Federal Court of Australia

Stephens v Attorney-General [2021] FCA 204

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the costs of the respondent as agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    On 6 September 2018, Mr Stephens was sentenced in the District Court of Queensland to four years’ imprisonment with a non-parole period of 20 months for one count of using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) (the Criminal Code). On the same date, he was also sentenced to four years’ imprisonment to be suspended after 20 months for nine offences of knowingly possessing child exploitation material and making child exploitation material contrary to the Criminal Code Act 1899 (Qld). That sentence was ordered to be served concurrently with the Commonwealth offence.

2    The statutory scheme for parole of persons serving sentences of imprisonment for Commonwealth offences vests the power in the Attorney-General of the Commonwealth of Australia: s 19AL of the Crimes Act 1914 (Cth). On 5 May 2020, a delegate of the Attorney-General declined to release Mr Stephens on parole. The effect of this decision was that the Attorney-General was required to reconsider whether to release Mr Stephens on parole within 12 months of the date of the decision: s 19AL(2)(b) of the Crimes Act. The delegate’s decision said that a reconsideration of the matter should occur within six months, being 5 November 2020. For the purposes of that reconsideration, Mr Stephens and his solicitor on his behalf provided submissions in support of his release. On 26 October 2020, the Attorney-General declined to release the applicant on parole (Refusal Decision).

3    The applicant seeks judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) of the Refusal Decision made by the Attorney-General on 26 October 2020, to refuse to release him on parole pursuant to s 19AL of the Crimes Act.

4    For the reasons below the application is dismissed.

Material before the Court

5    The Court has before it the Refusal Decision. It also has the submission from the Attorney-General’s Department to the Attorney-General (Departmental Submission) which comprises the material that was before the Attorney-General at the time he made the Refusal Decision. Although the Attorney-General’s determination is recorded on the front page of the Departmental Submission, the Departmental Submission does not constitute a statement of the Attorney-General’s reasons. The Attorney-General’s reasons appear in the Refusal Notice.

6    Regard can be had to the Departmental Submission in determining the material before the Attorney-General, and assessing whether that material could support the inference that he had applied the wrong test or was not ‘in reality’ satisfied of the requisite matters: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (Palme) at [16] and [20]. In having regard to the Departmental Submission, it should be read as a whole; parts should not be taken out of context: Palme at [28].

7    The Departmental Submission is a 105 page document with 12 attachments including:

(1)    a draft parole order: Attachment A;

(2)    a draft refusal notice: Attachment B;

(3)    case analysis: Attachment C;

(4)    the sentencing remarks: Attachment D; and

(5)    letters from the applicant to the Department dated 2 July 2020 and 12 August 2020: Attachment I;

(6)    a submission on his behalf by his solicitors in support of the applicant’s release dated 30 September 2020: Attachment K; and

(7)    a submission by the applicant in response to the adverse comments letter dated 30 September 2020: Attachment I.

8    Attachment C, which is entitled ‘Reconsideration for release of federal offender, Bevan Allan Stephens, on parole by 5 November 2020’ (Case Analysis), commences with the subheading “proposed action”, being the recommendation that the applicant be released on parole. The document thereafter contains a detailed analysis of considerations in favour of, and against, the applicant’s release on parole. This included inter alia, the nature and circumstances of the offences, comments by the sentencing Court, parole reports, information submitted by the applicant, and by him and his solicitors in respect to the adverse comments process. The Case Analysis addressed the issues of rehabilitation, reintegration into the community, protection of the community, parole conditions, and gave a primary and alternative recommendation.

9    The covering section of the Departmental Submission has the refusal decision recorded. The document records the following under “Key Issues”:

On 6 September 2018, the District Court of Queensland sentenced Mr Stephens to four years’ imprisonment, commencing on 6 September 2018 for one count of using a carriage service to access child pornography material, contrary to subparagraph 474.19(1)(a)(i) of the Criminal Code Act 1995. The Court also sentenced him for state child sex offences, namely making child exploitation material, contrary to subsection 228B(1) of the Criminal Code Act 1899 (Qld) (Qld Criminal Code) and possessing child exploitation material contrary to section 228D of the Qld Criminal Code. Mr Stephens’ Commonwealth sentence will expire on 5 September 2022. His state sentence was suspended after one year and eight months. Due to the nature of this state sentence, he is subject to automatic release on the state offences and won’t be considered for state parole. His state sentence will expire on 5 September 2022.

