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McQueen v Parole Board Queensland[2024] QSC 308

McQueen v Parole Board Queensland[2024] QSC 308

SUPREME COURT OF QUEENSLAND

CITATION:

McQueen v Parole Board Queensland [2024] QSC 308

PARTIES:

ALLAN DAVID MCQUEEN

(applicant)

v

PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

BS 5631/24

DIVISION:

Trial Division

PROCEEDING:

Application for a Statutory Order of Review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2024

JUDGE:

Cooper J

ORDER:

  1. The decision of the respondent of 8 April 2024 is set aside.
  2. The respondent is directed to remake that decision under s 208(2) of the Corrective Services Act 2006 (Qld) according to law.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant is serving a sentence of life imprisonment for murder – where the applicant was released on parole subject to a condition that he undergo drug testing and refrain from using illegal drugs – where the applicant breached his parole order by returning a positive drug test – where the respondent cancelled the applicant’s parole order on the basis that the respondent reasonably believed that the applicant posed an unacceptable risk of committing an offence and that he failed to comply with the no-drugs condition – where the applicant submits that the respondent’s decision to cancel his parole was not authorised because the respondent’s belief that the applicant posed an unacceptable risk of committing an offence was not based on reasonable grounds – whether the respondent’s decision was authorised by the Corrective Services Act 2006

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the respondent informed the applicant that it was in possession of information that was not in the public interest to disclose – where the respondent took that information into account in deciding to cancel the applicant’s parole – where the applicant submits that the respondent should not have considered the information because public interest immunity was claimed in respect of it – whether the respondent took into account an irrelevant consideration in deciding to cancel the applicant’s parole

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the applicant submits that the notice of the respondent’s decision to cancel his parole did not comply with the requirements of the Corrective Services Act 2006 because it failed to adequately provide reasons for the cancellation decision – where the respondent conceded that the notice failed to comply with the obligation to give reasons for the cancellation decision – whether a procedure required to be observed in making the cancellation decision was not observed

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited

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

George v Rockett (1990) 170 CLR 104, cited

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

McQueen v Parole Board Queensland (2022) 11 QR 481, cited

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, cited

Sagar v O'Sullivan (2011) 193 FCR 311, considered

Acts Interpretation Act 1954 (Qld), s 27B

Corrective Services Act 2006 (Qld), s 205, s 208, s 340AA, s 490ZI

Judicial Review Act 1991 (Qld), s 20

COUNSEL:

AD Scott KC with AR Hughes for the applicant

JM Horton KC with R McDermott for the respondent

SOLICITORS:

Jahnke Lawyers for the applicant

Parole Board Queensland for the respondent

  1. [1]
    The applicant (Mr McQueen) has applied for the review of two decisions made by the respondent (the Board).  First, on 5 February 2024, the Board decided to cancel Mr McQueen’s parole order (Cancellation Decision).  Secondly, on 8 April 2024, the Board decided not to vary the Cancellation Decision (Confirmation Decision).
  2. [2]
    Mr McQueen relies on the following grounds of review:
    1. in respect of both the Cancellation Decision and the Confirmation Decision, that the decision was not authorised by the enactment under which it was purported to be made[1] because the Board’s belief that Mr McQueen posed an unacceptable risk of committing an offence was not based on reasonable grounds as required by s 205(2)(iii) of the Corrective Services Act 2006 (CS Act) (the want of authority ground);
    2. in respect of the Cancellation Decision, in making that decision the Board took into account an irrelevant consideration,[2] namely material subject to public interest immunity which the Board was not excused by s 340AA of the CS Act from disclosing (the irrelevant consideration ground);
    3. in respect of the Confirmation Decision, a procedure required to be observed in relation to the making of that decision was not observed[3] because an information notice which the Board was required by s 208(1) of the CS Act to provide to Mr McQueen did not comply with the requirements for such a notice (the defective procedure ground).

Background

  1. [3]
    On 19 August 1994, Mr McQueen was sentenced to life imprisonment for murder.  He committed that offence on 24 March 1993 when he was in prison for other offending.
  2. [4]
    Since he became eligible to apply for parole on 19 August 2007, Mr McQueen has had a long history with the Board.  That history includes numerous applications for judicial review of decisions made by the Board in which the decisions were set aside or accepted by the Board to be unsustainable at law.
  3. [5]
    It is not necessary for me to set out the full history.  The relevant interactions in the period from 19 April 2007 to 3 April 2018 are set out in a judgment of Dalton J (as her Honour then was) setting aside a decision made by the Board on 27 March 2018 to confirm the cancellation of Mr McQueen’s parole.[4]  Further interactions in the period between 1 November 2018 and 7 February 2022 are set out in a subsequent judgment of Brown J (as her Honour then was) setting aside decisions made by the Board on 20 December 2021 and 7 February 2022 not to vary its earlier decision to indefinitely suspend Mr McQueen’s parole.[5]

