Seiffert v Prisoners Review Board
[2011] WASCA 148
•8 JULY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SEIFFERT -v- THE PRISONERS REVIEW BOARD [2011] WASCA 148
CORAM: MARTIN CJ
McLURE P
MURPHY JA
HEARD: 2 & 3 MARCH 2011
DELIVERED : 8 JULY 2011
FILE NO/S: CACV 138 of 2010
BETWEEN: JASON ANDREW SEIFFERT
Applicant
AND
THE PRISONERS REVIEW BOARD
RespondentTHE ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Intervener
Catchwords:
Administrative law - Judicial review of a decision by the Prisoners Review Board to cancel the applicant's parole order
Whether the Board is obliged to accord natural justice and procedural fairness - Whether s 115A of the Sentence Administration Act 2003 (WA) is a privative clause - Whether s 115A is constitutionally invalid
Whether the Board adopted a policy of not allowing prisoners an oral hearing - Whether such a policy is an invalid fetter - Whether such a policy is based on a misconstruction of the Sentence Administration Act
Whether the Board failed to give proper notice of its decision as soon as practicable
Whether the Board failed to give adequate reasons for its decision - Whether a failure to do so is a jurisdictional error or an error of law on the face of the record
Whether the Board took into account irrelevant considerations or failed to consider relevant considerations
Whether decision unreasonable
Appropriate relief
Legislation:
Acts Amendment (Imprisonment and Parole) Act 1987 (WA)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Administrative Law Act 1978 (Vic)
Criminal Code (WA)
Freedom of Information Act 1992 (WA)
Industrial Relations Act 1996 (NSW)
Migration Act 1958 (Cth)
Offenders Community Corrections Act 1963 (WA)
Public Sector Management Act 1994 (WA)
Royal Commissions Act 1968 (WA)
Sentence Administration Act 1995 (WA)
Sentence Administration Act 2003 (WA)
Sentence Legislation Amendment and Repeal Act 2003 (WA)
Sentencing Act 1995 (WA)
Supreme Court Act 1970 (NSW)
Result:
Reasons published
Category: A
Representation:
Counsel:
Applicant: Dr J T Schoombee
Respondent: No appearance
Intervener: Mr G T W Tannin SC & Mr H G Leith
Solicitors:
Applicant: Thames Legal
Respondent: No appearance
Intervener: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Akers v Minister for Immigration Local Government and Ethic Affairs (1988) 20 FCR 363
Applicant X [2008] NIQB 22
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Baba v Parole Board of New South Wales (1986) 5 NSWLR 338
Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1
Carroll v Sydney City Council (1989) 15 NSWLR 541
City of Perth v DL (1996) 90 LGERA 178
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602
Dornan v Riordan (1990) 24 FCR 564
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Goldberg v Kelly 397 US 254 (1970)
Hancock v Executive Director of Public Health [2008] WASC 224
Hematite Petroleum Pty Ltd v State of Victoria [1983] HCA 23; (1983) 151 CLR 599
ID, PF & DV v Director‑General, Department of Juvenile Justice [2008] NSWSC 966; (2008) 73 NSWLR 158
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531
Lothian & Borders Police v Gemmell [2005] Scot CSOH 32
Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346
Miah v Minister for Immigration and Multicultural Affairs [2001] HCA 22; (2001) 206 CLR 57
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277
NGJF v Prisoners Review Board [2010] WASC 107
Parole Board; Ex parte Forbes (1996) 89 A Crim R 139
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R & Parole Board; Ex parte Birnie [1988] WAR 249
R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598
R v Parole Board; Ex parte Smith [2005] UKHL 1; [2005] 1 WLR 350
R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407
R v Shrestha [1991] HCA 26, (1991) 173 CLR 48
R v Westminster City Council; Ex parte Ermakov [1996] 2 All ER 302
Re Carey, Ex parte Exclude Holding Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Re Parole Board; Ex parte Forbes (1996) 89 A Crim R 139
Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Rechichi v The Parole Board of Western Australia [2001] WASC 363
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Sezdirmezoglu v Acting Minister for Immigration and Ethic Affairs (1983) 51 ALR 561
Sherlock v Lloyd [2010] VSCA 122
Varney v Parole Board of Western Australia [2000] WASCA 393; (2000) 23 WAR 187
MARTIN CJ:
Summary
The applicant, Jason Andrew Seiffert, seeks orders quashing a decision of the Prisoners Review Board (the Board) made on 6 May 2009 cancelling a parole order which had been made on 6 June 2007, and associated relief. Appropriately, the Board has filed a submitting appearance and taken no part in these proceedings other than to provide relevant documents to the court, and some evidence. The Attorney General of Western Australia has intervened to act as a contradictor and to provide the court with submissions on issues of public importance. For the reasons which follow, although Mr Seiffert has established that the Board breached statutory obligations by: (a) failing to provide him with notice of, and reasons for, its decision to cancel his parole and of his right to seek a review of its decision; (b) failing to provide him with an adequate statement of the reasons for its decision; and (c) adopting an inflexible policy with respect to the provision of an opportunity to a prisoner to appear before the Board, Mr Seiffert has failed to establish that the decision of the Board to cancel his parole was invalid or that it should be set aside by the court. The court should provide an opportunity to Mr Seiffert and the intervenor to present submissions as to the precise terms of the relief appropriately granted to give effect to these conclusions.
The facts
The facts relevant to the relief sought by Mr Seiffert were not in contention. They were established by affidavits and documentary evidence tendered without objection.
Mr Seiffert is 39 years of age. On 6 June 1996, he and a friend, who became his co‑offender, were drinking and using amphetamines. They believed that a Mr Woods was having a relationship with the girlfriend of the co‑offender. They decided to exact revenge on Mr Woods, and to that end, each armed himself with a handgun and attended a party which they believed Mr Woods was attending.
At the party, Mr Seiffert and his co‑offender confronted Mr Woods. Another person present at the party, Mr Burbidge, intervened in an attempt to diffuse the situation. Mr Seiffert fired one shot at Mr Burbidge, and three shots at the feet of Mr Woods. His co‑offender did the same. Mr Seiffert also fired one shot in the direction of Mr Woods, Mr Burbidge and other partygoers.
As Mr Seiffert and his co‑offender retreated down the driveway, they kept their weapons drawn and aimed at Mr Woods and Mr Burbidge. Mr Seiffert fired two shots in the direction of Mr Burbidge's dog. As Mr Burbidge was stooping down to take control of his dog, he was hit by a bullet in the neck, which caused his death. Mr Seiffert and his co‑offender then fled the scene.
On 25 November 1997, Mr Seiffert was convicted of murder. On 18 December 1997, he was sentenced to imprisonment for life, and a minimum period of 10 years imprisonment to be served prior to eligibility for parole was specified.
On 22 May 2007, the Governor made a parole order in respect of Mr Seiffert to take effect from 6 June 2007. The order specified that the parole period was to be two years. Accordingly, if Mr Seiffert had successfully completed his period of parole, on 6 June 2009 he would have been discharged from his term of life imprisonment (Sentence Administration Act 1995 (WA), s 74 rendered applicable by cl 5(2)(a) of the transitional provisions which are sch 1 to the Sentence Legislation Amendment and Repeal Act 2003 (WA)).
Mr Seiffert was released from custody on 6 June 2007. Following his release, he formed a relationship with a woman who later bore his child. On 1 July 2008, Mr Seiffert was involved in an altercation with this woman at her residence. During the altercation, Mr Seiffert's partner was holding their baby who was then five weeks old. Following the altercation, Mr Seiffert was charged with aggravated assault.
On 29 July 2008, as a result of the incident and the charge laid against Mr Seiffert, the Board suspended his parole and Mr Seiffert was returned to custody. However, on 11 September 2008, the Board cancelled the suspension of Mr Seiffert's parole, having received correspondence from Mr Seiffert's ex‑partner advising that she would not be attending court to give evidence against him. However, Mr Seiffert was not released from custody, as he had not been granted bail on the charge that he was facing.
On 7 October 2008, Mr Seiffert pleaded guilty to the lesser charge of assaulting his ex‑partner. He was fined $500 and released from custody.
On 29 April 2009, Mr Seiffert's ex‑partner was granted an interim violence restraining order.
On 5 May 2009, the Board was presented with a document asserting that Mr Seiffert had breached the terms of his parole. On the topic of supervision, the document reported that Mr Seiffert had been generally compliant with supervision appointments, and that random urine analysis results had revealed no substance abuse.
On the topic 'programme', the document reported as follows:
Is currently attending Relationships Australia Men's Domestic Violence Group on a weekly basis.
He has completed 17 sessions, has FTA [failed to attend] on one occasion and has had three absences which have been covered by a medical certificate.
Concerns have been raised by group facilitators that Mr Seiffert is making very limited treatment gains from his participation in the programme. They have advised that he has a tendency to blame his partner and limited capacity for self reflection. They have advised that his behaviour in the group setting can be disruptive to other group members as he seeks their support for his blaming behaviours and his presentation can be intimidating for the facilitators.
A case discussion was held between the facilitator, SCCO and Manager in Midland CJS on 5/5/09, where it was decided that due to the potential for some gains to be made through persevering with the group process, Mr Seiffert would be allowed to remain in the group, following a discussion with him about what is expected from his future participation. Discussion to be held on 7/5/09 prior to group commencement.
A total of five further sessions can be completed prior to the expiry of Mr Seiffert's parole (GAB 118).
Under the heading 'Further Comments', it was wrongly reported to the Board that Mr Seiffert had been convicted of the aggravated assault of his ex‑partner. Further, the circumstances giving rise to the charge of aggravated assault occasioning bodily harm against Mr Seiffert were set out in terms which suggest that they were taken verbatim from the statement of material facts prepared by the investigating officer in support of the charge of aggravated assault. The Board was not advised that the prosecution had accepted a plea to the lesser charge of assault, nor was the Board advised whether there had been any amendment to the statement of material facts to reflect the lesser charge. The Board was also advised that Mr Seiffert's ex‑partner had been granted an interim violence restraining order.
The report concluded with the assertion that:
Due to the nature of Mr Seiffert's current offence (murder), the nature of the DV offence committed whilst on parole, his participation and presentation during the men's DV group … at present there are serious concerns regarding the safety of his ex partner and child and it is recommended that the Board are informed of his progress (GAB 119).