Mr Stephens was first considered for release on parole on 5 May 2020. A delegate refused him parole at that time on the basis that his post-release plans were not sufficiently detailed and there were concerns that he could be exposed to his reoffending risk factors of isolation and loneliness. The matters gave rise to concern that he posed a risk to the safety of the community. The department advised Mr Stephens that he would be reconsidered within six months – i.e. by 5 November 2020.

An analysis of Mr Stephens’ parole reconsideration is at Attachment C. The department considers that Mr Stephens now has detailed post-release plans in place. Parole will provide the opportunity for his release to be conducted with appropriate supervision and rehabilitation supports in place mitigating the risk to community safety. Therefore the department recommends that Mr Stephens be granted parole. If you grant Mr Stephens parole, he will be released into the Brisbane community.

If you wish to refuse parole, the department considers that it is open to you to refuse parole on the basis of the nature and circumstances of the offending. If you refuse Mr Stephens parole, you are required to reconsider him for release on parole with 12 months.

10    The Refusal Notice states:

The order for refusal of parole has been made for the following reason:

1. I have taken into account the nature and circumstances of the offences to which your sentence relates, which involved both accessing and possessing child exploitation material as well as creating child exploitation material. In so doing, I give weight to the findings of the sentencing judge that you were in possession of a “staggering” amount of child exploitation material. I also give weight to the concerns of the sentencing judge that your behaviour in creating child exploitation showed a progression from viewing material to making it and that your use of the application, Spyphoto, to capture the material demonstrated that you wanted to be able to obtain child exploitation material without others being aware.

2. I note the purposes of parole as set out in paragraphs 19AKA(a),(b) and (c) of the Crimes Act. I consider that the threat to community safety posed by your release on parole at this time outweighs the benefits which parole would provide to assist in your rehabilitation and reintegration into the community.

Statutory regime

11    The regime for the parole of persons serving sentences of imprisonment for Commonwealth offences (federal offenders) is contained in Part IB, Division 5 of the Crimes Act.

12    Section 19AKA states the purposes of parole are: the protection of the community; the rehabilitation of the offender; and the reintegration of the offender into the community.

13    There is no entitlement to parole, the power to release a prisoner on parole after the expiry of the non-parole period is a matter for the executive: Minogue v Victoria [2019] HCA 31; (2019) 93 ALJR 1031 at [17]. In the case of federal offenders, this is the Attorney-General.

14    Section 19AL which addresses release on parole is relevantly in the following terms:

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).

Note 1:    See subsection (5) if the person is subject to a State or Territory sentence.

Note 2:    See also sections 19ALA (matters that may be considered in decisions about parole orders) and 19ALB (decisions about parole orders—terrorism and control orders).

(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.

(3) A parole order must:

(a) be in writing; and

(b) specify whether or not the person is to be released subject to supervision; and

(c) if it is proposed that the supervision period for a person released on parole subject to supervision should end before the end of the person’s parole period—specify the day on which the supervision period ends.

15    In making a decision under section 19AL, a non-exhaustive list of matters which may be considered is set out in s 19ALA:

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:

(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.

16    The Attorney-General submitted, and it was not disputed by the applicant, that the following propositions also emerge from the statutory framework governing the Attorney-General’s exercise of the power in s 19AL:

(1)    the power to release or not release a federal offender on parole concerns the administration of criminal justice;

(2)    that power is conferred on a Minister of State (the Attorney-General), rather than some statutory body (such as a state parole authority);

(3)    s 19ALA, while setting out a wide range of factors that the Attorney-General can take into account, significantly, does not limit the factors to which the Attorney-General can have regard;

(4)    the Crimes Act contains no process for how consideration of release on parole is to be undertaken. It is essentially a matter for the Attorney-General to determine a procedure that is reasonable and will avoid practical injustice or unfairness having regard to the circumstances of the particular case. What is required may vary having regard to what has already occurred and what is said or done during the process; and

(5)    when the Attorney-General refuses to release a federal offender on parole the Attorney-General must reconsider the decision within 12 months (there is no minimum period that must pass before the Attorney-General reconsiders a refusal).

And see Lodhi v Attorney-General (Cth) [2020] FCA 1383 at [6].

