Haouchar v Parole Authority of NSW

[2025] NSWSC 1246

Supreme Court

New South Wales

Medium Neutral Citation:

Haouchar v Parole Authority of NSW [2025] NSWSC 1246

Hearing dates:

17 October 2025

Date of orders:

24 October 2025

Decision date:

24 October 2025

Jurisdiction:

Common Law

Before:

Griffiths AJ

Decision:

1. The summons filed 12 August 2025 is dismissed, with costs.

Catchwords:

ADMINISTRATIVE LAW — judicial review — refusal of State Parole Authority to rescind parole revocation order — consideration of Crimes (Administration of Sentences) Act 1999 (NSW) and Crimes (Administration of Sentences) Regulation 2014 (NSW) — where decision constitutes “final” determination under s 193C(4) of Crimes (Administration of Sentences) Act 1999 (NSW) — whether plaintiff denied procedural unfairness — whether State Parole Authority failed to consider rescission application on its merits — whether State Parole Authority misapprehended statutory scheme

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13

Crimes Act 1900 (NSW), s 26

Crimes (Administration of Sentences) Act 1999 (NSW), ss 126, 127, 128, 129, 130, 135, 137, 137A, 137B, 138, 139, 141, 170A, 171, 173, 174, 175, 185, 193C, Sch 1 cl 11

Crimes (Administration of Sentences) Regulation 2014 (NSW), regs 223, 230

Migration Act 1958 (Cth)

Cases Cited:

Attorney General of New South Wales v Chiew Seng Liew [2012] NSWSC 1223

Attorney General (NSW) v New South Wales State Parole Authority [2006] NSWSC 865

Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1

Minister for Immigration & Ethnic Affairs v Tagle (1983) 67 FLR 164

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; [1963] HCA 41

National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29

Osman v Parole Authority of NSW [2021] NSWSC 975

Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41

Samandi v State Parole Authority [2021] NSWSC 1037

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Omar Haouchar (Plaintiff)
Parole Authority of NSW (First Defendant) (Submitting Appearance)
Attorney-General of NSW (Second Defendant)

Representation:

Counsel:
C Lenehan SC and Arjun Chhabra (Plaintiff)
C Tran and R Haidary (Second Defendant)

Solicitors:
Krayem & Co Lawyers (Plaintiff)
Crown Solicitor’s Office (Second Defendant)

File Number(s):

2025/00308349

Publication restriction:

Nil

JUDGMENT

1. By a summons filed 12 August 2025, the plaintiff (Mr Haouchar) seeks judicial review of a determination dated 15 July 2025 in which the State Parole Authority (SPA) declined to rescind the revocation of Mr Haouchar’s parole (see s 175 of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act)). In brief, Mr Haouchar claims that (a) he was denied procedural fairness; and (b) the SPA misapprehended the relevant statutory scheme by purporting to make a final determination rejecting Mr Haouchar’s rescission application while also standing the matter over for further review.

2. For the following reasons, Mr Haouchar’s judicial review challenge will be dismissed, with costs.

Some background matters

3. On 13 February 2018, Mr Haouchar was sentenced in the District Court to a term of imprisonment of ten years in respect of four offences of robbery while armed with a dangerous weapon, aggravated breaking and entering with the intention of committing a serious indictable offence, knowingly directing activities of a criminal group and assaulting a law enforcement officer in the execution of duty in contravention of various provisions of the Crimes Act 1900 (NSW). The sentence commenced on 26 April 2016 and carried with it a non-parole period of six years and six months that expired on 25 October 2022 (i.e. Mr Haouchar’s parole eligibility date). The expiry date for the head sentence is 25 April 2026.

4. On 26 September 2022, the SPA directed that Mr Haouchar be released on parole on 25 October 2022, subject to the standard conditions and some additional conditions.

5. On 15 April 2023, while on parole, Mr Haouchar was charged with further offending. His parole was revoked on 3 May 2023, effective retrospectively from 14 April 2023. The charges leading to the revocation of Mr Haouchar’s parole were subsequently withdrawn. An order was made by the SPA rescinding the revocation of his parole, effective from 2 November 2023.

6. On 9 January 2025, Mr Haouchar was charged with one offence of conspiracy to murder (s 26 of the Crimes Act) alleged to have been committed between 4 and 29 December 2023, while he was on parole. He was refused bail.

7. On 9 January 2025, a Breach of Parole Report prepared by a Community Corrections officer, Mr Sean Peters, recommended that Mr Haouchar’s parole be revoked. The SPA revoked the parole order on 21 January 2025, with retrospective effect to 9 January 2025.

8. By an SPA letter dated 23 January 2025, both the Governor of the Corrections Centre where Mr Haouchar was incarcerated and Mr Haouchar were notified of the revocation. They were told that the SPA would reconvene on 18 February 2025 to reconsider the revocation. Mr Haouchar was advised that he could make submissions.

9. Mr Haouchar responded on 28 January 2025, indicating that he wished to appear before the SPA by audio-visual link with legal representation.

10. On 19 February 2025, Mr Haouchar’s solicitor received an email from the SPA, which referred to an attached “stand over memo” dated 18 February 2025. The stand over memo stated that, at its meeting on 18 February 2025, the SPA had considered Mr Haouchar’s case and determined that the matter be stood over until 18 March 2025. The stated reason was “For results of Downing Centre Local Court on 6 March 2025 and for further review”. The email stated that the SPA “will continue to monitor your client’s court results administratively until such time unless the outstanding matters are finalised or Mr Haouchar is granted bail”.

11. By an email dated 17 March 2025, Mr Haouchar’s solicitor contacted the SPA on the understanding that Mr Haouchar’s matter was listed for review before the SPA the following day. The solicitor asked for the listing to be vacated and stood over to a future date in approximately 8 weeks’ time to permit the solicitor to “liaise with Mr Haouchar’s family and prepare material pertinent to the parole hearing”.

12. The SPA responded the same day, stating that it was still “currently monitoring the outstanding charges and confirm that the matter is not listed for a review hearing tomorrow”.

13. By an email dated 2 June 2025, Mr Haouchar’s solicitor asked that his matter, which was listed for review by the SPA the following day, be stood over for a further period of 2 weeks. In its email response dated 2 June 2025, the SPA advised that it was still currently monitoring the outstanding charges, confirmed that the matter was not listed for a review hearing on 3 June 2025 and said that the next tentative review hearing date was 1 July 2025. It added that if the outstanding charges were not finalised, then the review hearing scheduled for 1 July 2025 would be moved to a further date approximately 2 weeks after the Local Court adjournment date.

