Cruz v Director-General of the Justice and Community Safety Directorate
[2019] ACTSC 291
•18 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Cruz v Director-General of the Justice and Community Safety Directorate |
Citation: | [2019] ACTSC 291 |
Hearing Date: | 3 October 2019 |
DecisionDate: | 18 October 2019 |
Before: | Crowe AJ |
Decision: | See [62] |
Catchwords: | PRACTICE AND PROCEDURE – Application in Proceeding to strike-out Originating Application for Judicial Review – failure to identify a “decision” capable of review – Originating Application struck-out – no identifiable cause of action JUDICIAL REVIEW – Plaintiff seeking review of contents of pre-release reports relied upon by the Parole Board and the Director-General – where the plaintiff claims the ACT Corrective Services Homes Visits Assessment Policy was not complied with when preparing the reports – whether the Policy is a legislative instrument – Policy determined not to be a legislative instrument |
Legislation Cited: | Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 3A, 5 Crimes (Sentence Administration) Act 2005 (ACT) ss 136, 137 Crimes (Sentence Administration) Regulation 2006 (ACT) reg 4 |
Cases Cited: | Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Griffith University v Tang [2005] HCA 7; 221 CLR 99 ZS v Sentence Administration Board [2018] ACTSC 289 |
Texts Cited: | ACT Corrective Services Homes Visits Assessment Policy (2014) paras 3.1,4.9, 4.10, 4.11, 4.13, 7, 7.1, 7.2, 7.3, 7.4, 7.6, 7.7, 7.8, 7.9, 8, 8.3 |
Parties: | Juan Cruz (Plaintiff) Director-General of the Justice and Community Safety Directorate (Defendant) |
Representation: | Counsel Self-represented (Plaintiff) N Oram (Defendant) |
| Solicitors Self-represented (Plaintiff) ACT Government Solicitors (Defendant) | |
File Number: | SC 313 of 2019 |
Crowe AJ
Mr Juan Cruz (the plaintiff) was convicted on 6 September 2016 of sex offences against a child. He was sentenced to three years and three months imprisonment with a non-parole period of 20 months. The latter expired on 5 May 2018. The plaintiff is due for release on 5 December 2019.
The plaintiff made an application for parole on 18 January 2018. This led to the preparation of a pre-release report by delegates of the Director-General. That report, dated 10 April 2018, recommended against parole for reasons to be discussed below. The Sentence Administration Board (the Board) held a hearing on 15 May 2018 to consider the plaintiff’s application. It decided to adjourn that hearing to 5 June 2018 to allow time for the assessment of the plaintiff for an Adult Sex Offenders Program (ASOP).
The plaintiff was assessed as suitable for an ASOP. This was the subject of a supplementary pre-release report, dated 1 June 2018. However, on 5 June 2018 the Board refused his application on the basis that he did not have suitable accommodation, and because he had not yet commenced an ASOP.
On 22 November 2018, the plaintiff made another application for parole. On
23 January 2019 a pre-release report was prepared in relation to that application. Again, the signatories recommended against parole. The Board held a hearing in relation to the application on 28 February 2019. A lengthy discussion took place concerning the accommodation issue. There was also some discussion of the possibility of the plaintiff completing an ASOP in the community. The Board adjourned the hearing pending a supplementary pre-release report. That report was provided on 28 March 2019. It also recommend against release on parole.
The Board hearing resumed on 3 April 2019. The hearing was again adjourned to allow for a further report. That report was provided on 16 April 2019. As with the previous reports, it recommended against parole. The hearing resumed on 17 April 2019. Ultimately, the Board refused the application on the basis that the plaintiff did not have a proposal for approved accommodation in the community.
By Originating Application (OA) dated 1 May 2019, but filed on 21 June 2019, the plaintiff seeks judicial review of the “decisions” contained in the pre-release reports provided in relation to his parole applications. The relief sought by the plaintiff is as follows:
(1)To review the decisions of the ACT Justice and Community Safety Directorate contained within Pre-Release Reports on several occasions.
(2)To review the following conduct of the ACT Justice and Community Safety Directorate:
To act in bad faith.
(3)To grant declaratory relief.
(4)To grant other relief as the Court sees fit.
The plaintiff’s OA was supported by his affidavit affirmed on 1 May 2019, a bundle of relevant documents referred to as “Judicial Review Papers” and written submissions dated 5 June 2019.
