Tulloh v Chief Executive Officer of the Department of Corrective Services
[2018] WASC 105
•11 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: TULLOH -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES [2018] WASC 105
CORAM: LE MIERE J
HEARD: 3 OCTOBER 2017
DELIVERED : 11 APRIL 2018
FILE NO/S: CIV 1686 of 2015
BETWEEN: MICHAEL TULLOH
Plaintiff
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES
First Defendant
THE STATE OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Administrative law - Acting without lawful authority - Legal effect of quashed decision - Whether prior unlawful act invalidates subsequent lawful act - Whether invalid decision to cancel parole meant subsequent detention was unlawful
Legislation:
Prisons Act 1981 (WA)
Sentence Administration Act 1995 (WA)
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Prior invalid act did not render subsequent act invalid
Subsequent detention was lawful
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr B Galloway & Mr F J Mestichelli |
| First Defendant | : | Mr T C Russell & Mr P D Spragg |
| Second Defendant | : | Mr T C Russell & Mr P D Spragg |
Solicitors:
| Plaintiff | : | Corporate Counsel Lawyers |
| First Defendant | : | State Solicitor for Western Australia |
| Second Defendant | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Boddington v British Transport Police [1999] 2 AC 143
Director of Public Prosecutions (DPP) v Edwards [2012] VSCA 293
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1
Kable v New South Wales (2012) 293 ALR 719
Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82
Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
New South Wales v Kable (2013) 252 CLR 118
Oudekraal Estates (Pty) Ltd v The City of Cape Town (2004) 6 SA 222 (SCA)
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Purton v Jackson [2012] TASFC 2
Re Patterson, Ex parte Taylor (2001) 207 CLR 391
Robertson v Western Australia (1997) 92 A Crim R 115
Tulloh v Chief Executive Officer, Department of Corrective Services [2014] WASC 368
Tulloh v Prisoners Review Board [2014] WASC 239
LE MIERE J:
Summary
On 13 December 2002 Mr Tulloh was sentenced to a term of imprisonment of 15 years. Mr Tulloh was granted parole eligibility and the sentence was backdated to commence on 9 December 2002. On 25 November 2010 Mr Tulloh was granted parole and was released on parole on 8 December 2010. On 28 August 2012 a urine specimen provided by Mr Tulloh allegedly detected methylamphetamine. On 30 August 2012 Mr Tulloh's parole was suspended. On 4 September 2012 the Prisoners Review Board (the Board) cancelled Mr Tulloh's parole (the cancellation order). Mr Tulloh requested a review of the Board's decision. On 12 September 2012 the Board confirmed its decision. On 4 October 2012 Mr Tulloh was arrested and returned to the custody of the first defendant, the Chief Executive Officer of the Department of Corrective Services (the Chief Executive Officer).
Mr Tulloh applied to this court for judicial review of the decision of the Board to cancel his parole and the decision affirming that cancellation. The respondents were the Board and the Chief Executive Officer. As originally drawn the grounds of review in relation to the Chief Executive Officer concerned the calculation of the date on which Mr Tulloh was entitled to be released. Mr Tulloh further contended that the Board's decisions were affected by errors of law consisting of denials of procedural fairness, failure to take into account relevant information, taking into account irrelevant matters, failure to exercise jurisdiction by inflexibly applying policy and failure to act reasonably.
On 4 July 2014 Justice Chaney found that on the assumption that Mr Tulloh's parole had been cancelled the Chief Executive Officer had correctly calculated that Mr Tulloh was not entitled to be released until he had served the whole of the term imposed by the court which expired on 8 December 2017. However, his Honour found that the decision of the Board to cancel Mr Tulloh's parole was affected by jurisdictional errors of law and quashed the Board's decision to cancel Mr Tulloh's parole: Tulloh v Prisoners Review Board [2014] WASC 239 (Tulloh No 1).
