Luke Marsh v Australian Capital Territory
[2014] ACTSC 81
•7 May 2014
HUMAN RIGHTS ACTS
LUKE MARSH v AUSTRALIAN CAPITAL TERRITORY
[2014] ACTSC 81 (7 May 2014)
ADMINISTRATIVE LAW – Judicial Review – Failure to observe required procedure at SAB hearing – Departure from procedure will not automatically render a decision invalid – Failure of Director-General to ensure an audio-visual recording of proceedings was made does not invalidate the decision – Ground dismissed
ADMINISTRATIVE LAW – Judicial Review – Conflict of interest – Claimed interests very generic – Interest must be identified – Interest must be material – No material interest – Ground dismissed
ADMINISTRATIVE LAW – Judicial Review – Failure to take account relevant material – Material information – Information to be considered must have some reasonable relevance to the decision – Evidence that SAB considered the medical information and gave it careful consideration – Ground dismissed
ADMINISTRATIVE LAW – Judicial Review – Whether SAB allowed applicant to make final submissions – Applicant asked if he would like to make submissions – Words “is there anything you would like to say” are plain English and not legalistic – Ground dismissed
ADMINISTRATIVE LAW – Judicial Review – Applicant not informed of his right to legal representation – A person may be legally represented at SAB hearing – Applicant had been represented on previous occasions and knew of this right to choose legal representation – Right to legal representation does not mean that legal representation must be provided – Ground dismissed
ADMINISTRATIVE LAW – Judicial Review – Failure to take account relevant considerations – Not all submitted material must be taken into account – Material must have some reasonable relevance to the decision – Flooding of applicant’s home not relevant to SAB decision – Ground dismissed
ADMINISTRATIVE LAW – Judicial Review – Breach of natural justice – Failure to make appropriate enquiries – Failure to call a witness – Witness could not have given information of material advantage to the applicant – Ground dismissed
Administrative Decisions (Judicial Review) Act 1989 (ACT), s 5(1)(b)
Bail Act 1992 (ACT), s 9E
Crimes (Sentence Administration) Act 2005 (ACT), ss 161, 177, 178, 195, 196, 202, 204, 208, 209, 211, Pt 9.2
Human Rights Act 2004 (ACT), s 21
Peter W Young, Clyde Croft and Megan Louise Smith, On Equity (Lawbook Co: Sydney, 2009), p 537
European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (INT) done at Rome on 4 November 1950, ETS 5, Art 6
Aberdeen Railway Co v Blaikie Bros [1843-1860] All ER Rep 249
Australian Federal Police Act 1979 (Cth), ss 40ZA, 60A
Australia and New Zealand Banking Group Ltd v Bangadilly Pastoral Co Pty Ltd (1978) 139 CLR 195
Bennetts v Board of Fire Commissioners of New South Wales (1967) 87 WN (Pt 1) (NSW) 307
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 383
Chan v Zacharia (1984) 154 CLR 178
Dietrich v The Queen (1992) 177 CLR 292
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Forman v ACT Planning and Land Authority (2013) 279 FLR 54
Graham v Baptist Union of New South Wales [2006] NSWSC 818
Hopkins v Smethwick Local Board of Health (1890) 24 QBD 712
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Ingerson v Styles (Unreported, South Australia Supreme Court, Bollen J, 23 October 1987)
Johnson v Johnson (2000) 201 CLR 488
Kenny v Ritter (2009) 52 MVR 360
Lawal v Northern Spirit Ltd [2004] 1 All ER 187
Lewis v Chief Executive, Department of Justice andCommunity Safety (ACT) (2013) 280 FLR 118
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Maher v Carpenter [2012] ACTSC 38
McGibbon v Linkenbagh (1996) 41 ALD 219
Miailhe v France (No 2) (1996) 23 EHRR 491
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Moore v Guardianship and Administration Board [1990] VR 902
Morro v Australian Capital Territory (2009) 4 ACTLR 78
Old St Bonifaci Resident’s Association v Winnipeg City (1990) 75 DLR (4th) 385
Phipps v Boardman [1967] 2 AC 46
Porter v Magill [2002] AC 257
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Re Application for Bail by Islam (2010) 4 ACTLR 235
Re Broadcasting Boulting v Association of Cinemetograph, Television and Allied Technicians [1963] 2 QB 606
R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 456
R v Dhaimat (No 1) [2014] ACTSC 42
Re Mullen [1995] 2 Qd R 608
R (Roberts) v Parole Board [2005] 2 AC 738
Sharpe v Brown [1918] VLR 678
Station 2GB Ltd [1964-5] NSWR 1648
SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22
Wilson v London Midland and Scottish Railway Co [1940] Ch 169
No. SC 2 of 2014
Judge: Refshauge J
Supreme Court of the ACT
Date: 7 May 2014
IN THE SUPREME COURT OF THE )
) No. SC 2 of 2014
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:LUKE MARSH
Plaintiff
AND:AUSTRALIAN CAPITAL TERRITORY
Defendant
ORDER
Judge: Refshauge J
Date: 7 May 2014
Place: Canberra
THE COURT ORDERS THAT:
The application is dismissed.
The parties be heard as to any other orders.
Introduction
On 20 September 2011, Luke Marsh was sentenced in the ACT Magistrates Court to an effective term of fifteen months’ imprisonment and the Court fixed a non-parole period to expire on 19 June 2012.
That was later extended, in circumstances I set out below, to 6 May 2013 and on 21 May 2013, a parole order was made.
On 23 December 2013, however, Mr Marsh’s parole order was revoked and he now seeks judicial review of that decision.
The background
As noted above (at [1]), Mr Marsh was sentenced, so far as these proceedings are concerned, on 20 September 2011 for an offence of obstructing a Territory official and three offences of common assault. The sentence totalling fifteen months imprisonment, was directed to commence on that day with a non-parole period to end on 19 June 2012.
On 22 September 2011, Mr Marsh lodged an appeal against the sentence, but on 5 December 2011, that appeal was dismissed.
In circumstances that I do not entirely understand, it was said that Mr Marsh was re-sentenced to an effective term of fifteen months’ imprisonment, with a non-parole period to expire on 9 July 2012.
On 16 December 2011, again in circumstances I do not completely understand, Mr Marsh lodged an appeal against the re-sentence and he was granted bail by the Court pending the appeal.
On 7 March 2012, the Director of Public Prosecutions lodged an appeal against the Court’s decision made on 16 December 2011 and on 1 August 2012, that appeal was dismissed.
Mr Marsh subsequently withdrew his appeal on 27 February 2013. On that day, he was re-sentenced to an effective term of fifteen months’ imprisonment to commence on 29 July 2012. A non-parole period to expire on 28 April 2013 was set.
On 2 May 2013, Mr Marsh was sentenced to a term of nine months’ imprisonment, to commence on 7 January 2013, for the offences of threat to endanger health and what was described as “Resist Own Detention”. The Court ordered that the sentence be suspended after five months’ imprisonment and made a good behaviour order.
