Paul Anthony Blundell v Sentence Administration Board of the Australian Capital Territory, the Australian Capital Territory and the Chief Executive of the Department of Justice and Community Safety - [2010] ACTSC 151

HUMAN RIGHTS ACT

PAUL ANTHONY BLUNDELL v SENTENCE ADMINISTRATION BOARD OF THE AUSTRALIAN CAPITAL TERRITORY, THE AUSTRALIAN CAPITAL TERRITORY AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY
[2010] ACTSC 151 (2 December 2010)

CRIMINAL LAW AND PROCEDURE – sentencing – administration of sentencing – parole – purpose of parole – breaches and cancellation – whether pre-parole offences effective to cancel parole order

STATUTORY INTERPRETATION – cancellation of parole, sections 149 and 150 of the Crimes (Sentence Administration) Act 2005 (ACT) - legislature intention regarding automatic cancellation of parole – whether a parolee can have their parole automatically cancelled if there are any offences punishable by imprisonment for which the parolee may be convicted while on parole.

STATUTORY INTERPRETATION – cancellation of parole, sections 149 and 150 of the Crimes (Sentence Administration) Act 2005 (ACT) – whether the legislation limits the cancellation of parole to convictions while on parole for an offence committed after the offender has been granted parole or whether the legislation provides that parole can be cancelled when a parolee is convicted of an offence during the parole period regardless of when the offence is committed – proper construction: legislation limited to convictions for offences committed after offender has been granted parole.

Australian Capital Territory (Self-Government) Act 1988 (Cth), s 7

Administrative Decisions (Judicial Review) Act 1989 (ACT), s 16
Adoption Act 1993 (ACT), s 91
Crimes (Sentencing) Act 2005 (ACT), ss 17, 63, 65
Crimes (Sentence Administration) Act 2005 (ACT), preamble 4(c), ss 7, 28(1), 53(1), 71(3), 120, 125, 130, 136, 137, 143-156, 160, 161, 171
Criminal Code 2002 (ACT), ss 311, 321, 361(1)
Domestic Animals Act 2000 (ACT), s 138A(6)
Drugs of Dependence Act 1989 (ACT), ss 123, 169, 171
Human Rights Act 2004 (ACT), ss 11, 13, 18, 28, 30, 40
Legislation Act 2001 (ACT), ss 126(1), 133, 138, 139
Rehabilitation of Offenders (Interim) Act 2001 (ACT), ss 61, 62
Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 26

Crimes Act 1900 (NSW), ss 112, 113

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 6 ILM 386, (entered into force 23 March 1976)
European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221, arts 5(1), 5(4) (entered into force 3 September 1953)

Mill v The Queen (1988) 166 CLR 59
R v Todd [1982] 2 NSWLR 517
R v Blundell (unreported, NSWDC, Toner DCJ, 4 Nov 2009)
Maritime Services Board of New South Wales v Australian Chamber of Shipping [1977] 1 NSWLR 648
Bowtell v Goldsbrough, Mort & Co Ltd (1906) 3 CLR 444
Wacando v Commonwealth of Australia and Anor (1981) 148 CLR 1
Eastman v Chief Executive Officer of the Department of Justice and Community Safety (2010) 4 ACTLR 161
The Queen v Shrestha (1991) 173 CLR 48
R (Smith) v Parole Board; R (West) v Parole Board [2005] 1 All ER 755
McIntosh v Webster and Anor (1980) 43 FLR 112
Coco v The Queen (1994) 179 CLR 427
Bropho v State of Western Australia and Anor (1990) 171 CLR 1
Potter v Minahan (1908) 7 CLR 277
The Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543
Electrolux Home Products Pty Ltd v The Australian Workers’ Union and Ors (2004) 221 CLR 309
R v Fearnside [2009] 3 ACTLR 25
R v Momcilovic (2010) 265 ALR 751
In the matter of an Application for Bail by Isa Islam [2010] ACTSC 147, Penfold J, 19 November 2010
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Hart v Parole Board [1999] 3 NZLR 97
Channon v The Queen (1978) 33 FLR 433

Riley v Commonwealth of Australia and Ors; Butler v Commonwealth of Australia and Ors (1985) 159 CLR 1
State ofTasmania v Commonwealth of Australia and Anor (1904) 1 CLR 329
Houssein & Anor v The Under Secretary, Department of Industrial Relations and Technology NSW & Anor; Brown & Anor v The Under Secretary, Department of Industrial Relations and Technology NSW & Anor (1981-1982) 148 CLR 88
O’Brien v Gillies & Anor (1990) 69 NTR 1
R (Brooke) v Parole Board & Anor; R (Murphy) v Parole Board & Anor [2008] 3 All ER 289

Nolan v Clifford (1904) 1 CLR 429
R v Bolton and Anor: Ex parte Beane (1987) 70 ALR 225
Cox v Hakes (1890) LR 15 App Cas 506
R v Secretary of State for the Home Department: Ex parte Muboyayi [1992] QB 244
Brooks v Director of Public Prosecutions and Anor [1994] 1 AC 568
Sargood Brothers v Commonwealth (1910) 11 CLR 258
Melbourne Corporation v Barry (1922) 31 CLR 174
Thompson v Australian Capital Television Pty Ltd and Ors (1994) 54 FCR 513
Thompson v Australian Capital Television Pty Ltd and Ors (1996) 186 CLR 574
Henderson v McKenzie [2009] ACTSC 39
R (Black) v Secretary of State for Justice [2009] 1 AC 949
Neilsen v Attorney General [2001] 3 NZLR 433
Attorney-General v Hewitt [2000] 2 NZLR 110

A v Australia, Communication 560/1993, 3 April 1997

R v Swain [1991] 1 SCR 993
Sunday Times v United Kingdom (1979-80) 2 EHRR 245

Huang v Secretary for State for the Home Department [2007] 2 AC 167

Pearce DC and Geddes RS, Statutory Interpretation in Australia, (6^th ed, LexisNexis Butterworths, 2006

No. SC 98 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 2 December 2010

IN THE SUPREME COURT OF THE     )
  )          No. SC 98 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:PAUL ANTHONY BLUNDELL
Plaintiff

AND:THE SENTENCE ADMINISTRATION BOARD OF THE AUSTRALIAN CAPITAL TERRITORY
First Defendant

AND:THE AUSTRALIAN CAPITAL TERRITORY
Second Defendant

AND:THE CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY
Third Defendant

ORDER

Judge:  Refshauge J
Date:  2 December 2010
Place:  Canberra

THE COURT ORDERS THAT:

The parties have leave to bring in short minutes of orders in accordance with these reasons.

Paul Anthony Blundell has been in trouble with the criminal law on a number of occasions. On 28 May 2008, he was sentenced by this Court to a term of imprisonment totalling three years and six months. The offences for which he was sentenced were for receiving stolen property on 15 November 2007 and for burglary and theft on 26 February 2008. The Court also activated a suspended sentence which had been imposed on 1 May 2007 in respect of an earlier burglary and theft.

The Court backdated the sentence under s 63 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) to commence on 8 September 2006 and, under s 65 of the Sentencing Act, set a non-parole period of two years from that date.

On 23 September 2008, the first defendant, the Sentence Administration Board of the Australian Capital Territory (the Board), granted Mr Blundell parole, making a parole order containing certain conditions. The conditions included a requirement that he not commit an offence against a Territory law that is punishable by imprisonment. Mr Blundell was released under that order on 30 September 2008.

Unfortunately, on 30 October 2008, Mr Blundell committed two further offences of burglary, offences against s 311 of the Criminal Code 2002 (ACT) (Criminal Code) for which the prescribed maximum penalty includes 14 years imprisonment.

On 23 April 2008, Mr Blundell pleaded guilty to those charges and an associated charge of theft. The Court noted that these convictions automatically cancelled Mr Blundell’s parole order (see s 149 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act)) and, under s 161 of the Sentence Administration Act, the Court placed him in the Chief Executive’s custody to serve the statutorily prescribed resulting period of full-time detention.

For the offences to which he had pleaded guilty, Mr Blundell was placed under a Deferred Sentence Order to appear again on 3 August 2009, even though by operation of the Sentence Administration Act he was likely to be in custody for at least a significant period of that time.

In fact, Mr Blundell applied to the Board for parole on 24 April 2009. Before an inquiry was held into that application, Mr Blundell was charged with knowingly obstructing a Territory public official, an offence contrary to s 361(1) of the Criminal Code and which was punishable by a maximum penalty of a fine of 200 penalty units (at the time a fine of $20,000 – s 133 of the Legislation Act 2001 (ACT)) or imprisonment for two years or both. The offence arose out of an incident with a custodial officer while Mr Blundell was in the Belconnen Remand Centre.

On 19 June 2009, he was sentenced by the Magistrates Court on his plea of guilty to this charge to seven months imprisonment to end on 4 August 2009.

As it was obliged to do under s 125 of the Sentence Administration Act, the Board held an inquiry into Mr Blundell’s application for parole and granted him parole from 4 August 2009 on certain conditions. The parole order noted that Mr Blundell was still under sentence until 29 September 2010. This resulted from the operation of s 160 of the Sentence Administration Act which provides that, if a parole order is cancelled, any time spent on parole is taken not to have served the period of imprisonment that was remaining at the time that parole was granted. This is commonly referred to as providing that “street time does not count”.

