…judicial review – failure to consider submissions advanced by the applicants
In Pulini v Assistant Minister to the Attorney-General of the Commonwealth of Australia [2021] FCA 1543 (10 December 2021), the court heard an application for judicial review of decisions of the Assistant Minister to refuse the applicants’ parole.
The applicants, a married couple, are each imprisoned under federal sentences of imprisonment.
The applicants’ first ground alleged that the Assistant Minister was bound, but failed, to consider substantial and clearly articulated submissions made by them. The submissions alleged not to have been considered were: first, that the time of the Assistant Minister’s decision was optimal for the applicants’ release on parole regarding their rehabilitative progress; and, second, that their youngest child was struggling in his parents’ absence and needed his parents’ support (at [31]).
The court summarised the principles concerning the requirement of a decision-maker, to consider the submissions advanced by a person subject to a decision, and as applied in the context of parole (at [33]-[37]).
The court accepted the applicants’ submissions that (a) this was the optimal time for their release on parole and (b) that their youngest child was struggling in his parents’ absence and needed his parents’ support. These were each clearly articulated arguments advanced in support of parole (at [39] and [41]).
The court held that the latter, the welfare of the youngest child submission, was not considered by the Assistant Minister in refusing parole. In so finding, the court addressed the content of the requirement under s19AL(2)(a)(ii) of the Crimes Act 1914 (Cth) for the provision of a statement of reasons for the refusal of parole. This is to be read with s25D of the Acts Interpretation Act 1901 (Cth) which concerns the content of a statement of reasons for decision (at [55]-[56]).
In this case, the applicants’ submissions containing the welfare of the youngest child submission were within the bundle of material placed before the Assistant Minister. However, it was not mentioned in reasons refusing parole.
Rangiah J held that this was a case where the appropriate inference to draw was that the Assistant Minister did not consider the welfare of the youngest child submission, and that was a denial of natural justice (at [65]). The remaining grounds of illogical reasoning and inadequate reasons were rejected.
Dan Star QC is a Senior Counsel at the Victorian Bar, ph 03 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.
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