NGJF v Prisoners Review Board - [2010] WASC 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NGJF -v- PRISONERS REVIEW BOARD [2010] WASC 107

CORAM: HALL J

HEARD: 20 APRIL 2010

DELIVERED : 21 MAY 2010

FILE NO/S: CIV 1190 of 2010

BETWEEN: NGJF
Plaintiff
AND
PRISONERS REVIEW BOARD
Defendant

Catchwords:

Administrative law - Duty to give reasons - Parole - Whether report is a decision - Content of reasons - Declaration

Legislation:

Offenders Community Corrections Act 1963 (WA), s 34, s 40D
Parole and Sentencing Legislation Amendment Act 2006 (WA), s 59
Sentence Administration Act 2003 (WA), s 4, s 5C, s 12, s 12A, s 25, s 107, s 107A, s 107B, s 107C, s 114, s 115, s 115A
Sentence Administration Regulations 2003 (WA), reg 3B, reg 3D, reg 3E, reg 3F, reg 3G, reg 3H, reg 3I, reg 3J, reg 3K
Sentencing (Consequential Provisions) Act 1995 (WA), s 86
Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1, cl 13

Result:

Declaration made

Category: A

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr D J Matthews

Solicitors:

Plaintiff: In person
Defendant: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Brettingham Moore v St Leonards (1969) 121 CLR 509
Griffith University v Tang (2004) 221 CLR 99
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Ireland v Hosie [2003] WASC 223
Minister for Aboriginal Affairs v Peko‑Wallsend (1986) 162 CLR 24
Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
R v MacFarlane (1923) 32 CLR 518
R v Parole Board; Ex parte Wilson (1992) 1 QB 740
R v St Lawrences Hospital Statutory Visitors; Ex parte Pritchard (1953) 1 WLR 1158
R v The Parole Board; Ex parte Forbes (1996) 89 A Crim R 139
Rechichi v The Parole Board of Western Australia [2001] WASC 363

HALL J:

Introduction

The plaintiff is a serving prisoner. In 1992 he was sentenced to life imprisonment for wilful murder. Under the law that then applied he could be considered for parole after serving 12 years and, if refused, every three years thereafter. The Prisoners Review Board (the Board) could, however, conduct a review at other times and it (or its predecessor) has done so in regard to the plaintiff. In particular, on 2 June 2009 a review occurred and a report was made by the Board to the relevant Minister. These proceedings relate to that review.
Under the applicable law a decision to grant parole to a prisoner serving a life sentence for wilful murder can only be made by the Governor following a report by the Board to the Minister. On 7 October 2009 the plaintiff was advised that it had been decided that he would not be released on parole and also that he would not be permitted to participate in a re‑socialisation programme. A re‑socialisation programme is a programme undertaken in prison prior to parole in order to equip a prisoner for re‑entry into the community. The plaintiff had previously been considered suitable for similar programmes when the issue of parole was considered in 2002, 2004, 2006 and 2008.
The plaintiff sought a statement of reasons for the decision to deny him parole and participation in a re‑socialisation programme. He also sought information regarding the material that was relied on by the Board and the criteria that were used in assessing that material. Those requests were refused. The grounds for refusing were stated as being that the reasons and information sought were contained in the report to the Minister, that there was no statutory obligation to provide such a report to a prisoner and that the rules of natural justice had been excluded by statute. The plaintiff then brought these proceedings seeking declarations.
The declarations sought are that the Board must:
1.Give reasonable prior notice to the plaintiff of proceedings of the Board affecting his interests;
2.Give notice to the plaintiff of decisions made by the Board affecting his interests;
3.Give sufficient and specific written reasons to the plaintiff for any such decision; and
4.Give the plaintiff a reasonable outline of the material and criteria relied upon by the Board in making any such decisions.
As I have mentioned, any decision regarding the release on parole of the plaintiff can only be made by the Governor. However the plaintiff contends that the Board made a decision to send a report to the Minister containing a recommendation against parole and against participation in a re‑socialisation programme. He says that the Board was required by law to notify him of that decision and to provide reasons for it. He submits that the Board is wrong when it asserts that it does not have to provide reasons and that the grounds advanced for refusing to provide them are not valid.
The Board contends that it made no decision that entitles the plaintiff to reasons or information of the type sought. In particular, the Board submits that the making of a report with recommendations regarding parole and participation in a re‑socialisation programme did not have such a sufficiently determinative quality as to be properly described as a decision. The Board submits that the only decision made was that the plaintiff would not be granted parole and this was a decision that could only be made by the Governor and not the Board. The Board further submits that even if the relevant law requires the provision of reasons for a decision made by the Governor these proceedings cannot succeed because the declarations sought relate to the decisions of the Board and not the Governor.
The issues for determination are:
1.did the Board make any decision?
2.if so, is the Board required to provide reasons for that decision?
3.if reasons are required, what should they contain?
It is important to note that these proceedings do not involve any consideration of the substantive merits of the plaintiff's claim for parole. Whether or not, when and on what conditions he should be paroled are matters for determination by the Governor acting with the benefit of a report from the Board. However, the procedure to be followed is one provided for by law. Whatever view is taken of the crime which resulted in the imprisonment of the plaintiff he must be dealt with fairly and in accordance with the applicable procedural laws.