The current cancellation of Mr McQueen’s parole order

  1. [6]
    Mr McQueen’s most recent release to parole was on 17 April 2023.  He was released subject to the conditions set out in his parole order which was signed on behalf of the Board on 3 April 2023 (Parole Order).  Those conditions included the following as condition (k):

“You must give a test sample if required to do so by the Chief Executive, or an authorised corrective services officer, under section 41 of the [CS Act]; and

  1. a.
    If you return a confirmed positive test sample to an illegal drug(s), or medication not prescribed to you, you will have breached this order; …”
  1. [7]
    On 25 September 2023, a representative of Queensland Corrective Services (QCS) prepared an Advice to Parole Board Report (APBR) concerning Mr McQueen. 
  2. [8]
    The first page of the APBR described its purpose as being an application to suspend the Parole Order, in circumstances where Mr McQueen was said to be:

“presenting at [sic, as] an unacceptable risk of committing a further offence and has failed to comply with the Parole Order, pursuant to s 208A(1)(c) and (a) of the [CS Act].”

  1. [9]
    The APBR recorded, among other matters, that on or about 15 September 2023, Mr McQueen had made disclosures to QCS testing officers that he had consumed methamphetamine.  Further, the urinalysis test performed on 15 September 2023 returned a positive result for methamphetamine and amphetamine (Positive Urinalysis Result).  The APBR recommended that the Parole Order:

“… be suspended pursuant to Section 208A(1)(a) and (c) of the [CS Act], in that he has failed to comply with the Parole Order, and further poses an unacceptable risk of committing a further offence.”

  1. [10]
    The APBR was provided to the Board the same day it was prepared.  Upon its receipt, a prescribed board member suspended the Parole Order and issued a warrant for Mr McQueen’s arrest.  In making that decision, the prescribed board member confirmed that:
    1. he reasonably believed that Mr McQueen had failed to comply with the Parole Order (s 208B(5)(a) of the CS Act);
    2. he reasonably believed that Mr McQueen posed an unacceptable risk of committing an offence (s 208B(5)(c) of the CS Act).
  2. [11]
    The prescribed board member noted the Positive Urinalysis Result among the grounds upon which he had relied to form those beliefs.
  3. [12]
    On 26 September 2023, the Board confirmed the decision to suspend the Parole Order.  It sent an information notice dated 26 September 2023 to Mr McQueen setting out reasons for that decision (26 September Notice).  In those reasons, the Board stated that it had been informed about the Positive Urinalysis Result (among other matters).  The Board went on to state that it reasonably believed that Mr McQueen posed an unacceptable risk of committing an offence and that he failed to comply with condition (k) of the Parole Order.
  4. [13]
    On 27 November 2023 and again on 8 January 2024, the Board decided not to vary its decision to suspend the Parole Order.
  5. [14]
    On 10 January 2024, the Board wrote to Mr McQueen (10 January Letter), informing him that it was considering cancelling the Parole Order and requesting that he participate in a video-link to show cause in relation to various matters, including his breach of condition (k) of the Parole Order.
  6. [15]
    On 5 February 2024, the Board made the Cancellation Decision.
  7. [16]
    On 6 February 2024, the Board sent Mr McQueen an information notice (6 February Notice) which informed him of the Cancellation Decision and provided the following reasons for that decision:

“Reasons for the Board’s decision –

The Board was informed that:

  • The Board considered your written submissions of 02 February 2024 in response to the Boards [sic] Information Notice;
  • The Board does not accept your submissions in relation to the issue with the fake penis;
  • The Board does not accept your submissions in relation to the reasons why you refused to provide a sample to Queensland Police Service and why you were found hiding under your car.  You are reminded that you are serving a life sentence and while you continue to use illicit substances these case management practices including home visits and curfew checks and supervised drug testing will continue.  The Board accepts your written submission that in such circumstances ‘There is no use in releasing (you)’;
  • The Board has viewed video footage of the incident of 19 December 2023 and is satisfied that you were a perpetrator in that incident.  In particular the Board noted you engaged in verbal dispute and after the other prisoner threw an air swing punch, he did not maintain the fight and you threw your coffee at him and lunged at him.  You were supported by others in the yard who responded at your request;
  • The Board was informed you were involved in an incident on 02 February 2024 for offensive behaviour involving you abusing staff by flipping them the middle finger and telling them to ‘fuck off’ and when secured in your cell you continued to verbally abuse the officer including calling them ‘a bitch’ and ‘a fucking dog scum’; and
  • The Board is also aware of Prisoner Telephone System calls between you and [HR] of up to 20 calls a day threatening and verbally abusing her while demanding money.

