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1. This is an application for judicial review of a decision of the Sentence Administration Board (the Board) on 16 October 2025 to reject the plaintiff’s special parole application.

Grounds of review

2. The originating application contains the following ground of review: 1. That the decision of the Sentence Administration Board involved an error of law by misconstruing the relevant statute, being sections 120(2) and 129(4) of the Crimes (Sentencing Administration) Act 2005. In particular: a. By adopting a ‘2-step’ approach to the consideration of the ‘exceptional circumstances’ test in special parole applications, and b. By exercising a purported discretion not to grant parole, notwithstanding the test having been met.

3. The first of these errors is conceded and, in my view, is established. The second of these errors is not conceded and, in my view, is not established. Because the first error is established, the decision of the Board must be set aside and an order made directing the Board to remake its decision according to law.

Basic facts

4. The plaintiff is a sentenced prisoner. He will become eligible for parole on 9 January 2027. He applied for an early grant of parole (special parole). In summary, the basis for his application was as follows.

5. On 17 February 2025, he witnessed the death of his cellmate and cousin, Howard Hall. This included being involved in attempts to resuscitate him. It was the first time the plaintiff had experienced death firsthand. It had a profound effect upon his mental health and wellbeing.

6. Shortly thereafter, he was placed in the cell where his uncle, Steven Freeman, had died in 2017.

7. The plaintiff was subsequently returned to the cell where his cousin died and remained there for two months.

8. Psychological evidence was available which indicated that the plaintiff had been exposed to intergenerational trauma throughout his life and suffered from Post-Traumatic Stress Disorder associated with his cousin’s death, which he had not suffered prior to his cousin’s death.

9. The Board conducted hearings for the purposes of the plaintiff’s parole application on 11 September 2025 and 16 October 2025. The Board refused the application on 16 October 2025 and provided written reasons on 7 November 2025.

