Barreto v Attorney General for Western Australia
[2016] WASC 116
•11 APRIL 2016
BARRETO -v- ATTORNEY GENERAL FOR WESTERN AUSTRALIA [2016] WASC 116
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 116 | |
| Case No: | CIV:2137/2015 | 24 NOVEMBER 2015 | |
| Coram: | PRITCHARD J | 11/04/16 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Leave to proceed out of time refused Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | FREDERICK BARRETO ATTORNEY GENERAL FOR WESTERN AUSTRALIA GOVERNOR OF WESTERN AUSTRALIA |
Catchwords: | Judicial review Jurisdictional error Prisons Parole Where applicant serving sentence of strict security life imprisonment Where Prisoners Review Board recommended applicant's release on parole Where Attorney General advised Governor to reject Board's recommendation Judicial review Application in part made out of time O 56 r 5(2)(a) Rules of the Supreme Court 1971 (WA) Where substance of application had no prospect of success Leave to proceed out of time refused Statutory interpretation Whether Attorney General had power to give advice to Governor on acceptance or rejection of Board's recommendation Whether Attorney General required simply to forward Board's recommendation to Governor Whether applicant had right to parole once Board had recommended release Interpretation Act 1984 (WA) s 60 Constitution Act 1889 (WA) s 50(3) Constitutional convention that Governor acts on advice of Executive Council Judicial review Relevant and irrelevant considerations Behest or dictation Inflexible application of policy Whether Attorney General's advice to Governor was irrelevant consideration under the Offenders Community Corrections Act 1963 (WA) Whether Governor is required to exercise power personally Whether Governor acted under dictation of Attorney General Whether Governor fettered her discretion by following advice of Attorney General Constitutional convention that Governor acts on advice of Ministers Judicial review Natural justice Whether Attorney General or Governor obliged to afford applicant natural fairness Offenders Community Corrections Act 1963 (WA) s 50 Sentence Administration Act 2003 (WA) s 115 Where obligation to afford natural justice expressly excluded by statute Judicial review Relevant considerations Whether Governor failed to have proper regard to psychiatrist's view as to risk of reoffending Whether decision maker is required to afford relevant considerations proper, genuine and realistic consideration Statutory interpretation Transitional and saving provisions Whether s 34 and s 40D Offenders Community Corrections Act 1963 (WA) (OCC Act) have continued operation in respect of prisoners serving sentence of strict security life imprisonment Relationship of OCC Act to Sentence Administration Act 1995 (WA) Relationship of OCC Act to Sentence Administration Act 2003 (WA) |
Legislation: | Constitution Act 1889 (WA) Criminal Code (WA) Interpretation Act 1984 (WA) Offenders Community Corrections Act 1963 (WA) Rules of the Supreme Court 1971 (WA) Sentencing Administration Act 1995 (WA) Sentencing Administration Act 2003 (WA) Sentencing (Consequential Provisions) Act 1995 (WA) Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239 Carroll v Sydney City Council (1989) 15 NSWLR 541 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Craig v South Australia (1995) 184 CLR 163 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 New South Wales v Bardolph (1934) 52 CLR 455 Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1 Prisoners Review Board v Freeman [2010] WASCA 166 R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 Sieffert v Prisoners Review Board [2011] WASCA 148 Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 Victoria v Commonwealth (PMA Case) (1975) 134 CLR 81 Western Australia v Commonwealth (First Territorial Senators Case) (1975) 134 CLR 201 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
First Respondent
GOVERNOR OF WESTERN AUSTRALIA
Second Respondent
Catchwords:
Judicial review - Jurisdictional error - Prisons - Parole - Where applicant serving sentence of strict security life imprisonment - Where Prisoners Review Board recommended applicant's release on parole - Where Attorney General advised Governor to reject Board's recommendation
Judicial review - Application in part made out of time - O 56 r 5(2)(a) Rules of the Supreme Court 1971 (WA) - Where substance of application had no prospect of success - Leave to proceed out of time refused
Statutory interpretation - Whether Attorney General had power to give advice to Governor on acceptance or rejection of Board's recommendation - Whether Attorney General required simply to forward Board's recommendation to Governor - Whether applicant had right to parole once Board had recommended release - Interpretation Act 1984 (WA) s 60 - Constitution Act 1889 (WA) s 50(3) - Constitutional convention that Governor acts on advice of Executive Council
Judicial review - Relevant and irrelevant considerations - Behest or dictation - Inflexible application of policy - Whether Attorney General's advice to Governor was irrelevant consideration under the Offenders Community Corrections Act 1963 (WA) - Whether Governor is required to exercise power personally - Whether Governor acted under dictation of Attorney General - Whether Governor fettered her discretion by following advice of Attorney General - Constitutional convention that Governor acts on advice of Ministers
Judicial review - Natural justice - Whether Attorney General or Governor obliged to afford applicant natural fairness - Offenders Community Corrections Act 1963 (WA) s 50 - Sentence Administration Act 2003 (WA) s 115 - Where obligation to afford natural justice expressly excluded by statute
Judicial review - Relevant considerations - Whether Governor failed to have proper regard to psychiatrist's view as to risk of reoffending - Whether decision maker is required to afford relevant considerations proper, genuine and realistic consideration
Statutory interpretation - Transitional and saving provisions - Whether s 34 and s 40D Offenders Community Corrections Act 1963 (WA) (OCC Act) have continued operation in respect of prisoners serving sentence of strict security life imprisonment - Relationship of OCC Act to Sentence Administration Act 1995 (WA) - Relationship of OCC Act to Sentence Administration Act 2003 (WA)
Legislation:
Constitution Act 1889 (WA)
Criminal Code (WA)
Interpretation Act 1984 (WA)
Offenders Community Corrections Act 1963 (WA)
Rules of the Supreme Court 1971 (WA)
Sentencing Administration Act 1995 (WA)
Sentencing Administration Act 2003 (WA)
Sentencing (Consequential Provisions) Act 1995 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Leave to proceed out of time refused
Application dismissed
Category: B
Representation:
Counsel:
Applicant : In person
First Respondent : Mr C S Bydder
Second Respondent : Mr C S Bydder
Solicitors:
Applicant : In person
First Respondent : State Solicitor's Office
Second Respondent : State Solicitor's Office
Cases referred to in judgment:
A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491
Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239
Carroll v Sydney City Council (1989) 15 NSWLR 541
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Craig v South Australia (1995) 184 CLR 163
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
New South Wales v Bardolph (1934) 52 CLR 455
Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1
Prisoners Review Board v Freeman [2010] WASCA 166
R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Sieffert v Prisoners Review Board [2011] WASCA 148
Sue v Hill [1999] HCA 30; (1999) 199 CLR 462
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Victoria v Commonwealth (PMA Case) (1975) 134 CLR 81
Western Australia v Commonwealth (First Territorial Senators Case) (1975) 134 CLR 201
Table of Contents
1. Factual background 8
2. The grounds of review and the relief sought 10
