FEDERAL COURT OF AUSTRALIA

Dalton v Attorney-General of the Commonwealth of Australia [2025] FCA 625

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application filed on 14 February 2025 is dismissed.

2.    On or before 4.00 pm on 20 June 2025, each of the parties file and serve brief written submissions (limited to 4 pages) on the question of costs.

3.    On or before 4.00 pm on 27 June 2025, each of the parties file and serve any brief written submissions in response (limited to 2 pages).

4.    The question of costs be determined on the papers.

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

REASONS FOR JUDGMENT

HORAN J

1    The applicant is currently serving a sentence of imprisonment at Middleton Correctional Centre in Castlemaine. On 25 February 2019, he was found guilty of multiple counts of dishonestly obtaining financial advantage from another person contrary to s 134.2 and one count of attempting to dishonestly obtain financial advantage from another person contrary to ss 11.1(1) and 134.2 of the Criminal Code contained in the Schedule to the Criminal Code Act 1995 (Cth). On 16 September 2019, he was sentenced to imprisonment for six years and nine months with a non-parole period of four years and nine months. The applicant’s non-parole period ended on 15 January 2024, and his head sentence will expire on 14 January 2026.

2    During his imprisonment, the applicant has made a series of requests to the Attorney-General of the Commonwealth (the respondent) for his early release on licence, the remission of his sentence, or his release on parole. A consistent theme addressed in these requests concerns the impact of the COVID-19 pandemic on the prison system, including the risks posed to the applicant in the light of his age and health conditions. Among other things, the applicant claimed to be eligible for “emergency management days” or their equivalent in recognition of the disruption and deprivation experienced by prisoners in Victoria as a result of the COVID-19 pandemic.

3    On 29 October 2020, the applicant submitted a written application for his release on licence pursuant to s 19AP of the Crimes Act 1914 (Cth).

4    On 20 December 2023, in advance of the applicant’s eligibility for parole, a delegate of the respondent refused to make a parole order under s 19AL of the Crimes Act in relation to the applicant (2023 parole refusal). An exchange of correspondence then ensued between the applicant and the respondent with a particular focus on the availability of accommodation if the applicant were to be released on parole.

5    On 17 December 2024, a delegate of the respondent again refused to grant the applicant’s release on parole (2024 parole refusal decision). At that time, the Commonwealth Parole Office (CPO) within the Attorney-General’s Department took the view that the application for release on licence that had been made by the applicant in October 2020 had become “void” as a consequence of the 2023 parole refusal.

6    By an amended originating application filed on 14 February 2025, the applicant seeks judicial review of the 2024 parole refusal decision, as well as the adverse decision or finding with respect to his release on licence.

7    The applicant identified the following issues as being raised by the grounds of review:

(a)    Did the delegate’s failure to consider or to make a final decision on the application for release on licence result in a denial of natural justice, or was that failure legally unreasonable?

(b)    Did the delegate fail to take into account relevant considerations in relation to the applicant’s rehabilitation and specific medical needs?

(c)    Did the delegate fail properly to exercise his discretionary power to reconsider the parole application in the light of information about confirmed accommodation and support services available to the applicant?

(d)    Was it legally unreasonable for the delegate to place reliance on sentencing remarks in finding that there was an unacceptable risk to the community if the applicant were released, on the basis that this “led to a double form of punishment by the [e]xecutive”?

(e)    Did the delegate fail to take into account the special circumstances arising from the impact and burden of COVID-19 on prisoners in the State of Victoria?

8    For the reasons set out below, the applicant has not established that the 2024 parole refusal decision was affected by legal error. While I find that the respondent failed to make a decision on the application for a licence under s 19AP of the Crimes Act within a reasonable time, there is no utility in granting mandamus or analogous relief to require the respondent now to consider and determine that application, particularly in circumstances where it remains open to the applicant to make a further application for a licence under s 19AP(2) specifying the exceptional circumstances that are currently relied on to justify the grant of the licence.

9    Accordingly, the application is dismissed.

FACTUAL BACKGROUND

10    The applicant was born on 12 January 1954, and is currently 71 years of age. He is an Australian citizen.

11    The offences of which the applicant was convicted in 2019 involved a fraud on the revenue arising from the lodgement of multiple false business activity statements in which expenditure was overstated in respect of a residential property development, in order illegitimately to obtain goods and services tax refunds. The refunds were transferred into accounts owned or controlled by the applicant, and used in satisfaction of his personal expenditure. The amount that was dishonestly obtained from the Commonwealth was approximately $480,000.

12    As mentioned above, the applicant’s sentence expires on 14 January 2026, and he has been eligible for parole since 15 January 2024.

13    In March and April 2020, the applicant wrote a series of letters addressed to the respondent. Among other things, these letters referred to “the current arrangements which are affected as a result of the extraordinary circumstances currently being experienced in the community” relating to COVID-19, and its particular impact on those in the applicant’s demographic. The applicant also gave notice of his pending appeal against his conviction and sentence, referring to the potential delay in the hearing of that appeal. The applicant relevantly stated that “[t]he government should investigate the release of prisoners, under Parole, Licence or Community Corrections Order, whilst maintaining their ‘head sentence’ and having them contribute positively”. The applicant referred to newspaper reports in relation to the impact of the COVID-19 pandemic having been taken into account in criminal sentencing processes, and the risks of COVID-19 entering the prison system. He noted in particular the danger presented by COVID-19 to those with heart conditions.

14    On 12 May 2020, the Department wrote to the applicant in response to his correspondence. The letter relevantly stated:

Correctional services across Australia, including Corrections Victoria, are taking extraordinary precautions to ensure that the health and safety of all offenders is sufficiently protected during the COVID-19 pandemic.

This includes isolating all new offenders for 14 days before they are integrated into the general prison population and mandating that all corrections staff self-isolate and undergo testing if there are any concerns that they may have contracted the virus.

There are two mechanisms through [sic] federal offenders may be released earlier than the date set by the court, if certain circumstances are met. These are:

•    early release on licence, and

•    up to 30 days early parole (which is only eligible to offenders applying to be released from prison up to 30 days prior to their parole date).

Under section 19AP of the Crimes Act 1914 (Cth) the Attorney-General or their delegate is permitted to grant a licence to a federal offender to be released from custody if they are satisfied that exceptional circumstances exist which justify the granting of a licence.

A person may be granted early release on licence if they can demonstrate:

•    extensive cooperation with law enforcement authorities that was not taken into account by the sentencing court or that took place after the person had been sentenced

•    they are suffering from a serious medical condition that cannot be adequately treated or managed within the prison system, or

•    that there are compassionate grounds necessitating release (this is only justified in cases of extreme hardship).

Excellent conduct, remorse or contrition or family hardship (unless of an extreme kind) would not normally constitute exceptional circumstances to justify the grant of early release on licence.

If you wish to apply for early release on licence, I have attached to this response an application form which you can complete and return to us at cpo@ag.gov.au or via post …

All applications are assessed on a case-by-case basis.

I must note that if you do decide to appeal your conviction, you will not be eligible to apply for early release until the outcome of your appeal is known and the Department has been notified of the outcome.

15    The letter from the Department attached a form entitled “Application for early release on licence”, in which it was stated that such an application “may be dealt with at any time during a prisoner’s sentence”. The form also relevantly stated:

Once the application form is completed and all documentation has been received, the offender’s case will be submitted to the Attorney-General or their delegate for consideration. The offender will be advised of the decision in due course.

As the Department may need to make further enquiries to substantiate the offender’s claims and may rely on other agencies to provide information, an estimated timeframe for a decision cannot be provided.

16    Between June and October 2020, the applicant sent a number of further letters to the respondent. It is unnecessary for present purposes to detail all of the matters raised in this correspondence. Relevantly, the applicant applied for his release on parole, and the remission of his sentence on account of “emergency management days” as a result of disruptions and deprivations resulting from the COVID-19 pandemic.

17    On 23 October 2020, the Department wrote to the applicant, relevantly stating as follows:

Apart from consideration for release on parole at the expiry of the non-parole period, the only type of early parole available under the Commonwealth Crimes Act 1914, is release on parole, not earlier than 30 days before the expiry of the non-parole period. As your non-parole period does not expire until 13 January 2024, you could not be considered for 30 days early parole until late 2023.

A partial remission of sentence would be an exercise of the Royal Prerogative of Mercy by the Governor-General, acting on the advice of the Attorney-General. Such remissions are rarely granted. In the past, some prisoners have chosen to have their applications for a remission of sentence treated as an application for early release on licence.

Early release on licence under section 19AP of the Crimes Act may occur where exceptional circumstances exist and the Attorney-General or his delegate determines that those circumstances would justify early release from custody. The circumstances in which early release on licence have been granted are cases involving extensive cooperation with law enforcement authorities that was either not known to the sentencing court, or occurred after the person was sentenced, or where the person is suffering from a serious medical condition that cannot be adequately treated or managed within the prison system.

Please advise whether you wish to proceed with an application for the Royal Prerogative of Mercy or an application for early release on licence. If applying for release on licence, you need to set out the exceptional circumstances on which you are relying.

18    On 28 October 2020, Mr Dalton wrote to the respondent, again requesting a grant of emergency management days and the remission of his sentence, together with the grant of parole “in line with my revised Earliest Release Date”, which he contended should be brought forward to 23 December 2020.

19    On 29 October 2020, the applicant wrote a further letter to the respondent, in which he relevantly stated:

I canvassed the issue of release on licence on a number of occasions in previous correspondence. I acknowledge the bases you quote as ground for the granting of such release. The overwhelming extraordinary circumstances that exist is the COVID-19 emergency together with reaction to $561 million frauds against the community and the ATO.

…

I believe you should consider this application for release on license clearly with the knowledge I will assist your office or delegates in their pursuit of those responsible for the above and many other criminal acts. I am not a risk of re-offending upon release, my case worker in this place has already come to that conclusion. I will be happy to abide by any reasonable conditions you may wish to impose that are not overly restrictive. I reiterate that the funds flowing from the matter did not come my way. I am still inclined to assist you to recover the funds, that attitude may change if I am forced to complete an unwarranted sentence. I will then collect the funds owed to myself and related corporate entities from this person – along with the funds I am currently doing time for.

…

I request this appraisal be undertaken in a timely manner, and for you to advise me, in writing, of your decision, or further request appropriate further information or requirements within 28 days of this correspondence.

I therefore hereby request such notification together with a statement of reasons for the decision as request under Section 8, Sub-Section 1, of the Administrative Law Act 1978 (Vic).

(Emphasis in original.)

20    The applicant subsequently sent further correspondence to the respondent setting out medical information for consideration in support of his application for release on licence.

21    On 4 December 2020, the applicant again wrote to the respondent, providing a submission on behalf of persons held in custody by Corrections Victoria who were serving a sentence for a federal offence, in support of the grant of remissions in sentence on account of emergency management days. The applicant also attached correspondence with the Acting General Manager of the Marngoneet Correctional Centre seeking a variation to the standard regime in the light of disruptions related to COVID-19.

