DYS21 v Attorney-General (Cth)

• Jurisdiction: Australia Federal only
• Judgment Date: 01 November 2021
• Neutral Citation: [2021] FCA 1331
• Court: Federal Court
• Date: 11 November 2021

Federal Court of Australia

DYS21 v Attorney-General (Cth) [2021] FCA 1331

File number:	NSD 717 of 2021
Judgment of:	BROMWICH J
Date of judgment:	1 November 2021
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of Commonwealth Attorney-General’s decision to refuse to grant parole – whether the making of the decision was an improper exercise of the power conferred or a jurisdictional error occurred in connection with the making of the decision – held: decision set aside by reason of improper exercise of power and corresponding jurisdictional error.
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(a), 5(1)(e) Crimes Act 1914 (Cth) pt IB div 5 subdiv A, ss 19AKA, 19AL(1) Criminal Code (Cth), contained in the Schedule to the Criminal Code Act 1995 (Cth) ss 474.19(1)(a)(iiii), 474.20(1) Judiciary Act 1903 (Cth) s 39B
Cases cited:	Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Khazaal v Attorney-General (Cth) [2020] FCA 448 Lodhi v Attorney-General (Cth) [2020] FCA 1383 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Division:	General Division
Registry:	New South Wales
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	41
Date of hearing:	1 October 2021
Counsel for the Applicant:	G Lewer
Solicitor for the Applicant:	JE Justice Legal
Counsel for the Respondent:	T Glover
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 717 of 2021
BETWEEN:	DYS21 Applicant
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH Respondent

order made by:	BROMWICH J
DATE OF ORDER:	1 november 2021

THE COURT ORDERS THAT:

1. The respondent’s refusal of parole decision made on 22 June 2021 be set aside.

2. The respondent reconsider the decision to make, or refuse to make, an order that the applicant be released on parole in accordance with section 19AL of the Crimes Act 1914 (Cth).

3. The proceeding be adjourned for a case management hearing at 9.00 am on 29 November 2021, or such other date as may be fixed, at which time the respondent:

   1. advise the Court as to whether a decision has been made in accordance with order 2; and

   2. if such a decision has not been made, show cause why an order in the nature of a writ of mandamus should not be made, compelling the respondent to make or refuse to make an order that the applicant be released on parole in accordance with subsection 19AL(1) of the Crimes Act 1914 (Cth) within a stipulated time, having regard to the terms of that provision.

4. Either party or both parties have leave to approach the associate to Justice Bromwich by email to seek any variation or vacation of order 3.

5. The respondent pay the applicant’s costs of and incidental to the proceeding, including the costs of any future case management hearing.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1. On 17 April 2019, the applicant, following guilty pleas to federal offences of using a carriage service to solicit child pornography material and of possessing or controlling child pornography material for use through a carriage service contrary to ss 474.19(1)(a)(iiii) and 474.20(1) respectively of the Criminal Code (Cth), was sentenced to imprisonment. His aggregate prison sentence was three years and six months, expiring on 16 October 2022, with a two year and three month non-parole period expiring on 16 July 2021.

2. On 22 June 2021 the respondent, the Commonwealth Attorney-General, decided in person to refuse the applicant parole. He applies for judicial review of that decision under s 5(1)(a) and (e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), alleging an improper exercise of power and a breach of the rules of natural justice, and alternatively under s 39B of the Judiciary Act 1903 (Cth) by reason of corresponding jurisdictional error.

3. The material that was placed before the Attorney-General revealed that the New South Wales prison authorities, with undoubted expertise in the area of risk management of prisoners, including the use of parole to manage that risk, in substance considered that:

1. there was a low risk of the applicant reoffending during the balance of the term of his prison sentence, necessarily referring to that balance being served on parole in the community; and

2. the grant of parole was essential for the purpose of managing and limiting, and perhaps even practically eliminating, longer term risks to the community by reason of the applicant reoffending after the sentence had been completed when no parole or supervision controls would exist.

4. Despite those views the Attorney-General was entitled, upon being properly informed, to:

1. instead give greater and determinative weight to eliminating the low short term risk of the applicant reoffending during the balance of the term of his prison sentence; and

2. give no determinative weight to parole being used to manage and limit longer term risks to the community.

5. The Attorney-General’s decision was not apparently made on the basis of the differential risk posed by release on parole and release at the end of a sentence with little or no parole having been expressly drawn to her attention. On the material before the Court it seems likely that the Attorney-General was not made aware that this was an important aspect of the decision required to be made. That is because it was not made clear in the covering recommendation memorandum addressed to her, or even in the more detailed analysis of the material provided to her, that this was the view of the New South Wales prison authorities. Instead she was likely to have been actively misled by being told that there was no risk in refusing parole, which could only be true for the balance of the sentence. A key question therefore raised in this proceeding is whether such a fundamental defect in the briefing materials was a legally material deficiency in the information provided to the Attorney-General so as to vitiate her decision to refuse parole as either an improper exercise of power or corresponding jurisdictional error.

6. The applicant raises a narrow judicial review issue, said to involve an improper exercise of power under s 5(1)(e) of the ADJR Act; or alternatively a breach of the rules of natural justice under s 5(1)(a) of the ADJR Act; or a corresponding jurisdictional error as to either for the purposes of s 39B of the Judiciary Act. As counsel for the applicant made abundantly clear, it was not contended that the Attorney-General was in any way compelled to grant parole; but if she refused to do so, the reasons for doing so had to be legally sound and beyond judicial impeachment. In this case, the fault alleged by the applicant lay in the material furnished to the Attorney-General in support of the conclusion reached, said to incurably taint it, rather than any overt error in the reasons given.

7. For the reasons that follow, I am satisfied that a misuse of power and/or jurisdictional error has taken place by reason of material deficiencies in the summary information that was placed before the Attorney-General, in the pleaded sense of the decision lacking an evident and intelligible justification: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [61(a)] and the weighty authorities...