Bain v The State of South Australia - [2020] SASC 234

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
BAIN v THE STATE OF SOUTH AUSTRALIA
[2020] SASC 234
Judgment of The Honourable Justice Stanley
10 December 2020
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - BOARDS, TRIBUNALS ETC: POWERS, DUTIES AND CONSTITUTION
This is an application for judicial review of a decision made by the Parole Board (the Board) to defer consideration of the applicant’s application for release on parole until he had completed a violence prevention program.
The applicant is a prisoner serving a sentence of five years and three months imprisonment with a non-parole period of three years and three months which commenced on 21 November 2016. The sentence was imposed for offences of aggravated intentionally causing harm, assault, disorderly behaviour, serious criminal trespass in a place of residence (three counts), dishonestly taking property (seven counts) and unlawful possession.
The applicant has engaged with all rehabilitation programs available to him both prior to and after sentencing. He has made considerable efforts to prepare for his release by seeking employment, commencing counselling with Relationships Australia and engagement after release with PsychMed. He has not completed the violence prevention program because, despite his requests, the Department for Correctional Services (DCS) did not make that program available to him during his non-parole period.
The applicant made an application for release on parole on 1 September 2019. His non-parole period expired on 20 February 2020. On 26 February 2020 the Board considered the status of his application for parole and “resolved to interview [the applicant] on a date to be advised after completion of the Violence Prevention Program, and receipt of the post treatment report, in relation to the following issues: risk of reoffending; violence; post-release plans.” The applicant has commenced the violence prevention program. It takes 10 months to complete. He is due to complete it in about May 2021. The applicant’s head sentence will be completed on 20 February 2022.
The applicant contends that the decision of the Board was unreasonable, failed to take into account all of his circumstances, and involved a denial of procedural fairness.
Held:
1. The Board was not required to accord the applicant procedural fairness when deferring its decision on his application for parole without affording him the opportunity to be heard orally.
2. Even if the Board was obliged to accord the applicant procedural fairness, he was granted an opportunity to be heard, albeit in writing only and without being informed that the Board might defer a decision on his application until he had completed the violence prevention program. The applicant was not denied procedural fairness by the Board's decision to defer consideration of his application for parole.
3. The decision of the Board to defer consideration of the applicant’s application for release on parole until he had completed the violence prevention program was not irrational or unreasonable. The Board’s decision had an evident and intelligible justification having regard to the scope, purpose and objects of the Act.
4. The application for judicial review is dismissed.
Correctional Services Act 1982 (SA) ss 60, 63, 67, 77, referred to.
Kioa v West (1985) 159 CLR 550; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; R (Osborn) v Parole Board [2014] AC 1115; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; Agius v The Parole Board of South Australia [2020] SASC 225, discussed.
C v Independent Commissioner Against Corruption [2020] SASCFC 57, considered.

BAIN v THE STATE OF SOUTH AUSTRALIA
[2020] SASC 234
STANLEY J:
Introduction

This is an application for judicial review of a decision made by the Parole Board (the Board) to defer consideration of the applicant’s application for release on parole until he had completed a violence prevention program.
The applicant contends that the decision of the Board was unreasonable, failed to take into account all of his circumstances, and involved a denial of procedural fairness.
The applicant seeks orders quashing the decision of the Board and directing that the Board forthwith consider the applicant’s application according to law.
The evidence
The applicant relied on an affidavit of his solicitor, Yan Robson, of 23 August 2020 that exhibited an affidavit of the applicant dated 21 August 2020. The applicant also tendered a letter from his solicitor to the Parole Board dated 21 February 2020.
The respondent relied on an affidavit of its Chair, E F Nelson QC, dated 28 September 2020.
The matter proceeded on the papers. The only factual issue was whether the Board was aware when it reviewed the applicant’s application that he had made previous attempts to commence the violence prevention program. I am satisfied that there was material before the Board, namely, the letter from the applicant’s solicitor of 21 February 2020 which advised the Board of previous attempts made by the applicant to undertake the program.
Facts
It is common ground that the applicant is a prisoner serving a sentence of five years and three months imprisonment with a non-parole period of three years and three months which commenced on 21 November 2016. The sentence was imposed for offences of aggravated intentionally causing harm, assault, disorderly behaviour, serious criminal trespass in a place of residence (three counts), dishonestly taking property (seven counts) and unlawful possession.
