ZS v Sentence Administration Board
[2018] ACTSC 289
•22 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ZS v Sentence Administration Board |
Citation: | [2018] ACTSC 289 |
Hearing Date: | 14 May 2018 |
Submissions last received: | 20 July 2018 |
DecisionDate: | 22 October 2018 |
Before: | McWilliam AsJ |
Decision: | See [144] |
Catchwords: | JUDICIAL REVIEW – denial of procedural fairness – bias – apprehended bias – whether discussion by members of Sentence Administration Board during adjournment of hearing of application for parole gave rise to actual bias or reasonable apprehension of bias |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 7, 120, 121, 123, 124, 125, 126, 127, 137, 171, 172, 174, part 13.1 |
Cases Cited: | Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 |
Parties: | ZS (Plaintiff) Sentence Administration Board (First Defendant) Director-General of the Justice and Community Safety Directorate (Second Defendant) |
Representation: | Counsel Self-represented with Mr C Tully (Plaintiff with McKenzie friend) Ms N Tarbet (Second Defendant) |
| Solicitors ACT Government Solicitor (Second Defendant) | |
File Number: | SC 425 of 2017 |
This case substantially concerns the application of the principle of natural justice that "justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, 259 Lord Hewart CJ. It arises in the context of a series of decisions made by the Sentence Administration Board (Board) concerning the liberty of an offender, who is now the plaintiff in these judicial review proceedings.
On 29 August 2014, the plaintiff was convicted of a number of offences under both Australian Capital Territory (ACT) and Commonwealth laws relating to the use, possession and production of child pornography. The plaintiff was sentenced to a period of imprisonment for a total term of four years and ten months. He was sentenced to a non-parole period of two years and ten months, and thereafter was to be released on a good behaviour recognisance for a further two years. The sentence was backdated, so that the earliest that the plaintiff was eligible for release on parole was 22 June 2017.
The plaintiff made three applications for parole. The first application was heard by the Board on 20 June 2017 and refused on the same day (first decision).
The second application was heard by the Board on 10 October 2017, and refused on the same day (second decision).
The third application was heard by the Board on 13 March 2018, and again, the application was refused on the same day (third decision).
The plaintiff challenges the lawfulness of each of those decisions. Proceedings were commenced in this Court by originating application filed on 16 November 2017, amended on 5 March 2018, and further amended at the hearing on 14 May 2018, whereby the relief sought was expanded at the hearing to include judicial review of the third decision, which had only been made after the plaintiff commenced proceedings.
In the intervening period between the commencement of proceedings and the hearing (and noting that expedition had been raised with the parties, but the offer was declined), the plaintiff had served the full custodial part of his sentence and was released on 20 April 2018 on a bond to be of good behaviour, which expires in June 2019. That affected the relief ultimately sought by the plaintiff, so that he now seeks only declaratory relief.
The Board appropriately filed a submitting appearance: see The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35.
Grounds of complaint
The plaintiff’s complaints impliedly invoked the Court’s jurisdiction to conduct judicial review pursuant to s 34B of the Supreme Court Act 1933 (ACT), and were understood as such by the second defendant, the Director-General of the Justice and Community Safety Directorate (Director-General).
There were seven grounds of complaint set out in the amended originating application. The allegations were directed to the conduct of the hearings, the conduct of community corrections officers, and the conduct of the Board. Save as to one issue regarding incorrect information, the plaintiff’s complaints asserted multiple instances where he was denied procedural fairness in respect of each of the decisions.
The plaintiff alleged the hearings were conducted on the basis of misleading or factually incorrect information presented to the Board, that the information relied on was speculative, and that the information had been it was prepared to influence an outcome against the grant of parole.
As to the conduct of community corrections officers of the Director-General, the plaintiff alleged that the officers did not act in good faith leading up to the first and second hearings, including in their treatment of family members of the plaintiff prior to the second hearing. Further, the conditions noted on the pre-release reports prepared for the first and second hearings demonstrated bias and violated the human rights of the plaintiff.
The plaintiff’s complaints against the Board were directed to the second hearing, which he alleged was conducted in bad faith and exhibited bias.
However, the plaintiff was self-represented and the allegations were both developed and refined at the hearing. The Director-General was given the opportunity to file submissions responding to the arguments as they had been put at hearing, which now include a complaint made in respect of the third decision.
The following complaints have thus emerged:
(a)The first decision to refuse the plaintiff’s application for parole was invalid, because it was affected by apprehended bias, formed through the strong influence of advisory parties to the hearings, directly and through their reports (Issue 1).
(b)The risk assessment presented to the Board in an addendum report dated 15 June 2017 was misleading, or erroneous, with the plaintiff classified as a “moderate-high risk of sexual reoffending”, when he should have been classified as a low risk. That was a factual error so critical to the deliberations of the Board that the process miscarried (Issue 2).
(c)The plaintiff was denied procedural fairness in respect of the first decision, in two ways. First, as he was only provided with the addendum report of 15 June 2017 the day before the hearing, he did not have sufficient opportunity to become aware of the error, let alone to investigate how it came about and to respond to it before the Board. Second, the addendum report raised the issue of a lack of approved accommodation, and the lateness with which it was provided to the plaintiff meant that he did not have the opportunity to remedy the issue before the hearing (Issue 3).
(d)The first decision was erroneous because the Board applied the wrong statutory test, directing its focus instead to whether the plaintiff had completed a custodial treatment program (Issue 4). In this regard, the plaintiff relied upon the decision of Galli v New South Wales State Parole Authority [2006] NSWSC 206 at [7], (Galli) discussed below.
(e)The second decision was vitiated by bias or apprehended bias, arising from comments made by members of the Board both during the hearing and during an adjournment while the members of the Board considered the plaintiff’s application (Issue 5).
(f)The third decision was tainted by the errors complained of in relation to the first and second decisions (Issue 6).
16. Where an application raises allegations of bias or apprehended bias, such complaints strike at the validity and acceptability of the process and its outcome and should therefore be dealt with before other substantive issues are decided: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 (Concrete v Parramatta) at [117].
17. Consistent with that approach, Issues 1 and 5 will be addressed first, notwithstanding that there were three separate decisions under challenge. If bias or apprehended bias is found to be established in respect of either the first or the second decision, consideration will need to be given to whether that has any consequences for the other decisions made in relation to the plaintiff.
The parole application process
18. Ordinarily, an offender may apply for parole under s 121 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Act), no earlier than 6 months before the offender’s parole eligibility date. An application for parole may be made even though another parole application has previously been refused: s 121(6) of the Act.
19. The Board may make a parole order for an offender only if it considers that parole is appropriate for the offender, having regard to the principle that the public interest is of primary importance: s 120(1) of the Act.
20. The Board must consider a number of matters set out in s 120(2) of the Act. Relevantly here, they include any report prepared for the Territory in relation to the granting of parole to the offender, and the likelihood that, if released on parole, the offender will commit further offences.
