AGNEW -v- PRISONERS REVIEW BOARD [No 2] [2012] WASC 175 (29 May 2012)

3 In regard to the Department, the decision sought to be reviewed was a decision to convict Mr Agnew of a prison offence contrary to s 69(i) of the Prisons Act 1981 (WA) on or about 24 June 2009. That decision was not one made by the Department, but rather was an independent decision of the Superintendent of Wooroloo Prison Farm (the Superintendent). Accordingly, for the reasons stated in my earlier decision of Agnew v The Prisoners Review Board [2012] WASC 47 I ordered that the Department be removed as a party to the proceedings. Mr Agnew subsequently sought to join the Superintendent as a party and I granted that application.

4 The significance of these decisions is that Mr Agnew is a sentenced prisoner serving a life term. He is eligible to be considered for parole. His prospects of obtaining parole depend, amongst other things, on his conduct in prison and on him successfully completing programmes that would equip him for release into the community. The conviction for a prison offence was one of the factors relied upon by the Board when deciding to cancel Mr Agnew's participation in a resocialisation programme. The cancellation of that programme affects the prospects of Mr Agnew being granted parole.

5 The primary issue in these proceedings is whether an Order Nisi, or show cause order, should be made in respect of the decisions made by the Board and the Superintendent. Mr Agnew has also sought declarations and I will return to that aspect of the application later in these reasons.

6 Appropriately, the Board took no active part in these proceedings and filed a notice that it would abide the outcome. In those circumstances, leave to intervene was granted to the Attorney General of Western Australia on the basis that he would act as a contradictor.

7 For the reasons that follow I have concluded that none of the grounds upon which the applicant relies are arguable and, therefore, his application for an order nisi for a writ of certiorari should be dismissed. I have, however, found that there is a basis for declarations to be made in regard to the separate issue of whether the decision to cancel the resocialisation programme is open to be reviewed by the Board and whether such a review has occurred.

8 The proceedings were commenced 21 months after the decision was made by the Superintendent and 17 months after the decision was made by the Board. This raises an issue of whether an extension of time is required.

9 An application for an order nisi for a writ of certiorari to remove a judgment, order, conviction or other proceeding of an inferior court or tribunal for the purpose of its being quashed must be made within six months after the date of the impugned decision unless another period is prescribed or any delay is accounted for to the satisfaction of the court: O 56 r 11(1) Rules of the Supreme Court 1971 (WA).

10 A 'tribunal' is a body or officer performing a judicial or quasijudicial function outside the regular judicial system: Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129 [73] [77] (Anderson J), [90] [91] (Scott J); Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 [2] (Malcolm CJ), [26] [29] (Anderson J). Differing views have been expressed as to whether the time limit applies to officers or bodies that are not tribunals (or who fall into the other categories referred to in O 56). However, it has been suggested that the better view is that it does not: Re Monger; Ex parte United Construction; Re Monger; Ex parte Barminco Pty Ltd [2002] WASC 279.

11 In the present case the Attorney General submits that the Board was not acting as a tribunal in making its decision to cancel the resocialisation programme. Accordingly, it is accepted that the time limit in O 56 r 11 does not apply to that decision and no extension is required in respect of it. However, it is submitted that the time taken to commence proceedings would still be relevant to the exercise of the court's discretion to grant relief if the grounds for an order nisi were made out. I accept those submissions.

12 As to the decision of the Superintendent, this involved the determination of a prison charge and the Superintendent was clearly performing a quasijudicial function outside the regular judicial system. Accordingly, the time limit does apply to that decision and Mr Agnew requires an extension of time in respect of it.

13 In an affidavit sworn on 31 March 2011 Mr Agnew set out (at pars 51 to 54) the difficulties he faced in commencing proceedings. These difficulties included delays in obtaining relevant documents, attempts to find a solicitor and difficulties in accessing resources for the preparation of papers. These factors need to be considered along with other relevant considerations, such as whether the other parties have been prejudiced and whether there is merit in the application. Accordingly, it will be necessary to consider whether the application in respect of the decision of the Superintendent has merit in deciding whether an extension of time should be granted.

14 In regard to the Order Nisi it is necessary for the applicant to establish an arguable case: Talbot v Lane (1994) 14 WAR 120; (1994) 75 A Crim R 115, 152 153 (Malcolm CJ, Kennedy and Ipp JJ agreeing). In some cases it has been suggested that the test is whether the applicant has a reasonable prospect of success. In Woodley v The Minister for Indigenous Affairs [2009] WASC 251 Martin CJ said:

It seems to me that perhaps it would be preferable to formulate the test in terms of, firstly, the applicant satisfying the Court that there is an arguable case and, secondly, advancing the proposition that if that case had no reasonable prospect of success it would be inappropriate to grant relief even though there was an arguable case [37].