The Director-General, represented by the ACT Government Solicitor (ACTGS), by letter dated 15 August 2019, advised the plaintiff of a number of asserted defects in the OA. The plaintiff responded in a letter dated 16 August 2019. He declined to amend the OA and explained, in terms consistent with his written submissions, his reasons for challenging the findings made in the pre-release reports in relation to his proposed accommodation. He also stated that he would not be seeking further parole. He reiterated that he was pursuing declaratory relief to prevent what he saw as unfair treatment occurring to other detainees.
On 28 August 2019, the Director-General filed an Application in Proceeding (the AiP) seeking, in effect, an order striking out the OA, or in the alternative, an order striking out parts of the OA with consequential directions as to the future conduct of the matter. The AiP came before me for hearing on 3 October 2019.
At the hearing the plaintiff was assisted by Mr C Tully, as a McKenzie friend. The Director-General was represented by Mr N Oram of counsel.
The following was admitted to evidence:
(1)A schedule of correspondence from the ACTGS to the plaintiff dated
15 August 2016, and from the plaintiff to ACTGS dated 16 August 2019
(Exhibit “1”);(2)The Home Visit Assessment Policy dated 14 October 2014 (the Policy)
(Exhibit “2”);(3)The affidavit of the plaintiff affirmed on 1 May 2019 (Exhibit “3”); and,
(4)The Judicial Review Papers, including an index (Exhibit “4”).
Mr Oram made oral submissions and also handed up written submissions. The plaintiff also made oral submissions. He also relied on the written submissions which had been filed in support of his OA.
The principal submission of the Director-General was that insofar as the plaintiff relies on s 34B of the Supreme Court Act 1933 (ACT)(Supreme Court Act), no remedy is available because the plaintiff never had a right or entitlement to parole. The only arguable right which the applicant had was the right to apply for parole. However, that was a right which was determinable by the Board under the Crimes (Sentence Administration) Act 2005 (ACT) (the Act). The comments and recommendations made by the authors of the various reports were not “decisions” affecting the plaintiff’s rights or obligations. It was a matter for the Board what weight it gave the content of the reports.
To the extent that the plaintiff relies on the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the ADJR Act) the Director-General made the same submission as that summarised in [13] above, having regard to the meaning of “decision of an administrative character...made under an enactment” adopted by the majority in Griffith University v Tang [2005] HCA 7; 221 CLR 99.
In relation to the declaration sought by the plaintiff, Mr Oram argued that any declaration here would be theoretical and futile.
The plaintiff had also made a general allegation of bad faith on the part of the report authors. Mr Oram submitted that no proper particulars had been pleaded, and indeed, on the evidence relied upon by the plaintiff, no proper basis for such an allegation had been provided. Consequently, it was argued that this allegation should be struck-out.
In relation to the evidence, Mr Oram took the court to the relevant parts of the pre-release reports. He submitted that, insofar as the report authors concluded that the accommodation proposed by the plaintiff was unsuitable, such a conclusion was open to them and not susceptible to judicial review. With respect to the Policy, Mr Oram submitted that the terms contained in it were no more than relevant considerations, for the authors of the pre-release reports. The board was not bound to follow it. In this light, once again, the opinions they expressed were, in all of the circumstances, reasonably open to them.
The plaintiff’s primary argument, as expressed in his written submissions, was that by virtue of sub-s 3A(2) of the ADJR Act, the recommendations contained in the reports were deemed to be decisions. They were thus susceptible to review under that Act.
As to the substance of the reports, the plaintiff argued that the authors had acted inconsistently with the requirements of paras 7.7-7.9 of the Policy. In that context, the Director-General, through the report authors, had acted in breach of sub-paras 5(2)(a), (b), (d) and (i) of the ADJR Act.
In response to the Director-General’s argument that he did not have a right to parole, the plaintiff submitted that he did have a right to have his application for parole determined according to law.
Legislative context
McWilliam AsJ provided a helpful summary of the relevant provisions of the Act in
ZS v Sentence Administration Board [2018] ACTSC 289 (ZS). Her honour’s summary is provided in the following terms (see [18] – [24] of her reasons):
Ordinarily, an offender may apply for parole under s 121 of the Crimes (Sentence Administration) Act 2005 (ACT)(the Act), no earlier than 6 months before the offender’s parole eligibility date. An application for parole may be made even though another parole application has previously been refused: s 121(6) of the Act.