That meant that Mr Marsh’s earliest eligible release date was 6 May 2013.
On 5 March 2013, Mr Marsh made an application for parole. An enquiry was listed for 7 May 2013 and Mr Marsh was invited to make submissions.
On 30 April 2013, he made a submission which included the following:
I ask that I be given the opportunity to address my problems with alcohol, by granting me parole to complete the 8 week program at Arcadia House.
There are very little programs here in AMC and I am only able to participate in one course at a time (currently participating smart recovery program).
After completion of Arcadia House I will be getting continued support from Canberra Men’s Centre – Anger Management, and Anxiety/depression Counselling, Winnunga Aboriginal Health Service – Men’s group, alcohol and drug counselling, help with my PTSD from psychiatrist, Aboriginal Mental Health Service, CADA’s and family. I am committed to completing the rehab and ask that if I am given the opportunity to turn my life around and granted parole that I will be given 2 to 3 days to clean my unit which was completely flooded in feb 2013 before signing into Arcadia House.
I receive very little support here and havent had one visit from family or friends here in AMC due to transportation issue’s which is affecting my anxiety/depression/PTSD detrermentaly.
[sic]
By undated letter sent by fax on 11 May 2013, Directions ACT, the operator of Arcadia House Residential Services, noted that Mr Marsh had been accepted into the Arcadia House Transition Program. The position in the program would be held until the meeting of the Sentence Administration Board (the Board) to decide on his parole.
On 21 May 2013, the Board resolved to make a parole order authorising Mr Marsh’s release on parole on 28 May 2013.
Curiously, I did not have a copy of the parole order in the material before me, but it seems there was no contest that it included a condition to complete the eight week program at Arcadia House in the following terms:
(r)you must enter and complete the Arcadia House Transition Program and not, without the permission of your Corrections Officer, discharge yourself from, nor cause yourself to be discharged from, that program.
At the hearing of the Sentence Administration Board, the Chair said to Mr Marsh:
So at the moment the order will be that the parole will take effect next Tuesday, 28th I think it is of May, and it’s a condition of parole that you go directly to Arcadia House to undertaken [sic] the rehabilitation program. And it is a condition of your parole that you complete that program. Failure to do so will be considered a breach of the order and that will see you being brought back before this Board and dealt with it. If the breach is established, dealt with it accordingly.
They are the significant conditions. Your case manager will take you through the other conditions that are attached to your order in a quieter environment.
Mr Marsh was asked whether he understood that and he said, “Yes” and whether he accepted the conditions and he said, “Yes” and his lawyer said, “Yes, and he accepts that”.
It appears that on 28 May 2013, Mr Marsh was released on parole and entered the Arcadia House Program the next day.
It is alleged that, on 1 June 2013, Mr Marsh discharged himself from the Arcadia House Program. In the proceedings before me, Mr Marsh conceded that he had left the Arcadia House Program without approval from his Corrections Officer.
By notice dated 19 June 2013, the Board notified Mr Marsh that it was alleged that he had breached that condition. In due course, an inquiry was held by the Board on 23 December 2013.
Mr Marsh attended the hearing in person. His Probation and Parole Officer and his mother were also in attendance.
At that hearing, the Board resolved to cancel Mr Marsh’s parole order and he was, under s 161 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act), ordered to be placed in the Director-General’s custody to serve the balance of his period of imprisonment.
Mr Marsh has now sought judicial review of that decision.
Mr Marsh is unrepresented
As he has at all relevant times been unrepresented, the precise nature of the review has been, at times unclear.
In Maher v Carpenter [2012] ACTSC 38, I referred to what the Full Court of the Supreme Court of South Australia had distilled from the authorities as to the approach a Court must take to litigants in person. In that decision, Kenny v Ritter (2009) 52 MVR 360 at 365-6; [23], the Full Court said
In our view, the following principles emerge from the authorities discussed.
− A litigant has a fundamental right to appear in person. When faced with a litigant in person, the court is under a duty to give such assistance to that litigant as may be required to ensure that there is a fair trial.
The purpose of the assistance is to ensure that as far as possible, the disadvantage that litigants may suffer as a result of lack of representation is adequately addressed.
− Although the duties of the court in relation to self represented litigants are discussed by numerous authorities, it is difficult to ascertain a common approach as to the manner and form in which assistance is provided which can be applied in practice to all circumstances. This is unsurprising bearing in mind the myriad of circumstances in which litigants may appear in person. However, the authorities do provide general guidance as to principles which can be applied by the courts.
− Judicial assistance would include ensuring that unrepresented litigants are aware of their substantive and procedural rights, which in turn would depend upon the nature and circumstance of the case.
− The degree and form of the judicial assistance required depends upon several factors, including the overall knowledge and skills of the litigant and the particular circumstances of the case.
− Judicial assistance is to be limited to that which is necessary to diminish so far as possible the disadvantage that the unrepresented litigant will suffer when another party or parties are represented by a lawyer. It is a matter of redressing imbalance so far as possible but at the same time ensuring that the party who is represented is not thereby disadvantaged and thereby obtains less entitlements.
− In order to provide assistance to redress any imbalance or disadvantage which may arise by reason of lack of legal representation, the court should first assess the degree to which an unrepresented person may require assistance. This is not to be an automatic assumption.
− It is not part of the role of a judge to become an advocate for the unrepresented person; or stand in the shoes of counsel acting for that litigant; or unduly interfere with the conduct of the trial on the litigant’s behalf. Instead, the court has the difficult task of striving to achieve a balance between these seemingly conflicting duties to ensure that there is a fair trial.
− The court at all times is under an obligation to maintain the appearance of impartiality and neutrality and not be seen to apply preferential rules to the self represented litigant to the disadvantage of the represented litigant.
I endeavoured, as best as possible, to comply with the general approach that the Court had there set out.
Associated with this issue is the question that Mr Marsh raised a number of times during the hearing. He submitted that I should arrange for legal representation for him or that I should grant him bail in order that he could seek to obtain legal representation for himself. He told me that he had applied for Legal Aid but Legal Aid had been provided only for a short consultation and, so far as I understood it, not for representation.
The Court has no power to provide legal representation to parties. It will, of course, facilitate any reasonable attempt to arrange for parties to be represented (see R v Dhaimat (No 1) [2014] ACTSC 42 at [13]), but that does not involve the Court providing, of its own initiative, legal representation to an unrepresented party.
It is clear that a Court can stay court proceedings against an accused person where the lack of legal representation amounts to a breach of the person’s fundamental rights. See Dietrich v The Queen (1992) 177 CLR 292. That, of course, is not the situation here. Mr Marsh is taking action himself and is not being prosecuted or sued in these proceedings. A stay would not be an appropriate remedy.
As to bail, it is relevant that Mr Marsh is, of course, a sentenced prisoner, serving a sentence that had been imposed lawfully by the Magistrates Court.
The only power to grant bail to a person sentenced to a period of imprisonment is under s 9E of the Bail Act 1992 (ACT). That is limited, however, to the circumstances where an appeal is pending in relation to the conviction or sentence which has led the person to be in prison. There was no pending appeal during the currency of these proceedings.
