Tulloh v Chief Executive Officer of the Department of Corrective Services - [2020] WASCA 10

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   TULLOH -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES [2020] WASCA 10
CORAM:   MURPHY JA
BEECH JA
PRITCHARD JA

HEARD:   2 DECEMBER 2019
DELIVERED          :   30 JANUARY 2020
FILE NO/S:   CACV 44 of 2018
BETWEEN:   MICHAEL TULLOH
Appellant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES
First Respondent
THE STATE OF WESTERN AUSTRALIA
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LE MIERE J
Citation: TULLOH -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES [2018] WASC 105
File Number            :   CIV 1686 of 2015

Catchwords:

Administrative law - Whether prisoner detained without lawful authority - Where prisoner's parole had been cancelled - Where cancellation order subsequently found to be invalid - Whether invalid decision to cancel parole meant that prisoner's subsequent detention was unlawful

Legislation:

Sentence Administration Act 1995 (WA), s 21, s 68, s 69, s 71, s 73, s 74
Sentence Administration Act 2003 (WA), s 44, s 49, s 68, s 69, s 70, s 115A, s 116, s 120
Sentencing Act 1995 (WA), s 95
Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 29, sch 1 cl 1, sch 1 cl 5, sch 1 cl 9

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	H Kirimof
First Respondent	:	F B Seaward & P D Spragg
Second Respondent	:	F B Seaward & P D Spragg

Solicitors:

Appellant	:	Corporate Counsel Lawyers
First Respondent	:	The State Solicitor's Office (WA)
Second Respondent	:	The State Solicitor's Office (WA)

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

Bull v Attorney General (NSW) [1913] HCA 60; (1913) 17 CLR 370
IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1
Jadwan Pty Ltd v Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1
King v Piper, Director General, Department of Justice WA [2004] WASCA 218; (2004) 147 A Crim R 394
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232
Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476
R v Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426
Tulloh v Chief Executive Officer of the Department of Corrective Services [2014] WASC 368
Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105
Tulloh v Prisoners Review Board [2014] WASC 239
Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260

JUDGMENT OF THE COURT:

Introduction

This is an appeal against the decision of Le Miere J in Tulloh v Chief Executive Officer of the Department of Corrective Services[1] (primary decision).
[1] Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105.
The primary proceedings concerned a claim for false imprisonment by the appellant (Mr Tulloh) against the first respondent (CEO) and the second respondent (State) arising from his incarceration following a decision to cancel his parole.
For the purposes of the primary proceedings, Le Miere J dealt with a preliminary question framed in the following terms:[2]
[2] Primary decision [7].
Was the detention of [Mr Tulloh] by the [CEO] between 8 December 2012 and 4 July 2014 done without lawful authority?
8 December 2012 is the date upon which Mr Tulloh's sentence was due to expire if he was a prisoner whose parole had not been cancelled.[3] 4 September 2012 is the date upon which Mr Tulloh's parole was cancelled by the Prisoners Review Board (Board's Cancellation Order).[4] 4 July 2014 is the date when Chaney J determined in related proceedings[5] that the Board's Cancellation Order should be quashed.[6]
[3] Primary decision [5].
[4] Primary decision [1].
[5] Tulloh v Prisoners Review Board [2014] WASC 239 (Tulloh No 1).
[6] Tulloh No 1 [108].
Le Miere J answered the preliminary question as follows: 'the detention of [Mr Tulloh] by the [CEO] between 8 December 2012 and 4 July 2014 was done with lawful authority'.[7]
[7] Primary decision [8].
Mr Tulloh contends that the primary judge erred. In broad terms, the appellant contends that the appeal raises the question of what is the status, or effect, of a decision made in excess of jurisdiction (relevantly the Board's Cancellation Order of 4 September 2012) during the period before it was quashed (relevantly the period to 4 July 2014). The CEO and the State characterise the issue more specifically. According to the CEO and the State, in order to answer the preliminary question, the judge had to consider whether the authority of the CEO to detain Mr Tulloh between 8 December 2012 and 4 July 2014 was dependent on the validity of the Board's Cancellation Order of 4 September 2012, or merely upon the fact that it was made.[8] As explained below, that issue is decisive of the appeal.
Mr Tulloh requires an extension of time to appeal pursuant to s 60(1)(f) of the Supreme Court Act 1935 (WA). The application for leave to appeal was referred to the hearing of the appeal.[9]
The appeal was originally listed for hearing on 15 February 2019. It was adjourned part‑heard because, as Mr Tulloh's counsel accepted, it was apparent that inadequate attention had been directed to the applicable statutory framework upon which most of the arguments would turn. On that occasion, the court ordered that the appellant file a substituted appellant's case and that the respondents file a substituted respondents' answer, and adjourned the appeal. These reasons deal with the parties' substituted cases. For the reasons which follow, whilst leave to appeal should be granted, the appeal should be dismissed.

Factual background[10]

9 December 2002 - Mr Tulloh's sentence commences

[8] Respondents' substituted submissions, par 3; amended WB 40.

[9] Orders of Murphy JA dated 2 August 2018.

[10] The background, unless otherwise indicated, is taken from the findings of fact made by Le Miere J in the primary decision, and Chaney J in related proceedings Tulloh No 1 and Tulloh vChief Executive Officer of the Department of Corrective Services[2014] WASC 368 (Tulloh No 2).

By a sentence on 13 December 2002, backdated to commence on 9 December 2002, Mr Tulloh was sentenced to a 15 year term of imprisonment following a conviction for possession of methamphetamine with intent to sell or supply. The operation of the relevant legislative provisions applicable at the time and identified below meant that Mr Tulloh would be entitled to a one-third remission of his sentence so that he would serve 10 years (to 8 December 2012) of the 15 year head sentence (to 8 December 2017).[11]
[11] Tulloh No 1 [1]; Tulloh No 2 [2].
If parole were granted, this would involve Mr Tulloh spending two years on parole after eight years in custody, so that if his parole was successfully completed, he would be released after a total of 10 years from the time of his sentencing (ie released on 8 December 2012).[12]

November/December 2010 - Mr Tulloh obtains parole

[12] Tulloh No 2 [2].

On 25 November 2010, Mr Tulloh was granted parole. On 8 December 2010, Mr Tulloh was released on parole (ie, 2 years before his service of 10 years of the head sentence).[13] The parole expiry date was 8 December 2012.[14] Upon successful completion of the parole period (ie, the period to 8 December 2012), his sentence would have been fully served.[15]
[13] Tulloh No 1 [2], [32].
[14] Tulloh No 1 [32].
[15] Tulloh No 1 [2].
It was a condition of Mr Tulloh's parole that he not use or possess any illicit drug and submit to urinalysis.[16]
[16] Tulloh No 1 [3].
Mr Tulloh accepts that his release on parole was regulated by the Sentence Administration Act 2003 (WA) (SA Act 2003).[17]

30 August 2012 - suspension of parole by CEO's Suspension Order

[17] Appellant's substituted submissions, par 13; amended WB 18.

On 28 August 2012, Mr Tulloh provided a urine sample for analysis which tested positive for methylamphetamine.[18]
[18] Tulloh No 1 [4].
As a result, on 30 August 2012, a delegate of the CEO suspended Mr Tulloh's parole (CEO's Suspension Order).[19] The CEO's Suspension Order was expressed to be for an indefinite period. An arrest warrant was also issued.[20]
[19] Tulloh No 1 [4]; Tulloh No 2 [3].
[20] Tulloh No 2 [3]; BB 40.
Mr Tulloh accepts that the suspension and arrest were governed by s 38 and s 70 of the SA Act 2003.[21]

4 September 2012 - Board's Cancellation Order

[21] Appellant's substituted submissions, par 17; amended WB 19.

On 4 September 2012, the Board made the Board's Cancellation Order.[22] The Board cancelled Mr Tulloh's parole pursuant to s 44 of the SA Act 2003,[23] and issued a warrant for Mr Tulloh's arrest on the same day.[24]
[22] Primary decision [1].
[23] Tulloh No 1 [59].
[24] BB 43.
The effect of the Board's Cancellation Order was that Mr Tulloh was required to serve the full term of imprisonment of 15 years, and was not entitled to be released until he had served the whole of that term or was otherwise released early on parole again.[25]

11/12 September 2012 - Review Decision

[25] Tulloh No 1 [5]; Tulloh No 2 [4].

On 11 September 2012, Mr Tulloh wrote a letter to the deputy chairperson of the Board, requesting a review of the Board's Cancellation Order under s 115A of the SA Act 2003.[26]
[26] Tulloh No 1 [107].
On 12 September 2012, the deputy chairperson of the Board advised Mr Tulloh that it had that day affirmed the Board's Cancellation Order on review (Review Decision).[27]

4 October 2012 - arrest and return to custody

[27] Tulloh No 1 [46].

On 4 October 2012, Mr Tulloh was arrested and was returned to the custody of the CEO pursuant to the warrant of commitment.[28]
[28] Primary decision [1], [16]; BB 43.
During November 2012, a solicitor wrote on Mr Tulloh's behalf to the Board making a fresh application for parole.[29] On 21 December 2012, the deputy chairperson of the Board denied the request, reciting the fact that the Board's decision of 4 September 2012 to cancel parole had been reviewed and confirmed by a deputy chairperson on 12 September 2012 and that the latter decision could not be reviewed.[30] Subsequent attempts by Mr Tulloh through his solicitors to have a fresh parole order made were unsuccessful on the basis that he was unable to demonstrate a change in circumstances.[31]

Tulloh No 1 - quashing of the Board's Cancellation Order on 4 July 2014

[29] Tulloh No 1 [45].

