Federal Court of Australia

Stiller v Attorney-General [2024] FCA 1049

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    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

RANGIAH J:

1    The applicant is serving a sentence of imprisonment for an offence against a law of the Commonwealth. By a decision made on 20 March 2024, a delegate of the respondent, the Attorney-General of the Commonwealth of Australia, refused to order that the applicant be released on parole.

2    The applicant has applied for judicial review of the delegate’s decision. He seeks orders that the decision be set aside and that the respondent reconsider the decision.

3    It is necessary to describe the factual background, the relevant legislative provisions and the delegate’s statement of reasons in order to give context to the grounds of review and the parties’ submissions.

Background

4    On 23 March 2022, the applicant was sentenced in the District Court of Queensland to a term of three years and six months’ imprisonment for an offence of using a carriage service to access child abuse material contrary to s 474.22 of the Criminal Code Act 1995 (Cth). The applicant’s head sentence will expire on 22 September 2025.

5    The applicant’s offending occurred between June 2020 and February 2021, during which he accessed the internet to view and download images of naked girls appearing to be aged between about 12 and 17 years old.

6    A further two offences of using a carriage service to access child pornography material and using a carriage service to access child abuse material were taken into account at sentence pursuant to s 16BA of the Crimes Act 1914 (Cth). This offending occurred between October 2014 and February 2021 and was in breach of a five-year recognisance order imposed on the applicant in May 2012 following a conviction for using a carriage service to access child pornography material.

7    The District Court imposed a non-parole period of 12 months, which expired on 22 March 2023. On 22 March 2023, a delegate of the respondent made a decision refusing to order the applicant’s release on parole.

8    On 2 February 2024, an officer of the Attorney-General’s Department (Commonwealth Parole Office) (the Department) wrote to the applicant informing him that he would be considered for parole within 12 months of the date of his previous refusal. The letter set out a number of matters that could weigh against the applicant being released on parole and invited him to respond to those matters. The letter stated, relevantly:

Sex offender treatment

You have completed the Medium Intensity Sex Offender Program (MISOP) in custody. However, the decision-maker may determine that you still have ongoing needs in relation to sex offender treatment.

Information the decision-maker will have regard to includes:

•    Awaiting treatment report - Whilst you completed the MISOP, the treatment report is not yet available. As such, there is no information detailing your engagement with the program, any outstanding treatment needs and any recommendations for further rehabilitation.

•    On the basis of the STABLE-2007 assessment, it was determined that you had High intervention needs in relation to your sexual offending behaviour.

The decision maker may not be satisfied that your release in these circumstances is in the interests of your rehabilitation. The decision maker may not be satisfied that the proposed supervision and management plan adequately mitigates the risk you may pose to the community.

Given the nature and circumstances of the offending and your High risk of sexual reoffending, the decision maker may consider that you have ongoing rehabilitative needs in this area. You may not be well placed to further your rehabilitation in the community without appropriate social and professional supports.

Further, in the absence of sufficient information about your plans to engage in further rehabilitation in the community, and strategies you plan to use to identify and mitigate situations which place you at risk of reoffending, the decision-maker may consider that your release on parole at this time will not assist your lawful reintegration into the community and poses an unacceptable risk to the safety of the community.

…

Criminal history and compliance with court orders and supervision

The decision-maker may be concerned by your criminal history and compliance with court orders and supervision.

Information the decision-maker will consider includes:

•    In May 2012, you were convicted for an offence of using a carriage service to access child pornography material and the court imposed a 5-year recognisance order.

•    You breached this recognisance order with your current offences.

Being released on parole requires you to agree to be of good behaviour and not violate any law, comply with stringent conditions and obey all reasonable directions from their parole officer. Such conditions and directions may relate to matters such as reporting requirements, following directions of your parole officer and any other matters that the decision-maker considers it appropriate to make directions. Your parole order may be revoked if you do not comply with such conditions or directions.

Given the above information, the decision-maker may consider that your criminal history is indicative of your inability to be of good behaviour, not violate any law and comply with the conditions of a parole order while in the community. As such, the decision-maker may conclude that your release on parole at this time may pose a risk to the safety of the community.

…

Your response

You are invited to address this information. While you are not required to respond, if you do not provide a response, the decision-maker may consider your lack of response weighs against your release on parole at this time.