Background

On 6 November 1991 the plaintiff was arrested and charged with wilful murder. The plaintiff was at that time a 15‑year‑old student attending a school in Perth. The victim was a female student at the school.
The plaintiff was remanded in custody from the time of his arrest. On 13 August 1992 he appeared in the Children's Court and pleaded guilty to wilful murder. In accordance with the provisions of the Children's Court of Western Australia Act 1988 (WA) the identity of the plaintiff was prohibited from publication in respect of those proceedings. Although the present proceedings are not covered by that statutory provision they are so clearly connected that I considered it appropriate to make an order that the name of the plaintiff would not be published in these proceedings.
On 28 August 1992 the plaintiff was sentenced to life imprisonment pursuant to s 282(c)(ii) (since repealed) of the Criminal Code (WA). At that time s 37A(6)(c) of the Offenders Community Corrections Act 1963 (WA) (OCCA) (since repealed) provided that no order as to eligibility for parole was to be made in respect of a sentence of life imprisonment. However, s 34(2)(d) of the same Act stipulated that the Parole Board was to provide a report to the Minister 12 years after the commencement of a life sentence and every three years thereafter. The report was to be 'with respect to a prisoner' serving a life term and 'may' contain a recommendation as to whether or not to release the prisoner and the conditions of any such release: s 34(6).
The use of the word 'may' in this context suggests that the Parole Board was not obligated to make a recommendation, but had discretion to do so: s 56 Interpretation Act 1984 (WA). Exactly what purpose would be served by requiring the Parole Board to produce reports at set intervals but not requiring that those reports make recommendations is unclear. As will shortly become apparent, the legislation did require reports made under other circumstances to include a recommendation regarding release.
Reports under s 34(2)(d) were due on 28 August 2004 and 28 August 2007. The next such report would be required on 28 August 2010 or as soon as practicable thereafter.
Reports in regard to individual prisoners could also be made at other times either in response to a written request by the Minister: s 34(2)(b) or at any time that the Board considered that there were exceptional circumstances: s 34(3). Where a report is requested by the Minister it is required to contain a recommendation on release: s 34(5) but this is not the case where the Board acts of its own volition: s 34(6).
Where the Board furnishes a report of any of the types referred to, that is a mandatory report, a report requested by the Minister or a report made in exceptional circumstances, in respect of a prisoner serving a life sentence and the report recommends release the Board is required to give express attention to certain criteria: s 34(8). Those criteria are the nature and circumstances of the offence for which the sentence was imposed, the degree of risk that the release of the prisoner appears to present to the community or to any individual in the community, the period for which the prisoner should be supervised by a community corrections officer whilst on parole and such other matters as the Board thinks fit.
Section 40D provides that where a report of any of the types referred to is furnished in respect of a prisoner serving a life sentence the Governor may then order that the prisoner be released on parole. It can be seen from this that the provision of such a report is a condition precedent to the exercise of the power to release under s 40D. This appears to be the case whether or not the report contains a recommendation and whether or not such recommendation is for release.
In 1995 the OCCA was repealed. The Sentence Administration Act 1995 (WA) and Sentencing Act 1995 (WA) thereafter provided for the release of prisoners serving life sentences. However, s 86 of the Sentencing (Consequential Provisions) Act 1995 (WA) provided that the OCCA, and in particular s 34 and s 40D, would continue to operate in respect of prisoners sentenced to life imprisonment prior to commencement of the new Acts. Section 86 provides as follows:
If immediately before commencement a person who is in custody and subject to a sentence of life imprisonment, then on and after commencement the repealed Act, and in particular sections 34 and 40D of it, continue to operate in respect of the person and the sentence, but ‑
(a)any release of the person on parole in accordance with the repealed Act is to be by means of a parole order made by the Governor under Division 6 of Part 3 of the Sentence Administration Act 1995; and
(b)the parole period for the parole order is that provided by section 23(3) of the Sentence Administration Act 1995; and
(c)divisions 6, 7 and 8 of Part 3 and Parts 4 to 11 of the Sentence Administration Act 1995 apply to and in respect of the person and the parole order.
The Sentence Administration Act 1995 was itself repealed in 2003 and replaced by the Sentence Administration Act 2003 (WA) (Sentence Administration Act 2003). Transitional provisions again preserve the effect of previous laws, in particular the Sentencing Legislation Amendment and Repeal Act 2003 (WA) contains a provision in sch 1 cl 13(5) under the heading 'Offenders serving imprisonment imposed before 4 November 1996'. That clause states as follows:
If immediately before commencement a person to whom section 86 of the 1995 Act applies is in custody subject to the sentence referred to in s 86 then of and after commencement s 86 other, than paragraphs a, b and c, continues to apply but ‑
(a)any release of the person on parole in respect of the sentence is to be by means of a parole order made by the Governor under Part 3 of the Sentence Administration Act 2003;
(b)the parole period for the parole order is that provided by section 25(3) of the Sentence Administration Act 2003; and
(c)Part 3 Divisions 6 to 11 and Parts 4 to 10 of the Sentence Administration Act 2003 apply to and in respect of the person and the parole order.
The effect of these changes was that the circumstances in which reports regarding prisoners sentenced to life prior to 4 November 1996 were required or could be made by the Prisoners Review Board (which is the successor to the former Parole Board) continued to be governed by s 34 and s 40D of the OCCA, however the provisions relating to how a parole order would be made and managed were to be governed by the provisions of the new Act.
The Board has considered the plaintiff's case at times other than those stipulated and has furnished written reports to the Minister in 2000, 2002, 2004, 2006, 2008 and 2009. Whether these reports were requested by the Minister (under s 34(2)(b)) or were made at the instance of the Board (under s 34(3)) is not entirely clear, but it is unnecessary for the purposes of these proceedings to be concerned about any reports other than that of 2009.

