Alameddine v State Parole Authority and Attorney-General of NSW

Supreme Court of NSW|2022-05-23|Before: Bellew J

Solicitors: Karnib Saddik - Plaintiff Crown Solicitor for NSW - Second Defendant File Number(s): 2021/355826 Publication restriction: Nil

INTRODUCTION

By a summons filed on 15 December 2021, Bilal Alameddine (the plaintiff) seeks the following orders against the first defendant, the State Parole Authority (the Authority) and the second defendant, the Attorney-General for NSW: 1. an order in the nature of certiorari, pursuant to s 69 of the of the Supreme Court Act 1970 (NSW), quashing the determination of the Authority on 9 August 2021 made in relation to the plaintiff, refusing the plaintiff parole; 2. an order in the nature of mandamus, pursuant to ss 65 and 69 of the Supreme Court Act 1970 (NSW), that the Authority convene and fulfil its duty by determining the plaintiff's eligibility for parole according to law; 3. such further or other orders as are necessary to give effect to the plaintiff's claims in the nature of judicial review; and 4. an order that the defendants pay the plaintiff's costs of the proceedings.
The Authority filed a submitting appearance, leaving the second defendant as the only active defendant in the proceedings.
The entirety of the evidentiary and related material was contained in a Court Book which was admitted without objection and marked exhibit A.
I have set out the relevant background below when summarising the two decisions of the Authority which bear on the issue between the parties. At this point, I simply note that the plaintiff is currently serving a sentence of imprisonment imposed on him in the District Court on 3 June 2020 for offences of: 1. unlawfully selling firearms on an ongoing basis three times or more within a 12-month period; and 2. supplying a commercial quantity of a prohibited drug, namely 479.2 grams of cocaine.
The plaintiff was sentenced to an aggregate term of imprisonment of six years commencing on 30 June 2017 and expiring on 29 June 2023, with a non-parole period of three years commencing on 30 June 2017 and expiring on 29 June 2020. He was first eligible for parole on 29 June 2020. His sentence will expire on 29 June 2023.

THE STATUTORY SCHEME GOVERNING PAROLE TO TERRORISM RELATED OFFENDERS

Before addressing the determinations of the Authority, and in order to put those determinations into some context, it is appropriate to set out the provisions constituting the statutory scheme governing the grant of parole to terrorism related offenders.
Part 6 [1] of the Crimes (Administration of Sentences) Act 1999 (NSW) (the Administration Act) addresses parole. Division 2 of that Part specifically addresses parole orders in cases in which a sentence of more than three years has been imposed, and thus applies to the plaintiff.
Section 135 addresses the general duty of the Authority relating to the release of an offender on parole. Section 135(8) is in the following terms: (8) The Parole Authority is not required to consider the matters specified by this section in relation to an offender if it determines under Division 3A that it cannot make a parole order for the offender.
Division 3A of Part 6 [2] specifically addresses parole orders for terrorism related offenders and was introduced into the Administration Act by the Terrorism Legislation Amendment (Police Powers and Parole) Act 2017 (NSW) [3] . It has been observed that the purpose of Division 3A is to "more stringently regulate the conduct and oversight of persons deemed to be terrorism offenders". [4] Its introduction implemented a decision made by the Council of the Australian Governments on 9 June 2017 to create a presumption against the grant of parole for any person who has demonstrated support for, or who has links to, terrorism and violent extremism. [5]
A "terrorism related offender" is defined in s 159A(1) as: "an offender to whom this Division applies".
That definition is, in turn, governed by s 159B which is in the following terms: 159B Offenders to whom Division applies (1) This Division applies to an offender-- (a) who is serving a sentence for a terrorism offence, who has previously been convicted of a terrorism offence or who has been charged with a terrorism offence, or (b) who is the subject of a control order made under Part 5.3 of the Commonwealth Criminal Code, or (c) who has any associations with a terrorist organisation (within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code), or (d) who is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or (e) who has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism. (2) Without limiting subsection (1)(d) and (e)-- (a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following-- (i) making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (ii) using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and (b) an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following-- (i) networking or communicating with the person, group of persons or organisation, (ii) using social media sites or any other websites to communicate with the person, group of persons or organisation.
It should be noted that the present terms of s 159B(1)(e) are wider than those originally enacted. [6] In its original form, s 159B(1)(e) provided as follows: (e) who has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.
It will be apparent, and it was not in dispute, that s 159B is in the nature of a "gateway" provision which governs the application of Division 3A. The Authority concluded that Division 3A applied to the plaintiff by virtue of s 159B(1)(e) and that accordingly, the plaintiff was a terrorism related offender. The correct interpretation of that provision is the principal issue between the parties.
If an offender is found to be a terrorism related offender by virtue of the application of one or more of the provisions of s 159B(1)(a) to (e), s 159C(1) imposes a limitation on that offender's release. It does so by the application of what is, on any view, a stringent test: 159C Limitation on release on parole of terrorism related offenders (1) The Parole Authority must not make a parole order directing the release of an offender who is known to the Parole Authority to be a terrorism related offender unless-- (a) the Parole Authority is satisfied that the offender will not engage in, or incite or assist others to engage in, terrorist acts or violent extremism, and (b) the offender is otherwise eligible under this Act to be released on parole. …
At the time of the Authority's determinations relating to him, the plaintiff was eligible for parole and thus satisfied s 159C(1)(b). However, the Authority determined in each instance that it was not satisfied of the matters set out in s 159C(1)(a) and refused the plaintiff's release on parole.
Finally, s 159D requires the Authority, in determining whether to release a terrorism related offender on parole, to have regard to specific matters and is in the following terms: 159D General provisions relating to terrorism related offenders (1) In deciding whether or not to release a terrorism related offender on parole, the Parole Authority is to-- (a) have regard to any credible information it has on the risk that the offender may engage in, or incite or assist others to engage in, terrorist acts or violent extremism under the terms of the proposed parole order and in the future, and (b) have regard in particular to whether the nature of any associations or affiliation that the offender has with any persons or groups advocating support for terrorist acts or violent extremism gives rise to any such risk. …

THE DETERMINATIONS OF THE AUTHORITY

The relief sought by the plaintiff stems principally from a determination made by the Authority on 9 August 2021 (the 2021 determination). However, in reaching that determination, the Authority incorporated and relied upon conclusions [7] which had been reached (by a differently constituted Authority) in an earlier determination made on 20 November 2020 (the 2020 determination). It is therefore necessary to address both the 2020 and the 2021 determinations.