The Board may make a parole order for an offender only if it considers that parole is appropriate for the offender, having regard to the principle that the public interest is of primary importance: s 120(1) of the Act.
The Board must consider a number of matters set out in s 120(2) of the Act. Relevantly here, they include any report prepared for the Territory in relation to the granting of parole to the offender, and the likelihood that, if released on parole, the offender will commit further offences.
Through a combination of ss 125-127 of the Act, the Board must conduct an inquiry and if not satisfied that the documents justify paroling the offender, is to provide an oral hearing to the offender. Before the inquiry commences, the Board must seek the views of any victim: see ss 123 and 124 of the Act.
There are a number of “core conditions” of any parole order, set out in s 137 of the Act, which include any condition prescribed by regulation that applies to the offender: s 137(f) of the Act. Under s 4(a) of the Crimes (Sentence Administration) Regulation 2006 (ACT), the offender must live only at premises approved by the Director-General.
The Board is also established by s 171 of the Act. Its functions are set out in s 172 of the Act and include functions given under Chapter 7 of the Act, relating to parole. Other functions include those given under Chapter 5 of the Act, concerning intensive correction orders, under Part 13.1 of the Act in relation to release on licence, and the provision of advice to a Minister about an offender on request.
Under s 174 of the Act, judges of the Supreme Court of the ACT and magistrates of the Magistrates Court of the ACT can be appointed to the Board and the appointment does not affect the person’s office of judge or magistrate. Any person appointed as a chair or deputy chair must be judicially qualified; that is, the person must have been a legal practitioner for not less than five years: s 174(2) and 174(8) of the Act.
[Emphasis added.]
Sub-section 136(a)(i) of the Act requires a paroled offender to comply with the core conditions specified in s 137, therefore, it is apparent that a Board will, in practical terms, be prevented from granting parole to a person who does not have available somewhere to live which has been (or is likely to be) approved by the Director-General.
One of the matters which the Board must consider is contained in sub-s 120(2)(j) of the Act:
the likelihood that, if released on parole, the offender will comply with any condition to which the parole order would be subject…
Plainly, if the material before the Board indicated that there was no accommodation approved by the Director-General available to the offender, a decision granting parole would immediately place the offender in the position of breaching his/her parole conditions the moment he/she commenced living at the non-approved premises in the community. In such circumstances, it is reasonable to expect that there would be little likelihood of the Board granting parole.
Accommodation Assessment
Apart from the mandatory requirement that the offender live in accommodation approved by the Director-General, as discussed above, the Act is silent as to the criteria by which the Director-General must be guided in deciding whether or not to approve accommodation for parole purposes. Taking these contextual considerations into account, the Policy was presumably developed within the Directorate as a guide for assessments to be carried out by the Director-General’s delegates. The policy covers pre-release assessments and supervised home visit assessments. The latter arise where an offender remains under the supervision of
ACT Corrective Services while he/she is living in the community.
At para 3.1, the Policy explains that the general purpose of pre-release home visit assessments is to identify helpful, or unhelpful, social supports and also risks relating to the proposed living circumstances. These are done in the context of trying to minimise the incidence of parole breaches and reoffending. Clauses 4.9 to 4.11 deal specifically with issues relevant to suitability of accommodation. They provide:
4.9 The purpose of the Home Visit Assessment is to determine the suitability of the proposed address. Indicators that the address may be suitable include:
·Pro social co-residents who indicate they support the goals of case management
·Co-residents who show some awareness of the offending behaviour, or are open to being informed about this
·Co-residents who will cooperate with Community Corrections Officer and provide information, particularly if the offender is not doing well.
4.10Some of the main factors that would indicate that the address may not be suitable include:
·Presence of children if the detainee/offender is a child sex offender AND/OR
·A child care facility in the immediate vicinity of the address
·Evidence of illegal activity taking place at the address (eg drug abuse)
·Significant co-resident is hostile to, or not co-operative with supervisory process
·A current Apprehended Violence Order restricting the detainee/offender from contact with a co-resident
·Co-resident who has been a victim of domestic violence by the detainee/offender
·The address has been nominated as a favour to a third party and the co-resident may be under duress to agree to the proposal
·The accommodation arrangement appears to be "short term" and not stable.
4.11It is also important to take into account any known victim issues whilst undertaking a Home Visit Assessment. This may inform the suitability of the address in some circumstances and be a relevant consideration for Case Management in the community.
