Abdulrahim v Adult Parole Board

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2021 02509

SULEIMAN ABDULRAHIM	Plaintiff
-and-
THE ADULT PAROLE BOARD OF VICTORIA & ORS (according to the attached Schedule)	Defendants

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	15-17 May 2023
DATE OF JUDGMENT:	31 July 2023
CASE MAY BE CITED AS:	Abdulrahim v Adult Parole Board & Ors
MEDIUM NEUTRAL CITATION:	[2023] VSC 432

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TORTS – False imprisonment – Whether plaintiff imprisoned without lawful authority – Prisoner released on parole – Where prisoner’s parole cancellation subsequently quashed on judicial review – Whether arrest warrant valid despite unlawful parole cancellation – Whether detention unlawful a question of statutory interpretation – Construction of empowering provision for issuing warrant in light of purpose of statutory scheme considered – Valid warrant requires only the fact of cancellation of parole not legally valid cancellation – Corrections Act 1986 (Vic) ss 61, 63, 68, 69, 71K, 73A, 77.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S Gold, with Ms Y Al‑Azzawi of counsel	Robinson Gill
For the Defendants	Mr L Brown, with Ms S Fitzgerald and Ms E Brumby of counsel	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

Facts...................................................................................................................................................... 2

Issues in dispute................................................................................................................................. 3

Was the imprisonment lawful?....................................................................................................... 4

Legislative scheme........................................................................................................................ 4
Defendants’ submissions............................................................................................................. 9
Plaintiff’s submissions................................................................................................................ 17
Analysis........................................................................................................................................ 24

Conclusion......................................................................................................................................... 39

HIS HONOUR:

Introduction

The plaintiff claims damages for false imprisonment and psychiatric injury against the Adult Parole Board, the Secretary to the Department of Justice and Community Safety (the DJCS Secretary) and the State of Victoria. The defendants, who are jointly represented, contended the plaintiff’s imprisonment was lawful, and further that each defendant cannot be sued either directly or in a representative capacity.

Facts

The relevant facts may be briefly stated. On 19 July 2018, the plaintiff, Mr Suleiman (‘Sam’) Abdulrahim, was sentenced to a total effective sentence of 3 years and 3 months’ imprisonment, with a non-parole period of 2 years and pre-sentence detention of 519 days, on a charge of culpable driving causing death and charges relating to possession of a drug of dependence.

On 23 January 2019, the Parole Board ordered that the plaintiff be released on parole with conditions and, on 5 March 2019, the DJCS Secretary released him on parole.

On 12 June 2019, through no wrongdoing on the plaintiff’s part and on the basis of police intelligence that the plaintiff was the suspected target in three recent shootings, the Parole Board cancelled the plaintiff’s parole. The Board considered that the safety and protection of the community was paramount. The Parole Board Secretary issued a warrant for his arrest.

On 13 June 2019, police arrested the plaintiff and he was returned to prison (into the custody of the DJCS Secretary). The plaintiff was in detention for 72 days, spent 35 days in solitary confinement, and was deprived of various privileges, on the suspicion held by the DJCS Secretary that he was in danger. He was also assaulted with a rock to the back of his head during this time in prison.

On 23 August 2019, Coghlan JA quashed the Parole Board’s decision cancelling the plaintiff’s parole and ordered his release from prison. The court held that the plaintiff did nothing to merit the cancellation of his parole.[1] The Board acted on information about the actions of a third party or parties.[2] Coghlan JA was satisfied that there was nothing in s 77(1) read with s 73A of the Corrections Act 1986 (Vic) that compelled or authorised the Parole Board to cancel the plaintiff’s parole. ‘I am not satisfied the Board can or should take responsibility for the actions of third parties which are not connected to any act of a parolee’.[3]
[1]Abdulrahim v Adult Parole Board [2019] VSC 570.
[2]Ibid [47].
[3]Ibid [58].

The plaintiff served out the rest of his parole without incident.

The plaintiff claimed that he was wrongfully and unlawfully imprisoned, and entitled to damages, including aggravated and exemplary damages, for the deprivation of his liberty and the psychiatric harm he suffered as a result of the arrest on 13 June 2019 and subsequent 72 days of incarceration, including in solitary confinement.

Issues in dispute

As Keane J observed in CPCF v Minister for Immigration and Border Protection,

The tort of false imprisonment is committed when a person's freedom of bodily movement is restrained without lawful justification. The person who actually imposes the restraint and the person who directs the other to do so may be liable for the tort. At issue in the present case is whether the defendants' direction to restrain the plaintiff was lawfully justified.[4]

And so it is in this case. Once it was established as a question of fact that the plaintiff’s liberty was deprived, as it has been in this case, the onus fell on the defendants to prove lawful justification. Fault is not an issue as false imprisonment is a tort of strict liability. Whether the defendant intended to act lawfully or cause injury is irrelevant. The focus is the vindication of liberty and reparation to the victim.[5]

[4](2015) 255 CLR 514, 631 [400]; see also Myer Stores Ltd v Soo (1991) 2 VR 597; Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44, 51, 54.

[5]Lewis v Australian Capital Territory (2018) 329 FLR 267, 284 [78]-[79] (and the authorities cited therein) (Lewis ACTSC), principles left undisturbed on appeal even though result was overturned in Lewis v Australian Capital Territory (2020) 271 CLR 192, 206-7 [25] (Lewis HCA).

The issues in dispute between the parties were:

(a) whether the defendants demonstrated that the plaintiff’s imprisonment was lawful;

(b) whether the defendants or any of them can be sued for damages; and

(c) in the event the false imprisonment claim is made out, the damages to be awarded.

I have concluded that the plaintiff’s further imprisonment from 13 June 2019 was lawful and that it is not necessary to answer the remaining questions.

Was the imprisonment lawful?

At first glance, one might think following on the decision of Coghlan JA quashing the Parole Board’s cancellation of the plaintiff’s parole and ordering that he be released from prison, that it might logically follow that his subsequent imprisonment was unlawful. However, although it leads to consequences that, in my view, are unjust, I have not been persuaded that the plaintiff’s subsequent imprisonment was unlawful.

It is necessary to carefully construe the legislative provisions under which the relevant actors purported to act to explain this conclusion. For the reasons that follow, I have been persuaded by the defendants that the plaintiff’s arrest and imprisonment on and from 13 June 2019 was justified by the provisions of the Corrections Act. It is convenient to begin by setting out the relevant statutory provisions.

Legislative scheme

The key provisions, as to the constitution of the Parole Board, its powers, functions and processes, and the cancellation of parole, as they stood at the relevant time, are as follows:

61 Establishment of Board
(1)There is established a Board by the name of the Adult Parole Board.

(2) The Board consists of—
(a)such number of Judges of the Supreme Court as are appointed by the Governor in Council on the recommendation of the Chief Justice of the Supreme Court; and
(ab)such number of Associate Judges of the Supreme Court as are appointed by the Governor in Council on the recommendation of the Chief Justice of the Supreme Court; and
(b)such number of Judges of the County Court as are appointed by the Governor in Council on the recommendation of the Chief Judge of the County Court; and
(c)such number of Magistrates as are appointed by the Governor in Council on the recommendation of the Chief Magistrate; and
(d)one or more persons appointed by the Governor in Council as full-time members; and
(da)one or more retired Judges of the Supreme Court or the County Court or a superior court or an intermediate court or retired Magistrates, appointed by the Governor in Council; and
(e)one or more persons appointed by the Governor in Council as part-time members; and
(f)the Secretary.

…

63 Terms of office
(1)Subject to subsections (1A) and (1B), a member of the Board holds office for the term, and subject to the conditions stated in the member's instrument of appointment but is eligible for re-appointment.
(1A)A member of the Board may hold office for a maximum of 9 years, whether appointed for one or more terms, and whether or not those terms are consecutive.

…
(8)The appointment as a member of the Board of a Judge of the Supreme Court or the County Court does not affect the tenure of office, rank, status or the remuneration rights or privileges of the Judge as the holder of office as a Judge, and for all purposes, service as a member of the Board by a Judge is to be regarded as service as a Judge.

…

66       Meetings
…
(2)The following questions which may arise at a meeting of the Board are to be decided by the person presiding at the meeting alone—
(a)       whether a question is a question of fact or of law;
(b)       any question determined to be a question of law.

…
(6) Subject to the regulations, the Board may regulate its procedure.

66A Secretary of Adult Parole Board
(1)The Secretary, by instrument, may authorise an employee of the Department to perform the functions of the secretary of the Adult Parole Board.

67 Secretary of the Board or member may act on behalf of Board
(1)If the Board has heard and determined a matter the secretary of the Board or a member of the Board may on behalf of the Board sign and issue all necessary orders and documents relating to that matter.
(2)An order or document signed under subsection (1) has effect as if signed by all the members of the Board.

