Whiteoak v State Parole Authority and the Attorney-General of NSW

[2020] NSWSC 185

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Whiteoak v State Parole Authority and the Attorney-General of NSW [2020] NSWSC 185
Hearing dates:	29 August 2019
Date of orders:	13 March 2020
Decision date:	13 March 2020
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1) The time for filing the amended summons is extended to 29 August 2019. (2) The proceedings are dismissed. (3) The question of costs is reserved. (4) The parties are to notify my Associate within 7 days as to whether agreement has been reached as to costs, in which case a minute of any order(s) sought is to be provided. (5) Absent agreement as to costs, each party is to file with my Associate written submissions not exceeding 3 pages in length by 5.00 pm on 27 March 2020.
Catchwords:	Administrative Law – Judicial Review – Statutory construction – Plaintiff previously convicted of murder and sentenced to life imprisonment – Sentence subsequently re-determined so as to incorporate a non-parole period – Where non-parole period expired and plaintiff sought release on parole – Plaintiff a citizen of the United Kingdom who had never applied for Australian citizenship – Where plaintiff’s visa had been cancelled and plaintiff was liable to immediate deportation to the United Kingdom upon release – Evidence before the Authority to support the conclusion that the plaintiff required assistance to reintegrate into the community and address the risk of reoffending – No means available for any supervision of the plaintiff if he left Australia – Where the State Parole Authority refused the plaintiff’s application for release on parole – Whether the Authority erred in taking into account the fact of the plaintiff's inevitable deportation – Whether the Authority erred in concluding that the interests of the safety of the community extended to the community in the United Kingdom to which the plaintiff proposed to relocate upon release and deportation   Words and Phrases – “community" – “general community” – “interests of the safety of the community"
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 (NSW) Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) Felons (Civil Proceedings) Act 1981 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) International Transfer of Prisoners Act 1997 (NSW) Interpretation Act 1987 (NSW) Prisoners (Interstate Transfer) Act 1982 (NSW) Probation and Parole Act 1983 (NSW) Sentencing Act 1989 (NSW)
Cases Cited:	Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 Attorney-General (NSW) v Liew [2012] NSWSC 1223 Attorney-General for the State of New South Wales v XY [2014] NSWCA 466 Barcelo v Electrolytic Zinc Co of Australasia Limited (1932) 48 CLR 391; [1932] HCA 52 Cabell v Markham 148 F 2d 737 (1945) Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 Coco v R (1994) 179 CLR 427; [1994] HCA 15 Craig Williamson Pty Limited v Barrowcliff [1915] VLR 450 Electrolux Home Products Pty Limited v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40 Jumbunna Coal NL v Victorian Coal Miners’ Association (1908) 6 CLR 309; [1908] HCA 95 Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Miketic v Prisoners Review Board [2011] WASC 176 Patsalis v State of NSW (2012) 81 NSWLR 742; [2012] NSWCA 307 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Fox [2011] SASC 224 R v Parole Board; Ex parte White Queen’s Bench Division, 16 December 1994 unreported Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; [1975] HCA 41 Residual Assco Group Limited v Spalvins (2000) 202 CLR 629; [2000] HCA 33 Ripi v Parole Board Queensland [2018] QSC 205 SAS Trustee Corporation v Miles (2018) 361 ALR 206; [2018] HCA 55 Seaegg v R (1932) 48 CLR 251; [1932] HCA 47 Solomons v District Court of NSW (2002) 211 CLR 119; [2002] HCA 47 South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 Stzal v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 TAL Life Limited v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co. Inc (1994) 181 CLR 404; [1994] HCA 54 Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 United States v Fisher 6 US 358 (1805) Wacal Developments Pty Limited v Realty Developments Pty Limited (1978) 140 CLR 503; [1978] HCA 30
Texts Cited:	Macquarie Dictionary (7th Edition) Oxford Dictionary of English (3rd Edition)
Category:	Principal judgment
Parties:	Barry Whiteoak – Plaintiff State Parole Authority – First defendant Attorney-General of NSW – Second defendant
Representation:	Counsel: R Wilson SC - Plaintiff D Kell SC and Z Heger - Second defendant   Solicitors: Legal Aid NSW – Plaintiff NSW Crown Solicitor - Second defendant
File Number(s):	2019/135966
Publication restriction:	Nil

Judgment

INTRODUCTION

1. By an amended summons filed in Court on 29 August 2019, Barry Whiteoak (the plaintiff) seeks, against the State Parole Authority (the Authority) and the Attorney-General of New South Wales (the second defendant), orders that:

1. the time for the filing of the amended summons be extended.

2. leave be granted under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute the present proceedings.

3. the hearing of the amended summons, and the hearing of the application for leave under the Felons (Civil Proceedings) Act 1981 (NSW), take place at the same time.

4. the decision of the first defendant that the plaintiff should not be released on parole be quashed.

5. the matter be remitted to the first defendant to be dealt with according to law.

6. the first and second defendants pay the costs of the proceedings.

2. The summons was supported by two affidavits of Melissa Smith of 1 May 2019, both of which were read without objection.

3. The Authority filed a submitting appearance. The second defendant, who was the only active defendant in the proceedings, read (without objection) the affidavit of Jennifer Hoy affirmed on 15 August 2019.

THE APPLICATION FOR LEAVE TO COMMENCE PROCEEDINGS

4. The second defendant did not object to the application for an extension of time. However, as previously noted, the orders sought by the plaintiff included an order seeking leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (the Felons Act) to commence the proceedings. Section 4 is in the following terms:

4 Leave to sue required for persons convicted of serious indictable offences

A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.

5. There is no issue that the plaintiff is in custody as a result of having been convicted of a serious indictable offence, namely murder. Accordingly, s 4 of the Felons Act prima facie applies. However, whether these proceedings are properly regarded as “civil proceedings” within the meaning of that term as it is used in s 4 is a separate question.

6. In Patsalis v State of NSW [1] the Court of Appeal concluded that the scope of s 4 was limited, and that a prisoner serving a custodial sentence was entitled to bring proceedings for judicial review of decisions relating to the conditions of his or her incarceration without a grant of leave because such proceedings did not fall within the ambit of the expression “civil proceedings” in that section. [2] In these circumstances, the second defendant submitted that leave under the Felons Act to bring the present proceedings was not required, a position with which counsel for the plaintiff agreed at the commencement of the hearing. Accordingly, I am not required to determine paragraphs (1), (2) and (3) of the amended summons.

   1. (2012) 81 NSWLR 742; [2012] NSWCA 307.

   2. Allsop P (as his Honour then was) at [4]-[7]; Basten JA at [53]; Sackville AJA at [116]-[117].

THE PLAINTIFF’S CRIMINAL HISTORY

7. The plaintiff was born in the United Kingdom, and came to Australia in 1971 at the age of 22 years. He has never applied for Australian citizenship. [3]

   3. Decision of the Authority (“Decision”) at [16].

8. On 5 May 1978 the plaintiff was convicted of indecent assault of a female and sentenced to 3 years’ imprisonment with a non-parole period of 9 months. [4]

   4. Decision at [6].

9. On 5 August 1980, the plaintiff was convicted of assault and was sentenced to imprisonment for a period of 18 months. [5]

   5. Decision at [6].

10. In 1983, the plaintiff was convicted of murder following a trial. The Crown case was that the plaintiff had asked the deceased to have sex with him and that when the deceased refused, a struggle ensued in the course of which the deceased stabbed the plaintiff in the leg. The plaintiff then attacked the deceased, seized the knife and forced her onto the floor by her neck. He later placed the deceased’s body into a lift, and sent the lift to the ground floor of the building in which the attack had occurred. A post-mortem examination following the discovery of the deceased’s body established that the cause of her death was asphyxiation by strangulation. [6]

    6. Decision at [3]; [5].

11. On 10 August 1984, Maxwell J sentenced the plaintiff to penal servitude for life. On 16 December 1994, that sentence was re-determined by McInerney J, pursuant to s 13A of the Sentencing Act 1989 (NSW) (the Sentencing Act), to a non-parole period of 15 years, and a balance of term of life imprisonment. [7] In the course of his judgment, McInerney J observed:[8]

The terms of the psychological and psychiatric reports are disturbing and I have set them out in some detail. They do not paint a very optimistic picture as to the likelihood of the applicant not committing further offences if and when he is admitted to parole…… In the light of the material before me I cannot but conclude that, in all of the circumstances, there is a considerable degree of risk attendant upon the eventual release of the applicant. However, having said that, I am not of the view that this is a case where the applicant should spend the remainder of his life in custody…… It is in the hands of the applicant whether he is willing to rehabilitate himself and own up to the crime he committed. If not, and I sound a warning, he will remain in prison for the rest of his life.