[30] Tulloh No 1 [46].

[31] Tulloh No 1 [51].

On 20 December 2013, Mr Tulloh commenced proceedings in the Supreme Court against the CEO and the Board seeking judicial review of (1) the Board's Cancellation Order, and (2) the Review Decision.[32]
[32] Tulloh No 1 [7], [10], [53].
Chaney J found that (1) the Board's Cancellation Order was made under s 44 of the SA Act 2003, and (2) that s 115A of the SA Act 2003 applied to Mr Tulloh's application for review of the Board's Cancellation Order.[33]
[33] Tulloh No 1 [59] ‑ [60].
On 4 July 2014, Chaney J found that the Board's Cancellation Order and the Review Decision were affected by jurisdictional errors of law and quashed the Board's Cancellation Order and the Review Decision: Tulloh v Prisoners Review Board (Tulloh No 1).[34] Chaney J also ordered that the matter be remitted to the Board to reconsider the matter.[35]
[34] Tulloh v Prisoners Review Board [2014] WASC 239 [108]; primary decision [3]. See also the orders of Chaney J in CIV 2948 of 2013 dated 4 July 2014.
[35] See the orders of Chaney J in CIV 2948 of 2013 dated 4 July 2014.
Chaney J did not, and was not asked to, consider the effect of the quashing on the lawfulness of Mr Tulloh's detention.[36]

Continued imprisonment of Mr Tulloh after 4 July 2014

[36] Appellant's substituted submissions, par 28; amended WB 20.

Because no applications for Mr Tulloh's release were made, Mr Tulloh remained in prison pending the Board's reconsideration of the Board's Cancellation Order pursuant to Tulloh No 1.[37]
[37] Appellant's substituted submissions, pars 27 - 28; amended WB 20.
On or around 8 July 2014, Mr Tulloh was advised that the CEO and the Board had updated his sentence status, and that in the view of the CEO and the Board, Mr Tulloh was a prisoner whose parole had been cancelled, and he was liable to serve the whole of the original sentence (15 years) to the expected release date of 8 December 2017.[38]

Tulloh No 2 - habeas corpus and Mr Tulloh's release from prison on 22 September 2014

[38] Primary decision [4]; Tulloh No 2 [5].

On or around 30 July 2014, Mr Tulloh applied for a writ of habeas corpus ad subjiciendum against the CEO and the Board on the ground that the term of imprisonment under which he was being detained had expired on 8 December 2012, and that consequently his continued detention after 8 December 2012 was unlawful.[39] The matter was heard again by Chaney J. Chaney J ordered that Mr Tulloh be released from custody forthwith: Tulloh v Chief Executive Officer of the Department of Corrective Services (Tulloh No 2).[40]
[39] Primary decision [4]; Tulloh No 2 [1].
[40] Tulloh v Chief Executive Officer of the Department of Corrective Services [2014] WASC 368.
Chaney J said that what could be extracted from Minister for Immigration and Multicultural Affairs v Bhardwaj[41] is that the quashed decision ought to be taken to have no legal effect from its inception, subject perhaps to the need to consider the context and the legislation under which the decision was made.[42]
[41] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597.
[42] Tulloh No 2 [29].
On 22 September 2014, Chaney J granted a writ of habeas corpus. His Honour held that 'the effect of the decision to quash the [Board's Cancellation Order] was that the [Board's Cancellation Order] was ridded of any legal effect from the time it was made'.[43] Mr Tulloh's continuing detention was thus unlawful. Chaney J, however, expressly declined to determine when the unlawful detention first occurred and said that it was sufficient that there be an order that Mr Tulloh be released from custody forthwith.[44]
[43] Tulloh No 2 [35].
[44] Primary decision [4]; Tulloh No 2 [39] - [40].
On 22 September 2014, Mr Tulloh was released from custody.[45]
[45] Primary decision [4].

Primary proceedings

On 11 May 2015, Mr Tulloh commenced the primary proceedings seeking damages for the tort of wrongful imprisonment. Mr Tulloh claimed that his imprisonment was unlawful from 8 December 2012 (the date his sentence was to expire had his parole not been cancelled) to 22 September 2014 (the date of his release).[46]
[46] Primary decision [5].
The respondents admitted that Mr Tulloh was detained without lawful authority from 4 July 2014 (the date of the decision of Tulloh No 1) to 22 September 2014 (the date of his release following Tulloh No 2). The respondents denied that Mr Tulloh was detained without lawful authority between 8 December 2012 to 4 July 2014.[47]
[47] Primary decision [6].
It was common ground before Le Miere J that if, immediately prior to 8 December 2012, Mr Tulloh was a prisoner whose parole had not been cancelled, he was entitled to be released on 8 December 2012, but if he was a prisoner whose parole had been cancelled, he was not entitled to be released until 8 December 2017.[48]
[48] Primary decision [11].
The principal issue was, in effect, whether the CEO had lawful authority to detain Mr Tulloh prior to the Board's Cancellation Order being quashed.
The hearing of the primary proceedings on the preliminary question proceeded on the basis that if the Board's Cancellation Order was a nullity (in the sense that it had no relevant legal consequence), then the CEO had no lawful authority to detain Mr Tulloh after 8 December 2012. But if the decision had effect until quashed, then the CEO had lawful authority to detain Mr Tulloh until the court quashed the Board's Cancellation Order on 4 July 2014.[49]
[49] Primary decision [11].

Le Miere J's findings

The judge considered that the effect of the authorities on jurisdictional error and invalidity, including Bhardwaj, Plaintiff S157/2002 v Commonwealth[50] and Jadwan Pty Ltd v Department of Health and Aged Care,[51] is that:[52]
1.An administrative decision which involves jurisdictional error is legally invalid.
2.An administrative decision which is legally invalid does not necessarily have no legal effect unless and until it is set aside or declared to be invalid.
3.Whether a legally invalid decision has any relevant legal effect before it is set aside or declared to be invalid depends upon the statutory framework under which and the context in which the decision is made.
[50] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.
[51] Jadwan Pty Ltd v Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1.
[52] Primary decision [28].
The judge said that to determine the validity of the CEO's determination of the release date and detention of Mr Tulloh after 8 December 2012, but prior to the quashing of the Board's Cancellation Order, it was necessary to examine the provisions of the relevant legislation and their context.[53]
[53] Primary decision [41].
The judge found that the Board's Cancellation Order was effective until it was quashed:[54]
I find that the determination of [Mr Tulloh's] release date and the lawful authority of the [CEO] to detain [Mr Tulloh] until that release date is not dependent on the validity of the cancellation order but merely upon the fact that it was made. Put another way, the legal validity of the cancellation order is not a precondition for the [CEO] to determine a prisoner's release date based on the cancellation order and detain a prisoner after a cancellation order has been made in fact.
[54] Primary decision [42].
The judge made that finding for three reasons.
First, the statutory framework in the SA Act 2003 indicated that a legally invalid cancellation order has legal consequences, and is not 'utterly without existence or effect in law'. The judge referred to the Board's ability, under s 115A of the SA Act 2003, to review a decision on the grounds that the Board did not comply with the Act or regulations, made an error of law, or used incorrect or irrelevant information or was not provided with relevant information. His Honour said that a legally invalid decision must continue to have some effect as a 'reviewable decision'. Further, the wide power conferred upon a judge by s 49 of the SA Act 2003 to resolve certain doubts or difficulties in relation to a legally invalid cancellation order, indicated that a legally invalid cancellation order has legal consequences, and is not without existence or effect in law.[55]
[55] Primary decision [43].
The second reason was that the statutory framework in the SA Act 2003 indicated an intention that a cancellation order be relied and acted upon by persons other than the Board.[56] For example, a prisoner may be arrested and returned to custody pursuant to s 70(1). Further, the CEO must determine the prisoner's release date, and hence whether to detain the prisoner in custody, according to whether parole has been cancelled.[57] The context indicates that certainty is to be a guide in construing the statutory provisions in order to determine the powers and duties of the CEO and others acting upon the Board's decision to cancel the parole order. If the cancellation order had no effect before it was quashed, those apparently bound by the order were obliged to disregard it.[58] Further, the CEO cannot, except in extreme cases, know that a cancellation order is legally invalid before it is declared to be so. Rather, it must make a decision about a prisoner's release date and hence whether to detain him in custody based on whether a cancellation order is to be given effect. Parliament could not have intended the CEO to enquire into and be satisfied that the cancellation order was legally valid before acting on it.[59]
[56] Primary decision [44] - [47].
[57] Primary decision [44].
[58] Primary decision [45].
[59] Primary decision [46].

The third reason was that the act of the CEO in detaining a prisoner after the making of a cancellation order subsequently declared to be invalid, is an administrative act specifically directed to an individual prisoner, rather than a legislative act addressed to all. Further, a prisoner may test the legal validity of that act pursuant to the mechanism in s 115A of the SA Act 2003. That indicates that the legal validity of the cancellation order is not a precondition to the validity of the acts of the CEO in reliance upon it.[60]
[60] Primary decision [48].
The judge concluded that:[61]
1.Jurisdictional error by the Board in making a cancellation order does not lead to the cancellation order having no consequences whatsoever.
2.Prior to being quashed by a court, a legally invalid cancellation order has effect for, amongst other things, the purpose of the CEO calculating the prisoner's release date and detaining the prisoner in custody until that date.
3.The CEO had lawful authority to detain Mr Tulloh between 8 December 2012 and 4 July 2014.
[61] Primary decision [49].

