Lodhi v Attorney-General (Cth)

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FEDERAL COURT OF AUSTRALIA

Lodhi v Attorney-General (Cth) [2020] FCA 1383  

File number: NSD 551 of 2020
Judgment of: BROMWICH J
Date of judgment: 28 September 2020
Catchwords:  ADMINISTRATIVE LAW – application for judicial review of parole decision – terrorism offence – where the making of a parole order was statutorily prohibited unless Attorney-General satisfied that exceptional circumstances exist to justify the order pursuant to s 19ALB of Crimes Act 1914 (Cth) – where extrinsic legislative material of no assistance in determining judicial review application – where Court cannot conduct merits review – whether Attorney-General’s decision affected by Wednesbury unreasonableness or legal unreasonableness – whether Attorney-General failed to give adequate reasons – held: decision within range of permissible conclusions – decision not unreasonable only because different conclusions could have been reached – reasons adequate for jurisdictional task – application dismissed
Legislation:

Criminal Code (Cth) s 101.5, s 101.6

Criminal Code Act 1995 (Cth)

Crimes Act 1914 (Cth) s 15AA, s 19AKA, s 19AL(1), s 19AL(2), s 19ALA(1), s 19ALA(1)(h), s 19ALB(1), s 19ALB(2)(a), s 19AP(4)

Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 (Cth)

Acts Interpretation Act 1901 (Cth) s 25D

Migration Act 1958 (Cth) s 430(1), s 476(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(b)
Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27

Associate Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Baker v The Queen [2004] HCA 45; 223 CLR 513

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352

Hammoud v DPP (Cth) [2006] VSC 516

Hasim v Attorney-General (Cth) [2013] FCA 1433; 218 FCR 25

Hatcher v Cohn [2004] FCA 1548; 139 FCR 425

House v The King (1936) 55 CLR 499

Kruger v Commonwealth (1997) 190 CLR 1

Lopez-Avila v K & S Freighters Pty Ltd [2015] FCA 962; 68 AAR 86

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

Minister for Immigration v Eden [2016] FCAFC 28; 240 FCR 158

Public Service Board v Osmond (1986) 159 CLR 656

R v JS [2007] NSWCCA 272; 230 FLR 276

R v Kelly (Edward) [2000] QB 198 at 208

R v NK [2016] NSWSC 498

R v Naizmand [2016] NSWSC 836

Re Bolton; Ex parte Beane (1987) 162 CLR 514

Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252

Toms v Harbour City Ferries Pty Ltd

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Details
Case
[2020] FCA 1383
Decision Date

CaseChat Overview and Summary

In the matter of Lodhi v Attorney-General (Cth), the applicant, Mr Lodhi, sought judicial review of the second refusal of parole by the Attorney-General, following a statutory amendment that significantly restricted the power to grant parole in cases involving terrorism offences. The primary legal issue before the court was whether the Attorney-General's decision was affected by Wednesbury unreasonableness or legal unreasonableness, and whether the Attorney-General had failed to provide adequate reasons for the decision. The court also needed to determine if the decision was within the range of permissible conclusions and if the reasons provided were adequate for the jurisdictional task.

The court found that the Attorney-General's decision to refuse parole was within the range of permissible conclusions and was not unreasonable merely because different conclusions could have been reached. The statutory framework, particularly section 19ALB of the Crimes Act 1914 (Cth), gave the Attorney-General a broad discretion to decide on parole, and the decision was based on the principle that exceptional circumstances must exist to justify parole for someone convicted of a terrorism offence. The court also concluded that the Attorney-General's reasons were adequate for the jurisdictional task, as they were sufficient to show that the decision-maker considered relevant factors and reached a permissible conclusion. The extrinsic legislative material did not assist in determining the judicial review application, and the court was unable to conduct a merits review.

The court dismissed Mr Lodhi’s application for judicial review. It ordered that the further amended originating application be dismissed and that the applicant pay the respondent’s costs as assessed or agreed. The entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The further amended originating application be dismissed.

2. The applicant pay the respondent’s costs as assessed or agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

After Mr Lodhi’s parole was refused the first time in April 2019, the federal parole provisions were made considerably harsher by providing that the Attorney-General must not make a parole order for someone in Mr Lodhi’s situation unless satisfied that “exceptional circumstances” exist to justify it. On 14 April 2020, the Attorney-General again refused to make a parole order (second parole decision). Very short reasons were given for that decision, in the context of a detailed submission, with 16 attachments, from the Attorney-General’s Department. By a further amended originating application, Mr Lodhi seeks judicial review of the second parole decision, challenging the conclusion that exceptional circumstances had not been established. The parole provisions as amended in 2019 Part 1B, Division 5, Subdivision A of the Crimes Act 1914 (Cth) provides for the release of federal offenders on parole or by licence. In the absence of any State or Territory sentences being served, the provisions that are relevant to the present situation of parole refusal relevantly state:(1)The purposes of parole are protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community: s 19AKA.(2)Before the end of a federal non-parole period, the Attorney-General must either make or refuse to make an order directing that the offender be released on parole: s 19AL(1).(3)If the Attorney-General refuses to make a parole order, within 14 days of that refusal written notice must be given informing the offender of the refusal, including reasons, and advising that reconsideration must take place within 12 months of that refusal: s 19AL(2).(4)In making a parole decision under s 19AL, the Attorney-General may have regard to a list of matters set out in s 19ALA(1), including in particular any report or information in relation to the granting of parole by the relevant State or Territory corrective services or parole agency: s 19ALA(1)(h).(5)Per s 19ALB(1), which came into effect on 12 December 2019:Despite any law of the Commonwealth, the Attorney-General must not make a parole order in relation to a person covered by subsection (2) unless the Attorney-General is satisfied that exceptional circumstances exist to justify making a parole order.(6)The Attorney-General is prohibited from making a parole order in relation to a person who has been convicted of a terrorism offence: s 19ALB(2)(a). It is common ground that Mr Lodhi is such a person, and that therefore s 19ALB(1) applied to the second parole decision. The Attorney-General submits, and Mr Lodhi does not dispute, that the following propositions arise from the statutory framework for federal parole, including the provisions referred to above:(a)the power to release or not release a federal offender on parole concerns the administration of criminal justice;(b)that power is conferred on a Minister of State (the Attorney-General), rather than some statutory body (such as a state parole authority);(c)while s 19AL(1) requires the Attorney-General to make a decision in relation to parole, the Attorney-General has a discretion to grant or refuse parole;(d)s 19ALA [not s 19AM as stated in the Attorney-General’s submissions], while setting out a wide range of factors that the Attorney-General can take into account, does not make consideration of any of the factors mandatory and – significantly – does not limit the factors to which the Attorney-General can have regard;(e)the Crimes Act contains no process for how consideration of release on parole is to be undertaken. It is essentially a matter for the Attorney-General to determine a procedure that is reasonable and will avoid practical injustice or unfairness having regard to the circumstances of the particular case. What is required may vary having regard to what has already occurred and what is said or done during the process; and(f)when the Attorney-General refuses to release a federal offender on parole the Attorney-General must reconsider the decision within 12 months (there is no minimum period that must pass before the Attorney-General reconsiders a refusal).The explanatory memorandum and second reading speech in relation to s 19ALB

Ratio Decidendi

Legal Principle Established

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