The 2020 determination

In the 2020 determination, the Authority concluded, in terms of s 159C(1)(a) of the Administration Act, that it was not satisfied the plaintiff would not engage in, or incite, or assist others to engage in, terrorist acts or violent extremism. [8] On that basis, parole was refused.
The factual basis for the 2020 determination included a report contained in the NSW Police Computerised Operational Police System (COPS) database of 11 July 2015. That report was based upon information provided by persons described as "INF 1" and "INF 2", who were in fact the plaintiff's mother and father respectively. The report included the following: [9] For the past few months INF1 and INF2 have observed [the plaintiff] watching State of Iraq and Syria (ISIS) related videos on "YouTube" on a daily basis, to the point that he has become obsessed with them. In the evening of Tuesday 7 July 2015, INF1 had a short conversation with [the plaintiff] in relation to "leaving". It is believed his father had some feeling that he may be planning to fly overseas, however had no evidence to suggest this, due to not having access to money to purchase tickets. INF1 and INF2 went to bed for the night, believing [the plaintiff] had done the same. It is believed that in the early hours (2am) of Wednesday 8 July [the plaintiff] has packed a few things in 2 bags including his passport and headed towards Sydney international Airport to board flight EK415 to Dubai. About 5:30am on Wednesday 8 July 2015, INF1 and INF2 attended Wentworthville Police Station with serious concerns about [the plaintiff], feeling [sic] the country to fight for State of Iraq and Syria (ISIS). Police immediately contacted the Australian Federal Police and alerted them of this information. Police handed INF2 the phone who provided more details of [the plaintiff's] last movements. At this time the operator Virginia KERR altered [sic] other agencies, including ASIO and Counter Terrorism. Without warning both INF1 and INF2 ran out of the police station. Police attempted to stop them to obtain further information however they insisted on attending the airport. A short time later, Police received a call from the national hotline who advised that [the plaintiff] had been arrested. At the time of writing [the plaintiff] was intercepted by AFP whilst seated in his designated seat within the aircraft, only minutes from departing. It is believed that the flight was delayed by approximately 1 hour while they escorted him of [sic] the aircraft and obtained his belongings. It is believed by AFP officials that [the plaintiff] was going to board a connecting flight from Dubai to Jordan where he would cross the boarder [sic] into Syria.
In considering that report, the Authority noted [10] that in the course of giving evidence before it, the plaintiff had: 1. agreed that he had gone to the airport; 2. denied that he had entered the aircraft, saying that he had been intercepted within the airport building and was prevented from boarding; 3. said that his intention had been to travel to Dubai and then to Jordan, not for the purpose of entering Syria, nor for any purpose connected with the Islamic State of Iraq and Syria (ISIS), but to travel to Macedonia to stay with the family of a friend; 4. said that he had saved money for the airfare from jobs that he had done; 5. said that whilst he had watched videos of ISIS, he had done so out of curiosity, and not in order to support or follow its messages; and 6. denied any support of ISIS.
At the hearing which led to the 2020 determination, the Commissioner for Corrective Services (the Commissioner) opposed the plaintiff's release on parole and submitted that his conduct in attempting to travel to Syria constituted advocating support for violent extremism within the meaning of s 159B(1)(d) of the Administration Act. Having considered the terms of s 159B(1)(d), the Authority concluded [11] that although it was satisfied that the plaintiff's purpose in undertaking the journey was to foster his interest in ISIS in some way, the evidence did not support a finding as to precisely what he intended to do, or where he intended to go, and that a decision to "go about the business of ISIS would not by itself be to advocate support of anything ISIS stood for [nor] would an attempt without more". On this basis, the Authority concluded that there was "no advocation in what [the plaintiff] did of support for any terrorist act or violent extremism". [12] Accordingly, the Authority was not satisfied that the circumstances to which s 159B(1)(d) was directed had been made out.
The Commissioner relied, in the alternative, on s 159B(1)(e) of the Administration Act. [13] In that regard, the Authority made reference to a further report in the COPS database of 14 October 2015. That report related to events which had taken place on the evening of 5 October 2015 when police had attended premises in Merrylands at which Rafat Alameddine, Rachad Alameddine, Masood Zakaria, and the plaintiff, were present. The report included the following: [14] At the above time and date the police attended [xxx] Merrylands as per Talon taskings. Police observed that Rafat, Rachad, Masood and [the plaintiff] at the front of the residence next to VOI1. As police approached the POIs walked towards the residence but stopped and spoke with the police for some time. During conversation [the plaintiff] continued to watch police and appeared to be looking at police appointments. Rafat questioned police about raids being [done] at this residence and stated he would never have anything in his parents [sic] house or in his car when driving. After a short time the POIs stated they were going to stay in that night and walked into the residence. Police left the location and attended [xxx] Merrylands as per Talon tasking. As police arrived at the [xxx] address VO1 and VO2 stopped across from the residence. Police approached VO1 and spoke with the occupants, Mohammed, Talal, Tarek and [the plaintiff]. [15] Police conducted checks of the VOI which revealed it was a rental vehicle and the occupants had history and intel relating to MEOCS, drugs, firearms and terrorism. Mohammed stated he was down from Queensland visiting the other POIs at the time. Due to the POIs having links to organised crime, drugs, firearms, along with the POIs being in a rental vehicle, which are often used to avoid detection from police. Police believed the vehicle contained or the POIs had in their possession, drugs or firearms. Police searched the vehicle and POIs, nothing adverse was located. At the time of the search VOI2 drove past the location several times.
The Authority went on to refer [16] to the fact that Talal Alameddine (Talal) had pleaded guilty in this Court to: 1. possessing a thing, namely a .38 special calibre Smith & Wesson model British service revolver that was connected with the preparation for a terrorist act, and that he was reckless as to the connection; 2. supplying the same pistol to another person in the absence of that other person being authorised to possess it.
The Authority also noted [17] that the essence of Talal's criminality had been described by the sentencing judge in the following terms: On the afternoon of Friday, 2 October 2015, a terrorist attack occurred in a public street at Parramatta in western Sydney. An innocent man, Curtis Cheng, was murdered after leaving the NSW Police Headquarters building where he worked as a civilian accountant. Mr Cheng was shot dead by Farhad Jabar Khalil Mohammad ("Farhad"), a 15-year old radicalised and extremist supporter of the fanatical terrorist organisation, Islamic State. Farhad was himself then shot dead in a gun fight with Special Constables in the street in Parramatta. The firearm used by Farhad as a murder weapon was an old, but fully functional, British service revolver. The revolver had been handed to Farhad shortly before the murder by Raban Alou ("Alou"), another radicalised and extremist supporter of Islamic State. Alou had obtained the revolver that day from the Offender, Talal Alameddine.
The Authority further noted [18] that in the course of sentencing Talal, the sentencing judge had referred to evidence of a conversation between Talal and a police officer who had asked Talal about his newly grown beard. Talal replied, "my beard is for ISIS". The Authority noted that the sentencing judge had concluded that Talal had meant what he said, and that when he supplied the weapon to Raban Alou some three months later, he (i.e. Talal) had "at least a level of sympathy" for ISIS.
The Authority was ultimately satisfied [19] that on 5 October 2015 the plaintiff had been in Talal's company in a hire vehicle at Merrylands, and that Talal had advocated support for a terrorist act, or violent extremism.
Counsel who appeared for the plaintiff at the hearing leading to the 2020 determination had submitted that in order for a finding of "association" to be made for the purposes of s 159B(1)(e) of the Administration Act, it was necessary for the Authority to be satisfied of something more than the plaintiff's mere presence with a person who was advocating support for any terrorist act or violent extremism. It was submitted that it was necessary for the Authority to be satisfied that the plaintiff had some knowledge that Talal was advocating, or had advocated, such support. On this basis, it was submitted that although the plaintiff and Talal were cousins, there was no evidence that the plaintiff knew of Talal's support of ISIS.
On my reading of the 2020 determination, the Authority did not specifically determine whether, for the purposes of s 159B(1)(e), evidence of such knowledge on the part of the plaintiff was required. However, the following passages of the Authority's reasons for the 2020 determination tend to indicate that the Authority was satisfied that the plaintiff had such knowledge in any event: [20] 34. It seems to the Authority that the context of the meeting might be understood by considering contemporary events. They seem to be: i. On 5 July 2015 [Talal] told [a police officer] and her colleagues, in the presence of three unidentified male members of the Alameddine family, that his beard was for ISIS. As all could see and understand, he had changed his manner of dress and his attitude. ii. For a few months before 7 July 2015 [the plaintiff] had been obsessively watching videos of ISIS. iii. On 7 July 2015 [the plaintiff] secretly left home to board a flight for Dubai, intending to continue onto Jordan and from there follow up his plan. That was an act that could have been carried out only after forethought and preparation, involving, not least, the acquisition of enough money to pay the airfare. iv. On 1 or 2 October 2015 [Talal] supplied the revolver to Alam [sic]. v. On 5 October 2015 [the plaintiff] was in the company of [Talal] and others in a hire vehicle. The police suspected that they were dealing in firearms, though that was not established. Although [the plaintiff] and [Talal] were cousins their meeting had none of the appearance of a family occasion. 35. It is obvious that by 5 October 2015 [the plaintiff] had a strong interest in ISIS. It may be inferred that the meeting of 5 October 2015 was not a social affair. By that time [Talal] had made no secret of his support for ISIS. It seems likely in all the circumstances [the plaintiff] knew about his support for ISIS. 36. It seems to the Authority that there was an association between [the plaintiff] and [Talal] who was at the time advocating or had advocated support for terrorist acts and violent extremism. He is therefore known to the Authority as a terrorism related offender (my emphasis).
The Authority then turned to the issue posed by s 159C(1)(a) of the Administration Act. [21] Having accepted that a period of five years had passed since the plaintiff had come under notice, and having acknowledged the support which was available to him from his parents and immediate family, the Authority concluded: [22] 40. However, there are other matters of concern. [The plaintiff] has responded in the past to the undesirable influence of others. The sentencing court considered him to have been so influenced when he supplied firearms and drugs. On 5 October 2015, on the occasion recorded in the COPS entry of 14 October 2015, two named members of the Alameddine family were present taking part in the events. There is a risk if [the plaintiff] is released he will come under the influence of such family members. 41. [The plaintiff's] preparedness to use illicit substances makes him susceptible to the influence of others too. It is unfortunate that the manner in which he has been classified and confined has made him ineligible to participate in a desirable therapeutic course. 42. The offender's account of his reasons for going to the airport show that he continues to deny the obvious and may not yet be ready to acknowledge his foolishness and put it firmly behind him. 43. The standard of satisfaction the Authority must reach to meet the requirements of [section] 159C(1)(a) is high, commensurate with the purpose and objective of the legislation, and the time during which it must be satisfied that the offender will not engage in proscribed conduct is unlimited. Although there are indications that [the plaintiff] is maturing, the Authority cannot yet be satisfied that [the plaintiff] will not engage in or incite or assist others to engage in terrorist acts, or violent extremism. 44. Parole is refused.