3. The statutory framework applicable to consideration of parole for Mr Barreto 14
Key provisions of the OCC Act which continue to apply to the question whether
Mr Barreto should be granted parole 14
Why provisions of the OCC Act continue to apply in this case 15
4. The issues raised by Mr Barreto's grounds of review, and why the grounds of
review should be dismissed 18
(a) Whether the power to make a recommendation as to parole lay only with the
Board, with the result that the Attorney General had no power to give his own advice
to the Governor but was required by the OCC Act simply to forward the
recommendation made by the Board to the Governor (grounds of review 1, 2(a),
3(a), 3(b), 3(c), 3(d) and 5(d)) 18
(b) Whether the OCC Act required that the Governor's decision be informed by,
and only by, the recommendation made by the Board in the Board's report
(grounds 1, 2(b), 3(e), 4(a) and 5(d)) 24
(c) Whether under the OCC Act only the Governor had power to accept or
reject the Board's recommendation (so that the Attorney General had no power to
make the Attorney General's decision) (grounds 1 and 2(c)) 25
(d) Whether Mr Barreto had a right, pursuant to s 40D of the OCC Act, to be
granted parole by the Governor once the Board recommended that he be granted
parole (grounds 1 and 3(d)) 25
(e) Whether the Governor acted under dictation of the Attorney General
(ground 5(c)) 25
(f) Whether the Attorney General (in making the Attorney General's decision or
giving the Attorney General's advice), or the Governor, was required to afford natural
justice to Mr Barreto if they proposed to reject the recommendation of the Board set
out in the Board's report, and failed to do so (ground 1, 3(b) and 5(a)) 26
(g) Whether the Governor failed to have 'proper regard for professional
representatives who affirmed [Mr Barreto's] low risk to the community'
(grounds 5(b) and 5(e)) 27
Conclusion 29
1 PRITCHARD J: Mr Barreto is presently serving a sentence of strict security life imprisonment, which was imposed on 1 October 1991, following his conviction for wilful murder.1 On 3 October 2014, the Prisoners Review Board (the Board) determined that it would provide a report to the Attorney General, recommending that the Attorney General advise the Governor to order Mr Barreto's release on parole for a 3-year term (the Board's recommendation). The Board provided a report to the Attorney General dated 10 October 2014 which set out the Board's recommendation (the Board's report).2 On 23 October 2014, the Attorney General determined that he would not accept the Board's recommendation (the Attorney General's decision).
2 On 26 February 2015 and 6 May 2015, the Attorney General provided the Board's report to the Governor, together with his advice that the Governor should not take up the Board's recommendation to release Mr Barreto on parole (the Attorney General's advice).
3 On 9 June 2015, the Governor in Executive Council decided not to approve Mr Barreto's release on parole (the Governor's decision).
4 Mr Barreto now seeks judicial review of the Attorney General's decision, the Attorney General's advice, and the Governor's decision. He seeks a writ of certiorari, a writ of mandamus and declaratory relief.
5 For the reasons set out below, Mr Barreto has not established any jurisdictional error warranting the grant of prerogative or declaratory relief in respect of any of the decisions under challenge, and his application for judicial review must therefore be dismissed.
6 For completeness, I note that no issue was taken by the Respondents as to whether judicial review, or declaratory relief, would be available in relation to the decision of the Governor, were a proper basis made out for such relief. However, given the conclusion I have reached as to the merits of Mr Barreto's grounds of review, it is unnecessary to reach any conclusion on the question whether, and, if so, what, relief might be appropriate if it were established that the Governor's decision was ultra vires.3
7 In so far as the Attorney General's decision is concerned, there may be room for argument about the extent to which that decision (which was simply the Attorney General's conclusion that he did not accept the Board's recommendation) is itself amenable to the grant of relief, as distinct from the operative decision which ultimately resulted from it, namely the Governor's decision. That point was not the subject of submissions, however, and in view of the conclusion I have reached as to the merits of Mr Barreto's grounds of review, it is not necessary to reach any conclusion about that question.
8 To the extent that it was open to Mr Barreto to seek judicial review of the Attorney General's decision, that 'decision' was made on 23 October 2014, and he was advised of that decision in a letter from the Board dated 7 November 2014.4 Mr Barreto's application for judicial review of the Attorney General's decision was brought more than six months after that decision was made.5 In all of the circumstances the delay is not so significant, of itself, as to warrant the denial of an opportunity for judicial review of that decision. Whether Mr Barreto should be permitted to proceed with his application for review of that decision thus turns upon the merits of the application. As Mr Barreto's grounds of review, in so far as they touch on the Attorney General's decision, have no merit, his application for an extension of time to seek a review of that decision should in my view be dismissed.
9 In these reasons for decision, I deal with the following matters:
1. factual background;
2. the grounds of review and the relief sought;
3. the statutory framework applicable to consideration of parole for Mr Barreto; and
4. the issues raised by Mr Barreto's grounds of review, and why the grounds of review should be dismissed.
1. Factual background
10 The factual background to Mr Barreto's application for judicial review was set out in affidavits he swore on 16 July 2015 and 8 October 2015, and in an affidavit of Ms Lynette Margaret Stone sworn 2 September 2015.
11 Mr Barreto was first considered for parole in 2012. At that stage, the Board recommended that Mr Barreto not be released on parole, and the Attorney General agreed with that recommendation.
12 On 3 October 2014, the Board determined that it should prepare a report for the Attorney General recommending that he advise the Governor to order Mr Barreto's release on parole for a period of 3 years, subject to his compliance with a number of conditions.6 The Board wrote to Mr Barreto on the same day advising of its intended recommendation, the basis for it, and the conditions it proposed should be attached to any grant of parole.7 The Board's report, which it subsequently provided to the Attorney General, contained that recommendation, and set out the matters the Board had taken into account in reaching that view.8
13 On 23 October 2014, the Attorney General made the Attorney General's decision, in which he determined that he did not accept the Board's recommendation.9
14 On 26 February 2015, the Attorney General wrote to Mr Barreto to advise that he had considered the Board's report, and that he would forward his advice to the Governor for her consideration.10
15 On 26 February 201511 and 6 May 2015,12 the Attorney General provided the Board's report to the Governor, together with his advice that the Governor should not take up the Board's recommendation to release Mr Barreto on parole.
16 At various points in the course of his written submissions, Mr Barreto contended that the Attorney General had substituted his own decision or recommendation for that made by the Board. The evidence does not support that contention. Rather, the evidence supports the conclusion that the Board's report (in a complete and unredacted form13) was provided to the Governor, but that it was accompanied by the Attorney General's advice as to whether the Governor should order that Mr Barreto be released on parole.