The 2009 review

On 17 June 2008 a senior secretary of the Board wrote to the plaintiff and advised that the Attorney General had asked the Board to consider an interstate transfer. The letter suggested that the plaintiff should make an application for an interstate transfer and that his case would be reviewed again in June 2009. On 28 July 2008 the plaintiff submitted an application for an interstate prison transfer. On 8 October 2008 the Chairman of the Board wrote to the plaintiff in regard to the application for an interstate transfer and noted that a review date was set for June 2009. It would appear from this correspondence that that date was intended to be a review of whether the plaintiff was suitable for parole and not merely whether his application for a transfer should be granted.
On 2 April 2009 the plaintiff wrote to the Board and provided information regarding his application for an interstate transfer. In that letter the plaintiff referred to the review that was set down to occur in June 2009. A further letter from a correspondence officer at the State Review Boards Secretariat was sent to the plaintiff on 20 April 2009 referring to the review that was due in June 2009. The relevance of this correspondence is that one of the complaints made by the plaintiff is that he did not receive prior notification of the review. It is clear from the correspondence that he was aware of the review from about 17 June 2008.
The Board reviewed the plaintiff's case on 2 June 2009. An affidavit of Ms Holland, the Registrar of the Board states that:
The Prisoners Review Board did not make any decisions in relation to the plaintiff. The only 'decision' the Prisoners Review Board made was to send a report to the Attorney General in relation to the plaintiff. The Attorney General is empowered to make all material decisions in relation to the plaintiff's case.
It would seem that the plaintiff did not initially receive written notification from the Board of the outcome of the 2 June 2009 meeting. However, the plaintiff became aware of the decision and on 2 July 2009 he wrote to the Attorney General complaining that the Board had decided he was not suitable for participation in a re‑socialisation programme and that this contrasted with previous decisions in this regard. In his affidavit of 4 February 2010 the plaintiff states that he was informed by the Sentence Management Co‑ordinator at Acacia Prison that the Board had decided to make a report to the Minister recommending against participation in a re‑socialisation programme or release on parole. The plaintiff forwarded a copy of his letter to the Attorney General to the Board and on 6 July 2009 the State Review Boards Secretariat responded saying that the correspondence had been placed on the file for the information of the Board.
On 19 July 2009 the plaintiff wrote to the Board querying how it was possible for the Board to have considered all relevant information given that no updated reports had been prepared. On 31 July 2009 he was again advised that his correspondence had been placed on the file for the Board's consideration.
On 5 August 2009 the plaintiff wrote to the Board and requested that he be formally notified in writing of any conclusions reached by it regarding his suitability for parole 'together with a reasonably cogent summary of the Board's reasons for decision, including all findings on material questions of fact ‑ referring to any probative evidence or other cogent material on which those findings were based'. Perhaps not surprisingly, the plaintiff sought an explanation for why the Board now viewed him as unsuitable for a re‑socialisation programme (as a preliminary to release on parole) whereas it had previously had a contrary view.
By letter dated 13 August 2009 from the State Review Boards Secretariat the plaintiff was again advised that his correspondence had been placed on the file and would be made available for the Board's consideration at any future reviews. Such standard responses were clearly inadequate to deal with the concerns that were raised by the plaintiff in his letters. However, the plaintiff received a more informative response from the Attorney General on 14 August 2009. In a letter of that date the Attorney General advised the plaintiff that the Board had reviewed his case on 2 June 2009 and 'made a decision to prepare a report in accordance with s 12A of the Sentence Administration Act 2003'. The Attorney General went on to say that he was advised that the report was currently being prepared for his attention. He said that after receipt of the Board's recommendation and any other information that may be relevant and after finalising his decision in regard to the Board's recommendation he would then be in a position to consider the application for an interstate transfer (which would be considered separately).
On 17 August 2009 the plaintiff wrote to the Attorney General asking for formal confirmation of the Board's decision of 2 June 2009 that he was no longer suitable for participation in a re‑socialisation programme or release on parole. On 10 September 2009 the plaintiff received a letter from the State Review Boards Secretariat which apologised for the standard responses that he had received to his earlier correspondence. The letter also stated:
I also take this opportunity to apologise for lack of notice to you of the Boards decision relating to your case from the meeting held on 2 June 2009.
I now enclose a copy of that decision for your records.
The copy enclosed was in the form of a letter addressed to the plaintiff the entire content of which was as follows:
The Prisoners Review Board today considered your case and resolved to prepare a report to the Attorney General.
You will be advised of any further outcomes.
The letter from the Secretariat also stated that the Board had now received formal notification from the Attorney General and that he had not approved the plaintiff's release on parole or participation in a re‑socialisation programme. It would appear from this that a report had been prepared and sent to the Attorney General.
On 18 September 2009 the Board wrote to the plaintiff. That letter reviewed earlier correspondence and answered queries regarding interstate transfer. It also addressed the plaintiff's request for a formal statement of reasons. In this regard the letter stated:
In relation to your requests for access to various documentation, submissions and reports the Board accesses in making its determinations, you are advised the Sentence Administration Act 2003 excludes the rules of natural justice and the Act does not require full disclosure and is not bound by any burden of proof or evidence in making its recommendations or decisions.

The Board also wrote to the solicitors acting for the plaintiff on 18 September 2009. In that letter the Board advised that it had made a report and recommendations to the Attorney General in what was described as the 'sixth statutory report' in accordance with s 12(2)(b) of the Sentence Administration Act 2003 and that the report which was dated 29 July 2009 was a confidential document and not available.
On 7 October 2009 the plaintiff received a letter from the Attorney General in regard to the request for confirmation of the Board's decision. That letter stated:
The Board last conducted a review in relation to your matter on 2 June 2009 and the report and recommendation from that meeting was provided to my office on 29 July 2009 for my decision. After carefully reviewing your matter, I confirm that I have agreed with the recommendation made to me by the Board and have determined to deny both your release to parole and participation in a re‑socialisation program at this time.
Following further requests for information the Board wrote to the plaintiff on 3 November 2009 and stated that:
… the Sentence Administration Act 2003 does not require the Board to provide a prisoner with a copy of the Statutory Report to the Attorney General and that the Act excluded the rules of natural justice, ...
On 4 November 2009 the plaintiff wrote to the Board and stated that whilst he was not seeking a copy of the Board's statutory report he was requesting that the Board furnish him with:
(i)Complete notice of the Boards' 2 June 2009 adverse decision, in now holding that I am not suitable for participation in a re‑socialisation program or release on parole; pursuant to section 107B(1) SA Act;
(ii)Sufficiently specific reasons for the Board's 2 June 2009 adverse decision, in now holding that I am not suitable for participation in a re‑socialisation program or release on parole: pursuant to section 107B(4) SA Act; and
(iii)The material which led the Board to such adverse conclusion and, if relevant, the criteria against which the Board judged the information available to it.
In response the Board wrote to the plaintiff on 16 November 2009 advising him that s 5A of the Sentence Administration Act 2003 details the considerations against which the Board considers all information provided to it when reviewing any proposal for release. The letter then stated that:
… the Sentence Administration Act 2003 (the Act) does not require the Board to provide a prisoner with a copy of the Statutory Report to the Attorney General and it is that report that contains the information you are requesting.
A request to the Attorney General for written reasons for his decision met with a similar response. On 15 December 2009 the Attorney General wrote to the plaintiff and stated:
I note that you have been advised by the Registrar of the Board on 18 September 2009 that there was no legislative requirement to provide you with the Board's reasons and recommendations and, as the rules of natural justice do not apply to the Board, that information would not be provided.
I concur with the Board's decision not to provide you with this information and, as a reply to your request may identify some of that information, I am unable to assist you further in this matter.