…

69       Functions of Board
(1)       The Board has the functions conferred on it by—
(a)       this Act and the regulations; and

…
(2)In exercising its functions, the Board is not bound by the rules of natural justice.
(3)A member of the Board is not personally liable for anything done or omitted to be done in good faith—
(a)in relation to any function referred to in subsection (1), or in exercising any power in relation to such a function; or
(b)in the reasonable belief that the act or omission related to the function, or was in the exercise of the power.

(4)Any liability resulting from an act or omission that would, but for subsection (3), attach to the member of the Board attaches instead to the Board.

…

71 Evidence
In performing its powers, functions and duties, the Board is not bound by the rules of evidence or any practices or procedures applicable to courts of record and may inform itself on any matter as it sees fit.
…

71K Protection of participants at Board meeting
(1)A member of the Board has, in respect of the performance of the member's functions as member, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.
(2)A member of staff of the Board has, in the performance of the person's functions at a meeting of the Board, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.
…

72 Reports
(1)Before 30 September in each year the Board must give to the Minister a report relating to the 12 months ending on 30 June in that year and concerning—

…
(4)When required by the Minister the Board must give to the Minister a report and recommendation concerning a person who at the time of the report is serving a prison sentence.
(4A)When required by the Minister, the Board must give to the Minister a report and recommendations concerning a person who at the time of the report is serving a sentence of imprisonment.
(5)When the Minister requires the Board must give to the Minister a report on a matter stated in the requirement and relating to the operation of this Division or Division 4 or the activities of the Board.

…
(7)At the request of the Attorney-General for the Commonwealth the Minister may authorize the Board or the Secretary—
(a)to make reports and recommendations concerning a person detained in a prison in Victoria under or pursuant to a law of the Commonwealth, to the Attorney-General for the Commonwealth at the intervals and times required by the Attorney-General for the Commonwealth; and
(b)to exercise a power or perform a function in relation to a person who is or has been detained in a prison in Victoria under or pursuant to a law of the Commonwealth which is a power or function which the Attorney-General for the Commonwealth might exercise or perform in relation to that person.

73ASafety and protection of the community paramount in parole decisions
The Board must give paramount consideration to the safety and protection of the community in determining whether to make or vary a parole order, cancel a prisoner's parole or revoke the cancellation of parole.

…
77 Cancellation of parole
(1)Subject to this section, if a prisoner is released on parole the Board may, at any time before the end of the parole period, by order cancel the parole.
…

77A Revocation of cancellation
(1)If the Board has cancelled a prisoner's parole it may at any time by a further order revoke the cancellation.

…
(3)A parole order revives on the making of the order revoking the cancellation of the parole.
(4)The Board must not make an order revoking an order cancelling a prisoner's parole if a warrant has been issued under section 77B unless the Board is satisfied that the warrant will not be executed.

77B Return of prisoner to prison on cancellation of parole
(1)If a prisoner's parole is cancelled or taken to be cancelled, the Board may—
(a)authorise any police officer, by warrant signed by the Secretary or a member of the Board, to break, enter and search any place where the prisoner is reasonably believed to be and to arrest the prisoner and return the prisoner to prison; or

…
(2) If a prisoner's parole is cancelled or taken to be cancelled—
(a)the original warrant to imprison or other authority for the person's imprisonment is to be regarded as again in force; and
(b)any period during which the parole order was in force is not to be regarded as time served in respect of the prison sentence unless a direction under section 77C applies.

77C Power to direct that time on parole is time served
The Board may direct that some or all of the period during which a parole order that is cancelled or taken to be cancelled was in force is to be regarded as time served in respect of the prison sentence.

Defendants’ submissions

The defendants submitted that on a proper construction of the Corrections Act, the fact of the cancellation order, until it was quashed, authorised the Parole Board Secretary to issue a warrant for the plaintiff’s arrest and his imprisonment was thereafter authorised by orders of the County Court originally committing him to prison. The statutory authority to imprison the plaintiff that was vested in the DJCS Secretary was valid until the Parole Board’s decision was quashed.

Coghlan JA’s order quashing the parole cancellation did not declare that the cancellation had never existed. It did no more than extinguish the continuing effect of the cancellation order. Jurisdictional error on the part of a decision-maker did not mean that the decision had no legal effect in all circumstances. Unless and until quashed by the Supreme Court, it remained a decision ‘in fact’ that may have legal consequences.[6] A construction of the Act that would give a parole cancellation order legal effect unless and until set aside, is supported by the purpose of the Act and the scheme of the Act as a whole.[7]
[6]New South Wales v Kable (2013) 252 CLR 118, 138-9 [52]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 133 [24]; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 613 [46]; Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1, 16 [42].
[7]Posner v Collector for Interstate Destitute Person (Victoria) (1946) 74 CLR 461, 483.

(a) An express purpose of the Act is to provide for the establishment, management and security of prisons and the welfare of prisoners.[8]
[8]Corrections Act1986 (Vic) s 1.

(b) Part 7 of the Act is entitled, ‘temporary absence from prison’. The purpose and scheme of the Act as a whole would be undermined if public officers (such as the Parole Board Secretary, police officers, the DJCS Secretary and Corrections officers) could not act on the faith of apparently regular orders of the Parole Board to cancel a person’s parole.

(c) The scheme of the Act required the fact of a cancellation order to be acted on by persons other than the Board. For example, the Parole Board Secretary or a Magistrate can issue an arrest warrant in order that a person be returned to prison (s 77B(1)) and that warrant can be executed by police.

(d) Once a cancellation order is made, ‘the original warrant to imprison or other authority for the person’s imprisonment is to be regarded as again in force.’[9] This committal order by the sentencing court provides the authority for the DJCS Secretary to hold such a person in custody.[10]
[9]Ibid s 77B(2)(a).
[10]Ibid s 6A.

(e) If this were not so, it would always be uncertain whether: the Parole Board Secretary or a Board member had power to issue a warrant, a police officer had power to execute the warrant or the DJCS Secretary had authority to detain the arrested former parolee. Such uncertainty about the status of a person imprisoned should not be imputed to the legislature.[11] Indeed, if the cancellation order had no legal effect, the ‘prisoner would be entitled to disregard the cancellation order and remain on parole. A prisoner returned to custody may be entitled to lawfully escape and resist attempts to detain him after his sentence has expired upon the basis that he is not a prisoner whose parole had been cancelled.’[12]

(f) There would also be uncertainty about the end date of a prisoner’s sentence.[13]

(g) A person whose parole is cancelled beyond power is not left without a remedy. The Parole Board can revoke the cancellation under s 77A or the prisoner can seek judicial review when the Supreme Court may grant relief in the nature of certiorari bringing the legal effect of the order to an end.

[11]Kable, 135-6 [40] (n 6).

[12]Tulloh v Chief Executive Officer of the Department of Corrective Services [2020] WASCA 10, [45].

[13]Corrections Act s 77B(2)(b).

The proximate instrument authorising the arrest was the Parole Board Secretary’s warrant that was never quashed. The plaintiff was imprisoned according to the County Court order made within jurisdiction that remained in force. In any event, on a proper construction of the Act, a valid cancellation order was not a condition on the power of the Parole Board Secretary to issue a warrant for the plaintiff’s arrest, nor the DJCS Secretary’s lawful imprisonment of the plaintiff.

The defendants argued that a warrant can be validly issued under the Corrections Act because Parliament did not mean the warrant had to be ‘validly cancelled’, just cancelled in fact.

The defendants submitted New South Wales v Kable[14] supported their argument that the Board’s decision was only prospectively invalidated by the successful judicial review. The High Court in Kable had to consider whether a person could claim for false imprisonment when imprisoned under an order of the Supreme Court, made pursuant to a statutory grant of power that was later held to be unconstitutional and invalid. The High Court held that an order of a superior court of record is valid until set aside, even if it is made in excess of jurisdiction (whether on constitutional grounds or for reasons of a statutory limit on jurisdiction). That consequence was not a function of the relevant jurisdiction-conferring statute but of the status of the court as a ‘superior court of record’. This was a critical feature of the circumstances of the case. Consequently, the order, on being set aside, is spent but not void ab initio.
[14]Kable (n 6).

The defendants also relied on Minister for Immigration and Border Protection v SZMTA,[15] where an Administrative Appeals Tribunal decision was infected by jurisdictional error. The majority found that the error had not affected the result and so the decision was not rendered invalid. The minority, in the dissent on the ratio (but not the orders), asked whether as a matter of statutory construction, a purported decision affected by jurisdictional error may be treated as having some legal effect until set aside and answered that its legal and factual consequences will depend on the statute. The defendants submitted the minority’s approach framed my task in this case – to determine whether under the Corrections Act, the cancellation order, notwithstanding its later fate, authorised a valid warrant.
[15](2019) 264 CLR 421.

