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Naehu v Parole Board of Queensland[2024] QSC 240

Naehu v Parole Board of Queensland[2024] QSC 240

SUPREME COURT OF QUEENSLAND

CITATION:

Naehu v Parole Board of Queensland & Anor [2024] QSC 240

PARTIES:

JARED PETER NAEHU

(applicant)

v

PAROLE BOARD OF QUEENSLAND

(first respondent)

CHIEF EXECUTIVE, QUEENSLAND CORRECTIVE SERVICES

(second respondent)

FILE NO/S:

BS No 7589 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2024

JUDGE:

Williams J

ORDER:

  1. The Amended Application is dismissed.
  2. I will hear from the parties as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant applied for parole – where the first respondent refused the application for parole – where the applicant sought a statutory order of review in respect of the refusal on the grounds that the decision was affected by alleged fraudulent information provided by Corrective Services – whether the information was fraudulent and whether the decision was affected by the fraudulent information

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the applicant applied for parole – where the first respondent refused the application for parole – whether relief could be granted under s 59 of the Human Rights Act 2019 (Qld) in respect of the second respondent who did not make the decision being reviewed

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IMPROPER PURPOSE – where the applicant applied for parole – where the first respondent refused the application for parole – where the applicant sought a statutory order of review in respect of the refusal on grounds that the decision was based on a rule or policy that the applicant must complete a sexual intervention program in order to obtain parole – where the applicant did not complete any programs because he maintained his innocence in respect of some of the offending – whether the first respondent made a decision in accordance with a  rule or policy without regard to the merits of the case

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant applied for parole – where the first respondent refused the application for parole – where the applicant sought a statutory order of review in respect of the refusal on the grounds that first respondent breached natural justice because the applicant’s right to maintain innocence was disregarded – whether the first respondent breached natural justice by disregarding the applicant’s maintenance of innocence

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE  – where the applicant applied for parole – where the first respondent refused the application for parole – where the applicant sought a statutory order of review in respect of the refusal on the grounds that the second respondent did not make available a suitable rehabilitative program for the applicant – whether the second respondent provided a suitable rehabilitative program and observed the statutory procedure

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant applied for parole – where the first respondent refused the application for parole – where the applicant sought a statutory order of review in respect of the refusal on the grounds that first respondent failed to take into account the applicant’s maintenance of innocence – whether the first respondent failed to take into account a relevant consideration – whether the first respondent made a decision contrary to law because of a failure to take into account the applicant’s maintenance of innocence

Corrective Services Act 2006 (Qld) s 3, s 193(1), s 193(4), s 263, s 263(1), s 266, s 266(1)(c), s 266(1)(e),

Corrective Services Act 1966 (Vic) s 21

Criminal Code Act 1899 (Qld) s 92, s 92A, s 94

Human Rights Act 2019 (Qld) s 32(2)(k)

Judicial Review Act 1991 (Qld) s 4, s 20(2)(a), s 20(2)(b), s 20(2)(e), s 20(2)(g), s 20(2)(i), s 23(b)

Anderson v Pavic [2005] VSCA 244

Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124

Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal (2008) 216 FCR 405; [2008] FCA 1393

AVN20 v Federal Circuit Court of Australia [2020] FCA 584

Batts v Department of Corrective Services; Fogarty v Department of Corrective Services [2002] QSC 206

Calanca v Parole Board of Queensland [2019] QSC 34

Clark v Commissioner for Corrective Services [2016] NSWCA 186

EL418 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 371; [2020] FCAFC 230

Flynn v R (1949) 79 CLR 1; [1949] HCA 38

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7

Knight v Money [2015] VSC 105

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1968] HCA 40

Naehu v Parole Board of Queensland [2023] QSC 16

Patsalis v State of New South Wales [2012] NSWSC 267

SQH v Scott (2022) 10 QR 215; [2022] QSC 16

Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739

Yeo v Queensland Corrective Services Commission (Unreported, Supreme Court of Queensland, Dowsett J, 13 February 1998)

COUNSEL:

The applicant appeared on his own behalf

C Templeton for the first respondent

A Hellewell for the second respondent

SOLICITORS:

The applicant appeared on his own behalf

Parole Board Queensland Legal Services Unit for the first respondent

Crown Law for the second respondent

  1. [1]
    The Applicant by way of an amended application for a statutory order of review[1] (Amended Application) seeks relief pursuant to the Judicial Review Act 1991 (Qld) (Judicial Review Act) in relation to the decision of the First Respondent on 8 February 2024 refusing his application for a parole order (Decision).  The First Respondent provided a statement of reasons for the Decision dated 11 March 2024 (Reasons).
  2. [2]
    The Amended Application provides that “[i]n making its decision to deny the applicant a parole order [the First Respondent], using information provided by [the Second Respondent],” the First Respondent breached the Judicial Review Act as follows:
    1. s 20(2)(a) – a breach of natural justice.
    2. s 20(2)(b) – failure to observe procedures that were required by law to be observed.
    3. s 20(2)(e) – improper exercise of power: failure to take a relevant consideration into account.[2]
    4. s 20(2)(g)[3] – the decision was induced or affected by fraud.
    5. s 20(2)(i) – the decision was otherwise contrary to law.
  3. [3]
    The Second Respondent[4] was included in the Amended Application for two reasons expressly stated in the Amended Application:
    1. First, the Applicant alleges that the Second Respondent breached the Criminal Code[5] by providing the First Respondent with “false, misrepresented and misleading evidence that the [First Respondent] used in its decision-making to refuse the granting of a parole order for the Applicant”.  The Applicant relies on s 20(2)(g)[6] of the Judicial Review Act.  Further, the Applicant says that while the Second Respondent was not “responsible” for the Decision, that decision could not have been made without the information provided by the Second Respondent.
    2. Secondly, the Applicant alleges that the Second Respondent breached s 266 of the Corrective Services Act 2006 (Qld) (Corrective Services Act) by:
      1. failing to make available a suitable rehabilitative program, given the Applicant’s “categorical denial” of any sexual offence; and
      2. “simultaneously disingenuously persuading” the Applicant to undertake a specific program that the Queensland Corrective Services (QCS) program facilitators were aware was unsuitable for the Applicant,

which has directly impacted the Decision by the First Respondent. The Applicant relies on s 20(2)(i) of the Judicial Review Act. Further, the Applicant says that while the Second Respondent was not “responsible” for the Decision, had the Second Applicant met its alleged legal obligation to provide the Applicant with a suitable rehabilitative program, the First Respondent could not have made the Decision.

  1. [4]
    The Applicant seeks various orders, including:
    1. An order quashing or setting aside the Decision.
    2. An order remitting the Decision to the First Respondent to determine in accordance with law.
    3. An order that the Second Respondent amend the records so that “false and misleading information” in relation to the Applicant’s application for parole and program participation is removed.
    4. An order that:
      1. the Second Respondent make available “rehabilitative programs relevant to the Applicant’s acknowledged offending as well as his maintaining of his innocence in relation to any sexual offending”; or
      2. if no program can be facilitated, the applicant be “deemed suitable” to complete a rehabilitative program in the community as part of his parole conditions.
    5. An order “determining” that the Applicant is “not recommended to undertake further sexual offending programs due to his categorical denial of having committed a sexual offence”.
    6. An order that the First Respondent reconsider the matter within 28 days.
  2. [5]
    Given the nature of the Court’s jurisdiction on an application for judicial review under the Judicial Review Act, if any grounds are established, further consideration will need to be given to whether the Court has power to make some of the orders sought.[7]
  3. [6]
    Before considering the Applicant’s grounds in turn, it is necessary to consider some relevant background.