I understand that Mr Marsh applied for leave to appeal out of time from the original sentence but that application was dismissed on 7 February 2014.
Grounds of Review
So far as I could distil them from his submissions, Mr Marsh’s grounds for challenging the validity of the decision of the Board cancelling his parole were as follows:
1. That there was no sound or audio-visual recording of the hearing on 23 December 2013 and a transcript of the hearing was not subsequently prepared and available to him.
2. A police officer, sitting as member of the Sentence Administration Board of the hearing on 23 December, failed to disclose a material interest in the matter being considered by the Board, namely a complaint that Mr Marsh had made against a certain (different) officer of ACT Policing.
3. The Board had placed insufficient or no weight on the medical, particularly psychiatric, evidence presented by Mr Marsh at the hearing.
4. Mr Marsh was not given the opportunity to make all the submissions he wished to make at the hearing.
5. Mr Marsh was not informed of his right to legal representation at the hearing.
6. The Sentence Administration Board failed to take into account that there were problems with Mr Marsh’s flat which needed to be addressed.
7. The Sentence Administration Board failed to contact Mr Marsh’s Parole Officer, Mr Anthony Nocka.
Mr Marsh asserted that these failures breached a number of obligations that he said were imposed on the relevant government authorities by the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171, entered into force 23 March 1976) and by the Human Rights Act 2004 (ACT).
The International Covenant is not in force in Australia as Australia has not enacted domestic legislation required to give it such force. See Morro v Australian Capital Territory (2009) 4 ACTLR 78 at 83; [13]. It is, however, the source of rights in the Human Rights Act, though not necessarily in identical terms. See Re Application for Bail by Islam (2010) 4 ACTLR 235 at 243; [18]. Thus, any rights on which Mr Marsh may wish to rely must be found in the Human Rights Act.
He listed seventeen such rights in argument before me. It is not helpful simply to list them here. Many seemed to me to be relevant only to issues that were not part of these proceedings. Where any such rights are relevant, I shall address them below.
Ground 1 – audio-visual recording
Section 211 of the Sentence Administration Act requires the Director-General to ensure that a sound or audiovisual record is made of each hearing for an inquiry by the Board.
This provision appears within Pt 9.2 of the Sentence Administration Act. Section 195(9) of that Act provides that a “hearing by the board must be in accordance with part 9.2”.
Section 202 of the Sentence Administration Act also requires the Board to keep a written record of proceedings at an inquiry.
Mr Marsh sought access to a transcript of the sound or audiovisual record of the inquiry at which his parole was revoked. He was told there was no transcript as no sound or audio visual record had been made.
The evidence was that on the day of the inquiry there had been power outages which meant that the hearing was, unfortunately, not recorded by sound or audio visually.
A record of the meeting was, however, in evidence before me and the Board also provided a statement of reasons for its decision.
In very helpful and comprehensive submissions prepared at short notice because of the urgency of the proceedings, Ms K Katavic, counsel for the Australian Capital Territory, submitted that this complaint would, if upheld, amount to a failure to observe a procedure required by law under s 5(1)(b) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the Judicial Review Act).
While there is a procedure required by law, it is not, as Ms Katavic correctly submitted, a procedure that is, by law, required to be observed by the Board. The obligation is imposed on the Director-General.
It is also relevant that the obligation was not blatantly ignored; there were unavoidable technical faults which prevented compliance with it.
The question of whether a breach of ss 195(9) and 211 of the Sentence Administration Act renders the decision of the Board void and so to be set aside for non-compliance does not depend simply on non-compliance. In the High Court, McHugh, Gummow, Kirby and Hayne JJ identified the relevant test in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-1; [93] where their Honours said
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.
(footnotes omitted)
Their Honours explained the application of this test at 388-9; [91] in the following way:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
This task is not an easy one in this context. Clearly one purpose of the relevant provisions is to ensure that there is a full record of the proceedings and this may be to ensure that there could be an appropriate level of review, such as by judicial review.
Proper procedures are also designed to ensure that a fair hearing is conducted and that natural justice (procedural fairness) is accorded to a person appearing before the Board. See the approach to procedural provisions in cases such as Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at 639-40; [33]-[35].
It must also be strongly arguable, as was found in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 349; [77], that these procedures, for recording the proceedings, are not procedures in connection with the making of the decision in question for it will play no part in the actual decision-making process, particularly if, as I suggest, one of its purposes is to facilitate review, which presupposes that a decision has been made.
While any departure from procedure is to be regretted, it does not mean that every such departure will render a decision invalid. There may, of course, be other consequences. If an allegation of a person before the Board about some matter as to what occurred is challenged, it may be more difficult to resist accepting the allegation, if otherwise soundly based, where the proper procedures would otherwise have made easy resolution of the dispute such as here by reference to the sound or audiovisual recording. That, however, does not invalidate the hearing.
Ms Katavic submitted further that the failure to follow this procedure could not have changed the outcome. That is true in a case such as this, but I am not convinced that this is a sound argument. It seems to me that while it may apply to assist to decide an application to set aside a decision where a breach of procedure would have been likely to have resulted in a decision different from that arrived at by compliance with proper procedures, the converse, however, may not be true. For example, failure to accord natural justice will almost always result in the setting aside of a decision even if the decision ultimately reached after provision of natural justice leads to the making of the same decision. Similarly, an egregious breach of procedure may result in the decision being set aside even if the likely result of a rehearing in accordance with correct procedures will be the same.
I do not consider that the Sentence Administration Act discloses an intention that should a sound or audio-visual recording of a hearing of the Board is not made, the Board’s decisions at that meeting are invalidated.
I am satisfied that the requirement to make an audio or audio-visual recording of the hearings of the Board do not engage any right under the Human Rights Act.
In this case, however, I am satisfied that the failure on the Director-General to ensure that a sound or audiovisual recording was made of the proceedings of the Board involving Mr Marsh did not invalidate the decision.
Ground 2 – conflict of interest
Section 177 of the Sentence Administration Act provides
(1) If a board member has a material interest in an issue being considered, or about to be considered, by the board, the member must disclose the nature of the interest at a board meeting as soon as possible after the relevant facts have come to the member’s knowledge.
(2) The disclosure must be recorded in the board’s minutes and, unless the board otherwise decides, the member must not—
(a) be present when the board considers the issue; or
(b) take part in a decision of the board on the issue.
Example
Albert, Boris and Chloe are members of the board. They have an interest in an issue being considered at a board meeting and they disclose the interest as soon as they become aware of it. Albert’s and Boris’ interests are minor but Chloe has a direct financial interest in the issue.
The board considers the disclosures and decides that because of the nature of the interests:
·Albert may be present when the board considers the issue but not take part in the decision
·Boris may be present for the consideration and take part in the decision.
The board does not make a decision allowing Chloe to be present or take part in the board’s decision. Accordingly, Chloe cannot be present for the consideration of the issue or take part in the decision.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s126 and s 132).