Grounds of appeal

In the appellant's case as originally filed, there were two grounds of appeal. Ground one alleged that the judge erred in law by holding that the Board's Cancellation Order made on 4 September 2012 continued to have residual legal effect or consequence until it was quashed in Tulloh No 1.[62] In particular, ground one alleged that the judge (1) incorrectly applied the ratio in Bhardwaj and in Plaintiff S517/2002, and (2) ought to have found that as the Board's Cancellation Order involved jurisdictional error, it was void ab initio when quashed.
[62] Mr Tulloh referred to primary decision [7], [8], [49] - [50].
Ground 2 in effect alleged that the judge misconstrued the SA Act in finding that although the Board's Cancellation Order was legally invalid, Mr Tulloh's detention by the CEO from 8 December 2012 to 4 July 2014 was nevertheless unlawful.[63]
[63] Mr Tulloh referred to primary decision [38], [40], [42].
In his subsequently filed substituted appellant's case, Mr Tulloh deleted ground 1 and relied on ground 2 as his single ground of appeal.
Mr Tulloh said that he abandoned ground 1 because he now accepts that Bhardwaj and Jadwan are at least authority for the propositions set out by the judge at [28] of the primary decision, which are summarised in [38] above.

Statutory provisions

At the time of his sentencing in 2002, Mr Tulloh's imprisonment was governed by the provisions of the Sentencing Act 1995 (WA) (Sentencing Act 1995) and the Sentence Administration Act 1995 (WA) (SA Act 1995). On 31 August 2003, the SA Act 2003 came into operation.
The Sentencing Legislation Amendment and Repeal Act 2003 (WA) (2003 Repeal Act), by s 29(1), repealed the SA Act 1995. Section 29(2) of the 2003 Repeal Act provided that sch 1 had effect in relation to the repeal effected by s 29(1).
The 2003 Repeal Act also amended, by pt 2 of that Act, the Sentencing Act 1995. Part 2 div 4 of the 2003 Repeal Act was headed 'Amendments about imprisonment' and included amendments relating to parole.

Schedule 1 of the 2003 Repeal Act

Clause 1(1) of sch 1 of the 2003 Repeal Act contains the following definitions:
'new provisions' means -
(a) the Sentencing Act 1995 as amended by the sentencing amendments; and
(b) the Sentence Administration Act 2003;
'old provisions' means the Sentencing Act 1995, and the repealed Act, as they would have applied had the sentencing amendments not come into operation;
'repealed Act' means the Sentence Administration Act 1995;
'sentencing amendments' means the amendments to the Sentencing Act 1995 effected by Part 2 Division 4 and the repeal of the Sentence Administration Act 1995 effected by section 29(1). (emphasis added)
Clause 1(2) of sch 1 provides that, in sch 1, words and expressions have the meaning they have in the Sentencing Act 1995.
Clause 9 of sch 1 provides that a warrant issued under the 'repealed Act' (the SA Act 1995) remains in force despite the repeal of that Act.
Clause 5 of sch 1 of the 2003 Repeal Act sets out the regime applicable to prisoners (such as Mr Tulloh) sentenced before 31 August 2003:
5. Sentences of imprisonment imposed before commencement
(1)If immediately before commencement a person is subject to a fixed term that is not a parole term and to which the old provisions apply, then on and after commencement the old provisions continue to apply to that term and to the release of the person in respect of that term.
(2)If immediately before the commencement a person is subject to a parole term to which the old provisions apply, then on and after commencement ‑
(a)the old provisions apply for the purpose of calculating ‑
(i)when the person is eligible to be released on parole;
(ii)the parole period for the person; and
(iii)when the person is discharged from the sentence and must be released;
(b)the new provisions apply for the purpose of determining whether the person is to be released on parole;
(c)if the person is to be released on parole, the release is to be by means of a parole order made under Part 3 of the Sentence Administration Act 2003 and for that purpose -
(i)the parole period in the order is to be the parole period calculated under the old provisions; and
(ii)the supervised period for the order is to be the same as the parole period;
and
(d)if the person is released on parole, the Sentence Administration Act 2003 applies to and in respect of the person and the order except to the extent that paragraph (a) or (c) provides otherwise. (emphasis added)
The term imposed on Mr Tulloh was a 'parole term' for the purposes of cl 5 of sch 1.[64] Thus, by cl 5(2)(a) of sch 1, the 'old provisions', being the Sentencing Act 1995 and the SA Act 1995, as they would have applied had the repeal and amendments effected by the 2003 Repeal Act not come into operation, applied for the purpose of calculating (1) when Mr Tulloh was eligible to be released on parole, (2) his parole period, and (3) when he was to be discharged from the sentence.
[64] See cl 1(2) of sch 1 of the 2003 Repeal Act and the definitions of 'parole term' and 'parole eligibility order' in s 85 of the Sentencing Act 1995.
Accordingly, it is convenient, to turn, next, to the provisions of the Sentencing Act 1995, prior to the amendments effected by the 2003 Repeal Act.

The Sentencing Act 1995 (prior to the 2003 amendments)

Part 13 of the Sentencing Act 1995 was headed 'Imprisonment'. It included s 85(1) which provided:
85. Interpretation and calculations
(1)In this Part -
'early release order' means -
(a)a parole order;
…
made under the Sentence Administration Act 1995;
'fixed term' means a term that is not a life term;
…
'parole eligibility order' means an order under section 89;
'parole term' means a term to which a parole eligibility order applies;
…
'release' means release from custody;
'term' means a term of imprisonment imposed on an offender by a court as a sentence, whether a fixed term or a life term, but does not include -
(a)detention in strict or safe custody during the Governor’s pleasure under an order made under section 282 of The Criminal Code; or
(b)indefinite imprisonment;
Division 2 of pt 13 was headed 'Imposing imprisonment'. It included s 89 which provided:
89. Offender may be made eligible for parole
(1)A court sentencing an offender to one or more fixed terms may, if it considers that it is appropriate to do so, order that the offender be eligible for parole by making a parole eligibility order.
(2)In determining whether it is appropriate to make a parole eligibility order, a court may have regard to all or any of the following:
(a)the seriousness and nature of the offence;
(b)the circumstances of the commission of the offence;
(c)the offender’s antecedents;
(d)circumstances relevant to the offender or which, in the court’s opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;
(e)any other reason the court decides is relevant (emphasis added).
Division 3 of pt 13, headed 'Release from imprisonment', included s 93 which provided:
93. When a prisoner is eligible to be released on parole
(1)Subject to section 94,[65] a prisoner serving a parole term is eligible to be released on parole -
(a)if the term is 6 years or less - when he or she has served one third of the term; or
(b)if the term is more than 6 years - when he or she has served 2 years less than two thirds of the term.
(2)Any order for the release of a prisoner to whom this section applies must be made in accordance with Part 3 of the Sentence Administration Act 1995 (emphasis added).
[65] Section 94 of the SA Act 1995 provided for the aggregation of parole terms for certain purposes. It is not relevant for present purposes.
Division 3 also included s 95, which provided as follows:
95.Release from a fixed term (not a prescribed term)
(1)A prisoner serving a fixed term that is neither a prescribed term nor a parole term is discharged from that sentence when he or she has served two thirds of the term and, subject to Division 2 of Part 2 of the Sentence Administration 1995, must be released then.
(2)If a prisoner serving a parole term has not been released on parole before he or she has served two thirds of the term, then the prisoner is discharged from that sentence when he or she has served two thirds of the term and, subject to Division 2 of Part 2 of the Sentence Administration Act 1995, must be released then. (emphasis added)

The SA Act 1995

As noted earlier, the SA Act 1995 was repealed by the 2003 Repeal Act, but certain of its provisions were applied, relevantly in the case of prisoners sentenced to a parole term before 31 August 2003, by the definition of 'old provisions' in cl 1(1), and the operation of cl 5(2), of sch 1 of the 2003 Repeal Act.
By s 21 of the SA Act 1995, (1) the Board must (subject to s 26) make a 'parole order' in respect of a prisoner serving a 'parole term', (2) the release date in such a 'parole order' is to be the day when the prisoner is eligible to be released on parole under s 93 of the Sentencing Act 1995 (WA),[66] and (3) the parole period is to be calculated under s 22 of the SA Act 1995.

Period of release order counted

[66] As to which see [61] above.

Section 68 of the SA Act 1995 provided:
68. Period of early release order counts as time served
If during the period of an early release order -
(a)the prisoner does not commit an offence (in this State or elsewhere) for which he or she is sentenced to imprisonment (whether the sentence is imposed during or after that period); and
(b)the early release order is not cancelled,
then the period of the early release order is to be taken as time served in respect of the term, or the aggregate of terms, to which the early release order relates.

Suspension of parole

Section 69(1) of the SA Act 1995 provided that where parole of a prisoner serving a fixed term is suspended, the prisoner is to be released in accordance with s 95 of the Sentencing Act 1995:
If an early release order in respect of a prisoner serving a fixed term is suspended, the prisoner is then liable to resume serving the fixed term in custody and, unless the suspension ceases or the early release order is cancelled, is to be released in accordance with section 95 of the Sentencing Act 1995. (emphasis added)
Section 95(2) of the Sentencing Act 1995 is set out in [62] above.