You may wish to seek legal advice before responding.…

The decision-maker will take into account all relevant information, including your response, when they decide whether you should be released on parole at this time. If your response is not received by the above date, the decision-maker will consider your release on parole based on the information already received.

(Underlining added.)

9    In his letter of response dated 21 February 2024, the applicant stated, relevantly:

-    Sex Offender Treatment

I am confident that the treatment report which is now available to the decision-maker will provide the information required. This report speaks to my engagement and participation in the program, the outcomes achieved in regard to rehabilitation and recommendation for further rehabilitation. This is further evidence of my continued commitment to reform and rehabilitation. It reflects the positive strategies that I have implemented as a result and the positive outcomes this has had on my rehabilitation.

…

In addition to rehabilitation programs, I have continued treatment with Dr Luke Hazipetrou [sic]. This treatment has been ongoing from before sentencing through to present day. This relationship has been and will continue to be a key support for me in furthering my rehabilitation in the community. Dr Hazipetrou [sic] has agreed to supply a letter to the decision-maker in support of this and will be supplying forthwith. In addition to this, I have the support of my sister, Carolyn Ehrlich (refer support letter), and my friend, mentor and employer, Mr Kenneth Cameron (refer attached support letter). I am also a practicing Christian with connections with the Lutheran Church. This provides a solid foundation of support in the community on which I will further build upon release.

In regards to plans for further rehabilitation within the community, I will continue my engagement with Dr Luke Hazipetrou [sic] in addition to completing the Sex Offender Maintenance Program as recommended in my treatment report. I will also continue to work on self-enhancing activities such as self-education through self-help books, journalling, CBT, meditation, mindfulness – practicing the tools learned through the course of the program. Detailed information regarding these plans is available to the decision-maker in the form of the New Future Plan as completed as part of the treatment program.

The strategies I plan to use (and am using) to identify and mitigate situations which place me at increased risk of reoffending are also available in my New Future Plan and are described in my treatment report. I direct you to these documents. I would argue that with these strategies in place, the decision-maker can be assured that my release on parole will facilitate my lawful reintegration into the community and does not pose a risk to the safety of the community.

…

-    Criminal History and Compliance with Court Orders and Supervision

My offending is in the past. My most current history (of which there is a significant amount) shows that I am of good behaviour and am compliant with all conditions imposed on me. My compliance with bail conditions (12 months), my records since incarceration (23 months), my advancement and continued accommodation in Residential with an advanced IEP level. My advancement to level III in my trusted position of External Landscapes. My willing participation and engagement in core programs all attest to this. This most recent, substantial history should provide the decision-maker with the confidence to approve my release on parole.

(Underlining added.)

10    On 20 March 2024, a delegate of the Attorney-General issued a notice stating that he had decided to refuse to release the applicant on parole (the refusal decision). The delegate’s reasons for the refusal decision included, relevantly:

2.     I have had regard to your criminal history including a relevant prior conviction of using a carriage service to access child pornography material of a sexual nature. I consider that while you were subject to a community based order for prior child sex offences you committed the Index offences. The Index offences occurred after you had completed sex offender treatment in the community. You disclosed to Queensland Police and Queensland Corrective Services that you had completed that treatment with your self interest in mind, rather than a focus on changing your offending behaviour. Taking this information into account, I cannot be satisfied that you are willing and able to comply with parole conditions, which includes a requirement not to violate any law. Accordingly, I consider that your release on parole in these circumstances would pose an unacceptable risk to community safety.

3.     I consider you have ongoing sex offender rehabilitative needs. I have had regard to your completion of the GP:SS program and the MISOP and consider you have increased your knowledge of your offending pathways. I note that QCS recommended that you continue treatment with particular regard to ‘deviant sexual preference’ and ‘your attraction to the with a forensic psychologist.

I consider that you submitted you will undertake ongoing treatment in relation to your mental health and sexual offending with Dr Hatzipetrou. There was no information to support that Dr Hatzipetrou has specific qualifications and experience providing sex offender treatment. Further, you submitted you would undertake the Staying on Track: Sexual Offending Maintenance Program (SOMP) in the community, however, there is no information on whether you have been assessed for the program, or when the program is to commence in the community.

I consider that your release into the community in the absence of evidence that you are eligible and/or enrolled in an offence-specific maintenance program, or alternatively have independent plans for professional supports, would not be in the best interests of your rehabilitation and reintegration, and you may pose an unacceptable risk to the community.

