FEDERAL COURT OF AUSTRALIA

Westlake v Attorney-General [2017] FCA 1058

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to rely upon an amended originating application dated 14 August 2017.

2.    The amended originating application be dismissed.

3.    The applicant pay the respondent’s costs as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application for judicial review of a decision of a delegate of the respondent, the Attorney-General of the Commonwealth of Australia, to refuse to make an order under s 19AL(1) of the Crimes Act 1914 (Cth) directing that the applicant be released from prison on parole. On 30 September 2016, the applicant was sentenced to five concurrent sentences of imprisonment. This followed sentencing on four federal offences concerning accessing and making available child pornography material using the internet and a related Queensland State offence of possessing child exploitation material on computer equipment.

2    As detailed below, the overall effective head sentence imposed on the applicant was three years and six months’ imprisonment. A single non-parole period of six months was imposed for the four federal offences. The State offence was suspended after serving six months and forms no operative part of these proceedings. The applicant was eligible for parole on the federal offences on 29 March 2017.

3    The decision to refuse to direct the applicant’s release on parole was made on 22 March 2017. The refusal of parole notice recording the delegate’s decision gave the following three reasons for refusing to release the applicant, reasons being required by s 19AL(2)(a) of the Crimes Act:

Under paragraph 19AL(2)(a) of the Crimes Act, I am required to give you reasons for my decision to refuse to release you. This order for refusal of parole has been made for the following reasons:

1.    Queensland Corrective Services (QCS) have recommended that you not be released to parole.

2.    You have not yet completed a sex offender treatment program and have outstanding rehabilitative needs. QCS is liaising with the sex offender program treatment specialists to determine if there are any individual treatment programs available for you in prison.

3.    You have not secured suitable post-release accommodation. On community safety grounds it is important that you have approved accommodation before you are released from custody.

4    The refusal of parole notice also advised the following in relation to the reconsideration of parole, as is required to take place within 12 months of refusal by s 19AL(2)(b) of the Crimes Act:

Under paragraph 19AL(2)(b) of the Crimes Act, I advise that I will reconsider you for release on parole either at any time when you have completed an individual treatment program and secured suitable post-release accommodation in the community; or if QCS advises that there is no individual treatment program available for you inside the prison, after you have secured suitable post-release accommodation and arrangements have been made to enable you to undertake your specialist sex offender treatment in the community; or within six months of the date of this notice whichever occurs earliest.

5    It was confirmed by counsel for the respondent at the hearing, on instructions, that, as foreshadowed by the refusal of parole notice passage in the preceding paragraph, parole reconsideration will take place by 22 September 2017. It may take place earlier if the applicant has either completed an individual treatment program in prison and secured suitable post-release accommodation in the community, or Queensland Corrective Services have advised that no such program is available and arrangements have been made for the applicant to undertake such treatment in the community, having already secured suitable post-release accommodation.

6    The refusal of parole notice was sent to the applicant’s solicitors’ office by email on 24 March 2017, accompanied by a letter also dated 24 March 2017. The email described the letter as explaining the reasons for the parole decision, but the content of the letter can be more accurately described as explaining what is proposed to happen in the immediate future.

7    The applicant commenced these proceedings about a month after his solicitors received the refusal of parole notice and accompanying letter. The hearing was expedited to the earliest mutually available date. As the above passage referring to parole reconsideration indicates that this will take place no later than 22 September 2017, it was therefore important for this decision to be made well before that date.

8    The applicant’s case under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) is that he is aggrieved by the decision of the delegate to refuse him parole on the following grounds (based on an amended originating application, as was clarified at the hearing of the application):

(1)    contrary to s 5(1)(e) (as read with s 5(2)(f)) of the ADJR Act, the delegate improperly exercised the power under s 19AL(1) of the Crimes Act:

(a)    by impermissibly delegating responsibility for the decision to Queensland Corrective Services;

or, alternatively,

(b)    by failing to take into account the certain matters said to have not been considered, or considered properly, by Queensland Corrective Services, pertaining to:

(i)    the reasons why the applicant did not complete a sex offender treatment program; and/or

(ii)    the suitability of the applicant’s parents’ address as post-release accommodation; and/or

(iii)    other circumstances that would have justified the rejection of the recommendations of Queensland Corrective Services; and

(2)    contrary to s 5(1)(a) of the ADJR Act, the delegate breached the rules of natural justice (also referred to at the hearing as a denial of procedural fairness) by failing to give the applicant an opportunity to identify suitable post-release accommodation in Brisbane.