22    On 15 January 2021, the Department wrote to the applicant in response to his correspondence regarding the application of emergency management days. The letter relevantly stated:

Emergency management days as a result of the COVID-19 pandemic may be applied to federal offenders. Where it is determined that emergency management days should be applied to a federal offender’s sentence, these days may be effectively taken off a federal offender’s non-parole period by the exercise of the discretionary powers in subsection 19AL(3A) and section 19AP of the Crimes Act 1914. The exercise of these discretionary powers is considered on case by case basis in relation to individual federal offenders.

23    On 19 January 2021, Mr Dalton sent further correspondence to the respondent. In this correspondence, the applicant requested a decision or a response on the progress of his applications for the grant of emergency management days or their equivalent, the grant of full or partial remission of his sentence, the grant of release on licence, and the grant of parole. The applicant requested that the respondent

attend to my applications as a matter of urgency as when [emergency management days] or their equivalent, at the appropriate rate – as requested – are applied to my sentence my [earliest eligibility date] passed on 23rd December 2020 and I was eligible for parole on 23rd December 2020.

24    On 24 February 2021, the respondent received an email from the applicant, attaching a letter dated 19 February 2021 addressing the grant of emergency management days or their equivalent by way of partial remission of sentence or release on licence to compensate for disruptions and deprivations as a consequence of the COVID-19 pandemic, so as to achieve “parity of sentence conditions differential between Victoria and other jurisdictions, where those serving federal sentences are held”.

25    On 1 May 2021, the applicant wrote to the respondent requesting that she “personally read my previous correspondence and applications with a view to dealing with said in an appropriate manner and in a realistic timeframe”.

26    The Department wrote to the applicant on 8 July 2021, relevantly stating:

I am writing to you about your application for early release on licence.

Your application states that you are also representing other individuals. Please be advised that federal offenders seeking early release on licence must make their own applications in writing, or provide written authority for another person to act on their behalf.

…

You have sought early release on licence, primarily on the basis of the following matters:

•    your concerns about the COVID-19 pandemic

•    your claims regarding your eligibility for Emergency Management Days (EMDs)

•    the deprivations and restrictions you have experienced due to the COVID-19 pandemic, and

•    your offer to assist law enforcement authorities.

When considering your application for early release on licence, the principle of procedural fairness (also known as natural justice) requires you to be aware, or made aware, of adverse information that is credible, relevant and significant to the decision of whether to grant a licence, and that you be given the opportunity to address that information and make submissions in relation to it.

Your concerns about the COVID-19 pandemic

You have sought early release on the ground that you are at risk within a prison facility due to the COVID-19 pandemic and the threat it poses to your health and well-being. This ground has not been supported with evidence to show you are especially at risk.

You have also claimed that the COVID-19 pandemic is not being adequately managed by Corrections Victoria. This claim has not been supported by any evidence.

The decision-maker may not be satisfied that you are especially at risk of contracting COVID-19 or suffering complications as a result of COVID-19, or that the threat is not being managed appropriately by Corrections Victoria. Without adequate evidence to support your claims, the decision-maker may conclude that these grounds do not establish exceptional circumstances to justify early release on licence at this time.

Your claims regarding your eligibility for Emergency Management Days

You have stated that you believe due to the disruption and deprivations you have experienced due to the COVID-19 pandemic, you should have been granted more EMDs than you have been granted.

The granting of EMDs is a matter for the Victorian Department of Justice and Community Safety. The Attorney-General does not have the power to grant you EMDs. If you wish to discuss this further, please contact the Victorian Department of Justice and Community Safety.

Section 19AA of the Crimes Act 1914 (Cth) (the Crimes Act) deals with remissions for federal offenders imprisoned in a state or territory. Subsection 19AA(1) provides that state or territory laws providing for remissions apply to federal offenders under sentence in the prisons of that state or territory.

The Crimes Act does not provide for the automatic reduction of a federal offender’s non-parole period who has been granted EMDs unless those EMDs were granted as a result of industrial action.

EMDs you are granted will be applied to reduce your Commonwealth head sentence.

Disruptions and deprivations experienced due to COVID-19

Your correspondence outlines the disruptions and deprivations you have suffered as a result of the COVID-19 pandemic. These include:

[The matters raised in the applicant’s correspondence were summarised in bullet-point form.]

Exceptional circumstances capable of justifying early release on licence will generally be particular to the applicant. You have not provided any evidence which would indicate that the deprivations and restrictions you have experienced due to the COVID-19 pandemic have affected you in any special way.

The decision-maker may consider that the hardship you have experienced due to the COVID-19 pandemic is equivalent to that experienced by other prisoners. The decision-maker may conclude that this ground does not establish exceptional circumstances to justify early release on licence.

27    It may be noted in passing that s 19AA of the Crimes Act, which was referred to in the correspondence set out above, was later repealed with effect from 9 December 2021: see Crimes Amendment (Remissions of Sentences) Act 2021 (Cth) (Amendment Act) Sch 1, item 2.

28    On 23 August 2021, having been invited to provide further information in support of his application for early release on licence, the applicant provided an “addendum” to that application, addressing his contentions that his sentence was manifestly excessive and the impact of COVID-19 on prisoners in Victoria. By letter dated 12 November 2021, the applicant provided a further “addendum” to his application.

29    Between September 2022 and April 2023, the applicant sent further correspondence to the respondent in relation to his applications for release on licence, release on parole, and full or partial remission of his sentence.

30    On 9 May 2023, the Department wrote to Mr Dalton stating that his “application for release on licence remains active and is currently being considered” and that the Department may write to him “once again regarding any matters that may adversely affect” his application. The letter also acknowledged the applicant’s concerns about the delay in processing his application, and stated that there was “no timeframe for determining these matters” and that “[m]atters with statutory timeframes must be prioritized”. In respect of the applicant’s request for remission of his sentence, the Department noted that he had been provided with information as to how to make an application for an exercise of the royal prerogative of mercy, and that such applications were assessed on a case-by-case basis. The Department also stated that, before the end of his non-parole period on 15 January 2024, he would be considered for release on parole in accordance with s 19AL(1) of the Crimes Act.

31    On 1 August 2023, the applicant wrote to the respondent, referring to his medical conditions and inquiring as to the progress of his applications. The Department responded by letter dated 11 August 2023, in substance repeating the contents of its previous letter dated 9 May 2023.

32    The applicant sent further correspondence to the respondent on 15 August 2023, 10 October 2023, 18 October 2023 and 26 October 2023. In his 10 October letter, the applicant raised concerns about the safety and welfare of his partner, as a result of which he was reluctant to provide her address to parole authorities. While asserting that he was “clearly not homeless”, the applicant referred to his expectation that he would be “deemed not to have an acceptable address and therefore probably denied parole”. The applicant contended that the State was failing to meet the “transitional needs” of prisoners who did not have a home to go if released on parole. In his 18 October letter, the applicant addressed his “continuing declining health”, and provided a medical certificate in relation to his heart disease and other medical conditions.

33    On 13 November 2023, the Department wrote to the applicant about the consideration of his release on parole. The letter relevantly stated:

You will be considered for Commonwealth parole before the end of your Commonwealth non-parole period. You do not need to make an application for parole. Decisions made about your release on Commonwealth parole are discretionary. This means that when your case is considered, a decision will be made about whether to grant or refuse your release on parole.

…

Federal offenders are not subject to a parole hearing. The decision making process occurs in accordance with the principles of procedural fairness (also known as natural justice). This requires that you be aware, or be made aware, of adverse information that is credible, relevant and significant to the decision whether to grant you parole, and that you are given the opportunity to address that information and respond to it.

This letter is to give you the opportunity to respond to that information.

34    The letter proceeded to indicate the information relevant to the decision on parole that had been received by the Department, and set out a detailed summary of “adverse” matters that may weigh against him being released on parole. This relevantly included the applicant’s “[p]ost-release plans” in relation to accommodation, in respect of which the letter from the Department stated:

The decision-maker may be concerned that you do not have approved accommodation to live at if you are released at this time.

Information the decision-maker will consider includes:

•    There is no information about where you plan to live upon your release into the community. You advised that there was an address in Melbourne however you did not provide the address for assessment.

Appropriate plans for accommodation are considered an essential aspect of a parolee’s lawful reintegration into the community. It can provide a parolee with stability from which to engage with professional supports, and build social supports. As such, lacking appropriate accommodation may indicate that a person is not well-placed to benefit their rehabilitation in the community and could pose an unacceptable risk to the safety of the community.

The letter also raised analogous issues in relation to the applicant’s post-release plans for progressional supports in the community, pro-social supports and leisure activities, and employment or financial supports.

35    In relation to the applicant’s application for early release on licence, the letter from the Department dated 13 November 2023 stated:

The Commonwealth Parole Office has received your application for early release on licence. The application states that you seek early release on parole on the following grounds:

•    The extraordinary circumstances surrounding your imprisonment during the COVID-19 pandemic, and your serious medical condictions [sic] that cannot be treated or managed within the prison system, and

•    Your voluntary cooperation with law enforcement with information involving 2 fraud offences you claim have not been investigated and prosecuted.

As stated in our letter dated 9 May 2023, your application for release on licence remains active and is currently being considered.

36    On 30 November 2023, the applicant wrote to the respondent in response to each of the matters set out in the Department’s letter. Under the heading “Post Release Plans”, the applicant stated that that he had “made the situation abundantly clear in relation to an address for parole”, namely that he would not put his partner “at risk” and would provide the relevant address after he was released, and would submit to having the home assessed prior to him “moving in”. The applicant said that he had asked his parole officer “some five weeks ago” to complete the paperwork for accommodation at a State-run facility in Maribyrnong, but had been told that such a referral had not been made and that there was “apparently a waiting list of some three months for a bed at that establishment”. The applicant also stated that he had “approached the Salvation Army for accommodation at their Waverley project” and believed that a bed would be made available in order to fulfil any requirement for the grant of parole. The applicant identified a “third option” involving accommodation being provided by the Commonwealth at a facility in Mickelham that was “currently sitting largely unused”. The applicant asserted in his letter:

The reality is that I will always have suitable accommodation which will provide me with a suitable, stable home to allow myself to re-integrate into society and meet any obligations I have relating to parole, medical and other positive commitments.

I will put in place the necessary framework for any/all professional supports needed and towards building appropriate positive social supports.

37    The applicant provided an “addendum” to his response by letter dated 12 December 2023, which reiterated his position in relation to the provision of a suitable address for parole, and his attempts to make arrangements for accommodation upon his release.

The 2023 parole refusal

38    On 20 December 2023, a delegate of the respondent decided under s 19AL(1) of the Crimes Act to refuse to make a parole order directing that the applicant be released from prison.

(a)    The delegate took into account the nature and circumstances of the applicant’s offending and the comments of the sentencing court, and considered that the applicant’s release on parole would pose an unacceptable risk to community safety.

(b)    In the light of the applicant’s significant criminal history and custodial sentences dating from 1978 (including similar fraud offending to his current offences as well as driving offences, theft, obtaining property by deception, burglary, dealing with the proceeds of crime, and offences of violence), the delegate considered that the applicant may reoffend and would pose an immediate risk to the community.