(3) Any other board member who also has a material interest in the issue must not be present when the board is considering its decision under subsection (2).
(4) In this section:
associate, of a person, means—
(a) the person’s business partner; or
(b) a close friend of the person; or
(c) a family member of the person.
executive officer, of a corporation, means a person (however described) who is concerned with, or takes part in, the corporation’s management (whether or not the person is a director of the corporation).
indirect interest, —without limiting the kind of indirect interest a person may have, a person has an indirect interest in an issue if any of the following has an interest in the issue:
(a) an associate of the person;
(b) a corporation with not more than 100 members that the person, or an associate of the person, is a member of;
(c) a subsidiary of a corporation mentioned in paragraph (b);
(d) a corporation that the person, or an associate of the person, is an executive officer of;
(e) the trustee of a trust that the person, or an associate of the person, is a beneficiary of;
(f) a member of a firm or partnership that the person, or an associate of the person, is a member of;
(g) someone else carrying on a business if the person, or an associate of the person, has a direct or indirect right to participate in the profits of the business.
material interest, —a board member has a material interest in an issue if the member has—
(a) a direct or indirect financial interest in the issue; or
(b) a direct or indirect interest of any other kind if the interest could conflict with the proper exercise of the member’s functions in relation to the board ’s consideration of the issue.
Allied to this is s 178 of the Act which relevantly provides
(2) The Minister must end the appointment of a board member—
(c) if the member fails to take all reasonable steps to avoid being placed in a position where a conflict of interest arises during the exercise of the member’s functions.
Mr Marsh submitted that one of the Board members had a conflict of interest which brought these sections into play.
Ms Katavic submitted that this, if made out, would amount to a failure of procedural fairness by virtue of s 5(1)(a) of the Judicial Review Act because it would constitute apprehended bias. It seems to me that it may, however, also constitute a failure to observe a procedure required by law under s 5(1)(b) of the Act.
The question arose in this way. One of the members of the panel which constituted the Board for the hearing (see Lewis v Chief Executive, Department of Justice andCommunity Safety (ACT) (2013) 280 FLR 118 at 142; [136]-[137]) was Acting Superintendent M Corbitt, a member of the Australian Federal Police.
Mr Marsh submitted to the Board a letter from a firm of legal practitioners which had apparently acted for him. In that letter, reference is made to proceedings that Mr Marsh was pursuing against the Australian Federal Police. The letter stated, inter alia
I ... agree that indeed it appears as though you will be successful in a malicious prosecution case against the Australian Federal Police.
As I have pointed out to you on many occasions, there is a process that needs to be followed in order for this case to be successful. This includes awaiting the response from Police Professional Standards, which we are yet to receive.
...
... I have determined that it is not appropriate for me to represent you in this matter, as we seem to have a difference of opinion on how the matter should proceed.
As I feel you have an extremely strong case I would urge you to seek representation from a different solicitor.
Mr Marsh submitted that the existence of his complaint being considered by “Police Professional Standards” and his threatened malicious prosecution claim meant that Acting Superintendent Corbitt had a conflict of interest which required him to stand aside from the hearing by the Board. The failure of him to do so also meant that he was liable to have his appointment terminated by the Minister, which the Minister was required to do under s 178 of the Sentence Administration Act.
It was accepted by both parties that Acting Superintendent Corbitt was not the police officer against whom the complaint was made nor that, so far as could be determined, he was directly responsible for the officer against whom the complaint was made or had a personal or direct professional relationship with him.
A conflict of interest occurs where a person is in a situation where he or she faces a conflict between his or her interests and the duty which he or she is required to discharge. Thus, Sopinka J, with whom Wilson, Gonthier and McLachlin JJ agreed, said in the Supreme Court of Canada in Old St Bonifaci Resident’s Association v Winnipeg City (1990) 75 DLR (4th) 385 at 408-9 of a member of a municipal council
It is not part of the job description that municipal councillors be personally interested in matters that come before them beyond the interest that they have in common with the other citizens in the municipality. Where such an interest is found, both at common law and by statute, a member of council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest ...
The avoidance of conflict of interest is one of the core obligations of a person in a fiduciary relationship with another and, in that context, the rule has been classically defined by Lord Cranworth in Aberdeen Railway Co v Blaikie Bros [1843-1860] All ER Rep 249 at 252 as follows:
[N]o one, having [fiduciary] duties to discharge shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which may possibly conflict, with the interests of those whom he is bound to protect. So strictly is this principle adhered to that no question is allowed to be raised as to the fairness or unfairness of a contract so entered into.
It has been suggested by Peter W Young, Clyde Croft and Megan Louise Smith, On Equity (Lawbook Co: Sydney, 2009), p 537 that in this bold form the rule may be somewhat overstated as there will be circumstances where such a conflict is inevitable but without the consequences suggested.
In Phipps v Boardman [1967] 2 AC 46 at 124, Lord Upjohn also commented on the correct approach, to the matter, especially the comment on the phase used, “possibly may conflict”, where his Lordship said
In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in a conflict.
It is clear, therefore, that in assessing whether there is a conflict, it is important to identify the duty and the interest, without which clear identification, it is not possible to ascertain, in the way required by Lord Upjohn, whether there is in fact a “real sensible possibility of conflict”.
As his Lordship further said in Boulting v Association of Cinemetograph, Television and Allied Technicians [1963] 2 QB 606 at 637-8
If [the conflict of interest rule] must be applied with common sense and with an appreciation of the sort of circumstances in which over the last 200 years and more it has been applied and thrived. It must be applied realistically to a state of affairs which discloses a real conflict of duty and interest and not to some theoretical or rhetorical conflict.
This approach has been adopted in Australia where Mason J in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 103 described the test as one “in which there is a conflict or a real and substantial possibility of a conflict”. See also the reference by Deane J in Chan v Zacharia (1984) 154 CLR 178 at 199 to “significant possibility of conflict”.
Thus, for example, a director of a company which is proposing to enter into a contract with another entity was held not to have a conflict of interest merely because he is an employee of the entity remunerated by a salary in Wilson v London Midland and Scottish Railway Co [1940] Ch 169, affirmed [1940] Ch 393.
It is also relevant to note that, as a member of the Board, Acting Superintendent Corbitt has an overriding duty to it, notwithstanding his appointment as an officer of the Australian Federal Police. He was clearly appointed in the knowledge of his position as a police officer. His duty to the Board is set out in the well-known decision of Street J in Bennetts v Board of Fire Commissioners of New South Wales (1967) 87 WN (Pt 1) (NSW) 307 at 310. Indeed, as Jacobs J held in Re Broadcasting Station 2GB Ltd [1964-5] NSWR 1648 at 1662-3, there is no breach of the conflict of interest rule where a director votes on a matter in a way that is consistent with the interests of his nominator where those interests coincide with the best interests of the company of which he is a director and to which he owes the overriding duty.
In this case, Acting Superintendent Corbitt had a duty, as a member of the Board, to consider genuinely whether Mr Marsh had breached a condition of his parole order and, if so, to decide whether his parole order should be revoked.