21. Through a combination of ss 125-127 of the Act, the Board must conduct an inquiry and if not satisfied that the documents justify paroling the offender, is to provide an oral hearing to the offender. Before the inquiry commences, the Board must seek the views of any victim: see ss 123 and 124 of the Act.
22. There are a number of “core conditions” of any parole order, set out in s 137 of the Act, which include any condition prescribed by regulation that applies to the offender: s 137(f) of the Act. Under s 4(a) of the Crimes (Sentence Administration) Regulation 2006 (ACT), the offender must live only at premises approved by the Director-General.
23. The Board is also established by s 171 of the Act. Its functions are set out in s 172 of the Act and include functions given under Chapter 7 of the Act, relating to parole. Other functions include those given under Chapter 5 of the Act, concerning intensive correction orders, under Part 13.1 of the Act in relation to release on licence, and the provision of advice to a Minister about an offender on request.
24. Under s 174 of the Act, judges of the Supreme Court of the ACT and magistrates of the Magistrates Court of the ACT can be appointed to the Board and the appointment does not affect the person’s office of judge or magistrate. Any person appointed as a chair or deputy chair must be judicially qualified; that is, the person must have been a legal practitioner for not less than five years: s 174(2) and 174(8) of the Act.
Allegation of bias/apprehended bias (Issue 5)
25. As the majority of the argument as to bias or apprehended bias was directed to the second decision, Issue 5 will be considered first.
Actual bias
26. Actual bias is present when the mind of a decision-maker is so closed to persuasion as to be incapable of alteration, whatever evidence or arguments may be presented. It requires more than a predisposition or inclination for or against an argument or conclusion: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 (Jia) at [72].
27. In most cases, an inquiry as to the state of mind of the decision-maker is necessary, by reference to what the decision-maker has said or done: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [33]. It is important to acknowledge that, as submitted by the Director-General, an unbiased or unprejudiced mind is not necessarily a mind which has not given thought to the matter, or one which, having thought about it, has not formed any views or inclination about it: The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546, 554.
28. Further, at the trial level, modern judges are not expected to remain, “until the moment of pronouncement of judgment, as inscrutable as the Sphinx”: Johnson v Johnson [2000] HCA 48; 201 CLR 488 (Johnson) at [13]. Judges (or decision-makers in the present case) who express tentative views which reflect a certain state of mind are not on that account alone to be taken to indicate prejudgment. On the contrary, they will often form tentative opinions on matters in issue, and litigants or applicants are usually assisted by hearingthose opinions, and being given an opportunity to deal with them: Johnson at [13].
29. Although Johnson was directed to decisions made by judges, I consider that the same principles apply here, having regard to the requirements of the Act that the presiding members be judicially qualified, the serious nature of the decision to be made being one directly affecting personal liberty, and the partly inquisitorial function of the Board (including that the proceedings are not adversarial).
Apprehended bias
30. The principles applicable to an apprehension of bias have been enunciated and confirmed by the High Court in a series of decisions, including Livesey v New South Wales Bar Association (1983) 151 CLR 288; Johnson; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner) at [6], [33]; Smits v Roach [2006] HCA 36; 227 CLR 423; Concrete v Parramatta; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 (BATA v Laurie) and Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427 (Michael Wilson) at [31].
31. The relevant principles were again recently confirmed in Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 (Isbester) at [20]. The largely factual test to be applied in determining whether a decision-maker is disqualified by reason of the appearance of bias in the form of prejudgment is:
Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
32. The application of that principle may not be the same for a decision-maker who is not a judicial officer. How the principle is applied generally depends upon the nature of the decision and its statutory context, what is involved in making the decision, and the identity of the decision-maker: Isbester at [23]. This is because the principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised: see Isbester at [23] and the authorities there-cited.
33. The hypothetical fair-minded observer assessing possible bias is assumed to be aware of the nature of the decision and the context in which it was made, as well as to have knowledge of the circumstances leading to the decision: Isbester at [23]. Elsewhere, this has been described as the hypothetical fair-minded lay observer, around whom the test revolves, being attributed with “appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias”: ALA15 v Minister for immigration and Border Protection [2016] FCAFC 30 at [36].
34. The test is an objective one: Grassby v The Queen (1989) 168 CLR 1, 20. It requires at least the application of two steps (Ebner at [8]; Michael Wilson at [63] and in Isbester at [20]-[21]):
(a)There must be an identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and
(b)There must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits.
35. Consistent with this reasoning, Gageler J, in Isbester at [59], described the determination of an allegation of apprehended bias as involving “three analytical steps”:
Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.
36. In Ebner, the majority emphasised at [8] that a bare assertion that a judge has an interest in litigation will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
37. The question is one of possibility (real and not remote), not probability: Ebner at [7]; McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 (McGovern) at [14] per Spigelman CJ (with whom Campbell JA agreed) and Basten JA at [110]. Speaking of the logical connection involved in the second step, in Duncan v Ipp [2013] NSWCA 189; 304 ALR 359, Bathurst CJ held at [147] (Barrett and Ward JJA agreeing) that:
…the application of the second limb of the Ebner test does not require an inevitable conclusion to be drawn from the facts that a fair-minded observer would consider there was a possibility that the decision-maker had pre-judged the issue. The test to be applied is framed at all stages at the level of possibility. What is required is that a fair-minded observer might perceive a logical connection between the matters raised and the possibility of the decision-maker not bringing an impartial mind to the issue.
38. Here, the challenge is based upon a combination of statements made by the members of the Board as decision-maker during the course of proceedings and upon comments made during their deliberations. The nature of the challenge in this case is not based on a particular perceived interest of any member of the Board, but is instead directed to its conduct during a hearing. In such circumstances, I would respectfully agree with the observation of Basten JA in Spencer v Bamber [2012] NSWCA 274 at [15] that the two separate steps required might not always apply readily.
Transcript of hearing on 10 October 2017
39. The plaintiff alleges that either actual bias or a reasonable apprehension of bias in respect of the second decision is revealed from a number of passages in the transcript of the second hearing on 10 October 2017, including the recorded deliberations of the Board during the adjournment.
40. The transcript records that the Board on that occasion was comprised of Mr Don Malcolmson as the Presiding member, Mr Phillip Moss and Ms Janine Bromwich as members. Mr Alex Burr appeared as the community corrections officer dealing with the application.