17 The Governor's decision was made on 9 June 2015, when the Governor in Executive Council determined that an order for parole should not be made in respect of Mr Barreto.14
18 On 19 June 2015, the Board advised Mr Barreto that on 9 June 2015, the Attorney General had advised it that the Governor 'had accepted his advice not to accept the Board's recommendation for the following reasons'.15 Those reasons were then set out. It is not necessary to set them out in full here, but in summary they were that Mr Barreto was considered to be an unreliable historian in respect of his crime and his circumstances; that there was no evidence of him expressing remorse or appreciation for the gravity of his crime; that the most recent and most favourable expert report was significantly qualified and was not a complete comprehensive risk assessment, and did not instil confidence as to Mr Barreto's prospects; that other reports assessed Mr Barreto as presenting a moderate risk of violent reoffending; and that the crime for which Mr Barreto was sentenced was calculated, ruthless and brutal, and was committed to avoid detection for other offences.16
19 Finally, I note that on 19 June 2015, the Board decided to provide Mr Barreto with a copy of the Board's report (from which all victim and related information had been redacted).17 The redacted copy of the Board's report was provided to Mr Barreto under cover of a letter from the Board dated 6 July 2015.18
20 I note that neither a copy of the Attorney General's correspondence to the Governor, containing the Attorney General's advice, nor any documentation recording the Governor's decision (save for correspondence from the Board, to which I have referred) were in evidence. An application by Mr Barreto for discovery of those documents was resisted on a variety of bases, including the relevance of the documents (having regard to the grounds for judicial review) and a claim to public interest immunity, and Mr Barreto subsequently withdrew his discovery application.19
21 I note for completeness that when Mr Barreto filed his application for judicial review, he indicated that he sought an order that the maker of the challenged decision give adequate reasons for it. Mr Barreto set out the relief he sought in his application in the course of his written submissions, but made no mention of an order requiring the provision of reasons. I have therefore assumed that Mr Barreto no longer seeks an order to that effect. In any event, Mr Barreto was clearly advised of the reasons for the Board's recommendation, and in its letter of 19 June 2015, the Board advised Mr Barreto of the reasons why the Governor had declined to order his release on parole.
22 Finally, I note that the Governor's decision to refuse to order Mr Barreto's release on parole has considerable practical significance for him. He is not due to be considered for parole again until August 2017.
2. The grounds of review and the relief sought
23 Mr Barreto's grounds for review, as set out in his Amended Application for Judicial Review were as follows:
1. The Respondents failure to discharge duties and obligations within the applicable legislative provisions -
(a) Sections 34 and 40D [of the Offenders Community Corrections Act 1963 (WA) (the OCC Act)], and its equivalent under the SA Act 2003 [the Sentencing Administration Act 2003 (WA)].
2. The Applicant was the subject of a statutory report dated 3 October 2014 (the Board's Report, dated 10 October 2014) from the Prisoners Review Board of Western Australia (the Board) and the First Respondent erred in law in deciding not to accept the Board's Report, having satisfied himself that the requirements of the [OCC Act] were met -
(a) because the Board, as appointed by the Governor under section 103 of the SA Act 2003 is vested with the functions and powers, under sections 31 of the [OCC Act] and its equivalent under SA Act 2003, to make the Board's Report under section 34(5) of the [OCC Act], for the Governor's consideration, and
(b) because the Board's Report is a precondition for the Governor in exercising a discretionary power under section 40D of the [OCC Act] to accept or reject the Board's Report and Recommendation, and
(c) because the First Respondent exercised powers reposed in the Governor under the [OCC Act] or the applicable SA Act 2003 by rejecting the Board's Report, and otherwise fell into error of law by failing to afford natural justice to the Applicant.
3. The First Respondent erred in law, on the 26 February 2015, by making a decision regarding the Applicant's statutory review and failing to direct himself to forward the Board's Report -
(a) because sections 34 and 40D of the [OCC Act] does not give the First Respondent the power to exercise powers reposed in the Board, and
(b) because the First Respondent acted without power when he substituted the Board's Report and recommendation with his own and forwarded the same to the Governor, and otherwise fell into error of law by failing to afford natural justice to the Applicant, and
(c) because sections 34(5) and 40D of the [OCC Act] obligates the First Respondent to forward the Board's Report and Recommendation to the Governor, and
(d) because the First Respondent deprived the Applicant's rights, under section 40D of the [OCC Act], when he withheld the Board's Report, and
(e) because the First Respondent contaminated the Governor's decision and right to exercise powers to release the Applicant, pursuant to section 40D of the [OCC Act].
4. The Second Respondent erred in law by making an administrative decision, on the 9 June 2015, when Her Excellency accepted the First Respondent's ultra vires recommendation regarding the Applicant's statutory review -
(a) because the legislative branch of the Western Australian Government affirmed by enacting the [OCC Act] and the SA Act 2003 that the Board is to make a recommendation for the Governor and consented to Her Excellency exercising a discretionary power under section 40D of the [OCC Act], contingent upon the Board's Report.
5. The Respondents erred in law as contained in common law -
(a) The Applicant was denied natural justice.
(b) The Second Respondent failed to have proper regard for professional representatives who affirmed the Applicant's low risk to the community.
(c) The Second Respondent acted under dictation of the First Respondent.
(d) The decision by the Second Respondent to accept the First Respondent's recommendation was an improper exercise of the power conferred by the enactment under which the decision was purported to be made; and
(e) The Second Respondent failed to act in accordance with, or have regard to, the requirements of section 34(8)(b) of the [OCC Act].20
25 The grounds of review raise a number of issues, namely:
(a) whether the power to make a recommendation as to parole lay only with the Board, with the result that the Attorney General had no power to give his own advice to the Governor but was required by the OCC Act simply to forward the recommendation made by the Board to the Governor (grounds of review 1, 2(a), 3(a), 3(b), 3(c), 3(d) and 5(d));
(b) whether the OCC Act required that the Governor's decision be informed by, and only by, the recommendation made by the Board in the Board's report (grounds 1, 2(b), 3(e), 4(a) and 5(d));
(c) whether under the OCC Act only the Governor had power to accept or reject the Board's recommendation (so that the Attorney General had no power to make the Attorney General's decision) (grounds 1 and 2(c));
(d) whether Mr Barreto had a right, pursuant to s 40D of the OCC Act, to be granted parole by the Governor once the Board recommended that he be granted parole (grounds 1 and 3(d));
(e) whether the Governor acted under dictation of the Attorney General (ground 5(c));
(f) whether the Attorney General (in making the Attorney General's decision or giving the Attorney General's advice), or the Governor, were required to afford natural justice to Mr Barreto if they proposed to reject the recommendation of the Board set out in the Board's report, and failed to do so (grounds 1, 3(b) and 5(a));
(g) whether the Governor failed to have 'proper regard for professional representatives who affirmed [Mr Barreto's] low risk to the community' (grounds 5(b) and 5(e)).
26 It is convenient to assess the grounds of review by reference to these issues.
27 Before doing so, it is appropriate to note that in so far as Mr Barreto seeks to have the Court grant prerogative relief, he needs to establish that the decisions were infected by a jurisdictional error, or that procedural fairness was required to be afforded to him but was denied. In the case of a decision made in the exercise of a statutory power, a jurisdictional error will exist if the decision which was made fell outside the parameters of the decision making power granted by the statute. An error of law in the construction of the statutory provision which is the source of the decision maker's power may give rise to a jurisdictional error if that construction causes the decision maker to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or to make an erroneous finding or reach a mistaken conclusion.22
28 The jurisdictional errors alleged in the grounds of review (as distilled into the issues identified above) are that the Governor's decision and the Attorney General's decision and advice were not made or given in accordance with the requirements of the OCC Act, that the Governor's decision failed to take into account a relevant consideration, and that Mr Barreto was denied procedural fairness in respect of the Attorney General's decision and advice, and in respect of the Governor's decision.