The statutory provisions

10. The statutory provisions governing applications for parole are found within Ch 7 of the Crimes (Sentence Administration) Act 2005 (ACT). Most relevant for the purposes of the present proceedings are the following provisions. The provisions upon which the submissions of the plaintiff and the second defendant focused were ss 120(2) and 129(4). Chapter 7 Parole Part 7.1 Parole—general 117 Definitions—ch 7 In this Act: … application, for parole, means an ordinary parole application or a special parole application. … ordinary parole application—see section 121 (3). parole eligibility date, for an offender—see section 118. parole obligations, of an offender, means the offender’s obligations under section 136. parole order, other than in part 7.6 (Interstate transfer of parole orders), means a parole order under— (a) section 126 (Parole applications—decision after inquiry without hearing); or (b) section 129 (Parole applications—decision after hearing). parole release date, for an offender—see section 132 (3) (a). special parole application—see section 121 (3). 118 Meaning of parole eligibility date (1) For this Act, an offender’s parole eligibility date is— (a) the date the offender’s nonparole period ends; or (b) if the offender is subject to more than 1 sentence for which a nonparole period has been set—the day the last of the nonparole periods ends. Note Nonparole period is defined in the dict. (2) However, if the offender is also serving a sentence of imprisonment for which a nonparole period has not been set (the excluded sentence) and the nonparole period for the other sentence has ended, the offender’s parole eligibility date is the day the excluded sentence ends. … Part 7.2 Making of parole orders 119 Application—pt 7.2 This part applies to an offender under a sentence of imprisonment for which a nonparole period has been set. 120 Criteria for making parole orders (1) The board may make a parole order for an offender only if it considers that parole is appropriate for the offender, having regard to the principle that the public interest is of primary importance. Note Subsection (1) does not apply in relation to special parole applications (see s 126 and s 129). (2) In deciding whether to make a parole order for an offender, the board must consider the following matters: (a) any relevant recommendation, observation and comment made by the sentencing court; (b) the offender’s antecedents; (c) any submission made, and concern expressed, to the board by a victim of the offender; (d) the likely effect of the offender being paroled on any victim of the offender, and on the victim’s family, and, in particular, any concern, of which the board is aware, expressed by or for the victim, or the victim’s family, about the need for protection from violence or harassment by the offender; (e) any report required by regulation in relation to the granting of parole to the offender; (f) any other report prepared by or for the Territory in relation to the granting of parole to the offender; (g) the offender’s conduct while serving the offender’s sentence of imprisonment; (h) the offender’s participation in activities while serving the sentence of imprisonment; (i) the likelihood that, if released on parole, the offender will commit further offences; (j) the likelihood that, if released on parole, the offender will comply with any condition to which the parole order would be subject; (k) whether parole is likely to assist the offender to adjust to lawful community life; (l) any special circumstances in relation to the application; (m) anything else prescribed by regulation. (3) Subsection (2) does not limit the matters the board may consider. 121 Applications for parole (1) An offender may apply to the board for parole no earlier than 6 months before the offender’s parole eligibility date. (2) However, if the offender believes there are exceptional circumstances, the offender may apply to the board for parole any time before the offender’s parole eligibility date. (3) An application under subsection (1) is an ordinary parole application and an application under subsection (2) is a special parole application. (4) A special parole application must include a written submission from the offender about the exceptional circumstances in support of the application. (5) An application for parole must be in writing. (6) An application for parole may be made even though— (a) another parole application by the offender has previously been refused; or (b) another parole order for the offender has previously been cancelled. (7) Despite subsections (2) and (6), a regulation may limit the making of special parole applications. Note The power to make regulations includes power to make different provisions in relation to different matters or different classes of matters, and provisions that apply differently by reference to stated exceptions or factors (see Legislation Act, s 48). 122 Board may reject parole application without inquiry (1) The board must, without holding an inquiry, reject a special parole application that does not include the written submission mentioned in section 121 (4). (2) The board may, without holding an inquiry, reject an application for parole by an offender if— (a) satisfied the application is frivolous, vexatious or misconceived; or (b) the board refused to make a parole order for the offender within the 12-month period before the application was made. Example of when board might be satisfied application is frivolous, vexatious or misconceived The board previously rejected an application because the offender’s proposed accommodation after release was unsuitable. The offender’s later application proposes the same unsuitable accommodation without including new information or new reasons. Examples of when board might not reject application within 12-month period 1 an exceptional circumstances application was refused less than 12 months before the offender’s parole eligibility date 2 the offender’s later application includes new information or new reasons for the application (3) The board must give written notice of the rejection of an application under this section to— (a) the offender; and (b) the director-general. (4) The notice must include a statement of the board’s reasons for the rejection. Note For what must be included in a statement of reasons, see the Legislation Act, s 179. (5) To remove any doubt, section 120 (Criteria for making parole orders) and section 123 do not apply to the rejection of an application for parole under this section. … 125 Parole applications—inquiry without hearing (1) The board must conduct an inquiry, without holding a hearing, into a parole application by an offender (unless the application is rejected under section 122). (2) If the application is an ordinary parole application, and the application does not include a written submission from the offender about the offender’s parole, the board must— (a) by written notice, ask the offender to make a written submission to the board for the inquiry within 14 days after the day the offender receives the notice; and (b) after the 14-day period, hold the inquiry whether or not the offender makes the submission requested. Note A special parole application must be rejected if it does not include a written submission about the exceptional circumstances (see s 122 (1)). (3) The board must give written notice of the inquiry to— (a) the director-general; and (b) the director of public prosecutions. (4) The notice must include invitations for the offender and the director-general to make submissions to the board by a stated date for the inquiry. (5) The inquiry must consider whether, on the documents currently before the board, the offender should be released on parole. 126 Parole applications—decision after inquiry without hearing (1) This section applies if the board has conducted an inquiry for section 125 into an application for parole by an offender. (2) The board must— (a) if the board considers that the documents currently before it justify paroling the offender—make a written order (a parole order) granting the offender parole on the date stated in the order; or (b) if the board considers that the documents currently before it do not justify paroling the offender— (i) set a time for a hearing by the board about the offender’s parole; and (ii) give notice under section 127 of the hearing. (3) If the application is an ordinary parole application, the date stated in a parole order for the offender must be— (a) the offender’s parole eligibility date; or (b) if the order is made on or after the offender’s parole eligibility date—a date within a reasonable time after the order is made. (4) If the application is a special parole application— (a) section 120 (1) (Criteria for making parole orders) does not apply to the board’s consideration of the application; and (b) the board may make a parole order for the offender only if satisfied there are exceptional circumstances for paroling the offender before the offender’s parole eligibility date. … 129 Parole applications—decision after hearing (1) This section applies if the board conducts a hearing into an application for parole by an offender. (2) The board must— (a) make a written order (a parole order) granting the offender parole on the date stated in the order; or (b) refuse to make a parole order for the offender. (3) If the application is an ordinary parole application, the date stated in a parole order for the offender must be— (a) the offender’s parole eligibility date; or (b) if the order is made on or after the offender’s parole eligibility date—a date within a reasonable time after the order is made. (4) If the application is a special parole application— (a) section 120 (1) (Criteria for making parole orders) does not apply to the board’s consideration of the application; and (b) the board may make a parole order for the offender only if satisfied there are exceptional circumstances for paroling the offender before the offender’s parole eligibility date. (5) The board must make its decision under this section within 60 days after the day the board begins its hearing of the application. 130 Parole orders may include conditions (1) This section applies if the board makes a parole order for an offender. (2) The board may impose any condition (an additional condition) it considers appropriate on the offender’s parole order. (3) For subsection (2), the board must have regard to any condition recommended under the Crimes (Sentencing) Act 2005, section 67 by the sentencing court for the offender’s sentence to which the parole relates. … The operation of the statutory provisions