Accordingly, the Board reasonably believes that you pose an unacceptable risk of committing an offence and you failed to comply with [condition (k)] of your parole order …”

(underlining added)

  1. [17]
    The minutes of the meeting of the Board at which it made the Cancellation Decision recorded the reasons for that decision in substantially similar terms.
  2. [18]
    On 8 April 2024, the Board made the Confirmation Decision.  It notified Mr McQueen of that decision in a letter dated 9 April 2024.
  3. [19]
    On 14 May 2024, in response to a request by Mr McQueen’s solicitors, the Board provided a written statement of reasons (Reasons) for the Cancellation Decision and the Confirmation Decision.
  4. [20]
    In addition to matters which were said to support the Board’s reasonable belief that Mr McQueen posed an unacceptable risk of committing a further offence (which are the focus of the want of authority ground), the Reasons also referred to:
    1. the receipt of the APBR and the information contained in that report concerning the Positive Urinalysis Result and Mr McQueen’s admission to using methamphetamine;[6]
    2. the fact that, pursuant to condition (k), the Positive Urinalysis Result constituted a breach of the Parole Order;[7]
    3. the Board having a reasonable belief that Mr McQueen had failed to comply with condition (k) of the Parole Order by reason of the Positive Urinalysis Result.[8]
  5. [21]
    The Reasons also recorded that, through administrative error, the 6 February Notice omitted reference to the Board’s preliminary reasons for cancelling the Parole Order which had been set out in the 10 January Letter.  The Board acknowledged that error and confirmed that the basis of its decision to cancel the Parole Order included the reasons set out in the 10 January Letter and the 6 February Notice.[9]
  6. [22]
    The Reasons concluded by stating that the Board had decided to cancel the Parole Order on the basis that it considered Mr McQueen:[10]

“… failed to comply with a condition of [the Parole Order] and … posed an unacceptable risk of committing an offence.”

  1. [23]
    After the Board made the Cancellation Decision on 5 February 2024, it informed Mr McQueen that he was permitted to submit a fresh application for a parole order.  Pursuant to that indication, Mr McQueen made a fresh application for a parole order on 28 March 2024.
  2. [24]
    On 24 July 2024, the Board made a preliminary decision to grant Mr McQueen parole but deferred making a final decision on his fresh application until he obtained approved accommodation.  The Board considered further submissions by Mr McQueen seeking approval for accommodation on 13 August 2024, 18 September 2024 and 6 November 2024 (the last occasion being after the hearing of the present application).  On each occasion, the Board did not approve the accommodation proposed by Mr McQueen.  In those circumstances, no final decision has been made on Mr McQueen’s fresh application for a parole order.

Legislative scheme

  1. [25]
    The Cancellation Decision involved an exercise of the Board’s power to amend, suspend or cancel a parole order conferred by s 205 of the CS Act.  Relevantly, s 205(2) sets out the following circumstances in which that power is enlivened:
  1. “(2)
    The parole board may, by written order—
  1. (a)
    amend, suspend or cancel a parole order if the board reasonably believes the prisoner subject to the parole order—
  1. (i)
    has failed to comply with the parole order; or
  1. (ii)
    poses a serious risk of harm to someone else; or
  1. (iii)
    poses an unacceptable risk of committing an offence; or
  1. (iv)
    is preparing to leave Queensland, other than under a written order granting the prisoner leave to travel interstate or overseas; …”
  1. [26]
    The phrase “reasonably believes” is defined in Sch 4 of the CS Act to mean “believes on grounds that are reasonable in the circumstances”.
  2. [27]
    In George v Rockett,[11] the High Court observed that suspicion and belief are different states of mind and that the facts which might reasonably ground a suspicion may be insufficient to reasonably ground a belief.[12]  As to the latter, the High Court went on to say:

“The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof.  Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”

  1. [28]
    If the Board decides to suspend or cancel a parole order, s 208(1) of the CS Act provides that it “must give the prisoner an information notice on the prisoner’s return to prison.” 
  2. [29]
    The Confirmation Decision was made pursuant to the requirement in s 208(2) that, after giving the prisoner an information notice, the Board must consider all properly made submissions and inform the prisoner whether it has changed its decision to suspend or cancel the prisoner’s parole order.
  3. [30]
    “Information notice” is defined in s 208(4) to mean a notice:
  1. “(a)
    stating the parole board has decided to suspend or cancel the parole order; and
  1. (b)
    advising the reason for the decision; and
  1. (c)
    inviting the prisoner to show cause, by written submissions given to the board within 21 days after the notice is given, why the board should change its decision.”
  1. [31]
    The requirement that the information notice advise the prisoner of the reason for the decision engages the operation of s 27B of the Acts Interpretation Act 1954,[13] which provides:
  1. “If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also—
  1. (a)
    set out the findings on material questions of fact; and
  1. (b)
    refer to the evidence or other material on which those findings were based.”
  1. [32]
    This requires that the statement of reasons set out the actual path of reasoning by which the Board arrived at the decision, and that this be done in sufficient detail to enable the court to discern whether the decision involves any error of law.[14]  In circumstances where a prisoner is invited to show cause and provide submissions in response to the information notice, a notice which does not disclose a path of reasoning, set out material findings of fact or refer to evidence or material relied upon (and so does not permit a prisoner to meaningfully respond to the matters raised in the notice) does not comply with s 208(4).[15]
  2. [33]
    In 2024, amendments were introduced into the CS Act to address the power of the Board to withhold certain information.  Relevantly, s 340AA was inserted into the CS Act in the following terms:

“340AA

Sensitive information that need not be included in reasons

(1)

A decision-maker need not, in giving reasons for a decision or proposed decision made under this Act, disclose anything that the decision-maker is satisfied could reasonably be expected to—

(a)

enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained; or

(b)

endanger a person’s life or physical safety; or

(c)

seriously threaten a person’s welfare; or

(d)

prejudice public safety or national security; or

(e)

prejudice the detection, investigation or prosecution by a law enforcement agency of—

(i)

a terrorism offence; or

(ii)

an offence with a maximum penalty of 14 years or more imprisonment; or

(iii)

another offence prescribed by regulation for this section; or

(f)

be prohibited under a law of this or another State or the Commonwealth.

(1A)

In deciding whether to rely on subsection (1), the decision-maker must weigh the need to avoid the reasonably expected consequences of disclosure mentioned in subsection (1) against the need to avoid unfairness to an individual that the decision-maker is satisfied could reasonably be expected as a consequence of non-disclosure.

(1B)

If a decision-maker relies on subsection (1), the decision-maker must keep a written record of the decision to rely on the subsection and the reasons for the decision.

(1C)

The contents of the record may only be disclosed—

(a)

to a court for the purpose of a proceeding relating to the decision or proposed decision; or

(b)

with the approval of the chief executive.

(1D)

The court must ensure that the contents of the record are not disclosed except to a member of the court as constituted for the purpose of the proceeding.

(2)

In this section—

decision-maker means—

(a)

the parole board; or

(b)

a person required or authorised to make a decision under this Act.”

  1. [34]
    Section 340AA commenced after the Cancellation Decision and the Confirmation Decision had been made.  That situation is addressed by s 490ZI which provides:

“490ZI

Validation of certain decisions

(1)

This section applies to a decision of an entity made under this Act or a repealed Act before the commencement.

(2)

The decision is, and is taken to have always been, as valid as it would have been if, at the time the decision was made, new section 340AA had applied to the decision.

(3)

Anything done as a result of the decision is, and is taken to have always been, as valid and lawful as it would have been if, at the time the decision was made, new section 340AA had applied to the decision.

(3A)

For subsections (2) and (3), any non-compliance with new section 340AA(1A) or (1B) is to be disregarded.

(4)

However, if a decision to which this section applies has, before the commencement, been found by a court to be invalid or has been set aside by court order—

(a)

the finding or order stands; but

(b)

if the decision is remade after the commencement, new section 340AA applies to the decision as remade.

(5)

In this section—

new section 340AA means section 340AA as in force from the commencement.”

  1. [35]
    Consequently, s 340AA is deemed to have applied to the Cancellation Decision and the Confirmation Decision, subject to the requirements of that provision having been met.

Utility

  1. [36]
    Before turning to consider the grounds of review, it is necessary to address a submission by the Board concerning the utility of the present application.  The Board submits that the application for review has been overtaken by events.  As already noted, after the Parole Order was cancelled, Mr McQueen re-applied for parole.  Upon consideration of that fresh application, the Board has formed and maintained a preliminary view that it would grant Mr McQueen parole if he is able to find suitable accommodation.  In those circumstances, the Board submits that there is no utility in the court deciding the present application.
  2. [37]
    Mr McQueen submits that there is utility in determining the application because, if the Cancellation Decision and the Confirmation Decision are set aside, the Parole Order would continue to exist (albeit that it would be suspended) and the Board would lack power to grant parole under conditions set out in a new parole order.  That is, the determination of the application for review may affect the power which the Board may exercise to re-release Mr McQueen on parole if that is what it decides to do.  I accept that submission.

