Attorney General of New South Wales v Chiew Seng Liew

[2012] NSWSC 1223

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Attorney General of New South Wales v Chiew Seng Liew [2012] NSWSC 1223
Hearing dates:	9 October 2012
Decision date:	11 October 2012
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Further Amended Summons dismissed.
Catchwords:	JUDICIAL REVIEW - Administrative law - decision of Parole Authority to grant parole - whether jurisdictional error or error on face of record - what constitutes record - whether failure to consider mandatory relevant consideration - whether Authority's Operating Guidelines constituted mandatory consideration - whether Authority otherwise obliged to consider issue of deportation - statutory obligations to give reasons - whether reasons inadequate - whether Parole Authority a "tribunal" within meaning of s 69 of Supreme Court Act 1970 - whether failure to provide reasons entitles Attorney General to an order in the nature of certiorari - costs.
Legislation Cited:	- Crimes (Administration of Sentences) Act 1999 - Part 6, s 3, s 126, s 127, s 128, s 131, s 132, s 135, s 143, s 143A, s 144, s 145, s 146, s 147, s 149, s 151, s 153, s 156, s 185A, s 193C - Crimes (Administration of Sentences) Amendment (Parole) Act 2004 - s 185A - Migration Act 1958 (Cth) - s 476 - Supreme Court Act 1970 - s 69 - Uniform Civil Procedure Rules 2005 - r 36.16(3B)
Cases Cited:	- Al Qatrani v Parole Authority of New South Wales [2007] NSWSC 1270 - Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 - Attorney General for New South Wales v New South Wales State Parole Authority & Anor [2006] NSWSC 865 - Attorney-General (NSW) v Quinn [1990] HCA 21; 170 CLR 1 - Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; 180 LGERA 99 - Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 - Craig v State of South Australia [1995] HCA 58; 184 CLR 163 - Dimatos v Coombe [2011] VSC 619 - Kerry, Re [2010] NSWCA 232 - Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531 - L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 - Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143 - Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 - Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 - Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 - Osland v Secretary, Department of Justice [2008] HCA 37; 234 CLR 275 - O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210 - R v Lim and Liew (unreported, NSWCCA, 24 December 1993) - R v Shrestha (1991) 173 CLR 48
Texts Cited:	Aronson and Dyer, Judicial Review of Administrative Action, 4th ed, LawBook Co
Category:	Principal judgment
Parties:	NSW Attorney General (Plaintiff) Chiew Seng Liew (First Defendant) State Parole Authority of NSW (Second Defendant) Commissioner of Corrective Services (Third Defendant)
Representation:	Counsel: Mr P. Menzies QC, Ms A. Johnson (Sol) (Plaintiff) Mr T. Molomby SC, Ms L. Goodchild (First Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (First Defendant) Submitting appearance filed (Second Defendant) Submitting appearance filed (Third Defendant)
File Number(s):	2012/295112

Judgment

1. While driving to work on the morning of 4 July 1991 in Military Road Mosman, one of the world's leading heart surgeons, Dr Victor Chang, was murdered in a botched extortion attempt. His murder commenced a long ordeal for his family and friends and caused an incalculable loss to the wider community.

1. The first defendant, Chiew Seng Liew, fired the fatal shots that morning. He pleaded guilty to the murder. On 22 December 1992 he was sentenced by a very experienced judge of this Court, Slattery AJ, to a minimum term of 20 years imprisonment, with an additional term of 6 years imprisonment. The minimum term period expired on 12 July 2011 and he became eligible for parole on that day.

1. On 19 September 2012 the second defendant, the State Parole Authority of New South Wales (the "Authority"), determined to release Mr Liew on parole, subject to conditions.

1. The Attorney-General of NSW (the "Attorney") challenges the validity of the Authority's decision. It is important to appreciate that this challenge cannot and does not challenge the merits of the Authority's decision. The Parliament has vested exclusive responsibility in the Authority to decide whether to release inmates on parole. The only role of the Court in these proceedings is to review the legal validity of the Authority's decision. Nothing in this judgment is to be taken as either a criticism or an endorsement of the merits of the Authority's decision.

1. The Attorney's challenge is narrowly focused. He contends that the Authority did not consider various issues concerning the deportation of Mr Liew that will occur upon his release. To address his challenge it is necessary to explain the background to the application for parole, the legal context in which the Authority made its decision and the reasons it gave.

1. The third defendant to these proceedings is the Commissioner for Corrective Services (the "Commissioner"). The Commissioner was joined because he has responsibility for the detention of Mr Liew and must comply with such lawful orders as require his detention or release. As is appropriate, neither the Commissioner nor the Authority played any active role in the proceedings.

The Crime

1. The facts giving rise to the sentence imposed on Mr Liew were set out by Slattery AJ in his Honour's remarks on sentence, as follows:

"At about 8am on 4 July 1991 the two prisoners [Mr Liew and his co-accused Mr Lim] were travelling in a car in a westerly direction in Military Road, Mosman, pursuant to a preconceived plan, deliberately collided with the Mercedes Benz car being driven by the deceased in order to force him [Dr Chang] to stop. Both vehicles were then driven into a side street, Lang Street where, after the prisoners and the deceased alighted from their vehicles and engaged in conversation, the deceased was shot by [Mr Liew], first in the right cheek and next through the right temple. The second shot was the cause of death. The two prisoners drove quickly from the scene in their vehicle which was carrying stolen number plates."

1. Acting Justice Slattery further observed that the events leading to the death of the deceased were "the culmination of many months of research, investigation and planning by the prisoners, in conjunction with one Stanley Ng". Mr Liew and his co-offender, Mr Lim, formed a plan to extort money from Dr Chang. The plan "involved the taking of the deceased from the public street to some other place, possibly his home, where negotiations for a large sum of money could be carried out. To ensure the deceased's compliance with this plan, a gun was necessary".

1. His Honour found that it was Mr Liew who initiated the plan to obtain money from Dr Chang, and that he persuaded Mr Lim to join the plan. His Honour stated "throughout the whole operation [Mr Liew] demonstrated that he was the leader". It was Mr Liew who shot Dr Chang. As to the shooting, Slattery AJ commented:

"The shooting of the deceased was precipitated by the refusal of the deceased to enter a car and his movement to follow Mr Goff. Although he had an opportunity to escape in his own vehicle without any likely interference, Chiew Seng Liew shot the deceased not once but twice.

...

The first shot, which was not fatal, should have been sufficient to achieve an escape for the prisoners, since they were not threatened by anyone, yet Chiew Seng Liew cold-bloodedly and callously executed the deceased in a public street at morning peak hour time. In doing so they took the life of an eminent heart surgeon who had a worldwide reputation in his specialty." (emphasis added)

1. Acting Justice Slattery stated that "viewed objectively the gravity of the offence by each prisoner is very high and calls for the severest of sentences". His Honour further stated that "sentences must be imposed which will be seen as a deterrent to Australian nationals and visitors to this country who might be minded to use guns in the course of acting as brigands or extortionists or kidnappers in public places or elsewhere".

1. An appeal to the Court of Criminal Appeal against the severity of the sentence was dismissed: Regina v Lim and Liew (unreported, NSWCCA, 24 December 1993).

