Prisoners Review Board v Freeman

Case [2010] WASCA 166

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   PRISONERS REVIEW BOARD -v- FREEMAN [2010] WASCA 166

CORAM:   PULLIN JA

NEWNES JA
MURPHY JA

HEARD:   19 JULY 2010

DELIVERED          :   12 AUGUST 2010

FILE NO/S:   CACV 57 of 2010

BETWEEN:   PRISONERS REVIEW BOARD

Appellant

AND

NATHANIEL GEORGE JOSEPH  FREEMAN
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :HALL J

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

File No  :CIV 1190 of 2010

Catchwords:

Administrative law - Mistake as to source of power - Validity of decision - Whether material difference in relevant considerations - Error of law - Jurisdictional error - Whether recommendation to Minister against parole a 'decision' under relevant statutory scheme - Whether 'decision' authorised by statute and affects rights - Whether statutory duty to give reasons - Beneficial legislation

Legislation:

Criminal Code (WA), s 282(c) (repealed)
Interpretation Act 1984 (WA), s 5, s 12(a), s 60
Offenders Community Corrections Act 1963 (WA), s 4, s 20T, s 21, s 32 - s 34, s 34A, s 40, s 40A, s 40B, s 40C, s 40D, s 41, s 44, s 45, s 49A, s 50, s 50H, s50X, s 50Z, s 50ZA, s 50ZB, s 50ZG, s 50ZH
Parole and Sentencing Legislation Amendment Act 2006 (WA), pt 2
Sentence Administration Act 1995 (WA), s 3, s 23, s 27, s 30 - s 34, s 35, s 39, s 40, s 49, s 58, s 67, s 114, s 115
Sentence Administration Act 2003 (WA), s 3, s 4, s 5A, s 5B, s 5C, s 12, s 12A, s 13, s 14, s 14A, s 25, s 48, s 102 - s 106, s 107, s 107A, s 107B, s 107C, s 108, s 109, s 113, s 115, s 115A, s 119
Sentencing (Consequential Provisions) Act 1995 (WA), s 77, s 86
Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 29(1), sch 1 cl (3), cl 13(5)

Result:

Appeal upheld in relation to ground 3

Category:    A

Representation:

Counsel:

Appellant:     Mr D J Matthews & Ms S T Fox

Respondent:     In person

Solicitors:

Appellant:     State Solicitor for Western Australia

Respondent:     In person

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

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Andrew Koh Nominees Pty Ltd v Balneum Joint Venture [2007] WASCA 152; (2007) 33 WAR 561

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Barns v Barns [2003] HCA 9; (2003) 214 CLR 169

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (1999) 199 CLR 135

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) SR (NSW) 416

Ex parte Miah; Re Minister for Immigration and Multicultural Affairs [2001] HCA 22; (2001) 206 CLR 57

FAI Insurances Ltd v Winneke [1982]…

Continue reading Prisoners Review Board v Freeman

Sign in free to access the full text

Details
AGLC
Prisoners Review Board v Freeman [2010] WASCA 166
Case
[2010] WASCA 166
Decision Date

CaseChat Overview and Summary

In the case of Prisoners Review Board v Freeman, the appellant challenged the decision of the respondent, the Prisoners Review Board, to deny his release on parole. The dispute centered around the Board's recommendation to the Attorney General, which was subsequently affirmed, and the Board's refusal to provide reasons for this decision. The appellant argued that the Board's failure to provide reasons constituted a jurisdictional error and that the Board was statutorily obligated to furnish reasons under the applicable legislation.

The primary legal issues revolved around whether the Board's recommendation to the Attorney General constituted a 'decision' under the statutory scheme, whether this decision affected the appellant's rights, and whether the statutory duty to provide reasons applied. The court also considered whether the Board's reliance on the wrong statutory provision rendered the decision invalid.

The court held that the Board's recommendation to the Attorney General was indeed a decision that affected the appellant's rights and was thus subject to the statutory duty to provide reasons. However, the court found that the Board's error in citing the wrong statute did not necessarily invalidate the decision, as the actual statutory power relied upon was not entirely without basis. The court concluded that while the Board's failure to provide reasons was a procedural error, it did not render the decision invalid if there was an alternative statutory basis for the decision.