(Underlining added.)

11    On 17 April 2024, the applicant filed an application for judicial review of the refusal decision. The applicant’s grounds of review are as follows:

1.     The Respondent breached the rules of natural justice by failing to provide the Applicant with an opportunity to provide evidence of the qualifications of Dr Luke Hatzipetrou.

2.     The Respondent breached the rules of natural justice by failing to provide the Applicant with an opportunity to provide evidence as to the availability, in the community, of the:

a.    Treatment for deviant sexual preferences;

b.     Treatment for attraction to children; and

c.     Staying on Track: Sexual Offending Maintenance Program (SOMP).

3.    The Respondent improperly exercised the power to grant or refuse the Applicant's parole in concluding that the Applicant is not willing and able to comply with parole conditions by placing undue weight on the previous conviction whilst having no or insufficient regard to the Applicant's:

a.    Voluntary confession to the offending and subsequent full co-operation with Police;

b.     The entry of his very early plea of guilty via registry committal application;

c.     Compliance with strict bail conditions whilst awaiting sentence.

12    At the hearing, the applicant sought and was granted leave to add a further ground of review, which was not opposed. The respondent was granted that leave. The fourth ground of review is as follows:

4.     The respondent improperly exercised the power to grant or refuse the applicant’s parole by failing to properly consider the period and conditions for which parole may be ordered having regard to the remaining term of the applicant’s sentence under s.19AMA of the Crimes Act.

Statutory provisions

13    Section 19AL of the Crimes Act 1914 provides for the making of parole orders by the Attorney-General:

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).

…

(1A)    If the Attorney-General does not, under subsection (1), make, or refuse to make, a parole order for a person before the end of the non-parole period referred to in that subsection, the Attorney-General must, as soon as practicable after the end of that period, make, or refuse to make, a parole order for the person.

(2)    If the Attorney-General refuses to make a parole order for a person under subsection (1) or (1A), paragraph (b) of this subsection, or subsection (2A), (6) or (7), 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.

…

…

14    Section 19AKA specifies the purposes of parole:

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.

15    Section 19ALA sets out a non-exhaustive list of matters that may be considered when making a decision under s 19AL:

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.

Consideration

Ground 1: Whether the respondent denied the applicant procedural fairness by failing to provide him with an opportunity to provide evidence of the qualifications of Dr Luke Hatzipetrou

Ground 2: Whether the respondent denied the applicant procedural fairness by failing to provide him with an opportunity to provide evidence as to the availability, in the community, for treatment of deviant sexual preferences, treatment for attraction to children and the Sexual Offending Maintenance Program

16    As the applicant’s first and second grounds each raise procedural fairness grounds, it is convenient to consider the grounds together.

17    In his first ground, the applicant contends that he was not afforded procedural fairness because he was not provided with an opportunity to provide to the delegate evidence of the qualifications of Dr Luke Hatzipetrou. In his second ground, the applicant contends that he was not afforded procedural fairness because he was not given an opportunity to provide to the delegate evidence as to the availability in the community of treatment for deviant sexual preferences, treatment for attraction to children and the Sexual Offending Maintenance Program.

18    The applicant submits that even though some of the material before the delegate contained references to Dr Hatzipetrou, “no inquiry has apparently been made by the respondent as to his qualifications and suitability”. Instead, the delegate merely concluded, “that insufficient information has been provided in that regard”.

19    The applicant submits that the respondent has a duty to exercise the power under s 19AL of the Crimes Act 1914 in a way that is procedurally fair or accords with principles of natural justice. The applicant submits that this duty required the delegate to give notice to the applicant that relevant information was lacking prior to making the refusal decision, and to provide the applicant with an opportunity to obtain and provide that information. The applicant also asserts that putting the applicant on notice that relevant information was lacking prior to making the refusal decision was, “also necessary because of the obligation to exercise the power in s 19AL reasonably”.

20    The applicant also contends that the delegate’s conclusion that there was no information that Dr Hatzipetrou had specific qualifications and experience providing sex offender treatment was not a conclusion that was obviously open on the known material, and it was therefore unfair for the delegate to reach that conclusion without first putting the applicant on notice. The applicant points to the ease at which notification could have been given as a matter demonstrating there was a denial of procedural fairness, although no authority was cited to support this contention.