9    The central factual issues underpinning each of the above grounds of review turned on the assessment of the applicant’s treatment needs and the suitability of post-release accommodation.

The sentence proceedings

10    On 30 September 2016, following guilty pleas, the applicant was sentenced by a judge of the District Court of Queensland in Brisbane on federal offences and a related Queensland State offence. All five charges related to child pornography (referred to as “child exploitation material” in the Queensland offence provision) found on multiple items of computer equipment at the applicant’s home. The federal charges comprised two offences of using a carriage service to access child pornography material, and two offences of using a carriage service to make available child pornography material, contrary to s 474.19(1)(a)(i) and (iii) respectively of the Criminal Code (Cth).

11    For completeness, it should be noted that the federal offences are incorrectly, but immaterially, at least in the circumstances of these proceedings, frequently referred to in the materials before this Court, including in documents also before the delegate, as being under s 474.19 of the Criminal Code Act 1995 (Cth), rather than as being under that section of the Criminal Code. The Criminal Code Act only has seven sections. The Criminal Code is cited by that name as provided by s 3(2) of the Criminal Code Act, being in a self-contained schedule to that Act.

12    The applicant was sentenced to prison sentences of one year and six months for each of the federal “access” offences and to prison sentences of three years and six months for each of the federal “make available” offences. All four federal offences were ordered to be served concurrently, with a single non-parole period of six months expiring on 29 March 2017.

13    The applicant was sentenced to a further concurrent sentence of imprisonment for three years and six months on a Queensland State charge of possessing child exploitation material. That sentence was ordered to be suspended after the applicant had served six months’ imprisonment (being the expiry of the federal non-parole period), with an “operational period” of four years. The term “operational period” is used in the Penalties and Sentences Act 1992 (Qld) for sentences that are suspended under s 144(1) of that Act. As already noted, the State charge and sentence has no continuing relevance to these proceedings.

14    The effective overall federal head sentence was therefore three years and six months, commencing on 30 September 2016 and expiring on 29 March 2020, with a single non-parole period of six months expiring on 29 March 2017.

15    The circumstances of the offending are detailed in a statement of agreed facts that was before the learned sentencing judge and also in his Honour’s remarks on sentence, both in evidence in these proceedings. In the greater part, the details of the offending, and, in particular, the subject matter, do not need to be elaborated upon except to the extent mentioned below.

16    The totality of the offending took place from the location at which the applicant lived for a period of about 10 years. There was no physical contact with anyone, that being the very nature of offences of this kind. That said, there is no doubt that the offences were serious. A custodial sentence is an outcome of last resort according to the terms of s 17A of the Crimes Act. While counsel appearing for the applicant at the sentence hearing urged the sentencing judge not to impose a period of full-time imprisonment, this was not accepted by his Honour, although considerable weight was given to the applicant’s troubled circumstances, past, present and future.

17    The relatively low non-parole period as a proportion of the head sentence was a reflection of the applicant’s strong subjective circumstances which, on any view, were compelling, as the sentencing judge found. Those circumstances included: cooperation with investigating police; timely guilty pleas; a prior unblemished record; a sad personal history arising from recently diagnosed Asperger’s Syndrome, sexual abuse suffered as a child and certain other medical conditions; an assessment of a low risk of reoffending; a finding that the applicant was not a suitable vehicle for general deterrence by reason of his mental condition; a finding that imprisonment would be especially burdensome on the applicant; and, substantial efforts in advancing rehabilitation, including by obtaining treatment. The sentencing judge fairly described this case as a very difficult sentencing exercise and imposed what his Honour regarded as the bare minimum. His Honour found that there was a very low risk of reoffending.

18    The correctness of each of the sentencing judge’s determinations was not and cannot be in doubt for the purposes of these proceedings. The applicant is evidently highly intelligent and highly qualified. He has good prospects of being able to carry out valuable medical research in his field of virology upon his release on parole. Each of these factors, apart from being useful background information, are only relevant to the extent that they have a bearing upon, or help to explain or understand, the issues upon which the refusal of parole turned, especially as to risk to the community.

Relevant legislation

19    The key provisions upon which the applicant relied were s 5(1)(a) and (e) and s 5(2)(f) of the ADJR Act, as follows:

5    Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

(a)     that a breach of the rules of natural justice occurred in connection with the making of the decision;

...