(c)    The delegate considered that the applicant did not have appropriate plans for accommodation in the community. The delegate stated:

Corrections Victoria confirmed that you are refusing to supply accommodation details as you fear for the safety of your partner. While you have sought accommodation through a Maribyrnong facility and the Salvation Army, confirmed placement has not been received to date.

Given you do not have approved accommodation, you are not well-placed to lawfully reintegrate into the community, and I consider that your release in these circumstances poses an unacceptable risk to the safety of the community.

(d)    The delegate concluded:

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 coming to this conclusion, I have had regard to matters that weigh in your favour including your improved insight, and that there are benefits of you being able to able to have a period of parole.

(e)    The delegate advised that, under s 19AL(2)(b) of the Crimes Act, he would reconsider the applicant for release on parole within 12 months.

39    When making the decision to refuse parole, the delegate had before him a Departmental brief from an officer in the CPO, which set out the relevant background and summarised the parole reports from Corrections Victoria and the applicant’s responses to the Department’s letter dated 13 November 2023. Among other things, the parole reports addressed the applicant’s personal circumstances and post-release plans, including in relation to the availability of accommodation. The brief noted that the applicant had declined to provide Corrections Victoria with a “potential address” due to his concerns about the safety of his partner if the information was “leaked” to his former business partner. The Departmental brief stated as follows in relation to accommodation under the heading “Reintegration of the offender into the community”:

66. Mr Dalton does not have confirmed accommodation, following claims he is unable to supply the CPO or [Corrections Victoria] with his intended residence with his partner citing various threats to both his and his partners safety. Mr Dalton appeared to be actively avoiding providing an address to [Corrections Victoria], instead providing those that either didn’t exist or didn’t contain enough information for the address to be assessed. This is particularly concerning should he be released to parole as his whereabouts and accommodation are a significant element of parole supervision to manage the risk to the community. Mr Dalton reported that he had asked his parole officer to complete paperwork for accommodation at a Maribyrnong facility, however to date this has not occurred. Mr Dalton reported that he has also approached the Salvation Army and he “believe[s] a bed would be made available for myself which would certainly fulfil any requirement for the granting of parole”.

Appropriate plans for accommodation are considered an essential aspect of a parolee’s lawful reintegration into the community. It can provide a parolee with stability from which to engage with professional supports, and build social supports. As such, lacking appropriate accommodation may indicate that a person is not well-placed to benefit their rehabilitation in the community, and could pose an unacceptable risk to the safety of the community. The CPO considers Mr Dalton does not have appropriate accommodation plans in place at this time.

Events following the 2023 parole refusal

40    The applicant wrote to the respondent in response to the 2023 parole refusal, relevantly attaching a letter from the Salvation Army dated 20 December 2023 which confirmed that he had been accepted into a program called “People Going Beyond” with an offer of accommodation at a specified address. The applicant stated that this letter had been separately forwarded to the respondent’s office on the same date as the 2023 parole refusal. The applicant submitted that this placement was the “best possible option” to mitigate any risk, and stated as a “fact”:

You now have confirmed, approved accommodation, which I believe, was the greatest concern you may have had for parole being withheld.

The applicant requested the respondent to reconsider the decision and “grant Release on Licence, followed by Parole immediately and allow me to move forward with what life I may have left, in line with the intention of the sentencing court”.

41    By further letter dated 7 February 2024, the applicant advised the respondent that, in the light of his acceptance in the Salvation Army program, it was “absolutely clear that the underlying reason for refusal of parole … was not valid or factually correct” at the time that he had been given notice of the 2023 parole refusal. The applicant asserted his belief that the notice had “no legal standing and may be challenged in the courts”. The applicant also relevantly stated that, in so far as the other reasons for the parole refusal were “effectively the reasons set down by the court for the existing, heavy sentence”, the use of those reasons to “extend” the applicant’s sentence amounted to a “double jeopardy”. The applicant again called for the respondent immediately to reassess or reconsider the parole refusal decision “in the light of the information which was available to you at the time your decision was conveyed to myself – but ignored” (emphasis in original). In that context, the applicant noted that “[t]he accommodation available to myself with the place in the People Going Beyond program likely has an expiry date”, and that, if he should “miss this opportunity”, it would be difficult to justify the cost of his continued incarceration.

42    By letter dated 16 February 2024, the Acting Director of the CPO advised the applicant that the Crimes Act “does not provide a mechanism for merits review of decisions made under Part IB, including parole decisions” and, “[a]s such, we are unable to facilitate a review of the decision to refuse to release you on parole at this time”. The Department advised the applicant that his release on parole would be reconsidered by 19 December 2024, within 12 months of the date of the 2023 parole refusal, prior to which the CPO would provide him with an opportunity to respond to any adverse matters that may weigh against a decision to grant him parole.

43    In subsequent correspondence to the respondent and the Department/CPO, the applicant pressed for the reconsideration of his release on parole, reiterating that he had accommodation at an appropriate address.

44    On 17 September 2024, the applicant commenced the present proceeding in this Court, seeking judicial review of the alleged failure by the respondent to grant a full or partial remission of his sentence, release on licence or release on parole, and the decision to refuse parole.

45    By letter dated 22 October 2024, the Director of the CPO advised the applicant that his release on parole would be considered by the Attorney-General or a delegate within 12 months of the date of his previous refusal. The structure and content of this letter were similar to the letter dated 13 November that was sent in advance of the 2023 parole refusal (see paragraphs 33 to 35 above), setting out the considerations that would be taken into account when deciding whether to grant or refuse the applicant’s release on parole, and inviting the applicant to respond to adverse information that was credible, relevant and significant to that decision.

46    Relevantly, in relation to accommodation as an aspect of the applicant’s post-release plans, the Director stated that “[t]he decision-maker may be concerned that you do not have approved accommodation to live at if you are released at this time”. The letter continued:

Information the decision-maker will consider includes:

•    [Corrections Victoria] reported that Magpie Nest Housing will do its best to keep your proposed accommodation in Mount Waverley available. However, it is unclear if the property remains available should you be granted release on parole.

•    [Corrections Victoria] confirmed it would engage with the Salvation Army Melbourne and an environmental scan would be completed if a property is available.

•    Available information suggests you do not have confirmed and approved accommodation to reside at in the community.

47    In relation to the application for early release on licence that was made by the applicant on 29 October 2020, the letter stated:

The Commonwealth Parole Office considers that your application for early release on licence is now void. You have been considered for and refused release on parole, and the statutory requirement for release on licence is much higher than the statutory requirement for release on parole.

48    The applicant provided his response by a handwritten letter dated 11 November 2024. Among other things, the applicant stated that the community did not require protection from him and that his continued incarceration would only make his re-integration into the community more difficult. The applicant referred to his good behaviour during his sentence, his completion of educational courses and programs, and the grant of multiple prison permits which permitted short-term outings into the community. In response to the adverse information regarding the availability of accommodation, the applicant stated as follows:

We are all well aware that the Magpie Nest Housing through the People Going Beyond Program with the Salvation Army held a place for me for 11 months, having now fallen over through no fault of my own, or the Salvation Army.

I believed the property would be available and made no attempts to locate alternative accommodation.

The problem, as outlined by [the] Executive Director, Community Corrections and Parole, relates to the CPO not giving a parole release date to organisations offering accommodation. Those organisations will only hold a place for 6-8 weeks. The People Going Beyond Program held a place for 12 months. They have lost 7 properties in the last 6 weeks and now have a shortage.

Corrections Victoria have failed in their obligations to assist releases, given the above 6-8 week restriction.

I am currently housed in an environment without access to Vacro, however I will be moved to another location very shortly, allowing me access to Vacro and their housing options.

Given the above, parole can be granted immediately to either the Maribyrnong Centre (run by Corrections Victoria) which has vacancies now or to an address provided by Vacro shortly, either address/option would be totally acceptable for parole.

Appropriate accommodation is and will be available.

(Emphasis in original.)

49    The applicant did not provide a response to the position that had been taken by the CPO to treat his application for early release on licence as “now void” in the light of the 2023 parole refusal.

The 2024 parole refusal decision

50    On 17 December 2024, the delegate made the 2024 parole refusal decision. In the parole refusal notice, the delegate stated that he had taken into account the submissions made by or on behalf of the applicant. The notice set out the following reasons for the decision to refuse parole to the applicant.

51    First, having regard to the nature and circumstances of the applicant’s offending and the comments by the sentencing court, the delegate found that the applicant’s release on parole would pose an unacceptable risk to community safety. The delegate referred to the circumstances of the offences, in which the applicant had “dishonestly profited from the lodgement of 16 false Business Activity Statements lodged with the Australian Tax Office which resulted in a refund of $479,714.84”. The delegate noted that the sentencing judge had found that the applicant was the “sole architect and beneficiary of the scheme” and that he had sought to blame others for his actions once they were detected. The delegate stated that “[t]he court determined you demonstrated no remorse, were entrenched in your dishonesty, and the community needed protection from your dishonest endeavours”.

52    Second, the delegate considered that the applicant lacked “approved accommodation, and social and professional supports in the community”. The delegate stated that a previous offer of accommodation through “Magpie Nest Housing” had been contingent on the applicant being granted parole, and that there was “no updated information from Corrections Victoria indicating that the residence remains available and suitable for [the applicant] in the community”. The delegate noted that other accommodation options that had been raised by the applicant were “also unconfirmed”, and that “Corrections Victoria has recommended against your release on parole given your lack of accommodation”. The delegate also made findings regarding the professional supports and family or social networks that would be available to the applicant. The delegate concluded that “[b]ased on this information, I consider your release at this time would not be in the best interests of your rehabilitation and reintegration, and you may pose a risk to community safety”.

53    Third, the delegate found that the applicant lacked insight into his offending, as he had “consistently failed to accept responsibility and demonstrate remorse for [his] offending since the time of [his] trial”. The delegate referred to letters submitted by the applicant in which he disputed the nature and circumstances of his offending, continued to apportion blame to others, and presented with limited understanding of the impact of his actions on the victims of his offending. The delegate repeated the finding that the applicant’s release would not be in the best interests of his rehabilitation and reintegration, and that he may pose a risk to community safety.

54    Fourth, the delegate had regard to the applicant’s significant criminal history dating back to 1978, and expressed concerns with his ability to be of good behaviour and comply with the conditions of a parole order. Again, the delegate found that the applicant’s release on parole posed a risk to community safety.

55    Fifth, and finally, the delegate found that the applicant’s release on parole at that time posed a risk to the community, despite having had regard to the matters that weighed in favour of the applicant’s release, including that he had “some means to finance [himself] in the community” and “plans to develop [his] social network through leisure activities”.

The material before the delegate

56    When making the 2024 parole refusal decision, the delegate had before him a brief from the Director of the CPO who recommended that the applicant should not be granted parole, based on his outstanding rehabilitative needs, inadequate post-release plans, and resulting risk to community safety. As the respondent submitted:

The Departmental Submission is 311-page document, comprising a covering submission to the delegate and ten attachments. The attachments include the remarks of the sentencing judge (Attachment A), the 2023 Parole Refusal Notice (Attachment B), a Parole Assessment Report, and two addendum reports, prepared by Corrections Victoria (CV) (Attachments D-F) and correspondence and material provided to and from Mr Dalton (attachments G-J).