41. The first extract relevant to considering this issue is to give context to some comments made by members of the Board at a later stage. As part of his submissions to the Board, the plaintiff stated:
I believe it important to apply for parole because I wanted to have, to be honest, the support of community corrections, in the community. As I even stated to my facilitators, it would be nice to have the option of someone who I can pick up the phone and call them, if I have any dilemmas or questions, or anything to move forward in my life, especially since otherwise in six [months’] time, I won’t have that support and I would like to have that option preferably. I don’t – I’ve been three years in prison, or just over and I think integrating back in the community, I’ve got to be reasonably slow about doing so, not too fast and I felt that the support of my family home, with my mother and supporting her also, as she’s older too, would be helpful. She is 75 now, I believe she’s actually saying she was quite sick yesterday but she still has turned up today to assist in any questions relating to the address. But, you know, in – just for my rehabilitation, moving forward and for supervision which I hope community corrections would hope to provide for me ---
42. There was then discussion as to the expiry date of the order.
Ms Bromwich: As I understood it, the expiry date of your order was the 21 June 2019.
[The plaintiff]: No, it’s the 22 April 2018.
Ms Bromwich: Is that correct?
Mr Burr: I believe so, yeah.
Mr Malcolmson: So the previous report is incorrect, is it?
[The plaintiff]: This was mentioned at the last hearing, in fact I believe ---
Ms Bromwich: Yeah.
[The plaintiff]: I am not sure if you recall, Mr Moss, you were there.
Mr Burr: Yeah, I’m sorry that’s a typo on this report.
43. During the hearing, an issue raised with the plaintiff was that the address he proposed to reside at if granted parole was previously assessed as unsuitable due to its proximity to a school and a scout hall. The plaintiff sought to lead evidence, or information, from his mother:
[The plaintiff]: May I request then that my mother attend from outside, to answer any questions relating to proximity, environment and whether or not such things are borne [out] by …her as the occupant.
44. In response to this, Mr Moss said:
Mr Moss: Deputy chair, can I make a comment here?
…
Mr Moss: Look from my point of view, I’ve listened very carefully this morning and previously of course. I don’t think it’s a question of you convincing us that your mother’s residence is suitable. We’re having a professional assessment in Mr Burr, who’s been there on a school day and whose working life is – involves making these sorts of judgments and I’m sure the sort of person who’s very careful and considers very carefully all the options. So I don’t think that really, I’m inclined, as one member of this board, to go against his advice. So I can’t see the point… I must tell you – sorry… in asking your mother to come in and give her support to your claim. I think what’s got to be considered by you, to convince us, is that you have an alternative and satisfactory place to go, if you are to be released on parole. I think that’s the long and short of it, for me.
…
Mr Malcolmson: … We’ll adjourn for a few minutes to consider.
45. The transcript then records the following:
DISCUSSION DURING ADJOURNMENT COMMENCED
…
Mr Moss: I hope I didn’t go too far, Don, but I wasn’t – … hearing any more from him because we were going in a very circular fashion.
Mr Malcolmson: I was just – I’m actually, just if there is to be any review, that we didn’t accord him procedural fairness by hearing from his mother who would have been a witness in his case, but I’d be pretty confident that I think that all she’s going to say is that this place is totally suitable and that she will do all things necessary to supervise her to son. …
Ms Bromwich: I mean further than that I have concerns, attitudinal concerns. He basically has only recommitted to ASOP in anticipation of his parole release in May. He continues to be combative. I didn’t see any particularly fabulous attitudinal expressions from him today. I mean the difference between Mr [redacted] and [the plaintiff] was quite dramatic and to even verbal the facilitators of the ASOP program, who I’m quite sure wouldn’t have made any comment as to the suitability of his mother’s accommodation being near a school, and that that really shouldn’t have been a factor into his risk, yes.
Mr Moss:Don, it might be an idea to hear from his mother just to cover that off …and to let her hear our concerns that it’s about the accommodation location, and that’s not going to change from our point of view.
…
It will also cover your procedural fairness question, I think, as well. What I was getting at was that he was putting as a point of view, which was contrary to a professional point of view ---
Ms Bromwich: Absolutely.
Mr Moss: --- and I wasn’t going to hear it.
…
Mr Malcolmson: I was just more concerned with the procedural fairness in here.
Ms Bromwich: Don is playing Peter and Judy today.
Mr Moss: I also think, Don, we’re very happy to give his mother a courtesy too.
…
Mr Moss: She’s got out of her sick bed, as I understand it… and she’s here.
Mr Malcolmson: So I think, yes, to hear it but I agree, I don’t think there’s going to be much that she says that’s going to change my mind.
…Just to give her the courtesy.
Mr Moss: ---give her the courtesy and say what she wants to say.
46. The reference to “Peter and Judy” appears to have been a reference to other members of the Board and the reference to the ASOP is to the Adult Sex Offender Programme, a course offered by ACT Corrective Services. Later during the adjournment, the transcript records an exchange between the members of the Board and a person identified as Ms Garrington, who it should be appreciated, was not a member of the Board.
Mr Malcolmson: So when does the good behaviour bond expire?
Ms Garrington: It expires ---
Ms Bromwich: That’s that date in June 19.
Mr Malcolmson: That’s where that error comes in.
Ms Bromwich: So it came in in June ---
Mr Moss: The 19th; is that right?
Ms Bromwich: --- this year.
Mr Malcolmson: Yes.
Mr Moss: This year?
Ms Bromwich: So it’s sort of ---
Mr Malcolmson: It’s 21 June.
…
Mr Malcolmson: I think we might clear that up.
Ms Garrington: I don’t know that there is supervision.
Ms Bromwich: You see even that’s deceitful. He knows he’s got a GBO hanging over his head.
Ms Garrington: I don’t know that there is supervision on that GBO though. That’s what I’m trying to check now.
Ms Bromwich: Oh well.
Mr Malcomson: But there’s an order ---
Ms Bromwich: There has been a breach.
Ms Garrington: There is an order, yes.
Mr Malcolmson: ---which he hasn’t mentioned. He was saying he gets out.
Ms Bromwich: That’s it. “I’ll be free to do what I like.”
Mr Malcolmson: Yes.
Ms Garrington: Well, he’s still got to behave himself in doing what he likes.
Mr Malcolmson: Okay. Well, that’s – we’ll have him back in and ---
Ms Garrington: So do you want him back?
Mr Malcolmson: Yes.
Ms Garrington: And his mother?
Mr Malcolmson: And mum, yes.
Ms Garrington: And then are you going to adjourn again?
Mr Malcolmson: No.
…
Ms Garrington: So do you want me to give them the heads-up that it’s most likely going to be a refusal?
Mr Moss: Yes.
Mr Malcolmson: Yes.
Mr Moss: So what’s the outcome then? He’s got to do that course?
Mr Malcolmson: Yes.
Mr Moss: And he’s got to find alternative accommodation?
Ms Bromwich: To complete the program.
…
Ms Garrington: The officers thought it was going to be a no.
Ms Bromwich: That must have been Don’s grumpy face. I mean Phil’s grumpy face. No, he’s one of those very borderline that the risk assessment of him, I think, is not reflective of the actual risk. You know, I mean ---
Ms Garrington: Yes, it’s a good behaviour order.
