McKenzie v Attorney General for New South Wales

[2023] NSWSC 1639

Supreme Court

New South Wales

Medium Neutral Citation:

McKenzie v Attorney General for New South Wales [2023] NSWSC 1639

Hearing dates:

11 May 2023

Date of orders:

21 December 2023

Decision date:

21 December 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Under rule 59.10 Uniform Procedure Rules 2005 (NSW) extend the time for bringing these proceedings for judicial review to the filing of the summons on 19 September 2022.

(2)      Dismiss the proceedings.

(3)      The plaintiff to pay the first defendant’s costs of the proceedings.

Catchwords:

ADMINISTRATIVE LAW — judicial review — decision to revoke parole — whether decision maker was satisfied of subjective jurisdictional fact — whether error on the face of the record — whether parole authority required to conduct an inquiry or hearing prior to revoking parole — whether decision legally unreasonable — whether error disclosed on the face of the record — decision made in September 2016 and is out of time fixed by UCPR 59.10 — whether leave ought to be granted

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW) ss 2A, 3, 135, 169, 170, 173, 175, 180, 181, Sch 1

Crimes (Administration of Sentences) Regulation 1999 (NSW)

Government Information Public Access Act 2009 (NSW)

Uniform Procedure Rules 2005 (NSW) Pt 59

Cases Cited:

Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57

Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26

Boatswain v State Parole Authority [2014] NSWSC 501

Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24

Dib v Parole Authority of New South Wales [2009] NSWSC 575

Mawas v State Parole Authority [2021] NSWSC 652

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Category:

Principal judgment

Parties:

Allan James McKenzie (Plaintiff)
Attorney General for New South Wales (First Defendant)
State Parole Authority of New South Wales (Second Defendant)

Representation:

Counsel:
P Tierney (Plaintiff)
J Davidson (First Defendant)
State Parole Authority of New South Wales (submitting appearance)

Solicitors:
APJ Lawyers (Plaintiff)
Crown Solicitor’s Office (First Defendant)

File Number(s):

2022/280944

 Decision under review 

Date of Decision:

2 September 2016

JUDGMENT

1. By Further Amended Summons filed on 31 January 2023 the plaintiff (Mr McKenzie) seeks judicial review of the State Parole Authority’s (“SPA”) decision to revoke his parole on 2 September 2016 (“Decision”). The plaintiff seeks and requires leave as the Decision is well past the prescribed period of 3 months (Uniform Civil Procedure Rules 2005 (NSW) r 59.10). The substantive relief sought by the plaintiff is a declaration “that the decision to revoke [his] parole was unlawful”.

2. Conventionally the SPA has filed a submitting appearance and the Attorney General is named as first defendant and appears as the active contradictor.

Statutory scheme

3. The Decision was made under the Crimes (Administration of Sentences) Act 1999 (NSW) (“CASA”) as in force from 8 July 2016 to 17 December 2016. The relevant provisions have been frequently and substantially amended since. The objects of the CASA are (s 2A(1)):

(a)  to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment,

(b)  to ensure that other offenders are kept under supervision in a safe, secure and humane manner,

(c)  to ensure that the safety of persons having the custody or supervision of offenders is not endangered,

(d)  to provide for the rehabilitation of offenders with a view to their reintegration into the general community.

4. Section 2A(2) is also notable: “In the pursuit of these objects, due regard must be had to the interests of victims of the offences committed by offenders.”

5. The ‘parole authority’ is the SPA (ie the second defendant) (s 3 CASA). An offender is, inter alia, a person who is subject to a sentence of imprisonment (s 3 CASA).

6. In relation to grants of parole, the general duty of the SPA is as follows (s 135):

(1) The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest.

(2)  In deciding whether or not the release of an offender is appropriate in the public interest, the Parole Authority must have regard to the following matters:

(a)  the need to protect the safety of the community,

(b)  the need to maintain public confidence in the administration of justice,

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

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

(e)  the offender’s criminal history,

(f)  the likelihood of the offender being able to adapt to normal lawful community life,

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

(h) any report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Probation and Parole Service, as referred to in section 135A,

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

(ia) if the Drug Court has notified the Parole Authority that it has declined to make a compulsory drug treatment order in relation to an offender’s sentence on the ground referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998, the circumstances of that decision to decline to make the order,

(j)  such guidelines as are in force under section 185A,

(k)  such other matters as the Parole Authority considers relevant.

7. Relevant to this proceeding is Part 7 Division 3 of the CASA which deals with revocation of parole orders. The SPA has a discretionary power to conduct inquiries into suspected breaches of parole (s 169 CASA):

(1)  If the Parole Authority has reason to suspect that an offender has failed to comply with the offender’s obligations under a parole order, the Parole Authority may, whether or not the order has expired, conduct an inquiry into the matter.

(1A)  In the case of an offender who has been granted parole on the grounds that he or she is in imminent danger of dying or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person, as referred to in section 154A (3), the Parole Authority may also conduct an inquiry if it suspects that those grounds no longer exist.

(2)  The offender to whom the parole order relates may make submissions to the Parole Authority in relation to the matters under inquiry.

(3)  The Parole Authority is not required to inquire into a possible contravention of a parole order made by a court unless the offender to whom the order relates is required by the conditions of the order to be supervised. (My emphasis.)