57    The brief set out the relevant background, including the 2023 parole refusal. In relation to the application for early release on licence that was made by the applicant on 29 October 2020, the brief stated:

Mr Dalton’s application was progressed through not completed. The Commonwealth Parole Office (CPO) considers the application became void when he was refused parole in 20 December 2023.

The brief also referred to the pending judicial review proceeding that had been filed by the applicant in this Court.

58    The brief summarised the nature and circumstances of the applicant’s offending, relevant comments made by the sentencing court, the applicant’s criminal history and antecedents, and several reports from Corrections Victoria dated 19 May 2023, 24 August 2023 and 12 August 2024, each of which did not support the applicant’s release on parole. The reports from Corrections Victoria again addressed the applicant’s concerns about providing the address of his partner or residing with her on his release. In relation to post-release plans, the Departmental brief stated (based on the parole reports):

52. Mr Dalton does not have approved accommodation in the community. On 6 December 2023, he was referred to the Maribyrnong Community Residential Facility, though on 26 June 2024 his referral was not accepted.

53. Mr Dalton was previously offered a place in Mount Waverley, Victoria, through Magpie Nest Housing (Salvation Army). However, this was contingent on parole being granted and could only be held for six to eight weeks. Mr Dalton claimed at the time of the 2024 Addendum Report that accommodation was available and waiting for him, though on 6 August 2024 the case manager for the accommodation service stated the best they could offer was for Mr Dalton to contact them in October/November if he is due to be released in December.

54. [Corrections Victoria] stated it would engage with Salvation Army at the beginning of October 2024 and organise for an environmental scan to be completed if the accommodation is available. No such report has been provided.

55. Mr Dalton previously reported that he seeks to recommence the Disability Support pension upon release. He advised he was receiving this payment before his placement in custody due to the heart attack he had in 2005.

56. Mr Dalton planned on spending time with [his partner] and travelling upon his release, however stated he ‘made it abundantly clear he cannot travel while on parole’. He also advised that he planned to build a home on the block he previously proposed to reside at, though residency and ownership of the land could not be confirmed.

59    The Departmental brief addressed and summarised the letters sent by the applicant to the respondent and the CPO during his incarceration. This included the comments provided by the applicant in response to adverse matters raised by the CPO regarding the nature and circumstances of the offending; his insight into the offending; his “pro-criminal attitudes”; his mental and physical health; his criminal history; issues in relation to accommodation; pro-social supports and leisure activities; and employment and finances.

60    In relation to accommodation, the brief summarised the applicant’s claims set out in his letter dated 11 November 2024, including his claim that parole could be granted immediately either to the Maribyrnong Centre run by Corrections Victoria or to an address provided by Vacro (a community organisation that offers services to adults involved in the criminal justice system and their families). Based on available information, the CPO considered that the applicant still lacked approved accommodation, stating that:

There is no information from [Corrections Victoria] confirming it has deemed any residence adequate for his release and the CPO views it would not be appropriate in such circumstances to grant release on the basis of unconfirmed options.

61    The Departmental brief noted that, as the applicant’s sentence will expire on 14 January 2026, the decision would be “the final time for him to be considered for parole and receive a constructive period of supervision”. However, the CPO considered that “further time in custody to develop insight and his post-release plans will be of significant benefit in mitigating [the applicant’s] risk of reoffending in the community” and that “both the short and long-term risk to the community are best served by [the applicant] staying in custody at this time”.

62    The CPO therefore recommended that the applicant should not be granted parole at that time, based on his outstanding rehabilitative needs, inadequate post-release plans, and resulting risk to community safety.

AMENDED ORIGINATING APPLICATION

63    The applicant relies on an amended originating application for judicial review that was filed on 14 February 2024. The amended application no longer challenges the 2023 parole refusal, which has since been superseded by the 2024 parole refusal decision. Instead, the applicant now seeks the following substantive relief:

1.    An order requiring the Commonwealth Parole Office to make a decision in respect to the request for release on licence.

2.    An order quashing the 2024 Refusal decision.

3.    An order requiring the respondent to make appropriate enquiries, including as to housing availability, and make a fresh parole decision under s 19AL of the Crimes Act 1914 (Cth) within 7 days of any decision by this Court.

64    The amended originating application set out six grounds of review, which may be summarised as follows:

(a)    Ground 1: the respondent failed to decide his application for release on licence within a reasonable time, or at all;

(b)    Ground 2: in making the 2024 parole refusal decision, the respondent failed to take into account relevant considerations or took into account irrelevant considerations;

(c)    Ground 3: the respondent acted unreasonably by failing to reconsider the 2023 parole refusal after having been notified of additional relevant information in relation to the availability of accommodation and community assistance;

(d)    Ground 4: alternatively to Ground 3, the 2024 parole refusal decision involved an improper exercise of discretionary power in accordance with a rule and without regard to the merits of the case (in so far as the respondent proceeded on the basis that parole would be reconsidered by 19 December 2024, and not sooner, being “within 12 months” of the 2023 parole refusal);

(e)    Ground 5: the 2024 parole refusal decision was unreasonable or involved an improper use of power or was in bad faith, by having regard to the comments made by the sentencing court in relation to the risk to community safety so as to “increase the punishment and/or exercise a double form of punishment on the applicant”;

(f)    Ground 6: the 2024 parole refusal decision involved an improper exercise of discretionary power without regards to the merits of the case or failed to take into account a relevant consideration, in particular by failing to consider the impact and burden of COVID-19 on prisoners in Victoria and the grant of emergency management days due to disruptions and deprivations suffered during that period.

Statutory framework

65    Part IB of the Crimes Act deals with the sentencing, imprisonment and release of federal prisoners. Division 5 of Pt IB deals with conditional release on parole or licence.

66    Section 19AKA sets out the purposes of parole, being the protection of the community, the rehabilitation of the offender, and the reintegration of the offender into the community. While these purposes each cover different ground, their consideration in any particular case “will generally reveal that they interact and in some respects overlap”: Khawaja v Attorney-General (Cth) (2022) 293 FCR 396 at [15] (Thawley J). As Anderson J noted in Rodgerson v Attorney-General (Cth) [2024] FCA 1354 at [24], “[n]o pre-eminence or priority is given to any one purpose”, and their relative weight is “a matter for the for the decision maker in the exercise of discretion”.

67    Where a court has fixed a non-parole period in respect of a federal sentence, s 19AL confers power on the Attorney-General to make an order directing that a federal offender be released on parole. Section 19AL relevantly provides:

19AL Release on parole—making of parole order

(1)    The Attorney-General must, before the end of a non-parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole (a parole order).

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

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

(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.

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

(2A)    If the Attorney-General does not, under paragraph (2)(b), reconsider the making of a parole order for a person and either make, or refuse to make, such an order before the end of the 12 month period referred to in that paragraph, the Attorney-General must, as soon as practicable after the end of that period, reconsider and either make, or refuse to make, a parole order for the person.

Contents of parole order

(3)    A parole order must:

(a)    be in writing; and

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

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

Note 1:    For when a person is released on parole in accordance with a parole order, see section 19AM.

Note 2:    A person released on parole must comply with any conditions of the parole order during the parole period (see sections 19AMA, 19AN and 19AU).

(3A)    If the Attorney-General considers that in all the circumstances it is appropriate to do so, the Attorney-General may specify in a parole order that a person is to be released from prison on a day that is before the end of the non-parole period, but is not earlier than 30 days before the end of the non-parole period.

68    Section 19ALA sets out a non-exhaustive list of matters to which the Attorney-General may have regard in making a decision whether or not to make a parole order under s 19AL in relation to a person, where such matters “are known to the Attorney-General and are relevant to the decision”.

69    Section 19AP confers power on the Attorney-General to grant a licence for a person serving a federal sentence to be released from prison, if there are exceptional circumstances which justify the grant of the licence. Section 19AP relevantly provides:

19AP Release on licence

(1)    Where a person is serving a federal sentence (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), the Attorney-General may grant a licence under this subsection for the person to be released from prison.

(2)    A person who is serving a federal sentence of imprisonment (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), or another person acting on that person’s behalf, may apply to the Attorney-General for a licence under this subsection for the first-mentioned person to be released from prison.

(3)    An application under subsection (2) must:

(a)    be in writing; and

(b)    specify the exceptional circumstances relied on to justify the grant of the licence.

(4)    The Attorney-General must not grant a licence under this section unless he or she is satisfied that exceptional circumstances exist which justify the grant of the licence.

(4A)    Without limiting the matters to which the Attorney-General may have regard for the purposes of subsection (4), the Attorney-General may have regard to:

(a)    any extensive cooperation by the person with law enforcement agencies before sentencing that the sentencing court did not take into account; or

(b)    any extensive cooperation by the person with law enforcement agencies after sentencing; or

(c)    any serious medical condition the person has that cannot adequately be treated or managed within the prison system.

(5)    The Attorney-General is not required to consider an application under subsection (2) in respect of a person if an application has been made under that subsection in respect of that person within one year before the first-mentioned application.

…

70    The exercise of the powers conferred by ss 19AL and 19AP is conditioned by the requirements of procedural fairness and legal reasonableness: see, in relation to s 19AL, Khawaja at [19]–[23] (Thawley J), referring to Khazaal v Attorney-General (Cth) [2020] FCA 448 at [66] (Wigney J). Subject to affording procedural fairness, it is a matter for the Attorney-General to determine the procedure to be followed when considering whether to make a parole order or grant a licence: Khazaal at [66]; Lodhi v Attorney-General (Cth) [2020] FCA 1383 at [6(e)] (Bromwich J). Ordinarily, procedural fairness would require the person to be made aware of the main factors or issues that could militate against the grant of parole and to be given an opportunity to respond to any adverse information that is credible, relevant and significant to the decision: Khawaja at [21] (Thawley J); Khazaal at [60]–[69] (Wigney J)

71    Section 19AL requires the Attorney-General to decide whether or not to make a parole order in relation to a person serving a federal sentence before the end of the non-parole period, or as soon as practicable thereafter: s 19AL(1), (1A). If parole is refused, the Attorney-General must reconsider the making of a parole order within 12 months after the refusal, or as soon as practicable thereafter: s 19AL(2), (2A). The obligations imposed on the Attorney-General to consider whether to make a parole order do not depend on an application having been made by the person who is serving the federal sentence.

72    Section 19AP, on the other hand, contemplates that a person who is serving a federal sentence of imprisonment may apply in writing to the Attorney-General for the grant of a licence for their release from prison: s 19AP(2), (3). Such an application must specify the exceptional circumstances relied on to justify the grant of the licence: s 19AP(3)(b). In this context, without limiting the matters to which the Attorney-General may have regard in forming the requisite state of satisfaction as to the existence of exceptional circumstances, the Attorney-General may have regard to any “extensive cooperation” by the person with law enforcement authorities after sentencing, or such cooperation before sentencing that was not taken into account by the sentencing court, as well as “any serious medical condition the person has that cannot adequately be treated or managed within the prison system”: s 19AL(4A). If the person has made an application for the grant of a licence within the preceding year, the Attorney-General is not required to consider a repeat application: s 19AP(5). In other words, a person serving a federal sentence is entitled to consideration of an application for release on licence no more than once a year.

