Procedural fairness and federal parole: Coen v Attorney-General (Cth).

The decision in summary.

Coen v Attorney-General (Cth) [2026] FCA 1440 was decided by Kennett J on 2 October 2026. It was an application for judicial review of a decision by a delegate of the Attorney-General, under section 19AL(1) of the Crimes Act 1914 (Cth), to refuse parole to a person serving a federal sentence. The review was brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth), and in the alternative under section 39B of the Judiciary Act 1903 (Cth).

The underlying matter was a Commonwealth child sexual abuse offence. The applicant had pleaded guilty to using a carriage service to groom a person, with the intention of procuring a person under 16 to engage in sexual activity, contrary to section 474.27AA(1) of the Criminal Code (Cth). This note is about the parole decision and the administrative law, not the offending, and it names no complainant.

The Court made two orders. First, under section 16(1)(a) of the Administrative Decisions (Judicial Review) Act, the refusal decision was set aside. Second, the Attorney-General was ordered to pay the applicant's costs. The applicant succeeded on one ground only, procedural fairness. The Court considered and rejected the other five grounds.

The federal parole framework.

Parole for federal offenders is dealt with in Division 5 of Part IB of the Crimes Act 1914 (Cth). It is a separate system from State parole. For a person serving a federal sentence, the decision is made by the Attorney-General or a delegate, not by a parole board. Section 19AL(1) requires the Attorney-General, before the end of the non-parole period, to make or refuse to make an order releasing the person on parole.

Section 19AKA sets out three purposes of parole: the protection of the community, the rehabilitation of the offender, and the reintegration of the offender into the community. Section 19ALA then lists the matters the decision-maker may take into account, including the risk to the community, the person's conduct in custody, the completion of programs, the effect on any victim, the nature of the offence, the comments of the sentencing court, and the adequacy of the person's release plans. The list is permissive. The Court confirmed in this case that those matters may be considered, but are not, as a class, matters the decision-maker is bound by law to treat as decisive.

If parole is refused, section 19AL(2) requires written notice with a statement of reasons within 14 days, and a reconsideration of parole within 12 months. The decision-maker must give reasons for the refusal, which brings in section 25D of the Acts Interpretation Act 1901 (Cth) on the content of a statement of reasons.

The adverse comments letter and the sentencing remarks.

Before the decision was made, the offender was sent an adverse comments letter. This is the step that gives a federal offender a chance to respond to the matters that may weigh against release. The letter listed the nature and circumstances of the offending and the comments of the court as a matter that might be relied on. On the sentencing remarks, the letter said only that, because there appeared to be a non-publication order, the comments would not be reproduced. The offender was not told which parts of the remarks might be treated as adverse to his release.

The submission prepared for the delegate by the Commonwealth Parole Office summarised the sentencing remarks and proposed a draft statement of reasons. The delegate made a deliberate change to that draft. She struck out the detail of the sentencing remarks from her reasons, and added a note explaining that she had removed it because that detail had not been included in the adverse comments letter sent to the offender. The Court treated that note as showing the delegate understood the procedural fairness problem and had tried to avoid it. That understanding was correct.

The difficulty was that the edit did not go far enough. The reasons that were adopted still said that, taking into account the nature and circumstances of the offending "and the comments by the sentencing court", release presented an unacceptable risk to community safety. The reference to the comments of the sentencing court survived in the operative reasons, even though the offender had never been told which comments were being held against him.

Why the refusal was set aside.

Procedural fairness requires that a person affected by a decision be told of adverse material that is credible, relevant and significant, and be given a real chance to respond. Where a decision-maker relies on an adverse conclusion that is not obvious from the known material, the person must be told. The Court traced the principle to Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, and applied it in the parole context as it had been in Khazaal v Attorney-General (Cth) [2020] FCA 448 and Khawaja v Attorney-General (Cth) [2022] FCA 334.

The sentencing remarks had been made in the offender's presence and ran to around 14 pages. They were not all adverse to parole. Part of the reason the sentencing judge set a short non-parole period was a view that supervised support on parole would help. So the remarks cut both ways. If the adverse parts were going to be used against release, the offender had to be given notice of which parts, so that he could put his own case on them. He was not.

The Attorney-General argued that the surviving reference to the sentencing comments was an infelicity of expression or an editorial oversight. The Court did not accept that. This was not loose language in the sense discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. It was a reference to a specific piece of material that the decision-maker had chosen to leave in. The Court declined to read down the reasons by treating the reference as a slip, noting the Attorney-General could have led evidence on the point and had not.

The last step was materiality. A denial of procedural fairness only vitiates a decision if the lost opportunity could have made a difference. Where a person has not been heard on a relevant matter, it is no easy task for a court to be satisfied that the loss of that chance did not deprive the person of a possible successful outcome, as the High Court explained in LPDT v Minister for Immigration [2024] HCA 12. There were things the offender might have said about the sentencing remarks if he had been given proper notice. The decision was therefore set aside.

The grounds that did not succeed.

The win was on one ground. The five that failed mark the limits of what judicial review of a parole decision can do.

The complaint that the reasons did not comply with section 25D of the Acts Interpretation Act did not help the applicant. A failure to give proper reasons is a separate thing from a flaw in the decision, and the usual remedy is an order for better reasons, which the applicant had not sought. The argument that the delegate failed to consider relevant matters, being the applicant's submissions, the sentencing judge's reasoning and the recommendation of Corrective Services NSW, was rejected. The matters in section 19ALA are permissive, and brief reasons that state conclusions at a general level do not show that the decision-maker ignored the material. The Court found the delegate had read the material and engaged with it.