Current sentence and application for parole

  1. [7]
    The Applicant is currently serving a term of imprisonment of 10 years and six months, with a parole eligibility date of 11 May 2021 and a fulltime discharge date of 11 April 2028.
  2. [8]
    The Applicant was convicted in the District Court following a jury trial[8] and was sentenced[9] as follows:
    1. On the count of rape, nine years imprisonment.
    2. On the first count of torture, six years imprisonment.
    3. On the second count of torture, five years imprisonment.
    4. On the count of assault occasioning bodily harm whilst armed,[10] four years imprisonment.
    5. For each of the counts of common assault[11] and deprivation of liberty,[12] two years imprisonment.
  3. [9]
    The terms of imprisonment were to be served concurrently. A period of 502 days in custody was not declarable but was taken into account in setting the parole eligibility date of 11 November 2020.
  4. [10]
    Further, the Applicant was convicted in the Supreme Court following a guilty plea in relation to offending in May 2016 involving possession of 75.59 grams of methylamphetamine, 2.784 grams of cocaine, 443 grams of cannabis, 1.534 grams of MDMA and 8.082 grams of testosterone.  The Applicant was sentenced as follows:
    1. on the two counts of possessing a dangerous drug in excess of 2 grams - 18 months imprisonment cumulative on the District Court sentence; and
    2. on the three counts of possession – 6 months imprisonment.
  5. [11]
    A parole eligibility date was fixed at 11 May 2021.
  6. [12]
    On 12 November 2020 the Applicant applied for parole.  On 24 January 2022 the First Respondent refused the application and provided reasons on 8 April 2022 (2022  Decision).
  7. [13]
    On 24 May 2022 the Applicant filed an application seeking judicial review of the First Respondent’s 2022 Decision (2022 JR Application).  On 21 February 2023 Kelly J dismissed the application and published reasons (2023 JR Decision).[13] 
  8. [14]
    The 2023 JR Decision summarises the factual circumstances of the Applicant’s offending in respect of both the District Court and the Supreme Court convictions as follows: 

“[5]  The District Court offending occurred in 2016, when the applicant was around 31 years of age. The female complainant was about 29 or 30 years of age. The pair were in a relationship. When visiting New Zealand, a man had taken sexual advantage of the complainant. She returned to Australia and told the applicant. He became irate and the initial offending involved the applicant acting towards the complainant as follows. He took her into a bathroom, had her take her clothes off and made her shower whilst he violently rubbed her face, arms, body and legs with a kitchen scourer. He forced the scourer into her vagina. He spat on the complainant, called her degrading names and threatened to burn her with a lighter. He flicked cigarettes at her and slapped her. The ordeal lasted for hours, during which time he attempted to hang himself with an electrical cord.

[6]  About a month later, the applicant took a meat cleaver and repeatedly hit the complainant on her back and arms. Her left little finger was fractured. The applicant made the complainant take her clothes off and walk whilst she was on all fours, like a dog. He drove her to their friends’ place and, once there, made her walk whilst she was on all fours and made degrading and humiliating comments about her. He then drove the complainant to her father’s house and made her walk naked up to the house whilst she was on all fours. The applicant inserted a sex toy in the complainant’s mouth, took her into the street and began yelling words to the effect that the complainant was available for sex. A further month later, the applicant made the complainant sit naked on a tiled floor for hours. He put a knife under her feet and told her to stand on her toes. Later, he would hand her a syringe containing methylamphetamine and tell her to inject him “to finish [him] off”.

[7]  The relevant passages of the District Court sentencing remarks may be set out as follows:

“On any view, these offences were appalling, humiliating, degrading and disgraceful. You have had a problem with drugs for most of your adult life. You have been in pre-sentence custody now for about 17 months. During that time you completed a number of courses and have also resumed your religious beliefs. … There is no doubt that your offending had a very severe negative physical, emotional and financial impact upon her and had a significant impact on her mother and also adversely affected her father. Your actions towards the complainant are likely to negatively impact her for many years to come ….” 

…

[11]  The relevant passages of the Supreme Court sentencing remarks may be set out as follows:

“… this is a significant quantity of drugs … it is serious criminal offending; particularly, given your criminal history. That criminal history sets out that you have convictions previously for drug offences. And that criminal history, which is some five pages, involves assault occasioning bodily harm, as well as unauthorised dealing in shop goods. There are also numerous breaches on that criminal history. Of greatest concern is the fact that on the 12th of October 2017 you were convicted and sentenced in the District Court for a number of offences, including rape, which was [a] domestic violence offence, as well as torture.”

  1. [15]
    On 5 September 2023, the Applicant again applied for parole and on 9 November 2023 the First Respondent made a preliminary decision to refuse the application.
  2. [16]
    The Applicant was informed of the preliminary decision and further submissions were provided by the Applicant on 17 November 2023, 24 November 2023, 10 January 2024 and 5 February 2024.
  3. [17]
    The First Respondent made the Decision on 8 February 2024 and subsequently provided the Reasons on 11 March 2024.
  4. [18]
    The Reasons will be considered in the context of the specific grounds of review considered below.
  5. [19]
    It is logical to consider the issues raised in respect of the Second Respondent first as they are relevant to the grounds of review raised in respect of the First Respondent’s Decision.

Role and obligations of the Second Respondent

  1. [20]
    The Corrective Services Act 2006 (Qld) (Corrective Services Act) provides for corrective services in Queensland and has the purpose stated in s 3 as follows:

“(1) The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.

  1. This Act recognises that every member of society has certain basic human entitlements, and that, for this reason, an offender’s entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.
  1. This Act also recognises –
  1. the need to respect an offender’s dignity; and
  1. the special needs of some offenders by taking into account –
  1. an offender’s age, sex or cultural background; and
  1. any disability an offender has.”
  1. [21]
    Part 2 of the Corrective Services Act deals with the Chief Executive.  Division 1 sets out the general functions and powers and Division 2 sets out the particular powers and obligations of the Chief Executive.
  2. [22]
    Section 263 provides the general functions and powers of the Chief Executive including as follows:

“(1) Subject to any direction of the Minister and any administrative arrangements made by the Governor in Council, the chief executive is responsible for –

  1. the security and management of all corrective services facilities; and
  1. the safe custody and welfare of all prisoners; and
  1. the supervision of offenders in the community.
  1. The chief executive has –
  1. the power to do all things necessary or convenient to be done for, or in connection with, the performance of the chief executive’s functions under the Act; and
  1. the powers of an inspector, including the chief inspector, and a corrective services officer.”
  1. [23]
    Division 2 sets out provisions containing particular powers and obligations.  Relevantly, s 266 provides for programs and services to help offenders as follows:

“(1) The chief executive must establish or facilitate programs or services –

  1. for the religious welfare of prisoners; and
  1. to support the health and wellbeing of prisoners; and
  1. to help prisoners reintegrate into the community after their release from custody, including by acquiring skills; and
  1. to initiate, keep and improve relationships between offenders and members of their families and the community; and
  1. to help rehabilitate offenders.
  1. The programs or services must take into account the special needs of offenders.”