Consideration of the want of authority ground

  1. [38]
    Judicial review of an administrative decision is confined to the legality of the decision.  It is concerned with whether the decision was one which the respondent was authorised to make.  It does not permit either a general review of the decision or a substitution of the decision which the court thinks should have been made.[16]
  2. [39]
    The expression “not authorised” in s 20(2)(d) of the JR Act, when considered in the context of the exercise of administrative powers conferred by an enactment, refers to a decision that is expressly or impliedly forbidden by the relevant enactment.[17]  That is so because, where a statutory condition upon which a decision-maker’s power depends is not established, the decision is deprived of its legal foundation.[18]
  3. [40]
    On this application, Mr McQueen advances the want of authority ground on the basis that the power which the Board purportedly relied upon to cancel the Parole Order was limited to that conferred by s 205(2)(iii) of the CS Act.[19]  That is, the want of authority ground rests on the contention that the sole legal foundation for both the Cancellation Decision and the Confirmation Decision is that the Board reasonably believed that Mr McQueen posed an unacceptable risk of committing an offence.
  4. [41]
    Mr McQueen accepts that, when it made the Cancellation Decision and the Confirmation Decision, the Board subjectively believed that he posed such a risk.  He submits, however, that the belief was not based on grounds that were reasonable in circumstances.  He submits that, to the contrary, many of the grounds which the Board relied upon in forming its belief were based on demonstrably incorrect factual conclusions or information which the Board did not independently verify. 
  5. [42]
    To the extent that there was some evidence to substantiate the grounds which informed the Board’s belief, Mr McQueen submits that those grounds did not provide a reasonable basis for the Board to believe that he posed an unacceptable risk of committing an offence.  In that context, Mr McQueen argues that no reasonable person could have believed that he posed an unacceptable risk of committing an offence, particularly if he was to be released subject to parole conditions.[20]  However, he makes these submissions only in support of the want of authority ground.  His challenge to the Cancellation Decision and the Confirmation Decision does not include an argument that either decision involved the exercise of a power that is so unreasonable that no reasonable person could have exercised in that way.[21]
  6. [43]
    Having regard to the way in which the grounds of review have been framed, I have not found it necessary to consider the detailed arguments Mr McQueen raises about the reasonableness or otherwise of the grounds on which the Board based its belief that Mr McQueen posed an unacceptable risk of committing an offence.  That is because, although it is true that the Board relied on the power conferred by s 205(2)(iii) of the CS Act, I do not accept that was the only conferral of power the Board relied upon in making the Cancellation Decision and the Confirmation Decision.  Instead, I am satisfied that the Board also relied on the power conferred by s 205(2)(i) of the CS Act; that is, the power conferred in circumstances where the Board reasonably believed that Mr McQueen had failed to comply with the Parole Order based upon his the Positive Urinalysis Result.
  7. [44]
    There is no dispute that Mr McQueen provided the Positive Urinalysis Result or that, when he was tested on 15 September 2023, he made admissions to QCS testing officers about using methamphetamine a few days earlier.  There is also no dispute that QCS conveyed that information to the Board.[22]
  8. [45]
    As set out at [7]-[17] above, the Positive Urinalysis Result and the resulting breach of condition (k) of the Parole Order were referred to in: the APBR as a basis for the QCS recommendation that the Parole Order be suspended; the decision of the prescribed member of the Board to suspend the Parole Order; the 26 September Notice; and, the 10 January Letter.
  9. [46]
    The 6 February Notice did not include any reference to the Positive Urinalysis Result.  It did, however, record the Board’s belief that Mr McQueen had failed to comply with condition (k) of the Parole Order.  I infer from this, and from the earlier statement of the same belief coupled with the reference to the Positive Urinalysis Result in the 26 September Notice, that the Positive Urinalysis Result was a basis for the Board’s belief, stated in the 6 February Notice, that Mr McQueen had failed to comply with condition (k) of the Parole Order.
  10. [47]
    The Reasons also refer to both the Positive Urinalysis Result and the Board’s belief that Mr McQueen failed to comply with condition (k) of the Parole Order (see [20] above).  Mr McQueen objects to the admissibility of the Reasons.  That objection appears to be well taken for reasons explained by McMurdo J (as his Honour then was) in Adrenalin Sports Brisbane Pty Ltd v Deputy Treasurer and Minister for Sport, The Honourable T M Mackenroth MLA.[23]  However, even if the Reasons are not admissible against Mr McQueen to prove the Board’s decision-making process, the earlier material set out at [7]-[17] above, to which no objection was taken, provides a sufficient basis for me to infer that:
    1. when the Board made the Confirmation Decision on 8 April 2024, it continued to believe that Mr McQueen had failed to comply with condition (k) of the Parole Order; and
    2. the Positive Urinalysis Result was a basis for that belief.
  11. [48]
    In summary, I am satisfied that when the Board made the Cancellation Decision on 5 February 2024, and the Confirmation Decision on 8 April 2024, it believed that Mr McQueen had failed to comply with condition (k) of the Parole Order.  I am further satisfied that the Positive Urinalysis Result provided reasonable grounds for that belief.  In those circumstances, it seems clear that the power of the Board to cancel the Parole Order under s 205(2)(a)(i) of the CS Act was enlivened.  The reasonableness or otherwise of the Board’s other stated belief that Mr McQueen posed an unacceptable risk of committing an offence has no bearing on the existence of the power conferred by s 205(2)(a)(i).
  12. [49]
    In those circumstances, the want of authority ground fails.