15 See also Re Graham AnsteeBrook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172; Seddon v Medical Assessment Panel [2011] WASC 237 and Re Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASC 23 [11] [18].

16 Whether the different formulations of the threshold are alternatives or are different aspects of a compound test might be significant if the court was of the view that there was an arguable case but there was an issue as to whether there was a reasonable prospect of success. In the present case, I am not satisfied that the lowest threshold; that is, that there is an arguable case, is met. If there is no arguable case there can be no question of there being a reasonable prospect of success. In these circumstances, it is unnecessary for me to enter into any debate on whether more is required.

17 There can be circumstances in which a declaration may be an appropriate alternative remedy. The declarations sought by the applicant in this case extend beyond the decisions that are the subject of the application for an Order Nisi. In particular, some of them relate to a decision made by the Board that the applicant had no right to a review of a decision to cancel his participation in the resocialisation programme.

18 During the course of the hearing, counsel for the Attorney General conceded that the Board had made an error in this regard and that a right of review did exist. In these circumstances it was submitted that it would be appropriate for the court to make declarations regarding such a review but only in the event that the court concluded that an Order Nisi should not issue. The reason for that is that any question as to the existence of a right of review would not arise if the original decision was set aside. As I have come to the conclusion that the original decision is not open to challenge by way of certiorari on the grounds advanced by the applicant, declarations in the terms proposed will be made.

19 On 2 March 2001 the applicant was found guilty of murder contrary to s 282(d)(1) of the Criminal Code (WA) (as it then stood) following a trial. On 20 March 2001 he was sentenced to life imprisonment with a minimum term of 10 years before being eligible for release on parole.

20 On 10 February 2009 approval was given for the applicant to participate in a 12month resocialisation programme. A resocialisation programme is a programme undertaken in prison prior to release on parole in order to equip a prisoner for reentry into the community. The resocialisation programme was to be undertaken at Wooroloo Prison Farm. It was to consist of three stages, each being four months in length.

21 The resocialisation programme approval document referred to a number of conditions that were to be adhered to throughout the course of the programme. They were as follows:

Demonstrate that [he] can adjust and cope with the added responsibility and freedom associated with the status of a Minimum Security prisoner

Maintain good work standards and behaviour

Maintain regular contact with Home Leave sponsors

To undergo urinalyses as directed

Comply with prison regulations in relation to Absence permit(s)

To abide with any current VictimOffender Mediation Unit (VMU) condition/agreement

22 On 3 March 2009 the applicant was transferred to Wooroloo Prison Farm from Acacia Prison in order to commence the resocialisation programme.

23 On 12 May 2009 the Prisoners Review Board wrote to the applicant in the following terms:

The Prisoners Review Board today reviewed your case and made the following decision based upon the reports and information presented to it:

(a) Board notes prison incidents at Wooroloo Prison Farm while on ReSocialisation Program;

(b) Board warns you that good prison conduct is expected if you are to continue on ReSocialisation Program;

(c) Board will review progress prior to commencing Stage 2, no later than 14 July 2009.

24 On 14 July 2009 the Prisoners Review Board again wrote to the applicant. That letter states in part:

The Prisoners Review Board today considered your case and noted a further incident at Wooroloo Prison Farm whilst on the ReSocialisation Program (possession of nonprescribed medication) despite a warning on 12 May 2009 that good prison conduct was expected.

The Board determines that Stage One of the ReSocialisation Program is to continue.

Progress review on 13 October 2009 and a ReSocialisation Program progress report is requested.

25 A progress review was prepared on 15 September 2009 and submitted to the Board. The report was generally favourable and included a recommendation that the applicant progress to the next stage of the programme due to 'improved prison behaviour, excellent work reports and meeting the requirements' of Stage 1.

26 There were, however, a number of comments in the review that could be viewed as negative. In particular, one of the activities in which the applicant was to engage at Stage 1 was to participate in an educational course. He was to continue with external studies for a Bachelor of Health and Science with the Australian College of Natural Medicine. In this respect, the review stated:

Agnew is no longer enrolled in external studies. According to education staff Agnew failed to submit any completed assignments. The Prisoner Education Coordinator stated to the writer that Agnew had not submitted any work for a very long period of time, and this was confirmed by the Australian College of Natural Medicine. Due to the above Agnew was removed from the education muster on 20/04/2009. During the interview with the writer Agnew politely disputed the above information and stated he did commence assignments, however due to the ongoing difficulties in accessing a computer and the Internet for reference material at both Acacia and Wooroloo Prisons he was never able to finish any assignments. Agnew stated he remains interested in pursuing his studies, however not whilst he is in prison as it has proved to be very difficult and he is constantly faced with obstacles. He further stated that he was more than happy with the bricklaying course (silver trowel) which he completed on the 30/06/2009.

