Watson v The State of South Australia

[2010] SASCFC 69

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Application for Judicial Review)

WATSON v THE STATE OF SOUTH AUSTRALIA

[2010] SASCFC 69

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Peek)

9 December 2010

ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS - PRECONCEIVED OPINION

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN - ADMINISTRATIVE MACHINERY OF GOVERNMENT - EXECUTIVE COUNCIL

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - OTHER MATTERS

Application for judicial review of a decision of the Governor in Council (Governor) refusing to order that the plaintiff be released on parole - plaintiff serving a life sentence for murder - Parole Board recommended that plaintiff be released on parole on five separate occasions - on each occasion the Governor refused to release the plaintiff on parole - nature and scope of the power conferred on the Governor by s 67(7) of the Correctional Services Act 1982 (SA) - whether Parole Board's recommendation dealt with by Executive Council with a fixed and pre-determined decision to reject Board's recommendation - whether the Governor's decision was unreasonable - whether Governor's decision was illogical or irrational - whether Governor obliged to give reasons for his decision - proceedings dismissed.

Correctional Services Act 1982 (SA) s 55, s 55(3)(a), s 55(3)(b), s 55(3)(c), s 55(3)(d), s 55(3)(e), s 55(3)(f), s 56, s 63(3), s 63(4), s 63(5), s 66(1), s 66(2), s 67(1), s 67(1)(c), s 67(2), s 67(3a), s 67(4), s 67(5), s 67(6), s 67(7), s 68(1)(b), s 67(9), s 69, s 70, s 72; Criminal Law Sentencing Act 1988 (SA) s 32(1), s 32(5)(c), s 32(6), s 32(7), s 33(2)(a), s 33(2)(b), s 33A, s 33A(7), s 33A(8), s 33A(9), s 33A(10); Acts Interpretation Act 1915 (SA) s 23; Constitution Act 1934 (SA) s 66(2); Statutes Amendment (Truth in Sentencing) Act 1994 (SA); Criminal Law Consolidation Act 1935 (SA) s 352(1)(iii); Oaths Act 1936 (SA) s 10, referred to.
The State of South Australila v O'Shea (1987) 163 CLR 378, applied.
FAI Insurances Limited v Winneke (1982-1983) 151 CLR 342; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Public Service Board of New South Wales v Osmond (1984-1985) 159 CLR 656; Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Kioa v West (1985) 159 CLR 550; R v Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531, discussed.
The Queen v Robinson and Barrett (1979) 22 SASR 367; Bugmy v The Queen (1990) 169 CLR 525; PNJ v The Queen (2009) 83 ALJR 384; K-Generation Pty Limited v Liquor Licensing Court (2009) 237 CLR 501; Electrolux Home Products Pty Limited v The Australian Workers' Union (2004) 221 CLR 309; R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310; Coope v Iuliano (1996) 65 SASR 405; Campbelltown City Council v Vegan (2006) 67 NSWLR 372; Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65; Coco v The Queen (1994) 179 CLR 427; Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88; Carr v Finance Corporation of Australia Ltd (No 2) (1982) 150 CLR 139; Riley v The Commonwealth of Australia (1985) 159 CLR 1; Barratt v Howard (1999) 165 ALR 605; Perry v South Australia (unreported, SA Supreme Court, Bollen J, 21 February 1997); Director-General of the Department of Land and Water Conservation v Prime Grain Pty Ltd [2002] NSWLEC 93; QBE Insurance Ltd v WorkCover Corporation of South Australia (unreported, SA Supreme Court, Debelle J, 9 June 1995); Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729; Canwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509; York v General Medical Assessment Tribunal [2003] 2 Qd R 104; Re Commercial Registrar of the Commercial Tribunal of Western Australia; Ex parte Perron Investments Pty Ltd [2003] WASC 198, considered.

WATSON v THE STATE OF SOUTH AUSTRALIA
[2010] SASCFC 69

Full Court:  Doyle CJ, Anderson and Peek JJ

1. DOYLE CJ:          Mr Watson is serving a sentence of imprisonment for life. His non‑parole period expired on 24 January 2002. Since then the Parole Board of South Australia (“the Board”) on five occasions has recommended to the Governor pursuant to s 67(6) of the Correctional Services Act 1982 (SA) (the CSA) that Mr Watson be released on parole. On each occasion the Governor has refused to order that Mr Watson be released.

2. On some of these occasions the Premier or the Attorney‑General has commented on the decision by the Governor.  But no reasons, in the ordinary sense, for any of the decisions have been given to Mr Watson. 

3. Mr Watson is left in an unfortunate position.  He has served about 25 years’ imprisonment.  He does not know why the Board’s recommendations have not been accepted by the Governor.  He does not know how he might change the situation.

4. Mr Watson has brought proceedings by way of judicial review challenging the validity of the most recent decision by the Governor.  Mr Watson argues that the decision is invalid.

5. Mr Mead SC, counsel for Mr Watson, advances three main arguments. The first is that Mr Watson has been denied procedural fairness. The Court should find that the Cabinet (which advises the Governor) has predetermined the matter for decision. The second argument is that the Governor does not have a discretion to exercise; he or she can do no more than check whether the Board has considered all of the relevant matters or decide whether there is good reason to differ from the Board’s recommendation. The submission appears to be that if the Board has considered all relevant matters, the Governor must or must ordinarily accept its recommendation. The third submission is that in the circumstances the decision is so unreasonable or irrational that the Court should find that it is not a valid exercise of the Governor’s power under s 67(7) of the CSA to accept or to reject the Board’s recommendation.

6. Mr Watson claims an order directing his release or, at least, an order requiring the Governor to reconsider according to law the last recommendation by the Board.

7. I will first outline the statutory provisions under which the Parole Board and the Governor acted.  It will also be necessary to refer to other statutory provisions that can affect the release of a prisoner serving a life sentence.  Then I will summarise the facts of the case.  Then it will be necessary to consider the nature and scope of the decision to be made by the Governor.  Then I will deal with the attacks on the validity of the Governor’s decision.

   Statutory provisions

8. What follows is an outline of the relevant statutory provisions. 

9. Ordinarily a court that sentences a person to imprisonment will fix a non-parole period, or review an existing non-parole period and extend it:  Criminal Law Sentencing Act 1988 (SA) (the Sentencing Act) s 32(1). A court may, however, decline to fix a non-parole period: the Sentencing Act s 32(5)(c).