14. There was a further exchange of emails on 30 June 2025 regarding the date of a review hearing. The SPA confirmed that Mr Haouchar’s matter was not listed for hearing on 1 July 2025 because the charges at the Local Court had not been finalised. Mr Haouchar’s solicitor was advised that the next tentative review hearing was on 5 August 2025 but that if the outstanding charge was not finalised, then the review hearing would change again.

15. On 11 July 2025, Mr Haouchar was granted conditional bail by Harrison CJ at CL in respect of the conspiracy to murder charge. However, this did not secure his release from incarceration because he was still serving his sentence for the convictions dated 13 February 2018.

16. On the same day Mr Haouchar was granted bail, his solicitor emailed the SPA advising that bail had been granted. The email stated that the solicitor was seeking to have Mr Haouchar’s matter listed for review by the SPA and asked when was the first available hearing date.

17. On Monday 14 July 2025, the SPA responded saying that the matter could be added to the SPA’s hearings list for the following day, 15 July 2025. Mr Haouchar’s solicitor confirmed that the matter should be listed for review then. The SPA asked the solicitor to provide any written submissions by 1 pm on 14 July 2025 to give the SPA members sufficient time to review them.

18. On 14 July 2025, Mr Haouchar’s solicitor provided the SPA with a bundle of material in support of his application for review of the revocation of the parole order. It comprised:

1. written submissions dated 14 July 2025;

2. the bail judgment dated 11 July 2025 by Harrison CJ at CL (see R v Haouchar [2025] NSWSC 742);

3. the bail conditions dated 11 July 2025;

4. an affidavit by Talal Krayem dated 14 July 2025;

5. three affidavits by Mr Haouchar’s partner, Emma Irvin, dated 30 January, 13 February and 22 April 2025;

6. a psychologist’s report dated 29 January 2025 regarding Mr Haouchar;

7. a clinical psychologist’s report dated 29 January 2025 regarding Emma Irvin; and

8. an affidavit dated 29 January 2025 by Corey Beard.

19. The bundle of material totalled 68 pages.

20. In light of Mr Haouchar’s complaint of procedural unfairness, it is desirable to set out the following two paragraphs from his written submissions dated 14 July 2025 which were provided to the SPA:

Having regard to the structure of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act), including the principal matters in s 135(2), and in the particular “the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole” (s 135(2)(d) [sic]), reinstating Mr Haouchar’s parole to permit close supervision (and rigorous bail conditions) for the limited parole period that remains, accords with the paramount consideration of community safety.

It is respectfully submitted that any residual concerns the Authority may hold as to community safety can be addressed by the imposition of further conditions.

21. On 15 July 2025, Mr Haouchar was represented by Mr Ozen SC. The Community Corrections officer, Mr Peters, also participated.

22. In brief, Mr Ozen SC made the following oral submissions to the SPA:

1. The evidence against Mr Haouchar regarding the charge of conspiracy to murder was weak and there was no evidence which established that Mr Haouchar was the person referred to by the handle “Invisible” in encrypted text messages concerning the alleged conspiracy. The weakness of the Crown’s case formed part of the basis of the recent decision to grant Mr Haouchar bail.

2. When he was previously on parole Mr Haouchar had made positive steps towards rehabilitation and his ongoing incarceration would have a deleterious effect on his future prospects of rehabilitation.

3. As to the important consideration of promoting the protection of the community, although Mr Haouchar had spent a lot of time in jail and had a troubled past and a serious criminal history, when he was previously granted bail he had started both a family and a business.

4. Mr Haouchar was willing to accept any conditions on a parole order, including electronic monitoring.

23. During the course of the hearing, the Chairperson raised concerns regarding (a) Mr Haouchar’s personal safety and that of his family if he was released into the community and if their whereabouts became known; (b) the need for Mr Haouchar to leave his residence to consult with his GP and a psychologist as part of a mental health treatment plan and the need for his bail conditions to be varied accordingly; and (c) what additional parole conditions were needed to protect both Mr Haouchar and the community if he were released on parole.

24. Responding to some of those concerns, Mr Ozen SC said:

MR OZEN: Our instructions are that Mr Haouchar would consent to any condition this Authority considered necessary which would include the schedule, which would include electronic monitoring and anything else including a condition that he not have any internet-capable device in order to secure parole so that he could continue to be with his family and see his psychologist. That would require his psychologist to come and visit him in person, he would consent to that condition. There has been a mental health treatment plan in the past, that will need to be updated, and one of the conditions that he would propose is that upon release within seven days he attend upon his general practitioner to have that referral and the mental health treatment plan renewed or updated.

So really what Mr Haouchar is saying is that he would consent to any conditions this Tribunal considered necessary in order for him to be able to show that he can rehabilitate under supervision and to enable him to prepare for what is going to be a very long and complicated trial with up to eight co-accused…

25. The following exchange (which is at the forefront of Mr Haouchar’s procedural fairness complaint) then occurred at the end of the hearing between one of the members of the SPA and Mr Peters regarding electronic monitoring and the capacity of Community Corrections to manage or supervise Mr Haouchar if he were released on parole:

MEMBER: Mr Peters, if I can just ask you a question. I note in your report of 9 January, you did indicate that Mr Haouchar was engaging in interviews and with psychology although somewhat sporadically. Can I ask what supervision of Mr Haouchar looked like after electronic monitoring was removed.

PETERS: I haven't personally supervised Mr Haouchar. I was the acting team leader. So I just went off case notes and things. It seems, yeah, when he was getting ..(not transcribable)..by us, but, yeah, he was engaged with a psychologist but it seems sporadic at the time. With the electronic monitoring question, yeah, to be honest I don't know a lot of that background, I could find out as far as when he went off it.

MEMBER: That's okay. Could I just ask you. You would have heard what Mr Haouchar's barrister has put to us this morning, is that something that Community Corrections could otherwise manage in terms of either seeing him at his home or have him otherwise report by telephone?

MR PETERS: Yes, we could. My understanding was previously when he was on supervision, Mr Haouchar did have I suppose a modified-type case plan which did involve that, more phone interviews, yeah, home visits, et cetera. Yeah, that could be continued. I mean, obviously, management would be involved but, yeah, my understanding was he did have that previously.

MEMBER: Thank you, Mr Peters.

26. The hearing was then concluded with the Chairperson saying that the decision was reserved. He added that this might take some time because of the material which had just been provided on behalf of Mr Haouchar.