The applicant has engaged with all rehabilitation programs available to him both prior to and after sentencing. He has made considerable efforts to prepare for his release by seeking employment, commencing counselling with Relationships Australia and engagement after release with PsychMed. He has not completed the violence prevention program because, despite his requests, the Department for Correctional Services (DCS) did not make that program available to him during his non-parole period.
The applicant made an application for release on parole on 1 September 2019. His non-parole period expired on 20 February 2020. On 26 February 2020 the Board considered the status of his application for parole and “resolved to interview [the applicant] on a date to be advised after completion of the Violence Prevention Program, and receipt of the post treatment report, in relation to the following issues: risk of reoffending; violence; post-release plans.” The applicant has commenced the violence prevention program. It takes 10 months to complete. He is due to complete it in about May 2021. The applicant’s head sentence will be completed on 20 February 2022.
By a letter from the applicant’s solicitors to the Board of 21 February 2020 the applicant informed the Board, inter alia, that he had not been able to avail himself of the opportunity to undertake the violence prevention program and that he had previously applied to undertake the program. On the applicant’s behalf his solicitor submitted to the Board that the combination of the courses undertaken by the application in relation to domestic violence, drug and alcohol counselling and positive psychology were akin to the violence prevention program.
The issues
The issues on the application are:
1.Whether the Board has accorded the applicant procedural fairness by deferring its decision on his application for parole without affording the applicant the opportunity to be heard;
2.Whether the Board has acted unreasonably in requiring the applicant to complete the violence prevention program before being considered for release on parole; and
3.Whether the Board has failed to take into account all of the applicant’s circumstances, particularly the efforts he has made to address the causes of his offending behaviour and the failure by the DCS to provide the violence prevention program to the applicant during his non-parole period.
Submissions
The applicant submits that the Board has a duty to act fairly in making administrative decisions that affect his rights, interests and legitimate expectations in a direct and immediate way. That duty includes a requirement to accord him procedural fairness, including by granting him a hearing in person before deciding to defer its decision on his application for release on parole. The duty to accord procedural fairness to an applicant for parole coincides with the duties imposed on the Board by s 77 of the Correctional Services Act 1982 (SA) (the Act). The Board’s decision to defer a decision on his application for parole amounted to a constructive refusal of the application. Given the efforts that the applicant had made during his time in custody to progress his rehabilitation, in particular the applications that he made to undertake the violence prevention program at an earlier time, the Board’s decision was unreasonable in that it will result in the Board not considering his application for parole at the earliest until mid-2021 when his head sentence will expire on 20 February 2022. The Board decided to defer his application for release on parole without affording him the opportunity to be heard on whether the deferral of consideration of his application until after he had completed the violence prevention program was fair and reasonable given his personal circumstances.
The applicant submits that the Board’s decision to defer the application was, in the circumstances, unreasonable in the sense that it lacked an evident and intelligible justification having regard to the scope and purpose and the specific requirements of the Act.
The respondent submits that the application is misconceived. It proceeds on a foundation that the Board has refused the application for parole. The Board has not actually or constructively rejected the application. The application remains on foot.
The respondent submits that the Board was not under any statutory or legal obligation to afford the applicant an oral hearing before it decided to defer, until after he had completed the violence prevention program, consideration of his application for release on parole. Subject to the provisions of the Act, the Board may conduct its proceedings as it thinks fit. It was within the scope of the Board’s power to defer consideration of the application for release on parole until it had received a report that the applicant had satisfactorily completed the violence prevention program.
The respondent submits there is nothing unreasonable in the Board deciding that it will not consider granting the application for release on parole until such time as it is satisfied that the applicant has successfully completed the violence prevention program. The course adopted by the Board was not irrational or unreasonable. The decision to defer consideration of the application for release on parole does not meet the threshold required for the kind of unreasonableness that can justify the intervention of the Court. The applicant has a history of violent reoffending, parole breaches and cancellations, and presents a risk of violent offending if released on parole. The violence prevention program is specifically designed to reduce the risk of violent reoffending and is only available to a prisoner who is in custody. The next available program was not to commence until July 2020. Accordingly, the decision to defer consideration of the application for release on parole until that course had been completed was highly rational.