17    The Attorney-General submitted, and the applicant did not dispute, that the s 19ALA factors are not matters which are jurisdictional facts and the provision does not impose a duty upon the Attorney-General to consider them before he exercises the power. Nor does the provision provide any hierarchy of importance to any of the factors, rather they are matters which the Attorney-General may, in his discretion, consider in assessing whether to grant parole.

18    In that context I turn to the grounds of review.

Grounds of review

19    Although phrased differently, each of the grounds of review overlap, with each being premised on the proposition that the Attorney-General did not consider or give active intellectual consideration to the submissions filed by him and his solicitors. In summary, in ground 1 the failure to refer to those submissions in the Refusal Notice is said to give rise to the inference they were not considered resulting in procedural unfairness; in ground two the failure to refer to those submissions (and other matters) is said to give rise to the inference they were not considered, rendering the conclusion in the second paragraph of the Refusal Notice arbitrary and unreasonable; and ground three, the failure of the Refusal Notice to refer to those matters gives rise to the inference that they were not considered and is said to be an error of law based on s 19ALA. It follows that drawing the inference that the submissions were not considered is central to each ground.

20    Although each of the grounds of review is based on reasons in the Refusal Notice and what may be drawn from them, the applicant does not seek judicial review of the reasons appearing in the Refusal Notice itself: see e.g. Lodhi at [84] ff. There is no allegation that the Attorney-General failed to give adequate reasons, or to put it another way, that the reasons given in the Refusal Notice are inadequate.

21    Consideration of whether there is legal error, be it legal unreasonableness or denial of procedural fairness, the basis of the grounds in this case, generally depends on the statutory framework that confers on the Attorney-General the power to make decisions about parole for federal offenders. The statutory context is important for informing the administrative decision making principles and processes applicable to the decision under review: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [30]; Khazaal v Attorney-General (Cth) [2020] FCA 448 (Khazaal) at [53].

Ground 1: Breach of procedural fairness

Submissions

22    The applicant submitted that although the Attorney-General invited the applicant to make submissions, there was no reference in the Refusal Notice to the submissions made by the applicant’s solicitor or those made by the applicant himself. I note that although the ground of review and the written submissions rely on both the solicitor’s submission and that from the applicant himself, during the hearing counsel submitted that this ground specifically relied on the submissions of the solicitor having not been considered. In particular, it was submitted that there was no reference in the Refusal Notice to the submission that the safety of the community was best served by a release on parole, including release on parole with conditions. From that, it was submitted it was to be inferred that those submissions were not considered, relying on Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) at [46]. It was submitted that if the Attorney-General had considered these matters “it would at least have been mentioned in the reasons”. That failure or omission constituted a breach of the rules of natural justice which occurred in connection with the making of the decision.

23    The respondent submitted that to the extent this argument concerns some obligation that the reasons in the Refusal Notice should have exposed the Attorney-General’s mental processes, there is no such obligation: Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [29].

24    The respondent submitted that the argument is also not supported by a consideration of the chronology leading to the Refusal Decision, and the Departmental Submission itself. On 5 May 2020, a delegate of the Attorney-General refused to release Mr Stephens on parole. After that time, the applicant wrote to the Attorney-General’s Department on two occasions, 2 July 2020 and 12 August 2020, with those letters being before the Attorney-General as Attachment I in the Departmental Submission. The case analysis in Attachment C of the Departmental Submission, refers to those letters. Having regard to the particulars of the grounds of review, the applicant does not assert a denial of procedural fairness in relation to those letters. On 9 September 2020, the Attorney-General’s Department wrote to the applicant ‘to put him on notice that the nature and circumstances of his offending, as set out in the sentencing remarks, and comments made by the sentencing judge, may weigh against him being granted release on parole’ (Adverse Comments Letter). On 30 September 2020, the applicant’s solicitors provided submissions in response to the adverse comments letter, which appear as an attachment to the Departmental Submission. On the same date, the applicant himself provided submissions, which were an attachment to the Departmental Submission. The respondent submitted that the applicant does not complain that adverse matters were not put to him, or that he was not given an adequate opportunity to address those matters. The applicant does not assert the Case Analysis failed to set out his arguments.