Offering suitable program

  1. [24]
    The Applicant’s complaint is that the Second Respondent:
    1. failed to make available a rehabilitative program suitable for the Applicant given that the Applicant’s “categorical denial of having committed any sexual offence”, in contravention of s 266 of the Corrective Services Act; and
    2. “disingenuously persuading” the Applicant to undertake a specific program that the Queensland Corrective Services (QCS) program facilitators were aware was unsuitable for the Applicant.
  2. [25]
    The Applicant submits that this failure had a direct affect on the First Respondent’s Decision.  The failure to provide a suitable program has resulted in the Applicant being unable to satisfy the First Respondent that he is suitable to be granted a parole order.
  3. [26]
    The Applicant contends that his “special needs” are aligned with his right pursuant to s 32 (2)(k) of the Human Rights Act 2019 (Qld) (Human Rights Act) to maintain his innocence in relation to any sexual offending.  Accordingly, the Applicant contends that the Second Respondent was obliged to provide a “deniers program” to provide treatment for men who have been convicted of sexually assaulting/abusing adults or children, but who maintain they were wrongly accused or falsely identified for all sexual offences for which they have been convicted.
  4. [27]
    The Applicant’s affidavit evidence includes information in respect of a QCS program for Indigenous inmates along these lines, being the “Strong Solid Spirit” program being trialled at the Lotus Glen Correctional Centre.
  5. [28]
    The Applicant also contends:
    1. The Applicant has completed a number of programs in custody which proves he is not opposed to undertaking rehabilitative programs.
    2. The Applicant participated in the “Getting Started: Preparatory Program” (GS:PP), although the Applicant contends the program is designed for male offenders who have committed sexual or sexually motivated offences.  The Applicant made it clear during his participation in the GS:PP that he denied having perpetrated sexual offending.
    3. Following completion of the GS:PP the Applicant was recommended to participate in the “Medium Intensity Sexual Offenders” program (MISOP).  The Applicant submits that this was contrary to the QCS protocol that a prisoner’s categorical denial of committing sexual offending renders them ineligible to participate in the MISOP.
    4. In October 2021 the Applicant was exited part-way through the MISOP on the basis of the Applicant’s categorical denial of having sexually offended.
    5. In early 2023 the Applicant was approached again to participate in the MISOP.  The Applicant told the QCS facilitators that his position was unchanged.  The Applicant was advised that his “categorical denial” had been reclassified to “partial denial” as a result of his admitted relationship with the accuser, which permitted him to undertake the MISOP.  The Applicant says that this reclassification occurred without consultation with him.
    6. The reclassification to “partial denier” was used “inappropriately and subversively” in an effort to have the Applicant participate in a program that was unsuitable for him, given his categorical denial of having committed any sexual offence.
    7. The Applicant only agreed to participate in the MISOP again on the basis he would be permitted to complete the MISOP without having to make admissions of guilt in relation to sexual offending.
    8. The Applicant was exited from the MISOP in 2023 due to his continued categorical denial of having committed any sexual offending.
    9. The First Respondent recommends in the Reasons that the Applicant undertake the “High Intensity Sexual Offenders Program” (HISOP), which may give the First Respondent more confidence that the Applicant’s risk to the community would be adequately mitigated.
    10. This recommendation disregards the Applicant’s maintenance of innocence which renders him ineligible for participation in the HISOP. 
  6. [29]
    Subsequently to the Amended Application being made, the Applicant has been offered, and has commenced, one-on-one counselling sessions with an external psychologist.  The sessions began in July 2024 and at the time of the hearing two sessions had been completed.  It is not appropriate to speculate on the outcome of the one-on-one counselling sessions other than to note that the psychologist’s opinion as to the Applicant’s participation in the one-on-one sessions may be relevant to any future application by the Applicant for a parole order.
  7. [30]
    The Second Respondent contends that pursuant to s 266(1)(e) of the Corrective Services Act the Chief Executive has established and delivered programs, including sexual offending treatment programs, in custody and in the community.
  8. [31]
    The range of programs is outlined in the affidavit of Catherine Hogarth affirmed 16 August 2024.  In particular, the Second Respondent contends that:
    1. The range of programs includes programs targeting the specific needs of reoffending risk (that is ‘criminogenic’ needs) and also ‘non-criminogenic’ needs such as health and well-being, literacy and numeracy.
    2. The range of programs also includes various levels of intensity and duration to allow for different prisoner needs and risks.
    3. The range of programs also allows for flexibility, with some delivered on a continuously rolling format.
    4. The sexual offender treatment programs delivered by the Second Respondent are in a group format.  However, where a prisoner is considered unsuitable for group programs then processes are available for individual treatment.
  9. [32]
    In response to the contention that there has been a failure to provide a suitable program, the Second Respondent contends that the relevant provisions of the Corrective Services Act do not confer rights on prisoners that are enforceable in Court.  In support of this contention, the Second Respondent relies on the principles identified in several decisions of the Federal Court, including:
    1. To the extent that these provisions involve “duties”, they are duties of imperfect obligation which are unenforceable by the Courts:  Yarmirr v Australian Telecommunications Corporation.[14]
    2. “It is, for example, not uncommon for Commonwealth and State legislatures to impose a duty on a public office holder or corporation to take or not to take certain action, even though the duty is not enforceable in the courts … Such a duty has been described as a duty of imperfect obligation…”:  AVN20 v Federal Circuit Court of Australia.[15]
  10. [33]
    In particular, the Second Respondent submits that s 263(1) of the Corrective Services Act does not use language that creates a duty.  The language confers a “responsibility” on the Chief Executive for the identified matters.  Whilst the responsibility for “safe custody and welfare of prisoners” is broad, the language is “inapt” to require the Chief Executive to ensure that a prisoner is provided with a particular type of treatment program.
  11. [34]
    The Victorian equivalent of s 263(1)(a) and (b) of the Corrective Services Act was considered by the Victorian Supreme Court in Knight v Money.[16]  The Court considered an argument that there was a duty to provide a “sentence plan” for a prisoner pending his release and that such a duty arose from s 21 of the Victorian Corrections Act 1986. 
  12. [35]
    Relevantly, Cavanough J considered s 21 and stated as follows:

“75 … Section 21 makes the Governor of a prison “responsible” for, among other things, the “welfare” of the prisoners … it is surely a matter for the responsible “Governor” to determine how best the “welfare” of the prisoners should be provided for.  Once again, the Governor could not possibly be obliged to take steps to prepare a prisoner for release by a particular time unless the prisoner had a right to be released by that time, or at the very best, unless the Governor should have expected that the prisoner would, if properly prepared be released by that time.

76 Generally speaking, legal duties and obligations are correlative to legal rights.  Mr Knight did not really suggest that, as at December 2012 or March 2013, he had a prospective legal right to be released on parole on or shortly after 8 May 2014.  Any such suggestion would have been hopeless.”

  1. [36]
    The Second Respondent relies on this analysis in support of the contention that s 263(1) of the Corrective Services Act confers on the Chief Executive overall responsibility for the management of prisons and provision of this character are not ordinarily construed as conferring fixed legal rights.
  2. [37]
    Reliance is also placed on:
    1. Flynn v R:[17] “… s 21(8) does not … confer on prisoners a legal right to be set at liberty, but is concerned only with the management and discipline of the gaols and with conferring on gaolers an authority to set them at liberty upon the terms of the regulations made therein being complied with.”
    2. Clark v Commissioner for Corrective Services:[18] “… Ultimately, the ambit of the legitimate discretion of prison authorities is a matter of statutory construction. However, such legislation should ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the courts.[19] Statutes governing discipline and control of prisoners in gaol should not be construed as if they were intended to confer fixed legal rights upon prisoners. That is not to say that judicial review is unavailable, rather that the relevant legislation is indicative of parliament’s intention that those responsible for the maintenance of prison administration and management should be given a broad discretion commensurate with the nature of the task and the balancing of potentially conflicting considerations.[20] Thus, the Court has the power to grant public law remedies if it can be established that the relevant body conferred with power or functions exceeded authority, failed to perform some duty imposed by law or threatens to do so. However, those remedies are not a means of reviewing the merits of administrative action.[21]”
  3. [38]
    The Second Respondent further considers s 266 of the Corrective Services Act and submits that that provision does not assist the Applicant, and contends that:
    1. The language of s 266 permits the Chief Executive to establish or facilitate programs and services.  The language of the section does not require the provision of a particular program or service, or a mode of delivery such as individual or group.  The Second Respondent submits that programs have been established.  Further, it is submitted that the language of the section does not support the Applicant’s contention for a duty to provide individualised treatment programs.
    2. There is no duty to provide individualised treatment programs as contended for by the Applicant.  Further, there is therefore no duty to make the decision contended for by the Applicant.
  4. [39]
    The Second Respondent contends that notwithstanding there is no duty, the Second Respondent has now provided a rehabilitation program as sought by the Applicant: being approved for 10 sessions of individual intervention with a qualified psychologist.
  5. [40]
    Further, the Second Respondent submits that even if there was a duty, the decision (or failure to make a decision) would not be reviewable in any event.  The Second Respondent submits that such a decision would not be a decision to which the Judicial Review Act applies[22] as it would not be a “decision of an administrative character made … under an enactment” in accordance with the High Court decision in Griffith University v Tang.[23]
  6. [41]
    The High Court identified two criteria, including that the decision “must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.”  The Second Respondent contends that in the current case, that criterion has not been met.
  7. [42]
    That is, in the current case:
    1. the Applicant does not have any legal right to a particular program; and
    2. the Applicant does not have any legal right to have a treatment program delivered in a particular way, being individually rather than group.
  8. [43]
    Ultimately the Second Respondent contends that the alleged decision (or failure to make a decision) to refuse the delivery of an individualised program does not affect any legal right or obligation.
  9. [44]
    The Second Respondent identifies the correct legal principles in respect of determining whether s 263(1) and s 266(1)(e) of the Corrective Services Act give rise to an enforceable duty or obligation of the Second Respondent.  I agree with the analysis of the authorities that the nature of the subject matter and the language of the provisions considered in the context of the object and purpose of the Corrective Services Act, do not give rise to a duty as the Applicant contends.  No duty that confers a right on prisoners that is enforceable in the Court arises.
  10. [45]
    The Second Respondent has made rehabilitative programs available.  There is no duty to provide a specific program, a particular type of program or mode of program delivery.
  11. [46]
    Further, there is no duty on the Second Respondent to provide an individualised treatment program.  Consequently, there has been no failure by the Second Respondent to make the decision that the Applicant contends ought to have been made in the circumstances of this case.
  12. [47]
    Additionally, the alleged failure of the Second Respondent to make a decision would not be reviewable in any event as it is not a “decision of an administrative character made … under an enactment.”
  13. [48]
    That is, the criterion that the decision “must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment” is not met as required by the High Court decision in Griffith University v Tang.[24]

