SUPREME COURT OF QUEENSLAND

CITATION:	Dobbs v Parole Board Queensland [2024] QSC 268	
PARTIES:	GEOFFREY ROBERT DOBBS
(applicant)
v
PAROLE BOARD QUEENSLAND
(respondent)	
FILE NO:	BS 10118 of 2024	
DIVISION:	Trial Division 	
PROCEEDING:	Application for judicial review	
ORIGINATING COURT:	Supreme Court at Brisbane 	
DELIVERED ON:	8 November 2024 	
DELIVERED AT:	Brisbane 	
HEARING DATE:	28 October 2024 	
JUDGE:	Hindman J 	
ORDERS:	1.	Pursuant to s. 30 of the Judicial Review Act 1991 (Qld) the respondent’s decisions under review of 13 May 2024 and 22 August 2024 are set aside. 
2.	The respondent reconsider the applicant’s 2023 application for a parole order with appropriate expedition.
3.	Liberty to apply. 
4.	There be no order as to costs, save that the respondent pay the applicant’s costs of filing the application for a statutory order of review fixed in the amount of $144.70.	
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – PROCEDURAL FAIRNESS – GENERALLY – where the applicant seeks a statutory order of review of the respondent’s decision to refuse his application for a parole order – where the applicant is serving a life sentence of imprisonment – where the applicant became eligible for parole on 27 March 2015 – where the applicant made an application for a parole order under the Corrective Services Act 2006 - where the applicant has had previous applications for a parole order refused - whether the respondent did not have or consider parts of applicant’s previous application – whether the respondent’s omission to consider parts of the applicant’s previous application amounts to a failure to take into account a relevant consideration or a material denial of procedural fairness 
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, cited
Harrod v Parole Board Queensland [2022] QSC 084, cited
Hickson v Parole Board Queensland [2024] QSC 133, cited 
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) CLR 24; [1986] HCA 40, cited
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590, cited 
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26, cited
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, cited 
South Australia v O’Shea (1987) 163 CLR 378; [1987] HCA 39, cited
Corrective Services Act 2006 (Qld) s. 193
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
Judicial Review Act 1991 (Qld) ss. 20, 23, 30, 31	
COUNSEL:	The applicant appeared on his own behalf 
K McGree for the respondent 
	
SOLICITORS:	The applicant appeared on his own behalf 
Parole Board Queensland Legal Services for the respondent 
	
Introduction 
[1]	The applicant makes a judicial review application under the Judicial Review Act 1991 (Qld) (JRA) in relation to decisions of the respondent (Parole Board / Board): 
(a)	on 13 May 2024 (made pursuant to s. 193(1) of the Corrective Services Act 2006 (Qld) (CSA)) to refuse to grant the applicant’s 2023 application for a parole order (May Refusal Decision); 
(b)	on 22 August 2024 (made pursuant to s. 193(6)(b) CSA) that the period of time within which a further application for a parole order must not be made without the Board’s consent by the applicant is 12 months commencing on 22 August 2024 (the August Non-Reapply Period Decision). 
[2]	The applicant is out of time to make the judicial review application, but the Board does not object to the application being heard and determined out of time.  I therefore grant the required extension of time.  
[3]	The applicant is serving a life sentence of imprisonment for 116 child sexual offences committed against more than 62 victims.  He has been incarcerated now for over 24 years.  He became eligible for parole on 27 March 2015, and has had previous applications for parole refused.
[4]	A judicial review application is not a merits review.  It is not for me to decide if the applicant should obtain parole – that is a decision that rests with the Board.  It is only for me to decide whether the Board’s decisions that are sought to be reviewed have been made according to law.    
[5]	I have decided that the Board’s decisions that are sought to be reviewed have not been made according to law.  In respect of the May Refusal Decision it involved a material denial of procedural fairness that justifies the decision being set aside.  The August Non-Reapply Decision is a decision which necessarily flows from the May Refusal Decision and cannot stand on its own.  It too will be set aside.  
Grounds of review
[6]	The applicant’s grounds of review for the May Refusal Decision are: 
(a)	Ground 1: The Board failed to take into account a relevant consideration pursuant to ss. 20(2)(e) and 23(b) JRA (as argued this ground was also articulated as a material denial of procedural fairness pursuant to s. 20(2)(a) JRA); 
(b)	Ground 2: The exercise of power was legally unreasonable pursuant to ss. 20(2)(e) and 23(g) JRA.