The Crimes (Administration of Sentences) Act 1999

1. Part 6 of the Crimes (Administration of Sentences) Act 1999 (the "Administration Act") deals with decisions made as to whether to release prisoners on parole. Sub-section 126(1) enables offenders to be released on parole in accordance with the requirements of Part 6. An offender cannot be released without a "parole order" (s 127). A parole order is subject to conditions, including such conditions as are specified by the Authority (s 128). Sub-section 132(1) provides that a parole order is authority to a person having custody of an offender to release them. Sub-section 131(2) requires the release of an offender on the day specified in their parole order.

1. Subdivision 3 of Division 2 concerns parole decisions in respect of persons described as "serious offenders". Mr Liew satisfies the statutory definition of "serious offender" (s 3(c) of the definition) because he was not eligible for release until he had spent at least twelve years in custody (in his case, twenty years).

1. Subdivision 3 provides for a staged procedure for the making of any decision to release a serious offender. Section 143 requires the Authority to consider whether or not the offender should be released at least sixty days before the offender's parole eligibility date. If parole is refused at that point it will be considered again in subsequent years (s 143A).

1. Section 144 requires the Authority, after giving preliminary consideration as to whether or not a serious offender should be released on parole, to "formulate and record its initial intention" either to make a parole order or not to make a parole order. If the "initial intention" is formed to make a parole order for a serious offender, notice is to then be given to persons whose names are recorded in the "Victims Register" (s 145). The giving of this notice engages a procedure whereby the victim can request that the matter be reconsidered, that there be a hearing, and that they provide submissions. Section 146 has a similar procedure for notification to the offender where the Authority's initial intention is to refuse parole.

1. Section 147 makes provision for a hearing by the Authority following such an application.

1. Section 149 confers upon the Authority three powers. It provides:

"Decision following review

(1)   After reviewing all the reports, documents, submissions and other information placed before it, the Parole Authority must decide:

(a)  whether or not the offender should be released on parole, or

(b)  whether, for reasons specified by the Parole Authority in its minutes, the question of whether or not the offender should be released on parole should be deferred.

(2)   The question of whether or not the offender should be released on parole:

(a)  may be deferred once only, and

(b)  may not be deferred for more than 2 months.

(3)   If the Parole Authority decides than the offender should be released on parole, it must make an order directing the release of the offender on parole on a day occurring during a period specified in accordance with section 151.

(4)   If the Parole Authority decides that the offender should not be released on parole, the Parole Authority:

(a)  (Repealed)

(b)  must cause notice that it does not intend to make a parole order to be served on the offender." (emphasis added)

1. The period that is referred to in s 149(3) is a period determined by the Authority in accordance with s 151, which provides:

"Release of serious offender on parole

(1)   The period to be specified in a parole order under section 149 or 150 is to be:

(a)  if the order is made earlier than 14 days before the offender's parole eligibility date, a period beginning no earlier than the offender's parole eligibility date and ending no later than 21 days after that date, and

(a1)   if the order is made following an application by the offender referred to in section 143A, and is made before the offender's annual review date (within the meaning of that section), a period beginning no earlier than the offender's annual review date and ending no later than 35 days after that date, and

(b)  in any other case, a period beginning no earlier than 14 days after the date on which the order is made and ending no later than 35 days after that date."

1. The first power conferred on the Authority by s 149 is the power referred to in s 149(1) to "decide" whether or not an offender should be released. The second power conferred is the power referred to in s 149(3) to specify, in accordance with s 151, a period for their release. The third power conferred is also found with s 149(3), namely the power (and obligation) to "make an order" directing the offenders release on a specific day within the period specified.

1. I have referred to above to the concept of a "parole order". It is critical because it is the existence and terms of a parole order that give rise to an offender's legal entitlement to be released and authorise their jailer to release them (s 131). The definition of "parole order" in s 3 of the Administration Act refers to an "order in force under ... section ... 149". On one view this is only a reference to the third type of decision I have identified, namely the power conferred by s 149(3) to make an order specifying the day of release rather than a decision under s 149(1) to release a person on parole. However, one difficulty with that construction is that s 135(1), which is addressed below, only applies to the making of a parole order. It would be nonsensical to apply the obligations created by s 135 to a power which is solely concerned with the allocation of which day within a given period is to be selected to release an offender. It is clearly meant to apply to the making of decisions under s 149(1). No argument was directed to this and I will not consider it further. The parties accepted that s 135 was applicable to the decision by the Authority to grant Mr Liew parole.

1. The decision of the Authority dated 19 September 2012 that is challenged in these proceedings was expressed by the Authority as a "grant ...of parole not earlier than 3 October 2012 and not later than 10 October 2012" with certain conditions attached. I understand this to be the combination of a decision under s 149(1) and the specification of a period under s 149(3). The effect of the Authority's decision is that the last day upon which he can be detained was Wednesday, 10 October 2012. Absent intervention by this Court, the Authority would have been obliged to make an order under s 149(3) with the effect of requiring his release no later than 10 October 2012. As this matter was heard on Tuesday, 9 October 2012, at the conclusion of oral submissions I ordered that the decision made by the Authority on 19 September 2012 be stayed until further order to enable the preparation of this judgment (see Re Kerry [2010] NSWCA 232). This has the effect of preventing the engagement of the obligation imposed by s 149(3) on the Authority to make an order directing Mr Liew's release.

1. It is necessary to note three further matters about the statutory scheme governing the Authority's decision making under s 149(1).

1. First, s 153 makes specific provision for the making of submissions by the State of New South Wales. It relevantly provides:

"Submissions by State

(1)   The State may at any time make submissions to the Parole Authority concerning the release on parole of a serious offender.

(2)   If the State makes any such submission before the Parole Authority makes a final decision concerning the release of the offender, the Parole Authority must not make such a decision without taking the submission into account.

(3)   ..." (emphasis added)

1. Second, s 193C imposes an obligation upon the Authority to record the reasons for its decision. It provides:

"Parole Authority decisions

(1) The Parole Authority must cause a record of its reasons for the following decisions under Parts 6 and 7 to be kept in the minutes of its meetings:

(a)  all decisions that result in the granting or refusing of parole,

(b)  all decisions that result in the revocation of an intensive correction order, home detention order or parole order,

(c)  all decisions that result in the refusal to revoke an intensive correction order or home detention order following a recommendation referred to in section 163 (1) or 167 (1),

(d)  all decisions that result in the refusal to revoke a parole order:

(i) following a submission made under section 141A(3) or 153 (3), or

(ii) following a recommendation referred to in section 170 (1).

(2) In recording its reasons for a decision under Division 2 of Part 6 that an offender should or should not be released on parole, the Parole Authority must address:

(a) the matters referred to in section 135, and

(b)  if the decision relates to a serious offender to whom section 154 applies, the matters referred to in that section, and

(c)  such other matters as the Parole Authority is, under this Act or the regulations, required to take into account in making the decision.

(3)   Copies of any records made under this section are to be supplied to the Minister, the Commissioner and the Probation and Parole Service, as they may request.

(4) Subject to this Act, a decision by the Parole Authority under Part 6 or 7 is final." (emphasis added)

1. No argument was directed as to the effect of 193C(4). Ordinarily such clauses do not operate to preclude judicial review for non jurisdictional error of law on the face of the record (see Aronson and Dyer, Judicial Review of Administrative Action, 4th ed., LawBook Co at p 960). They are not capable of precluding review on the grounds of jurisdictional error (Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531).

1. Third, s 135 imposes duties on the Authority in the course of making a "parole order". It provides:

"General duty of Parole Authority

(1)   The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest.

