an expedited basis where circumstances exist which cause it to consider it necessary to do so. Having made that decision, which is obviously prejudicial to the prisoner, the prisoner is given the reasons of the respondent and invited to show cause as to why the decision which has already been made should be changed. That right can only meaningfully be exercised where the prisoner is informed of the reasons for the respondent making its decision and the material relied upon.
  4. [79]
    I accept 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.
  5. [80]
    The provision in s 208 of the Act with respect to the requirements imposed upon the respondent to provide an information notice bears a similarity to a provision considered in  Sabag v Health Care Complaints Commission[21] (Sabag) there was a specific provision for a medical tribunal to provide a written statement of its decision on an inquiry, which must set out any findings on material questions of fact, refer to any evidence or other materials on which the findings were based and give the reasons for the decision.[22] Davies JA[23] referred with approval to the statement by the Administrative Appeals Tribunal in Re Palmer and Minister for the Capital Territory[24] which outlined the general purpose of such a provision:[25]

“…. By requiring the decision-maker to give not only reasons for his decision but additionally a statement of the findings on material questions of fact referring to the evidence or other material on which those findings were based Parliament certainly intended that the citizen should be fully informed… We would also refer to Elliot v London Borough of Southwark [1976] 2 All ER 781 per James LJ at 791: the duty to give reasons pursuant to statute is a responsible one and cannot be discharged by the use of vague general words which are not sufficient to bring to the mind of the recipient a clear understanding of why his request….is being refused.” (emphasis added)

Is the right to reasons in s 208 qualified ?

  1. [81]
    The applicant contends that s 208 of the Act provides such a regime which is unqualified by any modification to protect confidential information.
  2. [82]
    The respondent contends that the requirement to give reasons in s 208 of the Act must be read as subject to this discretion in s 341 of the Act as to whether or not to disclose confidential information.
  3. [83]
    The principles of statutory construction were reiterated recently by the High Court in R v A2.[26]
  4. [84]
    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.
  5. [85]
    It may be inferred that the intent of the s 208(4) of the Act is to provide a prisoner with the adequate reasons to enable the prisoner to meaningfully respond and make submissions to the respondent.
  6. [86]
    There is no qualification to the obligation of the respondent outlined in s 208 of the Act itself.[27] This is in contrast to other provisions in the Act.
  7. [87]
    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. “information notice” includes the reasons for decision.[28] 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.[29] 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.
  8. [88]
    Section 16 of the Act provides for a prisoner to give written notice asking for a reconsideration of the decision within seven days of receipt of the information notice. Section 16(3) of the Act provides that the chief executive must reconsider the decision and may confirm, amend or cancel the decision.  After reconsidering the decision, the prisoner is to be provided with an information notice about the reconsidered decision under s 16(4) of the Act.
  9. [89]
    Section 17 of the Act purports to exclude the application of parts 3, 4 and 5 of the Judicial Review Act 1991 (Qld) (the JR Act) to a decision about the prisoner’s security classification.[30]
  10. [90]
    The above provisions were considered in McLaren[31]. In McLaren, Jackson J noted that since s 27B of the Acts Interpretation Act did not apply to the information notice, the reasons in the information notice did not have to set out the findings on material questions of fact or refer to the evidence or other material on which those findings were based.[32] His Honour found it was inconsistent with the statutory scheme for notice of the review or disclosure of information to be given prior to the review under s 13 of the Act.[33]
  11. [91]
    In the course of determining there was no obligation to accord natural justice prior to a decision being made under s 13, his Honour commented that:

“[98] The statutory scheme for deciding a prisoner’s security classification shows a positive intention that the information to be provided to the prisoner about that decision is to come through the reasons in the information notice.

[99] An opportunity for a prisoner to make submissions exists when a prisoner whose security classification has been increased asks for a reconsideration of the decision. The prisoner is able to do so with the benefit of the reasons required to be given in the information notice. Those reasons should identify the matters actuating the chief executive in making the decision.”