On 6 May 2009, the Board decided to cancel Mr Seiffert's parole, and to issue a warrant for his arrest. A pro forma letter bearing that date addressed to Mr Seiffert at 'Unknown Facility Unknown Address' was apparently signed by someone on behalf of the Board. Curiously, the letter also bears the notation 'cc: Superintendent/General Manager, Unknown Facility, SIU'. The letter advises Mr Seiffert that his parole had been cancelled 'for the following reason(s): (a) imminent risk of violent reoffending'. The letter does not purport to inform Mr Seiffert of his right to seek review of the decision under s 115A of the Sentence Administration Act 2003 (WA) (the Act), or the effect of that section, as required by s 107B of the Act. It is surprising that the pro forma letter used by the Board does not address this statutory requirement, nor is there any evidence of any standard process or procedure used by the Board to comply with this statutory requirement. It is perhaps possible that the Board may have a practice of attaching a statement dealing with the right of review conferred by s 115A to letters giving notice of its decisions, but if so, there was no evidence of that practice before the court. On the basis of the evidence before the court, it must be concluded that no attempt was made by the Board to comply with the obligation of advising Mr Seiffert of his right of review, as required by s 107B of the Act.
On 6 May 2009, the Board also prepared a document entitled 'Order Suspending or Cancelling an Early Release Order' recording that Mr Seiffert's parole had been cancelled. The order was apparently signed by two persons on behalf of the Board. That order nominated a residential address for Mr Seiffert.
The letter dated 6 May 2009, and the order, were faxed by the Board on 6 May 2009 to a number of agencies, including the Midland Community Justice Service. No attempt was made to send the letter to Mr Seiffert's residential address apparently because of a general policy arising from the perceived risk of a prisoner absconding or resisting arrest if given notice of the cancellation of parole prior to arrest. Instead, the Board adopts the practice of providing a copy of the notice to the relevant Community Justice Services office on the basis that that office will provide the prisoner with the letter after the prisoner has been arrested. In cases in which the prisoner is already in custody, notices are addressed by the Board to the prisoner at their place of custody. However, in this case, the notice was not given to Mr Seiffert following his arrest by any officer of Community Justice Services.
On 6 May 2009, Mr Seiffert was arrested by police at the residential address specified on the Board's order. Mr Seiffert was told by police at the time of his arrest that his parole had been cancelled. He was not given any reason why his parole had been cancelled. He was conveyed to Hakea Prison, where he was given a piece of paper while he was in the sallyport. He was asked to sign the document. He cannot recall the document, and it has not been identified. However, it seems clear that it was not the notice from the Board dated 6 May 2009.
Following his arrival at Hakea Prison, Mr Seiffert was told by a senior prison officer that the only information he had was that there was a violence restraining order out against him.
On 7 May 2009, Mr Seiffert wrote to the Board requesting reinstatement of his parole. It is clear from that letter that he was under the impression that the only reason his parole had been revoked was because his ex‑partner had sought a violence restraining order against him.
On 8 May 2009, Mr Seiffert was served with the application for the violence restraining order, and the interim order, while in Hakea Prison. The application was eventually dismissed on 15 September 2009.
On 14 May 2009, Mr Seiffert wrote again to the Board. In that letter he wrote, amongst other things:
I would like the Board to please explain to me how long and exactly why I have been placed back into prison which is a devastating experience and one that is very stressful to me, my family and friends and is weighing heavy on my parents' health and my own health.
I only had 4 weeks left on my parole and have complied with all my parole conditions.
…
Could the Board please inform me of what they would like from me to have my parole reinstated?
…
There is two sides [sic] to every story and every relationship has its ups and downs.
…
As I said I am challenging this VRO and have a lot of witnesses to back up my side of the story.
…
Please reinstate my parole (GAB 56 ‑ 58).
Mr Seiffert received no reply to this correspondence. Accordingly, on 28 May 2009, solicitors acting on his behalf wrote to the Board seeking the reasons for the cancellation of his parole, and advising that Mr Seiffert was concerned that the interim violence restraining order may be the reason why his parole had been cancelled.
On 2 June 2009, Mr Seiffert again wrote to the Board inquiring as to when the review of the cancellation would occur. Also, on 2 June 2009, the Board wrote to Mr Seiffert's solicitors asserting (wrongly) that Mr Seiffert had been notified on 6 May 2009 that his parole had been cancelled 'for the following reason: Imminent risk of violent re‑offending'. The letter further advised that Mr Seiffert had requested a review of the decision and would be notified of the outcome in due course.
On 5 June 2009, Mr Seiffert's solicitors sent him a letter enclosing a copy of the letter which had been received from the Board. When Mr Seiffert received this letter, it was the first time he had been notified of the reason for the cancellation of his parole, notwithstanding that he had been in custody for a month, and had himself written on two occasions requesting a statement of the reasons for the Board's order, before his solicitors wrote. By the time Mr Seiffert received a copy of the notice, his parole period had expired.
On 10 June 2009, Mr Seiffert wrote again to the Board giving his version of the events which had taken place between himself and his ex‑partner.
On 17 June 2009, the Deputy Chairperson of the Board wrote to Mr Seiffert advising that he had treated his correspondence as a request for a review of the Board's decision under s 115A of the Act. The letter records that, in his correspondence, Mr Seiffert had expressed the belief that his parole had been cancelled as a consequence of the interim violence restraining order granted against him, although that was not in fact the reason for the Board's decision.
I digress to observe that it was apparent to the Deputy Chairperson that Mr Seiffert was under a misapprehension as to the reasons his parole had been cancelled. However, it seems that no attempt was made to ascertain whether that misapprehension, and Mr Seiffert's consequential failure to specify grounds of review falling with the scope of s 115A of the Act were due to the Board's failure to comply with the obligations imposed by s 107B of the Act (as was in fact the case).
The letter also asserts (wrongly) that Mr Seiffert was found guilty of an aggravated assault on his ex‑partner. The letter also advised Mr Seiffert, for the first time, that when the Board had reviewed his case on 6 May 2009, it had been noted that his participation within the Relationships Australia programme had been less than satisfactory as a result of which it was concluded that he represented an elevated risk to community safety.
I digress again to observe that no attention appears to have been directed to the fact that the period specified in the parole order made by the Governor granted to Mr Seiffert had expired by the time the review was conducted.
The letter concluded by advising that the Deputy Chairperson did not consider that any of the matters raised by Mr Seiffert fell within the grounds of review specified by s 115A of the Act, and that accordingly his request for review was denied. The letter further advised that this decision could not be reviewed. Of course, this made it all the more important to ensure that Mr Seiffert had been given all the information that the Board was obliged by the Act to give him prior to the review being determined against him.
Mr Seiffert then endeavoured to obtain further information by making requests for access to documents under the Freedom of Information Act 1992 (WA) directed to WA Police and the Department of the Attorney General. Mr Seiffert also made inquiries in relation to the providers of the programme in which he had participated, and received a letter from a Mr Walterman, who had been involved in the delivery of that programme, dated 2 July 2009 which asserted that the information given to the Board with respect to the extent of his participation in that programme was incorrect.
On 3 July 2009, the Chairperson of the Board provided a written report to the Attorney General relating to the cancellation of Mr Seiffert's parole (as required by the Act). In that report she referred to Mr Seiffert as having been charged with aggravated assault occasioning actual bodily harm. It is not clear whether this assertion was before the Board at the time it decided to cancel Mr Seiffert's parole, as the report provided to the Board, and the subsequent letter from the Deputy Chairperson of the Board, refer only to a charge of aggravated assault.
On 15 July 2009, solicitors representing Mr Seiffert in proceedings in the Family Court wrote to the Board requesting information relating to the determinations made by the Board in relation to Mr Seiffert's participation in the programme provided by Relationships Australia and reporting that Mr Seiffert's instructions were that he had participated satisfactorily in that programme. At about the same time, Mr Seiffert wrote again to the Board making representations to the effect that his parole should be reinstated. On 28 July 2009, Mr Seiffert wrote again to the Board asserting that it had acted unlawfully in cancelling his parole.
On 10 September 2009, the Chairperson of the Board wrote to the solicitors then acting for Mr Seiffert advising that the decision of the Deputy Chairperson of the Board to refuse Mr Seiffert's request for a review was not a reviewable decision. The Chairperson further advised:
Neither am I able to comply with your request for information upon which the Prisoners Review Board relied in reaching its decision. Under s 107B of the Act, the Board is only required to provide a prisoner with written notice of any decision and the reasons for the decision. This, the Board has already done. Further, it is also the case that under s 115 of the Act, the rules of natural justice do not apply to any act of the Board (GAB 80).
I digress to make a number of observations about these assertions. First, the fact that the Board has a statutory obligation to provide reasons for its decision does not prevent the Board from providing further information to a prisoner in an appropriate case. Second, the Board had not in fact complied with its statutory obligation to give Mr Seiffert written notice of its decision to cancel his parole as soon as practicable after the decision had been made. The consequence of the Board's failure to do so was reflected in the observation of the Deputy Chairperson to the effect that Mr Seiffert had requested his review while under the mistaken impression that his parole had been cancelled because of the grant of the interim violence restraining order. Third, on the face of the correspondence itself, the reasons given by the Board were manifestly inadequate because they did not identify the matter referred to in the letter from the Deputy Chairperson as being one of the reasons for cancellation of parole - namely, the allegation that Mr Seiffert had not satisfactorily participated in the programme offered by Relationships Australia. On the face of the correspondence, the first time Mr Seiffert was made aware of that allegation was at the time his application for review of the cancellation decision was refused, and from which there was no further right of review. Fourth, the Chairperson does not refer to the obligation imposed by s 107B of the Act to give Mr Seiffert notice of his right of review, an obligation with which the Board had not complied. Fifth, it is not correct that under s 115 of the Act the rules of natural justice do not apply to any act of the Board. While it will be necessary to deal at length with the operation and effect of that section in due course, it is clear on its face that the section only applies to functions performed by the Board under pt 2 ‑ pt 6 of the Act, and the review of the decision to cancel Mr Seiffert's parole had been conducted under s 115A in pt 10 of the Act, so the Board was obliged to comply with the rules of natural justice when conducting the review of the decision to cancel his parole.
The letter from the Chairperson went on to request that any information which conflicted with the information provided by the Deputy Chairperson in his letter refusing the application for review should be provided to the Board. Given the assertion in the letter that there was no further capacity to review the decision to cancel parole, this request can only have been for the purpose of considering that information in the context of a further report by the Board to the Minister on the subject of whether or not Mr Seiffert should be re‑released on parole.
On 17 September 2009, Mr Seiffert wrote to the Board requesting the opportunity to present his case to the Board via video link. He requested that further consideration be given to the reinstatement of his parole. On 30 September 2009, the Registrar of the Board wrote to Mr Seiffert advising once again that the decision of the Deputy Chairperson of the Board to refuse his request for a review of the Board's cancellation decision was not a reviewable decision.
