Anderson v President of the Parole Board Queensland

The applicant filed an application for judicial review of the respondent’s decision in relation to the term of a restricted prisoner declaration. The applicant submitted that the decision involved an error of law because it did not consider the applicant’s human rights, particularly in circumstances where the applicant was of an advanced age and suffered from chronic health conditions. Justice Treston found that although the relevant legislative framework did not require the respondent to consider the applicant’s human rights, the subject matter, scope and purpose of the power being exercised by the respondent was such that those rights should have been considered. The respondent failed to consider the applicant’s right to be treated humanely whilst deprived of his liberty in setting the term of the declaration at eight and a half years. Her Honour accordingly held that the term of the declaration ought to be set aside. 

Treston J

30 May 2025

Background

On 3 October 1997, the applicant was convicted and sentenced to life imprisonment for murder. [1]. The applicant was then sentenced on 8 November 2000 for the murder of another prisoner whilst serving the first sentence. [2]. The applicant became eligible for parole on 8 November 2020. [3]. The respondent made a restricted prisoner declaration on 5 June 2023 for a term of eight and a half years, extending the date from which the applicant could apply for parole to 6 December 2031. [4]. The applicant suffers from a range of chronic medical conditions that, whilst currently manageable in a custodial environment, are expected to significantly worsen in the intervening years until 2031 (at which point he will be 78 years old). [16]–[19]. The applicant sought to judicially review the term of the restricted prisoner declaration decided upon by the respondent. The making of the declaration was not itself contested. [5].

The legislation

The applicant was declared a “restricted prisoner” within the definition set out in s 175D Corrective Services Act 2006 (“CS Act”). [7]–[8].

Section 175I CS Act outlines the matters the declaration must set out, including the term of the declaration. [14]. In deciding the term of the declaration, the respondent must be satisfied that the duration is in the “public interest” pursuant to s 175I(4)(a), having regard to the matters in s 175H(2). [15].

The grounds of review

The first ground was that the decision involved an error of law by failing to, in considering public interest, have regard to the applicant’s human rights when determining the length of the declaration. [20]–[21]. The applicant contended that the requirement to consider human rights arose out of the construction of s 175H or by s 58 Human Rights Act 2019 (“HR Act”). [23].

The second ground was that s 51(1)(b) HR Act, which makes it unlawful for a public entity to make a decision without giving proper consideration to human rights, was contravened by the respondent because it did not consider the applicant’s right to be treated with humanity whilst deprived of his liberty (s 30(1) HR Act). [26].

The respondent submitted that there was no independent and competent ground of review, and that the applicant’s right to humane treatment while deprived of liberty “is not a mandatory consideration that bore upon deciding the term of the declaration … ”. [28].

Construction of the CS Act

Justice Treston considered the construction of the CS Act. Her Honour found that ss 175H and 175I CS Act do not expressly require the respondent to take into account the prisoner’s right to dignity while deprived of his liberty. Regardless, given the subject matter, scope, and purpose of the power being exercised by the respondent, the statutory context indicates that the applicant’s human rights must be considered. [55]. Put simply, her Honour found that the respondent must consider “the interests of the particular individual affected by the decision” in determining the duration of the restricted prisoner declaration under s 175I CS Act. [55].

In reaching that conclusion, her Honour reasoned that s 175I provides that in calculating the term of the declaration, the respondent must firstly be satisfied the term is in the public interest (s 175I(4)(a)) and must then consider the “public interest” matters in s 175H(2) (by virtue of s 175I(4)(b)). Accordingly, her Honour observed the scope of s 175I(4)(a) must necessarily be broader than merely the matters in s 175I(4)(b), otherwise the former would be a repetition of the latter. [59]. Her Honour further considered that that construction was consistent with s 48 HR Act, which requires all statutory provisions to be interpreted in a way that is consistent with human rights. [60].

Consideration

Justice Treston set out at length the matters that the respondent took into consideration in deciding to make the declaration, finding that the respondent considered the applicant’s health issues, the risk of the applicant being released, submissions made by the applicant, and various psychiatric reports regarding the applicant. [29]–[51], [61]. However, her Honour observed that the respondent failed to consider the term of the declaration (and, in particular, the inevitable exacerbation of the applicant’s health issues over the course of the declaration). [63]. Given the applicant will be 78 years of age at the expiry of the declaration, her Honour found that the respondent “failed to give genuine consideration to the human consequences of the duration of the declaration … ”. [64]. Justice Treston accordingly held that the first ground was made out, such that the term of the declaration ought to be set aside. [65].

Though not strictly necessary, her Honour also considered the second ground. Justice Treston found, contrary to the respondent’s submission, that the term of the declaration is a necessary part of the decision itself such that “the duty to provide reasons for the term follows as a matter of course”. [74]. Her Honour was also not persuaded by the respondent’s submission that the possibility for the applicant to access “exceptional circumstances parole” were his health to substantially deteriorate justified the limitations on the applicant’s human rights. [75]–[77]. Her Honour would have found that ground two was also made out. [77].

N Powys