McKane v State of SA

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
MCKANE v STATE OF SA
[2024] SASC 149
Judgment of the Honourable Justice McIntyre
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES - MEANING OF DECISION – REPORTS AND RECOMMENDATIONS
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES - MEANING OF DECISION – REPORTS AND RECOMMENDATIONS
The applicant, Mr Jeffrey Alan McKane, made an application to this Court seeking judicial review of decisions said to have been made by the Parole Board and by the Minister’s delegate under the Parole Orders (Transfer) Act 1983 (SA) (“the Transfer Act”). The decisions concerned whether to direct that the applicant’s parole order, issued in New South Wales, be registered in South Australia. The applicant contended that the processes involved were procedurally unfair, lacking in transparency and, in some respects, biased.
The applicant sought orders that the decisions be set aside on the basis that the respondents failed to afford him procedural fairness, had regard to irrelevant considerations, and made errors of fact that led to a denial of natural justice.
Held dismissing the application for judicial review:
1. There was no jurisdictional error in the making of the decisions.
2.The first decision identified by the applicant is not amenable to judicial review as it is not, of itself, a decision that conferred or affected legal rights.

3. In relation to the second and third decisions identified by the applicant:
a)The delegate was not required to provide reasons, nor does any alleged inadequacy in the reasons constitute a ground for judicial review.
b)The delegate considered all relevant material and did not take into account irrelevant considerations.
c)No denial of procedural fairness, nor any reasonable apprehension of bias, was established.

Parole Orders (Transfer) Act 1983 (SA) s 8, referred to.
Griffith University v Tang (2005) 221 CLR 99; Ainsworth v Criminal Justice Commission 1992) 175 CLR 564; Public Service Board (NSW) v Osmond (1986) 159 CLR 656; R v District Court; Ex parte White (1966) 116 CLR 644; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, considered.