The Deferred Sentence Order brought Mr Blundell back to this Court on 3 August 2009 and he was sentenced to twelve months imprisonment on the two charges (apparently undifferentiated between them) backdated to 2 November 2008 and then suspended after six months and released with a good behaviour order for twelve months and a treatment order under s 123 of the Drugs of Dependence Act 1989 (ACT) for twelve months.

As this sentence (and that imposed by the Magistrates Court on 19 June 2009) was imposed prior to the start of Mr Blundell’s further parole, the provisions of s 149 of the Sentence Administration Act were not activated.

On 4 August 2009, Mr Blundell was released on parole.

On 4 November 2009, Mr Blundell appeared in the District Court of New South Wales charged with offences of break and enter with intent to steal and aggravated break enter and steal (aggravated burglary), apparently crimes under ss 112 and 113 of the Crimes Act 1900 (NSW), each of which attract a sentence of imprisonment of up to 14 years. He entered pleas of guilty to each charge. These offences were both committed on 31 July 2006.

Toner DCJ sentenced Mr Blundell. In doing so, his Honour referred to Mill v The Queen (1988) 166 CLR 59 (though in error described in the sentencing remarks as “R v Milne”), and to that court’s approval of the following remarks of Street CJ in R v Todd [1982] 2 NSWLR 517 (at 519-20):

... it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences ...
... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

In the sentencing proceedings, R v Blundell (unreported, NSWDC, Toner DCJ, 4 Nov 2009) Toner DCJ commented significantly (at 4-5):

To my mind those comments apply with full measure in this man’s case. As I have noted earlier in these reasons, these offences would attract in the normal course of events a significant full time custodial sentence. Given his record it would be hard to find special circumstances. However, given the curial history of these matters, and given that he has served two sentences since their commission and now, and given the conditions imposed on his release in the Australian Capital Territory; and further given that the pre-sentence report notes that he has made some progress towards his own rehabilitation in relatively recent times, and perhaps in part because of the salutary effect of the prison sentences that he has served upon him to my mind the proper course is to sentence him to full time imprisonment but suspend it pursuant to s 12 of the Crimes Sentencing Procedure Act.

Mr Blundell was then sentenced to 18 months imprisonment for the aggravated burglary to commence on 4 November 2009 and expire on 3 May 2011 but to be fully suspended upon him entering into a bond to be of good behaviour with supervision conditions. In respect of the break and enter with intent to steal, he was sentenced to 18 months imprisonment concurrent with the earlier sentence and also fully suspended upon him entering into a bond to be of good behaviour.

Perhaps rather ironically, the last words of his Honour recorded in the sentencing remarks are (at 7):

HIS HONOUR: Yes, well good luck Mr Blundell. Keep out of strife and you won’t go to gaol. Get into strife and you will go to gaol, understand that?
OFFENDER: I understand that, thank you your Honour.

After he had been granted parole, Mr Blundell’s supervising parole officer had submitted to the Board a report dated 8 September 2009 which alleged that Mr Blundell was in breach of his parole obligations by virtue of his possession and use of a prohibited drug or substance.

As a result, the Board convened an inquiry under s 146 of the Sentence Administration Act. That inquiry commenced on 29 September 2009 when the Board met and set 20 October 2009 as the date for the inquiry.

The inquiry was adjourned on a number of occasions which I do not need to rehearse.

By 1 December 2009, the Board had been notified of Mr Blundell’s convictions in the District Court of New South Wales. It is not clear whether it had the sentencing remarks of Toner DCJ before it.

On 9 February 2010 at the resumed inquiry, the Board cancelled Mr Blundell’s parole order under s 150 of the Sentence Administration Act.

These proceedings

Understandably, Mr Blundell, being aggrieved by that decision, commenced these proceedings by originating application dated 9 February 2010 in which he sought interlocutory and final relief to stay and set aside the decision of the Board.

On that day, the matter came before me and I made an order ex parte staying the operation of the Board’s cancellation order under s 16 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) and gave directions for the proper preparation of the proceedings, including for service on the defendants.

I also permitted Mr Blundell, through his lawyer, to amend the originating application, inter alia, to join the Chief Executive of the Department of Justice and Community Safety as a party for she had a relevant specific statutory role in this matter under s 161 of the Sentence Administration Act.

The matter returned to court on 17 February 2010 when the defendants were represented and I adjourned further to 4 March 2010 to ensure that the conditions under which Mr Blundell remained at liberty could be properly addressed since it did not seem to me in the circumstances that I could grant him bail or otherwise condition his release.

On 4 March 2010 I ordered, with the agreement of the parties, that the effect of the order suspending the Board’s cancellation order was that Mr Blundell remained on parole as if the parole order had not been cancelled. I also restrained the Board, until further order, from conducting any inquiries into any alleged breaches of his parole order prior to 9 February 2010. I also made directions for the preparation of the matter for hearing.

The orders then sought by Mr Blundell at the hearing were:

3.An order under section 5 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) to quash or set aside the first defendant’s decision to cancel the plaintiff’s parole order.
4.An order under Section 40C of the Human Rights Act 2004 that the first defendant’s cancellation of the plaintiff’s parole order pursuant to Section 150 of the Crimes (Sentence Administration) Act 2005 be quashed.
5.A declaration or order pursuant to Section 40C of the Human Rights Act 2004 that the first defendant’s cancellation of the plaintiff’s parole order was made contrary to the plaintiff’s rights under sections 12, 13, 18(1), 18(2), 24 and 25 of the Human Rights Act 2004; and was contrary to section 7 of the Crimes (Sentence Administration) Act;
or in the alternative,
6.A declaration pursuant to section 32 of the Human Rights Act 2004 (ACT) that section 150 of the Crimes (Sentence Administration) Act 2005 is not consistent with the human rights in sections 12 and/or 13 and/or 18 and/or 24 and/or 25 of the Human Rights Act (“a section 32 declaration of incompatibility”);

The matter came on for hearing on 12 May 2010 and I reserved my decision.

The statutory framework

The Board is established by s 171 of the Sentence Administration Act. All sections, parts, divisions and chapters referred to in these reasons for judgment hereafter are from this Act unless otherwise specified.

Although it is a public authority within the meaning of s 40 of the Human Rights Act 2004 (ACT) (Human Rights Act), the Board is not specified to be a body corporate; it appears to be an unincorporated body. As such, it cannot be a party to the proceedings: Maritime Services Board of New South Wales v Australian Chamber of Shipping [1977] 1 NSWLR 648 (at 658-9). None of the parties before me took the point. As the Territory can be a party (s 7 of the Australian Capital Territory (Self-Government) Act 1988 (Cth)) and is a party to these proceedings, no remediable harm is done and I shall make appropriate consequential orders and directions to resolve any difficulties caused by this situation.

The functions of the Board are set out in various chapters of the Sentence Administration Act. In this case, ch 7 is relevant because it deals with Parole.

There are also procedural provisions under ch 9 which provide how the Board is to conduct itself. None of these are presently relevant.

Under s 120, the Board may make parole orders for an offender. Once released on parole, an offender is subject to core conditions of the parole order set out in s 137 as well as any additional conditions on the parole order that the Board may make under s 130.

Two relevant core conditions, as set out in s 137, are:

137 Parole order – core conditions

(a)the offender must not commit –
(i)an offence against a territory law, or a law of the Commonwealth, a State or another Territory, that is punishable by imprisonment; or
(ii)an offence outside Australia against a law of a place outside Australia that, if it had been committed in Australia, would be punishable by imprisonment;

(b)if the offender is charged with an offence against a law in force in Australia or elsewhere – the offender must tell the chief executive about the charge as soon as possible, but within 2 days after the day the offender becomes aware of the charge;

I pause to note that the parole order made in respect of Mr Blundell on 28 July 2009, authorising his release on 4 August 2009, contained additional conditions but none are relevant to these proceedings.

Part 7.5 makes provision for change of parole obligation or cancellation of parole orders. Cancellation ends the parole order and requires the offender to serve by full-time detention the period of imprisonment remaining to be served on the date on which the offender is released on parole: s 160.

Part 7.4.2 is entitled “Breach of parole obligations” but includes ss 149 and 150 with which I will later deal. They might be said to be outside the obligations specified in the core conditions and, at least in this case, any additional conditions. If so, they would not be part of the “parole obligations” referred to in this Part.

Section 146 (in Part 7.4.2) authorises the Board to conduct an inquiry to determine whether an offender has breached any parole obligations. If it so finds, s 148 gives the Board various powers, from taking no further action to cancelling the parole order.

Section 149, however, provides for automatic cancellation and s 150 provides a similar requirement. These sections are in the following terms:

149 Automatic cancellation of parole order for ACT offence
(1)This section applies if, while an offender’s parole order is in force, the offender is convicted or found guilty by a court of an offence against a territory law that is punishable by imprisonment.
(2)The parole order is automatically cancelled when the offender is convicted or found guilty of the offence.