25    The respondent submitted that the applicant’s reliance on Carrascalao at [46] does not assist him, and referred to the observations of the Full Court at [48]. The respondent submitted that to establish this ground the applicant’s submission ignores the Departmental Submission. The Case Analysis at Attachment C of the Departmental Submission addressed several factors in favour of, and against, releasing the applicant on parole, including community safety. The respondent submitted that it presented a balanced and detailed consideration of all the relevant factors. He submitted that there is no basis to conclude the Attorney-General did not consider the submissions made by the applicant or by his solicitors on his behalf.

26    In response, the applicant contended that the respondent has not addressed the issue raised, which was “whether it may reasonably be inferred from the reasons that consideration took place”, citing Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [34]. He contended that Carrascalao is applicable in this case. It was submitted that the Attorney-General did not cite the Departmental Submission in his Refusal Notice, nor incorporate any part of them or address any of the arguments in those submissions or the applicant’s solicitor’s submissions, including the specific submission by his solicitors that the protection of the community is best served by the applicant’s release to a supervised parole order which was not summarised in the Case Analysis. He submitted that had they been considered, it may have been expected that they would be addressed in the Attorney-General’s Refusal Notice.

Consideration

27    There is no dispute that the applicant was entitled to be afforded natural justice, or procedural fairness, in relation to the Refusal Decision: Khazaal at [50]-[70].

28    The applicant’s submission is dependent on an inference being drawn from the Attorney-General’s failure to refer to the applicant’s submission or that of his solicitors in his Refusal Decision, is that he did not consider those submissions, relying on Carrascalao at [46]. However, as the Full Court observed in Carrascalao at [48], “a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”.

29    Although there is not any challenge to the adequacy of the reasons given in the Refusal Notice, given the nature of the applicant’s submissions in this and the other grounds, it is necessary to consider the nature of a Refusal Notice in its statutory context. This was considered in Lodhi where Bromwich J addressed a ground of review which challenged the sparseness of a Refusal Notice. The Refusal Notice in that case is recited at [29]:

This order for refusal of parole has been made for the following reasons:

1.    I have considered the reasons put forward by you and your legal representatives, but I do not consider that you have established exceptional circumstances that would justify your release on parole at this time.

2.    Given the length of time that you have served in custody, I agree with the recommendation from Corrective Services NSW that you not be granted parole at this time and that you would be best prepared for release on parole by continuing your progression through minimum security classifications to provide a well-managed transition into the community and enable Corrective Services NSW to assess your compliance.

3.    Given the serious nature of your offending, the Australian Federal Police remains concerned about the potential threat you may pose to community safety if you are released on parole at this time.

30    The material before the Attorney-General in that matter is described at [25]-[28], and by Mr Lodhi as a “large volume of evidence” of which there was detailed consideration in the Departmental Submission.

31    His Honour referred to s 25D of the Acts Interpretation Act 1901 (Cth) and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf), as did the applicant in this case. Section 25D provides:

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

32    A relevantly similar provision to s 25D is s 430(1) of the Migration Act 1958 (Cth), which was considered in Yusuf. The applicant in this case referred in particular to [69]:

It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. ….

33    Relevantly, flowing from that passage, Bromwich J observed in Lodhi at [87]:

The s 25D obligation imposed on the Attorney-General did not require him to make any particular findings of fact, but rather to do no more than to set out any findings of fact that he did in fact make that he considered material to the decision not to make a parole order.

34    I note three further observations of Bromwich J. First, at [89], the question of whether the reasons more generally fall short of what is legally required also depends upon the statutory framework in which the decision is made. Second, at [90], reasons may be brief without being shown to be fatally flawed, with the focus required to be on the substance of what has been decided, including whether the real determinative issue has been exposed: see Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 (Roncevich) at [64]. Third, at [91], provisions such as s 25D of the Acts Interpretation Act, are designed to expose thought processes to scrutiny, but not to encourage a “fine tooth comb” reading of such reasons: see Roncevich at [64] and Lopez-Avila v K & S Freighters Pty Ltd [2015] FCA 962; (2015) 68 AAR 86 at [22]. Finally, and for completeness I observe that the ground of appeal was dismissed.