7. Decision at [1].

8. Decision at [10]; [76].

12. The plaintiff’s non-parole period expired on 25 August 1998[9] . His release on parole has been considered and refused by the Authority on numerous occasions, most recently in a decision of 16 November 2018. In the course of that decision, which is the focus of the present proceedings, the Authority noted[10] that the plaintiff’s conduct in custody had been “close to perfect”, with only three institutional infringements recorded against him, the first two of which occurred 25 years apart. The Authority also noted[11] that the plaintiff had been a “consistently good worker” and had achieved a C3 security classification, which had enabled him to take escorted external leave on 10 occasions without incident.

    9. Decision at [1].

    10. Decision at [17].

    11. Decision at [17].

THE PLAINTIFF’S IMMIGRATION STATUS AND INMATE CLASSICATION

13. In 2006, the Department of Immigration and Citizenship (as it was then known) gave notice to the plaintiff that it was considering cancelling his visa,[12] as a consequence of which the plaintiff’s security classification was changed from C3 to C1. His visa was later cancelled. He has since progressed to a C2 classification, but recommendations to restore him to a C3 classification have not been followed. Absent a C3 classification, the plaintiff is not eligible to take external leave. [13]

    12. Decision at [17].

    13. Decision at [17].

THE EVIDENCE BEFORE THE AUTHORITY

14. The evidence before the Authority included material setting out the plaintiff’s post-release plans. In this regard, a report from Community Corrections dated 14 February 2017 recorded the following:[14]

Department of Immigration and Border Protection (DIBP) have confirmed that upon his return to the United Kingdom Mr Whiteoak will be provided with a voucher for two weeks (sic) accommodation in motel style accommodation. DIBP advised that depending on his financial situation Mr Whiteoak may be eligible for some cost of living assistance during this time. After the two week period DIBP anticipate Prisoners Abroad (NGO) will assist Mr Whiteoak to find independent accommodation.

Further contact was made with Prisoners Abroad who confirmed that they recently received correspondence from Mr Whiteoak and that they will provide resettlement support to him upon his return to the UK. As outlined in the Pre-Release report dated 20 July 2016, Prisoners Abroad previously advised that Mr Whiteoak “is entitled to receive resettlement support from us once he is back in the United Kingdom, essentially we provide support around finding accommodation, accessing welfare benefits and education, training and employment.” Whilst a clarification has been sought on what specific supports will be provided to Mr Whiteoak a response from Prisoners Abroad remains outstanding.

14. Decision at [47].

15. A further report from Community Corrections dated 24 January 2018 which was before the Authority recorded the following:[15]

In response to consideration for the implementation of a MAPPA category 3, following a review of all of the information provided by Community Corrections, The Metropolitan Police Service advised there has to be an "identifiable risk of imminent harm" and given this, "it is unlikely he will fit the criteria that suggests he poses a risk of serious harm to the public on his return." However the Police reported Mr Whiteoak, “will be met by officers from our team on his arrival into the UK and an intelligence debrief will be conducted to ascertain intentions, understanding and level of support required. He is a client of the Prisoners Abroad charity and will receive assistance with regard to reintegration and resettlement into UK life. This will include an enhanced consideration for emergency accommodation based on his vulnerability and this process is in partnership and collaboration with our unit. If, upon arrival, a significant risk of harm or reoffending is identified, then this position will be reviewed and more multi-agency measures can be sought to minimise or reduce the identified risk, but until that occurs, he is likely to be treated as most other deported offenders who are not subject to any statutory monitoring regimes."

Despite his assessed risk rating for sexual recidivism it appears there is no provision to secure formal or informal supervision in the United Kingdom prior to his release. However, as stated above the Police have indicated they will meet Mr Whiteoak upon his arrival in the United Kingdom and conduct their own assessment in relation to any consideration for ongoing involvement.

…

As outlined by the Metropolitan Police Service, while he does not meet the criteria under a MAPPA category 3, he will be met by Police on his return and assessed in relation to his intentions. The Police have indicated that they work closely with the NGO Prisoners Abroad with who (sic) Mr Whiteoak is in contact. Consistent with the Supplementary Pre-Release Report dated (29 March 2017), in addition to the above, given there are no further avenues for Community Corrections to pursue with Mr Whiteoak in custody, the previous recommendation for parole remains.

15. Decision at [52].

16. The Authority also referred[16] to the contents of a joint report of Sarah Wright (Forensic Psychologist) and Laura O’Neill (Senior Psychologist) dated 26 July 2017 which made a number of recommendations regarding the management and supervision of the plaintiff in the event of his release. They included (inter alia) a recommendation that the plaintiff seek the support of a psychologist for assistance with:

    16. Decision at [50].

1. emotional regulation;

2. re-integrating into the community;

3. maintaining appropriate views about women;

4. problem solving skills; and

5. sexual self-regulation.

17. The joint report of Ms Wright and Ms O’Neill also recognised that in the event that the plaintiff was deported on release, these recommendations would not be implemented:[17]

Should Mr Whiteoak be released to the United Kingdom without supervision, it is unlikely that the above recommendations are able to be enforced and the implementation of these recommendations will be contingent on his own motivation and willingness to do so. Mr Whiteoak may benefit from being provided with the contact details of a number of professional individuals or organisations who may be able to assist him in the United Kingdom.

17. Decision at [50].

18. Also before the Authority was a report of Dr Dayalan, Psychiatrist, who stated[18] :

…Mr Whiteoak would require ongoing participation in a community based sex offender program to reduce risk (sic) of recidivism when he would have increased access to potential victims in the community.

18. Decision at [51].

19. On 3 July 2018, the Serious Offenders Review Council furnished a report which was before the Authority, and which expressed the following conclusions:[19]

Since our last report of 13 February 2018, the offender's circumstances remain unchanged. The reasonable endeavours of Community Corrections with the Metropolitan Police (UK), to facilitate an AVL link for a MAPPA assessment, have come to nought. The Metropolitan Police (UK), have advised that they are usually successful at persuading a person to engage as they "offer assistance of their partner agencies and how they can help during the first weeks of his return" and that they will work closely with the NGO Prisoners Abroad who are in contact with the offender. The Progress Report of 22 June 2018 foreshadows that release to parole is likely to be recommended. Otherwise, the offender has not incurred any further institutional offences and remains employed as a Maintenance Plumber at the MSPC. He has completed all his custodial therapeutic requirements and nothing further is required of him, while he remains in custody. We note the concerns expressed in the Psychological Report of 22 July 2018 and the Psychiatric Report of 28 July 2017, both which post-date our previous advices where we recommended release to parole. The Psychological Report of 22 July 2017 identifies his stable dynamic risk factors of sexual recidivism as "either somewhat present or potentially present" but no higher. Dr Daylan (sic), in his Psychiatric Report of 28 July 2017 acknowledged that “If specific accommodation was identified for Mr Whiteoak liaison with the local health services catering to that catchment area may allow for exploration of possible treatment options, thought (sic) I acknowledge that this is likely fraught with a number of challenges". In this regard, we note that he is engaging with the NGO Prisoners Abroad and that the Metropolitan Police (UK) seem comfortable in engaging with the offender and putting him into contact with the appropriate support agencies. We believe that as a matter of comity, we have taken all reasonable steps to ensure his safe re-integration into the UK. While there are ongoing concerns regarding his willingness to engage in ongoing community based programs in the UK, on balance we are prepared to accept the advice of the Metropolitan Police (UK). We advise that his release to parole is appropriate.