10. A non-parole period is part of the sentence passed.  While the focus is on the minimum period for which, according to accepted principles of sentencing, the offender should be imprisoned, ordinary principles of sentencing apply.  In The Queen v Robinson and Barrett (1979) 22 SASR 367 King CJ said at 369-370:

    Nevertheless it seems to me that in deciding whether to fix a non-parole period and in determining its length, the South Australian courts should be guided by the ordinary principles of sentencing. 

    This passage was referred to with approval by Dawson, Toohey and Gaudron JJ in Bugmy v The Queen (1990) 169 CLR 525 where they said at 538:

    But in the end the minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole …

11. The fact that the non-parole period is part of the sentence is implicit in the observations of the High Court in PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384 at [11], where in a joint judgment the members of the Court said:

    [11]It may greatly be doubted that the punishment imposed on an offender is sufficiently described by identifying only the term which the court fixes as the least period of actual incarceration that must be served. Rather, the punishment imposed on an offender will be better identified, at least for most purposes, as both the head sentence (here, life imprisonment) and the non-parole period that is fixed, for it is always necessary to recognise that an offender may be required to serve the whole of the head sentence that is imposed.

    It follows that while the purpose served by a non-parole period differs from the purpose served by a head sentence, and the question to be asked in each case differs, the ordinary principles of sentencing apply in each case.

12. If a person is serving a total period of imprisonment of less than five years and has a non-parole period fixed, the Board must order the person’s release at the expiry of the non-parole period: the CSA s 66(1). Certain specified categories of prisoner are excepted: the CSA s 66(2).

13. A prisoner serving a total period of imprisonment of five years or more, in relation to whom a non-parole period has been fixed, or an officer of the relevant department may apply to the Board for the prisoner’s release on parole: the CSA s 67(2). The Board may order the release of the prisoner, but not if the prisoner is serving a life sentence: the CSA s 67(5). Release takes place on a day specified by the Board order: the CSA s 67(5).

14. The matters that the Board must consider when deciding an application for release are specified in some detail. Section 67(3a) provides:

    (3a)The paramount consideration of the Board when determining an application under this section for the release of a prisoner on parole must be the safety of the community.

    Other matters that the Board must consider are set out in s 67(4). They include remarks made by the Court in passing sentence; in the case of crimes of violence the circumstances and gravity of the offence; the likelihood of the prisoner complying with conditions of parole; the behaviour of the prisoner during any previous release on parole; the impact of release on victims; any expert reports provided to the Board; the probable circumstances of the prisoner after release; and “any other matters that the Board thinks are relevant”. There is some overlap with matters considered by a Court when fixing a sentence, but the principles of sentencing differ from the matters to be considered in deciding on release. As is apparent from my summary, considerable attention is to be given to the likely behaviour of the prisoner if released. And, as already noted, the safety of the community is the “paramount consideration”.

15. The Board is constituted by s 55 of the CSA. It has nine members appointed by the Governor. One member must be a judge, a retired judge, a legal practitioner or a person with extensive knowledge of and experience in criminology, penology or any other related science: s 55(3)(a). One must be a medical practitioner experienced in the practice of psychiatry: s 55(3)(b). One must be a person with extensive knowledge and experience in “criminology, sociology or any other related science”: s 55(3)(c). One must be a person with extensive knowledge or experience in relation to the impact of crime on victims and the needs of victims of crime: s 55(3)(d). One must be a former police officer: s 55(3)(e). One must be a person of Aboriginal descent: s 55(3)(f). The Board must comprise both women and men. Appointments are for a renewable term of three years: s 56 of the CSA. It is apparent that the Board comprises people who have relevant experience and expertise, and that in combination the experience and expertise of the members is expected to provide an appropriate range of experience and expertise. The body is constituted as an expert body with knowledge of the field with which it deals.

16. If the Board refuses an application by a prisoner for release on parole, it must give the prisoner written reasons for the refusal: the CSA s 67(9). The CSA and the Sentencing Act provide for the cancellation, revocation and suspension of parole in specified circumstances.

17. A prisoner, not being a prisoner serving a sentence of life imprisonment, remains on parole until the expiry of the term of imprisonment to which the prisoner was sentenced, unless the release is cancelled or suspended, the parole order is discharged, or the sentence is extinguished: the CSA s 69. However, the Board can discharge a person from parole in which event the sentence will be taken to have been wholly satisfied: the CSA s 72.

18. A person serving a sentence of indeterminate duration (detention until further order) is outside this regime: the CSA s 67(1)(c). The detention of such a person is supervised and controlled by the Supreme Court under a regime established by Division 3 of Part 2 of the Sentencing Act.

19. A person serving a sentence of life imprisonment, and in respect of whom a non-parole period has been fixed, is subject to a regime that has some but not all of the features of the regime for prisoners serving a sentence of a specified duration.

20. Application for release on parole can be made by such a prisoner, or by an officer of the relevant department: the CSA s 67(2). The matters to be considered by the Board appear to be the same as for a prisoner serving a sentence of a specified duration: the CSA s 67(3a) and 67(4). However, that assumes that the Board, in dealing with an application by a prisoner sentenced to life imprisonment, is “determining an application under this section for the release of a prisoner on parole …”. If that assumption is not correct, then it appears that the Parole Board exercises a general power on an application for parole by a prisoner serving a life sentence. The power will be exercised in light of the scheme for the fixing of non-parole periods and release on parole.

21. I emphasise this point because it leads to a significant difference in the regime for a prisoner serving a life sentence. In relation to such a prisoner the Board has no power to order release. Its only function is to consider an application for release on parole and either to refuse the application or recommend to the Governor that the prisoner be released on parole. Section 67(6) of the CSA provides:

    (6)The Board may, on an application under this section in respect of a prisoner who is serving a sentence of life imprisonment, recommend to the Governor that the prisoner be released from prison on parole and, if the Board so recommends, the Board—

    (a)     must recommend to the Governor—

    (i)    a day on which the prisoner is to be released on parole; and

    (ii)a period of not less than three years or more than ten years, for which the prisoner should continue on parole; and

    (b)     must forward a copy of its recommendations to the Governor for approval.

