Federal Court of Australia
Roberts v Attorney-General (Cth)  FCA 574
DATE OF ORDER:
18 MAY 2022
THE COURT ORDERS THAT:
1. The amended originating application be dismissed with costs.
A INTRODUCTION AND BACKGROUND
1 Before the Court is an application for judicial review of a decision of the respondent (Attorney-General) to refuse to release the applicant, Mr Gavin Roberts, from a New South Wales prison on parole.
2 In April 2019, the District Court of New South Wales convicted Mr Roberts of the following Commonwealth offences (R v Roberts  NSWDC 282):
(1) a charge under the Commonwealth Criminal Code, contained in the Schedule to the Criminal Code Act 1995 (Cth) (Criminal Code), of accessing child pornography pursuant to s 474.19(1);
(2) a charge under the Criminal Code of transmitting child pornography pursuant to s 474.19(1); and
(3) a charge under the Criminal Code for an aggravated offence pursuant to s 474.24A.
3 Mr Roberts was sentenced to a total term of four years and six months’ imprisonment, with a single non-parole period of two years and three months, commencing in October 2019 and expiring in January 2022. Mr Roberts’ Commonwealth head sentence will expire in October 2023.
4 The Court also convicted Mr Roberts of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), and sentenced him to a fixed term of 18 months’ imprisonment, commencing in April 2019 and expiring in October 2020.
5 In January 2022, the Attorney-General refused Mr Roberts’ release on parole pursuant to s 19AL of the Crimes Act 1914 (Cth) (Crimes Act), notifying Mr Roberts of her decision and reasons in writing (Refusal Notice).
6 Mr Roberts remains in custody in New South Wales.
B GROUNDS OF JUDICIAL REVIEW
7 By way of originating application, Mr Roberts set out three grounds of judicial review, each with respect to the Attorney-General’s treatment of submissions made by his solicitor and supporting materials, including a pre-release report prepared by Corrective Services New South Wales (CSNSW). Mr Roberts now presses the following two of the original three grounds:
(1) an error of law; namely, a failure to consider the material, in the sense of directing an active intellectual process towards it, contrary to s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act); and
(2) a breach of the rules of natural justice; namely, a failure to consider the material, in the sense of directing an active intellectual process towards it, contrary to s 5(1)(a) of the ADJR Act.
8 In his written submissions, Mr Roberts raised a new ground of judicial review. Leave to rely upon an amended originating application reflecting this new contention and a further, fourth ground was sought at the hearing. The Attorney-General did not oppose such leave being granted. In the light of this, I granted Mr Roberts leave to rely upon the amended originating application.
9 The third ground is that Mr Roberts was not given an opportunity to respond to what he describes as the “eventual parole argument”, amounting to a denial of procedural fairness contrary to s 5(1)(a) of the ADJR Act.
10 The fourth ground is that the Attorney-General’s decision lacked an evident and intelligible justification and thus constituted a misuse of power pursuant to s 5(1)(e) of the ADJR Act, by reason of material deficiencies in the summary information placed before the Attorney-General.
11 Mr Roberts also asserts a corresponding jurisdictional error with respect to each ground and seeks relief relying upon s 39B of the Judiciary Act 1903 (Cth).
C FEDERAL PAROLE ORDERS
12 Before addressing the grounds of review, it is convenient to say something more about the power in s 19AL(1) of the Crimes Act to grant or refuse parole.
13 The legal principles underpinning the power to make or refuse to make a federal parole order have been canvassed in depth in a number of recent decisions of this Court, in particular, Khawaja v Attorney-General (Cth)  FCA 334, Masri v Attorney-General (Cth)  FCA 17; (2022) 398 ALR 509, Pulini v Assistant Minister to the Attorney-General (Cth)  FCA 1543; (2021) 397 ALR 192, Lodhi v Attorney-General (Cth)  FCA 1383 and Khazaal v Attorney-General  FCA 448. The principles expounded in those judgments may be summarised as follows.
C.1 Legislative scheme
14 There is no entitlement to parole for federal offenders: Khawaja (at  per Thawley J). The power to release a prisoner on parole once their non-parole period has expired is a matter for the executive: Minogue v Victoria  HCA 31; (2019) 268 CLR 1 (at 17  per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
15 The operative power to make, or refuse to make, a parole order lies with the Attorney-General, and is contained in s 19AL of the Crimes Act. The Attorney-General must make a decision before the end of the non-parole period fixed for one or more of the federal sentences imposed on a person: s 19AL(1) of the Crimes Act.