27 Under the heading 'Activity 4: - Participate in external activities in the community' the review noted that the applicant had participated in approximately 34 external activities. A number of these were recreational in nature and the report stated that all these had occurred without incident. However, the writer did state that:

It is noted that whilst on a medical escort, Agnew did display unacceptable behaviour (15/07/2009 - incident #l1147490).

28 Under Item 2 headed 'Any changes in circumstance in resocialisation since commencement of current stage' the review noted:

Agnew has had mixed work reports. On the 20/04/2009 Agnew was taken off the education muster for his poor participation in external studies of natural medicine. He then participated in the Silver Trowel Project through his employment with Skills. The education officer reported that his attitude vastly improved whilst doing this course and he was polite and courteous. On the 20/07/2009 Agnew started in a new position as Library/Recreational worker and is receiving Level 3 gratuities. He is considered by the recreation officer as an excellent worker, who works well unsupervised.

29 Under the subheading 'Prisoner behaviour and attitude General' the review states:

Agnew currently resides in Unit 2A of the Self Care Unit. A higher standard of conduct is expected from prisoners residing in this unit. Placement in this unit requires the offender to maintain and demonstrate excellent behaviour traits. Agnew mostly complies with the philosophy and regime of Wooroloo however several incidents recorded on TOMS shows that Agnew can at times be argumentative and manipulative and at times does not comply with prison routine. It is reported though, that he is mostly polite and respectful to staff and interacts well with other prisoners. He keeps his cell neat and tidy and achieves an acceptable standard of cleanliness and personal hygiene.

30 Under the heading 'Current sentence prison charges and outcomes' the review noted that the applicant was cautioned on 24 June 2009 in respect of a prison offence under s 69(i) of the Prisons Act 1981 (WA). The summary of the offence stated:

Medication not prescribed for prisoner AGNEW ... found in his cell.

31 Under the subheading 'Prison incidents and outcomes incurred during resocialisation programme' the review stated:

Refer to incident reports.

15/7/2009 - l1147490 - Unacceptable behaviour whilst on Escort.

16/4/2009 - l1141294 - Concern re attitude.

Agnew has also recorded a few incidents on Offender Notes in relation to his behaviour. However these were mainly shortly after his arrival at Wooroloo.

32 On 13 October 2009 the Board wrote to the applicant advising him that it had decided to cancel his participation in the resocialisation programme. That letter states:

Dear Mr Agnew

The Prisoners Review Board today considered your case and based on the reports and information presented to it decided to cancel your resocialisation program (RSP).

In the context of the extremely violent nature of the offence for which you have been imprisoned and your difficulty in accepting responsibility for the commission of the offence, the Board considers the risk to the community has increased to an unacceptable level as a result of your inability or unwillingness to manage your anger and to comply with directions, as evidenced by the following incidents involving violent outbursts and aggressive and noncompliant behaviour which have occurred during the course of the RSP and which have continued despite the receipt of a warning letter from the Board:

(1) Incident on 17 April 2009 when, on being interviewed by the Employment Coordinator, you presented as slightly aggressive in tone and manner stating that you had been sacked from education and appeared to be attempting to manipulate the author into taking sides. You became louder as the interview went on.

(2) Incident on 20 April 2009 when contact was made with Endeavour College about you being placed on the education roster in accordance with a requirement of the RSP to continue your education in natural medicine, and it was revealed that you had failed the course due to failing to submit any assignments in 2008. As a result you were taken off the education roster and directed to obtain employment.

(3) On 23 April 2009 you complained about a visitor being denied access. The officer to which the complaint was made explained that you need to supply correct details and the prison would ensure that the situation didn't occur again. You became very angered and snatched back the document containing the information and tore it into pieces before walking away cursing. The officer stated he had witnessed this type of behaviour by you for many years.

(4) Incident on 25 April 2009 whilst you were playing cards during lockup muster. When told you should be in your cell, you appeared to find the comment amusing. A final warning was given.

(5) On 18 June 2009 you were charged with possession of 10 antiinflammatory tablets. You were convicted and cautioned.

(6) On 15 July 2009 you were at Royal Perth Hospital for medical treatment. You stormed out of the doctor's room enraged and unhappy about information given to you regarding your illness and the time it would take for you to be seen. You hurriedly left the Outpatients Area and whilst on your way back to the main building prison officers twice told you to calm down. On returning to the prison the doctor was contacted and he advised that you had sworn at him.