MCKANE v STATE OF SA
[2024] SASC 149
Civil: Judicial Review

The applicant Jeffrey Alan McKane filed an amended originating application for review on 27 September 2024[1] (‘the application’) together with a statement of facts, issues, and contentions. He seeks a review of the following decisions:
·A decision said to have been made by the Parole Board on 15 December 2023 (‘the purported decision’);
·A decision of the Minister’s delegate not to make a direction under s 8 of the Parole Orders (Transfer) Act 1983 (SA) (‘Transfer Act’) on 2 April 2024 (‘the 2 April decision’); and
·A further decision of the Minister’s delegate not to make a direction under s 8 of the Transfer Act on 30 April 2024 (‘the 30 April decision’).
[1] FDN 14.
For the reasons that follow I dismiss the application.
Background
On 31 January 2013 the applicant was sentenced in New South Wales (‘NSW’) to imprisonment for a period of 18 years with a non-parole period of 13 years commencing on 12 May 2011 for one count of aggravated sexual intercourse with a person over 10 years, three counts of using a child under the age of 14 years to make child abuse material, one count of aggravated filming a person in a private act without consent, two counts of indecent assault on a person under 16 years of age and one count of possession of child abuse material.
The applicant originally came from South Australia (‘SA’). His family is based in this State. He has no ties to NSW and indeed his victims, with whom he is not permitted contact, likely reside in that State.
On 3 November 2023, the Commissioner of Corrective Services in NSW requested the applicant’s parole order be registered in SA for the purposes of s 8 of the Transfer Act.
The purported decision relates to an assessment of the applicant’s proposed residence in Two Wells, SA on 7 December 2023. The person who inspected the premises found the Two Wells address suitable, however that opinion was not endorsed by the report writer’s supervisor for the reasons set out in the report.[2] It appears that the report and those reasons were not provided to the applicant until he received Ms Cross’ affidavit in these proceedings. The only notification was to applicant’s NSW corrections officer by email dated 15 December 2023 which stated:
Please be advised the home assessment on the residence nominated by Mr McKane has not been supported, can you please ensure with Mr McKane if he has an alternative address for consideration or would he like me to progress the application to the [Parole Board of South Australia] as it is?
[2] FDN 10; Exhibit KC-4.
His parole officer requested details as to why the premises were unsuitable, but these were not provided.[3] An alternative address in Davoren Park was supplied by the applicant on or about 22 December 2023.[4]
[3] FDN 15; Exhibit JM4.
[4] FDN 2 at [9].
On 2 April 2024, the Minister’s delegate declined to direct the Registrar of Transferred Parole Orders (“the Registrar”) to register the applicant’s parole order in SA. The reasons for that decision are set in the approval decision form conveyed to the applicant under cover of an email dated 9 April 2024. The reasons were succinctly stated as “accommodation is unsuitable due to no control over co-tenants”. The accommodation in question was the Davoren Park address. There is no reference to the Two Wells address in the reasons.[5]
[5] FDN 10 at [15] – [16].
The applicant wrote to the Parole Board on 15 April 2024 indicating it was likely he would be issuing these proceedings and making a number of submissions concerning the Two Wells and Davoren Park addresses.[6] On 30 April 2024 the Minister’s delegate, after reviewing the matter, again declined to direct the Registrar to register the applicant’s parole order in SA. The reasons for that decision are set out in an email sent on 30 April 2024 as follows:
the owner has indicated she may rent out other room in the premises to other after Mr McKane moves in. As such, the board and Mr McKane would have no control over who might reside at the premises. Given the nature of his offending, the premises are deemed unsuitable by the [B]oard.[7]
[6] FDN 2; Exhibit JM2.
[7] FDN 10 at [18] – [19].
On 11 May 2024, the applicant was released on parole in NSW. The within proceedings were issued on 25 June 2024.[8]
[8] FDN 1.
Legislative provisions
Section 8 of the Transfer Act provides:[9]
[9]    Parole Orders (Transfer) Act (SA) 1983 at [8] (‘Transfer Act’).
8 -Direction for registration of parole order under this Act
(1) At the request in writing of the designated authority for another State or a Territory of the Commonwealth, the Minister may, by instrument in writing, direct the Registrar to register under this Act a parole order that was in force at the time of the request under a law of that State or Territory
(2) The Minister shall not direct the registration under this Act of a parole order in force under a law of another State or Territory of the Commonwealth unless —
(a)     he is satisfied, on consideration of relevant information and documents forwarded to him by the designated authority for that other State or Territory, that, having regard to the interests of the parolee, it is desirable that the parole order be so registered; and
(b)     either—
(i) the parolee has given his consent to, or has requested, the registration of the parole order under this Act; or
(ii) the parolee is residing in this State.
Accordingly, a decision under s 8 requires:
·a written request for registration of a parole order in SA to be made by the designated authority of another jurisdiction,
·the parolee’s consent or request for the registration of parole order; and
·the Minister’s satisfaction that the registration is “desirable”.
The first two requirements are met in this case. There is no dispute that an appropriate written request was made by the appropriate NSW authorities and that Mr McKane consents and indeed wishes to have his parole transferred to SA. The issue relates to the third requirements that the Minister be satisfied that the registration is “desirable” following consideration of the material provided by the other jurisdiction and having regard to the interests of the parolee. Plainly, the decision of the Minister involves the exercise of a wide discretion.
The applicant’s contentions
The applicant filed written submissions[10] and amplified these with oral submissions in the hearing. At the heart of the applicant’s contentions is that he was not provided with reasons, or adequate reasons, for the decisions and that he was not given the opportunity to address any matters adverse to him.
[10] FDN 16.
In relation to the purported decision, the applicant contends that the failure to give reasons, taking into account irrelevant facts and asserted errors of fact constitutes jurisdictional error and gives rise to a reasonable apprehension of bias.
In relation to the 2 April decision, the applicant contends that he was not afforded natural justice, in that he was not given the opportunity to put forward additional material prior to the decision. In relation to the 30 April decision, the applicant contends that he was not afforded procedural fairness and that there is a reasonable apprehension of bias. He further says that the delegate did not properly consider all relevant matters including the availability of the Two Wells address or any orders that could be made to ameliorate the issues identified with the Davoren Park address when making the 2 April and 30 April decisions.
The purported decision