  1. [92]
    His Honour’s above comments were made in the context of more limited statutory provisions in relation to the requirements of the provision of notice unlike the statutory provisions relevant to the present case. The decision of the Court focussed on the requirements of s 61(1) of the Act in relation to which his Honour found that in the context of the statutory provisions there was an obligation to accord natural justice. [34]
  2. [93]
    His Honour however determined that the case was not the occasion to consider the extent of a prisoner’s right to be apprised of information that may be taken into consideration by the decision-maker if they have not been identified in the reasons contained in the information notice about the classification decision.[35]
  3. [94]
    While his Honour found that there had been a breach of the rules natural justice in failing to disclose adequate information relied upon from intelligence reports considered by the decision-maker to enable the applicant to make a meaningful response,[36] the decision is of little assistance to the present.
  4. [95]
    Nor is Section 208 and the provision of an information notice is qualified by a provision which excludes any obligation to inform the prisoner of confidential information unlike other provisions of the Act, such as s 290 of the Act in relation to the official visitor advising a prisoner of the outcome of a complaint.[37]
  5. [96]
    The applicant contends that its argument that the statutory scheme for the suspension of parole and the requirement to give reasons notwithstanding they contain confidential information is not a misnomer as other provisions would similarly require such disclosure if necessary. For example, he contends the disclosure of confidential information would be required if relevant to an allegation of discipline against a prisoner as section 116(3)(a) provides that an officer “must tell the prisoner of any evidence supporting the allegations of the breach of discipline”.
  6. [97]
    According to the applicant, s 341(3) of the Act does not provide a decision-maker with a discretion but rather is facilitative, at least where a statutory provision provides a positive obligation upon the respondent to provide certain information without qualification. That is said to be further supported by s 341(3)(c) of the Act which provides for disclosure “for a proceeding in a court if the informed person is required to do so by order of the court or otherwise by law.”
  7. [98]
    The respondent however submits that its construction of the Act by which s 208 and s 341 were read together is the proper construction otherwise the reference to “may” in s 341 would have no work to do.
  8. [99]
    There are a number of features of s 208 of the Act which support the construction contended for by the applicant:
    1. (a)
      the power of the respondent to suspend a prisoner’s parole is limited. Section 205(2) of the Act sets out the circumstances in which the respondent can, amongst other things, suspend a prisoner’s role. Similarly, the prescribed member can only suspend the prisoner’s parole in the circumstances set out in s 208B of the Act. It is that decision which the respondent decides to confirm or set aside or to cancel the parole order under s 208C of the Act. Section 208 then applies to the decision to confirm the prescribed member’s decision or cancel the parole order then has effect as if it was a decision to suspend or cancel parole under s 205(2) of the Act;
    2. (b)
      the prisoner has no entitlement to procedural fairness before the decision to suspend or cancel parole is made which results in a return to custody;
    3. (c)
      the information notice is intended to inform the prisoner of the reasons why their parole is suspended or cancelled after the decision has been made. The giving of the notice is in mandatory terms “must give” and its mandatory nature is consistent with its statutory context;
    4. (d)
      the purpose of the information notice is to inform the prisoner of the reasons of the decision which extends to identifying the material facts relied upon and evidence relied upon by the respondent. The content of the information notice is prescriptive insofar as s 208(4) refers to “means”;
    5. (e)
      the prisoner is invited by the respondent to “show cause” by written submissions why the respondent should change its decision, and properly made submissions must be considered by the respondent, thus effectively placing the onus on the prisoner to demonstrate why the decision should be changed. If reasons can be withheld a prisoner will be placed in the position of potentially never being able to address the basis of the respondent’s decision in order to have them change the decision;
    6. (f)
      while the giving of written reasons is extended to setting out findings on material questions of fact and reference to the evidence or other material on which those findings were based given s 27B of the Acts Interpretation Act applies, the respondent is not required the production of that material; and
    7. (g)
      there is redress for non-compliance with s 208 of the Act to remedy any injustice caused by the original decision to suspend or cancel parole given a decision under s 208(2) of the Act would be reviewable under the JR Act.[38]
  9. [100]
    I turn to the question of whether s 341 of the Act qualifies the obligation to provide reasons under s 208 where confidential information is relied upon by the respondent in reaching its decision.
  10. [101]
    Section 341 of the Act deals with confidential information and is a provision of general application under the Act. The definition of “confidential information” is broad extending to a person’s private details.  Prima facie an “informed person” is prohibited from disclosing confidential information.  However, s 341(3) of the Act provides for the disclosure of confidential information in the circumstances set out in (a)—(f) providing that an “informed person may disclose confidential information” (emphasis added).
  11. [102]
    The applicant 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 respondent. The respondent however contends that it should be construed to provide the informed person with a discretionary power to disclose or not disclose.
  12. [103]
    The use of the word “may” can connote a discretion[39] but can also be used to confer a power which may be exercised in particular circumstances.[40] As to the latter Earl Cairns in Julius v Lord Bishop of Oxford[41] stated:

“They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is resposed, to exercise that power when called upon to do so.”

  1. [104]
    According to Herzfeld and Prince:[42]

“It is not the case that “may” changes its meaning, in some cases meaning “may or may not” and in others meaning “must”. Rather, in all cases, the word confers a permission or authority and the question of construction is whether that is impliedly coupled with a duty or not. If not, the word confers a discretion. If so the word “may” confers, not a discretion, but a power which must be exercised in certain circumstances: in those circumstances, in substance, the “may” becomes “must”.”

  1. [105]
    The meaning to be adopted depends on the context and circumstances of the power. Generally, the construction that it incorporates a discretion is favoured particularly in light of s 32CA of the Acts Interpretation Act. However, in the present case there are a number of features that suggest that if one of the circumstances outlined in s 341(3) of the Act applies, disclosure should be made. They include the following:
    1. (a)
      One of the purposes of section 341(3) of the Act is to provide protection to someone who does disclose confidential information where required to do so by an express provision of the Act such as s 208 when disclosure contrary to s 341(2) of the Act otherwise exposes them to a penalty. That is consistent with the explanatory note for the Corrective Services Bill 2006 (Qld) which states that:

“Clause 341 provides that an informed person must not disclose confidential information unless the disclosure is for the purposes of the Bill or if the disclosure is to discharge a function under another law or if the person is required to make a disclosure by the Court.”

  1. (b)
    Further, the “informed person” is not limited to the respondent, but rather extends to a person who is performing or has performed a function under the Act or has obtained access to confidential information from a person mentioned performing, or who has performed a function under the Act. This supports the fact that it is unlikely in using the word “may” in s 341(3) of the Act that the parliamentary intention was to vest a discretion in any party who came into possession of confidential information in the course of their role regardless of their seniority, and where a statutory provision otherwise placed an obligation to provide certain information.[43] This is strengthened by the circumstances in which disclosure can be made which I have outlined below. In Samad v District Court of New South Wales[44] Gleeson CJ and McHugh J stated that:

“Where a statute confers rights or entitlements….it may be easy to conclude that the legislature did not intend that they could be taken away by the exercise of a discretion reposed in an administrative authority.”