150   Cancellation of parole order for non-ACT offence
(1)This section applies if, while an offender’s parole order is in force, the board decides that the offender has been convicted or found guilty of –
(a)     an offence against a law of the Commonwealth, a State or another Territory that is punishable by imprisonment; or
(b)     an offence outside Australia against a law of a place outside Australia that, if it had been committed in Australia, would be punishable by imprisonment.
(2)Without limiting section 148 (Board powers – breach of parole obligations), the board must cancel the offender’s parole order as soon as practicable under that section.

If an offender’s parole is cancelled, then s 161 requires that the Board must order that the offender be placed in the Chief Executive’s custody to serve by full-time custody the term of imprisonment that was remaining to be served at the date on which the offender was released on parole.

The issue in the proceedings

The issue in the proceedings is quite a narrow one. The question is whether s 150 of the Sentence Administration Act (and, almost certainly also, s 149) applies where the offence of which the offender is convicted while the parole order is in force must have been committed after the parole order was made or whether any offence committed prior to that date is encompassed within the operation of these sections.

That is to say, when a person is granted parole, is that person at risk of having the parole order automatically cancelled if there are any offences punishable by imprisonment in his or her past for which he or she may be convicted while on parole?

The plaintiff’s argument

Mr J Burnside QC, who appeared with Mr M Kukulies-Smith for Mr Blundell, submitted that the issue could be resolved in accordance with the ordinary rules of statutory construction and the sections were limited to convictions while the offender was subject to a parole order for an offence committed only after he or she had been granted parole.

He submitted that a literal reading of the section meant that the subordinate clause “while an offender’s parole order is in force” must apply to and qualify the verb in the other subordinate clause, namely “the board decides”, especially as it is not only closest to that verb but also within the subordinate conjunction that joins the main clause to the subordinate clause, namely “if”. This would be the ordinary and literally correct reading of the first words of s 150(1).

This must be correct for if the subordinate clause was meant to qualify the second subordinate clause (namely “that the offender has been convicted ...”), then it would have been placed next to or near the verb in that subordinate clause, such as to read something like “The section applies if the Board decides that an offender has, while the offender’s parole order is in force, been convicted ...”.

It is no answer to say that colloquial English is careless about the placement of such subordinate clauses and absurdity is often rejected by the hearers of spoken English or carelessly written English who can inferentially re-interpret such sentences to be meaningful. This is legislation, however, prepared by professional drafters whose business is words and the use of accurate English.

He submitted that this construction would be absurd in operation, for it would mean that the Board would be mandatorily required to cancel the parole order if it made a decision during the currency of the parole order that the offender had been convicted or found guilty of a relevant offence, namely one for which a sentence of imprisonment may be imposed (even if not actually imposed). That offence, apparently on this reading, could have been committed and the offender convicted 20 years ago. Indeed, as another absurdity, the literal meaning would include in such offences, the original offence in respect of which the parole order had been made.

Mr Burnside QC, then submitted that the absurdity should be resolved on the ordinary principles of statutory construction. That is to say, resort should be had to s 139 of the Legislation Act, which provides:

139 Interpretation best achieving Act’s purpose
(1)In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2)This section applies whether or not the Act’s purpose is expressly stated in the Act.

Sub-section (2) is not relevant here for, as Mr Burnside QC noted, the Sentence Administration Act does express its purpose. This, he submitted, was to be found in the Preamble, especially clause 4(c). Clause 4 provides:

4.The management of sentenced offenders, and people remanded or otherwise detained in lawful custody, should contribute to the maintenance of a just and democratic society, particularly as follows:
(a)by ensuring justice, security and good order in the correctional system;
(b)by ensuring that the harm suffered by victims, and their need for protection, are considered appropriately in making decisions about the management of offenders;
(c)by promoting the rehabilitation of offenders and their reintegration into society;
(d)by ensuring that offenders, remandees and other people detained in lawful custody are treated in a decent, humane and just way.

It does not matter whether one takes the older, narrower approach to a preamble, as in Bowtell v Goldsbrough, Mort & Co Ltd (1906) 3 CLR 444, where Griffith CJ said (at 451):

... where the words of a Statute are plain and clear, their meaning cannot be cut down by reference to the preamble. But, if the words are uncertain as applied to the subject matter, and may bear more than one meaning, then you may, in a proper case, refer to the preamble to ascertain what was the occasion for the alteration of the law.

which Gibbs CJ expressly endorsed in Wacando v Commonwealth (1981) 148 CLR 1 (at 16), or the more modern, wider view articulated in Wacando v Commonwealth by Mason J (as his Honour then was) in the following terms (at 23):

It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object.

It seems to me that it is entirely permissible to have regard to the preamble to assist in the construction of an ambiguous provision in the Act. See Eastman v Chief Executive Officer of the Department of Justice and Community Safety (2010) 4 ACTLR 161 (at [56]-[57]).

Mr Burnside QC also relied on the nature of parole which had been described by the High Court in The Queen v Shrestha (1990-1991) 173 CLR 48 in the following terms (at 67-8):

The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody. In some cases, of course, those considerations may be so compelling at the time of sentencing that, consistently with the need for punishment and deterrence, any sentence of imprisonment should be suspended or deferred upon entry into a good behaviour bond or recognizance, with the result that imprisonment may never take place. In most cases, however, a suspension or deferral of the appropriate term of imprisonment will not be justified. In such an event ... the parole system allows for a review of the offender’s case after he has actually served a significant part of a custodial sentence, for the purpose of deciding whether he should be released on parole at that stage. At the time of that review, the reviewing authority should have available to it up-to-date information about the prisoner’s conduct while in custody, his current attitudes, his present circumstances and the prospects of his rehabilitation in the community if he be released on parole. Obviously, a reviewing authority with that up-to-date information should be in a better position to determine whether it is appropriate that the prisoner be then released on parole than the sentencing judge would have been at the time, often years before, when the head sentence of imprisonment was imposed and a minimum non-parole period was fixed.

This approach was the same as that applied in the UK. In R (Smith) v Parole Board [2005] 1 All ER 755 (heard with R (West) v Parole Board and often referred to by this name), Lord Bingham of Cornhill (with whom the other members of the House of Lords agreed), identified the same issues, importantly identifying (at [22] to [26]) a series of “fundamental and relevant principles” upon which the regime rests, one of them (at [25]) being:
While, fourthly, it is true that early release provisions have the practical effect of relieving overcrowding in the prisons, that is not their penal justification. But such justification exists. All, or almost all, determinate sentence prisoners are expected to return to the community on release from prison after serving their sentences. It is in the interests of society that they should, after release, live law-abiding, orderly and useful lives. For a host of practical, psychological and social reasons, the process of transition from custody to freedom is often very difficult for the prisoner. It is accordingly very desirable that the process of transition should be professionally supervised, to maximise the chances of the ex-prisoner’s successful reintegration into the community and minimise the chances of his relapse into criminal activity. But of course there will be cases in which such professional supervision may not be, or appear to be, effective. If a prisoner is released, subject to conditions, before the expiry date of the sentence imposed by the court, and he does not comply, or appears not to comply, with the conditions to which his release was subject, a question will arise whether, in the interests of society as a whole, he should continue to enjoy the advantages of release.
As Mr Burnside QC submitted, what was clear from these principles is that at the time when parole is granted and being undertaken, an important factor is the current attitude of the offender and the current likelihood of offending. This, he submitted, was inconsistent with an automatic termination of parole by conviction of an offence (punishable by imprisonment, even if not imposed) committed by the offender five or 10 or 50 years ago. Such a conviction may tell the parole authorities nothing about the offender’s likelihood of reoffending or being rehabilitated.

It might be observed that, as in this case, because Mr Blundell voluntarily surrendered to the District Court of New South Wales, an inference might be able to be drawn that he was making progress towards recognising that he had to take responsibility for his actions and deal with the offences in his past so that he had a chance of moving into a rehabilitated lifestyle. Mr Burnside QC described it as:

[incongruous] that the later conviction, which was the result of him putting himself forward when he was released on parole and therefore available to put himself forward ... should result in the cancellation of his parole.

Further, had Mr Blundell simply waited for the expiry of his parole on 29 September 2010 and then presented himself to the District Court, he could not have had his parole order cancelled and been required to serve a further period in custody as a result. Section 151, which sensibly deals with those offences committed while on parole but which cannot be finalised in court until after the expiry of the parole order, makes appropriate provision. Because of s 151(1)(b), it expressly does not, however, apply to offences committed before (or after) the parole period. The section provides, relevantly:

151 Cancellation after parole order has ended

(1)This section applies to an offender if the offender’s parole order has ended other than by cancellation and, after the order ends, the board decides that –
(a)the offender has been convicted or found guilty of –
(i) an offence against a territory law, or a law of the Commonwealth, a State or another Territory that is punishable by imprisonment; or
(ii) an offence against a law of a place outside the ACT that, if it had been committed in the ACT, would be punishable by imprisonment; and
(b) the offence was committed while the offender’s parole order was in force.

(2)The board –
(a)must decide the date, or the earliest date, when the offence was committed; and
(b)is taken to have cancelled the offender’s parole on order under section 148 (Board powers – breach of parole obligations) on that date.