73    The grant of a licence for a person to be released from prison under s 19AP is to be distinguished from the grant of a leave of absence from prison or pre-release permit schemes, each of which is governed by State or Territory laws which are applied to federal offenders who are serving sentences in the relevant State or Territory: see s 19AZD of the Crimes Act.

74    As Thawley J noted in Khawaja at [11], there is no right or entitlement to release on parole after the expiry of an applicable non-parole period: see generally Minogue v Victoria (2019) 268 CLR 1 at [15]–[17], [21] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). Similarly, a person serving a federal sentence has no entitlement to be granted a licence for his or her release from prison under s 19AP. Rather, the making of a parole order or release on licence is a matter for the executive, subject to the statutory scheme and any applicable administrative practices and policies: Minogue at [17] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

75    Accordingly, in proceedings for the judicial review of a decision to refuse to make a parole order or grant a licence for a person to be released from prison, this Court is concerned only with the legality of the decision and is not required to consider the merits of whether the applicant should be released on parole or granted a licence: Lodhi at [34], [43] (Bromwich J); Roberts v Attorney-General (Cth) [2022] FCA 574; 176 ALD 509 at [42] (Lee J).

CONSIDERATION

Ground 1

76    Ground 1 of the amended originating application is framed as follows.

1.    The failure to provide a decision within a reasonable time, or at all, with respect to the applicant’s application for release on licence is a denial of natural justice and/or in the circumstances unreasonable.

a)    the application for release on licence remains active and as at 13 November 2023 was still being considered;

b)    There has been no final decision made despite repeated requests;

c)    The applicant provided information (and subsequently further information on request) in relation to the existence of exceptional circumstances under ss. 19AP(4) & 19AP(4A) Crimes Act 1914 (Cth); including:

a.    the extraordinary circumstances arising from COVID-19 and imprisonment;

b.    serious medical conditions; and

c.    co-operation with law enforcement post-sentencing.

d)    The applicant is entitled to a final determination of the application within a reasonable period and/or the failure to make such a determination is unreasonable in all the circumstances.

77    The applicant made an application for his early release on licence by letter dated 29 October 2020, having raised issues since March 2020 in relation to the impacts of COVID-19 on the prison system, particularly for prisoners with medical conditions. The application was preceded by correspondence from the Department, in which the applicant was advised that he could not be released on parole under the Crimes Act until 30 days before the expiry of his non-parole period, but that he could apply for early release on licence under s 19AP of the Crimes Act based on the existence of exceptional circumstances which justified the grant of the licence.

78    In support of his application for release on licence, the applicant relied on “the COVID-19 emergency together with reaction to $561 million frauds against the community and the [Australian Taxation Office]”. The applicant offered to cooperate with law enforcement authorities in the investigation of alleged fraud, and referred to his medical conditions which he considered were serious and could not be treated or managed within the prison system.

79    By letter dated 8 July 2021, the Department invited the applicant to respond to adverse information that was credible, relevant and significant to the decision whether to grant him a licence under s 19AP of the Crimes Act. The Department stated that the applicant’s claims about the threat of COVID-19 to his health and wellbeing and the management of COVID-19 by Corrections Victoria were not supported by any evidence. The Department noted that the grant of emergency management days was a matter for the Victorian Department of Justice and Community Safety, and did not generally result in the automatic reduction of a federal offender’s non-parole period. The Department stated that “[t]he decision-maker may consider that the hardship you have experienced due to the COVID-19 pandemic is equivalent to that experienced by other prisoners”, and “may conclude that these grounds do not establish exceptional circumstances to justify early release on licence”.

80    The Department subsequently acknowledged that the application for release on licence was “active and [was] currently being considered” as at 9 May 2023, foreshadowing that it may provide him a further opportunity to respond to matters that may adversely affect his application. When the Department wrote to the applicant on 13 November 2023 about the impending consideration of his release on parole, it again acknowledged that his application for release on licence was “active” and was “currently being considered”.

81    The notice of refusal to make a parole order on 20 December 2023 did not refer to the application for release on licence. Nevertheless, it subsequently became apparent that the CPO was treating that application as “void” on the basis that the applicant had been refused parole, in circumstances where “the statutory requirement for release on licence is much higher than the statutory requirement for release on parole”: see the letter from the Department dated 29 October 2024.

82    The applicant submitted that the conclusion that his application for release on licence was “void” did not amount to a decision in relation to that application, and that there has been an actual or constructive failure to decide the merits of the application for release on licence. He contends that there is an implied duty on the respondent to consider the exercise of the power conferred by s 19AP of the Crimes Act, and that there has been an unreasonable delay in making a decision whether to grant his release on licence.

83    The respondent submitted that there has been no unreasonable delay in considering the application for release on licence and that, as the “operative decision” keeping the applicant in custody is the 2024 parole refusal decision, this ground of review should be dismissed.

84    In circumstances where s 19AP is silent as to the period within which a decision must be made on an application for a licence, the respondent accepts that there is a duty to consider such an application within a reasonable time: see Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at [37] (Crennan, Bell, Gageler and Keane JJ); Patrick v Australian Information Commissioner (2024) 304 FCR 1 at [37] (Bromwich, Abraham and McEvoy JJ). Nevertheless, the respondent submitted that there has been no unreasonable delay in making a decision on the applicant’s application for a licence under s 19AP, having regard to the chronology of that application, including the applicant’s “extensive correspondence to the Department”. The respondent submitted that the application had remained under “active consideration” as at November 2023, and that “[t]here was no perversity, capriciousness, intentional oversight or neglect” but rather “a considerable body of material provided by [the applicant] that required consideration”. The respondent contended that the application for a licence was then “overtaken” by the consideration of the applicant’s release on parole in November and December 2023, given that “if [the applicant] could not satisfy the delegate that he should be released on parole, he would not satisfy the delegate that there were exceptional circumstances justifying his early release on licence”.

85    The reference in the respondent’s submissions to the absence of any “perversity, capriciousness, intentional oversight or neglect” is drawn from Thornton v Repatriation Commission (1981) 35 ALR 485 at 492 (Fisher J), in a passage which has been subsequently referred to with approval: see e.g. ASP v Commonwealth (2016) 248 FCR 372 at [21]–[23] (Robertson, Griffiths and Bromwich JJ); KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1 at [176], [193] (O’Callaghan and Steward JJ). Nevertheless, it should be borne in mind that the distinction drawn by Fisher J in Thornton was between, on the one hand, a delay that is “justified” or “for a considered reason” and, on the other hand, a delay that is “capricious” or “in consequence of neglect, oversight or perversity”: see Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892 at [113] (Horan J). In such circumstances, the language used by Fisher J in Thornton should not necessarily be treated as establishing a test of universal application. It remains a question to be determined in each case whether there has been a failure to perform a statutory duty to make a decision within a reasonable time, having regard to the statutory context and the particular facts and circumstances.

86    It has nevertheless been recognised that the obligation to make a decision within a reasonable time does not demand administrative perfection and, as in other contexts, the threshold for a conclusion of unreasonableness may in some circumstances be high: LGC24 v Minister for Immigration and Multicultural Affairs [2025] FCA 253 at [12]–[14] (Owens J), referring to Tran v Commonwealth [2021] FCA 580 at [41] (Jagot J) and Patrick at [73] (Bromwich, Abraham and McEvoy JJ).

87    In the present case, the statutory context includes that the person is serving a federal sentence and is seeking the exercise of a discretionary power for his or her release from prison, based on specified exceptional circumstances which are said to justify the grant of the licence. It is also relevant that s 19AP(5) contemplates that a person should not make more than one application for a licence within a year. In the case of s 19AL, a decision to make or to refuse to make a parole order must be made before, or as soon as practicable after, the end of the person’s non-parole period and each succeeding 12-month period. While s 19AP does not contain any analogous temporal limit, the subject matter of the power is consistent with an underlying assumption that an application for a licence will be addressed promptly.

88    It can be accepted that the criterion of “exceptional circumstances” is capable of application to a wide variety of situations that may be regarded as “out of the ordinary course, unusual, special, uncommon, or going beyond what is regularly, routinely, or normally encountered, but not necessarily unique, unprecedented, or very rare”: Lodhi at [24] (Bromwich J), in the context of s 19ALB of the Crimes Act. It can also be accepted that s 19AP confers on the Attorney-General a broad discretionary power. However, while the Attorney-General or the delegate must take such time as is necessary to afford procedural fairness and to make a considered decision within the bounds of legal reasonableness, a decision on an application for a licence under s 19AP ought not to be unduly delayed or deferred so as to give rise to a risk that the purpose of the power might be undermined.

89    Thus, an application for a licence under s 19AP is required to specify the exceptional circumstances relied on to justify the grant of the licence. In some cases, that might include pressing circumstances, such as the existence of a serious medical condition that cannot adequately be treated or managed within the prison system: see s 19AP(4A)(c). A decision under s 19AP(1), (4) and (4A) whether exceptional circumstances exist which justify the grant of the licence would ordinarily be expected to be made while the circumstances relied on in the application are relevantly contemporaneous. Further, given that the Attorney-General may be required to consider a further application for a licence that is made more than one year after the first application, it would be incongruous if a decision was not made in relation to an application for a licence well within a year after the application was made.

90    In the present case, the application for a licence under s 19AP was initially made on 29 October 2020. No decision had been made on the application by November 2023, when the Department wrote to the applicant about the impending consideration of his release on parole. In the meantime, the applicant had continued to send correspondence to the Department in which he canvassed a range of matters relating to his application for a licence. On the other hand, the Department had written to the applicant on 8 July 2021 in order to invite him to address adverse information that was credible, relevant and significant to the decision under s 19AP. The applicant responded to that invitation by letters dated 23 August 2021 and 12 November 2021. Although the applicant sent further correspondence to the Department in late 2022 and early 2023, the evidence does not reveal any reason or reasons why the respondent did not decide the licence application after having received the applicant’s comments in response to the adverse information. In particular, there does not appear to be evidence of anything relevant having occurred between November 2021 and September 2022.

91    In my view, the respondent’s delay in making a decision under s 19AP calls for explanation: see BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [27]–[28] (Bromberg J); AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424 at [59] (Besanko and Thawley JJ). The respondent essentially seeks to justify the delay on three bases: first, that it was necessary to consider “a considerable body of material” that had been provided by the applicant in his “extensive correspondence” with the Department; secondly, that the application remained under “active consideration”; and thirdly, that the application was ultimately “overtaken” by the consideration in late 2023 of the applicant’s release on parole.

92    The applicant’s continued correspondence with the Department is relevant to the question whether there was an unreasonable delay in making a decision on his application for a licence under s 19AP, particularly in circumstances where the respondent was required to afford procedural fairness to the application when deciding his application. However, in my view, that correspondence does not adequately explain or justify the respondent’s delay in making a decision. The applicant was continuing to press for a decision to be made by the respondent. Once the applicant had provided his response to any adverse information, the respondent was not obliged to wait for further correspondence from the respondent before making a decision. Further, on the available evidence, there does not appear to have been any relevant correspondence sent by the applicant between November 2021 and September 2022.