  1. (c)
    The nature of the circumstances in which disclosure is provided for are inconsistent with the “informed person” holding a discretion as to disclosure given that:
    1. section 341(3)(a) provides for disclosure to be made in accordance with the Act in circumstances where the Act contains specific provisions excluding the disclosure of confidential information such as provided for in s 290 of the Act;
    2. the nature of disclosure provided for in Section 341(3)(b) and (c) which provide for disclosure to discharge a function under another law or where it is otherwise authorised by another law or if the informed person is “required to do so by order of the court or otherwise by law” are to ensure compliance with the law. Given the nature of those circumstances and the information is obtained by or through a person who is performing a function under the Act or the administration of the Act, it is unlikely that the legislature intended to provide the informed person with a discretion as to whether or not to provide confidential information in compliance with a court order; and
    3. similarly, the disclosure of personal details in s 341(3)(d) only arises after the person affected has authorised the disclosure of those details and the disclosure in s 341(3)(e) has been authorised by the chief executive in the circumstances outlined.
  1. [106]
    The respondent’s contend that s 341 of the Act operates in a similar way to the approach adopted by the Court in Harms which was followed by Boddice J in Ashley v Southern Queensland Regional Parole Board[45] (Ashley) where the Court determined that the Parole Board’s obligation to give reasons did not extend to disclosing confidential information. That cannot be accepted.
  2. [107]
    Neither Harms nor Ashley considered a similar statutory provision to s 208 of the Act. Rather, they were concerned with the application of the general principles of natural justice and the competing public interest of non-disclosure of documents which would have revealed the identity of an informant.[46] Where a decision-maker relies on material properly the subject of a public interest immunity, the obligation to accord procedural fairness may be moulded to accommodate public interest immunity.[47]
  3. [108]
    As submitted by the applicant both Harms and Ashley considered the content of the requirement to accord procedural fairness in light of the competing interest of public interest in not disclosing material the subject of public interest immunity. That is different from the present where there is a statutory obligation imposed upon the respondent to provide an information notice as provided in s 208 of the Act.
  4. [109]
    There is no basis to imply any obligation of fairness in determining what confidential information should be disclosed to a prisoner under s 341 of the Act as opposed to what it is in the public interest not to disclose. On the respondent’s construction however, that power would not only vest in the respondent itself, but in an “informed person”.
  5. [110]
    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.
  6. [111]
    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. The respondent sought to distinguish those provisions such as s 15 on the basis that security classification has its own statutory regime. That however does not answer the fact that the legislature in the Act have made modifications to what is required in an information notice and specifically excluded disclosure of confidential information such that its disclosure is not authorised for the purposes of the Act.
  7. [112]
    As to the respondent’s contention that if it has to disclose material under the Act it will defeat the purpose of having confidential information, as is demonstrated by the above, the Act itself limits the circumstances in which confidential information is to be disclosed under s 341 both in s 341 and in other provisions of the Act. 
  8. [113]
    Further, the fact that s 341 may not operate to prevent the disclosure of confidential material if required by s 208 of the Act doesn’t lead to a conclusion that a claim for non-disclosure based on public interest immunity cannot be made.
  9. [114]
    Neither party could locate a decision which considered the relationship between a statutory obligation to give reasons and public interest immunity[48].
  10. [115]
    The applicant attributed this to fact s 35 and s 36 of the JR Act[49] which deal with the inter-relationship where a statement of reasons is required to be provided under the JR Act in the face of confidential material or material which may be the subject of public interest immunity. Section 37 of the JR Act sets out a process in that regard. However, that applies after a decision is given for which the JR Act provides a statement of reasons must be provided, rather than where there is a statutory provision such as s 208 of the Act. While it was open to the legislature to include similar provisions such as s 35 and s 36 of the JR Act, it does not serve to aid the construction of the Act.
  11. [116]
    According to the respondent however, the absence of a decision can be explained by the fact that the statutory purpose of s 341 is to “pickup” the concept and operation of a claim for public interest immunity. It provides no support for that proposition although some categories of confidential information bear similarity to information that may be the subject of the claim for public interest immunity.
  12. [117]
    The applicant contends that such a proposition is inconsistent with the tenor of the respondent’s argument in its original submissions and at the hearing as to the operation of s 341 of the Act and the way a claim for public interest immunity operates.
  13. [118]
    I do not consider that s 341 of the Act “picks up” public interest immunity.
  14. [119]
    The common law right to claim public interest immunity is a separate right which is not abrogated or modified by statute absent a clear statutory intention.[50] There is nothing in the wording of s 341 of the Act, save for the overlap in what may be confidential information and what may be the subject of a claim for public interest immunity[51], which suggests that it is intended to usurp what was once the domain of public interest immunity. I do not regard that as sufficient to evince a statutory intention to exclude public interest immunity in favour of the statutory provision set out in s 341 of the Act. 
  15. [120]
    As the applicant submits, the question of whether or not public interest immunity applies is a matter for the Court to decide.[52] The Court must weigh up competing public interests in considering such a claim. [53]
  16. [121]
    Given that the respondent argues that it has a discretion as to whether to disclose information even though s 341(3) of the Act provides for one of the circumstances of non-disclosure to be where an order of the Court has required the disclosure of the information. That provides the respondent with significant greater power than would be the case if they had to make a claim for public interest immunity over some material. Nor would the power be limited to the respondent as s 341 of the Act applies to the conduct of an “informed person”.
  17. [122]
    Since it is the Court not the executive who determines whether the public interest immunity applies, clear words would be needed to indicate such a statutory intention, with the result, on the respondent’s argument that the respondent would stand instead of the Court.[54]  Provisions providing for confidential information are often found in legislation and relevant to a claim for public interest immunity rather than replacing it.
  18. [123]
    For example, in Re Smith,[55] McPherson J considered whether a subpoena should be refused on the basis of public interest immunity, notwithstanding the existence of a provision in the Corrective Services (Administration) Act 1988 (Qld) which prohibited a person without prior approval of the Corrective Services Commission from producing in court any information that had come into his possession in the discharge of his functions under the Act but for which an exception was made where he was “required to do so by an order of any court...or otherwise by law.”  While the statutory terms are not as in the same terms as the present, his Honour did consider a claim for public interest immunity was displaced and replaced by the statutory provisions in that case.
  19. [124]
    The applicant submits a further reason that the respondent’s contention cannot be correct is that material the subject of an upheld claim of public interest cannot be taken into account by decision maker.  That is however incorrect. Even though a successful claim to immunity would result in material not being admitted into evidence, the disadvantages that may result from a claim being successfully made given it has been taken into account by a decision maker was recognised by the High Court in Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police[56] where the plurality referred to Mason J in Church of Scientology Inc v Woodward[57] Similarly the point made by the High Court in HT v R[58] at [72] was that public interest immunity could not be used to permit evidence to be tendered in litigation but withheld from one of the parties to litigation. It cannot be used by any party. The majority of the High Court in HT v R stated the position as follows:[59]

