ZS v Sentence Administration Board

Case [2018] ACTSC 289


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
Human Rights Act 2004 (ACT) s 19
Supreme Court Act 1933
(ACT) s 34B
Crimes (Sentence Administration) Regulation 2006 (ACT) s 4

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
ALA15 v Minister for immigration and Border Protection
[2016] FCAFC 30
Anderson Street Banksmeadow Pty Ltd v Helcon Contracting Australia Pty Ltd [2013] NSWSC 657
Australian Securities and Investments Commission v McDougall [2006] FCA 427; 229 ALR 158
Australian Softwood Forest Pty Ltd v Attorney-General (NSW) (1981) 148 CLR 121
BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors (No 2) [2013] QSC 67
British American Tobacco Australia Services Ltd v Laurie
[2011] HCA 2; 242 CLR 283
Chase Oyster Bar Pty Ltd v Hamo Industries Ltd [2010] NSWCA 190; 78 NSWLR 393
Chief Constable of the North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd
[2006] HCA 55; 229 CLR 577
Corporate Affairs Commission v Transphere Pty Ltd (1988) 15 NSWLR 596; (1989) 7 ACLC 205
Duncan v Ipp [2013] NSWCA 189; 304 ALR 359
Dyson v A-G [1911] KB 410
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Galli v New South Wales State Parole Authority [2006] NSWSC 206
Grant v Knaresborough Urban District Council [1928] Ch 310
Grassby v The Queen (1989) 168 CLR 1
Gray v Richards (No 2)[2014] HCA 47; 315 ALR 1
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1
Isbester v Knox City Council [2015] HCA 20; 255 CLR 135
John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Johnson v Johnson [2000] HCA 48; 201 CLR 488
Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531
Livesey v New South Wales Bar Association (1983) 151 CLR 288
McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507
Nicholls v Tavistock Urban District Council [1923] 2 Ch 18
R v Ross-Jones; Ex parte Green  (1984) 156 CLR 185
R v Sussex Justices, Ex parte McCarthy [1924] 1 KB…

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AGLC
ZS v Sentence Administration Board [2018] ACTSC 289
Case
[2018] ACTSC 289
Decision Date

CaseChat Overview and Summary

The plaintiff, ZS, has initiated judicial review proceedings against the Sentence Administration Board, challenging the lawfulness of three decisions to refuse parole. These proceedings were filed in the Supreme Court of the Australian Capital Territory, initially on 16 November 2017, and subsequently amended on 5 March 2018 and further at the hearing on 14 May 2018. The plaintiff, who had served his sentence by the time of the hearing, now seeks only declaratory relief. The Board filed a submitting appearance, acknowledging the court's jurisdiction to conduct judicial review under section 34B of the Supreme Court Act 1933 (ACT). The plaintiff's amended originating application included seven grounds of complaint, primarily centred on procedural fairness and bias in the conduct of the hearings, the actions of community corrections officers, and the Board's decisions.

The primary legal issues the court had to address were whether the plaintiff's rights to procedural fairness were violated and whether there was actual bias or a reasonable apprehension of bias on the part of the Board members. The plaintiff argued that the hearings were conducted based on misleading or incorrect information, that speculative information was relied upon, and that the Board was prepared to influence the outcome against parole. Additionally, the plaintiff alleged that community corrections officers did not act in good faith and that their pre-release reports exhibited bias. The court had to examine these allegations in light of the principles of natural justice and the requirement for impartiality in administrative decision-making.

The court examined the allegations of procedural unfairness and bias in detail. It found that while the plaintiff had a right to be heard and to be free from bias, the evidence did not support the plaintiff's claims. The court concluded that the Board members had not exhibited actual bias, and there was no reasonable apprehension of bias based on the discussions during an adjournment. The court found that the Board had acted within its jurisdiction and that the procedural fairness requirements were met. As a result, the plaintiff's challenge to the decisions of the Board was dismissed.

ORDERS:
The court dismissed the plaintiff's application for judicial review and awarded costs against the plaintiff.

Orders

Orders of the court

See [144]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for 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. 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.

Ratio Decidendi

Legal Principle Established

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