Cancellation of parole

Section 71 of the SA Act 1995 concerned the effects of the cancellation of a parole order in connection with the service of the term of imprisonment. It provided relevantly:[67]
(1)If an early release order, other than a WRO,[68] in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and is not entitled to be released until he or she has served the whole of that term.
(2)If a WRO in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and is to be released in accordance with section 95 of the Sentencing Act 1995. (emphasis added)
[67] See Tulloh No 2 [15] noting the distinction between s 71(1) and 71(2) of the SA Act 1995.
[68] Section 4 of the SA Act 1995 defines 'WRO' as a work release order.
In s 71(1), the words 'the whole of that term' have been held to mean the whole of the fixed term and not two thirds of it.[69]

Time counted

[69] King v Piper, Director General, Department of Justice WA [2004] WASCA 218; (2004) 147 A Crim R 394 [26]; Tulloh No 1 [19] ‑ [23].

Section 73 of the SA Act 1995 provided:
73. Clean street time counts as time served
(1)Subject to subsections (2) and (3), if an early release order in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order -
(a)the period beginning on the day when the prisoner was released under the order and ending on the day when the order is cancelled counts as time served in respect of the fixed term; and
(b)the period (if any) beginning on the day when the order is cancelled and ending on the day when the prisoner concerned is returned to custody does not count as time served in respect of the fixed term.
(2)Subject to subsection (3), if an early release order in respect of a prisoner serving a fixed term is suspended and, without the suspension ceasing, is subsequently cancelled, then -
(a)the period beginning on the day when the prisoner was released under the order and ending on the day when the order is suspended counts as time served in respect of the fixed term;
(b)the period (if any) beginning on the day when the order is suspended and ending on the day when the prisoner is returned to custody does not count as time served in respect of the fixed term.
(3)If a WRO in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, subsections (1) and (2) apply as if 'the period' in paragraph (a) of each of them were deleted and 'half the period' were substituted.
(4)For the purposes of subsection (1), the day when an early release order is cancelled is -
(a)if it is cancelled by a decision of the Board or the CEO (as the case may be) - the day of the decision; or
(b)if it is cancelled by virtue of section 70 -
(i)the day when the offence that resulted in the cancellation was committed; or
(ii)if the CEO cannot ascertain the day when that offence was committed - the latest day on which that offence could have been committed, as determined by the CEO.
(5)For the purposes of subsection (2), the day when an early release order is suspended is the day of the decision to suspend the order.

Sentenced until discharged

Section 74 of the SA Act 1995 provided:
74. Prisoner under sentence until discharged
(1)Subject to this Part, a person sentenced to imprisonment and released under an early release order remains under and subject to that sentence until discharged from it.
(2)Subject to this Part, a person sentenced to imprisonment is discharged from the sentence -
(a)if released under a parole order - at the end of the parole period;
…
(3)Subsections (1) and (2) do not affect the operation of sections 68, 70, 71, 72 and 73.

Resolution of doubtful cases

In broad terms, s 45 of the SA Act 1995 provided a mechanism for the resolution of disputes about, amongst other things, when a sentence ends and the parole period. Section 45(3) provided for the circumstances to which s 45(1) and (2) applied. Section 45(3) provided:
(3)This section applies to doubts or difficulties as to -
(a)the effect of any sentence of imprisonment, including the date it commences, how it is served in relation to other such sentences, when it ends, and when it has been or has been deemed to have been served;
(b)any matter relating to parole, including the date when a prisoner is eligible to be released on parole, the parole period applicable in any case and the effect of the suspension or cancellation of parole; or
(c)the term to be served by a prisoner who escapes from lawful custody,
irrespective of whether the sentence was imposed before, on or after the commencement of this Act.
Section 45(1) and s 45(2) of the SA Act 1995 provided:
(1)If a doubt or difficulty arises to which this section applies and neither this Act nor the Sentencing Act 1995 nor the Sentencing (Consequential Provisions) Act 1995 makes adequate provision for it, the CEO may apply in a summary way to a Judge of the Supreme Court for an order resolving the doubt or difficulty.
(2)On such an application the Judge may make any order he or she considers just and for that purpose may make a declaration as to -
(a)the length of any term, any part of a term, or any parole period;
(b)any date relevant to a sentence of imprisonment or to the parole or release of a prisoner; or
(c)the manner in which the Board is to determine such matters.

Protection from liability for wrongdoing

Section 119 of the SA Act 1995 provided:
119. Protection from liability for wrongdoing
(1)In this section, a reference to the doing of anything includes a reference to the omission to do anything.
(2)An action in tort does not lie against a person for anything that the person has, in good faith, done in the performance or purported performance of a function under this Act or the Sentencing Act 1995.
(3)The protection given by this section applies even though the thing done in the performance or purported performance of a function under this Act or the Sentencing Act 1995 may have been capable of being done whether or not this Act or the Sentencing Act 1995 had been enacted.
(4)This section does not relieve the Crown of any liability that it might have for the doing of anything by a person against whom this section provides that an action does not lie.

The SA Act 2003

As noted earlier, Mr Tulloh, being a person subject to a parole term before the commencement of the 2003 Repeal Act, came within the operation of cl 5(2) of sch 1 of the 2003 Repeal Act. Thus, the 'new provisions' concerning the SA Act 2003 applied to him for the purpose of determining whether he was to be released on parole. Also, if he was to be released on parole, the release was to be made under pt 3 of the SA Act 2003, and, for that purpose, the parole period in the order for parole was to be calculated under the 'old provisions'.[70]

Parole

[70] See cl 5(2)(b) and (c) of sch 1 of the 2003 Repeal Act.

Part 3 of the SA Act 2003 is headed 'Parole'. Division 6 of pt 3 is headed 'Parole orders', and comprises s 28 to s 31. Section 28 provides for the nature of a parole order, s 29 and s 30 deal with conditions concerning parole, and s 31 deals with supervision of the prisoner whilst on parole.

Amendment of parole orders

Division 8 of pt 3 of the SA Act 2003 is headed 'Amendment of parole orders'. It contains s 36 and s 37 of the SA Act 2003, which provide:
36. Amending before release
A parole order may be amended after it is made and before the prisoner concerned is released under it -
(a)by the Board, if it was made by the Board; or
…
(c)by the Governor or the Board, if it was made by the Governor.
37. Amending during parole period
(1)The Board may, at any time during the parole period of a parole order, amend the parole order, irrespective of whether it was made by the Board or by the Governor.
…
(3)If a parole order is amended, the amended order applies accordingly.

Suspension of parole orders

Division 9 of pt 3 of the SA Act 2003 is headed 'Suspension of parole orders'. It contains s 38 to s 46.
Section 38 of the SA Act 2003 provides for suspension of parole orders by the CEO.[71] Section 39 of the SA Act 2003 provides for suspension of parole orders by the Board.[72]
[71] Section 4 of the SA Act 2003 defines 'CEO' as the 'chief executive officer of the Public Sector agency principally assisting the Minister administering Part 8 in its administration'.
[72] Section 4 of the SA Act 2003 defines 'Board' as the 'Prisoners Review Board'.
Section 40 of the SA Act 2003 deals with the period of suspension, and provides:
40. Period of suspension
(1)If under section 38 the CEO, or under section 39 the Board, suspends a parole order made by the Board or the Governor -
(a)the Board is to set the period of suspension; and
(b)the period of suspension may be for a fixed or indefinite period, as the Board thinks fit; and
(c)the Board may cancel the suspension at any time before the suspension period ends. (emphasis added)

Cancellation of parole orders

Division 10 of pt 3 of the SA Act 2003 provides for the cancellation of parole orders. Section 44 provides:
44. Cancellation after release
(1)The Board may cancel a parole order made by the Board or the Governor at any time during the parole period.
…
(4)If the parole order is a parole order (unsupervised), the Board’s power to cancel cannot be exercised unless, during the parole period, the prisoner is charged with or is convicted of an offence. (emphasis added)
It was not in dispute that the Board's Cancellation Order, cancelling Mr Tulloh's parole, was made under s 44 of the SA Act 2003.[73]
[73] Appellant's substituted submissions, par 18; amended WB 19; respondents' substituted submissions, par 35; amended WB 47.
Section 46 of the SA Act 2003 relevantly provides:
46. Cancellation, effect on other parole orders
If under section … 44 a parole order is cancelled, any parole order applicable to the prisoner when the order is cancelled is cancelled by virtue of this section, irrespective of whether it had taken effect or not. (emphasis added)

Resolution of disputes about sentences and parole

In broad terms, s 49 of the SA Act 2003 provides a mechanism for resolving disputes about, amongst other things, when a sentence ends and the parole period. Section 49(1) and (2) of the SA Act 2003 provide:
49. Resolution of doubtful cases
(1)If a doubt or difficulty arises to which this section applies and neither this Act nor the Sentencing Act 1995 nor the Sentencing Legislation Amendment and Repeal Act 2003 makes adequate provision for it, the CEO may apply in a summary way to a judge of the Supreme Court for an order resolving the doubt or difficulty.
(2)On such an application the judge may make any order he or she considers just and for that purpose may make a declaration as to -
(a)the length of any term, any part of a term, or any parole period; or
(b)any date relevant to a sentence of imprisonment or to the parole or release of a prisoner; or
(c)the manner in which the Board or the CEO is to determine such matters.