35    The contents of the Departmental Submission are described above. It not only included a case analysis in Attachment C which summarised the submissions from the applicant and his solicitor, which the respondent accurately describes as detailed, fair and balanced, it also contained inter alia, the original material which underlay that analysis. During submissions the applicant complained that two sentences of his solicitor’s submission, “[i]t would therefore be in the community’s interest that he be released so his rehabilitation can be maintained and reinforced. By contrast, there is no therapeutic benefit to his ongoing incarceration” are not repeated in the Case Analysis. That is the only complaint he makes about the content of that analysis. It may be accepted that those sentences are not recited as part of the summary of the applicant’s solicitor’s submission. That said, a proper reading of Attachment C and the analysis contained therein reflects that the protective nature of a parole order being granted to the applicant at that time is referred to and considered. The sentiment expressed in those sentences relied on by the applicant is addressed in the analysis: see paragraphs [53] and [58] of Attachment C. Moreover, as noted above, the Departmental Submission also included a copy of the applicant’s solicitor’s submission.

36    The Attorney-General had the material, with his notation of his conclusion being recorded by hand on the front of the document. The Departmental Submission contained draft reasons both for granting and refusing parole. The Refusal Notice that was issued by the Attorney-General has an additional paragraph to that in the draft presented to him. The obvious inference is that the additional paragraph was added by the Attorney-General as a result of active intellectual consideration of the material in the Departmental Submission. The first paragraph of the Refusal Notice identified the matters which the Attorney-General considered were relevant. That led to the finding in the second paragraph that he considered the threat to the community posed by the applicant’s release at this time outweighed the benefits parole would provide to assist in his rehabilitation and reintegration into the community. It reflects there has been a weighing process. Moreover, the Attorney-General’s decision to refuse parole, where the Department Submission recommended his release, tends to reflect an active consideration of material before him, including the applicant’s submissions. I appreciate that the second paragraph is the subject of the second ground of review, but for the reasons given below, I do not accept the applicant’s complaint about it or his characterisation as to what occurred.

37    There is no basis for the applicant’s contention that if the Attorney-General had considered those matters “it would at least have been mentioned in the reasons”.

38    When the Refusal Notice is considered in the context of the statutory regime, the requirement for reasons as described above, and the material before the Attorney-General, the applicant has not established that there is a proper basis to infer that the Attorney-General did not give active consideration to the matters complained of.

39    The applicant has not established this ground of review.

Ground 2: Improper exercise of power

Submissions

40    The applicant submitted that reaching the conclusion that the applicant’s release on parole posed a threat to community safety which outweighed the benefits of parole to assist in his rehabilitation, must logically involve the weighing of competing considerations. The applicant submitted there is no indication that the Attorney-General engaged in any such process of reasoning, or that he reviewed evidence or material relevant to those issues. It was submitted that in those circumstances, and for that reason, the conclusion can fairly be described as “arbitrary”. The applicant also submitted that the second paragraph of the Attorney-General’s decision was copied verbatim from the delegate’s decision dated 5 May 2020. It was submitted that paragraph in the delegate’s decision flowed reasonably from the finding that the applicant’s post release plans were not sufficiently detailed, and as a result he represented an unacceptable risk to society. In the Attorney-General’s decision the paragraph exists without context.

41    The respondent submitted that this ground, which is particularised as arising from unreasonableness, depends on the statutory framework that confers on the Attorney-General the power to make decisions about parole for federal offenders: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [63], was recently considered in this context in Lodhi. The respondent made submissions as to the statutory framework and the ‘decisional freedom’ of the Attorney-General citing Eden at [62]. The respondent submitted that two further propositions emerge from the authorities in this respect: first, within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness; and second, such a decision falls within the range of possible lawful outcomes of the exercise of the power: Eden at [62]. The respondent referred to the observation of Bromwich J in Lodhi at [43].

42    The respondent submitted that the applicant had not advanced any reason why the decision could be described as arbitrary, and that although it is understandable that the applicant is dissatisfied, care must be taken not to descend to a review of the merits: Eden at [59].

43    The respondent submitted that it is not arbitrary for the Attorney-General to have regard to matters, including: the nature and circumstances of the applicant’s offending; the comments of the sentencing Court; the applicant’s submissions (both by himself and by his solicitors) addressing those matters; the Attorney-General’s Department’s view that the “primary risk to the community is that Mr Stephens suffers from depression, loneliness, or anxiety and isolates himself”; and that that risk could be mitigated completely by Mr Stephens remaining in prison, to decide to refuse to release Mr Stephens on parole. This, it was submitted, was an outcome within the Attorney-General’s ‘decisional freedom’, and was reflected in the Refusal Notice.

