McQueen v Parole Board Queensland

This case considered the proper construction of ss 208 and 341 Corrective Services Act 2006 in circumstances where the Parole Board of Queensland (“respondent”) relied on confidential information that it did not disclose to the prisoner (“applicant”) when making decisions not to vary the suspension of his parole order. The applicant contended that the respondent was required to disclose the confidential information in the information notice required under s 208 which is, in effect, a statutory requirement to give reasons. To the extent the respondent did not disclose the confidential information in the information notice (the “impugned information notice”), the related decisions were procedurally unfair and ought to be set aside. Justice Brown agreed. The application was allowed, the decisions related to the impugned information notice were set aside, and respondent was directed to remake the decisions according to law.

Brown J

25 August 2022

Background

The prisoner (“applicant”) who is serving a life sentence had been granted parole by the Parole Board of Queensland (“respondent”) on 1 November 2018 (“parole order”). [10]. A “prescribed member” of the respondent decided to indefinitely suspend the applicant’s parole order: see s 208B Corrective Services Act 2006 (all further references to sections are references to sections of this statute unless specified otherwise). [16]. The respondent confirmed the decision of the “prescribed member” on 15 June 2020 (“primary decision”): see s 208C(1). [17]. The respondent then was required to reconsider the primary decision on a number of occasions, but on each of those occasions decided not to vary the primary decision. [20]–[36]. This was required under s 208 which relevantly provides as follows:

“208 Reconsidering decision to suspend or cancel parole order

(1) If the parole board makes a written order suspending or cancelling a prisoner’s parole order, the board must give the prisoner an information notice on the prisoner’s return to prison.

(2) The parole board must consider all properly made submissions and inform the prisoner, by written notice, whether the board has changed its decision and, if so, how.

(3) If the board changes its decision, the changed decision has effect on the day stated in the written notice.

(4) In this section—

information notice means a notice—

(a) stating the parole board has decided to suspend or cancel the parole order; and

(b) advising the reason for the decision; and

(c) inviting the prisoner to show cause, by written submissions given to the board within 21 days after the notice is given, why the board should change its decision.” [56].

Subsections (1) and (4) contain a requirement to give reasons, which incorporates the general requirement to “set out the findings on material questions of fact” and “refer to evidence and other material on which those findings were based”: see s 27B(a)–(b) Acts Interpretation Act 1954. [59]–[60]. The respondent had twice decided not to vary the primary decision after having given the applicant an information notice on 24 September 2021, purportedly under s 208 (the “impugned information notice”). [29]–[34]. However, the impugned information notice referred to the existence confidential information, which was relied on as material averse to a right, interest or legitimate expectation of the applicant, but the contents of which were not disclosed to the applicant (the “confidential information”). [29]; see [65]–[80]. Section 341 relevantly provides as follows:

“341 Confidential information

…

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

Maximum penalty—100 penalty units or 2 years imprisonment.

(3) The informed person may disclose confidential information—

(a) for the purposes of this Act …” [61].

The definition of “confidential information” relevantly includes e.g. information that could reasonably be expected to “divulge the identity of an informant or a confidential source of information” or “prejudice a law enforcement agency’s investigation”: see s 341(4) (definition of “confidential information”). [61]. An “informed person” relevantly included the respondent. [62].

Whether a prisoner’s right to reasons in s 208 is “qualified” by s 341

The applicant contended that the statutory scheme (see [50]–[64]) and the requirement to give reasons (see [65]–[80]) obliged the respondent to disclose the confidential information in the impugned information notice. [96], [101]. It was said that s 341(3) does not provide a “discretion” but is “facilitative” where another provision, such as s 208, requires the respondent to give information as a part of its obligation to give reasons for a decision. [97]. The respondent contended that such a constructional choice would give the word “may” in s 341(3) “no work to do” and the use of the word suggests that the legislature intended a discretionary power to disclose or not disclose confidential information. [98], [102].

Justice Brown observed that s 341(2) contains a prohibition on disclosure, except in the prescribed circumstances contained in s 341(3) which relevantly includes disclosure “for the purposes of [the] Act”. [102]. Whilst the use of the word “may” will generally suggest that a discretionary power was intended, it depends on the “context and circumstances of the power”. [103]–[105]. Justice Brown considered that there were a number of features apparent from the text and context which were consistent with a constructional choice that when the statutory discretion contained in s 341(3) is read together with the statutory obligation contained in s 208, the statutory discretion in s 341(3) becomes a power which “must” be exercised in certain circumstances. [105]–[111].

On this basis, it was held that whilst s 341(2) prohibits disclosure generally, s 341(3) authorises disclosure in prescribed circumstances. [111]. This has effect of protecting an informed person such as the respondent from the criminal sanction for disclosure of confidential information for a purpose extraneous to e.g. “the purposes of [the] Act”. [111]. Justice Brown observed that “[n]o qualification was made to s 208 to exclude the disclosure of confidential information in the [impugned] information notice … or limit the reasons that are required to be provided.” [111]. The absence of an express qualification from the text of s 208 was telling, as such a qualification was expressly enacted in another provision e.g. s 15 which relates to security classification reviews. [111].

Whether s 341 “picks up” public interest immunity

Another basis on which the respondent contended that the confidential information was lawfully withheld from the impugned information notice was that s 341 “picks up” public interest immunity (“PII”). [112]–[116]. Justice Brown rejected this argument. [118]. Whilst there was some overlap with recognised categories of PII in the definition of confidential information, it is the judiciary not the executive which determines whether there is a valid claim of PII. [119]–[125]. Though, it was observed that a claim of PII may be open to the respondent, however, her Honour could not decide this question as the applicant had not sought to obtain the confidential information under a compulsory process of the court, which would have allowed the respondent to assert such a claim. [126]–[128], [142].

Disposition

The decisions affected by the impugned information notice were set aside and the respondent was directed to “remake the decisions according to law”. [143]–[147].

D Kerr