Section 49(3) of the SA Act refers to the circumstances to which s 49 applies, and provides:
(3)This section applies to doubts or difficulties as to -
(a)the effect of any sentence of imprisonment, including the date it commences, how it is served in relation to other such sentences, when it ends, and when it has been or has been deemed to have been served; or
(b)any matter relating to parole, including the date when a prisoner is eligible to be released on parole, the parole period applicable in any case and the effect of the suspension or cancellation of parole; or
(c)the term to be served by a prisoner who escapes from lawful custody,
irrespective of when the sentence was imposed. (emphasis added)

Consequences of suspension and cancellation

Part 5 of the SA Act 2003 is headed 'Provisions applying to early release orders'. It includes s 65 to s 74. It is divided into three relevant divisions: div 1 - 'General', div 2 - 'Automatic cancellation', and div 3 - 'Consequences of suspension and cancellation'.
Division 2 contains s 67, which provides, in effect, that if a prisoner, while subject to an early release order, commits an offence and is sentenced to imprisonment for that offence, any early release order applicable to the prisoner when the offence was committed is cancelled by virtue of that section.
Division 3 includes s 68, s 69 and s 70. Section 68 in div 3 deals with the consequences of suspension in connection with the service of the term, and provides:
68. Suspension, effect of
(1)If an early release order in respect of a prisoner serving a fixed term is suspended, the prisoner is then liable to resume serving the fixed term in custody and, unless the suspension ceases, is not entitled to be released until he or she has served the whole of that term.
(2)If a parole order in respect of a prisoner serving life imprisonment is suspended, the prisoner is then liable to resume serving the sentence in custody.
(3)The suspension of an early release order ceases at the end of the suspension period or when, before then, the suspension is cancelled.
(4)When the suspension of an early release order ceases, the early release order and any other early release order taken to be suspended again have effect unless during the period of suspension the early release order was itself cancelled.
(5)Nothing in this section prevents another early release order being made under this Act in respect of a prisoner. (emphasis added)
Section 69 in div 3 deals with the consequences of cancellation in connection with the service of the term, and provides:
69. Cancellation, effect of
(1)If an early release order in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and, subject to subsection (1b), is not entitled to be released until he or she has served the whole of that term.
(1a)Subsection (1b) applies to a prisoner who resumes serving a fixed term in custody under subsection (1) if -
(a)the early release order was an RRO; and
(b)the fixed term is not a parole term and was imposed on or before 30 August 2003.
(1b)Subject to Part 2 Division 2, a prisoner to whom this subsection applies is entitled to be released when he or she has served two‑thirds of the fixed term.
(2)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.
(3)If a parole order in respect of a prisoner serving indefinite imprisonment is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the indefinite imprisonment in custody.
(4)If a parole order in respect of a person referred to in section 27B(1) is cancelled after the person is released under the order, the person is liable to be again kept in strict or safe custody at the Governor’s pleasure.
(5)Subject to Division 4, this section does not prevent another early release order being made in respect of a prisoner.
(6)For the purposes of this section, to calculate the length in days of two‑thirds of a fixed term imposed on or before 30 August 2003 -
(a)determine the date on which the term as imposed by the court began and will end, and then express the term as a number of days (T);
(b)then divide T by 3 and disregard any remainder;
(c)then subtract that result from T and add to the result the number of days of remission that the prisoner has been ordered to forfeit under the Prisons Act 1981 (if any). (emphasis added)

Return to custody

Section 70 deals with the return of the prisoner to custody after suspension or cancellation of an early release order. It provides:
70. Returning prisoner to custody
(1)When an early release order is suspended or cancelled, the warrant of commitment that relates to the sentence of imprisonment to which the early release order relates is again in force and the prisoner may be arrested and kept in custody under that warrant.
(2)Despite subsection (1), if an early release order is suspended or cancelled as mentioned in subsection (1), a warrant to have the prisoner arrested and returned to custody may be issued, whenever necessary during the period of the order -
(a)by a Supreme Court judge or a District Court judge; or
(b)by the Board if it suspended or cancelled the order; or
(c)by the CEO if the CEO suspended the order.
(3)If a warrant under subsection (2) is issued because of the suspension of an early release order, the prisoner may be arrested, whether under that warrant or under the warrant of commitment referred to in subsection (1), at any time during the period of the order.
(4)Notwithstanding section 65 or 74, if a warrant under subsection (2) is issued because of the cancellation of an early release order, the prisoner may be arrested, whether under that warrant or under the warrant of commitment referred to in subsection (1), at any time -
(a)during or after the period of the order; or
(b)after the date when, but for the cancellation of the order, the prisoner would have served or be taken to have served the term or terms to which the order relates. (emphasis added)

Reviewable decisions

Section 115A of the SA Act 2003 provides:
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. (emphasis added)

Arrest warrant

Section 116 of the SA Act 2003 provides for circumstances in which the CEO may issue a warrant to have the offender arrested even where the court has issued a warrant of commitment.

Protection from liability

Section 120 of the SA Act 2003 provides:
120. Protection from personal liability for torts
(1)An action in tort does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act or the Sentencing Act 1995.
(2)The protection given by subsection (1) applies even though the thing done as described in that subsection may have been capable of being done whether or not this Act or the Sentencing Act 1995 had been enacted.
(3)Despite subsection (1), the Crown is not relieved of any liability that it might have for another person having done anything as described in that subsection.
(4)In this section, a reference to the doing of anything includes a reference to an omission to do anything.

Applicable statutory regime

Against that broader legislative background, it is necessary to identify the particular elements of the statutory scheme which applied in Mr Tulloh's case. The respondents submitted, broadly without contradiction by Mr Tulloh (save to the extent otherwise indicated later), that relevantly for present purposes, cl 5(2) of sch 1 of the 2003 Repeal Act operated as follows:
1.Pursuant to cl 5(2)(a) of sch 1 of the 2003 Repeal Act, the 'old provisions' apply to a person in Mr Tulloh's circumstances for the purposes of calculating:[74]
[74] Respondents' substituted submissions, par 28; amended WB 45, appeal ts 37 - 38.
(i)When the person is eligible to be released on parole.
(ii)The parole period for the person.
(iii)When the person is discharged from the sentence and must be released.

The 'old provisions'

2.In relation to cl 5(2)(a)(i) of sch 1 - when the person is eligible to be released on parole - the 'old provisions' include, relevantly, s 21 of the SA Act 1995 read with s 93 of the Sentencing Act 1995.[75]
[75] Respondents' substituted submissions, par 28(a); amended WB 45; appeal ts 37 - 38.
3.In relation to cl 5(2)(a)(ii) of sch 1 - the parole period for the person - the 'old provisions' include, relevantly, s 22 of the SA Act 1995 read with s 94 of the Sentencing Act 1995.[76]
[76] Respondents' substituted submissions, par 28(b); amended WB 45; appeal ts 38.
4.In relation to cl 5(2)(a)(iii) of sch 1 - when the person is discharged from the sentence and must be released - the 'old provisions' include, relevantly, s 68, s 69, s 71, s 73, s 74(2) and s 74(3) of the SA Act 1995.[77]
[77] Respondents' substituted submissions, par 28(c); amended WB 45; appeal ts 38.

The 'new provisions'

5.The effect of cl 5(2) of sch 1 of the 2003 Repeal Act is that except for the three enumerated purposes in cl 5(2)(a), the 'new provisions' apply.
6.The 'new provisions' apply to the following relevant matters:[78]
[78] Respondents' substituted submissions, pars 29 - 33; amended WB 45 - 46; appeal ts 38 - 44.
(a)The identification of the functions of the CEO and other staff appointed under the 2003 Repeal Act (pt 8 of the SA Act 2003).
(b)The establishment and functions of the Board (pt 9 of the SA Act 2003).
(c)The determination of whether a person should be released on parole (s 20 of the SA Act 2003) and the conditions to be attached thereto (s 29 and s 30 of the SA Act 2003).
(d)The supervision of that person whilst on parole (s 31 of the SA Act 2003).
(e)The suspension (s 38 to s 40 of the SA Act 2003) or cancellation of that person's parole order (s 43 - s 46 of the SA Act 2003) in the event (relevantly) of a breach of the conditions of parole - ie whether the parole order should be continued or not (but not the consequences of a suspension or calculation in terms of the discharge date or release date - which are governed by the 'old provisions').
(f)The return of a prisoner to custody following the suspension or cancellation of an early release order[79] (s 70 and s 116 of the SA Act 2003).
(g)The person's review rights in relation to certain decisions made under the SA Act 2003, including the suspension or cancellation of an early release order (s 115A of the SA Act 2003).
(h)The ability of the CEO to refer 'doubts or difficulties' to a judge of the Supreme Court (s 49 of the SA Act 2003).
(i)The protection from tortious liability for anything done by a person in good faith in the performance or purported performance of a function under the SA Act 2003 (s 120 of the SA Act 2003).
(j)A person sentenced to imprisonment who is released under an early release order remains under and subject to that sentence until discharged from it (s 66(1) of the SA Act 2003).

[79] Which includes a parole order.