“…True it is that a successful claim to public interest immunity means that the material need not be disclosed to the other party.21 But the non-disclosure results from the objection to their production being upheld. The immunity provided with respect to documents by the doctrine is from their production. The doctrine has nothing to say about whether a document should be admitted into evidence or, when it is admitted, whether it should then be seen by one party and the court but kept confidential from the other party. The application of the doctrine prevents the document being admitted into evidence at all.”

  1. [125]
    Caution must be exercised in extrapolating the cases where public interest is claimed in the criminal context as opposed to the civil context.
  2. [126]
    Public interest immunity may still be claimed where material that is relied upon by the respondent in reaching its decision under s 208 of the Act could properly be the subject of public interest immunity, although it is not appropriate for me to consider whether it does apply in the present context.
  3. [127]
    While public interest immunity generally applies to modify the content of what is required to accord procedural fairness or whether documents are required to be disclosed in litigation it has been extended to prevent disclosure of information as well as documents at least to protect the identity of a police informer and material from which the identity of an informer may be discerned or sensitive information in relation to police investigations or methodologies.[60]
  4. [128]
    While public interest immunity provides immunity from production of evidence in the course of litigation, where the Court determines that it would go against the public interest to disclose the content of a document or if it belongs to a class of documents which in the public interest ought not be produced[61] it has not been confined to judicial and quasi-judicial proceedings.[62] In the context of according procedural fairness it extended to the exercise of executive power.[63]

Ministerial Guidelines

  1. [129]
    The respondent also contends that its decision as to restricted reasons and disclosure is consistent with the Ministerial Guidelines. The applicant contends the guidelines have no application because s 208 of the Act imposes a statutory obligation upon the respondent rather than the requirement to accord natural justice attaching to the statutory provision in the circumstances reiterated by the High Court in Saeed to which I have referred above. The applicant further contends that the Ministerial Guidelines have no operation when they are inconsistent with the obligation imposed by s 208 of the Act.
  2. [130]
    The Ministerial Guidelines do not affect the above construction. While made pursuant to the Minister’s power to make guidelines about policies to help the respondent in performing its functions in s 242E of the Act, they are subordinate to the provisions of the Act. Further while they operate where procedural fairness applies, s 208 of the Act is a statutory obligation which operates after the decision is made providing a modified right for a prisoner to have an avenue of review.
  3. [131]
    In particular, section 3 of the Ministerial Guidelines deals with disclosure in the context of the respondent according procedural fairness which is not the case under s 208 of the Act, which provides a statutory right.[64] Clause 6.1 of the Ministerial Guidelines is specifically directed to the situation of a prisoner on parole being charged with a further offence and the factors relevant to the respondent’s discretion as to whether they should be returned to custody. Clauses 6.6 and 6.7 refer to a decision as to suspension of parole orders but provide no guidelines in relation to disclosure. 

Did the respondent provide adequate reasons?