21    The respondent submits that procedural fairness did not require that the delegate identify specific deficiencies and allow the applicant another attempt to bolster his submissions. The respondent submits that a decision-maker is not required to expose their reasoning for comment on an ongoing basis, and that the delegate’s conclusion that there was no information to support that Dr Hatzipetrou had specific qualifications and experience providing sex offender treatment was obviously open on the known material.

22    A decision-maker must afford procedural fairness in the exercise of power under s 19AL of the Crimes Act 1914: Khazaal v Attorney-General [2020] FCA 448 at [66]. Procedural fairness requires that a person who may be affected by a decision be informed of the case against them and be given an opportunity to answer it: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ). What will constitute a reasonable opportunity depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552–553; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30].

23    In Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone), the Full Court explained some requirements and limits of procedural fairness at 591–592:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

24    In the present case, the Department wrote to the applicant on 2 February 2024 indicating that, “the decision-maker may determine that you still have ongoing needs in relation to sex offender treatment”. That statement was made in the context of the applicant having reoffended after having previously been convicted of using a carriage service to access child pornography material. The letter continued, “in the absence of sufficient information about your plans to engage in further rehabilitation in the community, and strategies you plan to use to identify and mitigate situations which place you at risk of reoffending, the decision-maker may consider that your release on parole at this time will not assist your lawful reintegration into the community and poses an unacceptable risk to the safety of the community”.

25    In the delegate’s reasons for the refusal decision of 20 March 2024, the delegate inferred that the treatment provided by Dr Hatzipetrou was in relation to the applicant’s, “mental health and sexual offending”. The delegate found that, “[t]here was no information to support that Dr Hatzipetrou has specific qualifications and experience providing sex offender treatment”. The delegate then concluded, partly on the basis of this finding, that the applicant’s, “release into the community in the absence of evidence that [he has] …independent plans for professional supports, would not be in the best interests of [his] rehabilitation and reintegration, and [he] may pose an unacceptable risk to the community”. The delegate’s reference to “professional supports” was plainly intended to mean “adequate professional supports”, and the applicant made no submission to the contrary.

26    The applicant submits that the finding of no information to support Dr Hatzipetrou having specific qualifications and experience providing sex offender treatment was not obviously open on the known material and that, accordingly, the applicant was not provided with a reasonable opportunity to address a matter of significance to the delegate’s decision.

27    However, the applicant had been placed on notice by the Department’s letter of 2 February 2024 that it was for him to adduce sufficient material concerning his plans for rehabilitation to satisfy the decision-maker that his release would not be counterproductive to his reintegration and would not pose an unacceptable risk to community safety. It is evident from the applicant’s responsive letter providing information about his past treatment and plans for ongoing treatment and rehabilitation that he understood the need to adduce sufficient material to so satisfy the delegate. In particular, the applicant advanced his ongoing treatment by Dr Hatzipetrou as a matter demonstrating that he is not at risk of reoffending.

28    The applicant provided no information about the nature of his treatment, nor any information indicating that treatment of sexual offenders was within Dr Hatzipetrou’s area of specialisation or expertise. It should have been evident to the applicant that his assertion (based substantially upon his ongoing treatment by Dr Hatzipetrou) that he was not at risk of offending, required him to provide information explaining the nature of the treatment, Dr Hatzipetrou’s qualifications and expertise to provide that treatment, and why it was and would continue to be effective. That the applicant in fact recognised the need to provide information about such matters is indicated by his assertion that Dr Hatzipetrou would be providing a letter supporting his release on parole. However, no such letter was ever provided.

29    The applicant was made aware that insufficient information about his plans for further rehabilitation in the community could result in his release on parole bring refused, and he was given an opportunity to place sufficient material about that matter before the delegate. It was for the applicant to decide how he took advantage of that opportunity, including by choosing what supporting material he would provide. The applicant, by relying on his ongoing treatment Dr Hatzipetrou as supporting his claim that he would not reoffend, implied that Dr Hatzipetrou had the qualifications and experience to provide adequate treatment to sex offenders. In my opinion, the delegate’s finding that the applicant had failed to provide information supporting the inference that Dr Hatzipetrou had specific qualifications and experience in providing sex offender treatment was one that was obviously open on the known material. The requirements of procedural fairness did not oblige the delegate to expose to the applicant any provisional view that Dr Hatzipetrou had not been shown to have adequate qualifications and experience before making the refusal decision.