Application of statutory regime to Mr Tulloh

The respondents submitted that the above statutory framework applied to Mr Tulloh as set out in [96] below. Again, much of this is not disputed by Mr Tulloh. The points of departure and dispute between the parties are explained in the next section of these reasons.
The respondents submitted that:
1.Mr Tulloh became eligible to be released on parole in accordance with s 21(2) of the SA Act 1995, being the day when he was eligible to be released on parole under s 93 of the Sentencing Act 1995.[80]
2.The Board's decision of 25 November 2010 to grant Mr Tulloh parole was made pursuant to s 20 of the SA Act 2003. The conditions applicable to the parole order were the standard obligations contained in s 29 of the SA Act 2003, and such additional requirements contained in s 30 of the SA Act 2003 as the Board thought fit.[81]
3.Once released on parole, Mr Tulloh remained under and subject to his sentence until discharged from it (s 66(1) of the SA Act 2003).[82]
4.On 30 August 2012, the delegate of the CEO made the CEO's Suspension Order, suspending Mr Tulloh's parole order indefinitely, pursuant to s 38 of the SA Act 2003.[83]
5.On 4 September 2012, the Board made the Board's Cancellation Order pursuant to s 44 of the SA Act 2003.[84]
6.Pursuant to s 70(1) of the SA Act 2003, upon the suspension or cancellation of Mr Tulloh's parole order, the warrant of commitment was again in force, restoring the authorisation and command of the District Court to imprison Mr Tulloh for the sentence imposed (subject to the SA Act 2003 and the relevant provisions of the SA Act 1995).[85]
7.Pursuant to s 70(2) of the SA Act 2003, the Board issued a warrant to have Mr Tulloh arrested and returned to custody. That arrest warrant was executed on 4 October 2012.[86]
8.At this point, Mr Tulloh was a 'prisoner' for the purposes of the Prisons Act 1981 (WA). Upon Mr Tulloh's return to custody, it was necessary for the CEO to calculate Mr Tulloh's new discharge date. That calculation, by virtue of cl 5(2)(a)(iii) of sch 1 of the 2003 Repeal Act, was to be in accordance with the 'old provisions' of the SA Act 1995. In this regard, s 74(2) of the SA Act 1995 provided that 'subject to this part', a person sentenced to imprisonment is discharged from the sentence at the end of the parole period if the person is released under a parole order. The words 'subject to this part' made s 74(2) of the SA Act 1995 subject to s 69 and s 71 of pt 6 of the SA Act 1995. Those provisions described the effect of the suspension (s 69) or cancellation (s 71) of any early release order on the person's discharge from the sentence.[87]
9.As at 4 October 2012, Mr Tulloh's parole remained cancelled pursuant to the Board's Cancellation Order. Pursuant to s 71(1) of the SA Act 1995, once returned to custody, Mr Tulloh was required to resume serving his fixed term (15 years) in custody and was not entitled to be released until he had served the entire 15 years. This was subject to the Board's power to make another early release order under s 72(1) of the SA Act 2003.[88]
[80] Respondents' substituted submissions, par 31; amended WB 46.
[81] Respondents' substituted submissions, par 32; amended WB 46.
[82] Respondents' substituted submissions, par 33; amended WB 46.
[83] Respondents' substituted submissions, par 34; amended WB 46 - 47.
[84] Respondents' substituted submissions, par 35; amended WB 47.
[85] Respondents' substituted submissions, par 36; amended WB 47.
[86] Respondents' substituted submissions, par 37; amended WB 47.
[87] Respondents' substituted submissions, pars 38 - 39; amended WB 47.
[88] Respondents' substituted submissions, pars 40 - 41; amended WB 47 - 48.

The respondents contrasted the result referred to in [96.9] above with the result that would have obtained if the Board's Cancellation Order were regarded as a nullity. In that case, the (preceding) CEO's Suspension Order remained in place and remained legally effective. Section 69 of the SA Act 1995, regarding the effect of a suspension of an early release order, would then have applied to Mr Tulloh. Section 69(1) provided that if an early release order in respect of a prisoner serving a fixed term is suspended, the prisoner is then liable to resume serving the fixed term in custody, and, unless the suspension ceases or the early release order is cancelled, the prisoner is to be released in accordance with s 95 of the Sentencing Act 1995.[89] The effect of s 69(1) of the SA Act 1995, read with s 95 of the Sentencing Act 1995, is that the prisoner is entitled to be released having served two thirds of their term. It is that period which is picked up by the application of the 'old provisions' as to when the person is discharged from the sentence and must be released (by virtue of sch 1 of cl 5(2)(a)(iii) of the 2003 Repeal Act).[90]
[89] Respondents' substituted submissions, par 42; amended WB 48.
[90] Respondents' substituted submissions, pars 43 - 45; amended WB 48 citing Tulloh No 2 [9], [22].
The respondents further submitted that the result referred to in the preceding paragraph was to be contrasted with the effect of suspension under the SA Act 2003 in the event that (contrary to their submissions concerning the effect of cl 5(2) of sch 1 of the 2003 Repeal Act), Mr Tulloh's discharge and release date were governed by the 'new provisions' rather than the 'old provisions'. If the 'new provisions' applied, then Mr Tulloh's suspension fell to be considered under s 68(1) of the SA Act 2003. Section 68(1) of that Act provides that if an early release order in respect of a prisoner serving a fixed term is suspended, the prisoner is then liable to resume serving the fixed term in custody and, unless the suspension ceases, is not entitled to be released until he or she has served the whole of that term.[91] As Mr Tulloh's parole order had been suspended by the CEO's Suspension Order, if s 68(1) of the SA Act 2003 applied, then Mr Tulloh would have been required to serve the entire 15‑year term before he could be released (subject to any further parole order of the Board).[92]
[91] Respondents' substituted submissions, par 46; amended WB 48 - 49.
[92] Respondents' substituted submissions, par 47; amended WB 49 citing s 68(5) and s 69(5) of the SA Act 2003.

The essence of the dispute between the parties

Mr Tulloh accepted, in effect, the matters set out in [96.1] ‑ [96.8] above.[93] The next steps in Mr Tulloh's argument were to the effect that:
1.The effect of quashing the Board's Cancellation Order was that it was rendered of no legal effect and was void ab initio.[94] Hence, there was no cancellation of his parole order for the purposes of the 'old provisions' concerning cancellation, being s 71 of the SA Act 1995.
2.This left the CEO's Suspension Order in place and legally effective.[95]
3.Under the relevant 'old provisions' concerning suspension, being s 69(1) of the SA Act 1995, read with s 95 of the Sentencing Act 1995, Mr Tulloh was entitled to be released having served two thirds of his sentence, ie, he was entitled to be released on 8 December 2012.[96]
4.Alternatively to point 1 above, even if the Board's Cancellation Order was not a nullity and void ab initio, on the proper construction of s 71(1) of the SA Act 1995, the word 'cancelled' meant 'validly cancelled' rather than 'cancelled in fact'.[97] Accordingly, s 71(1) of the SA Act 1995 had no application to Mr Tulloh in any event. Section 71(1) of the SA Act 1995 did not make him liable to serve the whole of the fixed term because his parole order had not been cancelled validly, and thus had not been 'cancelled' within the meaning of, and for the purposes of, s 71(1) of the SA Act 1995. This (again) left his suspension lawfully operative and (again) meant that by virtue of s 69(1) of the SA Act 1995, read with s 95 of the Sentencing Act 1995, he was entitled to be released having served two thirds of his sentence, ie, he was entitled to be released on 8 December 2012.[98]
[93] Appeal ts 45 and see the appellant's oral submissions in reply, which did not challenge any aspect of these matters.
[94] Appellant's substituted submissions, pars 67(d), 70; amended WB 26 - 27.
[95] Appellant's substituted submissions, pars 67(a) - (d); amended WB 26.
[96] Appellant's substituted submissions, pars 67(d) - (e); amended WB 26.
[97] Appeal ts 23.
[98] Appeal ts 35.
It is to be observed that the points made in [99.1] ‑ [99.3] above are effectively the arguments outlined by the respondents in [97] above. It is also to be observed that the submission in the first sentence of [99.1] above is inconsistent with the concession about the effect of Bhardwaj and Jadwan referred to in [49] above. At the hearing of the appeal, Mr Tulloh's submissions had as their focus the argument in [99.4] above.
Accordingly, in substance, the central issue in the appeal was the proper construction of s 71(1) of the SA Act 1995 within the relevant statutory scheme, and, in particular, whether the word 'cancelled' in s 71(1) meant 'cancelled in fact' or 'validly cancelled'.
The parties' arguments on this central issue, and other matters raised by the parties, are set out below.

The parties' arguments

The appellant's submissions

Section 71(1) of the SA Act 1995

Mr Tulloh accepted that it was an essential element of his case on appeal that on a proper construction of s 71(1) of the SA Act 1995, the word 'cancelled' meant and was confined to 'validly cancelled'.[99] He submitted that the word 'cancelled' in s 71 should be so construed, effectively for the following reasons:
1.Section 71(1) of the SA Act 1995 must be read in the context that it is 'dealing with a question of someone's liberty'.[100]
2.A construction that 'cancelled' means other than 'validly cancelled' would lead to an absurd or unjust result. That is because the prisoner would be subject to adverse consequences, even if the prisoner's parole had been cancelled improperly by reason of capriciousness (the 'flip of a coin'), animosity or on racial grounds.[101]
3.Section 71(1) of the SA Act 1995 should be construed in light of other provisions of the SA Act 1995, being relevantly s 119 and s 45.
4.Section 119 of the SA Act 1995 expressly recognises a distinction between a 'performance' and a 'purported performance' of a function. Also, s 119 would effectively be otiose if 'cancellation' merely meant 'cancellation in fact'. That is because, in effect, an individual would not need protection from liability in that event.[102]
5.Section 45 of the SA Act 1995 tends against a construction that 'cancellation' in s 71(1) means 'cancellation in fact'. That is because, under s 45, Parliament has given a 'fast‑track' route to the CEO to resolve certain doubts or difficulties over a term of imprisonment or parole, which, it may be inferred, was intended to wholly, or at least principally, displace any need for the CEO to rely on the fact that a cancellation order had been made.[103] In written submissions,[104] Mr Tulloh said, with respect to the counterpart section in the SA Act 2003 (s 49 of the SA Act 2003), that the CEO may only approach the court in respect of prospective decisions. Thus, the CEO could only approach the court, relevantly, with respect to a prospective cancellation order in contemplation, but not one that had been made. In oral submissions, that contention appeared not to be maintained.[105]

The void ab initio argument

[99] Appeal ts 23.

[100] Appeal ts 24.