27. On 16 July 2025, the SPA emailed Mr Haouchar’s solicitor attaching a letter dated 15 July 2025. The letter is on the SPA’s letterhead and is addressed to the Governor of the Corrections Centre where Mr Haouchar was imprisoned. The letter is headed “NOTIFICATION OF DETERMINATION OF THE STATE PAROLE AUTHORITY IN RESPECT OF REVIEW OF REVOCATION ORDER” (Notification Letter). The Notification Letter contains the following statements (emphasis in original):

TAKE NOTICE that the State Parole Authority, at its meeting on 15 July 2025 considered the case of the abovenamed offender and determined the following:-

State Parole Authority declines to rescind the revocation.

Reason: The State Parole Authority is not satisfied that parole supervision can be effected in light of the stringent bail conditions set by the Supreme Court on 11 July 2025, or by the State Parole Authority imposing further additional conditions.

Stand over to 5 August 2025 for results of Downing Centre Local Court on 24 July 2025.

PLEASE ENSURE THAT A COPY OF THIS NOTIFICATION IS HANDED TO THE OFFENDER, READ TO THEM, ITS EFFECT EXPLAINED TO THEM, AND THEIR RIGHTS IN RESPECT OF THE STATE PAROLE AUTHORITY’S DETERMINATION EXPLAINED TO THEM.

28. Mr Haouchar now contends that the Notification Letter evinces a misapprehension by the SPA of its powers under the statutory scheme because, despite having made a determination to refuse Mr Haouchar’s rescission application, the SPA stood the matter over in circumstances where it was functus officio.

29. The covering email described the Notification Letter as the SPA’s “stand over memo dated 15 July 2025”. The email contained the following statements:

The State Parole Authority will continue to monitor your client’s court results administratively until such time as the outstanding matters are finalised.

Once this matter has a listing date to return to the Review Hearing at Court you will be advised of same.

…

30. The reference to the SPA monitoring Mr Haouchar’s “court results administratively until such time as the outstanding matters are finalised” presumably reflects the fact that, at that time, the charge against Mr Haouchar had not been certified by the Director of Public Prosecutions, nor had he been committed to trial.

31. On 24 July 2025, Mr Haouchar’s solicitor requested a copy of the “full decision of the Board” (emphasis in original). By an email in response dated 24 July 2025, the SPA’s secretariat told Mr Haouchar’s solicitor that the “matter is still under consideration by the Parole Authority as a final determination has not been made” (emphasis added).

32. On 30 July 2025, Mr Haouchar’s solicitor was provided with a transcript of the SPA hearing held on 15 July 2025.

33. By an email dated 30 July 2025, Mr Haouchar’s solicitor sought clarification of the SPA’s statement that Mr Haouchar’s matter was “still under consideration by the Parole Authority as a final determination has not been made”.

34. The SPA’s secretariat responded by email on the same day. It referred again to the “stand over memo” provided to Mr Haouchar’s solicitor on 16 July 2025 and reiterated that the SPA “will be monitoring the outstanding charges at Downing Centre Local Court”. It added that “a final decision will not be made until those charges are finalised”.

35. As noted above, the summons seeking judicial review was filed on 12 August 2025.

36. On 16 September 2025, Chen J ordered that the hearing of the summons be expedited. Expedition was sought on the basis that Mr Haouchar’s head sentence is due to expire on 25 April 2026 and an early hearing date of his summons was sought because, if successful, the matter would need to be referred back to the SPA for reconsideration before Mr Haouchar’s head sentence expires.

37. The SPA has filed a submitting appearance. The Attorney-General, who is named as the second defendant, is the only active defendant. So that the Court had the benefit of an active contradictor, the Attorney-General provided written and oral submissions. In his written submissions the Attorney stated “that the plaintiff’s grounds have some force”.

Relevant legislation summarised

38. The determination of both grounds of judicial review requires a close consideration of relevant provisions in both the CAS Act and the Crimes (Administration of Sentences) Regulation 2014 (NSW) (CAS Regulations) bearing upon the SPA’s powers and procedures relating to parole orders. The legislative provisions are relatively detailed and cover a wide range of issues concerning the grant/refusal of parole, the revocation of a parole order, the rescission of any such revocation, the conduct of SPA review hearings and an offender’s rights to participate, and the giving of reasons for certain decisions. As might be expected given the significance of the personal and community interests involved, the whole subject of parole is closely regulated.

38. Part 6 of the CAS Act provides for parole. Section 126 provides for the eligibility of an offender to be released on parole. An offender who is eligible for release on parole cannot be released on parole except in accordance with a parole order directing his or her release (s 127). A parole order is subject to conditions which are described as “the standard conditions” imposed by the CAS Act or the regulations, as well as any additional conditions imposed by the SPA (s 128(1)).

39. Sub-section 128(3) provides:

128   Conditions of parole generally

…

(3)  In determining whether to impose a condition on, or vary or revoke a condition of, a parole order under this section or any other provision of this Act or the regulations, the Parole Authority is to have regard to the following—

(a)  whether the new condition, variation or revocation will assist in the management of a risk to community safety arising from the release of the offender on parole,

(b)  the likely effect on any victim of the offender, and on any such victim’s family, of the new condition, variation or revocation,

(c)  whether the new condition, variation or revocation will assist in the management of the risk of breaches of parole by the offender.

41. An offender who is on release on parole is obliged to comply with all relevant requirements in Pt 6 and the regulations as apply to the offender, as well as with the requirements of any conditions attached to the offender’s parole order (s 129).

42. Provision is made for the SPA to revoke a parole order. Under s 130(1) the SPA is empowered, by an order in writing, to revoke a parole order at any time before the offender to whom the order relates is released if the SPA is satisfied, relevantly, that:

(a)  the offender, if released, would pose a serious identifiable risk to the safety of the community and that the risk cannot be sufficiently mitigated by directions from a community corrections officer or by changing the conditions of parole, or

(b)  the offender, if released, would pose a serious and immediate risk to the offender’s safety and that the risk cannot be sufficiently mitigated by directions from a community corrections officer or by changing the conditions of parole, or

…

(f)  in the case of a parole order made by the Parole Authority, there has been a substantial change to a matter considered by the Parole Authority in making the order, …

43. Division 2 of Pt 6 contains detailed provisions relating inter alia to the SPA’s consideration of whether an offender should be released on parole. Different provisions apply depending on whether or not the offender is a “serious offender” within the meaning of s 4 of the CAS Act. Division 2 applies where the offender has been sentenced to a period of imprisonment of more than 3 years for which a non-parole period has been set (which is the case with Mr Haouchar).