    In this respect the regime for a prisoner serving a sentence of life imprisonment is quite different.

22. The reference to the Governor is a reference to the Governor acting with the advice and consent of the Executive Council: s 23 of the Acts Interpretation Act 1915 (SA).

23. In South Australia every Minister is ex officio a member of Executive Council:  Constitution Act 1934 (SA) s 66(2). As a matter of practice, and subject to statutory provision to the contrary, all advice to the Governor in Council is based on a recommendation by the Cabinet. Unless expressly provided by statute, individual Ministers do not ordinarily provide advice to the Governor in Council. The practice is for all available Ministers to attend ordinary meetings of Executive Council. Accordingly, a meeting of the Executive Council will involve the presence of the Governor and, usually, all available Ministers: see Selway, The Constitution of South Australia (The Federation Press, 1997), paras 6.1.9 – 6.1.11.

24. If the Parole Board has recommended release, the Governor will consider the recommendation and may order release. Section 67(7) of The CSA provides:

    (7)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 ten years.

    It is implicit in the provision that the Governor may decline to order the release of a prisoner. 

25. The CSA does not in terms require the Governor to give reasons for a decision on a recommendation by the Board. Nor does it require reasons from the Board, because in such a case the Board has not refused an application for release on parole. The Board is required to give reasons only if it refuses an application for release on parole: the CSA s 67(9).

26. If release on parole is ordered, the conditions of release (other than those required by the CSA itself) will be those recommended by the Board and approved by the Governor: the CSA s 68(1)(b).

27. The duration of the parole of a prisoner serving a life sentence is governed by s 70 of the CSA, which provides as follows:

    70—Duration of parole for life prisoners

    (1)     A prisoner serving a sentence of life imprisonment who is released on parole will, unless the release is cancelled or suspended, or the sentence is extinguished, remain on parole—

    (a)in the case of a prisoner released on parole prior to the commencement of the Prisons Act Amendment Act 1981—for the remainder of the sentence unless the Governor, on the recommendation of the Board, approves a day on which the parole of the prisoner is to expire, in which case the parole of the prisoner expires on that day; and

    (b)in any other case—for the period recommended by the Board and approved by the Governor.

    (2)     On the expiry of the parole of a person pursuant to subsection (1), the sentence of imprisonment will, subject to this Part, be taken to have been wholly satisfied.

28. Mr Mead based his submission in part on provisions which empower a court to increase or to negate a non-parole period on application by the Director of Public Prosecutions (DPP) or by the Attorney-General.  This submission is an aspect of a wider submission that the courts are the primary arbiter of the time that must be spent in custody, because it is the courts that can fix or vary a sentence or fix, vary or negate a non-parole period.  I will summarise these provisions.

29. The DPP can appeal against the fixing of a non-parole period on the ground that the sentence (which includes a non-parole period) is inadequate and erroneous:  Criminal Law Consolidation Act 1935 (SA) s 352(1)(iii). The DPP or the presiding member of the Board can apply to the sentencing court for an order extending an existing non-parole period: the Sentencing Act s 32(6). The matters that a court must have regard to are specified in s 32(7). Section 33A of the Sentencing Act gives the court power to declare a person to be a dangerous offender. The person must be one who has been convicted of murder as defined in s 33(2)(b), and the offence must have been committed in prescribed circumstances as defined in s 33(2)(a). The matters to be considered by the court are identified in s 33A(7) and (8) of the Sentencing Act. In particular, s 33A(7) provides:

    (7)The paramount consideration of the Court when determining an application under this section must be to protect the safety of the community (whether as individuals or in general).

    This is a provision which appears in other sections already referred to. If the court is satisfied that the release of the person “would involve a serious danger to the community or a member of the community”, then by s 33A(9) the court must declare the person to be a dangerous offender and must order that the non-parole period fixed in respect of the sentence of imprisonment for the murder be “negated.” Section 33A(10) provides:

    (10)   A person who has been declared to be a dangerous offender under this section—

    (a)     will serve his or her sentence of imprisonment as if the fixing of a non-parole period in respect of that sentence of imprisonment had been declined by order of the court under section 32; and

    (b)     may not make an application under that section for the fixing of a non-parole period for at least 12 months after having been so declared.

1. In summary, these provisions enable the DPP to appeal against a non-parole period when fixed; enable the DPP or the presiding member of the Parole Board to seek an extension of an existing non-parole period; and enable the Attorney-General to apply for an order “negating” an existing non-parole period.  As one would expect, when deciding whether to extend or to negate the non-parole period the court has regard to the conduct of the prisoner to the time of the application in question, any risk to others if the prisoner should be released, and other matters.  There is no need to describe in greater detail the manner in which the court exercises its powers.

   Facts

2. Mr Watson was sentenced to life imprisonment on 6 May 1986.  On 29 August 1986 the sentencing Judge fixed a non-parole period of 24 years commencing on 8 September 1985, when Mr Watson was arrested.  The non-parole period was recalculated at 16 years 4 months 7 days under the Statutes Amendment (Truth in Sentencing) Act 1994 (SA).  The non-parole period expired on 24 January 2002. 

3. On 9 October 2001, on application by Mr Watson, the Board resolved to recommend to the Governor that Mr Watson be released on parole on 24 January 2002.  The recommendation was forwarded to the Minister for Correctional Services on 20 December 2001.  Consideration of the recommendation was delayed for reasons that do not matter.  The recommendation was resubmitted with a new proposed release date.  On 22 April 2002 the Governor in the Executive Council declined to order that Mr Watson be released.  No written reasons were provided to Mr Watson or to the Board.

4. However, in “The Advertiser” newspaper on 24 April 2002 the Premier, The Hon. M Rann, was reported as saying:

   “It’s a very extraordinary thing for a government to recommend against the Parole Board’s recommendation but it is not the role of governments to be the rubber stamp” … 

   “It’s the role of government to make a decision and we made a decision.”

   “That decision, as far as I’m concerned, is final.”

5. Since then Mr Watson has made five other applications for parole.  On one occasion the Parole Board declined to recommend his release.  On the other four occasions the Parole Board recommended that Mr Watson be released on parole.  On each occasion the Governor in Council declined to order that Mr Watson be released.