  1. [132]
    As to what is generally required where the respondent is to provide reasons, the parties agreed that the general obligation was accurately stated by Justice Bond in Chalkley v Southern Queensland Regional Board[65] (Chalkley).  Taking account of the requirements for s 27B of the Acts Interpretation Act, Justice Bond in Chalkley stated that what was required was “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.”[66]
  2. [133]
    The reasons must state more than a belief and a result. Justice Henry in Finn v Central and Northern Queensland Regional Board[67] (Finn) found that the purported “reason” that the prisoner had failed to comply with a parole order was in reality a statement of belief and statement of the result of an assessment, where the reasons for the belief and the result were simply not given.[68] Justice Henry stated that the information notice which was required to be given under s 208(4) fell short, noting that the reasons required were coloured by the requirements set out in s 27B of the Acts Interpretation Act, such that findings on material facts and reference to the evidence or other material on which those findings were based must be set out.[69] His Honour found that even a purported reason in a subsequent notice that the applicant failed to provide a valid test sample and attempted to provide a false sample on 10 November 2015 was insufficient in failing to set out the findings on material facts and the reference to evidence or other material on which those findings were based.[70] This aspect of his Honour’s decision was not the subject of challenge in the Court of Appeal.[71]
  3. [134]
    The above passage in Sabag was referred to by Morrison JA[72] in Gold Coast City Council v Sunland Group Ltd[73] (Sunland) in relation to a similar provision in s 637(2) of the Sustainable Planning Act 2009 (Qld) and where s 27B of the Acts Interpretation Act was found to apply.[74] His Honour noted that the context was however different from other cases such as Sabag insofar as the Council was not conducting:[75]

“…any sort of hearing, nor adjudicating on a dispute, nor carrying out anything similar to a judicial or quasi-judicial function. Its function was different from a decision made by a body which conducts a review, or a repatriation appeal, considers an application for an approval, considers a request for indulgence or something similar such as a parole board or a complaints hearing. In such cases the approach adopted in Sabag v Health Care Complaints Commission is appropriate. Here the Council was obligated to issue the ICN if certain preconditions were met, without any request or application, or anything like a review, hearing or adjudication.”

(emphasis added, footnotes omitted).

  1. [135]
    It was in the above context that Morrison JA found that the provision of reasons which were “short and terse” were “in the circumstances, proper, adequate and intelligible”[76]. The respondent contends that similarly in the present case its reasons in the information notice of 24 September 2021 were short and terse but adequate and intelligible and sufficient to discharge its statutory obligation. As Morrison JA pointed out however after analysing the relevant statutory provisions[77] the function of the Council in making the decision in that case was quite different from other bodies which conducted a review such as for instance a Parole Board.
  2. [136]
    In the present case, there is no real dispute that the respondent has not provided reasons that would satisfy s 27B of the Acts Interpretation Act unless the respondent is justified from not providing reasons or disclosing material facts or evidence by virtue of the fact that the respondent has relied on the intelligence information which is said to be confidential. There is no pathway of reasoning provided in relation to the use by the respondent of confidential information in reaching its decision, nor is the nature of that information identified other than it being referred to as intelligence.
  3. [137]
    However, the applicant contends that in any event the information notice does not disclose any pathway of reasoning. That is plainly correct. The notice states matters of which the respondent is “informed” and then states that accordingly it reasonably believed the applicant posed “an unacceptable risk of committing an offence.” The use of the word “accordingly does not disclose any pathway of reasoning. No findings of material facts or evidence or material relied upon is revealed. Given the terms of the statement of reasons of the decision of 24 September 2021[78] include matters beyond those set out in the information notice which are not confidential, the deficiency in the information notice does not appear to be only attributable to the reliance on confidential information however I do not need to consider that further for the purposes of this decision.

Other matter

  1. [138]
    I will address one further matter briefly. The applicant in its further submissions contended that the respondent had acted outside its statutory power in its letter of 21 December 2021 in stating that “the Board requests that you show cause, in writing, in relation to the incident dated 11 June 2022, whereby you are the sole occupant of a vehicle with $98,000 cash.” That particular part of the incident was the subject of charges which have twice not been pursued, including at the start of the trial prior to the decision of 24 September 2021. While the request of itself causes some concern, notwithstanding the respondent’s broad powers, that is not a matter requiring a decision. The applicant contends that s 208 of the Act does not empower the respondent to require the applicant to “show cause” in relation to the matter concerned in the quote. That is denied by the respondent. Section 208(2) of the Act provides for the respondent to invite a prisoner to “show cause” in relation to its original decision as to why it should change its decision, rather than asking a prisoner to show cause in relation to a specific matter as they purport to do in the letter. While the respondent may be seeking to put the applicant on notice of an issue of concern, prima facie the request is outside the statutory power of the respondent.