44. Sub-division 1 includes s 135 (to which reference was made in Mr Haouchar’s written submissions to the SPA). Relevantly, it provides:

135   General duty of Parole Authority relating to release of offender

(1)  The Parole Authority must not make a parole order directing the release of an offender unless it is satisfied that it is in the interests of the safety of the community.

(2)  In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must have regard to the following principal matters—

(a)  the risk to the safety of members of the community of releasing the offender on parole,

(b)  whether the release of the offender on parole is likely to address the risk of the offender re-offending,

(c)  the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole or at a later date with a shorter period of supervised parole.

(3)  In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must also have regard to the following matters—

(a)  the nature and circumstances of the offence to which the offender’s sentence relates,

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

(c)  the offender’s criminal history,

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

(e)  (Repealed)

(f)  any report in relation to the granting of parole that has been prepared by a community corrections officer,

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

…

(j)  any other matters that the Parole Authority considers to be relevant.

…

45. Sub-division 2 applies where an offender first becomes eligible for parole. It includes s 137:

137   Consideration of parole when offender first eligible for parole

(1)  The Parole Authority must consider whether or not an offender should be released on parole at least 60 days before the offender’s parole eligibility date.

(2)  Despite subsection (1), the Parole Authority—

(a)  may defer consideration of an offender’s case until not less than 21 days before the offender’s parole eligibility date if it is of the opinion—

(i)  that it is unable to complete its consideration because it has not been furnished with a report required to be made to it, or

(ii)  that there are other relevant matters requiring further consideration, and

(b)  may consider an offender’s case less than 60 days before the offender’s parole eligibility date where the Drug Court has revoked the offender’s compulsory drug treatment order.

46. Section 137A provides for the SPA to consider whether or not an offender should be released on parole in subsequent years. In effect, it requires the SPA, in specified circumstances, to review on at least an annual basis whether an offender who is eligible for release on parole should be so released:

137A   Consideration of parole in subsequent years

(1)  At any time within 90 days before an offender’s annual review date, the offender, if still eligible for release on parole, may apply to be released on parole.

(1A) For the purposes of this section, an offender’s annual review date occurs on each anniversary of the offender’s parole eligibility date.

(2)  After receiving such an application, but not more than 60 days before the offender’s annual review date, the Parole Authority must consider whether or not the offender should be released on parole.

(3)  Despite subsection (2)—

(a)  if the offender is unlawfully at large following revocation of parole, the Parole Authority is not required to consider the offender’s case until the offender is returned to custody, and

(b)  if the offender is unlawfully at large for the whole of one or more years following the revocation, the Parole Authority may decline to consider the offender’s case at all in relation to that year or those years, and

(c)  in any case, the Parole Authority may decline to consider an offender’s case for up to 3 years at a time after it last considered the grant of parole to the offender.

47. Section 137B is an important provision. It empowers the SPA to consider an offender’s case at any time after the offender becomes eligible for release on parole and without any need for an application, but only in such circumstances as may be prescribed by the regulations as constituting “manifest injustice”. Section 137B provides:

137B   Consideration of parole so as to avoid manifest injustice

The Parole Authority may consider an offender’s case at any time after the date on which the offender first becomes eligible for release on parole, and without the need for an application, in such circumstances as may be prescribed by the regulations as constituting manifest injustice.

48. Circumstances which are prescribed in reg 223 of the CAS Regulations as constituting “manifest injustice” for the purposes of s 137B include those in reg 223(1)(b) and (c), which are as follows:

223   Circumstances constituting manifest injustice

(1) For the purposes of section 137B of the Act, the following circumstances are prescribed as circumstances of manifest injustice where parole has been refused or revoked (whether before or after release)—

…

(b)  if it becomes apparent that a matter that was relevant to the decision to refuse or revoke parole is no longer relevant,

(c)  if it becomes apparent that a matter that was relevant to the decision to refuse or revoke parole has been addressed in a way that warrants reconsideration of the decision or can be so addressed by imposing additional conditions on parole,

…

49. Section 138 of the CAS Act provides for a release of an offender on parole. Sections 139 and 141 concern such matters as giving notice to an offender of a decision by the SPA to refuse parole, an offender’s right to apply for such a decision to be reconsidered and the conduct of a hearing by the SPA at which the offender has the right to make submissions.

50. The SPA is obliged by s 141 to decide whether or not the offender should be released on parole. Relevantly, it provides:

141   Decision following review

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

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

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

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

(a)  may be deferred once only, and

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

…

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

(a)    (Repealed)

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

51. It may be noted that the effect of s 141(2) is to permit the SPA to defer once only the question of whether or not an offender should be released on parole, and the period of deferral cannot be for more than 2 months. (The SPA is also empowered under cl 11(2) of Sch 1 to the CAS Act to adjourn its proceedings – see at [62] below.)

52. Divisions 3 and 4 of Pt 7 of the CAS Act provide for the revocation and reinstatement of parole for offenders who are serving a term of imprisonment.

53. If the SPA is satisfied that an offender has failed to comply with his or her obligations under a parole order, the parole order may be revoked (see 170A(2)(e) of the CAS Act).

54. A parole revocation order may be made whether or not the offender has been called on to appear before the SPA and whether or not the SPA has held an inquiry (s 171(1)).

55. The SPA must cause a revocation notice to be served on an offender if the offender’s parole order has been revoked by the SPA (s 173(1)). The revocation notice must set a date within the period of 14–28 days after the date of the service of the revocation notice for the SPA to meet for the purpose of reconsidering the revocation of the parole order (as well as the date on which the revocation order takes effect). The notice must also require the offender to notify the SPA if he or she intends to make submissions to the SPA in relation to the reconsideration of those matters. The notice must be accompanied by copies of the report and other documents used by the SPA in making the revocation decision (s 173(2)).

56. Section 174 provides for an SPA meeting to be convened if the offender duly notifies the SPA that he or she intends to make submissions regarding the revocation decision. It provides:

174   Review of revocation

(1)  If an offender duly notifies the Secretary of the Parole Authority that the offender intends to make submissions to the Parole Authority, the Chairperson of the Parole Authority must convene a meeting of the Parole Authority, on the date set by the revocation notice, to conduct a hearing for either or both of the following purposes, as the case requires—

(a)  for the purpose of reconsidering the revocation of the intensive correction order or parole order, or

(b)  for the purpose of reconsidering the date specified by the notice as the date on which the revocation order takes effect, if that date is an earlier date than the date on which the revocation order was made.