Alleged fraudulent information

  1. [49]
    The Applicant also alleges that the First Respondent’s Decision was affected by “fraudulent information” provided by QCS.  The Applicant points to the Reasons which identify the information received from QCS as part of the process.
  2. [50]
    In support of this contention, the Applicant relies on the following:
    1. The Completion Report in respect of the GS:PP stated “Prisoner Naehu did not present with responsivity factors that would present as barriers to future participation on future sexual offending programs.”  This was despite his denial of sexual offending throughout the program.
    2. Despite the Applicant’s “categorical denial” being a barrier to participating in future sexual offending programs, the QCS GS:PP program facilitators disregarded the denial and recommended the Applicant participate in the MISOP.
    3. The Completion Report was prejudicial to the Applicant’s right to maintain his innocence pursuant to s 32 of the Human Rights Act in that it put him in a position in which he was coerced to undertake a program not applicable to his personal circumstances.
    4. The Completion Report falsely stated that the Applicant did not present with responsivity factors that would present as barriers to his participation in future sexual offending programs.
    5. The QCS GS:PP and MISOP program facilitators knowingly provided certificates that were false and which prejudicially affected the Applicant. 
    6. Where the Applicant has always categorically denied sexual offending he should not have been recommended for further sexual offending-related rehabilitative programs on his completion of the GS:PP or following his exit from the MISOP in 2021 and 2023.
    7. The QCS GS:PP program facilitators fraudulently used the claim by the Applicant’s accuser that he “cleaned her out” with a scourer.  The Applicant has never admitted to having used a scourer to rape his accuser.  Rather, the Applicant contends that the statement was made during his participation in the GS:PP acknowledging what he was convicted of and he was aware, once it was explained to him, that if someone used a scourer on a person in the manner he was accused of doing that would constitute rape.  This statement was manipulated in the Completion Report.
    8. Further fraudulent information was used to persuade the Applicant to re-engage with the MISOP after he was exited in 2021.  The Applicant’s reclassification as a “partial denier” was inexplicable and a “dangerous precedent”.  Prior to the 2023 MISOP the Applicant was assured he would not be required to make admissions to sexual offending as part of his participation  in the program.
    9. Despite those assurances, the Applicant was exited from the 2023 MISOP due to his categorical denial of sexual offending.  The Completion Report of the 2023 MISOP records:

“- has limited awareness

-lacked ownership and insight into his sexual offending

-externalised blame for his sexual offending

-participation lacked depth and connection with content

-is a risk of sexual recidivism

-is potentially a sexual sadist

- has hostility towards women

- Sees his father’s support, and the consequences of changing his stance, as outweighing any treatment progress.

- remained closely guarded in relation to his sexual offending behaviours.”

  1. The Completion Report is based on the assumption that the Applicant committed the offences he was convicted of, which he has denied since his arrest.  It has been prepared fraudulently through the “Applicant’s erroneous and inconsequential inclusion in two sexual offending programs he was ineligible to be enrolled in”.
  1. [51]
    The Applicant contends that there has been an abuse of office pursuant to s 92 of the Criminal Code, misconduct in relation to public office pursuant to s 92A of the Criminal Code and false certificates by public officers pursuant to s 94 of the Criminal Code.
  2. [52]
    The Second Respondent makes a number of submissions in response, including:
    1. Whilst the Applicant complains about the Completion Report for the GS:PP and the statement regarding his “responsivity factor”, the Applicant in fact seeks an order that a rehabilitative program be made available to him and that has now been done by the one-on-one counselling.
    2. In relation to the statement in the GS:PP Completion Report regarding the claim by the Applicant’s accuser that the Applicant “cleaned her out” with a scourer:
      1. The Second Respondent relies on the extract from the Completion Report in full.
      2. The Second Respondent notes that the Applicant does not deny stating the specific words to the facilitators.
      3. The Completion Report makes it clear that the Applicant did not admit to using a scourer to rape his accuser, only that he was convicted for rape using a scourer. 
      4. Further, the Completion Report states that the Applicant merely “acknowledged” that using a scourer inside the victim was defined as rape.  This is also not denied by the Applicant.
      5. The Applicant was given an opportunity to comment on the program and outcomes and did so, with the handwritten comment “I acknowledge the harm done to the victim, but don’t agree with the way things have been explained.”
      6. The Applicant’s subsequent participation in the MISOP and his exit from those programs is consistent with this comment from the Applicant and his denial of the sexual offences for which he has been convicted.
  3. [53]
    There is no basis for the contention that the information in the GS:PP and MISOP Completion Reports was fraudulent.  The relevant Completion Reports when read in full do not convey the alleged false information as contended by the Applicant.
  4. [54]
    Further, there is no evidence of dishonest intent on the part of the QCS program facilitators and there is no basis to infer dishonest intent.
  5. [55]
    The rights in s 32 of the Human Rights Act are protections in respect of a person charged with a criminal offence and fit together with the right in s 31 in respect of a fair trial.  The Applicant has had a jury trial and has been convicted.  That conviction stands unless overturned on appeal.  There is no current appeal, although the Applicant has indicated he has an intention to appeal.  
  6. [56]
    In these circumstances, it is not inappropriate for those managing the Applicant in custody to do so consistently with his conviction of the offences, including rape and torture. 
  7. [57]
    In respect of the allegation of QCS providing false information to the First Respondent, that allegation has not been established.  Further, the Applicant makes very serious allegations regarding contraventions of the Criminal Code by the QCS program facilitators which have no foundation. 
  8. [58]
    To the extent that the Applicant alleges a ground of review against the Second Applicant in respect of the alleged fraudulent information, that ground is not established and must fail.

Human Rights relief

  1. [59]
    To the extent that the Applicant alleges a contravention of the Human Rights Act by the Second Respondent, relief under the Human Rights Act is only available in the limited circumstances in s 59 of the Human Rights Act. That is, relief based on a contravention of s 58 of the Human Rights Act can be “piggybacked” on relief claimed in relation to an act or decision of “a public entity” on the ground that the act or decision was unlawful (other than because of s 58).  No ground of unlawfulness is raised directly in respect of a decision of the Second Respondent.  Accordingly, no relief is available in respect of the Second Respondent.
  2. [60]
    Before considering the grounds of review in the Amended Application in respect of the First Respondent’s Decision, it is appropriate to consider an additional ground of review raised by the Applicant based on an asserted exercise of power in accordance with a rule or policy without regard to the merits of the particular case within s 23(f) of the Judicial Review Act.