Conclusion

  1. [139]
    In the present case, the information notice of 24 September 2021 does not comply with the requirements in s 208 of the Act as it:
    1. (a)
      failed to comply with s 208(4) in failing to provide reasons or otherwise comply with s 27B of the Acts Interpretation Act insofar as it exposed no pathway of reasoning in support of its belief that the applicant was an unacceptable risk of committing an offence, including in relation to “adverse intelligence reports raising various concerns about” the applicant’s “risk to community safety”;
    2. (b)
      acted on the basis it was entitled to decide whether or not to disclose confidential information by reason of s 341 of the Act in providing an information notice under s 208(1) and s 208(4) of the Act; and
    3. (c)
      relied on the Ministerial Guidelines in determining that information notice was not required to disclose any of the confidential information which applied to where the respondent was required to accord procedural fairness.
  2. [140]
    I should note that, even aside from the question of confidential information, the information notice of 24 September 2021 revealed no reasons, material findings of fact or evidence or material relied upon. It simply stated matters of which it was informed and a conclusion without disclosing any pathway of reasons. In circumstances where a prisoner has to show cause and provide submissions in response, the information notice did not disclose adequate reasons, material findings of fact or evidence or material relied upon as required in the information notice to allow the prisoner to meaningfully respond.
  3. [141]
    The legislative intention of Parliament was to introduce a regime which denied procedural fairness in relation to a decision to suspend or cancel parole but introduced a statutory right of review after it had been made to permit the prisoner to show why the decision should be changed.
  4. [142]
    The respondent has incorrectly treated the requirements to provide an information notice in accordance with s 208(4) of the Act as being variable where it has relied on confidential information as a result of s 341 of the Act and withhold reasons otherwise required under s 208 of the Act. In doing so it has acted on it has failed to comply with the statutory requirements of s 208(4). The applicant has established that the respondent proceeded on an erroneous belief based on its construction of the Act. Even if it can claim public interest immunity in relation to that material it did not make such a claim and it is evident from the above that the respondent has proceeded on a misconceived basis in relation to the requirements of s 208 of the Act in providing the reasons and further matters under s 27B of the Acts Interpretation Act.

Relief

  1. [143]
    The information notice dated 24 September 2021 does not comply with the requirements of s 208 of the Act.
  2. [144]
    The respondent contends that even if it had to give reasons there is no reason to set aside the decision because it has no utility insofar as that the respondent would be required to provide would not exceed what was provided in the statement of reasons in relation to the decision of 24 September 2021. Given the statement of reasons rely on the Ministerial Guidelines as if the obligation to give reasons were variable in nature to mould with the circumstances, as in the case of common law principles they proceed on the same erroneous belief as to the obligation of the respondent in providing the information notice in compliance with s 208 of the Act. I do not consider that the grant of relief has no utility. Further the statement of reasons was provided after the applicant had to provide submissions to show cause and after the decision of 20 December 2021 was made.
  3. [145]
    The information notice provided on 24 September 2021 did not comply with s 208(4) of the Act. The decision of 20 December 2021 which it is agreed is the operative decision should be set aside and the respondent directed to remake the decision according to law. The respondent has the benefit of these reasons and I do not think it necessary to direct that an information notice be provided in accordance with s 208(4) of the Act and s 27B of the Acts Interpretation Act, nor do I want to preclude any claim for public interest immunity being made. While the decision of 20 December 2021 is the operative decision the decision of 7 February 2021 should also be set aside insofar as it sought to maintain the status quo arising from the 20 December 2021 decision.

Orders

  1. [146]
    The Court will make the following orders:
    1. (a)
      The decisions of 20 December 2021 and 7 February 2022 be set aside. The respondent is directed to remake the decision under s 208(2) of the Act according to law.
    2. (b)
      The respondent should pay the applicant’s costs of and incidental to the application on the standard basis.
    3. (c)
      The parties have liberty to apply on three business days’ notice.
  2. [147]
    I have provided liberty to apply in the event any further orders are required as a result of the 13 September 2021 hearing.

Footnotes

[1]  While reference to the date of hearing was contained in the affidavit material it appears it was not brought to the attention of the Court when the hearing date was set down.

[2]  [2008] QSC 163.

[3]  Queensland Government, Ministerial Guidelines to Parole Board Queensland (3 July 2017) (Ministerial Guidelines).

[4]  R v A2 (2019) 269 CLR 507 at [33]-[37].

[5] Acts Interpretation Act 1954 (Qld) s 14A (Acts Interpretation Act).

[6]  [2018] QSC 216.

[7] (1985) 159 CLR 550.

[8] Kioa at 582.

[9]  (2010) 241 CLR 252 at 258.

[10]Kioa at 615; see also McLaren v Rallings [2015] 1 Qd R 438 at [69] (McLaren).

[11]Kioa at 626.

[12]Kioa at 629.

[13]Kioa at 615.

[14]  Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [25] (Veal).

[15] Kioa at 584.

[16] Kioa at 585.

[17] [2018] QCA 47.

[18]Finn CA at [23].

[19]Finn CA at [25].

[20] [2008] QSC 163.

[21] [2001] NSWCA 411.

[22]Sabag at [43].

[23] Although Beazley JA and Sperling J disagreed with Davies JA in finding a lack of procedural fairness, there was no dissent as to the purpose of the provision. In that regard, Sperling J (with whom Beazley JA agreed) considered that there was nothing in the complaint giving notice to the complainant of either of two matters namely, incompetence to perform the procedures carried out or having misled investigating agencies, such that his Honour considered that the appellant had no notice that those matters would be or might be relied upon by the Tribunal as constituting or contributing to its ultimate findings: at [106]-[107].

[24]  (1978) 1 ALD 183 (Re Palmer (No. 2)).

[25]Re Palmer (No. 2) at [43].

[26]   At [32]-[37], recently applied in R v Wassmuth; ex parte Attorney-General (Qld) [2022] QCA 113.

[27]  Unlike Minister for Immigration and Border Protection v Kumar (2017) 260 CLR 267 which specified “non-disclosable information”.

[28]  Schedule 4 of the Act (definition of ‘information notice’).

[29]  s 15(2) of the Act.

[30] Cf McLaren at [38] where Jackson J noted that the Court’s constitutionally entrenched supervisory jurisdiction to grant relief on judicial review for jurisdictional error continues in relation to the decisions mentioned in s 17 of the Act.