[101] Appeal ts 24 - 25.

[102] Appeal ts 26.

[103] Appeal ts 26 - 30.

[104] Appellant's substituted submissions, pars 100 - 101; WB 31 - 32.

[105] Appeal ts 27 - 29.

Mr Tulloh also submitted that Chaney J's orders of 4 July 2014 had the effect of quashing the Board's Cancellation Order such that it was void ab initio.[106] Mr Tulloh referred in that regard to Park Oh Ho v Minister for Immigration & Ethnic Affairs.[107] In that case, the appellants, having illegally entered Australia, were arrested as prohibited non‑citizens and taken into custody. On 20 August 1986, the Minister ordered their deportation from Australia. The deportation was, however, delayed until 18 November 1986, during which period there were discussions between the Commonwealth Director of Public Prosecutions and the relevant department about the desirability of the appellants remaining in Australia to give evidence as prosecution witnesses in a case against the persons who had allegedly arranged their illegal entry. The appellants applied for a review of the deportation orders. Davies J heard the application under the Administrative Decisions (Judicial Review) Act 1977 (Cth). In the passage relied on by Mr Tulloh, the High Court stated:[108]
Davies J held that the each of [the deportation orders] 'should be treated as a nullity' and that they be 'set aside ab initio'. His Honour refused, however, to make a declaration that the detention of each appellant between 20 August 1986 and 2 December 1986 had been unlawful.
[106] Appellant's substituted submissions, par 70; amended WB 27.
[107] Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637.
[108] Appellant's substituted submissions, par 70; amended WB 27 citing Park Oh Ho (641).
In Park Oh Ho, the appellants also separately commenced proceedings for false imprisonment, but sought a declaration in their review application to the effect that their detention between 20 August 1986 to 2 December 1986 was unlawful. Davies J declined to make that further order, and an appeal to the Full Court was dismissed in that respect. There was an appeal to the High Court limited to the question of whether the Full Court had been correct in upholding the refusal of Davies J to make a declaration of unlawfulness.[109] The High Court said that the question of whether the appellants' detention in custody between those dates was unlawful was plainly raised and litigated in the review proceedings before Davies J, and that a declaratory order should have been made. The effect of declaratory relief would be to resolve finally, as between the appellants and the Minister, the question of whether the appellants' detention in custody during the relevant period was unlawful. Such a declaration would not, however, conclude as against the Minister the question of whether the Minister was legally responsible for the unlawful detention.[110] The High Court ordered that the appellant's detention in custody between 20 August 1986 and 2 December 1986 was unlawful.

New provisions

[109] Park Oh Ho (639 ‑ 642).

[110] Park Oh Ho (645).

In his written submissions, Mr Tulloh also submitted, in the alternative to his case outlined in [103] above, that if a 'new provision' was the relevant focus of construction, it was s 70 of the SA Act 2003, and the reference to 'cancelled' in that provision also meant cancelled lawfully or validly, rather than cancelled in fact.[111]

Other matters

[111] Appellant's substituted submissions, pars 72, 75 - 91; amended WB 27 - 30.

Mr Tulloh also submitted that Le Miere J 'did not provide a complete answer to the preliminary question because he failed to appreciate the nature of the question as posited'.[112] Mr Tulloh submitted that the preliminary question was to be determined in its 'broader sense', although he says that 'admittedly' he did not provide any assistance to Le Miere J in that regard.[113] Mr Tulloh submitted that there was 'no doubt' that he was unlawfully detained. Accordingly, even if the CEO could not be responsible for his unlawful detention, then as his detention was, in truth, unlawful, Le Miere J should have found that liability for that unlawful detention should have been attributed to the State.[114]

The respondents' submissions

[112] Appellant's substituted submissions, par 128; amended WB 35.

[113] Appellant's substituted submissions, par 129; amended WB 35.

[114] Appellant's substituted submissions, pars 130 - 132; amended WB 36.

The respondents submitted that the judge identified and construed the correct statutory framework.[115] The respondents submitted that when the primary decision is read as a whole, the judge understood that the calculation of Mr Tulloh's discharge date was governed by the 'old provisions'. That is because his Honour effectively considered the relevant statutory position under the 'old provisions' of s 69 of the SA Act 1995 (read with s 95 of the Sentencing Act 1995) and s 71 of the SA Act 1995, as opposed to the position under the 'new provisions' of s 68(1) and s 69(1) of the SA Act 2003.[116] This is the case even though that the judge incorrectly, and it may be inferred inadvertently, stated that 'the [SA Act 2003] and the Sentencing Act [1995] determined the release date of a prisoner' (emphasis added).[117]
[115] Respondents' substituted submissions, par 57; amended WB 50; appeal ts 49.
[116] Respondents' substituted submissions, par 52; amended WB 49 - 50; appeal ts 49.
[117] Respondents' substituted submissions, pars 54 - 55; amended WB 50 citing primary decision [43]; appeal ts 49.
The judge went on to find that the CEO's calculation of a prisoner's release date was not dependent on the validity of the Board's Cancellation Order, but merely upon the fact that it was made, for the three reasons set out at [43] - [48] of the primary decision. The respondents contended that Mr Tulloh had not demonstrated error in the judge's reasons in this regard.[118]

Other matters

[118] Respondents' substituted submissions, pars 65 - 66; amended WB 51 - 52; appeal ts 51.

With respect to Mr Tulloh's submissions referred to in [107] above, the respondents submitted that the question of the State's liability is one to be determined at the substantive trial of the matter, if necessary, and did not arise for determination by the judge in answering the preliminary question.[119]

The respondents' notice of contention

[119] Respondents' substituted submissions, pars 99 - 100; amended WB 59; appeal ts 56.

The respondents contended, by their notice of contention, that if (contrary to their case in answer to the appeal) the judge erred in law by identifying the incorrect statutory framework and therefore failed to construe the correct statutory framework, the judge's conclusion was in any event correct when regard is had to the applicable statutory regime referred to in the respondents' submissions.[120]
[120] Appeal ts 43, 55 - 56.

Disposition

It is unnecessary for present purposes to determine the question of whether the judge erred at [43] of the primary decision in stating (relevantly) that 'the [SA Act 2003] … determined the release date of a prisoner'. That is because even if that were an error (and not, as the respondents submit, an inadvertent slip which was plainly intended, on the proper construction of the primary decision as a whole, to refer to the SA Act 1995), the judge's conclusion was in any event correct, and is supported by the respondents' notice of contention.
The reasons for this are set out below.

Section 71(1) of the SA Act 1995

Section 71(1) of the SA Act 1995 is to be construed in the overall context of the statutory scheme created and given effect to by cl 5(2) of sch 1 of the 2003 Repeal Act, read with s 29(1) and (2) of the 2003 Repeal Act. The statutory scheme, relevantly for present purposes, has been correctly identified by the respondents as summarised in [94] above. In our view, for the reasons below, construed in that context, 'cancelled' in s 71 means cancelled in fact and does not mean validly cancelled.
While s 71(1) of the SA Act 1995 is the most relevant 'old provision' for present purposes insofar as it concerns the question of when Mr Tulloh was to be discharged from sentence and released,[121] the other provisions of the SA Act 1995 relied on by Mr Tulloh - s 45 and s 119 ‑ do not form elements of the statutory scheme.
[121] See cl 5(2)(a)(iii) of sch 1 of the 2003 Repeal Act.
Having said that, those provisions have their counterparts in the 'new provisions', which do have application, namely s 49 and s 120 of the SA Act 2003 respectively. It may be assumed that the points sought to be made by Mr Tulloh in relation to s 45 and s 119 of the SA Act 1995 are intended to have equal application to s 49 and s 120 of the SA Act 2003.
In that context, and turning to Mr Tulloh's submissions referred to in [103] above, the following observations may be made.
Whilst it is true that s 71(1) of the SA Act 1995 deals with a person's liberty, it applies in the context of a statutory scheme directed to a person whose liberty has been fundamentally constrained by the judicial arm of government by an order that the person be imprisoned. The statutory scheme, in this context, involves a balancing of the interests of the community as a whole, and the interests of prisoners, in relation to (relevantly) the provision of parole, its cancellation and the consequences of its cancellation. The statutory scheme in this case is not enacted essentially for the benefit of prisoners, to be construed liberally as if that were its beneficial purpose.[122]
[122] cf Bull v Attorney General (NSW) [1913] HCA 60; (1913) 17 CLR 370, 384; R v Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426, 433; IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1, 39.
Moreover, as French CJ, Kiefel, Bell and Keane JJ observed in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act[123] with reference to the court's observations in Victims Compensation Fund Corporation v Brown:[124]
To commence the process of construction by posing the type of construction to be afforded ‑ liberal, broad or narrow - may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise. (emphasis added)
[123] New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232.
[124] New South Wales Aboriginal Land Council [33] citing Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260, 269.
Also in New South Wales Aboriginal Land Council, Gageler J said:[125]
The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. Application of that more general principle to New South Wales legislation is mandated by the requirement of s 33 of the Interpretation Act 1987 (NSW) that a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not. Neither in its general application nor in its particular manifestation can that principle be applied other than on the understanding that legislation 'rarely pursues a single purpose at all costs' and that '[u]ltimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling'. (emphasis added)
[125] New South Wales Aboriginal Land Council [92].
In this case it is the meaning of the specific word 'cancelled' and its (objectively ascertained) legislative purpose, which is, broadly speaking, the object of the construction exercise. The starting point is cl 5(2)(a) of sch 1 of the 2003 Repeal Act which states the 'purpose' for which the 'old provisions' apply. The purpose of each of the enumerated provisions of cl 5(2)(a) relates to the determination of a period of time. The third, cl 5(2)(a)(iii), concerns 'when the person is discharged from the sentence and must be released'. It is that purpose which attracts the operation of s 71(1) of the SA Act 1995.