8. By s 180 CASA, the SPA is empowered to call for, or compel by warrant, the appearance before it of an offender for the purpose of the inquiry.

9. By s 170 CASA, the SPA has the power to make a revocation order, revoking parole, as follows:

(1)  The Parole Authority may make an order (a revocation order) revoking a parole order:

(a)  if it is satisfied that the offender has failed to comply with the offender’s obligations under the order, or

(a1)  in the case of an offender who has been granted parole on the grounds that he or she is in imminent danger of dying or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person, as referred to in section 154A (3), if it is satisfied that those grounds no longer exist, or

(a2)  in the case of an offender who has been granted parole under section 160 on the grounds that he or she is dying or because of exceptional extenuating circumstances, if it is satisfied that those grounds or circumstances no longer exist, or

(b) if the offender fails to appear before the Parole Authority when called on to do so under section 180, or

(c)  if the offender has applied for the order to be revoked,

and may do so either on its own initiative or on the recommendation of the Commissioner or a probation and parole officer.

(2)  A revocation order may be made:

(a)  whether or not the offender has been called on to appear before the Parole Authority, and

(b)  whether or not the Parole Authority has held an inquiry.

(3)  A revocation order must state the reason for which it is made.

(4)  If it is satisfied that the offender has failed to comply with the offender’s obligations under a parole order but is not of the opinion that the order should be revoked, the Parole Authority may instead impose further conditions on the order, or vary any of the existing conditions of the order, in accordance with section 128. (My emphasis.)

10. Despite s 170(2)(a) permitting a summary revocation of parole, the CASA has necessary post-revocation procedures. By s 173:

(1)  The Parole Authority must cause a notice (a revocation notice) to be served on an offender if the Parole Authority revokes the offender’s intensive correction order, home detention order or parole order.

(1A)  A revocation notice must be served:

(a)  as soon as practicable after the revocation of the order concerned, unless paragraph (b) applies, or

(b) if the Parole Authority issues a warrant under section 181 in relation to the offender, as soon as practicable after the warrant has been executed and, in any case, within 21 days after the offender is returned to custody.

(2)  A revocation notice:

(a)  must be in the form prescribed by the regulations, and

(b)  must set a date (occurring not earlier than 14, nor later than 28, days after the date on which it is served) on which the Parole Authority is to meet:

(i)  for the purpose of reconsidering the revocation of the intensive correction order, home detention order or parole order, and

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

(c)  must require the offender to notify the Secretary of the Parole Authority, not later than 7 days before the date so set, if the offender intends to make submissions to the Parole Authority in relation to the reconsideration of those matters, and

(d)  must be accompanied by:

(i)  a copy of the revocation order by which the intensive correction order, home detention order or parole order was revoked, and

(ii)  copies of the reports and other documents used by the Parole Authority in making the decision to revoke the intensive correction order, home detention order or parole order and, if appropriate, the decision to specify the earlier day. (My emphasis.)

11. It is also pertinent for present purposes to record that the SPA is not bound by the rules of evidence “but may inform itself of any matter in such manner as it thinks appropriate” (Sch 1, Pt 2, s 11(3)). It is pertinent because in forming the state of satisfaction necessary to make a revocation order on the recommendation of a probation and parole officer in accordance with s 170(1) CASA the SPA is not bound by the rules of evidence but may act on such information as it considers reliable.

Established facts

12. The facts appearing from the affidavits read at the hearing were not really in dispute between the parties. I am satisfied that the following narrative of them have been established to the civil standard by that evidence.

13. Mr McKenzie was indicted on one count pleading that he wounded his partner, Melanie Hammond, with intent to cause to her grievous bodily harm. On 26 March 2012 he pleaded guilty to that offence before his Honour Judge Charteris SC in the District Court of New South Wales. On 4 April 2012, his Honour sentenced Mr McKenzie to a term of imprisonment of 6 years and 9 months commencing on 31 October 2011 and expiring on 30 July 2018, with a non-parole period of 4 years and 3 months. An offence of breaching an apprehended domestic violence order was taken into account on a Form 1. He was eligible for parole on 30 January 2016.

14. On 15 December 2015, the SPA directed the offender be released on parole on 30 January 2016 subject to terms and conditions. These relevantly included:

Condition 2: The offender must not, while on release, commit any offence.

Condition 3: The offender must, while on release on parole, adapt to normal lawful community life.

Condition 16: The offender must not contact, communicate with, watch, stalk, harass or intimidate Melanie Hammond.

15. On 19 August 2016, a breach of parole report (“breach report”) was prepared by Paul Webster, Community Corrections Officer. The details of the allegations were as follows:

2. The offender must not, while on release on parole commit any offence.
On Friday 19 August 2016 Police contact indicated the offender will be charged with contravening a current Apprehended Violence Order due to an alleged incident involving the victim of his current offences and one of her children.

16. The offender must not contact, communicate with, watch stalk, harass or intimidate Melanie Hammond.
On Saturday 13 August 2016, the victim was attending Ashord Sports Ground, in company with her children to watch her husband play rugby league. The victim initially saw the offender when he was approximately 10 metres from her, looking and walking towards her. He passed within one metre from where she was standing causing her to feel intimidated. Subsequently, she has reported this allegation to Police.

