FEDERAL COURT OF AUSTRALIA

Khazaal v Attorney-General [2020] FCA 448

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    In September 2009, Mr Belal Saadallah Khazaal was convicted of a terrorism-related offence and sentenced to imprisonment for 12 years with a non-parole period of nine years. The non-parole period of Mr Khazaal’s sentence expired on 30 August 2017. The Attorney-General of the Commonwealth has, however, refused to make an order directing that Mr Khazaal be released on parole. In this proceeding, Mr Khazaal challenged the Attorney’s most recent decision in that regard. He alleged, in summary, that the Attorney had denied him procedural fairness because he was not given him adequate notice of certain adverse information which the Attorney took into account in deciding to refuse his release on parole.

2    There is no doubt that the Attorney was required to afford Mr Khazaal procedural fairness in relation to his parole decision. The central issue in this proceeding is whether the Attorney fairly and adequately disclosed all credible, relevant and significant adverse information which was before him for the purposes of making the parole decision and whether Mr Khazaal had an opportunity to make meaningful submissions about that information.

FACTUAL BACKGROUND

3    On 25 September 2009, Mr Khazaal was convicted of the offence of making a document connected with assistance in a terrorist act, contrary to subs 101.5(1) of the Criminal Code, which is the Schedule to the Criminal Code Act 1995 (Cth). He was sentenced to imprisonment for 12 years with a non-parole period of nine years commencing on 31 August 2008. That sentence was eventually upheld following a protracted series of appeals. The effect of the sentence imposed on Mr Khazaal was that he was first eligible to be released on parole on 30 August 2017.

4    Subsection 19AL(1) of the Crimes Act 1914 (Cth) provides that the Attorney must, before the end of a non-parole period fixed for a federal sentence 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).

The Attorney refuses to make a parole order

5    On 8 August 2017, the Attorney refused to make a parole order for Mr Khazaal.

6    Subsection 19AL(2) of the Crimes Act provides that if the Attorney refuses to make a parole order under subs 19AL(1), the Attorney must, inter alia, 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.

7    On 27 July 2018, the Attorney reconsidered the making of a parole order for Mr Khazaal and again refused to make such an order. Mr Khazaal contended that the Attorney had failed to afford him procedural fairness in making that decision and requested that the Attorney remake the parole decision. The Attorney agreed to do so. Mr Khazaal subsequently commenced proceedings in this Court concerning the Attorney’s decision of 27 July 2018. The upshot of that proceeding was that the parties consented to orders which quashed the decision of 27 July 2018 and required the Attorney to reconsider whether to make a parole order in relation to the applicant.

The initial “adverse comments letter” and Mr Khazaal’s complaints about it

8    On 3 September 2018, a legal officer in the Commonwealth Parole Office, which is an office within the Attorney’s Department which provides advice and assistance to the Attorney concerning parole decisions, wrote to Mr Khazaal’s solicitor on behalf of the Attorney and invited Mr Khazaal to “put forward anything that he would like the Attorney-General to take into account in his favour and to respond to factors which have been raised against his release on parole”. The letter also advised Mr Khazaal that the Parole Office had received reports from a number of agencies and that he should expect that the Attorney would “take into consideration matters raised in” those reports. The reports were from the New South Wales Department of Corrective Services, the Serious Offenders Review Council, the Proactive Integrated Support Model Program (PRISM), and the Australian Federal Police (AFP) and NSW Police Joint Counter Terrorism Team (JCTT).

9    Mr Khazaal was not given copies of the reports. The 3 September 2018 letter stated in that regard:

Procedural fairness (or natural justice) does not require these reports to be made available to Mr Khazaal, and we do not intend to provide those reports to you. Rather, we provide the following information so that Mr Khazaal has the opportunity to respond to the main factors or issues arising from those reports that would (or could) militate against Mr Khazaal being granted release on parole.

10    The “matters” which the letter indicated would or could militate against the making of a parole order were identified as: Mr Khazaal’s classification; risk and threat assessments; Mr Khazaal’s attitude to the offence; and Mr Khazaal’s prison conduct. The letter went on to provide further information in respect of each of those matters.

11    On 17 December 2018, Mr Khazaal’s solicitor replied to the 3 September 2018 letter from the Parole Office. The letter stated that Mr Khazaal required further information so as “to be able meaningfully to respond to the adverse matters” identified in the 3 September 2018 letter. The nature of the further information required by Mr Khazaal was set out at some length.

12    On 5 February 2019, the Parole Office replied to the 17 December 2018 letter. In its reply, the Parole Office said that it did not accept that its 3 September 2018 letter, which it referred to as the “adverse comments letter”, did not “provide sufficient information to Mr Khazaal to enable him to be aware of the main factors or issues that would (or could) militate against the grant of parole”. It was, however, noted that, in light of the time that had elapsed since the relevant agency reports had first been provided to the Parole Office, updated reports from the agencies had been requested. It was also noted that, having regard to the time that had elapsed since Mr Khazaal had been provided with the adverse comments letter, the Parole Office would write a further letter to Mr Khazaal which outlined the main factors or issues that would (or could) militate against the grant of parole. It was said that in writing that further letter, the Parole Office would have regard to the further information which had been sought by Mr Khazaal in his letter of 17 December 2018.

13    Mr Khazaal’s solicitor wrote again to the Parole Office on 18 February and 3 April 2019. The 18 February 2019 letter advised that Mr Khazaal maintained that the 3 September 2018 adverse comments letter was inadequate and did not permit him to meaningfully respond to those matters which could militate against his release on parole. The 3 April 2019 letter pressed the Parole Office to provide the further adverse comments letter.

14    The Parole Office sent Mr Khazaal’s solicitor a further adverse comments letter on 26 April 2019. It is the adequacy of that letter, in terms of affording Mr Khazaal procedural fairness, which is the main focus of this proceeding. It will, consistently with the terminology adopted by the parties, be referred to as the April adverse comments letter. While Mr Khazaal initially sought to make something of the alleged deficiencies in the initial 3 September 2018 adverse comments letter and the non-disclosure of the reports referred to in it, his submissions ultimately focussed solely on the alleged deficiencies and inadequacies in the April adverse comments letter.

The April adverse comments letter

15    The April adverse comments letter advised that the Parole Office had received updated reports in relation to Mr Khazaal from Corrective Services, PRISM and the Review Council. It was noted that the AFP had advised that it did not have any additional material to add to its earlier report. Mr Khazaal was advised that the Parole Office would provide the updated reports and the earlier reports of the agencies to the Attorney, or his delegate, to consider when making a decision on whether to grant Mr Khazaal parole. The letter then stated:

We are now writing to invite Mr Khazaal to put forward anything that the Attorney-General should take into account, and/or to respond to the concerns raised in the above reports, when making the decision in relation to Mr Khazaal’s parole. The concerns raised in the above reports are set out below.

16    The April adverse comments letter advised Mr Khazaal about the “relevant matter[s]” enumerated in subs 19ALA(1) of the Crimes Act that the Attorney was able to take into account in deciding whether to make a parole order. It then stated:

When considering release on parole, the principle of procedural fairness (or natural justice) requires Mr Khazaal to be aware, or be made aware, of the main factors or issues that could militate against the granting of parole.

17    The letter then addressed some of those “factors” or issues: the nature and circumstances of the offence; the sentencing remarks of the sentencing judge; and any prior convictions. Mr Khazaal had no complaint concerning this part of the April adverse comments letter.