The 2021 determination

On 9 August 2021 the Authority (differently constituted) refused the plaintiff's release on parole. In doing so, the Authority expressly "accept[ed] and embrac[ed] the factual and legal conclusions" reached in the 2020 determination, [23] and identified the principal issues before it in the following terms: [24] The ultimate questions are whether Division 3A [of the Administration Act] presently applies, and if it does, whether the Authority is satisfied that [the plaintiff] will not engage in the proscribed conduct, referred to in [section] 159C(1)(a).
Having recounted the circumstances of the association between the plaintiff and Talal which had been set out in the 2020 determination, the Authority noted that it had been submitted on the plaintiff's behalf that: [25] 1. there was no evidence that the plaintiff was aware of the conversation between Talal and the police officer regarding Talal's beard being "for ISIS"; 2. there was no evidence that the plaintiff was aware of Talal's supply of the revolver to Raban Alou; 3. nothing adverse was located by police in the course of the search of 5 October 2015; 4. it was necessary for the events of July 2015 to be viewed in light of the finding made in the 2020 determination that there was no advocation of any terrorist act or violent extremism in what the plaintiff had done; and 5. there was no evidence that, at any point, the plaintiff had voiced support for an extremist group, or that he had communicated with Talal in relation to the topic of extremism.
The Authority observed that the "significant tension" between those matters and the 2020 determination did not undermine the conclusion which had been reached on that occasion. [26]
The Authority went on to observe [27] that there were other communications between the plaintiff and Talal, and between the plaintiff and Omar Al-Kutobi (Al-Kutobi), [28] which, in the Authority's view, needed to be considered in conjunction with the material which had been taken into account in the 2020 determination. The Authority concluded [29] that there was "a strong inference available that [the plaintiff] has maintained a personal relationship with [Talal] and with Al-Kutobi, being aware of the general circumstances leading to their imprisonment".
The communications were summarised as follows: [30] 1. a letter from the plaintiff to Talal dated 8 November 2019 which included the phrase "But let any mother fucker even step out of line with our family I'll tear them to shreds"; 2. a letter from the plaintiff to Talal dated 28 November 2020 referring to running amok and throwing urine in the face of Fadi Alameddine who was trying through his religion to "turn me on you"; 3. a letter from the plaintiff to Talal dated 16 January 2021 referring to the plaintiff having to do what he needed to do and "whoever needed to be put in place, got done"; 4. a letter from the plaintiff to Al-Kutobi dated 16 February 2021 in which the plaintiff described an incident involving Awra, a bad snake, and said "My boys pumped him in Goulburn Remand yard"; 5. a letter from the plaintiff to Mahmoud Ahmad dated 2 April 2021 referring to "all these wannabe gangsters in Sydney are under our foot"; 6. a letter from the plaintiff to Ahmad Alameddine dated 4 April 2021 which the plaintiff signed "K.4.F."; 7. letters passing between the applicant and Talal between 2016 and 2020 which were said to demonstrate the extent of their association.
The Authority also took into account evidence of what was described as the plaintiff's "concerning custodial behaviour" which included: [31] 1. a reference to a fight in a letter written to another inmate, Mohamad Maskoud, on 22 April 2021 (although it was acknowledged that on the account given, the plaintiff appeared to have been acting in self-defence); 2. his involvement in violence on 14 May 2021; and 3. a reference by the plaintiff, in a letter dated 25 May 2021 to Maskoud, to the fact that "[he] and Zac bashed and stabbed him".
The Authority also took into account more recent correspondence, including: [32] 1. a letter from the plaintiff to Talal of 24 March 2021 in which the plaintiff spoke of his respect for Talal "especially after [he] pumped Bass and a few other things", as well as a reference to the fact that "they are mad soldiers for us"; and 2. an exchange of correspondence between the plaintiff and Al-Kutobi and, in particular, the plaintiff's response of 30 April 2021 to a letter from Al-Kutobi of 9 April 2021 in which he [the plaintiff] said: Is that Turkmani still there in MPU? Tell him if he has an issue with what happened to Atwa, when we cross paths I'll sort him out. He should mind his own business.
In circumstances where, in both of the letters in 36 above, the plaintiff and Al-Kutobi addressed each other as "Brother", the Authority concluded that there was a compelling inference, particularly in the context of other communications, that this exchange referred to violence. [33]
Finally, the Authority noted [34] that in an interview of 21 May 2021, the plaintiff had spoken about "how he started to feel easily swayed towards radical beliefs prior to his arrest, compared to how he feels now".
The Authority then proceeded to consider a number of submissions made on behalf of the plaintiff, before reaching the following conclusion: [35] At the [2020 determination] the Authority raised a number of concerns. The Authority has considered all the matters raised on behalf of [the plaintiff] and what has transpired since the last determination. Lack of discipline, condoning violence and susceptibility to the influence of peers remain matters of concern, as does (sic) [the plaintiff's] continuing associations. The Authority is presently not satisfied that [the plaintiff] will not engage in, or incite or assist others to engage in, terrorist acts of violent extremism. [36] Consequently, the Authority is not empowered to grant parole at this time. It is unnecessary to consider whether [the plaintiff] is otherwise eligible for release on parole.
The reasons for the 2021 determination are encapsulated in the following passages of the Authority's reasons: [37] Insofar as the Determination of 20 November 2020 remains relevant to the present application of Division 3A, [the plaintiff] seeks to impugn that determination … In essence it is contended that association or affiliation simpliciter is insufficient for the purposes of [s] 159B(1)(e) and association must involve a common interest or purpose. There is a requirement for a nefarious element, it is contended. The dictionary meaning of association is said to support that submission, and the Act needs to be read as a whole, it is submitted by [the plaintiff]. The Authority considers that the ordinary meaning of personal association is sufficiently wide to encompass both a personal connection, and a personal connection involving a common interest or purpose. It is acknowledged by the Authority that the legislation needs to be considered as a whole. There is nothing in [s] 159B(2)(b)(i) (which provides that an association or other affiliation with a person includes communicating with the person) that suggests a common purpose or interest (in the sense of both participants been jointly aware of the purpose or interest) is actually required. Nevertheless, the Authority considers it is reasonable to accept that the type of personal connection or affiliation required, is one that is capable of giving rise to a risk referred to in [s] 159C(1)(a). On one view that acceptance may involve some reading down of the plain words of the legislation, which is clearly designed to be protective. It is evident from [the 2020 determination] that the Authority then concluded that there was more than an association simpliciter between the [the plaintiff] and [Talal]. The Authority implicitly accepted [the plaintiff's counsel's] submission that there had to be knowledge on the part of [the plaintiff] that [Talal] was or had advocated support for ISIS, and terrorist acts or violent extremism (emphasis added in each case).