Paragraph 4.13 notes that the list in para 4.10 is not exhaustive. It is “meant to guide the professional judgement of the Community Corrections Officer”.
The heading for para 7 is “HVA in Relation to Child and Young Person Related Offenders”. Paragraph 7.1 provides:
7.1When undertaking Home Visit Assessments for child and young person related offenders, the Agency's primary concern is the safety, welfare and best interests of children and the development of strategies to minimise and manage any risk posed to children.
It is clear from para 7.2 that the plaintiff is a “child and young person offender” as defined for the purposes of para 7 generally.
Paragraphs 7.3 and 7.4 oblige the assessing officer to consult with Care and Protections Services if there is a reasonable suspicion of harm in relation to a child or young person in connection with proposed accommodation. Paragraph 7.5 imposes a presumption against allowing an offender to reside in the same home as a child under the age of 16 who was the victim of that offender’s sexually motivated offence.
The following paragraphs are particularly important in the circumstances of this case. The plaintiff alleges that the home visit assessors in relation to his parole applications erred in not complying with paras 7.7, 7.8 and 7.9:
7.6 If an offender has offended against or poses a risk to a child or young person, the need to protect children is paramount. lt is, however recognised that maintaining positive relationships with family and friends may assist offenders in their reintegration into the community. It is also recognised that in some cases it may be beneficial for offenders to maintain relationships with children, provided this can be done safely.
7.7A lack of understanding by the proposed co-residents of the issues regarding child or young person related offending does not automatically render an address unsuitable, In such circumstances, the assessing officer should attempt to clarify gaps in the proposed co-residents' knowledge or understanding of the issues. This may involve encouraging and facilitating co-residents to make contact with other agencies.
7.8Similarly, denial by proposed co-residents of an offender's sexual offending does not automatically render an address as unsuitable. In such cases the assessing officer must consider the circumstances of the offender (offence, risk, treatment history etc) and whether, despite their denial, the proposed co-residents are willing and able to cooperate with the supervising officer in managing the offender. It is important to maintain the perspective that family members may have accepted the offender's narrative and denials.
7.9In undertaking a Home Visit Assessment where child or young person related offending is involved it is important to consider not just the address but the location. It may be that there are child related facilities nearby, or the address is where children gather. These circumstances must be reviewed against the modus operandi of the offender, the risk level, and consideration given to the Agency’s capacity to effectively case manage the offender and mitigate the risk.
Paragraph 8 deals with the assessment of the suitability of proposed co-residents to supervise child contact. Paragraph 8.3 provides:
8.3In determining the suitability of proposed co-residents to supervise child or young person contact, an acknowledgement of an offender's guilt is one factor to take into consideration. An adult who believes the child or young person related offences did not occur may or may not be, in a position to provide adequate supervision, depending on the circumstances of the offender. As a guide, for an offender who has a high risk and/or is untreated, denial of guilt by proposed co-residents would be a concern. If the person being assessed for this role has previously "covered" for the offender during an official investigation they should be assessed as not suitable.
It is clear that a home visit assessment was carried-out before the preparation of the pre-release report dated 10 April 2018. That report contained the following, under the heading “Accommodation”:
(The plaintiff) has proposed to live at (address) with his mother and father.
The accommodation was assessed as unsuitable due to the co-residents informing this Service they do not believe the offender committed the offences. The offences have been dismissed by the co-residents as fabricated and therefore see no reason for (the plaintiff) to take responsibility for his offending. Furthermore, the offenders for nieces and nephews, aged under 18 years of age, visit the address at least once a week.
It is likely child safety would not be a priority of the family given the view that the offender is not responsible for his actions. The co-residents informed they would be willing to make arrangements to ensure family members under the age of 18 were not present at the address when (the plaintiff) was there. This would likely significantly impact the family’s relationships given the amount of time the children currently spend at the proposed address.
The report advised that the plaintiff had been assessed as being of medium-low risk of both general and sexual re-offending.
The plaintiff in his submissions to the Board referred to para 7.8 of the Policy. He pointed out that he had lived with his parents for 10 years and that his parents were willing to support his transition back into the community.
The Board adjourned the 15 May 2018 hearing on a number of bases. One of these was to allow the plaintiff to explore alternative accommodation given the reservations about living with his parents expressed in the report.
It was noted, in the supplementary report dated 1 June 2018, that the plaintiff had applied for accommodation with Housing ACT, but that his application had not yet been assessed.