[31] [2015] 1 Qd R 438 at [92] and [107].

[32] McLaren at [30].

[33] McLaren at [106] and [109].

[34] McLaren at [42]-[43].

[35]  See McLaren at [107]–[110].

[36] McLaren at [48], [50], [65] and [69].

[37] See s 290(5)(b)(ii) of the Act.

[38] Finn CA at [25].

[39] Samad v District Court of New South Wales (2002) 209 CLR 140 at [32] per Gleeson CJ and McHugh J. See also s 32CA(1) of the Acts Interpretation Act which states “In an Act, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.” Note however that as per s 4 of the Acts Interpretation Act this is subject to a contrary intention in the statute. C.f. R v Holley: ex parte Attorney-General (Qld) [1997] 2 Qd R 407 at 433

[40]  Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106.

[41] Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 discussed by the Court in Ward v Williams (1954-55) 92 CLR 505-506.

[42]  Thomas Prince and Perry Herzfeld, Interpretation (Lawbook & Co, Second edition, 2020) at 4.230.

[43] Section 341(1) of the Act.

[44]  (2002) 209 CLR 140 at [36].

[45] [2010] QSC 437.

[46]Ashley at [19].

[47]Ashley at [20].

[48]  The applicant’s counsel did however locate a decision of Oak Valley (Maralinga) Inc v Aboriginal and Torres Strait Islander Commission. As the applicant contends and the respondent agrees, the different statutory regime that operated in that case means that the decision provides little assistance to the determination of the present case.

[49]  Similarly, ss 13A and 14 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

[50] Commissioner of Police, New South Wales v Guo (2016) 332 ALR 236 at [62] per Robertson and Griffiths JJ.

[51]  Although the definition of “confidential information” in s 341of the Act is broader that the established categories of public interest immunity, although they are not closed.

[52] HT v R (2019) 269 CLR 403 at 431.

[53] HT v R (2019) 269 CLR 403 at 431 at [28]-[29], [33] and [70].

[54]  An argument which was rejected in Gypsy Jokers in relation to the statutory provision considered in that case.

[55]  [1990] QSC 312.

[56]  (2008) 234 CLR 532 (Gypsy Jokers).

[57]  (1982) 154 CLR 25.

[58]  (2019) 269 CLR 403.

[59]  At [29].

[60] Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 674-5; Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595 at [52]-[53].

[61] Sankey v Whitlam (1976) 142 CLR 1 at 38.

[62] Baker v Campbell (1983) 153 CLR 52 at [589]; Middendorp Electric Co Pty Ltd v Law Institute of Victoria and Anor [1994] 2 VR 313 at 323-324.

[63] Veal at [23]- [24]

[64]   See clauses 3.1, 3.2 and 3.3 of the Ministerial Guidelines.

[65] [2016] QSC 236 at [33] per Bond J.

[66] Chalkley at [33].

[67] [2016] QSC 233.

[68]Finn at [12].

[69]Finn at [20]-[23]. This part of his Honour’s reasoning was not overturned upon appeal.

[70]  At [23]-[24].

[71]  See [11].

[72]  With whom Fraser JA and Crow J agreed.

[73]  [2019] QCA 118.

[74]  At [85].

[75]Sunland at [100].

[76] Sunland at [108].

[77] Sunland at [108] and [114].

[78]  Which is in some respects incongruous with s 208 of the Act which provides for the information notice to be provided, the prisoner be invited to show cause by making submissions and then for the respondent to determine whether or not it will vary its decision after considering the submissions. However, the proper construction of the section is that where the respondent is revisiting its decision to suspend again after the initial decision was made and an information notice was provided and a decision made, the respondent in effect is triggering the process in s 208 of the Act by making a preliminary decision not to vary the original decision to suspend after considering further circumstances.

Close

Editorial Notes

  • Published Case Name:

    McQueen v Parole Board Queensland

  • Shortened Case Name:

    McQueen v Parole Board Queensland

  • Reported Citation:

    (2022) 11 QR 481

  • MNC:

    [2022] QSC 27

  • Court:

    QSC

  • Judge(s):

    Brown J

  • Date:

    25 Aug 2022

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] QSC 27 (2022) 11 QR 48125 Aug 2022-
Notice of Appeal FiledFile Number: CA10613/2205 Sep 2022-
Appeal Determined (QCA)[2022] QCA 230 (2022) 12 QR 40222 Nov 2022-