As to the interests said to conflict with this duty, the identification and articulation is somewhat more difficult. Unsurprisingly, as an unrepresented litigant, Mr Marsh was not able to do so.
No doubt Acting Superintendent Corbitt would not wish the reputation of the Australian Federal Police, a force of which he was a senior member, to be brought into any kind of disrepute that may follow from a successful claim for malicious prosecution, though it cannot be assumed that he would take the view that no such claims could ever properly be made. Nor could it be assumed that he would regard a proper claim as one that should not be heard by the courts.
There was a suggestion that, as the Australian Federal Police was a disciplined force, Acting Superintendent Corbitt may have a particular feeling of affinity for the police officer, I believe a Constable, who may be the subject of the complaint and malicious prosecution proceedings.
Are these material interests (s 177(4))? They are certainly not direct or indirect financial interests. To be material, they must be direct or indirect unless of a kind that “could conflict with the proper exercise of the [Board] member’s functions”.
I find it hard to see how that could be in this case. The question of whether Mr Marsh had breached a condition of his parole order was straightforward; indeed, he acknowledged that he had done so.
As to whether his parole order should be revoked, it is also hard to see how that decision would be in conflict with either of the identified interests. The claimed interests are very generic and the possible action or complaint would not be affected by revocation of the parole order. That could not stop the complaint, which had already been made and was unlikely to prevent any proceedings under it from being taken. The complaint had already been made; it was being investigated and such investigation would not be stopped or probably hindered by revocation of Mr Marsh’s parole.
Mr Marsh submitted that he would have difficulty in obtaining the different solicitor it was suggested he obtain were he to be incarcerated. That may be so, but he had not, at the date of the hearing, received a response from the Australian Federal Police Professional Standards and the balance of his custodial term would not extend beyond the limitation period for his claim, were it to be suggested that revocation of his parole would render impossible to any reasonable degree inhibit the prosecution of his claim.
It is relevant, too, that Acting Superintendent Corbitt in fact had no personal knowledge of the complaint, which the Statement of Reasons records. That is unsurprising given the confidentiality and secrecy provisions in relation to complaints found in the Australian Federal Police Act 1979 (Cth), ss 40ZA, 60A.
It is important that there was no evidence to suggest that the complaint was directly relevant to Acting Superintendent Corbitt. As I have noted, the complaint was not one about Acting Superintendent Corbitt on his conduct or the conduct of any officer for whom he was directly responsible. There was also no evidence to suggest that Acting Superintendent Corbitt would be making any kind of decision in respect of the complaint. These circumstances may have disclosed a conflict of interest. These issues put Acting Superintendent Corbitt in a not dissimilar position to a mere shareholder in a company rather than its directing mind, an important distinction made by Aickin J in Australia and New Zealand Banking Group Ltd v Bangadilly Pastoral Co Pty Ltd (1978) 139 CLR 195 at 225.
In my view, there was no material interest that Acting Superintendent Corbitt had in any issue to be determined by the Board which conflicted with his duty to the Board.
So far as the question of apprehended bias was concerned, Ms Katavic submitted that this was also not made out.
Apprehended bias is shown, the High Court held in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner) at 344; [6], in the case of a judge
if a fair-mind lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
(Citation omitted)
That such principles apply to a tribunal such as the Board is clear from what was said in, for example, R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 456 at 553-4, and it was also there made clear that allegations of such apprehended bias must be “firmly established”, not perhaps significantly different from the requirement that a conflict of interest must be a real and substantial possibility.
In Ebner, the judge hearing the claim disclosed to the parties that he was a director of a trustee of a family trust which held about 8,000 to 9,000 shares in the respondent Bank and that he was a contingent beneficiary of the trust. The Bank was not a party to the proceedings but had a pecuniary interest in the outcome of the proceedings. In other proceedings heard at the same time, the judge, after the hearing of the trial but before judgment, inherited 2,400 shares in the Bank which was the plaintiff. In both cases, the High Court held that the judge was not disqualified from hearing the proceedings.
The Court held at 345; [8] that the determination of the question whether there is such apprehended bias requires two steps
(1) the identification of what is said might lead the relevant person to decide the matter other than on its legal and factual merits; and
(2) the logical connection between that and the feared deviation from the course of deciding the matter on its merits.
The test is an objective one: Johnson v Johnson (2000) 201 CLR 488 at 493; [12]. It also assumes that the fair-minded lay observer, while not assumed to have a detailed knowledge of the law or the character or ability of the particular relevant person, will have a general understanding of the characteristics that may be attributed to the relevant person, who can be expected to approach the task of deciding the matter so as to ensure both the appearance and substance of fairness and impartiality: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 299; Johnson v Johnson at 493; [13], 508; [53]. Fair-minded lay observers would also take the trouble to inform themselves to the extent necessary to make an informed judgement: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 383 at 283; [47].
As was submitted by Ms Katavic, the letter from his former solicitors handed up by Mr Marsh showed that only the following could be concluded:
1. that Mr Marsh considers he has a strong malicious prosecution case against the AFP, a position his former solicitor appears to share; and
2. that the process needs to await the outcome of the Professional Standards investigation.
Further, it should be noted from the letter that
3. no reference is made to the precise details of the Professional Standards complaint or investigation;
4. the grounds for any malicious prosecution case are not disclosed; and
5. no specific evidence, circumstances or facts are stated in the letter.
There is no logical connection, as is required, between the fact of a complaint made and the likelihood that Acting Superintendent Corbitt might bring a biased view to the decision of the legal and factual matters before the Board. There must, however, be such a connection before the ground can be made out.
Clearly, there is a requirement for there to be no conflict of interest or bias as part of the Territory’s discharge of its obligation under s 21 of the Human Rights Act to ensure that everyone has the right to a fair trial.
In Lawal v Northern Spirit Ltd [2004] 1 All ER 187 at 192-3; [14], Lord Steyn, delivering the considered opinion of the Privy Council, held that the test for apprehended bias, which was set out in Porter v Magill [2002] AC 257 at 494; [102]-[103] by Lord Hope of Craighead and unanimously endorsed in that case by the House of Lords, was identical with the requirements under Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (INT) done at Rome on 4 November 1950, ETS 5 (European Convention). The test set out in Porter v Magill requires the court to ask the following question
... whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
That test seems to me to be so close to, if not identical with, the test as outlined by the High Court that I can rely on Lawel v Northern Spirit Ltd to hold that the test, if applied to show that there is no apprehended bias here in Acting Superintendent Corbitt remaining on the Board for the hearing of Mr Marsh’s matter, will mean that it complies with the fair trial right under s 21 of the Human Rights Act which is in relevantly identical terms with Art 6 of the European Convention.
Ground 2 is not made out.
Ground 3 – psychiatric evidence
This ground is a complaint that the Board failed to take into account relevant considerations when making its decision.
It is always important to differentiate between the failure to take into account relevant considerations and merits review.
