Federal Court of Australia

Keliher v Attorney-General of the Commonwealth of Australia [2021] FCA 1641

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be amended to Attorney-General of the Commonwealth of Australia.

2.    The application be dismissed.

3.    The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE AND REVISED FROM TRANSCRIPT)

RANGIAH J:

1    The applicant is imprisoned under a federal sentence of imprisonment. On 3 September 2021, the respondent made a decision under s 19AL(1) of the Crimes Act 1914 (Cth) (the Crimes Act) refusing to release the applicant on parole.

2    The applicant has brought an application for judicial review of the respondent’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The grounds of the amended originating application are, relevantly, as follows.

1.     The respondent erred in law in failing to consider, in the sense of directing an active intellectual process towards, submissions made by the applicant’s solicitor and a report from a forensic psychologist, Dr Bruce Hamilton which together encapsulated the applicant’s case to be granted parole.

Particulars

(a)     Failure to consider the primary submission advanced by the applicant’s solicitor, supported by Dr Hamilton’s report, which was that release of the applicant on parole, subject to conditions, would aid his rehabilitation and reduce his risk to the community.

(b)     Failure to consider the submission that there was nothing further that the applicant could do in custody to reduce his risk to the community or advance his rehabilitation.

2.     The respondent breached the requirements of natural justice/procedural fairness in that she failed to consider, in the sense of directing an active intellectual process towards submissions made by the applicant’s solicitor and a report from a forensic psychologist, Dr Bruce Hamilton which encapsulated the applicant’s case to be granted parole.

Particulars

(c)     Failure to consider the primary submission advanced by the applicant’s solicitor, supported by Dr Hamilton’s report, which was that release of the applicant on parole, subject to conditions, would aid his rehabilitation and reduce his risk to the community.

(d)     Failure to consider the submission that there was nothing further that the applicant could do in custody to reduce his risk to the community or advance his rehabilitation.

…

4.     In the alternative to grounds 1 and 2 above, the respondent failed to give proper or adequate reasons for her decision and thus failed to comply with s. 19AL(2) of the Crimes Act, 1914 (Cwth).

Particulars

(a)     The respondent’s reasons failed to respond to and engage with submissions made by the applicant’s solicitor and a report from a forensic psychologist, Dr Bruce Hamilton which encapsulated the applicant’s case to be granted parole.

5.     The respondent’s decision was affected by legal unreasonableness.

Particulars

(a)     The respondent ignored the expert evidence of Dr Hamilton, in favour of her lay opinion as to the following matters,

(i)    Whether the applicant’s adherence to his stance that his interest in child exploitation material was relevant to his treatment and ongoing management.

(ii)     Whether the supervision and monitoring that he required was best completed in the community.

3    On 8 December 2017, the Supreme Court of Queensland sentenced the applicant to seven-and- a-half years’ imprisonment for using a carriage service to make child pornography on three or more occasions, contrary to s 474.24A(1) of the Criminal Code Act 1995 (Cth). The term of imprisonment will expire on 18 September 2024.

4    On 9 July 2021, the Attorney-General’s Department wrote to the applicant setting out a number of considerations relevant to a decision as to whether to release him on parole and invited his comment.

5    The applicant’s solicitors provided undated written submissions in response. The submissions enclosed a report of a psychologist, Dr Bruce Hamilton. Those submissions stated, inter alia:

3.    Our primary submission is that it is in the interests of community safety that Mr Keliher be granted parole subject to conditions. This is because releasing him on parole is likely to assist him to adjust to lawful community life (s. 19ALA(1)(k) Crimes Act 1914 (Cth) (the Act)), and thus reduce the risk of his reoffending. The facts, evidence and reasoning leading to that submission are developed below, whilst at the same time dealing with the CPO’s adverse comments letter.

…

19.     It is also suggested Mr Keliher’s continued stance undermines his efforts at rehabilitation, his remorse and his insight. This is a flawed proposition which is not supported by those who have treated and examined him (developed further below). Mr Keliher has admitted to serious offending consistent with the police facts. He has not sought to minimise the serious nature of his crimes or justify his actions. He has been punished for his offending. He has voluntarily received such treatment as is available in prison. There is no rational connection between his denying having offended at a particular time (for which he was not charged, let alone convicted), and the sincerity of his rehabilitative efforts as to the crimes for which he was convicted.