Additional ground – Did the First Respondent in making the Decision improperly exercise the power by making the Decision in accordance with a rule or policy without regard to the merits of the case?

  1. [61]
    The Applicant’s submissions under the first heading are stated to be in respect of the grounds at (a), (b), (c) and (e) of the Amended Application.[25]  However, the submissions may be understood as, in effect, making an alternative or additional submission that the First Respondent exercised the power under the Corrective Services Act in accordance with a rule or policy without regard to the merits of the particular case within s 23(f) of the Judicial Review Act.
  2. [62]
    The First Respondent’s submissions address this additional or alternative ground.  As the Applicant is a litigant in person and the First Respondent has addressed this ground, it is appropriate to consider this alternative or additional ground, as well as the grounds specifically identified in the Amended Application.
  3. [63]
    Relevantly, the Applicant submits:
    1. The Reasons:
      1. Claim that the Applicant has outstanding treatment needs that relate to his conviction for rape.
      2. State that the Applicant has twice been exited from the MISOP and has been recommended to complete the HISOP.
      3. State that because he has not completed the rehabilitative programs he poses an unacceptable risk to the community.
    2. The Applicant pleaded not guilty to the charge of rape at his trial in October 2017 and has always maintained his innocence in relation to the charge,
    3. Section 32(2)(k) of the Human Rights Act provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. 
    4. This right may apply in civil proceedings “where the provision of information or the production of document gives rise to a real and appreciable risk of criminal prosecution.”[26]
    5. The evidence exhibited to the Applicant’s affidavits shows that the applicant has consistently maintained his innocence in relation to any sexual offending.
    6. This position disqualifies the Applicant from being permitted to participate in the sexual offending programs.
    7. Further:
      1. if the Applicant was to participate in the sexual offending programs recommended and facilitated by the First Respondent and the Second Respondent he would be required to admit guilt to offending “he vehemently denies occurred”; and
      2. this would contravene his right under s 32(2)(k) of the Human Rights Act to maintain his innocence. 
    8. This would compromise the Applicant’s ability to appeal his rape conviction on his release from custody.[27]
  4. [64]
    In support of his contention the Applicant refers to a number of authorities.  First, the Applicant relies on the decision of Dutney J in Batts v Department of Corrective Services; Fogarty v Department of Corrective Services (Batts/Fogarty v Department of Corrective Services)[28] where his Honour stated:

“while it is right that having been convicted Mr Fogarty must be regarded as guilty of the offences it would be unrealistic not to recognize that occasionally miscarriages of justice occur.  To continue to deny guilt despite conviction is a right a prisoner has, but he exercises it in the knowledge that by doing so he disqualifies himself from the treatment programme and makes it impossible to demonstrate remorse or empathy with the victim.  Inevitably this makes it less likely he will gain the benefit of community release or remission.  Recognising the increased difficulty is, however, a long way from saying that because he has denied guilt a prisoner must be regarded as an unacceptable risk if released.  To classify a prisoner as an unacceptable risk to the community merely because of a refusal to admit guilt is to apply a policy without regard to the merits of a particular case.”[29] 

  1. [65]
    The Applicant submits that this statement applies to the current case as to classify the Applicant as an unacceptable risk to the community merely because he refuses to admit guilt is to apply a policy without regard to the merits of his particular case.
  2. [66]
    That is, the Applicant contends that the First Respondent’s Decision denying a parole order is effectively “based on an ultimatum that requires the Applicant to choose between admitting guilt for a crime he maintains his innocence in relation to (as part of participation in a sexual offenders’ program) and invoking his right to maintain his innocence”.  The Applicant goes further to conclude that this is “not only coercive but perverse within the context of the law”.
  3. [67]
    Ultimately the Applicant contends that the Reasons identify the same conclusion that Dutney J found was made without evidence and based on a policy of considering “every sex offender an unacceptable risk unless they had undertaken the sexual offenders’ treatment programme”.[30]   Based on this reasoning, the Applicant contends there was an improper exercise of power and the Decision is contrary to law.
  4. [68]
    Secondly, the Applicant relies upon the unreported decision of Dowsett J in Yeo v Queensland Corrective Services Commission[31] (which was also considered by Dutney J).  That case also concerned the applicant’s denial of having committed certain criminal offences and a subsequent refusal to undertake a program.  Relevantly, Dowsett J stated:

“It is clear that what must be considered are the circumstances in which the denial has been made, and it must be considered against the applicant’s background and conduct.  To focus narrowly upon his refusal to acknowledge guilt, accompanied by the consequences that he has not undergone a relevant programme, would, in my view, be an inappropriate approach because of its oversimplification of the complexities involved in the situation.” 

  1. [69]
    In the current case, the Applicant identifies the circumstances relevant to the consideration of the Applicant’s denial as including:
    1. He was in a relationship with his accuser that he acknowledges was dysfunctional and in which he perpetrated domestic violence (but denies any sexual offending occurred).
    2. Since his incarceration the Applicant has developed insight into his acknowledged offending and how it may have affected his accuser and the community.
    3. The Applicant has a history of pleading guilty to crimes he has committed.
    4. The Applicant has no history of perpetrating torture, deprivation of liberty, domestic violence or sexual offending, which is evidenced by the District Court Judge’s sentencing remarks.
    5. The District Court Judge decided not to make a serious violent offence declaration.
    6. The Reasons list of favourable factors, including:
      1. The Applicant’s good custodial behaviour.
      2. The Applicant’s sustained employment in a trusted position in the prison stores.
      3. The Applicant has been assigned a low security classification.
      4. The Applicant is over three years past the parole eligibility date set by the sentencing judge.
      5. The Applicant has a positive support network in the community.
  2. [70]
    The Applicant submits that while the First Respondent says that these circumstances were considered, little weight was evidently given to them.  Further, the First Respondent gave disproportionate emphasis on the fact that the Applicant had not completed the sexual offending programs, in the circumstance where the Applicant’s position of maintaining his innocence disqualified him from these programs.
  3. [71]
    Similar to the circumstances in Batts/Fogarty v Department of Corrective Services[32] the Applicant contends that the First Respondent’s Decision relies on:
    1. the circumstances of the offending (the sexual component which is denied);
    2. the unsubstantiated assumption that attendance at a sexual offender’s treatment program reduces the risk of reoffending; and
    3. failure to attend the programs renders the offender an unacceptable risk to the community.
  4. [72]
    However, the Applicant says that this position is inconsistent with the statement in the Reasons where the First Respondent acknowledges that completing programs in custody is not a requirement for parole.
  5. [73]
    The Applicant relies on these matters in support of the submission that the procedures that were required to be followed in relation to making the Decision were not observed.
  6. [74]
    The Applicant also takes issue with the First Respondent’s finding that he is a moderate-high risk of sexual recidivism.  In particular, the Applicant questions that conclusion based on the STABLE-2007 and the STATIC-99R assessment results.  In this regard, the Applicant submits that this is a further failure to adhere to the processes required.
  7. [75]
    In response to this additional or alternative ground the First Respondent contends that the Applicant seeks to reagitate the arguments he made before Kelly J in respect of the 2022 JR Application, which resulted in the 2023 JR Decision. 
  8. [76]
    At [49] to [58] of the 2023 JR Decision[33] Kelly J considered the relevant principles in the context of the 2022 Decision of the First Respondent.  Following a review of the relevant authorities, His Honour concluded that it was impermissible for the First Respondent to refuse an application for parole solely on the basis that there had been no admission of guilt or because of a failure to undertake a particular course.
  9. [77]
    However, on the facts in the 2023 JR Decision no basis was established for the contention that the First Respondent applied a policy without regard to the particular circumstances of the Applicant’s case.
  10. [78]
    Relevantly, in accordance with the authorities, Kelly J looked at what the First Respondent did and commented at [57] as follows:

“In the present case, the Board did not refuse the application merely because the applicant was denying his guilt or had refused to participate in certain programs.  Rather, the Board’s reasoning paid careful and considered regard to the applicant’s particular circumstances and the offending of which he had been convicted.  That reasoning involved consideration of the applicant’s criminal history, the factors which had led to his historical and index offending, the nature of the index offending and the applicant’s conduct since being placed on remand.  One matter which apparently loomed large in the Board’s reasoning was the applicant’s lack of insight.  That lack of insight appeared in a context where the applicant was acknowledging some of the acts the subject of the offending.  The Board’s decision-making proceeded on the basis of factual findings, which the Board was entitled to make, about what the applicant had said about the offending in various programs and interviews.”