Accordingly, CCO Webster recommended that Mr McKenzie’s parole be revoked. Sharyn Porter, Acting Unit Leader seconded Webster CCO’s recommendation “[g]iven the nature of the current offence, coupled with the strict additional parole conditions and the offenders apparent disregard for his obligations …”. There is no question that Mr Webster and Ms Porter are probation and parole officers within the meaning of, inter alia, s 170(1) CASA.

16. The breach report was considered by the SPA at its meeting on 2 September 2023 and by written order bearing that date Mr McKenzie’s parole order was revoked for breach of conditions of parole 3 and 16. A warrant was issued for his arrest and committing him to a correctional centre under s 181 CASA.

17. According to Mr McKenzie’s affidavit sworn on 17 January 2023 (“plaintiff affidavit”; [8] & [12]) he was informed he had “breached” when he reported to CCO Webster on 7 September 2016. No particulars of the alleged breach were provided to him. He was directed to attend the police station, which he duly did, whereupon he was arrested pursuant to the warrant which had been issued. He re-entered custody at the Glenn Innes Correctional Centre.

18. On 13 September 2016, the SPA gave notice to the general manager of the correctional centre that it had revoked Mr McKenzie’s parole on 2 September 2016 in compliance with s 173 CASA requiring SPA to “cause a notice… to be served upon [the] offender”. The notice attached Form 2 – Notice of Revocation of Parole Order, which gave Mr McKenzie notice that the SPA would reconvene on 18 October 2016 and notifying him that he was entitled to make submissions to the SPA regarding the revocation. As required, the notice also attached the order revoking Mr McKenzie’s parole order dated 2 September 2016 (BJS6A). The SPA stated its reason for the revocation was breach of parole conditions 3 and 16 (stated above). The order did not expressly state that the SPA “was satisfied that the offender has failed to comply with his obligations under the parole order”, it specified those conditions as having been breached. Form 2 is a standard form prescribed by the provisions of Crimes (Administration of Sentences) Regulation 1999 (NSW).

19. On 18 October 2016, a review hearing took place before the SPA. The chairperson, his Honour Judge Freeman, confirmed the SPA was “aware of the fact that there is material which would tend to exonerate [Mr McKenzie]. It’s by no means guaranteed that he will be charged.” From the transcript of proceedings before the SPA (Court Book (“CB”) tab 9) it appears that the police officer who had made the report to CCO Webster had left the force and the charges foreshadowed to CCO Webster had not eventuated, but the matter was still under investigation the file having been transferred to another station. Judge Freeman also said:

“Can I say this. We’ve been trying to sort out what happened with the police investigation. Apparently, the officer who was originally in charge has since resigned or retired, or something, left the force. This officer to whom (Ms Abrahams) spoke has only just come into it. He is proposing to investigate it. We are aware of the fact that there is material which would tend to exonerate your client. It’s by no means guaranteed that he will be charged. We thought we’d stand it over for two or three weeks to enable this officer to complete his investigation and decide whether there’s a charge or not. If there’s not to be a charge, then we’ll let your client go.”

Judge Freeman then asked Ms Abrahams, the solicitor appearing for Mr McKenzie, whether she had an “alternative suggestion”. Ms Abrahams pointed out “the charges are not particularly serious, and they won’t automatically carry custodial (sic) if he were to be convicted.” She agreed “it might be best to allow the police [the] opportunity” to complete the investigation and make a decision about whether charges will be laid. His Honour made it quite clear that a time limit had to be imposed and the matter should be brought “to a head in two or three weeks time”.

20. While Ms Abrahams did not make a formal application for recission of the revocation order under s 175 CASA, Mr McKenzie asked whether he had to stay in gaol. Judge Freeman said “Unfortunately” he did “at least until [the SPA] sort out what’s happening”. The matter was adjourned to 15 November 2016.

21. On 15 November 2016, the SPA review hearing seems to have been adjourned again to 22 November 2016. But on 21 November 2016 Snr Community Corrections Officer Daniel Bryant reported to the SPA that no criminal charge had materialised and that Mr McKenzie had a suitable address in Armidale to which he could be paroled. Mr Bryant’s manger, Mr Mark Nott, added that despite having had the time to do so, the police appeared to have decided not to institute criminal proceedings. He also recommended maintenance of the original additional conditions which included a condition 16. At its meeting on 22 November 2016, the SPA rescinded the revocation order of 2 September 2016 and directed that Mr McKenzie be released as soon as possible but not later than 4 pm on Wednesday 23 November 2016. According to his affidavit (plaintiff affidavit [11]), Mr McKenzie was released on 23 November 2016 having spent a period of 78 days in custody.

Delay

22. While Mr McKenzie did not believe that he had acted in breach of his parole (plaintiff affidavit [22]), he was not aware that he may have had the right to sue for false imprisonment, notwithstanding having sought legal advice about his rights earlier, until he consulted his current solicitors in 2021. He brings these proceedings because he has been advised that the Supreme Court is the appropriate court to establish the unlawfulness of the SPA’s decision to revoke his parole on 2 September 2016 as a necessary precursor to advancing his claim for damages for false imprisonment in the District Court. He was unaware of the three month limitation period fixed by UCPR 59.10 until “recently” (plaintiff affidavit [29]).