Ms Bromwich: Yes. I couldn’t believe that they didn’t go through with the act of indecency charge given the nature of the production.
Ms Garrington: It is a good behaviour order for a period of two years to start on 22 June 17 and end on 21 June 19, and a security of $500. It does not have supervision.
Ms Bromwich: No, no supervision. He will have to find $500 in addition to the $27,000 in debt that he owes.
Ms Garrington: A small detail.
…
Mr Malcolmson: Because he had an IT business that went bust.
Ms Bromwich: Bankruptcy, yes. He’s a back of the head, back of the neck hair boy.
Mr Malcolmson: There’s some adverse comments about that too, that he’s being unduly optimistic about being able to get himself up and running in his business again…
…
Ms Bromwich: But just that whole attitude about what the relapse prevention is, “Oh, it’s merely a – merely …a good life.”
…
Ms Garrington: And, yes, he does have a grain of truth and hopefully he has started to think about that.
Ms Bromwich: Yes.
Ms Garrington: But starting to think about it and actually having it on paper and talked through are two incredibly different things.
47. The discussion then turned to Ms Garrington being a nationally registered rowing official and coaching a rowing team, and the Board resumed the hearing shortly afterwards. It did hear from the plaintiff’s mother and Mr Burr was given a further opportunity to conclude. There was no further adjournment “as we agreed” and Mr Malcolmson then gave brief reasons dismissing the application on the basis that the accommodation proposed by the plaintiff was unsuitable and a further statement that rather than making a further application with an alternative accommodation proposal, the plaintiff’s time would be better spent completing the ASOP course.
Findings on bias
48. This is perhaps an unusual case, where the thought processes of the decision-maker are both communicated to the plaintiff and further revealed through the recording of the deliberations during the adjournment, when the plaintiff was not in the hearing room, and where such recording was before the Court in addition to the transcript of it, so that the tone and manner of expression of those speaking could also be heard.
49. It is clear from the above extract of transcript that Mr Moss was not going to hear any evidence that the plaintiff sought to bring forward which was contrary or even relevant to what he considered to be the view of “a professional”. It is clear because that is what he expressly said.
50. This is not a case of a preliminary view formed subject to hearing of the evidence, or even of a predisposition expressed during the hearing. Certainly, it was a view formed after receiving some evidence, but it was a view formed before the evidence had been completed, and it was a concluded view that caused Mr Moss to say there was “no point” in hearing anything further. Mr Moss indicated to the plaintiff both during the hearing, and reinforced in the private session that followed when the hearing was adjourned, that he had formed a concluded view on the issue which was to accept the opinion of the corrections officer, before hearing the plaintiff’s evidence that was relevant to it by someone who had lived at the premises.
51. Indeed, Mr Moss appears to have registered some consciousness of the issue concerning bias or at the very least apprehended bias (discussed below), as the first thing he said when the Board adjourned to consider the matter was, “I hope I didn’t go too far”.
52. The view was expressed by only one member of a Board that collectively shared the decision-making responsibility. However, the transcript further demonstrates that in this case, it was a view that was shared and it was the view that operated on the conduct of the Board. Ms Bromwich said “absolutely” during the adjournment when Mr Moss was confirming that he was not going to hear any further evidence, and Mr Malcolmson later indicated that there was not much the mother could say that was going to change his mind.
53. Even if Mr Malcolmson’s comment could be classed, beneficially to the decision-maker, as a predisposition rather than a firmly concluded view, that is insufficient to find that collectively, the comment of the presiding member turned the thinking of Mr Moss or Ms Bromwich to a state of affairs that could be said to be open to persuasion.
54. That is evidenced by the fact that the Board then decided to hear from the mother only “as a courtesy” and as a means of appearing to afford the plaintiff procedural fairness, rather than as a matter of actively listening to relevant evidence for the plaintiff.
55. Bias is not to be judged by firm conclusions set out in a judgment after a hearing. However, the hearing had not reached that point. That the view of the Board was concluded before the conclusion of the hearing is reinforced by the Board’s express decision during the adjournment that they would not adjourn further once they had extended such “courtesy” to the plaintiff’s sick mother.
56. The plaintiff’s mother may have said that she was moving in a week, or that having learned that her home was not considered suitable, she had arranged to reside with her son at a neighbour’s house that was a bit further away from the school. Alternatively, she may have drawn the Board’s attention to clause 7.9 of the Home Visit Assessment Policy (discussed in relation to Issue 2 below) and argued that there were means to manage the plaintiff and mitigate the risk. She may have communicated the possibility of curfew restrictions around certain points of the day, which required the plaintiff to be either well away from the area or to stay within doors, which was a precautionary measure required by the Australian Federal Police, who had approved a residence geographically located close to a school as suitable for the plaintiff to reside in for 11 months when he was on bail; a matter raised during the first hearing.
57. However, the concluded view expressed by members of the Board was that there was “no point” in hearing further evidence from the plaintiff’s mother.
58. I therefore find as a fact that the conduct of the Board falls within the test articulated in Jia, of a collective mind “so closed to persuasion as to be incapable of alteration, whatever evidence or arguments may be presented”.
Findings on apprehended bias
59. Even if the second decision was not vitiated by bias, I am satisfied that a reasonable lay-observer, listening to the totality of the comments made by the Board during the second hearing, might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide.
Identification of the factors giving rise to the question
60. The passages of transcript relevant to this aspect of the argument have been identified above as the circumstances that might indicate the decision-maker might decide the case otherwise than on a neutral evaluation of merit. The specific comments made by Ms Bromwich, and relied upon by the plaintiff to found the allegation, include:
(a)“I have concerns, attitudinal concerns” and, “He continues to be combative. I didn’t see any particularly fabulous attitudinal expressions from him today.”
(b)A comparison between the plaintiff and what was said by a previous applicant for parole, with the “difference” being “quite dramatic”.
(c)A description of the plaintiff as “deceitful” for responding to a question about “the expiry date of his order” being 22 April 2018, not 21 June 2019.
(d)“He’s one of those very borderline that the risk assessment of him, I think, is not reflective of the actual risk. You know, I mean --- … Yes. I couldn’t believe that they didn’t go through with the act of indecency charge given the nature of the production.”
(e)A description of the plaintiff as: “He’s a back of the head, back of the neck hair boy.”
61. There is also the circumstance of Mr Moss refusing to consider any further evidence because his mind was made up on the question of suitable accommodation. I will return to that factor separately below.
The hypothetical lay-observer approaching the present case
62. The nature of the decision and the context in which it was made must be taken into account. Although the Board as decision-maker is not a judge or a court, it is plainly meant to be independent and the chair or deputy chair must be someone who is judicially qualified, being a person that has been a legal practitioner for not less than five years: s 174(2) and 174(8) of the Act.