(2)   In deciding whether or not the release of an offender is appropriate in the public interest, the Parole Authority must have regard to the following matters:

(a)  the need to protect the safety of the community,

(b)  the need to maintain public confidence in the administration of justice,

(c)  the nature and circumstances of the offence to which the offender's sentence relates,

(d)  any relevant comments made by the sentencing court,

(e)  the offender's criminal history,

(f)  the likelihood of the offender being able to adapt to normal lawful community life,

(g)  the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole,

(h) any report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Probation and Parole Service, as referred to in section 135A,

(i)  any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Review Council, the Commissioner or any other authority of the State,

(ia) if the Drug Court has notified the Parole Authority that it has declined to make a compulsory drug treatment order in relation to an offender's sentence on the ground referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998, the circumstances of that decision to decline to make the order,

(j)  such guidelines as are in force under section 185A,

(k)  such other matters as the Parole Authority considers relevant.

...

(3)   Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be considered for release on parole."

1. Section 135(2)(j) refers to guidelines in force under s 185A. That section provides:

"In consultation with the Minister, the Parole Authority may from time to time establish guidelines (not inconsistent with this Act or the regulations) in relation to the exercise of its functions."

1. As I will explain, there was a debate before me as to whether a certain document that was tendered answered the description of guidelines having force under this provision.

The Parole Authority Hearing and Decision

1. Mr Liew was born in Malaysia on 6 June 1943. He is now 69 years old. He arrived in Australia in 1991, shortly before he murdered Dr Chang. He arrived on a visitor's visa. He now holds a Bridging Visa E. This visa will automatically cease upon Mr Liew's release and he will be deported to Malaysia.

1. The first date that Mr Liew was eligible for release from parole was on the expiry of his minimum term, namely 12 July 2011. On 23 June 2011 the Authority determined to refuse him parole.

1. In May 2012 the Authority again considered its position. It had received a report from the Serious Offenders Review Council supporting Mr Liew's release on parole. It had also received material concerning his physical and mental health. He had been diagnosed with Parkinson's disease as well as major depression with psychotic features.

1. On 17 May 2012 the Authority formed an initial intention to grant Mr Liew parole (see s 144(1)). This engaged the notice provisions that I have described above.

1. On 6 July 2012 the Authority convened a hearing. By this time the Authority had received a report from Dr Welkee Sim of Justice Health dated 10 June 2012 which described Mr Liew's medical condition as follows:

"His [Mr Liew's] main medical problem is Parkinson's disease. It is moderately severe and is progressive. Functional impairment includes mobility and personal care. Potential complications in Parkinson's disease include pneumonia, fall-related injuries, confusion, constipation, swallowing difficulties and cognitive impairment. He is at high fall risk because of his mobility impairment, his postural hypotension and overall frailty."

1. Dr Sim noted that Mr Liew had not yet shown evidence of cognitive impairment; that his Parkinson's disease was "at the stage of mild to moderate severity"; and that at that stage Mr Liew was still medically fit to travel, but that if he were to be kept in gaol until the expiry of his sentence it might then be too late to send him overseas.

1. At the hearing on 6 July 2012 the Attorney requested an adjournment so that Mr Liew could be examined by a neurologist. The request was granted. The Authority arranged for a report from Professor James Colebatch. He produced a report dated 20 August 2012. It noted that:

"On examination, [Mr Liew] had reduced facial expression and walked mildly stooped with reduced arm swing. His postural reflexes were retained. He had mild postural tremor and intermittent resting tremor of the arms and legs. His voice was tremulous with a typical Parkinsonian quality. He had some difficulty getting off the examination bed. ..."

1. Further, another report was provided by Dr Sim dated 13 September 2012 updating his earlier reports. In this report Dr Sim stated, inter alia, that Mr Liew was showing evidence of increasing cognitive impairment and was frailer physically.

1. Written submissions on behalf of Mr Liew and the Attorney were provided to the Authority on 5 September 2012 and 12 September 2012 respectively. The application was then listed for hearing on 19 September 2012. At that hearing further oral submissions were made on behalf of the Attorney and Mr Liew. It is necessary to note two matters at this point about those submissions.

1. First, the submissions debated the current state of Mr Liew's Parkinson's disease and its likely future development. It was submitted on behalf of Mr Liew that his medical state was such that if he was not released he would, in the near future, become medically unfit to be deported. The Attorney disputed this.

1. Second, another matter debated in the submissions was the significance or otherwise of the fact that Mr Liew was to be deported. The Attorney submitted that his deportation meant that "any supervisory conditions imposed on him will not be effective because there are no reciprocal arrangements with Malaysian authorities which would enable [Mr Liew] to be supervised whilst on parole in Malaysia". According to the Attorney, the absence of effective supervision meant that Mr Liew's freedom would not be conditional in the same way as any other offender paroled within Australia. Thus, "the practical effect of the deportation will be to 'expunge' Mr Liew's remaining sentence". The Attorney's written submissions also addressed the criteria referred to in paragraph 2.7 of the "Operating Guidelines" to which I refer below.

1. The Attorney cited an earlier decision of the Authority (Ibrahim) in support of the proposition that the deportation of an offender such as Mr Liew would practically result in the remainder of his sentence being expunged. The written submissions filed on behalf of Mr Liew disputed the validity of that contention and the correctness of the Authority's decision in Ibrahim to the extent that it was said to establish that proposition.

1. After the parties made oral submissions on 19 September 2012, the Authority retired to consider its decision. It then delivered its reasons orally later that day. The written record of its reasons runs to sixteen pages. The first two pages outline the facts and circumstances of Mr Liew's crime; the sentence imposed by Slattery AJ; and the earlier decision of the Authority to refuse parole. The next three pages outline the material received by the Authority up to the time of its review hearing on 6 July 2012. Pages 5 to 8 are headed "Review Hearing on 6 July 2012" and record the adjournment of that hearing, and the contents of medical reports received prior to the resumed hearing on 19 September 2012. Pages 8 to 12 summarise the written submissions of both the State and those lodged on behalf of Mr Liew.

1. Page 13 of the Authority's reasons is headed "The Hearing on 19 September 2012". From that page to the top of page 15 the Authority summarises the submissions that were made orally to it on the morning of its decision. Senior Counsel for Mr Liew, Mr Molomby SC, placed particular emphasis on aspects of this part of the Authority's reasons. They are further considered below at [82]-[88].

1. The penultimate section of the Authority's reasons is headed "The Authority's Determination". I set that out in full:

"THE AUTHORITY'S DETERMINATION

The Authority has given careful consideration to all the material in its possession. This includes: the Sentencing Remarks, The criminal antecedents, the various Probation and Parole pre release reports, the SORC reports, the OIMS, Justice Health reports, including those of Doctor Robert Reznik and Doctor Sim, the report of Professor Colbatch [sic] and written submissions on behalf of the State and the inmate. The Authority has also received a comprehensive submission from the victim's family to which we will make mention later.

Having regard to the principle that the public's interest is of primary importance, the Authority has decided that the release of the inmate is appropriate.

In making this decision the Authority has had regard to the need to protect the safety of the community and the public's confidence in the administration of justice. The Authority notes that this is an application for parole under section 135 of the Crimes (Administration of Sentences) Act 1999. It is not an application under section 160 of the same Act.