11. There are two types of parole application, an ordinary parole application and a special parole application: s 121. Parole applications of either sort may be determined: (a) without an inquiry pursuant to s 122; (b) without a hearing pursuant to s 126; or (c) after a hearing pursuant to s 129.

12. The power to determine applications pursuant to these provisions is subject to the statute, which defines the circumstances in which they may be applied.

13. For present purposes, it is necessary to focus upon the power to determine parole applications after a hearing. The power to make an order granting parole (a parole order) in those circumstances is provided by s 129(2). It provides that the Board “must” either make a written parole order or refuse to make a parole order for an offender.

14. In relation to an ordinary parole application, the criteria for making a parole order are set out in s 120. Section 120(1) operates as a qualification on the power to make a parole order. The form of that qualification indicates the scope of the power to grant parole and thereby defines the issue to which the considerations in ss 120(2) and (3) must be addressed. In other words, by providing a qualification upon the power to grant parole, the content of which is defined by an evaluative judgment of the Board about the statutory requirement in s 120(1), that subsection thereby determines the ultimate issue to which the other mandatory (s 120(2)) or discretionary (s 120(3)) considerations must be directed. The question is: does the Board consider that “parole is appropriate for the offender, having regard to the principle that the public interest is of primary importance”?

15. Where the application is a special parole application, s 120(1) is expressly disapplied: s 129(4)(a). Instead, the qualification upon the statutory power to grant parole which defines the content of the evaluative judgment to be made by the Board is that set out in s 129(4)(b). That defines the ultimate issue to be whether the Board is “satisfied there are exceptional circumstances for paroling the offender before the offender’s parole eligibility date”.

16. In this formulation, a critical word is “for”, which provides the connection between the concept of “exceptional circumstances” and the power to grant parole. It could either be interpreted as meaning “that support” or interpreted as meaning “that justify”. When s 129(4)(b) as a whole is considered in its overall statutory context, the reference to “for” must be understood as meaning “that justifies” rather than meaning “that supports”. In other words, the evaluative judgment that s 129(4)(b) requires the Board to make is whether there are exceptional circumstances that justify paroling an offender before the offender’s parole eligibility date. That is the substantive decision required of the Board. It must do so in a context in which the ordinary rule as to the timing of the grant of parole established by the order of the sentencing court will not apply and where the statute has disapplied the usual criterion in s 120(1) which defines the scope of the evaluative judgment.

17. The same general scheme applies in relation to special parole applications which are determined without a hearing, the relevant provisions being s 126(2), which empowers the Board to grant parole or alternatively provide a hearing, and s 126(4), which disapplies s 120(1) and substitutes the test in s 126(4)(b). One difference is that the word “justify” has been used in s 126(2), whereas that word is not used in s 129(2) or s 129(4)(b). However, having regard to the statutory context, in order to give s 129 a reasonable operation consistent with the other provisions of Ch 7, s 129(4)(b) must be interpreted as if “for” meant “that justify”. The conceded error