18    The April adverse comments letter then returned to the topic of the reports from the various agencies. It noted again that the Parole Office had received reports from Corrective Services, PRISM, the Review Council and the AFP (and JCTT) and that Mr Khazaal should expect that the Attorney would take into consideration matters raised in those reports. Consistently with what was said in the earlier adverse comments letter, the letter then stated:

As previously discussed, procedural fairness (or natural justice) does not require these reports to be made available to Mr Khazaal, and we do not intend to provide these reports to you. Rather, we provide the following information so that Mr Khazaal has the opportunity to respond to the main factors or issues arising from those reports that could militate against Mr Khazaal being released on parole at this time.

Those factors or issues are:

•    Mr Khazaal’s current security classification and placement in custody

•    Mr Khazaal’s assessed risk of engagement in violent extremism

•    Mr Khazaal’s attitudes towards his offence and his lack of insight into the potential consequences of his offending

•    Mr Khazaal’s attitudes towards violent extremism and his failure to condemn violent extremist organisations such as al-Qaeda and its supporters

•    Mr Khazaal’s self-identity as a religious leader and the possibility that he would influence others to support and engage in violent extremism if released on parole.

19    As this passage makes clear, the reports of the various agencies were not provided to Mr Khazaal.

20    The April adverse comments letter did, however, provide further information in respect of each of the five identified “factors or issues” which were said to arise from the reports. It is unnecessary to set out in detail all of the information provided in the letter concerning those topics. Attention will instead be focussed on those parts of the letter that were the subject of specific complaint by Mr Khazaal. As will be seen, Mr Khazaal’s main complaint ultimately was that the underlined parts of the following extracts from the letter referred to adverse information about him but was expressed at such a high level of generality that it “defie[d] meaningful response”.

21    The letter provided the following information under the heading, “[p]ersonal identity”:

Mr Khazaal has participated in the exploration of his identity with the PRISM program and reported a willingness to build and incorporate values and ideals consistent with an inclusive Australian identity. However, the program advises that he continues to identify himself as a person of religious authority for the Islamic faith and as such holds a position of status, control and influence over others of the same faith, both in custody and in the community. Mr Khazaal has also raised concerns about being unable to answer religious questions or share his religious knowledge with others if he is transferred out of the High Risk Management Correctional Centre. At this time, Mr Khazaal does not present with an awareness of the relationship between his identity as someone with religious authority, and how he could influence others with his perception of Islam, including through his book.

(Underlining added.)

22    The following passage appeared under the heading, “[r]eligious and socio-political beliefs”:

…

Mr Khazaal has indicated that he does not condone religiously motivated violence in Australia. Mr Khazaal has also denied any desire to guide other offenders in the Islamic faith, provide religious lessons or lead group prayers. However, the PRISM program notes that Mr Khazaal retains the title of Sheik, despite not having received extensive instruction in Islamic learning. Mr Khazaal’s lack of condemnation of al-Qaeda is also considered problematic.

…

(Underlining added.)

23    The letter provided the following information under the heading, “[r]ole and function of peer-group values in personal functioning”:

Mr Khazaal recognises, to an extent, the need to lower his current security risk classification and the challenges of such transition, including the effect of his peer relationships. Mr Khazaal has denied any intention to guide other offenders, provide religious lessons or lead group prayers. However, he maintains he has an obligation to share religious knowledge if approached by others. The Serious Offenders Review Council report observes that Mr Khazaal is known in custody, among other inmates, for his religious knowledge and sound advice. The PRISM program will explore with Mr Khazaal strategies to navigate requests by peers for guidance and engage in consequential thinking. The PRISM program will continue to support Mr Khazaal to build insight into the link between his offending and his status among peers in custody and the community.

Mr Khazaal has a history of associations with alleged and confirmed people who support violent extremism, particularly Mohammad Elomar, Mahammad Jamal, the Cheiko borthers, Mohammad Kiad, Omar Baladjam, Maywand Osman and Milad Alahmadzai (noting Mr Khazaal has not had contact with any of his previous associates who are in the community, and has had no contact with people who have travelled overseas to participate in terrorist activities.

(Underlining added.)

24    The April adverse comments letter specifically invited Mr Khazaal to respond to, comment on, or provide further information or evidence about certain identified information or topics, including the AFP’s assessment of his “risk to the community”, his “attitude towards his offence and how these affect his suitability for release on parole”, his “attitudes towards violent extremism”, and the Parole Office’s “concerns about his attitudes towards terrorist organisations such as al-Qaeda” and the Parole Office’s concerns that “he may influence others while he retains the religious and socio-political ideology that led to the offence”. It was also noted at the conclusion of the letter that Mr Khazaal now had “an opportunity to comment on the issues set out above, including raising such matters that would (or could) militate against him being granted release on parole”.

Mr Khazaal’s response

25    Mr Khazaal’s solicitor responded to the April adverse comments letter by email sent on 30 May 2019. The email attached a copy of a statement signed by Mr Khazaal.

26    It is clear that Mr Khazaal’s solicitor considered that the letter gave Mr Khazaal insufficient detail about the adverse information to enable him to properly respond. The email stated:

…

The Adverse Comments Letter purports to provide our client with sufficient information for him to respond to the matters set out in it that might militate against his release to parole. It does not do so.

The Adverse Comments Letter does not provide the particulars sought by us in our letter of 18 December 2018. Our client has not been apprised of the substance of a number of the allegations raised against him. He is forced to respond to allegations framed in vague and general terms with which he cannot meaningfully engage. That is a denial of natural justice. In the event that our client is refused parole you can expect the filing by us of an application for judicial review on his behalf.

…

27    The email did, however, provide responses to some of the matters raised in the April adverse comments letter. Those responses relevantly included the following:

Third, in relation to our client’s alleged “risk of engagement in violent extremism”, the allegations raised under this heading do not seem to rise higher than our client continues devoutly to adhere to the Islamic faith and that this causes concerns (potentially based on nothing more than speculation or supposition) to various authorities. Devout adherence to a particular religion, even a conservative form of one, cannot rationally militate against an individual’s release to parole. To the extent that there is any substance to the concerns held (which is denied) we are unable to respond because of the nebulous manner in which you have raised them. However, as our client makes clear in his statement, he will not if released to parole provide religious counsel or otherwise propagate his religious views to anyone.

Fourth, in relation to our client’s allegedly problematic associations, we understand that the persons mentioned in the Adverse Comments Letter are other inmates housed in the High Risk Management Centre. Without more, the mere fact that he has been placed in the same correctional facility as those people cannot sensibly be taken into account on the issue of his release to parole.

Fifth, in relation to our client’s attitude to his offending and his position in respect of violent extremist behaviour and organisations, our client’s position as set out in his statement could not put the matter more clearly. You have not provided us with any material which could form a basis for finding that his statement is other than genuine. Accordingly, our client should be taken at his word. Alternatively, he should be afforded an opportunity to respond to any material which might indicate that he should not be accepted on these matters.

Sixth, in relation to our client’s alleged self-identification as a religious leader and the possibility he might encourage others towards violent extremism, there is no sensible basis to think that he might intentionally act that way. To guard against any possibility that he might do so “unwittingly” our client has given the undertakings contained in his statement.

28    Mr Khazaal’s statement, which was attached to his solicitor’s email, was in the following terms:

I refer to the concerns set out in the letter from the Attorney-General’s Department dated 26 April 2019 and say the following:

1.    I condemn and reject Al-Qaeda and all like organisations, their ideologies, teachings, and actions. I repudiate all supportive statements I have made about Al-Qaeda in the past.

2.    I reject the contents of the book that led to my conviction and now fully appreciate the possible consequences and danger of its contents.