Did the Board make a decision?

As has been previously noted, although the timing of reports and the circumstances in which they could be made continued to be governed in respect of the plaintiff by the OCCA some parts of the Sentence Administration Act 2003 were applied by the transition provisions. This includes pt 9 of the Sentence Administration Act 2003. Section 107B is contained in pt 9 and it provides:
107B. Notification of Board's decisions
(1)The Board must give a prisoner written notice of any decision made under this Act in respect of the person as soon as practicable after the decision is made.
(2)The Board must give the CEO written notice of any decision made under this Act in respect of a prisoner as soon as practicable after the decision is made.
(3)Without limiting subsections (1) and (2), they apply ‑
(a)to a decision, whether by the Board or the Governor, not to make an early release order in respect of a prisoner;
(b)to a decision to make a parole order in which the release date is not the day when, under section 23(2) or section 93(1) of the Sentencing Act 1995, the prisoner is eligible to be released on parole;
(c)to a decision, whether by the Governor or the Board, to amend, suspend or cancel an early release order; and
(d)to a decision by the Board not to make a request under section 13(4) after receiving a report under section 13(3) or not to endorse, with or without variations, a re‑socialisation programme received under section 13(4),
and, in the case of subsection (1) ‑
(e)to a decision by the CEO to suspend an early release order.
(4)Subject to section 114, a notice under subsection (1) or (2) must include the reasons for the decision.
(5)If the decision is a reviewable decision, as that term is defined in section 115A, a notice under subsection (1) must inform the prisoner of the effect of section 115A.
Section 107B was inserted into the Act by the Parole and Sentencing Legislation Amendment Act 2006 (WA) and became operative on 28 January 2007. Accordingly, s 107B was not a part of pt 9 of the Sentence Administration Act 2003 when it was applied to persons in the plaintiff's position by cl 13(5) of the Sentencing Legislation Amendment and Repeal Act 2003. However, s 16 of the Interpretation Act provides that references to written laws are deemed to include a reference to those laws as from time to time amended.
The words 'early release order' used in s 107B(3)(a) are defined in s 4 to mean a parole order or a re‑entry release order. Consequently, a decision not to order parole is a decision that must be the subject of written notice to the affected prisoner: s 107B(1). Furthermore, any such notice must include reasons for the decision: s 107B(4). The decisions listed in s 107B(3) are an inclusive not an exclusive list and thus other decisions may also attract the notification obligation.
Decisions by the Governor to deny parole are expressly included in s 107B(3). This means that the Board is nonetheless required by s 107B(4) to provide reasons even where the decision is one of the Governor.
From this perspective it might be argued that to characterise the making of a report and a recommendation by the Board as a decision is unnecessary as the decision of the Governor is already encompassed by the obligation to provide reasons. One problem with this analysis is that it would seem open to question whether a decision has in fact been made by the Governor. The report was provided to the Attorney General who himself decided to accept the recommendation to deny parole. The question of whether or not that decision can be characterised as that of the Governor should not determine whether the plaintiff is to be given the reasons that the statute provides for. I note in this regard that references to the Governor being authorised to order parole are taken to mean the Governor with the advice and consent of the Executive Council: s 60 Interpretation Act 1984.
If, as has been submitted, any decision was made by the Governor not the Board, the Board's obligation under s 107B(4) would be no different. Thus, though the declaration sought relates to a decision of the Board, the justice of the case would require that it be amended to refer to the Governor if this were necessary. No possible prejudice could arise from this and it would not involve any joining of the Governor since the obligation to provide reasons always falls upon the Board under s 107B, whether or not the Governor is the decision maker.
However, in my view the action of the Board in making a report recommending against parole is a decision for the purposes of s 107B(1) in any event. I reach this conclusion because the making of a report is a critical step in whether the power to grant parole to the plaintiff can be exercised. Although the Governor may decline to follow any recommendation made by the Board he cannot exercise the power under s 25 of the Sentence Administration Act 2003 to make a parole order unless a report has been given to the Minister. It is clear from this that a report is not a mere technical formality but the intended basis upon which a decision to grant, or refuse, parole to a prisoner serving a life term will be made. Accordingly, the content of that report is likely to be critical to the prospects of parole being granted.
There is no definition in the Sentence Administration Act 2003 of the word 'decision' or the phrase 'any decision made under this Act in respect of the person'. Accordingly, it will be necessary to give some consideration as to what those words mean in the context of the Act.
Whilst it is certainly not determinative, it is noteworthy that in correspondence sent to the plaintiff from both the Board and the Attorney General the conclusions reached by the Board in regard to whether the plaintiff was suitable for parole and participation in a re‑socialisation programme are described as decisions. It is not surprising that this has led the plaintiff to believe that he was entitled to a statement of reasons. Counsel for the Board sought to explain the use of such terminology by submitting that the authors of correspondence sent by the Board were usually not legally trained and may not have appreciated the significance of the use of the word 'decision' - or intended that it would be read in the sense used in s 107B.
The question of what constitutes a 'decision made under this Act' is one of statutory interpretation. It comprises two issues; what does 'decision' mean in this context and what does it mean for a decision to be 'made under this Act'. In addressing both of those issues the context in which the words appear is significant.
Considerable attention has been paid to the meaning of the word 'decision' in the context of the Administration Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). That Act provides for judicial review of decisions made by federal statutory decision makers. In considering the scope of the word, Mason CJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 that the meaning must be determined by reference to the text, scope and purpose of the statute in question. In that case his Honour said that the fact that the ADJR Act was a remedial statute providing for a review of administrative action indicated that a narrow view of the word decision should not be taken (335). His Honour considered it significant that the statute did not use the words 'final decision'.
However, Mason CJ took into account other factors that indicated that, in that case, the word 'decision' was intended to have a limited field of operation. These included:
1.That a definition contained in the ADJR Act referred to decisions of 'an administrative character made under an enactment' and this suggested that reviewable decisions were those that a statute required or authorised 'rather than merely a step taken in the course of reasoning on the way to the making of an ultimate decision';
2.That the examples given in the definition were indicative that decisions under the Act had to have a quality of finality, that is something that determined an actual substantive issue;
