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Queensland Judgments

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Pangilinan v Qld Parole Board  
Unreported Citation: [2014] QSC 133
EDITOR'S NOTE

In this matter Jackson J heard an application for judicial review of a decision of the Queensland Parole Board (“the respondent”) which refused the applicant’s parole application. The facts of this case are somewhat unusual. The applicant sought a parole order from the respondent pursuant to s 180 of the Corrective Services Act 2006 (“CSA”). Upon the respondent deciding to refuse the application (the “first decision”), the applicant sought a review pursuant to s 193 of the CSA.  However, shortly before this review was to commence the respondent rescinded the first decision and sought further submissions from the applicant. [15]. The respondent then made a second “final” decision refusing the applicant’s request (the “second decision”), [17], and again the applicant applied for review. [19]. On this occasion the respondent, without notifying the applicant, reconsidered the applicant’s request and “determined to affirm its [previous] decision” (the “third decision”). [23]. Following this further final decision, the applicant applied under s 20 of the JRA for a statutory order of review and it is this application which was before his Honour. In considering the application, Jackson J addressed two separate issues:

  1. Whether the respondent had the “power” to make the second and third decisions? and
  2. If authorised, whether these decisions were made within this power?

Power to Make Second & Third Decisions

In justifying its conduct, the respondent relied upon s 24AA of the Acts Interpretation Act 1954, which provides that “[i]f an Act authorises or requires the making of a … decision the power includes power to amend or repeal the … decision”. [43]. However, his Honour recognised that notwithstanding the language of this section, “a discretionary power reposed by statute ... may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps ... in question, treating them as a substantive exercise of power.” [44], MIEA v Kurtovic. Thus, the issue for his Honour was whether s 24AA was displaced by a contrary intention appearing in the CSA.  After a detailed analysis of the structure and language of the CSA, his Honour concluded that the contrary intention existed.  In support of this his Honour identified the following relevant matters:

  1. The detailed statutory requirement to apply and particularly to re-apply for a grant of a parole order; [46]–[47];
  2. The express limits on time within which the Queensland Parole Board must make a decision, [48]; and
  3. That the CSA anticipates that parole applicants be given the opportunity to make representations [53].

Consequently, once a “legally effective” decision for the purposes of s 193 had been made, there was “no power to recall [or] reconsider” this decision, however, where the exercise of the power was affected by a legal error “a so-called further consideration ... of the exercise ... may be both possible and required by law.” [54]–[55]. In the circumstances, the Court considered that the respondent’s conduct in rescinding the first decision was consistent with the conclusion that it did not operate as a legally effective decision under s 193 and thus the respondent was authorised to make the second decision; the second decision, however, was not affected in the same way, and thus the third decision was unauthorised. [57]–[59].

Judicial Review of Second Decision

The applicant based his application for review on a number of grounds, including that the respondent’s exercise of power “was so unreasonable that no reasonable person could so exercise the power, s 20(2)(e) and s 23(g) of the JRA,” [65] and that it failed to take into account certain scenarios, in particular that the imposition of conditions as part of the parole order might reduce the risk of the applicant reoffending. In addressing the applicant’s first ground, Jackson J identified the danger of a Court exceeding its supervisory role and undertaking a review of the merits of the respondent’s exercise of an obviously discretionary power. See discussion [65]-[71]. Upon a review of the evidence raised by the applicant as demonstrating unreasonableness his Honour was not convinced that “the contrary view [reached by the respondent] was ... impossible”, and thus held that the second decision was not “unreasonable”. [75].    

As to the second issue, the question before his Honour was whether the possibility of imposing conditions on a parole order that might reduce the risk of the applicant reoffending was a relevant consideration that the respondent was bound to take into account?  [93]–[94].  On an analysis of the relevant provisions his Honour held that it was, such that the failure of the respondent to consider it permitted the Court to quash the second and third decisions as being improper exercises of power. [103]. Thus, his Honour set aside both the second and third decisions.