30    The applicant’s complaint that the delegate did not make his own inquiries about Dr Hatzipetrou’s qualifications and experience is misconceived. It is well established that a decision-maker is not ordinarily obliged to make their own inquiries to make out the applicant’s case: see Abebe v Commonwealth (1999) 197 CLR 510 at [187]; Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25]; EXT20 v Minister for Home Affairs (2022) 291 FCR 55; [2022] FCAFC 72 at [185]–[187] (Snaden J).

31    The applicant’s assertion that further notice was, “also necessary because of the obligation to exercise the power in s 19AL reasonably”, appears to complain of legal unreasonableness. However, as the applicant did not make any submissions in support of that bald assertion, I have not addressed it.

32    I will turn to consider the applicant’s complaint that the delegate’s conclusion that the delegate denied him procedural fairness by failing to provide an opportunity to provide evidence as to the availability in the community of treatment for deviant sexual preferences, treatment for attraction to children, and the “Staying on Track: Sexual Offending Maintenance Program”.

33    As has been indicated, in the letter of 2 February 2024, the applicant was put on notice that, “the decision-maker may determine that you still have ongoing needs in relation to sex offender treatment”, and that, “in the absence of sufficient information about your plans to engage in further rehabilitation in the community…the decision-maker may consider that your release on parole at this time will not assist your lawful reintegration into the community and poses an unacceptable risk to the safety of the community”. The applicant recognised that he ought to provide information to adequately address these matters and sought to do so by asserting that he would complete the “Sex Offender Maintenance Program”, and would, “continue to work on self-enhancing activities such as self-education through self-help books, journalling, CBT, meditation, mindfulness”.

34    The delegate found that while the applicant asserted that he would undertake the “Staying on Track: Sexual Offending Maintenance Program” in the community, there was no information as to whether he had been assessed for the program or when the program was to commence. The delegate went on to conclude that the applicant’s release into the community in the absence of evidence that he was eligible for or enrolled in an offence-specific maintenance program or had other plans for professional supports (apart from treatment by Dr Hatzipetrou), would not be in the best interests of the applicant’s rehabilitation and reintegration, and that he may pose an unacceptable risk to the community.

35    In my opinion, the delegate’s findings were obviously open on the known material. The requirements of procedural fairness did not oblige the delegate to expose to the applicant any provisional view that he had failed to provide adequate information as to the availability in the community of treatment for deviant sexual preferences, treatment for attraction to children and the “Staying on Track: Sexual Offending Maintenance Program”.

36    The applicant’s first and second grounds of review must fail.

Ground 3: Whether the respondent’s conclusion that the applicant was not willing and able to comply with parole conditions was unreasonable

37    The applicant’s third ground refers to an improper exercise of power. It is apparent from the applicant’s submissions that the ground concerns legal unreasonableness.

38    The applicant contends that the delegate’s conclusion that the applicant was not willing and able to comply with parole conditions was legally unreasonable because the delegate placed undue weight on the applicant’s previous conviction whilst having no or insufficient regard to matters including the applicant’s confession to and cooperation with police, his guilty plea and compliance with bail conditions.

39    The applicant submits that his criminal history and admissions of self-interest in his prior engagement with treatment do not, “foreclose that his post-offending engagement could be genuine, nor provide a basis upon which the respondent could conclude that he was unable to find the applicant was willing and able to comply with parole conditions”. The applicant complains that the delegate did not, “properly engage with the relevant considerations”.

40    The respondent contends that the applicant’s criminal history and admissions of self-interest in his prior engagement with treatment were, “plainly relevant to determining whether the applicant was willing and able to comply with parole conditions”. The respondent submits that the delegate, “weighed up all the factors, took into account the matters that were set out in the Departmental submissions, and made a conclusion, among other things, that the applicant’s risk – immediate risk to the community was best mitigated by refusing parole”.

41    A decision is legally unreasonable if it, “lacks an evident and intelligible justification”: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]. That may be so where a decision is one which no reasonable person could have arrived at: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW) at [10]. The test for unreasonableness is necessarily stringent: SZVFW at [11]. The courts will not lightly interfere with the exercise of a statutory power involving an area of discretion: SZVFW at [11].

42    Determining whether a decision is unreasonable involves construing the relevant statute and evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with common law principles concerning reasonableness in decision-making: see Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (Eden) at [63]. The reasons for the decision are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Eden at [64]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [45]–[47]. The evidence and other material before the decision-maker may also be informative: Roberts v Attorney-General (Cth) (2022) 176 ALD 509; [2022] FCA 574 at [25].

