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Phillips v Parole Board Queensland[2024] QSC 275

Phillips v Parole Board Queensland[2024] QSC 275

SUPREME COURT OF QUEENSLAND

CITATION:

Phillips v Parole Board Queensland [2024] QSC 275

PARTIES:

ANTHONY PHILLIPS

(applicant)

v

PAROLE BOARD QUEENSLAND

(respondent)

FILE NO:

BS 10309 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application for judicial review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 November 2024

DELIVERED AT:

Brisbane

HEARING DATES:

31 October 2024, 7 November 2024

JUDGE:

Hindman J

ORDERS:

  1. The application for a statutory order of review is dismissed. 
  2. No order as to costs.

CATCHWORDS:

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

Batts v Department of Corrective Services [2002] QSC 206, cited

Boyy v Parole Board Queensland [2018] QSC 175, cited

Hickson v Parole Board Queensland [2024] QSC 133, cited

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, cited

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

Nicholson v Parole Board Queensland [2024] QSC 232, cited

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

Corrective Services Act 2006 (Qld) s. 193

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

COUNSEL:

The applicant appeared on his own behalf

B McMillan for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Parole Board Queensland Legal Services for the respondent

Introduction

  1. [1]
    The applicant makes a judicial review application under the Judicial Review Act 1991 (Qld) (JRA) in relation to a decision of the respondent (Parole Board / Board) on 3 July 2024 (made pursuant to s. 193(1) of the Corrective Services Act 2006 (Qld) (CSA)) to refuse to grant the applicant’s application for a parole order (Refusal Decision).
  2. [2]
    The applicant is serving a sentence of imprisonment of 14 years and 9 months for offences including manslaughter.  He has been incarcerated now for over 8 years.  He became eligible for parole on 12 June 2024.  This was his first application for a parole order.  
  3. [3]
    A judicial review application is not a merits review.[1]  It is not for me to decide if the applicant should obtain parole – that is a decision that rests with the Board.  It is only for me to decide whether the Refusal Decision has been made according to law.   
  4. [4]
    I have decided that the Refusal Decision has been made according to law.  The grounds of review advanced by the applicant in his application and as might be gleaned from his submissions (both written and oral) have not been made out.  Accordingly, the applicant’s application will be dismissed.   

Grounds of review

  1. [5]
    The applicant’s grounds of review for the Refusal Decision are:[2]
    1. Ground 1: there was a (material) denial of natural justice and procedural fairness (s. 20(2)(a) JRA);[3]
    2. Ground 2: there was a failure to take into account relevant matters (ss. 20(2)(e) and 23(b) JRA) (or a failure to give appropriate weight to those matters);[4] 
    3. Ground 3: an irrelevant consideration was taken into account (ss. 20(2)(e) and 23(a) JRA) (or too much weight was given to the consideration);[5]
    4. Ground 4: no evidence to justify the decision (s. 20(2)(h) JRA);[6]   
    5. Ground 5: improper exercise of the power (ss. 20(2)(e) and 23(c) JRA);[7]
    6. Ground 6: the decision is (legally) unreasonable (ss. 20(2)(e) and 23(g) JRA).[8]
  2. [6]
    The applicant seeks an order directing that the respondent reconsider the Refusal Decision according to law within a period of 7 days, plus costs.  The only recoverable costs that have been incurred by the applicant is the payment of the filing fee.   

Summary of relevant decision history

  1. [7]
    The applicant applied for a parole order on 20 December 2023, received by the Board on 21 December 2023 (Application). 
  2. [8]
    On 27 May 2024, the Board sent the applicant correspondence stating that the Board had considered the Application (on 26 February 2024) and had formed a preliminary view that the Application should be refused and that a non-reapply period would be decided.  The Board included with that correspondence a copy of the documents that had been considered by the Board.  One of the documents, an information note produced by Corrective Services, was partially redacted.  The Board’s correspondence invited the applicant to make further written submissions before the Board made its final decision.  The applicant did so.  
  3. [9]
    On 3 July 2024, the Board met and considered the Application and made the Refusal Decision.  The applicant was informed of the Refusal Decision by a letter dated 15 July 2024.
  4. [10]
    This proceeding was commenced on 5 August 2024.
  5. [11]
    A statement of reasons for the Refusal Decision (Statement of Reasons) was provided on 21 August 2024.   