6. On no occasion were written reasons provided to Mr Watson or to the Board for the decision made by the Governor in Executive Council. 

7. The Board made a second recommendation for release in December 2002.  On 5 December 2002 the Premier said in the course of a televised interview, referring to the decision by the Governor not to order Mr Watson’s release:

   I could not be satisfied and neither could Cabinet that these particular prisoners would not re‑offend at this time. 

   A recommendation in respect of another prisoner was dealt with at the same time as the recommendation relating to Mr Watson.  The Premier also said:

   I said that we would be tougher on law and order than previous governments and we have been.

8. On 22 July 2004 the Governor declined to order Mr Watson’s release on the third recommendation by the Board.  That day the Premier made a Ministerial Statement in Parliament.  He referred to the circumstances of the offence.  He then said:

   When deciding to recommend to Her Excellency that the Parole Board’s recommendation be rejected, cabinet carefully considered all the circumstances in both cases, including the gravity of the original offences.  Our main concern is always that of the public interest and the rights of victims and their families.  That is why the government is moving to enshrine this in legislation as a key consideration for deciding parole matters.

   Another life sentence prisoner had been dealt with at the same time.

9. Further decisions not to release Mr Watson were made by the Governor on 25 August 2005 and on 9 November 2009.  On 19 November 2009 the Minister for Correctional Services made a Ministerial statement.  He referred to the circumstances of Mr Watson’s offence and those relating to an offence by another life sentenced prisoner.  He went on to say:

   Watson’s minimum term expired in January 2002 and he has made six applications to be released.  Five of those have been knocked back on the advice of Executive Council, and the other application was declined by the Parole Board in 2007.  After careful consideration of the facts, Executive Council has determined that it is not in the public interest to recommend that Watson be released into the community.

   Later he said:

   These decisions are taken very seriously and, unlike the opposition, this government will not simply rubber stamp Parole Board recommendations.

10. No application has been made by the DPP pursuant to s 32(6) of the Sentencing Act for an order extending Mr Watson’s non-parole period. No application has been made by the Attorney-General under s 33A of the Sentencing Act to have Mr Watson declared to be a dangerous offender.

    Submissions for Mr Watson

11. Mr Mead advanced the following submissions at the hearing.

12. First, that the decision by the Governor in Council is subject to judicial review. 

13. Second, that the relevant legislation is to be interpreted in the light of the concept or principles of the rule of law. 

14. Third, that the legislative scheme provides for the release on parole of life sentenced prisoners and that the legislation makes the courts the primary arbiters of the time to be spent in custody by such prisoners.

15. Fourth, that s 67(7) of the CSA gives the Governor a discretion but that the discretion is not unfettered.

16. Fifth, that the decision by the Governor in Council can be reviewed by this Court on the basis of illegality, on the basis of irrationality and on the basis of “procedural impropriety”.

17. Sixth, that the Court can make an order requiring the Governor to order the release of Mr Watson, if (as it should be) it is satisfied that there is no relevant consideration which would justify declining to so order.  In the alternative, the Court can make a declaration that Mr Watson is entitled to be released.

18. Mr Mead did not argue that the decision by the Governor was invalid because of a failure to give reasons for the decision.  Nevertheless, the Court invited submissions on the question of whether there was any obligation to give reasons, in case that should prove to be a matter that had to be considered to deal with the submissions by Mr Mead.

19. I accept the first submission.  In FAI Insurances Limited v Winneke (1982-1983) 151 CLR 342 Gibbs CJ said at 349:

    The fact that the Governor in Council is the authority which grants the approval provides no ground for excluding the rules of natural justice. In exercising the power given by s 72 the Governor does not act personally or as a representative of the Crown exercising any of its prerogatives. He acts on the advice of his Ministers, and it is to be expected that such advice will be based upon the recommendation of the Minister in charge of the Department concerned. It would be to confuse form with substance to hold that the rules of natural justice are excluded simply because the power is technically confided in the Governor in Council. I can see no reason in principle why the rules of natural justice should not apply to an exercise of power by the Governor in Council, who is of course not above the law.

    Other members of the Court agreed:  Stephen J at 352-353, Mason J at 364, Wilson J at 402.  All members of the Court proceeded on the basis that the Governor’s decision would be made in accordance with constitutional convention which requires the Governor to act upon the advice of the Governor’s Ministers:  see, for example, Mason J at 354.

20. The later decision of the High Court in The State of South Australia v O’Shea (1987) 163 CLR 378 proceeds on the same basis. That is, that the Governor in Council is amenable to proceedings by way of judicial review, and that the vesting of a statutory decision making power in the Governor in Council is not of itself sufficient to exclude an obligation to proceed fairly that would apply if the decision were made by a Minister, nor is it sufficient to exclude conditions or limitations on the scope and exercise of the power of a kind that would exist were the power to be exercised by a Minister: see, for example, O’Shea at 386 Mason CJ where, referring to the decision in Winneke, his Honour said:

    That decision stands as authority for the proposition that the mere vesting of decision- making authority in the Governor in Council is not a sufficient manifestation of intention to exclude the common law duty [to act fairly].

21. There is one other matter that it is convenient to dispose of now.  No submission was advanced that the Governor in Council was required to give Mr Watson an opportunity to make representations to the Governor in Council in relation to the Board’s recommendation before the Governor in Council made a decision.  I assume that this was because Mr Mead accepts that Mr Watson had an opportunity to make representations to the Board on any aspect of its decision that he wished to raise, and that any requirement to act fairly by allowing an opportunity to make representations relating to Mr Watson’s release was met through the ability to do so to the Board.  That, briefly, is the effect of the High Court decision in O’Shea.

22. Mr Mead submits that the decision by the Governor in Council is invalid on three bases.  I will deal with one of them fairly briefly.  The other two will require more detailed consideration.

23. The first basis is that the facts lead to a conclusion that Executive Council advised the Governor to reject the Board’s recommendation without giving any or any proper consideration to the merits of the Board’s recommendation.  That is, that the Board’s recommendation was dealt with by Executive Council (and by Cabinet beforehand) with a fixed and pre-determined decision to reject the recommendation come what may.