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
2 citations
Jump To
Cite 1 - (2005) 225 CLR 88
Cite 2 - (2005) 225 CLR 88
Ashley v Southern Queensland Regional Parole Board [2010] QSC 437
2 citations
Jump To
Cite 1 - [2010] QSC 437
Cite 2 - [2010] QSC 437
Attorney-General for New South Wales v Stuart (1994) 34 NSW LR 667
2 citations
Jump To
Cite 1 - (1994) 34 NSW LR 667
Cite 2 - (1994) 34 NSW LR 667
Baker v Campbell (1983) 153 C.L.R . 52
2 citations
Jump To
Cite 1 - (1983) 153 C.L.R . 52
Cite 2 - (1983) 153 C.L.R . 52
Border Protection v Kumar (2017) 260 CLR 267
2 citations
Jump To
Cite 1 - (2017) 260 CLR 267
Cite 2 - (2017) 260 CLR 267
Central and Northern Queensland Regional Parole Board v Finn [2018] QCA 47
2 citations
Jump To
Cite 1 - [2018] QCA 47
Cite 2 - [2018] QCA 47
Chalkley v Southern Queensland Regional Parole Board [2016] QSC 236
2 citations
Jump To
Cite 1 - [2016] QSC 236
Cite 2 - [2016] QSC 236
Church of Scientology Inc v Woodward (1982) 154 CLR 25
2 citations
Jump To
Cite 1 - (1982) 154 CLR 25
Cite 2 - (1982) 154 CLR 25
Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595
2 citations
Jump To
Cite 1 - [2022] NSWSC 595
Cite 2 - [2022] NSWSC 595
Commissioner of Police, New South Wales v Guo (2016) 332 ALR 236
2 citations
Jump To
Cite 1 - (2016) 332 ALR 236
Cite 2 - (2016) 332 ALR 236
Elliott v London Borough of Southwark (1976) 2 All E.R. 781
1 citation
Jump To
Cite 1 - (1976) 2 All E.R. 781
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
2 citations
Jump To
Cite 1 - (1971) 127 CLR 106
Cite 2 - (1971) 127 CLR 106
Finn v Central and Northern Queensland Regional Parole Board [2016] QSC 233
2 citations
Jump To
Cite 1 - [2016] QSC 233
Cite 2 - [2016] QSC 233
Gold Coast City Council v Sunland Group Ltd(2019) 1 QR 304; [2019] QCA 118
2 citations
Jump To
Cite 1 - [2019] QCA 118
Cite 2 - [2019] QCA 118
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532
2 citations
Jump To
Cite 1 - (2008) 234 CLR 532
Cite 2 - (2008) 234 CLR 532
Harms v Queensland Parole Board [2008] QSC 163
3 citations
Jump To
Cite 1 - [2008] QSC 163
Cite 2 - [2008] QSC 163
Cite 3 - [2008] QSC 163
HT v The Queen (2019) 269 CLR 403
4 citations
Jump To
Cite 1 - (2019) 269 CLR 403
Cite 2 - (2019) 269 CLR 403
Cite 3 - (2019) 269 CLR 403
Cite 4 - (2019) 269 CLR 403
Julius v Bishop of Oxford (1880) 5 App Cas 214
2 citations
Jump To
Cite 1 - (1880) 5 App Cas 214
Cite 2 - (1880) 5 App Cas 214
Kioa v West (1985) 159 C.L.R 550
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
McLaren v Rallings[2015] 1 Qd R 438; [2014] QSC 68
3 citations
Jump To
Cite 1 - [2015] 1 Qd R 438
Cite 2 - [2015] 1 Qd R 438
Cite 3 - [2015] 1 Qd R 438
McQueen v Parole Board Queensland [2018] QSC 216
2 citations
Jump To
Cite 1 - [2018] QSC 216
Cite 2 - [2018] QSC 216
Middendorp Electric Co Pty Ltd v Law Institute of Victoria and Anor [1994] 2 VR 313
2 citations
Jump To
Cite 1 - [1994] 2 VR 313
Cite 2 - [1994] 2 VR 313
Oak Valley (Maralinga) Inc v Aboriginal and Torres Strait Islander Commission (1999) 98 FCR 1
1 citation
Jump To
Cite 1 - (1999) 98 FCR 1
Onea v Chief Executive, Department of Corrective Services [2002] QSC 420
1 citation
Jump To
Cite 1 - [2002] QSC 420
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
R v Holley; ex parte Attorney-General [1997] 2 Qd R 407
2 citations
Jump To
Cite 1 - [1997] 2 Qd R 407
Cite 2 - [1997] 2 Qd R 407
R v Robert Smith [1990] QSC 312
2 citations
Jump To
Cite 1 - [1990] QSC 312
Cite 2 - [1990] QSC 312
R v Wassmuth; Ex parte Attorney-General(2022) 11 QR 82; [2022] QCA 113
2 citations
Jump To
Cite 1 - [2022] QCA 113
Cite 2 - [2022] QCA 113
Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183
2 citations
Jump To
Cite 1 - (1978) 1 ALD 183
Cite 2 - (1978) 1 ALD 183
Sabag v Health Care Complaints Commission [2001] NSWCA 411
2 citations
Jump To
Cite 1 - [2001] NSWCA 411
Cite 2 - [2001] NSWCA 411
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
2 citations
Jump To
Cite 1 - (2010) 241 CLR 252
Cite 2 - (2010) 241 CLR 252
Samad v District Court of New South Wales (2002) 209 CLR 140
3 citations
Jump To
Cite 1 - (2002) 209 CLR 140
Cite 2 - (2002) 209 CLR 140
Cite 3 - (2002) 209 CLR 140
Sankey v Whitlam (1976) 142 CLR 1
2 citations
Jump To
Cite 1 - (1976) 142 CLR 1
Cite 2 - (1976) 142 CLR 1
Ward v Williams (1954-1955) 92 CLR 505
1 citation
Jump To
Cite 1 - (1954-1955) 92 CLR 505
Ward v Williams (1954-55) 92 CLR 506
1 citation
Jump To
Cite 1 - (1954-55) 92 CLR 506

Cases Citing

Case NameFull CitationFrequency
McQueen v Parole Board Queensland [2024] QSC 3087 citations
Parole Board Queensland v McQueen(2022) 12 QR 402; [2022] QCA 23011 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.