3.that the definition included 'the making of a report or recommendation before a decision is made' and such an inclusion would have been unnecessary if the word 'decision' in the ADJR Act had been intended to cover every decision made in the course of reaching a conclusive determination.
His Honour recognised that there were competing policy considerations in construing the ambit of what was reviewable. On the one hand the purpose of the ADJR Act was to facilitate review by those aggrieved by administrative processes. On the other hand, the efficient administration of government would be impaired if the word decision was held to encompass each step in a decision making process.
Mason CJ concluded that, whatever the policy arguments, the textual and contextual considerations dictated that a reviewable decision was one made under statute:
That will generally, but not always, entail a decision which is final or operative and determinative, at least in the practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment (337).
Whilst Australian Broadcasting Commission v Bond is obviously authoritative in regards to the interpretation of the ADJR Act, it must be recognised that the Sentence Administration Act 2003 is different in important respects such that the conclusions reached in that case cannot simply be applied without analysis. Unlike the ADJR Act the Sentence Administration Act 2003 does not contain a definition of 'decision'. There is, therefore, none of the factors which in Bond suggested a limited scope for that word. The list of examples contained in s 107B(3) include some which might be thought not to be final, for example a decision not to make a request to the CEO for a detailed description of an appropriate re‑socialisation programme: s 107B(3)(d). Furthermore, the purposes of both Acts are clearly different. I will return to this factor later. The ADJR Act also permits review of conduct as well as decisions and this is a factor that influenced how the word decision was interpreted in Bond. Nonetheless, Bond does provide guidance as to how the interpretation of s 107B should be approached.
The purpose of s 107B appears to be to ensure that prisoners are properly informed as to decisions which affect their standing and future incarceration. In R v The Parole Board; Ex parte Forbes (1996) 89 A Crim R 139, Wheeler J considered a similar provision in s 40B of the OCCA:
Very broadly, there is the general consideration that the decision made is one denying a prisoner the opportunity to be at liberty which the Act otherwise would have afforded him. This suggests that a purpose of the requirement for giving reasons is to ensure that a prisoner will be able to say, as Woodward J put it in the context of the Administrative Decisions Judicial Review Act 1997 (Cth) in Ansett Transport Industries Operations Pty Ltd v Wraith (1993) 48 ALR 500:
'Even though I might not agree with it I now understand why the decision went against me'.
More specifically however, the requirement to give reasons is closely coupled with the ability of the prisoner to make representations. This suggests that the prisoner is to be able to correct any errors of fact which may have influenced the Board and perhaps to reorganise his affairs, so far as he is able to do so, so as to remedy any deficiency which the Board may have seen in his parole plan or likely circumstances upon his release.
In Forbes the decisions at issue were ones to defer consideration and then to deny parole. Unlike the present case the final operative decision in that case was one the Board was empowered to make. In this case the Board is not so empowered; its role is limited to making a report and a recommendation.
Whilst the OCCA does not stipulate the content of a report made under s 34(3) other than to say that it be 'with respect to a person', it is reasonable to infer from the considerations that are listed in s 34(8) that a report will consider issues such as the nature and circumstances of the offence for which the sentence was imposed and the degree of risk that the release of the prisoner would present. Subsection 34(8) only requires that express attention be given to such factors where the report recommends release, but they are obviously equally relevant to a recommendation against release. It is reasonable to infer that any report prepared by the Board would consider such issues and make determinations in respect of factual matters relating to them.
I note that in correspondence with the plaintiff the report was described as being one made under s 12 or s 12A of the Sentence Administration Act 2003. That does not seem to me to be right. Sections 12 and 12A are not amongst those provisions referred to in the transition provisions as applying to life prisoners sentenced before 1996. In any event, s 12A applies only to prisoners falling into the categories included in the table contained in the section. The plaintiff does not fall into those categories. The only category that could be relevant refers to prisoners serving a life sentence for murder, but it stipulates that this is only where the minimum period has been set under s 90(1)(a) of the Sentencing Act 1995, which is not the case in respect of the plaintiff. The better view is that the report in this case was one made under s 34(3) of the OCCA in its continued application to the plaintiff. However, under whatever provision it is made it is the substantive content and effect of the report that are important in determining whether its making was a 'decision'.
It is noteworthy that s 3(3) of the ADJR Act deems that reports and recommendations which are made pursuant to statute prior to the making of a final decision are decisions for the purposes of that Act. Whilst the terms of the ADJR Act cannot, of course, assist with the interpretation of the Sentence Administration Act 2003, it appears to have been recognised in the case of the ADJR Act that in some cases reports and recommendations can be so critical a part of the decision making process that they should be amenable to review even though they precede the final determination. It has been suggested that in this regard the ADJR Act is, in fact, narrower than the common law (Aronson, Dyer and Groves Judicial Review of Administrative Action (4th ed) page 71).
It has also been held that reports and recommendations can attract the requirement to render procedural fairness even though they are not final or determinative in nature: Brettingham Moore v St Leonards (1969) 121 CLR 509 (Barwick CJ) 522; Annetts v McCann (1990) 170 CLR 596; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. One reason for this is that reports can have an effect upon reputation even though they do not settle legal disputes or rights. However, the utility of these decisions is limited by the fact that the rules of natural justice have been excluded in respect of parole decision making: s 115 Sentence Administration Act 2003.
The common law approach to reports was initially reflected in the requirement that certiorari and prohibition only lie to quash something that is a determination or final decision: R v St Lawrences Hospital Statutory Visitors; Ex parte Pritchard (1953) 1 WLR 1158. In that case the court declined to quash a report as to the need for continued detention of a mentally impaired person where the power to order the detention rested with another body which was required to consider the report before deciding. A similar result occurred in the R v MacFarlane (1923) 32 CLR 518 in which it was held that prohibition was not open because an Immigration Board 'had no power by its determination to impose any obligation on any person or to affect any person's rights. Its sole function is to recommend ‑ ie to advise the Minister' (Knox CJ) (527). However, the law has since developed such that certiorari and prohibition may be granted in respect of preliminary decisions which are a prescribed step in a statutory process leading to a decision that affects rights: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149.