The respondent submits that what was important to the Board was that the applicant completed the program, not whether he or DCS was at fault for the fact that he had not completed the program earlier. Pursuant to s 67 of the Act the Board, in the exercise of its powers, had to give paramount consideration to the safety of the community.
Statutory framework
Section 60(7) of the Act provides:
(7)Subject to this Act, the Board, or a division of the Board, may conduct its proceedings as it thinks fit.
Section 63 provides:
(1) For the purposes of proceedings before the Board under this Act or any other Act, the Board may—
(a)     by summons signed on behalf of the Board by a member of the Board, require any person to attend before the Board; or
(b)     by summons signed on behalf of the Board by a member of the Board, require any person to produce any document relating to any matter before the Board; or
(c)     require any person to furnish the Board with a written report or written information in relation to any aspect of a matter before the Board; or
(d)     require any person appearing before the Board to answer on oath or affirmation any questions put by the Board that are relevant to any matter before the Board; or
(e)     require any written report or information to be verified by statutory declaration.
(2) A person who—
(a)     having been duly served with a summons, fails to attend before the Board, or fails to produce documents, as required by the summons; or
(b)     wilfully insults the Board or any member of the Board; or
(c)     misbehaves before the Board; or
(d)     interrupts the proceedings of the Board; or
(e)     refuses to be sworn or to affirm, or refuses to answer any question that the person would be compellable to answer before a court,
is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 3 months.
(3) The Board may (and must, if a prisoner of a prescribed class so requests) interview a prisoner at any time and, if such an interview is to be conducted outside the prison, may request the manager of the prison to cause the prisoner to be brought before the Board at a specified time and place.
(4) The Board is not obliged to interview a prisoner pursuant to the prisoner's request more than once in any year.
(5) For the purposes of this section, a prisoner is of a prescribed class if the prisoner is serving—
(a)     a sentence of life imprisonment; or
(b)     a sentence of indeterminate duration; or
(c)     a sentence of imprisonment for a term of more than one year in respect of which a non-parole period has not been fixed.
Section 67(3a) provides:
(3a)The paramount consideration of the Board when determining an application under this section for the release of a prisoner on parole must be the safety of the community.
Section 67(4) provides:
(4) The Board must also take the following matters into consideration when determining an application under this section:
(a)     any relevant remarks made by the court in passing sentence; and
(b)     the likelihood of the prisoner complying with the conditions of parole; and
(c)     where the prisoner was imprisoned for an offence or offences involving violence, the circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment (but the Board may not substitute its view of these matters for the view expressed by the court in passing sentence); and
(ca)    if, in relation to an offence for which the prisoner was imprisoned, there is a registered victim—the impact that the release of the prisoner on parole is likely to have on the registered victim and the registered victim's family; and
(d)     the behaviour of the prisoner while in prison or on home detention; and
(e)     the behaviour of the prisoner during any previous release on parole; and
(f)      any reports tendered to the Board—
(i) on the social background, or the medical, psychological or psychiatric condition, of the prisoner;
(ii) from the CE (including recommendations (if any) as to the conditions that should, in the opinion of the CE, be imposed by the Board on the prisoner's release on parole); and
(g)     the probable circumstances of the prisoner after release from prison or home detention; and
(h)     any other matters that the Board thinks are relevant.
Section 67(9) provides:
(9)The Board must, not more than 30 days after refusing an application by a prisoner for release on parole, notify the prisoner in writing of—
(a)     its refusal; and
(b)     the reasons for its refusal and of any matters that might assist the prisoner in making any further application for parole; and
(c)     a date, not less than six months or more than one year after the date on which the Board refuses the application, before which the Board will not accept any further application by the prisoner for release on parole.
Section 77(1) provides:
(1) The Board must, on receiving an application under this Part, notify the following persons of the receipt of the application and the day and time fixed for the hearing of the application:
(a)     the prisoner to whom the application relates;
(b)     the CE;
(c)     the Commissioner of Police;
(d)     if, in relation to an offence for which the prisoner was imprisoned, there is a registered victim—the registered victim;
(e)     if the prisoner to whom the application relates is a terror suspect—a terrorism intelligence authority.