It is, of course, possible that an earlier offence, unknown to the Board at the time of granting parole, is of such significance that it would have, had it been known, substantially affected the decision of the Board to grant parole. Examples might include offences of the same type as that for which the offender was sentenced and in which sentence he was granted parole in part by submitting that it was a “one off” or isolated example of offending where multiplicity of offending is a particular problem (such as sexual offences or dishonesty offences). Such an earlier offence, later discovered and prosecuted, may have affected the Board’s assessment of the likelihood of reoffending. Mr Burnside QC submitted that this could already be dealt with under s 153 where the Board may at any time conduct a review of an offender’s parole and, after doing so, may, under s 156, take a range of actions including, if it decides “that parole is, or would be, no longer suitable for the offender”, cancel the parole order.

Such an approach avoids the operation of the Act for which the defendants contend, namely that there is an automatic, perhaps arbitrary, cancellation of parole because of the conviction during the parole period for an older offence. Indeed, the approach for which Mr Burnside QC submitted permits the more nuanced, perhaps more rights compliant approach, whereby first an inquiry is held and the Board can consider the real effect on an offender’s parole of the older offence.

This is, perhaps, strengthened when one considers the range of offences for which some term of imprisonment (even if rarely imposed) is provided. These include: minor theft (s 321 of the Criminal Code), drink-driving at level 3 (that is, 0.08g per ml blood alcohol concentration or more but less than 0.15 g) (s 26 Road Transport (Alcohol and Drugs) Act 1977 (ACT)), keeping an animal after disqualified from doing so (s 138A(6) of the Domestic Animals Act 2000 (ACT)) or being a birth parent of an adopted child and influencing the upbringing of the child (s 91 of the Adoption Act 1993 (ACT)). There are many more.

I suggested that the express reference to the date of commission of the offence in s 151(1)(b), when compared with the absence of such a qualifier in s 150, might mean that I could more comfortably draw the inference that the legislature intended there to be no temporal limitation on when the offence was committed for the purposes of s 150. Mr Burnside QC pointed out that without the reference in s 151 to a temporal limitation, the offence could be committed years after the expiry of the parole period with which it had no connection and that could not be correct. Thus, the reference to time was necessary as the Board was considering the matter after the expiry of the parole period, not during it, which was the case under s 150. No implication could, accordingly, be drawn from this.

He submitted further that the legislation seemed to proceed on the assumption that the date of conviction would be temporally close to the commission of the offence. If that were always true, s 150 would make more sense.

The automatic cancellation is arbitrary, Mr Burnside QC submitted, because the likely effect on whether parole would have been granted in the first place, had the offence then been known, is not uniform: in some cases, indeed, Mr Burnside QC submitted that Mr Blundell’s case was one where, the likelihood of parole not having been granted would be remote.

Mr Burnside QC supported this submission by reference to the transcript of the hearing before the Board on 9 February 2010 when it cancelled Mr Blundell’s parole order, where the Chair of the Board said:

We do not believe that we have any alternative but to cancel the parole order, and I note your submissions, as forceful as they are. I really don’t think they get us over the hurdle that section 150 seems to present the Board with. It’s most unfortunate and it’s a matter of regret, as far as the Board is concerned, that we are constrained as we are by the legislation. We have considered this matter in some detail over the last couple of months. We have had the benefit of submissions from the other parties in the last couple of months on this matter.
...
So I’d have to say that from our perspective we believe that today we have no option but to cancel the parole order and I think we then need to think about how we might proceed from there. If the parole order is cancelled there is an opportunity to start afresh a new process which might get Mr Blundell released on a new parole order at the earliest possible opportunity. Having regard to the circumstances, it’s the Board’s view that we should act expeditiously and as quickly as possible to overcome the effects of section 150.

It is clear that the Board was there concluding that it was unlikely that, had it a discretion, it would have cancelled the parole order on 9 February 2010 and that it would now proceed as quickly as possible to follow the statutory processes with a view to granting another parole order. It is difficult to construe the Chair’s comment “as quickly as possible to overcome the effects of section 150” in any other way.

The Chair then noted that:

Unfortunately, there are a couple of things that the Board has to do, in terms of considering that application. We are required to set the matter down for Inquiry and we are required to notify the Chief Executive and the DPP of our intention to hold an Inquiry. And we are required to notify any victims that might be registered, in order to give them the opportunity to be heard. So unfortunately, that does give us a period of time where we have to go through that process and the earliest that we think that we can do that would not be till about 23 March would be the earliest possible [date for a parole hearing].

Thus, as a result of the conviction, Mr Blundell was incarcerated from 9 February 2010 to at least 23 March 2010, depriving him of his liberty for a not inconsiderable period.

It was put to Mr Burnside QC that, despite the current arrangements, the inevitable deprivation of liberty might (perhaps by legislative change) be able to be made minimal (a day or so) and that this might be justified in order to ensure that the Board had the time to inquire whether the effect of the conviction was serious or not.

Mr Burnside QC pointed out that even a short period of detention is sufficient to found an action for false imprisonment. I note that an hour was held unlawful in McIntosh v Webster and Anor (1980) 43 FLR 112 (at 126).

It is also worth noting that, in fact, Mr Blundell was sentenced by the District Court of New South Wales on 4 November 2009, but the Board did not cancel his parole order until 9 February 2010, more than three months later, though Mr Blundell remained on parole during this period.

The right to liberty was important, submitted Mr Burnside QC, because the courts will not generally construe legislation as diminishing fundamental rights and freedoms unless the meaning admits of no alternative. In the High Court, in Coco v The Queen (1994) 179 CLR 427, the plurality said (at 437):

The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights. [See Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1 at p 12, per Mason CJ.

See also Bropho v State of Western Australia and Anor (1990) 171 CLR 1 (at 18) where the unanimous High Court adopted the rationale for the rule expressed in Potter v Minahan (1908) 7 CLR 277 (at 304) as founded on the assumption that:

[It is] in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.

Reference was also made to more recent authorities: The Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543 (at [43]) and Electrolux Home Products Pty Ltd v The Australian Workers’ Union and Ors (2004) 221 CLR 309 (at [21]). The latter reference is important, for Gleeson CJ there noted:

The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.

It might be added that this is even more likely and appropriate in this jurisdiction which has enacted the Human Rights Act, enacted before the Sentence Administration Act, and which latter Act expressly refers in its preamble to the Human Rights Act, and the compliance with it that is required.

Mr Burnside QC submitted that the liberty, freedom of movement and freedom of family life that were to be respected were nonetheless to be respected even though they were exercised contingently when an offender was on parole. His submission was that, given the importance of the freedoms, it is not likely that they could be removed by considerations not expressly articulated in the legislation and apparently irrelevant to the purposes for which the power to deprive an offender of liberty was granted. That makes the power, he submitted, an exercise in arbitrariness.

Thus, Mr Burnside QC submitted, the provision as construed in accordance with the approach adopted by the Board would breach at least the rights set out in ss 11, 13 and 18 of the Human Rights Act with no justification that would be permitted under s 28 of that Act.

The defendants’ argument

Dr M Perry QC, who appeared with Ms K Walker for the defendants, submitted that the defendants contended that s 150 should be interpreted to provide for automatic cancellation of a parole order when a parolee is convicted of an offence, whenever the offence is committed, provided the conviction is entered during the parole period.

She further submitted that the approach to construction of legislation in the context of the Human Rights Act was to apply the following process, namely:

(a)to determine whether the relevant legislative provision affects, impinges upon or diminishes a relevant human right applying ordinary canons of statutory construction;
(b)if so, ascertain whether that apparent inconsistency is justified; and
(c)if the apparent inconsistency is not justified, to determine whether it is nonetheless possible to construe the provision consistently with Parliament’s intended meaning in a manner which is not incompatible with the human right i.e. which does not result in an unjustified limitation on the relevant human right. In this regard, s 30 of the HRA permits an interpretation that may not best promote purposes but is consistent with it.

This was the process approved of by Besanko J (with whom Gray P and Penfold J agreed) in R v Fearnside [2009] 3 ACTLR 25 (at [89]).

This approach, Dr Perry QC submitted, differed from that of the Victorian Court of Appeal in R v Momcilovic (2010) 265 ALR 751. She submitted both that I was bound to follow R v Fearnside and that the approach in R v Momcilovic was incorrect, on which I do not have to dilate, much less decide. I note that, recently, in In the matter of an Application for Bail by Islam [2010] ACTSC 147, Penfold J (at [136] to [143], [229] to [231]) was inclined to follow the Victorian decision in preference to R v Fearnside. As I have not heard argument on this, I will not make a decision on this issue. In any event, it seems to me that all I am doing in this case is contained in step 1 of the approach approved by Penfold J (at [236]), for in this case there are only two meanings to be considered, though perhaps with some reference to step 4. I do not consider that the result I reach would ultimately be affected by which approach I apply.

Dr Perry QC submitted that it is first necessary to construe the legislation and, for this, the purpose of the legislation is a necessary component. It was not necessary to have an ambiguity before the purpose was considered. In this, she relied on Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 where the

plurality said (at [69] to [71]):

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume [(1905) 2 CLR 405 at 414] Griffith CJ cited R v Berchet [(1688) 1 Shaw KB 106 [89 ER 480]] to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
(Footnotes omitted except where in square brackets.)

Dr Perry QC then proceeded to submit that what she said was the correct construction of s 150 of the Sentence Administration Act.