44    In reply the applicant contended that the respondent’s submission missed the point. He accepted the consideration of the matters referred to would not be arbitrary but the argument is that in the second paragraph the Attorney-General reached a conclusion about the weight that should be given to competing considerations without first engaging in a process of weighing those considerations.

Consideration

45    It was not contended by the applicant that the conclusion to refuse parole was not open. So much was acknowledged by the applicant during the course of the oral argument. Rather, the applicant submitted that it was not open on the reasons given in the Refusal Notice. He submitted that there is a lack of reasoning in relation to paragraph two, without which, he contended, the conclusion in that paragraph is arbitrary and unreasonable. As is apparent, this ground is based on the premise that the conclusion in that paragraph about the weight that should be given to competing considerations was reached without engaging in a process of weighing those considerations.

46    In Eden the Full Court (Allsop CJ, Griffiths and Wigney JJ) considered the question of legal unreasonableness in the context of a visa cancellation. In summarising the principles described in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, their Honours observed that the concept of legal unreasonableness concerns the lawful exercise of power: [58]. The Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory, it does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: [59]. On the topic of decisional freedom in reaching a particular result, provided a decision challenged as to the result falls within the “range of possible lawful outcomes” it will not be legally unreasonable: [62]. The evaluative task on judicial review concerns the nature and quality of the decision in the context of the subject matter, scope and purpose of the power that has been exercised, informed by the common principles and values concerning the reasonableness of decision-making, and ordinarily paying close attention to the evidence or other material that was before the decision-maker: [63]. If the reasons given provide an evident and intelligible justification it is unlikely the decision will be legally unreasonable, although that does not necessarily mean that the identification of specific error is required: [64]. However, if the decision or its justification are outweighed by findings that the decision was outside the bounds of legal reasonableness or the range of possible lawful outcomes, legal unreasonableness may still be made out: [64].

47    As explained in Eden at [62]-[63]:

[62] Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion: Li at 351[29] (French CJ), 363[66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at 375[105] (Gageler J); Stretton at [11] (Allsop CJ).

[63] Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at 349[24] (French CJ), 363[67]-364[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J).

48    As to the role of this Court, in Lodhi a decision relating to the same statutory regime, Bromwich J observed at [43] that:

….the Attorney-General’s role was to make the parole decision, and the role of this Court is to ensure that that was carried out within the proper exercise of the power bestowed, but not to second-guess the ultimate decision. A judge’s personal view of the merits of the decision is irrelevant. Concepts such as fairness and reasonableness have a more confined meaning and operation than used in more general settings, such as making findings on the merits of a particular case, or asserting what those findings should be. It is not part of this Court’s function even to consider whether parole should, or should not, have been granted to Mr Lodhi.

49    The applicant’s submission that the decision is arbitrary is based on the assertion that paragraph two was taken verbatim from the delegate’s decision for refusal in May 2020, but without the context in which it is was used.

50    The May 2020 decision was as follows:

The order for refusal of parole has been made for the following reasons:

1.     I am concerned that your current post-release plans are not sufficiently detailed and may expose you to your identified reoffending risk factors, including isolation and loneliness, which previously resulted in you using child exploitation material as a coping mechanism. I consider that this exposes the community to an unacceptable risk.

2.    I note the purpose of parole as set out in paragraphs 19AK(a), (b) and (c) of the Crimes Act. I consider that the threat to the community safety posed by your release on parole at this time outweighs the benefits which parole would provide to assist you in your rehabilitation and reintegration into the community.

51    There is nothing particular in the terminology used in paragraph two that would render or confine the use of such phrases to the scenario in the May 2020 decision.

52    The second paragraph in the Refusal Notice cannot be considered in isolation, but must be read with the first paragraph. Properly considered, the second paragraph can be seen as an obvious and logical consequence that flows from the first paragraph. I do not accept the applicant’s submission to the contrary. There is no proper basis to conclude that the paragragh does other than reflect the conclusion in relation to this assessment of the application for parole.