3.    I regret the offending that led to my incarceration. My actions were foolish and potentially very dangerous.

  4.    I will not re-offend in any way if released to parole.

5.    I will not encourage, promote, or support any kind of religiously motivated violence or terrorism in the community if released to parole.

6.    If released to parole I will not preach, give advice, or share knowledge on any religious issue to anyone. This will eliminate any possibility of me influencing anybody in any way that could be problematic.

 7.    I consent to any relevant authority monitoring my phone.

8.    I will refrain from associating with any person a relevant authority advises me not to associate with.

  9.    I will not access the Internet or join any social media network.

10.    If released to parole my focus will be on my family and I will spend the majority of my time with them.

11.    In relation to my convictions in Lebanon, as I have advised in the past, the convictions were handed down in a military court in which the rules of evidence did not apply. The witness who gave evidence against me later retracted his testimony and admitted his initial evidence was provided as a result of torture. This can be verified in documents already in the possession of the Attorney-General’s Department.

12.    I will have no issue re-adjusting to life in the community. I have demonstrated this in the past when the Court of Criminal Appeal quashed my conviction and ordered a re-trial. I was given bail after spending several years in custody. While on bail I lived a law-abiding life without any incident at all.

13.    I am not a qualified Sheikh and do not hold myself out to be one. Some call me “Sheikh” out of respect and in accordance with my Arabic culture.

14.    I will abide by any and all other reasonable conditions the relevant authorities deem necessary.

The Parole Office’s submission to the Attorney

29    On 12 July 2019, the Parole Office provided the Attorney with a detailed submission concerning the parole decision he was required to make in relation to Mr Khazaal. That submission was confidential and obviously not provided to Mr Khazaal at any time prior to the Attorney’s decision. It was only provided to Mr Khazaal pursuant to an order made by the Court in this proceeding on 10 October 2019.

30    The following points may be made concerning the Parole Office’s submission to the Attorney.

31    First, the submission annexed copies of the April adverse comments letter and Mr Khazaal’s response to it: both his solicitor’s email to the Parole Office and his statement.

32    Second, the submission annexed copies of the AFP’s report (including the JCTT report), the PRISM report, the Review Council’s “[s]upplementary review” report and Corrective Services’ pre-release report update.

33    Third, the submission contained a detailed synthesis and analysis of, amongst other things, the issues raised in the agencies’ reports which were relevant to whether Mr Khazaal was suitable for release on parole. The submission noted, in that regard, that those issues had been raised with Mr Khazaal in the April adverse comments letter. The analysis of the issues raised by the agency reports which was contained in the submission closely coincided with the analysis of the issues arising from the reports in the April adverse comments letter.

34    The issues which were addressed in both the April adverse comments letter and the Parole Office’s submission were: Mr Khazaal’s security classification and placement in custody; Mr Khazaal’s assessed risk of engagement in violent extremism; Mr Khazaal’s attitudes towards his offence and his lack of insight into the potential consequences of his offending; Mr Khazaal’s attitudes towards violent extremism and his failure to condemn violent extremist organisations such as al-Qaeda and its supporters; and Mr Khazaal’s self-identity as a religious leader and the possibility that he would influence others to support and engage in violent extremism if released on parole. The submission’s summary of the issues arising from the reports was materially the same as the summary contained in the April adverse comments letter. The submission then addressed Mr Khazaal’s response to the issues and provided the Parole Office’s comment.

35    Fourth, the Parole Office recommended that the Attorney not release Mr Khazaal on parole, essentially for the reasons set out in the reasons ultimately given by the Attorney. Those reasons are considered later.

36    As has already been noted, the submission annexed copies of the reports of the relevant agencies. It is unnecessary to refer at length to the contents of those reports. Mr Khazaal’s complaint was ultimately directed at only two passages in two of the reports which he contended contained information which should have been, but was not, disclosed to him in the April adverse comments letter.

37    The first passage was in the appendix to the AFP report, which was an “Operational Threat Assessment” of Mr Khazaal prepared by the JCTT. It stated as follows:

Mr KHAZAAL was and continues to represent a key proselytising figure within the Australian extremist Salafist community. According to information from NSW Corrective Services, Mr KHAZAAL has maintained these beliefs while in custody. Of particular interest is Mr KHAZAAL’s fatwas (religious edicts) which he has issued/promulgated denouncing Islamic State as illegitimate and refuting Abu Bakr al-Baghdadi’s control and his declaration of the Caliphate.

Mr KHAZAAL has been outspoken in relation to these views while in custody. His anti-Islamic State edicts have caused a split within the extremist Islamic population inside HRMU. It is of particular note that previously staunch supporters of Islamic State, who are in custody appears to have accepted Mr KHAZAAL’s teaching and are now expressing distrust and contempt for the actions of Islamic State. It should however be noted that this shift is not from extremist Islam, but rather Mr KHAZAAL has effectively convinced his fellow inmates to switch allegiance from Islamic State to Jabhat Fatah al-Sham without the need to express such views openly.

38    The second passage was in the Corrective Services report. It stated as follows:

Extremism Mr Khazaal was asked if there were any organisations that he felt misrepresented Islam or behaved in a way that was damaging to the Islam religion. When he replied no he was specifically asked if ISIS or Al-Quada met the above criteria. He replied that as he has been in custody for the last 10 years he was unable to comment as he hadn’t had access to any information. He added all people make mistakes except for God and the Prophet.

Influencing other inmates or Muslims Mr Khazaal reiterated to the undersigned that he has no intention of resuming his previous occupation of marriage counsellor. He also maintains that the only “preaching” he will do or offer is to say that there is only one God and his Pprophet is Mohammed. He stated that it is not his role to guide or influence other people and that everyone should find their own path to Islam. He refused to even refer other Muslims to approved CSNSW Inam’s stating this was not his right.

The above assertions are contrary to intelligence advice and to internal case discussions with supervising custodial officers. Intelligence reports allege that Mr Khazaal has made determinations about other inmate’s religious status. Custodial officers report that he openly challenged the ruling by a Corrective Service NSW Inam resulting in considerable conflict with the HRMCC.

39    Mr Khazaal’s submissions in relation to those passages will be referred to later in these reasons.

40    Mr Khazaal did not contend that the reports of the Review Council or PRISM, or the balance of the reports of the AFP and Corrective Services, contained any information which should have been, but was not, provided to him for comment prior to the Attorney’s decision in relation to parole.

The Attorney again refuses to make a parole order

41    On 12 July 2019, the Attorney again refused to release Mr Khazaal on parole. He provided reasons for that decision in accordance with subs 19AL(2)(a)(ii) of the Crimes Act.

42    It is clear that the Attorney not only took into account, but also relied on, the contents of some of the reports of the relevant agencies, including the assessments or opinions expressed by those agencies in their reports. That is apparent from the following passages of the Attorney’s reasons:

…

You have stated that you condemn and reject Al Qaeda and all like organisations, their ideologies, teachings and actions and that you repudiate all supportive statements that you have made about Al Qaeda. Relevant agencies assessed that you continue to hold the religious and socio-political ideology that led to your offending. I have accepted this assessment and hold the view that, while you maintain an ideology in which violent extremism is not considered unacceptable in all circumstances, you pose a risk to the community which does not justify your release on parole.

You have denied comporting yourself as a religious leader and deny any desire or intention to provide others with religious guidance or counsel in custody or following your ultimate release. According to reports received, you continue to act as a religious leader and mentor to other extremists within the prison system and remain influential amongst fellow Islamic inmates who regard you as a sheikh. Given that I have found you maintain an ideology in which violent extremism is not considered unacceptable in all circumstances, the possibility of your ongoing religious leadership and influence means that, if you are released on parole, you pose a risk of influencing others, even unwittingly, which could include influencing others to commit acts of extremist ideologically motivated violence. I note your continued engagement with the PRISM Program is intended to address this risk.