She submitted that the correct construction was that, as the defendants contend, the section applied when the offender is convicted of an offence in another jurisdiction while on parole, regardless of when the offence was committed. There was, she submitted, no limit expressed in the section on when the offence could have been committed and none should be read into the section.

She referred to the symmetry between ss 149 and 150. The terms of the sections are set out at [40] above.

Dr Perry QC submitted that there is no ambiguity or absurdity of the period identified by Mr Burnside QC in the placing of the subordinate clause in s 149 and, grammatically, it is clear that the relevant time of a conviction under that section is while the parole order is in force. She submitted that the only relevant difference between the two sections, ss 149 and 150, was that the ACT legislature could not require an interstate court to cancel an ACT parole order, hence the need to give a decision-making power to the Board.

As a result, she submitted that the two sections should be read in the same way, namely that the subordinate clause “while the offender’s parole order is in force” should modify the offender’s date of conviction in both sections by specifying the time when it may occur.

This, she submitted, was clear from the history of the provisions and she referred to the relevant sections in the predecessor legislation, the Rehabilitation of Offenders (Interim) Act 2001 (ACT) (ROO Act). The relevant sections were ss 61 and 62 of that Act which provided:

61. Parole order revoked if parolee sentenced to imprisonment
If a sentenced offender is subject to a parole order, the order is automatically revoked if the offender is –
(a)convicted of an offence (including an offence against the law of the Commonwealth, a State or another Territory) committed during the parole period; and
(b)sentenced to a term of imprisonment that is not completely suspended.

62.Parole order revoked if former parolee sentenced to imprisonment for offence committed while order in force
(1)This section applies if a person who has been subject to a parole order is –
(a) convicted of an offence (including an offence against the law of the Commonwealth, a State or another Territory) committed while the parole order was in force; and
(b) sentenced to a term of imprisonment for the offence that is not completely suspended.
(2)The parole order is automatically revoked with effect from the date the offence was committed.

These provisions are considerably narrower than ss 149 and 150 of the Sentence Administration Act on several counts.

What is relevant, of course, is that the legislature in both s 61(a) and (b) of the ROO Act had enacted expressly that the conviction is in respect of an offence “committed during the parole period” or (which relevantly seems identical) “while the parole order was in force”. Thus, the submission was that, in these circumstances, it is harder to find that the legislature had inadvertently omitted in ss 149 and 150 a reference to the conviction being for an offence committed “while the parole order was in force”, or “because it was too obvious”, rather than deliberately omitting it. The earlier legislation, which the Sentence Administration Act replaced, had expressly set out that qualification as to when the offence had to have been committed.

In reply, Mr Burnside QC, pointed out that the differences between the ROO Act and the Sentence Administration Act amounted to “a major policy shift” if the defendants’ construction was to be accepted but, on investigation of the Explanatory Statement and Presentation Speech, there was no attention drawn to that significant change which, of course, could substantially affect the liberty of persons in the Territory. This, he submitted, was so surprising that it could be considered in the interpretation process and to support his submission.

Dr Perry QC submitted that the clear statement in s 149 meant that the Court should read s 150 in the same way, for Parliament’s intention was “absolutely clear”. As she noted, no-one had suggested that the Board should make an open-ended decision of the kind suggested by Mr Burnside QC (in [48] above).

Nevertheless, I do note that there is also a similar symmetry between ss 149 and 150 on the one hand and s 151 on the other where, in the former, the decision of the Board is to be made “while the offender’s parole order is in force” and in the latter, “if the offender’s parole order has ended”. That is to say that s 151 applies to convictions both by ACT and interstate courts as envisaged respectively by ss 149 and 150 but only when such a conviction occurs after the parole order has expired and in this way imports a particular symmetry between ss 149 and 150 on the one hand and s 151 on the other.

Applying this approach, ss 149 and 150 are contrasted with s 151 because they cover the situation where the conviction is recorded during the parole period while s 151 covers the period when it has expired. This is the contrast between them. It says nothing about when the offence is required to have been committed leaving it open to the construction proposed by Mr Burnside QC. Indeed, the reference in s 151 to the offence having to have been committed during the period when the parole order is in force is not contrasted to that situation in ss 149 and 150 but might, indeed, be suggested to imply that it is the same because of the symmetry between the sections.

Dr Perry QC, in response to reference by Mr Burnside QC to s 153, relied on the fact that the powers available to the Board under that section as he submitted (see [57] above) would suggest that ss 149 and 150 were unnecessary. However, while the Board could use the powers given to it under s 153 in the circumstances referred to in ss 149 and 150, these latter sections express a specific legislative policy to require automatic cancellation rather than permit a discretion and thus allow non-cancellation. Therefore, in the circumstances they deal with, they are the legislature’s directive to achieve a particular result, namely automatic cancellation, and the decision is not left to the Board’s discretion under s 153. In any event, if that is not accepted and, as Dr Perry QC submitted, if the powers under s 153 render ss 149 and 150 unnecessary, that is the current situation and does not assist the interpretation of ss 149 and 150 for which she contends.

Dr Perry QC also countered the approach of Mr Burnside QC that the automatic cancellation was an arbitrary deprivation of liberty by accepting that there will be circumstances where the automatic cancellation will be harsh but noted that this traded off the benefit that, because “street time” did not count, the offender at least had the benefit that the time he or she was in custody, pending parole review, was part of serving the sentence rather than not.

While this is true, it seems to me that this does not meet two problems that are exposed in Mr Blundell’s case. Firstly, if, as appears to be the case from the remarks of the Chair of the Board (at [63] above), the Board would not have cancelled the parole order because of the conviction, then the offender should not have to serve any part of the balance of the original sentence in full-time custody. Secondly, Mr Blundell was not in custody during the period between the New South Wales sentence and the Board hearing (over three months) in any event. This was, from his perspective, “wasted time”. Indeed, he continued to serve his parole order, apparently showing in this time that he could generally comply with its conditions, but which time cannot in any sense count towards any service of his sentence.

Dr Perry QC submitted that the Act proceeds on the basis that when a conviction occurs there is a legislative presumption that there is a risk to the community and the parole order is cancelled, thus requiring the offender to re-apply for parole so that a further risk assessment can be re-done with the knowledge of this offence. There is, of course, she submitted, no possibility that the offender could actually serve a longer period in full-time custody than the head sentence originally imposed by the Court.

While that policy may arguably be discerned from a particular construction of the legislation, there was nothing that Dr Perry QC pointed to, either in the Explanatory Statement or in the Presentation Speech, or in any other relevant extrinsic material, which identified such a policy. This then becomes a little circular, for the policy (or purpose) used to determine the construction comes from the particular construction of the legislation for which the defendants contend and is the very issue I have to determine.

Dr Perry QC, however, submitted that the policy could be discerned from a number of matters. These were:

(1) the lack of temporal qualification to the word “offence” in ss 149 and 150;

(2) the express temporal limitation in s 151;

(3) the fact that s 120(1) requires the Board to have regard to the principle that the public interest is of primary importance;

(4) the fact that s 120(2) makes the assessment of risk a major concern for the Board: see pars (b) (the offender’s antecedents), (i) (likelihood of reoffending) and (j) (likelihood of breaching conditions of parole); this has to temper the concern for rehabilitation and reintegration.

(5) while the parole period is an amelioration of the punishment, it cannot be said that the full term (commonly called the head sentence) is other than a proper sentence imposed for the seriousness of the offence. Dr Perry QC relied on the passage from The Queen v Shrestha (see [52] above) for this and also the first principle enunciated in R (Smith) v Parole Board, namely that “the ordinary duty of the court when imposing a determinate sentence of imprisonment is to impose such term ... as in the opinion of the court is commensurate with the seriousness of the offence”.

Dr Perry QC confirmed that there was no further material that evidenced the policy which she submitted justified the construction of s 150 for which the defendants contend.

Dr Perry QC then referred to the question of whether any of the rights in the Human Rights Act were infringed by s 150.

As to the right to liberty in s 18 of the Human Rights Act, Dr Perry QC submitted that there was no breach by operation of s 150, where the parole is automatically cancelled by virtue of a conviction during the parole period of the parolee of a pre-parole offence because, although there was a change from conditional liberty to re-imprisonment, the legal authority for the imprisonment remained the original sentence. The original sentence makes the detention lawful and that is not imposed in breach of s 18 of the Human Rights Act.

That is to say, all that occurs when there is a revocation of parole is that the person is required to serve the sentence already imposed by the court. That sentence is not an arbitrary interference with the right to liberty.

She relied on the comment by Lord Bingham of Cornhill in R (Smith) v Parole Board where (at [36]) his Lordship said:

It seems to me plain that in cases such as the appellants’ the sentence of the trial court satisfies art 5(1) [of the European Convention on Human Rights] not only in relation to the initial term served by the prisoner but also in relation to revocation and recall, since conditional release subject to the possibility of recall formed an integral component of the composite sentence passed by the court.

I note that art 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, 213 UNTS 221, (entered into force 3 September 1953)) (European Convention on Human Rights) has some relevant similarities with s 18(1) of the Human Rights Act.