24. Mr Mead points to the statement by the Premier in 2002 to the effect that the decision made at that time was “final”.  He points also to the fact that on four occasions after that the Governor rejected Board recommendations for the release of Mr Watson.  He submits that after the Premier made the remarks attributed to him in 2002, Cabinet and Executive Council must have acted on the basis that there was nothing to consider when the Board made further recommendations for release, because the decision in 2002 was final and would not under any circumstances be revisited.

25. Mr Mead also relies on some election advertisements that appeared prior to the State general election in March 2010.  In the material before the Court these are described as advertisements by the Australian Labor Party.  They were communicated by radio.  In them a voice states that when Mr Watson’s release was recommended by the Board “Mike Rann” (the Premier) “refused to release” Mr Watson.  The voice goes on to imply that a Government formed by the Liberal Party would release Mr Watson, referring to some remarks by the Leader of the Opposition.  It is fair to say that there is an inference to be drawn that this is in contrast to the attitude of a Labor Government.

26. I consider that these advertisements should be put to one side.  First, they occur after the Governor’s latest decision not to release Mr Watson.  Second, they are described as advertisements by the Australian Labor Party.  There is no basis for attributing the content of the advertisements to the Premier, or to any identified Member of Cabinet.  They might or might not reflect the views of Members of Cabinet.  It would be a long step to conclude that these advertisements indicated that Cabinet in the past had a fixed attitude on the matter of Mr Watson’s release.

27. As to the statement by Mr Rann, it is not clear what it means.  In one sense it is obviously a correct statement.  Once the decision was made to advise the Governor not to release Mr Watson, that decision was final.  It would again be a long step to infer that this statement meant that on any later occasion when the Board recommended release, the same advice would be tendered to the Governor, without regard to the circumstances.  Moreover, Mr Rann was and is only one member of Cabinet.  One cannot infer that other members of Cabinet shared his opinion, whatever opinion that was.

28. In my opinion there is no basis at all for drawing the inference that Mr Mead suggests should be drawn.  I decline to do so.  I should add that other statements set out above point in a direction contrary to the submission made by Mr Mead.

29. There is a further point.  Over the years the membership of the Cabinet has changed.  Opinions expressed at one time (even if they reflect the opinions of Cabinet) might not reflect the opinions of Cabinet at a later time.

30. In short, this submission fails on the facts.

31. Even if the case was stronger on the facts, this submission by Mr Mead faces other obstacles.

32. The power under s 67(7) of the CSA is conferred on the Governor, to be exercised on advice which has the support of a decision by Cabinet. In substance, the decision will be made by Cabinet. The decision by the Governor is the formal expression of the Cabinet’s decision.

33. In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 the Court was concerned with a decision made by the Minister under the Migration Act 1958 (Cth). Gleeson CJ and Gummow J said at [61]:

    [61]… The Minister is a Member of Parliament, with political accountability to the electorate, and a member of the Executive Government, with responsibility to Parliament. As French J recognised in his decision at first instance in the case of Mr Jia, the Minister functions in the arena of public debate, political controversy, and democratic accountability. At the same time, the Minister's exercise of statutory powers is subject to the rule of law, and the form of accountability which that entails. …

    They added at [63]:

    [63]… There are other consequences that flow from the circumstance that a power is vested in, and exercised by, a Minister. Relevantly to the present case, they include the consideration that the conduct of a Minister may need to be evaluated in the light of his or her political role, responsibility and accountability.

34. Such considerations are relevant when considering a claim that a decision is void because of bias or predetermination, the decision having been made by Cabinet.  They went on to say, by reference to some of the facts of the case, at [78]:

    [78]… In considering whether conduct of a decision-maker indicates prejudgment, or in some other respect constitutes a departure from the requirements of natural justice, the nature of the decision-making process, and the character of the person upon whom Parliament has conferred the decision-making capacity, may be of critical importance. French J was right to consider the Minister's conduct in relation to the radio interview, and the letter to the President of the Tribunal, in the light of the fact that he was "an elected official, accountable to the public and the Parliament and entitled to be forthright and open about the administration of his portfolio which ... is a matter of continuing public interest and debate". This is a matter that will be considered further in relation to the argument on apprehended bias.

    Footnotes omitted

    Similar views on the question of bias were stated by Hayne J at [187]-[189] and by Callinan J at [245]-[247].

35. In Hot Holdings Pty Limited v Creasy [2002] HCA 51; (2002) 210 CLR 438 Gaudron, Gummow and Hayne JJ made some observations about the role of policy in a decision when the decision maker is a Minister. They said at [50]:

    [50]… There may be cases in which a decision-maker, especially a Minister, may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister's continuance in office. It has been said that "the whole object" of a statutory provision placing a power into the hands of the Minister "is that he may exercise it according to government policy" (Wade and Forsyth, Administration Law, 8^th ed (2000), p 464). It would be wrong to assume that in every case a decision-maker can act only if he or she has the same level of independence and security as a judge and, in that sense, has nothing to gain or lose from the decision made.

    [51]That is not to deny, of course, the importance or application of the well-established ground for the grant of certiorari for "fraud" (Craig v South Australia (1995) 184 CLR 163 at 175-176), a ground in which "fraud" is to be understood in a broad sense and as encompassing matters such as acting for an improper purpose. It is evident that there will be cases in which that, rather than "bias" or apprehension of bias, will be the better characterisation of why certiorari will lie.

36. The decision to refuse to release Mr Watson on parole was, each time it was made, a decision in respect of which the Premier, the Attorney-General and possibly other Ministers could be questioned or challenged in Parliament. The decision was, and was likely to be, the subject of some public interest, and to attract comment in the media. There is no reason why the Premier or the Attorney-General should not explain and defend their decision. There is no reason why they should not, within the limits of the CSA, indicate a policy or attitude to such cases, or to the case of Mr Watson in particular. In material before the Court, the Leader of the Opposition was referred to as having said that in Government she would be slow to depart from the recommendation of the Board. Equally, it was open to the Premier to say, as he did, that the Cabinet would make its own decision, and to emphasise that it would not hesitate to depart from a recommendation by the Board. It would be legitimate for the Premier or the Attorney-General to indicate that certain types of cases would be approached in a particular manner. Of course, as is acknowledged in the citations above, the power under s 67(7) must be exercised lawfully. But when the power is conferred on a political body, and is open to challenge in Parliament and in the community generally, the exercise of that power is to be approached in a quite different manner from a power vested in a court or in an independent tribunal, when questions of bias and prejudgment arise.