(2)  At the hearing, or at a hearing conducted at a subsequent meeting, the offender may make submissions to the Parole Authority with respect to the revocation of the intensive correction order or parole order.

57. Section 175 is an important provision. It relevantly requires the SPA to make a decision of a specified kind after reviewing the revocation of a parole order. That decision must be whether or not to (a) rescind the parole revocation order; or (b) rescind or vary the specification of the date as referred to in s 174(1)(b). Thus, although there is a statutory duty imposed upon the SPA to make a decision of the kind specified in s 175(1), the choice of which of the specified decisions is left to the SPA’s judgment, having regard to its review of all the material placed before it and the consideration of the offender’s behaviour.

58. Section 175 provides:

175   Decision after review

(1)  After reviewing all the reports, documents and other information placed before it, the Parole Authority must decide whether or not—

(a)  to rescind the revocation of the intensive correction order or parole order concerned, or

(b)  to rescind or vary the specification of the earlier day.

(1A)    (Repealed)

(2)  In determining a review of the revocation of a parole order, and without limiting subsection (1), the Parole Authority may take into account any behaviour of the offender, including whether the offender is alleged to have committed any offences while released on parole or after the revocation of the parole order.

…

(5)  If the Parole Authority rescinds the revocation of the intensive correction order or parole order concerned, the Parole Authority must cause the reasons for its decision to be recorded in its minutes.

59. The functions of the SPA are set out in s 185. For present purposes it is sufficient to note s 185(1)(a) and (2):

185 Functions of Parole Authority

(1) The Parole Authority has the following functions—

(a) to determine matters with respect to the granting of parole and the conditions on which parole is granted,

…

(2)  In exercising its functions, the Parole Authority—

(a)  must have regard to the fact that the Commissioner has the care, control and management of all offenders who are held in custody in accordance with Part 2, 3 or 4, and

(b)  must consider any submissions made to it by the Commissioner or by any other person or body entitled to make such submissions.

…

60. The SPA is required to cause “a record of its reasons” to be kept in the minutes of its meetings for, inter alia, decisions under Pt 7 that either result in the grant or refusal of parole or the revocation of a parole order (see s 193C(1)(a) and (b)). Section 193C relevantly provides:

193C   Parole Authority decisions

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

(a)  all decisions that result in the granting or refusing of a re-integration home detention order or parole,

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

…

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

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

(ii)  following a recommendation referred to in section 170 (3) or 170B (2),

…

(f)  any other decisions following a submission or recommendation by the Commissioner or the State.

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

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

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

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

…

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

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

61. It is notable that s 193C(2) is the only provision which casts direct light on what must be included in a record of reasons relating to the SPA’s decisions under Pts 6 and 7. Moreover, that provision is confined to decisions under Div 2 of Pt 6 and therefore does not apply, for example, to a decision to refuse to rescind an order revoking a parole order.

62. Regulation 230 of the CAS Regulations requires the SPA to keep a record in writing or otherwise of its proceedings and to specify particular matters which need to be recorded. It provides:

230   Records of proceedings

The Parole Authority must keep a record (in writing or otherwise) of the proceedings of the Parole Authority, including a record of—

(a)  whether the State has appeared or been represented before the Parole Authority, and

(b)  the persons appearing or represented before the Parole Authority, and

(c)  the submissions, if any, made by the State or a person referred to in paragraph (b), and

(d)  the reasons, if any, stated in support of the submissions.

63. Clause 11 of Sch 1 of the CAS Act is important in assessing Mr Haouchar’s procedural unfairness complaint (particularly cl 11(4)(b) and (c)). The clause is headed “General procedure” and provides:

11   General procedure

(1)  Except as otherwise provided by this Act or the regulations—

(a)  meetings of the Parole Authority are to be held at such times and places as are fixed by the Chairperson, and

(b)  the procedure for the convening of meetings of the Parole Authority and for the conduct of business at those meetings is to be as determined by the Chairperson.

(2)  The Parole Authority may from time to time adjourn its proceedings to such times, dates and places and for such reasons as it thinks fit.

(3)  The Parole Authority is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks appropriate.

(4)  Proceedings before the Parole Authority—

(a)  are to be open to the public, unless the Parole Authority determines in a particular case that the proceedings are to be conducted wholly or partly in the absence of the public, and

(b)  are not to be conducted in an adversarial manner, and

(c)  are to be conducted with as little formality and technicality, and with as much expedition, as fairness to any affected person and the requirements of this Act permit.

(5)  A decision of the Parole Authority is not vitiated merely because of any informality or want of form.

(6)  The Parole Authority may, if it thinks fit, hold a meeting at which some members participate by telephone, closed-circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members and by members of the public (if the meeting is open to the public).

Consideration and determination

64. To avoid adding unduly to the length of these reasons I will address the parties’ primary submissions in this section, when considering Grounds 1 and 2 respectively. It might be noted at the outset, however, that the presentation of Mr Haouchar’s judicial review case shifted, not only in his written submissions prepared by Mr Chhabra, but also perhaps more profoundly in the oral submissions which were presented by Mr Lenehan SC (who appeared for Mr Haouchar at the hearing together with Mr Chhabra).

(a) Ground 1: Procedural unfairness

65. In his written outline of submissions, Mr Haouchar first sought to argue that he was denied procedural fairness in circumstances where the SPA purported on 15 July 2025 to make a final determination under s 175 of the CAS Act not to rescind the revocation of his parole order, but then proceeded to stand the matter over to 5 August 2025 pending the outcome of a proceeding in the Local Court scheduled for 24 July 2025 relating to the charge of conspiracy to murder. Mr Haouchar submits that the position is analogous to that in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41 at [76]–[77]. He contends that his detention was unlawfully prolonged by the SPA’s actions.

65. It is difficult to see how this particular complaint involves procedural unfairness. If the SPA erred by making a final determination not to rescind the parole revocation order while standing over the matter to a future date, that error is more likely to be of a substantive and not a procedural nature (this may be why, in his oral submissions, Mr Lenehan SC addressed this alleged error under Ground 2 and not the procedural fairness head). It is also difficult to understand Mr Haouchar’s contention that his detention was “unlawfully prolonged”. That contention assumes that the SPA was obliged to rescind the parole revocation order. Plainly, the SPA had some discretion under s 175 in relation to that matter (see at [56] above).