Your risk of engaging in violent extremism is assessed under the Violent Extremist Risk Assessment-2R instrument as medium to high. The bases for this assessment are, primarily, that you have been assessed as having made little progress toward your rehabilitation, that you maintain a commitment to an ideology which endorses violent extremism and that you continue to identify, or are identified by others, as a religious leader and provide religious leadership. These factors underlie an apprehension that if released you present a real risk of supporting, advocating or providing religious justification for a violent attack, and of influencing others who are disposed to such action.

…

43    It is also readily apparent from these extracts from the Attorney’s reasons that the Attorney had regard to, and took into account, Mr Khazaal’s response to the April adverse comments letter, including his statement.

GROUNDS OF CHALLENGE AND SUBMISSIONS

44    Mr Khazaal’s originating application contained two grounds, but only one was pressed. That ground was in the following terms:

A breach of natural justice occurred in connection with the making of the Decision.

Particulars

The Applicant was not given adequate notice of matters taken into account by the Respondent which militated against his release to parole.

45    Mr Khazaal’s submissions in support of that ground can be shortly and simply stated. They were essentially reduced to two broad propositions.

46    First, it was said that the issues relevant to the parole decision, as put to Mr Khazaal in the April adverse comments letter, were disclosed at such a general level as to make meaningful comment impossible.

47    Second, it was said that the Attorney had before him adverse information that was credible, relevant or significant but which was not disclosed to Mr Khazaal.

48    Mr Khazaal’s submissions in support of those propositions were, unfortunately and somewhat ironically, initially made at a high level of generality that they were difficult to grasp. Ultimately, however, when pressed during the course of the hearing, Mr Khazaal identified five particular statements or disclosures in the April adverse comments letter that were said to have been so general as to make any meaningful response impossible. The five particular statements which were the subject of this complaint were referred to earlier. He also identified two passages in two reports which he claimed contained adverse information which should have been, but was not, disclosed to him for comment. The specific adverse information which Mr Khazaal claimed should have been disclosed to him was the information in the two passages in the AFP report and the Corrective Services report referred to earlier.

49    Before addressing the particular parts of the April adverse comments letter and the agency reports which were the subject of Mr Khazaal’s complaint that he was denied procedural fairness, it is necessary to briefly discuss the relevant principles concerning procedural fairness, both generally and specifically in relation to parole decisions.

Relevant principles

50    The relevant principles concerning procedural fairness were not really in dispute. It was the application of the principles in the particular circumstances of this case which was contentious.

General principles in relation to procedural fairness

51    The first point to emphasise is that while there are many cases that discuss the content of the requirements of procedural fairness in different statutory and factual contexts, there is a danger in simply transposing general statements concerning the requirements of procedural fairness to entirely different statutory and factual contexts. It is impossible to lay down a “universally valid test” in relation to the content of the requirement of procedural fairness: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504 (per Kitto J). The rules of procedural fairness do not have an immutably fixed content: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [156] (per Hayne, Crennan, Kiefel and Bell JJ); Snedden v Minister for Justice (2014) 230 FCR 82; [2014] FCAFC 156 at [177].

52    The ultimate question is “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30] (per Kiefel, Bell and Keane JJ). That statement emphasises two matters that must be considered in determining the content of the requirements of procedural fairness in any given case.

53    First, it is critical to have regard to the statutory or legal framework within which the decision is to be made: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26] (per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [498] (per Bell J); Habib v Director-General of Security (2009) 175 FCR 411; FCAFC 48 at [63]; Snedden at [177]. Where the statutory power involves the conduct of some form of inquiry, considerations that might be relevant include: the subject matter, nature and purpose of the inquiry; whether the statute provides for a hearing or other particular procedures or rules to be observed in the conduct of the inquiry; and whether the inquiry is investigative, inquisitorial, or adversarial.

54    Second, consideration must also be given to the particular facts and circumstances of the case. The touchstone is whether the procedures adopted in the particular case have resulted in a “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] (per Gleeson CJ).

55    The requirements of procedural fairness are directed to ensuring a person that may be affected by an exercise of power is given an opportunity to be heard; an opportunity to propound his or her case for a favourable exercise of the power and make meaningful submissions: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [82] (per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ); Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (per Gaudron and Gummow JJ); Jaffarie v Director-General of Security (2014) 226 FCR 505; FCAFC 102 at [113]. In most cases, that would require the person to be put on notice of: “the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person”: SZSSJ at [83].

56    The person affected by a decision is ordinarily entitled to be made aware of, and have the opportunity to address, the critical factors on which the decision is likely to turn, as well as any information adverse to the person which is credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550 at 587 (per Mason J), 628-629 (per Brennan J); Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [15]-[17] (per Gleeson CJ, Gummow, Kirby, Hayne, and Heydon JJ).

57    The person also has to be put on notice of “any adverse conclusion which has been arrived at which would not obviously be open on the known material”; but that does not extend to the disclosure of the decision maker’s “mental processes or provisional views”: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; FCA 1074 at 590-592; SZBEL at [29]. Nor is it necessary to disclose the decision maker’s opinions, doubts or subjective appraisals: Plaintiff M47/2012 at [413] (per Kiefel J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (per French CJ and Kiefel J).

58    Depending on the particular circumstances, it may not be necessary to disclose the precise details of that information; rather, it may be enough to disclose the gravamen or substance of the information so that the person is on notice of its essential features: Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539; FCA 1113 at [70]; Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30; FCAFC 13 at [37]. A decision maker also may not necessarily be obliged to disclose to a person affected by the decision issues in respect of which the person is already on notice or information the substance of which is already known to the person: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; FCAFC 45 at [30].

59    A denial of procedural fairness will not give rise to a jurisdictional error if the breach was not material to the decision: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]-[31] (per Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] (per Bell, Gageler and Keane JJ). A breach will be material to a decision “only if compliance could realistically have resulted in a different decision”: SZMTA at [45].

Procedural fairness and parole orders

60    In Duxerty v Minister for Justice and Customs (2002) 136 A Crim R 373; FCA 1518, Hely J (at [22]) appeared to approve the following statement in Butler v Queensland Community Corrections Board [2001] QCA 323 concerning the requirements of procedural fairness in the context of parole decisions (at [19]):

Procedural fairness in respect of a parole application requires that an applicant’s attention be drawn to the main issues or factors militating against success, so that an adequate opportunity is afforded to deal with them. That obligation, however, is satisfied where, as here, an applicant knows of, or anticipates, the facts and matters assuming significance in a decision to decline a parole application.

61    It is, with respect, doubtful that this statement was intended to be, or should be considered to be, a complete and comprehensive statement of all that is required of a decision-maker in a case concerning parole.

62    The observations in Butler and Duxerty concerning procedural fairness in respect of parole decisions appear to have been picked up and followed by Bromwich J in Westlake v Attorney-General [2017] FCA 1058 when his Honour said (at [40]) that “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”. With the greatest respect to his Honour, that statement of principle is too narrow. It is certainly necessary that an applicant for parole be made aware of the main factors or issues that would or could militate against the grant of parole. But it is wrong to say that procedural fairness requires no more than that in all cases involving parole. In some cases, more will be required. In some cases, for example, procedural fairness will require the applicant for parole to be advised not only of the “main factors or issues”, but also specific adverse information that is credible, relevant and significant to the decision. Nothing in the statutory scheme concerning the making of parole orders under the Crimes Act suggests that a narrow or confined approach should be taken to procedural fairness in that context, or that the general principles concerning procedural fairness do not apply to parole decisions with full force.