16 Section 19ALA sets out a non-exhaustive list of matters that may be considered by the Attorney-General in making a decision to grant or refuse parole:
(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 program[mes] 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 As is clear on its face, s 19ALA does not designate any of the matters under s 19ALA(1) as mandatory considerations, nor does it limit the matters to which the Attorney-General may have regard: Lodhi (at [6(d)] per Bromwich J).
18 The broader statutory context also guides the Attorney-General’s task: Minister for Immigration and Border Protection v WZARH  HCA 40; (2015) 256 CLR 326 (at 355  per Kiefel, Bell and Keane JJ); Khazaal (at – per Wigney J). That context includes the purposes of parole, being: (a) the protection of the community; (b) the rehabilitation of the offender; and (c) the reintegration of the offender into the community: see s 19AKA of the Crimes Act. Although these purposes “cover different ground”, they “interact and in some respects overlap”: Khawaja (at  per Thawley J).
19 The statutory scheme entrusts the Attorney-General with a broad discretion: Lodhi (at [6(c)] per Bromwich J). There is no prescribed procedure the Attorney-General must follow in determining whether to make a parole order, as explained by Wigney J in Khazaal (at ):
There is certainly no requirement for a hearing, no express requirement for the Attorney to notify the person affected by the decision concerning parole … of any particular information, and no express requirement that the person be given the opportunity to make submissions.
20 The Attorney-General must, however, afford procedural fairness to the person affected by the parole decision: Khazaal (at ,  per Wigney J). The power in s 19AL(1) must also be exercised reasonably, in the light of the terms, scope, purpose and object of the statute as a whole: Khawaja (at – per Thawley J); Minister for Immigration and Citizenship v Li  HCA 18; (2013) 249 CLR 332 (at 370–371  per Gageler J); Minister for Immigration and Border Protection v SZVFW  HCA 30; (2018) 264 CLR 541 (at 586  per Edelman J); Minister for Immigration and Border Protection v Stretton  FCAFC 11; (2016) 237 FCR 1 (at 5  per Allsop CJ). It is incumbent upon the Attorney-General to determine a procedure that satisfies these requirements: Lodhi (at [6(e)] per Bromwich J).
C.2 The provision of reasons upon refusal of parole
21 Should the Attorney-General refuse to make a parole order, the Attorney-General must, pursuant to s 19AL(2):
(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.
22 As explained by Bromwich J in Lodhi (at –) and Thawley J in Khawaja (at ), the requirement to give reasons in s 19AL(2) is sparse, but is supplemented by s 25D of the Acts Interpretation Act 1901 (Cth) (AI Act), 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.
23 Read together, s 19AL(2) of the Crimes Act and s 25D of the AI Act require only that the Attorney-General “set out” the findings which were in fact made, and which they considered to be material to the decision: Khawaja (at  per Thawley J); Lodhi (at – per Bromwich J); see also Minister for Immigration and Multicultural Affairs v Yusuf  HCA 30; (2001) 206 CLR 323 (at 346 –, 349  per McHugh, Gummow and Hayne JJ).
24 Alleged shortcomings in the Attorney-General’s reasons must rise to the level of demonstrating that the jurisdictional task required has not been performed: Lodhi (at  per Bromwich J). Reasons may be brief without being inadequate: the Court’s focus must be on the substance of what has been decided, including whether the “real determinative issue” has been addressed: Lodhi (at  per Bromwich J); Roncevich v Repatriation Commission  HCA 40; (2005) 222 CLR 115 (at 136  per Kirby J). Reasons will not be inadequate because there was evidence, other material or a different path of reasoning by which a different conclusion could have been reached, or the merits of the case re-argued: Lodhi (at  per Bromwich J); Lopez-Avila v K & S Freighters Pty Ltd  FCA 962; (2015) 68 AAR 86 (at 97  per Pagone J).
C.3 Material to which the Court may have regard
25 The question of whether the Attorney-General fell into legal error falls to be considered primarily by reference to the Refusal Notice, though the material placed before the Attorney-General, including the submission provided to the Attorney-General by the Attorney-General’s Department (Department) concerning whether Mr Roberts should be granted parole (Departmental Submission), may also inform the Court: Pulini (at 201  per Rangiah J). This is common course in cases of this kind: see for example DYS21 v Attorney-General (Cth)  FCA 1331 (at  per Bromwich J); Stephens v Attorney-General  FCA 204 (at  per Abraham J). The Departmental Submission should be read and construed as a whole: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme  HCA 56; (2003) 216 CLR 212 (at 221  per Gleeson CJ, Gummow and Heydon JJ).