29 In considering whether Mr Barreto has established any basis for the grant of the relief he seeks, the starting point is an analysis of the statutory framework for decisions regarding the grant of parole for a prisoner in Mr Barreto's position.
3. The statutory framework applicable to consideration of parole for Mr Barreto
30 When Mr Barreto was sentenced, the provisions of the OCC Act then in force applied to the grant of parole. Both Mr Barreto and counsel for the Respondents submitted that s 34 and s 40D of the OCC Act continued to govern the determination of whether Mr Barreto should be released on parole. That submission was, in my view, correctly made, having regard both to the relevant legislative provisions and to the decision of the Court of Appeal in Prisoners Review Board v Freeman.23However, as the relevant provisions in Freemanwere not precisely the same as those in the present case, it is appropriate briefly to outline the relevant provisions of the OCC Act that continue to apply to the consideration of parole for Mr Barreto.
Key provisions of the OCC Act which continue to apply to the question whether Mr Barreto should be granted parole
31 In respect of a prisoner serving a sentence of strict security life imprisonment, s 34(2)(d) of the OCC Act requires the Board to make a written report to the Minister (in this case the Attorney General) at the expiration of 20 years after the prisoner was sentenced, and as soon as practicable at three yearly intervals thereafter.24 I note that the Board's report in the present case was the first three yearly interval report prepared by the Board in respect of Mr Barreto.
32 Subsection 34(6) of the OCC Act provides that a report of that kind 'may contain a recommendation of the kind mentioned in [s 34(5)]', namely:
a recommendation as to whether or not the Governor should be advised to exercise any power vested in Her Majesty or the Governor to release the prisoner from prison and, if release is recommended, as to the conditions (if any) upon which the prisoner should be released.
33 In addition, s 34(8) of the OCC Act requires that in any such report made in respect of a prisoner serving a sentence of strict security life imprisonment, the Board must give express attention to: the nature and circumstances of the offence for which the sentence was imposed; the degree of risk that the release of the prisoner appears to present to the community or to any individual in the community; if release on parole is recommended, the period for which, and the extent to which, the prisoner should be supervised by a community corrections officer whilst on parole; and such other matters as the Board thinks fit.
34 The Governor's power to make a decision whether to order that a prisoner be released on parole is set out in s 40D of the OCC Act. Section 40D(1) provides:
Subject to subsections (2) and (2b), following the furnishing of a report by the Board under section 34(2)(b) or (d) or (3) the Governor may by order in writing direct that a prisoner undergoing a sentence of strict security life imprisonment or a sentence of life imprisonment be released from prison on parole at the time determined under the order and the prisoner shall be released accordingly.
Why provisions of the OCC Act continue to apply in this case
35 The OCC Act was repealed in 199525 and replaced by the Sentence Administration Act 1995 (WA) (the 1995 SA Act). However, s 87 of the Sentencing (Consequential Provisions) Act 1995 (WA) provided for the continued operation of the OCC Act, and in particular s 34 and s 40D of the OCC Act, in respect of prisoners serving sentences of strict security life imprisonment (as Mr Barreto is), subject to certain exceptions. Those exceptions were that any release of such a prisoner on parole under the OCC Act would be effected by means of a parole order made by the Governor under the 1995 SA Act; the parole period for that parole order would be that provided by s 24(3) of the 1995 SA Act; and div 6, div 7 and div 8 of pt 3 and pt 4 to pt 11 of the1995 SA Act applied to the person and the parole order.
36 The 1995 SA Act was itself repealed in 200326 and replaced by the Sentencing Administration Act 2003 (WA) (the 2003 SA Act). However, the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (SLAR Act) provided for the continued operation of s 87 of the Sentencing (Consequential Provisions) Act 1995 (WA), albeit with some modifications. Clause 13(6) of sch 1 to the SLAR Act provided:
If immediately before commencement a person to whom section 87 of the [1995 SA Act] applies is in custody subject to the sentence referred to in section 87, then on and after commencement section 87, other than paragraphs (a), (b) and (c), continues to apply but -
(a) Any release of the person on parole in respect of the sentence is to be by means of a parole order made by the Governor under Part 3 of the [2003 SA Act];
(b) The parole period for the parole order is that provided by section 26(3) of the [2003 SA Act]; and
(c) Part 3 Divisions 6 to 11 and Parts 4 to 10 of the [2003 SA Act] apply to and in respect of the person and the parole order.
37 In respect of a prisoner serving a sentence of strict security life imprisonment under the OCC Act, the process by which a determination is made as to whether that prisoner is granted parole continues to be governed by the OCC Act (particularly pt III). However, the operation of s 34 and s 40D of the OCC Act is modified so that if the prisoner is released on parole, the order made will be a parole order made under pt 3 of the 2003 SA Act (rather than an order made under s 40D(1) of the OCC Act) and the period of parole will be that set under s 26(3) of the 2003 SA Act.27 Part 3 div 6 to div 11 and pt 4 to pt 10 of the 2003 SA Act otherwise apply to the prisoner and his or her parole.
38 Amongst the latter provisions is s 102 of the 2003 SA Act which provides that the Prisoners Review Board established under the 2003 SA Act is taken to be a continuation of the Parole Board established under the OCC Act. Consequently it is the Board (rather than the Parole Board) which makes the recommendation to the Minister.
39 Finally, it is necessary to mention both s 50 of the OCC Act, and s 115 of the 2003 SA Act. Section 50 of the OCC Act expressly excluded the rules of natural justice (including any duty of procedural fairness) in relation to the doing or omission of any act, matter or thing under pt III of the OCC Act by the Governor, the Board, or the Attorney General. Similarly, s 115 of the 2003 SA Act provides that the rules of natural justice (including any duty of procedural fairness) do not apply to or in relation to the doing or omission of any act, matter or thing under pt 2 to pt 6 by the Governor, the Attorney General or the Board.
40 In Freemanthe Court of Appeal held that a decision by the Governor under s 40D(1) of the OCC Act to release a prisoner on parole was a
decision made in accordance with, pursuant to, or by virtue of the 2003 SA Act, and is thereby a decision within the meaning of s 107B of that Act.