(e)     that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

…

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

…

(f)     an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

20    Also relevant are ss 19AL(1) and (2) and 19ALA of the Crimes Act, as follows:

19AL Release on parole – making of parole order

(1)    The Attorney-General must, before the end of a non-parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole (a parole order). [emphasis in original]

Note: See subsection (5) if the person is subject to a State or Territory sentence.

(2)    If the Attorney-General refuses to make a parole order for a person under subsection (1) or paragraph (b) of this subsection, the Attorney-General must:

(a)    give the person a written notice, within 14 days after the refusal, that:

(i)     informs the person of the refusal; and

(ii)     includes a statement of reasons for the refusal; and

(iii)     sets out the effect of paragraph (b) of this subsection; and

(b)    reconsider the making of a parole order for the person and either make, or refuse to make, such an order, within 12 months after the refusal.

Note: See subsection (5) if the person is subject to a State or Territory sentence.

19ALA Matters that may be considered in decisions about parole orders

(1)    In making a decision under section 19AL in relation to a person, the Attorney-General may have regard to any of the following matters that are known to the Attorney-General and relevant to the decision [emphasis added to key paragraphs relevant to this application]:

(a)    the risk to the community of releasing the person on parole;

(b)    the person’s conduct while serving his or her sentence;

(c)    whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency;

(d)    the likely effect on the victim, or victim’s family, of releasing the person on parole;

(e)    the nature and circumstances of the offence to which the person’s sentence relates;

(f)    any comments made by the sentencing court;

(g)    the person’s criminal history;

(h)    any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency;

(i)    the behaviour of the person when subject to any previous parole order or licence;

(j)    the likelihood that the person will comply with the conditions of the parole order;

(k)    whether releasing the person on parole is likely to assist the person to adjust to lawful community life;

(l)    whether the length of the parole period is sufficient to achieve the purposes of parole;

(m)    any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release.

(2)    Subsection (1) does not limit the matters that the Attorney-General may consider in making a decision under section 19AL.

The federal parole process for the applicant

21    The evidence discloses that the delegate had before her the following documents at the time of making the parole refusal decision, with portions extracted that are relevant to the particular issues raised in these proceedings:

(1)    A submission addressed to the delegate prepared by a senior advisor in the Commonwealth Parole Office, concluding with a recommendation that the delegate refuse to grant parole to the applicant “at this time”, with related recommendations to sign the refusal of parole notice, sign the accompanying letter and sign a letter to Queensland Corrective Services seeking advice on whether an individual treatment program would be made available to the applicant. Included in this document were a number of passages relied upon by the parties or otherwise pertinent to the issues discussed below. In particular, that submission included information on the following topics (amongst others):

(a)    the remarks of the sentencing judge on the objective circumstances of the applicant’s offending and the substantial mitigation arising from his subjective circumstances, past, present and future, including the additional hardship he would face in prison and the valuable work he was capable of doing using his scientific skills. While a plea in mitigation on his behalf seeking that no term of imprisonment be imposed was not successful, the sentence was reduced to the lowest that his Honour considered appropriate;

(b)    the applicant’s personal circumstances in the context of reports provided to, and by, the Queensland Parole Board detailing his severe psychological and medical mental health conditions, including a life-long struggle with Asperger’s syndrome and a number of other conditions;

(c)    a summary of aspects of the Queensland Parole Board report, including medical reports which were consistent with the material before the sentencing judge, but containing considerably greater detail than the remarks on sentence as to the applicant’s long history of psychological and mental health problems, his home life with an autistic family, his experience of being bullied and sexually abused at school, and the way in which moving from home in Central Queensland to Brisbane for university exposed him to pornography on the Internet;

(d)    information submitted on behalf of the applicant by his lawyers, including summaries of the communications in February and March 2017 to the Commonwealth Parole Office considered further below. In particular, this included information as to the difficulties faced by the applicant in participating in group therapy treatment, his need for individual treatment and the problems with obtaining approved post-release accommodation, as well as the response given on the applicant’s behalf to concerns raised about the suitability of him living with his parents upon release;

(e)    recognition that this was a complex case, including the fact that failure to complete a treatment program would normally be sufficient grounds to refuse parole based on community safety grounds, but that in this case the applicant’s medical condition was preventing him from successfully participating in and completing a group treatment program. Furthermore, information related to the view that the applicant needed individual treatment, and the fact that Queensland Corrective Services had not confirmed that there was such a program available inside prison;

(f)    reference to the absence of approved post-release accommodation in Brisbane, the view formed by the parole service that the applicant’s parents’ home was not suitable, and the competing views advanced particularly by the applicant’s father on that topic;

(g)    consideration of the applicant’s prospects of rehabilitation and reintegration into the community.