19. Decision at [53].

THE DECISION OF THE AUTHORITY

20. On 27 July 2018, the Authority indicated that it had formed an intention to grant the plaintiff parole and stood the matter over to allow the parties to make submissions. Those submissions were received on 29 September 2018, at which time the State opposed the plaintiff’s release. [20] Having heard submissions, the Authority subsequently refused the plaintiff’s application.

    20. Decision at [54]-[56].

20. As previously noted, [21] the plaintiff has never applied for Australian citizenship, a matter in respect of which the Authority said the following:[22]

The offender has always stated his desire to return to Britain if granted parole and that desire seems to be independent of any decision by Australian immigration authorities about his visa. He has made enquiries of authorities in Britain, particularly in his native county of Lancashire, and has on occasions written to Community Corrections about assistance he might receive if repatriated.

21. At [7] above.

22. Decision at [18].

22. The Authority concluded[23] that it had not been established that it was in the interests of the safety of the community to release the plaintiff on parole. In addressing that issue, the Authority said:[24]

Regard must be had to the purpose of the statute. Section 135 is concerned with the consequences for community safety of a release to parole. In enacting paragraph (2)(c) the Parliament recognised that the portion of a sentence reserved for supervision of an offender in the community has the beneficial effect of promoting community safety. The paragraph requires the Authority to take into account the consequences for community safety of an outright denial of parole and says so plainly. It would be strange if the Parliament had not also intended to require the Authority to consider the consequences for community safety of a delay in the granting of parole. The paragraph speaks of a shorter period of supervised parole. "Shorter" must mean shorter than the period specified by the sentencing court. Since the shorter period results from release "at a later date", the later date must be taken to mean a date later than the date specified by the sentencing court. [25]

23. Decision at [88].

24. Decision at [65].

25. The reference to s 135 is reference to s 135 of the Crimes (Administration of Sentences) Act 1995 (NSW) which I have considered further below.

23. On the assumption that the plaintiff would return to the United Kingdom if released, the Authority stated: [26]

The Authority has considered the matters required by s135(3). The nature and circumstances of the offence are set out above and so are the offender's prior offences. The Authority often considers whether to grant parole to foreign nationals when the Australian authorities have cancelled or indicated an intention to cancel a relevant visa. The Authority can never be certain that such a subject will be deported because there may be many reasons unknown to the Authority why the subject may not ultimately be deported. By way of examples only, an offender may successfully appeal or the authorities may have a change of mind. However, the Department's intention to deport seems now to have been settled for years. We accept that the offender will not appeal. He does not desire to live in the New South Wales community. The chances of that happening seems (sic) so low as to be negligible. We therefore approach the questions for us on an understanding that if granted parole the offender will be taken to Britain and released into the community there.

If the offender is released to parole he will be deported and the Authority has no reason to think that the offender will have any contact with the victim's family. We have considered the many reports furnished by Community Corrections and by the Review Council and have had regard to the recommendations and advice and their reasoning.

26. Decision at [74]-[75].

24. The Authority then stated: [27]

    27. Decision at [79]-[82].

The offender has now been in custody for 35 years, half his life. His conduct in custody has been close to perfect. He has shown willingness in recent times to overcome his own resistance to embarking on the long CUBIT program a second time and having done better in it than he did the first time. This fact alone shows a degree of rehabilitation. He has done all he can in custody and the only reason for keeping him confined is to keep him out of the community. The community is the community into which he would be taken by deportation if granted parole.

As to s135(2)(a), the risk of reoffending is assessed by Corrective Services psychologists as high. Those managing MAPPA are reported to have determined that he does not pose a risk of serious harm to the British community. That opinion does not appear to have been based on any interview or professional test or assessment. We prefer the assessment of Corrective Services psychologists. We accept that in view of the offender's long time in custody any release into the community would have to be managed by degrees.

We consider that the risk to community safety consequent on his release will increase if parole continues to be deferred.

The position that has now been reached is as follows:

• There is a high risk that the offender will re-offend if released into the community.

• If the offender is granted parole he will be taken by Commonwealth authorities and returned to Britain.

• That is something that the offender desires; he will therefore not exercise any right of appeal.

• If the offender is returned to Britain he will be released immediately into the community.

• While in the community the offender may be required by the authorities to be interviewed, may be offered advice and may be provided with accommodation and other surveillance or support. However, he will not be obliged to comply with any such advice or accept any such offer.

• He will not be supervised. He will not be compellable about his activities or whereabouts, so long as they are lawful.

• Neither he nor the community will have the benefit of his gradual, supervised release.

25. Having refused the plaintiff’s application for release, the Authority noted: [28]

The problem that the offender would not be compellable if returned to Britain may be insoluble. Any further application for parole would need to point to a material change of circumstances.

The Authority declines to consider the offender's case for 2 years from 25 August 2018.

28. Decision at [90]-[91].

26. It is apparent that in reaching its decision, the Authority construed the term “community” in s 135 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the Administration Act) as extending to the community in the United Kingdom to which the plaintiff intends to move in the event that he is released and deported. That construction is at the heart of what the plaintiff says are the Authority’s errors.

27. Although nothing turns on it, it should be noted that the issues raised by the plaintiff for this Court’s determination were not raised before the Authority, and thus were not argued and did not form any part of the Authority’s decision.

A SUMMARY OF THE COMPETING POSITIONS OF THE PARTIES

28. The competing positions of the parties may be shortly summarised.

29. The plaintiff’s fundamental proposition is that the term “community” in s 135 of the Administration Act should be construed as being confined to the community in NSW, and not construed as extending to a community within another jurisdiction to which an offender may be deported upon release.

30. Accepting that construction to be correct, it is the plaintiff’s position that the Authority erred in law, or committed jurisdictional error, by taking into account:

1. the fact that the plaintiff would be deported to the United Kingdom; and

2. the safety of the community in the United Kingdom to which the plaintiff intends to relocate in the event that he is released and deported.

31. The second defendant’s position is that having regard to the text of the Administration Act, and the context in which the term “community” appears, the term should be construed as extending to the community within the United Kingdom to which the plaintiff proposes to relocate if released on parole and deported. It is the second defendant’s position that the Authority was correct in its approach, and did not err in its conclusions.

THE RELEVANT STATUTORY PROVISIONS

32. It is appropriate at this point to set out a number of statutory provisions which were referred to by the parties in their submissions.

Crimes (Administration of Sentences) Act 1999 (NSW)

33. The objects of the Administration Act are set out in s 2A in the following terms:

2A Objects of Act

(1) This Act has the following objects--

(a) to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment,

(b) to ensure that other offenders are kept under supervision in a safe, secure and humane manner,

(c) to ensure that the safety of persons having the custody or supervision of offenders is not endangered,

(d) to provide for the rehabilitation of offenders with a view to their reintegration into the general community.

(2) In the pursuit of these objects, due regard must be had to the interests of victims of the offences committed by offenders.

(3) Nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings.

34. Section 135 of the Administration Act sets out the duties of the Authority in considering a person’s release on parole, and is in the following terms:

135 General duty of Parole Authority relating to release of offender

(1) The Parole Authority must not make a parole order directing the release of an offender unless it is satisfied that it is in the interests of the safety of the community.