93    The assertion made by the respondent in its correspondence that the application was “active” and was being considered as at 9 May 2023, and again as at 13 November 2023, does not go far in providing an explanation for a delay that would otherwise be regarded as unreasonable. Apart from those assertions, there is no other evidence to indicate what, if any, consideration was in fact being given to the application at each of those times. At most, the respondent’s acknowledgment might indicate that the application for a licence had not been entirely neglected or overlooked, at least as at each of the times that such an assertion was made. But it does not itself demonstrate that the period taken to decide the application was not unreasonable in the sense of capricious or unjustifiable.

94    Accordingly, I consider that a reasonable time for making a decision on the application for a licence under s 19AP had elapsed by November 2023. The question remains whether that application was “overtaken” by the respondent’s consideration of the grant of parole under s 19AP, or was rendered “void” by the making of the 2023 parole refusal decision.

95    The respondent argued that “[e]arly release on licence is intended to cover those situations either (i) where no non-parole period has been set, or (ii) before the expiration of a non-parole period, there are exceptional circumstances justifying the release of the offence from prison”. I do not accept that submission. There is no express limitation on the power conferred by s 19AP that would restrict the application of that power to circumstances in which the person serving a federal sentence is not eligible for release on parole. I therefore do not accept that the power under s 19AP was not available after the expiry of the applicant’s non-parole period.

96    Nor can it be said that the 2023 parole refusal decision rendered the licence application “void”, in the sense that it was no longer legally valid or effective. In my view, the refusal of parole did not itself displace the ongoing statutory duty to make a decision on the application for a licence under s 19AP. The 2023 parole refusal decision cannot be treated as amounting to a constructive refusal of the licence application. In practical terms, the considerations on which the decision to refuse parole was based might have been equally determinative of an application for a licence under s 19AP, particularly given that the respondent is required to be satisfied of the existence of exceptional circumstances which justify the grant of such a licence. Nevertheless, the power conferred by s 19AP is distinct from the grant of parole and is governed by different considerations. There is nothing in the statute to suggest that an application for a licence cannot be made or determined once there has been a decision refusing to make a parole order under s 19AL.

97    Accordingly, it may be doubted whether it is completely accurate to regard the 2024 parole refusal decision as the “operative” decision by which the applicant remains in custody. It remains possible, at least in theory, for the Attorney-General to grant a licence to the applicant under s 19AP, if satisfied that exceptional circumstances exist which justify the grant of the licence.

98    I therefore find that the respondent failed to make a decision within a reasonable time on the application made by the applicant on 29 October 2020 for a licence under s 19AP, and that there remains an unperformed duty to decide that application.

99    However, I consider that there would be no utility in granting mandamus (or analogous relief) to require the respondent to make a decision on the extant application for a licence under s 19AP. The circumstances specified in that application on which the applicant relied to justify the grant of a licence are now somewhat out-of-date. It would be necessary for the respondent to have regard to subsequent events, including the decisions to refuse parole in 2023 and 2024. Over the past year or more, the applicant has been mainly focused on issues concerning the grant or refusal of parole, and does not appear to have been actively prosecuting the application for a licence. For example, his submissions in response to the Department’s natural justice letter dated 22 October 2024 did not respond to the assertion that his licence application had been treated as “void” in the light of the 2023 parole refusal. Significantly, as more than a year has passed since that application was made, there is nothing to prevent the applicant from making a fresh application for a licence under s 19AP, specifying the matters that are currently relied on as amounting to exceptional circumstances to justify the grant of the licence. The respondent would be required to decide any such application within a reasonable time after it is made.

100    The grant of mandamus is discretionary: R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400 (Latham CJ, Rich, Dixon, McTiernan and Webb JJ); see e.g. Mpinda v Fair Work Commission (No 4) [2025] FCA 519 at [26] (Feutrill J). The recognised grounds on which a court may withhold the remedy include where “a more convenient and satisfactory remedy exists” or where “no useful result could ensue”: Ozone Theatres at 400 (Latham CJ, Rich, Dixon, McTiernan and Webb JJ). Having regard to all of the circumstances, I would exercise the discretion to refuse to grant mandamus in relation to the respondent’s duty to decide the application made on 29 October 2020 for the grant of a licence under s 19AP, on the basis that there is no utility in the grant of such relief.

Ground 2

101    Ground 2 of the amended originating application relevantly provides as follows (the applicant did not press grounds 2(a), (d) and (e)).

2.    The 2024 Refusal failed to take into account relevant considerations and/or took into account irrelevant considerations.

…

b)    In addition and/or alternatively, the respondent failed to consider that there are no offence specific programs available for white collar criminals while in prison to assist rehabilitation;

c)    In addition and/or alternatively, the 2024 Refusal failed to fully consider the full and relatively pressing medical treatment requirements of the applicant, noting the requirement to provide community equivalent healthcare to individuals in the care of the State;

…

102    The applicant referred to the following paragraphs of the Departmental brief in relation to the 2024 parole refusal decision, which addressed the issue of programs undertaken by the applicant during his incarceration:

Programs

49.    The Parole Assessment Report states Mr Dalton reported he kept himself busy with a considerable number of outings through the prison permits program. He used these permits to travel to Men’s Shed and had ventured into the community via the prison permits program approximately 243 times. The 2023 Addendum Report states he had participated in six community access permits, though a previous application had been denied.

50.    Mr Dalton was a peer educator within the prison as of 19 April 2023.

51.    Mr Dalton has completed various educational courses including cleaning, cooking, barista, and chainsaw.

103    The Departmental brief went on to address the applicant’s rehabilitation, observing that the CPO considered that the applicant had “rehabilitative needs in relation to insight”, and that there was “limited information from [Corrections Victoria] suggesting [the applicant] will be provided custodial intervention to develop insight into his behaviours and actions”.

104    In his affidavit sworn on 18 March 2025, the applicant relevantly stated that he had been “assessed on reception and deemed not to be suitable for or requiring the programs available within [Corrections Victoria]”. He also noted that “there are no offence specific programs in the correctional facilities where I have been located for white collar criminals”, which was significant because

despite my efforts to be a model prisoner and make the best of my time, it appears the absence of such programs and for me to demonstrate insights and/or rehabilitation or that there are ongoing rehabilitative needs is held against me as a justification to say I am still a risk on release and there are issues with my insight with respect to the offending.

The applicant nevertheless recounts in his affidavit that he has attended a range of programs and educational courses while in prison.

105    The observations contained in the Departmental brief in relation to the applicant’s insight and rehabilitative needs should be read in their full context. The brief referred to the findings made by the sentencing court that the applicant “had demonstrated no remorse through the entire proceedings and was entrenched in his dishonesty”, and noted that the applicant had continued to deny responsibility and to dispute the offending of which he was convicted.

106    The applicant’s rehabilitative needs and his completion of programs were clearly relevant considerations in the exercise of the discretion whether to make a parole order: see e.g. s 19ALA(1)(a), (b), (c), (h). Those matters were properly considered by the delegate. The applicant has not pointed to any material that was before the delegate that was overlooked, nor established that the delegate failed to give proper, genuine and realistic consideration to the merits of the case.

107    The applicant’s written reply submissions noted that he had been chosen by prison management to be a “prisoner representative” at Marngoneet Correctional Centre and Beechworth prisons respectively. This had been referred to in a letter dated 2 January 2024 from the applicant to the respondent, in response to the 2023 parole refusal. In oral submissions, counsel for the applicant contended that the applicant’s role as a prisoner representative was not mentioned in the material before the delegate, suggesting that it had not been “passed on” by Corrections Victoria to the CPO. However, it is difficult to see how these contentions fall within the particulars of Ground 2. In any event, the Departmental brief addressed the applicant’s conduct in prison, including his community outings under the prison permits program, and did not raise any concerns in that regard. Even assuming that the applicant’s role as a prisoner representative might have been given weight in his favour in relation to his rehabilitative needs, I do not consider that the absence of any specific mention of this role in the Departmental brief amounted to a failure by the delegate to have regard to a relevant consideration that he was bound to take into account.

108    In relation to the applicant’s health, the applicant submitted that he has a range of medical conditions, including significant issues with his heart function. Nevertheless, the Departmental brief addressed the applicant’s health issues, including his history of heart disease and his representations that he required specialist medical care from a cardiologist outside of custody. While the applicant contended that the materials before the delegate did not include the results of a second echocardiogram (ECG) dated 20 December 2024, as opposed to an earlier ECG dated 25 August 2023, it is unclear how this could possibly give rise to any legal error in the delegate’s decision.

109    Some suggestion was made in the applicant’s reply submissions, and in the course of oral submissions, that the respondent had failed to make inquiries to obtain the second ECG, having obtained from the applicant an authority to access his medical files in the context of considering his application for a licence on medical grounds. However, this argument was not fully developed and is not clearly particularised as a ground of review the amended originating application. Further, and in any event, the second ECG appears to be broadly consistent with the results of the earlier test, and does not appear to have any bearing on the issues that were addressed by the delegate. In such circumstances, I do not consider that the respondent failed to make any obvious inquiry about a critical fact the existence of which was easily ascertained, and which was or would have been centrally relevant to the exercise of discretion under s 19AL: cf. Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

110    Accordingly, I do not consider that the respondent failed to have regard to a relevant consideration. Ground 2 is rejected.

Ground 3

111    Ground 3 of the amended originating application is in the following terms.

3.    The failure of the decision maker to (re)consider the basis of the 2023 parole refusal when notified of additional relevant information and/or alternatively to make a decision based on further information within the 12 month period prior to the 2024 Refusal was unreasonable.

a)    The applicant advised his parole officer that he had verbally been offered a place with the Salvation Army, People Going Beyond Program (PGBP) in November 2023, including accommodation;

b)    On or about 30 November 2023 the applicant advised the Commonwealth Parole Office (CPO) that he believed a bed would be available with the Salvation Army in Mt Waverley, Victoria;

c)    On or around 6 December 2023 a request was made by the reintegration officer at Ravenhall to Maribyrnong to ensure that a bed with the PGBP was secured.

d)    On 20 December 2023 the CPO was advised of confirmation of accommodation with the PGBP and on the same day parole was refused to a significant degree because of the supposed lack of accommodation.

e)    At the time of the 20 December 2023 refusal, and for a reasonable time thereafter, accommodation and auxcilliary [sic] supports were available.

f)    Section 19AL(2)(b) of the Crimes Act 1914 (Cth) requires the Attorney General to reconsider the making of a parole order ‘within’ 12 months after the refusal;

g)    the failure to (re)consider direct and immediately relevant information, when accommodation along with community assistance regarding health and mental health treatment was a significant parole consideration with respect to safeguards and lawful integration into the community, by way of further review of parole prior to the 2024 Refusal some 12 months later, was unreasonable.

h)    The refusal to deal with relevant accommodation information in turn contributed to the loss of a place with the PGBP where a place remained available for some time to around 30 August 2024.