23. The plaintiff’s solicitor, Mr Brett Saunders has sworn an affidavit on 8 June 2022 (“solicitor affidavit”). Mr Saunders states that a colleague received instructions from Mr McKenzie on or about 15 February 2021. His colleague commenced investigating the circumstances including lodging an application under the Government Information Public Access Act 2009 (NSW) to obtain documents from the SPA, 500 pages of material were provided on 8 July 2021. An application to the New South Wales Police Force resulted in 20 pages of information being provided on 6 September 2021. After attempting to obtain advice from two other barristers, Mr Saunders’ colleague retained Mr Peter Tierney of Counsel, who appeared on the hearing before me, after he indicated a willingness to accept the brief on 26 November 2021. Preliminary advice was provided in December 2021 and Mr Tierney and the colleague conferred on 24 January 2022. Mr McKenzie provided instructions “on or about April 2022”(sic) to bring the proceedings, but was unable to afford the filing fees, which he paid by instalments to his solicitors. This appears to have been fully paid on or about 29 July 2022 and the proceedings were commenced on 19 September 2022.

22. Mr Saunders states that proceedings have been commenced against the State of NSW claiming damages on Mr McKenzie’s behalf for false imprisonment (2022/257770). That matter is currently in the inactive list pending the outcome of these proceedings. Mr Saunders regards the outcome of these proceedings as underpinning “the cause of action in the District Court matter” (solicitor affidavit [39]).

Grounds for relief

25. Mr McKenzie propounds 5 grounds. Grounds 1 and 2 are unspecified assertions that ‘the decision was made without, or in excess of, jurisdiction” and “the decision constituted an error of law on the face of the record”. Ground 3 claims an improper exercise of the power conferred by s 170 of the CASA. Ground 3 appears to contain 4 sub-grounds or particulars:

1. acting on the referral of CCO Webster which was without power;

2. acting without evidence to satisfy s 170;

3. a failure to establish the jurisdictional fact required by s 170;

4. a constructive failure to exercise jurisdiction.

26. Sub-grounds (a) and (b) presuppose the SPA ‘acted’ and therefore it is apparent these are independent grounds to (c) and (d) which are premised on a failure to establish a jurisdictional fact and a constructive failure on the part of the SPA.

27. Ground 4(a) and (b) are relevance grounds and 4(c) claims a denial of procedural fairness. Ground 5 claims the Decision was legally unreasonable and irrational.

28. However, the plaintiff conducted the proceeding on 4 bases to impugn the Decision: (1) that the SPA failed to satisfy itself of a pre-condition to the jurisdiction; (2) an error said to be on the face of the record; (3) a vitiating denial of procedural fairness and (4) legal unreasonableness.

Submissions

29. What follows is a summary of the parties’ submissions regarding the grounds of appeal.

Jurisdictional fact – s 170(1)(a)

30. The SPA can make a revocation order if it is satisfied that the offender has failed to comply with the offender’s parole obligations (s 170(1)(a) CASA). The plaintiff submits that this is a jurisdictional fact (plaintiff’s written submissions dated 18 January 2023 (“PWS”), [6(c)]). He submits that the SPA “did not satisfy itself that [Mr McKenzie] had failed to comply with his obligations under the parole order” (PWS, [6(a)]). The plaintiff’s contention is that if the pre-condition is not satisfied, the SPA’s jurisdiction to issue a revocation order was not enlivened and the Decision was made without power.

31. The plaintiff submits that the “record” of the SPA fails to establish that it reached such a state of mind for four reasons (PWS, [9(a)-(d)]):

1. there is no record that says the SPA had the requite state of satisfaction for s 170(1)(a);

2. the breach report prepared by CCO Webster “did not depose to any such state of satisfaction”;

3. the Decision was made without consulting the plaintiff; and

4. the Recission Decision gives rise to an inference that the Revocation Decision was affected by error.

32. There is some common ground, as the first defendant concurs that s 170(1)(a) is a pre-condition to the exercise of the revocation power, though submits that what is required is “the existence of a subjective state of mind on the part of the [SPA]. That is a ‘subjective jurisdictional fact’” (first defendant’s written submissions 13 March 2023 (“DWS”), [19]). Accordingly, the first defendant submits that the proper basis to impugn the Decision is on the principles described in Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 and Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26 (DWS, [19]-[20]).

33. The first defendant also responds to the four arguments relied upon by the plaintiff to demonstrate an omission by the SPA in attaining the requisite state of mind for s 170(1)(a). That includes that there is a natural inference that by stating breaches of conditions 3 and 16 of the plaintiff’s parole the SPA was satisfied of the existence of those breaches as it would not state those as the reasons for the revocation without being so satisfied (DWS, [21]). That CCO Webster was preparing the report in terms of recommendation for the SPA and therefore it is wholly unsurprising that CCO Webster did not himself form the satisfaction for the purpose of s 170(1)(a) (DWS, [22]). That there is no basis to infer jurisdictional error based on the revocation of parole, which was informed by a different body of information (DWS, [24]).