Thus, the sentence itself incorporated the revocation provisions set out in ss 149 and 150 and therefore there was no arbitrariness because the original sentence was not arbitrary. The legality of the sentence and compliance with s 18 of the Human Rights Act was resolved by the original sentence and is not broken by the intervention of the actions mandated by s 150, which simply enforce the court’s order. It was submitted that once this is recognised then the consideration of the matter falls, as was said in R (Smith) v Parole Board (at [37]) under provisions such as art 5(4) of the European Convention on Human Rights which provides:

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

This is relevantly equivalent to s 18(6) of the Human Rights Act.

The problem with this argument, however, is that s 150 does not provide for any real opportunity for such proceedings since, effectively, the legislation enacts the detention. The involvement of the Board is a mere formality.

Dr Perry QC referred to a decision of the New Zealand High Court in Hart v Parole Board [1999] 3 NZLR 97, a decision of Randerson J (as his Honour then was). The passage on which Dr Perry QC relied was where the Court said (at 101):

In my view, it is clear that the recall is simply part of the punishment for the original offending. Had parole not been granted in respect of the earlier offending, then the appellant would still have been serving his sentence in that respect. The granting of parole, as has been stated on many occasions, amounts to a licence during good behaviour. Where further offending occurs, a punishment may result for that offending and the offender may be recalled on the original sentence to complete it subject to earlier release at such time as the Parole Board in its discretion thinks fit. In my view, that cannot amount to double punishment contrary s 26(2) of the New Zealand Bill of Rights Act. Accordingly I reject that ground of appeal.

The court, however, then went on to say in the next paragraph:

The second ground of appeal is that the board wrongly determined the application for recall in deciding, without more, that the charge of aggravated robbery justified the recall. It is accepted by the Crown that it would be wrong for the board automatically to order recall upon the commission of a subsequent offence when application for recall is made. Plainly, the second offending is simply the trigger which enables an application for recall to be made. I agree that if the board had considered that the mere fact of a conviction was sufficient to justify recall without regard to the nature and circumstances of the offending as well as other factors, then the likelihood is that this Court would find that the approach was invalid and unlawful. Similarly, it would be wrong for the board to adopt a policy that it would only order recall in the case of certain types of offences or in the case of a certain number of offences having been committed. Such policies would unreasonably fetter the board’s discretion and would be subject to challenge for unlawfulness.

That, of course, relates primarily to the specific statutory circumstances of the New Zealand legislation, but it is not an irrelevant comment as to the permissible approach to something like automatic revocation from a jurisdiction with a human rights act. It also confirms that the authority of the original sentence is not necessarily the answer to the automatic, and therefore possibly arbitrary, recall of the parolee.

Consideration

I have carefully considered the arguments submitted by the parties. I accept that there are two possible interpretations of s 150 of the Sentence Administration Act. One says that, in ss 149 and 150, the reference to offences for which the offender is convicted during the currency of the parole period is to offences whenever committed because the legislature puts no temporal limitation in these sections themselves. This would include offences committed prior to the sentence in respect of which parole was granted; it would also include offences committed while in custody on that sentence. The criterion for cancellation is that the conviction (determination of guilt) occurs during the parole period.

The alternative interpretation is that the reference to offences can only be to offences committed while the offender is on parole. As Mr Burnside QC puts it, that is so obvious that it did not need saying, even though, as pointed out by Dr Perry QC, it was said in the predecessor legislation, the ROO Act.

I first look at the legislation in accordance with statutory and common law canons of construction, as informed by s 30 of the Human Rights Act.

The purpose of the Sentence Administration Act can be gleaned from the preamble taken in the context of the Act as a whole, and re-enforced by the obligation on those who give effect to provisions of the Act to carry out the functions they have in accordance with s 7 which provides:

7 Treatment of sentenced offenders
(1)Functions under this Act in relation to a sentenced offender must be exercised, as far as practicable, as follows:
(a)to respect and protect the offender’s human rights;
(b)to ensure the offender’s decent, humane and just treatment;
(c)to preclude torture or cruel, inhuman or degrading treatment;
(d)to promote the offender’s rehabilitation and reintegration into society.

While the preamble refers to victims (presumably victims of offences already committed), there is nothing in the preamble or s 7 of the Sentence Administration Act which refers to the issues of risk, management of risk, protection of society and the like. Indeed, there is little in the Act itself about risk, though many of the functions under it would require some sometimes significant appreciation of it.

While I have no doubt that the Act established a regime that is to be part of the criminal justice system which is directed towards the protection of society (Channon v The Queen (1978) 33 FLR 433 (at 437)), it is not insignificant that the expressed purpose and direction of the Act is a human rights compliant system which is committed to humane treatment, rehabilitation and reintegration.

Indeed, the establishment of a parole system itself shows that rehabilitation and reintegration are important elements in the regime established under the Act.

Accepting, as I do, that the two interpretations of the section to which I have earlier referred are possible, the purpose of the Act must help me to choose between them.

As well as relying on the preamble and s 7, I have also to read the Act as a whole. In particular, I have to consider:

(a) ss 143 to 156 of the Sentence Administration Act;

(b) particularly ss 149 and 151, the most relevant provisions.

As to the first group of sections, I accept that ss 143 to 148 deal with the breach of a parole obligation. Indeed, Div 7.4.2 in which all these sections appear, is headed “Breach of Parole Obligations”. I note under s 126(1) of the Legislation Act that this heading is part of the Act. I have to have regard to it. Parole obligations are those set out in s 136 of the Sentence Administration Act. This section provides:

136   Parole obligations
An offender must, while on parole –
(a)comply with the offender’s parole order, including –
(i)     the core conditions of the order; and
(ii)     any additional condition of the order; and
(b)comply with any other requirement under this Act or the Corrections Management Act 2007 that applies to the offender.

It is clear that such requirements must be prospective. It makes no sense to say that an offender must comply with a requirement that he or she cannot refrain from or comply with because it has already happened.

In this sense, the commission of an offence prior to the date on which an offender is granted parole cannot be something which, as a parole obligation, the offender must not do. It is a pre-existing fact. No doubt many parolees will have committed offences prior to being granted parole. Almost certainly drug affected offenders will have committed many undetected offences of possession of drugs (ss 169, 171 of the Drugs of Dependence Act 1989 (ACT)) and possibly dishonesty offences prior to them being sentenced, much less granted parole. It does not make sense to talk of them refraining from committing such offences as a parole obligation.

Applying this approach to the Sentence Administration Act as a whole, it seems to me that the division in which s 150 appears is directed to the requirements that an offender must meet when and after granted parole. I should, thus, construe s 150 in this light.

Dr Perry QC submitted there was a symmetry between ss 149 and 150 and that I should apply a “sensible” approach to s 150 which meant it had the same effect as s 149. That latter section, she submitted, had the apparently literal meaning of providing that a conviction during the parole period for an offence whenever committed automatically cancelled the parole. Thus, despite the inaccurate and inelegant (or wrong) grammar in s 150(1), I should apply a degree of symmetry to that section and reach the same result for offences for which the offender is convicted outside the Territory. That seems to me, however, to be a symmetry of form not substance.

There is, however, another symmetry. That is to say, ss 149 and 150 both apply to convictions entered during the parole period while s 151 applies to those entered after the parole period. That, then, covers the field.

In particular, ss 150 and 151 apply to offences for which convictions are entered by interstate courts. Section 150 applies when the Board is dealing with the convictions entered during the parole period and s 151 applies to those where the convictions are entered after the parole period has expired.

Thus, while the grammar of s 150 is still technically inaccurate, the subordinate clause “while an offender’s parole order is in force”, based on the range covered by ss 150 and 151, should be read as modifying “convicted” because that is what is not covered by s 151. It is then also symmetrical with s 149.

Neither of those symmetries, however, answers the question of when the legislature intends that the offences were committed.

Ultimately, there are two arguments which are said to justify the construction proposed by the defendants. Firstly, as Dr Perry QC submits, a literal reading of s 150 would result in the court finding that the absence of a temporal qualification to the word “offence” means that it is to be taken to include offences whenever committed.

I cannot, however, approach that task in isolation. It seems to me that, in accordance with Project Blue Sky Inc v Australian Broadcasting Authority, I need to look at the legislation as a whole and bear in mind its purpose. This, as pointed out, does not depend on any ambiguity.