37. The other two bases advanced by Mr Mead raise a question as to the function of the Governor in Council under s 67(7) of the CSA. In particular, to what matters may the Governor have regard in making a decision under s 67(7)? Does the Governor exercise a broad power, confined only by the purposes of the CSA and to a consideration of the public interest? Or is it a much more confined power? Is the Governor limited to a consideration of whether the Board has considered all relevant matters, being obliged to act on a recommendation if the Board has? Must the Governor act on a recommendation by the Board unless there are reasonable grounds for not doing so? These are questions raised by the second basis of Mr Mead’s submission.

38. The answer to these questions, and other such questions, and the response to Mr Mead’s submissions, turns on the proper construction of the statutory scheme outlined above, and on the place of s 67(7) of the CSA in that scheme.

39. Mr Mead submits as follows. Under the statutory scheme a non-parole period can be extended or negated (see above). A court will decide these matters. By implication, although not spelt out in his submissions, the DPP or the Attorney-General are intended (by Parliament) to invoke the powers referred to if a prisoner is not fit for release on parole, or if the prisoner’s behaviour or the protection of the community (s 32(7) of the Sentencing Act) or the safety of the community (s 33A(7) of the Sentencing Act) call for a longer non-parole period or the negation of the non-parole period. In that context, if the non-parole period has not been altered, and its expiry is approaching, Parliament intended that if the Board recommends release the Governor will act on the recommendation unless there is good reason not to do so, or unless the Board has failed to consider all relevant matters. Alternatively, as the expiry of a non-parole period approaches, a Board recommendation for release should ordinarily be acted upon, because if it was not appropriate to do so, the statutory mechanism for extending or negating a non-parole period could and should have been invoked.

1. This submission treats the power of the Governor under s 67(7) of the CSA as a confined power. The ability of the DPP to apply for an order extending a non-parole period and the ability of the Attorney-General to apply for an order that causes a non-parole to be negated are treated as the appropriate means for obtaining a decision that a prisoner whose non-parole period is close to expiry should not be released.

2. Mr Mead’s other main submission is that the thorough consideration given by the Board to the question of release, the absence of any relevant material not adverted to by the Board, the repeated decisions not to release Mr Watson, coupled with the failure by the DPP to apply for an extension of the non-parole period and the failure of the Attorney-General to apply for an order that would have the effect of negating the non-parole period, all combine to indicate that the decision was unreasonable or irrational, and so invalid.

3. Mr Mead pointed to a number of matters.

4. Matters to which the Premier or the relevant Minister have referred when speaking about decisions by the Governor relating to Mr Watson (the gravity of the crime, the risk of further offending, the interests of victims and the public interest) were all matters considered by the Court when sentencing Mr Watson and by the Board in formulating its recommendation for release.  There was no reason to think that any of these matters had been overlooked.

5. The Board had prepared careful and detailed advice to support each of its recommendations for release.  No criticism was made of that advice by Mr Hinton QC SG.  The Board had noted that Mr Watson had made good progress while in custody, that he had accepted responsibility for his crime, and that he had demonstrated genuine and significant remorse and insight into his offending behaviour.  As well, the mother of the victim had publicly supported Mr Watson’s release on parole.

6. Between the first recommendation for release and the last recommendation more than seven years had passed.  During this time Mr Watson had, by and large, behaved in a manner that suggested he was suitable for release.  The legislative scheme was predicated on release on parole, if the non-parole period was about to expire.  There was always a risk of a person released on parole re‑offending, but in this case all of the evidence supported the Board’s conclusion that the risk should be run.  The fact of repeated recommendations for release was a relevant matter.

7. Mr Mead’s submission can be summarised by saying that he relied on the circumstance that matters adverted to in support of the Governor’s decision were considered by the Board, that the Board had identified a sound basis for recommending release, and the circumstance that no deficiency in the Board’s reasoning had been identified.  All of these combined to lead to a conclusion that in light of the repeated recommendations for the release of Mr Watson the latest refusal to release was to be characterised as unreasonable or irrational, and so invalid.

   Consideration of submissions

8. I begin by considering the scope of the power vested in the Governor in Council by s 67(7). Although that provision refers only to the Governor ordering that a prisoner be released on parole, by necessary implication it confers a power to decline or refuse to make such an order.

9. I do not propose to attempt to identify the precise scope of the power, let alone all matters that might be relevant to the exercise of the power in a given case.  There is no point in trying to do so in the abstract.

10. The question to be considered is whether the power conferred on the Governor is limited as suggested by Mr Mead, or in some other way. Or, on the other hand, can the Governor make his own assessment of whether, in light of the recommendation by the Board and its reasons, it is in the public interest that Mr Watson be released? Under this alternative approach while one would expect the Governor, more precisely those advising him, to consider matters that the Board is required to take into account by s 67(3a) and s 67(4) of the CSA, the Governor would not be limited to a consideration of those matters. Nor, on the alternative approach, would the recommendation by the Board limit the Governor’s power in the manner suggested by Mr Mead. The ultimate question for the Governor would be the public interest, and one would expect the Governor to give consideration to the safety of the community, in light of s 67(3a).

11. Putting the issue a little differently, is the power of the Governor fettered in the manner suggested by Mr Mead, or does the Governor make his own decision in light of the recommendation of the Board, making the Governor’s own assessment of the matters relevant in a particular case, and of the public interest?

12. First, there is nothing in the terms of s 67(7) of the CSA, or s 67 as a whole, that limits the scope of the power conferred on the Governor. On its face, it is a broad power.

13. It is true that the Board has relevant expertise and experience, and has an opportunity to consider any submissions made by the prisoner. The Board is likely to have interviewed the prisoner, because s 63(3) of the CSA confers on a prisoner serving a sentence of life imprisonment the right to require the Board to interview the prisoner at least once in each year: see subs (3), (4) and (5) of s 63 of the CSA.

14. But I do not consider these matters to be a reason to limit the scope of the power conferred on the Governor.  It is not uncommon in State and Commonwealth legislation to provide for an enquiry and hearing at one level, sometimes by a person or entity with particular qualifications, with the final decision being made at another level, the decision maker being free to make its own decision, unfettered by the recommendation to it.