[7]	The applicant’s grounds of review for the August Non-Reapply Period Decision are:
(a)	Ground 3: The exercise of power was legally unreasonable pursuant to ss. 20(2)(e) and 23(g) JRA.
[8]	The applicant seeks a wide range of relief, if those grounds are made out, on pages 11 to 12 of his outline of submissions. 
Summary of relevant decision history
[9]	The applicant applied for a parole order on 5 September 2023 (2023 Application).  The 2023 Application comprised only 4 pages.  In the 2023 Application the applicant specifically requested that the Board use his previous application dated 29 August 2017 (2017 Application) as part of the 2023 Application with some amendments.  His letter forming part of the 2023 Application commenced:  
My last parole application (submitted on 29 August 2017) was very comprehensive.  Sentence management have advised me that you would still have access to it, and that I could use it as my new application – I just had to advise you of any changes or updates.  I therefore request that you use that application and all the information in it as my new application with the following changes: …
[10]	At other places within the 2023 Application, the applicant made cross-references back to the 2017 Application.  
[11]	On 15 December 2023, the Board sent the applicant correspondence stating that the Board had considered his application (on 13 November 2023) and had formed a preliminary view that the application should be refused and that a non-reapply period would be decided.  The correspondence invited the applicant to make further written submissions before the Board made its final decision.  The applicant did so.   
[12]	The Board initially made decisions about a parole order and a non-reapply period in February 2024, but those decisions were not communicated to the applicant, and so are not decisions for the purposes of the JRA.  The review application made in this proceeding does not relate to the February decisions, and no argument is advanced that what occurred in February 2024 precluded the Board from making the decisions that are the subject of this proceeding.  Therefore, I do not need to consider that further.   
[13]	On 13 May 2024, the Board met and considered the applicant’s application for a parole order and made (1) the May Refusal Decision, and (2) a decision that the non-reapply period was 3 years.   The applicant was informed of those decisions by a letter dated 14 June 2024.  
[14]	There was then a fatal issue identified by the Board with respect to the May decision about the non-reapply period and the Board accepts that decision was not validly made by it (because the Board’s process of decision-making was legally unreasonable).  Therefore the Board sought to remake that decision only.  There is no complaint about that process by the applicant.  
[15]	This proceeding was commenced on 31 July 2024.
[16]	On 21 August 2024 the applicant’s 2023 Application was put before the Board again at its request, and the Board made the August Non-Reapply Period Decision.  
[17]	The Board provided the applicant with a statement of reasons dated 22 August 2024 (August Statement of Reasons) for the May Refusal Decision pursuant to consent orders made in this proceeding.  The Board also informed the applicant of the August Non-Reapply Period Decision in the August Statement of Reasons, recording:
194. 	The Board considered your parole application along with all documents provided by Queensland Corrective Services, comprising 364 pages and annexed attachments at its meeting on 21 August 2024.
195. 	The Board decided to revoke its previous decision of 13 May 2024 to refuse your application for parole, only insofar as that decision consented for you to lodge a new application in three (3) years from that date, and that should you at any time during that period obtain accommodation assessed as statable by Community Corrections, the Board would consider providing consent for you to reapply at that time. The new decision remains as a refusal of your application for a parole order but permits you to re-apply within 12 months as compared three years.
…
197. 	The Board consented to you lodging a new application for parole in twelve (12) months from the date of this decision, that is after 21 August 2025, and no earlier application will be considered.
198. 	The reason for this change was to provide finality in the decision-making process and because there are no established Queensland Corrective Services processes for the submission of addresses for assessment when there is no parole application before the Board.
[18]	The Board also gave the applicant a letter dated 13 September 2024 informing him of the August Non-Reapply Period Decision in similar terms.
The Board’s reasons
[19]	The Board seeks to rely upon the August Statement of Reasons as the reasons for the May Refusal Decision and the August Non-Reapply Period Decision.
[20]	The Board notes that there is an irregularity in the August Statement of Reasons having been given for the May Refusal Decision.  That is because the Board had an obligation to give reasons for that decision pursuant to previous s. 193(5)(a), and present s. 193(6)(a) CSA.  The Board did so by its letter dated 14 June 2024.  It was pursuant to consent orders that the Board gave the applicant the August Statement of Reasons under Part 4 of the JRA, but arguably, the May Refusal Decision was not a decision to which Part 4 of the JRA applied.  