Approaching the legislation in this way, I find:

(1) that the defendants’ interpretation is not consistent with the meaning of “parole obligations” in s 136 and the apparent structure and intent of Div 7.4.2 whereas it is consistent with the plaintiff’s interpretation;

(2) there is no clear policy that supports the defendants’ interpretation. It cannot be inferred from the Act as a whole. Management of risk is important, but even in s 120 it is by no means primary and would appear to be subordinate to rehabilitation. Section 120(2) certainly encompasses issues of re-offending, but that is equally applicable to placing a high emphasis on rehabilitation and reintegration. To discern the policy from ss 149, 150 and 151 is impermissible for these are the very sections that the policy is being used to help to construe. There is no extrinsic material to support the policy suggested by the defendants and I am not sure that it is a policy that is so obvious that it does not need such articulation. Indeed, I find it at least counter-intuitive;

(3) a policy I can divine from the Act is that there is an emphasis on compliance with parole obligations, which means that the offender’s behaviour on parole is important;

(4) s 151 clearly contemplates a breach of a core condition. There is no core condition (s 137) that requires an offender himself or herself even to disclose prior offences much less not commit them. There is nothing in Pt 7.2 (Making of parole orders) that requires the disclosure of prior offences or even, by the offender, of prior convictions. Thus, so far as concerns offences committed before a parole order is made, there is no relevant core condition, indeed no condition or representation that has been breached when action is taken under ss 149 or 150 in respect of offences committed prior to the start of the parole period. It is not clear why the sections should not be read with this content in mind. Indeed, even were s 136(b) meant to encompass the situation expressed in ss 149 and 150, they are not as a fact so encompassed, as I have argued (above at [120]) and for that the paragraph cannot include non-commission of a pre-parole offence as a requirement;

(5) the clear approach of the Act is towards rehabilitation. In addition to the important overarching effect of the preamble and s 7, there is the establishment of the system of parole itself, a regime essentially directed towards rehabilitation, as well as a number of specific provisions such as ss 28(1), 53(1), 71(3) and the absence of any express guide to the Board in the approach it should take to its inquiries other than the direction given by s 7.

These factors favour the plaintiff’s construction.

The other argument in favour of the defendants’ construction is that the express references in s 151 to “committed while the offender’s parole order was in force” implies that the absence of such qualification in ss 149 and 150 was deliberate: expressio unius est alterius exclusio.

That maxim is, however, a cover for a weak aid to construction. While it clearly has a place, it tends to be used to support a view that is otherwise determined on other bases: Riley v Commonwealth of Australia and Ors; Butler v Commonwealth of Australia and Ors (1985) 159 CLR 1 (at 12-13).

It has long been suggested that it be approached with care: State ofTasmania v Commonwealth of Australia and Anor (1904) 1 CLR 329 (at 343).

In Houssein and Anor v The Under Secretary, Department of Industrial Relations and Technology NSW and Anor (1981-82) 148 CLR 88 the High Court said (at 94):

In these circumstances there is no room for the application of the maxim expressio unius. That maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument: Saunders v Evans [(1861) 8 H.L.C. 721, at p 729 [11 E.R. 611, at p 615]].

In The Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission, Gleeson CJ and Gaudron, Gummow and Hayne JJ described it (at [34]) as “a maxim upon which it has often been pointed out it is dangerous to rely”.

Perhaps importantly in this context, Angel J noted in O’Brien v Gillies & Anor (1990) 69 NTR 1 (at 7) that a recognised qualification to the application of the maxim is that it will not be used to exclude certain “legal assumptions” in particular the assumption that the court will uphold fundamental legal rights.

As a result, I would not base my decision on this argument alone. While it may somewhat strengthen the literal reading of s 150 to some degree, it does not seem to me that it can effectively counter-balance the concerns I have expressed about that reading in the light of the purpose of the Act and the Act taken as a whole. As I have noted above (at [60] and [91]), there are other valid explanations for the differences in the sections.

The next issue is whether s 150 breaches a fundamental liberty such as to give rise to the application of the principle of interpretation that presumes such breaches were not intended.

I accept that the original sentence is justification for the parole regime which includes recall and further detention (up to but not beyond the limit of the original sentence) during the parole period. So much is clear from R (Smith) v Parole Board and the other authorities cited.

That, however, is not the end of the matter for it seems to me that if the regime that the original sentence establishes is, in itself, a breach of a human right such as to infect the process, then there is a breach. That is to say, if the process for recall and re-imprisonment is not in accordance with the fundamental freedom, the original justification is thereby undermined. So much may be seen from the second citation from Hart v Parole Board (at [108] above).

This is re-enforced by decisions such as R (Brooke) v Parole Board and Anor; R (Murphy) v Parole Board and Anor [2008] 3 All ER 289, which held that the Parole Board established in the UK did not meet the requirements of the common law (and art 5 of the European Convention for Human Rights) for a “court” by demonstrating objective independence of the executive and the parties.

Thus, if the process of recall and reimprisonment is not in accordance with the relevant requirements for fundamental freedoms and liberties, then the fact of the original sentence which may otherwise have been quite properly imposed, will not save that process from breach.

A useful list of common law rights which the presumption regards as requiring protection is set out helpfully in Pearce DC and Geddes RS, Statutory Interpretation in Australia, (6^th ed, LexisNexis Butterworths, 2006) (at pp182-3 [5.30]). The obvious one here is the right to personal liberty.

This right has been recognised in Australia from early times: Nolan v Clifford (1904) 1 CLR 429 (at 444). Indeed, Brennan J (as his Honour then was) in R v Bolton and Anor: Ex parte Beane (1987) 70 ALR 225 referred (at 231) to the fact that “[t]he law of this country is very jealous of any infringement of personal liberty”. His Honour referred to and echoed what Lord Herschell said in Cox v Hakes (1890) 15 App Cas 506 (at 527).

The question, however, is the content of this fundamental common law right. In R v Secretary of State for the Home Department: Ex parte Muboyayi [1992] 2 QB 244, Lord Donaldson of Lyminton MR said (at 254):

Chapters 39 and 40 of Magna Carta provide:
No freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any way destroyed, neither will we set forth against him or send against him, except by the lawful judgment of his peers and by the law of the land.
To no one will we sell, to no one will we refuse or delay right or justice.

The duty of the courts is to uphold this classic statement of the rule of law and if, in particular circumstances, a writ of habeas corpus is the appropriate procedure for doing so, it is wholly immaterial that the practical effect may be the same as enjoining the Crown.

To the same effect was the advice of the Privy Council in Brooks v Director of Public Prosecutions and Anor [1994] 1 AC 568 (at 582).

In a sense, these formulations are not helpful. They refer to liberty which may be limited by law, but here I am attempting to ascertain whether this law is one legitimately able to limit Mr Blundell’s liberty.

Perhaps more helpful is the approach that requires the court to choose an interpretation of the statute that is consistent with these fundamental rights. As O’Connor J said (at 279) in Sargood Brothers v Commonwealth (1910) 11 CLR 258 :

It is a well recognised rule in the interpretation of Statutes that an Act will never be construed on taking away an existing right unless its language is reasonably capable of no other construction.

See to the same effect per Higgins J (at 206) in Melbourne Corporation v Barry (1922) 31 CLR 174.

A more recent formulation of the principle was set out in Thompson v Australian Capital Television Pty Ltd and Ors (1994) 54 FCR 513 where Burchett and Ryan JJ said (at 526):

Statutory reforms removing a particular plank from the edifice of the common law do not necessarily bring down whole sections of the structure just because a rule expressly changed or abolished had an historical or a logical connection with other rules of the common law. To forbid such a consequence the rule has been established (and should be adhered to: Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 322, per Brennan J) that Acts altering the common law should be construed as doing so only so far as is necessary to give effect to their provisions: Hocking v Western Australian Bank (1909) 9 CLR 738 at 746; American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 at 682-683, per Mason J, with whom Gibbs CJ, Murphy, Aickin and Brennan JJ agreed; D C Pearce and R S Geddes, Statutory Interpretation in Australia (3rd ed, 1988), pp 104-105; or as Lord Reid put it in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg Aktiengesellschaft [1975] AC 591 at 614, “in the absence of any clear indication to the contrary Parliament can be presumed not to have altered the common law further than was necessary to remedy the “mischief”.

Although the decision in that case was overturned on appeal in Thompson v Australian Capital Television Pty Ltd and Ors (1996) 186 CLR 574, there was no doubt cast on this formulation of the principle.

There can be no doubt that s 150 construed in the way for which the defendants contend interferes with Mr Blundell’s liberty and that of other offenders. When this is because of a breach of a core condition of parole, namely commission of an offence during the parole period, it is clear that there is not only an intention of the legislature to do so, but a rationale for it.

Where, however, the automatic conviction is because of the conviction for an offence committed before parole was granted, there is, I am satisfied, no indication in the legislation that this is intended and no rationale in the statute itself, any of the extrinsic materials or, indeed, in the ROO Act, to suggest that this is intended or explain why it may be.

I am further fortified in my view because in the context I cannot see that it is the conviction which is a meaningful basis for action as opposed to a mere trigger. In this sense, a conviction is only the formal confirmation that an offence has been committed. That is to say, while a conviction (as opposed to a non-conviction order, such as under s 17 Sentencing Act) has an element of punishment in it itself (see Henderson v McKenzie [2009] ACTSC 39), it is really no more than the finding by a court and it cannot be an act of the offender. It is not the basis for deciding what action to take, such as what sentence to impose, it is merely the formal act which entitles the court to rely on the offence which it has found committed to impose sanction, or penalty for the offence not for a conviction.

If, as Dr Perry QC submitted, it is the risk to the community that the automatic cancellation is designed to address, the risk (for example, of re-offending) is to be measured by the offence; the actual conviction (other than as a formal declaration that the offence has been committed) and its date are irrelevant to that issue. The fact of the offence being committed, the date when it was committed and the behaviour of the offender since then, such as attempts at and success of rehabilitation, are relevant to an assessment of risk, a mere conviction is not.