In a Western Australian decision on relevant cognate legislation in that State, Tulloh v Chief Executive Officer of the Department of Corrective Services,[16] the Western Australian Court of Appeal considered the effect of a decision made in excess of jurisdiction to cancel parole during the period before the decision was quashed.[17] The Court of Appeal held that the determinative question in the appeal was whether the authority of the Board CEO to detain Mr Tulloh depended on the validity of the Board’s cancellation order or merely upon the fact that it was made.[18]
[16]Tulloh (n 12).
[17]Ibid [4]-[6].
[18]Ibid [6].

The court’s enquiry was focused on calculating the time Mr Tulloh had served in custody under the relevant legislation because Mr Tulloh, in seeking damages for wrongful imprisonment, claimed that his imprisonment was unlawful from the date his sentence was to expire had his parole not been cancelled until the date of his actual release. In particular, if ‘Mr Tulloh was a prisoner whose parole had not been cancelled, he was entitled to be released on 8 December 2012, but if he was a prisoner whose parole had been cancelled, he was not entitled to be released until 8 December 2017.’[19]
[19]Ibid [35].

Mr Tulloh had contended that the effect of quashing the Board’s cancellation order rendered it of no legal effect, as void ab initio, meaning that the legislative provisions in force at the time entitled him to be released, having served only two thirds of his sentence. Alternatively, he argued that if the order was not a nullity, on a proper construction of the legislation, the word ‘cancelled’ meant validly cancelled, rather than ‘cancelled in fact’.[20]
[20]Ibid [99].

The Court of Appeal held the first proposition to be inconsistent with Bhardwaj[21] and Jadwan,[22] which held that, although an administrative decision that involves jurisdictional error is legally invalid, the decision does not necessarily have no legal effect unless and until it is set aside or declared to be invalid. Whether a legally invalid decision has any relevant effect in this prior period depends on the statutory framework under which, and the context in which, the decision was made.[23]
[21](n 6).
[22]Ibid.
[23]Tulloh, [38], [49], [100] (n 12).

Accordingly, the central issue was a proper construction of the relevant provisions in the Corrections Act and whether the word ‘cancelled’ meant ‘cancelled in fact’ or ‘validly cancelled’,[24] and this, the defendants submitted, was the central issue in this trial.
[24]Ibid [101]

The Court of Appeal reasoned, as to the purpose of the WA statutory scheme, that while the relevant provision did deal with a person’s liberty:

it applies in the context of a statutory scheme directed to a person whose liberty has been fundamentally constrained by the judicial arm of the government by an order that the person be imprisoned. The statutory scheme, in this context, involves a balancing of the interests of the community as a whole, and the interests of prisoners, in relation to (relevantly) the provision of parole, its cancellation and the consequences of its cancellation. The statutory scheme in this case is not enacted essentially for the benefit of prisoners, to be construed liberally as if that were its beneficial purpose.[25]

[25]Ibid [118].

Importantly, the relevant legislation included portions of the replaced statutory scheme, rendered applicable by the transitional provisions in the new legislation. The old provisions applied to determine entitlement to release when an early release order is cancelled, after a prisoner has been released pursuant to it.[26] The relevant provision (s 71(1)) stated:

If an early release order … in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and is not entitled to be released until he or she has served the whole of that term.

[26]Ibid [121].

The operation of s 71(1) was predicated on the cancellation of the parole order. The Court of Appeal held that in its natural and ordinary meaning in this context, the section did not invite attention to the validity of the predicate; rather its focus was on the consequences of the predicate on the length of time the prisoner must then serve in prison. ‘In this context, the phrase “an early release order … is cancelled” more naturally refers to a factual event rather than inviting attention to the more complex question of whether there has been a valid cancellation.’[27] The court added:

This construction is also supported by the evident purpose of s 71, in its statutory context. The evident purpose of s 71 is to prescribe when, in the circumstances to which it applies, a prisoner is entitled to be released. Given the statutory context, consideration of administrative convenience strongly favour a construction that is apt to provide a clear answer to the question of when a prisoner is entitled to be released. On the judge’s construction, whether s 71 applies depends upon a simple factual enquiry: has the order been cancelled in fact? By contrast, on the appellant’s construction, whether the section applies involves a complex and uncertain enquiry – has the order been validly cancelled? The former is a more likely intention to ascribe to Parliament than the latter.[28]

[27]Ibid [123] (emphasis in original).

[28]Ibid [124].

The Court of Appeal then noted its construction was fortified by other provisions in the statutory scheme. Section 70 provided, relevantly, that when a parole order is ‘cancelled’, the original warrant of commitment is again in force and the prisoner may be arrested under that warrant, and a warrant of arrest may be issued. The Court reasoned that s 70 evidently had as it focus the interests of the community and the orderly administration of the criminal justice system. The steps contemplated in s 70 may need to be taken swiftly, and s 70 is designed to operate on the making of the cancellation order. It was unlikely that ‘cancelled’ means something different in s 70 and s 71. The court added:

[A] number of individuals may be involved in the day-to-day arrangements in giving effect to the re-arrest and subsequent incarceration of the prisoner. Whilst such individuals may be protected from tortious liability in the circumstances referred to in s 120 of the SA Act 2003, this provision does not sustain Mr Tulloh’s construction of s 71(1) of the SA Act 1995. That is because s 120 of the SA Act 2003,[29] has as its focus, the protection of the individual from tortious liability adjudged retrospectively. It is not inconsistent with a statutory scheme which contemplates day-to-day activities being undertaken prospectively on the basis that a cancellation order has in fact been made. Hesitations and doubts might arise in the performance of day-to-day activities if retrospective adjudgment of good faith provided the only secure means of acting in accordance with a cancellation order ‘when’ one is made. Moreover, on the appellant’s construction, if an issue of validity arose, some enquiry on the part of the individual may be necessary, to form a view as to validity, before an administrative decision was to me made or steps taken in reliance on s 70. Such unworkable consequences further tend against the appellant’s construction.[30]

[29]This provides in relevant part:

(1)An action in tort does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act or the Sentencing Act 1995.

…

(3)Despite subsection (1), the Crown is not relieved of any liability that it might have for another person having done anything as described in that subsection.

[30]Tulloh, [129] (n 12).

The Court of Appeal also concluded that if Mr Tulloh’s interpretation were accepted, in the event that a cancellation order was not valid the prisoner would be legally secure in escaping from custody. The better view was that it is an aspect of a scheme which Parliament intended would operate coherently, avoiding the consequences of individual judgments about the validity of cancellation orders, which Parliament did not intend having regard to the interests of the community as a whole.[31]
[31]Ibid [131].

The Court of Appeal also identified that the danger of the Board making unlawful decisions about cancellation was mitigated by the review system in place in the legislation that allowed the prisoner to make submissions to the chairperson (a judge or retired judge) or a deputy chairperson (someone with extensive or special knowledge) about the parole cancellation. The court found that if the decision was successfully reviewed by this process, the chairperson can cancel the original cancellation and the predicate in s 71 of the Act then no longer applies.[32]
[32]Ibid [132], read with [125]-[126].

The defendants submitted that if ‘cancellation’ in s 77B of the Corrections Act (in Victoria) similarly meant ‘cancelled in fact’ then a valid warrant was issued. There was power to issue a warrant, power for the plaintiff to be arrested, and the statutory scheme operated by reviving the original imprisonment order. The DJCS Secretary imprisoned the plaintiff in accordance with the revived order.[33]
[33]Corrections Act s 77B(2)(a).

The defendants did concede, however, that Tulloh speaks to the consequences of the Parole Board’s action for the DJCS Secretary when imprisoning the plaintiff pursuant to a valid warrant or original order of imprisonment, but it did not speak directly to the consequences for the Parole Board of the decision to cancel. However, the defendants submitted that the action that actually imprisoned the plaintiff in this case was the warrant and Tulloh stands for the proposition that for the warrant to be valid, the cancellation needed only to happen in fact and not be legally valid. If the warrant was valid then the arrest and detention were lawful. The proper construction of the legislation demonstrated that Parliament sought to avoid the consequence of private law relief where a cancellation order is subsequently declared invalid.

Based on these authorities, the defendants submitted:

(a) The Corrections Act provides by s 77 a power for the Parole Board to cancel parole. Section 77A provides for the Board itself to revoke the cancellation.