15. In O’Shea, where the issue was the release of an offender detained at the Governor’s pleasure, the statutory scheme bore certain similarities to the provisions now under question.  The prisoner could not be released unless the Governor was satisfied on the recommendation of the Board that the prisoner was fit to be at liberty:  the relevant provision is set out in O’Shea at 384. Referring to this statutory scheme, Mason CJ said at 389:

    The scheme for which s. 77a provides is not unfamiliar. It allows a place for the presentation of the offender’s case — before the Board when it is considering whether it should make a recommendation for release. There are many illustrations of this legislative model which entails the holding of an inquiry by a body authorized to make a recommendation to a Board or Minister which may make a decision rejecting the recommendation without conducting any further inquiry: see Taylor v Public Service Board (N.S.W.) (1976) 137 CLR 208; Kioa v West; Minister for Aboriginal Affairs v Peko-Wallsend Ltd. (1986) 162 CLR 24. The hearing before the recommending body provides a sufficient opportunity for a party to present his case so that the decision‑making process, viewed in its entirety, entails procedural fairness.

16. The issue there was whether the Governor in Council was required to accord the prisoner a hearing, to ensure procedural fairness.  That is a different issue.  But it is to be noted that Mason CJ did not suggest any limitation on the scope of the power of the decision making authority when considering the recommendation made to it.  This becomes all the clearer when one has regard to what Mason CJ said a little earlier in his reasons, where he referred to the role of the Cabinet and the Governor in Council in relation to prisoners detained at the Governor’s pleasure.  He said at 388:

    In the making of a decision under s. 77a of the Act the public interest is plainly a relevant consideration. Even if all the medical opinions support a recommendation by the Board for release, the Cabinet in tendering advice to the Governor in Council may conclude that none the less in the public interest the offender should not be released because, in the light of his history, his release would entail a level of risk that is unacceptable. The Solicitor-General submits that the assessment of what is in the public interest involves an element of policy or political judgment. Indeed, he goes further and says that in making this judgment members of Cabinet would be influenced by their assessment of the possibility of an adverse public reaction to the offender's release. According to the argument, these are matters of political judgment on which the offender is not entitled to be heard.

    It was not submitted that likely public reaction stands outside the ambit of the statutory discretion. Quite obviously a person who has to decide whether an offender should be released may take into account the likely reaction of the community to the release of the offender against whom a judge has made a declaration that he is incapable of controlling his sexual instincts. The dividing line between an individual’s perception of what is necessary or desirable in terms of protection of the community and the individual's perception of what the community considers is necessary or desirable for its own protection is so shadowy that it may well be impractical to identify it as a criterion of relevance to the exercise of the discretion. And, having regard to the problems associated with the giving of reasons for a Cabinet decision, I do not see how such a criterion of relevance could be implemented by the courts. But this is not a matter that I need to decide. It is sufficient for present purposes for me to assume that Cabinet may decide not to release an offender for public interest reasons of the kind mentioned.

17. There is no hint in these reasons that the power conferred on the Governor in Council is any narrower than that conferred on the Board, and if anything the suggestion is that the power is a wider one.  While in part Mason CJ was referring to submissions made to him, the tenor of this passage is that the power conferred on the Governor in Council in relation to a prisoner held at the Governor’s pleasure is a broad one.

18. A similar approach to the scope of the power underlies what was said by Brennan J, when considering whether the Governor was required to accord a further hearing to the prisoner.  He said at 409:

    The administrative scheme for the release of offenders who have been declared unable to control their sexual instincts has three tiers: medical examination, Board recommendation and Governor’s decision. The only repository of the power to release is the Governor, but the power to release an offender cannot be exercised unless the medical practitioners and the Board are of the opinion that he is fit to be released. One cannot predicate of that scheme of administration that, after examination by the medical practitioners and hearing by the Board, the Governor is required to have a further hearing. It is a commonplace of modern schemes of administration that a power of decision is reserved to a Governor or Minister after an inquiry by an expert board and, unless the relevant statute so prescribes, it is not necessary for the repository of the power to have a further hearing, even though the repository is free to exercise his discretionary power in a manner contrary to a recommendation which emerges from the inquiry: Taylor v Public Service Board (N.S.W.) (1976) 137 CLR 208, at pp. 215, 217, 221-222, 224, 226. This form of administrative scheme is suited to cases where the facts need to be found and evaluated — a task entrusted often to persons with expert qualifications — but there is an element of policy in the decision which the repository of the power is to keep in his own hands.

19. This approach to the scope of the power is further supported by observations made by Wilson and Toohey JJ in O’Shea at 402, where they said:

    In the same way, the duality of the legislative scheme embodied in s. 77a of the Criminal Law Act characterizes the Governor’s decision as an expression of an unfettered discretion as to what the public interest requires in the instant case. It may be that a system of judicial review would ensure greater protection for the individual than the present scheme, but that is not what the legislature has provided.

20. To my mind it would be surprising if Parliament reserved to the Governor a decision whether a life sentence prisoner should be released, in contrast to other prisoners as to whom the decision is made by the Board, if the Governor were to exercise only a limited power confined by the fact that the Board had recommended release.

21. The vesting of the power in the Governor in Council, acting on advice from the Executive Council that will have been backed by a Cabinet decision, suggests that Parliament took the view that a decision of this kind was sufficiently sensitive to warrant conferring the decision making power on a political body like the Governor in Council.  That is not to say that it would not be appropriate for the Board to make such decisions.  It is to do no more than to note that a particular approach to the decision making has been adopted, and that one could infer from that approach that the scope of the power conferred is a broad one.

22. As I have said, there is good reason to think that the power to make the decision to release is vested in the Governor because of the nature of the decision, the release of a prisoner sentenced to life imprisonment being of particular sensitivity.  The conferral of the power on the Governor in Council necessarily exposes the decision to political scrutiny, in a manner in which a decision by the Board or a court cannot be exposed to scrutiny.  This also suggests that the Governor was intended to be the effective decision maker, making his own assessment of what the public interest requires, and exposing the advice based on a Cabinet decision to political scrutiny.