26 There is, however, a danger in drawing inferences about what a decision-maker did, read or considered in exercising a statutory power, in the absence of any direct evidence about these matters: Stambe v Minister for Health  FCA 43; (2019) 270 FCR 173 (at 190  per Mortimer J).
D MATERIAL BEFORE THE COURT
27 On 19 January 2022, the Department provided the Departmental Submission to the Attorney-General. The covering page contained a recommendation that the Attorney-General refuse to grant parole. That was followed by the options: “Approved”, “Not Approved” and “Discuss”. The Attorney-General could circle whichever option she chose.
28 The covering page also recorded a recommendation that the Attorney-General sign the draft refusal notice at Attachment A, informing Mr Roberts of the decision and advising him that he would be considered for release on parole within 12 months of the decision. The Attorney-General could choose from the options: “Signed”, “Not Signed” and “Discuss”.
29 This recommendation was followed by a series of paragraphs under the heading “Key Issues” describing the offences and sentences, and restating the Department’s recommendation that Mr Roberts be refused parole at that time. Below this was a paragraph headed “Key Risks and Mitigation”.
30 The Departmental Submission also contained six attachments, including the draft refusal notice, the Department’s lengthy analysis, the sentencing remarks, Mr Roberts’ pre-release report prepared by CSNSW (which recommended his release on parole), the parole adverse comments letter from the Attorney-General’s Department to Mr Roberts and the response to that letter (including attachments) from Mr Roberts’ solicitor.
31 On 24 January 2022, the Attorney-General circled the option to accept the Department’s recommendation to refuse parole. The Attorney-General signed the draft refusal notice without alteration, which provided:
1. I have taken into account the nature and circumstances of your offending. The sentencing court heard of your concession that the child abuse material found in your possession, and which you had transmitted to others, ‘was of the most depraved and degenerate kind’ and in total, you were found to possess 2,546 images and 752 videos depicting child sexual abuse, classified under the Child Exploitation Tracking System. The images and videos were classified according to the Australian National Victim Image Library (ANVIL) scale and were found to have included 1,038 images and 537 videos falling within category 4 (depicting penetrative sexual activity between children or between adults and children) and 129 images and 62 videos falling within category 5 (where a child was subjected to sadism, torture, bestiality or humiliation).
I have also had regard to the comments made by the sentencing court. The court considered that each of your offences was at least ‘towards the middle of the range of object seriousness’ and that you were ‘not an offender who was ‘testing the waters’ on his own or with somebody known to him. It is an offender repeatedly accessing this material and repeatedly transmitting it to apparently like-minded people’. The court remarked that you were ‘not a particularly impressive witness’ and at the sentencing hearing you ‘seemed to suggest’ in evidence that you had not deleted previous material to try and detach yourself from what you were doing, which was contrary to what you had told police at interview.
The court referenced the forensic psychologist’s conclusion that you have a ‘likely homosexual paedophilic component to your sexuality’, and noted this contradicted your statement at the hearing that ‘there was no element of sexual gratification’ to your offending. The court found the motivation for your engagement in the offending behaviour ‘was not simply to make friends or because he was lonely, but because he gained some type of satisfaction from this conduct’ and you had ‘engaged most willingly and freely in the prohibited activity’. The court noted that the child abuse material raised ‘real concerns as to the likelihood of reoffending, with the interests of the community thus being at risk to that extent’.
Taking into account the nature and circumstances of your offending and the comments of the sentencing court, I consider that your release on parole would pose an unacceptable risk to community safety.
2. I consider that you lack insight into your offending, and as a result you have not been able to identify the factors that led to your offending and develop strategies to mitigate the risk of reoffending. I have had regard to the fact that you are not able to engage in offence-specific treatment program[mes] in custody.
I consider that you have insufficient plans in place to access professional supports in the community at this time, particularly in relation to accessing offence-specific treatment. In these circumstances, I am not satisfied that your release on parole at this time would be in the interests of your rehabilitation and successful reintegration into the community. I consider that your release on parole in these circumstances would present an unacceptable risk to the safety of the community.