As I said in Forman v ACT Planning and Land Authority (2013) 279 FLR 54 at 74-5; [136]-[137]
[136]... The question of whether a decision-maker has taken into account a relevant consideration is not to be used to undertake a merits review, as warned by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [63]-[64]. Thus, although Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 said that a decision-maker must give “proper, genuine and realistic consideration to the merits of the case”, that is not a means of converting judicial review into merits review.
[137]Despite some controversy about the formulation articulated by Gummow J, and though some courts have followed it, it seems that such consideration falls under the principle that the weight accorded to relevant considerations are matters for the decision-maker, and not for the court, unless it shows that the decision is seriously irrational: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 174-8; [23]-[39]. Further, a failure to respond to a substantial argument may amount to a breach of the rules of natural justice: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394; [24] (Gummow, Callinan JJ), [89] (Kirby J), [95] (Hayne J); Minister for Immigration and Citizenship v SZJSS at [35].
Mr Marsh handed up to the Board certain progress notes from the medical facility that he had attended, Winnunga Numnityjah Aboriginal Health Service, which he says were not taken into account. He said they were given insufficient or no weight.
The Sentence Administration Act does not confine the information or material that the Board may receive, but clearly it must have some reasonable relevance to the issue before the Board, in this case whether to cancel Mr Marsh’s parole over which the Board has a wide and unconfined discretion.
Mere relevance may not be sufficient, as Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40
In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.
Later, his Honour made the additional point
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.
In the case of Mr Marsh’s parole, however, the Board did take the records into account. The Statement of Reasons stated
Mr Marsh disclosed that he was experiencing mental health problems. The Board rejected the submission that the condition of Mr Marsh’s mental health excused the breach. Relevantly, the sentencing court was aware of Mr Marsh’s mental health when Mr Marsh was initially sentenced. Moreover, in terms of treatment, the Board was of the view that if Mr Marsh’s parole order was cancelled, he would have access to consistent monitoring and medical care at the AMC.
The only other evidence supporting Mr Marsh’s medical claim were patient summaries/medical progress notes from Winnunga dated 18 September 2013. The Board was not satisfied that these notes presented a reliable explanation for the breach. These notes mainly comprised the history provided by Mr Marsh to health professionals at Winnunga rather than the health professionals’ medical opinions.
In addition, the Board was not satisfied of the probity of the claims made by Mr Marsh in the notes. In the notes, Mr Marsh suggested that he was unable to complete the Arcadia House Transition Program because he ‘has fear and feels very anxious talking in public or even when more than 2 people are present’. The Board found that Mr Marsh’s participation in similar programs at Winnunga undermined this claim.
It is clear that not only did the Board take the tendered notes into account, it gave them careful consideration. There can be no doubt that the Board gave them a “proper, genuine and realistic consideration”. That they rejected the evidence does not gainsay that; indeed, it seems to me that it confirms it, for the Board gave careful and rational reasons for rejecting the evidence.
There is no basis for any suggestion that the Board’s consideration of the notes was irrational in the sense referred to by the High Court in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 174-8.
So far as any issue under the Human Rights Act is concerned, particular issues of evidence is not a matter that is regulated by the Act; what must be shown is that the proceedings as a whole are fair. See, for example, Miailhe v France (No 2) (1996) 23 EHRR 491 at [43]. In this case, the receipt and consideration of the evidence meets any human rights issue involved.
This ground has not been made out.
Ground 4 – opportunity to make submissions
Mr Marsh said that the Board “failed to give [him] the right to make submissions”. The absence of a recording or a transcript makes this ground less easy to determine than is desirable. In that sense, I should accept more confidently the assertion made by Mr Marsh, for the reasons set out above (at [52]), unless there is countervailing evidence. In this case, there are some facts that are clear or are admitted which assist.
Section 209 of the Sentence Administration Act gives an offender appearing before the Board certain rights, including the right to “make submissions to the [B]oard about matters relevant to the inquiry”.
Were that right denied, it would be a breach of the requirement to observe a procedure required by law to be observed. It would also be a breach of the right to be heard.
It is not necessary to dilate on the jurisprudence of these grounds for judicial review for there is no factual basis for such complaint.
Mr Marsh admitted that he “was allowed to address” the Board. Indeed, he asserted that he had handed up the medical notes to which I have earlier referred (at [97]).
Mr Marsh did say that
... in the hearing I could call up many a people and ask them whether they would know this or not and I will subpoena a lot of people.
That may be, but, on 3 July 2013, a notice was sent to Mr Marsh, which he did not deny receiving, which referred in specific terms to the condition of the parole which he was said to have breached, the allegation of the breach, the fact of a hearing referred to a copy of a document attached setting out his rights and the hearing and a statement encouraging him to get legal advice.
In my view, this was fair notice of the hearing, what it was about and sufficient notice to him to prepare with any witnesses or documents or other evidence which he would wish to adduce. That he did not do so or was not prepared does not affect the fairness of the hearing in these circumstances, particularly where he did not assert that he either informed the Board that he wishes to seek additional evidence or that he sought an adjournment. The only witness to which he referred at the hearing before me was his mother, but his mother was present at the hearing before the Board. It was a matter for him whether he called her or not.
He then stated that he “didn’t know that they [the submissions he was invited to make] were final submissions and if I knew they had been final submissions I would have gave a longer and better submission”.
He accepted, however, that the Board had asked him to address it. He said that he was asked, “Is there anything you would like to say”. That is recorded in the Statement of Reasons.
He said that he did not realise that this was to be the final submissions he was to make because, he said, “I don’t know the law”.
It seems to me that this is not a matter of law, but of ordinary language. The Board gave him the opportunity, which he acknowledges, to say “anything” he wanted to say. There was no legal or difficult language in the question; it was very plain English.
There is some disingenuousness in Mr Marsh’s approach here. The Statement of Reasons of the Board clearly stated as follows:
Before the adjournment, the Board advised Mr Marsh that it was going to adjourn to consider its decision. The Board asked him whether he had anything further to say. Mr Marsh did not request an adjournment either to seek legal advice or for any other reason.
There can be no doubt that a person of Mr Marsh’s intelligence and the knowledge he displayed in the hearing before me must have known that what he was being invited to do was make “final submissions”.
That Mr Marsh chose not to say everything that he wanted to say is, it seems to me, entirely his choice. He was very articulate before me; he had a good grasp of the issues he wished to raise, he knew the points he wanted to make. He may not have had a knowledge of the detail of the law, but he was clearly aware of the relevant issues. I have no reason to believe that he was any less articulate before the Board.
He did not identify the issues that he would have addressed in these final submissions which he did not address to the Board. Indeed, his complaints about the matters relevant to the decisions were, it seemed to me, all matters that had been before the Board.
As with Ground 3, it seems to me that, unless there is a breach of the obligations to be heard, and that does not arise on the facts here, there is no right under the Human Rights Act that is in issue under this ground.
This ground is not made out.
Ground 5 – right to legal representation
Mr Marsh stated that the Board did not inform him of his right to legal representation.
