Dib v Parole Authority of NSW & Anor

Mustafa Dib - Plaintiff PARTIES : Parole Authority of NSW - First Defendant Attorney General of NSW - Second Defendant

COUNSEL : Mr H Dhanji - Plaintiff Mr L Babb SC with Mr D Kell - Defendants

SOLICITORS : Galbally Rolfe Barristers and Solicitors - Plaintiff I V Knight Crown Solicitor - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

No:30038 OF 2009 Mustafa Dibb v Parole Authority of NSW & Anor

JUDGMENT 1 The Plaintiff by Summons seeks relief under section 69 and other sections of the Supreme Court Act against the Parole Authority of NSW (the Authority) and the Attorney General of NSW. The First Defendant submitted to the Court's orders but the Second Defendant, by the Crown Advocate (Mr L Babb SC) who appeared with Mr DT Kell, opposed the orders sought. Mr H Dhanji appeared for the Plaintiff. 2 The Summons raises issues concerning Parts 6 and 8 of the Crimes (Administration of Sentences) Act 1999 (the Act) and in particular the proper interpretation of section 194 within Part 8. 3 Part 6 of the Act applies, inter alia, to offenders such as the Plaintiff, serving a sentence by way of full time detention. It provides for the release of offenders on parole who have served the non parole part of their sentence and also provides for the conditions of parole. Division 2 of Part 6 is applicable to the making of a parole order by the Authority in respect of sentences of more than 3 years for which a non parole period has been set. Section 135 specifies the general duty of the Authority. "135 General duty of Parole Authority

(1) The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest.

(2) In deciding whether or not the release of an offender is appropriate in the public interest, the Parole Authority must have regard to the following matters:

(a) the need to protect the safety of the community,

(b) the need to maintain public confidence in the administration of justice,

(c) the nature and circumstances of the offence to which the offender's sentence relates,

(d) any relevant comments made by the sentencing court,

(f) the likelihood of the offender being able to adapt to normal lawful community life,

(g) the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole,

(h) any report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Probation and Parole Service, as referred to in section 135A,

(i) any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Review Council, the Commissioner or any other authority of the State,

(ia) if the Drug Court has notified the Parole Authority that it has declined to make a compulsory drug treatment order in relation to an offender's sentence on the ground referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998 , the circumstances of that decision to decline to make the order,

(j) such guidelines as are in force under section 185A,

(k) such other matters as the Parole Authority considers relevant.

(3) Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be considered for release on parole. 4 The scheme of Part 6 as relevant to this case is that the Authority must consider whether or not an offender should be released on parole at least 60 days before the offender's parole eligibility date. If it decides to refuse parole, notification must be given to the offender. 5 Section 139 then provides for the circumstances in which there will be a hearing before the Authority. 6 The Notice to the offender that parole is refused must be accompanied "subject to section 194" by the reports and documents intended to be used by the Authority in making its final determination.

7 Part 8 of the Act establishes a Parole Authority which is charged inter alia with determining matters with respect to the granting of parole and the conditions on which parole is granted. 8 Section 194 of the Act is in the following terms: 194 Security of certain information

(1) Nothing in this Act or the regulations requires a person to be provided with a copy of a report or another document (or any part of the report or document) if its provision to the person may, in the opinion of a judicial member:

(a) adversely affect the security, discipline or good order of a correctional centre, or

(c) jeopardise the conduct of any lawful investigation, or (d) prejudice the public interest, or

(e) adversely affect the supervision of any offender who has been released on parole, or

(f) disclose the contents of any offender's medical, psychiatric or psychological report.

