Tulloh v Prisoners Review Board - [2014] WASC 239

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TULLOH -v- PRISONERS REVIEW BOARD [2014] WASC 239

CORAM: CHANEY J

HEARD: 14 MAY 2014

DELIVERED : 4 JULY 2014

FILE NO/S: CIV 2948 of 2013

BETWEEN: MICHAEL DENNIS JOHN TULLOH
Applicant
AND
PRISONERS REVIEW BOARD
First Respondent
CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF CORRECTIVE SERVICES
Second Respondent

Catchwords:

Administrative law - Judicial review - Decision to cancel parole - Irrelevant considerations - Failure to consider relevant considerations - Whether policy inflexibly applied

Legislation:

Sentencing Act 1995 (WA)
Sentence Administration Act 1995 (WA)
Sentence Administration Act 2003 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Supreme Court Act 1935 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Decisions quashed

Category: B

Representation:

Counsel:

Applicant:     Mr B W Galloway
First Respondent          :     Ms C J Thatcher
Second Respondent      :     No appearance
Intervenor:     Ms C J Thatcher

Solicitors:

Applicant:     Galloways Solicitors & Attorneys
First Respondent          :     State Solicitor for Western Australia
Second Respondent      :     No appearance
Intervenor:     State Solicitor for Western Australia

Cases referred to in judgment:

Agnew v Prisoners Review Board (No 2) [2012] WASC 175
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Hiron v The State of Western Australia [2010] WASC 236
Jones v Dunkel (1959) 101 CLR 298
King v Allen Piper, Director General, Department of Justice WA [2004] WASCA 218
Minister for Aboriginal and Torres Strait Islander Affairs v The State of Western Australia (1996) 67 FCR 40
NGJF v Prisoners Review Board [2010] WASC 107
R v Secretary of State for Home Department; Ex parte Venables & Thompson [1998] AC 407
Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515
Seiffert v Prisoners Review Board [2011] WASCA 148

CHANEY J: On 13 December 2002, the applicant, Mr Tulloh, was sentenced to a 15 year term of imprisonment following a conviction for possession of methamphetamine with intent to sell or supply. When sentencing Mr Tulloh, the sentencing judge explained the effect of the then current provisions of the Sentencing Act 1995 (WA) (Sentencing Act) and the Sentence Administration Act 1995 (WA) (SA Act 1995). He said:
You are sentenced to 15 years imprisonment. That sentence is to date from 9 December. As the term is in excess of 6 years, one third of the sentence will be remitted. You will then serve 10 years less 2 years, namely 8 years in custody. If you are granted parole, and I make you eligible for parole, then you spend 2 years on parole. That is the sentence of the court.
On 25 November 2010, Mr Tulloh was granted parole, and was released on parole on 8 December 2010. As had been explained to him by the sentencing judge, he was required to serve two years on parole, and in the event that that period of parole was successfully completed, his sentence would have then been taken to have been fully served.
In addition to the standard obligations of a parolee, the parole order contained a number of requirements. Included amongst those requirements was a requirement that Mr Tulloh must not use or be in possession of any illicit drug including cannabis, and that he undertake urinalysis for all illicit drug use.
Mr Tulloh complied with the conditions of his parole up until 28 August 2012, when a specimen of his urine was collected for analysis and returned results indicating that methylamphetamine had been detected. On 30 August 2012, an order was made, by an officer of the second respondent under delegated authority, suspending Mr Tulloh's parole. On 4 September 2012, the Prisoners Review Board (Board) advised Mr Tulloh that it had decided to cancel his parole.
The effect of the cancellation of Mr Tulloh's parole was that he was required to serve his full term of imprisonment, that is, 15 years. He was returned to prison and remains there. The consequence of his failed urinalysis test is that Mr Tulloh faces the prospect of serving five years in prison more than he would have served had he been ruled ineligible for parole or had he not sought or been granted parole. In either of those events, he would have been entitled to be released after serving a maximum of 10 years.
An application to review the cancellation decision was unsuccessful.
Mr Tulloh brings these proceedings for judicial review of the calculation by the Chief Executive Officer of the Department of Corrective Services as to the remaining length of the sentence to be served, and as against the Board in relation to the decision to cancel his parole, and the decision affirming that cancellation.
At the hearing, counsel for Mr Tulloh conceded that the calculation of the sentence to be served was consistent with the decision of a Full Court of this Court in King v Allen Piper, Director General, Department of Justice WA[1] and accepted that I was bound to follow that decision. Counsel suggested that consideration be given to referral of that question to the Court of Appeal, presumably under s 43 of the Supreme Court Act 1935 (WA).
[1] King v Allen Piper, Director General, Department of Justice WA [2004] WASCA 218.
As to the decision to cancel parole, and the decision affirming that cancellation, Mr Tulloh makes various allegations that the relevant decision maker acted in excess of jurisdiction, or breached rules of procedural fairness, to support the relief which he seeks. His contentions are set out more fully below.

Extension of time

The decision to cancel Mr Tulloh's parole was made on 4 September 2012. The decision on the review was made on 12 September 2012. The determination of the length of the term to be served by Mr Tulloh following cancellation of his parole is said, in the application, to have been made by the first respondent on or about 10 October 2012. These proceedings were initiated on 20 December 2013, more than 12 months after the decisions in respect of which relief is sought.
The application was made in accordance with O 56 of the Rules of the Supreme Court 1971 (WA). That order had been amended two days earlier, on 18 December 2013. In its amended form, O 56 r 2(4) requires that an application made more than six months after the date of the decision (or the date on which the applicant becomes aware of it) requires leave to proceed.
At the time that the decisions the subject of this application for review were made, O 56 r 11(1) stipulated a 6‑month limitation period in respect of a judgment, order, conviction or other proceeding of an inferior court or tribunal. No time limit was stipulated in respect of other decisions which are susceptible to judicial review. In Agnew v Prisoners Review Board (No 2), Hall J said:[2]
A 'tribunal' is a body or officer performing a judicial or quasi‑judicial function outside the regular judicial system: Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129 [73] ‑ [77] (Anderson J), [90] ‑ [91] (Scott J); Re Monger; Ex parte United Construction Pty Ltd[2002] WASCA 253 [2] (Malcolm CJ), [26] ‑ [29] (Anderson J). Differing views have been expressed as to whether the time limit applies to officers or bodies that are not tribunals (or who fall into the other categories referred to in O 56). However, it has been suggested that the better view is that it does not: Re Monger; Ex parte United Construction; Re Monger; Ex parte Barminco Pty Ltd [2002] WASC 279.
[2] Agnew v Prisoners Review Board (No 2) [2012] WASC 175 [10].
Hall J accepted that the Prisoners Review Board is not a tribunal for the purposes of O 56 r 11(1).
On that approach, which I respectfully accept as correct, Mr Tulloh would not have been required to obtain an extension of time prior to the amendments to O 56 on 18 December 2013.
In Rodway v The Queen,[3] it was determined that where a limitation period is subsequently abridged or extended by an amending statute, the amending statute should not, in the absence of a clear statement of intention, be given a retrospective operation. To do so would result in the amending legislation operating so as to impair existing substantive rights.
[3] Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 [519] (the Court).
It follows that, in this case, Mr Tulloh does not need any extension of time to bring the present proceedings. If an extension of time was required, I would have been inclined to grant it. Mr Tulloh's affidavit demonstrates that, from the time that the relevant decisions were made, he has sought to correspond with the relevant decision makers with a view to having his concerns dealt with. His incarceration has undoubtedly made that process more difficult and resulted in delays. Having regard to the fact that the matters raised by Mr Tulloh go to the question of his liberty, and given that the respondents do not assert any prejudice in the delay, I would not have hesitated to extend time for commencement of the proceedings were it necessary.

Claim against the CEO, Department of Corrective Services

These proceedings were originally commenced by Mr Tulloh in person. Subsequently, he was able to engage solicitors and counsel, apparently on a pro bono basis, to assist him. At the hearing, counsel sought to reformulate the grounds of review more precisely than they had been drawn in Mr Tulloh's application. The grounds as redrawn did not address the claim for relief against the second respondent. No doubt that was because, save for the suggestion of referral of the question of calculation of sentence to the Court of Appeal, the hearing was entirely focused on the actions of the first respondent.
As originally drawn, the grounds of review in relation to the second respondent are directed to complaints that Mr Tulloh had, by reason of cancellation of his parole, effectively been deprived of the one‑third remission which applied to sentences prior to the enactment of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (SLAR Act) and the Sentence Administration Act 2003 (WA) (SA Act 2003) which I will refer to as the 2003 amendments. That legislation, which was commonly referred to as the 'truth in sentencing' legislation, repealed and replaced provisions which previously prescribed an automatic one‑third remission of all sentences, and instead required courts to impose a head sentence which was two‑thirds of the sentence which would have been imposed prior to the amendments.
In King v Piper,[4] the Full Court considered the effect of cancellation of parole on a sentence imposed under the Sentencing Act prior to the 2003 amendments. It referred to s 71(1) and (2) of the SA Act 1995 which provided:
(1)If an early release order, other than 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 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 s 95 of the Sentencing Act 1995.
[4] King v Piper, Director General, Department of Justice WA [2004] WASCA 218.
Section 95 of the Sentencing Act provided that a prisoner serving a fixed term, not being a parole term, is discharged from the sentence when he has served two‑thirds of the term.
The Court continued at [26] to say:
The distinction between s 71(1) and s 71(2) will be noted. In our opinion, it is deliberate. Cancellation of a WRO does not interfere with the general principle that a prisoner is discharged from his or her sentence and entitled to be released on serving two-thirds of the term, but the provision made by s 71(1) for the case, which is the case of the applicant, where a parole order is cancelled, is quite different. There is no entitlement to release and the applicant's detention remains lawful until he has served the whole of the term. That is subject, however, by s 71(6), to the fact that another parole order may still be made in respect of the applicant.
In Hiron v The State of Western Australia,[5] Blaxell J considered the impact of the SLAR Act on prisoners sentenced prior to the 2003 amendments who breached parole after the 2003 amendments came into effect. His Honour explained the relationship of the various provisions in the following way:
[5] Hiron v The State of Western Australia [2010] WASC 236.
The relevant legislative amendments were effected by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (SLARA 2003) which (for present purposes) came into operation on 31 August 2003. Consistent with the statutory terminology I will refer to the legislation that applied before and after 31 August 2003 as 'the old provisions' and 'the new provisions' respectively.
As at 31 August 2003, each applicant was serving numerous 'parole terms' as defined in s 5(1) of the Sentencing Act 1995 (WA) (SA). Those parole terms became the subject of suspended and/or cancelled parole orders after 31 August 2003. In these circumstances, the transitional provisions in SLARA 2003 Sch 1 determine the extent to which the old provisions and the new provisions have application to those parole terms. In this regard, cl 5 of Sch 1 provides:
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 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 pt 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.
It is also relevant to note that by cl 9 of the transitional provisions, a warrant of commitment that issued under the old provisions remains in force despite the repeal of those provisions. Accordingly, and in respect of each of the applicants, SLARA 2003 has the following effect:
(1)The old provisions determine the date when each term of imprisonment imposed prior to 31 August 2003 (has, or) will come to an end - cl 5(2)(a)(iii).
(2)The new provisions determine the date when each term of imprisonment imposed after 31 August 2003 (has, or) will come to an end.
(3)The Sentencing Administration Act 2003 (SAA 2003) applies to the release of each applicant on parole after 31 August 2003, and therefore governs the consequences of the subsequent cancellations of their parole orders - cl 5(2)(d).
In determining when each parole term imposed prior to 31 August 2003 has, or will, come to an end, it is important to note that SA s 85(4) in the old provisions was as follows:
(4)In this Part and in the Sentence Administration Act 1995, the end of a fixed term is when the term as imposed by the court ends, and it does not matter if the prisoner is or may be released (under an early release order or otherwise) before then, or if the term is or may be taken to have been served before then.
(SA s 85(4) in the new provisions is to similar effect.)
It is also important to note that under the old provisions, SA s 95 provided for an early discharge and release from sentence with the consequence that most prisoners enjoyed a one-third 'remission':
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 div 2 of pt 2 of the Sentence Administration Act 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 div 2 of pt 2 of the Sentence Administration Act 1995, must be released.
However, not all prisoners serving parole terms received a one-third remission off sentence. This was because the Sentencing Administration Act 1995 (WA) (SAA 1995) s 71(1)) provided:
71. Effect of cancellation
(1)If an early release order, other than 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 not entitled to be released until he or she has served the whole of that term. (emphasis added)
Each of the applicants was released to parole after 31 August 2003 in respect of parole terms that had been imposed prior to that date. Their parole orders (or 'early release orders') were later cancelled. Consequently, SAA 2003 s 69 has had the following effect:
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 pt 2 div 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. (emphasis added)
Nevertheless, each applicant is entitled to be credited with 'clean street time' for the period between each release on parole and the subsequent suspension or cancellation of the parole order. In this regard SAA 2003 s 71 provides:
71. Clean street time counts as time served
(1)Subject to subsection (2), 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)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.
The impact of these provisions on each applicant
The effect of the above quoted legislative provisions is very clear, and in my opinion there is no uncertainty as to their proper construction. Relevant to the major issue raised by the applicants, it is SAA 1995 s 71(1) that determines the period still to be served in respect of each 'old' parole term that was the subject of a cancelled parole order. In that regard, s 71(1) required that after each applicant was returned to custody he was to 'resume serving the fixed term' and not be released until he 'has served the whole of that term'.
In light of SA s 85(4) in the old provisions: 'the whole of that term' can only refer to the unexpired period up until when 'the term as imposed by the court ends'. This period includes the one‑third portion of the term that would otherwise have been remitted if the parole order had not been suspended or cancelled [8] ‑ [18].

In my view, there is no reason to doubt the correctness of the analysis undertaken by Blaxell J. It is consistent with the decision of the Full Court in King v Piper,[6] and I agree that the effect of the legislation, as explained by Blaxell J 'is very clear'.[7]
[6] King v Piper, Director General, Department of Justice WA [2004] WASCA 218.
[7] Hiron v The State of Western Australia [2010] WASC 236 [17].
It is clear in this case that the second respondent has calculated the balance of the sentence to be served by Mr Tulloh consistently with the approach explained in King v Piper[8] and Hiron.[9] In those circumstances, I do not consider it appropriate to refer the question to the Court of Appeal.
[8] King v Piper, Director General, Department of Justice WA [2004] WASCA 218.
[9] Hiron v The State of Western Australia [2010] WASC 236.
It does appear that prisoners sentenced prior to the 2003 amendments who breach parole are in a significantly worse position than that of a person sentenced after the 2003 amendments were implemented. For example, had Mr Tulloh been sentenced after the 2003 amendments, his head sentence would have been 10 years, and the consequences of a breach of parole would have been that he would have been required only to serve out the balance of his term to a maximum of 10 years. It is not, however, the case that the 2003 amendments put Mr Tulloh in a worse position than he faced had the amendments not been made. As King v Piper[10] illustrates, his position under the legislative regime under which he was originally sentenced did not change for the worse (or at all) by reason of the amendments.
[10] King v Piper, Director General, Department of Justice WA [2004] WASCA 218.

Claim against the Prisoners Review Board

As mentioned above, counsel for Mr Tulloh reformulated the grounds of review insofar as they concerned the application for relief against the Prisoners Review Board. That course was suggested by me in the hope that I could more readily understand how the various complaints made by Mr Tulloh about his treatment related to recognisable grounds of judicial review, and more clearly identify the particular decision to which each complaint related. An opportunity was provided for counsel to confer with Mr Tulloh for the purpose of finalising the grounds.
The grounds as reformulated in the course of the hearing read as follows:
Amended Grounds of Application
1.A review of a decision under s 115 does not afford the application procedural fairness.
2.The Applicant seeks judicial intervention of the decision of 4 September 2012 as the decision maker failed to take into account relevant information and took into account irrelevant information which is was [sic] precluded from doing.
3.The decision is flawed because on the face of the record the decision maker took into account an irrelevant consideration, namely, the Applicant's asserted and continued use of illicit substances.
4.The decision maker failed to have regard to a relevant consideration, namely, the Community Corrections Officer failed to speak with Mr Tulloh about the result in accordance with relevant policy and ascertain whether the positive result was attributable to some other event other than the use of illicit substances.
5.The decision maker had regard to a relevant consideration, namely inflexible policy dictating effectively a mandatory cancellation of parole in circumstances where there was a positive urinalysis.
6.Pursuant to s 115A the Applicant was entitled to procedural fairness, as s 115 does not apply to a review pursuant to s 115A.
7.The Applicant was precluded from advancing grounds or arguments pursuant to s 115A(6) as the decision maker withheld information from him.
8.The decision maker used incorrect information in terms of the Applicant's continued use of methylamphetamine when there was no evidence of previous use of same on the face of the record, in effect the evidence was to the contrary.
9.The decision maker made an error of law and/or did not comply with the Act or Regulations by following a rigid unreasonable policy of cancelling parole for those with a positive urinalysis to cancel parole, and used incorrect information in so far as the policy is concerned.
10.The decision maker used incorrect information in that it did not comply with Australian Standards so far as the testing of the urine was concerned.
11.The decision maker failed to consider relevant information, namely, the Applicant's denial of use of the relevant substance and breach [sic] Australian Standards by failing to consider relevant information, namely the contents of the 'referee' sample in forming a decision.
12.The decision maker failed to act reasonably and afford the Applicant procedural fairness having regard to policy of the First Respondent to speak with persons in the position of the Applicant about the positive urinalysis and therefore failed to take into account a relevant consideration or did not consider a relevant consideration.
No doubt because of the relatively short time for completing the task, the amended grounds of review still lack clarity. Paragraphs 1 and 6 speak of entitlements to procedural fairness under provisions of the 2003 SA Act, but do not constitute grounds of appeal. The remaining grounds of appeal, which in some respects are repetitive, do not clearly identify whether they are referable to the initial decision to cancel parole made on 4 December 2012, or the decision of the Chairperson on review under s 115A(8) of the SA Act 2003, or both. It is convenient, therefore, for me to group the grounds by reference to accepted grounds of judicial review, then deal with each group in turn. Before doing that, however, it is useful to review the statutory framework under which the decisions were made.
The Board is established by s 102 of the SA Act 2003. It has the powers of a Royal Commission ‑ SA Act 2003 s 107. The Board may use experts to assist it in relation to a matter within its functions by providing a report, advice or professional services ‑ SA Act 2003 s 107A. By s 107B, the Board is obliged to provide a prisoner with notice of any decision it makes, including a decision to suspend or cancel an early release order. The notice must include the reasons for the decision (SA Act s 107B(4)).
Section 115 provides that the rules of natural justice do not apply in relation to acts by various entities, including the Board, under pt 2 to pt 6 of the SA Act 2003. The power to cancel parole orders is found in s 44, which falls within pt 3 of the SA Act 2003, and thus the rules of natural justice do not apply to decisions of the Board to cancel parole.
Section 115A provides for the possibility of review of a decision, including a decision by the Board to suspend or cancel an early release order. Section 115A appears in pt 10 of the SA Act 2003, and thus the rules of natural justice are not excluded in relation to reviews under s 115A. However, the review under s 115A is limited. A request for review may only be made on the grounds that the person who made the decision did not comply with the SA Act 2003 or the regulations, made an error of law, or used incorrect or irrelevant information or was not provided with relevant information ‑ s 115A(6). A request for review must be in writing, and must state the grounds for it and include any submissions that the applicant wants to make to the Board about the decision concerned and the reasons for it ‑ s 115A(7). When a request is made, the Chairperson of the Board must consider any submissions included in it and review the decision and may confirm, amend or cancel the decision, make another decision or refer the decision back to the Board for further consideration ‑ s 115A(8).

The facts surrounding Mr Tulloh's parole

Mr Tulloh's parole order was dated 25 November 2010. His release date was 8 December 2010. The parole expiry date was 8 December 2012. The reasons for the decision to grant parole were set out in the order as follows:
1.Risk to community safety has been reduced by completion of relevant programs to assist in addressing offending behaviour.
2.Conditions of parole will build on treatment gains made.
3.First term of imprisonment.
4.First opportunity at parole.
5.Successful participation in Prisoner Employment Program indicates you are likely to comply with parole requirements.
6.Minor previous criminal history.
The parole order contained standard obligations including the obligation to report to a community corrections officer (CCO) within 72 hours of release, to notify the CCO of any change of address or place of employment and to meet the obligations set out in s 76 of the SA Act 2003 (being requirements to comply with directions of a CCO).
Mr Tulloh's parole order also specified that he must not commit an offence, must not use or be in possession of any illicit drug including cannabis, and must not leave or remain out of Western Australia without first obtaining written permission from the Board. In addition, he was required to attend substance abuse counselling, undertake urinalysis for all illicit drug use, not to associate with members or associates of outlaw motorcycle gangs, and not to change address without prior CCO approval.
On 28 August 2012, Mr Tulloh submitted himself for urinalysis. The laboratory report relating to that test showed that the sample tested positive for methamphetamine and noted:
Legal medication may cause a non‑negative result for some classes of drugs when urine is screened by immunoassay technology. AS/NZS 4308: 2008 requires a confirmation of non‑negative results by mass spectrometry. Confirmation testing helps to distinguish between legal and illicit drugs.
An analyst's certificate, apparently produced at the same time as the laboratory report (10:00 am on 30 August 2012), certified that analysis had been undertaken with the result that methylamphetamine was detected at 185 micrograms per litre (ug/L) which is above the cut‑off threshold of 150 ug/L. The certificate specified that a laboratory confirmation had been carried out in accordance with s 5 of the Australian/New Zealand Standard 4308: 2008.
The Executive Officer of the Board, Ms Angela Delaney, provided an affidavit for the purpose of these proceedings. She deposed to the fact that on 30 August 2013 the Board received a copy of an arrest warrant for Mr Tulloh with attachments and an order suspending parole. The arrest warrant is dated 30 August 2012 and is signed by Southwest Coastal Community Corrections. The reason for the issue of the warrant is said to be 'parole order suspended'. The warrant was apparently sent to the police for execution.
On 4 September 2012, the Board considered Mr Tulloh's case and made a decision to cancel his parole order. The information before the Board when it made that decision was a copy of the laboratory report and the analyst's certificate, and a copy of a document entitled 'breach advice', apparently prepared by someone within the Department of Corrective Services.
The breach advice specified that the 'reason for breach advice' was 'omission'. It recited that, in relation to supervision, there had been satisfactory compliance, and that Mr Tulloh had reported as directed, although it suggested that his engagement was 'somewhat superficial'. It reported that Mr Tulloh had attended psychological counselling as directed and had been reported to be 'very compliant in his attendance' but with entrenched attitudes that are unlikely to change. No further treatment was recommended. It commented that Mr Tulloh's six prior urinalysis results had proved negative to illicit substances, but recommended suspension and issue of a warrant for the reason that 'Mr Tulloh's index offence is possession of a prohibited drug with intent to sell/supply (methylamphetamine). He has now tested positive to methylamphetamine.' The Manager's decision to suspend parole and issue a warrant was said to be for the reason 'Continued use of illicit substances as evidenced by results dated 30.8.12. Test undertaken on 28.8.12'. No other information appears to have been before the Board when it made its decision.
On 4 September 2012, the Board wrote the applicant advising him that it had considered his case and decided to cancel his parole order. The reasons for that decision were expressed as follows:
1.For non‑compliance with the parole requirement not to use or be in possession of any illicit drug including cannabis.
2.Having tested positive by urinalysis to the detection of methylamphetamine on 28 August 2012. The Board considers your risk increased to the safety of the community.
I read the full stop in reason 2 as a typographical error which should have been a comma.
The letter advised Mr Tulloh of his right of review under s 115A of the SA Act 2003.
On 12 September 2012, the Board received a letter from Mr Tulloh requesting that the decision to cancel his parole be reviewed. The letter from Mr Tulloh specified that the grounds of review were that the Board used incorrect or irrelevant information or was not provided with relevant information. The letter continued:
In brief I am a paroled prisoner that after severing [sic] 8 years has reported monthly for the past 21 months; I have 3 months of parole to complete. I have complied with the boards [sic] conditions that were placed on me and until now have had no problems. Among other things discussed with various parole officers I had expressed concerns on more than one occasion that I have felt really uncomfortable in going out in public even if it were to be out to dinner with my family (wife and two young kids) as I may breach my conditions by running into the 'wrong people'. For this reason I had probably gone out twice tops until last month to avoid any chance of a possible breach.
It has been a long haul for all and for the sake of a couple of months of not taking anything illicit (if I choose so) then I could take whatever I wanted too [sic]. I think it pretty plane [sic] to suggest that the first thing I would ask is to have the sample in concern be retested. I am pretty sure we can end any concerns there, if not consideration if any can be taken that I did not knowingly consume any illicit drug. I believe my runs on the board pardon the pun support the later [sic].
Mr Tulloh's request for review was received on 12 September 2012. On that day the Deputy Chairperson of the Board reviewed the decision to cancel parole, and by letter of the same date the Deputy Chairperson wrote to Mr Tulloh. After referring to Mr Tulloh's request for review, and reciting the terms of s 115A(6) of the SA Act 2003, the Deputy Chairperson continued:
You contend that the Board used incorrect or irrelevant information or was not provided with relevant information. In support of this you advise that you 'did not knowingly consume any illicit drug' and request that the sample be retested. I advise that prior to cancellation of your parole order confirmatory testing was carried out and methamphetamine was detected.
On 15 October 2012, Mr Tulloh wrote to the Prisoners Review Board asking for 'a copy of both A and B samples of urine tests performed at end August 2012'. On 29 October 2012, the Board responded by advising that it was unable to assist with his query and that urinalysis is carried out by the Department of Corrective Services who could be better placed to deal with his query.
After several further letters, during November 2012, to each of the first and second respondent seeking information concerning urinalysis results to which Mr Tulloh received no substantive answers, a solicitor wrote on Mr Tulloh's behalf to the Board making a fresh application for parole. His solicitor's letter addressed submissions to the question of risk posed by Mr Tulloh to the community, his personal circumstances and his risk of re‑offending.
On 21 December 2012, the Deputy Chairperson of the Board responded to the solicitor's application on Mr Tulloh's behalf for parole. That letter recited the fact that the Board's decision of 4 September 2012 had been reviewed and confirmed by a Deputy Chairperson on 12 September 2012 and that the latter decision could not be reviewed. It then continued:
I have read the correspondence and noticed participation in private counselling sessions which commenced after his parole was cancelled and that he continues to engage at his own expense, his family remains supportive and he has continuing employment. His ability to engage with community sports and employment were considered suitable when he was originally released to the opportunity of parole. Presently, there is no significant change in his circumstances or matters which changed the risk he poses to the safety of the community and Mr Tulloch's [sic] request to re‑apply for parole is denied.
Both the laboratory report and the analyst's certificate make reference to AS/NZS4308: 2008 suggesting that the testing procedure accords with that standard. Part 2.3 of AS/NZS4308: 2008 deals with integrity and identity of the collected specimen. Clause 2.4 outlines the procedure for despatch of the specimen for testing which requires that it be split between at least two containers, one of which shall be the 'referee specimen'. 'Referee specimen' is defined as an aliquot of an original specimen that has been decanted into a separate container which is to be sealed at the point of collection and subsequently stored at the laboratory for analysis in the event of any disputed result.
Clause 5.17 deals with disputed results, and provides that in the event that results are challenged, the referee specimen 'shall be made available for testing only with the consent of the donor'.
By a letter dated 14 January 2013, Mr Tulloh's solicitors, Galloways, wrote to the Board. The letter asserted that Mr Tulloh's contention, in his request for review of the cancellation decision, that he did not knowingly consume the drug should have brought about a request for re‑testing of the referee sample. It also asserted that, at the relevant time, Mr Tulloh was ill and had been taking flu medication purchased from a pharmacy. It further asserted that enquiries of 'the lab' had indicated the traces of the relevant drug in the sample examined were low enough so as to be consistent with the use of medication for a cold. The letter recited that enquiries of the laboratory had revealed that no testing of the referee sample had been undertaken.
Mr Tulloh apparently learned subsequently that the laboratory only retained the referee samples for a period of three months from the date of analysis. Therefore, from late November 2012 it was not possible to have Mr Tulloh's referee sample tested.
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.
It is against that background that Mr Tulloh seeks to attack the validity of the Board's decisions.
As I understand the applicant's contentions, they are to the effect that both the decision of the Board on 4 September 2012, and the affirmation of that decision on 12 September 2012 were infected by the same errors of law. Those errors consisted 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.

Failure to consider relevant matters and taking into account irrelevant matters (Grounds 2, 3.4, 8, 10 and 11)

Ground 2 is simply a general statement which is, presumably, based on the more particular grounds discussed below. It is not necessary to deal with it separately.

In relation to the Board's decision on 4 September 2012, the applicant contends that, by failing to follow its own policy, which required a CCO to speak to Mr Tulloh about the result of his urinalysis test, the Board failed to have regard to a relevant consideration, namely the possibility that the positive result was attributable to some event other than the use of illicit substances (ground 4).
The applicant contends that the Board, and the Deputy Chairperson on review, took into account irrelevant considerations namely:
i.The incorrect assertion in the breach advice as to the applicant's continued use of illicit substances (grounds 3 and 8).
ii.Taking into account 'incorrect information' being the urinalysis test results where there had been a failure to comply with the relevant standards as to testing (ground 10).
Mr Tulloh submits that, in making the decision on 12 September 2012, the Deputy Chairperson failed to have regard to relevant considerations namely:
i.The applicant's denial of use of the relevant substance and the contents of the referee sample (ground 11).
In considering these contentions, it must be borne in mind that care must be taken to distinguish between judicial review on the ground of error of law as distinct from invitations to deal with errors of fact or to review the merits of the decisions sought to be impugned. It is also important to bear in mind the basis upon which judicial intervention will be granted in relation to failure to take into account relevant considerations or erroneously taking into account irrelevant considerations. That basis was explained by Martin CJ (with whom McLure P and Murphy JA agreed on this point) in Seiffert v Prisoners Review Board[11] where his Honour said:
Accordingly, a basis for judicial intervention will only be made out because of failure to take account of a relevant consideration where the decision maker was obliged, as a matter of law, to take the consideration into account. Conversely, a basis for judicial intervention on the ground of taking an irrelevant consideration into account will only be made out when it is established that the decision maker took into account a matter that he or she was precluded from considering: see Minister for Aboriginal Affairs v Peko‑Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24, 39. Neither basis for intervention will be made out if a decision maker has failed to consider a matter that it was open to consider, but which he or she was not obliged to consider, nor if a matter was taken into account which it was open to the decision maker to consider, even though there was no obligation to take it into account. Where the legislation does not specifically enunciate the considerations which a decision maker is bound to consider, or which a decision maker is precluded from considering, the ascertainment of those considerations is to be determined by implication from the subject matter, scope and purpose of the Act: see Minister for Aboriginal Affairs v Peko-Wallsend (39 ‑ 40).
[11] Seiffert v Prisoners Review Board [2011] WASCA 148 [192].
The decision to cancel Mr Tulloh's parole was made under s 44 of the SA Act 2003. That section does not identify any criteria or matters which should or must guide the Board's decision. Section 5B of the SA Act 2003 specifies that the Board, or any other person performing functions under the SA Act 2003, must regard the safety of the community as the paramount consideration. Section 5A sets out what are referred to as the 'release considerations', being the factors to be taken into consideration by the Board in determining whether a prisoner should be released on parole ‑ SA Act 2003 s 20. In Seiffert,[12] Martin CJ noted that s 44 does not expressly require the Board to consider the release conditions prior to exercising a power to cancel a parole order. Rather, the only consideration which the Act expressly requires be taken into account when considering cancellation of a parole order is the safety of the community. He observed, however, that that is not to say that the release conditions are irrelevant to the exercise of the power of cancellation, but merely that the act does not expressly require each release consideration to be taken into account.
[12] Seiffert v Prisoners Review Board [2011] WASCA 148 [51].
In relation to the review under s 115A, the Chairperson of the Board (or his delegate, a Deputy Chairperson) must consider any submission included in the request for review ‑ SA Act 2003 s 115A(8). Where, as in this case, the ground of the request for review is that the original decision maker has not been provided with relevant information, it is implicit in s 115A(8) that the Chairperson on review is obliged to consider the information which the applicant for review says should have been taken into account. The facts that
•the rules of natural justice apply to a review under s 115A,
•s 115A(6) and (7) enable the person affected by the review to put relevant information before the reviewer, and
•s 115A(8) requires submissions to be considered,
strongly support the proposition that review under s 115A is designed to enable the person affected to be heard on the question concerned.
The 'relevant matter' which it is alleged the Board failed to take into account is information which might have been provided by Mr Tulloh had the CCO spoken to him about the test results in accordance with policy. That submission rests on the content of the Department of Corrective Services' urinalysis testing policy which is found in Chapter 8 of the Department's 'adult community corrections handbook'. That chapter deals with urinalysis testing, and in the section marked 'case manager action on receipt of results' the following appears:
1.The case manager must follow the Enforcement Policy and take appropriate action.
2.Contact should be made with the offender to discuss the results.
3.When the community corrections officer is not able to interpret the result the service provider must be contacted for clarification and advice.
...
The reference to making contact with the offender contains a footnote to the effect that consideration should be given to any adverse risks associated with advising an offender of their urinalysis result.
There is no suggestion that Mr Tulloh's CCO contacted him to discuss the results of his urinalysis before proceeding to order suspension of his parole and referring the matter to the Board, or before the Board made its decision. As I understand the applicant's contention, it is that the Board was required to consider that the Department of Corrective Services policy had not been followed, and its failure to do so constituted an error of law.
In my view, the question of whether or not the CCO had complied with Departmental policy was not a matter which the Board was required to take into account. It is to be noted in this context that the rules of procedural fairness do not apply in relation to decisions by the Board to cancel parole. The apparent unfairness of a decision being made, without the person affected by that decision having an opportunity to put his or her case, is specifically sanctioned by the express terms of s 115 of the SA Act. In that context, it cannot be said that the Board was required, as a matter of law, to have regard to the failure of the CCO to discuss the results of the urinalysis with Mr Tulloh. Ground 4 is not established.
The first irrelevant consideration which Mr Tulloh says the Board took into account was the assertion contained in the breach advice that there was 'continued use' of illicit substances. The essence of the applicant's complaint is that no illicit substances had been detected in previous urinalysis tests during the period of his parole, and, therefore, it was misleading to use the expression 'continued use'.
The full text of the relevant passage of the breach advice reads 'Continued use of illicit substances as evidence [sic] by results dated 30.8.12. Tests undertaken on 28.8.12'.
The reasons for cancellation of parole, as recited in the Board's letter to Mr Tulloh of 4 September 2012, were expressed as follows:
1.For non‑compliance with the parole requirement not to use or be in possession of any illicit drug including cannabis.
2.Having tested positive by urinalysis to the detection of methylamphetamine on 28 August 2012. The Board considers your risk increased to the safety of the community.
The substance of Mr Tulloh's concern as to the terms of the breach advice is that use of the word 'continued' is apt to suggest ongoing use, and thus a much more serious transgression than a single failure of a urinalysis test. In my view, read as a whole, the breach advice does not suggest multiple occasions of illicit substance use. The reason for the breach is said to be 'omission' and the omission date said to be 28 August 2012. That is clearly a reference to the urinalysis test which was failed on that date. Although the use of the word 'continued' is inapposite, I do not consider that, on a fair reading, the breach advice can be construed as suggesting multiple omissions. The reasons expressed by the Board do not suggest that the Board considered Mr Tulloh to have done any more than fail the urinalysis test on 28 August 2012. Ground 3 and 8 are, therefore, not made out.
Ground 10 is couched as follows:
The decision maker used incorrect information in that it did not comply with Australian standards so far as the testing of the urine was concerned.
Having regard to the fact that errors of fact are not susceptible to judicial review, and this is not a merits review of the decision, I have assumed that this ground is in substance an allegation that the Deputy Chairperson on the s 115A review had regard to an irrelevant matter, being test results which were not obtained in compliance with the relevant Australian standards because no referee sample was tested. The expression 'used incorrect information' is, of course, an expression found in s 115A of the SA Act, being a ground for review under that section. The 'use of incorrect information' is not, however, a foundation upon which this Court can grant judicial review, unless it amounts to taking into account irrelevant information or failing to consider relevant information in the sense explained above.
There was no basis for the applicant to argue that the requirements of the relevant standard were not observed insofar as the taking and initial analysis of his 28 August 2012 urine sample is concerned. At the time that the Board made its decision on 4 December 2012, no request for re‑testing had been made and the availability or otherwise of the referee sample was not a relevant matter. There can be no basis for this ground insofar as the decision of 4 September 2012 is concerned.
Ground 11 concerns the failure to consider a relevant matter, namely the contents of the referee sample. The essence of Mr Tulloh's complaint in this regard is that, in his application for review under s 115A of the SA Act 2003, he requested re‑testing of his urine sample, the results of which were relevant information which was not provided to the Board when it made its decision to cancel parole.
The request for re‑testing was made in Mr Tulloh's application for review. The grounds for that review were limited to those available under s 115A being that the person making the original decision:
a.did not comply with the Act or regulations,
b.made an error of law, or
c.used incorrect or irrelevant information or was not provided with relevant information.
It was on the last of those grounds that Mr Tulloh sought review. In that context, Mr Tulloh said 'I think it pretty plane [sic] to suggest that the first thing I would ask is to have the sample in concern be re‑tested'. That request was mentioned in the Deputy Chairperson's decision on review. The Deputy Chairperson said that confirmatory testing had been carried out. It would appear that that was a reference to the mass spectrometry testing which was the subject of the analyst's certificate carried out in accordance with ANZS 4308: 2008. In that way, the Deputy Chairperson misapprehended the request which was made, which was for a testing of the referee sample. Subsequent enquiries to the Board by Mr Tulloh in relation to re‑testing resulted in a letter dated 29 October 2012, in which the Board advised that test results for urinalysis are a matter for the Department of Corrective Services, and not the Board.
In substance, Mr Tulloh was asserting by his application for review that he wanted the results of re‑testing to be considered. Implicitly, that can reasonably be construed as a request to test the referee sample, a procedure recognised and provided for by the relevant standard under which the testing procedure was undertaken. It was that information which he sought to rely upon to 'end any concerns there'. His submission was that the results of re‑testing would vindicate his denial of knowingly taking an illicit substance.
As already observed, it is apparent that the Deputy Chairperson misconstrued Mr Tulloh's request. Had the request been correctly construed, the appropriate course would have been to defer making a decision on the review and advise Mr Tulloh (as the Board ultimately did on 29 October 2012) that responsibility for testing lay with the Department of Corrective Services, and that he should contact that department, or possibly the testing laboratory directly, to arrange to have the sample re‑tested. While decisions on matters of this nature should be timely, there was of course no imperative for the Deputy Chairperson to receive, consider and decide an application for review all on the one day. In order to substantially comply with the obligation under s 115A(8) to consider Mr Tulloh's submissions and properly consider the relevant information which Mr Tulloh asserted had not been provided to the Board at the time of its decision, Mr Tulloh should have been provided with an opportunity to present the material which he wished to have considered.
As already noted, the Deputy Chairperson was obliged to have regard to information which an applicant for review submitted was relevant information which had not been provided to the Board when it made its original decision.
In my view, the error made by the Deputy Chairperson on review constituted an error of the law, namely a failure to provide Mr Tulloh with an opportunity to be heard, and a failure to have regard to relevant information which Mr Tulloh sought to have considered, and which the Deputy Chairperson on review was obliged to consider. Ground 11 is made out.

Inflexible application of policy

The question of inflexible application of policy arises in grounds 5 and 9. The associated error is variously described by the applicant as having regard to an irrelevant consideration, failing to comply with the Act or regulations or using 'incorrect information insofar as the policy is concerned'.
In Seiffert,[13] Martin CJ cited with approval the convenient statement of the legal principles concerning an invalid fetter of a discretionary power by Lord Wilkinson in R v Secretary of State for Home Department; Ex parte Venables & Thompson,[14] where his Lordship said:
When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.
[13] Seiffert v Prisoners Review Board [2011] WASCA 148 [123].
[14] R v Secretary of State for Home Department; Ex parte Venables & Thompson [1998] AC 407, 496 ‑ 497.
Martin CJ continued:[15]
This is of course not to say that it is impermissible for a decision maker vested with a discretionary power to develop criteria for the exercise of the discretion in the form of a policy relating to its exercise: see for example Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277, 289 (Gleeson CJ). However, consistently with the principles relating to invalid fetter of a discretionary power, any such policy must admit of the possibility of exception depending upon the circumstances of a particular case.
[15] Seiffert v Prisoners Review Board [2011] WASCA 148 [124].
Although somewhat loosely expressed, grounds 5 and 9 were clearly intended to assert error in the nature of an invalid fetter on the exercise of the statutory discretion. An assertion of that character also appeared in the applicant's original grounds of application which included a ground that the first respondent failed to discharge its duties and obligations because it 'acted in bad faith where [it] approached the matter with a closed mind'. The more precise formulation of this ground only emerged during the course of the hearing of the matter on 14 May 2014. The first respondent did not appear at the hearing, having, quite properly, given notice to the Court that it did not intend to appear and would abide by the Court's decision. The Attorney General was given leave to intervene, so as to provide an appropriate contradictor to the application regarding the decision of the Prisoners Review Board and to file affidavits in reply to the application. When the clarification of the ground concerning inflexible application of policy emerged during the hearing, counsel for the Attorney General sought an opportunity to provide any additional evidence on that question and supplementary submissions on that ground. Accordingly, at the conclusion of the oral hearing, the matter was adjourned with directions for the Attorney General to file any further affidavits and submissions on the question of inflexible application of policy, and for the applicant to file any submissions in reply. Subsequently, the Attorney General filed submissions on the question, but no further evidence. The applicant filed written submissions in reply.
This ground raises two issues. The first question is whether or not the applicant has established that the Board had a policy to cancel parole in the event of a parolee returning a urinalysis test positive to methamphetamine. The second question only arises if that policy is established, and that is whether the policy was, in Mr Tulloh's case, inflexibly applied.
To establish the policy, the applicant relies upon a document which was annexed and marked as MDT 4 to his affidavit in support of his application sworn on 17 February 2014. MDT 4 is described by Mr Tulloh as being the transcription of answers provided by the Chairperson of the Board to a group of prisoners whom he visited at Bunbury Regional Prison on or about 11 December 2011. Beyond that description, there was no evidence as to who prepared the document or as to its accuracy. Taken at face value, it would appear that the Chairperson was provided with the questions in advance of the meeting, because there is a reference to some of the passages in the document being extracted from 'briefing notes provided by the Chairperson'.
The notes contain a question in the following terms:
Judge French commented when she was chair of the Parole Board, 'We are a releasing agency. I would rather see prisoners out on parole than in prison.' What is your viewpoint?
The notes record the Chairperson providing the following answer:
It's worth looking at the statistics from the past few years:
The current Board is becoming more lenient on release but we are also firmer on breaches. It does depend on the nature and circumstances of any breach, but for example, if your are caught with a dirty urine for cannabis we will suspend your parole for a time but probably will give you a second chance; but if it is for using powders ‑ amphetamines, etc ‑ we will cancel your parole and you'll have to finish your time in prison. Also, if you've breached for associating with OMCGs (Outlaw Motorcycle Gangs) your parole will be cancelled. ...

Mr Tulloh argues that that statement should be construed as a statement of policy of the Board to the effect that parole will be cancelled if a parolee tests positive to amphetamines.
In her supplementary submissions, counsel for the Attorney General notes that the source of the document relied upon is unclear, and on its face it does not appear to contain all of the comments made by the Chairperson on the occasion in question. She also notes that, later in the document, a further question and answer is recorded as follows:
Have you found your new stance that 'the safety of the community is of paramount importance' is having the desired effect?
There is actually little evidence of prisoners on parole committing serious offences since the Mahoney inquiry. That's because parole conditions are very strict now; if there are conditions that you'd liked changed for example allow you to work, I'd recommend you go out on parole first and I'd encourage you to talk to your CCO. I'm quite open to amending your conditions, but the first rule is to follow the conditions first, then apply for any changes. We have reduced compliance requirements when it's been for a positive outcome, such as getting to work. ...
We do recognise that sometimes people make mistakes; as long as you're working through your problems, commonsense applies. We won't breach you for non‑attendance because you have to be at work, for example; the important thing is to talk to your CCO as soon as there's a problem.
The Attorney General argues that the most that MDT 4 can demonstrate is that:
a.A decision to cancel parole depends on the nature and circumstances of any breach;
b.Depending on the nature and circumstances, a positive test for amphetamines can result in a cancellation of parole;
c.The first rule of parole is to follow the parole conditions; and
d.The first respondent recognises that people make mistakes.
I do not agree with that construction of the transcribed notes. In my view, the passages contained in the answer to the question relating to safety of the community cannot sensibly be taken as qualifying the observations in relation to the consequences of a failure of a urinalysis test. Nor do I consider that it is accurate to say that the answers suggest that 'a positive test for amphetamines can result in a cancellation of parole'. The words attributed to the Chairperson are that if a breach involves using amphetamines 'we will cancel your parole'. If that is a statement attributable to the Chairperson of the Board, made in the context of a question about the Board's attitude to the release of prisoners, it is sufficient to support a finding as to existence of a policy of the Board. The question becomes whether the statement can be properly attributed to the Chairperson on the basis of the document attached to Mr Tulloh's document.
As previously mentioned, the document concerned was attachment MDT 4 to Mr Tulloh's affidavit of 17 February 2014. In fact, it had also been attached to an earlier affidavit dated 20 December 2013, although it was not clear whether that document was ever provided to the respondents, since it was superseded by the February affidavit. It is clear, however, that the respondents, and the Attorney General, were provided with the document well in advance of the hearing, and before the Attorney General filed the affidavit of Ms Delaney in response to the application. There was, therefore, an opportunity in advance of the hearing of 14 May 2014 for any issue to be taken as to the accuracy or otherwise of MDT 4. Because the full significance of the document did not become apparent until the course of the hearing on 14 May 2014, an opportunity was provided to the Attorney General to adduce any further evidence on the question of the application of policy. No further affidavits were filed, and the supplementary submissions of the Attorney General, whilst pointing out that the source of the transcription is unclear, do not otherwise question the accuracy of its contents. Indeed, the submissions in response seek to draw on the contents of the document to support a conclusion that statements do not indicate that the policy is applied to the exclusion of other considerations.
It is well accepted that an inference for which a party contends may more confidently be drawn where a person able to put the true complexion on the facts relied upon to ground the inference has not been called as a witness, and the evidence provides no sufficient explanation for the witness' absence.[16] The rule of evidence explained in Jones v Dunkel[17] has been applied in the context of proceedings for judicial review.[18] In Minister for Aboriginal and Torres Strait Islander Affairs v The State of Western Australia,[19] a decision of the Full Federal Court, the Court said:
The application of the rule requires ... that there be inferences available from the evidence which favour the other party. The failure of the Minister to call evidence does not provide positive evidence that he did not consider the representation but, unexplained, it leaves the Court in a position where opposing inferences can be more confidently drawn because they stand uncontradicted by the person who could say something about the true state of facts: Jones v Dunkel at 308. The question then is what inferences were open on the evidence.
[16] Jones v Dunkel (1959) 101 CLR 298.
[17] Jones v Dunkel (1959) 101 CLR 298.
[18] Minister for Aboriginal and Torres Strait Islander Affairs v The State of Western Australia (1996) 67 FCR 40, 61 ‑ 62 and the cases there referred to.
[19] Minister for Aboriginal and Torres Strait Islander Affairs v The State of Western Australia (1996) 67 FCR 40, 62.
The affidavit of Mr Tulloh was read without objection. The inference is open that the remarks attributable to the Chairperson in his meeting with prisoners were made by him and accurately reflect his statements. The statement that the Board 'will cancel your parole' infers the existence of a policy to that effect, and it suggests that the nature of the drugs detected will be determinative of the outcome of a decision whether or not to cancel or suspend parole, or take any other action.
In my view, the facts surrounding the cancellation of Mr Tulloh's parole also suggest the existence of a policy to cancel parole where a urinalysis proves positive to amphetamines. It is quite apparent that the only information which the Board had before it when it considered Mr Tulloh's parole was the fact of a positive result for amphetamines. The breach advice reported satisfactory compliance with supervision requirements, compliance with program attendance, and advice that six prior urinalysis results had proved negative to illicit substances. Although the breach advice contains remarks concerning supervision and program attendance which might be construed as indications of a negative attitude, nothing in the breach advice other than the positive urinalysis could possibly have formed the justification for cancellation of parole. The Board had before it no other information as to the circumstances which might have led to the detection of methamphetamine. Those facts, when considered with the uncontradicted statement by the Chairperson, support the inference that the Board had a policy to cancel parole in the event of a positive urine test for amphetamines, and that it applied that policy when dealing with Mr Tulloh.
The question thus becomes whether that policy was inflexibly applied. The Attorney General notes that, in the answer attributed to the Chairperson in MDT 4, the Chairperson said 'it does depend on the nature and circumstances of any breach'. Although that statement suggests flexibility, the example which the Chairperson then gives suggests that if the nature of the breach is for using 'powders', the outcome will be cancellation.
Counsel for the Attorney General submits that, while it is clear from the reasons that the Board took into account the fact that the applicant's urine tested positive to methylamphetamine, the reasons also disclose that the first respondent considered the applicant a risk to the safety of the community and relied upon the fact that the positive test indicated a breach of a parole term. The parole term referred to is the requirement not to use illicit drugs. Clearly, that is an inference which the Board drew from the positive test. It is not, however, a separate reason for cancellation of the parole. Similarly, the Board had before it no evidence of any matter which might constitute a risk to the safety of the community other than the positive test result. There is nothing in the Board's very brief reasons to suggest that it brought to bear any considerations going to the safety of the community other than the detection of methamphetamine in Mr Tulloh's urine. Indeed, the reasons, as expressed in the Board's letter of 4 September 2012 to Mr Tulloh, link the risk to the safety of the community to the positive urinalysis test.
In the course of oral submissions, counsel for the Attorney General sought to explain the connection between the positive urinalysis result and the increased risk to the safety of the community to which the Board referred in its reasons of 4 September 2012. She suggested that consumption of an illicit substance suggests that the person concerned does not accept the restrictions put upon them by their parole order and therefore poses a risk of re‑offending. Alternatively, she suggested that involvement of drugs in criminal behaviour is so notorious that it is open to conclude that an offender 'getting back into the culture of using drugs' puts the safety of the community at risk.
The Board is obliged by s 107B of the SA Act 2003 to give a notice of, including its reasons for, a decision to cancel parole.
In Seiffert,[20] Martin CJ (with whom McLure P and Murphy JA agreed) adopted the observation of Hall J in NGJF v Prisoners Review Board[21] as to the necessary content of reasons, where he said:
Such reasons should be sufficiently specific to enable the plaintiff to understand what criteria have been relied upon, what information has been used and what factual findings were made.
[20] Seiffert v Prisoners Review Board [2011] WASCA 148 [152].
[21] NGJF v Prisoners Review Board [2010] WASC 107 [89].
Martin CJ continued (at [152]):
The considerations which inform the required content are an evident legislative intent that the person the subject of the decision know, with sufficient particularity, the reasons why the decision was made against his or her interests, in order that they can understand why the decision was made, take any remedial action which might encourage a more favourable decision in the future, and exercise the right of review conferred by s 115A of the Act. The specificity intended by the legislature is apparent from the express power to withhold some or all of the reasons in some circumstances.
There is nothing in the Board's reasons to suggest that it brought to account any reasoning processes in the nature of those suggested by counsel as possibilities. The only understanding that Mr Tulloh can extract from the reasons given for cancellation of his parole is that the positive urinalysis result is the sole basis for the decision.
In all the circumstances, I consider that the inference should be drawn that the Board considered the detection of methamphetamine in the urinalysis undertaken on 28 August 2012 to be determinative of the question of cancellation of parole and as to the outcome of its discretion, and in that way it inflexibly applied policy with the result that it acted outside jurisdiction. Grounds 5 and 9 are made out.

Acting unreasonably

Ground 12 is based upon the complaint of failure to discuss the positive urinalysis result with Mr Tulloh prior to cancellation of his parole. That failure is characterised as failure to afford procedural fairness, failure to take into account a relevant consideration and failure to act reasonably. Insofar as it complains of a failure to take into account a relevant consideration, the point is dealt with in relation to ground 4 above. Insofar as it asserts a failure to afford procedural fairness, s 115 of the SA Act excludes the application of the rules of natural justice in relation to decisions of the Board under s 44 of the SA Act. I assume that what was intended by the assertion that the decision maker failed to act reasonably is that that the decision was so unreasonable that no reasonable decision maker could make it, being unreasonableness in the sense articulated in Associated Provincial Picture Houses Ltd v Wednesbury Corp.[22] In the context of decision making in respect of which the rules of natural justice are excluded, it is not open to conclude that the Board's failure to speak to Mr Tulloh before taking action can be said to be unreasonable in the relevant sense. Ground 12 has no merit.
[22] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.

Relief

I have upheld three of the applicant's grounds. Ground 10 relates to the decision of the Deputy Chairperson on review under s 115A. Grounds 5 and 9 relate to the decision of the Board made on 4 September 2012. Having identified errors of law in relation to each of those decisions, I turn to the question of what, if any, relief should be granted.
Counsel for the Attorney General contends that, even if the Board or the Deputy Chairperson was in error, the decision to cancel parole should not be quashed. The Attorney General argues that because:
•the applicant's urine tested positive for methamphetamine on 28 August 2012;
•the applicant was sentenced to a term of imprisonment of 15 years for intent to sell or supply methylamphetamine;
•this was the applicant's first opportunity at parole;
•the applicant's parole order included conditions that he must not commit an offence, he must not use or be in possession of any illicit drug, he must attend substance abuse counselling and he must undertake urinalysis for all illicit drug use; and
•the applicant's failure to comply with the conditions of his parole order demonstrate that there was a real risk that he would commit further offences, and was therefore a risk to the safety of the community.
Counsel for the Attorney General also argued that nowhere in the affidavit sworn by Mr Tulloh did he specifically deny using illicit drugs, nor did he depose to the fact that he was using other medication which might have caused a positive urinalysis result for methamphetamine.
The only parole condition which may have been breached is the requirement not to use any illicit drug. Mr Tulloh appears otherwise to have fully complied with his parole conditions. It is true that Mr Tulloh did not, in the text of his affidavit, specifically deny using illicit drugs or say that he was using medication. Those matters are, however, the subject of an assertion in Mr Tulloh's letter of 11 September 2013 requesting a review under s 115A (at least implicitly), and in correspondence from his solicitors to the Board following cancellation of his parole. All of that correspondence was annexed to his affidavit. Mr Tulloh is not legally qualified. His affidavit in support appears to have been prepared by him in person. Clearly implicit in the materials filed is that Mr Tulloh denies knowingly taking any illicit drugs and, as his solicitors asserted in their correspondence, considers that an explanation may be that he was taking cold and flu medication at the time. He annexed to his affidavit an expert's report which stated that a reading of the level detected in Mr Tulloh's urine could be explained by taking certain medications. In the circumstances, I do not consider that relief should be declined on the basis of Mr Tulloh's failure to deny, in express terms in the body of his affidavit, that he had used illicit substances.
The appropriate course is that the decision of the Board of 4 September 2012 cancelling Mr Tulloh's parole should be quashed. There should be an order that the matter be remitted to the Board to reconsider the matter in accordance with these reasons. In all of the circumstances, it might be hoped that the Board would have before it any information that Mr Tulloh may wish to have considered. There should also be an order that the decision of the Deputy Chairperson on review under s 115A be quashed.
I will hear from counsel as to the precise form of the orders to be made.