Roberts v Attorney-General (Cth)

• Jurisdiction: Australia Federal only
• Judgment Date: 18 May 2022
• Neutral Citation: [2022] FCA 574
• Date: 18 May 2022
• Court: Federal Court

Federal Court of Australia

Roberts v Attorney-General (Cth) [2022] FCA 574

File number:	NSD 128 of 2022
Judgment of:	LEE J
Date of judgment:	18 May 2022
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of parole decision under s 19AL(1) of the Crimes Act 1914 (Cth) – survey of principles informing federal parole decisions – where applicant unable to access offence-specific treatment in custody – whether Attorney-General failed to consider arguments advanced by applicant – whether decision affected by procedural unfairness – whether decision lacked evident and intelligible justification – where Attorney-General balanced risks of release against risks of refusal of parole – where no material deficiencies in information before Attorney-General – application dismissed
Legislation:	Acts Interpretation Act 1901 (Cth) s 25D Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Crimes Act 1914 (Cth) ss 19AL, 19AKA, 19ALA Criminal Code Act 1995 (Cth) ss 474.19, 474.24A Judiciary Act 1903 (Cth) s 39B Crimes Act 1900 (NSW) s 91H
Cases cited:	Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 DYS21 v Attorney-General (Cth) [2021] FCA 1331 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 Keliher v Attorney-General of the Commonwealth of Australia [2021] FCA 1641 Khawaja v Attorney-General (Cth) [2022] FCA 334 Khazaal v Attorney-General [2020] FCA 448 Lodhi v Attorney-General (Cth) [2020] FCA 1383 Lopez-Avila v K & S Freighters Pty Ltd [2015] FCA 962; (2015) 68 AAR 86 Masri v Attorney-General (Cth) [2022] FCA 17; (2022) 398 ALR 509 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Minogue v Victoria [2019] HCA 31; (2019) 268 CLR 1 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 Pulini v Assistant Minister to the Attorney-General (Cth) [2021] FCA 1543; (2021) 397 ALR 192 R v Roberts [2019] NSWDC 282 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115 Stambe v Minister for Health [2019] FCA 43; (2019) 270 FCR 173 Stephens v Attorney-General [2021] FCA 204 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Division:	General Division
Registry:	New South Wales
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	81
Date of hearing:	6 May 2022
Counsel for the Applicant:	Mr J R Bennett
Solicitor for the Applicant:	Vizzone Ruggero Twigg Lawyers
Counsel for the Respondent:	Mr T Glover
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 128 of 2022
BETWEEN:	GAVIN JAMES ROBERTS Applicant
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Respondent

order made by:	LEE J
DATE OF ORDER:	18 MAY 2022

THE COURT ORDERS THAT:

1. The amended originating application be dismissed with costs.

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

REASONS FOR JUDGMENT

LEE J:

A INTRODUCTION AND BACKGROUND

1. Before the Court is an application for judicial review of a decision of the respondent (Attorney-General) to refuse to release the applicant, Mr Gavin Roberts, from a New South Wales prison on parole.

2. In April 2019, the District Court of New South Wales convicted Mr Roberts of the following Commonwealth offences (R v Roberts [2019] NSWDC 282):

1. a charge under the Commonwealth Criminal Code, contained in the Schedule to the Criminal Code Act 1995 (Cth) (Criminal Code), of accessing child pornography pursuant to s 474.19(1);

2. a charge under the Criminal Code of transmitting child pornography pursuant to s 474.19(1); and

3. a charge under the Criminal Code for an aggravated offence pursuant to s 474.24A.

3. Mr Roberts was sentenced to a total term of four years and six months’ imprisonment, with a single non-parole period of two years and three months, commencing in October 2019 and expiring in January 2022. Mr Roberts’ Commonwealth head sentence will expire in October 2023.

4. The Court also convicted Mr Roberts of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), and sentenced him to a fixed term of 18 months’ imprisonment, commencing in April 2019 and expiring in October 2020.

5. In January 2022, the Attorney-General refused Mr Roberts’ release on parole pursuant to s 19AL of the Crimes Act 1914 (Cth) (Crimes Act), notifying Mr Roberts of her decision and reasons in writing (Refusal Notice).

6. Mr Roberts remains in custody in New South Wales.

B GROUNDS OF JUDICIAL REVIEW

7. By way of originating application, Mr Roberts set out three grounds of judicial review, each with respect to the Attorney-General’s treatment of submissions made by his solicitor and supporting materials, including a pre-release report prepared by Corrective Services New South Wales (CSNSW). Mr Roberts now presses the following two of the original three grounds:

1. an error of law; namely, a failure to consider the material, in the sense of directing an active intellectual process towards it, contrary to s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act); and

2. a breach of the rules of natural justice; namely, a failure to consider the material, in the sense of directing an active intellectual process towards it, contrary to s 5(1)(a) of the ADJR Act.

8. In his written submissions, Mr Roberts raised a new ground of judicial review. Leave to rely upon an amended originating application reflecting this new contention and a further, fourth ground was sought at the hearing. The Attorney-General did not oppose such leave being granted. In the light of this, I granted Mr Roberts leave to rely upon the amended originating application.

9. The third ground is that Mr Roberts was not given an opportunity to respond to what he describes as the “eventual parole argument”, amounting to a denial of procedural fairness contrary to s 5(1)(a) of the ADJR Act.

10. The fourth ground is that the Attorney-General’s...