18. The approach taken by the Board involved a two-step rather than one-step test. This is reflected in the Board’s written reasons in which it stated that the approach was: “firstly to consider whether exceptional circumstances for paroling Mr Carberry existed and secondly, to consider the required matters”. The approach is also reflected in the Board’s brief oral reasons given when it refused the application, the summary of its written reasons in the notice given to the plaintiff indicating that parole had not been granted, the summary of its reasons at the commencement of its written reasons and the structure of those reasons. Each of those treated the question of exceptional circumstances as a separate threshold question and the considerations required by s 120(2) of the Crimes (Sentence Administration) Act as matters to be subsequently taken into account. That two-step process is inconsistent with the statute because the statute does not treat exceptional circumstances as a threshold issue after which a decision upon parole is made. That is made clear by the structure of the statute as explained earlier. In particular, the two-step process is inconsistent with the manner in which the statute provides, in relation to ordinary parole applications and special parole applications respectively, a single statutory qualification in either s 120(1) or s 129(4)(b) which defines the scope of the task of the Board.

Declaration not appropriate

19. In his written submissions provided in advance of the hearing, counsel for the plaintiff submitted that the court “has the power to engage with the substantive question of Mr Carberry’s special parole application, namely whether he has exceptional circumstances for early parole”. He submitted that this was derived from the power of the court to declare the rights of the parties or to direct any of the parties “to do … anything to do justice between the parties”: s 17(1) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act). The plaintiff therefore submitted that the court should declare that he has exceptional circumstances for early parole or, alternatively, direct the Board to grant his application for parole.

20. Although the plaintiff did not give advance notice of any change of position, at the hearing of the proceedings, he indicated that this aspect of his written submissions was not pressed. That abandonment, while late, was clearly correct. The submissions made by the plaintiff were inconsistent with the statutory scheme. They invited the court to determine for itself whether there are exceptional circumstances. The plaintiff relied upon all of the factual material that was placed before the Board when inviting the court to determine whether exceptional circumstances existed.

21. The terms of s 129(4)(b) of the Crimes (Sentence Administration) Act make it clear that the criterion governing the exercise of the power to grant parole is that the Board is “satisfied there are exceptional circumstances for paroling the offender”. It is the satisfaction of the Board which is critical. Exceptional circumstances are not treated by the statute as being an objective fact. Rather, they are a matter which either exists or does not exist depending upon the satisfaction of the statutory decision-maker — the Board. Having regard to the fact that the statute operates based upon the Board’s state of satisfaction, it would be completely inconsistent with the statute for the court to substitute its own evaluative decision as to whether the statutory criterion is satisfied. It is certainly not one of the limited categories of case in which, notwithstanding the evaluative nature of the decision, there could only be one right answer. It is not open to the Supreme Court to substitute its own evaluative judgment as to the appropriateness of a grant of parole to the plaintiff because that would go significantly beyond the legitimate scope of judicial review under the ADJR Act.

Relief

22. The relief sought in the originating application was, relevantly, an order setting aside the decision and an order directing the Board to remake the decision according to law. The granting of such relief was uncontroversial. However, the plaintiff, having abandoned the proposition that the court should make a declaration or direct the granting of parole, invited the court to elaborate in its reasons on how the Board should approach the application of the factors in s 120(2) of the Crimes (Sentence Administration) Act in determining the issue of exceptional circumstances, including how it should take into account various human rights stated in the Human Rights Act 2004 (ACT).

23. This submission was made in the context of the application made by the ACT Human Rights Commissioner (the Commissioner) for leave to intervene in the proceedings. Senior counsel for the Commissioner submitted that it would be of great benefit for the court to set out what the law requires the Board to take into account when considering a variety of human rights for the purposes of s 129 of the Crimes (Sentence Administration) Act. The Commissioner also contemplated making submissions as to the interpretation of s 129 of the Crimes (Sentence Administration) Act pursuant to s 30 of the Human Rights Act.

24. The issues upon which the court was invited to express an opinion were issues that were not raised in the originating application as a ground for setting aside the decision of the Board and were not raised by the parties in their written submissions.