(2)    A copy of the sentencing remarks referred to above.

(3)    A copy of the agreed facts tendered at the sentence hearing.

(4)    A report prepared by the Queensland Parole Board (a body within Queensland Corrective Services, referred to in these reasons as the parole board), dated 15 December 2016, together with the covering email by which that report was sent to the Commonwealth Parole Office and a letter dated 1 November 2016 from the respondent’s Department by which the report was requested. The key portions of that report are as follows:

Reintegration considerations [emphasis in original]

Accommodation

During the interview with prisoner Westlake on 31 January 2017, he reported he lived with his parents in central Queensland until he started university. Prisoner Westlake reported that he moved to Brisbane to pursue his university studies and for a small period of time lived in a residential college in shared accommodation, where he observed others in the facility participating in recreational drug usage. In his RNA, he described this accommodation situation as “not ideal” but that it enabled him to be able to complete his study. Prisoner Westlake reported that his supports decreased when he moved to Brisbane as he was living away from his family. Social isolation appears to be a risk factor precipitating his offending behaviour, and his access to family relationships appear to be a protective factor.

Prisoner Westlake identified his parents [sic] address in Rockhampton as where he would be residing if considered for parole. He has received regular (twice monthly) contact visits with his parents during his current incarceration period. He reported accommodation plans in the community may change depending on employment opportunities that may lead him to reside in Brisbane.

…

RECOMMENDATION

During the current interview with Offender Development staff, the following factors were noted.

Factors that may increase prisoner Westlake’s risk of recidivism include:

•    Outstanding treatment needs in the area of sexual offending;

•    Responsivity issues relating to group participation and mental health;

•    Multiple co-occurring mental health diagnoses;

•    Social isolation and association social/communication difficulties.

Factors that may reduce prisoner Westlake’s risk of recidivism include:

•    Personal support;

•    Motivation towards gaining further employment and education;

•    High level of education and professional skills;

•    Stable accommodation;

•    Potential for employment post-release;

•    Motivation to address and manage mental health and offending behaviour, and commitment to doing so.

The report concluded with a handwritten comment, apparently by the author’s manager or supervisor, that “While acceptable behaviour is noted, the prisoner has o/s [outstanding] treatment needs + is an unacceptable risk to the community for further sexual offending”.

(5)    Attachments to the abovementioned parole board report that are referred to in the body of that report, including:

(a)    a home assessment report which stated that the applicant’s parents’ residence was deemed not suitable for release due to the applicant’s parents having a two-year-old granddaughter stay overnight on a regular basis, the parents’ “lack of awareness to be able to identify any potential risk behaviours which may lead to further offending”, and, further, that the parents did not appear supportive of the applicant having to comply with parole order conditions;

(b)    a report from the applicant’s treating clinical psychologist, Professor Attwood, dated 7 March 2016;

(c)    a further report of Professor Attwood dated 27 September 2016;

(d)    a further report of Professor Attwood dated 9 December 2016, of which the following passages were relied on by the applicant in oral submissions:

I have grave concerns with regard to his mental state and any consequences in relation to being a suicide risk.

…

I understand that he will be required to engage in the treatment programs designed for those in prison who have been found guilty of particular offences. It is essential that whoever is running those groups is aware of the nature of Asperger’s syndrome and how it will affect group participation. Daniel will have a general difficulty with regard to self-disclosure and especially, converting his thoughts, emotions and experiences into speech. This was clearly a characteristic in the therapy sessions with Daniel that I have had in the past. This is not Daniel being non-compliant and resistant to therapy but a genuine difficulty with group dynamics, participation and disclosure.

(e)    a report from a child and adolescent consultant psychiatrist, Dr Brian Ross, dated 21 March 2016;

(f)    a report from a clinical psychologist, Penny Lewis, dated 4 March 2016; and

(g)    lengthy notes, apparently handwritten by the applicant, which are undated.

(6)    A letter from the applicant’s solicitors to the Queensland Parole Board dated 14 February 2017 (also addressed to the respondent and to the Minister for Justice and sent to the Federal Offenders Office email address), enclosing some of the reports referred to above, as well as additional reports and a letter of support from the applicant’s father (upon which reliance was placed at the hearing). Key amongst that material was the following:

(a)    A letter of support sent by a professor in the applicant’s field of expertise from a leading university, dated 14 February 2017, to the Queensland Parole Board states:

I am confident that Daniel is highly employable and there are several research labs in Brisbane that would be an excellent fit for his skills and expertise. Indeed, there are current research projects in my own lab that would benefit from his experience. I would definitely hire him to undertake this work in my lab.