  1. [79]
    The First Respondent submits that similar reasoning applies in the current case.  That is, the First Respondent did not refuse the Applicant’s application for parole merely because the Applicant was denying his guilt or had refused to participate in certain programs.  The First Respondent submits that the Reasons evidence that the First Respondent paid detailed attention to the Applicant’s specific circumstances and appropriately weighed them.
  2. [80]
    In particular, the First Respondent relies on the following parts of the Reasons for the Decision:
    1. At [41] – [49]: the First Respondent recognised several positive factors that weighed in support of the Applicant’s release to the community.
    2. At [16]: the First Respondent considered the Applicant’s criminal history.
    3. At [54] – [57]: the First Respondent gave detailed consideration to the circumstances of the index offending, including that no serious violent offender declaration was made in the District Court sentence.
    4. At [58]: the First Respondent considered that the Applicant had outstanding treatment needs in relation to sexual offending.
    5. At [75]: the First Respondent recognised that completing recommended programs is not a requirement for release on parole.
    6. The First Respondent gave detailed consideration to the Applicant’s particular circumstances in respect of his outstanding treatment needs, including:
      1. At [60]:  the Applicant had engaged in victim blaming, by stating that women “use sex as a weapon in relationships to fix problems”.
      2. At [64]: the Applicant had participated in the MISOP in 2021 but was exited because he maintained his innocence.
      3. At [65]: the Applicant had re-commenced the MISOP on 3 May 2023 but was exited because of his disengagement with the program.
      4. At [67], [121] and [122]: the Applicant:
        1. had made attempts to manipulate his engagement in the MISOP, which was reflected in the MISOP Completion Report.
        2. had failed to engage in aspects of the MISOP program not directly linked to his sexual offending.
    7. The First Respondent recommended that the Applicant complete the HISOP given the Applicant’s entrenched views of his sexual offending behaviours.
    8. The First Respondent considered the Applicant consistently displayed resistance to exploring aspects of his offending behaviours and declined to answer direct questions about his background, attitudes, values and behaviours.
    9. At [120]: the Applicant displayed elevated aggression towards facilitators when challenged by them.
  3. [81]
    The First Respondent submits that the Reasons demonstrate that the First Respondent did not make the Decision by applying a rule or policy without regard to the merits of the application.  That is, the First Respondent did not “blindly cling” to the Applicant’s failure to complete the programs.  Rather, the Reasons demonstrate that the First Respondent considered:
    1. why the Applicant had not completed the MISOP; and
    2. why those matters meant that he presented an unacceptable risk to the community.
  4. [82]
    In respect of the Applicant’s contention that there has been a breach of his right to maintain his innocence under s 32(2)(k) of the Human Rights Act, the First Respondent contends that the provision has no application in the current circumstances.
  5. [83]
    Section 32(2)(k) of the Human Rights Act provides that a person “charged with a criminal offence” is entitled not to be compelled to testify against themselves or to confess guilt.  The provision does not apply in respect of person who has been convicted and is being considered for participation, or participating in, rehabilitation programs whilst in custody.
  6. [84]
    Further, in the current circumstances the Applicant was reclassified as a “partial denier” and consequently was able to participate in the MISOP program.
  7. [85]
    At [51] to [56] of the 2023 JR Decision Kelly J helpfully summarises the relevant authorities in respect of the ground of an exercise of power in accordance with a rule or policy without regard to the merits of the case.  I will not repeat the consideration of those authorities here but do take those authorities into account.
  8. [86]
    In this case, the Fist Respondent undertook a careful and detailed consideration of the various factors, including the particular circumstances of the Applicant.  This was not limited to just the fact that the Applicant had not completed the MISOP but rather the reasons why and why those matters led to the First Respondent concluding that the Applicant presented an unacceptable risk to the community.
  9. [87]
    Whilst the Applicant disagrees with the conclusion and argues that the First Respondent put too much weight on some factors, the Court is restricted to consideration of the judicial review grounds.  This is not a review of the merits. 
  10. [88]
    The First Respondent was entitled to assess the material before it.  The First Respondent’s reasoning included factual findings which the First Respondent was entitled to make. 
  11. [89]
    Further, the First Respondent considered the offences for which the Applicant had been convicted and considered that the Applicant maintained his innocence.  These factors were considered and weighed in the First Respondent’s reasoning.
  12. [90]
    In making the Decision the First Respondent did not infringe the Applicant’s right under s 32(2)(k) of the Human Rights Act.  The privilege against self-incrimination applies in respect of a person “charged with a criminal offence”.  The right or privilege may have application in some circumstances prior to a formal charge[34] and may also have application in civil proceedings. 
  13. [91]
    In the current case the Applicant has been convicted following a jury trial and that conviction stands until the conviction is set aside on appeal.  Whilst the Applicant has indicated he intends to appeal, there has been, and currently is, no appeal.  Accordingly, the First Respondent appropriately proceeded on the basis of the conviction.
  14. [92]
    The right in s 32(2)(k) of the Human Rights Act does not operate in respect of rehabilitative programs whilst a convicted person is in custody in respect of that conviction in the way the Applicant contends.
  15. [93]
    In all of the circumstances, the Applicant has not established that in making the Decision the First Respondent applied a rule or policy without regard to the particular circumstances of the Applicant’s case.
  16. [94]
    Accordingly, this ground (to the extent that it is raised and not objected to being raised) must fail.

In making the Decision, did the First Respondent breach natural justice within s 20(2)(a) of the Judicial Review Act?

  1. [95]
    The Applicant contends that the First Respondent breached s 32(2)(k) of the Human Rights Act and disregarded his right to maintain his innocence in relation to the sexual offence for which he was convicted.  The Applicant submits that this is relevant to the breach of natural justice ground.
  2. [96]
    Whilst the Applicant states that he was denied natural justice the submissions do not expand on the point to identify the precise breach.  Under the heading “summary” the Applicant states a rolled-up proposition as follows:

“The [First Respondent] in determining the Applicant’s suitability for a parole order has made irrelevant considerations in relation to the information it received from QCS, which means it has improperly exercised its power and in doing so has breached the applicant’s human rights.  This has effectively led to the applicant being denied natural justice, which means the decision to deny the applicant a parole order has been done so unlawfully.”

  1. [97]
    At the hearing, the Applicant was given the opportunity to expand on his submissions in respect of the alleged breach of natural justice.  The Applicant relies upon the evidence in his affidavits which he contends proves that the QCS information is false and fraudulent, and that his maintenance of innocence has been disregarded.[35]
  2. [98]
    The First Respondent contends that the Applicant has not established a breach of natural justice.  The Applicant was afforded an opportunity to respond to the First Respondent’s preliminary decision and made four separate detailed submissions in response.  These submissions were considered by the First Respondent in making the Decision as evidenced in the Reasons.
  3. [99]
    The Reasons identify the four submissions made by the Applicant subsequently to the preliminary decision of the First Respondent.  The Reasons also show that the First Respondent carefully worked through the evidence and considered the Applicant’s particular circumstances and the offending for which the Applicant had been convicted.  This included consideration of the matters in the Applicant’s detailed submissions.
  4. [100]
    In all of the circumstances, the Applicant has not established that the procedure adopted by the First Respondent was procedurally unfair or that the Applicant was denied an opportunity to provide submissions or materials.  The Applicant has not established a basis to impugn the decision on the basis it was unlawful because the First Respondent did not provide procedural fairness or breached natural justice in making the Decision.
  5. [101]
    Accordingly, this ground must fail.