Error on the face of the record

34. The plaintiff claims that the breach report constitutes part of the “record”. It is further claimed that the “unattributed account” of the incident giving rise to the alleged breach of parole constitutes an “error”. It is apparent the plaintiff claims this error to be an error of law. This argument seems to be that the record does not disclose satisfaction of breach of parole by the SPA for s 170(1)(a) CASA (PWS, [11]). Similarly, in relation to the Decision, the plaintiff submits that “no finding is recorded that any relevant person was, in fact, satisfied that the plaintiff had breached his parole” (PWS, [14]). Whilst the Attorney General does not accept that the breach report is part of the record, he in any case points to the provision for the parole officer to make recommendations on the revocation of parole to the SPA, though with the SPA as the decision-maker and having to reach the requisite state of mind not the parole officer (DWS, [26]).

Denial of procedural fairness

35. The plaintiff claims that he was denied a fair hearing and that the decision was affected by bias (PWS, [18]). Whilst noting the discretionary power to hold inquiries and that the revocation power is not conditioned on holding an inquiry (ss 169 and 170(2)(a) CASA), he submits that the revocation power is “not ‘at large’ and wholly devoid of natural justice” (PWS, [19]). In effect, the plaintiff’s conception of the requirement of procedural fairness can be understood as requiring consultation with him prior to making the Decision. Therefore, the plaintiff’s contention of the content of procedural fairness in relation to the present decision required giving notice to the plaintiff of the possibility that his parole order could be revoked and at this point giving him an opportunity to be heard (PWS, [22]; compare s 173 CASA). On this view of the duty, the plaintiff claims he would have had an opportunity to explain why an inquiry should be held pursuant to s 169 CASA and to substantively respond to the alleged breaches by providing exculpatory evidence (ie his personal account of the events giving rise to the alleged breaches of parole).

36. The plaintiff provides little support by way of submissions for his bias claim. This claim appears to be based on the SPA relying on the breach report which is said to give rise to an apprehension of bias (PWS, [33]). This submission is made despite the CASA expressly envisaging circumstances that the SPA may act to revoke parole on the recommendation of a parole officer (see the tailpiece to s 170 CASA).

37. The first defendant submits that the plaintiff’s claim based on a denial of procedural is incongruent with the CASA, in particular, ss 169 and 170(2) and the provision for the notice of revocation providing an opportunity to be heard immediately following notification of revocation (s 173; DWS, [29]). It is also submitted that the requirement of procedural fairness does not generally impose a duty to inquire or investigation (DWS, [31]; compare Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]). The first defendant also submits that the requirement of procedural fairness in the present context “did not require the [SPA] to inquire further, consult a ‘source of information beyond the Police’ or obtain a ‘first-hand account’ of events that were anticipated to be the subject of the charges” (DWS, [31]).

38. The Attorney General does not claim that procedural fairness is not required under the CASA but does submit that the SPA is not required to hold an inquiry or receive submissions/representations prior to a revocation decision. Rather, procedural fairness is provided at a secondary stage, giving the offender an opportunity to make representations as to why the revocation of parole should be rescinded (DWS, [32]). The first defendant relies on Cavanagh J’s judgment in Mawas v State Parole Authority [2021] NSWSC 652, which involved a later iteration of the CASA (at [92]):

The concern of the law [on procedural fairness] is to avoid practical injustice. Certainly, the absence of an inquiry under s 169 deprived the plaintiff of an opportunity to be heard prior to the parole revocation order being made but the procedure set out in the Act mandated a reconsideration of the decision (through a meeting at which the plaintiff did have an opportunity to be heard).

39. Regarding the plaintiff’s bias claim, the first defendant submits that the plaintiff has not identified what is said might lead to bias on the part of the decision-maker or the logical connection between the matter and the feared departure from impartiality (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 [8]; DWS, [35]). The Attorney General further submits, “the mere fact of acting on the basis of the recommendation of a Community Corrections officer as recorded in the breach of parole report could not give rise to an apprehension of bias”.

Legal unreasonableness

40. The plaintiff also makes a claim based on legal unreasonableness that focuses upon the SPA’s decision to rescind the revocation decision. It appears that the plaintiff argues that given the reason for the SPA rescinding parole (ie because the plaintiff had a suitable post release address), in circumstances that the post release address was not in issue and was always in place, that this demonstrates that the Decision is legally unreasonable.

41. In response, the first defendant notes the context of the SPA’s power (ie it had a duty to protect community safety) and it was informed that the police alleged the plaintiff had contravened an AVO causing the victim to feel intimidated (the victim who was also specifically protected under parole condition 16 and a current ADVO) (DWS, [40]). In addition, the Attorney General submits that the breach report “was plainly capable of having been regarded by the [SPA], acting reasonably, as weighing in favour of revocation of parole” (DWS, [41]). Finally, the Attorney General submits that to require the holding of a hearing or inquiry would impinge the SPA’s ability to revoke parole at short notice, including in circumstances where it considers that the safety of the community may be at risk which would be contrary to the scheme established by the CASA (DWS, [42]).

Determination

42. Grounds 1 and 2 are stated in generic or conclusory terms and to that extent are somewhat obscure. From his written submissions, the plaintiff argues that prior to exercising its power to revoke the plaintiff’s parole order under s 170 CASA, the SPA failed to be satisfied that the plaintiff had failed to comply with his obligations under the parole order. The plaintiff relies upon the absence of any statement in the revocation order itself that the SPA was so satisfied; the absence of any statement by CCO Webster that he was so satisfied in his breach report; the failure of the SPA to invite comment from the plaintiff, presumably about the content of the breach report; and the absence of any comment in the rescission order concerning the breach report. It is said from these matters I should draw the inference that the jurisdictional fact upon which the revocation power rests was not established.