23. This approach can also be found in the reasons of Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng [63] where they said:

    [63]In the same case, it was also said that there is “a significant difference between a discretion given to a minister and one given to a departmental head” R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 202, per Menzies J. The context in which that difference was being considered concerned the right to act on the basis of governmental policy, the implication being that, when a power is reposed in a Minister, the statute, in the absence of an indication to the contrary, would be taken to contemplate that the Minister would be entitled, within the limits of any other constraints that may be found in the statute, to act in accordance with such policy. There are other consequences that flow from the circumstance that a power is vested in, and exercised by, a Minister. Relevantly to the present case, they include the consideration that the conduct of a Minister may need to be evaluated in the light of his or her political role, responsibility and accountability.

    As is apparent from their reasons, the choice of decision maker can have an effect on the approach taken by a court to the scope of the power to be exercised.

24. I also consider that the particular submission advanced by Mr Mead as to the scope of the power exercised by the Governor, a submission I outlined above at [68], does not support the conclusion that he put forward.

25. Mr Mead’s submission relied in part on the circumstance that the expiry of the non-parole period was approaching, or had already passed, and he argued in that circumstance, as the non-parole had not been extended or negated, there was some kind of presumption that release would be ordered unless there was good reason not to so order.  But if that submission is sound it applies equally to the Board.  The Board will consider the release of a prisoner, whether sentenced to life imprisonment or not, when the non-parole period is close to expiry, or after it has expired if the prisoner was not released at an earlier stage.  If those circumstances have the effect of narrowing the scope of the power to order or refuse release, then as they apply equally to decisions by the Board, they would have an equal effect on the power to be exercised by the Board.  But there is nothing in the CSA to suggest that the Board’s power is limited in that way.  To read the Board’s power as limited because of that circumstance would be inconsistent with the scheme of the CSA.  The same reasoning applies when considering the power of the Governor.

26. My conclusion is that the power conferred on the Governor by s 67(7) of the CSA is a broad and general power, no less broad than that exercised by the Board in deciding upon release on parole or in recommending release on parole, and probably broader. I make the latter point because subs (3a) and subs (4) of s 67, which identify the matters that the Board must consider, do not apply in terms to the Governor, and because the conferral of the power on the Governor acting on the advice of Executive Council suggests that the Governor in making a decision is entitled to take into account fairly broad considerations in deciding what is in the public interest.

27. I do not accept Mr Mead’s submission as to the scope of the power.

28. It follows from this that the second basis for attacking the validity of the decision by the Governor fails.  It is not necessary for Mr Hinton to demonstrate good reason for the Governor to reject the recommendation by the Board.  Nor is it necessary for him to show that the Board failed to consider all relevant matters.  Nor is the matter to be approached on the basis that the Governor should ordinarily accept the advice of the Board.

29. I turn to the third and final basis upon which the validity of the decision was attacked.

30. In considering this submission it is necessary to bear in mind the function of the Court.  The Court is concerned with the legality of the Governor’s decision.  It is not concerned with the merits.  That is, the Court is not concerned with whether the Governor’s decision is right or wrong on the facts, or sound or unsound.  In Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36, Brennan J said:

    The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

    These words have often been referred to with approval. 

31. He went on to refer to what has come to be called “Wednesbury unreasonableness”.  He said that this might appear to open the way to judicial review of the merits of a decision, but explained that it did not.  He said at 36:

    Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v. Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.

    Footnote omitted

32. To the extent that a test of legality of a decision under an act involves the concept of “unreasonableness” the Court must take care to observe this line between legality and merits.  In particular, the Court must be mindful of the manner in which this term can be used.  As Gleeson CJ and McHugh J said in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40]:

    [40]… Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable”, or even “so unreasonable that no reasonable person could adopt it”. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.

    A little later they said at [44]:

    [44]In Wednesbury itself, which was concerned with an issue as to whether the imposition of a condition imposed by a licensing authority was so unreasonable as to be beyond the proper exercise of the authority’s powers, Lord Greene MR said that what a court may consider unreasonable is a very different thing from “something overwhelming” such that it means that a decision was one that no reasonable body could have come to. As Mason J pointed out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, when the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another “a court should proceed with caution ... lest it exceed its supervisory role by reviewing the decision on its merits”.

    Footnotes omitted

    Gummow J at [124] made much the same point.

1. I have not previously referred to the separate judgment of Deane J in Osmond in recognition of the fact that although his Honour concurred in the result in Osmond, his words were somewhat different to those of Gibbs CJ who was supported by a majority.  However, it is well to note that Deane J stated in an interesting passage:[14]

   On the other hand, it is trite law that the common law rules of natural justice or procedural fair play are neither standardized nor immutable.  The procedural consequences of their application depend upon the particular statutory framework within which they apply and upon the exigencies of the particular case.  Their content may vary with changes in contemporary practice and standards.  That being so, the statutory developments referred to in the judgments of Kirby P and Priestley JA in the Court of Appeal in the present case are conducive to an environment within which the courts should be less reluctant than they would have been in times past to discern in statutory provisions a legislative intent that the particular decision maker should be under a duty to give reasons or to accept that special circumstances might arise in which contemporary standards of natural justice or procedural fair play demand that an administrative decision maker provide reasons for a decision to a person whose property, rights or legitimate expectations are adversely affected by it.  Where such circumstances exist, statutory provisions conferring the relevant decision-making power should, in the absence of a clear intent to the contrary, be construed so as to impose upon the decision maker an implied statutory duty to provide such reasons.  As has been said however, the circumstances in which natural justice or procedural fair play requires that an administrative decision maker give reasons for his decision are special, that is to say, exceptional.

   (Emphasis added)

   [14]   Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 675 (.9).

2. However, full submissions were not heard on matters such as whether, in the light of other broad developments in Australian law, the view of Deane J[15] is now to be accepted as authoritative and I will proceed no further.

   [15]   I will add that I am of the view that Deane J did not intend that his words “property, rights or legitimate expectations” were to be construed in such a narrow way that a person in the position of the present plaintiff  does not fall within the class that his Honour intended to delineate. In similar vein, see the words of Mason CJ in Kioa v West (1985) 159 CLR 550 at 582 referred to above: “The reference to “right or interest” in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.” (Emphasis added)

   Conclusion

3. I would dismiss the action.