63. The position may be contrasted from cases involving elected officials on a council (such as McGovern or Isbester) or politicians (such as Jia), where there was a political quality to the decisions to be made. Having regard to the requirements of the Act that the presiding members be judicially qualified and the serious nature of the decision to be made being one directly affecting personal liberty, the standard to be expected of the Board is similar to that expected of judicial officers, qualified by what follows next.
64. Section 126 of the Act is relevant to the context in which the decision is being made. In particular, s 126(2)(b) provides that if the Board considers that the documents before it do not justify paroling the offender, it must hold a hearing, and s 127(2) requires the Board to notify the offender that the documents before it do not justify paroling the offender and to inform the offender of the details of a hearing.
65. Thus, a person who is attending a hearing already knows that the Board has taken a view that the documents provided do not justify parole. That context is important, in that the hypothetical lay-observer would also be taken to know the circumstances leading up to the decision, and thus not expect the Board to commence from a position of no predisposition to the question of parole at all. On the contrary, the statute expressly envisages that the Board may have formed a preliminary view against the grant of parole based on the documents.
66. The hypothetical lay observer would also be aware of the nature of the offences for which the applicant had been convicted, which were serious offences concerning use, possession and production of child pornography.
The potential connection the hypothetical lay-observer might make
67. Faced with the above comments of the Board, and knowing the circumstances in which the decision was being made, what logical connection might the lay-observer make? Might the connection be one that the application was not being decided through a neutral evaluation of merit?
68. Not every ill-judged comment will give rise to a claim of bias or apprehended bias. Momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225, 230 per Kirby J, who went on to state in the same paragraph:
…If a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifyingbias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.
69. I am also mindful that an administrative decision-maker, discharging an inquisitorial role, should be free to question and even vigorously test an account of facts being advanced by an applicant for parole, and that further harsh tones may not necessarily give rise to an apprehension of bias: see, by analogous reasoning, SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 per Flick J at [32]-[34] and the cases there-cited, in the context of the Administrative Appeals Tribunal.
70. However, there is a point (admittedly, it is no bright line) at which insensitive or mocking comments, or exasperation with an applicant might give rise to a concern in the lay-observer about whether a personal view might be influencing the process. The task is to ascertain the side on which the conduct during the second hearing falls.
71. Dealing with the comments made by Ms Bromwich in turn, the first expression of an attitudinal concern is unremarkable by itself. The Board is assessing the risk of the person to the community and a person’s attitude to satisfying the Board that it is in the public interest that parole be granted is relevant to that question. However, that view appears to have been reached in part by a comparison with what a different applicant said to the Board, which Ms Bromwich viewed to be in “dramatic” contrast. The evidence given by a different applicant is not a matter that formed part of the factual and legal merit of the application it was considering. Having said that, were it not for the other comments that followed, it may have been open to the Court to find that this was at best a consideration of an irrelevant matter, rather than any indication of possible partiality or prejudice against the plaintiff.
72. The view expressed that the plaintiff was “deceitful” is more troublesome. It was, at the very least, unfair to the plaintiff. As set out in the extracted transcript above, the point the plaintiff was making was that in six months he would be in the community without supervision and that he would prefer a staged re-integration into the community, where he could call someone if he was struggling. That lack of supervision was precisely what Ms Garrington confirmed during the adjournment.
73. The plaintiff at no stage pretended that he would not be subject to a good behaviour order after April 2018. He was only asked to clarify what he meant when he was talking about what would happen in six months’ time, and the date he gave was confirmed by Mr Burr, who must have also understood the issue being asked by the Board was when the custodial aspect of the sentence expired. The plaintiff was simply saying that from 22 April 2018, he would be in the community, without the benefit of supervision that an earlier grant of parole would provide.
74. As the extracted transcript above indicates, the plaintiff attempted to draw attention to what he said in the first hearing (the transcript for which reveals that the plaintiff expressly raised the existence of the good behaviour order), but it appears that Ms Bromwich interjected with “yeah” and then Mr Burr, the corrections officer interjected, confirming the typographical error, and the plaintiff did not speak about the issue further.
75. Again, taken in isolation, I may have found that there was no real chance of such an unfounded comment creating any apprehension in the hypothetical lay-observer. However, in light of the comments that then follow, when one looks at what is being said as a whole, initial comments such as these are seen in a different light.
76. The next comments, relied upon by the plaintiff, are to my mind critical to the overall impression given to the lay-observer. Ms Bromwich thought the plaintiff was “one of those very borderline” cases where the risk assessment of him “is not reflective of the actual risk,” and she “could not believe” the act of indecency charge was not ultimately prosecuted. These statements should be considered together because they followed each other and were evidently part of the one thought process, separated only by Ms Garrington’s statement confirming the existence of a good behaviour order after the plaintiff’s release.
77. The plaintiff submitted that Ms Bromwich used to be an officer of ACT Corrective Services and that her prior knowledge of him had influenced her view as to whether he should be granted parole. The Director-General submitted that was not necessarily the case, as a bench sheet which recorded that a charge of indecency was laid had been part of the papers placed before the Board.
78. Whether providing the Board considering a parole application with documents recording charges for which the plaintiff was never convicted was appropriate is not something that arises for determination here.
79. The plaintiff’s submission is a separate alleged factor, in terms of prior employment influencing Ms Bromwich’s consideration, or specifically some prior involvement or knowledge of the plaintiff. The allegation concerning Ms Bromwich’s former employment was not denied by the Director-General. I have assumed the fact without deciding it, but there was insufficient evidence to establish that prior employment as a corrective services officer would give rise to an apprehension of bias. That is, I do not accept there was a real chance of a lay-observer drawing a potential inference that a former corrections officer might deviate from the course of deciding the application on its merit simply because of his or her prior experience.
80. It is a different concern if Ms Bromwich had prior knowledge of the plaintiff and had formed a view about him through that work before hearing the application. However, there was also insufficient evidence to establish that fact.
81. In any event, it is unnecessary to make any specific findings based on a previous connection with the plaintiff or any particular ‘interest’ of a member of the Board due to prior work history, because the words speak for themselves.
82. Ms Bromwich believed that the plaintiff was a greater risk than the assessment before her had indicated. I will pass over whether that belief was formed by reference to specific prior knowledge of the plaintiff, or a more general view about sex offenders, or some other reason, as the question is not what Ms Bromwich was actually thinking, it is what inference might be drawn from the words that were spoken.
83. Ms Bromwich then said she “could not believe” that the plaintiff was not charged with a further equally serious offence. The connection that a lay-observer might make from these comments in quick succession is that Ms Bromwich might have thought the plaintiff was either a greater risk to the community because of the existence of facts founding other charges (“given the nature of the production”), or should have been given a longer custodial sentence in the first place because the further charge should have been prosecuted, with the consequence either way that parole should not be granted.