Similarly, and by necessary implication, a decision by the Governor not to release, on parole, a prisoner serving a life sentencing following the furnishing of a report under s 34(2)(b), (d) or (3) of the OCC Act would also, in my opinion, be a decision 'made under' the 2003 SA Act.28
41 Consequently, the Court of Appeal held that the requirement for reasons under s 107B of the 2003 SA Act applied in respect of those decisions.29
42 The Court of Appeal also held that a decision by the Board to include a recommendation in its report, prepared for the consideration of the Governor, as to whether the prisoner should be granted parole, was expressly authorised by s 34(6) of the OCC Act, but was also 'impliedly authorised by the 2003 SA Act'30 and was thus also able to be characterised as a decision made under the 2003 SA Act.31 The Court's reasoning was that in so far as the Governor's decision under s 40D(1) of the OCC Act to release a prisoner constituted an order under pt 3 of the 2003 SA Act,
the precondition for the making of the order, ie, the report by the Board under s 34(3) of the OCC Act, is a step impliedly made in accordance with pt 3 of the 2003 SA Act. As a s 34(3) report may contain a recommendation by reason of s 34(6) of the OCC Act, any recommendation in such a report is itself impliedly authorised by pt 3 of the 2003 SA Act.32
43 Consequently, reasons were required to be provided in respect of the Board's decision. The Court of Appeal noted that although the Board was required to supply reasons to the prisoner, the Minister was required to inform the Board of the Governor's reasons to enable the Board to provide those reasons to the prisoner.33
44 As I have already observed, the prisoner in Freemanwas not in entirely the same position as Mr Barreto, but nevertheless the same reasoning applies, and the same conclusions follow, in view of the operation of cl 13(6) of the SLAR Act.
4. The issues raised by Mr Barreto's grounds of review, and why the grounds of review should be dismissed
45 Despite the careful preparation which Mr Barreto had evidently put into his written and oral submissions, his grounds of review must be dismissed because they proceed upon a fundamental misconception about the operation of the relevant provisions of the OCC Act. In short, Mr Barreto's case was that the OCC Act required that the Board's report be prepared for consideration by the Governor, and that the role of the Attorney General was confined to that of a mere conduit for the provision of the Board's report to the Governor, with the result that the Attorney General was not entitled to provide advice to the Governor other than advice that the Governor should accept the Board's recommendation. That view of the legislation was misconceived because, as I explain below, it failed to have regard to the meaning of the words used in the OCC Act, within their context.
(a) Whether the power to make a recommendation as to parole lay only with the Board, with the result that the Attorney General had no power to give his own advice to the Governor but was required by the OCC Act simply to forward the recommendation made by the Board to the Governor (grounds of review 1, 2(a), 3(a), 3(b), 3(c), 3(d) and 5(d))
46 Mr Barreto submitted that s 34(6) of the OCC Act (which refers in turn to s 34(5) of the OCC Act):
is explicit in vesting the Board with the power to make a report to the Minister, containing a recommendation for the Governor. Further, a reference to the Governor is taken [by s 50(3) of the Constitution Act 1889 (WA)] to be a reference to the person, ex officio, making a decision, administrative in character. Therefore, the exercise of power is one of defined powers and it is an error of law to go beyond them.' (emphasis in original, footnotes omitted).34
47 Mr Barreto also submitted that the Board's recommendation 'represents the advice portion of the report for the Governor'.35 In addition, Mr Barreto submitted that '[o]nly the Governor may reject the Board's recommendation, on whether to exercise her statutory powers'.36 In order to understand the process set out by Parliament for consideration of the question of parole for a prisoner in Mr Barreto's position, it is necessary to ascertain the meaning of the words used in s 34 and s 40D of the OCC Act. The principles governing the construction of a statute are well established. The task of statutory construction begins and ends with the words used, but those words must be considered in their context. That context includes the legislative history, the general purpose, and the policy of the provision.37
48 In my view, on the proper construction of the applicable provisions of s 34 and s 40D of the OCC Act, what is contemplated is that the Governor's decision as to whether a parole order should be made will be reached by the Governor acting with and on the advice of the Executive Council. The advice of the Executive Council, provided through the Minister, will be informed by information contained in the report by the Board to the Minister. That report may (but not must) contain a recommendation as to whether the Governor should be advised to release a prisoner on parole. I have reached that conclusion about the construction of the provisions for the following reasons.
49 First, the starting point is that in so far as the decision as to parole is made by the Governor, under s 40D(1), the reference to the 'Governor' is a reference to the Governor acting with the advice and consent of the Executive Council. Mr Barreto submitted that the reference to the Governor was a reference to the Governor in his or her personal capacity. I am unable to agree. Section 60 of the Interpretation Act 1984 (WA) (the Interpretation Act) provides that when in a written law the Governor is required or authorised to do an act, that 'shall be taken to mean that such act … may or shall be done by the Governor with the advice and consent of the Executive Council'. The provisions of the Interpretation Act apply to every written law, whether the law was enacted, passed, made or issued before or after the commencement of the Interpretation Act unless the law in question makes express provision to the contrary, or its intent and object, or something in its subject or context is inconsistent with such application.38 In my view, nothing in the OCC Act makes an express provision to the contrary or is inconsistent with construing the references to the 'Governor' as references to the Governor acting with the advice and consent of the Executive Council.
50 I hasten to add that there is nothing unusual about the requirement that the Governor's decision under s 40D(1) (and in respect of any parole order which may be made under the 2003 SA Act) is to be made on the advice of the Executive Council. The constitutional convention, which lies at the heart of our system of representative government, is that all powers vested in the Governor, other than reserve powers, are to be exercised on ministerial advice, which is usually (but not always) provided through the Executive Council.39 The existence of that longstanding constitutional convention, in conjunction with s 60 of the Interpretation Act, suggests that a legislative intention to depart from that position, and to vest in the Governor a power to be exercised in his or her personal capacity, and without, or contrary to, ministerial advice, would need to be very clearly indicated before a court would conclude that that was the intended construction.
51 For completeness, I should add that s 50(3) of the Constitution Act 1889 (WA), on which Mr Barreto relied, does not support a contrary view. That subsection simply identifies the Governor. It says nothing about the manner in which the Governor's power under State legislation to do any act, matter or thing is to be exercised.
52 Mr Barreto also submitted that if the decision of the Governor had been intended by Parliament to be a decision by the 'Government of the State' (by which I understood him to mean a decision made on the advice of the Executive Council) it would have been published in the Government Gazette, whereas parole decisions are not published in the Gazette.40 That consideration is not determinative of the nature of the decision making power. Rather, the terms of the OCC Act, on their proper construction, are determinative.
53 Secondly, the requirement on the Board under s 34(2)(d) of the OCC Act is a requirement to furnish a written report to the Minister. Had it been intended by the Parliament that the Governor, acting in a personal capacity (that is, other than on the advice of the Executive Council) would make a decision as to parole for a prisoner, it would not have been necessary for the Board's report to be provided to the Minister. The report could instead have been provided directly to the Governor.
54 Thirdly, a recommendation made by the Board under s 34(5) is a 'recommendation as to whether or not the Governor should be advised to exercise any power … to release the prisoner from prison'. Section 34(5) thus clearly contemplates that the Board's recommendation will be distinct from any advice which might be provided to the Governor as to how the power to release a prisoner on parole should be exercised in the particular case. Having regard to the requirement that the Board's report be provided to the Minister, it is clear that Parliament contemplated that it would be the Minister who would provide advice to the Governor as to whether the prisoner should be released on parole. Furthermore, the recommendation of the Board is not a recommendation as to whether the prisoner should be released on parole, but is a recommendation to the Minister as to whether the Governor should be advised to exercise the power to release the prisoner on parole.