THE GROUND OF THE APPLICATION FOR REVIEW

The summons filed by the plaintiff pleads a single ground of review in the following terms: [38] In assessing whether the plaintiff has a "personal association" with Talal Alameddine and Omar Al Koboti (sic), pursuant to section 159B(1)(e) of the Crimes (Administration of Sentences) Act 1999, [the Authority] failed to consider the requirement that the plaintiff shares a level of common purpose or interest of terrorism and/or violent extremism with Talal Alameddine and Omar Al Koboti (sic).

Submissions of the plaintiff

Put simply, counsel for the plaintiff submitted that s 159B(1)(e) of the Administration Act was not engaged unless the Authority was satisfied that the offender in question: 1. knew of the activities of the person with whom he or she had an association, i.e. that the offender knew that such person is or was advocating support for any terrorist act or violent extremism; 2. shared a common purpose or interest, in respect of such activities, with the person with whom he or she had that association.
Counsel took no issue with the manner in which the Authority had addressed the first of those considerations. However, he submitted that the Authority had erred in addressing, or in failing to properly address, the second, in the context of the plaintiff's association with Talal and Al-Kutobi.
Counsel identified the relevant common purpose or interest as "a common purpose [of] or interest [in] terrorism or violent extremism". [39] In other words, and in the context of the present case, counsel submitted that on its proper construction, s 159B(1)(e) required that in order to determine that the plaintiff was a terrorism related offender, it was necessary for the Authority to be satisfied that any association between the plaintiff on the one hand, and Talal and Al-Kutobi on the other, was one in which the plaintiff shared with them a common purpose of, or interest in, terrorism or violent extremism. It was submitted that in concluding that there was nothing in s 159B that suggested that a common purpose or interest was actually required, [40] the Authority had erred.
Counsel submitted that the construction he urged was one which was consistent with the legislative purpose of s 159B(1)(e), to the point where any alternative interpretation would lead to "plainly absurd outcomes". By way of example, counsel submitted that adopting the construction of the Authority had the capacity to give rise to a situation where an offender who, decades ago, may have associated with a person who was advocating support for extremism, would be perpetually designated as a terrorism related offender. It was submitted that such an approach was inconsistent with the clear legislative purpose of Division 3A and that, absent the identified common purpose or interest shared by the relevant associates, the application of s 159B(1)(e) would be unworkable and impermissibly wide.
In advancing these submissions, counsel placed particular reliance upon the judgment of Bathurst CJ in Lawrence v State of New South Wales [41] in which the Chief Justice addressed the meaning of the term "personal or business association" as it appears in s 10(1)(c)(ii) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the THRO Act). Whilst acknowledging that the observations of the Chief Justice were made in the context of a different legislative scheme, it was nevertheless submitted that those observations directly supported the construction of s 159B(1)(e) which was advanced, and ran contrary to the construction adopted by the Authority.
In advancing these submissions, counsel expressly accepted that s 159C of the Administration Act had obviously been specifically drafted in terms which required the Authority to be satisfied that an offender was entirely risk free from the relevant conduct. Counsel also appeared to accept that because the underlying purpose of Division 3A was to avoid violent extremism, its provisions were stringent for good reason. However, it was submitted that absent the adoption of the construction which was advanced, s 159B(1)(e) would operate as a form of "legislative dragnet" by placing people within its strictures in a manner which was not intended by the Parliament.