84. The plaintiff had been sentenced and had served the minimum non-parole period determined by the sentencing judge. The lay-observer might think from Ms Bromwich’s words that she was basing her decision concerning parole, whether consciously or intuitively, on a personal interest or view about that sentence – namely that the plaintiff deserved to remain in prison because of the nature of the crimes, and even because of the nature of crimes for which he had not been convicted.
85. A ‘personal interest’ in this context is not the kind of interest by which a person will receive some material or other benefit. It is used to describe a view which the person may have of the matter, which is in that sense personal to them. It is similar here to an interest in obtaining an outcome consonant with the person’s view of further guilt or punishment, discussed in Isbester at [46].
86. Added to this is the comment made a short time later that the plaintiff was a “back of the head, back of the neck hair boy”. This was submitted by the plaintiff as having connotations that he was either foolish or stupid, or had a ‘bad boy’ attitude. I took it as a reference to the plaintiff being someone that made Ms Bromwich shudder or fearful; as someone who would make the hair on the back of one’s neck stand up. Whatever her true meaning, it was not complimentary, was disrespectful of an applicant for parole who had been sentenced according to law, and was indicative of a personal view about the applicant that was possibly not formed on the merit of the application.
87. In summary, taken in totality, hearing the comments set out above, a reasonable lay-observer might infer or make the following connections:
(a)that Ms Bromwich had taken a dim view of the plaintiff, including that he had a combative attitude, that he was deceitful and that he was a “back of neck hair boy”; matters that might be perceived as partiality in terms of Ms Bromwich’s personal view of the plaintiff, rather than going to the neutral evaluation of the merit of his application for parole;
(b)that Ms Bromwich had a personal view, not based on any stated evidence before the Board, that the plaintiff posed a greater risk to the community than the low risk rating in the pre-release report (a report and risk assessment which the evidence suggests was also apparently prepared by professionals from ACT Corrective Services); and/or
(c)that in considering whether parole should be granted, Ms Bromwich had a personal view or interest, which she shared with the Board, to the effect that the plaintiff should have been the subject of prosecution for a further serious charge which in turn might lead the lay-observer to infer that Ms Bromwich felt the sentence did not reflect the conduct she believed had taken place.
88. These possible connections are logical or reasonable and, in totality, they might cause the objective hypothetical lay-observer to think that Ms Bromwich might not be bringing an impartial mind to the merit of the application.
89. This conclusion implies nothing about how Ms Bromwich in fact approached the matter, or that she was not, in fact, impartial. The issue is the possible perception of the hearing and ensuring that justice is undoubtedly seen to be done.
90. Further, as the test is for the possibility of a deviation from the merit of application, as opposed to any actual deviation, it matters not that the above comments were all made by one member of a three member Board. There is nothing to suggest that those comments were rejected out of hand or otherwise had no potential operation on the decision-making processes of the Board.
91. In any event, and as a separate factor, the circumstance of Mr Moss refusing to consider any further evidence because his mind was made up on the question of suitable accommodation is relevant to the alternative question of apprehended bias. On the two-step test set out above, the effect of the comments of Mr Moss might cause a reasonable lay-observer to infer that he would only hear the evidence of the plaintiff’s mother as a courtesy, to give the appearance of procedural fairness, rather than as evidence relevant to the location and overall suitability of the plaintiff’s proposed accommodation, and other matters relevant to an assessment of the plaintiff’s risk to the community, such as how the plaintiff’s mother might propose to support and control the environment of the plaintiff. That might cause the reasonable lay-observer to believe that Mr Moss might not have brought an open or impartial mind to hearing the totality of the plaintiff’s evidence, or in other words, the merit of the plaintiff’s case.
92. Again, I consider the possibility of the lay-observer making that connection to be logical and reasonable, based on the express words that were said during the adjournment. Although Mr Moss is not the objective hypothetical lay-observer, it is telling that he himself had the doubt in his mind, which he voiced: “I hope I didn’t go too far”.
93. For these reasons, both separately and cumulatively, the plaintiff has established a reasonable apprehension of bias in respect of the members of the Board who made the second decision.
Complaints about the First Decision (Issues 1-4)
Bias or apprehended bias (Issue 1)
94. The plaintiff submitted that the first hearing was also affected by bias or apprehended bias, through being tainted with misinformation provided to the Board by officers of the Director-General, which was accepted without context or investigation.
95. Added to this submission is whether the above findings of bias in respect of the second decision, whether actual or apprehended, have any consequences for the first decision.
96. No finding of bias or apprehended bias is warranted in respect of the first decision, for the following reasons.
97. First, the Board who made the first decision was different. It was chaired by Ms Laura Beacroft, with Mr Moss and Ms Deborah Evans as members. The comments made at a later date cannot be attributed to the thinking of the Board who made the first decision. Although Mr Moss was also a member of the Board who made the second decision, there is nothing in the transcript of the first hearing that would indicate his thinking was the same during the first hearing. The very firm opinion expressed by Mr Moss before the second decision was made was not so expressed in the first hearing.
98. Nor were the findings made with respect to bias and apprehended bias in the conduct of the second hearing ones that reflect upon the process that was undertaken during the first hearing. This is not a case, for example, of a member of the Board being found to be in a position of perceived conflict such that even sitting as part of the Board might be seen as having an impact on the lawfulness of the first decision.
99. Second, a review of the transcript on 20 June 2017 reveals that the Board hearing the matter expressly adjourned twice to consider extra material that had been presented by the plaintiff, checked whether foreshadowed witnesses had attended to give evidence in order to give them an opportunity to be heard, and drew to the plaintiff’s attention a statement that the plaintiff had prepared that the Board should be handed up to it, after the plaintiff had referred to the existence of the statement but refrained from submitting it.
Third, in relation to the conduct of the officers of the Director-General, there is no basis for linking information provided by the officers to the conduct of the Board so as to give rise to apprehended bias in respect of the Board as decision-maker. The argument about the information provided to the Board by officers of the Director-General is better characterised as an alleged misconstruction of the facts and dealt with as part of Issue 2.
Accordingly, the complaints of bias or apprehended bias in respect of the first decision have not been made out.
The complaint of misinformation/factual error (Issue 2)
When the Court’s supervisory jurisdiction is invoked, as it is here, the Court does not look to the factual merit of the issue underlying the decision being reviewed. All the Court has power to determine is whether the decision-maker acted lawfully, and if he or she did not, to exercise discretion to grant relief. Judicial review is concerned, not with the decision, but with the decision-making process: Chief Constable of the North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155 at 1173.
As such, a mere error of fact would not ordinarily ground judicial review. However, where the factual error is so critical or material to the discretionary decision to be made by the Board, it may result in the exercise of the discretion miscarrying. There is no rigid taxonomy for when a factual error might be such as to result in jurisdictional error: Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [73]. Jurisdictional error is an expression not simply of the existence of an error, but of the gravity of that error: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 at [24] per Kiefel CJ, Gageler and Keane JJ.