It is convenient to return to the language of s 71(1) of the SA Act 1995, which relevantly provided:
If an early release order … in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and is not entitled to be released until he or she has served the whole of that term.
The operation of s 71(1) of the SA Act 1995 in this context is predicated on the cancellation of the parole order. In its natural and ordinary meaning in this context, s 71(1) does not invite attention to the validity of the predicate; rather its focus is on the consequences of the predicate on the length of time the prisoner must then serve in prison. In this context, the phrase 'an early release order … is cancelled' more naturally refers to a factual event rather than inviting attention to the more complex question of whether there has been a valid cancellation.
This construction is also supported by the evident purpose of s 71, in its statutory context. The evident purpose of s 71 is to prescribe when, in the circumstances to which it applies, a prisoner is entitled to be released. Given the statutory context, considerations of administrative convenience strongly favour a construction that is apt to provide a clear answer to the question of when a prisoner is entitled to be released. On the judge's construction, whether s 71 applies depends upon a simple factual enquiry: has the order been cancelled in fact? By contrast, on the appellant's construction, whether the section applies involves a complex and uncertain enquiry - has the order been validly cancelled? The former is a more likely intention to ascribe to Parliament than the latter.
That conclusion also tends to be confirmed by s 115A of the SA Act 2003, which is a 'new provision' applicable for present purposes. Section 115A(2)(c) provides for a review of a 'decision made … by the Board … to cancel a parole order'. The language and focus of s 115A is on the decision‑making of the Board, not the temporal consequences of the parole order being 'cancelled' in relation to the length of time the prisoner must serve in prison. It is a remedial provision within the statutory scheme by which the validity of the predicate in s 71(1) of the SA Act 1995 may be challenged by the prisoner so affected.
The chairperson of the Board (or deputy chairperson on delegation)[126] may, amongst other things 'confirm, amend or cancel' the Board's decision to cancel parole.[127] If the chairperson decides to 'confirm' the decision, the predicate in s 71(1) of the SA Act 1995 remains unaffected because parole is, consequently, left 'cancelled'. On the other hand, if the chairperson decides to 'cancel' the Board's decision to cancel parole, the predicate in s 71(1) of the SA Act 1995 no longer applies, not because 'cancelled' in s 71(1) means 'validly cancelled', but because the chairperson has taken the step to 'cancel' the original decision by which parole was 'cancelled'.
[126] Section 115A(9) of the SA Act 2003.
[127] Section 115A(8)(a) of the SA Act 2003.
Also, by s 115A(11) of the SA Act 2003, the Board must give the prisoner written notice of any review decision. The prisoner is thereby provided with information upon which he or she may give consideration to the exercise of any common law rights (if the review decision is unfavourable) or as to his or her liberty (if the decision is favourable). In the latter case the prisoner's liberty will be restored following the decision to 'cancel' the original cancellation of parole, even if the original cancellation order was, truly as a matter of law, valid.
In addition, the CEO has power under s 49(3)(b) of the SA Act 2003, to apply to the Supreme Court in case of doubts and difficulties as to 'any matter relating to parole, including … the effect of the … cancellation of parole'. These words, both in their ordinary meaning and bearing in mind that s 49 is a remedial provision and should be construed accordingly, are apt to include a cancellation order that has already been made in fact. Section 49 of the SA Act 2003 tends to be inconsistent with the hypothesis that the word 'cancelled' in s 71(1) of the SA Act 1995 is confined in its operation to valid cancellation orders.
Further in this context, s 71 must be read with s 70 of the SA Act 2003, which also makes provision for what happens when an order is 'cancelled'. Section 70 evidently has as its focus the interests of the community and the orderly administration of the criminal justice system. It provides (relevantly) that 'when' a parole order is 'cancelled', the original warrant of commitment is again in force and the prisoner may be arrested under that warrant (s 70(1)), and a warrant of arrest may be issued (s 70(2)). Those steps might need to be taken swiftly, and s 70(1) is evidently designed to operate upon the making of the cancellation order. It is unlikely that 'cancelled' in s 70 has a different meaning from 'cancelled' in s 71. As the judge observed (see [43] above) and the respondents submitted, a number of individuals may be involved in the day‑to‑day arrangements in giving effect to the re‑arrest and subsequent incarceration of the prisoner. Whilst such individuals may be protected from tortious liability in the circumstances referred to in s 120 of the SA Act 2003, this provision does not sustain Mr Tulloh's construction of s 71(1) of the SA Act 1995. That is because s 120 of the SA Act 2003 has, as its focus, the protection of the individual from tortious liability adjudged retrospectively. It is not inconsistent with a statutory scheme which contemplates day‑to‑day activities being undertaken prospectively on the basis that a cancellation order has in fact been made. Hesitations and doubts might arise in the performance of day‑to‑day activities if retrospective adjudgment of good faith provided the only secure means of acting in accordance with a cancellation order 'when' one is made. Moreover, on the appellant's construction, if an issue of validity arose, some enquiry on the part of the individual may be necessary, to form a view as to validity, before an administrative decision was to be made or step taken in reliance on s 70. Such unworkable consequences further tend against the appellant's construction.
Also, for present purposes, the appellant seeks to read too much into the words 'or purported performance' in s 120 of the SA Act 2003. Section 120 stands in a unique position within the statutory scheme, and those words underscore the point that personal liability for persons acting in good faith should not turn on nice points about whether the person acted in the performance or purported performance of a function under the Act. The use of those words in this provision emphasises that the protective net is cast widely. Their presence in this provision cannot be used to infer that the absence of similar language in s 71(1) of the SA Act 1995 reveals a Parliamentary intention to make the operation of s 71(1) dependent upon a valid cancellation order.
Furthermore, as Mr Tulloh accepted,[128] if Mr Tulloh's construction were correct, the prisoner would be legally secure in escaping from custody in the event that a cancellation order was not valid. That conclusion on a matter of legislative construction is one which, to say the least, would not readily be drawn. The better view is that the statutory scheme contemplates the prisoner returning to and remaining in custody once a cancellation order is made, with statutory rights of review in accordance with s 115A of the SA Act 2003 and, ultimately, the provision of information to the prisoner upon which he or she may make a decision to exercise his or her common law rights. It may be accepted that the last‑mentioned step may not, as a practical matter, be easily effectuated by the prisoner. Nevertheless, the better view is that it is an aspect of a scheme which operates coherently and avoids the consequences of individuals making their own judgments about the validity of cancellation orders - which, it may be inferred, Parliament did not intend, having regard to the interests of the community as a whole.
[128] Appeal ts 34 - 35.
Finally, the spectres raised by Mr Tulloh in [103.2] above (decisions by the Board based on race, etc) substantially overlook the operation of s 115A. Under s 115A, (1) the Board's decision may be reviewed, (2) the prisoner is entitled to make submissions, (3) the matter must be considered by the chairperson (a judge or a retired judge)[129] or a deputy chairperson (someone who has, in the Minister's opinion, extensive or special knowledge of matters involving the performance of the Board's functions),[130] (4) the deputy chairperson must, in any event, refer questions of law to the chairperson,[131] and (5) the prisoner is entitled to written notice of the outcome in order to consider their position under the common law.
[129] Section 103(2) of the SA Act 2003.
[130] Section 103(3) of the SA Act 2003.
[131] Section 115A(10) of the SA Act 2003.
For these reasons, the judge was correct, effectively for the three reasons he gave, summarised in [42] ‑ [44] above. Subject to a consideration of the other issues raised by Mr Tulloh, the appeal should be dismissed.

Void ab initio argument

Unlike the primary judge in the case of Park Oh Ho (see [104] ‑ [105] above), Chaney J, on 4 July 2014, did not order the Board's Cancellation Order to be quashed ab initio. He quashed the decision and remitted the matter to the Board for reconsideration. Also, as outlined earlier, Mr Tulloh's contention that the Board's Cancellation Order was void ab initio is inconsistent with his acceptance of the three propositions summarised by Le Miere J, referred to in [38] above. Moreover, those propositions are to be accepted. There is no merit in this point.

New provisions

Mr Tulloh put his argument about the operation of s 70(1) of the SA Act 2003 in the alternative to his primary argument to the effect that the key issue was the proper construction of the 'old provision', being, relevantly, s 71(1) of the SA Act 1995. Also (and perhaps the reason for it receiving no attention in Mr Tulloh's oral submissions), even if 'cancelled' meant 'validly cancelled' in s 70(1) of the SA Act 2003, the point goes nowhere for present purposes because the CEO's Suspension Order would remain in effect, and (unlike the 'old provisions'), under s 70(1) the CEO's Suspension Order would also mean that Mr Tulloh was to serve the remainder of his term and not just two thirds of it (see [90] above).
In any event, for the reasons given in [129] above, the word 'cancelled' in s 70(1) of the SA Act 2003 refers simply to the making of a cancellation order, as a matter of fact, and is not concerned with its underlying validity.

Other matters

It is not easy to see, with respect, the point being made by Mr Tulloh in [107] above. In any event, the preliminary question to be decided by Le Miere J did not require his Honour to consider whether any liability should be attributed to the State.

Conclusion

Given the complexity of the statutory scheme and the potential wider significance of the matters in dispute, this is an appropriate case for leave to be granted. However, for the reasons indicated, the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Murphy
30 JANUARY 2020