The Board will report to the Attorney General and you will be reviewed again as required by Statute in October 2012.

You may apply for a review of the Board's decision under section 115A of the Sentence Administration Act 2003. The only grounds under which you may make an application for review are that the Board, in making its decision:

1. did not comply with the Act or the regulations; or
2. made an error of law; or

1. used incorrect or irrelevant information or was not provided with relevant information.

To apply for a review you must write to the Board giving reasons why you believe one or more of the above grounds apply in your case.

33 On 22 November 2010 the applicant wrote to the Board and applied for a review under s 115A of the Sentence Administration Act 2003 (WA) of the decision of the Board to cancel his participation in the resocialisation programme. In his written submissions to the Board in support of the review the applicant set out his own account of each of the incidents referred to by the Board in its letter of 13 October 2009. He also provided additional information in support of what he said had occurred. The additional information included a statutory declaration from another prisoner in relation to the medication found in the applicant's cell and that had been the subject of a prison charge. The other prisoner stated that he had placed the tablets in the applicant's room on top of a cupboard 'thinking that the football players may be able to use them'. This was apparently a reference to the fact that the applicant was at that stage assisting with a prison football team. The other prisoner stated that at the time he placed the tablets in the room the applicant was not present and had no prior knowledge of it. This statutory declaration is dated 10 June 2010.

34 There was also a statutory declaration from the applicant setting out his version of what had occurred on 15 July 2009 when he was taken to Royal Perth Hospital. He stated that he consulted with a surgeon in regards to a large lump on the rear of his right thigh. He said that when he was told that the waiting list for an operation was one to two years he expressed astonishment, and that upon being told that cancer patients were waiting up to one month for emergency surgery he said: 'The health system has gone to shit'. He said that he then stood up, shook the doctor's hand and thanked him for his time. He said that he admitted using inappropriate language when told about delays in emergency surgery but that he did not direct any abuse at the doctor. The applicant also provided a letter from the doctor in question. In that letter the doctor said:

I never felt threatened or abused by Mr Agnew and I did not feel uncomfortable either. He may have used some slightly inappropriate language but I would have to say this does not bother me in any shape or form and I would hope that it is not on the basis of our consultation that has led to problems with his re-socialisation program.

35 In regard to other adverse incidents that were relied upon by the Board in cancelling the resocialisation programme the applicant disputed the correctness of the reports of those incidents. In respect of a number of them the applicant alleged that the prison staff who had made the entries were biased against him.

36 On 9 December 2010 the Deputy Chairperson of the Board wrote to the applicant in the following terms:

Dear Mr Agnew

I refer to your letter received 1 December 2010 requesting a review of the Board's decision of 13 October 2009 to cancel your inclusion in a resocialisation programme (RSP).

I note that in error the Board advised you in a letter dated 13 October 2009 of your right to request a review under s 115A of the Sentence Administration Act 2003. In fact there is no statutory right of review regarding decision to cancel a RSP.

As you were incorrectly advised that you had a right to request a review of the decision I am prepared to consider your request.

Under s 115A(6) of the Act, a request for review may only be made on the grounds that the person who made the decision -

(a) did not comply with the Act or the regulations;

(b) made an error of law;

(c) used incorrect or irrelevant information or was not provided with relevant information.

You contend that the Board made an error of law and used incorrect or irrelevant information.

In support of the ground based on the use [of] incorrect or irrelevant information you have provided details of what you considered to have occurred on 17 April 2009 and action taken by you following the incident on 17 April 2009.

You have also provided details of what you considered to have occurred on 23 and 25 April 2009 and 18 June 2009. You have provided an explanation for some of the incidents relied on by the Board and provided information about the courses and programs you have undertaken.

In support of the ground based on your contention that the Board made an error of law you say the members of the Board, in making the decision to cancel your RSP, have failed to comply with a Code of Ethics that applies to the public sector and say that the members of the Board breached a duty of cared owed to you and acted in 'bad faith'. I have considered your submissions and do not accept that there has been a breach of a duty of care or that there has been 'bad faith' by the members of the Board in making the decision to cancel your RSP. Further, I advise that members of the Board are not public sector employees notwithstanding that some members hold the office of member in conjunction with their employment in the public sector.

S 115A(6) of the Act limits the grounds upon which a request for review may be made. Having considered the matters raised in your letter I am not satisfied that any fall within the grounds set out in s 115A(6) of the Act. Your request for review is therefore denied.

Please note that under s 115A(4) of the Act this decision cannot be reviewed.

