Stephens v Chief Executive Officer, Department of Corrective Services
[2014] WASC 313
•8 SEPTEMBER 2014
STEPHENS -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CORRECTIVE SERVICES [2014] WASC 313
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 313 | |
| 08/09/2014 | |||
| Case No: | CIV:2141/2014 | 13 & 20 AUGUST 2014 | |
| Coram: | CHANEY J | 20/08/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Writ of certiorari issued in CIV 2097 of 2014 Application in CIV 2141 of 2014 is dismissed | ||
| B | |||
| PDF Version |
| Parties: | RACHEL CHARMAINE STEPHENS CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CORRECTIVE SERVICES PRISONERS REVIEW BOARD |
Catchwords: | Administrative Law Application for judicial review of decision to reject a request for review Denial of request for review was jurisdictional error Application for judicial review of decision to suspend parole Whether decision to suspend parole was unreasonable Whether policy was inflexibly applied |
Legislation: | Sentence Administration Act 2003 (WA) |
Case References: | Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Re Burton; Ex parte Automotion Pty Ltd (Unreported, Full Court, 7 May 1985, Library Number 5799) Re Burton; Ex parte Burns (Unreported, Full Court, 6 April 1998, Library Number 980154) Re Cock; Ex parte Diano [2014] WASC 63 Seiffert v The Prisoners Review Board [2011] WASCA 148 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CORRECTIVE SERVICES
Respondent
- Applicant
AND
PRISONERS REVIEW BOARD
Respondent
- Applicant
AND
PRISONERS REVIEW BOARD
Respondent
Catchwords:
Administrative Law - Application for judicial review of decision to reject a request for review - Denial of request for review was jurisdictional error - Application for judicial review of decision to suspend parole - Whether decision to suspend parole was unreasonable - Whether policy was inflexibly applied
Legislation:
Sentence Administration Act 2003 (WA)
Result:
Writ of certiorari issued in CIV 2097 of 2014
Application in CIV 2141 of 2014 is dismissed
Category: B
Representation:
CIV 2141 of 2014
Counsel:
Applicant : Mr A J Robson
Respondent : Mr R M Mitchell SC
Solicitors:
Applicant : Legal Aid (WA)
Respondent : State Solicitor for Western Australia
CIV 2096 of 2014
Counsel:
Applicant : Mr A J Robson
Respondent : No appearance
Amicus Curiae : Mr R M Mitchell SC
Solicitors:
Applicant : Legal Aid (WA)
Respondent : No appearance
Amicus Curiae : State Solicitor for Western Australia
CIV 2097 of 2014
Counsel:
Applicant : Mr A J Robson
Respondent : No appearance
Amicus Curiae : Mr R M Mitchell SC
Solicitors:
Applicant : Legal Aid (WA)
Respondent : No appearance
Amicus Curiae : State Solicitor for Western Australia
Cases referred to in judgment:
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Re Burton; Ex parte Automotion Pty Ltd (Unreported, Full Court, 7 May 1985, Library Number 5799)
Re Burton; Ex parte Burns (Unreported, Full Court, 6 April 1998, Library Number 980154)
Re Cock; Ex parte Diano [2014] WASC 63
Seiffert v The Prisoners Review Board [2011] WASCA 148
1 CHANEY J: The applicant, Ms Rachel Charmaine Stephens, was sentenced on 16 May 2012 by the District Court of Western Australia to a period of 2 years and 6 months' imprisonment. On 23 September 2013, she was released pursuant to a parole order issued by the Prisoners Review Board (Board). Her parole commenced on 27 September 2013, and was due to expire on the sentence maximum date of 27 September 2014.
2 On 3 June 2014, the Regional Manager of the Southwest Regional Adult Justice Services, acting as a delegate of the Chief Executive Officer (CEO) of the Department of Corrective Services (Department), decided to suspend Ms Stephens' parole. On 5 June 2014, her parole was cancelled by the Board. Ms Stephens sought a review of the Board's decision to cancel her parole, and on 23 June 2014, the Deputy Chairperson of the Board rejected her request for review.