43. I accept the argument of the Attorney General that the pre-condition to the exercise of the Revocation Power in s 170(1)(a) is the existence of a subjective state of mind on the part of the SPA. This subjective jurisdictional fact is not whether it had been objectively established that the plaintiff had failed to comply with his parole order obligations but whether the SPA formed that state of mind. The SPA’s satisfaction involved an evaluative judgment formed on the basis of limited materials. The statutory state of satisfaction that an offender had failed to comply with the parole order is legally able to be formed on no more than the recommendation of CCO Webster, which recommendation the evidence before me establishes had been made.

44. Moreover, the Court’s power to review a subjective jurisdictional fact is conditioned by the statement of Gibbs J in Buck v Bavone (at 118–119) as follows:

“It is not uncommon for statutes to provide that a Board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it”.

45. The judgment of Dixon J sitting as a court constituted by a single Justice in Avon Downs (at 360) is to the same effect. His Honour said:

“But it is for the Commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.”

46. It is important to bear in mind that the only material that the SPA had available to it and upon which it made its decision to revoke was CCO Webster’s breach report. It set out the information available to CCO Webster that police had informed him that Mr McKenzie would be charged with contravening the ADVO for the protection of the victim of his offending and one of her children and set out the facts that had been relayed to him by the police officer underpinning the alleged offending. Mr Webster recommended that the parole order be revoked, and his recommendation was supported by his superior. This was legally sufficient for the satisfaction of the subjective jurisdictional fact established by s 170(1)(a). I am not persuaded that I should draw the inference that the SPA was not “satisfied” as required by s 170. I am of the view that despite the absence of an express statement to that effect in the revocation order, the only persuasive inference from the content of it, the content of the notice to the general manager of Glen Innes Correctional Centre and the notice to and the form of notice to Mr McKenzie is that the SPA was subjectively satisfied that Mr McKenzie had failed to comply with his obligations on the basis of the recommendation of CCO Webster and Ms Porter.

47. Moreover, by force of s 170(2) the SPA was authorised to make a revocation order whether or not Mr McKenzie had been called upon to appear before it and whether or not it had held an inquiry under s 169. This express statutory provision, in my judgment, disposes of the complaint that no comment was sought from Mr McKenzie. By s 170(2)(a) no comment was required to be sought. And it also disposes of the complaint that the SPA had not made independent enquiries to verify the content of the breach report. The concluding words of s 170(1) authorise it to act on the basis of the recommendation of CCO Webster alone and without more. Section 170(2) made clear that the SPA was authorised to act without making other inquiries including holding a formal inquiry under s 169. I reject Ground 1.

48. From the plaintiff’s written submissions, it appears that the allegation of error of law on the face of the record is two-fold. First it treats the breach report as part of the record of the SPA and points out that CCO Webster does not state that he has satisfied himself that Mr McKenzie was in fact in breach of the parole order, stating only that it “appears” so. The second part of the argument, is a recitation of the omission from the revocation order of an express statement that the SPA had formed the statutory state of satisfaction. What I have written about ground 1 is sufficient to dispose of the second part of the argument. And I will not repeat those reasons. Suffice it to say that I infer from the material to which I have referred that the SPA was so satisfied.

49. So far as the first part of the argument is concerned, like the Attorney General, I will assume that the breach report is part of the record of the SPA. Having said that, I have my doubts. Rather it appears to be the evidence or other material or information upon which the SPA acted. But making the assumptions to which I have referred, it was not to the point for CCO Webster to say whether or not he was satisfied that there had been a breach. The statute required the SPA, and only the SPA, to consider whether on the material available to it, it had formed the statutory state of satisfaction before making a revocation order even accepting it was authorised to inform that state of mind on the basis of the recommendation of CCO Webster and Ms Porter.

50. However, and in any event, were it legally necessary, CCO Webster’s use of the expression “it appears” to my mind does not imply other than on the information available to him he was satisfied there had been a breach in the manner he specified. I reject Ground 2.

51. Ground 3(a) and (c) is best understood as containing particulars of what was advanced to satisfy grounds 1 and 2. However, I will deal with them briefly. The SPA was not bound by the rules of evidence, and it was expressly authorised to act upon the recommendation of CCO Webster when considering whether it had formed the statutory state of satisfaction necessary for the purpose of s 170(1)(a). This ground is not made good. I have already said that I infer that the SPA formed the statutory state of satisfaction upon which the power to revoke is conditioned and ground 3(c) is not established.

52. I understand Ground 3(d), that is to say the constructive failure to exercise jurisdiction, to be based upon the particulars of ground 4 relating to a denial of procedural fairness and ground 5 raising legal unreasonableness. I will turn to these matters now.

Denial of procedural fairness

53. It has been accepted, in general terms, that the exercise by the SPA of its powers and functions may be subject to a duty to accord an offender procedural fairness: Boatswain v State Parole Authority [2014] NSWSC 501 at [58]-[59] (RA Hulme J); Dib v Parole Authority of New South Wales [2009] NSWSC 575 at [16] (Patten AJ). Both of these decisions were concerned with the exercise by the parole authority of its powers to release an offender to parole.

53. As Mason CJ, Dean and McHugh JJ said in Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 at 598:

“when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment”.

In my judgment plain words in the statute may regulate the manner in which natural justice or procedural fairness is to be afforded to a person, and the specific content of that obligation in a given case.

55. Moreover, the right to natural justice is itself not to be regarded at large or of fixed content. As Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [13]-[14]:

“A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

56. Moreover, as Cavanagh J observed in Mawas v State Parole Authority [2021] NSWSC 652 at [87]:

“Yet, what procedural fairness requires may vary depending on the nature of the decision and the circumstances in which it is made. In this matter the decision not to hold an inquiry must be viewed in the context of the legislative scheme as a whole, including that:

(1)section 169 does not mandate the holding of an inquiry. The decision whether to hold an inquiry is discretionary;

(2)the Act expressly permits the making of a revocation order even though an inquiry has not been held, the right to a review and to be heard immediately following notification of the decision; and

(3)there was a right of review which the plaintiff sought immediately.”

I agree with his Honour’s analysis, with respect.

57. It is important to observe that the power to hold an inquiry conferred by s 169 is not conditioned upon the SPA being satisfied that parole has been breached. Rather, it is conditioned only by the SPA’s reasonably formed suspicion that it may have been. In those circumstances it may decide to hold an inquiry at which the attendance of the offender is compellable. Section 170 makes clear that no enquiry is necessary when the SPA is satisfied that an offender has breached his parole: s 170(2) CASA. In my view these express statutory provisions are enough to dispose of Mr McKenzie’s argument that in the present case natural justice required a s 169 Inquiry or a more informal approach to him for comment. Where, as here, the SPA was satisfied Mr McKenzie had breached his parole on the recommendation made by CCO Webster, an inquiry was “inappropriate”. In such a case natural justice is afforded by the different means of the convening of the necessary review or reconsideration hearing.

58. In the present case, a warrant having been issued for Mr McKenzie to be brought back into custody under s 181 CASA, s 173 (1A)(b) required the revocation notice to be served within 21 days after Mr McKenzie was returned to custody. When this occurred it was a mandatory requirement of s 173(2) that the notice set a date for a review or reconsideration hearing within a relatively short time span of not less than 14 days and not more than 28 days after the date of service. The purpose of the hearing was reconsidering the revocation and at the hearing the offender, in this case, of course, Mr McKenzie, is to be afforded the opportunity of making submissions to the SPA in relation to the reconsideration if he so wished: s 173 (2)(c). For this purpose he was required to be provided with a copy of the revocation order and the breach report and any other documents used by the SPA in making the revocation order: s 173(2)(d). It is quite apparent to me that s 173 is a provision which regulates the obligation to afford procedural fairness in the case of revocation of a parole order. To my mind the fixing of a date not earlier than 14 or more than 28 days after the date of service is to allow sufficient time for an offender to obtain legal representation and to be in a position to make submissions and provide other material with a view to having the revocation order rescinded. The outer limit of 28 days (subject to a power of adjournment) is to ensure that the matter was reconsidered within a reasonable time. Section 174 is also important in as much as it obliges the chairperson of the SPA to convene a meeting in every case where the offender notifies the SPA that he or she intends to make submissions. The purpose of the meeting, (that is to say hearing), I repeat, is the reconsideration of the revocation order. Section 174(2) makes explicit that at the review or reconsideration hearing, the offender is entitled to make submissions to the SPA “with respect to the revocation … order”.

59. Section 175 contemplates that apart from submissions, the offender may put reports, documents and other information before the SPA. It is required to review that material and to decide whether or not to rescind the revocation order.

60. By s 176, the offender is given a limited right to apply to the Supreme Court to impugn the information relied upon in revoking the parole order as “false, misleading or irrelevant”. The Supreme Court may give such direction with respect to the information as it thinks fit, but it is not empowered to conduct any merits review of the SPA’s decision: s 176(5).

61. To my mind, these legislative provisions regulate the manner in which procedural fairness is to be afforded to an offender in respect of the revocation of his parole order and the content of the obligation in such cases. In the light of these provisions, I am not of the view that it was necessary for the SPA to afford Mr McKenzie a right to be heard before making the revocation order. Such a right would be inconsistent with the interrelationship between s 179 and s 170 and with the detailed provisions which ensure an offender’s right to be heard and the SPA’s obligation to reconsider the revocation order at the offender’s election.

62. I also agree with Cavanagh J that there may be a distinction between the grant of parole as in the cases of Dib and Boatswain and the revocation of parole as in the case at hand. As his Honour observed the statutory scheme which I have been reviewing is explicable by reference to “the necessity to sometimes make an urgent decision in respect of a person already in the community in the interests of the safety of the community”: Mawas at [90]. As his Honour said, this consideration “must be a factor in considering whether procedural fairness to an offender mandates the holding of an inquiry prior to a [revocation] decision being made”.