The letter further observed that s 115A(7) of the Act did not allow for a video link appearance. I digress to observe that this assertion is incorrect. Section 115A(7) specifies the requirements that must be met in order to initiate a review under the section. However, it does not constrain the Chairperson or Deputy Chairperson from taking other matters relevant to the review into account, or from receiving information relevant to the review from the applicant for review by any means, including by video link.
I would also observe that at no point in any of the correspondence emanating from the Board over this period is any reference made to the fact that the parole period specified in the parole order made by the Governor had expired prior to the conduct of the review of the decision of the Board to cancel the order.
During the latter part of 2009, and the first half of 2010, Mr Seiffert and new solicitors who he engaged continued corresponding with the Board agitating against the Board's decision to refuse Mr Seiffert parole. The steps taken over this period are only relevant to the question of whether Mr Seiffert should be denied relief by reason of his delay in commencing these proceedings, which were commenced on 10 June 2010. It is sufficient for present purposes to record my conclusion that between the time Mr Seiffert was taken into custody on 6 May 2009, and the time these proceedings were commenced in June 2010, Mr Seiffert took every step reasonably open to him, and within reasonable times, especially having regard to the Board's failure to give him the notice within the time, and with the content required by the Act, and its failure to provide him with the information which he needed to meaningfully exercise the right of review conferred by the Act, and the difficulties he faced gathering the information needed to commence these proceedings.
On 26 November 2010, the Board considered whether it should recommend to the Governor that Mr Seiffert again be released on parole. It decided to recommend that he not be released. The Board had before it all representations made by Mr Seiffert, or by lawyers acting on his behalf, including representations relating to the Board's error in respect of the offence of which he had been convicted, representations relating to his participation in a programme offered by Relationships Australia, and representations as to his relationship with his ex‑partner. This further consideration by the Board goes only to the issues relating to the exercise of discretion with respect to the grant of prerogative and declaratory relief, and as to the appropriate form of any relief granted.
The Act
Mr Seiffert was sentenced before the commencement of the Act. Accordingly, under the transitional provisions contained in sch 1 to the Sentence Legislation Amendment and Repeal Act 2003 (WA), the provisions of the Sentencing Act 1995 (WA) and the Sentence Administration Act 1995 (WA), as they would have been, but for the amendments to the Sentencing Act 1995 and the repeal of the Sentence Administration Act 1995 apply to the subjects specified in cl 5(2)(a) of the schedule. Those subjects can loosely be summarised as the calculation of times at which persons are eligible for parole, the parole period, and when they are to be discharged from their sentence. However, the Act applies in respect of all other matters (cl 5(2)(b) and (d)). Section 5A of the Act sets out a number of considerations that are defined to be 'the release considerations' relating to a prisoner. Later sections of the Act require the Board to consider the release considerations when exercising certain powers and performing certain obligations, such as the obligation to give a report to the Minister in respect of a prisoner serving a life term (such as Mr Seiffert) or a term of indefinite imprisonment (see s 12A(3)).
Section 5B of the Act provides that the Board or any other person performing functions under the Act must regard the safety of the community as the paramount consideration.
As I have mentioned, s 12A of the Act obliges the Board to give the Minister a written report about a prisoner. The section specifies the times at which such reports must be provided, and in the case of prisoners sentenced to life imprisonment for murder, where a minimum period prior to eligibility for parole has been set, specifies that the report must be provided at the end of the minimum period and, if the prisoner has not been released, every three years after that. The report is required to recommend whether the prisoner should be released, and if release is recommended, the period for which the prisoner should be on parole, and the additional requirements, if any, to which the prisoner should be subject while on parole.
Section 25 of the Act provides that the Governor may make a parole order in respect of a prisoner serving life imprisonment for murder if a minimum period prior to eligibility for parole has been set, the prisoner has served the minimum period, and a report has been given by the Board to the Minister under s 12 (which empowers the Minister to request a report from the Board), or s 12A. Under the transitional provisions, the parole period is to be set under the provisions applicable prior to the legislation having been enacted in 2003. Under s 23 of the Sentence Administration Act 1995, the parole period is to be set by the Governor, and must be at least six months and not more than five years. A similar provision is contained in s 25 of the Act.
Section 28 provides that a parole order is an order that on a release date specified in the order, a prisoner is to be released on parole for a parole period specified in the order provided that he or she gives certain acknowledgements and undertakings. Section 29 sets out the standard obligations of a parole order, and s 30 sets out various additional requirements that may be imposed by the Board or the Governor (as the case may be).
Section 31 of the Act provides that unless the parole order is a parole order (unsupervised), the chief executive officer (the CEO) is required to ensure that during the parole period of a parole order, a community corrections officer is assigned to supervise the prisoner. The same section empowers the Board to direct that a prisoner need no longer be supervised during the parole period, upon a recommendation to that effect from the CEO.
Section 38 provides that the CEO may suspend a parole order during the parole period, irrespective of whether the order was made by the Board or by the Governor. Section 39 confers a similar power upon the Board. Section 40 provides that in the event of exercise of the power to suspend by either the CEO or the Board, the Board is required to specify the period of suspension, which may be fixed or indefinite, and further provides that the Board may cancel the suspension at any time before the suspension period ends.
Section 44 empowers the Board to cancel a parole order at any time during the parole period, whether the order was made by the Board or by the Governor. In the case of a parole order (unsupervised), the power to cancel cannot be exercised unless the prisoner is charged with or convicted of an offence during the parole period. Section 44 does not expressly require the Board to consider the release considerations relating to the prisoner prior to exercising the power to cancel a parole order. Accordingly, the only consideration which the Act expressly requires the Board to take into account when considering the exercise of the power to cancel a parole order is the safety of the community, in accordance with s 5B of the Act. This is, of course, not to say that the release considerations are irrelevant to the exercise of the power of cancellation, but merely to note that the Act does not expressly require each of the release considerations to be taken into account prior to exercising the power of cancellation.
Section 48 of the Act provides that if, relevantly, a parole order made by the Governor is suspended for more than 30 days, or cancelled, the Board must give the Minister, as soon as practicable:
(e)written notice of and reasons for the decision;
(ea)a summary of the grounds and any submissions in an application for review made by the prisoner under s 115A of the Act; and
(f)if the parole order has been cancelled, a report containing a recommendation as to whether or not the Governor should be advised to again exercise the power to release the prisoner on parole.
Section 65 of the Act provides that if, during the period of an early release order (which includes a parole order), the prisoner does not commit an offence for which he or she is sentenced to imprisonment and the relevant order is not cancelled, then the period of the order is taken to be time served in respect of the term of imprisonment to which it relates.
Section 66 of the Act provides that a person released under an early release order remains subject to the sentence of imprisonment to which the order relates until discharged from it. The section further provides that a person sentenced to imprisonment will be discharged from that sentence at the end of the parole period, if released under a parole order. Section 74 of the Sentence Administration Act 1995 (which applies to Mr Seiffert pursuant to the transitional provisions to which I have referred) is to the same effect. Accordingly, as I have noted, if Mr Seiffert's parole had not been cancelled on 6 May 2009, and he had not committed any offence to which he was sentenced to imprisonment before 6 June 2009 (whether or not the sentence was imposed before or after 6 June 2009), he would have been discharged from the term of life imprisonment on 6 June 2009.
Section 67 of the Act provides that if a prisoner commits an offence while subject to an early release order and is sentenced to imprisonment for that offence, the relevant order is automatically cancelled by virtue of the section. This is so even if the term of imprisonment is imposed after the period of the order, or after the date when, but for the cancellation of the order, the prisoner would have served, or be taken to have served, the term to which the order relates.
Section 69 of the Act relevantly provides that if a parole order in respect of a prisoner serving life imprisonment is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the sentence in custody, although the section does not prevent another parole order being made in respect of the prisoner. Accordingly, the effect of the Board's cancellation of Mr Seiffert's parole was to oblige him to resume serving his life sentence, although there is nothing to preclude the Governor again making an order releasing him on parole.
Section 70 of the Act relevantly provides that when an early release order is suspended or cancelled, the warrant of commitment that relates to the sentence of imprisonment in respect of which the early release order was made is again in force and authorises the arrest and detention of the prisoner.
Section 73 of the Act provides that where a parole order made by the Governor has been cancelled either by the Board, or automatically by the operation of s 67 of the Act, the Governor may make another parole order in respect of the prisoner. Section 74 contains provisions equivalent to those contained in s 66 with respect to discharge from the term of imprisonment in the event that the second parole order is successfully completed.
Part 9 of the Act creates the Board. By s 103, the Board is to comprise a Chairperson and at least two Deputy Chairpersons, community members, police officers, and officers of the public sector agency which the CEO heads. The Chairperson must be a judge or retired judge of the Supreme or District Courts. The Deputy Chairpersons must have extensive or special knowledge of matters involved in the performance of the Board's functions. Section 103(4) of the Act also sets out the attributes which a community member of the Board must have. Section 104A of the Act creates the office of registrar of the Board.
Section 106 of the Act provides that the functions of the Board are as set out in the Act, and that the Board may do all things necessary or convenient to be done in connection with, or incidental to the performance of its functions. The same section provides that members of the Board other than the Chairperson must comply with any relevant public sector standard or code of ethics established under s 21 of the Public Sector Management Act 1994 (WA) when performing functions as a member of the Board. At all relevant times, the code of ethics promulgated under that Act comprised three principles, namely:
Personal Integrity
We act with care and diligence and make decisions that are honest, fair, impartial and timely, and consider all relevant information.
Relationships with Others
We treat people with respect, courtesy and sensitivity and recognise their interests, rights, safety and welfare.
Accountability
We use the resources of the State in a responsible and accountable manner that ensures the efficient, effective and appropriate use of human, natural, financial and physical resources, property and information.
Section 107 provides that for the purpose of carrying out its functions, the Board has and may exercise all the powers of a Royal Commission appointed under the Royal Commissions Act 1968 (WA).
Section 107B of the Act provides that the Board must give a prisoner written notice of any decision made under the Act in respect of the person as soon as practicable after the decision is made, and further provides that, subject to s 114, the notice must include the reasons for the decision. Further, if the decision is reviewable pursuant to s 115A, the notice must inform the prisoner of the effect of that section. For the avoidance of doubt, s 107B(3) specifies a number of decisions to which the section applies, including decisions by the Board to cancel a parole order.
Section 112 of the Act requires the Board to provide the minister responsible for the administration of the Act with a report before 1 October each year, covering a number of matters specified in the section, including the performance of the Board's functions during the previous financial year.
Section 114 of the Act empowers a person required to give a prisoner reasons for decision to withhold any or all of those reasons if it is decided that it would be in the interest of the prisoner or any other person or the public to do so. There is no direct evidence that the Board purported to exercise that power in this case, nor could it be reasonably inferred that the power was exercised in respect of that part of the Board's reasoning process which related to Mr Seiffert's conviction as that was, of course, in the public domain nor in respect of that part of the Board's reasoning process which related to Mr Seiffert's participation in the domestic violence programme, as Mr Seiffert was advised of that aspect in the letter from the Deputy Chairperson dismissing his application for review under s 115A from which it can be inferred that this aspect was not seen as a matter of confidence.
Section 109 of the Act provides:
109. Board may require prisoner to appear before it
1.At any time while a prisoner is subject to a parole order (other than a parole order (unsupervised)) or an RRO [re‑entry release order], the Board, by order, may require him or her to appear before the Board.
2.For the purposes of subsection (1), the Board may issue a warrant to have the prisoner arrested and brought before the Board.
3.The powers in this section may be exercised whether or not the Board has amended, suspended, cancelled or otherwise made a decision in relation to the order concerned.
Section 115 and 115A are as follows:
115. Rules of natural justice excluded
The rules known as the rules of natural justice (including any duty of procedural fairness) do not apply to or in relation to the doing or omission of any act, matter or thing under Parts 2 to 6 by -
(a)the Governor; or
(b)the Minister; or
(c)the Board; or
(d)an authorised person as defined in section 108(1); or
(e)the CEO.
115A. Board may review decisions about release
(1)In this section -
reviewable decision has a meaning in accordance with subsections (2), (3) and (4).
(2)Subject to subsection (4), a decision made -
(a)by the Board not to make an early release order; or
(b)by the Board to make a parole order in which the release date is not the day when, under section 23(2) or section 93(1) of the Sentencing Act 1995, the prisoner is eligible to be released on parole; or
(c)by the Board to suspend or cancel an early release order; or
(d)by the CEO to suspend an early release order; or
(e)by the Board not to make a request under section 13(4) after receiving a report under section 13(3) or not to endorse, with or without variations, a re‑socialisation programme received under section 13(4); or
(f)by the Board as to the nature or content of a re‑socialisation programme endorsed under section 13(5) or approved under section 14(5),
is a reviewable decision.
(3)The regulations may provide that a decision of a prescribed kind made under the regulations is a reviewable decision.
(4)A decision under subsection (8), or by the Board on further considering a matter pursuant to a decision under subsection (8), is not a reviewable decision.
(5)A prisoner about whom a reviewable decision is made may request the Board to review the decision.
(6)A request may only be made on the grounds that the person who made the decision -
(a)did not comply with this Act or the regulations; or
(b)made an error of law; or
(c)used incorrect or irrelevant information or was not provided with relevant information.
(7)A request must -
(a)be in writing; and
(b)state the grounds for it; and
(c)include any submissions that the applicant wants to make to the Board about the decision concerned and the reasons for it.
(8)When a request is made, the Chairperson of the Board must consider any submissions included in it and review the decision concerned and may -
(a)confirm, amend or cancel the decision; or
(b)make another decision; or
(c)refer the decision to the Board for further consideration.
(9)The Chairperson may delegate the functions in subsection (8) to a Deputy Chairperson.
(10)A Deputy Chairperson to whom the functions in subsection (8) are delegated must not decide any question of law but must refer it to the Chairperson to decide.
(11)The Board must give the applicant written notice of any decision on a review requested under this section.
Schedule 1 to the Act contains a number of provisions relating to the Board, including a provision relating to its meetings (cl 5). The Chairperson is to decide when and where the Board meets and at a meeting of the Board, the Chairperson or a Deputy Chairperson is to preside. The quorum required for a meeting of the Board is three members including a Chairperson or Deputy Chairperson, a community member, and either a member of the public sector agency or a police officer. Questions arising are to be determined by a majority of the members present and voting. If any question of law arises at a meeting of the Board, it is to be decided by the Chairperson, or if the Chairperson is not present, referred to the Chairperson for determination.
The grounds
The grounds upon which relief was sought are contained in the order nisi. They are set out in nine numbered paragraphs, some containing a number of subparagraphs. For some reason, in the appeal books and in the written submissions filed in support of the grounds they have been reordered and renumbered, so as to comprise 13 distinct grounds. In these circumstances it is difficult to know which numbering system to use to describe the grounds. In the result, I have concluded that for the purposes of these reasons, it is preferable to identify the arguments that have been advanced under a number of distinct subject headings, rather than refer to any specific grounds by either numbering system. The issues arising from the grounds can be grouped and addressed by reference to the following subjects:
(1)procedural fairness;
(2)the Board's policy of not allowing prisoners to appear before it;
(3)the alleged failure of the Board to give notice of its decision, as required by the Act, by:
(a)not giving notice as soon as practicable;
(b)not giving notice of the effect of s 115A; and
(c)not giving adequate reasons;
(4)taking irrelevant considerations into account, failing to take relevant considerations into account and unreasonableness; and
(5)relief.
Procedural fairness
It is clear beyond argument that, but for s 115 of the Act, the Board would have been obliged to comply with the principles of procedural fairness when considering whether or not to cancel Mr Seiffert's parole. The principles of statutory construction which import an implied obligation to comply with the principles of procedural fairness whenever a statutory power to destroy or prejudice a person's rights or interests is exercised, in the absence of a clear and unequivocal provision in the statute excluding those obligations, were recently restated by French CJ, Gummow, Hayne, Crennan and Kiefel JJ in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252:
In Annetts v McCann it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power. Brennan J in Kioa v West explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:
'[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that "the justice of the common law will supply the omission of the legislature". The true intention of the legislation is thus ascertained.'
The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann.
Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West. A failure to fulfil that condition means that the exercise of the power is inefficacious. A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid.
In Annetts v McCann Mason CJ, Deane and McHugh JJ said that the principles of natural justice could be excluded only by 'plain words of necessary intendment'. And in The Commissioner of Police v Tanos Dixon CJ and Webb J said that an intention to exclude was not to be assumed or spelled out from 'indirect references, uncertain inferences or equivocal considerations.' Their Honours in Annetts v McCann added that such an intention was not to be inferred from the mere presence in the statute of rights consistent with some natural justice principles.
The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers' Union, 'governs the relations between Parliament, the executive and the courts.' His Honour said:
'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 [11] ‑ [15].' (footnotes omitted)
It is also clear beyond argument that Mr Seiffert was denied procedural fairness by the Board when it cancelled his parole. He was not given any notice of the Board's intention to consider the cancellation of his parole, or of the matters which the Board proposed to take into account in that regard, nor was he given any opportunity to respond to the allegations that had been made against him, or to put any matters before the Board for its consideration. It could not be suggested that the review conducted by the Deputy Chairperson pursuant to s 115A of the Act after Mr Seiffert became aware of the decision to cancel his parole overcame the denial of procedural fairness in connection with the cancellation decision because:
(a)the review procedure provided by s 115A is not a rehearing, but is a review on specified grounds by only the Chairperson or a Deputy Chairperson of the Board (s 115A(6);
(b)in this case Mr Seiffert was denied the opportunity to participate meaningfully in the review process because he was denied the rights conferred by s 107B of the Act and in particular:
(i)he was not given notice of the decision to cancel his parole and of the reasons for that decision as soon as practicable;
(ii)he was not given a notice which explained his right to seek a review under s 115A, or the effect of that section, and in particular, the specified grounds upon which review might be sought;
(iii)he was not provided with any meaningful information as to the matters taken into account by the Board at the time of its cancellation decision or given any reasons for the Board's decision prior to his invocation of the review process and was, as the reviewer noted, plainly under a misapprehension as to the grounds upon which the Board had acted, which prevented him from bringing this request for review within the grounds specified in s 115A.
As I have already noted, s 115 has no application to reviews conducted by the Board under s 115A of the Act, as that section is in pt 10 of the Act, and s 115 only applies to functions performed under pt 2 ‑ pt 6 of the Act. It is clear that the Board breached its obligation to comply with the rules of procedural fairness in relation to the review purportedly conducted under s 115A of the Act, for the reasons I have just given, but Mr Seiffert has not challenged that aspect of the decision‑making processes of the Board, nor sought any relief in relation to it.
Mr Seiffert also points to the Board's failure to provide him with an opportunity to be heard prior to making its decision to cancel his parole. He points in particular to s 109 of the Act which empowered the Board to require him to appear. For reasons which I will develop later, I do not consider that that section confers any right upon a prisoner to appear before the Board but rather empowers the Board to compel the appearance of a prisoner before it, should it wish to do so. In the absence of express statutory provisions, the principles of procedural fairness have a flexible content and do not inevitably and invariably require a decision‑maker to provide a person who might be affected by a decision with the opportunity for an oral hearing prior to the decision being made. The particular content of the rules of procedural fairness in any case will depend upon the nature of the power being exercised, and the factual circumstances in which the power is to be exercised: Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 ‑ 585 (Mason J), 612 (Brennan J) and Miah v Minister for Immigration and Multicultural Affairs [2001] HCA 22; (2001) 206 CLR 57 [129] (McHugh J).
So, ignoring for the moment s 115 of the Act, in the case of a prisoner on parole, the risk of the parolee absconding, or violently resisting arrest if given notice of the Board's intention to suspend parole might, in a particular case, reduce the practical content of the obligations of procedural fairness prior to a decision to suspend parole to virtually nothing. Such considerations would not, of course, justify a general practice of denying notice of possible suspension in all cases - rather, the particular content of the obligations of procedural fairness will depend upon the particular facts and circumstances of each case and the particular risks that might arise from the giving of notice to the parolee. Because the Board has the power to suspend parole prior to exercising the power to cancel, such considerations would almost never be applicable to the exercise of the power to cancel, because the prisoner could be taken into custody by the exercise of the power to suspend, and given notice of the Board's intention to consider cancellation, and of the grounds upon which cancellation was being considered, and given an opportunity to make representations to the Board prior to its decision. In the absence of s 115, while I would accept that in many cases the nature of the decision to cancel parole would render it appropriate for the prisoner to be given an opportunity to be heard in person before that decision was made, I would not accept the proposition that the rules of procedural fairness would necessitate the provision of such an opportunity in each and every case, because there may be cases in which such an opportunity would be unnecessary. On this subject, I prefer the view expressed by Kennedy J in R & Parole Board; Ex parte Birnie [1988] WAR 249, 275 to that expressed by Burt CJ (253), and to that expressed by the Court of Appeal of New South Wales in Baba v Parole Board of New South Wales (1986) 5 NSWLR 338, 345. Further, support for the view which I prefer is to be found in R v Parole Board; Ex parte Smith [2005] UKHL 1; [2005] 1 WLR 350 [35] (Lord Bingham). However, for reasons which I will develop, s 115 of the Act makes it unnecessary to resolve those competing views for the purposes of this case.
So, the critical question which arises in respect of all grounds of review based upon a denial of procedural fairness is whether s 115 has the effect that the Board was not obliged to comply with the rules of procedural fairness at the time it cancelled Mr Seiffert's parole. On behalf of Mr Seiffert it is submitted that s 115 does not have that effect for three (alternative) reasons:
(a)properly construed s 115 does not exclude the principles of procedural fairness;
(b)the principles in R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598 lead to the conclusion that s 115 did not operate to exclude the obligation to afford procedural fairness to Mr Seiffert;
(c)if, contrary to the applicant's submissions, s 115 does exclude the obligation to afford procedural fairness in cases such as this, it is invalid because it exceeds the legislative powers of the State for the reasons given in Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531.
The rules of natural justice can be loosely grouped into two general categories - those that relate to the provision of an opportunity to know and meet the case that has to be met, and those relating to the right to an impartial determination. The first category of rules are often described as the rules of procedural fairness, which is the terminology I will use, consistently with Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [40]. Mr Seiffert does not assert that there was any breach of the rules falling within the latter category. Accordingly, for the purposes of the issues relating to the proper construction of s 115, and the application of the Hickman principles, it is only necessary to consider the impact of s 115 upon those rules of procedural fairness relating to the provision of notice of the case that has to be met, and of an opportunity to meet that case. However, as the constitutional validity of s 115 is to be assessed by reference to its potential ambit, rather than its specific application to the facts of this case, I will assume, for the purposes of that argument, without being taken to decide, that s 115 has the effect of excluding all of the rules of natural justice including the rules relating to bias, in relation to the performance of all functions under pt 2 ‑ pt 6 of the Act: (cf Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 [28], [58]).
The proper construction of s 115 - procedural fairness
I have set out above a passage from the decision in Saeed, which succinctly states the principles of statutory construction which govern the interpretation of provisions purporting to exclude principles of procedural fairness. Those principles are consistent with a more general principle of statutory construction which applies to all fundamental rights, including the fundamental right to procedural fairness. That more general principle was succinctly enunciated in Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427:
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 (437).
Notwithstanding those well established principles, the submissions advanced on behalf of Mr Seiffert with respect to the construction of s 115 face the formidable obstacle that the language used in that section is unmistakable and unambiguous. It expressly asserts that the rules known as the rules of natural justice, including any duty of 'procedural fairness', do not apply 'to or in relation to the doing or omission of any act, matter or thing under Part 2-6' of the Act. It is difficult to imagine a more clear and unequivocal expression of Parliamentary intention in relation to procedural fairness.
No doubt this is because the language of the section follows the language of a similar provision in earlier legislation, being s 50 of the Offenders Community Corrections Act 1963 (WA) which was introduced by amending legislation in 1987 following the decision of the Full Court in Birnie, see: Western Australia, Parliamentary Debates, Legislative Assembly, 26 November 1987, 6739 (Mr Dowding, Minister for Public Works).
In Birnie the Full Court had applied the principle which implies the rule of procedural fairness in the absence of clear and unequivocal statutory language excluding their operation, and it is clear that the amending legislation was drawn so as to overcome that principle.
Nevertheless, a number of separate arguments have been advanced on behalf Mr Seiffert to support the proposition that s 115, properly construed, does not have the effect that the Board was not obliged to comply with the rules of procedural fairness when deciding to cancel his parole.
First, it is said, correctly, that there was a total failure to accord any form of procedural fairness to Mr Seiffert prior to cancellation of his parole. As I have noted, Mr Seiffert was not given any notice of the Board's intention to consider cancelling his parole, nor was he given any opportunity to make any representations to the Board prior to its decision to cancel his parole. It is submitted that because the section does not expressly state that it applies to a total denial of procedural fairness, it should not be construed as having that effect.
This argument must be rejected. By its express terms, s 115 excludes any obligation that would otherwise be imported by the rules of procedural fairness in respect of the performance of any function falling within pt 2 ‑ pt 6 of the Act. There is nothing in the language of the section which would suggest an intention to retain an obligation to partially comply with the rules of procedural fairness, nor are there any terms which would suggest that it was not the intention of the Parliament to totally exclude any and all obligations to comply with the rules of procedural fairness.
Second, it is submitted that because s 115 only excludes the rules of procedural fairness in relation to things done or omitted to be done 'under' pt 2 ‑ pt 6 of the Act, the section only applies to things validly done under those parts of the Act, and they will only be validly done if the rules of procedural fairness have been complied with. This argument is suggested to be something of an analogue for the reasoning adopted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476. In that case the High Court held that a privative clause, s 474 of the Migration Act 1958 (Cth), which excluded judicial review of certain decisions made 'under' the Migration Act, did not have the effect of excluding judicial review of decisions infected by jurisdictional error, because those decisions were not relevantly 'under' the Act, because they exceeded the jurisdiction conferred by the Act.
There are a number of reasons why this argument must be rejected. First, the argument is entirely circular. It presumes that s 115 does not have the effect of excluding the rules of procedural fairness for the purpose of ascertaining whether or not it does have that effect. That is because it assumes that the rules of procedural fairness apply to all acts done under pt 2 ‑ pt 6 of the Act, to underpin the proposition that anything done or not done in breach of those rules is not validly done 'under' the Act.
Second, the argument advanced on behalf of Mr Seiffert would entirely deprive s 115 of any effect. In its essence, the argument is to the effect that s 115 would only apply to exclude the rules of procedural fairness in respect of things done in accordance with those rules, with the result that the section would never have any practical application. This cannot have been what the Parliament intended when enacting the section.
Third, the analogy with the reasoning in Plaintiff S157/2002 breaks down because s 115 is not, within the scheme of the Act, a privative clause. A privative clause is a provision which purports to deprive or restrict the jurisdiction of a court to review the validity of administrative decisions or actions. Chapter III of the Constitution limits the capacity of the Commonwealth Parliament to legislate so as to restrict the jurisdiction of the courts to review the validity of things done or not done under Commonwealth legislation and, since the decision in Kirk, it has been established that ch III of the Constitution also limits the capacity of State Parliaments to restrict the jurisdiction of courts to review the validity of things done or not done under State legislation. Section 115, on the other hand, is a provision which creates or defines the scope of the duties or powers conferred upon the Board and others when exercising powers or performing duties pursuant to pts 2 ‑ 6 of the Act. As Gleeson CJ observed in Plaintiff S157/2002:
The jurisdiction of the Court to require officers of the Commonwealth to act within the law cannot be taken away by Parliament. Within the limits of its legislative capacity, which are themselves set by the Constitution, Parliament may enact the law to which officers of the Commonwealth must conform. ... Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed. But it cannot deprive this Court of its constitutional jurisdiction to enforce the law so enacted (482 ‑ 483).
...
A statute may regulate and govern what is required of a tribunal or other decision-maker ... and prescribe the consequences, in terms of validity or invalidity, of any departure. Subject to any such statutory provision, denial of natural justice or procedural fairness will ordinarily involve failure to comply with a condition of the exercise of decision‑making power, and jurisdictional error (490).
In Saeed, the High Court accepted ([14] ‑ [15], [80] ‑ [81]) the continued existence of a legislative capacity to exclude the principles of procedural fairness in relation to administrative decisions if unmistakable and unambiguous language is used.
The third construction argument advanced on behalf of Mr Seiffert asserts that s 115 should be read so as not to apply to the circumstances of his case because of a legislative intention, evident in other sections of the Act, to retain at least some of the principles of procedural fairness. Section 106 and s 107, s 107B and s 109 are relied upon to support this argument. I will deal with each in turn.
As I have noted, s 106 provides that all members of the Board other than the Chairperson must comply with any relevant public sector standard or code of ethics established under s 21 of the Public Sector Management Act. Plainly these are obligations imposed upon the individual members of the Board in respect of their performance of their functions. The section does not impose obligations upon the Board as a whole, not least because it imposes no obligation upon the Chairperson of the Board. Further, some of the qualities specified in the code of ethics promulgated under the Public Sector Management Act do not coincide with, or even significantly overlap with, the principles of procedural fairness. Accordingly, there is nothing in s 106 of the Act which would suggest that a restrictive interpretation should be placed upon s 115.
Section 107 confers upon the Board all the powers of a Royal Commission appointed under the Royal Commissions Act, for the purpose of carrying out its functions. Those powers include the power to issue a summons to compel the provision of documents or the attendance of persons who can be required to provide information on oath. Essentially these are powers which enable the Board to coerce the provision of information necessary for the performance of its functions. There is nothing in the conferral of those powers of coercion which is inconsistent with the exclusion of the rules of procedural fairness, or which would justify a restrictive interpretation of s 115.
Section 107B specifies the obligations of the Board with respect to giving notice of its decisions. I will give more detailed consideration to the section in my reasons which deal with the grounds that have been advanced relying upon the failure of the Board to comply with the section. For present purposes it is sufficient to observe that while it is possible to discern, within the terms of s 107B a legislative intention to ensure that a prisoner affected by a decision of the Board is provided with sufficient information to exercise, in a meaningful way, the right of review conferred by s 115A of the Act, such an intention is not in any way inconsistent with the intention evident in s 115 of the Act, nor would it justify a restrictive interpretation of that section. As I have already noted, s 115A is located within pt 10 of the Act, with the result that the review to be conducted in accordance with its terms is not affected by s 115, and is subject to all the rules of procedural fairness. Accordingly, the intent, evident in s 107B, to confer a right to the information necessary to meaningfully exercise the right of review conferred by s 115A is not inconsistent with the exclusion of the rules of procedural fairness from the performance of functions under pt 2 ‑ pt 6 of the Act.
Section 109 of the Act empowers the Board to require a prisoner who is subject to a parole order, other than a parole order (unsupervised) to appear before the Board. The submissions advanced on behalf of Mr Seiffert appear to construe this section as conferring a general power upon the Board to conduct an oral hearing in respect of any matter falling within its jurisdiction. While I do not doubt that the Board has such a power either pursuant to its general power to do all things necessary or convenient to be done in connection with the performance of its functions (s 106), or because of the express conferral of all the powers of a Royal Commission (s 107), it is clear that the power does not arise by reason of s 109. The power conferred by s 109 only applies to prisoners who are subject to a parole order which has an element of supervision. It will therefore not apply in many instances in which the Board is considering exercising its powers, including the power to grant parole to a prisoner who is not subject to a parole order. The fact that s 109 only applies to a limited category of cases before the Board, and in particular those cases in which a prisoner is subject to a parole order, make it clear that the purpose of the section is to empower the Board to compel the attendance of a person who would not otherwise be in custody or subject to the express direction or control of the Board. Put another way, s 109 confers upon the Board a power to compel the physical presence of a prisoner who would otherwise be at liberty. It is not a section which provides any meaningful guide to the Board's general powers of enquiry or to the procedures generally available to the Board, including its powers to conduct a hearing.
For these reasons, none of the sections of the Act identified in argument sustain the proposition that s 115 should be read down (in some unspecified manner), and this aspect of the construction argument must be rejected.
Fourth, it is submitted on behalf of Mr Seiffert that because s 115, by its express terms, only applies to functions performed under pt 2 ‑ pt 6 of the Act, it does not apply to the powers conferred upon the Board under pt 10, including the power conferred by s 109 to compel the appearance of a prisoner before the Board. This is said to support the conclusion that the Board was obliged to apply the principles of procedural fairness when considering whether or not to exercise the power conferred by s 109 to compel the appearance of Mr Seiffert.
This argument must also be rejected. The decision to cancel Mr Seiffert's parole was made pursuant to the powers conferred by s 44 of the Act. That section falls within pt 3 of the Act from which it follows that, in the exercise of that power, the Board was not obliged to comply with the rules of procedural fairness because of s 115. The fact that the Board had the power, if it wished, to compel the appearance of Mr Seiffert prior to the exercise of the powers conferred by s 44 of the Act, or indeed to conduct a full oral hearing pursuant to the powers conferred by s 106 and s 107 of the Act, is not inconsistent with the absence of any obligation to conduct such a hearing.
The fifth construction argument advanced on behalf of Mr Seiffert draws attention to the lack of any prescribed procedure or process which has to be followed prior to the exercise of the power to cancel parole conferred by s 44 of the Act. It is therefore suggested that there is no procedure or process to which s 115 can apply, as there is no 'act, matter or thing' within the meaning of that section. There are at least two reasons why this argument must be rejected. First, the act, matter or thing to which s 115 applies in this case is the decision to cancel parole. The effect of s 115 is to exclude the obligation to comply with the rules of procedural fairness prior to the exercise of that power which would otherwise be implied. Second, given the implication of such obligations in the absence of unmistakable and unambiguous statutory language, it is not to the point that no specific procedures or processes are stipulated as conditions to the exercise of the power conferred by s 44 of the Act.
It follows that all the arguments put on behalf of Mr Seiffert which would contend that the clear and unequivocal language of s 115 should be read down or otherwise restricted must be rejected.
R v Hickman; Ex parte Fox & Clinton
Hickman was concerned with the effect of a privative clause which provided that 'a decision of a Local Reference Board shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatsoever' (606). Dixon J famously observed that:
Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body (615).
It is clear from this passage, and from the reasoning given by Dixon J in support of his conclusion, that the principle is essentially a principle of statutory construction.
When privative clauses such as the regulation there under consideration are enacted, they give rise to an inconsistency between those parts of an Act which confer specific powers on a decision‑maker and define the limits of those powers and the conditions which attach to the exercise of those powers, and those parts of an Act which then apparently immunise from challenge a failure to comply with the limits imposed upon the powers. As Dixon J observed:
[W]here the legislature confers authority subject to limitations, and at the same time enacts such a clause ... it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity.
...
In considering the interpretation of a legislative instrument containing provisions which would contradict one another if to each were attached the full meaning and implications which considered alone it would have, an attempt should be made to reconcile them (616).
In another portion of his reasons Dixon J concluded that another condition of immunity from judicial review was that the decision not display jurisdictional error on its face (616). Again, this conclusion was reached on the basis of statutory construction required to overcome inconsistency between different provisions of one legislative instrument.
It follows that the principles of statutory construction enunciated by Dixon J in Hickman will only apply in cases where there is an inconsistency between one provision in the statute, such a privative clause, and other provisions in the statute, such as provisions which limit and confine the jurisdiction and powers conferred: see for example Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602, 634.
On behalf of Mr Seiffert it is asserted that s 115 is inconsistent with various other provisions of the Act, because it is in substance a privative clause, because it would exclude judicial review on the ground of a denial or procedural fairness, and because it is inconsistent with other provisions of the Act which impose at least some obligations of procedural fairness.
There are a number of reasons why this argument must be rejected. First, as I have already observed, s 115 is not a privative clause in either substance or form. It does not purport to limit the jurisdiction of a court. Rather, it purports to define the ambit of the jurisdiction conferred upon the various functionaries exercising powers under pt 2 ‑ pt 6 of the Act, and to make clear that their jurisdiction is not conditioned upon the provision of procedural fairness. 105
Second, the sections relied upon as giving rise to an inconsistency with s 115, are the same sections as relied upon in support of the construction argument to which I have referred, namely s 106, s 107, s 107B and s 109, with the addition of s 115A. The first obstacle which the argument cannot surmount is the fact that all of those sections are in pt 10 of the Act and are not therefore subject to s 115. The second insurmountable obstacle is that, for the reasons I have already given, there is no inconsistency between those sections and s 115. To the extent that those sections confer powers upon the Board, they are not inconsistent with s 115, which has the effect that the Board is under no obligation to exercise those powers. The overall effect of the provisions is to confer upon the Board a number of powers which it may or may not exercise, as it thinks fit.
The argument advanced on behalf of Mr Seiffert in reliance upon the principles enunciated in Hickman must be rejected.
Kirk v Industrial Relations Commission (NSW)
Prior to the decision in Kirk, it was generally thought that it was within the legislative competence of the Parliaments of the States to enact privative clauses which excluded judicial review, even for jurisdictional error. For example, in Darling Casino, Gaudron and Gummow JJ observed:
[A] clause which provides only that a decision may not be called into question in a court of law is construed as not excluding review on the ground that the decision involved jurisdictional error, at least in the sense that it involved a refusal to exercise jurisdiction or that it exceeded the jurisdiction of the decision‑maker. However and provided the intention is clear, a privative clause in a valid State enactment may preclude review for errors of any kind. And if it does, the decision in question is entirely beyond review so long as it satisfies the Hickman principle (633 ‑ 634).
Another consequence of the exclusion of the rules of procedural fairness is that the Board in exercising its relevant powers can fail to take into account considerations underpinning the rules of procedural fairness without invalidating the decision or rendering it unreasonable in the administrative law sense. If procedural fairness to the offender in the exercise of the substantive decision‑making process was a (mandatory) relevant consideration, the manner of decision‑making would be indistinguishable from that which would apply if the common law had not been excluded. To the extent that the reason given for the policy is unrelated to procedural fairness considerations, the appellant has also failed to establish invalidity. The evidence relied on in these proceedings establishes that the policy relating to decisions by the Board under pts 2 ‑ 6 resulted from an internal, evidence based assessment that oral hearings undermined the objectivity of its decision‑making process resulting in skewed outcomes and flawed decision‑making. That evidence based assessment was not effectively challenged. It is not an irrelevant consideration nor does it render the policy unreasonable.
I have reached the conclusions about the scope and effect of s 115 solely by reference to the statutory text and purpose. However, the construction accords with the clearly expressed legislative intent in enacting the provision (s 50 of the Offenders Probation and Parole Act 1963 (WA)) that subsequently became s 115 of the Act. The second reading speech for the bill which became the Acts Amendment (Imprisonment and Parole) Act 1987 (WA) stated:
The Birnie decision was rather surprising because the board has operated without hearings, as this Parliament clearly intended, for almost a quarter of a century. Nonetheless, in keeping with recent developments in the field of administrative law, the High Court has ruled that unless the rules of natural justice are expressly excluded by Parliament, they will be held to apply to a variety of decisions under the Parole Act. The High Court has said, in effect, that if Parliament does not like this result it must amend the Statute to expressly exclude the rules of natural justice. As the Government has previously made clear, we propose to do so. To do otherwise would require a full‑time board with drastic effects on the present decision‑making process and greatly increased costs. That, however, is a relatively minor consideration. More fundamentally, the Government takes the view that parole should continue to be available as a privilege and not a right. This requires the board to have maximum discretion in arriving at its decisions and in the process by which it does so. (Western Australia, Parliamentary Debates, Legislative Assembly, 26 November 1987, 6739 (Mr Peter Dowding, Minister for Works and Services.))
I turn now to the duty in s 107B to provide reasons for decision. I agree with the Chief Justice that Wheeler J's analysis in Parole Board; Ex parte Forbes (1996) 89 A Crim R 139, 143 ‑ 144, of the Board's duty to give reasons continues to apply, with appropriate modifications, to the current statutory regime. The duty will be fulfilled if the Board's reasons disclose to the person affected why, and in reliance on what specific material (factual and otherwise), the relevant decision was reached in sufficient detail to ensure that the statutory right of review is fully secured. The reasons given by the Board for the cancellation of the appellant's parole reflect no attempt to comply with the duty as explained in Forbes.
MURPHY JA: I am in general agreement with the reasons of Martin CJ on all the issues in the application, save in relation to the issue of the alleged 'no hearing' policy. I agree with Martin CJ's conclusion that the applicant has failed to establish that the decision to cancel his parole is vitiated by the grounds with respect to the alleged 'no hearing' policy. My reasons are these.
As to s 115A of the Act, I agree with Martin CJ that there is evidence that the chairperson of the Board has indicated that, properly construed, s 115A precludes an oral hearing in connection with a review application. I also agree with his Honour, for the reasons he gives, that that is a misconstruction of the Act, and that the Act neither expressly nor by necessary implication excludes the rules of natural justice in general, or the provision of an oral hearing in particular, in respect of reviews
undertaken pursuant to s 115A. In any case, the s 115A review decision is not the subject of challenge in this case.
As to the applicant's contention that s 109 of the Act empowered the Board to conduct oral hearings, it was said by the applicant (written submissions par 92) that s 109:
... has the important purpose of allowing parolees or ex‑parolees to present their case in relation to matters such as the cancellation of parole orders and give their side of the story ...
The applicant referred to two cases in which it was held that the relevant decision was invalid because, in effect, the inflexible policy which had been applied to the decision was inconsistent with the purpose for which the discretionary power had been created: ID, PF & DV v Director‑General, Department of Juvenile Justice [2008] NSWSC 966; (2008) 73 NSWLR 158 [3], [280] ‑ [287], [294]; Varney v Parole Board of Western Australia [2000] WASCA 393; (2000) 23 WAR 187 [1], [26], [80], [109].
I agree, for the reasons given by Martin CJ, that the Board has a power under the Act to conduct an oral hearing and that the source of the power is s 106 and, or alternatively, s 107, and that the source of the power is not located in s 109. I also agree with the Chief Justice that the purpose of s 109 is to empower the Board to compel the physical attendance or presence of a person who would not otherwise be in custody or subject to the express direction or control of the Board and who would thus otherwise be at liberty.
Furthermore, the statutory power to conduct an oral hearing is not a procedural power conferred, in relation to the Board's functions under pts 2 to 6 of the Act, for the purpose of facilitating some statutory obligation of 'allowing parolees or ex‑parolees to present their case ... and give their side of the story'. Such an obligation would be inconsistent with s 115 of the Act. By virtue of s 115, 'any duty' of procedural fairness 'does not apply' to or in relation to, relevantly, the doing or omission of any act, matter or thing under pts 2 ‑ 6 by the Board. The provision of procedural fairness, whether by oral hearing or otherwise, does not condition the valid exercise of such powers. Concomitantly, the Board has no duty to consider, from time to time and with respect to particular cases and circumstances, whether to exercise the power to hold an oral hearing for the purpose of affording procedural fairness in relation to a decision under s 44 of the Act. It could not be said that a failure to provide, or to consider whether to provide, the applicant with an oral hearing prior to the cancellation of his parole for such a purpose evinced a constructive failure to exercise jurisdiction under s 44 or a failure to have regard to a (mandatory) relevant consideration. See Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 [22], [75] ‑ [78]. In this regard, I also agree with what the Chief Justice has written at [141] ‑ [143].
As to the existence of the alleged 'no hearing' rule, the evidence in this case is, relevantly, as follows. The Board's annual report for 2009 included the following:
... After an initial period of identifying the Board's powers and obligations under the Sentence Administration Act 2003, and of understanding how the Board operated under that legislation, a number of changes have been implemented and further issues have been highlighted for consideration and improvement.
From the outset my primary focus has been on two areas of operation of the Board that I believed required attention. The first area was the application of the release considerations under s 5A and s 5B of the Act and the second area was the quality of communications with prisoners concerning the Board's decisions. To an extent, these two areas overlap.
In making the decision to release a prisoner on parole, the Board is required to apply the release considerations set out in s 5A of the Act. These are the factors that Parliament has identified as being relevant to the exercise of the power to release a prisoner on parole. They include factors such as the degree of risk that the release of the prisoner would appear to present to the safety of the community, the circumstances of the commission of the offence for which the prisoner is in custody, issues for any victim, the behaviour of the prisoner when in custody, participation and performance in rehabilitation programmes in prison, the prisoner's behaviour on previous release orders, the likelihood of the prisoner committing an offence on parole and the likelihood of the prisoner complying with the requirements of parole. Essentially, after considering all the information available to it, the Board is required to make a risk assessment applying the factors under s 5B. The Board is further required to consider whether the imposition of any conditions on release could appropriately deal with any risk factors identified. However, Parliament has also determined, as set out in s 5B of the Act, that the Board must regard the safety of the community as the paramount consideration. It can be seen that the legislation under which the Board operates requires it to consider the interests of the prisoner, the victim and the community. Often the interests of these three groups are not easily reconciled.
...
Of course, the Board is not only required to make a decision with respect to parole, it is also required to give its reasons for so doing. ...
The information available to the Board when making its decision comes from a number of sources. However, attempts are currently being made to obtain the information which is currently unavailable to the Board, such as the prosecution's statement of facts, which in the superior courts is often not identical in content to the police Statement of Material Facts with which the Board is provided. ...
Soon after the Board was established in January 2007, a process of video link interviews with prisoners was commenced. It was thought that these interviews would have the benefit of providing the Board with an opportunity to hear what a prisoner has to say about his or her plans for parole and about the benefits the prisoner may have gained from any rehabilitation programme in which he or she had participated. Board members then had the opportunity to ask questions in relation to offending patterns and explore any issues that arise from the reports and other information provided to the Board. The stated intention was also for the Board to speak to prisoners about what was required of them whilst on parole.
Unfortunately, it became apparent from a consideration of various occasions on which video links had been utilised, in particular in relation to cases where there had been a breach of parole orders granted following a video‑link interview, that appearances by prisoners by video‑link had the unfortunate consequence of undermining the objectivity necessary for sound decision making. Decisions were being made out of an understandable but inappropriate sympathy for the position of the prisoner and his or her family, rather than from a clear understanding of the prisoner's conduct and an application of the requirements under the Act. That this does occur when making decisions on a face to face basis is supported in the relevant literature. Consequently, the video‑link interviews have been brought to an end, however, with prisoners retaining the right to provide as much information as they wish in writing, either personally, or through a third party writing on a prisoner's behalf.
...
Overall there has also been an attempt to improve the quality of the administrative assistance provided to the Board both in the correspondence produced and also in dealings with people who contact the Board. The aim is that all such people, be they prisoners, victims or members of the community, can be assured they will be dealt with politely and efficiently and any information provided by them will be treated appropriately. ... (emphasis added)
As part of a programme entitled 'Law Report' on 27 July 2010 ABC Radio National broadcast an interview of the Chairperson of the Board by the presenter of the programme, Mr Damien Carrick. In the course of the interview, the following exchange took place:
Damien Carrick: It's been put to me that there have been a number of changes to the way that the board operates. Previously, there were video link‑ups between the prison and the offices where the board is sitting, and this would give the prisoner the opportunity to put their case to the board, face‑to‑face, or at least via videolink. Why has this been stopped?
[Chairperson]: Well first we have to understand the position as it was when I arrived. Firstly, my understanding is that the video link‑up only occurred in relation to applications for review. That is, if a prisoner was considered for parole and perhaps parole was not granted, the prisoner was then entitled to apply for a review. There was a practice at that time, of having video link‑ups for the review. When I took over as chairperson, I studied the provisions of the Act and my interpretation of section 115A Sub‑section 7 of the Act, which is the review provision, was that a request for review had to be in writing. And it says specifically 'A request must be in writing, state the grounds for it, and include any submissions that the applicant wants to make'. So I drew a legal interpretation, that in fact prisoners weren't entitled to have a video linkup for a review application.
Now in relation to the applications for parole, I'm informed by my staff that there was only ever a trial period of video link‑ups for applications for parole, and that was at Casuarina. And that was in fact stopped prior to my appointment. But in any event, from the files that I dealt with at the board in the months after my arrival, I was very concerned about the quality of decisions made when the offender was there present at the time.
Damien Carrick: Why?
[Chairperson]: Well it's very difficult, often, to actually look someone in the eye, and say, 'Well no, we're not going to release you', particularly perhaps members of the community who are on the board have some difficulty with that. And so you are more inclined to make an emotional decision rather than an informed decision. And I'm told by the psychologists on our board that in fact there's some literature to support the problems in decision‑making when they're made face‑to‑face. And certainly I've had some experience of that myself, listening to a person, thinking 'Well yes, I'd love to help that person', but then going away and looking at the file and thinking, 'Well actually I would not be doing my job properly if I did accede to that request'.
So in any event, it was a trial that was stopped because it wasn't found to be appropriate prior to my appointment, and the information available to me after my appointment was that it was not something I was prepared to resurrect, because I think it led to flawed decision‑making.
Damien Carrick: It's been put to me by Hylton Quayle [sic Quail] , the president of the WA Law Society, that criminal lawyers are hearing from their clients this lack of an ability to put your case face‑to‑face is of great concern to prisoners, who want to be heard, who want to be engaged with.
[Chairperson]: Right. Well the first thing I'd say about that is that there is no prevention of someone putting their case, they simply can't put it face‑to‑face with the board. What they can do is, we receive reports from the prison so they meet with prison representatives and they can speak to them and put forward any view they want about why they should be released. They also speak to prison officers, and again can put forward views. Their parole application contains their reasons why they want parole. They can put as many submissions in as they like. The only difference is is can't be done verbally, and it's recorded, it's in a record on the file, and it is in writing. And I might say of course a lot of prisoners have problems with literacy, but there are many people in the prison to assist them, there are prison peer supports and people like that, so we've not had a problem with people putting their views forward.
In terms of an anecdotal information [sic] about prisoners feeling that they are better served by appearing before the board, there was also anecdotal information available that suggested that the prisoners were of the view that if they wanted to be released, they should get a video link. So there was even anecdotally, an impression that there was this skewed outcome if you had a video link‑up. So the point I am making is that I think there are problems with the video link‑up approach, but secondly there's ample opportunity for people to put their views before the board.
Damien Carrick: What do you say to the argument that it's important to have an open and frank conversation, discussion, with the prisoner about their situation and why they are or they aren't being granted parole?
[Chairperson]: Look, there are two problems with that. Firstly, you're working on the basis that the information that you'll be given will be accurate and honest. That's not necessarily the case. The second thing is, that people can believe that they are going to do the right thing, that is, that they won't reoffend and they will comply, but the information that you have on the file doesn't make that a reasonable conclusion to draw. People can be actually telling you the truth, in the sense that they do want to not reoffend and stay with their families and not be in prison, but the risk factors are far too high for that to occur. So the difficulty is, that you're not necessarily having this open discussion that your talking about, and therein lies one of the problems. (emphasis added)
The inference I would draw from the evidence, and the finding I make, is that, relevantly, with respect to decisions concerning whether to grant or cancel parole, the Board has a practice, or in effect a general rule or policy, of providing prisoners and parolees with the opportunity to present written submissions and make written representations on their behalf, but of not providing them with the opportunity to present their case and give their side of the story at an oral hearing, either in person or by video‑link. Although it is difficult to discern the metes and bounds of the policy, I will also assume, for present purposes, without deciding, that the latter aspect of the policy, but not the former, admits of no exceptions. I will further assume, for present purposes, without deciding, that the Board did not consider whether to provide the applicant with an oral hearing (cf Minister for Immigration and Citizenship v SZGUR [68] ‑ [73]).
An aspect of the applicant's complaint, as I understand it, is that the Board had, in fact, applied such a policy to the applicant in cancelling parole in this case, by reason of which it failed to consider whether to afford him an oral hearing, prior to cancelling his parole.
The Board must be taken to have been fully cognisant of s 115 of the Act. It has been in the Act since its inception and a similar provision has been in predecessor legislation since 1987, following the Full Court's decision in R & Parole Board; Ex parte Birnie [1988] WAR 249. Section 115 was expressly referred to, albeit on the incorrect basis that it applied to 'any act of the Board', including a review under s 115A, in the chairperson's letter dated 10 September 2009. Nevertheless, I will assume that any failure to give that matter consideration was as a result of the application of the policy to which I have referred, rather than as a consequence of the Board's (correct) view that, notwithstanding its power to conduct oral hearings, the Act did not require it to give consideration to the exercise of that power for the purpose of hearing the applicant before deciding whether to cancel his parole under s 44.
Even on those assumptions, it seems to me that the legal consequence contended for by the applicant does not follow. If the Board was under no duty or obligation as a precondition to the valid exercise of the power to cancel the applicant's parole, to consider whether to conduct an oral hearing in order to allow the applicant to present his case, the consequence is that a decision made without giving consideration to that matter is not thereby rendered invalid by the statute, or to be regarded as a constructive failure to exercise jurisdiction. Even if it were the application of the policy which occasioned the failure to consider whether to conduct an oral hearing, that would not transform what is otherwise a valid decision, into an invalid one.
It is for the above reasons that I conclude that the applicant is not entitled to an order, based on the alleged 'no hearing' policy, to the effect that the decision to cancel the applicant's parole was invalid.
The applicant, however, has also sought a declaration to the effect that the Board's 'no hearing' policy 'of not causing or allowing any prisoner (including the Applicant) to appear before it ... in connection with the cancellation of parole' is itself invalid (Applicant's Minute of Proposed Amended Order Nisi pars 3.4 and 6.2).
As a preliminary observation, it is to be noted that in the two cases referred to by the applicant, viz, ID, PF & DV v Director‑General, Department of Juvenile Justice, and Varney v Parole Board of Western Australia, there appears to have been no suggestion or order to the effect that the 'policy' which had in those cases been applied to the making of the decision declared to be invalid, should itself be declared to be 'invalid'.
In any event, for the reasons given earlier, in my view, a policy which provided, in effect, for prisoners not to be given the opportunity of being heard at an oral hearing before the Board in connection with the Board's consideration of whether to cancel parole, would not itself be inconsistent with the Act and invalid.
The question of whether this is an appropriate case for other declaratory relief and, if so, its nature and scope, are matters that may be left for later consideration.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SEIFFERT -v- THE PRISONERS REVIEW BOARD [2011] WASCA 148 (S)
CORAM: MARTIN CJ
McLURE P
MURPHY JA
HEARD: 2 & 3 MARCH 2011 & ON THE PAPERS
DELIVERED : 8 JULY 2011
SUPPLEMENTARY
DECISION :20 SEPTEMBER 2011
FILE NO/S: CACV 138 of 2010
BETWEEN: JASON ANDREW SEIFFERT
Applicant
AND
THE PRISONERS REVIEW BOARD
RespondentTHE ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Intervener
Catchwords:
Consequential orders - Whether declaratory relief should be granted - Costs
Legislation:
Rules of the Supreme Court 1971, O 66 r 1
Result:
Order nisi discharged
Category: B
Representation:
Counsel:
Applicant: Dr J T Schoombee
Respondent: No appearance
Intervener: Mr G T W Tannin SC & Mr H D Leith
Solicitors:
Applicant: Thames Legal
Respondent: No appearance
Intervener: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
JUDGMENT OF THE COURT: On 8 July 2011, the court published its reasons with respect to the determination of the various issues raised by the order nisi granted in this matter ([2011] WASCA 148). In short, although the court concluded that the applicant had established that the Prisoners Review Board (the Board) had breached certain statutory obligations relating to the provision of notice of, and reasons for, its decision to cancel his parole, and of his right to seek a review of that decision, Mr Seiffert had failed to establish that the decision of the Board to cancel his parole was invalid or that it should be set aside by the court. At the time those reasons were published, the court made directions for the exchange of submissions with respect to the orders appropriately made to give effect to those reasons, and further directed the parties to advise the court whether they were content for the issues raised by those submissions to be resolved without further hearing. The applicant and the intervener have each advised the court that they do not seek a further hearing in respect of any of the issues relating to the final orders to be made. Consistently with its prior approach to these proceedings, the Board has not participated in this process.
These reasons deal with the competing submissions of the parties and provide our reasons for the final orders which will be made.
The orders proposed by the applicant
On behalf of the applicant it is proposed that orders be made in the following terms:
1.It be declared that the obligation of the Respondent pursuant to section 107B of the Sentence Administration Act 2003 (WA) ('the Act') to provide to a prisoner reasons for any decision referred to in section 107(B)(1) made in respect of him or her, should state the conclusion(s) reached and, subject to section 114, set out the findings on material questions of fact and refer to the evidence or other material on which those findings based and, if relevant, the criteria against which the available information was judged.
2.It be declared that the Respondent failed to comply with the obligations imposed by section 107B of the Act in three respects, namely by failing to provide the Applicant:
(a)with written notice of its decision on 6 May 2009 to cancel his parole as soon as practicable;
(b)with an adequate statement of reasons for that decision; and
(c)with notice informing him of the effect of section 115A of the Act.
3.It be declared that nothing in the Act or any delegated legislation made thereunder, prevents the decision-makers listed in sections 115 or l15A of the Act from affording an oral hearing (whether by video link or otherwise) to a prisoner in respect of any act, matter or thing referred to in those sections.
4.It be declared that no policy or approach put forward by the Chairperson of [the] Respondent, prevents the Respondent from affording an oral hearing (whether by video link or otherwise) to a prisoner in respect of any act, matter or thing referred to in section 115 of the Act or prevents the decision-makers referred to in section 115A from doing so in respect of any act, matter or thing under that section.
5.The order nisi be otherwise discharged.
6.Subject to paragraph 7 below, the Respondent pay the Applicant's costs, including any costs in respect of interlocutory matters, to be taxed if not agreed.
7.The Intervener pay the Applicant's costs set out in Seiffert v Prisoners Review Board [2010] WASC 239 at [23], to be taxed if not agreed.
8.Alternatively to 6 and 7, Intervener pays the Applicant's costs, including any cost in respect of interlocutory matters, to be taxed if not agreed.
We will deal with the orders proposed in turn.
Proposed order 1
The applicant submits that proposed order 1 appropriately declares the content of the obligation imposed upon the Board with respect to the provision of reasons for certain of its decisions. On behalf of the intervener, it is submitted that it is well established that declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions, or which might pertain to circumstances that have not occurred and might never happen - see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 ‑ 582. This submission should be accepted. Proposed order 1 is in the nature of an answer to an abstract or hypothetical question. The proposed order makes no particular reference to the applicant or to his rights in the circumstances that gave rise to the proceedings.
Proposed order 2
The applicant submits that these orders accurately reflect the court's conclusions and that the Board's breaches of its statutory obligations 'had important flow-on effects for the applicant … they in effect thwarted his section 115A internal review rights'. The intervener submits that proposed order 2 should not be made because it is futile and would produce no foreseeable consequences for the parties. The intervener's submission should be accepted.
The applicant does not contend that the grant of declaratory relief in the form sought in proposed order 2 would have any practical consequences. In particular, he does not contend that he would now seek to exercise any right to seek internal review of the Board's decision to cancel his parole under s 115A of the Act. As we noted in our reasons, once it is concluded that the Board's decision to cancel the applicant's parole was valid and should not be set aside, it is difficult to see how any other relief sought by the applicant could have any practical utility given that the Board has reviewed the question of whether the applicant should be recommended for parole, in the light of his then current circumstances. Accordingly, a declaration that the Board failed to provide the applicant with an adequate statement of reasons for its decision to cancel his parole more than two years ago will not have any practical consequence or utility for the applicant. Similarly, the applicant was in due course given written notice of the Board's decision to cancel his parole, and is now aware of the effect of s 115A of the Act with the result that an order declaring that the Board had breached its obligations in those respects will be of no practical utility.
Proposed orders 3 and 4
The applicant submits that proposed orders 3 and 4 accurately reflect views expressed by the court in its reasons. Whether or not that is so, the proposed orders plainly suffer the same basic defect as proposed order 1, in that they purport to answer abstract or hypothetical questions, and make no reference whatever to the rights of the applicant in the circumstances which gave rise to these proceedings. Proposed orders 3 and 4 should not be made.
Proposed order 5
As we have concluded that the declaratory relief sought by the applicant should not be granted, the order should simply record the discharge of the order nisi.
Proposed orders 6 - 8
The applicant contends that he should be awarded the costs of the proceedings because:
(a)the Board failed to comply with its statutory obligations with respect to the provision of reasons for its decision to cancel the applicant's parole;
(b)it was reasonable for the applicant to challenge the 'no hearing' rule which he asserted the Board had adopted;
(c)it was necessary for the applicant to pursue a number of contested interlocutory applications upon which he was successful;
(d)an affidavit dated 10 December 2010 was filed on behalf of the Board which went well beyond that which had been requested by the court.
Significantly, the applicant does not and could not submit that he was substantially successful in these proceedings. Accordingly, the general rule is that, as an unsuccessful party, he should not recover his costs (see O 66 r 1, Rules of the Supreme Court 1971). None of the matters advanced by the applicant provide any justification for departing from that general rule.
While the court did conclude that the Board had failed to comply with its obligation to provide reasons for its decision to cancel the applicant's parole, the applicant failed to establish grounds for any of the substantive relief which he sought. Accordingly, his partial success on the grounds relating to breach of the Board's statutory obligations following its decision to cancel his parole, are offset by his substantial failure on the various other grounds which he raised. The applicant's submissions with respect to the 'no hearing rule' were rejected by a majority of the court. In relation to the contested interlocutory applications, in one instance, an order was made against the intervener and in favour of the applicant (which requires no further order to give it effect). In other instances orders were made to the effect that the costs be in the cause, and in other instances, costs orders have not yet been made. In relation to the orders made with respect to costs in the cause, as the applicant has failed to establish an entitlement to any substantive relief, it should be concluded that the cause has been determined against him. Similarly, in relation to those matters where costs orders were not specifically made, they should be regarded as part of the cost of preparation for the substantive hearing which was determined adversely to the applicant. The assertion made with respect to the affidavit dated 10 December 2010 is not justified. The affidavit was filed in response to a direction by the court and sufficiently complied with that direction.
For these reasons, no costs orders should be made in the applicant's favour. Neither the Board nor the intervener seeks any order for costs against the applicant. Accordingly, there should be no order as to costs.
For these reasons, the orders of the court will be:
(1)Order nisi discharged; and
(2)No order as to costs.
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