Richards v Parole Board of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
RICHARDS v PAROLE BOARD OF SOUTH AUSTRALIA
[2025] SASC 160
Judgment of the Honourable Justice McIntyre
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - BOARDS, TRIBUNALS ETC: POWERS, DUTIES AND CONSTITUTION
In 2011 and 2012, the applicant was sentenced for various offences. The applicant applied for parole in June 2023 and became eligible for parole in December 2023. In November 2024, the Parole Board of South Australia (‘the Board’) refused the application and determined not to release the applicant on parole. This is an application for judicial review of the Board’s decision pursuant to s 67 of the Correctional Services Act 1982 (SA) (‘the CSA’).
The applicant seeks to review the decision on three grounds – procedural unfairness, relevant and irrelevant considerations and unreasonableness. The applicant seeks an order of mandamus requiring the Board to accept the applicant’s application for parole. In the alternative, the applicant seeks an order of certiorari quashing the Board’s decision and remitting the matter back to the Board to be redetermined. The respondent contends that the decision to deny the applicant’s application for parole was made lawfully.
Held, dismissing the application:
1. Mandamus is unavailable to the applicant as it cannot be granted against the Crown.
2.There was no procedural unfairness as the applicant was afforded the opportunity to comment upon the material before the Board. There is no requirement for the Board to investigate discrepancies raised by the applicant.
3.The Board relied on information relevant to ss 67(3a) and 67(4) of the CSA. There is no evidence that the Board took into account irrelevant considerations or failed to take into account relevant considerations.
4.The written reasons of the Board provide a reasonable explanation of the decision to reject the applicant’s application for parole.

Correctional Services Act 1982 (SA) s 67; Crown Proceedings Act 1992 (SA) s 7(2), referred to.
Craig v South Australia (1995) 184 CLR 163; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Lymberopoulos v Police [2006] SASC 360; Vansetten v The State of South Australia [2020] SASC 158; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, considered.

RICHARDS v PAROLE BOARD OF SOUTH AUSTRALIA
[2025] SASC 160
RICHARDS v PAROLE BOAD OF SA
CIVIL: APPLICATION
McINTYRE J:

The applicant filed an originating application and statement of facts, issues and contentions on 19 May 2025. She seeks to review a decision of the Parole Board of South Australia (‘the Board’) not to grant her parole under s 67 of the Correctional Services Act 1982 (SA) (‘the CSA’).
For the reasons I now deliver, I dismiss the application for review. I will hear the parties as to costs.
Background
The applicant was sentenced for various offences in 2011 and 2012. Those sentences were accumulated resulting in the applicant serving a total sentence of 20 years and two months’ imprisonment with a non-parole period of 12 years. Both the head sentence and the non-parole period were backdated to 7 December 2011. The applicant became eligible for parole in December 2023. She applied for parole, as permitted under the CSA, on 4 June 2023.
The applicant was interviewed by the Board on 7 May 2024. The Board deferred its decision pending the receipt of an updated psychological assessment of the applicant. The psychological assessment dated 28 August 2024 was reviewed by the Board on 8 October 2024, together with further submissions made by the applicant. The applicant was reinterviewed on 12 November 2024 and on the same date the Board determined not to release the applicant on parole.
The respondent initially contended that the applicant required an extension of time to file the judicial review application. The respondent now concedes that this is not required. The impugned decision was made by the Board on 12 November 2024, however the respondent was not provided with the Board’s reasons until after 12 December 2024. The application, which must be made within six months is, accordingly, within time.
The application
The applicant, who is unrepresented, has filed a considerable quantity of documentation. The material that she relies upon is as follows, originating application[1] and statement of facts, issues and contentions;[2] affidavits made by her on 31 January 2025,[3] 5 August 2025,[4] 13 August 2025[5] and 26 August 2025;[6] a book of documents[7] and written submissions.[8] As will be seen, the applicant ultimately sought orders in the nature of certiorari quashing the decision of the Board and remitting the matter for rehearing in accordance with the law.
[1]    FDN 1.
[2]    FDN 3.
[3]    FDN 2.
[4]    FDN 12; FDN 13.
[5]    FDN 14.
[6]    FDN 17.
[7]    FDN 5.
[8]    FDN 16.
Legal considerations
In her originating application the applicant sought an order:
For release on parole as agreed by the DPP and Supreme Court.
This formulation stemmed from the applicant’s understanding that the non-parole date was the date that she would be released from custody as opposed to it being the date from which she was eligible to be released on parole. Section 67 of the CSA, as it applied at the time of her sentences and currently, provides a prisoner the right to apply in the prescribed manner to the Board for release on parole. The Board must exercise its powers in s 67 to consider the application for parole and may in its discretion determine that application. Section 67 sets out the decision-making process for the Board when considering an application for parole. The mandatory considerations are set out in sub-s (3a) and (4). The Board is not required to release a prisoner simply because their non-parole period has expired.
Section 67 of the CSA provides relevantly as follows:
67—Release on parole by application to Board
(1)     This section applies to a prisoner if—
(a)     section 66 does not apply to the prisoner; and
(b)     a non-parole period has been fixed for the prisoner; and
(c)     the prisoner is not serving a sentence of indeterminate duration.
(2)     …
(3) An application cannot be made under subsection (1) more than six months before the expiration of the non-parole period fixed in respect of the prisoner's sentence.
(3a) The paramount consideration of the Board when determining an application under this section for the release of a prisoner on parole must be the safety of the community.
(4) The Board must also take the following matters into consideration when determining an application under this section:
(a)     any relevant remarks made by the court in passing sentence; and
(b)     the likelihood of the prisoner complying with the conditions of parole; and
(c)     where the prisoner was imprisoned for an offence or offences involving violence, the circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment (but the Board may not substitute its view of these matters for the view expressed by the court in passing sentence); and
(ca)    if, in relation to an offence for which the prisoner was imprisoned, there is a registered victim—the impact that the release of the prisoner on parole is likely to have on the registered victim and the registered victim's family; and
(cb) in the case of a prisoner who is serving a sentence of life imprisonment where the Board is informed of the impact that the release of the prisoner on parole is likely to have on a victim of an offence for which the prisoner was imprisoned (other than a registered victim) and the victim's family—that impact; and
(d)     the behaviour of the prisoner while in prison or on home detention; and
(e)     the behaviour of the prisoner during any previous release on parole; and
(f)      any reports tendered to the Board—
(i) on the social background, or the medical, psychological or psychiatric condition, of the prisoner;
(ii)from the CE (including recommendations (if any) as to the conditions that should, in the opinion of the CE, be imposed by the Board on the prisoner's release on parole); and
(g)     the probable circumstances of the prisoner after release from prison or home detention; and
(h)     any other matters that the Board thinks are relevant.
…
The applicant accepted that her original understanding was incorrect and indicated that she now sought an order of mandamus requiring the Board to accept the applicant’s application for parole or, in the alternative, an order in the nature of certiorari quashing the Board’s decision and remitting the matter back to the Board to be determined according to the law. Section 7(2) of the Crown Proceedings Act 1992 (SA) (‘CPA’) provides that a mandatory injunction cannot be granted against the Crown. Accordingly, mandamus is not relief that is available to the applicant in this matter. The relief available to the applicant is in the nature of certiorari or a declaration quashing the decision of the Board. Again, the applicant accepted that this was the case.
The grounds upon which the applicant seeks an order of certiorari are stated at length in the various documents that she has filed. In summary, she challenges the Board’s decision on three grounds. First, that the Board failed to afford her procedural fairness. Second, that the Board failed to take into account relevant considerations or alternatively took into account irrelevant considerations and third, that the decision was unreasonable.
Many of the matters raised by the applicant in support of these grounds of review are more appropriately raised in the context of a merits appeal, rather than as a jurisdictional error founding a remedy such as a writ of certiorari. For example, the applicant’s book of documents contains a large number of documents not all of which appear relevant to an application for judicial review. These include various freedom of information requests, reports of the ombudsman and letters of complaint by the applicant to the ombudsman. Many of the applicant’s complaints to the ombudsman and in these proceedings relate to factual matters concerning allegations about her behaviour whilst in custody that she says are not correct. She also complains about the history contained in various psychological reports which she says is either incomplete or inaccurate. She says that this means that the conclusions that the Board reached based upon those reports and allegations were erroneous.
It is necessary to set out the nature and scope of judicial review proceedings. The High Court in Craig v South Australia[9] set out the limits on judicial review as follows:
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct establish grounds, most importantly jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record.”
[9] (1995) 184 CLR 163 at 175 – 176.
A jurisdictional error involves the Board acting beyond power and is a proper basis for relief on judicial review. As Hayne J explained in Re Refugee Review Tribunal; Ex parte Aala:[10]
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. … The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[10] (2000) 204 CLR 82 at 163.
The Board was required, under ss 67(4)(d) and (f), to consider the applicant’s behaviour in prison and to consider the various reports provided to it. Accordingly, even if accepted, many of the matters raised by the applicant are “errors within jurisdiction” as opposed to “jurisdictional errors”.
Procedural fairness
The applicant said that the Board had access to a number of documents that she did not. She contended that this was a breach of procedural fairness. These documents include a report by Dr Craig Raeside (‘Dr Raeside’) dated 29 July 2011 and various reports from the Department of Corrections (‘DCS’).
The documents that were before the Board are set out in the affidavit of Ms Eleanor Frances Nelson KC (‘Ms Nelson KC’) on 30 July 2025.[11] It is accepted by the respondent that there was material before the Board that was not provided to the applicant; specifically, DCS reports including some psychological assessments. It is, however, apparent that the 2011 report of Dr Raeside was not before the Board. The applicant accepts that this was the case but says that the report of Dr Raeside was considered by psychologists whose reports were before the Board. She is concerned that this resulted in a prejudgement of her situation by those psychologists. Even if this was the case, this does not demonstrate error on the part of the Board. Experts such as psychologists must set out in their reports the basis upon which they reached their opinion and must also identify the material upon which they relied in reaching that opinion. The reference to Dr Raeside’s report occurs in that context.
[11] FDN 9.
The Board is required to provide procedural fairness in considering applications for parole. The requirement of procedural fairness is, however, a flexible requirement adapted to the circumstances of each case. It is a fundamental principle that an applicant should have the opportunity to present his or her case.[12] Part of this principle is that an applicant for parole should have notice of all matters upon which the decision of the Board is likely to turn, but it is not a requirement that the applicant for parole be provided with copies of all documents relied upon by the Board. The law is conveniently summarised by S Doyle JA in Vansetten v The State of South Australia[13] as follows:
In Kioa v West, Mason J referred to the need to bring to a person’s attention the critical issue or factor on which an administrative decision is likely to turn so that he or she may have an opportunity of dealing with it. Brennan J spoke of an opportunity to address the relevant matters adverse to a person’s interests which the repository of the relevant power proposes to take into account in deciding upon its exercise of that power.
While these general statements are of assistance, the particular content to be given to the requirement to accord procedural fairness will ultimately depend upon the facts and circumstances of the particular case, including the statutory framework within which the relevant decision falls to be made. The statutory prescription of some level of procedural fairness will be relevant to, but not necessarily exhaustive of, the content in respect of a particular decision. It is neither possible nor desirable to adopt any rigid or formulaic approach; the ultimate question must always be whether or not the hearing or inquiry was, on a practical assessment, conducted fairly.
In Fyfe v The State of South Australia, in considering the content of the obligation of procedural fairness in the context of a decision to separate a prisoner under s 36 of the Correctional Services Act, Kelly J emphasised that it was not necessary for the prisoner to be provided with exact copies of all documentation relied upon by the decision-maker. Applying the approach of Mason J in Kioa v West, her Honour said that what was required was that the prisoner have “sufficient information to understand the case he must meet”.
In my view, a similar approach is apposite in the present decision-making context. I do not think it was necessary for Mr Vansetten to be provided with all of the documentation available to the CRC or SOC when undertaking an assessment and determination under s 23(1) of the Act.
[Citations omitted]
[12] Lymberopoulos v Police [2006] SASC 360.
[13] [2020] SASC 158 at [89] – [92]
The affidavit of Ms Nelson KC makes it plain that the applicant was afforded an opportunity to comment upon the information that was before the Board and in particular the evidence contained in the psychological reports. The affidavit annexes the transcript of the Board’s interview with the applicant on 12 November 2024.[14] A number of propositions were put to the applicant arising from the material provided by DCS to the Board. These included a risk assessment conducted at Port Augusta Prison, the applicant’s perceived attitude towards rehabilitation programs, the applicant’s behaviour in prison including an allegation of assaulting another prisoner, past history of psychological intervention and the most recent psychological assessment. The applicant was able to comment in relation to each of those matters. It is plain from the transcript that she put her position in relation to those matters which, in many respects, differed from the position outlined in the reports. She contended, in summary, that she was the subject of discrimination and that many of the allegations were untrue or unfair when the context was considered. She further says that there were no charges laid against her for assault following investigation of the assault allegations by the police.
[14] Affidavit of Eleanor Frances Nelson KC dated 30 July 2025, Exhibit EFN 12.
The applicant contends that the Board ought to have investigated the conflict between her position and that outlined in the reports. There is however no requirement for the Board to investigate matters. The Board, as an administrative body, makes assessments based on the information provided. It is not a failure of procedural fairness to not investigate the matters raised by the applicant.
I consider that the approach the Board took in putting the information contained in the reports to the applicant and providing her with the opportunity to comment upon it is adequate compliance with the requirements of procedural fairness. It was not necessary for the Board to provide the applicant with copies of all the material before it, nor was it incumbent on the Board to investigate any conflicts between the applicants’ version and what was contained in the material. Accordingly, I reject this ground of review.
Irrelevant/relevant considerations
On much the same factual basis raised in relation to procedural fairness, the applicant contends that the Board failed to take certain matters into account or has taken into account irrelevant matters. Sections 67(3a) and (4) are the mandatory considerations that the Board is required to take into account when deciding whether to grant or refuse an application for release on parole. Many of the matters that the applicant refers to are not covered by those mandatory considerations.

The applicant contends that the Board “did not take the time to investigate fully allegations made” or to “verify” matters. As outlined above, the Board is not required to resolve or investigate the differences between the various reports and the applicant’s account. To the extent that these allegations relate to the behaviour of the applicant whilst in prison, it is apparent that the Board took these matters into account as it was required under s 67(4)(d). In so far as these allegations relate to the behaviour of others against the applicant, they were not a relevant consideration. It is also apparent that the Board took into account, as it is required to do under s 67(4)(a) and (c), the circumstances surrounding the applicant’s offending and sentencing.
Even if, the applicant made out her assertions of incorrect factual matters, the basis of the decision is apparent from the Board’s reasons. The applicant does not agree with that basis, but she has not suggested that the findings of the Board were made on the basis of no evidence. Further the applicant has not demonstrated that the Board took into account irrelevant considerations or failed to take into account relevant considerations. Accordingly, this ground of review ought to be rejected.
Unreasonableness
In Minister for Immigration and Citizenship v Li,[15] Hayne, Kiefel and Bell JJ described the concept of unreasonableness as it relates to administrative decision making as follows:
As to the inferences by an appellate court, it was said it House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
[Citations omitted]
[15] (2013) 249 CLR 332 at [76].
In this matter the Board provided written reasons for its decision. The reasons indicate the basis of the Board’s decision. The primary basis for the refusal to grant parole was that the applicant’s risk of reoffending remained unaddressed and that the applicant required further rehabilitative intervention. In my view the reasons disclosed an evident and intelligible basis upon which the Board reached the decision. I therefore reject this ground of appeal.

[2025] SASC 160

19 September 2025