3. Having taken the above matters into consideration, I consider that refusing you release on parole at this time means the risk you pose to the community can be more effectively mitigated in the short-term and the longer term. In coming to this conclusion, I have had regard to other risks that may be mitigated by your release on parole at this time, including that you would be able to access rehabilitative program[mes] in the community which you cannot access in custody, the views of Corrective Services NSW that a period of supervision would enable you to access rehabilitative program[mes] in the community and your continued imprisonment would provide limited rehabilitative benefits, and your pro-social support network in the community.
E REVIEW GROUNDS ONE AND TWO
32 Mr Roberts submits that the Attorney-General failed to consider the case put by him, in the sense of failing to direct an active intellectual process towards his submissions and supporting materials, constituting an error of law and a breach of the rules of natural justice.
33 At the hearing, counsel for Mr Roberts stated that review grounds one and two could be “put no higher” than they were in written submissions, and did not address them. As such, the Court relies only on Mr Roberts’ written submissions with respect to these grounds.
34 There is significant (if not total) overlap between the first two grounds of review agitated by Mr Roberts. Both parties considered the grounds together in writing. I am minded to adopt the same approach, noting that the same course was taken by Rangiah J in Keliher v Attorney-General of the Commonwealth of Australia  FCA 1641 (at ) where the applicant (in similar circumstances to Mr Roberts) also pursued an alleged failure to consider and breach of the rules of natural justice.
35 It is said that the Attorney-General failed to “properly consider” or “meaningfully cavil” with the following arguments advanced by Mr Roberts:
(1) Mr Roberts’ release subject to conditions would aid his rehabilitation and reduce risk to the community;
(2) there was nothing further that Mr Roberts could do in custody to reduce his risk to the community or advance his rehabilitation in circumstances where he had completed all available developmental programmes in custody and engaged with programmes to a satisfactory standard;
(3) the proposed parole conditions would reduce or eliminate the risks of reoffending, particularly in the short term (primarily through psychological and medical treatment); and
(4) the refusal to grant parole could increase the risk to the community or at least not reduce it.
36 Mr Roberts admits that there was “at least notation in the decision” that the Attorney-General had considered each of the four contentions, but that her consideration amounted to no more than mere “acknowledgement” which did not reflect active intellectual engagement with the submissions and material.
E.1 Relevant Principles
37 There is no doubt that the Attorney-General had a duty to consider the case put by Mr Roberts: Pulini (at 199  per Rangiah J). This duty at least required the Attorney-General to consider any “substantial and clearly articulated argument” advanced: Minister for Immigration and Border Protection v SZMTA  HCA 3; (2019) 264 CLR 421 (at 435–436  per Bell, Gageler and Keane JJ); Dranichnikov v Minister for Immigration and Multicultural Affairs  HCA 26; (2003) 197 ALR 389 (at 394  per Gummow and Callinan JJ); Pulini (at 199  per Rangiah J). The obligation to consider requires the Attorney-General to engage in an active intellectual process with reference to the submission: see Carrascalao v Minister for Immigration and Border Protection  FCAFC 107; (2017) 252 FCR 352 (at 361 , 363–364 – per Griffiths, White and Bromwich JJ); Minister for Home Affairs v Omar  FCAFC 188; (2019) 272 FCR 589 (at 605–607  per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).
38 Relatedly, the content of the requirement of procedural fairness with respect to parole decisions is coloured by the statutory and factual contexts in which it is raised. As observed by Wigney J in Khazaal (at –):
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.
39 The opportunity to be heard does not merely involve an opportunity to make submissions, as put by Thawley J in Khawaja (at ):
… it requires that a decision-maker hear and take the submissions into account: Minister for Immigration and Citizenship v SZQRB  FCAFC 33; 210 FCR 505 at  (Flick J). That is particularly so where the person affected has been told that his submissions would be taken into account by the decision-maker, as Mr Khawaja was – see: MZAFS v Minister for Immigration and Border Protection (2016) 237 FCR 347;  FCA 75 at  (Edelman J).
40 The Court should, above all, be guided by the overarching purpose of the law concerning procedural fairness, to “avoid practical injustice”: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam  HCA 6; (2003) 214 CLR 1 (at  per Gleeson CJ); Masri (at 517  per Bromwich J).
41 In substance, review grounds one and two allege no legal error. Mr Roberts’ contention that the Attorney-General did not adequately address his submissions reflects his subjective and unsurprising view that the Attorney-General did not make the correct decision.