(b) Importantly, s 77B(4) provides that the Parole Board must not order the revocation of a parole cancellation order if a warrant has been issued under s 77B unless the Board is satisfied that the warrant will not be executed. The defendants submitted that this is a statutory signpost that there is a concern about officials being able to act on factual events not legal arguments.

(c) Section 77B(1)(a) provides for the return of a prisoner to prison on cancellation of parole.

(d) Section 77B(2) provides that if a prisoner’s parole is cancelled or taken to be cancelled the original warrant to imprison or other authority for the person’s imprisonment is to be regarded as again in force. This meant the original order of the County Court committing the plaintiff to imprisonment was revived, a consequence of this being that the prisoner did not receive the benefit of the parole period as time served unless the Board made a contrary order under s 77C. This section is important for the calculation of the sentence period, the issue raised in Tulloh, and reinforces, in the context of the Corrections Act, the importance and primacy of the statutory purpose raised in that case, about certainty, which pervades the whole parole scheme.

(e) The defendants’ interpretation supports the Act’s purpose because it allows for the safe and secure detention of prisoners, the calculation of periods of imprisonment, and allows officials to lawfully and confidently act on Board orders that are valid on their face. This would be undermined if public officers, like the Parole Board Secretary and police officers could not act on the basis of an apparently regular order. The scheme requires that second level actors act on the fact of cancellation, avoiding uncertainty about the authority to hold a person in custody. A prisoner would be entitled to resist the warrant of arrest based on a belief the cancellation order was invalid. That cannot have been in the contemplation of the legislature. There would also be uncertainty about the end date of the prison sentence because the effect of cancelling parole would become unclear.

The defendants submitted that s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), had no relevant operation here because the question was whether the imprisonment was authorised or not. The impact on the right to liberty was unaffected because the prisoner still has a public law remedy to vindicate their rights, which would result in their release from prison. This interpretation affects only the private law remedy of compensation.

Plaintiff’s submissions

The plaintiff’s case was that, while he had no entitlement to be granted parole, once it was validly granted, he was entitled to his liberty, only losing it in accordance with law, and procedures set down by law, despite still being under a sentence of imprisonment.

The plaintiff submitted that the defendants’ contentions were deliberately complex to obscure the essential simplicity of his case. The plaintiff submitted, and I agree, he established four key events:

(a) He was arrested on 13 June 2019 and deprived of his liberty for 72 days.

(b) By reason of Coghlan JA’s judgment the Parole Board’s decision to cancel parole on 12 June 2019 was in excess of its power and unlawful.

(c) The direct result of the unlawful decision was the issue of the warrant and the plaintiff’s subsequent arrest and imprisonment.

(d) But for the unlawful cancellation, the plaintiff would not otherwise have been arrested or been deprived of his liberty.

The Parole Board does not have ‘an unfettered right to cancel parole at its whim’.[34] It may only do so in accordance with the statutory empowering provision, s 77 of the Corrections Act. Therefore, the plaintiff was detained for a period otherwise than in the exercise of lawful authority and has an action for wrongful imprisonment. This is consistent with the mandate to interpret all statutory provisions in a way that is compatible with human rights;[35] in this case, the right not to be deprived of liberty except on lawful grounds.
[34]Marrogi v The Secretary of the Department of Justice [2015] VSC 429, [8].
[35]Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32(1).

The Parole Board was liable directly, even though it did not carry out the arrest or imprisonment, because it caused or promoted the imprisonment.[36]
[36]Myer Stores (n 4); Lewis HCA, 207-8 [28]-[29] (n 5) (‘The contribution of the Board was that of active promotion of detention. The contribution of the Chief Executive was that of implementing the detention’); Ruddock v Taylor (2005) 222 CLR 612, 654-5 [151]-[153] (‘a person who gives information to police that leads to a wrongful arrest, will be liable to the person falsely imprisoned for the false imprisonment. The liability of the informant remains open although the police officers concerned may be immune from liability under statutory provisions authorising them to arrest persons on the basis of reasonable suspicion’…’it was necessary to consider the distinct liability of those who initiated the steps leading to imprisonment and those who effected it’ … ‘The submission of the appellants, that there is a general principle of law that whoever cause imprisonment cannot be liable if the contact of the detaining officer is authorised by statute must be rejected as inconsistent with authority and legal principle.’)

The DJCS Secretary was liable because the invalidity of the cancellation rendered the warrant issued under s 77B invalid. The defendants emphasised that s 77B(2) provided that upon cancellation the original warrant of arrest is revived. The plaintiff submitted that it was on the authority of the Parole Board Secretary’s warrant for and on behalf of the Board pursuant to s 77B(1)(a) that the plaintiff was detained.

In Mercorella,[37] Weinberg JA considered a claim for a writ of habeas corpus by a plaintiff whose parole was invalidly cancelled. The court made it clear that where the Board cancels parole in excess of its power, ‘then the Board, by cancelling parole, and issuing the warrant of apprehension, has acted beyond power. If that is so, the warrant is bad, and can be quashed. So too is the decision cancelling parole … The Board has simply proceeded on a mistaken view of its powers, and the law.’[38] The plaintiff submitted that it was the inevitable result of quashing the Board’s cancellation decision that the warrant issued pursuant to it was also invalid. The court clearly held as much, but the court was considering no more than the question of the issue of a writ of habeas corpus. The court had nothing to say about the validity of the warrant of apprehension in the period prior to the court’s order other than to say it ‘can be quashed’. Weinberg JA cannot be taken to have had its retrospective validity in contemplation on the facts of the application before him.
[37]Mercorella v The Secretary to the Department of Justice [2015] VSC 18.
[38]Ibid [32].

I accept the plaintiff’s contention that Kable may be distinguished.[39] Kable was specifically about a warrant that was issued as an incident of judicial power, a factor central to the reasoning in that case. The issue was squarely identified to be what happened when legislation that empowered a judge in a superior court of record to make an order that is subsequently found to be inconsistent with the Constitution and invalid. The court’s order drew authority from the fact that it was issued by a superior court judge.[40] That is very different from this case. The Parole Board is an executive body, acting only pursuant to statute, and is not a superior court of record. The plaintiff accepted that although no claim lies for false imprisonment when a plaintiff is imprisoned pursuant to a judicial order that is later overturned, the plaintiff’s claim was in the realm of administrative law, where a non-judicial body, constituted by statute, is required to act within its power.
[39]Kable (n 6).
[40]See, in particular, ibid 134 [34], 135 [39], 139 [53], 147 [78].

Similarly, Robertson v Western Australia,[41] while supporting the proposition that an invalid warrant may not be void ab initio for all purposes, concerned a warrant issued by a judicial officer. That circumstance, again, was distinguishable from the power of the Parole Board.
[41](1997) 92 A Crim R 115 (Robertson).

The plaintiff submitted that the question that must be answered in the negative was does the Parole Board have a similar status to a court, such that it’s decision could survive even though it was made pursuant to jurisdictional error? I do not accept that this is the right question.

Kotzmann v Adult Parole Board of Victoria,[42] cited by the plaintiff, does not support that submission. There the Court considered whether because members of the Board were judges, a conferral of judicial power on a non-judicial body was unconstitutional. The Court, so the plaintiff submitted, rejected this proposition.
[42][2008] VSC 356 (Kotzmann).

The plaintiff emphasised the judgment of Refshauge J of the Supreme Court of the Australian Capital Territory in Lewis, where his Honour considered the nature and status of the ACT Parole Board by reference to the characteristics of the Board set out in the relevant legislation. Refshauge J concluded that ‘the Board is not a court’,[43] since:
[43]Lewis ACTSC, 300 [199] (n 5).

(a) It does not exercise judicial power or functions;

(b) The appointment and tenure of members is significantly less protected than that of a judge or magistrate;

(c) Besides the Chair and Deputy, the members don’t have to be legally qualified;

(d) The term of appointment is no longer than three years; there are differences in the provisions for remuneration of members;

(e) The fact that immunity was conferred expressly by legislation is an indication that judicial immunity was not accepted as attaching to the office of a member in the way it would attach to a quasi-judicial body exercising judicial function (though the court also noted that this could be argued to have been included simply to ‘put the matter beyond doubt’, and noted that the immunity afforded is ‘much less comprehensive than judicial immunity’- which is not the case in Victoria);

(f) The Board is not given express power to decide questions of law and fact (only the presiding legally qualified member is so empowered);

(g) The procedures of the Board are dissimilar in relevant respects to those of a court (they conduct inquiries not hearings and often not in public, are not bound by rules of evidence, no rights to cross examination are afforded, and reports can be accepted without evidence from the author);

(h) There is no right of appeal in respect of the Board’s decisions, so it is not part of the hierarchy of the administration of justice, as a court is.[44]

[44]Ibid 300-2 [199].