53    Aligned with that submission is the assertion that there is no context for the second paragraph because the Attorney-General had to “look at the threat to the community safety, he has got to look at the current and future position which would involve looking at rehabilitative efforts and the evidence before him as to what those efforts were going into the future”. First, the Attorney-General had the Departmental Submission before him, and there is no basis to suggest other than he gave active intellectual consideration to its contents. As I concluded in respect to the first ground, the applicant has not established that the Attorney-General did not give active intellectual consideration to those matters. It was not arbitrary to consider the content of Departmental Submission. Second, the applicant’s submission on this ground presupposes there was no such consideration. The terms of the paragraph do not support that contention, but rather reflect that a weighing proceed occurred. The argument here seems to be directed at the sufficiency of detail in the Refusal Decision in a context where its adequacy is not challenged. Third, this is also in a context where applicant accepted, that as a general proposition, a person could conclude based on the prior conduct of an offender, the nature of the offending and the circumstances in which offences were committed, that the person poses a threat to community safety if released on parole and that threat outweighs any benefit which parole might provide to the offender.

54    The outcome is within the Attorney-General’s “decisional freedom”. The applicant has not established that the Refusal Notice lacks reasoning or that the conclusion in paragraph two is arbitrary and unreasonable.

55    The applicant has not established this ground.

Ground 3: Error of law

Submissions

56    This ground is based on s 19ALA(1), that 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. This is said to give the Attorney-General an unfettered discretion as to which factors may be considered in making a decision. The applicant submitted an issue arises as to how ss 19AKA, 19AL and 19ALA interact, and whether, in light of that interaction, there are any procedural requirements placed on the Attorney-General.

57    The applicant submitted that there was considerable information in this matter directly relevant to the matters listed in s 19ALA, including his and his solicitor’s submissions, a very detailed and tightly argued Case Analysis which recommended release on parole subject to extensive reporting conditions, a parole report dated 3 September 2020 and a “Sexual Offending Treatment Program” completion report dated 7 November 2019. He submitted that there is no indication that any of this information was considered to enable the Attorney-General to decide whether to have “regard to” the s 19ALA factors in making his decision. The applicant submitted therefore, the Attorney-General failed to undertake the task required of him by s 19ALA read with s 19AKA. That is an error of law within the meaning of s 5(1)(f) of the AD(JR) Act.

58    The respondent submitted that this overlapped with grounds one and two. The respondent submitted that the Case Analysis reveals that relevant matters, including those relevant matters appearing in s 19ALA, were considered. The case analysis contained a considered and detailed analysis of the factors in favour for, and against, release on parole. It was submitted that the Case Analysis was fair, because the Attorney-General’s Department recommended the applicant be released on parole, but that does not mean the Attorney-General’s decision not to release the applicant on parole was somehow unreasonable. The Attorney-General’s decision to refuse to release Mr Stephens on parole tends to demonstrate an active consideration of all factors, and was plainly within the “range of permissible outcomes” reflected in the Departmental Submission. It reflects an outcome about which minds may differ, but that was nevertheless reached by a lawful administrative decision making process.

59    In reply the applicant submitted that there was neither evidence nor any indication that the Attorney-General considered the Case Analysis.

Consideration

60    As noted above, the applicant accepted that the factors in s 19ALA cannot be elevated to jurisdictional facts. Therefore, failing to have regard to them cannot be a jurisdictional error.

61    In any event, all the matters in s 19ALA which were relevant were contained in the material accompanying the Departmental Submission, and were considered in the Case Analysis. That proposition was not disputed, and apart from the two sentences raised by the applicant which are not in the Case Analysis referred to above at [8], no complaint is made of that analysis or the Departmental Submission more generally.

62    Contrary to the applicant’s contention, there is no proper basis to suggest that the Attorney-General did not know or was not aware of the material before him which related to the s 19ALA factors. As addressed in the previous grounds, the applicant has not established that the Attorney-General did not give active intellectual consideration to the material.

63    As the respondent correctly submitted, it does not follow that because the Attorney-General’s Department recommended that the applicant be released on parole, that the Attorney- General’s decision not to release the applicant on parole was somehow unreasonable. As noted above, in that context, the refusal to grant parole tends to suggest an active intellectual consideration of the all the factors. The applicant has not established otherwise. It is an outcome within the “range of permissible outcomes” reflected in the Departmental Submission.

64    The applicant has not established this ground.

Conclusion

65    As the applicant has not established any of the grounds or review it follows that the application is dismissed, with costs.

Associate:

Dated:    11 March 2021