63    Section 19AKA of the Crimes Act states that the purposes of parole are the protection of the community, the rehabilitation of the offender, and the reintegration of the offender into the community.

64    As noted earlier, subs 19AL(1) provides that the Attorney must, before the end of a non-parole period fixed for a federal sentence imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole. Subsection 19AL(2)(b) provides that if the Attorney refuses to make a parole order for a person under subs 19AL(1), the Attorney must 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. Subsection 19AL(2)(a) provides that if the Attorney refuses to make a parole order, either under subs 19AL(1) or subs 19AL(2)(b), the Attorney must give the person a written notice within 14 days which informs the person of the refusal, includes a statement of reasons for the refusal, and sets out the effect of subs 19AL(2)(b).

65    Section 19ALA of the Crimes Act provides a non-exhaustive list of “matters” that the Attorney “may” have regard to if they are known to the Attorney and are relevant to the decision. Those matters are listed in subs 19ALA(1) and include: the risk to the community of releasing the person on parole; the person’s conduct while serving his or her sentence; whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency; the likely effect on the victim, or victims family, of releasing the person on parole; the nature and circumstances of the offence to which the person’s sentence relates; any comments made by the sentencing court; the person’s criminal history; 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 behaviour of the person when subject to any previous parole order or licence; the likelihood that the person will comply with the conditions of the parole order; whether releasing the person on parole is likely to assist the person to adjust to lawful community life; whether the length of the parole period is sufficient to achieve the purposes of parole; and any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release.

66    The main observation that may be made about the statutory scheme for the making of parole decisions in respect of federal offences is that, unlike the statutory schemes for the grant of parole in many of the States and Territories, there is no prescribed procedure that the Attorney must follow in considering and determining whether to make a parole order. There is certainly no requirement for a hearing, no express requirement for the Attorney to notify the person affected by the decision concerning parole to be notified of any particular information, and no express requirement that the person be given the opportunity to make submissions. There is no doubt, however, that the Attorney must afford procedural fairness to the person affected by the parole decision. As the statutory scheme does not prescribe any procedure, it is entirely a matter for the Attorney to determine a procedure that will afford procedural fairness to the person and avoid any unfairness or injustice.

67    The terms of subs 19ALA(1) of the Crimes Act would suggest that procedural fairness would require, at a minimum, that the Attorney advise the person affected by the decision of any information known to the Attorney in respect of any of the matters referred to in that subsection which are, or might be, relevant to the parole decision. Of course, as the list of matters in subs 19ALA(1) is non-exhaustive, the Attorney would also be required to advise the person of any other information known to the Attorney which fell outside the list but was nevertheless relevant to the decision. That would include, in particular, any adverse information which was credible, relevant and significant to the decision.

68    Procedural fairness would also require that the person affected by the parole decision be given an opportunity to address the information notified to him or her by the Attorney and to advance any submissions that the person may wish to make in support of the making of a parole order. The opportunity afforded to the person in that regard must undoubtedly be real and meaningful. It follows that the relevant information disclosed to the person must be expressed in terms which are sufficiently clear and comprehensive that the person is able to provide a real and meaningful response. The level of detail which will be required to ensure that the person has a real and meaningful opportunity to respond and make submissions will depend on the nature of the information in question and the particular circumstances of the case. As will be seen, there may be cases where the circumstances are such that the disclosure of information or issues in only broad and general terms will not suffice.

69    It is relevant to note, having regard to the particular facts and circumstances of Mr Khazaal’s case, that the list of matters in subs 19ALA(1) of the Crimes Act includes, at paragraph (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”. If the Attorney had knowledge of any such report or information which was relevant to the decision, procedural fairness would require the Attorney to give the person sufficient particulars of that report or information to enable the person to make real and meaningful submissions concerning it. The clearest and easiest way that could be achieved, in the case of a report, would be the provision of a copy of the report, subject to any issues of privilege or public interest immunity. The provision of a copy of the report is not, however, necessarily required. It would be sufficient for the Attorney to provide the person with a fair and accurate summary of the substance of the information contained in the report which is credible, relevant, and significant to the parole decision.

70    The critical question in this case is whether that occurred.

WAS MR KHAZAAL AFFORDED PROCEDURAL FAIRNESS?

71    There was no dispute that the Attorney was required to afford Mr Khazaal procedural fairness in relation to the Attorney’s reconsideration of the making of a parole order. The question is whether the Attorney afforded Mr Khazaal procedural fairness in all the circumstances.

72    The Attorney afforded, or endeavoured or purported to afford, procedural fairness to Mr Khazaal by sending him the April adverse comments letter and inviting him to comment on or make submissions concerning, amongst other things, the information and observations made in that letter. As has already been noted, Mr Khazaal contended that the April adverse comments letter was deficient in two respects.

73    First, it was said that the issues relevant to the parole decision as outlined in the April adverse comments letter were disclosed at such a general level as to make meaningful comment impossible. When pressed, Mr Khazaal identified five passages in the April adverse comments letter that he alleged were deficient in this respect. Each of those passages referred to an assessment which had been made, or a conclusion which had been arrived at, by one of the agencies in relation to Mr Khazaal’s circumstances. The assessments or conclusions were taken from reports which had been provided to the Attorney. It will be necessary to consider each of those passages in context to ascertain whether Mr Khazaal’s complaint in relation to them have any merit.

74    Second, it was said that the Attorney had before him adverse information that was credible, relevant and significant to his decision but which was not disclosed to Mr Khazaal. Mr Khazaal identified two particular passages in two reports which had been provided to the Attorney which he claimed contained adverse information that was not disclosed in the April adverse comments letter. It will again be necessary to consider whether the requirement of procedural fairness obliged the Attorney to inform Mr Khazaal of the information in those two passages and, if so, whether the information in those passages was, in substance, disclosed in the April adverse comments letter.

Disclosure of information in overly general terms

75    Mr Khazaal’s submissions relied heavily on the decision of the Supreme Court of the United Kingdom in R (King) v Secretary of State for Justice [2016] AC 384. In that case, two prisoners sought judicial review of a decision which authorised their continued segregation from other prisoners within a prison. One of the issues considered by the court was whether the prisoners had been denied procedural fairness. That issue turned on whether they had been given adequate information about the basis upon which their continued segregation was sought by the prison authorities so as to enable the prisoners to make meaningful submissions. Lord Reed JSC (with whom Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Sumption and Lord Hodge JJSC agreed) said, in that context (at [100]):

A prisoner’s right to make representations is largely valueless unless he knows the substance of the case being advanced in sufficient detail to enable him to respond. He must therefore normally be informed of the substance of the matters on the basis of which the authority of the Secretary of State is sought. That will not normally require the disclosure of the primary evidence on which the governor’s concerns are based: as I have explained, the Secretary of State is not determining what may or may not have happened, but is taking an operational decision concerning the management of risk. It is however important to understand that what is required is genuine and meaningful disclosure of the reasons why authorisation is sought. The reasons for continued segregation which were provided by the prison staff involved in the present cases gave, at best, only the most general idea of the nature of their concerns, and of why those concerns were held. More could and should have been said – and was said, in the witness statements filed in these proceedings – without endangering the legitimate interests which the prison authorities were concerned to protect. The imposition of prolonged periods of solitary confinement on the basis of what are, in substance, secret and unchallengeable allegations is, or should be, unacceptable.