Consideration of the irrelevant consideration ground

  1. [50]
    In the 10 January Letter, the Board stated that it was in possession of information that it was not in the public interest to disclose to Mr McQueen and over which the Board made a claim of public interest immunity.  The gist of that information was said to be:
    1. police had seized fencing from the property belonging to Mr McQueen’s partner based on a suspicion that it had been built using stolen materials;
    2. Mr McQueen was at Bunnings with a female person who was suspected of stealing property from the store.
  2. [51]
    In submitting that the Board took this information into account in making the Cancellation Decision, Mr McQueen relies upon the statement in the Reasons that the basis of that decision included both the reasons set out in the 10 January Letter and those set out in the 6 February Notice (see [21] above).
  3. [52]
    The submission that this information amounted to an irrelevant consideration is not based on the content of the information itself, but upon the fact that a claim for public interest immunity was made in respect of it.  Mr McQueen submits that where a claim for public interest immunity is made, a decision-maker who is subject to a duty to provide reasons for the decision should not have regard to material which is the subject of that claim for immunity if the confidentiality of the material cannot be maintained.  He accepts that this restriction would not arise where s 340AA of the CS Act excuses the Board from disclosing material but submits that the Board has not demonstrated that s 340AA operates in this case.
  4. [53]
    During argument on the application, senior counsel for Mr McQueen frankly acknowledged that there is no authority which establishes the proposition he advances.  Instead, the submission proceeds by way of analogy with cases which establish that a valid claim of public interest immunity prevents the relevant material from being admitted into evidence and being considered in determining the outcome of criminal proceedings,[24] civil proceedings,[25] arbitral proceedings,[26] or upon a review in the Administrative Appeals Tribunal of a decision to refuse an application for a visa on grounds of lack of good character.[27] 
  5. [54]
    The submission by analogy is that, just as the decision-makers in those settings are prevented from receiving or considering material which is subject to a valid claim of public interest immunity, so should a decision-maker in the position of the Board – which must disclose information to comply with its duty to provide reasons – also be precluded from receiving or considering such material.
  6. [55]
    This argument was rejected by Brown J (as her Honour then was) in an earlier judicial review application brought by Mr McQueen,[28] although the decisions sought to be reviewed on that application were set aside on other grounds. 
  7. [56]
    In Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police,[29] a case to which Brown J referred, the High Court considered the validity of legislation which provided that, on a review by the Supreme Court of Western Australia of a decision made by the Commissioner, the Commissioner could identify information provided to the court for the purposes of the review as confidential if its disclosure might prejudice the operations of the Commissioner.  Under the legislation being considered, the review provided for by the statutory scheme was to operate to the exclusion of what otherwise would have been the general jurisdiction of the Supreme Court to issue the prerogative writs, grant injunctions and make declarations with respect to the performance of a function under the legislation.  Before considering the validity of the impugned provision, the majority of the High Court said the following:[30]

“Something more should be said here respecting what would be involved in the exercise of that general jurisdiction of the Supreme Court in a case such as the present and the absence of the exclusion of the jurisdiction by s 83 of the Act.

In such a proceeding for judicial review of a decision of the Commissioner of Police to issue a fortification removal notice, an attempt by an applicant to gain access by discovery or on subpoena to material relied upon by the Commissioner, and thereby support a case of reviewable error by the Commissioner, could be expected, as to at least some of that material, to be met by a claim of public interest immunity. 

For the purpose of ruling on such a claim the Supreme Court might inspect for itself, and without disclosure to the applicant, the materials in question.  A successful claim to such immunity (preferably by decision of a judicial officer other than the trial judge) would have the consequence that the material was not admitted into evidence and would be denied both to the Court and the applicant. The handicap to which an applicant (and the Court) thereby are subjected appears from the following observations by Mason J in Church of Scientology Inc v Woodward, which were made when dealing with matters of national security:

‘Intelligence is relevant to security if it can reasonably be considered to have a real connection with that topic, judged in the light of what is known to ASIO at the relevant time.  This is a test which the courts are quite capable of applying.  It is a test which presents a formidable hurdle to a plaintiff and not only because a successful claim for Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument – that there is no real connection between the intelligence sought and the topic.  The fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials.’”

  1. [57]
    Although this passage refers to the handicap to which an applicant for judicial review will be subjected when a claim of public interest immunity prevents material being admitted into evidence, it does not suggest that the decision sought to be reviewed would be invalid on the basis that such material amounts to an irrelevant consideration which the decision-maker is precluded from considering.  If that was the case, it would make no sense to talk about a handicap.  Provided the applicant could establish that the decision-maker had considered material over which public interest immunity was claimed then it would be a simple matter to have the decision based on that material set aside.
  2. [58]
    A similar point can be made about Sagar v O'Sullivan.[31]  That case involved the judicial review of adverse security assessments made by the Director-General of Security in relation to applicants who were refugees from Iraq.  On the review of the assessments, the Director-General’s reasons for decision were protected from production by a claim of public interest immunity.  In those circumstances, the applicants were unaware of the reasons for making of the decisions which they challenged.  Nevertheless, they sought to have the assessments set aside on grounds which included that: no facts existed which would justify the assessments; the Director-General took account of irrelevant matters; and the Director-General failed to take account of relevant matters. 
  3. [59]
    The applicants submitted that, because of the Director-General’s refusal to publish his reasons, it should be inferred that no evidence to support the adverse assessments existed and, further, that the Director-General had taken into account irrelevant considerations and failed to have regard to relevant ones.  Tracey J concluded that the Director-General’s failure to disclose his reasons did not permit those inferences to be drawn.  In those circumstances, the grounds for review failed.  The applicants failed to discharge the onus on them of establishing the asserted errors in making the assessments.  This clearly highlights the handicap referred to by the majority of the High Court in the Gypsy Jokers case.  Yet nothing in Sagar suggests that the assessments were invalid because the Director-General was precluded, by reason of the inability to disclose the matters the subject of the claim for public interest immunity, from considering the matters in making the assessments.  There is no suggestion that by considering those matters the Director-General took into account irrelevant considerations.
  4. [60]
    I am not persuaded that the analogy Mr McQueen seeks to draw warrants the conclusion that decision-makers such as the Board are precluded from receiving and considering material which is the subject of a claim of public interest immunity.  The irrelevant consideration ground fails.