(2) In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must have regard to the following principal matters--

(a) the risk to the safety of members of the community of releasing the offender on parole,

(b) whether the release of the offender on parole is likely to address the risk of the offender re-offending,

(c) the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole or at a later date with a shorter period of supervised parole.

(3) In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must also have regard to the following matters--

(a) the nature and circumstances of the offence to which the offender's sentence relates,

(b) any relevant comments made by the sentencing court,

(c) the offender's criminal history,

(d) the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole,

(e) if applicable, whether the offender has failed to disclose the location of the remains of a victim,

(f) any report in relation to the granting of parole that has been prepared by a community corrections officer,

(g) any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Review Council or any other authority of the State,

(h) if the Drug Court has notified the Parole Authority that it has declined to make a compulsory drug treatment order in relation to the offender's sentence on the ground that it is not satisfied as to the matters referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998 , the circumstances of that decision to decline to make that order, (i) that an application that has been made (but not determined) in respect of the offender--

(i) for an extended supervision order or continuing detention order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017 , or

(ii) for a continuing detention order under Division 105A of Part 5.3 of the Commonwealth Criminal Code,

(j) any other matters that the Parole Authority considers to be relevant.

(4) Without limiting subsection (3) (e) or (j), if the offender has provided post-sentence assistance, the Parole Authority may have regard to the following--

(a) the nature and extent of the assistance (including the reliability and value of any information or evidence provided by the offender),

(b) the degree to which the offender's willingness to provide assistance reflects the offender's progress to rehabilitation.

(5) Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be released on parole.

(6) A report prepared by a community corrections officer for the purposes of subsection (3) must address the matters prescribed by the regulations for the purposes of this section.

(7) The Parole Authority (and the Review Council when giving advice for the purposes of subsection (5)) must not have regard to the fact that either of the following may be made in respect of the offender--

(a) an application for an extended supervision order or continuing detention order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017 ,

(b) an application for a continuing detention order under Division 105A of Part 5.3 of the Commonwealth Criminal Code.

(8) The Parole Authority is not required to consider the matters specified by this section in relation to an offender if it determines under Division 3A that it cannot make a parole order for the offender.

(9) In this section--

"post-sentence assistance" means assistance in the prevention, detection or investigation of, or in proceedings relating to, any offence, provided by an offender to law enforcement authorities after the offender was sentenced and that was not taken into account or considered by the sentencing court.

35. The power of the Authority to release an offender on parole is found in s 149(1) of the Administration Act which provides as follows:

149 Decision following review

(1) After reviewing all the reports, documents, submissions and other information placed before it, the Parole Authority must decide--

(a) whether or not the offender should be released on parole, or

(b) whether, for reasons specified by the Parole Authority in its minutes, the question of whether or not the offender should be released on parole should be deferred.

(2) The question of whether or not the offender should be released on parole-

(a) may be deferred once only, and

(b) may not be deferred for more than 2 months.

(3) If the Parole Authority decides than the offender should be released on parole, it must make an order directing the release of the offender on parole on a day occurring during a period specified in accordance with section 151.

(4) If the Parole Authority decides that the offender should not be released on parole, the Parole Authority--

(b) must cause notice that it does not intend to make a parole order to be served on the offender.

36. Section 154 of the Administration Act requires the Authority, in exercising its functions under Part 6 in relation to a serious offender to whom s 154 applies, to have regard to the need to (inter alia) preserve the safety of the community:

154 Matters to be considered concerning certain serious offenders

(1) This section applies to a serious offender whose sentence for life is the subject of a determination under Schedule 1 to the Crimes (Sentencing Procedure) Act 1999 .

(2) The Parole Authority, in exercising its functions under this Part in relation to a serious offender to whom this section applies--

(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the sentencing court, and

(b) must give consideration to adopting or giving effect to any such recommendations, observations and comments and to the intention of the sentencing court when making them, and

(c) to the extent that it declines to adopt or give effect to any such recommendations, observations and comments, must state its reasons for doing so, and must, in particular, have regard to the need to preserve the safety of the community.

37. Section 185 of the Administration Act sets out the functions of the Authority (one of which it was exercising at the time of reaching its decision):

185 Functions of Parole Authority

(1) The Parole Authority has the following functions--

(a) to determine matters with respect to the granting of parole and the conditions on which parole is granted,

(a1) to determine matters with respect to the granting of re-integration home detention orders and the conditions on which the orders are granted,

(b) to determine matters with respect to the revocation of intensive correction orders and parole orders,

(c) such other functions as are conferred or imposed on it by or under this or any other Act or law.

(2) In exercising its functions, the Parole Authority--

(a) must have regard to the fact that the Commissioner has the care, control and management of all offenders who are held in custody in accordance with Part 2, 3 or 4, and

(b) must consider any submissions made to it by the Commissioner or by any other person or body entitled to make such submissions.

(3) In particular, in exercising any function in respect of which the Review Council has furnished advice, the Parole Authority must have regard not only to that advice but also to any submissions made by the Commissioner with respect to that advice.

(4) The regulations may make provision for or with respect to submissions by the Commissioner under this section.

Probation and Parole Act 1983 (NSW)

38. Prior to its repeal by the Sentencing Act, the Probation and Parole Act 1983 (NSW) (the Parole Act) included s 26 which was in the following terms:

26 General duty of the Board

(1) Where the Board is empowered to make a parole order with respect to a prisoner, the Board shall make the order unless—

(a) the Board determines that it has sufficient reason to believe that

the prisoner, if released from custody, would not be able to adapt

to normal lawful community life; or

(b) under section 29 (1), the Board defers the making of a determination whether or not the prisoner should be released on parole.

(2) Subsection (1) (a) does not authorise the Board to determine that a prisoner should be refused release on parole by reason only that, in the opinion of the Board, the prisoner may become liable to be deported.

Sentencing Act 1989 (NSW)

39. Prior to its repeal by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW), the Sentencing Act included s 17 which was in the following terms:

17 General duty of the Board

(1) The Board may not make a parole order for a prisoner unless the Board has:

(a) determined that the release of the prisoner is appropriate, having regard to the principle that the public interest is of primary importance, and

(b) considered relevant comments (if any) made by the court when sentencing the prisoner, and

(c) considered any reports required by regulations made for the purposes of this section to be furnished to it, and

(d) taken into account the antecedents of the prisoner and any special circumstances of the case, and

(e) determined that it has sufficient reason to believe that the prisoner, if released from custody, would be able to adapt to normal lawful community life, and

(f) considered any other relevant matter.

(2) In making a decision under this section, the Board is not to take into account whether a prisoner, if released on parole, may become liable to be deported.

40. Both the Parole Act and the Sentencing Act are relied upon by the plaintiff as constituting part of the relevant legislative history to which I have referred in more detail below.

Interpretation Act 1987 (NSW)

41. Section 5(2) of the Interpretation Act 1987 (NSW) (the IA) is in the following terms:

5 Application of Act

(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.

42. Section 12 of the IA is in the following terms:

12 References to New South Wales to be implied

(1) In any Act or instrument:

(a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and

(b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.

(2) In any Act or instrument, a reference to a body constituted by or under an Act or instrument need not include the words “New South Wales” or “of New South Wales” merely because those words form part of the body’s name or title.

SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff

43. Counsel for the plaintiff turned firstly to the provisions of ss 5(2) and 12 of the IA. He submitted that when considered together, those provisions supported the conclusion that NSW was a “locality” and a “jurisdiction” for the purposes of s 12(1)(b) and that this, in turn, supported the conclusion that the Authority had erred.