[21]	The Board says that the August Statement of Reasons is more complete but not materially different from the reasons given in the letter of 14 June 2024, except that the August Statement of Reasons incorporates the content of the Board’s preliminary view letter of 15 December 2023, whereas the Board’s letter of 14 June 2024 only refers to the letter of 15 December 2023 without incorporating its content.
[22]	The parties both generally proceeded on the basis of the August Statement of Reasons as representing the reasons for the relevant decisions, and I will do the same.  
Ground 1: May Refusal Decision - improper exercise of power: failure to take into account relevant consideration / material denial of procedural fairness
[23]	The crux of this ground of review is that the applicant alleges that the Board failed to take in take into account his 2017 Application in full.  In that respect, note [9] and [10] above concerning how the applicant incorporated the 2017 Application into the 2023 Application.  Further, even in subsequent submissions made by the applicant in response to the Board’s preliminary view letter, the applicant continued to refer back to the 2017 Application.
[24]	Counsel for the Board candidly explained to the Court that the Board is unable to produce express evidence that the Board had before it and considered the following parts of the 2017 Application when considering the 2023 Application:  
(a)	the part of the 2017 Application proper from page 21 which covered the following topics – 
(i)	at pages 21 to 39: Relapse prevention & management plan (covering the following sub-topics: Risk assessments, Risk factors, My strategies for managing my risk factors, My support network, Motivations, Protective factors, Environmental factors);  
(ii)	pages 39 to 44: Other reasons for the Board to consider,    
(b)	appendix A: Form 176 – Home assessment request; 
(c)	appendix B: Effects of my offending; 
(d)	appendix C: Courses; 
(e)	appendix J: Chapter 11 – My Good Life Plans; 
(f)	appendix K: Chapter 12 – In the Community. 
[25]	Despite the state of the evidence as above, I was invited by the Board to infer that at least some of this ‘missing’ material must have been before and considered by the Board when it was considering the 2023 Application.  That is because the 15 December 2023 preliminary view letter from the Board makes reference to: 
The parole board has reviewed your current application and, at your request, your previous application submitted 29 August 2017, including Relapse Prevention and Release Plans and New Future Plan
and the “Relapse Prevention and Release Plans and New Future Plan” would have been part of the ‘missing’ part of the 2017 Application identified at [24](a)(i) above.  
[26]	Whilst I would be prepared to make an inference that some of the ‘missing’ material was in fact not missing and was considered by the Board, I am not prepared to infer that all of the ‘missing’ material was before the Board.  The ‘missing’ material does appear to include material of real substance (for example, the ‘missing’ part identified at [24](a)(ii) above).
[27]	The weight of the evidence supports a finding, that I make, that at least part of the 2017 Application was in fact not before and not considered by the Board in 2023/2024. 
[28]	I note that the applicant in response to the Board’s preliminary view letter, expressed concern that the Board had not had regard to the whole of the 2017 Application.  Specifically, on 15 March 2024, the applicant made a 37-page submission responding to the Board’s preliminary view.  In that submission, the applicant requested the Board confirm that it had considered the entirety of his 2017 Application.  It did not do so.  The issue could (and perhaps should) have been investigated, fixed if necessary, and then specifically addressed by the Board in correspondence back to the applicant or in the August Statement of Reasons so that the actual position about any ‘missing’ material was known by all.    
[29]	Instead, confusingly, the August Statement of Reasons records at [166] that the Board “did not consider [the applicant’s] previous applications, including the application made in 2017, or any material [the applicant] provided in relation to those applications”.  The paragraph goes on to state “some documents in relation to previous applications formed part of the material that was considered by the Board in relation to [the applicant’s] current application”. 
[30]	It is submitted on behalf of the Board that the Board’s statement in the August Statement of Reasons that it “did not consider” the 2017 Application cannot mean that the Board had no regard to the 2017 Application before deciding to refuse the application and instead means that the Board performed the task of deciding the 2023 Application, and not an assessment of any of the applicant’s previous applications. 
[31]	It is also submitted for the Board that it had no express duty to consider the 2017 Application under the CSA.  Instead, any duty the Board had to consider the 2017 Application could only have arisen as an incident of procedural fairness because the applicant had requested that the Board consider the 2017 Application.  It says the manner in which the Board considered the 2017 Application during its decision-making process, viewed in its entirety, was sufficient to afford the applicant procedural fairness. 