Section 77(2) provides:
(2)     For the purposes of any proceedings under this Part—
(a)     the CE, or any employee of the Department authorised by the CE for the purpose, may make such submissions to the Board in writing as he or she thinks fit; and
(b)     the Commissioner of Police, or any police officer authorised by the Commissioner for the purpose, may make such submissions to the Board in writing as he or she thinks fit; and
(ba) the registered victim may make such submissions to the Board as he or she thinks fit in writing or, by prior arrangement with the Board, in person; and
(c)     the person to whom the proceedings relate may make such submissions to the Board in writing as he or she thinks fit.
Section 77(3) provides:
(3)The person to whom any proceedings before the Board relate is entitled to be represented in those proceedings by a legal practitioner.
Procedural fairness
The applicant contends that he should have been heard orally by the Board before it deferred consideration of his application for release on parole until he had completed the violence protection program.
The law presumes where the exercise of statutory power may adversely affect the interests of an individual or may affect those interests in a substantially different manner from the way in which it may affect the interests of the public, the repository of the power will ordinarily be obliged to observe the principles of natural justice as a precondition to the exercise of the power. As was observed by Brennan J in Kioa v West,[1] this presumption applies to any statutory power the exercise of which might affect the interests of an individual or affect his or her interests in a manner which is substantially different from the manner in which its exercise may affect the interests of the public.[2] But the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised.
[1] [1985] HCA 81, (1985) 159 CLR 550.
[2] [1985] HCA 81, (1985) 159 CLR 550 at 619.
The nature and scope of the power exercised by the Parole Board is determined by the Act. In deciding whether to release a prisoner on parole, the paramount consideration is the safety of the community.[3] Section 60(7) provides that, subject to the Act, the Board may conduct its proceedings as it thinks fit. The Board may interview a prisoner at any time,[4] but the Board is not obliged to interview a prisoner pursuant to the prisoner’s request more than once in any year.[5] Section 67(4) requires the Board to take certain prescribed matters into consideration in determining an application for release on parole. The Board must notify the prisoner who has made application for release on parole of the day and time fixed for the hearing of the application.[6] The applicant for parole may make such submissions in writing to the Board as he or she thinks fit.[7] The applicant is entitled to be represented by a legal practitioner in proceedings before the Board.[8] If the Board refuses an application for release on parole it must notify the prisoner in writing of its decision; the reasons for the decision; any matters that might assist the prisoner in making a further application; and a date, not less than six months or more than one year after the date on which the Board refused the application before which the Board will not accept any further application for parole.[9]
[3]    Correctional Services Act 1982 (SA) s 67(3a).
[4]    Correctional Services Act 1982 (SA) s 63(3).
[5]    Correctional Services Act 1982 (SA) s 63(4).
[6]    Correctional Services Act 1982 (SA) s 77(1)(a).
[7]    Correctional Services Act 1982 (SA) s 77(2)(c).
[8]    Correctional Services Act 1982 (SA) s 77(3).
[9]    Correctional Services Act 1982 (SA) s 67(9).

The exercise of the statutory power to decide an application for release on parole may adversely affect the interests of an applicant prisoner. I accept the terms of the Act do not displace the presumption in favour of an obligation on the part of the Board to observe the principles of natural justice in determining applications for release on parole. At issue is the content of that obligation.
In this case the applicant submits that he was not accorded procedural fairness because the Board failed to afford him the opportunity to make oral submissions before it decided to defer further consideration of his application for release on parole until he had completed the violence prevention program. The Board contends that it was not under an obligation to give the applicant an oral hearing before deciding whether to grant his application for release on parole. However, the Board accepts that before it decides whether to grant or refuse an application for parole an applicant must be afforded an opportunity to be heard either orally or in writing and with or without legal representation. That stage had not yet been reached. This case identifies a common issue arising in multi-stage decision-making processes. Such processes often require preliminary decisions that may, to some extent, affect the interests of individuals and do so adversely. That does not mean that an obligation to afford procedural fairness to a person affected arises at every stage of the decision-making process.[10]
[10] C v Independent Commissioner Against Corruption [2020] SASCFC 57 at [77].
In Ainsworth v Criminal Justice Commission[11] Mason CJ, Dawson, Toohey and Gaudron JJ said:[12]
It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process, viewed in its entirety, entails procedural fairness”.