The “right to legal representation” has some ambiguity about it. Section 209 of the Sentence Administration Act provides that an offender appearing before the Board “may be represented by a lawyer”. This gives Mr Marsh the right to have any lawyer he may engage appear for him before the Board.
It does not, however, require the Board, Legal Aid (ACT) or anyone else mandatorily to provide him with a lawyer. In any event, that is not how he articulated his complaint; it was, in his words, “I also wasn’t informed of my right to legal representation.
This may be a complaint that, in terms of judicial review, proper procedures were not followed or it may be a complaint that natural justice was not afforded because of the inadequacies of the notice.
It seems to me, however, that the Board is obliged, in following proper procedures under s 204 of the Sentence Administration Act, to inform Mr Marsh of his rights under s 209 of that Act, which includes his right to have any legal representative appointed by him to appear at the hearing. That the failure to provide a notice to this effect would seem to breach this obligation. See McGibbon v Linkenbagh (1996) 41 ALD 219 at 224.
This is an important obligation, particularly in the light of the possible outcome of the hearing, namely the revocation of his parole.
So far as any failure to include these rights in the notice to Mr Marsh, I am not at all sure that this may constitute a failure to provide natural justice. The basic requirement of notice is that, as Gibbs CJ put it in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666
a person or body which is considering making a decision which will adversely affect another should generally give notice to that other person of the reasons why the proposed action is intended to be taken so that the person affected will have a fair opportunity to answer the case against him.
The relevant question is of what charge or charges a person faces and the particularity with which notice is to be given. This is, of course, required so that the person can “reasonably and effectually prepared any case which he would seek to make”: Re Mullen [1995] 2 Qd R 608 at 614.
Notices which make no reference to the procedure to be followed have been held to be sufficient, as in Ingerson v Styles (Unreported, South Australia Supreme Court, Bollen J, 23 October 1987). There is, however, said to be an obligation to identify the time, date and place of any hearing, as held in Hopkins v Smethwick Local Board of Health (1890) 24 QBD 712 at 715. That requirement, it seems, may not be required if the person otherwise is well aware of these matters: Sharpe v Brown [1918] VLR 678 at 685-6. Indeed, it has been suggested that the obligation depends on the circumstances and even the time, date and place of any hearing may not be required: Graham v Baptist Union of New South Wales [2006] NSWSC 818 at [32]-[35].
None of these cases, however, can be taken to require that, as an obligation of the requirement to provide natural justice, the rights set out in s 209 of the Sentence Administration Act, that is the procedural rights of the actual hearing, are required to be set out in a notice, of the meeting.
That leaves, then, the requirement under s 204 of the Sentence Administration Act. Regrettably, the evidence on this aspect was decidedly thin. As I have noted above (at [114]), the notice sent to Mr Marsh referred to an attachment, included a document described as “A copy of your rights at a hearing”. Given that the heading to s 209 of the Sentence Administration Act is “Offender’s rights at board meeting”, it seems almost inevitable that this document would set out what was in that section as obliged by s 204 of that Act.
Unfortunately, neither party saw fit to provide me with a copy of the document. The notice itself did, however, refer to the hearing being conducted “in accordance with Pt 9.2 of the Crimes (Sentence Administration) Act 2005” and s 209 of that Act is contained within that Part.
In the circumstances, it seems to me that on the balance of probabilities, Mr Marsh did receive a document which set out the rights he had under s 209 of the Act.
If, however, I am wrong about that, and there has been a breach of this procedural requirement that would entitle me to set aside the decision of the Board, I would not do so in the exercise of my undoubted discretion.
The reasons for this are:
1. Mr Marsh had, in a previous appearance before the Board on 21 May 2013, been represented by a solicitor, thus satisfying me that he knew of his right of representation.
2. Mr Marsh showed himself at the hearing before me that he was well able to read and understand the Sentence Administration Act, a large number of the sections of which he cited to me. Thus, the reference to Pt 9.2 of that Act would have been sufficient to alert him to the section had he chosen to consider it.
3. Mr Marsh did not deny receiving a notice of his rights under s 209 of the Sentence Administration Act.
4. In the hearings before me, Mr Marsh sought delays, some of which I granted, in order to obtain the services of legal representation without any success, leading me to consider that it would be unlikely that he would, even if he knew of the right, have obtained counsel.
5. Neither the Statement of Reasons nor Mr Marsh’s submissions to me suggested that he had sought an adjournment of the hearing before the Board in order that he be represented, a request he made frequently to me in the course of the hearings. Indeed, the Board noted that, when it adjourned to consider its decision, “Mr Marsh did not request an adjournment either to seek legal advice or for any other reason”.
For the reasons set out above (at [124]), I do not consider that any issue arises in respect to the ground under the Human Rights Act.
In my view, this ground is not made out and if it were, I would decline in the exercise of my discretion, to set aside the decision on the basis of any failure of procedure or natural justice encompassed within it.
Ground 6 – problems with Mr Marsh’s flat
Mr Marsh said that the flat he lived in was at risk of burglary and had suffered water damage. He suggested that this was a reason why his parole should not be revoked.
Mr Marsh submitted to me that his flat had been flooded while he was in custody. He said that the carpets had not been changed. Since then, however, he had been on parole. He submitted that the carpets were not going to be changed unless he was in the community at his unit. He acknowledged that he had been in the community for about seven months but said that approval for the change of his carpets was only given in November, though, of course, this was still at least a month prior to the revocation of his parole.
There was no reference to this matter in the Statement of Reasons. For the reasons set out above (at [52]), namely the absence of a sound or audio-visual recording of the proceedings, and in the absence of any other countervailing evidence, I am not prepared to find that Mr Marsh did not raise this matter before the Board.
This must be a complaint, in terms of the Judicial Review Act, that the Board failed to take into account a relevant consideration.
As I have noted above (at [101]), the limits of the matters that the Board is to take into account is broad and unconfined. That, however, does not mean that anything submitted must be taken into account. See what Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd in the passage cited above (at [102]).
On the material provided by Mr Marsh, it does not seem to me that this matter warranted any significant consideration by the Board. There was no evidence of irremediable damage to any interests of Mr Marsh or any personal or financial loss to him. He was, on the material before me, able to live in his unit for about seven months with the damaged or, at least, unreplaced carpets. The inconveniences of which he complains are often the inevitable consequence of incarceration which is the proper response to breaches of the criminal law and, where an offender has been granted conditional liberty, any breach of the condition under which he or she is granted that liberty.
In order for this matter even to approach a relevant consideration, which the failure of the Board to consider would invalidate the decision it made, there would have had to be much more information to show at the very least some extraordinary and irremediable loss to Mr Marsh for which he was in no way responsible and for which the government – for I understood the unit to be a public housing unit – was egregiously responsible. Even then, I could have serious doubts whether it would be other than of the most minor relevance and not such as to have required such consideration by the Board that a failure to do so would invalidate the decision.
For the reasons set out above (at [106]), I do not consider that this ground engages any right under the Human Rights Act.
This ground is not made out.