The grounds - cancellation of the resocialisation programme

37 As mentioned earlier, the applicant seeks the review of two decisions. Firstly, the decision of the Prisoners Review Board to cancel the resocialisation programme on 13 October 2009. Secondly, the decision of the Superintendent of Wooroloo Prison Farm to convict him of an offence under s 69(i) of the Prisons Act on or about 24 June 2009.

38 The statutory provisions under which the Board operates have been considered in detail in recent decisions of the Court of Appeal and it is unnecessary for me to repeat them: Seiffert v Prisoners Review Board [2011] WASCA 148 [44] [67] (Martin CJ), Kirby v The Prisoners Review Board [2011] WASCA 149 and Littlefair v Prisoners Review Board [2011] WASCA 150.

39 In regard to the decision of the Board, the grounds are said to be that the Board did not discharge its duties under s 12A(2) and s 115A(3) of the Sentence Administration Act and reg 3K of the Sentence Administration Regulations. It is also asserted that the decision of the Board was unreasonable in the sense used in Associated Provincial Picture Theatre Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223. Further it is asserted that the Board acted in bad faith and that its decision was an abuse of power.

40 Section 12A(2) of the Sentence Administration Act provides:

The Board must give the Minister a written report about a prisoner at the times stated in columns 2 and 3 of the Table to this section, whether or not it has given the Minister a report about the prisoner under section 12.

41 Reports under s 12A relate to the question of whether a prisoner serving a life sentence should be eligible for parole. The decision in this case was not one in relation to eligibility for parole. It related to the applicant's participation in a resocialisation programme. It is not apparent on what basis s 12A is relevant to the decision that is the subject of these proceedings. In any event, there is no evidence that the Board has failed to provide a written report as required by s 12A.

42 Section 115A of the Sentence Administration Act and reg 3K of the Sentence Administration Regulations relate to reviewable decisions. It appears that the applicant is asserting that the Board did not review its decision to cancel the applicant's resocialisation programme. Even if that is so, it could not be a basis for impugning the validity of the Board's original decision. Whether or not the Board has properly complied with the provisions relating to reviews are questions that relate to conduct that occurred after the original decision was made. Whether there was an error in the way in which the Board conducted itself in respect of the request for review is relevant to whether a declaration should be made and I will refer further to that matter later in these reasons. However, s 115A and r 3K do not provide any basis for suggesting that the decision to cancel the resocialisation programme is susceptible to prerogative writ proceedings.

43 A decision may be invalid on grounds of unreasonableness if it is 'so unreasonable that no reasonable authority could ever have come to it': Associated Provincial Picture Houses Ltd v Wensbury Corp (230). This ground of review is extremely confined: AttorneyGeneral for the State of New South Wales v Quinn [1990] HCA 21; (1990) 170 CLR 1 [36] (Brennan J). See also Miketic v Prisoners Review Board [2011] WASC 176. Courts must exercise caution in respect of such grounds to avoid being drawn into the question of whether a decision is correct on its merits: Minister for Aboriginal Affairs v PekoWallsend [1986] HCA 40; (1986) 162 CLR 24. A decision may be unreasonable if there is no evidence at all to support it. Where, however, the suggestion is that the evidence upon which the decision was made is unreliable or is contradicted by other evidence, this involves a weighing exercise which is beyond the ambit of the supervisory jurisdiction exercised by this court in respect of prerogative writs: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 and Re Minister for Immigration; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473.

44 In Seiffert v Prisoners Review Board Martin CJ said:

In some exceptional statutory contexts, an error of fact may be so fundamental as to cause the decision-maker to fail to take into account a mandatory relevant consideration (see Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346), or to result in a misapprehension which is so gross as to amount to an improper exercise of the power (see Akers v Minister for Immigration Local Government and Ethic Affairs [1988] FCA 459; (1988) 20 FCR 363, 373; Sezdirmezoglu v Acting Minister for Immigration and Ethic Affairs [1983] FCA 267; (1983) 51 ALR 561, 573). However, those cases will be exceptional and the court should remain vigilant to ensure that cases in which the substantial complaint is that of error of fact are not masqueraded as cases seeking judicial review on the grounds of error of law: see Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 [35] - [36] (McHugh J) [195].

45 Regulation 3J of the Sentence Administration Regulations provides that the Board has the power to cancel a resocialisation programme 'for any reason'. In the present case the Board provided its reasons in the letter of 12 October 2009. Those reasons appear to have been derived from the review report of 15 September 2009 and from a number of documents referred to in it. Indeed, the wording of the Board's letter appears to have been drawn directly from a number of these reports. The applicant has obtained copies of these reports and annexed them to an affidavit dated 16 February 2012. Relevantly those reports are as follows:

(1) An incident report dated 16/4/2009 which states that the applicant:

[P]resented as slightly aggressive in his tone and manner. He stated that he had been 'sacked' from Education and appeared to be trying to manipulate the author into taking sides. [The applicant] became louder as the conversation went on resulting in him being informed that I was unable to assist him with his concerns in this area.

1. An entry in the TOMS system dated 25/4/2009 which states:

[The applicant] was playing cards during lock-up muster. When told that he should be in his cell it appeared that [the applicant] found this amusing. This is [the applicant's] final warning and will be charged accordingly for any further incidents of this nature.

1. An entry in the TOMS system dated 23/4/2009 which states:

[The applicant] presented himself to me at the Movement Window to complain about a [sic] incident at visits which involved a visitor of his being denied access. He presented me with their details and I tried to explain to him that he needed to supply me with correct details and I would see the situation didn't occur again. [The applicant] then became very angered and raged that this place is 'Fucked' and snatched the information back from me and tore the information to pieces and walked away cursing. This behaviour was reported to [blank]. I submit this for information as this prisoner's behaviour I have witnessed for many years both here and ACACIA.

1. An entry in the TOMS system dated 20/4/2009 which states:

[The applicant] had been placed on Education Muster at Wooroloo having advised the campus manager that he was studying which was not correct. On 6/4/09 I contacted Endeavour College where [the applicant] purported to be studying a unit of Natural Medicine and confirmed that he first enrolled in one unit 'HPNM' on 9/7/07 and on 2/10/08 he was given a fail due to not submitting any assignments. Furthermore, per semester, two units are treated as interest only, four units as part time and seven units as full time [blank] from Acacia Prison confirmed that [the applicant] has been full time education at Acacia for at least the last 2 years. I told him to find himself another job that he would be taken off the education muster.

1. An incident report dated 18/6/2009 which states:

At approximately 10.00 hours I was conducting searches as per Wooroloo policies and procedures in presence of [blank] Prison Officer. While searching the cell of [the applicant] I located a blister pack of medication on the top of his cupboard ... The medication was placed in an evidence bag and sent to Security. I submit this report for your information and recommend that the prisoner be charged for being in possession of items not lawfully issued to him.

A further incident report in respect of the same matter states that the applicant was interviewed in respect of this incident and could not give any valid reason why the medication belonging to another person was in his room. However, he did state that his room was left unlocked on many occasions.

1. An incident report dated 15/7/2009 which states that:

On Wednesday 15 July 2009 at approximately 10.15 hours whilst on Medical Escort to RPH [the applicant] stormed out of [blank] Room 11 enraged and unhappy with the information that [blank] had given him about his illness and the time it would take for it to be seen. [The applicant] hurriedly left the Outpatients Area and twice had to be told to 'calm down' whilst on our way back to RPH main building. Upon return to WPF I contacted Senior Medical Receptionist [blank] to ask for [blank] to enquire with [blank] exactly what was said by [the applicant] whilst the door was closed during the consultation. [Blank] then contacted Me with these details and whilst [blank] stated he didn't feel directly threatened he did state [the applicant] did use offensive language at him. He also stated to me that the system was fucked and that he would get his leg fixed when he got out, this is not the first temper outburst I have witnessed by [the applicant] refer to his Offender Notes for confirmation as he acts in this matter any time he is told information that is not acceptable to him these outbursts are quite violent, and not acceptable for a MINIMUM rated prisoner. Especially on a Medical Escort.

Hospital and doctor contacted and had expressed no concerns regarding contact with [the applicant] or with his demeanour. At no time did they feel threatened.

Prisoner interviewed and accepts he may have been abrupt upon hearing he would be placed on the public waiting list (approx 2 years) for a problem he has had for a prolonged period already. Staff to continue to monitor prisoner's behaviour in view of ReSocialisation programme requirements and recent Prisoner Review Board decision.

46 As is apparent these incident reports and the review report referred to earlier provide the basis upon which the Board reached its conclusions on 12 October 2009. It cannot therefore be said that there was no basis for the decision. Nor does it appear that the conclusion drawn by the Board was unreasonable or involved any error of law. However, the applicant submits that the matters referred to in the incident reports were disputed by him and that he was given no opportunity to make submissions to the Board or to provide evidence to support his version of events.

47 The Board is not required to put matters to the applicant before making a decision. This is because the rules of natural justice, including any duty of procedural fairness, have been expressly excluded by the Act; see s 115 of the Sentence Administration Act read with s 14A of the Act and reg 3J of the Sentence Administration Regulations. See also Seiffert v Prisoners Review Board [115] (Martin CJ), [212] [213] (McLure P] and [224] (Murphy J).