63. Returning to the question of “practical injustice”, there are two contextual matters I regard as significant. Both relate to the argument that the SPA had a duty to ask Mr McKenzie for “comment” before revoking his parole order. The first is that Mr Kenzie did not enjoy a citizen’s general right to be at liberty. He was a sentenced offender serving the balance of his sentence in the community under the conditions of his parole order. He was obliged to comply strictly and completely with his obligations in all respects. The information provided to the SPA from a reliable source was to the effect that he had breached condition 16 imposed for the protection of the victim of the offending for which he was sentenced.

64. The second matter is that the conduct complained of could constitute a serious indictable offence under s 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW), or at least the somewhat less serious offence under s 14 of that Act of contravening an ADVO. Obviously, Mr McKenzie’s right to silence remains intact and any request for “comment” would necessarily be accompanied by an appropriate warning or caution which he may have wished to heed. I fully appreciate that the essence of the “hearing rule” of natural justice is the provision of a reasonable opportunity to be heard involving notice of what it is you may wish to be heard about. But given these considerations I am not persuaded that failing to ask Mr McKenzie for “comment” involved any practical injustice. His rights were better secured by observance by the SPA of the statutory procedures laid down for that purpose.

65. Frankly I regard the plaintiff’s submissions in relation to the apprehension of bias in the SPA to be completely untenable. As the Attorney General points out, the argument failed to engage with the requirements of Ebner v Official Trustee in Bankruptcy at [8] setting out the steps necessary to make good such a case. I accept the Attorney General’s argument that it is not possible in the present circumstances to draw an inference of bias, apprehended or otherwise, from the fact that the SPA apparently acted on the recommendation of CCO Webster when s 170(1) expressly authorises it to do so.

Legal unreasonableness

66. A decision may be taken to be legally unreasonable when “it lacks an evident and intelligible justification” such as where the decision is one which no reasonable person could have arrived at: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; Minister for Immigration v SZVFW (2018) 264 CLR 541;[2018] HCA 30 at [10]-[11] (Kiefel CJ). The Chief Justice also said (at [11]) that “test for unreasonableness is necessarily stringent”.

67. It is necessary for me to once again return to the terms of the statute. I have inferred that the SPA was satisfied as required by s 170(1)(a) that Mr McKenzie had breached his parole obligation on the basis of the content of the breach report and the recommendation of CCO Webster. The statute explicitly authorised the SPA to act in this way.

68. I find the argument that the reference in the recission order to the continued availability of suitable accommodation and the omission to mention anything about the basis upon which the revocation order was made unpersuasive. It is quite apparent from the transcript of the Review Hearing of 18 October 2016 that the SPA was well aware of the exonerating material put forward on Mr McKenzie’s behalf, but considered that further time should be permitted to ascertain whether charges would eventuate given the information indicating that the investigation was continuing. This was not an unreasonable approach to take. And, indeed the solicitor appearing for Mr McKenzie did not submit otherwise. It is clear from the subsequent report that no charges had eventuated, and the SPA operated on the basis of Senior CCO Bryant’s parole revocation recission report of 21 November 2016 which indicated Mr McKenzie had not been charged and that his previous residence continued to be suitable. The continued suitability of his residence was manifestly a relevant consideration for Mr McKenzie’s re-release to parole. A recission of a revocation order does not depend upon the SPA deciding that the revocation order was wrongly made; or that it had now formed a different view: s 175. All that was required was the determination the correct and preferable decision was to readmit Mr McKenzie to parole because his release “is appropriate in the public interest”: s 135 CASA; having regard to the mandatory considerations detailed in s 135(2) including the interests of any victim. In my judgment the form of the recission order says nothing about the validity of the revocation order, which the former rescinded.

69. It was also argued on behalf of the plaintiff that the material before the SPA when it made the revocation order was legally insufficient to satisfy a reasonable authority that Mr McKenzie had breached his parole. It was said the material was not capable of rising above the level specified in s 169 of “reason to suspect” that he had failed to comply with his obligations under the parole order and that the only reasonable exercise of power was to decide to conduct an inquiry into the matter. At the risk of repeating myself even further, I am unpersuaded by this argument, especially as s 170(1)(a) authorised the SPA to make the revocation order on the basis of CCO Webster’s recommendation contained in his breach report.

70. It follows that I am not persuaded that the revocation order was unlawful or otherwise invalid by reason of jurisdictional error or a constructive failure to exercise jurisdiction and the summons must be dismissed for this reason.

71. As I have come to this conclusion, it is strictly unnecessary for me to deal with the question of leave to bring the proceedings for judicial review so far out of the time limited by UCPR 59.10. Even at common law, delay may be a powerful discretionary reason to refuse prerogative relief that had otherwise been established by the evidence. I am, however, prepared to accept, without the need to decide the matter, that the relief sought had continued utility having regard to Mr McKenzie’s pending claim for damages for false imprisonment. Notwithstanding a good deal of hesitation considering the long delay, for that reason alone, I would have been prepared to extend the time for bringing the proceedings. Given that I have considered the substance of the application and decided the matter against Mr McKenzie, it is unnecessary to give any more elaborate reasons in relation to that issue.

72. My orders are:

1. Under rule 59.10 Uniform Procedure Rules 2005 (NSW) extend the time for bringing these proceedings for judicial review to the filing of the summons on 19 September 2022.

2. Dismiss the proceedings.

3. The plaintiff to pay the first defendant’s costs of the proceedings.

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Decision last updated: 21 December 2023