…

33.     Mr Keliher has completed two sexual offending programs in custody, being the Getting Started: Preparatory Program (GSPP) and the Medium Intensity Sexual Offending Program (MISOP). The latter involved some forty sessions of group therapy over a six month period.

34.     Copies of both completion reports are before the CPO. His participation in MISOP was generally defined as “improving over time”, “good” or “excellent”. It appears he gradually developed an increased understanding and insight of victim impacts, his risk factors and the longer-term pattern of behaviours and distorted thinking that aided his offending. The report author noted he displayed genuine shame for his conduct – one such example was described as a “significant and positive shift”, namely recognition (and shame) that he derived pleasure from the dismissing and self-serving nature of perpetrators shown in the CEM.

…

36.     The benefits of this treatment cannot be discounted. Dr Bruce Hamilton (psychologist), who assessed Mr Keliher for the sake of an independent risk assessment, concluded this treatment afforded him “increased insight to the precipitants of his offending, including the distorted thinking and permission statements that maintained his engagement”.

…

38.     A final point on this is that the MISOP facilitators recommended he undertake the Sexual Offending Maintenance Program (SOMP) in the community, as well as one-on-one therapy for sexual deviancy. It was also emphasised that he required supervision and support to manage any isolative behaviours or relapse to avoidant coping strategies.

…

39.     It is acknowledged that Mr Keliher declined to participate in SOMP in custody. His reasons for doing so are consistent with the recommendation of the MISOP facilitators. The support letter of Dr Morgan (which pre-dates the adverse comments letter) corroborates his claim to have made arrangements to engage in this on his release.

40.     We submit it is in the interests of his rehabilitation, and therefore community safety, that he engage in the SOMP in a community setting and in conjunction with other recommended treatment (discussed below). That is because this program is intended as a mechanism for offenders to consolidate treatment gains already derived from MISOP while being actively tested by their risk factors. This is specifically pertinent to Mr Keliher.

41.     Moreover, it is unclear what benefits he would derive from the SOMP at this time given his recent completion of MISOP. Arguably, his progress could stagnate should he undertake SOMP in custody without any material change in his circumstances. Accordingly, it cannot be said that his preference to do SOMP on his release is reflective of a “poor attitude” towards his rehabilitation. To the contrary, he is simply following the advice of the experts who have treated him.

…

54.     Mr Keliher is an offender whose release to parole has been endorsed by both QCS and Dr Hamilton...

55.     Dr Hamilton’s report makes abundantly clear that he is aware Mr Keliher’s stance is at odds with the finding of the sentencing judge. He nevertheless opines, “regardless of the accuracy of these inferences, from a treatment perspective and ongoing management, the recommendations are the same”. It should also be noted that the actuarial risk assessments he employed do not appear influenced by acceptance of guilt (or denial of aspects of offending). In other words, such a stance is not associated with an increased risk of recidivism on these validated scales.

…

57.     His conclusion as to why he should be granted parole is as follows,

“Parole is recommended for Mr Keliher. This recommendation is made as [he] has served the recommended non-parole period, engaged and completed treatment programs whilst in custody and is willing to re-engage in treatment with a psychologist upon release. He has one prior court outcome related to drink driving and is assessed as a low risk of future offending of both a sexual and non sexual nature. The identified areas for monitoring can be pursued in a community setting”.

…

58.     The adverse comments letter notes Mr Keliher has outstanding treatment needs in relation to sexual deviancy (based on the MISOP completion report). The same recommendation is made by Dr Hamilton.

59.     It is our understanding that such needs cannot be met or targeted in the sexual offending programs in custody, including SOMP. As much as is confirmed by Dr Hamilton and the MISOP program facilitators, who recommended he engage with a psychologist to address this issue. We can seek written evidence of this from QCS should CPO deem it necessary.

60.     It necessarily follows that Mr Keliher cannot access the proposed treatment in a custodial setting. He accepts the recommendations that have been made and remains open and willing to engage in and finance the treatment in the community. He is agreeable to doing so with Dr Morgan or alternately a psychologist of the CPO’s choosing. He is also agreeable to information sharing and/or treatment progress reports being disclosed to his parole officer and/or CPO as required.

…

62.     In these circumstances, the proposed treatment requires Mr Keliher’s release to parole. It would enable him to make further rehabilitative gains consistent with the recommendations of Dr Hamilton and MISOP. By contrast, his ongoing imprisonment can only be understood as a barrier to this treatment.