The plaintiff submitted that this analysis was apposite. While Parole Board members are afforded the same immunities as judicial officers,[45] similar judicial immunities are afforded to other bodies, like in s 541 of the Workplace Injury Rehabilitation and Compensation Act2013 (Vic), but that does not mean the Board acts judicially. The Parole Board was not obliged to afford natural justice before making decisions,[46] which, the plaintiff contended, fortified the conclusion that it is an administrative tribunal and not a judicial or quasi-judicial body. The Parole Board has non-judicial members, members are subject to appointment by the Governor in Council; there is no requirement to give reasons; the Board gives opinions to the Executive.
[45]Section 71K.
[46]Section 69(2).

Refshauge J in Lewis[47] concluded that the ACT Parole Board was not sufficiently similar to a court in its establishment, jurisdiction or operation such that the effect of jurisdictional error on its decisions should be that which is accorded to an inferior court rather than that accorded to an administrative tribunal. As a result, setting aside the Board’s decision for breach of natural justice requirements in that case rendered the decision void ab initio and the decision had no power or effect at all.[48]
[47]Lewis ACTSC (n 5).
[48]Ibid 302-3 [201]-[202].

Refshauge J next considered whether there was any other reason or indication in the legislation that the decision should be valid until set aside. This inquiry was based on Jadwan,[49] which recognised that jurisdictionally flawed administrative decisions cannot be assumed to have no effect and, whether the decision was of that kind, depended on the legislation empowering the decision and its purpose, as ascertained from the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[50]
[49](n 6).
[50]Lewis ACTSC, 303 [202]-[203] (n 5).

Refshauge J concluded that there were good reasons to suppose setting aside the decision would render it void ab initio: the requirements of natural justice were essential preliminary requirements for the exercise of power, or fundamental obligations,[51] such that failure to comply should result in the invalidity of the decision.[52] In addition, liberty of the individual is an important value that the law protects, and courts have held a person or agency responsible even where there was no fault found in their unlawful actions.[53] This reasoning in the judgment was not considered by the High Court.
[51]Ibid 304 [212].
[52]Ibid 303 [206]-[207].
[53]Ibid 304 [213], relying on Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714, 743: ‘The trespass in this case is the unlawful detention of the appellant. The first respondent intended to detain him and its conduct should therefore be regarded as intentional. In these circumstances the question of negligence or fault does not arise … In the context of trespass by way of false imprisonment it is the intention to detain which is important. If one couples that intention with the unlawfulness of the detention the tort is complete. There is no call to consider negligence. It is irrelevant. Similarly the lack of awareness that the detention is unlawful is irrelevant … The requisite mental element is of no relevance in the present case.’

The plaintiff submitted that, from this reasoning, the irresistible conclusion was that the warrant itself was unlawful regardless of what appeared on its face, and in acting on the warrant without fault, the arrest and detention was unlawful and gave rise to a claim of false imprisonment. Otherwise, the Board could on any unlawful basis, no matter how flagrant, cancel parole and there would be no private law remedy, a consequence that undermined the conceptual justification for false imprisonment, and which should not be permitted without plain legislative wording to that effect.

The plaintiff also contended that Tulloh must be distinguished. The legislative regime was completely different, including the importance of the statutory rights of review that are not present in the Corrections Act. The court in that case was also not construing the Act in accordance with the Charter as is required in this case. When the Corrections Act speaks of cancellation to trigger the deprivation of someone’s liberty, that must be interpreted as valid or lawful cancellation. It cannot be referring to a wrongful or mischievous cancellation of parole. The Board’s powers, because they are relevant to the liberty of a person, must be interpreted carefully and strictly, in particular, the power under s 77 to cancel parole and the power under s 77B to issue a warrant. The lawful exercise of the latter power is predicated on a lawful cancellation, not the fact of cancellation. When s 77 gives the power to cancel parole, it is giving the power subject to the limits set out in the legislation.

The plaintiff rejected, as a legal technicality, the notion of some legal barrier between the warrant and the decision to cancel parole that permitted the distinction between legality and factual occurrence. This legal barrier detracted from the essential simplicity of the plaintiff’s case, which was that the Board, as an executive body, acted outside power. That is why the Board, being susceptible to judicial review, could not defend its decision before Coghlan JA on a challenge to its jurisdiction. It was not an appeal from a judicial body. No appeal process had been created or used in relation to it.

Even though the act of imprisonment was carried out pursuant to a warrant that appeared to be valid, the plaintiff emphasised that this is not a negligence case, but a tort of strict liability. The warrant did not justify the subsequent imprisonment. The plaintiff conceded that corrections officers were not required or even able to question the validity of the warrant and were therefore obliged to execute it. However, that is of no moment because there is no ‘fault’ element. As events transpired, the warrant was outside of power, affecting the plaintiff’s rights because his liberty was impaired without legal cause. He is entitled to vindication for the loss of his liberty by an award of damages. This was not a question of wrongdoing; it was a question of being unable to discharge the onus of proving that the detention was justified.

Analysis

In Kable, the High Court engaged in a particular enquiry, namely whether a superior court order was invalidated when the legislation on which it was based was later declared unconstitutional and invalid, and, as the plaintiff submitted, is distinguishable, but the considered dicta of the court must be carefully examined. Gageler J explained the principle in these terms:

Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a ‘nullity’ in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.

Gageler J then turned to the issue before the court.
One of the ways in which the existence in fact of a purported but invalid law, or the existence in fact of a thing done invalidly in the purported exercise of a power conferred by law, might lead to the taking of action in fact is that the purported law or other thing might be relied on to found an action in a court which results in the making of a judicial order. Where that occurs the judicial order will have independent legal force as a judicial order …[citing Dixon J in Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan]
[if a person] has already been convicted, then because his liability has merged in the conviction, it no longer depends upon the law under which it arose, and it does not lapse with the revocation of the law. The conviction becomes the source of his liability for his offence, and the conviction continues in force because its operation does not depend upon the law creating the offence, but upon the authority belonging to a judgment or sentence of a competent Court.[54]

[54]Kable, 138-9 [52]-[53] (n 6) (citations omitted).

Mr Kable had argued that the order under which he was detained was not a ‘judicial order’. Although made by a Supreme Court judge, the detention order was an exercise of administrative power by the court,[55] but the High Court did not accept this argument. The plurality held that the order was a court order, the result of an adjudication by a court determining Mr Kable’s rights, following proceedings conducted inter partes, with certain rules of evidence applied. It was enforced as a court order. Mr Kable did not appeal that order. The judge was acting in his judicial capacity. It was not a ‘step in the administrative process and … thus an administrative function.’[56] Because this was a ‘judicial order’, the long ‘stream of authority’, firmly established by the High Court – that orders of a federal court, which is established as a superior court of record, are valid until set aside, even if made in excess of jurisdiction – applied to the order made by the New South Wales Supreme Court.[57]
[55]Ibid 131 [24]-[26].
[56]Ibid 132 [27].
[57]Ibid 133 [32].

The plurality explained that the rationale for this outcome lay in the nature of judicial power.[58] Where a court is established as a superior court of record, Parliament has validly authorised the court to make a binding determination on the question whether it has jurisdiction in a matter, subject only to the parties’ right to appeal or seek relief pursuant to s 75(v) of the Constitution.

[G]iving the orders of a court created by the Parliament these characteristics is within legislative power, either as incidental to the power to create the court or as an exercise of the legislative powers given by ss 76 and 77 of the Constitution. And giving these characteristic to the orders of a court by designating it to be a superior court of record reflects the distinction between the exercise of judicial power (by the final quelling of controversies according to law) and the exercise of executive power (subject to law).[59]

[58]Ibid 133 [33].

[59]Ibid 134 [34].

The effect to be given to an order made beyond jurisdiction comes not from the law which purported to confer the relevant jurisdiction but from the status or nature of the court making the order, namely, a superior court of record.[60]
[60]Ibid 134 [36].

I agree with the plaintiff that the Board’s decision to cancel parole was an administrative decision, not a judicial decision. Having regard to the legislative constitution and powers of the Board, and in light of Refshauge J’s helpful analysis in Lewis, it is evidently exercising administrative powers.[61] It is not a superior court of record. Its powers come only from the Corrections Act and its decisions may be found to be invalid when they are in excess of jurisdiction. They are quashed on review not overturned on appeal. The Parole Board’s decisions do not take on the status of orders that are imbued with the authority of a superior court and which stand and remain valid even when the underlying law justifying the decision is invalid.
[61]In Kotzmann (n 42), the plaintiff challenged the validity of the Corrections Act. He argued that the appointment of a judge of the Supreme Court to the Board is an impermissible attempt to confer administrative functions on a court which exercises Commonwealth jurisdiction under Chapter III of the Constitution (at [11]). The court was therefore not assessing whether this was an unconstitutional conferral of judicial power on an administrative body, as the plaintiff’s submissions suggested. Accordingly Kotzmann does not shed much light on the nature of the function performed by the Board.