In Hot Holdings a mining warden having collected evidence and considered objections made a recommendation to the relevant Minister. Discretion was vested in the Minister to either grant or refuse the application for an exploration licence. The Minister was not bound to follow the recommendation of the warden but the High Court concluded that he was required to take the warden's report into account. That was an obligation necessarily implied from the fact that the making of a report was a precondition to the exercise of discretionary power by the Minister (Brennan CJ, Gaudron and Gummow JJ) (170 ‑ 175) and see also Minister for Aboriginal Affairs v Peko‑Wallsend (1986) 162 CLR 24 (Mason J), 44. Certiorari was granted in that case in respect of the decision of the warden.
In R v Parole Board; Ex parte Wilson (1992) 1 QB 740 the English Court of Appeal considered the case of a prisoner serving a life sentence who had sought declarations that he be provided with disclosure of reasons and reports relating to the Parole Board's refusal to recommend he be released on parole. Whilst the case concerned the application of the rules of natural justice, Taylor LJ made reference to the significance of the Board's role in the decision making process:
True, the ultimate decision as to release on licence is that of a Secretary of State. But he depends upon the advice of the Parole Board which conducts the only review procedure in which the applicant can make representations.
In Wilson Taylor LJ went on to refer to a number of policy considerations. One of those was the fact that the decision making process was one of great significance, relating as it did to the liberty of a person. He also referred to the advantages of disclosing reasons for decisions to deny parole. Some of those reasons include that it enables the affected person to understand why the decision has been made. If the decision is based on some aspect of character or conduct the prisoner may, by being informed, be able to seek to undertake reform and thereby improve their prospects of release on the next review. This will enable the prisoner to better participate in their own rehabilitation and make relevant submissions to the Board. It will also be relevant in the prisoner determining whether he has any grounds for seeking a review (though it would seem that the decision of the Board in respect of parole in this case may not be a reviewable decision under s 115A of the Act). I should note that I do not consider that the availability of review will be determinative of whether reasons should be provided; it is merely one amongst many factors.
As opposed to this, an absence of reasons (particularly, as here, where the Board appears to have changed its position) can engender dissatisfaction and lack of respect. It may give prisoners (and, indeed any others affected) the impression that the decisions are arbitrary and not based on principal. This impression may well be incorrect, but it will be difficult to dispel if reasons are refused. Factors like these could well have informed the decision of the legislature to include the requirements of s 107B. It is noteworthy that prior to the introduction of s 107B there were a number of provisions relating to specific decisions and a requirement to provide reasons. Section 107B replaced these provisions with a more general obligation.
In the present case, whilst the legislation does not provide the plaintiff with a right to make representations, it does invest the Board with extensive powers which can be utilised in preparing a report. These include a power to obtain advice from experts (s 107A) and to exercise any of the powers of a Royal Commission (s 107). This tends to confirm that the Board is intended to be the body that collects relevant information regarding parole eligibility, draws conclusions regarding that information and makes recommendations based on those conclusions. To the extent that a prisoner is permitted to make any representations it would be to the Board or people engaged by it. To describe the Board's role as being merely investigatory would not properly reflect its critical role in the decision making process in regards to prisoners serving life sentences.
Accordingly, in my view, a determination made by the Board to make a report regarding a prisoner serving a life term containing a recommendation that the prisoner not be released on parole is a decision for the purposes of s 107B. I come to this conclusion because the making of such a report is a prescribed step in the process and because the report of the Board will of necessity address and determine issues critical to the prospects of release. Furthermore, a report is necessarily something that has to be taken into account in determining whether the plaintiff should be released on parole.
There is a remaining issue; whether the decision I have referred to is 'made under this Act'. The High Court considered a similar question in relation to the Judicial Review Act 1991 (Qld) in Griffith University v Tang (2004) 221 CLR 99. In that case the decision of a university to exclude a post graduate student after finding her guilty of academic misconduct was held not to have been made 'under an enactment' within the meaning of the relevant Act. Although the university was established by an Act of Parliament that Act did not govern or provide for academic misconduct. The decision was not one to which the statute gave legal force and effect, rather the university was acting under the general law which applied to its relationship with the student. Gummow, Callinan and Heydon JJ held that there were two criteria for determining whether a decision was made under an enactment; first, the decision must be expressly or impliedly required or authorised by the enactment; and second the decision must itself confer, alter or otherwise affect legal rights or obligations and in that sense derive from the enactment. That does not require that the decision affect or alter existing rights or obligations, it is sufficient if the enactment requires a decision from which new rights or obligations arise.
In the present case the making of the report is specifically authorised by s 34 of the OCCA so the first criterion is met. As to the second criterion there is no right to parole nor is there a right to have any parole considered at any times other than those stipulated. However, the making of a report is a necessary prerequisite to the exercise of the power of the Governor to grant parole. Thus, if the Board determines to make a report, that decision makes the granting of parole a legal possibility and the content of that report is likely to affect how the discretion will be exercised. In my view, therefore, the second criterion is also met.
A complicating factor is whether the report is made under the OCCA or the Sentence Administration Act 2003. If the report is made under the OCCA (which continues to apply to the plaintiff by reason of the transitional provisions) then is there a decision 'made under this Act' (emphasis added)? Clearly the words 'this Act' refer to the Sentence Administration Act 2003 and s 107B does not in terms relate to decisions made under other Acts. If, however, prisoners still covered by the provisions of the OCCA were for this reason treated differently to those who are not so covered the result would be anomalous. There is no obvious reason why prisoners sentenced before 1996 should be less entitled to reasons for decisions than those sentenced after that time.
In my view this problem is answered by viewing the transitional provisions in their proper context. Whilst the OCCA was to continue to apply to prisoners sentenced prior to 1996, the provisions of pt 3 div 6 ‑ 11 and pt 4 ‑ 10 of the Sentence Administration Act 2003 (which includes s 107B) are to 'apply to and in respect of the person'. This suggests that those provisions are to have their full force and effect in respect of such prisoners notwithstanding that some aspects of their incarceration remain governed by the OCCA. Accordingly, the reference in s 107B to 'decisions made under this Act' must be seen in light of the fact that the section is intended to apply in respect of prisoners who remain in some aspects covered by the OCCA. If the section were to be narrowly construed it would render nugatory the effect of applying it. The clear objective was that prisoners in the plaintiff's position would be treated in the same way as those to whom s 107B directly applied. For these reasons the making of the report was, in my view, a decision made 'under this Act', being the Sentence Administration Act 2003, as applied by the transition provisions.