Ground 7 – failure to contact Parole Officer
Mr Marsh said to me that, when he left Arcadia House, he contacted Mr Anthony Nocka, a Probation and Parole Officer. He said that he contacted Mr Nocka twice and “asked him what would be the best time to hand [himself] into the courts” and Mr Nocka suggested that he should do so on a Tuesday.
The Statement of Reasons included the following:
Mr Marsh submitted that he contacted PPO Nocka twice between leave [sic] Arcadia House and his arrest. PPO Kenna advised the Board that there were no case notes attesting to contact between corrections and Mr Marsh. Mr Marsh did not provide details of when the alleged contact occurred, nor what was said. Therefore, the Board found that, on balance, it was unlikely that Mr Marsh had contacted corrections.
Mr Marsh submitted that the Board should have contacted Mr Nocka. It is not clear whether Mr Marsh actually asked that Mr Nocka be contacted; he did not so submit to me.
Under s 208 of the Sentence Administration Act, a judicial member of the Board may require a person to give evidence. This provision makes such a requirement, to be made by written notice, somewhat like a subpoena, though there does not appear to be any sanction for non-compliance with the requirement, or, for that matter, the obligation, once the person attends, to take an oath or answer questions.
The complaint by Mr Marsh appears to be that the failure of the Board to require Mr Nocka to be contacted is a breach of natural justice.
As with much of the material before the hearing I conducted, Mr Marsh did not put his factual assertions such as this in an affidavit so that they could be properly investigated. Thus, the precise circumstances were not able to be ascertained clearly and the defendant Territory did not have notice of his allegations.
The context is that the Sentence Administration Act makes specific provision about how the Board should go about its task. Thus, it requires in s 195(5) that the Board should ensure that, as far as practicable, it completes an inquiry for the exercise of a supervisory function without holding a hearing, though such a hearing should be held only if the Board believes, on reasonable grounds, that natural justice would not be satisfied if a hearing were not held.
Section 196(2) then provides
An inquiry must be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and any other relevant enactment and a proper consideration of the matters before the board allow.
Mr Marsh did not make it clear whether he had asked the Board to require under s 208 of the Sentence Administration Act that Mr Nocka be required to attend to give evidence, whether he had just asked that he be contacted or whether he merely stated that he had contacted him. There seems no reason, given that under s 196(1) the Board is not bound by the rules of evidence and may be informed of anything in any way it considers appropriate, an informal approach such as by attempting to contact Mr Nocka by telephone could not have been undertaken.
There is no doubt that the failure of an administrative body to seek information may breach the rules of natural justice if it fails to make appropriate inquiries, whether by such informal contact or by formal process a person who can give material evidence. This was held by Gobbo J in Moore v Guardianship and Administration Board [1990] VR 902 at 914.
This obligation, however, is not open-ended. Thus, in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170, Wilcox J said in a frequently cited passage
It is no part of the duty of the decision maker to make the applicant's case for him. It is not enough that the Court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the Court, on judicial review, should receive evidence as to the existence and nature of that information.
Taking this further, Flick J made the following observations in SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22 at 28; [26]
Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce ... And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual – an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration.
Regrettably, I did not have much of the material that should be provided in order to evaluate this issue properly. For example, I had no information on the ease or difficulty with which contact with Mr Nocka could be made.
While, in terms noted by Flick J, the issue was of some seriousness, for the liberty of Mr Marsh was involved and this made the need for contact somewhat more desirable, the facts on which he could give evidence was not really made clear. In particular, Mr Marsh did not tell the Board what he had said to Mr Nocka or what Mr Nocka had said to him, which would be necessary to determine whether Mr Nocka’s evidence was material.
On what Mr Marsh told me, which he did not appear to tell the Board, namely that Mr Nocka told Mr Marsh to surrender to the Board, it does not seem to me to be particularly material. This has to be seen in the context of the relevant chronology.
Mr Marsh was granted parole and released on 28 May 2013 with a condition that he enter and complete the Arcadia House Transition Program and not, without the permission of his corrections officer, discharge himself from the Program. Mr Marsh entered that Program on 29 May 2013 but left on 1 June 2013. There is no suggestion that he had permission to do so. There is no suggestion that Mr Nocka gave him that permission.
Mr Marsh did not contact the Board and seek an amendment to his parole order. A breach report was sent to Mr Marsh on 19 June 2013 advising him of an inquiry to be held on 2 July 2013.
If Mr Nocka’s advice is accurately reported, Mr Marsh had three Tuesdays between 3 and 19 June 2013 within which to surrender himself and he did not do so.
The Board, in its Statement of Reasons, did not suggest that it relied on what it found to be Mr Marsh’s failure to contact a corrections officer, as opposed to gaining the approval to leave Arcadia House, to play any significant part in the decision.
Indeed, in the light of the content of Mr Nocka’s advice to Mr Marsh, which Mr Marsh suggests was given to him, that he made contact with Mr Nocka and then failed to follow his advice may well have been adverse to him, disclosing a degree of deliberate avoidance of taking responsibility for the breach and failing to make contact with the Board for the purposes of having the matter properly addressed. That would have well offset any advantage that he may have enjoyed in making the contact itself.
In my view, any information that Mr Nocka could have given was not likely to be of material advantage to Mr Marsh or the case he was putting to the Board in opposition to a revocation of parole. In that event, the failure of the Board to contact Mr Nocka is not a breach of natural justice.
If I am wrong about that, then I would, in my discretion, not uphold the application for judicial review on this ground for the following reasons:
1. The information was not of particular significance to the hearing and its absence would have had no material effect on Mr Marsh’s case before the Board.
2. The obligation under s 196(2) of the Sentence Administration Act would not permit the Board to delay its inquiry for information that was of marginal, if any, real relevance or materiality.
3. The information that Mr Nocka could give, as relayed to me, would be likely to be ultimately adverse to Mr Marsh’s case.
As to the issue of human rights, it seems to me that a body such as the Board is bound to offer a fair trial under s 21 of the Human Rights Act. This includes the obligation to afford Mr Marsh’s natural justice. This seems clear from what the House of Lords held in R (Roberts) v Parole Board [2005] 2 AC 738, See, especially, per Lord Bingham of Cornhill at 751; [13]-[14].
Thus, Mr Marsh’s human rights are engaged, but as I have found no breach of the obligation to provide him with natural justice, there is no breach of his human rights.
I find that this ground is not made out.
Conclusion
In my view, the decision of the Board to revoke the parole of Mr Marsh was valid. There is no basis for it to be set aside either under the Judicial Review Act. I find, too, no breach of the Human Rights Act.
So far as I may be wrong in relation to Grounds 5 and 7, I would decline, in the exercise of the undoubted discretion I have, to grant relief.
I will make orders accordingly.
I certify that the preceding one hundred and seventy-nine (179) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 7 May 2014
Counsel for the Applicant: In person
Counsel for the Respondent: Ms K Katavic
Solicitor for the Respondent: ACT Government Solicitor
Date of hearing: 30 January 2014, 6 February 2014
Date of judgment: 7 May 2014
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