Submissions of the second defendant

Counsel for the second defendant submitted that taking into account the text, context and purpose of s 159B(1)(e), the Authority was not required, for the purposes of determining whether the offender was a terrorism related offender, to identify, or be satisfied of, the existence of any common interest or purpose between the plaintiff and any person with whom he had an association.
Counsel submitted that there was nothing in the text of s 159B(1)(e), and specifically nothing in the meaning of the words "associate" or "association", which supported the construction advanced on behalf of the plaintiff. It was further submitted that, contrary to the submissions advanced by counsel for the plaintiff, the construction adopted by the Authority would not lead to, or have the capacity to lead to, "plainly absurd outcomes". It was submitted, in particular, that any proposition that it would have that capacity had the clear tendency to overlook the provisions of ss 159C and 159D which were designed to assess any risk which had been identified.
Counsel further submitted that the construction urged on behalf of the plaintiff was inconsistent with the purpose of Division 3A. It was submitted that it was clear that Division 3A was not intended to be limited to those directly involved with the commission of terrorism offences, and was intended to extend to a wide variety and range of associations and relationships. The difficulty in obtaining evidence of an offender's common interest in another person's support for terrorism or violent extremism was submitted to be a further factor which tended against the plaintiff's construction.
Counsel accepted that the terms of s 10(1)(c)(ii) of the THRO Act, which were considered by Bathurst CJ in Lawrence, were similar to those of s 159B(1)(e) of the Administration Act. However, counsel emphasised that the THRO Act and the Administration Act were obviously directed to different purposes. It was pointed out, in particular, that the THRO Act was directed to those who had already served a sentence, and thus imposed a greater burden on the State to justify any continuing deprivation of, or the imposition of conditions upon, their liberty. In all of these circumstances, it was submitted that the decision in Lawrence provided no real support for the plaintiff's position.