…

64.     Crucially, there is no further therapeutic progress he can make in a custodial setting. Regardless of whether his stance as to the duration of his involvement in CEM is accepted, there is consensus from the material that he would benefit from individual therapy targeting sexual deviancy. This can only occur in a community setting. He has already made arrangements to participate in this.

65.     There is also consensus that both he and the community would benefit from monitoring of his behaviour post-release, including his internet use and any display of avoidant or isolative behaviours. This again can only be achieved if he is released to a supervised parole order.

66.     It is protective of the community that Mr Keliher undergo treatment whilst subject to supervision. The alternative, having him serve out his sentence and be released without a parole order, reduces the prospects of his rehabilitation, thus posing a greater threat to the community.

(Underlining in the original.)

6    On 1 September 2021, the Department provided a submission to the respondent concerning whether the applicant should be granted parole. The covering page contained a recommendation that the respondent refuse to grant parole. That was followed by the notation: “Approved / Not Approved / Discuss”. The respondent could circle whichever option she chose.

7    The covering page also recorded a recommendation that the respondent sign the draft refusal notice at Attachment A informing the applicant of the decision and advising him that he would be considered for release on parole within 12 months of the decision. The respondent could choose from, “Signed / Not Signed / Discuss”.

8    The covering page also had a series of paragraphs under the heading “Key Issues” describing the offences and sentences, and stating that the Department recommended that the applicant be refused parole as his release on parole at that time would not benefit his rehabilitation and would pose a risk to the safety of the community.

9    The submission also contained 15 attachments, including the draft refusal notice, the Department’s case analysis, the sentencing remarks, a decision of the Queensland Civil and Administrative Tribunal, a submission made by the applicant personally, and the submissions and other material provided by his solicitors.

10    On 3 July 2021, the respondent circled the option to accept the Department’s recommendation to refuse parole. The respondent signed the draft refusal notice without alteration. The refusal notice stated that the respondent had refused to release the applicant on parole, and went on to provide the following reasons for the decision:

In making my decision, I have taken into account submissions made by you and on your behalf, and the supporting material that you provided to my department.

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

1.     I consider that you lack insight into your offending. The sentencing judge stated that she did not ‘expect you will ever lose your sexual interest in children’ and that it is ‘a matter of whether or not you can learn to control your behaviour’, and that unless ‘you are sincere in attempts to do so, you will never achieve this control. that your interest in child exploitation material’. It is apparent from your submissions and the report from Mr Bruce Hamilton and the Medium Intensity Sexual Offender Program (MISOP), that you consider that your interest in child exploitation material is strictly confined to the offending period. It is further reported by the MISOP facilitators that, given this stance, you have not developed sufficient strategies to mitigate the risks posed by your deviant sexual interest in children and this remained an outstanding treatment need. I therefore consider that your release on parole at this time poses an unacceptable risk to the safety of the community.

2.     I consider that your refusal to engage in the Sexual Offending Maintenance Program when offered the opportunity on 6 January 2021 is indicative of what the sentencing judge described as your ‘cynical attitude’ toward rehabilitation. I also consider that your stance that your interest in child exploitation material is confined only to the offending period represents a barrier to you making substantive rehabilitation progress in relation to your rehabilitative needs in relation to your identified outstanding rehabilitative need and risk of deviant sexual interest in children. I therefore consider that your release on parole at this time will not benefit your rehabilitation, and poses a risk to the safety of the community.

3.     I am concerned that you are unlikely to comply with parole conditions on the basis that you have demonstrated a pattern of dishonesty since your arrest. In coming to this view, I have regard to comments by the sentencing judge that:

... you have taken a cynical attitude to these proceedings. When you thought the Crown only knew of a few of your boasting statements, you thought you would pass them off as untrue, that is, you thought you would take advantage of the Crown’s position and dishonestly minimise the extent of your sexual deviance in Court proceedings. Even when it became apparent you could not give evidence, you still persisted in instructing your counsel that the possession and distribution which comprised the offending were aberrant behaviour for you.

…

...you were dishonest with Dr Morgan and you told him your offending was “substantially out of character”, you told him it was brought about by alcohol abuse in the context of a divorce. You told him that you had ceased to abuse alcohol and felt stable in your mood. He accepted what you said and concluded that the risk of your reoffending was “negligible”. He based this in part on your remorse as expressed to him and his acceptance of the behaviour as being aberrant because that is what you told him. I do not accept his conclusion about reoffending because it is based on these false premises.