112    The applicant submitted that, on the same day as the 2023 parole refusal, the respondent was notified of the availability of accommodation in the People Going Beyond Program conducted by the Salvation Army. He did not contend that the respondent was in possession of that information at the time that the decision was made under s 19AL. Rather, the submission is that the respondent was required to reconsider the parole decision in the light of directly relevant information about the availability of accommodation, given that this had been a significant consideration in the refusal of parole. While s 19AL(2)(b) requires the making of a parole order to be reconsidered “within 12 months” after the refusal of parole, the applicant submits that this did not prevent the respondent from reviewing or reconsidering the decision at an earlier time. In so far as s 19AL(2)(b) leaves the respondent with a discretion as to the time at which parole is reconsidered, the applicant submits that it was unreasonable for the respondent not to reconsider the making of a parole order as soon as he was provided with the further information about the availability of accommodation.

113    It is not in dispute that the implied condition of legal reasonableness can extend to the manner in which a decision is made, including the exercise of procedural powers: see DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 at [67] (Horan J). Nevertheless, the context of s 19AL might make it difficult to supplement the express statutory duty to reconsider the making of a parole order within 12 months or as soon as possible thereafter with an obligation on the facts of a particular case to reconsider parole at an earlier time during that 12-month period. The tenor of s 19AL is consistent with an assumption that parole should generally be considered on an annual basis, rather than being subject to continual review in the light of changing circumstances that are said to bear upon one or more of the considerations relevant to the grant of parole.

114    There might perhaps be exceptional circumstances in which it could be legally unreasonable for the respondent to wait until 12 months after the refusal to make a parole order before reconsidering parole — for example, if parole were refused on the basis of a sole factual obstacle which can subsequently be shown no longer to exist. The present case does not, in my view, fall into such a category. The 2023 parole refusal was made for a number of reasons — in addition to the lack of approved accommodation in the community, the respondent relied on the nature and circumstances of applicant’s offending, his significant criminal history and custodial sentences, and the risk to the safety of the community. Although the letter from the Salvation Army dated 20 December 2023 stated that the applicant would be offered a place at a specified address in Mount Waverley, it did not provide details of that accommodation nor the period for which the offer would be available. The parole assessment report from Corrections Victoria dated 12 August 2024 noted that the applicant had previously been offered a place at the Mount Waverley address “if he was to be granted parole”, and said that the Salvation Army had advised (on 13 February 2024) that the offer of accommodation “could only be held for six-eight (6-8) weeks whilst they wait for [the applicant’s] release”, after which the room would be reallocated to another offender. It also appears that the residence may have been subject to the preparation of an “Environmental Scan” by Corrections Victoria.

115    Ultimately, in circumstances where the 2023 parole refusal was based on a range of reasons other than the availability of accommodation in the community, it cannot be said that it was legally unreasonable for the respondent not to have immediately reconsidered the making of a parole order in the light of the updated information about the availability of accommodation.

116    Further, and in any event, it is not clear what consequence would follow from any unreasonable failure by the respondent to reconsider the making of a parole order in early 2024. In circumstances where the applicant has no legal entitlement to the grant of parole, and the respondent has ultimately reconsidered the making of a parole order and refused to make such an order on 17 December 2024, any failure to reconsider parole at an earlier time would not provide a basis on which to challenge the 2024 parole refusal decision. In particular, it would not attract the relief sought in the amended originating motion, namely, orders to quash the 2024 parole refusal decision or requiring the respondent to make a fresh decision under s 19AL.

117    For these reasons, I reject Ground 3.

Ground 4

118    Ground 4 of the amended originating application alleges:

4.    Alternatively to the above, the 2024 Refusal made in December 2024 was, given the notice of accommodation previously, an improper exercise of discretionary power in accordance with a rule without regards to the merits of the case.

a)    the applicant refers to the particulars outlined in ground 3 above and the use of the term ‘within’ per s. 19AL(2)(b) of the Crimes Act 1914 (Cth).

119    This ground is related to Ground 3. The applicant contends that the respondent fettered the exercise of his discretionary powers by applying an inflexible rule that parole could not be reconsidered earlier than 12 months after the 2023 parole refusal, as a consequence of which the respondent failed to make a fresh decision within the period of six to eight weeks after the 2023 parole refusal during which there was an offer of accommodation available to the applicant. The applicant also referred to an alleged failure by Corrections Victoria (who is not a party to these proceedings) to assess and provide reports on accommodation, noting the possibility of intergovernmental arrangements under s 3B of the Crimes Act in relation to the carrying out or enforcement of orders made under the Act.

120    As discussed above, s 19AL contemplates that parole will be reconsidered within 12 months after the refusal to make a parole order or as soon as practicable thereafter. There is clearly power to reconsider the making of a parole order earlier than 12 months after the refusal of parole, if that is considered appropriate in the circumstances. However, s 19AL(2) is not drafted in terms that parole may be reconsidered at any time, provided that it is reconsidered no later than 12 months after a decision to refuse to make a parole order. While the statutory scheme imposes an obligation on the Attorney-General to reconsider the making of a parole order within 12 months or, if he or she does not do so, as soon as possible after the end of that period, it does not directly confer on the person an entitlement to the reconsideration of parole at any earlier date.

121    There are some indications in the correspondence from the Department that a reconsideration under s 19AL(2)(b) does not take place earlier than 12 months after the refusal to make a parole order. For example, the letter from the Department dated 22 October 2024 referred “refusing to release you on parole at this time, and requiring you to serve a further 12 months in custody” (emphasis added). On the other hand, the Departmental brief (at para 5) made it clear to the delegate that “[y]ou must reconsider the person’s re-release on parole within 12 months of the decision to refuse release, but may set an earlier review date” (emphasis added). The brief also stated (at para 85) that a person who is refused parole is “required to serve up to a further 12 months in prison” (emphasis added).

122    In the circumstances, I am not satisfied that the respondent misconstrued s 19AL or adopted an inflexible policy so as to preclude any reconsideration of parole until 12 months after the previous refusal to make a parole order. Accordingly, Ground 4 is dismissed.

Ground 5

123    Ground 5 of the amended originating application is in the following terms:

5.    The 2024 Refusal was unreasonable and involved an improper use of power and/or exercised bad faith.

a)    The [2024] Refusal had regard to the nature and circumstances of the applicant’s offending and comments by the sentencing court made in September 2019 and concluded that there was an unacceptable risk to community safety;

b)    The reasons provided for sentencing themself [sic] included a weighing by the judge of any length of non-parole period after the court’s examination of the nature of the offending and, among other matters, the applicant’s prior criminal history, as punishment. In turn, the court informed itself on the same factors as to when the applicant may be eligible for parole, and for how long, in light of this process;

c)    The use of the court’s reasons in and of themselves in the 2024 Refusal to justify an unacceptable risk on the community formed an unacceptable use of executive power by the decision maker to increase the punishment and/or exercise a double form of punishment on the applicant.

d)    The court clearly saw a benefit to release on parole which was to be assessed separately and discretely with respect to unacceptable risk to the community.

124    In his written submissions, the applicant clarified that he did not allege that there was an improper use of power or an exercise of the power in bad faith, but pressed the allegation that the 2024 parole refusal decision was unreasonable.

125    In my view, this ground is based on a misconception about the nature of the power conferred by s 19AL. In particular, it fails to recognise “that there is a distinction between a judge exercising judicial power in sentencing, and the executive determining whether a person, still serving a sentence but eligible for release on parole, should be released on parole”: Minogue at [14] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). As the plurality confirmed in Minogue at [14]:

Once a person is sentenced, the exercise of judicial power is spent and the responsibility for the future release of the person while still under sentence passes to the executive branch of the government of the State.

(Footnote omitted.)

126    When the applicant was sentenced in the County Court of Victoria, the sentencing judge (Judge Higham) had regard to a range of matters relating to the nature and circumstances of the offending and the applicant’s criminal history. Such matters were relevant to an assessment of general and specific deterrence, denunciation of the applicant’s conduct, prospects of rehabilitation, and the need to protect the community. In the course of his sentencing remarks, Judge Higham found that the applicant had practiced a “sophisticated and cunning” fraud upon the revenue with the intention of “dishonest self-enrichment”, that he was “the sole architect and the sole beneficiary of the scheme, which was entirely of [his] own devising”, and that he had “sought to blame others for [his] wrongdoing” once he became aware that the fraud had been detected: Director of Public Prosecutions (Cth) v Dalton [2019] VCC 1507 at [32], [34]. Judge Higham also found (at [36]-[37]) that the applicant had “shown not one shred of remorse throughout the entire proceedings”, that he was “entrenched in his dishonesty”, that his prospects of rehabilitation were “guarded at the very best”, and that the community needed protection from the applicant and from his “dishonest endeavours”. Having regard to all relevant matters, and balancing the applicant’s personal circumstances with the circumstances of his offending, Judge Higham sentenced the applicant to an aggregate term of imprisonment of six years and nine months, and declared that he must serve a period of four years and nine months before becoming eligible for parole.

127    When the delegate made the 2024 parole refusal decision, he had regard to the nature and circumstances of the applicant’s offending and the comments made by the sentencing court, in finding that the applicant’s release on parole would pose an unacceptable risk to community safety. The decision was also based on findings that the applicant lacked approved accommodation and social and professional supports in the community, that the applicant lacked insight into his offending, and that there were concerns about the applicant’s ability to be of good behaviour and comply with the conditions of a parole order having regard to his significant criminal history. The delegate took into account matters that weighed in favour of the applicant’s release on parole, but considered on the evidence that his release on parole at the time of the decision posed a risk to the community.

128    The power to fix a non-parole period is undoubtedly an aspect of the judicial function in sentencing an offender, and the non-parole period forms part of the sentence and is a component of the punishment imposed by the court: Leeth v Commonwealth (1992) 174 CLR 455 at 465–466, 470–471 (Mason CJ, Dawson and McHugh JJ), 472 (Brennan J), 490–491 (Deane and Toohey JJ); Postiglione v The Queen (1997) 189 CLR 295 at 302 (Dawson and Gaudron JJ); R v Suarez-Mejia [2002] WASCA 187; 131 A Crim R 577 at [19] (Murray J), [78] (Parker J, with whom Miller J agreed); Hudson v The Queen (2010) 30 VR 610 at [45] (Ashley, Redlich and Harper JJA); Crump v New South Wales (2012) 247 CLR 1 at [27]–[28] (French CJ); Minogue at [21] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

129    In contrast, the decision whether or not to release a prisoner on parole is a matter for the executive. The declaration by the sentencing court that the person becomes eligible for parole after a specified period does not confer any right to be released on parole once that period has expired: Minogue at [21] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). As demonstrated by the decisions in cases such as Minogue, Crump and Knight v Victoria (2017) 261 CLR 306, a decision not to grant parole to a prisoner whose non-parole period has expired does not involve the imposition of an additional or separate punishment on that person. It is unnecessary for present purposes to consider whether there are limits on the purposes for which the power conferred by s 19AL may be exercised. The fact that matters were taken into account by the sentencing court in determining the punishment to be imposed on an offender, including in fixing a non-parole period, does not mean that the same matters cannot also be taken into account subsequently by the executive for the different purpose of deciding whether the prisoner should be released on parole. In particular, the nature and circumstances of the offence remain centrally relevant to the executive function in relation to the release of a prisoner of parole, particularly in so far as they may inform assessments as to the prisoner’s rehabilitation and the risk of further offending. This does not convert the decision whether or not to make a parole order into one involving the imposition of any form of punishment on the prisoner (whether by way of an increase in punishment or the exercise of a “double” form of punishment).