3 In CIV 2096 of 2014, Ms Stephens sought judicial review of the Board's decision of 5 June 2014 to cancel her parole. In CIV 2097 of 2014, she sought judicial review of the Deputy Chairperson's decision of 23 June 2914 to reject her request for review. In CIV 2141 of 2014, she sought a review of the decision of 3 June 2014 to suspend her parole.
4 The three matters came before me for directions on 13 August 2014. On that day, I gave leave to counsel from the Office of the State Solicitor for Western Australia to appear in CIV 2096 of 2014 and CIV 2097 of 2014 as amicus curiae, given that the respondent in those two matters, the Prisoners Review Board, had appropriately notified the Court that it would abide by the decision of the Court. The grant of leave was consistent with the practice suggested to be desirable by the Full Court in Re Burton; Ex parte Automotion Pty Ltd1 and adopted in cases such as Re Burton; Ex parte Burns2 and Re Cock; Ex parte Diano.3 For reasons which will be explained below, I granted the relief sought in CIV 2097 of 2014, quashing the decision of the Deputy Chairperson of the Board of 23 June 2014. I indicated that I would provide full written reasons for that decision later. I adjourned the other two matters to 20 August 2014 for hearing.
5 Following my order quashing the decision of 23 June 2014, on 15 August 2014 the Chairperson of the Board carried out a fresh review of the Board's decision of 5 June 2014. He concluded that the request for review should be upheld, cancelled the Board's decision of 5 June 2014, and referred the matter back to the Board for further consideration. As a result, the decision subject of the proceedings in CIV 2096 of 2014 was no longer operative. Accordingly, on 20 August 2014, counsel for Ms Stephens appropriately applied to discontinue those proceedings, a course which I accepted.
6 As a result of those events, all that remained was Ms Stephens' application for judicial review of the decision of the delegate of the CEO to suspend her parole. That matter was fully argued before me on 20 August 2014. At the conclusion of the hearing, I decided that the application in relation to the decision to suspend parole should be dismissed, and advised the parties that I would provide my reasons for that decision in writing. These are those reasons, and also the reasons for quashing the decision of the Deputy Chairperson of the Board of 23 June 2014.
The background facts
7 Ms Stephens' term of 2 years and 6 months was imposed on 16 May 2012, but was backdated to commence on 28 March 2012. The sentence was, therefore, due to expire on 27 September 2014.
8 When Ms Stephens was released on parole on 27 September 2013, the conditions of her parole included that she must not use or be in possession of any illicit drug including cannabis, that she was required to undertake frequent and random urinalysis for all illicit substances, and that she was not to consume alcohol.
9 On 6 December 2013, Ms Stephens attended as directed for urinalysis. However, the creatinine level of the sample was too dilute. Ms Stephens' explanation was that she had consumed an amount of water in advance of the testing to ensure that she could provide a sample. She was issued with a warning letter.
10 On 4 March 2014, Ms Stephens' parole order was suspended by a departmental officer for failure to attend urinalysis as directed on two occasions, being on 26 February 2014 and 28 February 2014. She was returned to custody on 6 March 2014.
11 On 2 April 2014, the Board decided that the suspension should remain in place and her case would be reviewed no later than 14 May 2014. She was subsequently released back to parole on 16 May 2014.
12 On 29 May 2014, Ms Stephens was directed to attend for urinalysis that day. She attended in accordance with that direction, and provided a sample for analysis. The chain of custody form completed by the officer who obtained the sample recorded, wrongly, the date of collection as 28 May 2014. In addition, the chain of custody form contained an annotation 'temp did not register - temp strips (from same batch) tested okay on warm water sample'.
13 The sample was then tested at the PathWest Laboratory in Nedlands. No illicit drugs were detected in the sample. The laboratory report issued by PathWest recorded, however, that the sample was collected on 28 May 2014, and contained a note that 'temperature did not register on temperature strip'.
14 Following that report, a breach advice was created on 3 June 2014 within the Department of Corrective Services Community Business Information System (CBIS). The corrections officer creating the breach advice noted a failure to attend for urinalysis on 29 May 2014 and noted that, on 28 May 2014, Ms Stephens attended for urinalysis without a direction from her community corrections officer and provided a sample which returned a temperature which did not register on the temperature strip. The notation of a failure to attend as directed was obviously incorrect, but was based upon the information recorded on the PathWest report. It is apparent from the CBIS records that, in addition to noting the contents of the report, the officer concerned contacted PathWest and spoke to someone who confirmed (wrongly) that the attendance by Ms Stephens was on 28 May 2014 and not 29 May 2014.