Ground 1: (material) denial of natural justice and procedural fairness

  1. [12]
    This ground concerns the fact that the Board had and considered the information note mentioned at [8] above in an unredacted form, but that the applicant was only provided with the information note in a redacted form.  The applicant says he was thereby (materially) denied natural justice in the decision making process. 
  2. [13]
    The information note was provided to the applicant in a redacted form only as a consequence of a claim of public interest immunity being maintained in relation to the redacted portions of that document.  In this proceeding the applicant challenged the claim for public interest immunity.  The respondent relied upon a partially redacted affidavit of Julie Sharp in support of the claim for public interest immunity over the redactions in both documents (the information note and the affidavit itself).  On 7 November 2024, during the hearing of this proceeding, I heard submissions about the claim, and upheld the claim for public interest immunity (without finding it necessary to consider the unredacted version of either document), and I provided ex tempore reasons for that decision which are unnecessary to repeat here.
  3. [14]
    The fact that the applicant did not in the parole order application process have the benefit of having access to the unredacted form of the information note that was before the Board, does not automatically mean that there was a denial of natural justice.  The obligation to afford natural justice to an applicant in such a situation must be moulded to accommodate the public interest immunity claim. 
  4. [15]
    I consider that the Board did so here.  Having now perused the redacted material for myself (as I was invited to do so by the Board for the purpose of undertaking this analysis) I am satisfied that:
    1. the information note has been redacted only to the extent necessary to maintain the properly claimed public interest immunity;
    2. the Board’s preliminary view letter set out the substance of the issues that were raised by the information note and invited submissions from the applicant regarding the same;[9]
    3. the unredacted parts of the information note that the applicant was provided with, that the applicant was able to address by way of further submissions (which he did), fairly put the applicant on notice of the issues of substance that might be relevant for the Board to consider.
  5. [16]
    In that way, I reject the applicant’s submission that there has been a denial of natural justice by reason of the applicant being provided only with a redacted version of the information note, when the unredacted version of the information note was before the Board. 
  6. [17]
    Even if I had concluded that there was a denial of natural justice as contended for, I would not have concluded that any denial of natural justice was material.  No specific submissions were advanced about materiality on behalf of the applicant.  The most recent High Court authority on the issue of materiality, to which I have had particular regard, is LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12.  
  7. [18]
    I would not have concluded that any denial of natural justice was material because:
    1. of the matters mentioned in [15](c) above;
    2. the Statement of Reasons appears to put little, if any, weight on any contentious part of the relevant allegations dealt with the information note;
    3. the applicant has not demonstrated, and I do not perceive, that there was at least a realistic possibility that a different decision could have been made if the applicant had been provided with access to the unredacted form of the information note.   In my view, having had regard to the unredacted document, and the applicant’s response to the redacted document that he provided by way of further submissions to the Board’s preliminary view letter, any denial of natural justice could have no bearing on the outcome in this case.[10] 
  8. [19]
    Ground 1 is not made out.

Ground 2: failure to take into account relevant matters / failure to give appropriate weight to certain matters

  1. [20]
    Cooper J summarised the legal principles applicable to a failure to take into account a relevant consideration in Hickson v Parole Board Queensland [2024] QSC 133 at [44]-[46] (footnotes omitted):

A failure to take into account a relevant consideration can only be made out as a ground of review if a decision maker fails to take into account a consideration that he or she is bound to take into account in making that decision. What factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose.

Where a decision maker is bound to take into account a consideration, there is a requirement to give that matter proper, genuine and realistic consideration. However, care needs to be taken to ensure that the requirement does not encourage a “slide” into an impermissible merits review’ of the decision.

Not every consideration that a decision maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