42 This Court cannot indulge in merits review of the Attorney-General’s decision. The remarks of Allsop CJ, Besanko and O’Callaghan JJ in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCAFC 3; (2022) 397 ALR 1 (at 23 –), albeit made in a different statutory context, are instructive. Parliament has made clear that the Attorney-General may refuse to make a parole order, on the condition reasons for the decision are provided, and with the liberty to consider the factors in s 19ALA of the Crimes Act. If the Attorney-General does so, she has properly exercised the jurisdiction entrusted to her. Whether or not another person in the Attorney-General’s position would have come to the same decision is not to the point.
43 A cynic might speculate that the documents recording the decision-making process undertaken by the Attorney-General might suggest that what was going on was some sort of kabuki dance, involving no more than the uncritical adoption of the advice of a departmental officer. But such a submission is not made, and such an inference should not be lightly drawn. The Attorney-General was entitled to obtain assistance from departmental officers, although the relevant question is directed to what the Attorney-General considered, not what members of the Department considered. As noted above, that question may be answered by drawing appropriate inferences from the relevant circumstances, including the Refusal Notice and the material prepared by the Attorney-General’s Department: Khawaja (at  per Thawley J).
44 As explained above at –, the combined operation of s 19AL(2) of the Crimes Act and s 25D of the AI Act requires only that the Attorney-General “set out” any findings of fact that she did in fact make and considered material to the decision not to grant parole. Each of the four arguments that Mr Roberts alleges were not properly considered by the Attorney-General (enumerated above at ) was indeed dealt with on the face of the Refusal Notice, and with considerable depth and care in the Departmental Submission. There is no injustice in having submissions addressed at length in a submission to the Attorney-General, or on the covering page to the Departmental Submission, rather than being explicitly referred to in the Attorney-General’s reasons. What matters is the fact that the submissions were considered by the Attorney-General, not the manner in which that consideration was recorded: Masri (at 517–518  per Bromwich J).
45 In any event, the Refusal Notice itself evinced the Attorney-General’s consideration of Mr Roberts’ submissions, including the pre-release report prepared by CSNSW. It should be inferred (in the absence of evidence to the contrary) that the Attorney-General read and engaged with the Refusal Notice, a document she signed and dated by hand: Stambe (at 190 – per Mortimer J).
46 The first contention is explicitly addressed at  of the Refusal Notice, where it is stated:
I have had regard to the fact that you are not able to engage in offence-specific treatment program[mes] in custody.
I consider that you have insufficient plans in place to access professional supports in the community at this time, particularly in relation to accessing offence-specific treatment. In these circumstances, I am not satisfied that your release on parole at this time would be in the interests of your rehabilitation and successful reintegration into the community.
47 The Attorney-General expressed her consideration of Mr Roberts’ “rehabilitation and successful reintegration into the community”. She determined that Mr Roberts’ release plans were “insufficient”, a conclusion arrived at as a result of engagement with the parole conditions proposed by Mr Roberts. The Attorney-General was not obliged to expose her mental processes in the Refusal Notice: Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (at 592 per Northrop, Miles and French JJ); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs  HCA 63; (2006) 228 CLR 152 (at 161–162  per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). She nonetheless did so, explaining that she had balanced Mr Roberts’ inability to access treatment in custody with his plans to access support on parole, and determined that his rehabilitation was best served by refusing parole at this time.
48 Secondly, the Refusal Notice engaged with the fact that there was nothing further that Mr Roberts could do in custody to reduce his risk to the community or advance his rehabilitation in circumstances where he had completed all available developmental programmes in custody and engaged with programmes to a satisfactory standard. So much is stated in terms in the Refusal Notice (at –):
2. I have had regard to the fact that you are not able to engage in offence-specific treatment program[mes] in custody…
3. I have had regard to other risks that may be mitigated by your release on parole at this time, including that you would be able to access rehabilitative program[mes] in the community which you cannot access in custody…
49 The Attorney-General identified Mr Roberts’ inability to access developmental programmes in custody as a principal submission, referring to it twice in the Refusal Notice. These were not vague and generalised references (cf Khawaja at – per Thawley J). They were in each case tied to the determination ultimately made.
50 The third submission which Mr Roberts contends the Attorney-General did not consider is that “the proposed conditions on parole would reduce or eliminate the risks of reoffending, particularly in the short term (primarily through psychological and medical treatment)”. The Attorney-General considered the proposed conditions of parole in expressing her view that they were “insufficient” and thus that Mr Roberts’ “release on parole in these circumstances would present an unacceptable risk to the safety of the community”. Furthermore, the Refusal Notice conveys the Attorney-General’s view that there remained a live risk of reoffending in both  and .