15 Accordingly, the officer recommended that a breach be initiated and recorded as her reason:
History of non-compliance with urinalysis testing.
First urinalysis direction given on 29/05 and client FTA (released from prison on to her same parole on 16/05/2014).
16 In accordance with the usual practice after a corrections officer creates a breach and a recommendation of suspension of parole, the breach advice was referred to the Branch Manager to determine the action that should be taken. That was done on 3 June 2012, and the Branch Manager, who was also the delegate of the CEO, suspended the applicant's parole.
17 On 4 June 2014, Ms Stephens attended her scheduled appointment with her community corrections officer. She was told that she was required to attend for a further urinalysis, and an appointment was made for the following day, 5 June 2014. She duly attended on that date and provided a urine sample. The results of testing of that sample were not in evidence.
18 On 6 June 2014, Ms Stephens was arrested and transported back to prison.
19 On 5 June 2014, the Board wrote to Ms Stephens advising that it had that day considered her case and determined to cancel her parole order for the following reasons:
The Board considers your risk to the safety of the community to be elevated due to your failure to provide a valid urinalysis sample on 28 May 2014 and failure to attend urinalysis as directed on 29 May 2014.
20 Upon her arrest, Ms Stephens had a conversation with an officer at the prison, and as a result of that conversation became aware that an incorrect date had been recorded on the PathWest sample collection form.
21 It would appear that Ms Stephens' assertion as to the error in the date of the report was conveyed to the Department, who then made inquiries of PathWest which confirmed that the date of 28 May 2014 was an error. An amended PathWest report was then issued. It would appear that the information as to the error was then conveyed by the Department to the Board. On 12 June 2014, the Deputy Chairperson of the Board wrote to Ms Stephens advising that the Board had on that day considered her case and made a decision to note the information provided. The reasons for the decision to note the information were expressed as follows:
The Board cancelled your parole order on 3 June 2014 on the basis of the information provided by ACC (Adult Community Corrections) that you failed to provide a valid urinalysis sample on 28 May 2014 and failed to attend urinalysis on 29 May 2014. ACC had advised that you were not required to attend on 28 May 2014 but did fail to provide a valid urinalysis sample on 29 May 2014. The Board is satisfied that the reason for cancellation of your parole order was due to your failure to provide a valid urinalysis sample and that the correct date relied upon was not a determinative factor.
22 On 12 June 2014, Ms Stephens wrote to the Board. The letter commenced:
Please review my parole as it has been cancelled because of wrong information from PathWest.
23 On 23 June 2014, the Deputy Chairperson of the Board responded to Ms Stephens. The letter recited, correctly, that under s 115A(6) of the Sentence Administration Act 2003 (WA) (SA Act), a request for review could only be made on the grounds that the person who made the decision did not comply with the Act or regulations, made an error of law, used incorrect or irrelevant information or was not provided with relevant information. The letter continued:
I have considered the matters raised by you including that the information provided by PathWest was incorrect and the effect of the Board's decision on you and your family.
Section 115A(6) of Act limits the grounds upon which a request for review may be made. Having considered the matters raised in your letter I am not satisfied that any fall within the grounds set out in s 115A(6) of the Act. Accordingly, the result of your request for review is that the Board's decision is confirmed ... .
24 After some delay occasioned by the need to obtain documents through a Freedom of Information request, and to obtain legal assistance, Ms Stephens commenced CIV 2096 of 2014 and CIV 2097 of 2014 on 5 August 2014, and CIV 2141 of 2014 on 13 August 2014.
CIV 2097 of 2014
25 The application for judicial review of the decision of 23 June 2014 was made on five grounds. Those grounds were:
1. The Respondent erred in law in determining that the Applicant's request for review did not meet the statutory criteria for review.
2. The decision to reject the request for review on the basis it did not meet the statutory criteria was made ultra vires in that the Deputy Chairperson of the Respondent made a decision on a question of law which is outside the power that can be delegated.