Consideration of the defective procedure ground

  1. [61]
    Mr McQueen submits that the 6 February Notice did not comply with the requirements of s 208 of the CS Act because that notice:
    1. failed to set out material evidence, being evidence referred to in the Reasons as being subject to the claim of public interest immunity, and failed to set out the findings which the Board made in respect of that evidence;[32]
    2. further, and alternatively, did not disclose any pathway of reasoning or findings on material questions of fact or a complete description of the material on which those findings were based.
  2. [62]
    The Board initially resisted this ground on the basis that the 6 February Notice should be read together with the Reasons.[33]  During argument, however, senior counsel for the Board accepted that, having regard to the authorities referred to at [31]-[32] above, the 6 February Notice failed to comply with the obligation to give reasons for the Cancellation Decision.[34]
  3. [63]
    That concession was appropriate.  Even putting to one side Mr McQueen’s submission that the Board was not entitled to withhold information because s 340AA  of the CS Act has displaced the common law doctrine of public interest immunity in the context of decisions made under the CS Act (and that the Board had failed to establish that s 340AA operated in the present case),[35] it is clear that the 6 February Notice was deficient because it did no more than state matters about which it had been informed and a conclusion which it had reached without disclosing any pathway of reasoning.  That is insufficient where Mr McQueen was expected to show cause and provide submissions in response to the 6 February Notice.[36]  
  4. [64]
    The Board further accepted that, because the 6 February Notice did not comply with the requirements of s 208 of the CS Act, the Confirmation Decision should be set aside on the basis that a procedure that was required by law to be observed in relation to the making of that decision was not observed.[37]  Again, that concession was properly made. 
  5. [65]
    It follows that Mr McQueen has established that the Confirmation Decision was invalidly made by reason of the defective procedure ground. 
  6. [66]
    In those circumstances, it is not necessary to further consider or determine Mr McQueen’s argument that s 340AA has displaced public interest immunity in the context of decisions made under the CS Act.  In my view, consideration of that argument should await a case where it falls to be determined, particularly in circumstances where the Board has now made a preliminary decision to grant parole to Mr McQueen.

Conclusion and orders

  1. [67]
    The orders will be:
  1. The decision of the Board of 8 April 2024 is set aside. 
  2. The Board is directed to remake that decision under s 208(2) of the CS Act according to law.
  1. [68]
    I will hear the parties as to costs.

Footnotes

[1] Judicial Review Act 1991 (JR Act), s 20(2)(d).

[2]  JR Act, ss 20(2)(e) and 23(a).

[3]  JR Act, s 20(2)(b).

[4] McQueen v Parole Board Queensland [2018] QSC 216.

[5] McQueen v Parole Board Queensland (2022) 11 QR 481; [2022] QSC 27.

[6]  Reasons, [9], [29](a).

[7]  Reasons, [20], [29](a), [62](second bullet point), [84].

[8]  Reasons, [33].

[9]  Reasons, [86].

[10]  Reasons, [109]-[110].

[11]  (1990) 170 CLR 104.

[12]  (1990) 170 CLR 104, 115.

[13] Chalkley v Southern Queensland Regional Parole Board [2016] QSC 236 (Chalkley), [32]; McQueen v Parole Board Queensland (2022) 11 QR 481, 502 [59]-[60].

[14] Chalkley, [33] (applying Willis v State of Queensland [2016] QSC 80, [11](g)) and [43]-[44]

[15] McQueen v Parole Board Queensland (2022) 11 QR 481, 521-522 [139]-[140]

[16] Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, 184-185 [23].

[17] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 378.

[18] Accused A v Callanan [2009] 2 Qd R 112, 127 [58].

[19]  See paragraphs 1 and 2 of the particulars of the want of authority ground in the Further Amended Application for a Statutory Order of Review filed by leave on 1 November 2024.  See also paragraphs 2, 3, 30 and 31 of the submissions filed on behalf of Mr McQueen (Court document 12).