  1. [21]
    There are two matters that the applicant submitted are relevant to the ground of a failure to take into account relevant matters:[11]
    1. the length of time that has passed since the index offence was committed;
    2. the “naturally evolving maturity level” of the applicant.
  2. [22]
    The applicant submitted those two matters were relevant considerations and that nowhere in the Statement of Reasons does it say that the respondent had considered those matters. 
  3. [23]
    The applicant did not seek to explain how those are relevant considerations that the Board is required to take into account.  At best for the applicant, it can be said those matters are adjacent to, or similar to, matters that the Ministerial Guidelines say the Board should consider such as the length of time spent in custody during the current period of imprisonment (5.1(a)) (and there is no complaint that factor was not taken into account).
  4. [24]
    I do not consider the matters articulated by the applicant are matters that the Board was required to take into account in the sense that the Refusal Decision was in error if those matters were not taken into account.  But regardless, the general nature of the two matters as articulated by the applicant were plainly the subject of consideration by the Board in its consideration of other matters such as:
    1. criminal history;
    2. custodial behaviour (good and bad);
    3. courses completed in custody;
    4. clear breath samples;
    5. low security classification achieved and accommodation at The Farm for periods of time, releases on leaves of absence without incident;
    6. future plans and work towards those plans.
  5. [25]
    There are five matters that the applicant submitted were relevant to the ground of a failure to give appropriate weight to certain matters:
    1. the applicant’s response to previous grants of parole,[12] specifically that the applicant has successfully completed several leaves of absence without incident;[13] 
    2. the applicant’s participation in intervention programs,[14] specifically that the applicant has completed three identified programs;[15]
    3. the applicant’s length of time spent in a low security environment or residential accommodation,[16] specifically that the applicant has spent a considerable period of time at the prison farm and work camp;[17]
    4. the applicant’s proven abstinence from illegal substances (11 clear breath tests), in circumstances where his offending was substance-fuelled;[18]
    5. that in his recent custodial history he had been reasonably well behaved (particularly as compared to his early time in custody).[19] 
  6. [26]
    The complaint of the applicant is not in fact that the above five matters were not taken into account, but that sufficient weight was not given by the Board to these matters. 
  7. [27]
    The issue of the weight to be given by the Board to any relevant matter is for the Board to decide, and does not found a proper ground of review.[20]  An exception to that is if the decision is legally unreasonable.  I will return to that topic under ground 6. 
  8. [28]
    Ground 2 is not made out. 

Ground 3: an irrelevant consideration was taken into account / too much weight given to the consideration

  1. [29]
    In the applicant’s oral submissions it became clear that the applicant was concerned that the Board had given any or too much weight to issues that had arisen in custody that he himself considered “historical” (that is, more than 5 years old).  Two matters were mentioned falling into that category:
    1. his accepted “poor” custodial behaviour in the early stages of his sentence;
    2. specifically his custodial history of participating in a riot situation that occurred on 18 August 2016.    
  2. [30]
    Those matters are plainly relevant matters for the Board to have considered.  As above, issues of weight are for the Board, and are not a proper ground of review.
  3. [31]
    Ground 3 is not made out. 

Ground 4: no evidence to justify the decision

  1. [32]
    The conclusion of the applicant’s outline of submissions asserts that “there is no evidence or other material to justify the making of the decision”.  The basis for such a submission has not been further articulated by the applicant. 
  2. [33]
    The Statement of Reasons sets out in a reasonably detailed way from [30]-[129] the evidence that justifies the findings of fact made by the Board at [12]-[29] of the Statement of Reasons.  The Refusal Decision is further explained at [130]-[151] of the Statement of Reasons.
  3. [34]
    Ground 4 is not made out. 

Ground 5: improper exercise of the power

  1. [35]
    It appeared to me that ground 5, which arises in [14] of the applicant’s outline of submissions, was abandoned by the applicant during the oral hearing when he was directed to consider particular documents in evidence. 
  2. [36]
    Regardless, I will mention the ground briefly. 
  3. [37]
    The ground rested on propositions that:
    1. the Board had failed to take into account a relevant principle derived from the decision in Batts v Department of Corrective Services [2002] QSC 206 at [14] to the effect that to refuse to grant a remission solely on the basis that a prisoner fails to undertake a particular course is an entirely improper exercise of power;
    2. here the Board made the Refusal Decision on the basis that the applicant had refused to undertake particular courses (he agreed he has refused to undertake particular courses but says that refusal has been for good reason associated with maintaining his safety).
  4. [38]
    The applicant was unable to demonstrate by reference to the evidence that in fact the Board made the Refusal Decision on the basis that the applicant had refused to undertake particular courses to address outstanding treatment needs.  Whilst the Board did encourage the applicant to consider undertaking certain courses,[21] it specifically recorded at [96] of the Statement of Reasons that:

Whilst the Board was conscious that completing the recommended programs in custody was not a requirement of parole, it may give the Board confidence that you may be a lower risk of violence offending and present a lower risk to the community.