As noted above, on 5 June 2018, after hearing further from the plaintiff, the Board rejected his application due to the lack of approved accommodation, and because he had not completed an ASOP.
In relation to the plaintiff’s second parole application, dated 22 November 2018, the pre-release report of 23 January 2019 contained the following on the proposed accommodation (which was again with his parents):
There are significant concerns regarding the offender residing at the address given the family's denial of the offender’s offences and how this Service would be able to adequately monitor any children visiting the property. The Victim Liaison Officer (VLO) and CSORT have also raised concerns about the proposed address if there are any children visiting the property. Whilst the co-residents have stated that children will not visit the property, there is concern how seriously the co-residents will take this given they believe the offender is innocent. This is also the same address where the offences were committed. Given the above the accommodation was assessed as unsuitable.
In his submissions to the Board, the plaintiff referred to paras 7.7-7.9 of the Policy. He pointed out that his parents’ residence was approved as his accommodation while he was on bail. It was also argued that the interview with his parents, who do not speak English, was carried out without the assistance of a professional Spanish translator. In the course of the appearance before the Board on 28 February 2019, the Community Corrections Officer (CCO) advised that she had performed a further home visit for the purposes of the 23 January 2019 report. She had been assisted by a family friend (presumably a friend of the plaintiff’s family) who was also a Spanish interpreter.
The CCO was questioned by the plaintiff’s representative who then made submissions to the Board. The submission, based on the plaintiff’s residence at the property while he was on bail, was rejected by the Board, which pointed to the difference between a person awaiting trial and one who had been convicted.
At one point the CCO said:
Well, I guess to (the plaintiff’s) credit, his parents were willing to - so they reported that they were willing to work with the service. I will acknowledge that we didn’t give them an opportunity to put together a case plan with them as to how we would manage that with the service. So maybe that’s something that needs to be considered.
Toward the end of the hearing the following exchange occurred between a Board member and Mr Tully, who was assisting the plaintiff:
Member: … the fact though doesn’t mean that just because a proposed co-resident isn’t accepting of offences, that that (inaudible) us of our ability to take other factors into consideration and what we do need to take into consideration is if there are children that are visiting the house, or if the proposed co-residents deny that the offences took place, or minimise the offences, then our duty of care becomes more around children and manageability of that situation…
Mr Tully: …The reason why I raise the issue is that also it specifically excludes that being a reason for rejecting. It places the onus upon the program - probation and parole officer to undertake some facilitation to put a plan in place. In the absence of (inaudible) played out in the policies, you can only reach the conclusion that the home assessment did not (inaudible) to the policy. So I agree with you, that the policy does go on to state several things in relation to that, that have not (inaudible)…
Member: With respect, I disagree.
At the end of the hearing the Board indicated that it proposed adjourning to obtain further information. In relation to the accommodation issue, the presiding member said:
… What we want is for Community Corrections to make a further assessment with the persons who are nominated by (the plaintiff), which would be especially your sisters and your mother and father, as to how they are going to work with Community Corrections to ensure that you don’t have any unsupervised contact with children.
The matter was then adjourned. It resumed on 3 April 2019. In the meantime a supplementary pre-release report was provided on 28 March 2019. It contained the following in relation to the accommodation issue:
An interview was conducted with Mr Cruz's parents at the nominated address with a TIS National telephone interpreter. Mr Cruz's parents continued to deny the guilt of the offender. However, despite denying the offender's guilt, they advised that they agreed with the sentencing decision of the Court and were willing to assist the offender to abide by any parole conditions including monitoring any contact he has with children outside their home. They also both denied that any children would visit the property while the offender was present.
Telephone conversations were also conducted with the Mr Cruz's two sisters and three significant others nominated by Mr Cruz. One sister and one significant other, refused to comment around the offender's guilt however, the other sister and two significant others all advised that they did not believe Mr Cruz was guilty of the offences for which he had been convicted. However, despite denying the offender's guilt, they all advised that they agreed with the sentencing decisions of the Court and were willing to assist the offender to abide by any parole conditions including monitoring any contact he has with children.
At the resumed hearing, Mr Tully, on behalf of the plaintiff, submitted to the Board that the effect of paras 7.7 and 7.8 of the Policy was to impose an obligation on Community Corrections to facilitate, with other agencies, the formulation of means and mechanisms to render the proposed accommodation suitable. Because the report failed to comply with that obligation, it would not be lawful for the Board to rely upon it.