I also have regard to the findings of the Queensland Civil and Administrative Tribunal that:

This review of what actually occurred at the sentence hearing not only causes [your] particular deposition before this Tribunal to ring hollow, it reinforces the relevant and fundamental character flaws which compel a conclusion that [you are] not fit for membership of the profession. Apart from a bare denial, [you have] given no explanation of the material which was accepted as demonstrating [your] lengthy engagement in child exploitation material. All of this erodes any confidence that the Court, other practitioners, or clients might have in dealing with [you].

I therefore consider that your release on parole at this time poses an unacceptable risk to the safety of the community.

4.     Noting my views that you lack insight into your offending and that you are unlikely to comply with parole conditions, I have regard to the nature and circumstances of your offending, which the sentencing judge described as follows.

...The type of images you enjoyed looking at showed children being humiliated – covered with semen – or children being hurt, doubly penetrated. There are themes in the material itself and in the messages you posted that the children enjoy what is happening and themes that the children encourage what is happening. You lack empathy for the children the subject of this material. You lacked empathy for the two real people associated with count 2.

…

You had sophisticated equipment and sophisticated systems to avoid detection. You had a large TV screen to set up to watch pornography on. You had a great deal of material. You had an interest in girls who were prepubescent and an interest in pornography which showed them humiliated and physically hurt. My findings, consistent with the statement of Mr Joch, is that you had had these interests for 16 years. You did not just look at this material when you were drunk or depressed in the wake of a marriage breakup. You posted it online and you did so as carefully as you could.

I consider that, given the nature and circumstances of your offending, your release on parole at this time poses an unacceptable risk to the safety of the community.

Under subsection 19AL(2)(b) of the Crimes Act, I advise that I will reconsider you for release on parole within 12 months of this notice being signed.

11    In a recent judgment, Pulini v Assistant Minister to the Attorney-General of the Commonwealth of Australia [2021] FCA 1543, I summarised the relevant legislative scheme and the applicable principles. In the passages that follow, I will repeat much of that summary.

12    Under s 19AB(1) of the Crimes Act, a Court must generally fix a non-parole period if it imposes a “federal sentence” exceeding three years. A “federal sentence” is, under s 16, a sentence imposed for an offence against a law of the Commonwealth.

13    The purposes of parole are described in s 19AKA of the Crimes Act as follows:

19AKA    Purposes of parole

The purposes of parole are the following:

(a)    the protection of the community;

(b)    the rehabilitation of the offender;

(c)    the reintegration of the offender into the community.

14    Section 19AL(1) requires that 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)”.

15    Section 19AL(2) provides:

(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.

…

16    Section 19ALA sets out a non-exhaustive list of matters to which the Attorney-General “may have regard” in making a decision under s 19AL, as follows:

(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.

17    In Lodhi v Attorney-General (Cth) [2020] FCA 1383, Bromwich J at [6] accepted the following propositions:

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

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

(c)    While s 19AL(1) requires the Attorney-General to make a decision in relation to parole, the Attorney-General has a discretion to grant or refuse parole.

(d)    Section 19ALA, while setting out a wide range of factors that the Attorney-General can take into account, does not make consideration of any of the factors mandatory and – significantly – does not limit the factors to which the Attorney-General can have regard.

(e)    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.

(f)    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).

18    The applicant’s first ground alleges that the respondent failed to consider, in the sense of directing an active intellectual process towards, submissions made by the applicant’s solicitors, supported by the report of Dr Hamilton, that:

(a)    release of the applicant on parole, subject to conditions, would aid the applicant’s rehabilitation and reduce his risk to the community; and

(b)    there was nothing further that the applicant could do in custody to reduce his risk to the community or advance his rehabilitation.

19    The applicant’s second ground asserts that the respondent’s failure to consider these two submissions was a breach of the rules of natural justice. The first and second grounds can be considered together.

20    Generally, where there is a duty to act judicially, “coupled with that duty is the duty to consider the case put”: Re The Australian Bank Employees Union; Ex Parte Citicorp Australia Limited (1989) 167 CLR 513 at 519; Leggett v Queensland Parole Board [2012] QSC 121 at [25]. The duty to consider the case put forward by a party at least requires the decision-maker to consider any “substantial and clearly articulated argument” that is advanced by the party: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [13]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24]. Similarly, where a decision-maker “makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63].