Although the Authority has taken into account the inmate's health and the fact that he is suffering from the degenerative disease of Parkinson's, it is not determining the matter under section 160 which is for the situation where an offender is dying or because of exceptional extenuating circumstances. The Authority notes that the sentencing Judge set a non parole period which expired on the 12 July 2011. The additional term of six years will not expire until 12 July 2017. The Authority notes that the inmate is quite elderly at 69 years of age and he is suffering from Parkinson's disease. He suffers a serious terminal illness and according to Doctors Sim and Resnik [sic], he has deteriorated significantly over the last 12 months and is becoming increasingly frail. The Authority notes that his custodial conduct would be supportive of a grant of parole. It notes that he has done no programs to address his offending behaviour. However the Authority further notes that he has been assessed as ineligible for the VOTP on the basis that his LSI-R of moderate-low would have deemed him unsuitable for the program. The Authority further notes that his increasing frailty would in itself as a matter of logic reduce his risk of reoffending. The Authority notes that the report of Doctor Resnik [sic], consulting psychiatrist, at page five, the inmate has a number of chronic medical and psychiatric problems requiring ongoing assistance. He was diagnosed with Parkinson's disease in 2004, he has hypertension and has had episodes of chronic heart failure. At page six Doctor Resnik [sic] states that the inmate is currently suffering from a major depressive disorder with psychotic features, organic depression and psychosis secondary to a medical condition of Parkinson's disease and its treatment. The Authority further notes Doctor Sim's most recent report of 13 September 2012 where at page two he states, 'That the inmate cognitively has shown evidence of increasing impairment. Screening cognitive test using RUDAS showed a score of 28/30 in October 2011. On 28 August 2012 he scored 22/30. A score of 24 and below indicates that there may be an underlying cognitive impairment'.

The Authority therefore grants parole not earlier than 3 October 2012 and not later than 10 October 2012. With conditions 1-14, 30 (victim's family) and 32."

1. The final section of the Authority's reasons is entitled "Victims Submission". It summarises the effect of a detailed submission that had been made on behalf of Dr Chang's family at the hearing on 6 July 2012.

1. The Authority also stated that parole was granted "[w]ith condition ... 32". Condition 32 is as follows:

"The offender must submit to supervision by the New South Wales Probation and Parole Service until such time as the offender has been deported. If the offender returns to Australia before the expiry of his or her parole order, the offender must report to the New South Wales Probation and Parole Service within 7 days of his or her return to New South Wales."

1. This condition specifically contemplated the deportation of Mr Liew from Australia. Otherwise I note that there are at least ten express references to his deportation in the Authority's reasons (on pages 2, 8, 9, 11,12, 13 and 14).

The Attorney General's Challenge to the Parole Authority's Decision

1. Section 156 of the Administration Act confers on the Attorney a right to apply to this court for a direction in respect of a decision of the Authority if that decision "has been made on the basis of false, misleading or irrelevant information". When these proceedings were commenced the Attorney invoked this provision but this aspect of his challenge was not pursued.

1. Instead the Attorney invoked the supervisory jurisdiction of this Court as confirmed by s 69 of the Supreme Court Act 1970. This jurisdiction enables the Court to grant the various public law remedies if it can be established that the Authority, being a relevant body conferred with power or functions under the Administration Act, has exceeded its authority or failed to perform some duty imposed upon it law. There are a number of limits upon this jurisdiction, the most important one being adverted to in the opening part of this judgment, namely that it is not a means of reviewing the merits of the Attorney's decision. The merits of administrative action, to the extent that they can be distinguished from its legality, are matters for the "repository of the relevant power ... and that repository alone" (see Attorney-General (NSW) v Quinn [1990] HCA 21; 170 CLR 1 at 34 to 41 per Brennan J, especially at 36.2). In this case the repository power chosen by Parliament is the Authority.

1. The relief sought by the Attorney in his further amended summons is an order in the nature of certiorari quashing the Authority's decision and mandamus requiring that it re-determine Mr Liew's eligibility for parole according to law. Relief of this kind is available on the grounds discussed in Craig v State of South Australia [1995] HCA 58; 184 CLR 163 at pp 175-176 which for present purposes constitutes either a jurisdictional error or an error of law on the face of the record.

1. Although the further amended summons only alleged error of law on the face of the record, I will consider whether the errors alleged could also amount to a jurisdictional error because there is a significant issue as to what constitutes the record in the case of a challenge to the Authority's decision. The "record" is usually confined to any documentation which initiates the application, the pleadings (if any) and the orders made but does not usually include the reasons (Craig at 182). In this state, the definition of the "record" has been expanded to include the "reasons expressed by the court or tribunal for its ultimate determination" (s 69(4) of the Supreme Court Act; see Kirk v Industrial Relations Commission (NSW) at [89]). Whether the Authority answers the description of "tribunal" for these purposes is a matter to which I will briefly return.

1. Senior Counsel for the Attorney, Mr Menzies QC (with whom Ms Johnson appeared) contended that there were two related forms of relevant error on the part of the Authority in making its decision. The first error alleged was that the Authority did not consider the "issue of Mr Liew's deportation" in making its decision. There were a number of matters related to Mr Liew's deportation that were embraced by that submission. To address this complaint it is first necessary to consider the source of the obligation, if any imposed on the Authority to consider the "issue of Mr Liew's deportation", the content of any such obligation and then whether the Authority failed to comply with it.

1. The second error alleged by the Attorney is that the Authority "failed to provide adequate reasons for its decisions". The second alleged error requires a consideration of the alleged inadequacies and the consequences for the validity of its decision if it is shown that the reasons are inadequate.

The obligation to consider the "issue of Mr Liew's deportation"

1. In the course of his written and oral submissions Mr Menzies QC identified three sources of an obligation on the part of the Authority to consider the "issue of Mr Liew's deportation". These were: paragraph 2.7 of the "Operating Guidelines" said to have been issued by the Authority under s 185A of the Administration Act; the self imposition of such a requirement by the Authority under s 135(2)(k); and a passage from the High Court's judgment in The Queen v Shrestha (1991) 173 CLR 48.

1. There was tendered in evidence a document entitled "Operating Guidelines". It stated that they were "issued April 2005". The covering page stated:

"These Guidelines developed by the Parole Authority are intended to assist Authority members in making their determinations. They are not intended to outweigh the objective evidence placed before the Authority or to inhibit Authority members in exercising their discretion."

1. The Guidelines address nine topics relevant to the Authority's function, namely public interest, parole consideration, parole refusal, review hearings, inmate management, revoking parole, security of certain information, Authority warnings, and overseas travel. Substantial parts of the document are clearly capable of relating to the exercise of the Authority's functions under the Administration Act.

1. Mr Menzies QC points to paragraph 2.7 of the Operating Guidelines which states:

"2.7 Deportation:

The Parole Authority will consider each case on its merits.

Factors to consider before granting parole:

(a)   whether a definite decision has been made by the Department of Immigration;

(b)   whether the offender has adequately addressed the offending behaviour;

(c)   whether the offender would otherwise be released to parole in Australia if not subject to deportation;

(d)   the seriousness of the offence;

(e)   the risk to the community in the country of deportation;

(f)   the post release plans in the country to which the offender is to be deported;

(g)   the duration of the period to be served on parole;

(h)   the fact that supervision of the parole order is highly unlikely to occur;

(j)    whether or not the offender entered the country specifically to commit the crime for which h/she has been sentenced.