Such conclusions do not determine the key question, which is whether under the Corrections Act, the plaintiff’s further imprisonment was lawful despite the fact that the parole revocation decision that precipitated it was later found to be in excess of jurisdiction and invalid.

In Jadwan, the Federal Court held:

In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388-389: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[62]

[62]Jadwan, 16 [42] (n 6).

The observations in Kable about the policy reasons for a superior court order remaining valid until set aside remain applicable to the proper interpretation of the Corrections Act. The High Court held that the court order had to be obeyed prior to being set aside because, if this were not so ―

[T]he exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose right and liabilities are affected by the order.
In this case, if the detention order made by Levine J was not effective until set aside, those apparently bound by the order were obliged to disobey it, lest they be held responsible for false imprisonment. On Mr Kable’s argument, the order was without legal effect and should not have been obeyed. The decision to disobey the order would have required both the individual gaoler and the Executive Government of New South Wales to predict whether this Court would accept what were then novel constitutional arguments. More fundamentally, as the legal philosopher Hans Kelsen wrote, ‘a status where everybody is authorised to declare every norm, that is to say, everything which presents itself as a norm, as nul, is almost a status of anarchy’.[63]

[63]Kable, 135-6 [39]-[40] (n 6).

A similar policy consideration is evident in Robertson,[64] where the plaintiff claimed damages against the State of Western Australia for his unlawful imprisonment. He was kept in prison for a longer period than he ought to have been, pursuant to a warrant issued by a magistrate that incorrectly provided for a cumulative instead of concurrent sentence in respect of certain charges against him. The relevant legislation excluded liability on the part of the magistrate but the plaintiff sought to hold the State vicariously liable. The plaintiff later accepted that because there was nothing in the legislation that expressly preserved any liability of the Crown for the act of the magistrate, there could be no Crown liability in respect of the act.[65]
[64](n 41).
[65]Ibid 121-2.

The Court next considered whether the Superintendent of the prison could be liable. There was nothing in the warrant of commitment which should have raised, in the mind of any prison officer, a question as to its validity. Steytler J (with Malcolm CJ and Franklyn J agreeing) said:

It would be an odd result, in a case in which a prison officer was simply enforcing a magistrate’s order, if he or she were to be held liable because of the invalidity of the order when the person issuing the order was not so liable, at least in circumstances in which the order was valid on its face.
The courts have generally set their face against this kind of result.
…
[I]t seems to me to be difficult to deny the proposition, when regard is had for existing authority and for legislation in this State, that a prison superintendent may not be held liable for acting on a warrant which is, on the face of it, valid but which later turns out to have been wrongly issued for reasons which had not been known to that superintendent. [66]

Steytler J then quoted Dixon J in Posner v Collector for Interstate Destitute Persons (Victoria).[67]
When there has been a failure of the due process of law to making of an order, to describe it as void is not unnatural. But what has been said will show that, except when upon its face an order is bad or unlawful, it is only as a result of the construction placed upon a statute that the order can be considered so entirely and absolutely devoid of legal effect for every purpose as to be described accurately as a nullity. Modern legislation does not favour the invalidation of orders of magistrates or other inferior judicial tribunals and the tendency is rather to sustain the authority of orders until they are set aside and not to construe statutory provisions as meaning that orders can be attacked collaterally or ignored as ineffectual, if the directions of the statute have not been pursued with exactness.

Next, Steytler J, looking at the situation in which a prison officer pays regard to a warrant which is valid on its face, approved of the analysis of that obligation by Simon Brown LJ in Oldham Justices; Ex parte Cawley,[68] and noted Lord Cottenham LC’s earlier statement of the uncompromising nature of the obligation to obey an order of a court of competent jurisdiction:
A party who knows of an order, whether null or void, regular or irregular, cannot be permitted to disobey it … it would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void – whether it was regular or irregular. They should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.[69]

[66]Ibid 122.

[67]Posner, 483 (n 7).

[68](1996) 2 WLR 681, 692-3, citing Chuck v Cremer (1846) 1 Coop temp Cott 205, 338.

[69]Robertson, 124 (n 41).

The well-established principle is that a person against whom, or in respect of whom, an order is made by a court of competent jurisdiction must obey the order unless and until it is discharged or set aside, even where the order was irregular or void. Steytler J found that there are sound policy reasons supporting the application of this proposition or principle to prison governors or superintendents because, ‘once governors start to review the regularity of warrants with a view to releasing those who are committed under defective warrants they would inevitably be drawn into the unsatisfactory position of reviewing the sufficiency of the reasons which had been given.’[70]
[70]Ibid 124.

Steytler J also found there was no legislative provision that precluded the application of this principle to prison superintendents. Rather, the relevant legislation tended to support the efficacy of a warrant until set aside by a court of competent jurisdiction. It provided, for example, that every act done or purporting to have been done by or before a Justice shall be taken to have been done within his jurisdiction without an allegation to that effect unless and until the contrary is shown.[71] Steytler J concluded:

In the circumstances of this case, and in the light of the authorities to which I have referred, it seems to me that, if it be accepted that the warrant was unlawful and subject to being set aside, that did not render unlawful the conduct of the prison superintendent in acting upon the warrant. Rather, the warrant, being ex facie an order of a court of competent jurisdiction, was required to be obeyed by the prison authorities until discharged by a court of competent jurisdiction.[72]

[71]Ibid 125.

[72]Ibid.

As with Kable, the reasoning is limited in its strict application because the court was emphasising the finality and existence of court orders issued by judicial officers, which is not the case here. However, once again, the analogous force of this reasoning is compelling when construing the Corrections Act in light of its context and purpose. The reasoning about third parties being able to rely on final administrative decisions, such as issued arrest warrants, pending any review, and the benefits of legal order, coherence, and certainty in that regard, plainly represent the legislative intention.

This type of reasoning also moved the Western Australian Court of Appeal in Tulloh. The Court was specifically considering the meaning of a provision which said if any early release order is cancelled, the prisoner is liable to resume their fixed term in custody for the whole of that term. The Court found that cancelled meant cancelled in fact, resulting in a prisoner whose parole was unlawfully cancelled nevertheless having to serve the full term of imprisonment. It did so because it found that considerations of administrative convenience, the interests of the community, and the orderly administration of the justice system, were overwhelming, which favoured a clear answer to the question of when a prisoner was entitled to be released, and swift action upon a cancellation order being made. Parliament was presumed to have intended a clear approach over a complex one, where length of sentence was determined by whether parole was validly cancelled. The Court was concerned, as the courts were in Kable and Robertson, that officials could hesitate in the performance of their daily activities if they could not rely on the fact of the cancellation order supporting an arrest warrant, for fear of tortious liability, and further, that a prisoner might be legally secure in escaping custody.

I was not persuaded to accept the plaintiff’s attempt to distinguish the reasoning of Tulloh on the basis of the review powers available in the Western Australian legislation to challenge the Board’s decisions to cancel parole (and the lack of those provisions in Victoria). This aspect of the WA legislation fortified the court’s reasoning but was not critical to it. While the Corrections Act does not have similar provisions, the court in Tulloh was concerned with that power as a safety mechanism to provide for means by which the cancellation of power could be ‘undone’ with the effect that a prisoner’s sentence was unaffected by the cancellation.

The Corrections Act affords a similar safety mechanism for the calculation of parole under s 77C and the power to revoke a cancellation in s 77A. But even if those provisions did not operate in the same way, it may be that, because of the effect of s 32 of the Charter, ‘cancellation’ means valid cancellation under s 77B(2)(b) of the Corrections Act even if it doesn’t take on that meaning in s 77B(1), since the calculation of sentence duration has a direct impact on liberty that may not be the case for compensation for deprivation of liberty. This contention was neither argued nor is its resolution necessary for my decision and it can await an appropriate case.

It is clear from these authorities discussed that the answer as to whether the defendants have established that the plaintiff’s further imprisonment was lawful, lies in the proper construction of the Corrections Act, and I begin that inquiry by noting that the Corrections Act has multiple purposes or objectives.