For Daniel to perform this work efficiently he would require unlimited access to the internet to download data and research papers and to access software for data analyses.

(b)    A letter of support sent by the applicant’s father, to the Queensland Parole Board on 14 February 2017 (and relied upon by both parties), including the following passage:

It is my intention to have him reside with my wife and myself in Bouldercombe after his release, to allow him to regain some sort of normality in his life. He will be able to receive treatment from Minds and Hearts via the internet, and I will travel with him to Brisbane for any treatments which require his actual presence. We will also investigate any help that can be found in Rockhampton. I would like to think that he will be able to actively look for appropriate positions to enable him to pursue his career before the end of 2017.

(7)    A letter from the Commonwealth Parole Office to the applicant’s solicitors, dated 16 February 2016 [sic – apparently, and in context, in fact 2017], inviting a response to issues relating to consideration of parole. That letter:

(a)    listed non-exhaustive matters of relevance to the delegate’s consideration in deciding whether to release a prisoner on parole;

(b)    referred to the applicant’s treatment needs and, in particular, that he had not completed the Getting Started: Preparatory Program for Sexual Offending (GSPP) due to his reported difficulties with the content of the program and exit from the program on 1 February 2017;

(c)    advised the following with regard to the delegate’s power and discretion:

The delegate of the Attorney-General could refuse to grant parole release to Mr Westlake at this time and require him to successfully complete a recommended sex offender treatment program.

and;

(d)    referred to the issue of post-release accommodation, stating the following:

The Report states that Mr Westlake currently does not have suitable post-release accommodation. Mr Westlake has proposed his parents’ address in Rockhampton as his post-release accommodation if granted parole release. However, the parole service states that Mr Westlake’s parents have their two year old granddaughter staying there overnight on a regular basis. It would be unacceptable accommodation for a child sexual offender with parole conditions restricting access with minors. On community safety grounds it is important that Mr Westlake secures suitable post-release accommodation before he is released from custody.

(8)    A letter from the applicant’s solicitors, dated 8 March 2017, to the Commonwealth Parole Office, responding both to the abovementioned 16 February 2017 letter from the Commonwealth Parole Office and to the parole report from Queensland Corrective Services. The letter from the applicant’s solicitors particularly requested that the Parole Office take into account the following:

We are instructed by client [sic] that he did not elect to withdraw from participating in the program due to personal stresses or experiencing difficulties coping with the content. To the contrary, he was willing to participate however the program coordinator initially suggested that he postpone his participation in the program for 1 month, but thereafter advised they intended to exit him from the program and recommended one on one therapy would be more beneficial. The reason for same [sic] is associated with our client’s mental health issues i.e. Aspergers syndrome, anxiety and PTSD which caused difficulty with him working within a group session. We note that professor [sic] Attwood had previously indicated that Daniel would have difficulty with respect to group session [sic] and we refer you to Professor Attwood’s letter dated 9 December 2016 previously provided to you.

The letter also enclosed further medical reports, a letter from the applicant’s father dated 6 March 2017 and a document that the applicant had provided to the sentencing judge in the form of a proposal for combatting peer-to-peer network distribution of child pornography. Of note amongst these additional enclosures is the letter of the applicant’s father of 6 March 2017, which addressed the suitability of post-release accommodation relevantly as follows:

In response to concerns raised by Corrective Services regarding my son, Dr. Daniel Westlake’s parole application I would like to make the record perfectly clear. My granddaughter is not in the habit of regular sleepovers at our house. My wife rightly raised the issue with Corrective Services as a possibility but this has only happened on one occasion while my Daughter was house sitting for us while we were away. My wife and I further undertake to not entertain our granddaughter, Michaela, while Daniel is present here.

(9)    A further report from Professor Attwood dated 16 March 2017, including the following relevant passages:

Daniel described that he is barely coping with his situation in prison and is being as brave as he can. Clearly, his anxiety is considerable and he frequently has suicidal thoughts.

He described his difficulties in being a participant in the group program and this would be related to his social difficulties as well as past social experiences and social anxiety.

…

I was also able to discuss with Daniel, the options available for when he is finally released from prison. Should he be within the care of his parents in Rockhampton, it would be possible to conduct regular therapy sessions with Daniel, using Skype with both myself and my colleague, Wes Turner. Daniel also explained that his previous supervisor may be able to provide him with work that he could complete remotely while staying with his parents in Rockhampton. Thus, there are support mechanisms available for Daniel, not only in terms of supervision but also in terms of treatment and psychological support as well as occupation.