Here, the error alleged in respect of the first decision concerns the assessment of the plaintiff’s risk of sexual reoffending, which was included in a pre-release report that was a mandatory consideration for the Board.
The first pre-release report dated 24 May 2017 relating to the plaintiff assessed the risk of sexual reoffending as low and the general reoffending risk as medium. However, an addendum pre-release report dated 15 June 2017 described the risk of sexual reoffending as moderate-high risk.
It was accepted by the Director-General that the risk assessment of the plaintiff in the addendum pre-release report dated 15 June 2017, considered by the Board at the first hearing, was unfortunately incorrect. It was based on a risk assessment of an entirely different person, conducted on 5 May 2017, and had mistakenly been incorporated as part of the report concerning the plaintiff, because of a data entry error.
It was that same addendum report that first assessed the home of the plaintiff’s mother (and indeed, the plaintiff’s former childhood home) as unsuitable, due to its proximity to a primary school and a scout hall.
This error was critical. In Galli at [7], when speaking of the equivalent legislation in NSW, Adams J said this (emphasis added):
The question to be considered by the Parole Authority is not ultimately whether an offender has undertaken such a programme, assuming that he or she was convicted of a sexual offence. The question is whether in all the circumstances an offender should be released to parole having regard to the criteria specified in the Act, crucially whether there is or is not a real risk of re-offending. In considering this question a number of matters are relevant. …
The plaintiff also drew the Court’s attention to the Home Visit Assessment Policy, clause 7.9 of which is as follows (emphasis added):
In undertaking a Home Visit Assessment where child or young person related offending is involved it is important to consider not just the address but the location. It may be that there are child related facilities nearby, or the address is where children gather. These circumstances must be reviewed against the modus operandi of the offender, the risk level, and consideration given to the Agency’s capacity to effectively case manage the offender and mitigate the risk.
It will be seen from the emphasised words of the policy that whether the location of the proposed accommodation is suitable must take into account the risk level of the offender, as well as the modus operandi of the offender.
In my view, there is a world of difference between an applicant who comes before the Board with a classification of a low risk of sexual reoffending, and one who comes before the Board assessed as a moderate to high risk of sexual reoffending. The risk level changes the complexity of how the Board considers what is in the public interest, including such matters as whether it was in the public interest that the plaintiff commence re-integration into the community at all, whether the plaintiff should complete a course while incarcerated or as a condition of parole while in the community, where the plaintiff should be permitted to live, and whether any risk mitigation measures might be appropriate.
A further example of the potential ramifications of the factual error is the plaintiff’s complaint that when considering the location of his proposed accommodation, no consideration was given to the unrelated nature of the modus operandi of the offender when the offences were originally committed, as required by the relevant policy. That may have been because the medium to high risk assessment of sexual reoffending was an overwhelming fact that was sufficient, of itself, to prohibit any accommodation proposed by the plaintiff that was in close proximity to a school.
Had the assessment correctly recorded that the plaintiff was of low risk of sexual reoffending, the suitability of the premises may have been seen in a different light. Conditions to guard against the risk may have been considered, and other matters such as the completion of the ASOP course, upon which the Board placed great weight, might have been viewed as appropriately continued and completed while the plaintiff was in the community, which the community corrections officer had indicated during the first hearing was a possibility.
On the other hand, it may be that the decision would have been the same. However, as noted above, the review of this Court is directed to the process that was followed and not the underlying merit. It is because the factual error was so critical to the factual matrix that built up around the various considerations for this plaintiff that I am unable to view the error in the report as a mere factual error. I accept the error was of a nature that caused the entire process, in relation to the first decision, to miscarry.
Denial of procedural fairness and wrong statutory test (Issues 3 and 4)
As jurisdictional error has been established in respect of the first decision, it is not necessary to consider whether there was also a denial of procedural fairness or whether the Board applied the incorrect statutory test in requiring the plaintiff to complete the ASOP course while serving the custodial part of his sentence.
Complaints about the third decision (Issue 6)
The plaintiff’s position was that the errors in the first and second decisions affected the third decision, so that if error was established in respect of those decisions, the third decision must also be invalid.
The Director-General submitted that the references made by the Board who made the third decision to previous decisions or assessments were minimal; that the Board did not rely substantially on the previous assessments, but rather the new pre-release report prepared for the third hearing, dated 21 February 201; and that when the error identified in relation to the plaintiff’s risk had been corrected, the assessment of the plaintiff’s proposed accommodation as unsuitable remained the same.
None of the members comprising the Board who made the second decision were part of the Board who made the third decision, and the only member of the Board common to the first and third decisions was the chair, Ms Beacroft. The same reasoning as that given in relation to Issue 1 applies here, in that, while there may be cases where a previous finding of bias or apprehended bias may be found to taint a subsequent decision, on the facts of this case, such findings are properly confined to the second decision.
As to whether the first decision had any operative effect on the reasoning of the Board when making the third decision, the third pre-release report dated, 21 February 2018, in part relied on the previous decisions of the Board, stating:
This [address] remains unsuitable.
It is noted when [the plaintiff’s] application for parole was refused on 10 October 2017, the [Board] stated any further parole applications should propose an appropriate address.
The recommendation in the third pre-release report was:
In light of the above, release to parole is not recommended at this time. Release to parole may be recommended if [the plaintiff] proposes alternative accommodation which is assessed as suitable.
When the plaintiff’s third application came before the Board for hearing, the corrections officer also relied in part upon the earlier reports when submitting that the proposed location remained unsuitable because of proximity, making a passing reference to “an earlier report to the board” where some Google images were provided as a means of providing details about the proximity of the proposed accommodation to the school and the scout hall.
However, the community corrections officer appearing at the third hearing also stated:
…our primary concern is the risk to the community and we are representing what the community’s view would be, our stance as a service is that in certain types of offending, you know, given the nature of the offences, we would still deem it to be unsuitable.
This suggests that other reasons were now being put forward, which supported the earlier views expressed in the pre-release reports, but perhaps did not rely upon them. The relevant extract from the third decision of the Board, delivered orally, is as follows:
We also agree with the assessment in this case that the house is too close to venues where there are children and that children could be, depending on the venue, there any day of the week, not closely supervised by an adult or, indeed, not supervised by an adult at all if they are on their way to that venue or leaving and we take the view that the community would not regard it as suitable for you to be residing so close to those venues. So, they are the reasons why today we do not accept your argument that the accommodation is suitable.