Was the Board obliged to provide reasons for its decision?

Since I have concluded that the Board made a decision under the Sentence Administration Act 2003 to make a report to the Minister in regard to the plaintiff and to include in that report a recommendation against parole it follows that the Board had to meet the obligations contained in s 107B. Thus the Board was obliged to give the plaintiff written notice of its decision as soon as practicable after the decision was made: s 107B(1). Furthermore, that notice should have included the reasons for the decision: s 107B(4).
As I have earlier noted, the Board declined to provide any reasons to the plaintiff when he requested them. In doing so the Board did not seek to argue that the making of a report with recommendations was not a decision (as it did when these proceedings were heard), rather it stated that there was no statutory obligation to provide a report to the prisoner affected and that the rules of natural justice were excluded. In my view neither of these can overcome the obligations created by s 107B.
The fact that the Sentence Administration Act 2003 does not make specific provision for the disclosure of a report to an affected prisoner is not to the point. The Board in fact has the power under s 107C to publish a decision of the Board, or the reasons for it, if it considers it is in the public interest to do so. Whether or not a report is published, the fact that the reasons for a decision are contained in a report provided to the Minister does not mean that the reasons cannot be provided. Section 107B does not require that a report to the Minister be disclosed, it requires that reasons be provided and those reasons may be a summary or extract from the report provided that they are sufficient to meet the description of reasons. If the Board were relieved from the obligation to provide reasons simply because such reasons had been included in a report to a Minister s 107B would be ineffective in the case of any prisoner about whom a report was made.
That is not to overlook that a report may contain material that it would not be appropriate to disclose to a prisoner. Indeed, insofar as a report may contain a copy of a victim's submission there may be a statutory impediment to providing at least that part of it: s 5C(5) Sentence Administration Act 2003. Nonetheless, it will often be possible to accommodate such conflicting obligations by redacting, editing or summarising. The obligation to provide reasons is not extinguished in the face of competing considerations as it will generally be possible to satisfy both, at least to some substantial extent.
As regards to the exclusion of the rules of natural justice, s 115 of the Sentence Administration Act 2003 provides as follows:
115. Exclusion of rules of natural justice
The rules known as the rules of natural justice (including any duty of procedural fairness) do not apply to or in relation to the doing or omission of any act, matter or thing under Parts 2 to 6 by ‑
(a)the Governor;
(b)the Minister;
(c)the Board;
(d)an authorised person as defined in section 108(1); or
(e)the CEO.
The implication of the Board's responses to the plaintiff was that this section had the effect of relieving the Board of any obligation to provide reasons for its decision. In fact s 115 could not have that effect for two reasons. Firstly, the reference to 'the rules of natural justice' must be a reference to the rules that have been long accepted as having existence under the common law. Those are the so‑called hearing rule and the rule against bias. There is not a rule of natural justice requiring the provision of reasons: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. Accordingly, it cannot have been intended that s 115 would refer to any general duty to provide reasons, no such duty existing. Secondly, s 115 cannot be interpreted as excluding any duty to provide reasons as it would thereby be inconsistent with s 107B. If there are alternative interpretations of s 115 available that which does not create inconsistency with specific provisions contained in the same Act should be preferred: Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, 574 (Gummow J)
It should be noted that the Sentence Administration Act 2003 does contain a provision that permits the Board to withhold reasons in certain circumstances. Section 114 provides that:
114. Reasons for decision may be withheld
(1)This section applies to those sections in this Act which refer to it.
(2)If a person is required to give a prisoner reasons for a decision, then if the person decides that it would be in the interest of the prisoner or any other person, or the public, to withhold from the prisoner any or all of the reasons, the person may do so.
The obligation to provide reasons contained in s 107B(4) is expressly made subject to s 114. Thus, it may have been open to the Board to withhold reasons that it was otherwise obliged to provide if it was satisfied that it was in the interests of the prisoner or any other person or the public to do so. The Board has never sought to rely upon s 114 for its failure to provide reasons and there is nothing to indicate that the basis for the exercise of that power exists in respect of the plaintiff.

Re‑socialisation programme

The correspondence with the plaintiff stated that the Board had recommended that he not be eligible for participation in a re‑socialisation programme. In this regard the Board submitted that any decision regarding a re‑socialisation programme would be a decision as described in s 107B(3)(d) namely:
A decision by the Board not to make a request under section 13(4) after receiving a report under section 13(3) or not to endorse, with or without variations, a re‑socialisation programme received under section 13(4).
The Board submitted that since s 13(2) refers to the CEO assessing a prisoner in relation to a re‑socialisation programme 'at a prescribed time' any decision by the Board had to relate to such an assessment. Regulation 3B of the Sentence Administration Regulations 2003 (WA) provides that the prescribed time is 'no later than two years before the day on which the first report about the prisoner under section 12A(2) of the Act is due'. The Board submitted that the first report about the plaintiff was due in 2004 and thus s 13 had no application to the 2009 review and no decision was made.
This argument obscures the fact that in 2009 the Board did consider whether the plaintiff was suitable for participation in a re‑socialisation programme. It appears somewhat nonsensical to suggest that in making such a decision the Board can only have regard to a report that is prepared within two years of the first date upon which parole was considered (namely 2004) in circumstances where many years may have passed since that time. Clearly the questions of whether a prisoner is suitable for parole and suitable for participation in a re‑socialisation programme are closely connected. The purpose of a re‑socialisation programme is to equip a prisoner for release. One would expect that such a programme would only be participated in by those who were likely to be paroled. A person might be considered unsuitable for parole when eligibility first arises and, equally, unsuitable for participation in a re‑socialisation programme and yet both of those questions might be answered differently at some later time. It cannot be the case that suitability for participation in re‑socialisation programmes is fixed to a past time and past considerations whereas parole can be considered afresh at each new review.
In any event, as I have previously noted, the provisions of s 12A and s 13 are not picked up and applied to prisoners in the plaintiff's situation by the transition provisions. The plaintiff is not, as was suggested, a prisoner falling into any of the categories contained in s 12A in any event. It is highly problematic to try to apply the provisions of s 12A and s 13 to the plaintiff when they refer to circumstances and conditions that are not referable to his position. It seems to me that insofar as the Board did make a decision not to recommend the plaintiff for participation in a re‑socialisation programme it was not a decision of the type described in s 107B(3)(d) but was a decision of the more general type referred to in s 107B(1) and was a decision necessarily connected to the recommendation to deny him parole.