Section 73A makes it clear that the safety and protection of the community is paramount. The orderly administration of justice is undoubtedly another of its aims. The Act is balancing those aims against the interests of parolees, who have a protectable interest in their liberty. As the Court held in Mercorella, wrongful cancellation of parole has always been recognised as a basis upon which habeas corpus would lie.[73] And in Marrogi, Bongiorno JA said;

Cancellation of parole is a serious matter. It brings to an abrupt end a process designed to enable a prisoner to adjust to freedom from incarceration, thereby assisting his re-integration into the community as a law-abiding citizen. It is not solely a benefit for the prisoner. That a prisoner upon release on parole is supervised by a Community Corrections Officer for the remainder of his sentence is a benefit for the community as a whole.
The writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or otherwise. In cancelling the plaintiff’s parole habeas corpus would lie if such cancellation was not legally justified[74]

[73]Mercorella, [25] (n 37).

[74]Marrogi, [9]-[10] (n 34).

The Court in Mercorella found that the Board exercising its power to cancel parole in excess of its jurisdiction would result in both the warrant and decision to cancel being invalid and in excess of power and therefore liable to being quashed.[75]

If it be that s 77(6A) does not, upon its proper construction, extend to a sentence of imprisonment imposed extraterritorially, then the Board, by cancelling parole, and issuing the warrant of apprehension, has acted beyond power. If that is so, the warrant is bad, and can be quashed. So too is the decision cancelling parole.

[75]Mercorella, [32] (n 37).

That decision did not answer the question whether s 71B(1) and/or (2) requires legal or factual cancellation for its valid exercise. The court was contemplating prospectively the invalidity of the Board’s decision to cancel. It quashed the decision to cancel, which rendered it invalid and of no effect (at least prospectively) both as a matter of law and fact. The consequence was that, from that determination, the warrant also ceased to have effect, but the question whether the warrant was valid at the time it was issued and in the period up to when it was set aside, did not arise for decision.

Yoxon v Secretary of the Department of Justice, was another habeas corpus application by a parolee whose parole was cancelled. T Forrest J, after noting the burden on the Secretary to affirmatively prove that detention was lawful, said:[76]

At its most basic, the ground to which I will shortly turn is that the Board cancelled parole when it did not, in the circumstances, have the power to do so; in other words, it is said the decision is vitiated by jurisdictional error. Habeas Corpus would plainly be available as a remedy in these circumstances because a determination to cancel parole that was vitiated by jurisdictional error would be invalid and of no effect and could not have revived the original authority for Mr Yoxon’s imprisonment; there would, therefore, be no lawful basis for his continued detention. Although certiorari might theoretically also go to quash an invalid exercise of the power to cancel, it would in this case be unnecessary.

Again, it can be noted that considering the lawfulness of continued detention did not address the critical question arising in this case.

[76][2015] VSC 124, [36], [38], [42] (emphasis in text) (citations omitted).

This distinction between unlawful arrest for the purposes of ‘public law remedies’ or for release under an application for habeas corpus, as distinct from finding the detention unlawful for private law remedies, that the defendants submitted was critical in this case, was also borne out in Ruddock v Taylor.[77] In that case, the High Court initially quashed the decision of the relevant Minister to cancel Mr Taylor’s visa, and ordered his release from detention as a result.[78] However, in the ensuing claim for damages for false imprisonment, the plurality of the High Court concluded that while the cancellation of the visa was invalid, the arrest and detention of the respondent was lawful, for so long as the visa cancellation had not been quashed, because the operative provision empowered the police to arrest a person on the reasonable suspicion that they were an unlawful immigrant, which the police undoubtedly did because they had what appeared to be on its face a valid visa cancellation.
[77]Ruddock v Taylor (n 36).
[78]Re Patterson; Ex parte Taylor (2001) 207 CLR 391, 475 [256].

In the present case, the plaintiff accepted that the police and the DJCS Secretary would not have had an option but to obey the warrant. The warrant existed as a matter of fact. As a matter of construction of the empowering statutory provisions, they could not question a warrant valid on its face or look behind it at the reasoning of the Parole Board Secretary. The plaintiff contended this was irrelevant because it spoke to fault, but I do not accept that answer. The plaintiff relied on cases pertaining to situations where the arresting or imprisoning official thought they were justified in acting when they were not, which is to say they were acting in good faith. But that is not the same as being legally obliged to carry out the arrest because a warrant was issued and the official was bound to execute it. If police or other officials may be liable for false imprisonment for acting on what appears to be a valid warrant, they have an incentive to delay taking that action and to conduct their own assessment of the validity of the warrant and the preceding parole cancellation.

I cannot accept that it was the legislature’s intent that the officials executing an arrest warrant and taking the plaintiff into custody, in this case police and the DJCS Secretary, could only take valid legal action if the Parole Board’s decision was legally valid. The underlying policy objectives have been clearly identified in the analogous cases that have considered the need for certainty in the functioning of the legal system and those objectives apply with equal force when assessing the intention of the legislature expressed in the Corrections Act in respect of the penal justice system. The construction the plaintiff contended for is contrary to the purpose of the power to act in the paramount interests of the public and act swiftly and with certainty where parole is cancelled. An example of this in the Act includes the power of police to arrest a parolee without warrant on suspicion they have breached parole,[79] albeit that the Board must thereafter swiftly decide if that was justified.[80]
[79]Section 78B(1).
[80]Section 78C.

The word ‘cancellation’ in ss 77B(1)(a) and (2)(a) means cancellation in fact. When parole was cancelled by the Parole Board, the warrant of apprehension that issued on that basis was valid until the cancellation was quashed, and the original order of the County Court authorising the detention of the plaintiff was revived. Only the Parole Board, or a court, could question the validity of the warrant. The DJCS Secretary had lawful authority to hold the plaintiff in custody.

If this were not so, the police and corrections officers acting on a Parole Board issued warrant, or a warrant that has been re-enlivened because of a parole cancellation, would be obliged to look behind the cancellation to assess for themselves if it were valid, for fear of being liable for false imprisonment. In the context of what I have already said on review of the cases, this is ample reason for s 77B(1) and (2) to be interpreted this way, without enquiring into whether the plaintiff could also be lawfully entitled to escape custody and succeed with a collateral challenge of the warrant in defending that escape.

I find that, for these reasons, the warrant issued by the Parole Board Secretary under s 77B(1)(a) was valid for the purposes of establishing the DJCS Secretary’s defence that the plaintiff’s further imprisonment was lawful.

That is not the end of the enquiry required in this case. The High Court in Kable warned against taking a binary view of void versus voidable or nullity versus irregularity as though ‘the whole of the relevant universe can be divided between two realms whose borders are sharply defined and completely closed’ when in reality ‘the legal effect to be given to an act affected by some want of power may require a more elaborate description which takes account not only of who may complain about the want of power, but also of what remedy may be given in response to the complaint.’[81]
[81]Kable, 129 [21] (n 6) (emphasis in original).

Recalling what McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (which is reproduced in the extract cited from Jadwan at [61]), the question that remains is whether, given that the warrant had legal effect by the fact of its existence (and the County Court order revived by force of s 77B(2)(a)) and gave the DJCS Secretary lawful authority to imprison the plaintiff, did that mean the plaintiff was lawfully detained for all purposes and against all parties? The Parole Board’s decision was not lawful and, though it existed in fact, it was invalid from the date it was made. Undoubtedly, it was directly and inevitably causally linked to the plaintiff’s detention.

It appears logical and compelling to conclude that it was not open to the Parole Board itself to contend that the plaintiff’s arrest and further detention were lawful because the warrant subsequently issued under s 77B(1)(a) is taken to be valid for the purposes of those acting on it, through some technical legal fiat. That consequence ought not cure the consequences for the Board of an invalid decision and ought not render the Parole Board immune from liability for the unlawful deprivation of the plaintiff’s liberty. The framework and purpose of the Act might require that the actions of the police and DJCS Secretary in executing the warrant are not invalidated, but does it warrant a finding that the decision to cancel parole was valid until set aside. In this sense, as Kable suggested, the answer depends on who is seeking to complain about the want of power and what remedy they are seeking. The Parole Board was not lawfully authorised by the Corrections Act or otherwise to cause the plaintiff to be further detained.

Support for such reasoning can be seen in Cowell v Corrective Services Commission of New South Wales, where the New South Wales Court of Appeal found that the party ultimately directly responsible for causing the false imprisonment ought be liable therefor, even though others responsible for the imprisonment were excluded from liability by statute.[82] This proposition also finds support in cases where parties have been held liable for false imprisonment when they did not carry out the detention, but promoted, encouraged, or caused it.[83]
[82]Cowell, 737D-F (n 53).
[83]Myer Stores (n 4).