Ultimately, the court found in favor of the respondent, holding that the Board's decision was valid despite the error in statutory citation, and that the statutory duty to provide reasons did not apply in this context. The appellant's appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

By letter dated 7 October 2009, the Attorney General wrote:REQUEST FOR INQUIRY INTO PAROLE BOARD DECISIONThank you for your letter dated 17 August 2009 regarding a request for confirmation of the Prisoners Review Board's (the Board) decision to deny you release on parole and participation in a re‑socialisation programme.The Board last conducted a review in relation to your matter on 2 June 2009 and the report and recommendation from that meeting was provided to my office on 29 July 2009 for my decision. After carefully reviewing your matter, I confirm that I have agreed with the recommendation made to me by the Board and have determined to deny both your release to parole and participation in a re-socialisation program at this time.I can advise that the Board apologises for the responses you received on 19 July 2009 and 31 July 2009, which were standard responses commissioned by secretariat staff. With respect to your earlier letter dated 5 August 2009, I note that you have addressed many issues, some of which are complex, and I advise that the Registrar will respond to you within the next four weeks.Thank you for bringing these matters to my attention. (emphasis added) Further correspondence from the appellant to the respondent dated 3 and 16 November 2009 referred, in effect, to the appellant's report to the Attorney General as a 'statutory report' under the 2003 SA Act. The latter letter stated:I refer to your letter dated 3 November 2009.Section 5A of the Act details the considerations against which the Board considers all information provided to it when reviewing any matter for release.As I stated in my letters dated 18 September 2009 and 3 November 2009, the Sentence Administration Act 2003 (the Act) does not require the Board to provide a prisoner with a copy of the Statutory Report to the Attorney General and it is that report that contains the information you are requesting.Therefore, I cannot assist you further and I am unable to continue to respond to the same requests framed in a different manner. (emphasis added) On 15 December 2009, the Attorney General wrote to the respondent in these terms:REQUEST FOR EXPLANATION AND REASONS FOR DENIAL OF RELEASE ON PAROLE OR PARTICIPATION IN A RE‑SOCIALlSATlON PROGRAMThank you for your letter dated 14 October 2009 in which you request that I supply you with reasons for the decision to deny your release on parole or participation in a re‑socialisation program.I have previously advised you in my letter of 7 October 2009 that, after carefully reviewing your matter, I agreed with the recommendation made to me by the Prisoners Review Board (the Board) and determined to deny both your release to parole and participation in a re-socialisation program at this time.I note that you have been advised by the Registrar of the Board on 18 September 2009 that there was no legislative requirement to provide you with the Board's reasons and recommendations and, as the rules of natural justice do not apply to the Board, that information would not be provided.I concur with the Board's decision not to provide you with this information and, as a reply to your request may identify some of that information, I am unable to assist you further in this matter. (emphasis added)

Ratio Decidendi

Legal Principle Established

Section 5A provides:5A.Release considerations about people in custodyIn this Act a reference to the release considerations relating to a prisoner is a reference to these considerations ‑(a)the degree of risk (having regard to any likelihood of the prisoner committing an offence when subject to an early release order and the likely nature and seriousness of any such offence) that the release of the prisoner would appear to present to the personal safety of people in the community or of any individual in the community;(b)the circumstances of the commission of, and the seriousness of, an offence for which the prisoner is in custody;(c)any remarks by a court that has sentenced the prisoner to imprisonment that are relevant to any of the matters mentioned in paragraph (a) or (b);(d)issues for any victim of an offence for which the prisoner is in custody if the prisoner is released, including any matter raised in a victim's submission;(e)the behaviour of the prisoner when in custody insofar as it may be relevant to determining how the prisoner is likely to behave if released;(f)whether the prisoner has participated in programmes available to the prisoner when in custody, and if not the reasons for not doing so;(g)the prisoner's performance when participating in a programme mentioned in paragraph (f);(h)the behaviour of the prisoner when subject to any release order made previously;(i)the likelihood of the prisoner committing an offence when subject to an early release order;(j)the likelihood of the prisoner complying with the standard obligations and any additional requirements of any early release order;(k)any other consideration that is or may be relevant to whether the prisoner should be released. Whilst the Board might, in the circumstances of a particular case, consider it appropriate to attach paramountcy to that particular consideration in reporting and recommending under the OCC Act with respect to a prisoner, there is no legislative command to give it paramountcy in all cases. Accordingly, in my view, the recommendations in the report which the Board prepared in relation to the respondent were purportedly made pursuant to the statutory scheme in the 2003 SA Act which elevated a relevant consideration under s 34 of the OCC Act to 'the paramount consideration' to be observed in all cases considered by the Board. Whilst the validity of an administrative act is not necessarily impugned by there having been a mistake as to the source of the power stated by the decision‑maker as that upon which reliance has been placed, the issue of validity depends upon the particular statutory regime under consideration and the availability of an alternative source of power: Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 618; Vaw (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631, 636 ‑ 644, 669. Where there is said to be a potential alternate statutory power open to support the relevant administrative act, it is necessary to carefully analyse the statutory power actually (albeit erroneously) relied upon, and the posited alternate statutory power, in order to determine the effect of the tribunal's failure to rely on the posited alternative power: VAW (Kurri Kurri) Pty Ltd v Scientific Committee [32].