48 The possible harshness of this outcome is mitigated by the fact that there is a statutory right to review. That review right affords the applicant the opportunity to place information before the Board which might cause it to reach a different conclusion. The applicant in this case did seek a review, though it is now accepted that that process was not properly conducted. This fact does not lead to a conclusion that the original decision was unreasonable, but it does afford a basis for the making of a declaration.

49 As regards the allegation of bad faith, the applicant has asserted that some of the prison officers who made adverse reports about him were biased. He has also asserted that the Board failed in its duty in that it accepted the adverse reports at face value rather than making any enquiries in respect of them.

50 In SCAS v Minister for Immigration and MultiCultural and Indigenous Affairs [2002] FCAFC 397 the Full Court of the Federal Court said:

An allegation of bad faith is a very serious one. Bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decisionmaker: NAAV v Minister for Immigration & Multi-Cultural & Indigenous Affairs [2002] FCAFC 228 at [107] - [108], [19].

51 The fact that the applicant has disputed the adverse reports does not lead to a conclusion that those reports are false, let alone malicious. In any event, it is the Board's conduct which is in issue not that of the officers concerned. There is nothing on the face of the reports that would indicate that they may be unreliable and there is no evidence to suggest that the Board's decision was actuated by bad faith.

52 It is not clear exactly what the applicant intends by his reference to abuse of power. If that allegation is intended to suggest that the Board's decision was beyond power, such an argument is without merit. The Board clearly has power to make decisions in respect of participation in resocialisation programmes.

The grounds - conviction for the prison offence

53 As regards the decision of the Superintendent, the applicant alleges that the Superintendent was not impartial and that that was a breach of the rule against bias. He also alleges that the Superintendent:

Failed to inform himself and consider possession of property issues, in circumstances where mens rea and actus reas were both live issues in dispute, and where the applicant used an analogy of de facto possession to raise a point of law.

54 No record of the proceedings before the Superintendent was provided. In oral submissions the applicant said that such proceedings were conducted on an informal basis. He did not dispute that he had consented to have the prison charge dealt with by the Superintendent in accordance with the Prisons Act.

55 It should be noted that the apparently uncontested evidence was that a blister pack of antiinflammatory medication was found in the applicant's room at Wooroloo Prison Farm following a search by prison officers. The medication was not prescribed for the applicant. He was interviewed by prison officers and could provide no explanation for the presence of the medication.

56 On those bare facts it could not be said that a finding of guilt for possession of the medication was not open. An intention to possess the medication could be inferred from the circumstances. Accordingly, there is no obvious basis to suggest that a finding of guilt must have been the product of some bias on the part of the Superintendent.

57 The applicant referred in his submissions to the fact that the Superintendent's wife was an education officer at the prison and that there had previously been an adverse incident report made against him by her. The suggestion appeared to be that there was some apprehended bias on the part of the Superintendent in these circumstances. There is no evidence that any question of apprehended bias was raised at the time that the charge was dealt with by the Superintendent.

58 In Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 86 ALJR 14 [20], (31) (Gummow ACJ, Hayne, Crennan and Bell JJ) see also Hayne J, 35 [117], the High Court said:

It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, 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 [31]. (footnote omitted)

59 The adverse incident involving the Superintendent's wife is the subject of Item 1 referred to above. The fact that the incident report refers to the applicant having 'presented as slightly aggressive in his tone and manner' and as having 'appeared to be trying to manipulate the author into taking sides' appear to be the comments and observations of a staff member acting in the course of her duties. The tone and content do not suggest prejudice on the part of the author. Even if the comments could give rise to a reasonable apprehension of bias on the part of the Superintendent's wife they could not give rise to such an apprehension on the part of the Superintendent. In Kay Cliff v Australian Broadcasting Tribunal (1989) 90 ALR 310 the Full Court of the Federal Court held that comments made by the husband of the chairman of the Australian Broadcasting Tribunal about a proceeding before the Tribunal did not raise a reasonable apprehension of bias on the part of the chairman. The Full Court observed:

Although we have found no authority directly bearing on the point it appears to us that statements made outside and without the authority of the court or tribunal by persons who are not its members cannot in general disqualify it from proceeding [320].

60 As regards the second ground for impugning the decision of the Superintendent, namely that there was some failure to consider the elements of the offence, this is an allegation that was made in submissions only. There is no evidence to support it and it is not an inference that can be drawn from the available information.

Conclusion - application for order nisi for certiorari

61 For the above reasons the applicant does not have a reasonably arguable case that the decisions of the Board and the Superintendent are susceptible to review on the grounds stated in his application. The matters he has raised go to the merits of those decisions and as such do not establish jurisdictional error or any other basis for a grant of certiorari. They may be relevant on a review under s 115A, but they cannot ground the issue of a writ of certiorari. Accordingly, the application for an order nisi for a writ of certiorari in respect of the first respondent and the application for an extension of time in respect of the second respondent must both be refused.