Subsequently Mr Tulloh was advised that his sentence status had been updated and that, in the view of the Chief Executive Officer, he was liable to serve the whole of the sentence to the expected release date of 8 December 2017. Mr Tulloh applied for a writ of habeas corpus ad subjiciendum. The respondents were the present first defendant and the Prisoners Review Board. Mr Tulloh asserted that the term of imprisonment under which he was being detained had, on a proper construction of the relevant statutory provisions, expired on 8 December 2012 and consequently his continued detention was unlawful. On 22 September 2014 Justice Chaney held that Mr Tulloh's continuing detention was unlawful and ordered that Mr Tulloh be released from custody forthwith: Tulloh v Chief Executive Officer, Department of Corrective Services [2014] WASC 368 (Tulloh No 2). His Honour did not make any findings as to when that unlawful detention first occurred. Mr Tulloh was released from custody on the same day, 22 September 2014.
In this action Mr Tulloh claims damages for false imprisonment. Mr Tulloh claims that his imprisonment was unlawful from 8 December 2012 to the date of his release on 22 September 2014. 8 December 2012 was the date Mr Tulloh's sentence was to expire if he was a prisoner whose parole had not been cancelled.
The defendants admit that Mr Tulloh was detained without lawful authority from 4 July 2014 until his release on 22 September 2014, being the period between the decision of Chaney J in Tulloh No 1 and his release on 22 September 2014 following the decision of Chaney J in Tulloh No 2. The defendants maintain that between 8 December 2012 and 4 July 2014 Mr Tulloh was detained with lawful authority.
On 8 June 2017 I ordered the determination of the following preliminary question:
Was the detention of the plaintiff [Mr Tulloh] by the first defendant between 8 December 2012 and 4 July 2014 done without lawful authority?
For the reasons which follow I answer the question:
The detention of the plaintiff by the first defendant between 8 December 2012 and 4 July 2014 was done with lawful authority.
Mr Tulloh's case and defendants' answer
Mr Tulloh's case is simple. An act or order which is quashed for jurisdictional error is a nullity in the sense that it has no relevant legal consequence; it is utterly without existence or effect in law. The cancellation order having been quashed by order of this court has no relevant legal consequence. The cancellation order is to be treated as if it had never been made. Mr Tulloh's release date must be determined on the basis that his parole had not been cancelled. On that assumption he was entitled to be released on 8 December 2012. The Chief Executive Officer had no lawful authority to detain Mr Tulloh after 8 December 2012.
The defendants say there was no false imprisonment between 8 December 2012 and 4 July 2014 because there was lawful authority for the imprisonment. The authority derives from the warrant of commitment dated 13 February 2002 and the operation of the Sentence Administration Act 2003 (WA) (SAA 2003) following the decision of the Board to cancel Mr Tulloh's parole on 4 September 2012. The defendants say that having regard to the provisions and operation of the Sentence Administration Act 1995 (WA) (SAA 1995), SAA 2003, the Sentencing Act 1995 (WA) (Sentencing Act) and the Prisons Act 1981 (WA) the cancellation order had effect until quashed on 4 July 2014 and therefore the Chief Executive Officer had lawful authority to detain Mr Tulloh until the cancellation order was quashed on 4 July 2014.
Calculation of release date
The calculation of the date on which Mr Tulloh was entitled to be released is complicated and depends upon the application of the relevant legislation, properly construed, to the relevant events. However, it is not necessary to elaborate upon that matter. It is common ground 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. The hearing proceeded on the basis that if the cancellation order is a nullity in the sense that it has no relevant legal consequence then the Chief Executive Officer had no lawful authority to detain Mr Tulloh after 8 December 2012, but if the cancellation order had effect until quashed then the Chief Executive Officer had lawful authority to detain Mr Tulloh until the court quashed the cancellation order on 4 July 2014.
Tulloh No 2
The Chief Executive Officer submitted that when Mr Tulloh's parole period came to an end at the end of 2012, which predated Mr Tulloh's application for judicial review made on 20 December 2013, Mr Tulloh was a prisoner whose parole had been cancelled for the purposes of the SAA 1995 and SAA 2003.
Chaney J considered the effect of the quashing of the decision of the Board to cancel Mr Tulloh's parole. Chaney J considered that the issue was whether the quashing of the decision of the Board on judicial review acted retrospectively so that all of the legal consequences of the decision were of no effect, or whether so long as the decision stood and had not been set aside, it has some legal effect, notwithstanding its later quashing. His Honour considered that that question was addressed by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (Bhardwaj).