44. Counsel also referred to the objects set out in s 2A of the Administration Act, and submitted that when viewed in its proper context, the term “general community” in s 2A(1)(a) should be construed as meaning the community in NSW, because it is from that community that an offender is removed upon being sentenced and placed in a correctional facility. Counsel submitted that there was nothing to indicate that the “general community” into which an offender is re-integrated upon release should not be interpreted in the same way, and that there was nothing to indicate that the “general community” referred to in s 2A(1)(d) should extend to a different community in a foreign jurisdiction. It was submitted that had it been the intention of the legislature to extend the term in that way, such intention would have been reflected in plain and unambiguous language.

45. Counsel further submitted that a fundamental principle of statutory construction is that where a word is repeatedly used within the same Act, it should be given a consistent construction. [29] With that in mind, and bearing in mind the duties and functions of the Authority, counsel submitted that there was no reason why the term “community” should be construed as having a different meaning as between s 2A(1)(a) and s 2A(1)(d) of the Administration Act, or as between those sections and s 135.

    29. Craig Williamson Pty Limited v Barrowcliff [1915] VLR 450 at 452 per Hodges J; Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; [1975] HCA 41.

46. Counsel for the plaintiff also relied upon a number of definitions of the word “community”, including that in the Macquarie Dictionary (7th Edition) which is in the following terms:

All the people of a specific locality or country; the public; a particular locality considered together with its inhabitants; a group of people within a society with a shared ethnic or cultural background, especially within a larger society.

47. It was submitted that such definition supported the conclusion that the term “general community” referred to s 2A(1)(a) and (d) of the Administration Act should be construed as a reference to the whole of the community of NSW.

48. Counsel for the plaintiff also pointed to the fact that an offender’s deportation is not a mandatory consideration for the purposes of s 135 of the Administration Act. Counsel submitted that an offender who is released on parole necessarily serves the remainder of his or her sentence in the NSW community until such time as permission to leave the State is granted, or until the Commonwealth Government intervenes and orders that he or she be deported. Counsel submitted that there was a general rule of statutory construction that confined State enactments to State proceedings, and that a reference to courts, matters, things and persons in the legislation of a State was to be construed as a reference to courts, matters, things and persons in that particular State, and nowhere else. [30] It was submitted that if the word “community” was construed as being the NSW community for the purposes of s 135 of the Administration Act, the extent to which deportation may be considered under the Administration Act was necessarily limited. That outcome, it was submitted, was consistent with deportation not being a mandatory factor.

    30. Seaegg v R [1932] HCA 47; (1932) 48 CLR 251; Solomons v District Court of NSW (2002) 211 CLR 119; [2002] HCA 47 especially at [9] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ and per McHugh J at [37].

49. Counsel for the plaintiff further submitted that the legislature of one country is presumed not to deal with persons or matters, the jurisdiction over which properly belongs to another country, and that there was a presumption that legislation is not to have an extra-territorial effect. It was submitted that in the context of the present case, this meant that the safety of the community in the United Kingdom was irrelevant to the statutory duties of the Authority. Counsel submitted and that it was beyond the Authority’s jurisdiction to refuse parole on the basis of an assessment of the interests of the safety of an overseas community over which it had no control.

50. Counsel for the plaintiff then turned to the legislative history of s 135 of the Administration Act. In this regard, he took the Court to the second reading speech in which reference was made (inter alia) to the need to assist an offender’s re-integration “into the community”. It was submitted that in its proper context, this could only refer to the community of NSW.

51. The submissions of counsel for the plaintiff then turned to the principle of legality, in the context of the legislative history of s 135. It was submitted, in particular, that under the Parole Act [31] and the Sentencing Act, [32] which were effectively the predecessors to the Administration Act, an offender was entitled to be considered for parole and released irrespective of whether he or she was liable to deportation. It was submitted that had the Parliament intended to alter that position, it would have stated such intention in unambiguous language.

    31. Section 26(2).

    32. Section 17(2).

52. Counsel for the plaintiff further submitted that it was difficult to envisage that there would ever be any change in the plaintiff’s circumstances which would support any further application for release. He submitted that in these circumstances, the plaintiff faced indefinite incarceration.

53. Finally, counsel for the plaintiff submitted that in reaching its decision, the Authority had made no reference to guidelines or guiding principles. It was submitted that the guiding principles attached to the Authority’s Annual Report released in 2013 did not indicate that they were made in consultation with the Minister. Whilst acknowledging that such guiding principles did not have the force of law, and did not have to be taken into account under s 135 of the Administration Act, and whilst further acknowledging that subsequent Annual Reports did not include a copy of any further guiding principles, counsel cited the fact that the 2013 principles included the following:

Deportation:

2.8 The Parole Authority will consider each case on its merits. Factors to consider before granting parole:

(a) whether a definite decision has been made by the Department of Immigration;

(b) whether the offender has adequately addressed the offending behaviour;

(c) whether the offender would otherwise be released to parole in Australia if not subject to deportation;

(d) the seriousness of the offence;

(e) the risk to the community in the country of deportation;

(f) the post release plans in the country to which the offender is to be deported;

(g) the duration of the period to be served on parole;

(h) the fact that supervision of the parole order is highly unlikely to occur;

(i) whether or not the offender entered the country specifically to commit the crime for which he or she is being sentenced;

(j) whether or not the court knew at the time of sentencing that the offender would be deported, and took this into account at the time of sentencing.

Submissions of the second defendant

54. Senior counsel for the second defendant commenced by taking the Court to the text, statutory context, and purpose of s 135 of the Administration Act. He submitted that in circumstances where the term “community” was not defined in the Administration Act, and where the text of s 135 was silent as to the geographical reach of the term, neither of the respective constructions advanced by the parties was precluded, or for that matter required, by the text of the section alone.

55. Senior counsel submitted that whilst dictionary definitions may assist in identifying the range of possible meanings that a word may bear in various contexts, such definitions will not assist in ascertaining the precise meaning that the word may bear in a specific context. It was further submitted that in any event, the particular definitions relied upon by the plaintiff, although they referred to a “locality”, simply meant “a place”, and did not carry with them any particular implication(s) as to the degree of “localness” which was required. Senior counsel also referred the Court to the definition of the word “community” which appears in the Oxford Dictionary of English (3rd Edition) in the following terms:

A group of people living in the same place or having a particular characteristic in common (emphasis added).

56. It was submitted that nothing in that definition suggested that the place must be limited to a particular size (such as a state or even a country), and that the word “community” was therefore capable of referring to the New South Wales community, the Australian community, or an overseas community.

57. It was further submitted that the principle of consistency in statutory construction did not assist the plaintiff, because there was no reference to the term “community” in the Administration Act that could be unequivocally related to one or other of the constructions for which each party contended.

58. Senior counsel then turned to the context in which the word “community” is used in the Administration Act. In doing so, he relied upon a series of factors which, it was submitted, supported the second defendant’s construction.

59. Firstly, it was submitted that s 135(2)(b) of the Administration Act, along with the other sub-paragraphs of s 135(2), informed the meaning of the term “community” because they were expressed to be necessary integers in the Authority’s assessment of the “safety of the community”. Senior counsel submitted that there was no indication in s 135(2)(b) that the risk of an offender re-offending was to be considered in a geographically limited way, and that such inquiry was to be undertaken regardless of where it was anticipated that an offender would ultimately come to reside if and when released. It was submitted that this meant that in a case where it was known that an offender would be deported, the Authority was not relieved of its statutory duty to consider the risk of re-offending.