43    It may be observed that the Attorney-General has broad discretion in making or refusing to make a parole order under s 19AL of the Crimes Act 1914. Section 19ALA sets out a wide range of matters that may be considered when making a decision under s 19AL, including the likelihood that the person would comply with the conditions of a parole order and the risk to the community of releasing the person on parole. Section 19ALA does not make consideration of any of the enumerated matters mandatory, and does not limit the factors to which the Attorney-General may have regard.

44    The statement of reasons indicates that the delegate could not be satisfied that the applicant was willing and able to comply with parole conditions, and that the applicant’s release on parole in these circumstances would pose an unacceptable risk to community safety. The delegate had regard to the applicant’s criminal history, including that he committed the two offences that were taken into account in the sentencing while subject to a community-based order for a similar prior conviction and after he had completed sex offender treatment in the community. The delegate also took into account that the applicant had disclosed he had completed that treatment with his self-interest in mind, rather than a focus on changing his offending behaviour.

45    The reasons state that the delegate had, “regard to factors that weigh in [the applicant’s] favour”, including that the applicant had been “of good behaviour while in custody”. While the delegate’s reasons do not disclose any express evaluation of other matters such as the applicant’s cooperation with police and compliance with bail conditions, it was a matter for the delegate to determine the relevance of, and weight to be given to, such matters in assessing the applicant’s likelihood of compliance with parole conditions. That there may have been material before the delegate by which a different conclusion might have been reached, does not demonstrate that the delegate’s conclusion lacked an evident and intelligible justification.

46    In my opinion, the delegate’s reasons clearly identify cogent and rational reasons for his absence of satisfaction that the applicant was willing and able to comply with parole conditions, including a requirement not to violate any law. The decision was not legally unreasonable.

47    The applicant’s third ground of review must fail.

Ground 4: Whether the respondent’s decision to refuse the applicant parole was unreasonable, having regard to the remaining term of his sentence

48    By his fourth ground, the applicant contends that the respondent’s refusal decision was legally unreasonable. The applicant also appears to complain that inadequate reasons for the decision were given.

49    The applicant contends the delegate failed to properly consider, “the period and conditions for which parole may be ordered having regard to the remaining term of the applicant’s sentence”. The applicant submits that the delegate was required to properly consider the, “viability of parole in March 2024” as, “the view may be taken in 2025 that insufficient time remains at that stage for parole to adequately address the supposed risk, with the result that parole is again refused and the applicant would then be held in custody… without ever having been subject to parole”.

50    The applicant argues that the delegate failed to properly consider the purposes of parole specified in s 19AKA of the Crimes Act 1914. The applicant submits that, “the protection of the community as a purpose of parole required assessment of the manner and extent of protection that may be achieved by a grant of parole as opposed to the mere release without parole at the end of a term of imprisonment”, and that, “reintegration into the community under a parole order necessarily requires consideration of the period for which an offender may be subject to such an order”.

51    The applicant also submits that the delegate, in making the refusal decision, reasoned that a relevant factor was that the applicant may be granted parole in the future, but there was, “no logical link between the availability of a subsequent opportunity to be considered for parole and the correctness or otherwise of a decision to refuse at the earlier time”.

52    The applicant argues that that the respondent, “has not articulated consideration of the extent to which the supposed risk [to community] may be addressed through parole conditions”, and, “has not explained why the risk may be expected to be better addressed by a further period in custody than by release on parole with appropriate conditions”. The applicant submits that, “while the respondent has commented upon the result that further time in custody would result in a reduced period on parole, no reasons are given for why a significantly shorter period of supervision would be adequate, despite a longer period being said to be insufficient”.

53    The respondent contends that, “it cannot be said that the respondent did not factor into his decision the remaining term of the applicant’s sentence”. The respondent submits that the delegate was aware of the length of the applicant’s head sentence and that the applicant would be re-considered for parole at least one more time before his sentence expired, as the Departmental submissions before the delegate referred to these matters.

54    In relation to the delegate’s consideration of the purposes of parole specified in s 19AKA of the Crimes Act 1914, the respondent again refers to the Departmental submissions before the delegate which discussed the protection of the community and the applicant’s rehabilitation. The respondent also points out that the delegate, “expressly considered the statutory objective of reintegration”.