21    The obligation to “consider” a submission requires the decision-maker to engage in an active intellectual process with reference to the submission: see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [35], [43]-[48]; Minister for Home Affairs v Omar (2019) 272 FCR 589 at [36].

22    In Duxerty v Minister for Justice and Customs [2002] FCA 1518; (2002) 136 A Crim R 373 at [22] and Khazaal v Attorney-General [2020] FCA 448 at [2], it was held that the rules of natural justice apply to a parole decision made under s 19AL(2).

23    It should be accepted that the applicant’s solicitors submitted that his release on parole, subject to conditions, would aid his rehabilitation and reduce his risk to the community. That submission was directly made at paragraphs 3 and 66 of their written submissions and was supported by detailed reasoning in support of that proposition.

24    The submissions of the applicant’s solicitors did not directly or clearly assert that there was nothing further the applicant could do in custody to reduce his risk to the community or advance his rehabilitation. The submissions asserted that he had completed the courses offered to him other than the Sexual Offending Maintenance Program (SOMP). The submissions acknowledged that the applicant had declined to participate in the SOMP while in custody and asserted that he had made arrangements to engage in that program upon his release. Accordingly, there was no clearly articulated submission that there was nothing further he could do in custody to reduce his risk to the community or advance his rehabilitation. It may be noted that although the submissions asserted at one point that, “[h]e has voluntarily received such treatment as is available in prison”, that was clearly inconsistent with the concession that he had not engaged in the SOMP.

25    The applicant submits that the respondent’s reasons demonstrate that the respondent did not consider or engage in an active intellectual process with the submission that release of the applicant on parole, subject to conditions, would aid his rehabilitation and reduce his risk to the community. The applicant submits that the respondent’s reasons for the decision contain no specific reference to this submission, and there is no other indication that the respondent considered the submission or the relevant aspects of Dr Hamilton’s report.

26    However, the respondent’s reasons expressly stated that she had taken into account the submissions made on the applicant’s behalf and the supporting material. Further, the respondent specifically referred to those submissions and the report of Dr Hamilton in the body of the reasons, in the context of considering whether the applicant lacked insight into his offending. There is no adequate reason to doubt the respondent’s assertion that she had taken into account the submissions made by the applicant’s solicitors and the other material provided.

27    The respondent rejected the applicant’s claim that his interest in child exploitation material was confined to the period of the offences, determining that this claim demonstrated his lack of insight and was a barrier to his making substantive rehabilitative progress. The respondent concluded, “I therefore consider that your release on parole at this time will not benefit your rehabilitation and poses a risk to the safety of the community”. That reflects clear consideration and rejection of the submission that release of the applicant on parole would aid his rehabilitation and reduce his risk to the community.

28    I have rejected the allegation that the applicant’s solicitors made any clearly articulated submissions that there was nothing further the applicant could do in custody to reduce his risk to the community or advance his rehabilitation. In any event, the respondent rejected the applicant’s submission that there was a valid basis for the applicant’s refusal to engage in the SOMP, describing that refusal as indicative of the applicant’s cynical attitude towards rehabilitation. Accordingly, the respondent considered the applicant’s solicitors’ submissions concerning the applicant’s failure to engage in that program while in custody.

29    For these reasons, I reject the applicant’s first and second grounds.

30    The applicant abandoned his third ground of review.

31    The applicant’s fourth ground asserts that the respondent failed to give proper or adequate reasons for her decision, and thus failed to comply with s 19AL(2) of the Crimes Act. In particular, it is asserted that the respondent’s reasons failed to engage with the submissions made by the applicant’s solicitors and the report from Dr Hamilton which encapsulated the applicant’s case to be granted parole.

32    The applicant submits that the respondent’s reasons must be adequate to enable a Court to see whether the decision does or does not involve any error of law, relying upon Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [54]. That requirement is submitted to be, “of universal application”.

33    However, the content and context of the requirement under s 19AL(2)(a)(ii) of the Crimes Act for the provision of a statement of reasons for refusal of parole must be considered. That provision must be read with s 25D of the Acts Interpretation Act 1901 (Cth), which 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.

34    In Lodhi, Bromwich J observed at [86] that s 25D of the Acts Interpretation Act is in relevantly similar terms to s 430(1) of the Migration Act 1958 (Cth). Section 430(1) was considered in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. Applying Yusuf, Bromwich J held at [87] that s 25D does not require the Attorney-General to make any particular findings of fact, but, rather, to set out any findings of fact that were made and considered by the Attorney-General to be material to the decision to refuse to make a parole order. In Pulini at [56], I agreed with Bromwich J’s analysis. I adhere to that view.