22    Submissions for the applicant at the hearing of his application suggested that the circling and signing of the recommendations at the end of the Commonwealth Parole Office submission and recommendation document was insufficient to support any inference that the delegate had considered its contents and taken them into account. That submission is rejected. The only reasonable inference to draw by such an adoption is that the contents have been read and considered, in the absence of any evidence which would defeat the drawing of the inference or accepting of an assertion that the material has been considered, such as evidence indicating that active intellectual consideration of the material was not possible in the time available: cf Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [30(a)], [61], [127]-[128].

23    Drawn from parts of the above material, written submissions by counsel for the applicant relied upon the fact that the applicant had taken part in psychological treatment over the past 15 years and, in particular, in more recent years with Professor Attwood. A number of the opinions of Professor Attwood were reproduced which, in substance, went to the difficulties the applicant was experiencing in prison, in turn going to the merits of him being released on parole. The paragraph of the refusal of parole notice reproduced at [4] above implicitly accepts that the applicant cannot be effectively treated in any group therapy arrangement by reason of his particular needs, and requires individual treatment.

24    It was also asserted on behalf of the applicant that the sentencing judge’s comments as to the difficulties the applicant would face in prison were ignored by the delegate. However, that assertion did not form any part of the grounds of review and could not be sustained in light of the submission before the delegate, which addressed this topic insofar as it was mentioned by the sentencing judge.

Ground 1, first limb – asserted improper exercise of power by delegation

25    The totality of the written submissions for the applicant as to why obtaining and considering a report from the parole board within Queensland Corrective Services constituted an impermissible delegation of the delegate’s functions were as follows:

It is submitted that it was not for the respondent to delegate his responsibilities to QCS [Queensland Corrective Services]. The respondent should have undertaken his own inquiries to satisfy himself as to the making, or refusing to make, an order directing that the applicant be released from prison on parole. This would have involved an independent consideration of all of the relevant material and making an appropriate decision.

26    In addressing this ground in oral submissions, counsel for the applicant was unable to identify any source of a legal obligation on the part of the delegate to go behind or beyond the parole board report. It follows that the argument for the applicant seems to rise no higher than an assertion that taking into account or accepting a report containing an adverse recommendation, without in some way testing the information behind the report, constituted an impermissible delegation of the delegate’s function.

27    It has long been the law, at least in the migration area, that there is no duty on an administrative decision-maker to inquire or conduct investigations, except perhaps in very limited circumstances: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 111 ALD 15; 259 ALR 429 at [25]; Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [24]. The circumstances of this case do not meet any of those very limited exceptions, nor otherwise give rise to a duty to make inquiries of the kind suggested on behalf of the applicant.

28    The written submissions for the respondent correctly pointed to indisputable features of the facts and legislation which stood in the way of success for the applicant on this ground. First, it was pointed out that it was the delegate, and not Queensland Corrective Services, who made the decision to refuse to release the applicant on parole, as was clear on the face of the refusal of parole notice. Secondly, it was pointed out that in performing this role, the delegate was entitled to have “regard to” a range of matters that are known to the respondent and relevant to the decision, including, by virtue of s 19ALA(1)(h), “any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency”. The respondent argued that s 19ALA permitted the delegate to take into account a broad range of material, including the recommendation in the parole board report, when making her decision, without being limited by s 19ALA(1).

29    It was also submitted on behalf of the respondent that the delegate had a range of material referred to her before making the parole refusal decision, including the Commonwealth Parole Office submission, which considered a number of other factors relevant to the making of the parole decision, parts of which are summarised above. That submission makes it clear that, in making the parole decision, the delegate took into account the parole board report, but also matters raised on behalf of the applicant in response to the parole board report and recommendation. The respondent submitted that the role of the parole board was limited to providing the report and any other material requested to the delegate. It was submitted that Queensland Corrective Services, whether via the parole board or otherwise, played no active role in making the decision to refuse parole in place of the delegate. The delegate therefore did not abdicate her responsibilities and did not err in this respect.

30    Each of the submissions made on behalf of the respondent on this issue should be accepted. There is no basis for finding that there was any delegation at all, let alone any delegation amounting to the improper exercise of the delegate’s powers. It is plain that the delegate made the decision, albeit that an important part of the material taken into account was the parole board report and recommendation. Nor is there any basis for the asserted requirement on the part of the delegate to go behind or beyond the parole board report, even though it is evident that the decision-making process was not confined to that document.