Content of the reasons

Since I have concluded that the Board was obliged to provide reasons for its decision to make a report to the Minister recommending against parole, and has not done so, it is important to give some consideration to the content of those reasons. Bearing in mind the purpose of reasons, that is to convey to the prisoner why it is that a particular decision has been made, it can be seen that reasons need to be more detailed and informative where the decision is one that is seriously adverse to the prisoner. In R v The Parole Board; Ex Parte Forbes Wheeler J said:
These factors indicate that the Board is required to provide not only its conclusion, eg that there is not an appropriate parole plan, or that the prisoner is at high risk of reoffending, but also the material which led the Board to that conclusion and, if relevant, the criteria against which the Board judged the information available to it. The reasons should be sufficiently specific to enable a prisoner to understand what aspects of his previous offending, his conduct within prison, or plans which may have been made for his release, caused the Board to have the concerns which gave rise to its determination. This view is strengthened by s49A of the Act which provides that the Board may withhold reasons referred to in inter alia, s40B(8); 'where the Board is of the opinion that it would be in the interest of the prisoner or any other person, or of the public' to withhold them. This suggest reasons which are of such specificity that they may refer, for example, to details of the prisoner's mental state, to the concerns which the prisoner's family have about him, to reports which have been made by prison officers, or other details which one can easily imagine it would not be in the interests of the prisoner or of some other persons to have made known.
There are a number of reservations that require to be expressed in relation to the reasons which the Board should provide. First, having regard to the apparent purpose of s40B(8), it is clearly not intended that the reasons be the type of detailed outline of facts, reasoning and conclusions which is required of a court or tribunal from which a right of appeal lies. Further, there is no standard of perfection imposed upon the Board. Mere failures in accurate and comprehensive expression, lack of fine detail, and matters of that kind will not result in the Board having failed to comply with the duty which s40B(8) casts upon it; what is required is a notification which read as a whole and against the background of any correspondence or other matters known to the prisoner clearly indicates why it reached its decision.

The provisions of the OCCA which her Honour was referring to closely mirror those of the Sentence Administration Act 2003 and in my view her Honour's comments apply equally to the interpretation of s 107B (see also Rechichi v The Parole Board of Western Australia [2001] WASC 363 and Ireland v Hosie [2003] WASC 223).

Conclusion

The Board submitted that the court ought not make declarations which were merely a reiteration of the law as contained in statute. It was submitted that such declarations would be unnecessary. For a number of reasons I cannot accept that those submissions accurately reflect what is sought in this case.
Firstly, the declarations that the plaintiff seeks are not mere reiterations of the general legal obligations of the Board as contained in the Sentence Administration Act 2003, they are declarations as to how those obligations relate to his particular circumstances and the interaction between the Sentence Administration Act 2003 and previous statutes that apply to him.
Secondly, in its dealings with the plaintiff the Board has not accepted that it has any obligation to provide reasons for its decision to make a report recommending against parole. At the hearing the Board submitted that no relevant decision had been made, in correspondence the Board said that whilst a decision had been made it was not obliged to provide reasons because those reasons were contained in a report to the Minister or because the rules of natural justice had been excluded. I have considered each of those issues and found that they do not constitute valid grounds for failing to provide the reasons requested. In those circumstances declarations are neither academic nor lacking in utility.
I also note that a mandatory review of the plaintiff's suitability for parole is due on 28 August 2010. Whilst correspondence from the Board to the plaintiff has suggested that a statutory review is not due until 2012, this appears to be an error. Provision of reasons for the 2009 decision could be beneficial in enabling the plaintiff to make relevant submissions to the Board in respect of the forthcoming review.
Accordingly, there is a continuing issue in which the plaintiff has a real interest and which is not a mere abstract or hypothetical question. In these circumstances declaratory relief would meet the criteria referred to in Ainsworth (Mason CJ, Dawson, Toohey and Gaudron JJ) (581 ‑ 582):
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' (26) Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, per Gibbs J at p 437. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions(27). See In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257. The person seeking relief must have 'a real interest'(28) Forster (1972) 127 CLR, per Gibbs J at p 437; Russian Commercial and Industrial Bank v British Bank for Foreign Trade, Ltd (1921) 2 AC 438, per Lord Dunedin at p 448 and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that (have) not occurred and might never happen'(29) University of New South Wales v Moorhouse (1975) [1975] HCA 26; 133 CLR 1, per Gibbs J at p 10 or if 'the Court's declaration will produce no foreseeable consequences for the parties'(30). Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180, per Mason J at p 188; see also per Aickin J at p 189; 18 ALR 55 at pp 69, 71 respectively.
In my view it is appropriate to make a declaration that the Board is obliged pursuant to s 107B(4) to give to the plaintiff reasons for its decision for making the 2009 report to the Minister containing a recommendation against parole and against participation in a re‑socialisation programme. Such reasons should be sufficiently specific to enable the plaintiff to understand what criteria have been relied upon, what information has been used and what factual findings were made.
Even if I am wrong regarding whether making the report was a decision, a declaration would in any event be appropriate to confirm the obligation of the Board to provide reasons for a decision made by the Governor to not make a parole order.
I will hear the parties as to the appropriate terms of the orders.