130    This is consistent with the terms of s 19ALA(1), which expressly permits the Attorney-General, in making a decision under s 19AL in relation to a person, to have regard to (among other things) “the nature and circumstances of the offence to which the person’s sentence relates”, “any comments made by the sentencing court”, and “the person’s criminal history”: s 19ALA(1)(e), (f), (g).

131    Ultimately, the main complaint raised by the applicant is that it was impermissible for the delegate to make a finding that his release on parole would pose an unacceptable risk to community safety based only on the nature and circumstances of his offending and the comments of the sentencing court. Even if that were a correct characterisation of the relevant paragraph in the notice of refusal of parole, it does not disclose unreasonableness in the legal sense. It is clear that the delegate’s findings on the risk to community safety were based on a range of other matters, as reflected in the repeated findings about community safety under each of the five points set out in his reasons for decision. It was centrally relevant for the delegate to have regard to the risk to the community of releasing the applicant on parole: see s 19ALA(1)(a). The delegate’s reasons were directed to that consideration, and not to the imposition of “double” punishment on the applicant.

132    Accordingly, Ground 5 is dismissed.

Ground 6

133    Ground 6 of the amended originating application provides as follows:

6.    The 2024 Refusal decision was an improper exercise of discretionary power without regards to the merits of the case and/or failed to take into account a relevant consideration.

a)    The respondent failed to consider under s. 19ALA(m) Crimes Act 2014 (Cth) ‘any special circumstances’ in particular, the impact and burden of COVID-19 on prisoners in the State of Victoria and comments by the Courts with respect to these issues.

b)    The applicant was in prison throughout COVID-19 and had accrued Emergency Management Days (EMD) due to suffering disruption and deprivation brought with this period. EMD’s are only available for persons of good behaviour and the applicant was recommended and granted said EMDs after review by prison management on this basis.

c)    Alternatively, the failure to take into account EMD included an additional penalty and/or discriminated against the applicant unfairly in the sense that other Commonwealth offenders in State care did receive these benefits prior to the repeal of s 19AA of the Crimes Act 2014 (Cth).

134    The applicant clarified in his written submissions that this ground is directed at an alleged failure by the respondent to take into account relevant considerations, namely the requirement to consider any “special circumstances” under s 19ALA(1)(m).

135    At the outset, it should be noted that s 19ALA(1) provides that the Attorney-General “may” have regard to “any” of the matters set out in that subsection, where those matters are known to the Attorney-General and are relevant to the decision. Accordingly, s 19ALA(1) does not itself impose an express obligation on the Attorney-General to take into account each or all of the specified matters. It may nevertheless be possible on the facts of a particular case to conclude that the Attorney-General or delegate was bound to have regard to one or more of the matters identified in s 19ALA(1), in so far as those matters were raised by the material before the decision-maker. Further, the Attorney-General or delegate may be required to engage with representations made by the person who is serving the federal sentence in order to comply with the requirements of procedural fairness or legal reasonableness: see Pulini v Assistant Minister to the Attorney-General (Cth) [2021] FCA 1543; 397 ALR 192 at [33]–[38] (Rangiah J); Khawaja at [109]–[111], [120] (Thawley J); c.f. Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [24]–[25] (Kiefel CJ, Keane, Gordon and Steward JJ).

136    The concept of “special circumstances” within the meaning of s 19ALA(1)(m) is ambulatory, and leaves scope for the decision-maker to determine what is regarded as amounting to such circumstances (beyond the express inclusion of “the likelihood that the person will be subject to removal or deportation upon release”). In that regard, there are authorities in different statutory contexts about the meaning of the phrase “special circumstances” as involving circumstances that are different from those ordinarily experienced or faced by persons generally: see e.g. in the context of extradition, United Mexican States v Cabal (2001) 209 CLR 165 at [61] (Gleeson CJ, McHugh and Gummow JJ) or, in the context of social security, Groth v Secretary, Department of Social Security [1995] FCA 1708; 40 ALD 541 at [12] (Kiefel J); c.f. Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25; 100 ALD 9 at [26]–[35] (Besanko J). Ultimately, it is not advisable to place any gloss on the term “special circumstances”, in so far as that term is incapable of precise definition. It directs attention to the facts and circumstances of the particular case that are relevant to the decision whether to make an order for the release of the person from prison on parole.

137    The applicant contends that his representations and submissions regarding the impact of COVID-19 on prisoners in Victoria raised “special circumstances” that warranted consideration in making the parole decision under s 19AL. In particular, the applicant referred to the “emergency management days” that he had accrued, noting that the grant of such emergency management days was available only for prisoners who have been of good behaviour. In such circumstances, the applicant submitted that the grant or accrual of emergency management days was relevant to his rehabilitation and the protection of the community. The applicant therefore submitted that the delegate’s failure to take into account relevant material relating to COVID-19 and emergency management days amounted to jurisdictional error.

138    The respondent submitted that the matters in relation to the impact of COVID-19 and the grant of emergency management days had not been raised by the applicant in the context of the 2024 parole refusal decision, including in the applicant’s response to the Department’s letter about the consideration of parole dated 22 October 2024. Further, the respondent submitted that the circumstances in relation to COVID-19 do not have a clear connection to the statutory purposes of parole, in contrast to matters such as the likelihood of removal or deportation which can be relevant to one or more of the protection of the community, the rehabilitation of the offender, or the rehabilitation of the offender into the community (see s 19AKA). The respondent argued that the applicant’s experience of the COVID-19 pandemic was not a special circumstance to him personally.

139    As a matter of State law, s 58E of the Corrections Act 1986 (Vic) relevantly confers power on the Secretary to the Department of Justice and Community Safety to grant “emergency management days” that reduce the length of a sentence of imprisonment or non-parole period on account of good behaviour while suffering disruption or deprivation in “circumstances of an unforeseen and special nature”.

140    Prior to its repeal, former s 19AA of the Crimes Act applied State or Territory laws for the remission or reduction of sentences in the same way to the remission or reduction of a federal sentence being served in a prison in the relevant State or Territory, although not so as to reduce the non-parole period in respect of the federal sentence other than a reduction or remission by reason of industrial action taken by prison warders.

141    Section 19AA was repealed by the Amendment Act with effect from 9 December 2021. The extrinsic materials make it clear that the mischief sought to be addressed by this amendment arose from an increase in emergency management days granted to prisoners in Victoria as a result of the COVID-19 pandemic. The Explanatory Memorandum to the Crimes Amendment (Remissions of Sentences) Bill 2021 (Cth) relevantly stated (at [3]):

The repeal of section 19AA of the Crimes Act is necessary in order to address the significant risks to community safety as a result of remissions, known as emergency management days (EMDs), being granted in high numbers to federal offenders under Victorian laws since the beginning of the COVID-19 pandemic.

142    To similar effect, the Minister referred in the Second Reading Speech to the “unacceptable” situation that “federal offenders [were] not serving the sentences handed down by the courts in recognition of their crimes” due to the grant of emergency management days in Victoria since the COVID-19 pandemic, as a result of which federal offenders were “receiving substantial discounts off the sentence expiry date set by the sentencing court”: Commonwealth, Parliamentary Debates, Senate, 25 August 2021, 5259 (Senator Ruston). The Minister also noted that the amendments were “necessary to ensure that federal offenders are being treated more consistently across Australia”: ibid.

143    As the amendments made by the Amendment Act are applicable to any prisoner who was serving a federal sentence in a State or Territory prison immediately before the date of their commencement, any remissions and reductions applied by the State or Territory before commencement are taken to be of no effect in relation to such prisoners: see Sch 1, item 11(1), (4).

144    The fact that remissions and reductions of sentences pursuant to State or Territory laws are no longer automatically applied in relation to federal sentences does not itself preclude the Attorney-General from having regard to the fact that emergency management days were granted or to the impact of COVID-19 when exercising the power conferred by s 19AL of the Crimes Act. However, in the light of the repeal of former s 19AA, it is difficult to argue that the grant of emergency management days as result of the COVID-19 pandemic must be treated as a special circumstance that the Attorney-General is bound to take into account when deciding whether to make, or refuse to make, a parole order in relation to a person serving a federal sentence.

145    To the extent that the applicant’s argument is that the grant of emergency management days reflects or provides evidence of underlying good behaviour, there is nothing to indicate that the delegate failed to have regard to the applicant’s behaviour in prison. The Departmental brief separately addressed the applicant’s conduct in prison and his participation in programs and courses within prison. In the notice of refusal of parole, the delegate stated that he had taken into account submissions made by or on behalf of the applicant, which were summarised in the Departmental brief. This included a submission to the effect that the applicant was sentenced prior to the commencement of the COVID-19 pandemic, and that the Commonwealth Director of Public Prosecutions had subsequently recognised in submissions made to the Supreme Court of Victoria that “the added burden of imprisonment as a result of restrictions imposed in the wake of the pandemic may well be a consideration taken into account” if the Court were required to resentence the applicant (in that regard, see e.g. Wyka v The Queen [2020] VSCA 104 at [163] (Croucher AJA)).

146    As the respondent submitted, the question whether and when a prisoner should be released on parole is not centrally concerned with the effect of any disruptions or deprivations that may have been experienced by the prisoner while serving his or her sentence. Rather, the purposes of parole are directed to the protection of the community and the offender’s rehabilitation and reintegration into the community upon his or her release from prison. No question arises in that context as to any reduction in the length of the head sentence or the non-parole period in the light of any good behaviour while suffering disruption or deprivation in circumstances of an unforeseen and special nature. The prisoner’s conduct while serving his or her sentence can be a relevant consideration, as is recognised in s 19ALA(1)(b). But the grant of emergency management days by State correctional authorities does not itself have any bearing on the grant of parole.

147    In so far as the applicant complains that the failure to take into account emergency management days that were granted to him involves unfair discrimination, it is clear that one of the purposes of the repeal of former s 19AA was to ensure greater consistency in the treatment of federal offenders in different States and Territories. It is a necessary consequence that this may lead to a difference in treatment between federal offenders and State offenders in Victorian prisons. Further, the different treatment of federal offenders who had already received reductions or remissions in their federal sentences under former s 19AA prior to its repeal and were no longer serving those sentences was a conscious legislative choice that was reflected in the “application provisions” of the amending legislation: see Amendment Act, Sch 1, item 11. As such, the differentiation is incapable of giving rise to any legal error affecting the 2024 parole refusal decision.

CONCLUSION

148    For the reasons set out above, I am not satisfied that any of the grounds on which the 2024 parole refusal decision was challenged have been established. While I uphold the central contention advanced in Ground 1, namely that the respondent failed to decide the application for a licence under s 19AP within a reasonable time, I consider that there would be no utility in granting mandamus or analogous relief requiring a decision to be made on that application. It remains open to the applicant to make a fresh application for a licence under s 19AP based on any prevailing exceptional circumstances, and the respondent will be obliged to decide any such application within a reasonable time after it is made.

149    It follows that the application is dismissed. I will hear from the parties as to the appropriate disposition on costs.

Associate:

Dated:    13 June 2025