The challenge to the description of the applicant as an "untreated sex offender" failed. The phrase was not a term of art, and it was not inapt, because the applicant had not had access to treatment in custody. The argument that the parole submission misstated the purpose of parole, by treating refusal as removing all risk, failed too. Unlike the submission criticised in DYS21 v Attorney-General (Cth) [2021] FCA 1331, the material here compared the risk in custody with the risk on release, and addressed both the short and the long term. That reflected a correct understanding that the protection of the community under section 19AKA extends beyond the end of the sentence.

Finally, the broad complaint of legal unreasonableness was rejected. A decision is not unreasonable merely because a party disagrees with it, or because the decision-maker did not engage with opinions the party found persuasive. The delegate accepted that the applicant's release plans were not sufficiently developed, and concluded that release at this time was not in the interests of his rehabilitation, his reintegration or community safety. That conclusion was debatable, but it had an evident and intelligible justification, which is the test.

What the decision does, and does not, do.

The Court did not grant parole. It did not order anyone's release. It did not decide that parole should be granted. It set aside a decision that was made unfairly, and no more.

Once the refusal is set aside, the Attorney-General is under a statutory duty to make the parole decision again, as soon as practicable, under section 19AL(1A) of the Crimes Act. That fresh decision can be a refusal, provided it is made the right way, on proper notice, and for proper reasons. The Court did not need to make any further order of the mandamus kind, because the duty to decide arises from the statute once the flawed decision is gone. What the applicant obtained is a fair process. He did not obtain parole.

Why this matters for federal offenders and their advisers.

The decision states a practical rule. A federal parole decision can rely on the sentencing remarks, but only on the parts the offender has been given a fair chance to answer. The adverse comments letter is where that chance is given, so the letter has to identify the adverse aspects of the remarks that may be relied on. A general reference to "the comments of the court", with the detail withheld, is not enough.

For practitioners, there are three points to take from it. Read the adverse comments letter against the final reasons, line by line, and check that every adverse matter relied on was actually put. Watch for a reference that survives an edit, as the reference to the sentencing comments did here, because a half-removed matter can still carry the decision. And keep the materiality question in view, because a denial of procedural fairness is only useful on review if the lost opportunity could have changed the outcome, which is why it helps to be able to show what the offender would have said.

The decision sits alongside the broader law on federal sentencing and parole. It can be read with our notes on Commonwealth sentencing in the Court of Criminal Appeal and on non-parole periods and the structure of a sentence.

Our role in the matter.

Good Legal Lawyers acted for the successful applicant. Aaron Kernaghan instructed Leah J Rowan of Counsel. This commentary is written by Aaron Kernaghan. It is a note on a public decision of the Federal Court and on the administrative law it applies, written for other practitioners and for people trying to understand how federal parole decisions are made and reviewed.

Frequently asked.

What did the Federal Court decide in Coen v Attorney-General (Cth)?

The Court set aside a delegate's decision refusing parole to a federal offender. It was set aside on one ground, procedural fairness, because the refusal relied on the comments of the sentencing court as a reason to refuse parole, yet the adverse parts of those comments had never been put to the offender so that he could respond. The matter is Coen v Attorney-General (Cth) [2026] FCA 1440, Kennett J, 2 October 2026.

Does setting aside a parole refusal mean the offender is released?

No. Setting aside the refusal does not grant parole and does not release anyone. It removes the flawed decision and requires the Attorney-General to make the parole decision again according to law. Under section 19AL(1A) of the Crimes Act 1914 (Cth) the fresh decision must be made as soon as practicable, and it can be a refusal again if it is made the right way.

What is the adverse comments letter in a federal parole decision?

Before the Attorney-General decides whether to grant parole to a federal offender under section 19AL of the Crimes Act 1914 (Cth), the offender is usually sent a letter setting out the matters that may weigh against release, so that he can respond. Procedural fairness requires the adverse material actually relied on to be identified in that letter. If a decision then relies on an adverse matter that was not put to the offender, the decision can be set aside.

Can a parole decision rely on the sentencing remarks?

Yes. Section 19ALA(1)(f) of the Crimes Act 1914 (Cth) allows the decision-maker to have regard to comments made by the sentencing court. The point in Coen was not that the sentencing remarks could not be used. It was that if the adverse parts are going to be relied on, the offender must be told which parts, so that he has a real chance to respond before the decision is made.

What are the purposes of federal parole?

Section 19AKA of the Crimes Act 1914 (Cth) states three purposes: the protection of the community, the rehabilitation of the offender, and the reintegration of the offender into the community. The Court confirmed that the protection of the community is not confined to the sentence period. It includes the longer term, after the sentence has been served and the person is in the community without conditions.

Why does procedural fairness matter so much in parole decisions?

A parole decision affects a person's liberty. The law requires it to be made fairly, which means the offender must know the case against release and have a real chance to meet it. When a decision-maker relies on an adverse matter the offender was never told about, the offender loses the chance to respond, and a court cannot be confident the outcome would have been the same. That is why the decision is set aside and made again.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is a fair report of, and commentary on, a public decision of the Federal Court of Australia, Coen v Attorney-General (Cth) [2026] FCA 1440, as at 4 October 2026. Good Legal Lawyers acted for the applicant, with Aaron Kernaghan instructing Leah J Rowan of Counsel. The commentary reflects the personal opinion of the author only. It is not legal advice and is not a substitute for advice on your own matter. The Court set aside the parole refusal on procedural fairness grounds and did not order the applicant's release; the parole decision falls to be made again according to law. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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