Chaney J considered that the effect of Bhardwaj 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' [29] (emphasis added). At [35] Chaney J said that 'the effect of the decision to quash the cancellation was that the decision was ridded of any legal effect from the time it was made'. His Honour said that it should not be concluded that 'because the quashing of the decision [to cancel Mr Tulloh's parole] post‑dated the expiry of his suspension, the legal effect of the cancellation decision should remain applicable as at today or, indeed, at any time since that decision was quashed' [36]. His Honour went on to say that it was unnecessary to determine when Mr Tulloh ought to have been released and it was sufficient to conclude, as his Honour did, that Mr Tulloh's continuing detention was unlawful: [39] ‑ [40].
The authority to detain
The defendants say that the Chief Executive Officer had lawful authority to detain Mr Tulloh until the decision of the Board was quashed by the court on 4 July 2014. The defendants' reasoning is as follows.
At the time of his sentencing Mr Tulloh's imprisonment was governed by the provisions of the Sentencing Act and the SAA 1995. The warrant of commitment dated 13 February 2002 (Warrant of Commitment) was regularly issued by a judge of the District Court. The Warrant of Commitment authorised and commanded the Chief Executive Officer to imprison Mr Tulloh for a term of 15 years subject to the Sentencing Act and the SAA 1995. On 31 August 2003 the SAA 2003 came into operation replacing the SAA 1995. The Sentencing Legislation Amendment and Repeal Act 2003 (WA) (SLARA) amended the Sentencing Act and repealed the SAA 1995. The SLARA contains transitional provisions dealing with the parole and release of a prisoner sentenced prior to 31 August 2003. On 30 August 2012 the Board cancelled the parole order, an arrest warrant was issued and Mr Tulloh was returned to the custody of the Chief Executive Officer. Section 70(1) of the SAA 2003 provides that when an early release order is 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. The Chief Executive Officer received Mr Tulloh into custody on 4 October 2012 and detained Mr Tulloh pursuant to the Warrant of Commitment. There is no challenge to the lawfulness or validity of the Warrant of Commitment.
Counsel for the defendants agreed that the Chief Executive Officer's authority to detain Mr Tulloh after 8 December 2012 is dependent upon the cancellation order having effect prior to it being quashed by order of this court on 4 July 2014.
Jurisdictional error and invalidity
The order of this court on 4 July 2014 quashed the decision of the Board to cancel the parole order on the ground of jurisdictional error. Mr Tulloh says that the decision of the Board to cancel the parole order is invalid or a nullity in the sense that it has no legal consequence and is treated by the law as if it never occurred. The defendants say that the Board decision had some legal consequence before it was quashed on 4 July 2014. The legal consequence is that notwithstanding its invalidity the cancellation order made Mr Tulloh a prisoner whose parole had been cancelled and accordingly authorised and obliged the Chief Executive Officer to detain Mr Tulloh until it was quashed by order of the court.
The plaintiff says that Bhardwaj is authority for the proposition that a decision quashed for jurisdictional error is a retrospective nullity in the sense that the decision is treated as having had no relevant legal consequence.
The question before the High Court in Bhardwaj was the validity of a further hearing and subsequent second decision by the Immigration Review Tribunal. The respondent sought a review of a decision by the Minister's delegate to cancel his student visa. In September 1998 the Tribunal made a decision (the September decision) to affirm the delegate's decision to cancel the respondent's visa. The Tribunal had overlooked a letter from the respondent's agent seeking an adjournment of the first hearing and reached the September decision without hearing from the respondent. The Tribunal fixed a new hearing date and received evidence from the respondent. In October 1998 the Tribunal made a decision (the October decision) to revoke the cancellation of the respondent's visa. The Minister contended that the Tribunal had made an error of law in making the October decision because having made the September decision its powers were exhausted ‑ it was functus officio. The majority of the High Court found that the Tribunal had the power to make the October decision. Gleeson CJ found that the Act manifested an intention to permit the Tribunal to reconsider the application. Gaudron, Gummow, McHugh and Hayne JJ found that, as the Tribunal's September decision was made in jurisdictional error, it did not effect a review as required by the Act and was of no legal effect, the Act not expressly or impliedly providing to the contrary. Callinan J held that as the Tribunal's September decision was a failure to exercise the jurisdiction that the Tribunal was bound to exercise, it was open to the Tribunal to exercise that jurisdiction by its further decision.
In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157) a question was whether s 474 of the Migration Act 1958 (Cth), which provided in effect that a 'privative clause decision', a defined term, was not subject to judicial review precluded judicial review of a decision of the Tribunal in breach of the requirements of natural justice. The High Court held that s 474 did not prevent judicial review of decisions that involve jurisdictional error. Decisions of that character were not 'privative clause decisions' because they were not decisions made 'under' the Act. Gaudron, McHugh, Gummow, Kirby and Hayne JJ said:
This Court has clearly held that an administrative decision which involves jurisdictional error is 'regarded, in law, as no decision at all' [76].
At [76] their Honours referred to Bhardwaj at [51] per Gaudron and Gummow JJ, [63] per McHugh J and [152] per Hayne J.
Bhardwaj was considered by the Full Federal Court in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 (Jadwan). Gray and Downes JJ concluded:
Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of the reasoning, relied on the proposition that jurisdictional error on the part of the decision‑maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced the proposition. Kirby J in his dissenting judgment clearly did not [40].
Gray and Downes JJ also analysed the authorities and concluded that a decision that was no decision at all may still have consequences. Their Honours also highlighted that the High Court had not explained in any detail what the consequences were for a decision that had no legal effect:
Gaudron and Gummow JJ did not explain in detail the consequences of the proposition that the decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision‑maker, but the court has declined to grant relief in relation to the decision by reason of discretionary considerations [40].
After referring to the reasoning of the High Court in Plaintiff S157, Gray and Downes JJ concluded that Bhardwaj had a limited application:
In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision‑maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute [42].
Kenny J agreed at [64].
Those statements of Gray and Downes JJ were obiter because the court held that there had not been any jurisdictional error. However, their Honours comments have been approved or followed by intermediate courts of appeal: Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82; Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30; Director of Public Prosecutions (DPP) v Edwards [2012] VSCA 293; Purton v Jackson [2012] TASFC 2.
Aronson, Groves and Weeks in Judicial Review of Administrative Action and Government Liability (6th ed, 2017), after referring to Bhardwaj, Plaintiff S157 and Jadwan offer the following 'interim conclusions':
For most contexts, the outcome of judicial review is retrospective, in the sense that the jurisdictionally flawed decision is treated as having had no relevantly adverse legal effect. 'Nullity' is a useful word to denote that outcome. It is not automatically the case, however, that jurisdictionally flawed decisions fail to produce legal consequences. Nullity is a bundle of legal consequences. Whether a decision has relevantly adverse legal effects, and if so, how many, are questions which will receive different answers in different contexts [10.120].
In my opinion the effect of the authorities is as follows. First, an administrative decision which involves jurisdictional error is legally invalid. Secondly, 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. Thirdly, 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.
I will return to those matters later in these reasons but before doing so I will refer to the decision of the Full Court of the Western Australian Supreme Court in Robertson v Western Australia (1997) 92 A Crim R 115 (Robertson) which the defendants say supports their contention that the Chief Executive Officer had lawful authority to detain Mr Tulloh prior to the cancellation order being quashed by this court.
Robertson v Western Australia
Robertson concerned a claim for damages against the State for unlawful imprisonment. In June 1989 the appellant was sentenced to 4 years' imprisonment for the possession and sale of a drug. Later that month he was fined $1,000 in respect of possession of cannabis and a further $1,000 in respect of possession of cannabis resin. In default in payment of fines and costs he was required to serve periods of imprisonment of 43 and 40 days respectively. All the magistrate said was that the prison terms in default of payment of the fines were 'to be cumulative'. The warrant of commitment incorrectly stated that the terms would not only be cumulative on each other, but also cumulative on any other sentence the appellant was then serving. Thus, the appellant spent 56 more days in prison than was required by the default sentence. His solicitor assumed that the periods of default imprisonment would be served concurrently with the existing sentence and that it was unnecessary to pay the fines. The amended grounds of appeal conceded that s 230 of the Justices Act 1902 (WA) excluded liability on the part of the magistrate, but claimed that the respondent was vicariously liable for the act of the responsible prison authority and for the failure of the Board to release him on parole 56 days earlier than the date on which he was in fact released.
The Full Court held that the appellant's imprisonment until his release was lawful. Steytler J (with whom Malcolm CJ and Franklyn agreed) reviewed the authorities in connection with a person in the position of a gaoler following the direction contained in a warrant apparently valid on its face. He said:
It would be an odd result, in a case in which a prison officer was simply enforcing a Magistrate's order, if he or she were to be held liable because of the invalidity of the order when the person issuing the order was not so liable, at least in circumstances in which the order was valid on its face.
The courts have generally set their face against this kind of result.
…
… it seems to me to be difficult to deny the proposition, when regard is had for existing authority and for legislation in this State, that a prison superintendent may not be held liable for acting on a warrant which is, on the face of it, valid but which later turns out to have been wrongly issued for reasons which had not been known to that superintendent.
…
There is, in this State, no legislative provision which denies the application of the principle to prison superintendents. Indeed, those provisions of the Justices Act to which we were referred in the course of argument tend to support the efficacy of a warrant until set aside by a court of competent jurisdiction. Thus, s 23 of that Act provides that every act done or purporting to have been done by or before a Justice shall be taken to have been done within his jurisdiction without an allegation to that effect unless and until the contrary is shown. (See also ss 22, 36 and 37 of that Act.)
In the circumstances of this case, and in the light of the authorities to which I have referred, it seems to me that, if it be accepted that the warrant was unlawful and subject to being set aside, that did not render unlawful the conduct of the prison superintendent in acting upon the warrant. Rather, the warrant, being ex facie an order of a court of competent jurisdiction, was required to be obeyed by the prison authorities until discharged by a court of competent jurisdiction.
That being so there is no basis for any finding of liability on the part of the Superintendent of the prison in which the appellant was incarcerated (122 ‑ 125).
Robertson was considered by Allsop P in relation to the appellant's appeal against the dismissal of his claim for damages for false imprisonment in Kable v New South Wales (2012) 293 ALR 719. Campbell and Meagher JJA and McClellan CJ at CL agreed with Allsop P in relation to this part of the appeal. Allsop P said:
The principle that appears to be enunciated in Robertson can be taken as the following: that a prison officer enforcing a judicial order, valid on its face, but in fact legally invalid, of a judicial officer of a court of competent jurisdiction, acts lawfully in, and is not liable in tort for, complying with it. Implicit in the reasoning of Steytler J and in all the cases referred to by him is that the character of the order of the court is judicial. The court in Robertson was not dealing with the issue of an executive warrant. True it is that the character of the order here as non-judicial was not apparent on the face of the order, which appeared to be judicial since it was made by the court. That is no basis, however, for extending the principle enunciated by the Full Court of the Western Australian Supreme Court to an order, in form made by a court, which is in its true character a wholly invalid exercise of non-judicial power of the kind described by the High Court in Kable. It was not argued that Robertson was plainly wrong. It can be accepted as dealing with judicial orders made by courts of competent jurisdiction. There is no call from its own terms to extend it to an 'order' of the kind and character here. Thus the principle as above enunciated is to be understood as applicable to a judicial order in the sense discussed in Love [42].
Allsop P then reviewed a number of authorities concerning the liability of a gaoler acting under an order or warrant issued by a court. His Honour concluded:
For the purposes of the resolution of this appeal, I propose to proceed upon the assumption that the common law provides that, as a general rule, an officer (such as a sheriff or gaoler) obeying a judicial order of a competent court and executing it is protected, even if the order be at that time invalid. Such a rule, however, has never been held to be applicable, or expressed in such terms as require it to be held applicable, to an order whose invalidity is of the character, and for the reasons, found by the majority in Kable. The order here, according to the court in Kable, is not a judicial order of a superior court of record. The order is not a judicial order at all, and it was made after a process which was the antithesis of judicial proceedings [48].
Allsop P then said that the order there in question was administrative not judicial. Allsop P found that the order had no force or effect because, as an executive act, it took its force only from the statute which was unconstitutional and of no effect. The common law principle did not extend to a non‑judicial order not arising from judicial process.
The High Court allowed an appeal from the New South Wales Court of Appeal: New South Wales v Kable (2013) 252 CLR 118 (NSW v Kable); but the High Court judgments do not affect the persuasiveness of the observations of Allsop P concerning the common law principles underlying the decision in Robertson. The High Court held that the order made by Levine J, which the New South Wales Court of Appeal had held to be administrative in character, was a judicial order of a superior court of record and was valid until set aside even if made in excess of jurisdiction. For the reasons of Allsop P referred to above the decision of the Full Court in Robertson does not answer the question posed in this case.
Lawful acts following invalid acts
I return to the problem raised by this case. An administrative decision affected by jurisdictional error is legally invalid but may have legal effect in certain circumstances. Professor Forsyth's theory of the second actor is a principled and practical approach to this conundrum. Professor Forsyth has described the nub of the theory as follows:
[U]nlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether the second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void. [Forsyth C, 'The Theory of the Second Actor Revisited' (2006) 1 Acta Juridica 209, 215.]
The theory was approved by the House of Lords in Boddington v British Transport Police [1999] 2 AC 143 (Boddington) and by the South African Supreme Court of Appeal in Oudekraal Estates (Pty) Ltd v The City of Cape Town (2004) 6 SA 222 (SCA) (Oudekraal). It was referred to with apparent approval by Kirby J in Re Patterson, Ex parte Taylor (2001) 207 CLR 391.
The apparent anomaly that a legally invalid act can produce legally effective consequences is explained by Professor Forsyth's distinction between what exists in law and what exists in fact. While a void administrative act is not an act in law, it is an act in fact, and its mere factual existence may provide the foundation for the legal validity of later decisions or acts. In other words, an invalid administrative act may, notwithstanding its nonexistence in law, serve as the basis for another valid decision. Its factual existence, rather than its invalidity, is the cause of the subsequent act, but that act is valid since the legal validity of the first act is not a precondition for the second. The proper inquiry is not whether the initial act was valid but rather whether its substantive validity is a precondition for the validity of the consequent act. If the validity of the consequent act was dependent only on the factual existence of the initial act, then the consequent act will have legal effect for so long as the initial act is not set aside on review.
Whether the substantial validity of the first act (the cancellation order) is a precondition for the validity of the second act (the determination of Mr Tulloh's release date and detention of Mr Tulloh) will depend upon the statutory context. That is consistent with the approach of the Full Federal Court in Jadwan and the cases which have followed it.
Sometimes a statute will expressly state what the powers of the second actor are and make it clear whether a precondition for the validity of the second actor's act is the legal validity of the first actor's act. More frequently, as in this case, the statute does not deal with the issue expressly. Professor Forsyth suggests that some principles to guide the courts in deciding this issue may be discerned from Boddington and Oudekraal. After referring to Boddington Professor Forsyth writes:
So a first principle is that the presumption in favour of collateral challenge applies less strongly where what is challenged is an administrative act specifically addressed to an individual (rather than a legislative act addressed to all). The provision of an adequate mechanism for testing the validity of that act further weakens the presumption in favour of collateral challenge.
A second principle may be gleaned from the Oudekraal judgment. It directs attention to 'the value of certainty in a modern bureaucratic state, a value that the legislature should be taken to have in mind as a desirable objective when it enacts enabling legislation'. The context indicates that certainty is to be a guide in construing statutes in order to determine the powers of a second actor. The desirable objective of certainty in the modern bureaucratic state can hardly be denied, but adopted too absolutely this principle would amount to an unlimited grant of power to all second actors. The crucial point about the second actor theory is that the powers of the second actor are determined by law. This requires an analysis of the express powers of the second actor against the background of the purposes and policies of the relevant statutes. Thus where it is plain from the relevant legislation that the first act is intended to be relied upon by second actors, and that there would be substantial injustice and administrative inconvenience to innocent parties if those second acts were afterwards found to be void because of the invalidity of the first act, then the court might infer an intent that the second actor could act validly notwithstanding the invalidity of the first act (220 ‑ 221).
To determine the validity of the Chief Executive Officer's determination of the release date and detention of Mr Tulloh after 8 December 2012 but prior to the quashing of the cancellation order it is necessary to examine the provisions of the relevant legislation and their context.
Cancellation order is effective until quashed
I find that the determination of Mr Tulloh's release date and the lawful authority of the Chief Executive Officer 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 Chief Executive Officer 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. I make that finding for three reasons.
First, the statutory framework indicates that a legally invalid cancellation order has legal consequences and is not utterly without existence or effect in law. The decision of the Board to make and subsequently cancel the parole order was made under the SAA 2003. The SAA 2003 and the Sentencing Act determined the release date of a prisoner. SAA 2003 s 115A provides that a prisoner about whom a reviewable decision (which includes a decision by the Board to cancel a parole order) is made, may request the Board to review the 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. A legally invalid decision must continue to have some effect as a 'reviewable decision'. When a review request is made the chairperson of the Board must review the decision and may confirm, amend or cancel the decision or make another decision or refer the decision to the Board for further consideration. SAA 2003 s 49 provides that the CEO (the Chief Executive Officer of the Public Sector agency principally assisting the Minister administering Part 8 in its administration) may apply to a judge of the Supreme Court for an order resolving any doubt or difficulty, including doubts or difficulties as to, amongst other things, any matter relating to parole including the effect of the cancellation of parole. The judge may make any order the judge considers just and for that purpose may make a declaration as to any date relevant to a sentence of imprisonment or the parole or release of a prisoner. The wide power conferred upon a judge in relation to a legally invalid parole cancellation order indicates that a legally invalid parole cancellation order has legal consequence and is not without existence or effect in law.
Secondly, the SAA 2003 intends the fact of a cancellation order to be relied upon and acted upon by persons other than the Board. Section 70(1) provides that when a parole order is cancelled the warrant of commitment that relates to the sentence of imprisonment to which the parole order relates is again in force and the prisoner may be arrested and kept in custody under that warrant. Section 70(2) provides that when a parole order is cancelled a warrant to have the prisoner arrested and returned to custody may be issued by a Supreme Court judge or a District Court judge. The CEO must determine the prisoner's release date, and hence whether to detain the prisoner in custody, according to whether the prisoner is a prisoner whose parole has been cancelled.
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 decision of the Board 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. A police officer would be acting unlawfully in arresting a prisoner upon the making of the cancellation order subsequently declared to be invalid and the CEO would be obliged not to receive the prisoner into custody. The prisoner would be entitled to disregard the cancellation order and remain on parole. A prisoner returned to custody may be entitled to lawfully escape and resist attempts to detain him after his sentence has expired upon the basis that he is not a prisoner whose parole had been cancelled.
The CEO cannot, except in extreme cases, know that a cancellation order is legally invalid before it is declared to be so but 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. The legislature could not have intended the CEO to enquire into and be satisfied that the cancellation order is legally valid before acting on it. The issue was touched upon by the High Court in NSW v Kable:
In this case, if the detention order made by Levine J was not effective until set aside, those apparently bound by the order were obliged to disobey it, lest they be held responsible for false imprisonment. On Mr Kable's argument, the order was without legal effect and should not have been obeyed. The decision to disobey the order would have required both the individual gaoler and the Executive Government of New South Wales to predict whether this Court would accept what were then novel constitutional arguments. More fundamentally, as the legal philosopher Hans Kelsen wrote (89), '[a] status where everybody is authorised to declare every norm, that is to say, everything which presents itself as a norm, as nul, is almost a status of anarchy' [40].
That observation concerning the detention order made by a judge applies equally to a parole cancellation order which requires the CEO and others to act upon it by arresting and detaining the prisoner.
Thirdly, the act of the CEO in detaining a prisoner after the making of a cancellation order subsequently declared to be legally invalid is an administrative act specifically addressed to an individual prisoner rather than a legislative act addressed to all and SAA 2003 s 115A provides the prisoner with a mechanism for testing the validity of that act. That is an in indication that the legal validity of the cancellation order is not a precondition to the validity of acts by the Chief Executive Officer in reliance upon it: see Boddington at 161 ‑ 162 per Lord Irvine.
Conclusion
Jurisdictional error by the Board in making a decision to cancel a parole order does not lead to the parole cancellation order having no consequences whatsoever. The decision is a reviewable decision for the purposes of s 115A of the SAA 2003 and the prisoner about whom the decision is made may request the Board to review the decision. Prior to being quashed by a court, a legally invalid parole 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. Accordingly, the Chief Executive Officer did have lawful authority to detain Mr Tulloh between 8 December 2012 and 4 July 2014.
The preliminary question should be answered:
The detention of the plaintiff by the first defendant between 8 December 2012 and 4 July 2014 was done with lawful authority.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
ASSOCIATE TO LE MIERE J11 APRIL 2018
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