25. In my view, it would be inappropriate and go beyond the proper function of a court exercising a statutory supervisory jurisdiction to provide, in effect, an advisory opinion ranging across matters which it is not necessary to determine in order to decide the case before the court. To roam beyond the boundaries of matters that are necessary to determine and express opinions on questions of law that have not been the subject of engagement by the parties is inconsistent with the parsimonious exercise of judicial power and would tend to bring the administration of justice into disrepute. There is no doubt that the plaintiff and the second defendant, both of whom are entitled to appear before the Board, will be in a position to make submissions to the Board about any and all matters of law that they think should be brought to the Board’s attention prior to it making a further decision on the plaintiff’s application. The Director of Public Prosecutions is also entitled to appear and has the capacity to make submissions to the Board. There is the potential for these interested parties to put the submissions of the Commissioner before the Board. If, ultimately, despite proper assistance being provided by the interested parties, the Board fails to make a decision in accordance with the relevant legal requirements, there remains the potential for judicial review in this court. Any such judicial review can be undertaken by reference to the actual decision made and the particular requirements of the law said to have been infringed.

Application by the Human Rights Commissioner for leave to intervene

26. At the hearing of the proceedings, senior counsel appeared on behalf of the Commissioner and applied for leave to intervene pursuant to s 36 of the Human Rights Act.

27. As indicated earlier, the matters upon which the Commissioner sought to make submissions were whether the Board had given proper consideration to a variety of rights identified in the Human Rights Act (ss 8, 9, 10(1), 11(1), 12, 18(1), 18(2), 19 and 27(2)) and the interpretation of s 129 of the Crimes (Sentence Administration) Act pursuant to s 30 of the Human Rights Act. Senior counsel for the Commissioner anticipated that her intervention would be limited to the provision of written submissions and indicated that she would seek three weeks in order to provide those submissions, with the other parties being given an opportunity to respond to them.

28. The Commissioner was only given notice of the proceedings by the plaintiff at 3:26pm two days before the final hearing. That appears to coincide with the point at which the plaintiff chose to abandon his claim that the court itself should make a declaration as to the existence of exceptional circumstances or, even more radically, direct the Board to grant parole. It is obviously unsatisfactory that a party give notice of proceedings in which it hopes the Commissioner will participate at such a late stage of the proceedings and in a manner which is likely to disrupt the orderly determination of those proceedings.

29. The position of the plaintiff was to support the Commissioner’s application for leave to intervene. The second defendant did not oppose the application.

30. The issue of the content of the human rights required to be considered by the Board under s 40B(1)(b) of the Human Rights Act if the decision were to be made again was not an issue raised by the originating application or the written submissions filed on behalf of the parties. The Human Rights Act only received a passing reference in those written submissions. It was only in the context of the invitation by the plaintiff to include in the court’s reasons a wide ranging discussion of matters not put in issue for the purposes of the judicial review application in order to provide guidance to the Board in the future exercise of its powers that the matters sought to be raised by the Commissioner became relevant. So far as the possible significance of s 30 of the Human Rights Act to the interpretation of s 129 of the Crimes (Sentence Administration) Act is concerned, I consider that it is unlikely that the submissions of the Commissioner would provide relevant assistance going beyond that already provided by the parties with a direct interest in the outcome. It must be recognised that the terms of s 30 of the Human Rights Act are such that any influence of human rights under that Act is subordinated to the purpose of the provision: see DPP v Alexander (a pseudonym) [2024] ACTSC 161; 387 FLR 226 at [66]-[67].

31. I do not consider that it is appropriate to grant leave to the Commissioner to intervene in the proceedings for the following reasons. (a) First, the issues sought to be raised do not arise from the claims in the judicial review proceedings and are not necessary to consider in order to determine those proceedings. (b) Second, for the reasons given earlier, it would be inappropriate to provide judicial advice by way of obiter dicta as to the future exercise of the powers of the Board. (c) Third, the effect of permitting intervention and submissions would be to delay the determination of the proceedings. Although that is the fault of the plaintiff for giving late notice, rather than the Commissioner, and no party opposed the delay, the delay in determination occurs in a context where the submissions would, for the first and second reasons, be unlikely to be of utility and where the court’s ability to finally determine this and other proceedings would be impeded. Orders

32. The application by the Commissioner will be refused. The decision under review must be set aside.

33. The plaintiff did not seek costs and, in those circumstances, the second defendant did not seek to be heard on costs. There will be no order as to costs.

34. The orders of the Court are: (1) The application for leave to intervene filed by the ACT Human Rights Commissioner on 27 May 2026 is dismissed. (2) The decision of the Sentence Administration Board made on 16 October 2025 in relation to the plaintiff is set aside and the Sentence Administration Board is directed to remake its decision according to law. (3) There is no order as to the costs of the proceedings.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: