Watson v State of South Australia

[2011] HCATrans 164

[2011] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A1 of 2011

B e t w e e n -

JAMES DAVID WATSON

Applicant

and

STATE OF SOUTH AUSTRALIA

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 10 JUNE 2011, AT 12.01 PM

Copyright in the High Court of Australia

MR G.P.G. MEAD, SC:  If the Court pleases, I appear with MR M.J. LUTT for the applicant.  (instructed Legal Services Commission)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS D.T. SEAL, for the respondent.(instructed by Crown Solicitor (SA))

FRENCH CJ:   Yes, Mr Mead.

MR MEAD:   If the Court pleases, the Governor‑in‑Council is under a duty to act fairly and reasonably, no less than any other administrative decision‑maker.  As Chief Justice Gibbs said in the FAI Insurance Case, the Governor‑in‑Council is not above the law. This applicant has been recommended for parole on five occasions by the Parole Board which prepared cogent and detailed reasons supporting the recommendations. The Full Court held that the Governor’s decision to withhold approval of the Board’s most recent recommendation, was within the power granted by section 67(7) of the Correctional Services Act which the Full Court said was a broad and general power. 

This Court will consider the Full Court’s judgment if the interests of the administration of justice, either generally or in the particular case, require it. In our submission, this particular case requires it. So does the administration of justice in South Australia generally. Speaking generally, the administration of criminal justice in South Australia is rendered uncertain by the approach taken by the Governor‑in‑Council and held to be valid by the Full Court, that the power given to the Governor by section 67(7) is a broad and general power.

There is uncertainty now as to if and when the Parole Board recommendations will be refused and, if refused, why they are refused.  A number of life‑sentence prisoners have no way of knowing what it is they need to do to satisfy the Governor‑in‑Council.  All they know is that the while the Parole Board has been prepared to recommend their release, the Governor‑in‑Council has refused it.  Other prisoners ‑ ‑ ‑

FRENCH CJ:   Well, perhaps that is a function, in a sense, of the breadth of the power.

MR MEAD:   Well, if the Court holds that the power is that broad, that might be so, your Honour.  We say that the power should not be interpreted in that way.  In this particular case, we say that the administration of justice has been rendered uncertain over a period of more than nine years.  This prisoner does not know what he can do to improve his chances of release, yet he has not been told that he will not be released.  He knows only that while five of his applications for release on parole over nine years have received the support of the Parole Board, they have, for some reason, not met with the approval of the Governor‑in‑Council.  The Parole Board, itself, does not know why its recommendations have been rejected on five occasions by the Governor. 

I propose to deal with our special leave questions by commencing with our fourth question, which is whether the Full Court was wrong in holding that the Governor’s decision was reasonable in all the circumstances and suggesting that the answer to that question is bound together with our first question as to the nature and extent of the power.

We say that the facts of this case show that the decision made here is so unreasonable that no reasonable authority could have ever come to it. Our complaint of unreasonableness requires attention to the nature and extent of the discretionary power contained in section 67(7). So our first special leave question is whether the power is a broad and general power as the Full Court said.

In answering that question, and looking to whether the exercise of the power in this case was reasonable, we submit that the Court starts with an assumption that ordinarily a statutory power would not permit continuation of the deprivation of liberty at the unconstrained discretion of the Executive.  It is an aspect of the rule of law that the courts presume that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law without expressing its intention with irresistible clearness.

FRENCH CJ:   That means you have to read down the power in 67(7) by reference to some limiting criteria of which you are unexpressed, does it not?

MR MEAD:   In a sense that is so, your Honour.  But, that happens.  It happened in the FAI Case.  It happened in O’Shea’s Case where, notwithstanding, there is no mention in the powers given in either of those cases, the court was prepared to say that natural justice applied to the exercise of the power in both of those cases.  We say the same thing occurs here.  We say, really, in this case those limitations are the intention – that the Parliament intended that the power be limited and I will refer later to some other provisions in the Sentencing Act which show that, indeed, it was Parliament’s intention but the Governor did not have a broad and general power but that the power should be exercised under constraint and that under some constraints ‑ ‑ ‑

KIEFEL J:   Do you say it is constrained in some way by the fact of the Parole Board’s recommendation, that that somehow circumscribes the ambit of the Governor’s power?

MR MEAD:   Yes, we do, your Honour.  We say, really, that the intention of the Parliament is that the Governor will, in the ordinary course, approve Parole Board recommendations for release.  We accept that the Governor retains a discretion to reject Parole Board recommendations ‑ ‑ ‑

KIEFEL J:   Well, that is important, though, is it not?  I mean, one of the points made by the Chief Justice in the Full Court was that the power of the Governor is most likely much broader than the powers of the Parole Board because it is not expressed to be limited, confined by the same factors that govern the Parole Board’s powers. 

MR MEAD:   That is so, your Honour, but we say that the courts would imply restrictions on that power because of the nature of the subject matter – that is the liberty of the subject – and because in legislation dealing with non‑parole periods, and we have referred to section 32(6) of the Sentencing Act and section 33A of the Sentencing Act, the Attorney‑General or the Director of Public Prosecutions has the ability to go back to the court and ask the court to review the non‑parole period in a case where an offender is thought to be dangerous or not to have rehabilitated.  So we say, the fact that the Parliament has provided those options for the Executive, as it were, to go back to court to have the non‑parole period reviewed, means that Parliament intends that the power not be a broad and general power as held by the Full Court.

We say, of course, the Governor retains a discretion to reject Parole Board recommendations, but it was intended that that would only occur where a reason appears on the face of the Board’s recommendations that would justify the Governor’s intervention. The Governor‑in‑Council, as your Honour has pointed out, is not directed to consider the matters in section 67(3)(a) or section 67(4) of the Act.

We accept that the Governor could consider the Board’s reasoning process and come to a different result where competing considerations were finely balanced.  The Governor could, if inclined to accept the Board’s recommendations, still set a different period of time on parole, for example, other than what the Board recommended.  But, we say that the Governor may not substitute his own view as to the minimum period to be served by the prisoner for the view taken by the sentencing court. 

On the facts of this case, the court can hardly draw any other inference than that the Governor in this case has decided that the non‑parole period fixed by the court was insufficient because the other possibilities, that is public safety, impact on the victim’s family, behaviour in prison, and so forth, have all been properly considered by the Board and there is little, if any, room for a different view to be taken.

FRENCH CJ:   Why not?  Why cannot the Governor simply form a different opinion on the advice of the executive council?

MR MEAD:   Because the Parliament has set up a specialist board which is directed to consider a range of factors and it leaves it to the Board to consider those matters to come up with a ‑ ‑ ‑

FRENCH CJ: The critical words there are “leaves it to the Board”. The Board’s recommendation enlightens the Governor’s discretion. It is not clear on the wording of section 67(7) how it limits it. Parliament could have said, obviously, “The Governor shall, unless for special circumstances or some other negative condition, act upon a recommendation of the Board” and so forth.

MR MEAD:   Yes.

FRENCH CJ:   That is simply not there.  There is no hint of that, is there?

MR MEAD:   No.  I accept that that is so, your Honour, and I do have to rely on the fact that the Parliament has, as I have said, put in place those other mechanisms to enable the Attorney or the Director of Public Prosecutions to go back to court to get the non‑parole period extended or negated if that is considered appropriate.  We say that the law, as it stands, is that the Governor would not normally be required to give reasons for a decision not to approve a recommendation because, ordinarily, the reason would generally be obvious from the Board’s recommendation itself.  For example, the Board might indicate that the decision was finely balanced or express some reservations. 

In other cases, the Governor may return the recommendation to the Board with a request to obtain information as to the attitude of the victim’s family or to confirm accommodation arrangements.  But we say that the overriding duty of the Governor is to act fairly and justly and in a particular case, as here, where there is no apparent reason for the refusal, it may even be that the duty to act fairly requires the Governor‑in‑Council to give reasons in the circumstances of a particular case.  This particular case, we say, is one.

The Full Court held that the Governor was entitled to take into account fairly broad considerations in deciding what is in the public interest.  In coming to that conclusion, the court relied on what this Court said in the case of O’Shea.  We say the decision in O’Shea must be seen for what it really is – a case dealing with a situation where following a finding by the court of a person’s inability to control sexual instincts, the offender was detained during the Governor’s pleasure – during Her Majesty’s pleasure.  So there was a different starting point and a different statutory context. 

The statutory context from which this case arises is the parole scheme which proceeds from a legislative intention that prisoners, even those serving life sentences, will have an opportunity to be released on parole if the sentencing court grants them the opportunity by fixing a non‑parole period.  If the prisoner takes that opportunity by rehabilitating him or herself to the point that the Board is satisfied that he or she can be released, or in the case of life‑sentence prisoners, can be recommended for release by the Governor. 

There is a carefully designed statutory program which deals with a prisoner’s progress through the system of justice and the Governor’s power at the end of the line must be read in that context and against that background, we submit.  So viewed, the statutory scheme does not imply a duty or requirement on the Governor to consider the public acceptability of early release or to determine the policies needed to maintain public confidence in the system of criminal justice as was held to be the duty of the Governor in O’Shea’s Case.  In this context, those policies have been determined and legislated for by the Parliament and they include specific direction to the Parole Board as to the matters to be considered in deciding whether to recommend parole.

FRENCH CJ:   How do you formulate it?  Can you just formulate, precisely, the constraint on the power of the Governor to not act upon the Board’s recommendations which was infringed in this case?

MR MEAD:   We would say that the power is limited in that the Parliament intends that the Governor will, in the ordinary course, approve Parole Board recommendations for release.

FRENCH CJ:   All right.  So you say that the Governor is obliged to act upon a Parole Board recommendation unless for some unspecified category of extraordinary reason or circumstance.  Is that right?

MR MEAD:   Yes. 

FRENCH CJ:   How does one divine the content of that class?

MR MEAD:   Well, it might be that something appears on the face of the Parole Board’s recommendation itself – some deficiency in the logic applied to the decision‑making, some express reservation, some indication that there has been a fine balancing of some competing interests, some omission from the Parole Board’s recommendation such as an absolute failure to obtain information from the victim’s family.

KIEFEL J:   That is rather to cast the role of the Governor‑in‑Council in some form of review for error and the like which is a long way, I think, from the discretion, the broad discretion which is obviously given under the subsection. 

MR MEAD:   Well, in our submission, that may be so, if the Court pleases.  There must be some role for the Governor to play in this process and it would not be inappropriate for that sort of review to be undertaken by the Governor, in our submission.  If I could suggest that the process might be seen as a continuing process from the time that the prisoner is sentenced, the court decides whether a non‑parole period is fixed or not, if it fixes a non‑parole period, the court may be asked by the prosecution to increase that non‑parole period if the prosecution is not satisfied with it, the prisoner goes through the process of prison and whatever rehabilitative measures can be offered there and at the end of that process goes through the Parole Board process, gets the recommendation and, we say, at the end of that, after the recommendation has been put to the Governor, the Governor has the final check over that process to see that everything has been done properly and, particularly in relation to the Parole Board, to check that everything that the legislation says that the Board must take into account has been taken into account and if it has not, to return the matter to the Parole Board and say, for instance, you have not checked with the victim’s family.

FRENCH CJ:   So, under the heading of “Illegality” when I look to your written submissions, what you are proposing is that in this case a governor constrained to act upon the recommendation of the Parole Board unless there was some reason for departing from that recommendation, has departed from that recommendation without any good reason and has not disclosed any such reason. 

MR MEAD:   That is right. 

FRENCH CJ:   Then when you get to the heading of “Irrationality/unreasonableness” – if I look at 3.6.1 – that really seems to collapse into the same point, does it not? 

MR MEAD:   Well, yes.  I did start off by saying to the Court, if your Honour pleases, that in a sense the decision about the unreasonableness is bound up ‑ ‑ ‑

FRENCH CJ:   Yes.

MR MEAD:   ‑ ‑ ‑ with the nature and extent of the power.

FRENCH CJ:   Yes.

MR MEAD:   With respect, that is so.

FRENCH CJ:   Right, and really also the irrationality issue at 3.6.2.

MR MEAD:   Indeed.

FRENCH CJ:   Does the question of procedural impropriety raise a different issue?

MR MEAD:   We do not rely on procedural impropriety in this Court, if the Court pleases.

FRENCH CJ:   I see, yes – apologies.  Is there anything further?

MR MEAD:   No.  I see my time is up, if the Court pleases.

FRENCH CJ:   Thank you.  We will not trouble you, Mr Solicitor.

The applicant was sentenced on 6 May 1986 in the Supreme Court of South Australia to life imprisonment for the offence of murder, of which he had been convicted after trial by judge and jury.  A non‑parole period of 24 years was fixed by the sentencing judge.  That period was reduced in 1994 to 16 years, 4 months and 7 days by operation of the Statues Amendment (Truth in Sentencing) Act 1994 (SA). Under the provisions of s 67 of the Correctional Services Act 1982 (SA), the applicant could only be released by order of the Governor following a recommendation for release from the Parole Board. Section 67(7) of that Act provided:

The Governor may, on receiving the Board’s recommendations, order that the prisoner be released from prison on parole on a day and for a period specified in the order, being not less than three years and not more than 10 years.

Under s 23 of the Acts Interpretation Act 1915 (SA), the Governor’s decision was required to be done “with the advice and consent of the Executive Council”.

The Parole Board recommended the release of the applicant on parole on five occasions and on each occasion the Governor, acting on the advice of the Executive Council, refused to accept that recommendation.  The last such decision made by the Governor on 9 November 2009 was the subject of an application for judicial review, which was referred to the Full Court of the Supreme Court of South Australia and dismissed unanimously by that Court.

The applicant seeks special leave to appeal on the basis, inter alia, that the Full Court erred in its construction of the breadth of the statutory power conferred on the Governor.  He also contends that the Governor’s decision was unreasonable.  The gubernatorial power is broad and the refusal of a recommendation from the Parole Board is not confined by the criteria which inform the Parole Board’s recommendation.  Nor is there any basis for the contention that the Governor’s decision was unreasonable in any sense that would vitiate it.

In our opinion, the decision of the Full Court is not attended with sufficient doubt to warrant the grant of special leave.  Special leave should be refused.

Do you seek costs, Mr Solicitor?

MR HINTON:   No, your Honour.

FRENCH CJ:   Thank you.

AT 12.23 PM THE MATTER WAS CONCLUDED