1. Mr Menzies QC sought to rely on this part of the document in combination with s 185A and s 135(2)(j) of the Administration Act as the source of a legal obligation on the part of the Authority to consider the "issue of deportation".

1. However, merely because parts of this document are capable of relating to the exercise of the Authority's functions does not mean that it has the force of law under s 185A. Senior Counsel for Mr Liew, Mr Molomby SC (with whom Ms L. Goodchild of Counsel appeared) submitted that the Attorney has not established that it has such force. Mr Molomby SC pointed to three matters in support of that contention.

1. First he noted that the document does not expressly state that it constitutes guidelines made under s 185A.

1. Second he submits that part of the document are inconsistent with it having the character of a set of guidelines under s 185A. Thus, for example, subparagraph 2.1 summarises the effect of s 135(2) of the Administration Act. Subparagraph 2.1(j) lists as a factor that the Authority must have regard to in considering the grant of parole "such guidelines as are in force under s 185A". Mr Molomby SC submits that a reference of that kind suggests that this document does not contain such guidelines or it would have said so.

1. These points are far from determinative. However they acquire greater force when considered with his next point which concerns the absence of any evidence that the document was prepared "in consultation with the Minister" in the context of its origins.

1. Section 185A was included in the Administration Act by the Crimes (Administration of Sentences) Amendment (Parole) Act 2004. That Act received assent on 15 December 2004 but did not commence until 10 October 2005. Tendered before me were copies of various annual reports by the Authority, which listed as an attachment versions of the Operating Guidelines. The Authority's report for the calendar year 2004 included an earlier version of the Operating Guidelines issued in August 2004. These are similar to the version relied on by the Attorney before me. They do not refer to s 185A. They include a section 2.6 addressing issues concerning the relevance of deportation to a decision whether or not to grant parole. It lists seven factors which correspond with seven of the nine in the extract from the current paragraph 2.7 that I have set out above.

1. The Authority's annual report for calendar year 2005 recorded a copy of the Operating Guidelines which is identical to the version now relied upon. As I have stated, they were issued in April 2005. The obvious inference which I draw is that they were prepared prior to the coming into force of s 185A. There is no evidence that they have been altered since.

1. Section 185A refers to the Parole Authority "establish[ing]" guidelines "in consultation with the Minister ... from time to time". It is no doubt possible for the Authority to have prepared guidelines in anticipation of s 185A coming into force and then, after the provision was enacted, undertaken some act that constituted "establish[ing]" them in "consultation with the Minister". However, the only evidence before me is that after the enactment of s 185A they were sent to the Minister in their final form as an annexure to the annual report. Such a one way communication could not answer the description "consultation". The result is that there is no evidence upon which I could be satisfied that the document tendered before me constituted guidelines established in consultation with the Minister pursuant to s 185A. Accordingly, I am not satisfied that the document that has been tendered before me constitutes "guidelines" for the purposes of s 185A.

1. The next basis upon which Mr Menzies QC sought to give the Operating Guidelines the force of law was via s 135(2)(k) of the Act. He submitted that it was clear at least from the annual reports that I have referred to that the matters specified in paragraph 2.7 of the Operating Guidelines constituted "such other matters as the Parole Authority considers relevant", and thus became mandatory considerations by the operation of s 135(2)(k).

1. I do not accept that submission. The reference to "such other matters as the Parole Authority considers relevant" in ss 135(2)(k) arises in the context of the Authority deciding "whether or not the release of an offender is appropriate in the public interest"; i.e. it arises in the context of the consideration of a particular offender. Sub-section 135(2)(k) operates to ensure that when the Authority is considering a particular offender it is not limited to only considering those factors listed in ss 135(2)(a) to (j). Although s 135(2) opens with the word "must", s 135(2)(k) qualifies this by granting the Authority a discretion to identify in a particular case what further matters it will consider in the context of dealing with a particular offender (within the scope and purpose of the Administration Act).

1. It can be accepted that the Operating Guidelines lists matters that are or may be relevant to its decisions in a general sense. To that extent it contains "matters ... the ... Authority considers relevant". However, s 135(2)(k) does not thereby operate to make them mandatory considerations that the Authority must consider or expressly address in every case. Instead they are matters that the Authority can, when dealing with a particular offender, choose to consider at the level of detail it considers appropriate to discharge its statutory function. In contrast to the balance of the factors listed in s 135(2) it does not have to consider them. Sub-section 135(2)(k) does not operate so that if the Authority as constituted at one point issues guidelines listing factors to be considered then the Authority as later constituted must take them into account when dealing with a particular offender. To contend otherwise is to attempt to utilise s 135(2)(k) to do the work of s 135(2)(j).

1. The result is that I am not satisfied that either by the operation of s 185A of the Administration Act or by some self adoption process that was said to have engaged s 135(2)(k) the Authority came under an obligation to specifically address each of the matters identified in the Operating Guidelines, including paragraph 2.7.

1. However, that does not mean that the Authority was not required to consider the "issue" of Mr Liew's deportation, although it may not have been required to do so with the specificity identified in paragraph 2.7 of the Operating Guidelines.

1. Mr Menzies QC referred me to a passage from the judgment of Deane, Dawson and Gaudron JJ in R v Shrestha at 73. In the course of rejecting a submission that a sentencing judge could never determine that it is appropriate for a foreign offender to be eligible for parole their Honours stated that:

"... The likelihood of deportation, the lack of ties with this country and the difficulty or even impossibility of effective supervision and enforcement of parole conditions are all factors which will properly be taken into account by a parole authority when considering, at that time, whether the prisoner should be actually released on parole. Those factors may, however, conceivably vary, by reason of change of government policy or the intervention of special circumstances, between the time of sentencing and the time when the parole authority considers whether a prisoner should be released on parole. More important, once it is recognized that circumstances may well exist in which, notwithstanding those factors, a parole authority will be justified in releasing a foreign offender of the particular class on parole, those factors do not, of themselves, compel a sentencing judge to decide that it is inappropriate that such an offender should be eligible to be even considered for parole at that time." (emphasis added)

1. The description in this passage of the factors "which will properly be taken into account" by a parole authority must, of course, conform with the relevant statutory regime. In this case, however, a proper application of a number of the criteria in s 135(2) required that the matters identified by their Honours in this passage concerning deportation be addressed. As I will explain, the fact that Mr Liew would be deported if released in the near future was a factual assumption upon which all the parties before the Authority proceeded. It meant that when the Authority came to consider many of the other criteria in s 135(2), such as the need to protect the safety of the community (s 135(2)(a)), etc, it had to consider the matter against the background of that common assumption. In that sense to discharge its function under s 149(1) properly having regard to the criteria in s 135(2) the Authority had to "consider" the fact that he would be deported. If it did not it is difficult to see how the criteria in s 135(2) could have been sensibly applied.

1. There was a further basis upon which the Authority became subject to an obligation to "consider" the "issue of deportation". It results from it being at the forefront of the submissions made on behalf of the State that were made to it. As I have stated, a significant part of those submissions was that to release and then deport Mr Liew would have the effect that the balance of his sentence would be "expunged" and that would bring the administration of justice into disrepute. Before me, Mr Menzies QC politely accepted my characterisation of that submission as a contention that to release and deport Mr Liew now would be to substitute a 21 year sentence for the 26 year sentence that was imposed.