51 Further, the Departmental Submission addressed the risk of reoffending at length, considering both the long and the short term (in particular at –). The issue was also given succinct but apparently meaningful attention in the “Key Risks and Mitigation” section of the covering sheet. There is no reason to conclude otherwise than the Attorney-General read and considered the arguments set forth in the covering sheet, given her annotations to and signature of the document: Stambe (at 190 – per Mortimer J).
52 The fourth and final submission which Mr Roberts asserts the Attorney-General did not consider is the proposition that refusal to grant parole could increase the risk to the community or at least not reduce it. So much was considered and dismissed in the Refusal Notice at , and squarely analysed at  of the Departmental Submission. In recommending that the Attorney-General refuse to release Mr Roberts on parole in January 2022, in the knowledge that the Attorney-General was required to reconsider his suitability for parole by January 2023 (nine months before the expiry of Mr Roberts’ head sentence), the Department considered that “the short and longer-term risks to the community are effectively balanced, and the longer-term risks to the community would not be substantially adversely affected if Mr Roberts remained in custody for a further 12 months”.
53 The Attorney-General, having regard to the matters discussed above alongside other considerations, decided to refuse to release Mr Roberts on parole. Those other considerations included:
(1) the nature and circumstances of Mr Roberts’ offending: Mr Roberts possessed 2,546 images and 752 videos depicting child abuse material, some of which were transmitted to others;
(2) the finding of the sentencing judge that the material raised “real concerns as to the likelihood of reoffending” (Roberts at );
(3) Mr Roberts’ concession at the sentencing hearing that the child abuse material found in his possession and which he had transmitted to others “was of the most depraved and degenerate kind” (Roberts at ); and
(4) Mr Roberts’ lack of insight into his offending.
54 Mr Roberts’ inability to access appropriate psychological support while in custody gives one pause. This is entirely beyond his control, and faced by offenders in New South Wales prisons who are not contact offenders, but require treatment to reduce the risk of re-offending or an escalation of offending: DYS21 (at  per Bromwich J). So much was acknowledged in the Refusal Notice and the Departmental Submission, and by counsel for both parties in oral submissions.
55 However, Mr Roberts’ inability to access treatment in custody is not itself a determinative issue. It is one element of a number going to the question of whether a parole order was appropriate at the time the decision was made. The Attorney-General was entitled to have regard to such considerations and to refuse to release Mr Roberts on parole order on account of them. Mr Roberts did not challenge the Attorney-General’s findings with respect to these issues.
56 As such, review grounds one and two must fail.
F Review Ground Three
57 Mr Roberts contends that he was not given an opportunity to respond to what he describes as the “eventual parole argument”, amounting to a denial of procedural fairness contrary to s 5(1)(a) of the ADJR Act and jurisdictional error.
58 The expression “eventual parole argument” does not feature in the Refusal Notice, but appears to be drawn from the covering page of the Departmental Submission, specifically the paragraph headed “Key Risks and Mitigation”:
Minimal short term risk if parole is refused at this time. Mr Roberts’ risk to the community is mitigated while he remains in custody. The department considers that longer term risks to community safety do not justify Mr Roberts’ release on parole at this time. There are other mechanisms to allow longer term risks to be sufficiently mitigated, including that he will be reconsidered for release on parole within 12 months. If he is released on parole at that time, he would have 9 months of parole supervision in the community.
59 The above paragraph summarises the following more detailed analysis provided to the Attorney-General by her Department:
132. The department considers that there are longer-term risks to the community when an offender is released without experiencing time in the community subject to parole supervision and conditions. Parole supervision and conditions can serve to facilitate an offender engaging in relevant rehabilitation. The department considers ongoing rehabilitation is particularly significant for Mr Roberts to facilitate his engagement with appropriate professional supports to address his ongoing rehabilitation needs. However, the department notes that if Mr Roberts is refused parole at this time, he will be reconsidered once more prior to his head sentence expiry and, if released at that time, he would be subject to 9 months of supervision in the community. The department considers this would be sufficient time for Mr Roberts to be able to access support from his parole officer in terms of rehabilitation and reintegration needs upon his release, and sufficient time for Mr Roberts to be monitored in the community to ensure he does not reoffend. The department considers that in this matter, the short and longer-term risks to the community are effectively balanced, and the longer-term risks to the community would not be substantially adversely affected if Mr Roberts remained in custody for a further 12 months.