62 The applicant's originating motion also seeks a number of declaratory orders against the Board. An application for a writ of certiorari is made pursuant to O 56 of the Supreme Court Rules 1971 (WA). Order 56 does not allow for the bringing of an application for declaratory orders. The limited circumstances in which declaratory relief can be sought by way of originating summons do not apply here: see O 58 r 10, r 11 and r 13 of the Supreme Court Rules. However, this court has inherent power to grant declaratory relief upon the return of an order nisi for certiorari in an appropriate case: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 582 (Mason CJ, Dawson, Toohey and Gaudron JJ). See also s 25(6) of the Supreme Court Act 1935 (WA) and O 18 r 16 of the Rules.

63 Declaratory relief is discretionary and that discretion should be exercised having regard to considerations set out by the High Court in Ainsworth v Criminal Justice Commission. Mason CJ, Dawson, Toohey and Gaudron JJ said in that case:

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'. (footnotes omitted)

64 Section 103(1) of the Sentence Administration Act provides that the members of the Board comprise the chairperson, at least two deputy chairpersons and as many community members, officers of the Department of Corrective Services and police officers as are necessary to deal with the workload of the Board. The chairperson must be a judge or retired judge of the Supreme Court or the District Court: s 103(2).

65 The power of the Board to cancel a resocialisation programme is conferred on the Board by reg 3J(1) of the Sentence Administration Regulations which provides:

The Board may, at any time during a prisoner's participation in a resocialisation program and for any reason, cancel the program in relation to the prisoner, irrespective of whether the program was approved by the Board or the Governor.

66 Section 115A of the Sentence Administration Act provides for the review of decisions defined as 'reviewable decisions'. Section 115A(1) provides that the phrase 'reviewable decision' has a meaning in accordance with subs (2), (3) and (4). Section 115A(3) provides:

The regulations may provide that a decision of a prescribed kind made under the regulations is a reviewable decision.

67 Regulation 3K(b) of the Sentence Administration Regulations provides:

For the purposes of s 115A(3) of the Act

...

(b) A decision by the Board under regulation 3J to cancel a resocialisation programme in relation to a prisoner is a reviewable decision.

68 Section 115A(5) of the Sentence Administration Act provides that a prisoner about whom a reviewable decision is made may request the Board to review the decision. The grounds upon which a request may be made are set out in s 115A(6) and s 115A(7). Section 115A(8) provides that:

When a request is made the chairperson of the Board must consider any submissions included in it and review the decision concerned and may -

(a) confirm, amend or cancel the decision;

(b) make another decision; or

(c) refer the decision to the Board for further consideration.

69 Section 115A(9) and s 115A(10) provide that the chairperson may delegate the review of a decision to a deputy chairperson on the proviso that any questions of law arising in the review will not be decided by the deputy chairperson but will be referred to the chairperson to decide.

70 The letter of 9 December 2010 from a deputy chairperson of the Board to the applicant stated that he did not have a right to request a review under s 115A of the Sentence Administration Act. That statement was clearly in error. The fact that the deputy chairperson stated that some assessment of the applicant's submissions had nonetheless been conducted does not mean that there has been compliance with the law. Furthermore, it is not clear to what extent that assessment may have involved the determination of legal questions that were not amenable to the exercise of delegated power by a deputy chairperson. The clear fact is that the applicant was denied the review pursuant to the Sentence Administration Act to which he was entitled. In these circumstances it is open to make a declaration.

71 A declaration is a discretionary remedy and should not be made unless there is a continuing issue and not a mere abstract or hypothetical question. In the present case the applicant remains a prisoner who is eligible to be considered for parole. His prospects of parole are likely to depend significantly upon whether he can again participate in a resocialisation programme. This in turn is likely to be influenced by the decision to cancel his previous participation on 12 October 2009. There may well be a proper basis for reviewing that decision. It is certainly the case that the applicant has a right to a review of that decision.

72 In these circumstances I am satisfied that this is an appropriate case to make the following declarations:

1. that s 115A of the Sentence Administration Act and reg 3K of the Sentence Administration Regulations confer upon the applicant a right to request a review of the first respondent's decision dated 13 October 2009 to cancel the applicant's resocialisation programme; and
2. that there has not been a review in accordance with s 115A(8) of the Sentence Administration Act of the first respondent's decision dated 13 October 2009 in response to the applicant's request for a review dated 22 November 2010.

73 I will hear from the parties as to the appropriate form of any other orders.