1. I have described the statutory scheme above. Section 153 made specific provision for the State to be heard and make submissions. Sub-section 153(2) specifically precluded the Authority from making a decision "without taking the submission [of the State] into account". This meant that the Authority had to consider the State's submission to that effect (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [74] per McHugh, Gummow and Hayne JJ). Further, by precluding the Authority from making a decision if it has not done so, the section strongly suggests that the Authority will have committed jurisdictional error if such a submission is not taken into account.

1. The result is that I accept Mr Menzies QC's submission that the Authority had an obligation to "consider", or take into account, the "issue of deportation" although I do not accept the entirety of his submissions as to the source and scope of that obligation. At this point, two further matters should be noted about the obligation to consider the State's submissions. First, the necessity to take into account a mandatory consideration meant that the Authority had to "engage in an active intellectual process" and give it "genuine consideration" (Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; 180 LGERA 99 at [44] and cases there cited). Second, that said, the attribution of weight to any such matter was ultimately a matter for the Authority (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 41).

Did the Authority fail to consider the "issue of" Mr Liew's deportation?

1. The next question that arises is whether the Attorney has proven that the Authority failed to comply with the obligation(s) to consider the "issue of deportation" that I have identified. In contending that the Authority did not, Mr Menzies QC pointed to the absence of any reference to Mr Liew's deportation or paragraph 2.7 of the Operating Guidelines in that part of the Authority's reasons which is headed "The Authority's Determination" which I have extracted above (at [43]). He submitted that the Authority's summary of the submissions which referred to his deportation and assertion that it had considered them was insufficient (see [41]-[44]).

1. In analysing the Authority's reasons the statement by McClellan CJ at CL in Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865 at [49] is apposite, namely:

"It is important when considering the "reasons" of a body such as the Parole Authority that the court not adopt a "fine tooth comb" approach to its published reasons: see Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Neaves, French and Cooper JJ in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. This principle is obviously appropriate to the reasons of the Authority."

1. In addition Mr Molomby SC submitted that aspects of s 193C are different to the common form of statutory provisions that require the provision of reasons. He pointed to the fact that the reasons were only to be recorded in the minutes of the Authority and that the only persons who were entitled to receive copies were the Minister, the Commissioner for Corrective Services and the Probation and Parole Service. He noted that rejected parole seekers had no such entitlement. In effect he contended that this section was not one designed to facilitate appeal rights but was effectively more for the purposes of internal record keeping within the Authority and other interested government bodies.

1. These submissions may have some relevance to an issue raised by the second ground relied on by the Attorney, namely whether a failure to provide adequate reasons leads to invalidity. However, I do not see how it moves the position beyond that stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 referred to by McClellan CJ at CL in the extract from Attorney General for New South Wales v New South Wales State Parole Authority set out above at [76]. At this point of the argument the scrutiny of the reasons is being undertaken as part of a review of the evidence to determine whether the Attorney has made good his contention that the "issue of deportation" was not taken into account in various ways. For this purpose s 193C(2) assists the Attorney because it requires the Authority's reasons to address the various mandatory considerations affecting its decision including those specified in s 135(2) (s 193C(2)(a)) as well as the State's submissions, consideration of which is mandated by s 153(2) (s 193C(2)(c)). Bearing in mind the principle stated in Wu Shan Liang, this aspect of the statutory context strongly supports a submission that if a matter is not referred to in the Authority's reasons then it was not considered (Yusuf at [5] per Gleeson CJ, at [35] per Gaudron J, at [69] per McHugh, Gummow and Hayne JJ).

1. I have already described the structure of the Authority's reasons and extracted the critical part under the heading the "Authority's Determination" above. The essence of its reasoning in that section was that (i) Mr Liew's minimum term had expired on 12 July 2011; (ii) he is elderly, suffering from Parkinson's disease, his disease is terminal and he "is becoming increasingly frail"; (iii) although he has not undertaken programs to address his behavior this was explicable in a manner consistent with a low likelihood of his re-offending; (iv) further his medical infirmity reduces that risk; (v) he has hypertension and heart disease; and (vi) he also suffers from various psychological conditions. Further in granting parole the Authority imposed condition 32 which specifically relates to offenders who are to be deported.

1. Mr Menzies QC submitted that the reasons left one to speculate as to precisely why the Authority reached the conclusion that release on parole was warranted. I do not agree. In this part of its reasons the Authority expressed the conclusion that the release of Mr Liew was in the "public interest". This reflected s 135(1). It also specifically stated that it had had regard to "safety of the community" and the "public's confidence in the administration of justice". This reflected s 135(2)(a) and (b). Those conclusions were immediately followed by the paragraph which I have just summarised.

1. Allowing for the principle stated in Wu Shan Liang, I consider that a fair reading of the Authority's decision was that Mr Liew's release was justified because he was no longer any risk to the public and his illness warranted his being treated outside of jail. Further the assumption behind its analysis is that Mr Liew would be deported to Malaysia immediately. This is reflected in condition 32. As I have explained, there are numerous references to his deportation in the submissions of both parties which are summarised in earlier parts of the Authority's reasons. If the Authority had not accepted that common position, it would have said so. To this extent I reject the contention that the Authority did not consider the "issue" of his deportation. To the contrary the fact that he would be deported and would not be supervised following his deportation was the assumption upon which the parties and the Authority's analysis proceeded. It was, in that sense, at the forefront of its consideration. This satisfied the obligation I have identified above at [71]. The Authority considered that supervision would not be possible, and that might bear upon the risk of recidivism. However, the Authority concluded that it was of no real significance given Mr Liew's prognosis and its consequential effect on his prospects of re-offending.

1. This conclusion does not address all of Mr Menzies QC's arguments. He also submitted that the passage that I have extracted in [43] above only refers to the factors in favour of Mr Liew's release and not the factors against. In particular he submitted that the absence of any consideration of adverse factors supports his contention that the Attorney's principal submission that the sentence would be "expunged" if he was released and deported was not addressed. I have already found that s 153(2) mandated that the Authority take that submission into account (at [73]-[74]). Was that aspect of the Authority's obligation discharged?

1. To address this, it is necessary to return to that part of the Authority's reasons which precedes the section entitled "The Authority's Determination". Under the heading "the State Submission" the Authority set out verbatim the following summary taken from the State's written submissions:

"1   Parole should be refused. It is not in the public interest for the offender to be released:

(a)  the offender has only served one year of his six year parole;

(b)  he committed a crime of the utmost seriousness and in so doing deprived Dr Chang's family of a loving father and husband and the community of the services of a pre-eminent heart surgeon dedicated to saving life and alleviating suffering;

(c)  the offender has not addressed his offending behaviour in custody and continues to minimize his offending conduct by seeking to deflect blame onto his co-offender;

(d)  [he] has undertaken no therapeutic courses in custody;

(e)  on release, he will be immediately deported. As any parole conditions will have no effect in Malaysia, the effect of the deportation will be that the remainder of the offender's sentence will be 'expunged'.

2    It would only be appropriate to grant parole now, if there were extenuating conditions arising out of the offender's medical condition. Those extenuating circumstances do not exist. There is no evidence that the offender's Parkinson's disease has reached a state that would justify the grant of parole.

3   It is only when he has been properly medicated and a prognosis then provided that consideration should be given to parole."