66. In any event, I am not satisfied that any reviewable error is established as claimed by Mr Haouchar. I accept Mr Haouchar’s submission that, on 15 July 2025, the SPA made a “final” determination of his rescission application, as is reflected in the terms of the formal Notification Letter sent to the Governor of the Corrections Centre. The Notification Letter speaks for itself. It gave notification that the SPA had made a determination in respect of its review of the revocation order based upon the material which was before the SPA at the hearing on 15 July 2025. Subject to other provisions in the CAS Act, such a determination is “final” (see s 193C(4)). That is not to say, however, that this was the end of the matter, as is made clear in the emails sent on 24 and 30 July 2025 by the SPA secretariat (see at [30] and [33] above).

67. In the light of the history of Mr Haouchar’s case, these emails should be read as confirming that, despite the determination made on 15 July 2025 in response to Mr Haouchar’s rescission application, Mr Haouchar’s case for parole would continue to be reviewed, with particular reference to the outcome of proceedings in the Local Court concerning the charge of conspiracy to murder, which was unknown as at 15 July 2025. The reference to Mr Haouchar’s case being “stood over” post the hearing and determination on 15 July 2025 is consistent with the previous history of the matter, which involved his case being stood over or adjourned on several occasions at the behest of either the SPA or Mr Haouchar himself pending any further relevant developments (see at [10]–[14] above).

68. In his outline of written submissions, Mr Haouchar’s procedural unfairness case took another direction. With reference to the reason given by the SPA in the Notification Letter, he claims that he was given inadequate notice of the SPA’s concerns regarding whether he could adequately be supervised on parole in light of the “stringent bail conditions” dated 11 July 2025 or by the SPA imposing further additional conditions (the intersection issue). Mr Haouchar draws attention to the fact that, as is reflected in the transcript, Mr Peters gave “positive evidence” at the SPA hearing to the effect that Community Corrections could adequately manage Mr Haouchar if he was released on parole. Mr Haouchar contends that he was “given no opportunity in the circumstances to be heard on this issue, which could have resulted in a different outcome if such an error had not occurred”.

69. This particular complaint of procedural unfairness was elaborated on by Mr Lenehan SC in oral address. He cited the following statement of principle in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] per French CJ and Kiefel J (footnote omitted):

Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision…

71. Mr Lenehan SC submitted that this principle applied here, in circumstances where Mr Peters’ opinion that Community Corrections could adequately supervise Mr Haouchar’s parole constituted “known material”. He submitted that it was not obvious from that material that the SPA would not accept that opinion and Mr Haouchar was given no opportunity to address the reservations that the SPA must have had regarding Mr Peters’ opinion. I shall now explain why I do not accept those submissions.

72. Although it is common ground that the SPA owed Mr Haouchar procedural fairness in making its determination, the core issue is the content of procedural fairness requirements in the particular circumstances. That content is not immutable. It falls to be determined by a careful examination of the CAS Act, the CAS Regulations and other relevant circumstances. As Kitto J observed in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503–4; [1963] HCA 41 (footnotes omitted):

… Even if the Board is bound in law to act “in the spirit and with the sense of responsibility of a tribunal whose duty is to mete out justice” (to quote Lord Haldane's words in Local Government Board v. Arlidge) it does not follow (and his Lordship proceeded immediately to say so) that the procedure of each such tribunal must be the same: “what that procedure is to be in detail must depend on the nature of the tribunal”. And notwithstanding what Lord Loreburn said in Board of Education v. Rice about “always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view”, the books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin. As Tucker L.J. said in Russell v. Duke of Norfolk, in a passage approved by the Privy Council in University of Ceylon v. Fernando, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: “the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth”. What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business. What is a fair opportunity to allow the taxpayer in a given case is a question which by its very nature forbids an answer in disregard of the interests of other people. This is particularly true where, as here, the statute giving rise to the duty of decision expressly recognizes and aims to protect the interests of others which may come into competition with those of the taxpayer…

73. Although Kitto J’s observations were directed to procedural fairness requirements owed by a Taxation Board of Review, they have a wider application and resonance.

74. So too do the following observations of Brennan J in National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 326; [1984] HCA 29 (footnotes omitted):

The terms of the statute which creates the function, the nature of the function and the administrative framework in which the statute requires the function to be performed are material factors in determining what must be done to satisfy the requirements of natural justice: see FAI Insurances Ltd v Winneke; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group.

75. The content of procedural fairness requirements is to be determined not only by relevant common law principles, but also by the following features of the statutory scheme which highlight the nature of the SPA’s hearing and how it is to be conducted, together with the subject matter (which involves not only Mr Haouchar’s personal interests but also the safety of the community):

1. The SPA was obliged to conduct a hearing for the purpose of reconsidering the parole revocation order in circumstances where Mr Haouchar indicated that he wished to make submissions, but the proceeding was not to be conducted in an adversarial manner (cl 11(4)(b) of Sch 1).

2. The proceeding was to be conducted with as little formality and technicality, and with as much expedition as fairness to Mr Haouchar and the requirements of the CAS Act permitted (cl 11(4)(c) of Sch 1).

3. The rules of evidence did not apply, and the SPA could inform itself of any matter in such manner as it thought appropriate (cl 11(3) of Sch 1).

4. The SPA was obliged to consider any submissions made by Mr Haouchar (which should be read broadly as including any relevant material provided by him in support of those submissions (s 185(2)(b)).

5. In considering whether or not to accept and act upon submissions made by either Mr Haouchar or information provided by Mr Peters on behalf of Community Corrections, the members constituting the Panel conducting the hearing were entitled to apply their own judgment and expertise, noting the qualifications for membership of the SPA in s 183 (see also s 184).

76. I consider that Mr Peters’ opinion before the SPA should not be looked at in isolation from other material and circumstances which demonstrate that Mr Haouchar had adequate prior notice of the broader intersection issue to which Mr Peters’ statements related.

77. It is notable that the issue was explicitly addressed by Mr Haouchar’s legal representatives in the bundle of material provided to the SPA in advance of the hearing, as well as in Mr Ozen SC’s oral submissions at the hearing itself (see at [19] and [21]–[23] above). Necessarily, therefore, Mr Haouchar’s legal representatives appreciated that the intersection issue was relevant and would be considered by the SPA. That appreciation was presumably informed not only by their knowledge of Mr Haouchar’s case, but also by their knowledge and understanding of the regulatory scheme (in particular, ss 130(1), 135 and 175 of the CAS Act). The intersection issue was also alluded to by the Chairperson and one of the members involved in the hearing (see at [22] and [24] above). I am comfortably satisfied that Mr Haouchar had an adequate opportunity to address the intersection issue.