[11] [1992] HCA 10, (1992) 175 CLR 564.
[12] [1992] HCA 10, (1992) 175 CLR 564 at 578.
While the presumption in favour of the existence of an obligation on the Board to afford the applicant procedural fairness is not displaced by the text of the Act; the nature of the power; and the administrative framework created by the Act within which the power to order release on parole is to be exercised; the content of the obligation does not extend to requiring the Board to afford the applicant an interview before it makes any decision that might affect the ultimate disposition of the application for release on parole. The terms of s 63 confers a discretionary power on the Board to afford an applicant for parole an interview.[13] It is not obliged to interview the applicant before it makes any preliminary decision on his or her application which might affect the applicant’s interests.
[13] Correctional Services Act 1982 (SA) s 63(3).
The applicant seeks to circumvent this problem by contending that the Board’s decision to defer consideration of whether to release him on parole until he had completed the violence prevention program amounted to a constructive refusal of the application for parole. I do not accept this submission.
The terms of s 67(3a) emphasises that the critical aspect of the power exercised by the Board to release a prisoner on parole is consistent with the protection of the community. The paramount consideration of the Board in determining an application must be the safety of the community. It is the decision whether an applicant is to be released on parole which is the ultimate exercise of the Board’s decision-making power. It is in making that decision that the Board is obliged to afford the applicant procedural fairness.
In making that decision the Board may make a number of anterior decisions in considering the application for parole. Those decisions may include whether to summons a person to attend before the Board; whether to summons any person to produce any document relating to any matter before the Board; whether to require any person to furnish the Board with a written report or written information in relation to any aspect of a matter before the Board; whether to require any person appearing before the Board to answer on oath or affirmation any questions relevant to any matter before the Board; whether to require any written report or information to be verified by statutory declaration;[14] whether to grant the applicant an interview,[15] or whether to defer consideration of the ultimate question until an applicant has completed a program. The Board is not obliged to afford the applicant a right to be heard before it decides such anterior questions. It is only in relation to the ultimate decision whether to grant or refuse the application for release on parole that the Board is obliged to accord the applicant procedural fairness. Decisions in relation to those anterior questions which might result in the deferral of consideration of the ultimate decision do not constitute a constructive refusal of the application for release on parole.
[14] Correctional Services Act 1982 (SA) s 63(1).
[15] Correctional Services Act 1982 (SA) s 63(3).
Accordingly, the Board was not required to accord the applicant procedural fairness when deferring its decision on his application for parole without affording him the opportunity to be heard orally. In any event, I am satisfied that the Board received a written submission from the applicant’s solicitor dated 21 February 2020 which informed the Board of the applicant’s inability, through no fault of his own, to undertake the violence prevention program during his non-parole period. Accordingly, even if the Board was obliged to accord him procedural fairness, he was granted an opportunity to be heard, albeit in writing only and without being informed that the Board might defer a decision on his application until he had completed the violence prevention program. Implicit in the written submission was the proposition that a decision on his application should not be deferred until he had completed the program. This was because it was not the applicant’s fault he had not undertaken the program and, in any event, he had undertaken other rehabilitative programs which were akin to the violence prevention program.
The applicant sought to rely on reasons of the UK Supreme Court in R (Osborn) v Parole Board.[16] Lord Reed, with whom the other judges of the court agreed, considered the circumstances in which at common law natural justice would require an oral hearing before determining an application by a prisoner for release on parole or transfer to open conditions. His Lordship held that while it was impossible to define exhaustively the circumstances in which an oral hearing would be necessary, they would include cases where (i) important facts were in dispute, or significant explanations or matters of mitigation were advanced, which needed to be heard orally in order fairly to determine their credibility, or (ii) the Board could not otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed, or (iii) a face-to-face encounter with the Board, or questioning of those who had dealt with the prisoner, was necessary to enable the prisoner’s case to be put effectively or tested, or (iv) in the light of the prisoner’s representations, it would be unfair for a decision to be made without an oral hearing. His Lordship held that the purpose of holding an oral hearing is not only to assist in the Board’s decision-making but also to reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him, where he had something useful to contribute. The question whether fairness requires a prisoner to be given an oral hearing is different from that as to whether his application is likely to succeed and cannot be answered by assessing that likelihood.
[16] [2014] AC 1115.
The principles expounded in Osborn are of limited assistance in the disposition of this application. First, in Osborn the Court was concerned with the position at common law. In this case the Court is considering the content of the principles of procedural fairness in the context of the exercise of a statutory power. As I have discussed, the presumption that the repository of a statutory power is obliged to observe the principles of procedural fairness can be displaced by the text of the statute, the nature of the statutory power to be exercised and the administrative framework created by the statute within which the power is to be exercised.[17] Accordingly, in deciding whether the Board was obliged to afford the applicant a hearing before deferring consideration for his application for release on parole, the Court’s focus is the terms of the Act. Second, the considerations of whether an oral hearing is necessary to comply with the requirements of procedural fairness was concerned with the ultimate decision to be made by the Parole Board on an application for release on parole or transfer to open conditions. Osborn was not concerned with the issue in this case, namely, whether subsidiary and anterior decisions made by the Board preliminary to the final decision whether to release a prisoner on parole or transfer a prisoner to open conditions required the Board to afford the applicant an oral hearing. In any event, in this case the Board had decided to interview the applicant once he had completed the violence prevention program.
[17] Kioa v West (1985) 159 CLR 550 at 619.
Accordingly, the applicant was not denied procedural fairness by the Board’s decision to defer consideration of his application for parole until he had completed the violence prevention program.
Whether the Board acted unreasonably
It is convenient to address together the other two issues of whether the Board acted unreasonably in requiring the applicant to complete the violence prevention program before being considered for release on parole, and whether the Board failed to take into account all of the applicant’s circumstances, particularly the rehabilitative efforts he made and the failure of the DCS to allow him to undertake the violence prevention program during his non-parole period.
Every statutory discretion, however broad, is constrained by law.[18] The law requires a standard of reasonableness in the exercise of a discretionary statutory power.[19] An administrative decision may be unlawful, by reason of being unreasonable, if no reasonable decision maker could have made it or it lacks an evident and intelligible justification.[20] In Minister for Immigration and Citizenship v Li & Anor[21] the joint judgment of Hayne, Kiefel and Bell JJ explained the principles by which the law constrains the unreasonable exercise of a statutory power. Their Honours said:[22]
[18] Minister for Immigration and Citizenship v Li & Anor [2013] HCA 18 at [23], (2013) 249 CLR 332 at 348.
[19] Minister for Immigration and Citizenship v Li & Anor [2013] HCA 18 at [64], (2013) 249 CLR 332 at 362-363.
[20] Agius v The Parole Board of South Australia [2020] SASC 225 at [44].
[21] [2013] HCA 18, (2013) 249 CLR 332.
[22] [2013] HCA 18 at [65]-[76], (2013) 249 CLR 332 at 363-367.
In Sharp v Wakefield, it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by “according to law”. It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be “exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself”. It is pointed out in Wade and Forsyth that the legal conception of discretion dates from at least the sixteenth century. In Sharp v Wakefield, Lord Halsbury LC had referred to Rooke’s Case, in which it was stated that the discretion of commissioners of sewers “ought to be limited and bound with the rule of reason and law”.
This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
In Klein v Domus Pty Ltd, Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority, requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.
Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area.
In Wednesbury, Lord Greene MR discussed the various grounds upon which an exercise of statutory power may be abused. His Lordship foreshadowed defining those grounds under a single head of unreasonableness, stating that it was “perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty … unreasonableness, attention given to extraneous circumstances, disregard of public policy” were all relevant to the question of whether a statutory discretion was exercised reasonably.
The test proposed by Lord Russell of Killowen CJ in Kruse v Johnson, a case which is cited chiefly in relation to the unreasonableness of the exercise of delegated law-making power, may avoid some of the circularity identified in the Wednesbury formulation. Lord Russell considered that unreasonableness was found where delegated laws were “partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; [or] if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men”.
In Secretary of State for Education and Science v Tameside Metropolitan Borough Council, Lord Diplock opined that unreasonableness would be shown where “no sensible authority acting with due appreciation of its responsibilities” would have so decided. This reflects the requirement of the law that a decision-maker understand his or her statutory powers and obligations. It is evident in the more specific errors, going to jurisdiction, which the law recognises and to which Lord Greene MR referred in Wednesbury, such as misdirecting oneself as to the operation of the statute, taking into account irrelevant considerations or failing to take into account relevant considerations.
The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that “all these things run into one another”. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
In Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation, reference was made to an analysis of three paradigm cases of unreasonableness which were thought to be consistent with a view of Lord Greene MR’s “doctrine”, as based on the law as to the misuse of fiduciary powers. The third paradigm involved the application of a proportionality analysis by reference to the scope of the power.
In the present case, regard might be had to the scope and purpose of the power to adjourn in s 363(1)(b), as connected to the purpose of s 360(1). With that in mind, consideration could be given to whether the Tribunal gave excessive weight – more than was reasonably necessary – to the fact that Ms Li had had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached. However, the submissions in this case do not draw upon such an analysis.
In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”. House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.
As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
[citations omitted]

The application of these principles was discussed recently by Doyle J in Agius v The Parole Board of South Australia.[23]
[23] [2020] SASC 225 at [45]-[50].
The Act provides a statutory scheme for deciding whether a prisoner should be released on parole. Its purpose and real object is to encourage the rehabilitation of prisoners insofar as that is consistent with the paramount consideration which is the protection of the safety of the community. The scope and nature of the powers conferred by the Act on the Board are to be construed in this context.
The decision of the Board to defer consideration of the applicant’s application for release on parole until he had completed the violence prevention program was not irrational or unreasonable. The applicant has a history of violent offending, parole breaches and cancellations. The Board had a violence risk screener report dated 20 December 2018 which assessed the applicant as being a high risk of violent reoffending should he not receive treatment and indicated he was suitable for participation in the violence prevention program. While the Board was aware the applicant had completed other rehabilitative programs, it did not consider those programs sufficiently addressed his specific criminogenic risk factors. The Board considered that required the successful completion of the violence prevention program. That program is specifically designed to reduce that risk. The applicant wished to undertake the program. The violence prevention program is only available in prison. The next course was due to commence in July 2020. In these circumstances the approach taken by the Board has a sufficient rational basis.
The applicant further submits that the approach taken by the Board was unreasonable because it reduced the amount of time he might have on parole under supervision before completing his head sentence. The applicant contends the Board was aware there was a significant chance that he would complete his head sentence before the program could be completed. I do not accept these submissions.
There is not a significant chance the applicant will complete his head sentence before completing the program. As at 26 February 2020 two years of his head sentence remained to be served. The Board knew the applicant was due to commence the program in July 2020. It knew the length of the program was 10 months.
The applicant also submits that this Court should intervene in the decision of the Board because that decision was inconsistent with the intention of Parliament and the sentencing judge. I do not accept this submission.
The Parliament has conferred on the Board a wide discretionary power to decide whether a prisoner should be released on parole once the prisoner has completed the non-parole period fixed by the sentencing judge. The Act dictates the factors to be considered by the Board in exercising that discretion. The paramount consideration is the safety of the community. There is no proper basis to conclude that the Board’s discretion is constrained in any way by the non-parole period fixed by the sentencing judge except to the extent that the Board cannot grant parole before the expiry of the non-parole period. No presumption is to be drawn from the fixing of the non-parole period by the sentencing judge that a prisoner should be granted parole upon the expiry of the non-parole period.
In the circumstances I am satisfied the Board’s decision had an evident and intelligible justification having regard to the scope, purpose and objects of the Act.
The applicant is aggrieved that his prospect of release on parole has been delayed by the failure of the DCS to arrange for him to undertake the violence prevention program during his non-parole period. He submits this was not his fault and accordingly is unfair. Again, the Board must exercise its decision-making power in accordance with the scope, purpose and object of the Act. That it was not the fault of the applicant that he had not undertaken the violence prevention program earlier is not a factor to be considered by the Board in deciding whether to grant him release on parole. Again, the paramount consideration for the Board in determining his application is the safety of the community. In addition, the Board must consider, where relevant, those matters prescribed by s 67(4). In this case it is relevant that the applicant had not completed a program which the Board considered was necessary for the protection of community safety. On that basis I reject the suggestion that the exercise of the Board’s discretion miscarried.
Conclusion
I would dismiss the application for judicial review. I would hear the parties as to costs.