1. The points made in sub-paragraph 1(a), 1(c), 1(d) and paragraph 2 were specifically addressed in the passage that I have extracted in [43] above. The point made in sub-paragraph 1(b) was in large part addressed under the heading "Victim's Submissions" which immediately followed the section entitled "The Authority's Determination". To this point the principal matters said to be adverse to the decision to release were considered by the Authority. This leaves sub-paragraph 1(e) which is the focus of the Mr Menzies QC's present contention.

1. Later in its reasons under the heading "The Hearing on 19 September 2012" the Authority summarised the oral submissions that were made on the day it handed down its decision. Its summary included the following:

"Mr Menzies also stressed that by granting parole to the inmate now with the knowledge that He is being deported to Malaysia, the sentence will be expunged. Mr Menzies also stated that there is no evidence at this stage that the inmate will be unfit to be deported when he is eventually released. However the Authority can do no more than to note the medical reports that it has received from Doctor Wilkee Sim and Professor Colbatch [sic]. There is no doubt that the inmate suffers from Parkinson's disease, which is a degenerative disease and incurable. The medical report in particular of Doctor Sims notes the gradual deterioration in the inmate's condition. Professor Colbatch [sic] noted that the inmate had difficulty arising from the examination bed." (emphasis added)

1. Then in relation to Mr Liew's solicitor's submissions, the reasons record:

"Mr Hutchins referred to the lack of prognosis of the progress of Mr Liew's Parkinson's disease and noted that a time will not arrive during the parole period when the Authority is aware that he is 'on the precipice' and likely to be unable to travel. The Authority would add that when that time has arrived it will be in all probability too late for him to travel." (emphasis added)

1. Mr Molomby SC emphasised the italicised portions of these extracts. He submitted that they are evidence of an active process of consideration by the Authority of the matters being put to it including the submission that the sentence would be "expunged". I agree. I read these passages as the Authority taking the opportunity to respond, reject or add to the various points that were being made to it. Thus it rejected the submission that "there is no evidence that at this stage that the inmate will be unfit ..." etc by pointing out that there was evidence, namely the reports of Dr Sim and Professor Colebatch. It added to Mr Liew's solicitor's submission concerning fitness to travel by effectively agreeing with it.

1. The Authority did not specifically respond to the Attorney's submission that "by granting parole to the inmate now with the knowledge that [he] is being deported to Malaysia, the sentence will be expunged". In the context of the surrounding extracts in which the Authority either rejected or added to the various points being made I take that as an acceptance of that contention. Mr Menzies QC further contended that the Authority did not address the submission that release and deportation would have the effect of expunging the balance of the sentence "in the context of its consideration of whether it was 'appropriate in the public interest' to release Mr Liew". However, the fact that it is not specifically referred to in the passage entitled "The Authority's Determination" set out above is only indicative of it not bearing much weight in the Authority's final determination. The attribution of weight was a matter exclusively for the Authority and not for this court (Peko-Wallsend). Further, a determination of what is in the "public interest" is said to "classically import ... a discretionary value judgment" (O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210, at 216; see Osland v Secretary, Department of Justice [2008] HCA 37; 234 CLR 275 at [137] per Hayne J). While the Authority was obliged to consider the State's submission, it was not obliged to attribute any, or any significant, weight to any part of those submissions in determining what was in the public interest.

1. In these proceedings the Attorney bore a positive onus of proving that a matter was not considered or taken into account. He seeks to discharge that onus by pointing to the absence of any express reference in the Authority's reasons to a response to the submission that release and deportation would have the effect of expunging the balance of the sentence. However the passages pointed to by Mr Molomby SC, when considered in context, negate such an inference being drawn. I am not satisfied that the Authority failed to consider this aspect of the "issue of deportation".

1. The only remaining potential "issue[s] of deportation" are those specified in paragraph 2.7 of the Operating Guidelines. I have already rejected the proposition that those Operating Guidelines had the force of law under s 185A (above at [64]) or were required to be considered by the operation of s 135(2)(k) (above at [67]). In any event, I did not understand Mr Menzies QC to submit that the Authority was required to expressly address every sub-paragraph of paragraph 2.7 in its reasons. If he had, it would have necessitated further consideration of whether a statement in a document described as "guidelines" listing "factors to be considered" contained sufficiently emphatic language to so require.

1. Paragraph 2.7 of the Guidelines were addressed in the State's submissions and, to that extent, the Authority was required to consider them as part of the process of "taking [those] submissions into account" mandated by s 153(2). However, for the reasons I have already stated (at [83]-[89]), I am not satisfied that those submissions were not considered. A three page summary of those submissions was included in the Authority's reasons and the opening summary of those submissions was reproduced verbatim.

1. Accordingly, I reject the first ground of the Attorney's challenge.

Inadequate Reasons

1. To a large extent the Attorney's contentions about the inadequacies of the Authority's reasons mirrored his submissions about the matters the Authority failed to consider or take into account. I have addressed a number of those contentions already (see [80]-[88]).

1. The Attorney further contended that there was:

"... a real issue as between the Attorney General and Mr Liew as to the relevance of deportation in the grant of parole. It was incumbent on the Authority when giving its reasons not merely to observe that these submissions had been made, but also to address those submissions in its reasons. Some critical analysis of the relevance and importance of deportation to the question of the public interest in releasing Mr Liew to parole was required. A bald statement of decision was required."

1. I have already addressed the bulk of this submission at [83]-[88]. The balance of the submission is predicated on the proposition, which I do not accept, that the Authority was exercising an adjudicative function and determining some dispute between "parties" who between them defined the issues to be decided. Thus, in support of this submission, the Attorney referred to a passage from the judgment of Beach J in Dimatos v Coombe [2011] VSC 619 at [20] which referred to the need for the reasons of the Victorian Civil and Administrative Tribunal ("VCAT") to, inter alia, "identify the issues in dispute" and "deal with the substantial points which have been raised". In Dimatos VCAT had decided a claim for damages for breach of contract.

1. However, the Authority's function under the Administration Act is different to that of VCAT when it decided Dimatos. The Authority is not determining a case, cause or complaint between competing parties. The matters to be determined and considered are not defined by the affected parties but by the Administration Act. The scope of its obligation to give reasons is also defined by that Act. I have already referred to Mr Molomby SC's submissions concerning s 193C. Another notable feature of that provision is that there is no express requirement on the Authority to record any findings of fact that it has made.

1. In the end result the sole question is whether the Authority has complied with its statutory obligation in 193C. It follows from the above analysis (at [73]-[74]) that this may require it to address in some detail the submissions made by the affected parties. However, any such obligation results directly from the statute and not from the consideration pointed to by the Attorney, namely that the reasons may be inadequate if "an appeal court is unable to ascertain the reasoning upon which the decision is based" or if "justice is not seen to be done".

1. It follows from the above conclusions that I am not satisfied that the Authority's reasons failed to comply with s 193C(2). In the section entitled the "Authority's Determination" the Authority clearly set out the matters it considered were of significance to the public interest (and the factors in s 135(2)(a) and (b)). This conformed with the requirements of s 193C(2)(a). The analysis at [83]-[88] illustrates that the Authority addressed the State's submissions. This was sufficient to satisfy s 193C(2)(c) to the extent it incorporated its obligation in s 153(2).

1. This conclusion makes it strictly unnecessary to consider a further point that I raised with the parties as to whether a mere failure to prepare adequate reasons on the part of the Authority would give rise to relief that involved quashing its decision. For the sake of completeness I make the following observations without deciding that question.