60 Mr Roberts argues that he was not given an opportunity to respond to the “eventual parole argument” because it was not raised in the adverse comments letter. In making this argument, Mr Roberts relies heavily on the decision of Bromwich J in DYS21. In that case, the Attorney-General refused to grant the applicant parole. Justice Bromwich held that a misuse of power had taken place by reason of material shortcomings in the summary information placed before the Attorney-General. The Attorney-General was not alerted to the “differential risk” posed by release on parole and release at the end of a sentence with little or no parole: DYS21 (at – per Bromwich J). Instead, she was incorrectly advised that refusing parole gave rise to “no risk”, a proposition which failed to account for the risk of releasing the applicant into the community at a later date, without any time on parole during which the applicant could access offence-specific treatment: DYS21 (at  per Bromwich J).
61 The central question with respect to this ground of review is whether the Attorney-General fairly and adequately disclosed all credible, relevant and significant adverse information which was before her and whether Mr Roberts had an opportunity to make meaningful submissions about that information.
62 As a starting point, it is difficult to see how Mr Roberts can complain that he did not know that, if the Attorney-General refused to release him on parole in January 2022, he would be reconsidered for release again by January 2023, before the expiration of his head sentence in October 2023. Section 19AL(2)(b) of the Crimes Act requires that such a reconsideration take place within 12 months of refusal.
63 Furthermore, the adverse comments letter put Mr Roberts on notice that his outstanding treatment needs were a problem for the Attorney-General. The adverse comments letter alerted Mr Roberts to the fact that at that point in time, the Attorney-General did not have any information available to indicate Mr Roberts had plans to access sex offender treatment in the community upon his release. Indeed, in response to the adverse comments letter, Mr Roberts explained his plans to access treatment upon release in his submissions. The Attorney-General subsequently formed a view as to their sufficiency in all the circumstances, in particular the statutory requirement that Mr Roberts be reconsidered for parole should parole be refused in this instance.
64 The view ultimately formed by the Attorney-General was not “information” of which Mr Roberts should have been made aware before the Attorney-General determined to refuse to grant Mr Roberts parole. The “eventual parole argument” was, in terms, the view finally formed by the Attorney-General and articulated in the Departmental Submission and Refusal Notice. The Attorney-General was under no obligation, and indeed was not positioned to ventilate this view in the adverse comments letter, because she had not yet received Mr Roberts’ submissions.
65 In making the “eventual parole argument”, Mr Roberts concedes that the Attorney-General considered the purposes of parole in the light of short and long term risks, concluding that the prospect of “eventual parole” was a more suitable option than granting parole in January 2022.
66 On this basis alone, review ground three must fail.
G Review Ground Four
67 Review ground four alleges that the Attorney-General’s decision amounted to a misuse of power. It is said that “material deficiencies” in the summary information on the covering page of the Departmental Submission resulted in a decision lacking evident and intelligible justification.
68 At the hearing, counsel for Mr Roberts contended that the paragraph headed “Key Risks and Mitigation” on the covering page was liable to mislead the Attorney-General. Counsel for Mr Roberts pressed, in essence, two points in this paragraph which were apt to lead the Attorney-General into error, namely:
(1) the purported suggestion that there would be a “complete reduction or a complete mitigation” of risk if Mr Roberts was to be denied parole; and
(2) the suggestion that there were “other mechanisms” that could be engaged in to balance short and long term risks where only one such mechanism was identified. That sole mechanism was the “pyrrhic suggestion” that a further year in custody would allow Mr Roberts to make treatment arrangements in anticipation of his release on parole in January 2023.
69 The authorities concerning “evident and intelligible justification” were not canvassed by the parties in oral submissions.
70 A decision lacks an evident and intelligible justification when it is not possible for the Court to comprehend how the decision was arrived upon, even where reasons have been provided: Li (at 367  per Hayne, Kiefel and Bell JJ).
71 Mr Roberts’ argument relies heavily on the decision of Bromwich J in DYS21. In that case, Bromwich J was satisfied that “material deficiencies” in the summary information placed before the Attorney-General meant that the decision lacked an evident and intelligible justification: DYS21 (at , , –).