CONSIDERATION

In determining these proceedings, it must be borne firmly in mind that the Parliament has vested in the Authority the exclusive responsibility for the function of determining an offender's release on parole. These are not appellate proceedings enabling a general review of the Authority's determination. My role is to review the legal validity of the Authority's decision, and to determine whether the Authority fell into error. [42]
It is appropriate to commence by setting out some general principles, firstly in respect of judicial review, and secondly in respect of statutory construction. Those principles were not in dispute between the parties.
Judicial review for both jurisdictional error and error of law on the face of the record is available in respect of a decision to refuse parole. [43] Section 69 of the Supreme Court Act 1970 (NSW) governs the supervisory jurisdiction of the Court in that respect, and confers power to grant the remedies sought by the plaintiff in the present case.
Jurisdictional error will invalidate any order or determination of a decision maker which reflects such an error. If a decision maker falls into error which causes them to identify a wrong issue, ask the wrong question, ignore relevant material, rely on irrelevant material or (in some circumstances) make an erroneous finding or reach a mistaken conclusion, the exercise (or purported exercise) of the decision-making power is thereby affected because the decision maker has exceeded their appropriate authority or powers. Jurisdictional error is at its most obvious where the decision maker purports to act wholly or partly outside the relevant jurisdiction, [44] an example of which is where a statutory provision is misconstrued. [45]
To say that a decision is affected by jurisdictional error is to say no more and no less than that the decision-maker, in making the decision, exceeded the limits of the Authority which was conferred. Non-compliance with an express or implied statutory condition of a conferral of decision-making authority may result in a decision that exceeds the limits of such authority. Whether (and if so in what circumstances) non-compliance brings about that result, is itself a question of statutory interpretation. [46]
A number of the applicable principles of statutory construction were set out by me in Whiteoak v State Parole Authority and Attorney-General of NSW [47] . They include the following.
Firstly, the primary objective of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must therefore be determined by reference to the language of the statute as a whole. [48]
Secondly, the task of statutory construction begins and ends with a consideration of the text, which must be considered in light of its context, its legislative purpose, the relevant legislative history, and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. [49]
Thirdly, context should be considered in the first instance, and not merely when ambiguity is said to arise. [50]
Fourthly, although the legal meaning of a particular provision will ordinarily correspond with its grammatical meaning, the context of the words, the consequences of a literal or grammatical construction, and the purpose of the statute, may require the provision to be read in a way that does not correspond with the literal or grammatical meaning. [51]
Fifthly, a construction that promotes the purpose of the legislation is to be preferred over one which does not. [52]
Finally, it is a circular, and erroneous, approach to statutory construction to construe the words of a definition by reference to the term defined. [53]
Consistent with the principles outlined above, determining the proper construction of s 159B(1)(e) must begin (and end) with a consideration of the statutory text. In my view, there is nothing in the text of s 159B(1)(e) of the Administration Act which supports the proposition that the term "association" is to be construed as incorporating a requirement for a common purpose or interest of the kind articulated by counsel for the plaintiff.
The term "association" is defined in the Macquarie Dictionary as (inter alia): …. The act of associating … the state of being associated … connection or combination …
To "associate with" is defined as: … to keep company with …
Whilst I am mindful of the necessity, in approaching a question of statutory construction, not to make a fortress out of the dictionary, [54] the fact is that a dictionary definition of a term may assist in identifying the range of possible meanings that a word may bear. [55] The definitions set out above provide no support for the proposition that for the purposes of s 159B(1)(e), the relevant association requires the existence of a common purpose or interest of the kind identified by counsel for the plaintiff. One person can keep company with, and thus associate, with another, in the absence of any common purpose or interest at all.
Moreover, acceptance of the construction urged by counsel for the plaintiff would necessitate reading, into the text of s 159B(1)(e), words which are simply not there. I accept that there may be circumstances where, as a matter of clear necessity, words can (and perhaps should) be read into the text in order to determine a question of construction. However, approaching such a question in that way in the absence of a clear necessity to do so has been described as a "wrong thing to do". [56] As Stephen J observed in Marshall v Watson: [57] …… [It] is no [part] of the judicial function to fill gaps disclosed in legislation; as Lord Symonds said in Magor and St Mellons RDC v Newport Corp [1952] AC 189 at 181, 'if, a gap is disclosed, the remedy lies in an amending act' and not in a 'usurpation of the legislative function under the thin disguise of interpretation'. [58]
There is no such clear necessity in the present case because, for the reasons I have set out, the text of s 159B(1)(e), and the reference to "association", are quite clear.
Moreover, the fact that, for the purposes of s 159B(1)(e), the relevant association can be of a personal or business nature, and the fact that it can extend to another "affiliation", supports a broad interpretation. The construction advanced on behalf of the plaintiff would have the effect of narrowing the scope of the provision. The result would be an interpretation which was at odds with the obviously wide context in which the term "association" is used, in circumstances where the Parliament specifically saw fit to widen the terms of s 159B(1)(e) by the amendment in 2018.