[32]	I accept that the obligation of the Board was to consider and decide the 2023 Application, not any earlier application.  But the 2023 Application expressly incorporated the whole of the 2017 Application and so included the whole of the 2017 Application, and the Board did not have before it or consider all of that document.  
[33]	That the Board afforded the applicant an opportunity to make further representations in support of his application in response to the Board’s preliminary view letter is not to the point.  The applicant did not know, and in fact asked, if the Board had considered all of the information contained in the 2017 Application.  That such an  enquiry was made is supportive of a conclusion that the 4 pages of the 2023 Application and the applicant’s response did not regurgitate all information contained in the 2017 Application.  Only some, but not all, of the ‘missing’ material was supplemented by new material contained in the four pages of the 2023 Application and the further submissions made (for example, further courses completed since 2017 were identified).  I do not consider there is any proper evidentiary basis to conclude that the missing parts of the 2017 Application that were not before the Board had been completely overtaken by the four pages of the 2023 Application or the applicant’s further submissions.
[34]	There was therefore a denial of procedural fairness.  The applicant clearly and fairly asked for certain material to be considered by the Board as comprising part (and a substantive part) of the 2023 Application, and it was not.  I consider that the denial of procedural fairness is material in circumstances where part of the 2017 Application not considered concerned at least “Other reasons for the Board to consider”.  The outcome of an application for a parole order will usually involve a balancing of both positive and negative factors – as it did here.  I do not accept that any single factor in this case was determinative, although plainly accommodation and the ability of Corrective Services to properly supervise the applicant loomed large in the determination of the application by the Board.  I consider that the applicant has demonstrated that there was at least a realistic possibility that a different decision could have been made if the ‘missing’ material were taken into account by the Board.  I cannot be confident that the denial of procedural fairness could have no bearing on the outcome.  Accordingly, the denial of procedural fairness does justify setting aside the May Refusal Decision so as to avoid practical injustice. 
[35]	It is not necessary for me to go on to further consider in any detail whether there was separately a failure to take into account a relevant consideration as a separate ground.
[36]	However, I note that Cooper J summarised the legal principles applicable to the failure to take into account a relevant consideration in Hickson v Parole Board Queensland [2024] QSC 133 at [44]-[46] (footnotes omitted):
A failure to take into account a relevant consideration can only be made out as a ground of review if a decision maker fails to take into account a consideration that he or she is bound to take into account in making that decision. What factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose.
Where a decision maker is bound to take into account a consideration, there is a requirement to give that matter proper, genuine and realistic consideration. However, care needs to be taken to ensure that the requirement does not encourage a “slide” into an impermissible merits review’ of the decision.
Not every consideration that a decision maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.
[37]	Here I think it is clear that such a ground would succeed as on the proper construction of the CSA, the application for a parole order would be a relevant consideration that the Board is bound to take into account, and here it did not do so given the ‘missing’ material.  The omission was material for the reasons I have mentioned.   
[38]	Finally, I note that during oral argument possible issues arose as to (1) whether the decisions in May were one decision or two, (2) if one, whether the May Refusal Decision remained valid given the express revocation of the part of the decision dealing with the non-reapply period, and (3) if not, whether the decision in August was in fact a decision about both refusal and the non-reapply period (contrary somewhat to its express terms and the respondent’s position in the proceeding).  Given the findings I have made, it is not be necessary for me to make any findings about such issues.  It is sufficient to note for present purposes that even if the effective refusal decision was the August decision/s, the issue of the ‘missing’ material had not been rectified by that time and any such decision would be affected by the same error I have identified.   
Ground 2: May Refusal Decision - improper exercise of power: legally unreasonable
[39]	In summary, the applicant submits that:
(a)	there was material before the Board that the applicant’s risk of reoffending was sufficiently low that he would be capable of being managed or supervised in the community pursuant to a detailed and comprehensive parole order; 
(b)	the Board can impose appropriate conditions to manage his level of risk to the community; the Board’s failure to formulate such conditions has the effect that the applicant is being indefinitely detained; 
(c)	the applicant has been unable to source suitable accommodation: further information from the Board would assist him to do so, and the Board has placed undue emphasis on victim proximity when assessing the suitability of his accommodation.
[40]	Given the findings I have made in relation to ground 1, it is unnecessary to determine ground 2.  
[41]	It would be remiss of me though not to highlight a practical issue that exists for prisoners in the position of the applicant, that might be able to be addressed by the legislature or administrative processes, in respect of which the Court would play no part.  
[42]	The issue is as follows.