72 Given Mr Roberts’ dependence on DYS21, not only in written and oral submissions, but in his submissions to the Attorney-General (to which Mr Roberts attached a copy of the decision), it is worth explaining why that decision is distinguishable.
73 In DYS21, the Attorney-General fell into error because it was likely that she was “actively misled” by her Department: DYS21 (at  per Bromwich J). The Attorney-General went against her Department’s recommendation that she release the applicant on parole. The primary “material deficiency” in the information provided to the Attorney-General was a statement in the “Key Risks and Mitigation” paragraph in the covering letter of the Department’s submission which provided that “there are no risks if parole is refused”: DYS21 (at  per Bromwich J). This was plainly false. If parole was refused, there remained the risk that the applicant would, if granted parole a year later, only be subject to parole supervision for a three-month period before the expiration of his head sentence. As a result, it could only be true that there was “no risk” posed by refusal of parole for the balance of the sentence, as the risk posed by releasing the applicant into the community with only three months of parole, or no parole at all, remained: DYS21 (at  per Bromwich J). This resulted in an improper exercise of power under s 19AKA(a) because, as reasoned by Bromwich J (at ):
The reference to the protection of the community in s 19AKA(a) is not in terms, or by any reasonable implication, confined to the period of the prison sentence, including in particular any part served on parole. Rather, it extends to the period after a sentence has been served, and the offender is at liberty in the community without any conditions or restrictions associated with that sentence.
74 Review ground four ostensibly seeks to map the fact-contingent reasoning in DYS21 onto Mr Roberts’ case. It is not reasonable to infer that the Attorney-General was misled by her Department with respect to the risks posed by release on parole in January 2022 as compared with release on parole at some later time. The two purportedly misleading points in the covering letter of the Departmental Submission may be disposed of briefly.
75 With respect to the first point, it is untrue that the Attorney-General was told that refusal of parole would result in “complete reduction or a complete mitigation” of the risks posed by Mr Roberts to the community. The “Key Risks and Mitigation” paragraph stated: “[m]inimal short term risk if parole is refused at this time. Mr Roberts’ risk to the community is mitigated while he remains in custody”. At the hearing, counsel for Mr Roberts proffered that the word “mitigation” connotes a reduction not necessarily to zero of some factor, here, a risk. The use of the past tense “mitigated” reflects, at face value, an element of finality, or certainty. But it by no means implies a total elimination of risk as a matter of language, as conceded by counsel for Mr Roberts.
76 As to the second point, the phrase “other mechanisms” is not liable to mislead in the sense discussed in DYS21. I agreed with counsel for Mr Roberts at the hearing that the “mechanism” proffered in the Departmental Submission, namely that Mr Roberts should spend a further year in custody in order to contact and make treatment arrangements with his doctor was, in counsel’s terms, a “pyrrhic suggestion”. But there were “other mechanisms”: the fact that Mr Roberts would be reconsidered for parole in one year’s time, and the opportunity for Mr Roberts to make proactive treatment arrangements during this time, are not the same.
77 The balancing of “differential risk” that was lacking in DYS21 is discernible in the Refusal Notice (at ), in the covering sheet of the Departmental Submission and at  of the submission itself. This balancing reflects an evident and intelligible justification for the decision.
78 The parties did not make extensive submissions as to the materiality of any of the four alleged errors to the Attorney-General’s decision.
79 The threshold of materiality is met where an applicant establishes that compliance with the condition in question could realistically have made a difference to the decision ultimately made: Hossain v Minister for Immigration and Border Protection  HCA 34; (2018) 264 CLR 123 (at 134–135  per Kiefel CJ, Gageler and Keane JJ, 147–148  per Edelman J); MZAPC v Minister for Immigration and Border Protection  HCA 17; (2021) 390 ALR 590 (at 605  per Kiefel CJ, Gageler, Keane and Gleeson JJ); Masri (at 521  per Bromwich J).
80 While cautious not to slip into merits review, I am unable to see how the Attorney-General could have made any other decision, particularly in the light of the “array” of other factors which the Attorney-General was entitled to and did take into account: Masri (at 521  per Bromwich J). The Refusal Notice is primarily directed at the nature and circumstances of Mr Roberts’ offending and the comments made by the sentencing court (at ), and the Attorney-General’s view that Mr Roberts lacks insight into his offending (at ). These factors are not touched upon in any of Mr Roberts’ grounds of review.
I CONCLUSION AND ORDERS
81 Each ground of review raised by Mr Roberts must fail. The application is dismissed with costs.