Further, and contrary to what was submitted by counsel for the plaintiff, accepting the construction adopted by the Authority would not lead to an absurd outcome (be it of the kind illustrated by the example proffered or otherwise), nor would it lead to an unworkable and impermissibly wide outcome which would have the effect of Division 3A generally, and s 159B(1)(e) in particular, operating as a legislative "dragnet". As counsel for the second defendant pointed out, such propositions tend to ignore the fact that s 159B is in the nature of a gateway provision. If s 159B is engaged, an offender is a terrorism related offender. However, that does not automatically result in the offender being "dragged" into anything, much less being refused parole without any further consideration. The outcome of the engagement of s 159B is that the Authority is then required to go on to consider, by the application of a completely different test, whether it is satisfied of the matters in s 159C(1)(a). That is not an absurd outcome. On the contrary, it is an outcome reflective of a deliberately staged approach to determining the ultimate issue of whether a terrorism related offender should be released on parole. The fact that in the example proffered by counsel for the plaintiff [59] there would be a capacity for the offender in question to be perpetually designated as a terrorism related offender is not to the point. Even in that example it would remain a matter for the Authority, in determining the ultimate question of whether to release the offender, to assess the relevant risk by addressing s 159C(1)(a).
Further, a construction of s 159B(1)(e) which promotes the purpose of the Administration Act is to be preferred to one that does not. [60] The construction advanced on behalf of the plaintiff does not conform to that principle. In Osman [61] , Wilson J addressed the legislative purpose of Division 3A. her Honour observed that its introduction into the Administration Act followed the "event now infamous as the Lindt Café Siege, and the subsequent findings and recommendations of the Coroner relevant to that incident". Her Honour then went on to say: [62] It is clear that, following that event, the legislature intended to more stringently regulate the conduct and oversight of persons deemed to be terrorism offenders. So much is clear from both the legislation and from the content of the speeches in the Legislative Assembly on 21 June 2017, when the Bill was debated. Although the statutory language is clear, and recourse to extrinsic materials is not needed to construe the provision, the second reading speeches confirm the construction.
Her Honour proceeded [63] to quote passages from Hansard in which the Attorney-General made reference to the fact that the enactment of Division 3A reflected two commitments, the second of which arose from the meeting of the Council of Australian Governments to which I referred earlier, [64] and at which there was a unanimous agreement that there should be a presumption against the granting of parole for anyone who had demonstrated support for, or who had links to, terrorist activity. The Attorney-General's use of the phrase "links to terrorist activity" exhibits a clear legislative intention to include, for the purposes of s 159B(1)(e), wide-ranging associations. The construction adopted by the Authority promotes the clear and obvious legislative purpose of Division 3A. The somewhat narrow construction advanced on behalf of the plaintiff does not.
Finally, I am not persuaded that the judgment of Bathurst CJ in Lawrence supports a conclusion that the Authority was in error, and that the construction advanced by the plaintiff should be accepted. The issue for consideration in Lawrence was whether the THRO Act was constitutionally invalid because it purported to authorise this Court to make order for the involuntary detention of a citizen contrary to fundamental principles, or alternatively because it purported to direct this Court as to the manner of the exercise of its jurisdiction by requiring or authorising it to proceed in a manner which did not ensure equality before the law. [65] Those are not the issues before me.
Section 10(1)(c)(ii) of the THRO Act, to which Bathurst CJ referred in his judgment, is in the following terms: 10 Convicted NSW terrorism activity offender (1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender's offence) and any of the following apply in respect of the offender: … (c) the offender: … (ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism (emphasis in original in each case).
In respect of this provision, Bathurst CJ said the following in a passage on which counsel for the plaintiff in the present case specifically relied: [66] …… [S]enior counsel for the appellant submitted that s 10(1)(c)(ii) in conjunction with s 10(1A)(b) could apply irrespective of whether or not the eligible offender knew that the person or organisation with whom he was associating or networking was a person who advocated support for terrorist acts or violent extremism. In my opinion, having regard to the purpose of the statute those provisions would not extend to an association or affiliation with a person, group of persons or organisation which had nothing to do with the advocacy of terrorist acts or violent extremism, at least in circumstances where the eligible offender was not aware of the intention of the person, group of persons or organisation to engage in the activities referred to in s 10(1)(c)(ii). If a connection of that nature is not established, then the applicant for the order would not satisfy the requirement in s 10(1)(c)(ii). Contrary to what senior counsel for the appellant suggested, it is not a question of trusting the judges to be sensible but rather requiring a judicial determination of whether the facts satisfy the requirements of s 10(1)(c)(ii) interpreted in the manner I have indicated.
There are three principal reasons why, in my view, those observations should not be applied in the context of s 159B(1)(e).
Firstly, such observations were made in the context of a challenge to the constitutional validity of the THRO Act. The Court was not being asked to specifically consider the proper construction of s 10(1)(c)(ii) of the THRO Act in the context of particular facts which were either agreed or established by the evidence. It is evident that in those circumstances the Court was not required to engage in, and thus did not have the benefit of full argument in relation to, the question of the proper construction of s 10(1)(c)(ii).
Secondly, the Administration Act on the one hand, and the THRO Act on the other, are directed to completely different issues. Division 3A of the Administration Act is directed to the release on parole of terrorism related offenders. Section 159B determines who is to be regarded as a terrorism related offender. The THRO Act is directed towards providing for the extended supervision and continuing detention of offenders who have served their sentence, and who pose an unacceptable risk of committing serious terrorism offences. [67] The observations of Bathurst CJ were expressly made "having regard to the purpose of the statute", i.e. the THRO Act, not the Administration Act. They must be viewed in that context.
Thirdly, the observations of Bathurst CJ were made in the context of the requirement in s 10(1)(c)(ii) of the THRO Act that an offender knows that the person or organisation with whom he was associating or networking was a person who advocated support for terrorist acts or violent extremism. In the present case the Authority concluded (in the 2020 determination) that the plaintiff "knew about [Talal's] support for ISIS". [68] That conclusion was incorporated into the 2021 determination. [69] The plaintiff's knowledge was not an issue in these proceedings. It was not suggested that in determining that he did have the relevant knowledge, the Authority had fallen into error.
For all of these reasons I am not persuaded that the Plaintiff has established jurisdictional error on the part of the Authority.