At the end of the hearing the Board again decided to adjourn. The presiding member said:
…given all the issues that have been raised about the accommodation and the nature of the home visits and the extra issues and the policy, what the board requests is a separate report on the accommodation. As of today, the board's not completely clear whether it's approved or not approved. The supplementary report is - I know the overall recommendation is that parole is not recommended. It's not completely clear whether, as a result of that last home visit, that there's been any change in the view about the nature of the accommodation.
So, I mean we need a dedicated report on whether the accommodation is approved. And also, if it is approved, or it isn't approved, what the background to that is. And I guess having heard what Mr Cruz and Mr Tully are saying, that report needs to respond to what they're saying about whether the home visits have been' consistently done, in conformity with the policy. Okay. And the Act. So that would be the fairest way to proceed, I think, given all the issues that have been raised and the fact that the board is not clear, as of today, whether that accommodation is or is not approved.
In his affidavit (Exhibit “3”), the plaintiff said that after that hearing, Mr Tully, on his behalf, lodged a complaint to ACT Corrective Services senior management concerning the pre-release reports. Following this the plaintiff met with
Ms S Fitzmaurice, Head of Case Management, and Ms E Byrne, Head of Sentence Planning. The plaintiff says that when asked why the reports had not answered the questions posed by Board members, Ms Fitzmaurice and Ms Byrne responded by stating that the Board couldn’t tell them what to do.
On 16 April 2019, the final pre-release report was provided. It contained the following:
On 16 January 2019, a home visit assessment was conducted at (the plaintiff’s) nominated address. At this time the property was assessed as unsuitable due to the family's denial of the offender's offences and how this Service would be able to adequately monitor any children visiting the property.
At the request of the SAB, further enquiries have been conducted in regards to the suitability of (the plaintiff’s) proposed accommodation. During these conversations, (the plaintiff’s) main supports in the community continued to demonstrate reluctance to discuss the offences apart from expressing their beliefs that (the plaintiff) was not guilty. It is acknowledged that as the conversations continued, (the plaintiff’s) family members indicated that they would support (the plaintiff) to adhere by any conditions imposed by the SAB. However, the answers provided by (the plaintiff’s) supports almost mirrored one another and appeared rehearsed. Given that the answers provided were almost verbatim to one another, this Service has some concerns about the reliability of these assertions. Further to this a number of his supports in the community disclosed that they had never spoken to (the plaintiff) about the offences for which he has been found guilty, which is a concern for this Service as his support network may not understand the severity of the charges.
In light of this, in combination with the information provided above in regards to (the plaintiff) and him not yet undertaking any offence specific treatment, this Services continues to assess the residence as unsuitable.
The final hearing of the Board occurred on 17 April 2019. During that hearing the Board questioned the CCO who was present. This culminated in the following:
Member: It appears from what you are saying that you are weighing up a couple of different factors and that there is a combination of factors…
CCO: Yes. So it’s not just that the offender’s parents don’t believe it; I guess it’s the information appeared rehearsed, also that a number of the family members have not even spoken to (the plaintiff) about the offences since he’s been charged and the fact that he hasn’t undertaken any treatment program. Combine those issues together, that’s how we’ve come up with the unsuitability.
…
Member: But I’m getting a sense from you that what you’re saying there is that you’re relying on some of the other issues raised at the same clause of that policy, which include the offence itself, the risk level…
CCO: The risk.
Member: Level and the treatment history.
CCO: Yes, and the services ability to case manage the offender and mitigate the risk to the community.
The presiding member then said, in delivering the decision of the Board to refuse the parole application:
The board asked ACT Corrective Services about specific information concerning how it applied its home visit assessments policy. In response, oral comments were received today. The board noted that it would have been helpful to receive a full written submission, as requested, for the benefit of both board members and Mr Cruz.
…
Notwithstanding all of the above, suitable accommodation is not approved and the board is bound under legislation on that point. The board cannot agree to make a decision in your favour. Therefore, on that basis, your application for parole is not granted.
The board notes your submission that the Corrections accommodation assessment is unlawful, but noted that is not a question that is within the board's scope to determine.