  1. [39]
    It is clear to me having read the Board’s preliminary view letter, the letter of 15 July 2024 containing the Refusal Decision and the Statement of Reasons, that the Board did not make the Refusal Decision on the basis of the applicant’s refusal to undertake certain recommended courses in custody. 
  2. [40]
    Ground 5 is not made out. 

Ground 6: the Refusal Decision is (legally) unreasonable

  1. [41]
    The applicant’s application for a statutory order of review and outline of submissions assert that the Refusal Decision is unreasonable.  No attempt has been made by the applicant to demonstrate how the Refusal Decision is legally unreasonable in a way that would justify the relief sought by the applicant in the proceeding. 
  2. [42]
    The principles to be applied in respect of legal unreasonableness in a judicial review of a decision regarding an application for a parole order are set out by Bowskill CJ in Nicholson v Parole Board Queensland [2024] QSC 232 from [39]-[52].  It noteworthy that the decision at [43] provides (footnotes omitted):

… the test for unreasonableness is necessarily stringent because “the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”. It is strictly supervisory; it does not involve the court reviewing the merits of the decision under the guise of an evaluation of reasonableness nor does it involve the court substituting its own view as to how the discretion should be exercised.

  1. [43]
    None of the matters otherwise complained about by the applicant in the proceeding, taken either alone, in some combination, or all together, rise to the level required for a conclusion of legal unreasonableness to be reached.  I accept the submission made on behalf of the Board that the Statement of Reasons provided an evident and intelligible justification for the Refusal Decision.  
  2. [44]
    Ground 6 is not made out. 

Conclusion

  1. [45]
    It follows that the applicant’s application is dismissed.  There is no order as to costs.    

Footnotes

[1]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) CLR 24 at 40.

[2]Note: I have inserted what I consider to be the relevant references to provisions of the JRA to attempt to identify a proper statutory basis for the complaints that appear to be made by the applicant.

[3]Taken from the application for a statutory order of review (excluding the reference to “materially” which I have added).

[4]Gleaned from the applicant’s submissions.

[5]Gleaned from the applicant’s submissions.

[6]Gleaned from the applicant’s submissions.

[7]Gleaned from the applicant’s submissions.

[8]Taken from the application for a statutory order of review (excluding the reference to “legally” which I have added).

[9]At page 10 of the letter under the heading Custodial Behaviour, 21 December 2023.

[10]Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [104].

[11]Conclusion of the applicant’s outline of submissions. 

[12]2.1(i) of the Ministerial Guidelines.

[13][10] of the applicant’s outline of submissions.

[14]2.1(k) and 5.1(h) of the Ministerial Guidelines.

[15][11] of the applicant’s outline of submissions.

[16]5.1(b) of the Ministerial Guidelines.

[17][12] of the applicant’s outline of submissions.

[18][13] of the applicant’s outline of submissions.

[19]Applicant’s oral submissions arising in the context of Ground 3. 

[20]Boyy v Parole Board Queensland [2018] QSC 175 at [43] and [46].

[21]See for example at [42] of the Statement of Reasons.

Close

Editorial Notes

  • Published Case Name:

    Phillips v Parole Board Queensland

  • Shortened Case Name:

    Phillips v Parole Board Queensland

  • MNC:

    [2024] QSC 275

  • Court:

    QSC

  • Judge(s):

    Hindman J

  • Date:

    13 Nov 2024

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
Batts v Department of Corrective Services [2002] QSC 206
2 citations
Jump To
Cite 1 - [2002] QSC 206
Cite 2 - [2002] QSC 206
Boyy v Parole Board Queensland [2018] QSC 175
2 citations
Jump To
Cite 1 - [2018] QSC 175
Cite 2 - [2018] QSC 175
Hickson v Parole Board Queensland [2024] QSC 133
2 citations
Jump To
Cite 1 - [2024] QSC 133
Cite 2 - [2024] QSC 133
LPDT v Minister for Immigration [2024] HCA 12
2 citations
Jump To
Cite 1 - [2024] HCA 12
Cite 2 - [2024] HCA 12
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
1 citation
Jump To
Cite 1 - [1986] HCA 40
Nicholson v Parole Board Queensland [2024] QSC 232
2 citations
Jump To
Cite 1 - [2024] QSC 232
Cite 2 - [2024] QSC 232
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
2 citations
Jump To
Cite 1 - (2000) 204 CLR 82
Cite 2 - (2000) 204 CLR 82
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57
1 citation
Jump To
Cite 1 - [2000] HCA 57

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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