3. The Respondent failed to allow the Applicant an opportunity to be heard to correct incorrect information.
4. The Respondent inflexibly applied a policy without consideration of the merits of the application for review.
5. The Respondent acted unreasonably by failing to reconsider the decision to cancel the parole where:
a. the allegation of missing a date for urinalysis was acknowledged to be an error; and
b. the remaining allegation which related to there not being a temperature reading on a urinalysis sample did not establish any default by the Applicant.
27 The Board's decision to cancel Ms Stephens' parole order, by virtue of s 115A(2)(c), was a reviewable decision for the purposes of s 115A. By s 115A(5), a prisoner about whom the reviewable decision is made may request the Board to review the decision.
28 Section 115A(6) provides:
(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.
(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.
31 As the amicus curiae submitted, in the present context, the discharge of the duty to review required the decision-maker to consider whether the Board had used incorrect information when it decided to cancel the applicant's parole, and if so, whether that should lead to a different position or a reference to the Board for further consideration. Rather than do that, however, the Deputy Chairperson rejected the request for review on the basis that the matters raised did not fall within the permissible grounds of review. In so doing, the Deputy Chairperson mistakenly denied jurisdiction. Such a denial amounts to a jurisdictional error.
32 It was for those reasons that I considered that ground 1 of the application should be upheld, and that the writ of certiorari quashing the decision of the Deputy Chairperson should be issued.
33 Having reached that conclusion, it was not necessary for me to consider the other grounds of review. In his written submissions, the amicus curiae submitted that grounds 2, 3 and 4 were not made out, and that while there may be arguments in relation to ground 5, it was unnecessary in the circumstances to consider that ground. Given the conclusion I had reached in relation to ground 1, and given that I did not call on the plaintiff to respond to the submissions of the amicus curiae in relation to the other grounds, in the circumstances it would be inappropriate for me to express any conclusions in relation to the remaining grounds, and it is not necessary that I do so.
CIV 2141 of 2014
34 This application seeks an order quashing the decision of the delegate of the CEO on 3 June 2014 to suspend the applicant's parole. The grounds upon which the application is made are as follows:
1. In deciding to suspend the Applicant's parole, the delegate of the Chief Executive Officer failed to take into account a relevant consideration, namely whether the supervising community corrections officer had complied with the Department of Corrective Services' urinalysis testing policy which provides:
a. Contact should be made with the offender to discuss the results; and
b. The service provider must be contacted for clarification and advice when the community corrections officer is not able to interpret the result.
2. The decision of the delegate of the Chief Executive Officer was unreasonable in that:
a. The decision to suspend parole was made without discussion of the results with the Applicant;
b. The Applicant attended to provide urinalysis on the correct day and complied with her obligations under s 76 of the Sentence Administration Act 2003 (WA);
c. The error in the urinalysis certificate as to the date when the sample was provided was not identified until after suspension of parole and so the service provider was not contacted for clarification and advice until after the decision to suspend;
d. The Applicant had been subject to urinalysis on a regular basis over a long period of time with no positive finding of drug usage;
e. The laboratory which took the sample did not meet the requirements for accreditation under s. 2 of the AS/NZS4038:2008;
f. The decision to suspend parole was made without discussing the results of the urinalysis with the Applicant, clarification of results with the service provider and was made prior to the Applicant's meeting with her Community Corrections Officer and prior to the urinalysis test 05.06.14.
3. The decision of the delegate of the Chief Executive Officer ('the delegate') to suspend parole was made as a result of an inflexible application of policy without proper consideration of the merits of the applicant's case:
a. The Department of Corrective Services ('the Department') has a urinalysis policy and an enforcement policy which provides:
i. Invalid urinalysis test results are addressed in a manner as would have occurred had the results identified positive for drug use and the enforcement policy applies;
ii. All incidents of non-compliance must be referred to the Prisoners Review Board;
iii. If the recommendation is to suspend the order the Department must undertake a suspension.
b. In the present case there was no evidence of the Applicant being a danger to the safety of the community other than the allegation that she had attended for urinalysis on a day other than the day required and the allegation of a void sample;
c. These allegations are the sole reasons for the suspension of parole;
d. The delegate therefore considered the allegations to be determinative of the statutory discretion to suspend parole and in that way inflexibly applied policy with the result that the delegate acted outside of jurisdiction.