[43]	As mentioned, the applicant is serving a life sentence.  His sentence ends only upon his death.
[44]	Other prisoners who are serious sexual offenders, who have sentences of a fixed duration, will at some time reach the end of their sentences.  In appropriate cases, upon application of the Attorney-General, some such prisoners will be made subject to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA).  That Act has the effect that for the safety of the community, such prisoners may be the subject of continuing detention or supervision in the community after their full sentence has been served.  
[45]	The DPSOA regime permits of supervision of varying levels of the prisoner in the community, depending on what is required to keep the community safe.  For some prisoners that may mean a set of conditions with very high levels of restriction.  The High Risk Offenders Management Unit at Corrective Services is charged with the management of DPSOA prisoners who are released on supervision.  They have special skills, knowledge and resources available to them to assist them to properly manage those prisoners.  One of those resources is accommodation facilities at the Wacol Precinct, where prisoners can be subject to curfews (including up to 24 hour curfews) and higher levels of supervision than what usually exists in the community.   
[46]	Because the applicant is serving a life sentence, there is no fulltime date for his sentence to end.  He cannot be made subject to the DPSOA.  
[47]	The arm of Corrective Services who deal with prisoners granted parole is not so specialised.  A parolee cannot be subject to the DPSOA and cannot be released to live under supervision at the Precinct.  
[48]	In the applicant’s case, the Board was cognisant of that fact.  The Board took into account that (1) the “case management model ... and management supports available to manage [DPSOA] prisoners are unable to be utilised to supervise [the applicant] in the community”; and (2) in addition, that supervision by the High Risk Offenders Management Unit at Corrective Services would be unavailable.
[49]	One might readily conclude that a person such as the applicant, if he is ever to be released on parole, should only be released with DPSOA like conditions, including in respect of initial accommodation and supervision at the Precinct and a raft of other strict conditions to be managed by specialised officers equipped to deal with prisoners such as the applicant.  
[50]	Particular factors potentially standing in the way of the applicant ever being released on a parole order include accommodation and supervision issues.  Those factors might be able to be addressed if the applicant was able to be managed as if he was a DPSOA prisoner.  
[51]	There is a class of prisoner for whom this type of issue is likely to arise – prisoners serving life terms of imprisonment, who, if not for the life term, at the end of their term would be declared dangerous prisoners under the DPSOA, and in respect of whom supervision orders would be made.  The number of prisoners in that class is not likely to be large.
[52]	There is at least the possibility that legislative or administrative changes could be made to manage such prisoners, if a parole order were made, effectively as if they were a dangerous prisoner under the DPSOA on a supervision order.  
[53]	There is also at least the possibility that a decision not to make a parole order in relation to such prisoners because of perceived difficulties in accommodating and managing them, when like DPSOA prisoners can be accommodated and managed, might be legally unreasonable.  
Ground 3: August Non-Reapply Period Decision - improper exercise of power: legally unreasonable
[54]	The applicant submits that the 12 month non-reapply period set by the Board pursuant to the August Non-Reapply Period Decision ought to have commenced from 13 May 2024 (the date the May Refusal Decision was made) and not from 21 August 2024 (the date the August Non-Reapply Period Decision was made).
[55]	The Board’s duty to set a non-reapply period is mandatory, but the period that it sets is a matter for its discretion. A reasonable and permissible exercise of a discretion may encompass a spectrum of outcomes. 
[56]	The obligation to make the non-reapply period decision arises only when parole is refused.  Plainly enough the reasons for refusing parole will be relevant to the decision in relation to the non-reapply period.  
[57]	In my view, in most cases, including this one, if the refusal decision is set aside, so too must the non-reapply period decision be set aside.  A fresh non-reapply period decision will be made if a fresh no parole order decision is made.    
Conclusion
[58]	It follows that the decisions ought to be set aside and the 2023 Application remitted to the Board for reconsideration. 
[59]	I propose to order:
(a)	Pursuant to s. 30 of the Judicial Review Act 1991 (Qld) the respondent’s decisions under review of 13 May 2024 and 22 August 2024 are set aside.
(b)	The respondent reconsider the applicant’s 2023 application for a parole order with appropriate expedition.
(c)	Liberty to apply.
(d)	There be no order as to costs, save that the respondent pay the applicant’s costs of filing the application for a statutory order of review fixed in the amount of $144.70.
[60]	If necessary I will hear from the parties regarding the form of the order.