60. Secondly, it was submitted that s 135(2)(c) of the Administration Act was premised on the proposition that a gradual and supervised release of an offender was generally preferable to a sudden and unsupervised release. It was submitted that the policy in favour of gradual release furthered the purposes of the Act, which included the rehabilitation of offenders and their re-integration into the community. Senior counsel submitted that if the plaintiff’s construction was to be preferred, the Authority would be precluded from giving effect to such a policy in the case of any offender who was liable to deportation, for the simple reason that if deported, such an offender could not be subject to any supervision at all. This, it was submitted, would mean that the Authority’s responsibility to facilitate rehabilitation and reintegration of offenders would cease in the case of an offender such as the plaintiff who was eligible for parole, but who would be deported on release and thus not subject to any supervision at all during his parole period.

61. Thirdly, senior counsel relied upon those provisions of Part 2, Division 5 of the Administration Act which govern the detention of prisoners from Norfolk Island in New South Wales Correctional Centres, [33] and the provisions of Part 6, Division 4A which allow the Authority to make parole orders in relation to such prisoners. [34] Senior counsel submitted that such provisions were predicated on the assumption that s 135 was capable of having some operation in respect of prisoners who were from Norfolk Island, many of whom it could sensibly be expected would wish to return there once released. It was submitted that if s 135 were construed as denying the Authority the power to consider the safety of the community beyond New South Wales, it would require the Authority to exercise its powers over Norfolk Island prisoners without regard to the risks that a grant of parole might visit upon Norfolk Island residents. Senior counsel submitted that it was implausible to suggest that the Act was intended to operate in this way.

    33. Section 48(2).

    34. Section 160AC(1).

62. Fourthly, senior counsel relied upon the provisions in the Administration Act in respect of terrorism-related offenders. [35] In doing so, he pointed out that in order to satisfy itself of the matters in s 159C(1)(a), the Authority was required to assess the risk that an offender would engage in terrorist acts or violent extremism in any other part of Australia, or in any other country. Whilst accepting that such provisions could not be strictly regarded as an integer in the assessment of the interests of the safety of the community, senior counsel submitted that they nevertheless reflected the fact that the Parliament’s concern extended to the conduct of offenders overseas. This, it was submitted, supported a conclusion that the “community” referred to in the Administration Act was broader than the community of New South Wales, or for that matter the community of Australia as a whole.

    35. Part 6 Division 3A; s 159A; s 159C.

63. Fifthly, senior counsel relied upon the extent to which the Administration Act contemplates and authorises co-operation between authorities in New South Wales and those of other jurisdictions. [36]

    36. See for example Part 2 Division 3 sub-division 2 which provides for interstate leaves of absence; Part 2 Divisions 4 and 5 which provide for the detention in New South Wales of inmates from the Australian Capital Territory and Norfolk Island; s 43 which reflects an intention to preserve, rather than abrogate, related statutes that regulate the transfer of inmates from New South Wales to other jurisdictions such as the Prisoners (Interstate Transfer) Act 1982 (NSW) and the International Transfer of Prisoners (New South Wales) Act 1997 (NSW).

64. Senior counsel then turned to the legislative history of s 135. He submitted that such history favoured a construction which permitted the Authority, in determining an application for release on parole, to have regard to the risk to the community in an offender’s country of intended deportation. It was submitted that the legislative history reflected an alteration of the criteria that the Authority was to apply, and shifted away from a consideration of the public interest generally towards a consideration of the interests of the safety of the community. It was submitted that the various legislative amendments had not purported to introduce any constraint on the Authority’s ability to have regard to risks to the community that might eventuate outside New South Wales.

65. In terms of the IA, senior counsel submitted that both the principle embodied in s 12(1)(b), and the associated presumption against extra-territoriality, were necessarily subject to any expressed contrary intention. Such an intention, it was submitted, was evident in the present case when one considered the provisions of s 135, the rehabilitative and corrective responsibilities of the Authority, and the fact that the Administration Act contemplated extensive co-operation with the authorities of other jurisdictions.

66. Finally, senior counsel submitted that the principle of legality did not assist the plaintiff. It was submitted that such a principle was concerned with the preservation of fundamental rights and principles, and systemic values, and that what had been identified by the plaintiff did not fall into any of those categories.

CONSIDERATION

67. In considering the competing submissions of the parties, it is appropriate to commence by setting out a number of general principles of statutory construction.

68. Firstly, the primary objective of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must therefore be determined by reference to the language of the instrument when viewed as a whole. [37]

    37. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70] per McHugh, Gummow, Kirby and Hayne JJ.

69. Secondly, the task of statutory construction begins and ends with a consideration of the statutory text, which must be considered in light of its context, its legislative purpose, the relevant legislative history, and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. [38]

    38. Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]-[23]; SAS Trustee Corporation v Miles (2018) 361 ALR 206; [2018] HCA 55 at [20]; [41]; [64].

70. Thirdly, context should be considered in the first instance, and not merely when ambiguity is said to arise. [39]

    39. Stzal v Minister for Immigration and Boarder Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]; [36].

71. Fourthly, although the legal meaning of a particular provision will ordinarily correspond with its grammatical meaning, the context of the words, the consequences of a literal or grammatical construction, and the purpose of the statute, may require the provision to be read in a way that does not correspond with the literal or grammatical meaning. [40]

    40. Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [24].

72. Fifthly, a construction that promotes the purpose of the legislation is to be preferred over one which does not. [41]

    41. Project Blue Sky Inc (supra) at [78].

73. Finally, it is a circular, and erroneous, approach to statutory construction to construe the words of a definition by reference to the term defined. [42]

    42. The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co. Inc (1994) 181 CLR 404 at 419; [1994] HCA 54 citing Wacal Developments Pty Limited v Realty Developments Pty Limited (1978) 140 CLR 503; [1978] HCA 30.

74. Applying these principles to the circumstances of the present case, I have come to the view that for a number of reasons, the construction advanced by the second defendant is to be preferred.

75. The evidence before the Authority was that upon release, the plaintiff will inevitably be deported to the United Kingdom. Accepting that to be the case, and in circumstances where one of the express objectives of the Act is to provide for the rehabilitation of offenders with a view to their reintegration into the general community,[43] the plaintiff would not, if released, be subject to any supervision at all. He could not be compelled to undertake, or not to undertake, any activity and the implementation of any recommendation which might be made in relation to his rehabilitation would be entirely dependent upon his motivation, and his willingness to co-operate. For example, although the plaintiff could be asked to attend an interview with correctional or law enforcement authorities in the United Kingdom, he would not be under any obligation to do so. This total absence of supervision would arise in circumstances where, on the evidence before the Authority, the plaintiff:

1. is a high risk sex offender who has been convicted of murder;

2. presents as a person who needs assistance with: emotional regulation, reintegration into the community, maintaining appropriate views about women, problem solving skills and sexual self-regulation; and

1. requires ongoing participation in a community based sex offender program to reduce the risk of recidivism, in circumstances where he would have increased access to potential victims.

   43. Administration Act s 2A(1)(d).

76. I have already noted that one of the stated objectives of the Administration Act is directed towards the rehabilitation of offenders. In the present case, a necessary component of the plaintiff’s rehabilitation is the taking of steps which have been assessed as being necessary for the purposes of addressing his identified risk of recidivism. However, for the reasons I have outlined, such steps could not be implemented. If the plaintiff's construction were accepted it would follow that in a case such as the present, the Authority would, in reaching its decision to whether the offender in question should be released, effectively put aside the question of rehabilitation, irrespective of how dangerous the offender was, and irrespective of the level of risk that he or she posed. Such an outcome would hardly be conducive to an offender’s rehabilitation. In fact, it would impede it, because it would mean that an offender could be released without any effective supervision at all. That would promote an approach which was at odds with one of the stated objectives of the Administration Act. In my view, it cannot have been the intention of the Parliament that the Authority would carry out its functions in a way which failed to advance one of the objectives of the Act, and which ignored the significant risk of re-offending in the absence of rehabilitation.

77. I am fortified in that view by a number of authorities to which I was taken by senior counsel for the second defendant in the course of argument.