Ground 2 - unreasonableness
37 In approaching this ground, it is necessary first to consider the sense in which it is asserted that the decision concerned was unreasonable. As French CJ observed in Minister for Immigration v Li,4 vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. His Honour referred to characterisation of decisions affected by bias, failure to accord procedural fairness, or failure to take into account relevant material which the decision-maker is bound to take into account, as species of unreasonableness. Beyond such types of unreasonableness, however, is unreasonableness of the type referred to by Lord Green MR in Associated Provincial Picture Houses Ltd v Wednesbury Corp,5 namely where the decision-maker comes to a conclusion so unreasonable that no reasonable decision-maker could ever have come to it. The matters set out in ground 2 suggest that it is unreasonableness of that character which is asserted by Ms Stephens.
38 It must, of course, be borne in mind that unreasonableness in the context of judicial review is concerned with the extent of power and the legality of the exercise of that power. The Court must be conscious not to exceed its supervisory role by undertaking a review of the merits of an exercise of discretionary power.6
39 Ground 2 sets out the factors which are said to make the decision of the delegate of the CEO unreasonable. The first matter referred to is that the decision to suspend parole was made without discussion of the results with the applicant. That is correct. The delegate of the CEO, who made the decision to suspend Ms Stephens' parole, attached to her affidavit several extracts from the Department's Adult Community Corrections Handbook (Handbook). Chapter 8 of the Handbook deals with urinalysis. At page 4, the Handbook provides that a case manager must follow the enforcement policy on receipt of urinalysis results, and that 'contact should be made with the offender to discuss the results'. It further provides that when the community corrections officer is not able to interpret the result, the service provider must be contacted for clarification and advice. There is, however, a footnote to the statement that contact should be made with the offender. The footnote provides that consideration should be given to any adverse risks associated with advising an offender of the urinalysis results, including any risks to the community.
40 The delegate of the CEO deposed that she did give consideration to contacting Ms Stephens. She considered there would be an unacceptable risk to the community if she did discuss the urinalysis results with Ms Stephens. In forming that view, she had regard to the material which was contained within the Department's file, including pre-sentence reports and sentencing remarks of the Judge when sentencing Ms Stephens for her current offence. The delegate of the CEO also had regard to the fact that Ms Stephens has a history of violence, including prior offences of assaulting and obstructing public officers. In my view, there was a reasonable foundation for those concerns having regard to the contents of a psychological pre-sentence report which was on the Department's file and from the transcript of the sentencing Judge's remarks. The decision by the delegate of the CEO not to advise Ms Stephens of the outcome of the urinalysis and the proposal to cancel her parole was one which was reasonably open to her in light of the material to which she had access.
41 The second, third, fourth and fifth factors relied upon as demonstrating unreasonableness are, in substance, simply circumstances which go to the merits of the decision which was made. The affidavit of the delegate of the CEO identifies a number of background matters revealed by the documents to which she had regard in making the decision to suspend. Those matters were helpfully summarised by counsel for the respondent in his written submissions as follows:
(a) The Applicant was serving a sentence for violent offences committed when she twice drove her car (with children in the rear) at the victim who she thought was threatening her family;
(b) As the sentencing judge noted, the Applicant had a prior criminal record which details offences of a physical or violent nature, including assaulting public officers;
(c) At the time of sentencing, the Applicant had been assessed as being at high risk of violent reoffending, although a later assessment was that the risk had reduced;
(d) The Applicant was released on parole on 27 September 2013 with the conditions referred to above, including to undertake urinalysis;
(e) The Applicant produced a dilute sample when directed to undertake urinalysis on 6 December 2013, which led to a warning letter being issued;
(f) The Applicant had failed to attend urinalysis as directed on 25 and 28 February 2014, which led to the suspension of her parole order;
(g) The Applicant was re-released on the parole order on 16 May 2014;
(h) On 29 May 2014 the Applicant failed to attend the first urinalysis to which she had been directed since her re-release; and
(i) The Applicant had supplied a void sample on 28 May 2014, from which it was open to infer that the Applicant had submitted a sample designed to conceal illicit drug use.