76    It may be observed that the statement of principle in this passage is unexceptional and consistent with the principles enunciated in the Australian authorities considered earlier in these reasons. The important point to emphasise is that it was said to be the “substance” of the “case being advanced” which was required to be disclosed in sufficient detail to enable a response, not necessarily the “primary evidence”. That was because the Secretary of State was not deciding whether the alleged incidents which gave rise to the concerns of the prison authorities occurred, but was making an “operational decision concerning the management of risk”.

77    Lord Reed JSC went on to explain why the information disclosed to one of the prisoners (Bourgass) was deficient in the following terms (at [101]):

More specifically, in Bourgass’s case, although some of the reasons given to him explained that his segregation was based on the assault on Sahebzadeh, the prison failed to provide any information as to why he was considered to have been involved in an assault which took place in his absence, despite being repeatedly asked to do so. The statement that he was to remain in segregation “pending an investigation into a serious assault” became particularly egregious when repeated after all investigations had ceased. Stating that segregation was “pending CSC referral”, or that “we are trying to transfer you”, provided no explanation related to rule 45. Stating that “you are an unacceptable risk to other prisoners”, that “you are known as a threat to other prisoners”, that “your behaviour is deemed to be unsuitable for normal location”, or that “you would be a disruptive influence on normal location”, told him nothing about the basis on which he was considered to present such a risk or threat or disruptive influence, or about the behaviour which was deemed unsuitable.

78    It may be noted that the continued segregation of the prisoners was sought by the prison authorities on the basis of specific allegations or incidents of wrongdoing by the prisoners. While the prisoners were told of the general nature of the concerns of the prison authorities, they were not given proper particulars of the incidents that were said to give rise to those concerns. They were accordingly not able to make any meaningful submissions as to why they did not in fact pose a risk if they were not segregated.

79    Mr Khazaal submitted that his case was analogous to R (King) and that the five passages in the April adverse comments letter which had been identified by him were expressed in similarly general terms and were therefore similarly deficient for the purposes of procedural fairness. The difficulty for Mr Khazaal, however, is that, when closely analysed, none of the passages which he sought to impugn are deficient in the same way as the general allegations in R (King) were held to be deficient. Nor is there any sound basis to conclude that the Attorney was in a position to disclose any further information of substance other than what was disclosed.

80    The first allegedly deficient passage in the April adverse comments letter which was identified by Mr Khazaal was the passage, extracted earlier, which included the statement that “the [PRISM] program advises that [Mr Khazaal] continues to identify himself as a person of religious authority for the Islamic faith and as such holds a position of status, control and influence over others of the same faith, both in custody and in the community”. While it may be accepted that this is a somewhat general statement, the difficulty for Mr Khazaal is that this is almost exactly what was stated in the PRISM report that was before the Attorney. It was an accurate, indeed almost verbatim, statement of what the “program” had in fact reported.

81    Moreover, it is tolerably clear from the report that this was an assessment made by the authors of the report based on their interaction with Mr Khazaal over time, rather than on the basis of some specific incident or observation. The report did not itself contain any details of any specific incident or observation that was said to support the assessment. There was accordingly nothing more of substance that the Attorney could have disclosed to Mr Khazaal concerning this statement in the PRISM report. It could scarcely be suggested that, to afford Mr Khazaal procedural fairness, the Attorney was obliged to obtain further details from PRISM about how the assessment was made so that Mr Khazaal could be placed in a better position to challenge that assessment. In arriving at his decision concerning parole, the Attorney was entitled to rely on the assessment or findings made by PRISM, without himself inquiring into the specific incidents or evidence that may have formed the basis of that assessment. Like the Secretary of State in R (King), the Attorney was not himself deciding whether any specific incidents which may have formed the basis of the PRISM assessment actually occurred. Rather, he was making a decision about risks which was based, at least in part, on the assessments made by specialist agencies.

82    There is also no merit in the submission that Mr Khazaal was not or would not have been able to provide a meaningful response to this information. Indeed, he did provide a response to it. He stated, in his statement, that he was not a qualified Sheikh and did not hold himself out to be one. He acknowledged, however, that some people called him “Sheikh” out of respect and in accordance with his Arabic culture. Thus he essentially denied that he held himself out as a person of religious authority, but acknowledged that others may have seen him as such. It is difficult to imagine any different or additional information or submission that Mr Khazaal could have given in response to this information. It is quite clear that Mr Khazaal understood the nature of the PRISM assessment and was able to meaningfully respond to it.

83    The second and third passages from the April adverse comments letter which were the subject of complaint by Mr Khazaal may conveniently be dealt with together. They are, in many respects, similar to the first passage which Mr Khazaal sought to impugn. The letter stated that “… the PRISM program notes that Mr Khazaal retains the title of Sheikh, despite not having received extensive instruction in Islamic learning” and that his “lack of condemnation of al-Qaeda is also considered problematic”.

84    While it may perhaps again be accepted that these are fairly general statements, the difficulty with Mr Khazaal’s complaint concerning them is that they are again taken almost verbatim from the PRISM report. The report itself contains no further information concerning the basis of the author’s findings or conclusions concerning those matters. It would again appear that these were assessments or findings made as a result of the author’s interaction with Mr Khazaal during the program, rather than as a result of any specific allegation or observation by a third party. There was accordingly nothing further that the Attorney could have disclosed. The Attorney provided Mr Khazaal with the substance of the information in the report which was relevant to his decision. He was not required to do anything further. The need for the Attorney to afford Mr Khazaal procedural fairness did not require the Attorney to seek further particulars from PRISM so that he could provide Mr Khazaal with further information to enable him to challenge PRISM’s assessment.

85    There is also again no substance in the submission that Mr Khazaal was not or would not have been able to respond to the information in those passages in the April adverse comments letter. As previously noted, in his statement Mr Khazaal denied that he held himself out to be a Sheikh, but acknowledged that others addressed him as such. Mr Khazaal also responded to the program’s conclusion that he had not condemned al-Qaeda. In his statement he said that he condemned and rejected al-Qaeda and that he repudiated all “supportive statements” that he had made about al-Qaeda in the past. It is again difficult to imagine what more Mr Khazaal could have said. It would appear to be tolerably clear that Mr Khazaal well understood the substance of the relevant PRISM assessment and was able to meaningfully respond to it.

86    The fourth passage in the April adverse comments letter which was the subject of Mr Khazaal’s complaint was the passage which included the statement that the “Review Council report observes that Mr Khazaal is known in custody, among other inmates, for his religious knowledge and sound advice”. Even if it is accepted that this is a fairly general statement, the difficulty for Mr Khazaal again is that it is a direct quote from the Review Council’s report. The report does not detail the nature or source of the information which provided the basis of this finding or conclusion. It simply notes that it was based on information “available to it”. There was accordingly no further information in the report on that topic that the Attorney could have disclosed. Nor could the Attorney have been expected to have sought further information from the Review Council so that it could be provided to Mr Khazaal.

87    It would also appear that Mr Khazaal understood the significance of, and was able to respond to, the Review Council’s statement that he was known among other inmates as someone who had religious knowledge and could give sound advice. While he acknowledged in his statement that some inmates called him Sheikh, he also stated that if released he undertook not to “preach, give advice, or share knowledge on any religious issue to anyone” and that “[t]his will eliminate any possibility of me influencing anybody in any way that could be problematic”. It is again readily apparent that Mr Khazaal knew the substance of the relevant finding which had been made by the Review Council and knew why that finding may have been significant to the Attorney’s decision. He was able to provide a meaningful response to that information.

88    The fifth passage in the April adverse comments letter which was the subject of complaint by Mr Khazaal was the passage which stated that he had a “history of associations with alleged and confirmed people who support violent extremism”. The passage went on to name the people with whom Mr Khazaal was said to have associated with who fitted that description.