Earlier in the decision, the Board had given two other reasons why it was not satisfied the proposed accommodation was appropriate. The first was that there was not sufficient evidence surrounding the arrangements for the power of attorney in respect of the plaintiff’s mother, who was very ill. The power of attorney was held by the plaintiff’s brother and the Board was concerned about the capacity of the plaintiff’s mother to provide the support to the plaintiff it considered necessary. Further, the Board held a view that the plaintiff should live with a co-resident, who was prosocial, saying “we take on board that when you committed the crime you are under sentence for it was in the privacy of a private dwelling”.
The reasons given by the Board for rejecting the third application are not matters raised by any of the pre-release reports. Although the outcome of the third decision was the same as the outcomes of the first and second decisions, the process that was followed and the reasons for that outcome may properly be seen as independent of any mistakes or legal errors that had affected the first and second decisions.
For completeness, had any error been established with regard to Issues 3 and 4 that were raised by the plaintiff in respect of the first decision (being a denial of procedural fairness or an error in the application of the statutory test), such errors could also only have been specific to the validity of the first decision.
I therefore accept the Director-General’s submission that the legal errors in the process of the first and second decisions did not have any material effect on the third decision of the Board and that the third decision remains valid.
Relief: utility
The grant of declaratory relief is discretionary. Although it is neither possible nor desirable to fetter the discretion to grant declaratory relief by laying down rules as to the manner of its exercise, the discretion is to be exercised judicially: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581-582.
In a clear case of want or excess of jurisdiction a prerogative writ will issue “almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course”: R v Ross-Jones; Ex parte Green (1984) 156 CLR 185,194 per Gibbs CJ; followed in Solution 6 Holdings Ltd and Others v Industrial Relations Commission of New South Wales and Others [2004] NSWCA 200; (2004) 60 NSWLR 558, which was in turn followed in Chase Oyster Bar Pty Ltd v Hamo Industries Ltd [2010] NSWCA 190; 78 NSWLR 393 at [267]-[284].
Relief is granted or withheld “according to principle rather than an unstructured judicial discretion”: BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors (No 2) [2013] QSC 67 (BM Alliance); BM Alliance was cited by Stevenson J in Anderson Street Banksmeadow Pty Ltd v Helcon Contracting Australia Pty Ltd [2013] NSWSC 657. Whether it will be appropriate to grant such relief depends upon the requirements of justice in the particular case: John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 470.
The Director-General submits that in the event that legal error was established in respect of any of the three decisions, there is no utility in making a declaration of invalidity, because the plaintiff is no longer incarcerated. The plaintiff submitted that as he is still on a bond to be of good behaviour, there may be utility in the event that he finds himself again interacting with the legal system for an alleged breach of the extant part of his sentence (a situation he eschewed but wanted to guard against nonetheless).
He further submitted that it was important as a wider issue in the public interest for the Court to grant declaratory relief. The plaintiff spoke of a lot of anxiety felt by prisoners applying for parole, and that he felt there was not a lot of understanding about the process and that defeat, when seen as being on spurious grounds, had quite an impact on the mental health of an applicant. I took that submission to be that it was important for the Court to mark its disapproval, with a view to avoiding errors of the kind made in relation to him from happening again in relation to others.
A declaration may be made as to the existence of an obligation to comply with statutory requirements: Simmonds v Newport Abercarn Black Vein Steam Coal Co Ltd [1921] 1 KB 616; Dyson v A-G [1911] KB 410; Nicholls v Tavistock Urban District Council [1923] 2 Ch 18; Grant v Knaresborough Urban District Council [1928] Ch 310. It follows that the public interest in determining and declaring a contravention of statutory provisions is also an appropriate basis for declaratory relief: Re Idylic Solutions Pty Ltd; Australian Securities and Investments Commission v Hobbs [2013] NSWSC 106; 93 ACSR 421 (Idylic Solutions) at [33].
The making of the declaration serves important law enforcement purposes; Australian Securities and Investments Commission v McDougall [2006] FCA 427; 229 ALR 158 at [55]; Australian Softwood Forest Pty Ltd v Attorney-General (NSW) (1981) 148 CLR 121, 125. This includes not only those acting in deliberate contravention of statute, but those who act in good faith but fail to fulfil their jurisdictional task. If there are no consequences for unlawful decision-making, then the confidence in the Court’s supervisory jurisdiction under s 34B of the Supreme Court Act 1933 (ACT) may be undermined, as the Court’s intervention to check unlawful decision-making is often the only relief available to affected persons, who can rarely (if ever) obtain compensation on judicial review.
The fact that the subject matter of the declaration is of public interest is also an important consideration in favour of the grant of declaratory relief, even though the order may be of only slight utility: Corporate Affairs Commission v Transphere Pty Ltd (1988) 15 NSWLR 596; (1989) 7 ACLC 205 per Young J at 213.
In the present case, I consider that there is both utility in the granting of declaratory relief in relation to the first and second decisions and that it is important that such declarations be made for the reasons given in the foregoing principles.
An application for a grant of parole is a matter of great importance to each applicant who makes it. The frequency with which such applications are made may cause those called upon to deal with the applications, and who are highly familiar with the process, to forget the seriousness of the question ultimately at stake for each person, which is whether it is in the public interest for the offender to be released back into the community on conditions and with supervision.
Section 19 of the Human Rights Act 2004 (ACT) recognises the vulnerability of offenders who are incarcerated, and requires that anyone deprived of liberty is to be treated with respect for the inherent dignity of the human person. That extends to the process of the grant of parole, through s 7(1) of the Act, which requires that the functions under the Act are to be exercised to respect and protect the offender’s human rights and ensure, among other things, the offender’s just treatment.
One way that “just treatment” is demonstrated is by ensuring that reports prepared for the Board are accurate, that they are provided in a timely manner to offenders so that they are able to respond to them and address any concerns before the application is heard, and that hearings are transparent and seen to be fair.
Conclusion
For the above reasons, it is appropriate to make the declarations sought in respect of the first and second decisions.
The disposition of costs is in the general discretion of the Court, although ordinarily that discretion will be exercised so that costs are awarded to the successful party: Gray v Richards (No 2)[2014] HCA 47; 315 ALR 1 at [2]. There does not appear to be any basis for departing from the ordinary course here.
The plaintiff has been substantially successful. The addition of the challenge to the third decision on which the plaintiff has not succeeded was made at the hearing, with short submissions filed as part of the substantive submissions of the Director-General responding to the plaintiff’s oral argument.
I consider it appropriate in the exercise of discretion to make an order in his favour for any legal costs and disbursements he may have incurred in bringing the application, although whether that order ultimately has any operative effect, given the lack of legal representation throughout and the waiver of Court filing fees, is another matter.
The orders of the Court are as follows:
(1)It is declared that the decisions of the Sentence Administration Board made in relation to the plaintiff on 20 June 2017 and 10 October 2017 are invalid.
(2)The application is otherwise dismissed.
(3)The Director-General is to pay the plaintiff’s costs.
| I certify that the preceding one hundred and forty four [144] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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