31    It follows that the first limb of ground one of the application must fail.

Ground 1, second limb – asserted improper exercise of power by failing to take into account certain matters not considered or not properly considered by Queensland Corrective Services

32    The written submissions made on behalf of the applicant on the second limb of ground one relied upon the proposition that, in a different way, the delegate was obliged to go behind the parole board report and second-guess or gainsay the reasons why the applicant had not completed the prison-based sex offender treatment program, the reasons why the applicant’s parents’ address was not considered suitable for post-release accommodation or a range of other matters contained in the remarks on sentence and various medical reports, especially of Professor Attwood, which, if accepted, would have entitled the delegate to reject the recommendation contained in the parole board report.

33    The oral submissions made on behalf of the applicant developed these arguments factually, but not legally. At no stage was it explained what the basis was for any obligation on the part of the delegate to carry out the exercise of challenging the parole board’s report, which it was submitted she was obliged to engage in.

34    As the written submissions for the respondent accurately pointed out, the substance, if not the form, of the arguments advanced on behalf of the applicant was an attempt to make competing considerations that might have favoured the grant of parole into “relevant considerations”, in the mandatory sense identified in the oft-cited judgment of Mason J (as his Honour then was) in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39. The Minister also relied upon various statements to like effect, which do not require quoting, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [74] per McHugh, Gummow and Hayne JJ, in Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446 at [525] per Weinberg J and in Elias v Commissioner of Taxation [2002] FCA 845; 123 FCR 499 at [57] per Hely J.

35    As the written submissions for the respondent accurately pointed out, s 19ALA(1) of the Crimes Act permits the decision-maker to have regard to a broad range of matters listed in that subsection, and even that list of matters is not exhaustive by virtue of s 19ALA(2).

36    There was no proper basis for imposing any obligation of the kind asserted on behalf of the applicant on the delegate necessarily to consider, let alone accept or give preference to, any material which conflicted with the recommendations contained in the parole board report. Unless the high threshold of legal unreasonableness can be met, which was not attempted in this case, all that the parole decision-making process required in relation to the material that was before the delegate was a merits assessment of that material, which is what happened.

37    It follows that the second limb of ground one of the application must also fail.

Ground 2 – denial of natural justice/procedural fairness in relation to suitable post-release accommodation in Brisbane

38    In substance, this complaint made on behalf of the applicant was that there was a procedural fairness obligation (or, to use the parallel language of s 5(1)(a) of the ADJR Act, a natural justice obligation) imposed upon the delegate not just to consider and receive submissions on the post-release accommodation proposed on behalf of the applicant, namely at his parents’ home, but also to provide him with an opportunity to identify such accommodation in Brisbane. The trigger for this submission was that the letter accompanying the refusal of parole notice dated 24 March 2017, under the heading “Treatment options for Mr Westlake”, stated the following:

I understand the concerns you have expressed in relation to Mr Westlake not receiving adequate mental health treatment while he is in prison and your suggestion that Mr Westlake be granted release at this time to enable him to access the specialist mental health treatment that is already available for him in the community. However, there are community safety concerns in doing so because Mr Westlake does not have suitable accommodation in Brisbane where he can access his specialist mental health treatment. On community safety grounds it is important that he secures approved accommodation before he is released from custody.

QCS [Queensland Corrective Services] has assessed the accommodation with his parents in Rockhampton as unsuitable.

I am seeking advice from QCS on whether an individual treatment program can be arranged for Mr Westlake in custody and if no program is available, whether Mr Westlake can be assisted to secure suitable accommodation in Brisbane to undertake treatment with the recommended mental health specialists in the community. I have also asked QCS to ensure that Mr Westlake understands what type of parole conditions may be placed in his parole order and his reporting obligations to prepare him for release on parole.

39    It is reasonably clear that the issue of accommodation in Brisbane was raised in the context of the applicant receiving treatment outside of prison, but there being community safety concerns in him not having suitable accommodation where that treatment could be accessed.

40    As the written submissions for the respondent correctly pointed out, the principle of procedural fairness (or natural justice) requires no more than an applicant for parole being aware, or being made aware, of the main factors or issues that would (or could) militate against the grant of parole. It was submitted on behalf of the respondent that the applicant was clearly on notice that the completion of the sex offender treatment program and the suitability of the applicant’s post-release accommodation were factors that could militate against the making of a favourable decision. Aspects of that submission as developed are well-made; others, less so.