ORDERS

Both parties accepted that costs should follow the event. Accordingly, I make the following orders: 1. The proceedings are dismissed. 2. The plaintiff is to pay the costs of the second defendant as agreed or assessed.

Endnotes

Sections 125-161A.
Sections 159A - 159D.
Schedule 2.
Osman v State Parole Authority and the Attorney-General of New South Wales [2020] NSWSC 1392 at [83] per Wilson J.
Osman at [84]-[85].
The amendment was effected by the Community Protection Legislation Amendment Act 2018 (NSW), s 2, Sch 1.3[3] and became effective on 28 November 2018.
Exhibit A Volume 2, Tab 4 at p 8.
Section 159C(1)(a) of the Administration Act.
Exhibit A Volume 2, Tab 3 at [11].
Exhibit A Volume 2, Tab 3 at [12].
Exhibit A Volume 2, Tab 3 at [22] - [23].
Exhibit A Volume 2, Tab 3 at [23].
Exhibit A Volume 2, Tab 3 at [24].
Exhibit A Volume 2, Tab 3 at [24] - [25].
Talal was the plaintiff's cousin, Talal Alameddine, and was referred to in the Authority's reasons as "Mr Alameddine"; "Mohammed" was Mohammed Jeda; "Tarek" was Tarek Jidah (see Authority's reasons Exhibit A Volume 2, Tab 3 at [25]).
Exhibit A Volume 2, Tab 3 at [26].
Exhibit A Volume 2, Tab 3 at [27].
Exhibit A Volume 2, Tab 3 at [28].
Exhibit A Volume 2, Tab 3 at [31].
Exhibit A Volume 2, Tab 3 at [33] - [36].
Exhibit A Volume 2, Tab 3 commencing at [37].
Exhibit A Volume 2, Tab 3 at [40] - [44].
Exhibit A Volume 2, Tab 3 at p 41.
Exhibit A Volume 2, Tab 3 at p 37.
Exhibit A Volume 2, Tab 3 at p 40.
Exhibit A Volume 2, Tab 3 at p 40.
Exhibit A Volume 2, Tab 3 at p 41.
Al-Kutobi was convicted of a conspiracy to commit an act or acts in preparation for, or planning, a terrorist act.
Exhibit A Volume 2, Tab 3 at p 41.
Exhibit A Volume 2, Tab 3 at p 43.
Exhibit A Volume 2, Tab 3 at p 44.
Exhibit A Volume 2, Tab 3 at p 45.
Exhibit A Volume 2, Tab 3 at p 45.
Exhibit A Volume 2, Tab 3 at p 45.
Exhibit A Volume 2, Tab 3 at p 48.
Section 159B(1)(d).
Exhibit A Volume 2, Tab 3 at p 37.
Exhibit A Volume1, Tab 1.
Plaintiff's written submissions at 18.2, Exhibit A Volume 1 at Tab 4.
See [40] above.
(2020) 103 NSWLR 401; [2020] NSWCA 248 at [59].
Minister for Corrections NSW v Elomar (No. 2) [2016] NSWSC 1040 at [4].
Attorney-General of New South Wales v Chiew Seng Liew [2012] NSWSC 1223 at [25].
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at 1794.
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72] - [73].
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 at [29].
[2020] NSWSC 185 at [68] - [73].
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1990] HCA 28 at [69] - [70] per McHugh, Gummow, Kirby and Hayne JJ.
Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22] - [23]; SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20]; [41]; [64].
STZAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34; at [14]; [36].
Certain Lloyds Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56.
Project Blue Sky at [78].
The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 at [419] citing Wacal Developments Pty Limited v Realty Developments Pty Limited (1978) 140 CLR 503; [1978] HCA 30.
Cabell v Markham 148 F 2d 737 at 739; Thiess at [23].
Tal Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [80].
Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey.
(1972), 124 CLR 640; [1972] HCA 27 at [649].
See also The Council of the City of Parramatta v Brickworks Ltd (1972), 128 CLR 1; [1972] HCA 21 at [12] per Gibbs J (as His Honour then was).
At [45] above.
Interpretation Act 1987 (NSW), s 33.
At [82].
At [83].
At [85].
At [9] above.
At [2].
At [59].
Section 3(1) of the THRO Act.
At [28] above.
At [30] above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2022

Community Protection Legislation Amendment Act 2018(NSW)

Terrorism Legislation Amendment (Police Powers and Parole) Act 2017(NSW)

(2020) 103 NSWLR 401

At a glance

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Cases Cited (32)