78. In Attorney-General (NSW) v Liew [44] Beech-Jones J considered the previous terms of s 135 (1) of the Administration Act which precluded the Authority from making a parole order unless it was satisfied “that the release of the offender was appropriate in the public interest". For the purposes of making that assessment, the Authority was required to take into account a number of matters, including the need to protect the safety of the community. Having observed[45] that the defendant’s deportation upon release was an assumption on which all parties had proceeded, his Honour said:

……. [W]hen the Authority came to consider many of the other criteria in s 135(2), such as the need to protect the safety of the community…. it had to consider the matter against the background of that common assumption. In that sense to discharge its function under s 149(1) properly having regard to the criteria in s 135(2) the Authority had to “consider” the fact that [the defendant] would be deported. If it did not it is difficult to see how the criteria in s 135(2) could have been sensibly applied.

44. [2012] NSWSC 1223.

45. At [71].

79. Whilst his Honour was considering s 135 of the Administration Act in terms which were different to those presently under consideration, his determination provides some support for the conclusion that both the fact of an offender’s deportation, and the circumstances which would prevail in the country to which he or she was to be deported, are relevant considerations.

80. In R v Parole Board; Ex parte White [46] the Queen's Bench Division was called upon to determine whether the consideration, by a Parole Board, of the protection of the public was capable of extending to a consideration of the risk to the public in Jamaica, that being the country to which the offender was to be deported when released. Butler-Sloss LJ said:

[I]f one reads it, without reference to any other case or Act, there is nothing to show that “the public” is limited to “the public within England and Wales or the United Kingdom”. Again, looking at what is meant by “the public”, it means, in my judgment, the people generally. There is a difficulty here too, and that is if you read “the public” restrictively, there may arise a situation where the Parole Board is required to release a prisoner to, for instance, the Republic of Ireland and the protection of the public within the United Kingdom may not be achieved by the deportation to a country so close, in respect of which there is no real ability to inhibit his return. In answer to that, [counsel for the applicant] has said that the Deportation Order from the Secretary of State requires him to leave, and prohibits his return. There are facilities to enforce that should he not return. I believe that the Parole Board have (sic) a duty to live in the world as it is, rather than the world as one might like it to be. It is quite clear that they ought to be some cases where it might be very difficult to enforce it.

The second matter which would concern me, if [counsel for the applicant] is right, is that once the tariff period has been met and there is a Deportation Order, there is no further discretion available to the Parole Board, because as long as there is a Deportation Order, the protection of the public will be met by putting him on a plane to the public about whom the act has no concern, therefore he has a right to apply, the day that the tariff is over, to be released. That, in my judgment, cannot be within the contemplation of the Parole Board's duties under the Act, and they are the determiner as to when a man is, or is not, released. The interaction between the Immigration Act and the Criminal Justice Act does not seem to me to have been intended to fetter the wide discretion of the Parole Board.

Latham LJ, who agreed with Butler-Sloss LJ, said:

This application depends entirely upon the proper meaning to be given to the word “public" in section 34(4)(b) of the Criminal Justice Act 1991. In my judgment, the word “public" in this paragraph is to be equated to some such phrase as “any other person". The use of the word “public" seems to me to have been chosen, because, of course, the position is presupposed that the applicant is within the confines of some establishment. Clearly, it may be that he is a danger to those in the establishment. It is simply directing attention to the fact that what the Parole Board and, therefore, the Secretary of State are to concern themselves with, is the risk that the particular applicant presents to other people outside the confines of the establishment within which he is held.

46. Queen’s Bench Division, 16 December 1994 unreported.

81. In R v Fox [47] the Supreme Court of South Australia considered whether a person found not guilty of attempted murder by reason of mental incompetence should be released in circumstances where it was contemplated that he would be deported to the United States. In circumstances where there was evidence tending to establish that the applicant posed a risk to those who were around him, Gray J noted that an issue had arisen as to whether or not the phrase “community" included the community of the United States and observed:[48]

Counsel for the Director submitted that the court clearly has a duty to protect the community in South Australia and probably to take all available steps to protect the community in the United States…… On the topic of the welfare of Mr Fox, it was contended that the court also has a duty to ensure that Mr Fox is not left without the treatment and support he needs. A removal to the United States without any means of enforcing that treatment and/or supervision would be setting Mr Fox up to fail, notwithstanding the good intentions of his mother or indeed himself.

47. [2011] SASC 224.

48. At [52].

82. His Honour went on to say:[49]

In my view, allowing Mr Fox to be released on license and for deportation to then occur, would, without any degree of control, place the community in this State and in the United States at risk. His release would not be consistent with the safety of the community.

49. At [61].

83. In Miketic v Prisoners Review Board [50] the Supreme Court of Western Australia dealt with an application by the plaintiff for parole, in circumstances where he had argued that due to strong family ties and employment prospects in Serbia, the Parole Board had been required, but had failed, to take those circumstances into account in the event that he would be deported following any grant of parole. Martin CJ observed:[51]

In deciding whether or not to grant parole, the Board is expressly required to take into account the release considerations specified in s 5A the Act and is also required by s 5B of the Act to regard the safety of the community as the paramount consideration in the exercise of its powers and functions. The safety of the community, in the event the parole is granted, and at least some of the release considerations specified in s 5A of the Act have an element of futurity which requires the Board to undertake an assessment of the likely circumstances of the prisoner in the event the parole is granted.

50. [2011] WASC 176.

51. At [34].

84. His Honour went on to say:[52]

As I have already noted, at least some of the considerations which the Board is expressly required by the Act to take into account prior to deciding whether or not to grant a prisoner parole have an element of futurity. The risk of reoffending, and consequently the safety to the community, are obvious examples because the risk of the prisoner reoffending is likely to depend, to at least some extent, upon the circumstances in which he or she finds himself or herself following the release to parole. The likelihood of the prisoner complying with the obligations of parole is another obvious example because, in the event of deportation, the practical content of those obligations will be reduced to nil because of the impracticability of supervision following deportation. It follows that in order to comply with the express obligations imposed by the Act, it was necessary for the Board to take into account the strong likelihood that Mr Miketic would be deported very soon after being granted parole, and his circumstances in the event that he was deported. Failure by the Board to take those matters into account would constitute a failure to take account of considerations which the Act requires be taken into account, which would in turn lead to the conclusion that the Board had exceeded the jurisdiction conferred upon it by the Act.

52. At [42].

85. In Attorney-General for the State of New South Wales v XY [53] the Court of Appeal was called upon to consider the provisions of s 43(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) which provided that the Mental Health Review Tribunal must not make an order for the release of a forensic patient unless satisfied on the evidence available that the safety of the patient, or any member of the public, would not be seriously endangered by the patient’s release. There was evidence before the Tribunal, which the Tribunal accepted, that the respondent would benefit from a transfer from New South Wales to Queensland. The Tribunal subsequently made an order that the patient be unconditionally released upon notification of his admission to a forensic unit in that State. In obiter remarks, Beazley P observed[54] :

……. [A]ny member of “the public" in s 43(a) may extend to any member of the public with whom the patient comes or may come into contact with. For example, if the Tribunal was considering conditional release to enable a patient to travel overseas, any member of “the public” would presumably encompass persons encountered in the course of travelling and whilst overseas.

53. [2014] NSWCA 466.

54. At [52].

86. Basten JA, in remarks which were also obiter, said: [55]

That finding [that “any member of the public"] should be construed to apply to “any member of the public in Queensland and New South Wales" ….. was not challenged and was sufficient for the circumstances of the case. It should not, however, be treated as a restrictive finding. The phrase is apt to cover members of the public anywhere in Australia and, indeed, may well extend to other countries. It is by no means clear that the Tribunal could properly disregard the consequences of the unconditional release of a forensic patient due to depart for a foreign country.

55. At [163]-[164].

87. In Ripi v Parole Board Queensland [2018] QSC 205 Davis J in the Supreme Court of Queensland considered an application for judicial review of a decision by the Parole Board. The applicant had relied, in favour of a grant of parole, upon circumstances that would prevail upon his deportation to New Zealand after he had been released. The Parole Board had observed that it was required to assess the level of risk posed by the plaintiff to the community, whether that community be in Australia or New Zealand, and had expressed its concern that the plaintiff was effectively an untreated sex offender who would only receive minimal supervision in New Zealand. Davis J rejected the plaintiff's submission that the Board had failed to consider relevant guidelines which it was instructed to consider where there was an unacceptable risk to the community if he was released on parole. Whilst his Honour was not called upon to determine the meaning of the word “community", his judgment contained nothing to suggest that he considered the Board had erred by taking into account the safety of the community in New Zealand.

88. It must be acknowledged that none of these authorities are directly on point. However, they are generally supportive of the proposition that the Authority did not err by taking into account the fact of the plaintiff’s inevitable deportation, and the circumstances which would prevail in that event in terms of his ongoing supervision.

89. I do not consider that any of the dictionary definitions to which I was referred provide any real assistance in determining the issue. Whilst dictionary definitions may assist in identifying the range of possible meanings that a word may bear in various contexts, they will not assist in ascertaining the precise meaning that a word bears in a particular context. It is partly for this reason that courts have cautioned against an approach to statutory construction which seeks to make a “fortress” out of a dictionary. [56] There is nothing in the dictionary definitions of the word “community” to which I was referred which supports a conclusion that such term, when used in the Administration Act, refers to the community of New South Wales only.

    56. TAL Life Limited v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [80] per Leeming JA (Beazley P and Emmett AJA agreeing); South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [78]-[81] per Leeming JA (Basten and Meagher JJA agreeing); Thiess (supra) at [23] citing Cabell v Markham 148 F 2d 737 (1945) at 739; Residual Assco Group Limited v Spalvins (2000) 202 CLR 629; [2000] HCA 33 at [27] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, and Callinan JJ.

90. Importantly, there is also nothing in the Administration Act which provides support for the proposition that the word “community” is to be construed in a way which is geographically limited. Indeed, as senior counsel for the second defendant pointed out, such indications as are contained in the Administration Act tend generally to the contrary[57] and support the approach taken by the Authority.

    57. See for example Part 2, Division 5; Part 6 Division 4A; Section 159C(1)(a).

91. Whilst I accept that where a term is used more than once in an Act it should be given a consistent interpretation, there is nothing which prevents that approach from being adopted in the present case. The construction of the word “community” as propounded by the second defendant can be consistently adopted wherever it appears in the Administration Act without giving rise to any inconsistency.

92. I have already noted the reliance placed by counsel for the plaintiff upon the principle of legality. Pursuant to that principle, the law recognises that absent express words or necessary implication, it is to be inferred that the Parliament, in enacting a particular provision, did not intend to remove fundamental rights and freedoms. [58] The principle has been described as a working hypothesis, the existence of which is known both to Parliament and the courts, and upon which statutory language will be interpreted. [59] In my view, reliance on the principle of legality in the present circumstances is somewhat misplaced for two principal reasons.

    58. Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at 577; [19] per Gleeson CJ; Coco v R (1994) 179 CLR 427; [1994] HCA 15 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ.

    59. Electrolux Home Products Pty Limited v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40 at 329; [21] per Gleeson CJ.

93. Firstly, the submission advanced on behalf of the plaintiff embodied the proposition that under the legislation which preceded s 135 of the Administration Act, an offender was entitled to be considered for parole if he or she was liable to deportation. Although not expressly put, the effect of the submission was that the opposite was the case under the Administration Act. Properly understood that is not the position. There is nothing preventing the Authority from considering the release on parole of a person who is subject to deportation. Indeed, as the Authority pointed out[60] it often considers whether to grant parole to foreign nationals whose visas have been cancelled.

    60. Decision at [74].

94. Secondly, as I have noted, the principle of legality has, as its focus, fundamental rights and freedoms. In Lee v NSW Crime Commission, [61] Gageler and Keane JJ made reference to a statement of Marshall CJ in the Supreme Court of the United States in 1805[62] where his Honour had observed:

Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.

61. (2013) 251 CLR 196; [2013] HCA 39 at [307].

62. United States v Fisher 6 US 358 at 390 (1805).

95. The legislative history in the present case does not support a conclusion that as a consequence of the enactment of s 135 of the Administration Act there has been any infringement of rights, any overthrowing of fundamental principles, or any departure from the general system of law relating to an offender’s release on parole.

96. I am also unable to accept the proposition that the effect of the Authority’s determination is that the plaintiff will be held in custody indefinitely. That proposition is predicated on the assumption the plaintiff’s circumstances will remain as they are. That may not necessarily be the case. Changes in the plaintiff’s circumstances could be brought about, for example, by the plaintiff taking the further rehabilitative steps which were identified in the evidence which was before the Authority. If those steps were taken, there may be some potential for the plaintiff to demonstrate that he was not as significant a risk as the Authority has determined is presently the case.

97. I am also not persuaded that the adoption of the second defendant’s construction would infringe the principle that legislation is presumed not to apply to persons or matters outside the limits of the territory to which such legislation extends. In Jumbunna Coal Mine NL v Victorian Coal Miners’ Association [63] , O’Connor J observed:

In the interpretation of general words in a Statute, there is always a presumption that the Legislature does not intend to exceed its jurisdiction. Most Statutes, if their general words were to be taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits. Under the same general presumption, every Statute is to be so interpreted and applied as far as its language admits as not to be inconsistent with the comity of nations, or with the established rules of international law….. The same principle of interpretation is applied to enactments of a legislature of limited jurisdiction (emphasis in original).

63. (1908) 6 CLR 309 at 363-364; [1908] HCA 95.

98. In a subsequent decision of Barcelo v Electrolytic Zinc Co of Australasia Limited[64] Dixon J (as his Honour then was) confirmed the principle that the operation of general language in a statute is to be confined to subject matter under the effective control of the Legislature. His Honour observed that it is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other Sovereign or State.

    64. (1932) 48 CLR 391 at 423-424; [1932] HCA 52.

99. The adoption of the construction advanced by the second defendant does not infringe these principles. That construction simply means that in carrying out its functions, the Authority may take certain matters into account. In doing so, the Authority is not purporting to regulate anything at all which might occur outside New South Wales.

100. Moreover, the fact that an offender’s deportation is not a mandatory consideration in s 135(2) of the Administration Act is not to the point, and does not support the conclusion that the Authority erred. Whilst s 135(2) sets out a number of mandatory considerations for the Authority to take into account, the section does not purport to constitute an exhaustive list of those considerations that might be relevant in a given case.

101. Finally, whilst I acknowledge the provisions of s 12 of the IA to which I was taken, I am unable to accept the submission, based on those provisions, that the plaintiff’s construction should be preferred. Section 5 of the IA makes it clear that its provisions (including those in s 12) are subject to the expression of a contrary intention. In my view, the various factors to which I have referred above [65] evidence that contrary intention.

     65. Particularly at [75]-[76] and [90].

ORDERS:

102. For these reasons I make the following orders:

1. The time for filing the amended summons is extended to 29 August 2019.

2. The proceedings are dismissed.

3. The question of costs is reserved.

4. The parties are to notify my Associate within 7 days as to whether agreement has been reached as to costs, in which case a minute of any order(s) sought is to be provided.

5. Absent agreement as to costs, each party is to file with my Associate written submissions not exceeding 3 pages in length by 5.00 pm on 27 March 2020.

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Endnotes

Decision last updated: 13 March 2020