55    The respondent contends that there is nothing in the reasons to indicate that the applicant’s chance of parole in the future was an operative reason for the delegate’s decision.

56    The respondent argues that the delegate was not required to articulate his reasoning as to why particular parole conditions would not sufficiently address the risk of the applicant re-offending or why that risk could be better addressed in custody. The respondent submits that the delegate was, “not making any decisions about the adequacy or inadequacy of the length of any parole period”.

57    As has been observed, the Attorney-General has a broad discretion in making or refusing to make a parole order. Section 19ALA does not make consideration of any of the enumerated matters mandatory, and does not limit the factors to which the Attorney-General may have regard. Contrary to the applicant’s contention, the delegate was not required to consider, “the period and conditions for which parole may be ordered having regard to the remaining term of the applicant’s sentence”, when exercising the power under s 19AL(1).

58    The purposes of the power under s 19AL(1) to grant or refuse parole are specified in s 19AKA: the protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community. While these matters are not expressed to be mandatory considerations in exercising the power under s 19AL, the exercise of executive power generally involves consideration of, and an exercise of the power for, the purposes for which that power was conferred: Khawaja v Attorney-General (Cth) at [92].

59    The applicant’s submission that the delegate did not consider the purposes of parole specified in s 19AKA cannot be accepted. The delegate’s reasons contain express consideration of the applicant’s “unacceptable risk to community safety”, his “ongoing sex offender rehabilitative needs”, and, “the best interest of [his] rehabilitation and reintegration”. How the delegate undertook his consideration of those matters, including evaluating their relevance and weight, was a matter for the delegate. It is clear from the statement of reasons that the delegate balanced those considerations and subsequently determined that, “refusing to release [the applicant] on parole at this time means the risk [he] pose[s] to the community can be more effectively mitigated in the short-term”. It cannot be accepted that the delegate exercised the power under s 19AL for purposes inconsistent with those specified in s 19AKA.

60    The applicant’s contention that the delegate, in making the refusal decision, illogically reasoned that a relevant factor was that the applicant may be granted parole in the future, misattributes certain passages of the Departmental submissions to the delegate. The delegate’s reasons specifically state that, “[t]he order for refusal of parole has been made for the following reasons”, and then set out five reasons which do not include any reference to the possibility of the applicant being granted parole in the future or to the passages of the Departmental submissions complained of by the applicant. There was no basis for drawing an inference that the delegate adopted the reasoning contained in the Departmental submissions about the grant of parole in the future: see Roberts v Attorney-General (Cth) (2022) 176 ALD 509; [2022] FCA 574 at [25]–[26].

61    I will now consider the applicant’s contention that the delegate’s reasons are inadequate.

62    Where the Attorney-General refuses to make a parole order under s 19AL, s 19AL(2)(a) requires the Attorney-General to give the person written notice which relevantly includes a statement of reasons for the refusal. The requirement in s 19AL(2) to give reasons is supplemented by 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.

63    As was observed by Thawley J in Khawaja v Attorney-General (Cth) at [26], s 19AL(2) read with s 25D of the Acts Interpretation Act 1901:

…requires no more than that the Attorney-General ‘set out’ the findings which the Attorney-General in fact made, being those which the Attorney-General considered to be material to the decision which the Attorney-General made. Section 19AL(2) does not require the Attorney-General to make findings and then set out those findings.

64    As has been explained, exercising the power under s 19AL(1) does not require the Attorney-General to consider whether the risks to community posed by the applicant being released may be addressed through the grant of parole with conditions, let alone set out such findings. Accordingly, the delegate’s reasons were not inadequate.

65    The applicant’s other complaint that, “while the respondent has commented upon the result that further time in custody would result in a reduced period on parole, no reasons are given for why a significantly shorter period of supervision would be adequate, despite a longer period being said to be insufficient”, again confuses the Departmental submissions with the delegate’s reasons. The delegate’s reasons do not contain any reference to the result of further time in custody or an insufficient period of supervision. The applicant’s complaint about the content of the Departmental submissions is immaterial to consideration of whether the delegate’s reasons were inadequate.

66    For these reasons, the applicant’s fourth ground of review must fail.

Conclusion

67    The applicant has not established any of his grounds of review. The application must be dismissed with costs.

Associate:    

Dated:    11 September 2024