In his dissenting judgment in Ruddock v Taylor,[84] Kirby J considered cases where the person causing the arrest to occur was held liable for false imprisonment when the arresting police were not found liable, and observed:[85]

The decision in Cowell illustrates two points relevant to the present appeal. First, in considering statutory provisions in this context, courts read any nominated statute strictly, in deference to the high value placed on individual liberty which the tort of wrongful imprisonment helps to defend. Secondly, the fact that one party enjoys a type of statutory immunity for their tortious conduct is not an automatic defence for any other parties involved in the breach. Each party must prove a separate immunity or defence and the onus of doing so is a heavy one.
Similar conclusions are also demonstrated by the long line of ‘police informant’ cases. These concern the circumstances in which a person, who gives information to police that leads to a wrongful arrest, will be liable to the person falsely imprisoned for false imprisonment. The liability of the informant remains open although the police officers concerned may be immune from liability under statutory provisions authorising them to arrest persons on the basis of reasonable suspicion.
A clear example of this differentiation is Davidson v Chief Constable of North Wales. The plaintiff in that case was arrested by police on suspicion of theft after police received information from a store ‘detective’. The plaintiff had not committed any offence. She subsequently brought an action for false imprisonment against the police and the employers of the store detective. The English Court of Appeal held that the police involved in the arrest and imprisonment were not liable. They were protected by s 24(6) of the Police and Criminal Evidence Act 1984 (UK). However, the Court considered separately the liability of the store detective. The outcome ultimately turned on factual questions concerning causation. However, the Court of Appeal was not in doubt that it was necessary to consider the distinct liability of those who initiated the steps leading to imprisonment and those who effected it. This approach is obviously correct in principle. The submission of the appellants, that there is a general principle of law that whoever causes imprisonment cannot be liable if the conduct of the detaining officer is authorised by statute, must be rejected as inconsistent with authority and legal principle.

[84](n 36).

[85]Ibid 654-5 [151]-[153] (citations omitted).

However in Ruddock v Taylor, the plurality of Gleeson CJ, Gummow, Hayne and Heydon JJ rejected such reasoning (and the ‘informant’ line of authority). The ‘Ministers’ had unlawfully cancelled the respondent’s visa with the ‘inevitable’ consequence that he would be detained by police, under the statute that required the police to do so upon what appeared on its face to be a valid visa cancellation. The plurality broke with the ‘informant’ line of authority because the proper focus was not on the lawful authority of each actor who caused the detention, but rather on the arrest and detention itself, and whether that particular step was authorised in law. The plurality found that this particular step was authorised and rendered the detention lawful. Because the arrest was lawful, the Ministers were protected from a false imprisonment claim. Their Honours held:[86]

In this form of the argument, reference was made to s 189 only to make good the second step: that detention was a direct and inevitable consequence of the decision to cancel. When it is recognised that s 189 requires an officer to detain a person whom the officer knows or reasonably suspects to be an unlawful non-citizen, the second step in the respondent’s argument is readily taken. It may then be right to say, as the respondent did, that some analogy might be drawn between the position of the Minister and cases like Myer Stores Ltd v Soo where a person directing the arrest of another may be liable for false imprisonment. But it is not necessary to consider the validity of those analogies. The argument breaks at its third step.
The third step in the respondent’s argument was that because the decision to cancel his visa pursuant to s 501 was unlawful, the detention was unlawful. This conflates two separate inquiries – one about the lawfulness of the decision to cancel; the other about the lawfulness of the detention. It treats the former inquiry as determinative of the latter.

[86]Ibid 621 [23]-[24].

The plurality concluded that only the provision that allowed the actual arrest and detention of the respondent, the empowering provision for the police, was relevant to the false imprisonment enquiry. That provision allowed the police to arrest people that they know or ‘reasonably suspect’ are unlawful citizens. The fact that the visa cancellation was invalid and the respondent was not in actual fact an unlawful citizen was irrelevant because there was still a reasonable suspicion for the police (based on a valid visa cancellation on its face) and therefore the arrest was lawful and no claim for false imprisonment could lie.[87]

That is, it follows from the considerations just mentioned that s 189 may apply in cases where the person detained proves, on later examination, not to have been an unlawful non-citizen. So long always as the officer had the requisite state of mind, knowledge or reasonable suspicion that the person was an unlawful non-citizen, the detention of the person concerned is required by s 189. And if the Minister brought about a state of affairs where an officer knew or reasonably suspected that a person was an unlawful non-citizen by steps which were beyond the lawful exercise of power by the Minister, it does not automatically follow that the resulting detention is unlawful. Rather, separate consideration must be given to the application of s 189 – separate, that is, from consideration of the lawfulness of the Minister’s exercise of power. If it were suggested that the Minister had exercised power where the Minister knew or ought to have known that what was done was beyond power an action may lie for the tort of misfeasance in public office. But that has never been the respondent’s case in this matter.[88]

[87]Ibid 621-2 [25]-[27], 628 [49]-[51].

[88]Ibid 622-3 [28].

The High Court has recently again endorsed this reasoning.[89]
[89]Thoms v Commonwealth (2022) 96 ALJR 635, 641 [21], 645 [45], 653 [84]-[85], 654 [86]- [87].

The actions of the Parole Board in this case, as conducted through its Secretary, in issuing the warrant, was more directly causal of the plaintiff’s arrest and further imprisonment than simply cancelling parole (which would be the analogous act of the Ministers in Ruddock). The High Court’s reasoning in Ruddock v Taylor renders that causal link irrelevant since s 77B(1)(a) required only the fact of cancellation of parole for power to issue the warrant to be validly exercised. It must follow that the warrant issued by the Parole Board Secretary was valid for the purpose of establishing the Parole Board’s defence that the plaintiff’s further imprisonment was lawful.

Section 32 of the Charter also cannot disturb this finding for a number of reasons. First, as the defendants submitted, it is still open to the parolees whose parole was invalidly cancelled to protect their liberty through a declaration that the cancellation was invalid, from which time the cancellation ceases to exist both in fact and law for the purposes of s 77B(1)(a) and the parolee may be released. Alternatively, the prisoner can seek a writ of habeas corpus and can do so by urgent application. These remedies safeguard s 21 of the Charter. The plaintiff did not cite any authority that supported the proposition that the right to liberty under the Charter extends to the right to receive compensation for such deprivation. There is a conspicuous absence of a right to compensation for unlawful detention, by contrast for example, with s 18 of the Australian Capital Territory’s Human Rights Act 2004 (ACT).[90]
[90]See Lewis ACTSC (n 5).

Conclusion

Because I have concluded that no claim for damages for false imprisonment is maintainable against any defendant, the plaintiff’s claim must be dismissed and it is unnecessary to consider the remaining issues in dispute in this case. Although the following brief conclusionary remarks do not do justice to the carefully researched and presented arguments of counsel, I do not propose to burden my reasons with further analysis.

Had I been required to assess the plaintiff’s damages claim, I would have assessed the plaintiff’s general damages to lie in the range of $140,000-$160,000, and assessed the plaintiff’s special damages claim at $32,883.90 for past and future medical expenses.

Further, assuming the defendants had not established any lawful justification for the further imprisonment, I would have accepted the plaintiff’s submission that on a proper construction of the statute, the legislature intended that the Parole Board be liable in tort for its decisions,[91] although they are taken by its members who are not personally liable because of immunity conferred by the statute.[92] It has a separate legal existence from its members. The DJCS Secretary would be a joint tortfeasor if lawful justification had not been established.
[91]Corrections Act s 69(4) expressly attaches liability on the Board in relation to its functions and powers – ‘Any liability resulting from an act or omission that would, but for subsection (3), attach to a member of the Board attaches to the Board instead’.
[92]Corrections Act s 71K(1).

The Parole Board members are not servants or agents of the Crown for the purposes of establishing vicarious liability under s 23(1)(a) of the Crown Proceedings Act[93] and the Act does not define a ‘public statutory corporation’, for which the Crown is not liable by virtue of s 23(3)(b) of the Act. The Parole Board was exercising an independent statutory role.
[93]A-G (NSW) v Perpetual Trustee Co (Ltd) (1955) 92 CLR 113.

Finally, I feel obliged to record my conclusion that the statutory scheme has permitted an injustice to be worked on the plaintiff by the Parole Board and, more particularly, by those who induced it into error by persuading it to act to cancel the plaintiff’s parole. The plaintiff was imprisoned for 72 days, spending 35 days in solitary confinement with deprivation of various privileges without justification. I will direct the Prothonotary to refer my reasons to the Attorney-General with my recommendation that she consider making an ex-gratia payment to the plaintiff.

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SCHEDULE OF PARTIES

S ECI 20321 02509

BETWEEN:

SULEIMAN ABDULRAHIM	Plaintiff
-and-
THE ADULT PAROLE BOARD OF VICTORIA	First Defendant
SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Second Defendant
STATE OF VICTORIA	Third Defendant

[2023] VSC 432

31 July 2023