In making the Decision, did the First Respondent fail to observe procedures that were required by law to be observed within s 20(2)(b) of the Judicial Review Act?

  1. [102]
    The Applicant also contends that the First Respondent breached s 32(2)(k) of the Human Rights Act and disregarded his right to maintain his innocence in relation to the sexual offence for which he was convicted.  The Applicant submits that this is relevant to the failure to observe procedures required by law ground.
  2. [103]
    Further, the Applicant contends that the failure by the Second Respondent to facilitate programs suitable to the Applicant has contributed to the Applicant being unable to satisfy the First Respondent of his suitability to be granted a parole order.  
  3. [104]
    Whilst the First Respondent did acknowledge in the Reasons that completing programs in custody is not a requirement for parole, the Applicant contends that the First Respondent:
    1. is using that the Applicant has not completed a rehabilitative program to deny him a parole order;
    2. is aware that the Second Respondent had not provided a program to facilitate his specific needs; and
    3. is “simultaneously deceptive and iniquitous” such that the decision was adversely impacted.
  4. [105]
    It is in these circumstances that the Applicant contends that the procedures required by law to be observed in relation to the making of the Decision regarding the Applicant’s inability to undertake a program were clearly not observed.
  5. [106]
    The First Respondent submits that the Applicant’s contention in respect of this ground should be rejected.
  6. [107]
    Relevantly to the First Respondent, the Decision was made pursuant to s 193(1) of the Corrective Services Act and the procedures required to be observed by the First Respondent were that:
    1. the First Respondent decide to grant or refuse the application pursuant to s 193(1); and
    2. the First Respondent do so within 120 days, or if deferred 150 days, of receiving the application pursuant to s 193(4).
  7. [108]
    The Applicant does not contend that the Decision is void as a result of these procedures not being met.[36]
  8. [109]
    The First Respondent’s discretionary power to grant or refuse an application for parole has been described as broad and unfettered.  The Corrective Services Act does not specify the criteria for making a decision.[37]
  9. [110]
    To the extent that s 193 of the Corrective Services Act sets out requirements, they have been met or the Applicant does not take issue with them. 
  10. [111]
    To the extent that the Applicant contends that the First Respondent failed to observe procedures required by law as a result of the alleged failure to make available a rehabilitative program suitable for the Applicant, the Applicant has not established that contention.
  11. [112]
    As discussed previously, the Second Respondent did make available rehabilitative programs and there was no breach of s 266(1) of the Corrective Services Act.  Consequently, the fundamental basis of the Applicant’s contention has not been established.
  12. [113]
    Accordingly, this ground must fail.

In making the Decision, did the First Respondent fail to take a relevant consideration into account within s 20(2)(e) and 23(b) of the Judicial Review Act?

  1. [114]
    Again, the Applicant contends that the First Respondent breached s 32(2)(k) of the Human Rights Act and disregarded his right to maintain his innocence in relation to the sexual offence for which he was convicted.  The Applicant submits that this is relevant to the failure to consider a relevant consideration ground.
  2. [115]
    The reference to the “irrelevant consideration” in the quote from the Applicant’s submissions outlined at [96] above deals with a different point, not directly relevant to this ground.[38]
  3. [116]
    The Applicant does not specifically develop the submission in respect of the First Respondent failing to take into account a relevant consideration.
  4. [117]
    At the hearing, the Applicant was given the opportunity to expand on his submissions in respect of the alleged breach of natural justice.  The Applicant relies upon his breach of the Human Rights point and the evidence in his affidavits.[39]
  5. [118]
    In accordance with the High Court decision in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[40] the ground of failing to take into account a relevant consideration is only made out where the decision-maker fails to take into account something which the decision-maker is bound to take into account in making the decision.
  6. [119]
    The First Respondent submits that the Applicant has not identified any such failure.
  7. [120]
    Other than the articulation of the Applicant’s contentions in respect of the additional or alternative ground considered above, the Applicant has not clearly articulated a contention as to the Decision being an improper exercise of power due to a failure to take into account a relevant consideration.
  8. [121]
    The First Respondent correctly states the legal proposition that this ground requires the decision-maker failing to take into account something that the decision-maker is bound to take into account.  The Applicant has not identified something in this category.
  9. [122]
    In all of the circumstances, the Applicant has not demonstrated that the First Respondent failed to take into account a relevant consideration.  Accordingly, this ground must fail.
  10. [123]
    The Applicant’s submissions do make a reference to an irrelevant consideration.[41]  However, this is not raised as a ground of review.  In any event, the First Respondent contends that there is nothing in the Corrective Services Act which makes the consideration of a report prepared in respect of MISOP impermissible to be taken into account by the First Respondent in considering an application under s 193 of the Corrective Services Act or otherwise.  Accordingly, even if it was properly raised as a ground, it is not properly characterised as an irrelevant consideration.[42]
  11. [124]
    The Applicant does not raise a ground based on an irrelevant consideration in the Amended Application.  In any event, the Applicant has not established that the First Respondent took into account an irrelevant consideration as the Applicant has not established a proper basis to characterise the MISOP report as an irrelevant consideration for the purposes of a decision pursuant to s 193 of the Corrective Services Act.
  12. [125]
    To the extent that the Applicant raises the ground of an irrelevant consideration, the ground must fail.

Was the First Respondent’s Decision induced or affected by fraud within s 20(2)(g) of the Judicial Review Act?

  1. [126]
    In respect of the First Respondent, the Applicant contends that the First Respondent breached s 20(2)(g) of the Judicial Review Act as the Decision was affected by fraudulent information provided to the First Respondent by QCS.  This is discussed at  [49] to [58] above.
  2. [127]
    The First Respondent contends that:
    1. Section 20(2)(g) of the Judicial Review Act requires that the alleged fraud must have actually induced the Decision or affect the Decision.
    2. Fraud must be strictly articulated and proven.[43] Accordingly, it is not sufficient that there is a mere suspicion.
    3. There is no evidence that any of the identified statements were made by the QCS facilitators with any dishonest intent, nor is there a proper basis to infer such an intent.
  3. [128]
    In these circumstances, the Applicant has not established that the Decision was induced or affected by fraud.
  4. [129]
    The Applicant asserts that identified parts of the Completion Report for the GS:PP and MISOP were fraudulent.  The Applicant points to no evidence to establish a dishonest intent on the part of the authors of the documents.  Nor is there any basis identified to infer dishonest intent.
  5. [130]
    The assertion of fraud is at a very general level and is not clearly articulated.  Nor is it proved to any level.
  6. [131]
    Further, a reading of the relevant parts of the identified documents does not support the contentions made by the Applicant.  This has been considered previously in these reasons.
  7. [132]
    As is evidenced by a consideration of the Reasons and the approach of the First Respondent summarised at [80] to [81] above.  There is nothing to support the contention that the Decision was actually induced or affected by fraud.
  8. [133]
    In all of the circumstances, the Applicant has not demonstrated that the Decision was induced or affected by fraud within s 20(2)(g) of the Judicial Review Act.  Accordingly, this ground must fail.

Was the First Respondent’s Decision otherwise contrary to law within s 20(2)(i) of the Judicial Review Act?

  1. [134]
    Again, the Applicant contends that the First Respondent breached s 32(2)(k) of the Human Rights Act and disregarded his right to maintain his innocence in relation to the sexual offence for which he was convicted.  The Applicant submits that this is relevant to the “otherwise contrary to law” ground.
  2. [135]
    The Applicant does not specifically develop the submission in respect of the Decision being “otherwise contrary to law”.
  3. [136]
    At the hearing, the Applicant was given the opportunity to expand on his submissions in respect of this ground.  The Applicant relies upon his whole submissions.[44]
  4. [137]
    The First Respondent contends that the Applicant has not clearly raised any contention why the First Respondent’s Decision was “otherwise contrary to law”.
  5. [138]
    Other than the articulation of the Applicant’s contentions in respect of the additional or alternative ground considered above, the Applicant has not clearly articulated a contention as to the Decision being “otherwise contrary to law”.
  6. [139]
    As set out in the Reasons, the First Respondent considered the various factors as summarised at [80] to [81] and [86] to [92] above.  The other grounds relied upon by the Applicant have not been established, as discussed previously in these reasons.
  7. [140]
    In all of the circumstances, the Applicant has not demonstrated that the Decision was “otherwise contrary to law”.  Accordingly, this ground must fail.