89    The nature of Mr Khazaal’s complaint about this passage was, and is, unclear. His solicitor was able to clearly and emphatically respond to it by pointing out that the persons referred to in the passage were “other inmates housed in the High Risk Management Centre” and stating that “[w]ithout more, the mere fact that [Mr Khazaal] has been placed in the same correctional facility as those people cannot sensibly be taken into account on the issue of his release to parole”. The solicitor’s statement to that effect must have been persuasive as there is nothing in the Attorney’s reasons to suggest that the Attorney gave any weight to the fact that Mr Khazaal was said to associate with those inmates. Mr Khazaal’s contention that this passage was stated at such a high level of generality that he was unable to meaningfully respond to it has no merit.

90    It follows that, upon close analysis, there is no merit in Mr Khazaal’s complaint that the five passages that he identified were expressed at such a high level of generality that he was denied the opportunity to provide a meaningful response. Mr Khazaal’s claim that he was denied procedural fairness for that reason must accordingly be rejected.

Failure to disclose certain adverse information

91    Mr Khazaal complained that some adverse information in the reports which was credible, relevant and significant to the decision was not disclosed in the April adverse comments letter. That information was contained in one passage in the JCTT report, which was annexed to the AFP report, and one passage in the Corrective Services report. Those passages are set out in full earlier in these reasons.

92    Upon close analysis, however, it can be seen that the substance of the information in those passages was disclosed in the April adverse comments letter and that any specific information which was not disclosed was not significant to the decision.

93    The key items of information in the relevant passage in the JCTT report were: first, that Mr Khazaal “was and continues to represent a key proselytising figure within the Australian extremist Salafist community”; second, that information from Corrective Services indicated that Mr Khazaal had “maintained these beliefs while in custody”; third, that Mr Khazaal had issued fatwas or religious edicts which denounced Islamic State as illegitimate; and fourth, that his edicts had “caused a split within the extremist Islamic population inside HRMU” and that some of his fellow inmates had switched allegiance from Islamic State to al-Qaeda.

94    The substance of that information was disclosed in the April adverse comments letter. The letter referred to the AFP’s assessment of Mr Khazaal’s risk to the community and noted the AFP’s concern that he “remains influential among his peers as a religious leader and mentor to others within the prison system” and that he had led “some inmates to shift their allegiance from Islamic State to Al Qaeda”. Other parts of the letter stated that other agencies believed that Mr Khazaal had maintained his religious beliefs while in custody. While the letter did not specifically refer to Mr Khazaal being a “proselytising figure”, that was not an independently material or significant fact given that it was made clear that the AFP believed that he remained influential as a religious leader. Equally, while the letter did not specifically refer to Mr Khazaal issuing fatwas or edicts, it referred to the shift in allegiances which those edicts had caused.

95    It follows that Mr Khazaal’s contention that the April adverse comments letter did not disclose the information contained in this particular passage of the JCCT report has no merit and must be rejected.

96    In respect of the Corrective Services report, the first two paragraphs of the passage which was the subject of Mr Khazaal’s complaint referred to: Mr Khazaal’s responses to some questions that were put to him during an interview with Corrective Services staff; that he declined to say that ISIS or al-Qaeda had misrepresented or caused any damage to the Islamic faith; that he did not intend to engage in any preaching; and that, in that context, he did not even see that it was his right to refer other inmates to the Corrective Services imam. While Mr Khazaal contended that this information was not disclosed to him in the April adverse comments letter, it is clear that the substance of it was. It is, for instance, noted on a number of occasions in the letter that Mr Khazaal had “denied any desire to guide other offenders in the Islamic faith” or “provide religious lessons or lead group prayers”. It is also noted in the letter that Mr Khazaal had not condemned al-Qaeda. Indeed, Mr Khazaal was specifically invited to “provide clarification and evidence of his views” in relation to al-Qaeda. He did so in his statement.

97    The third paragraph of the relevant passage in the Corrective Services report was the main subject of complaint by Mr Khazaal. It referred to “intelligence advice and to internal case discussions with supervising custodial officers” which, according to Corrective Services, cast doubt on Mr Khazaal’s assertions that he did not intend to preach or provide religious guidance to other inmates. It referred to two particular incidents, or alleged incidents; first, that Mr Khazaal had “made determinations about other inmate’s religious status”; and second, that he “openly challenged a ruling by a Corrective Service “Inam” which resulted in “considerable conflict with the HRMCC”.

98    Mr Khazaal adduced affidavit evidence in this proceeding to the effect that had he known that this “material” was before the Attorney, he would have “sought to respond to it”. His evidence was that he would have responded by saying, amongst other things, that he did not “hold any formal position or authority to make determinations or fatwa’s (Islamic Rulings) about anyone’s religious status” and that he did not “recall ever challenging rulings of the corrective services imam”.

99    There is no doubt that the April adverse comments letter did not expressly refer to the two incidents referred to in this passage of the Corrective Services report. It does not necessarily follow, however, that Mr Khazaal was denied procedural fairness. That is because there is nothing to suggest that the reports of the two incidents were themselves significant or material to the Attorney’s decision. The only real significance of the two incidents was that, in the assessment of Corrective Services, they cast doubt on Mr Khazaal’s denials that he intended to preach or provide religious guidance to inmates, or that he had any particular religious standing in the prison community.

100    Importantly, while the April adverse comments letter may not have referred to the two incidents, it made it abundantly clear that various agencies had reported that they did not accept Mr Khazaal’s denials that he had religious standing among his fellow inmates. The letter refers, for instance, to: the advice in the PRISM report that Mr Khazaal “continues to identify himself as a person of religious authority for the Islamic faith and as such holds a position of status, control and influence over others of the same faith”; the Review Council’s report which observed that Mr Khazaal is “known in custody, among other inmates, for his religious knowledge and sound advice”; and the AFP report which assessed that Mr Khazaal “remains influential among his peers as a religious leader and mentor to others within the prison system”.

101    It was in that context that the April adverse comments letter specifically invited Mr Khazaal to comment not only on the AFP’s assessment, but also on the Parole Office’s “concerns that he may influence others while he retains the religious and socio-political ideology that led to the offence, by providing evidence of his changed ideology and outlining the strategies that he would deploy in the community to avoid influencing other people to support or engage in violent extremism”. As has already been noted, Mr Khazaal responded to that invitation by stating, amongst other things, that if granted parole he would not “encourage, promote, or support any kind of religiously motivated violence or terrorism in the community” and would not “preach, give advice, or share knowledge on any religious issue to anyone”. Mr Khazaal’s solicitor also submitted that “[d]evout adherence to a particular religion, even a conservative form of one, cannot rationally militate against an individual’s release to parole” and that, in relation to Mr Khazaal’s “alleged self-identification as a religious leader and the possibility he might encourage others towards violent extremism, there is no sensible basis to think that he might intentionally act that way”.

102    While the Attorney was provided with a copy of the Corrective Services report, there is nothing to suggest that the Attorney gave any, or any significant or material, weight to the information in that report which related to, or concerned, the intelligence reports about the two incidents. The Parole Office’s submission or briefing paper to the Attorney did not direct the Attorney’s attention to, or refer specifically to, that part of the Corrective Services report which mentioned the intelligence reports relating to the alleged incidents involving Mr Khazaal making determinations about another inmate’s religious status or challenging the Corrective Services imam. It was certainly not suggested that the Attorney needed to determine whether Mr Khazaal was in fact involved in those incidents or whether his alleged involvement in them was a factor which weighed against the grant of parole.