42 Those circumstances, to which the delegate of the CEO had regard, provided a reasonable basis and explanation for the decision which she took to suspend Ms Stephens' parole without first discussing the results with her.
43 The fifth factor relied upon by Ms Stephens is that the laboratory which took the sample did not meet the requirements for accreditation under s 2 of the AS/NZS4038:2008. The basis upon which the existence of that fact was said to make the decision unreasonable was not elaborated on in either written or oral submissions on behalf of Ms Stephens. In my view, that fact, either alone or in combination with the other factors referred to in ground 2, does not suggest that the decision to suspend Ms Stephens' parole was unreasonable.
44 Ground 2 of the application is not made out.
Ground 3 - inflexible application of policy
45 The principles relating to invalid fetter of a discretionary power by the inflexible application of policy were discussed by Martin CJ in Seiffert v The Prisoners Review Board7where his Honour said:
The legal principles concerning the invalid fetter of a discretionary statutory power have been conveniently stated by Lord Browne-Wilkinson in R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407:
When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise (496 - 497).
This is of course not to say that it is impermissible for a decision-maker vested with a discretionary power to develop criteria for the exercise of the discretion in the form of a policy relating to its exercise: see for example Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277, 289 (Gleeson CJ). However, consistently with the principles relating to invalid fetter of a discretionary power, any such policy must admit of the possibility of exception depending upon the circumstances of a particular case.
46 In this case, Ms Stephens contends that the Department has a urinalysis policy and enforcement policy to the effect set out in par (a) of ground 3, which is set out above. The policy is said to emerge from the provisions of various chapters of the Handbook. It is said that these policies reflect a more general policy to adopt a tougher approach in relation to parole breaches, which the applicant says is evidenced by various documents attached to the affidavit of Frances Eloise Allam, sworn on 19 August 2014 and filed in this proceeding. Those documents include several media reports, Hansard extracts and annual reports of the Prisoners Review Board of 2011, 2012 and 2013. The policy is said to be illustrated by various parole cancellation decisions published on the Prisoners Review Board website.
47 It is submitted by the applicant that, in deciding to suspend her parole, the delegate of the CEO inflexibly applied the policy referred to. There are a number of reasons why that submission cannot be upheld.
48 The first is that, assuming that a policy in the terms set out in par (a) of ground 3 is in place, nothing in the policy as expressed mandates any particular outcome in relation to a decision as to whether or not to suspend.
49 The second is that the evidence of the delegate of the CEO, who made the decision to suspend, demonstrates that she had regard to many factors, including those set out above at [41], before making the decision to suspend. The essential proposition advanced by the applicant appears to be that because an invalid urinalysis sample was reported, suspension of parole occurred, in effect, automatically in accordance with policy, and there was therefore no proper exercise of discretion. That contention is simply not borne out by the evidence.
50 The third difficulty is that the history of Ms Stephens' parole suggests that suspension of parole was not an invariable outcome of the provision of an unsatisfactory sample, or of non-attendance for urinalysis. On 6 December 2013, when Ms Stephens provided a sample which was too diluted for testing, a warning letter was issued. Her previous suspension of parole occurred after the second of two failures to attend urinalysis on 26 and 28 February 2014 respectively. It is therefore apparent that the first failure to attend did not result in suspension. There is thus no reason to conclude that the decision to suspend parole on the basis of the information before the decision-maker on 3 June 2014 was simply an automatic response to that information.
51 Ground 3 is not made out.
Conclusion
52 It was for those reasons that I ordered that the application in CIV 2141 of 2014 should be dismissed.
1Re Burton; Ex parte Automotion Pty Ltd (Unreported, Full Court, 7 May 1985, Library Number 5799) 2 (Burt CJ).
2Re Burton; Ex parte Burns (Unreported, Full Court, 6 April 1998, Library Number 980154) 4 (Malcolm CJ).
3Re Cock; Ex parte Diano [2014] WASC 63.
4Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 350.
5Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, 234 (Lord Greene MR).
6Minister for Immigration and Citizenship v Li [2013] HCA 18 [26]; (2013) 249 CLR 332, 363 (Hayne, Kiefel & Bell JJ); Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 36 - 37 (Brennan J).
7Seiffert v The Prisoners Review Board [2011] WASCA 148 [123] - [124].
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