Orders

  1. [141]
    In these circumstances, the appropriate order is that the Amended Application is dismissed.
  2. [142]
    I will hear from the parties as to costs.

Footnotes

[1]Filed 12 July 2024.

[2]And s 23(b) Judicial Review Act.

[3]The Amended Application refers to s 20(2)(f) of the Judicial Review Act. However, the section relating to induced or affected by fraud is s 20(2)(g) of the Judicial Review Act.

[4]Amended by order of Davis J dated 7 August 2024 to be “Chief Executive, Queensland Corrective Services”.

[5]Sections 92, 92A and 94.

[6]The Applicant’s submissions refer to s 20(2)(f) of the Judicial Review Act, however it can be inferred to be to s 20(2)(g) of the Judicial Review Act.

[7]In particular, orders (c), (d) and (e) above.

[8]12 October 2017.

[9]3 November 2017.

[10]With a meat cleaver.

[11]One count.

[12]Two counts.

[13]Naehu v Parole Board of Queensland [2023] QSC 16.

[14](1990) 96 ALR 739 (Burchett J).

[15][2020] FCA 584 (Kenny J).  These comments were endorsed as correct by the Full Court of the Federal Court in EL418 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 371; [2020] FCAFC 230 at [61] – [65] per Besanko and Perry JJ.

[16][2015] VSC 105.

[17](1949) 79 CLR 1 at 7 per Dixon J.

[18][2016] NSWCA 186 at [84]–[85] per Emmett AJA; with whom Simpson JA agreed.

[19]See Anderson v Pavic [2005] VSCA 244 at [32] per Nettle JA.

[20]See Flynn v The King (1949) 79 CLR 1 at 8.

[21]See Patsalis v State of New South Wales [2012] NSWSC 267 at [51].

[22]Within the meaning of s 4 of the Judicial Review Act.

[23](2005) 221 CLR 99 at [79]–[80]  per Gummow, Callinan and Heydon JJ.

[24](2005) 221 CLR 99 at [79]–[80] per Gummow, Callinan and Heydon JJ.

[25]Being the grounds in s 20(2)(a), (b), (e) and (i) of the Judicial Review Act.

[26]Reference to the Evans and Petrie, Annotated Queensland Human Rights Act (2023) at p 289.

[27]The Applicant says that he has every intention of appealing and he has repeatedly made this intention clear to the First Respondent and the Second Respondent.

[28][2002] QSC 206.

[29]At [32], p 13-14.

[30]At [35], p 15.

[31] (Unreported, Supreme Court of Queensland, Dowsett J, 13 February 1998)

[32][2002] QSC 206.

[33][2023] QSC 16.

[34]SQH v Scott (2022) 10 QR 215.

[35]Transcript of Proceedings, Naehu v Parole Board Queensland and Another (Supreme Court of Queensland, 7589/24, Justice Williams, 30 September 2024) 1-5 to 1-7.

[36]The First Respondent has acknowledged that the Decision was made on 8 February 2024, after 157 days.  The First Respondent contends that a breach such as this would not render the Decision invalid.  In particular, the purpose of the Corrective Services Act does not support a construction that a decision made outside the timeframe is invalid.

[37]Calanca v Parole Board of Queensland [2019] QSC 34 at [54] per Bowskill J (as the Chief Justice then was).

[38]See also [123] to [125] below.

[39]Transcript of Proceedings, Naehu v Parole Board Queensland and Another (Supreme Court of Queensland, 7589/24, Justice Williams, 30 September 2024) 1-5 to 1-7.

[40](1986) 162 CLR 24 per Mason J at 39-40.

[41]See final paragraph of the applicant’s outline before the heading “Summary”.

[42]Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124 at [191] per Bond J (as his Honour then was).

[43]Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal (2008) 216 FCR 405, at p 419-420 at [69] citing Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at p 538.

[44]Transcript of Proceedings, Naehu v Parole Board Queensland and Another (Supreme Court of Queensland, 7589/24, Justice Williams, 30 September 2024) 1-5 to 1-7.

Close

Editorial Notes

  • Published Case Name:

    Naehu v Parole Board of Queensland & Anor

  • Shortened Case Name:

    Naehu v Parole Board of Queensland

  • MNC:

    [2024] QSC 240

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    17 Oct 2024

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Anderson v Pavic [2005] VSCA 244
2 citations
Jump To
Cite 1 - [2005] VSCA 244
Cite 2 - [2005] VSCA 244
Australia Pacific LNG Pty Ltd v Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124
2 citations
Jump To
Cite 1 - [2019] QSC 124
Cite 2 - [2019] QSC 124
Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal (2008) 216 FCR 405
2 citations
Jump To
Cite 1 - (2008) 216 FCR 405
Cite 2 - (2008) 216 FCR 405
Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393
1 citation
Jump To
Cite 1 - [2008] FCA 1393
AVN20 v Federal Circuit Court of Australia [2020] FCA 584
2 citations
Jump To
Cite 1 - [2020] FCA 584
Cite 2 - [2020] FCA 584
Batts v Department of Corrective Services [2002] QSC 206
3 citations
Jump To
Cite 1 - [2002] QSC 206
Cite 2 - [2002] QSC 206
Cite 3 - [2002] QSC 206
Calanca v Parole Board Queensland [2019] QSC 34
2 citations
Jump To
Cite 1 - [2019] QSC 34
Cite 2 - [2019] QSC 34
Clark v Commissioner for Corrective Services [2016] NSWCA 186
2 citations
Jump To
Cite 1 - [2016] NSWCA 186
Cite 2 - [2016] NSWCA 186
EL418 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 371
2 citations
Jump To
Cite 1 - (2020) 283 FCR 371
Cite 2 - (2020) 283 FCR 371
EL418 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 230
2 citations
Jump To
Cite 1 - [2020] FCAFC 230
Cite 2 - [2020] FCAFC 230
Flynn v R (1949) 79 CLR 1
3 citations
Jump To
Cite 1 - (1949) 79 CLR 1
Cite 2 - (1949) 79 CLR 1
Cite 3 - (1949) 79 CLR 1
Flynn v R [1949] HCA 38
1 citation
Jump To
Cite 1 - [1949] HCA 38
Griffith University v Tang (2005) HCA 7
1 citation
Jump To
Cite 1 - (2005) HCA 7
Griffith University v Tang (2005) 221 CLR 99
3 citations
Jump To
Cite 1 - (2005) 221 CLR 99
Cite 2 - (2005) 221 CLR 99
Cite 3 - (2005) 221 CLR 99
Knight v Money [2015] VSC 105
2 citations
Jump To
Cite 1 - [2015] VSC 105
Cite 2 - [2015] VSC 105
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1968] HCA 40
1 citation
Jump To
Cite 1 - [1968] HCA 40
Naehu v Parole Board Queensland [2023] QSC 16
3 citations
Jump To
Cite 1 - [2023] QSC 16
Cite 2 - [2023] QSC 16
Cite 3 - [2023] QSC 16
Patsalis v State of New South Wales [2012] NSWSC 267
2 citations
Jump To
Cite 1 - [2012] NSWSC 267
Cite 2 - [2012] NSWSC 267
SQH v Scott(2022) 10 QR 215; [2022] QSC 16
3 citations
Jump To
Cite 1 - [2022] QSC 16
Cite 2 - (2022) 10 QR 215
Cite 3 - (2022) 10 QR 215
Wentworth v Rogers (no 5) (1986) 6 NSW LR 534
1 citation
Jump To
Cite 1 - (1986) 6 NSW LR 534
Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739
2 citations
Jump To
Cite 1 - (1990) 96 ALR 739
Cite 2 - (1990) 96 ALR 739

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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