103    The Attorney’s reasons also make no reference to the two incidents. The Attorney’s reasons refer to the fact that Mr Khazaal had “denied comporting [himself] as a religious leader and [denied] any desire or intention to provide others with religious guidance or counsel in custody or following [his] ultimate release”. The Attorney noted, however, that reports received stated that Mr Khazaal continued to “act as a religious leader and mentor to other extremists within the prison system” and remained “influential amongst fellow Islamic inmates” who regarded him as a Sheikh. It would appear that the Attorney accepted those assessments or conclusions. He found that, given the possibility of Mr Khazaal’s “ongoing religious leadership and influence”, he posed a “risk of influencing others, even unwittingly, which could include influencing others to commit acts of extremist ideologically motived violence”. There is, however, nothing to suggest that the Attorney’s findings in that regard were influenced or in any way based on the information in the Corrective Services report concerning the incidents referred to in the intelligence reports.

104    In all the circumstances, it cannot be concluded that Mr Khazaal was denied procedural fairness because the information in the Corrective Services report concerning the two alleged incidents was not specifically disclosed to him for comment. It cannot be concluded that the non-disclosure of the information concerning those two alleged incidents gave rise to any “practical injustice”: cf Lam at [37]. While that information may have been adverse to Mr Khazaal, there is nothing to suggest that it was significant to the Attorney’s decision, or was given any specific consideration or weight by the Attorney. It was a very minor and insignificant piece of information amongst a large quantity of much weightier information, being the views, conclusions, and assessments of the relevant agencies. The information about the alleged incidents was perhaps of marginal relevance because it provided at least part of the basis of the assessment by Corrective Services that Mr Khazaal was regarded as a religious leader by his fellow inmates. Mr Khazaal was, however, provided with considerable information about that assessment, as well as similar assessments by other agencies, and was specifically invited to comment on those assessments and the issue of his ongoing religious influence generally. Mr Khazaal was able to and did provide a meaningful response to that issue.

105    It follows that Mr Khazaal’s contention that he was denied procedural fairness because the two alleged incidents referred to in the Corrective Services report were not disclosed to him is without merit and must be rejected.

MATERIALITY

106    The Attorney contended that even if the non-disclosure of the information concerning the incidents which were the subject of the intelligence reports in the Corrective Services report amounted to a denial of procedural fairness, that denial of procedural fairness would not operate to invalidate the Attorney’s decision to refuse to make a parole order because that “breach” had not been shown to be material: Hossain at [29]-[31]; SZMTA at [44]. That was said to be because nothing that Mr Khazaal could have said in response to that information, had it been provided, could have made a difference to the outcome.

107    It is strictly unnecessary to address that submission given that it has been found that there was no denial of procedural fairness. There is, nonetheless, merit in the Attorney’s contention concerning materiality.

108    As has already been noted, Mr Khazaal adduced evidence that had he been aware that there was information before the Attorney which suggested that he had made determinations concerning other people’s religious status and that he had openly challenged a ruling by a corrective services imam, he would have instructed his solicitors to respond to that information. The response would have been to say that: he did not “hold any formal position or authority to make determinations or fatwa’s (Islamic Rulings) about anyone’s religious status”; that he did not “recall ever challenging rulings of the corrective services imam”; that he would “welcome the opportunity to respond to these allegations in more detail” but that he would require more details about them; and that as he had “indicated on many occasions previously” he would be “happy and willing to abide by any reasonable condition/s upon release, to alleviate any concerns the authorities might have” about him “influencing others”.

109    It is, in many cases, very difficult to assess the materiality of a denial of procedural fairness. That is because it is often very difficult to say what decision might have been made by a decision maker if there had been no denial of procedural fairness: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [104] (per McHugh J). In this matter, however, it can confidently be concluded that any denial of procedural fairness arising from the non-disclosure of the allegations in the intelligence reports referred to in the Corrective Services report could not have affected the outcome. That is so for two reasons: first, because the responses that Mr Khazaal says he would have made in response to that information, had it been disclosed, added little, if anything, to the responses he had in fact provided to the Attorney; and second, because the information not disclosed was in any event not shown to be significant to the Attorney’s decision.

110    The statement that Mr Khazaal said that he would have made to the effect that he did not hold any formal position or authority to make determinations or fatwa’s about anyone’s religious status did not amount to a direct denial of the allegation that he had made such determinations. Even if it did, it did not add anything of significance to the statement that Mr Khazaal did make to the Attorney about his religious status and influence; that he was not a qualified Sheikh; and did not hold himself out to be one. The Attorney did not accept that assertion.

111    The statement that Mr Khazaal said that he would have made to the effect that he did not recall ever challenging rulings by a Corrective Services imam again did not amount to a denial that he had in fact done so. Even if it did, it was highly unlikely to have altered the Attorney’s finding, based on multiple agency reports, that Mr Khazaal was influential among his peers as a religious leader.

112    The statement that Mr Khazaal would have made to the effect that he would welcome the opportunity to respond to the allegations if he was provided with more detail about the allegations would have been unlikely to assist the Attorney. The Attorney had no further detail of those allegations to provide and was not, in any event, required to determine whether the alleged incidents in fact occurred.

113    As for the proposed statement that Mr Khazaal would be happy and willing to abide by any reasonable condition/s imposed on his parole, as Mr Khazaal himself acknowledged, that was a willingness that had been expressed on “many occasions previously”.

114    Even putting to one side the responses that Mr Khazaal said he would have given had the information about the alleged incidents been disclosed to him, for the reasons already given, the information concerning the allegations about the two incidents was in any event of no real significance to the Attorney’s decision. There is no indication that the Attorney gave any consideration to those allegations, or gave them any weight. The Attorney did have regard to multiple agency reports which stated that Mr Khazaal identified himself as a person of religious authority and held a position of status, control and influence over others of the Islamic faith, both in custody and in the community. The substance of those reports was disclosed to Mr Khazaal and he responded to that information. The Attorney found, in effect, that Mr Khazaal in fact held that status as a religious figure, despite his apparent denials. There is no suggestion that the Attorney’s finding in that regard was in any way influenced by, or based on, the information about the allegations concerning the incidents. It follows that any response that Mr Khazaal may have given in relation to those allegations was highly unlikely to have influenced the Attorney’s decision or affected the outcome.

CONCLUSION AND DISPOSITION

115    Mr Khazaal failed to demonstrate that the Attorney denied him procedural fairness in refusing to make a parole order in his favour. The contentions advanced by Mr Khazaal in that regard have no merit. Relevant disclosures of information in the April adverse comments letter were not, as Mr Khazaal claimed, made at such a high level of generality to make meaningful response impossible. Nor was there any non-disclosure of adverse information which was credible, relevant and significant to the Attorney’s decision. While there was no specific disclosure of information concerning two alleged incidents involving Mr Khazaal that were referred to in one of the reports which was before the Attorney, that information was of no real significance to the Attorney’s decision. Nor was there any suggestion that the Attorney gave any specific consideration to that issue, or gave it any weight, in arriving at his decision. The non-disclosure of that information did not give rise to any practical injustice.

116    The April adverse comments letter adequately and fairly disclosed the critical issues and factors on which the Attorney’s decision in respect of parole was likely to turn. It also adequately disclosed the substance and gravamen of any adverse information about Mr Khazaal which was known to the Attorney and was credible, relevant and significant to the decision. Mr Khazaal was given a fair and reasonable opportunity to make submissions concerning the issues and factors relevant to the Attorney’s decision and a fair and reasonable opportunity to respond to any relevant and credible adverse information which was before the Attorney.

117    Mr Khazaal’s challenge to the Attorney’s decision must accordingly be dismissed with costs.

Associate:

Dated:    6 April 2020