Seiffert v Prisoners Review Board

Case [2011] WASCA 148

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
Respondent

THE 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…

Continue reading Seiffert v Prisoners Review Board

Sign in free to access the full text

Details
AGLC
Seiffert v Prisoners Review Board [2011] WASCA 148
Case
[2011] WASCA 148
Decision Date

CaseChat Overview and Summary

In Seiffert v Prisoners Review Board, the applicant, Mr Seiffert, sought judicial review of a decision by the Prisoners Review Board to cancel his parole order. The central issue before the court was whether the Board had breached procedural fairness obligations and statutory obligations when it cancelled the applicant's parole. This encompassed questions of whether the Board had to accord natural justice, the constitutional validity of section 115A of the Sentence Administration Act 2003 (WA), whether the Board had adopted a policy that prevented prisoners from obtaining an oral hearing, and whether the Board had failed to provide adequate reasons for its decision. The court was also asked to consider whether the Board took into account irrelevant considerations or failed to consider relevant considerations, and whether its decision was unreasonable.

The court concluded that the Board had indeed breached certain statutory obligations by failing to provide adequate notice of and reasons for its decision, and by not informing Mr Seiffert of his right to seek a review of that decision. However, the court found that these breaches did not render the decision of the Board to cancel the applicant's parole invalid or warrant setting it aside. The court emphasised that the Board's obligations to provide notice and reasons were set out in section 107B of the Act, and that these obligations had not been met in this case. Furthermore, the court held that the Board's failure to comply with these obligations did not necessarily result in a jurisdictional error or an error of law on the face of the record, but rather constituted a procedural irregularity.

The court also held that the Board had not breached any implied obligation of procedural fairness, as section 115 of the Act provided an explicit exclusion of such obligations. The court noted that the principles of statutory construction which import an implied obligation to comply with the principles of procedural fairness when 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 the High Court in Saeed v Minister for Immigration and Citizenship. However, the court found that the Board's decision to cancel the applicant's parole was not inefficacious or invalid due to the failure to comply with procedural fairness obligations, as the Board's decision was authorised by the statute.

The final orders made by the court declared that the Board had failed to comply with the obligations imposed by section 107B of the Act in three respects, and that the Board's policy or approach did not prevent it from affording an oral hearing to a prisoner. The court also ordered that the Board pay the applicant's costs, subject to certain conditions. The intervener was ordered to pay the applicant's costs in an alternative scenario.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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. 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.

Ratio Decidendi

Legal Principle Established

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)