78. For completeness, I should also say something regarding the emphasis which was given in Mr Haouchar’s outline of written submissions to the connection between his procedural unfairness complaint and his claim that the SPA’s reasons for its determination were inadequate. In oral address, Mr Lenehan SC acknowledged that there were difficulties with this contention. I shall now explain why that acknowledgment was rightly made.

79. There is a helpful analysis by Beech-Jones J of what constitutes an adequate record of reasons for the purposes of s 193C of the CAS Act in Attorney General of New South Wales v Chiew Seng Liew [2012] NSWSC 1223 at [93]ff. His Honour drew attention to the following relevant matters:

1. In considering such “reasons”, a court should apply the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 (as to which see Attorney General (NSW) v New South Wales State Parole Authority [2006] NSWSC 865 at [49] per McClellan CJ at CL).

2. In contrast with the common form of statutory provisions that require an administrative decision-maker to provide a statement of reasons (which usually require a decision-maker to identify the findings of fact and evidence on which those findings were based, as well as give reasons for a decision), the “reasons” required under s 193C are only to be recorded in the minutes of the SPA and the only persons who were entitled to receive copies were the Minister, the Commissioner and Community Corrections. The defendant in Liew submitted that this might suggest that the requirement to record the reasons is not designed to facilitate appeal rights “but was effectively more for the purposes of internal record keeping within the Authority and other interested government bodies” (at [77]).

3. A “notable feature” of s 193C is that it contains no express requirement for the SPA to record any findings of fact (at [96]).

4. Although not expressing a final view on the matter, Beech-Jones J said at [103] that he was unconvinced that a failure to comply with s 193C necessarily gave rise to a jurisdictional error. In the absence of fuller argument, his Honour also declined to express any view on whether such failure would amount to an error of law on the face of the record (at [106]).

80. As Mr Haouchar pointed out, it has been held that a decision not to rescind the revocation of a parole order is a decision to which s 193C applies (presumably because such a decision results in the refusal of parole and therefore falls within s 193C(1)(a)). Thus, the SPA must cause a record of its reasons to be kept in the minutes of the meeting: see Samandi v State Parole Authority [2021] NSWSC 1037 at [53] per Davies J. After referring to the terms of s 175(2) of the CAS Act, Davies J stated at [71] that the SPA was not bound to take into account any particular consideration in determining a review of the revocation of a parole order, but was entitled to take into account any such behaviour of an offender (while noting that the SPA was not bound to take any such behaviour into account). His Honour also noted at [74] that the SPA was not bound by the rules of evidence and could inform itself of any matter in such manner as it thinks appropriate (referring to cl 11 of Sch 1 to the CAS Act) and was entitled to take into account allegations of an offender’s wrongdoing.

81. Applying the principles in Liew and Samandi, I do not regard the reasons given by the SPA in the Notification Letter to be inadequate in law (the evidence is unclear whether the reason was also recorded in the minutes). It is true that the basis for the decision not to rescind the parole revocation order is pithily expressed, but there was no legal requirement for the SPA to elaborate upon the stated reason or to refer to any evidence or other material on which the reason was based. Nor was there any legal requirement for the SPA to state findings of fact.

82. I might also add that even if, contrary to the above, the reasons were inadequate, it is far from certain that any such error would amount to either a jurisdictional error or an error of law on the face of the record, having regard to what was said in Liew.

83. I reject Mr Haouchar’s contention that there is analogy between his case and that in Minister for Immigration & Ethnic Affairs v Tagle (1983) 67 FLR 164. That case involved a statement of reasons under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Where it applies, s 13 requires a decision-maker to set out in such a statement findings on material questions of fact, refer to the evidence or other material on which those findings are based and to give reasons for the relevant decision. The required content or standard of such a statement is very different from what amounts to an adequate record of reasons for the purposes of s 193C of the CAS Act.

84. Finally, Mr Haouchar’s complaint of procedural unfairness is truly a challenge to the merits of the SPA’s decision, not its procedure or method. It was a matter for the members conducting the review to decide whether or not to act upon Mr Peters’ opinion and they were not obliged to invite Mr Haouchar’s response prior to making that assessment. They were not obliged to reveal their thought processes or tentative views (see SZGUR at [9]). Mr Haouchar’s complaint invites the Court to embark upon an impermissible review of the merits of the decision, which is beyond the proper judicial review function. As Brennan J observed in Kioa v West (1985) 159 CLR 550 at 622; [1985] HCA 81 (footnotes omitted):

It does not diminish the importance of the principles of natural justice to say that they are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise - "that the procedure ... shall be fair in all the circumstances", as Lord Reid said in Wiseman v. Borneman. The distinction between method and merits is sometimes elusive. The merits are for the repository of the power alone, and a repository of power is not to be held in breach of the principles of natural justice merely because he has come to a decision which, to the eyes of the court, appears unjust: cf. Chief Constable v. Evans; Re Evershed and the Queen.

85. For all these reasons, Ground 1 is rejected.

(b) Ground 2: Misapprehension of statutory scheme

86. As previously noted, Ground 2 was presented differently in Mr Haouchar’s written and oral submissions. His written submissions described this ground as a failure to consider his rescission application on its merits. In contrast, his oral submissions characterised the error as a misapprehension of the statutory scheme on the part of the SPA. This was because the SPA made a final determination refusing Mr Haouchar’s rescission application but also stood the matter over in circumstances where Mr Haouchar claims that the SPA was functus officio.

87. I will now explain why I reject both formulations of Ground 2.

(i) Failure to consider the rescission application on its merits

88. In brief, Mr Haouchar’s written submissions in support of this formulation of Ground 2 are as follows:

1. Although the SPA stated that the matter had been stood over, the Court should find that the SPA made a final determination under s 175, consistently with the heading of the Notification Letter dated 15 July 2025.

2. The SPA declined to provide more substantive reasons for its determination pending the resolution of the conspiracy to murder charge against Mr Haouchar.

3. This approach evidences the SPA’s failure to consider Mr Haouchar’s rescission application on its merits.

4. The SPA provided inadequate reasons for its final determination and also failed to consider Mr Haouchar’s rescission application on its merits. This is reflected in [41] of his written submissions:

The plaintiff is subject to a confinement of his liberty as a result of a substantive decision, absent adequate reasons justifying the substantive outcome, or any consideration of the application on its merits. The effect of the conduct of the SPA is to defer the decision-making, while subjecting the plaintiff to the effects of the substantive outcome, until such time as the consideration of the issue will be separately resolved as a result of the outcome of the criminal proceedings, or the conclusion of his parole period, whichever comes first.

