Neyens v Michael Byrne KC, President of the Parole Board of Queensland

The appellant sought to appeal the Chief Justice’s refusal of his application for judicial review. The application for review concerned the President of the Parole Board’s decision to declare the appellant a “restricted prisoner” within the meaning of s 175D of the Corrective Services Act 2006. The appellant argued the Chief Justice had erred in construing the test for making such a declaration, under s 175H, to exclude consideration of whether parole conditions might ameliorate the “risk” if released on parole. The Court of Appeal upheld the Chief Justice’s reasons and dismissed the appeal. The Court of Appeal found that consideration of potential parole conditions was not mandatory, but could form part of the factors to be weighed in exercising the discretionary power. Those factors must all be viewed through the public interest lens provided by s 175H and s 175I.

Bond and Boddice JJA and Callaghan J

5 November 2024

Background to appeal

The appellant, a declared “restricted prisoner” under s 175D of the Corrective Services Act 2006 (“the Act”), [2]–[3]; was convicted of murdering two people. [1]. The appellant sought to judicially review the President of the Parole Board’s decision to make the restricted prisoner declaration and subsequent refusal of the appellant’s parole application. [2]–[5].

The Chief Justice was not satisfied the President of the Parole Board had erred as alleged and dismissed the application. [5].

The appellant then appealed the Chief Justice’s decision, arguing her Honour erred in construing s 175H(2)(b) of the Act as “not requiring the Respondent to consider whether parole conditions or any other matters would mitigate the Appellant’s risk”. [6]. That is, the appellant contended, parole conditions ought to be considered by the President of the Parole Board when determining a restricted prisoner’s risk. [20].

Court of Appeal decision

The Court of Appeal dismissed the appeal, finding the Chief Justice did not make the alleged error. [7], [34], [35].

Their Honours adopted the Chief Justice’s summary of the “restricted prisoner” provisions and the policy objectives of the legislative scheme. [8]. Section 175H, which sets out the considerations the President of the Parole Board must have regard to when making a restricted prisoner declaration, was then reproduced in the Court of Appeal’s judgment. [14]. Notably, the President must be satisfied that the making of the declaration is “in the public interest”, which includes an assessment of a prisoner’s risk if granted parole. [14]. The President must also be satisfied, pursuant to s 175I, that the duration of the declaration is in the public interest. [15].

The Court of Appeal observed that the Appellant had accepted before the Chief Justice that s 175H(2)(b) does not require consideration of whether a prisoner’s risk might be “unacceptable” because that question arises only if the declaration is not made, and the parole application is being considered. [21].

The Appellant nevertheless submitted the reference in s 175H(2)(b) to the “risk the prisoner may pose to the public if the prisoner is granted parole” requires the President to consider the effect of a notional set of parole conditions on the risk. [23].

The respondent rejected that construction, arguing the “public interest” guides interpretation of s 175H(2) and the reference to “if the prisoner is granted parole” simply means “if in the community”. [24].

The Chief Justice accepted the respondent’s argument. [25]. Her Honour found that while “parole” in s 175H(2)(b) imports the concept of “conditional” release, it does not necessarily require consideration by the President of a set of parole conditions. [25]. Further, the discretionary power in s 175H(2)(b) is to be exercised in the public interest, which includes consideration of limiting re-traumatisation of victims’ loved-ones and to protect the community from harm. [25]. In that context “a broader approach to the consideration of ‘any risk’ posed by the prisoner, if granted parole, is appropriate”. [25].

Her Honour concluded:

“The question of risk to the public if the prisoner is granted parole is one of three considerations the president must take into account in deciding whether to make a restricted prisoner declaration. The weight to be given to each of those factors in the circumstances of any particular case is a matter for the president, in the exercise of the discretionary power conferred on him, as part of a balancing exercise. As submitted by the respondent, it is possible that, in a particular case, the risk to the public may be low, yet the nature, seriousness and circumstances of the offence(s) and the likely effect that the prisoner’s release on parole may have on the victims’ family may be such that warrants the making of the declaration, in the public interest. This is apparent from the purpose of the provision. The discretion conferred on the president by the ‘restricted prisoner declarations’ provisions is one to be exercised in the public interest, as a separate step antecedent to consideration of any parole application, for the express purpose of limiting re-traumatisation of victims’ families and community protection. To restrict the meaning of s 175H(2)(b), in the manner contended for by the applicant, strains the language which has been used and is not consistent with the purpose of the provision in its context.”

The President’s reasons that it “is not for me to consider here whether any parole conditions or any other factors may mitigate his risk” were in context, as the Chief Justice properly accepted, not a statement that such factors were irrelevant. [29].

Indeed, the Court of Appeal emphasised that the Chief Justice was not suggesting that evidence that risk might be ameliorated through non-mandatory parole conditions is irrelevant to the public interest test in s 175H(1). [31]. For example, as in this case, psychiatric reports concerning risk may express opinions having regard to non-mandatory conditions which may be imposed. [31]. A prisoner might address such matters in their submission, to which the President must have regard under s 175H(3)(d). The President may also have regard to any other matter of information the President considers relevant, per s 175HG(4). [31]. “The significance of the Chief Justice’s decision is that any consideration of such matters must be carried out through the lens explained in the passage [above]”. [32].

The Court of Appeal adopted the Chief Justice’s reasons and dismissed the appeal. [30]–[35].

H Edwards of Counsel