[20]  See paragraph 9 of the particulars of the want of authority ground in the Further Amended Application for a Statutory Order of Review filed by leave on 1 November 2024.  See also paragraphs 3 and 77 to 79 of the submissions filed on behalf of Mr McQueen (Court document 12)

[21]  JR Act, ss 20(2)(e) and 23(g).

[22]  Submissions filed on behalf of Mr McQueen (Court document 12), paragraph 41.

[23]  [2003] QSC 184, [12].

[24] HT v The Queen (2019) 269 CLR 403, 419-421 [29]-[34].

[25] Sagar v O'Sullivan (2011) 193 FCR 311, 321-322 [52]-[58].

[26] State of Victoria v Seal Rocks Victoria (Aust) Pty Ltd (2001) 3 VR 1, 6 [16].

[27] Commissioner of Police, New South Wales v Guo (2016) 332 ALR 236, 254-256 [72]-[78].

[28] McQueen v Parole Board Queensland (2022) 11 QR 481, 517-518 [124]-[126].

[29]  (2008) 234 CLR 532.

[30]  (2008) 234 CLR 532, 556 [22]-[24] (citations omitted).

[31]  (2011) 193 FCR 311.

[32]  Reasons, [61], [62](final bullet point) and [63].

[33]  Submissions of the Board (Court document 15), paragraphs 42 to 45.

[34]  Transcript 1-36:36 to 1-38:4.

[35]  Submissions filed on behalf of Mr McQueen (Court document 12), paragraphs 88 to 92.

[36] McQueen v Parole Board Queensland (2022) 11 QR 481, 521-522 [140].

[37]  Transcript 1-38:24-29.  I note that, although the 10 January Letter might be subject to the same criticism, that is not a basis to invalidate the Cancellation Decision because, as senior counsel for Mr McQueen acknowledged during argument, the CS Act did not require that the Board send a notice informing Mr McQueen of the reasons it was considering cancelling the Parole Order before it made the Cancellation Decision (Transcript 1-16:28-32).

Close

Editorial Notes

  • Published Case Name:

    McQueen v Parole Board Queensland

  • Shortened Case Name:

    McQueen v Parole Board Queensland

  • MNC:

    [2024] QSC 308

  • Court:

    QSC

  • Judge(s):

    Cooper J

  • Date:

    09 Dec 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
Accused A v Callanan[2009] 2 Qd R 112; [2009] QSC 12
1 citation
Jump To
Cite 1 - [2009] 2 Qd R 112
Adrenalin Sports Brisbane Pty Ltd v Mackenroth [2003] QSC 184
1 citation
Jump To
Cite 1 - [2003] QSC 184
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
2 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
Chalkley v Southern Queensland Regional Parole Board [2016] QSC 236
2 citations
Jump To
Cite 1 - [2016] QSC 236
Cite 2 - [2016] QSC 236
Commissioner of Police, New South Wales v Guo (2016) 332 ALR 236
1 citation
Jump To
Cite 1 - (2016) 332 ALR 236
George v Rockett (1990) 170 CLR 104
3 citations
Jump To
Cite 1 - (1990) 170 CLR 104
Cite 2 - (1990) 170 CLR 104
Cite 3 - (1990) 170 CLR 104
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532
3 citations
Jump To
Cite 1 - (2008) 234 CLR 532
Cite 2 - (2008) 234 CLR 532
Cite 3 - (2008) 234 CLR 532
HT v The Queen (2019) 269 CLR 403
1 citation
Jump To
Cite 1 - (2019) 269 CLR 403
McQueen v Parole Board Queensland [2018] QSC 216
1 citation
Jump To
Cite 1 - [2018] QSC 216
McQueen v Parole Board Queensland(2022) 11 QR 481; [2022] QSC 27
7 citations
Jump To
Cite 1 - [2022] QSC 27
Cite 2 - (2022) 11 QR 481
Cite 3 - (2022) 11 QR 481
Cite 4 - (2022) 11 QR 481
Cite 5 - (2022) 11 QR 481
Cite 6 - (2022) 11 QR 481
Cite 7 - (2022) 11 QR 481
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
2 citations
Jump To
Cite 1 - (2015) 258 CLR 173
Cite 2 - (2015) 258 CLR 173
Sagar v O'Sullivan (2011) 193 FCR 311
3 citations
Jump To
Cite 1 - (2011) 193 FCR 311
Cite 2 - (2011) 193 FCR 311
Cite 3 - (2011) 193 FCR 311
State of Victoria v Seal Rocks Victoria (Australia) Pty Ltd (2001) 3 VR 1
1 citation
Jump To
Cite 1 - (2001) 3 VR 1
Willis v State of Queensland [2016] QSC 80
1 citation
Jump To
Cite 1 - [2016] QSC 80

Cases Citing

Case NameFull CitationFrequency
McQueen v Parole Board Queensland [2025] QSC 113 citations
1

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