Consideration
Any claim for relief which the plaintiff might have in the circumstances described above rests in the legal effect of the Policy. In-short, the Policy is not a legislative instrument. It is, as the descriptions suggests, an agency guide setting out how a particular function should be carried out. Regulation 4 of the Crimes (Sentence Administration) Regulation 2006 (ACT), which confers the function on the Director-General is silent on the way it is to be performed and the considerations to be relied-upon and inform decisions as to approval. That does not mean that such decisions can be made without regard to the legislative context. In R v Anderson: Ex Parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189, Kitto J said that they must be made:
According to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself.
However, it must be understood that in conducting judicial review of administrative action the Court cannot conduct a merits review. The modern approach was summarised by McWilliam AsJ in ZS in the following terms at [102] – [103]:
When the Court’s supervisory jurisdiction is invoked, as it is here, the Court does not look to the factual merit of the issue underlying the decision being reviewed. All the Court has power to determine is whether the decision-maker acted lawfully, and if he or she did not, to exercise discretion to grant relief. Judicial review is concerned, not with the decision, but with the decision-making process: Chief Constable of the North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155 at 1173.
As such, a mere error of fact would not ordinarily ground judicial review. However, where the factual error is so critical or material to the discretionary decision to be made by the Board, it may result in the exercise of the discretion miscarrying. There is no rigid taxonomy for when a factual error might be such as to result in jurisdictional error: Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [73]. Jurisdictional error is an expression not simply of the existence of an error, but of the gravity of that error: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 at [24] per Kiefel CJ, Gageler and Keane JJ.
The “error” asserted by the plaintiff is the failure of the officers conducting the home visit assessments to comply with paras 7.7-7.9 of the Policy. This argument misconceives the status and effect of the Policy.
As might be expected, the Policy sets out very general statements which reflect the legislative context in which the approval of accommodation is to be carried out. Those statements are clearly relevant matters which the persons making the assessments would be expected to take into consideration (see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J). However, the terms of the policy do not replace the need for those persons to make independent evaluations having regard to all of the relevant circumstances. That is emphasised by the very general nature of the guidelines provided in the Policy.
Contrary to the argument of the plaintiff, I do not see para 7.7 as creating an obligation (legally enforceable or otherwise) upon the person(s) making the assessment to engage other agencies to assist the co-residents to render the proposed accommodation suitable. That reference provides an option which might be exercised in an appropriate case. It falls within the discretion of the decision maker(s), it is not an obligation.
Having regard to the contents of the pre-release reports and the statements made by the relevant CCOs in the parole hearings, it seems to me that the relevant officers well understood the proposition that the plaintiff’s parents’ denial of the hia offending was not an automatic disentitling factor. The same can be said of the attitude of the plaintiff’s wider family.
It appears from the report of 16 April 2019 and the CCO’s responses to the Board member extracted at [50] above, that the assessing officers were simply not convinced by the proposals being advanced by the family members to protect any children who may visit the residence. There is nothing in the Policy, or the legislative context governing the approval process, which required those officers to have formed a different opinion. The approval decisions were made having regard to a range of relevant factors including the evaluative assessments of the risks to posed by the plaintiff being permitted to reside with his parents. Those assessments were clearly open to the officers who had met and/or spoken with the relevant family members. In those circumstances there was no reasonably arguable error susceptible to judicial review.
Having regard to that conclusion, it is not necessary for me to determine the precise legal issues raised by the Director-General in relation to whether the plaintiff’s rights were sufficiently affected to permit review under s 34B of the Supreme Court Act or the ADJR Act.
I should also say that I saw no evidence to justify the bald allegation made by the plaintiff of “bad faith” on the part of the relevant officers. Insofar as the plaintiff relied upon the comment made to him and referred to in paragraph [48] above, I do not see that as capable of supporting the allegation. Indeed, I consider the remark made to be correct. The assessment of the suitability of proposed accommodation is entirely a matter for the Director-General (and relevant delegates). That function is independent of the function of the Board, although clearly a decision as to suitability may have an overriding effect on the discretion to be exercised by the latter.
Conclusion
It follows from the above that the application of the Director-General to strike out the plaintiff’s OA must succeed. The OA simply does not disclose a reasonably arguable cause of action. Having regard to my analysis of the facts, I am unable see any utility in permitting the plaintiff to re-plead or otherwise reformulate his claim. In the circumstances I propose to dismiss the OA.
Orders of the Court
The Orders of the Court are as follows:
(1)The Originating Application is struck out and dismissed.
(2)The plaintiff is to pay the defendant’s costs of the action including the Application in Proceeding dated 28 August 2019.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: |
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