The Board, or any other agency, cannot act on an allegation that a parolee has committed an offence until there has been a conviction (unless, perhaps, there is a full admission voluntarily made with informed consent). It is not the conviction that is substantively relevant; it is merely the trigger to be entitled to respond to the offence and its characteristics.

As a result, it seems to me that the only proper construction of s 150 is to read the word “offence” in paragraphs 1(a) and (b) as meaning “offence committed during the parole period”. This would also apply to s 149, though Dr Perry QC expressly reserved her position on that section which, of course, is not directly the subject of these proceedings.

In the way I have considered ss 149, 150 and 151, however, and have done so in order to try and construe s 150, it is difficult to see how s 149 could be construed differently.

I am comforted in my conclusion by reference to the Human Rights Act which enjoins me to construe legislation consistently with its purpose, as compatible with human rights.

The principal right is in s 18(1) of the Act, which provides:

18 Right to liberty and security of person
(1)Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.

I do not in all the circumstances, have to consider the other rights relied on by Mr Burnside QC, though a cursory consideration suggests that the result would be the same or strengthened.

I am satisfied that s 150, as construed to apply to offences committed prior to an offender is granted parole, impinges upon or diminishes the plaintiff’s liberty. The question is whether it impinges the right.

In the United Kingdom, it is clear that while, as enunciated in R (Smith) v Parole Board, the original sentence authorises in itself a regime of recall and reimprisonment without infringing the equivalent human right, the process whereby that recall and imprisonment is implemented must itself meet the appropriate standards. As Lord Brown of Eaton-under-Heywood said in R (Black) v Secretary of State for Justice [2009] 1 AC 949 (at [78]):

Given, however, the critical point played by a parole scheme in determining how long a determinate prisoner will in fact remain in custody, it is not difficult to suggest an equal need to operate that scheme judicially as to have a proper initial sentencing process.

While this clearly refers to the decision-making process in parole, it does seem to me that it can be appropriately applied as well to the legislation establishing the parole scheme.

In this case, it is submitted for the plaintiff that the requirement for automatic cancellation of parole for conviction of an offence committed before the making of the parole order would be arbitrary and so breach s 18 of the Human Rights Act.

The notion of arbitrariness has been the subject of consideration in international human rights jurisprudence. In New Zealand, Richardson P, in Neilsen v Attorney General [2001] 3 NZLR 433 said (at [34]):

Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following procedures.

Indeed, in Attorney-General v Hewitt [2000] 2 NZLR 110, it was held that arrest pursuant to a blanket policy, without regard to individual circumstances, amounts to an arbitrary arrest. For automatic detention, see R v Swain [1991] 1 SCR 993 (at 1012).

The Human Rights Committee of the United Nations established under the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171 6 ILM 386, (entered into force 23 March 1976)) (the treaty on which the Human Rights Act was partly based) has considered the issue in a decision involving Australia. In A v Australia, Communication 560/1993, 3 April 1997, the Committee said (at [9.2]):

On the first question, the Committee recalls that the notion of “arbitrariness” must not be equated with “against the law” but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context.

Without deciding, I think that automatic cancellation of a parole order for breach of a core condition of the parole (namely, not to commit certain offences while on parole), may not be arbitrary given the restriction to the offences being ones for which imprisonment is provided. If so, it would not be incompatible with s 18 of the Human Rights Act, but that is not relevant to this case and I do not decide it.

Applying the above notions of arbitrariness, however, it cannot be said that automatic cancellation of a parole order for conviction entered during the parole period of an offence committed before the parole order was made is not arbitrary. Such automatic cancellation does not take into account relevant factors, not applicable to offences committed during the parole period, such as:

(1) how long before the parole period began the offence was committed;

(2) why the offence was not prosecuted and a conviction entered until the parole period had begun;

(3) whether the Board knew when it granted a parole order that the prosecution was pending; or

(4) the efforts the offender had made since committing the offence, including whilst in custody, to address that offending behaviour or the causes of the offending behaviour.

This is, of course, not to mention other matters clearly relevant, but which affect offences committed during the parole period also, such as the seriousness of the offence, the sentence imposed and the reasons for committing the offence.

Failure to allow these matters to be taken into account seems to me to have unarguably the hallmarks of arbitrariness: automatic cancellation and imprisonment are likely to be disproportionate in a number of cases; it is capricious; there is no comprehensive reason for it.

Perhaps one of the most arbitrary aspects of the regime is that if an offender is charged with an offence committed before the start of the parole period, it is a matter of chance as to whether either ss 149 or 150 will be activated. If the prosecution delays or the Court cannot accommodate a hearing, it will be entirely a matter of timing whether the conviction is entered during the parole period or after. If the offence was committed before the parole period commenced, even s 151 will not be engaged.

Indeed, in this case, had Mr Blundell waited until 29 September 2010 before returning to the District Court in New South Wales, the automatic operation of s 150 would have had no effect. It is quite likely, too, that Toner DCJ, who would then know that Mr Blundell had successfully completed his parole, would be unlikely to impose a different sentence than the one his Honour did impose.

The coverage of ss 149 and 150 on the one hand and s 151 on the other, means that offences committed during the parole period are not to be subject of this caprice.

As to the last matter, it is, of course, necessary to consider whether, in terms of s 28 of the Human Rights Act the legislation was merely an implementation of reasonable limits on the human right such as can be demonstrably justified in a free and democratic society.

The only such justification offered by Dr Perry QC was that the legislature was to be taken to have held that the public needed to be protected by an automatic cancellation in circumstances where a decision had earlier been made to release a person on parole without regard to a material consideration, namely, that an earlier offence carrying a term of imprisonment (whether or not imposed) had been committed by the offender.

The written submissions of the defendants put it this way:

(b) The importance of the purpose of the limitation
84.The third defendant contends that any limitation on rights imposed by the cancellation of parole is for the purpose of protecting the community from persons who, while on parole, are likely to reoffend.
85.This is an important purpose; it reflects one of the principal reasons underlying the very existence of the criminal law and of sentencing offenders to imprisonment.
...
(d)The relationship between the limitation and its purpose
88.There is a clear relationship between the offender’s recommittal to prison and the purpose of the limitation on his or her rights, namely protection of the community from re-offending. The original sentencing court had clearly seen fit to impose a custodial sentence; and in those circumstances, where the offender has again been convicted of an offence punishable by imprisonment, even if committed before the parole period, it is clearly the case that a return to custody (a) will achieve the purpose of protecting the community and (b) is an appropriate response to a repeat offender.
89.Again this is subject to the ability of the Board to grant parole upon further application, ameliorating what might otherwise appear to be a harsh result in some cases.

This assumes that an offence committed prior to the commencement of the parole period is evidence of the likelihood of re-offending. Clearly past behaviour is material on which such a decision can legitimately be made, though an offence committed before parole is granted is likely to be incomparably weaker material than, for example, an offence committed during the parole period. This is especially true because of the factors referred to at [170] above, especially (3) and (4). The answers to these and other questions, such as the seriousness of the offence, could easily show that the conviction was, in fact, no evidence at all of a likelihood of re-offending.

This raises issues of proportionality. In a sense, this is demonstrated in this case to be problematic. The section provides for automatic cancellation and reimprisonment but in this case that did not occur till over three months after the conviction. If there is a need for automatic cancellation, it is hard to see that it is proportionate to permit the offender to be at large for three months, apparently, on the basis argued for such cancellation, a risk to public safety during this time, when finally, after apparently meeting his parole conditions for that time, the offender’s rehabilitation is interrupted by a conviction for an offence that occurred in this case over three years earlier. It is difficult to see that as proportionate.

In Sunday Times v United Kingdom (1979-80) 2 EHRR 245 (at [62]), the European Court of Human Rights held that three tests needed to be satisfied for a provision such as s 28 of the Human Rights Act to apply, namely whether:

· the interference complained of corresponded to a ‘pressing social need’;

· it was ‘proportionate to the legitimate aim pursued’; and

· the reasons given by the national authority to justify it were ‘relevant and sufficient’.

The House of Lords identified in Huang v Secretary for State for the Home Department [2007] 2 AC 167 (at [19]):

· whether the objective justifying the interference is sufficiently important to justify limiting the right;

· whether the measures designed to meet the objective of the interference we are rationally connected to it;

· whether the means used to impair the Convention right are no more than is necessary to accomplish that objective; and

· whether interference strikes a fair balance between the rights of the individual and the interests of the community, which requires carefully assessing the severity and consequences of the interference.

Having carefully considered each of these approaches, I cannot see that a blanket justification of protection of society meets these criteria and therefore entitles the approach to be held justified by s 28 of the Human Rights Act.

As a result, I hold that s 150 requires and authorises the Board to cancel a parole order only when an offender, in respect of whom a parole order is in force, is convicted, while that order is in force, of an offence of a kind set out in s 150(1)(a) and (b), and which was committed while the parole order was in force.

I will give the parties leave to consider what orders should be made in accordance with these reasons.
I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2 December 2010

Counsel for the plaintiff:  Mr J Burnside QC with Mr M Kukulies-Smith
Solicitor for the plaintiff:  Ken Cush & Associates
Counsel for the defendants:  Dr M Perry QC with Ms K Walker
Solicitor for the defendants:  ACT Government Solicitor
Date of hearing:  12 May 2010
Date of judgment:  2 December 2010