41    The respondent submitted that completion of the sex offender treatment program and the suitability of the applicant’s post-release accommodation were addressed by the applicant’s solicitors in the documents enclosed in their correspondence of 14 February 2017, which had the effect that the applicant was clearly on notice of those issues being relevant factors. There are some difficulties with this submission when regard is had to the contents of that letter and its enclosures. The material referred to in the respondent’s written submissions did not materially go beyond a reference to the applicant’s father’s letter of 14 February 2017. That letter does not necessarily suggest that the applicant was on notice of either the treatment or accommodation issues, at least in the terms relied upon by the delegate. Nor does the rest of the material sent by the applicant’s solicitor appear to fulfil the function of indicating that he, through his solicitors, was on notice of the importance of these issues to the pending parole determination. The 14 February 2017 letter from the applicant’s solicitors therefore did not indicate that they were on notice of this issue viewed in that way. If this was the totality of the information shown to be available to the applicant, the respondent’s case could have been in some trouble on the question of procedural fairness. However, the communications did not stop there.

42    It was further submitted on behalf of the respondent that on 16 February 2017, the Commonwealth Parole Office wrote to the applicant’s solicitors and put him on notice of matters potentially adverse to the applicant’s release on parole, including his completion of the treatment program and the suitability of his post-relief accommodation, and invited him to respond to those matters. Extracts from that letter are provided above at [21(7)]. The applicant, through his solicitors, accepted the invitation to comment and responded to the matters raised in further correspondence dated 8 March 2017. Included in that response was correspondence from the applicant’s father addressing the issue of post-release accommodation at his home, extracted above at [21(8)]. It was therefore submitted on behalf of the respondent that the applicant was made aware of matters that were relevant to the making of the parole decision, and that those matters were addressed in the further correspondence sent on his behalf on 8 March 2017.

43    It is necessary to consider further the contents of the 16 February 2017 and 8 March 2017 letters. The letter of 16 February 2017 was sent by a Commonwealth Parole Officer (in fact, by the author of the submission to the delegate). That letter expressly raised the dual issues of the applicant’s treatment and post-release accommodation needs. As to treatment, it was made clear that the delegate could refuse to grant parole and require him to complete successfully a recommended sex-offender treatment program. In that event, the delegate would reconsider parole release once a completion report was received. As to post-release accommodation, the letter advised that the applicant did not currently have suitable post-release accommodation, pointing out that his parents’ home was not suitable because they had their two-year-old granddaughter staying overnight on a regular basis, and raising concerns about his parents’ unawareness of his potential risk factors and their apparent lack of support for him being required to comply with parole conditions. The letter from the applicant’s solicitors dated 8 March 2017 pointed to the difficulties experienced by the applicant in attending group therapy and the coordinator’s suggestion that he postpone participation, and enclosed further medical reports. The letter also enclosed a further letter from the applicant’s father addressing the post-release accommodation issue, seeking to allay the concerns that had been raised.

44    The submissions for the respondent should not be accepted in relation to the letter from the applicant’s solicitors dated 14 February 2017, but should be accepted in respect of the letters sent to those solicitors on 16 February 2017 and in their reply of 8 March 2017. The relevant obligation raised by this ground of review was to ensure that the applicant, including through his legal representatives, was aware that the issue of post-release accommodation was potentially determinative of the parole release decision and to give him an opportunity to address that concern. The obligation did not descend to the detail of asking him to identify suitable post-release accommodation in any particular geographic location, such as Brisbane, even if that was the location where treatment was most likely to be available as an alternative to treatment in prison. The choice was made to defend the applicant’s parents’ home as being suitable for post-release accommodation, rather than raise the option of suitable post-release accommodation anywhere else, including in Brisbane.

45    In light of all the circumstances, there is no basis for a finding that there was any denial of natural justice, as is required for this ground to succeed under s 5(1)(a) of the ADJR Act.

Conclusion

46    Because no breach of the rules of natural justice or impermissible exercise of power have been established for the purposes of s 5(1)(a) and (e) of the ADJR Act, each of the grounds of review must fail. The amended originating application must therefore be dismissed.

47    There was no compelling reason why costs should not follow the event other than the asserted impecuniosity of the applicant, which, while not proven, was not disputed by the respondent. That is an insufficient reason for the respondent to be denied the benefit of a costs order. The applicant must therefore pay the respondent’s costs.

Associate:

Dated:    5 September 2017