55 I note that the fact that s 34(5) contemplates that the Governor will be provided with advice from the Minister is entirely consistent with the proposition that in making a decision as to parole, the Governor will act with the advice and consent of the Executive Council.
56 Fourthly, s 40D(1) does not support the conclusion that the only material on which the Governor is to act in determining whether to order the release of a prisoner on parole is the Board's report. That subsection makes no reference to the Governor's receipt of advice from the Minister, but empowers the Governor to order that a prisoner be released on parole 'following the furnishing of a report by the Board under section 34(2)(b) or (d) or (3)'. At first blush, s 40D(1) (if read in isolation) might be thought to suggest that the Governor is only to act on consideration of a report by the Board. However, as the authorities to which I have referred at footnote 37 make clear, a legislative provision must be construed within its context. The statutory context of s 40D(1) includes s 34(5) of the OCC Act and s 60 of the Interpretation Act. In light of that context, the words 'following the furnishing of a report by the Board … the Governor may ...' should be understood as temporal in nature. That is, the Governor's power to order the release on parole of a prisoner undergoing a sentence of strict security life imprisonment or of life imprisonment cannot be exercised at any time, but may only be exercised after a report from the Board has been received. The timing of those reports is dictated by s 34(2) and (3). In addition, the requirement that the Governor's decision be made following the provision of a report by the Board ensures that the Governor's decision is informed by the matters to which the Board is required to give its express attention pursuant to s 34(8) of the OCC Act.
57 Fifthly, having regard to the requirement in s 34(8) of the OCC Act that the Board give express attention in its report to the matters there set out, it is in my view apparent that the function served by the Board's report is to set out the matters which Parliament considered would be relevant in every case in which a prisoner's parole is to be considered, together with any other matters the Board considers to be of note in a particular case. Those matters will inform the Minister's consideration of the advice which should be given to the Governor.
58 Sixthly, nothing in the OCC Act warrants the conclusion that the Minister is required to accept the Board's recommendation as to the advice which should be provided to the Governor. To 'recommend' something is to 'commend by favourable representations'; 'to represent or urge as advisable or expedient' and 'to advise (a person, etc, to do something)'.41 Implicit in the provision of a 'recommendation' is the possibility that the recipient of that recommendation may accept or reject it. Accordingly, in my view, while the Minister must have regard to the recommendation of the Board (as he did in this case42), and to the basis for that recommendation, the Minister is entitled to provide advice to the Governor which is contrary to the Board's recommendation.
59 Seventhly, the construction outlined above is consistent with observations made by the Court of Appeal in Freeman. In the course of his reasons, Murphy JA (with whom Pullin JA and Newnes JA agreed) considered the use to which a report prepared by the Board was to be put under the OCC Act, and in particular, its consideration by the Minister. His Honour observed:43
In my view, the Minister is obliged to have regard to any recommendations in a report which is furnished to the Minister pursuant to s 34(3) of the OCC Act. My reasons for this conclusion are as follows. First, the Governor may not exercise any power of release until after the Board has furnished a report. Although a recommendation by the Board is not, in itself, a precondition to the exercise of power by the Governor, the fact that the furnishing of a report is a precondition, and the fact that the Board is authorised to make a recommendation in the report to be furnished, provides a basis for inferring that if a report is received by the Minister containing a recommendation, regard must be had to it by the Minister. Secondly, moreover, the recommendation provided for by s 34(6) is in the nature of a recommendation to the Minister as to whether or not the Governor should be advised to exercise a power to release the prisoner. The fact that the recommendation is made for the purpose of the Governor receiving advice indicates that the recommendation is to be considered by the Minister. Thirdly, a report by the Board to the Minister and any recommendation therein will address a number of considerations 'personal to' the prisoner (in the words of Mason CJ in South Australia v O'Shea(387)) or 'specific to' the prisoner (in the words of the majority in Hot Holding174), including his behaviour in prison, the likelihood of his reoffending, and related matters. Fourthly, the legislature has provided no other means for the Minister to be informed on matters specific to the prisoner. Fifthly, the report and recommendation is to the Minister responsible for the administration of the OCC Act.
Finally, s 40D(1) is to be construed on the basis that the Governor orders the release of a prisoner under that section with the advice and consent of the Executive Council. The Executive Council is 'to advise the Governor in the government of the State': cl VI Letters Patent 14 February 1986 (gazetted 28 February 1986). A decision by the Governor to release a prisoner on parole under s 40D(1) is the formal act reflecting advice tendered by the Executive Council to the Governor: Thongchua v Attorney-General for the Commonwealth of Australia (1986) 11 FCR 187 191-192; Steiner v Attorney-General (Commonwealth) (1983) 74 FLR 89, 93. The power to release is reposed in 'a political branch of government': South Australia v O'Shea, 410.
60 I note that in Freemanthe Court assumed that the Minister had the authority of the Cabinet to decide whether the Executive Council should or should not tender advice to the Governor to release the prisoner.44 Murphy JA noted that
[w]hilst in this case there is no legislative provision requiring the Governor to act on the advice of the Minister alone (compare the relevant legislative provision considered in Thongchua), on the assumption referred to … above, in substance the decision whether or not to release the prisoner the subject of the Board's report and recommendation is that of the Minister.45
61 In the present case, in the absence of any evidence to the contrary, it should be assumed that the Attorney General had the authority of the Cabinet to provide advice to the Governor in relation to Mr Barreto's release.
62 Accordingly, Mr Barreto has not established that the Attorney General's decision was made, or that the Attorney General's advice was given, contrary to the requirements of s 34(6) or s 40D(1) of the OCC Act.
(b) Whether the OCC Act required that the Governor's decision be informed by, and only by, the recommendation made by the Board in the Board's report (grounds 1, 2(b), 3(e), 4(a) and 5(d))
63 The grounds of review which raise this issue can be characterised as raising the question whether the Governor's decision was lawful - in the sense that it complied with the requirements of the OCC Act - or whether the Governor took into account an irrelevant consideration, namely the Attorney General's advice. With regard to the latter point, an administrative decision maker will make a jurisdictional error if, in reaching a decision, he or she fails to take into account a consideration which he or she was bound to take into account (a relevant consideration) or takes into account a consideration which he or she was bound not to take into account (an irrelevant consideration).46 The jurisdictional error arises because in giving the decision maker the power to make the decision, the statute required that the decision would be reached following a consideration of the relevant considerations, and without regard to irrelevant considerations, and the decision maker failed to exercise his or her decision making power in that way.
64 A decision maker will not be bound to take a consideration into account, or to ignore it, unless the statute expressly so requires, or the requirement to take the consideration into account, or take no account of it, can be implied from the subject matter, scope and purpose of the statute.47
65 For the reasons outlined above, nothing in the OCC Act supports the conclusion that the Governor's decision as to whether a parole order should be made is to be informed only by the recommendation made by the Board in its report. The OCC Act clearly contemplates that the Governor's decision will be informed by the advice of the Minister and that the Governor will act with and on the advice of the Executive Council.
66 Mr Barreto has not established that the Governor's decision was tainted by jurisdictional error.
(c) Whether under the OCC Act only the Governor had power to accept or reject the Board's recommendation (so that the Attorney General had no power to make the Attorney General's decision) (grounds 1 and 2(c))
67 For the reasons given above, the Board's recommendation was a recommendation made to the Attorney General in relation to how the Attorney General should advise the Governor in respect of Mr Barreto's parole. No question arises of the Governor accepting or rejecting that recommendation.
(d) Whether Mr Barreto had a right, pursuant to s 40D of the OCC Act, to be granted parole by the Governor once the Board recommended that he be granted parole (grounds 1 and 3(d))
68 For the reasons given above, the fact that the Board recommends that the Governor be advised to make an order for the release of a prisoner on parole does not give rise to any right for that prisoner to be released on parole. Whether a parole order is made in respect of a prisoner is a matter for the Governor acting with and on the advice of the Executive Council.
(e) Whether the Governor acted under dictation of the Attorney General (ground 5(c))
69 Mr Barreto submitted that the Governor had invalidly fettered the discretionary power vested in her under s 40D(1) of the OCC Act by acting on the advice of the Minister. He relied, by analogy, on those authorities which establish that a decision maker will make a jurisdictional error if, in the exercise of a discretionary power, he or she adopts an inflexible policy which is applied in every case without regard to the particular circumstances of that case.48
70 The contention that the Governor acted under dictation is founded on the misconception that under s 40D(1) of the OCC Act, the Governor exercises a personal discretion, which is not exercised on the advice of the Executive Council. For the reasons set out above, s 34(5) and s 40D(1) contemplate that the Governor will receive advice from the Minister and will act with and on the advice of the Executive Council.
(f) Whether the Attorney General (in making the Attorney General's decision or giving the Attorney General's advice), or the Governor, was required to afford natural justice to Mr Barreto if they proposed to reject the recommendation of the Board set out in the Board's report, and failed to do so (ground 1, 3(b) and 5(a))
71 Mr Barreto's contention appeared to be that there was a breach of the requirements of natural justice in two respects, namely that the Attorney General did not provide reasons for his decision to reject the Board's recommendation, and that the Attorney General 'sought to present new material to the Governor'49 to which Mr Barreto was not given an opportunity to respond. These contentions must be rejected, for three reasons.
72 First, s 50 of the OCC Act (to the extent that it continues to apply, by virtue of cl 13(6) of the SLAR Act) and s 115 of the 2003 SA Act leave no room for doubt that the rules of natural justice (including any duty of procedural fairness) do not apply in relation to the doing or omission of any act, matter or thing under pt III of the OCC Act, or pt 2 to 6 of the 2003 SA Act, by the Governor, the Minister or the Board.
73 Secondly, at various points in his written submissions Mr Barreto submitted that the Attorney General failed to provide reasons as to why he did not accept the Board's recommendation. The evidence did not support that submission. As I noted earlier (at [18]) reasons were provided to Mr Barreto in the Board's letter of 19 June 2015.
74 Thirdly, in so far as Mr Barreto submitted that the Minister sought to present new material to the Governor, nothing in the evidence suggests that the Minister provided new factual material to the Governor. It is, however, clear that the Minister provided his own advice as to whether the Governor should order Mr Barreto's release on parole. That was consistent with the decision making process established under the OCC Act.
(g) Whether the Governor failed to have 'proper regard for professional representatives who affirmed [Mr Barreto's] low risk to the community' (grounds 5(b) and 5(e))
75 Mr Barreto's complaint is that the Board recommended that the Governor be advised to make a parole order in relation to Mr Barreto having regard to the report of an expert who had assessed Mr Barreto as presenting a low risk to the community. Mr Barreto submitted that the Governor's decision not to order his release on parole suggested that the Governor had failed to give any consideration, or any proper, genuine and realistic consideration to this opinion, and thus to the merits of his case.50
76 Mr Barreto also submitted that in the situation where his future risk of reoffending had been assessed as low, and he had no further or outstanding treatment needs, to rely on any other considerations as warranting the conclusion that he should not be released on parole would be to take into account irrelevant considerations.51
77 I have already made mention of the principles concerning 'relevant' and 'irrelevant' considerations in administrative decision making. In every case, the question whether the decision maker is bound to take into account a particular consideration, and the content of the obligation to do so, must be determined by ascertaining what the statute requires, through a process of statutory construction.
78 There are divergent authorities in relation to the content of a requirement for a decision-maker to take into account relevant considerations when exercising a statutory power.52 One line of authority is to the effect that provided the relevant matter is given some consideration, the duty is discharged.53 The alternative line of authority, which has received some support in this State,54 is to the effect that the requirement to take into account a relevant consideration is a requirement to give proper, genuine and realistic consideration to the relevant matter.
79 The matters to which the Board is required, pursuant to s 34(8) of the OCC Act, to give express consideration in the Board's report are clearly matters which are 'relevant considerations' for the purposes of the Governor's decision as to whether a prisoner should be granted parole. Those matters include the degree of risk that the release of the prisoner appears to present to the community or to any individual in the community.55 However, the list of matters in s 34(8) is not exhaustive of the matters which may properly be considered in determining whether a prisoner should be released on parole. That much is clear from the terms of s 34(8) itself, which permit the Board to raise in its report any other matter that the Board thinks fit.56
80 Mr Barreto has not established that the Governor failed to take into account a relevant consideration - namely the opinion of the expert who suggested that he presented a low risk to the community - or that the Governor failed to have proper regard to that evidence. The Board's report, which was part of the material before the Governor, discussed various psychological and psychiatric reviews of Mr Barreto, and the opinions expressed about his risk of reoffending, including the opinion to which Mr Barreto referred in his submissions.
81 In addition, the reasons provided to Mr Barreto as to why the Governor, acting on the Attorney General's advice, decided not to accept the Board's recommendation clearly indicate that the evidence as to Mr Barreto's risk to the community was given consideration. Whatever be the test as to the degree of consideration required, it is apparent that the opinion that Mr Barreto posed a low risk of reoffending was given proper and genuine consideration. The fact that that opinion was not considered determinative of the question whether Mr Barreto should be released on parole does not detract from that conclusion.
82 It is apparent from the reasons provided that the relevant opinion was not considered determinative because the opinion was a qualified one, and because there were other reports which assessed Mr Barreto as posing a moderate risk of violent reoffending. The overall weight given to the evidence as to Mr Barreto's risk of reoffending was a matter for the Governor, acting on the Minister's advice. It is not the role of the Court in an application for judicial review to consider whether that weight was appropriate.57 To do so would be to descend into merits review.
83 The reasons disclose that other considerations were taken into account, apart from the expert's opinion that Mr Barreto posed a low risk of reoffending. Those considerations were the heinous nature of the crime committed by Mr Barreto, whether he had expressed remorse or an appreciation for the gravity of his crime, and the fact that he had presented conflicting accounts of his crime and personal circumstances over the years. There is nothing in the OCC Act to suggest that Parliament considered those considerations to be 'irrelevant', so that they could not be taken into account. Some of those other considerations were clearly relevant considerations.58 And in any event, the two categories of 'relevant' and 'irrelevant' considerations do not constitute an exhaustive description of matters which may be considered by a decision maker. There will, in very many cases, be a category of legitimate factors, consideration of which is neither mandated nor precluded.59 If a decision-maker takes such matters into account, or if it does not take them into account, in making its decision, it will not, for that reason, fall into jurisdictional error.
Conclusion
84 Mr Barreto has not established any basis for the grant of prerogative or declaratory relief. His application for judicial review must be dismissed.
1 The sentence was imposed pursuant to s 282(a) of the Criminal Code (WA) as it then stood.
2 Affidavit of Lynette Margaret Stone sworn 2 September 2015, Annexure LMS1.
3 Cf R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, 192 - 193 (Gibbs CJ), 215 - 216 (Stephen J), 217 (Mason J), 230 - 231 (Murphy J), 264 - 265 (Aickin J), 283 - 287 (Wilson J); FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 351 (Gibbs CJ), 372 (Mason J), 386 - 387 (Aickin J), 404 (Wilson J), 419 - 421 (Brennan J); Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, 146 (Gleeson CJ, Gummow, Kirby & Hayne JJ); Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1, 89 - 90 [235] (Gummow, Crennan & Bell JJ).
4 Affidavit of Lynette Margaret Stone sworn 2 September 2015, Annexure LMS4.
5 Order 56 r 5(2)(a) of the Rules of the Supreme Court 1971 (WA) permits the Court to give an applicant leave to proceed with an application which is brought outside the 'limitation period', which is defined in O 56 r 1(1) as 6 months after the later of the date on which the relevant decision was made, or the date on which the applicant became aware of it.
6 Affidavit of Lynette Margaret Stone sworn 2 September 2015, Annexure LMS1 [9].
7 Affidavit of Lynette Margaret Stone sworn 2 September 2015, Annexure LMS2.
8 Affidavit of Lynette Margaret Stone sworn 2 September 2015, Annexure LMS1.
9 Affidavit of Lynette Margaret Stone sworn 2 September 2015, Annexure LMS3.
10 Affidavit of Lynette Margaret Stone sworn 2 September 2015, Annexure LMS5.
11 Affidavit of Lynette Margaret Stone sworn 2 September 2015 [14].
12 Affidavit of Lynette Margaret Stone sworn 2 September 2015 [18].
13 Affidavit of Lynette Margaret Stone sworn 2 September 2015 [14], [18].
14 Affidavit of Lynette Margaret Stone sworn 2 September 2015 [19].
15 Affidavit of Lynette Margaret Stone sworn 2 September 2015, Annexure LMS7.
16 Affidavit of Lynette Margaret Stone sworn 2 September 2015, Annexure LMS7 and LMS8.
17 Affidavit of Lynette Margaret Stone sworn 2 September 2015, Annexure LMS8.
18 Affidavit of Lynette Margaret Stone sworn 2 September 2015, Annexure LMS8.
19 Leave to withdraw the application was given on 6 November 2015.
20 Leave to amend the grounds of review to add ground 5(e) was given on 6 November 2015.
21 Minute of Proposed Orders dated 17 August 2015.
22Craig v South Australia (1995) 184 CLR 163, 179 (the Court).
23Prisoners Review Board v Freeman[2010] WASCA 166.
24 OCC Act s 34(2)(d) read with Item 2 in the table to s 34.
25Sentencing (Consequential Provisions) Act 1995 (WA) s 77.
26Sentencing Legislation Amendment and Repeal Act 2003 (WA) s 29(1).
27 Cf Prisoners Review Board v Freeman[2010] WASCA 166 [93] (Murphy JA, Pullin JA & Newnes JA agreeing).
28Prisoners Review Board v Freeman[2010] WASCA 166, [154] - [155] (Murphy JA, Pullin JA & Newnes JA agreeing).
29Prisoners Review Board v Freeman[2010] WASCA 166 [154].
30Prisoners Review Board v Freeman[2010] WASCA 166 [162].
31Prisoners Review Board v Freeman[2010] WASCA 166 [171].
32Prisoners Review Board v Freeman[2010] WASCA 166 [162].
33Prisoners Review Board v Freeman[2010] WASCA 166 [156].
34 Applicant's Outline of Submissions [12].
35 Applicant's Outline of Submissions [33].
36 Applicant's Outline of Submissions [34].
37Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
38 Interpretation Act s 3.
39 See the discussion in G. Carney, The Constitutional Systems of the Australian States and Territories (Cambridge University Press, 2006) par [8.3.3.4]; see also New South Wales v Bardolph (1934) 52 CLR 455, 517 (McTiernan J); Victoria v Commonwealth (PMA Case) (1975) 134 CLR 81, 155 - 156 (Gibbs J); Western Australia v Commonwealth (First Territorial Senators Case)(1975) 134 CLR 201, 278 (Jacobs J), 293 (Murphy J); FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 349 - 350 (Gibbs CJ), 364 - 365 (Mason J), 351 (Stephen J, agreeing with Mason J as to the relationship between the Governor and the Executive Council), 381 (Aickin J), 400 - 401 (Wilson J), 414 (Brennan J); Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 494 (Gleeson CJ, Gummow & Hayne JJ).
40 Applicant's Outline of Submissions [16].
41Macquarie Dictionary Online.
42 Affidavit of Lynette Margaret Stone sworn 2 September 2015, Annexure LMS5.
43Prisoners Review Board v Freeman[2010] WASCA 166 [167] - [168].
44Prisoners Review Board v Freeman[2010] WASCA 166 [143].
45Prisoners Review Board v Freeman[2010] WASCA 166 [170].
46Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J); Sieffert v Prisoners Review Board[2011] WASCA 148 [192] (Martin CJ).
47Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 - 40 (Mason J); Sieffert v Prisoners Review Board[2011] WASCA 148 [192] (Martin CJ).
48Seiffert v Prisoners Review Board[2011] WASCA 148 [123] - [125] (Martin CJ) referring to R v Secretary of State for the Home Department; Ex parte Venables[1998] AC 407, 496 - 497 (Lord Browne-Wilkinson) and Carroll v Sydney City Council(1989) 15 NSWLR 541, 550 (McHugh JA, Kirby P agreeing).
49 Applicant's Outline of Submissions [40].
50 Applicant's Preliminary Submissions [26].
51 Applicant's Outline of Submissions [50], [55].
52Minister for Aboriginal Affairs v Peko-Wallsend Ltd(1986) 162 CLR 24, 39 (Mason J).
53Minister for Aboriginal Affairs v Peko-Wallsend Ltd(1986) 162 CLR 24, 40 - 41 (Mason J).
54Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182 [60] (McLure JA, LeMiere AJA agreeing), but cf A v Corruption and Crime Commissioner[2013] WASCA 288; (2013) 306 ALR 491 [88] - [92] where Martin CJ and Murphy JA concluded it was unnecessary to determine which line of authorities was to be preferred.
55 OCC Act s 34(8)(b).
56 OCC Act s 34(8)(d).
57Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 - 41 (Mason J).
58 See OCC Act s 34(8)(a).
59Ballantyne v WorkCover Authority of New South Wales[2007] NSWCA 239 [113] (Basten JA).
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