The respondent says that the purported decision is not amenable to judicial review. In making that submission the respondent relies upon Griffith University v Tang[11] where the plurality Gummow, Callinan and Hayden JJ held that a reviewable decision is one which involves two criteria:[12]
… First, the decision must be expressly or impliedly required or authorised by the enactment; and secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense must derive from the enactment.
[11] (2005) 221 CLR 99.
[12] Ibid at 89.
The home assessment report is a report or recommendation provided to a decision maker, in this case the Minister’s delegate. The respondent contends, and I agree, that the report itself it does not have any legal effect and carries no legal consequences. Moreover, the report is but one matter taken into account by the delegate. It is not a decision as such. For these reasons it is my view that the purported decision is not reviewable.[13]
[13] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
It was however unfortunate to say the least that the very comprehensive report on the Two Wells property was not provided to the applicant or his NSW parole officer. The proposed address in Two Wells was rejected and the applicant did not know why. He supplied the alternative address in Davoren Park in the hope that this would be suitable. In the absence of his being provided with the report, in much the same way that a report on a proposed bail address is routinely provided to bail applicants, the applicant did not know what issues had been raised in the report and could not specifically address them. This seems a most unsatisfactory state of affairs.
The April 2024 decisions
In answer to the Applicant’s submissions concerning the failure to give any or any adequate reasons the respondent contends that there is no general rule of common law or principle of natural justice that requires reasons to be given for administrative decisions.[14] There may be special or exceptional circumstances in which a duty to give reasons apply. It is said that no such circumstances apply in the present case. Specifically, the respondent contends that the ordinary construction of the Transfer Act and the nature of the decision-making function in s 8 does not justify a departure from the general rules. It is said that insofar as the applicant complains of a failure to give reasons, or a failure to give adequate reasons, this cannot form the basis for the relief sought either as its own ground of review or as a component of the complaint regarding procedural fairness. The respondent contends that in any event, the reasons for both the 2 April decision and the 30 April decision are set out in those decisions. Accordingly, it is said that there cannot be any relief granted on the basis of an alleged failure to give reasons with respect to either decision.
[14] Public Service Board (NSW) v Osmond (1986) 159 CLR 656.
I accept the respondent’s submissions that, absent special or exceptional circumstances, the delegate did not have a duty to provide reasons. I also accept that reasons, albeit less than comprehensive, were provided for both the 2 April and 30 April decisions. In the absence of a duty to give reasons, it cannot be a jurisdictional error to not give reasons or not give adequate reasons.
The applicant contends that the delegate did not consider all relevant material when she made the 2 April decision. In particular, he says that she did not consider the Two Wells address. It is not surprising that the applicant formed that view given the fact that the decision only referred to the Davoren Park address. Nonetheless, the affidavit filed in these proceedings identifies the material that the decision maker considered in reaching these decisions.[15] This material includes the sentencing remarks, the application forms and attachments, the home visit assessment on both the Two Wells and Davoren Park addresses, information from Corrective Services NSW responding to a query about rehabilitation undertaken by the applicant and a file review report from Corrective Services NSW. I accept that the decision maker did consider this material and accordingly it cannot be said that she failed to consider all relevant material albeit the material was not referred to in the reasons for decision.
[15] FDN 10 at [14] – [15].
The applicant also contended, in a somewhat contradictory manner, that the decision maker took into account irrelevant facts relating to the suitability of the Two Wells property and the Davoren Park property in making the purported decision and the April decisions. I reject that submission. An assessment of the suitability of a proposed residence upon a transfer of parole is plainly relevant to a decision under s 8 of the Transfer Act. The applicant has failed to establish that the delegate failed to take into account relevant considerations or impermissibly took into account irrelevant considerations.
The applicant alleges various errors of fact. These relate principally to the purported decision and are therefore irrelevant to a consideration of the April decisions. However, even if these asserted errors were relevant, they do not constitute matters that form the basis for remedies in judicial review. An administrative decision maker does not commit jurisdictional error if he or she makes an error of law within jurisdiction or makes an error of fact.[16] Accordingly, there cannot be any relief granted on the basis of alleged errors in the fact-finding processes that led to either the 2 April or the 30 April decisions.
[16] R v District Court; Ex parte White (1966) 116 CLR 644.
The applicant also says that he was denied procedural fairness in the making of the April decisions. The basis for this appears to be an assertion that he was not permitted to make submissions or put forward additional material prior to the decisions being made.[17] The substance of his complaint relates to the suitability of the two residences that he proposed. Given the context of his offending, the suitability of any proposed residence was plainly a significant consideration. The applicant was on notice of this and addressed those issues in his offender application and consent form.[18] He was also given the opportunity, albeit without the benefit of the report on the Two Wells property, to supply another address. Further the 30 April decision was made in response to his submissions in relation to the 2 April decision as outlined in his letter to the delegate.
[17] FDN 16 at [5].
[18] FDN 10; Exhibit KC-2.
The applicant says that there is a reasonable apprehension of bias in relation to the 30 April decision. An apprehension of bias exists where a fair observer might reasonably apprehend that the decision maker may bring an impartial mind to the resolution of the question the decision maker is asked to decide.[19] In other words, the applicant must first identify what it is said might be the decision maker to decide the matter other than on its legal or factual merits and then must establish a logical connection between the matter and the feared deviation from the course of deciding a case on its merits. The applicant has failed to establish a basis for satisfying either limb. He relies upon asserted or perceived failings in the decision-making process that are not established on the evidence before me. He then seeks to impute an apparent motive relating to the decision maker’s approach to the merits. There is no basis for this imputation.
[19] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

[2024] SASC 149

18 December 2024