5. Mr Haouchar contends that his situation is broadly analogous to that of Osman v Parole Authority of NSW [2021] NSWSC 975 at [22]–[24] per Fagan J, where his Honour emphasised a need for decisions under s 175 to be made promptly and, if there was a need to adjourn to gather further information, it was highly desirable that this be only for a period “that is very short relative to the remaining term of the sentence and the ICO”. Mr Haouchar acknowledged that while Osman related to the revocation of an Intensive Corrections Order, Fagan J’s observations also apply to rescinding a parole revocation order. He contended that, assuming that the conspiracy to murder charges against him are certified, proceed to committal and then to a criminal trial, there were no prospects of the rescission issue being resolved by his release date in late April 2026.

5. It is well to set out paragraph 44 of Mr Haouchar’s written submissions, which relate to Ground 2:

In effect, the SPA’s determination is to act as if bound by the outcome of the pending criminal proceedings in making their determination under s 175 of the CAS Act, rather than to engaging [sic] in an assessment of the merits of the plaintiff’s application, having regard to the matters raised by the plaintiff in the hearing. This is demonstrative of the SPA inappropriately treating the fact of charge as a fetter on the discretion of the SPA, and a failure of the SPA to properly engage in and consider the merits of the plaintiff’s application.

89. Mr Haouchar carries the burden of establishing this established head of judicial review (which usually arises in the context of a claim that a decision-maker has adopted and applied an inflexible policy, but might also be described as a constructive failure to exercise jurisdiction). That is a difficult task, particularly where the stated reason for the SPA’s decision was expressed as succinctly as it was here. But for the reasons given above, the SPA was not required to elaborate upon that reason. Mr Haouchar has not persuaded me that there is any basis to doubt that the SPA gave full consideration to all the material before it, as well as the particular matter referred to in s 175(2), before making its determination.

90. Merely because the SPA also stood over Mr Haouchar’s case pending the proceedings in the Local Court does not suggest that it failed to consider his rescission application on its merits. Rather, I consider the correct analysis is that, having made a determination on 15 July 2025, the SPA nevertheless acknowledged that further consideration of Mr Haouchar’s case may be required depending on the outcome of the proceedings in the Local Court. That falls far short of indicating that Mr Haouchar’s application for rescission had not been considered on its merits on 15 July 2025. Rather, it suggests that the SPA made a determination on 15 July 2025 based on the material which was then available. But the SPA continued to recognise that Mr Haouchar’s circumstances were fluid and the revocation of the parole order may need to be reviewed in the light of future developments.

(ii) Misapprehension of statutory scheme

91. Mr Lenehan SC submitted that the SPA fell into error because, having made a formal determination to refuse Mr Haouchar’s rescission application as reflected in the terms of the Notification Letter, it proceeded to stand the matter over. Mr Lenehan SC submitted that this was impermissible because the SPA was functus officio having determined the application. He submitted that this was analogous to the jurisdictional error identified by the High Court in Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33 at [68], where the Minister made a decision but based on a misunderstanding regarding the scope and operation of a provision in the Migration Act 1958 (Cth).

92. The resolution of this issue turns on how the Notification Letter should properly be read and understood. Mr Haouchar contends that it should be read as meaning that despite having made a final determination to refuse his rescission application, it stood over further consideration of that particular application pending developments in the Local Court. In other words, Mr Haouchar contends that what was stood over in the Notification Letter was further consideration of Mr Haouchar’s rescission application relating to s 175 of the CAS Act.

93. Mr Tran (who, together with Ms Haidary, appeared for the Attorney-General) acknowledged that this was one possible reading of the Notification Letter, but he also submitted that it was amenable to two other readings:

1. The SPA had made a final decision under s 175, but stood over Mr Haouchar’s case more generally pending developments in the Local Court.

2. The SPA adjourned the hearing, exercising its power under cl 11(2) of Sch 1 to the CAS Act.

94. For the following reasons, I consider that the Notification Letter is fairly to be read in accordance with the first of Mr Tran’s alternative readings and not in the manner suggested by Mr Lenehan SC.

95. In construing the Notification Letter, it is well to bear in mind that it contains the stated reason for the SPA’s decision not to rescind the revocation. As noted above, such reasons attract the principle in Wu Shan Liang. I acknowledge that only part of the Notification Letter constitutes the reasons of the SPA’s decision not to rescind the parole revocation order. But the letter also needs to be read as a whole and in light of all relevant circumstances as at 15 July 2025. Those circumstances include the fact that the SPA was aware at that time that the conspiracy to murder charge against Mr Haouchar was returning to the Local Court on 24 July 2025. The SPA was also aware that there could be developments concerning that charge which might affect whether Mr Haouchar should be released on parole.

96. The SPA’s consideration of Mr Haouchar’s case was not confined to s 175. As noted above, the SPA also has power under s 137B to consider an offender’s case at any time after the date on which the offender first becomes eligible for release on parole and without the need for any application, so as to avoid manifest injustice as prescribed in reg 223. Those prescribed circumstances include where it becomes apparent that a matter that was relevant to a decision to refuse or revoke parole is no longer relevant or where such a matter has been addressed in a way that warrants reconsideration. In the light of all these matters, I consider it reasonable to infer that the SPA’s decision to stand Mr Haouchar’s case over to 5 August 2025 reflected the SPA’s understanding that it had an ongoing statutory role and function in relation to Mr Haouchar’s case under s 137B, independently of s 175.

97. Having regard to the terms of the Notification Letter and the explicit reference therein to the SPA having made a determination, I do not accept that it should be read in the alternative manner suggested by Mr Tran (see at [92(b)] above).

98. Finally, I do not accept Mr Haouchar’s contention that Osman supports his case. I respectfully agree with Fagan J’s observations at [24] regarding the desirability of any adjournment of the SPA’s proceedings being for a relevantly short time. What his Honour had in mind, however, was an adjournment which deferred the making of a determination. That is not what occurred here. I have accepted Mr Haouchar’s contention that the Notification Letter conveyed a “final” determination. I consider that the determination was based on the material which was then available. The SPA envisaged, however, that there may be a need for the matter to be further considered depending on the outcome of the Local Court proceedings, a matter over which it had no control.

99. For these reasons, I reject Ground 2.

Conclusion

100. For all these reasons, the summons filed 12 August 2025 will be dismissed, with costs.

**********

Decision last updated: 24 October 2025