35    The context of the statutory requirement to provide reasons considered in Wingfoot is quite different to the context of s 19AL(2)(a)(ii) of the Crimes Act. The applicant’s complaint is that the respondent’s reasons give no indication as to what the respondent made of the applicant’s solicitors’ submissions or Dr Hamilton’s report. However, the respondent was not required to give specific reasons for failing to accept particular aspects of the submissions or the report. The respondent was only required to set out the findings of fact that were made and which were considered to be material to the decision. The fourth ground must be rejected.

36    The applicant’s fifth ground is that the respondent’s decision was legally unreasonable. The applicant made the following submissions:

The Attorney-General’s statement of reasons at TB 225 [2] contains the following,

“I also consider that your stance that your interest in child exploitation material is confined only to the offending period represents a barrier to you making substantive rehabilitation progress in relation to your rehabilitative needs in relation to your identified outstanding rehabilitation need and risk of deviant sexual interest in children.”

In contrast, Dr Hamilton’s opinion was that (at TB 191 [6.16]),

There is some evidence, and certainly it was inferred and accepted as truth by the sentencing Judge, Mr Keliher has a longer history of using Child Exploitation Material than a 12-month period to which the offences pertain. Regardless of the accuracy of these inferences, from a treatment perspective and ongoing management, the recommendations are the same. Mr Keliher will benefit from monitoring the risk factors that precipitated his offending, particularly including any re-emergence or persistence of deviant arousal to illicit pornography.

Dr Hamilton continued, at TB 193 [7.2],

A Parole period with supervision and support will likely assist in further mitigation of the low risk that he poses. It would provide an opportunity for Mr Keliher to be subject to supervision whilst engaging in further treatment and or required monitoring regarding deviant sexual arousal, an area that has not been specifically targeted and is arguably best completed in the community.

Finally, there are his findings, premised on actuarial risk assessments, that there was no evidence of problems with planning, treatment or supervision of Mr Keliher on parole (TB 189 [6.6 read with TB 191 [6.13]) and that he presents as being open to treatment (TB 192 [6.19]).

37    The applicant submits that error is shown when an administrative decision-maker bases her conclusion on her own view of a matter which requires evidence, relying upon Rodriguez v Telstra Corporation Ltd [2002] FCA 30; (2002) 66 ALD 579 at [25]-[26] and Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515. The applicant submits that it was simply not rational for the respondent to prefer her own lay opinion to that of an expert.

38    The applicant’s submission goes close to saying that it is not open to a statutory decision-maker to reach a conclusion contrary to that of an expert. Such a proposition cannot be accepted. It would effectively abrogate to an expert the respondent’s statutory obligation to make a parole decision.

39    In any event, there was a gap in Dr Hamilton’s report. It is apparent that the respondent’s decision was influenced by the applicant’s refusal to acknowledge that he had engaged with child exploitation material for many years. The respondent found that this had not been merely a short period of aberrant conduct. The respondent considered that this demonstrated a lack of insight and represented a barrier to the applicant’s rehabilitation. Dr Hamilton acknowledged that the applicant’s denial of a longstanding interest in child exploitation material was inconsistent with the findings made by the sentencing judge. Dr Hamilton went on to conclude that the applicant had a low risk of reoffending, but failed to examine whether the applicant’s denial of a longstanding problem was relevant to assessment of the risk of recidivism. That matter was simply not addressed by Dr Hamilton. The respondent considered that the applicant’s denial, contrary to the findings of the sentencing judge, affected the risk of recidivism. That conclusion was, in my opinion, well within the area of decisional freedom of the respondent.

40    Further, Dr Hamilton’s opinion was not the only factor potentially relevant to the respondent’s conclusion that the applicant’s release on parole would pose a risk to the safety of the community. There were a host of other factors, including the applicant’s refusal to engage in the SOMP while in custody, the sentencing judge’s remarks, the applicant’s pattern of dishonesty following his arrest, and the nature of the offending itself. The decision was rational, and was open to the respondent. The applicant’s fifth ground of the application must be rejected.

41    The application will be dismissed. The applicant should pay the respondent’s costs of the proceeding.

Associate:    

Dated:    23 December 2021