1. The Attorney's supplementary submissions contended, correctly, that the consequences of any failure to give adequate reasons is a matter of statutory construction and that one of those consequences "may be" that there is jurisdictional error entailing the invalidity of the decision. They referred to the following passage from the judgment of Basten JA in L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 which stated:

"53.  The general law principle, reflected in the reasoning of the High Court in Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656, requires that the exercise of a particular power be characterised as either administrative or judicial. (Exercises of legislative power may be put to one side for present purposes.) That is because the giving of reasons is commonly treated as a feature of the exercise of judicial power, absent any statutory indication: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [104]-[105]. The absence of a general law obligation for an administrative decision-maker to give reasons affects:

(a)  the process of implication of a statutory obligation;

(b)  the extent of any implied duty;

(c)  the approach of a court exercising supervisory jurisdiction in reviewing the reasons given, and

(d)  the consequences of failure to give reasons.

54   In respect of (d), the consequences of failure will also be determined, in principle, by a process of statutory implication: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355. Those consequences may be:

(a)  jurisdictional error entailing the invalidity of the decision;

(b)  error of law on the face of the record, entitling an aggrieved party to a quashing order;

(c)  failure to complete the function reposed in the decision-maker, not entailing invalidity of the decision, but attracting a mandatory order to give reasons, or

(d)  no direct legal consequence other than an available inference that the body had no good reasons for its determination.

55   The last possibility, noted by Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [34], referring to Osmond , at 663-664 (Gibbs CJ), was not the consequence proposed by the appellant in the present case. Because there was no application for certiorari, it appeared to follow that the appellant suggested an inadequacy of reasons constituted jurisdictional error warranting a declaration of invalidity."

1. Of the four possibilities noted by Basten JA in L & B Linings at [54] only the first two would be of any assistance to the Attorney in this case, as only they would result in the granting of relief overturning the decision to grant parole.

1. The first possible consequence adverted to by Basten JA is that a failure to comply with the duty to give reasons will give rise to a jurisdictional error. The significance of Osmond and the distinction between judicial and non judicial functions is that the duty to give reasons is not a "common feature of the exercise" of administrative power. Hence a failure to comply with a statutory obligation to give reasons is much less likely to be a matter affecting the jurisdiction of an administrative decision maker. In Yusuf the High Court considered whether an alleged failure on the part of the Refugee Review Tribunal to provide reasons in conformity with a statutory requirement to do so constituted a failure to conform with "procedures that were required to be observed in connection with the making of the decision". This formulation corresponded with a ground of judicial review then available in the Federal Court under former s 476(1)(a) of the Migration Act 1958 (Cth) (Yusuf at [77]). The majority concluded that it was not such a procedure (Yusuf at [6] per Gleeson CJ; at [77] per McHugh, Gummon and Hayne JJ; at [212] per Callinan J; contra at [31] per Gaudron J and at [180] per Kirby J). Another available ground was an absence of jurisdiction (former s 476(1)(b); Yusuf at [78] and [81]-[84]). None of the judgments in Yusuf suggested that a mere failure to comply with the statutory requirement to give reasons satisfied that ground. However, Yusuf also illustrates why this debate may be an arid one in the context of administrative decisions because it is often a short step to infer from "inadequate reasons" that the decision maker misunderstood their function and thereby committed jurisdictional error (Yusuf at [65] per McHugh, Gummow and Hayne JJ).

1. I can find little support in the Administration Act for the contention that the power of the Authority to make a valid parole decision is dependent on it subsequently causing a record of its decision to be placed in its own minutes in conformity with s 193C. At this stage of the analysis, the points made by Mr Molomby SC concerning s 193C, albeit in a different context (see [77]), have significant force. I cannot take this too far as the parties did not undertake any Project Blue Sky type analysis in relation to this aspect of the legislation. Suffice to state I am unconvinced that a failure to comply with s 193C has the consequence that the decision being recorded is affected by a jurisdictional error.

1. The second basis identified by Basten JA (L & B Linings at [54]) which might give rise to the quashing of the decision is that it involves an error of law on the face of the record. This refers back to his Honour's judgment in Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372. Vegan involved a challenge to a decision of an appeal panel established under the Workplace Injury Management and Workers Compensation Act 1998. The panel was not under any express statutory obligation to provide reasons. However, it was found to have failed to comply with an obligation to give adequate reasons that was implied from the legislation (Vegan at [26] per Handley JA and [117] per Basten JA, McColl JA agreeing). The question then arose as to what the consequence of that failure was. Basten JA explained (at [130]):

"There is extensive authority for the proposition that a failure, on the part of a tribunal exercising judicial functions, to give reasons for its decision will constitute an error of law which will permit the decision to be set aside on appeal, where the right of appeal is limited to errors of law: see, eg, Soulemezis (supra). Whether it also constitutes jurisdictional error is not a matter which needs to be determined, in relation to the statutory mandate of the Appeal Panel. It is sufficient for the purposes of relief under s 69 of the Supreme Court Act that an error of law has been identified, which appears on the face of the record. Because the record includes the reasons of the Panel, inadequacy of reasons will inevitably be such an error. As a result, the decision of the Panel may be set aside." (emphasis added)

1. The first sentence in this extract refers to a tribunal "exercising judicial functions". The Authority is not such a body. The second last sentence concludes that the reasons of the appeal panel in that case formed part of the "record" for the purposes of considering relief in the nature of certiorari. This was so because of the modification of Craig effected by s 69(4) of the Supreme Court Act 1970 referred to above. It applied to that appeal panel because it was clearly a "tribunal" for the purposes of that provision. It exercised an adjudicative function.

1. One question that then arises is whether the Authority is a body that answers the description "tribunal" in s 69(3). The Attorney submitted that the effect of s 69(3) and (4) is that any body which is amenable to certioarai per se answers the description "tribunal" within s 69(3) and 69(4). No authority was cited for this submission. It is a far reaching proposition affecting an important statutory provision for this Court. That submission has potentially significant consequences for this Court's approach to judicial review. A review of decisions in the Court of Appeal reveals that on a number of occasions the application of s 69(4) to the public body in question was assumed by the parties and accepted by the Court without any determination of that matter (see Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143 at [14] per Basten JA; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [17] per Basten JA). In those circumstances, and where it is not critical to the outcome of my decision, I do not consider it appropriate to determine this issue in the absence of fuller argument. Consequently, it is not necessary to address the Attorney's reliance on the decision of Harrison J in Al Qatrani v Parole Authority of New South Wales [2007] NSWSC 1270, especially the passage at [43] to [44].

Conclusion

1. It follows that the further amended summons will be dismissed and I will lift the stay of the operation of the Authority's decision to grant parole. I will order the Attorney to pay Mr Liew's costs of the proceedings. If either party seeks to contend for a different form of costs order then they should make application within the period allowed by the Uniform Civil Procedure Rules 2005 r 36.16(3B). A copy of any notice of motion that is filed should be provided to my Associate.

1. Accordingly I order that:

(1)   The Further Amended Summons be dismissed;

(2)   The Plaintiff pay the First Defendant's costs of the proceedings;

(3)   The order made on 9 October 2012 staying the decision of the Second Defendant dated 19 September 2012 be discharged.

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Amendments

12 October 2012 - Typographical error. Amend name of first defendant to "Chiew Seng Liew".

Amended paragraphs: 2

Decision last updated: 12 October 2012