2. Subsection (1) does not permit the Minister to be denied access to any document held by the Parole Authority. 9 The Plaintiff, who was born on 16 December 1982, is in custody serving sentences of imprisonment for manslaughter and supplying a prohibited drug. He has been entitled to be considered for release on parole since 26 January 2008. The last of his sentences expires on 25 May 2011. 10 He was not released to parole in 2008 but during that year there were proceedings before the Authority culminating in a hearing on 11 July 2008 at the conclusion of which parole was refused. The Authority's reasons concluded with these paragraphs: "The Authority has given very careful consideration to the submissions and the Authority is grateful to both Mr Terracini and Mr Kell for pointing out so succinctly the actual real issues in this matter. The issues are at the moment that parole is refused because of lack of post release accommodation and the outstanding charges. The Authority, however, has determined, having listened to those submissions, that the nature of the outstanding charges, related as they are to the index offence, indicate that the release of the offender is not appropriate in the public interest, and that's under section 135(1). Secondly, any parole order must have regard to the need to maintain confidence in the administration of justice, and it notes that it would be inappropriate to make such an order while those charges remained undetermined. Accordingly the Authority refused parole for the reason stated, including not appropriate in the public interest, including outstanding charges. It should be considered at the due date, which I believe is fairly soon. That completes the hearing today and we note that, effectively, those are the issues that remain outstanding." 11 The Plaintiff's application for parole was reconsidered by the Authority on 29 January 2009 pursuant to s137A of the Act. Parole was again refused, the only reason given being "risk of re-offending". It is to be inferred that by January 2009 the outstanding charges referred to in the reasons given on 11 July 2008 had been resolved. 12 The Plaintiff applied under s139 for the Authority to reconsider its decision at a review hearing on 5 March 2009. Prior to that hearing, the Authority wrote a letter to the Plaintiff's solicitors which included the following paragraphs: "At the meeting of 29 January 2009, when the decision was made to refuse parole, the Parole Authority relied on information detailed in a submission it received on 21 January 2009. This submission was not available to Mr Dib or his legal representatives as it was considered by the presiding judicial officer to come under the provisions of Section 194 of the Crimes (Administration of Sentences) Act 1999 relating to security of certain information. While we acknowledge that you would have difficulties addressing the issues as you outline in your correspondence, I can only refer you to the relevant legislation. …………………………. I hope this letter clarifies why there is no further information that can be provided to you in regards to the decision to refuse parole to your client for the reason of "risk of re-offending." 13 The review hearing actually occurred on 11 March 2009 when the Plaintiff was represented by counsel and a solicitor. During the course of the hearing, the Chairperson of the Authority indicated that the Authority had received material which the Chairman had endorsed under s194 of the Act and that the Authority would take such material into consideration. Neither the Plaintiff, nor his lawyers, was shown the material or given any information concerning it. 14 It seems fair to conclude that most, if not all, of the material before the Authority, apart from the material kept from the Plaintiff under s194, pointed positively to his release on parole. The matter of the s194 material was raised during the final submissions of Mr Kell, counsel for the Commissioner of Corrective Services. There was this exchange: "Chairperson: We have your submission. Kell: Yes it's a document dated 9 March 2009 and given that you've got those submissions I'll be brief. The Commissioner's contention is that release on parole would not be appropriate and in the public interest at this stage. The reasons are identified in the written submissions document and I'll just refer to some of the evidence today as well. The written submissions also just make reference at the end to the extent there is section 194 material which there often appears to be at times in proceedings before the Authority. Chairperson: I was going to indicate before we retired after your complete submissions that there is section 194 material that has been provided to the Authority. I have endorsed it under section 194 of the Crimes (Administration of Sentences) Act in relation to section 194(1)(a) being likely to adversely affect security discipline or good order of a correctional centre, (b) endangering the person or any other person or (c) jeopardising the conduct of any lawful investigation or (d) prejudice to the public interest and that will be material that we will be obliged to take into consideration." 15 After an adjournment to consider its decision, the Authority through its Chairperson gave reasons for again refusing parole. The reasons included these passages: "The situation is that Mr Dib has been in custody and the initial offence of manslaughter was committed when he was a very young person. He is now 26 years of age and he went into custody on 28 December 2000 and sentences that were imposed on him were effective from 26 May 2001. For the vast majority of his sentence he has been held in maximum security and for a significant period in the high risk management unit at Goulburn. Mr Dib has the distinction I think at this stage of being the only person to graduate from that unit. Following his graduation from that unit, he did the Violent Offender Therapeutic Programme and by a discharge report from Ms Delbaere, the psychologist, he satisfactorily completed that report and it is fairly clear from that report alone that Mr Dib has progressed and has changed perhaps to a significant degree from the young person who committed the quite dreadful crimes that he did as a young man. Dr Allnutt has given very detailed and very helpful evidence and has been able to explain for the benefit of the Authority the fact that the inmate when he was a young man and was suffering from anti social behaviour but he mentioned that he's impressed by the fact that that does not appear to have continued once he was in custody and in fact it's fair to say that while he was in custody his behaviour has been generally described as good. Mr Ryan gave that in evidence and he's also referred to that in various supplementary pre-release reports. Mr Ryan when he gave evidence recommended as he has done previously that he should be released to parole and added clauses which could be added as conditions to a parole order. ………………………………. So the evidence to which I've made reference so far and, having regard to the Authority's responsibilities under section 135(1) and 135(2) of the Crimes (Administration of Sentences) Act, does show that Mr Dib has made some progress. On the other hand the Authority has been provided and in fact on 19 January the Authority was provided with two pages of material which - the judicial officer on that occasion certified as being under section 194(1)(a), (b), (c) and (d) and today prior to the commencement of this hearing this afternoon the Authority received a further 35 pages of material which has now been certified under section 194(1) (a), (b), (c) and (d) of the Crimes Administration of Sentences Act. It might be said that that 35 pages includes material identical to the two pages referred to on 29 January 2009 The Authority very carefully considered that material which was in some detail and that the Authority having regard to the provisions of section 194 forms the view that that material indicated a risk of the inmate not being able to comply completely with a parole order and that it indeed has some significance in regard to the probability of his complying with the safety of the community. The Authority therefore notwithstanding the progress shown by Mr Dib and being well aware that he has only two years and two months before his sentence will expire that the Authority is of the view that the material notwithstanding the progress he has made does not lead it to be satisfied to the required standard under section 135(1) and (2) that it is in the interests of the public that a parole order should be made at this stage and for the purposes of the record I've identified the section 194 material for the reasons for which it's been under that section and that it does impact on section 135(2) if it is accepted. Parole is therefore refused for the reasons stated on 29 January 2009. It's to be considered at the due date and I thank counsel and the witnesses for their time." 16 The Authority is obliged by the general law to conform with rules of natural justice or procedural fairness and to provide reasons for its decision (s193C of the Act Johns v Release on Licence Board (1987) 9 NSWLR 103; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 248; Campbelltown City Council v Vegan (2006) 67 NSWLR 372). Its departure from that obligation in this case was egregious and could only be justified by the most compelling statutory authority. (Annetts v McCann (1990) 170 CLR 596; KGeneration Pty Ltd v Liquor Licensing Court (2009) 83 ALJR 327). Although the statutory provisions under consideration in K Generation were significantly different to those involved in this case, the statement of principle by French CJ is apposite: "47. There is also a well established and conservative principle of interpretation that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. That is to say, there is a presumption against a parliamentary intention to infringe upon such rights and freedoms. That presumption has been described in the United Kingdom as an aspect of a "principle of legality" governing the relationship between parliament, the executive and the courts. It was explained by Lord Hoffmann in R v Secretary of State for the Home Department; Ex parte Simms : "The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."

Gleeson CJ described the presumption as "a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted". He added, "[t]he hypothesis is an aspect of the rule of law".

48. It is an aspect of the rule of law that courts sit in public and that they accord procedural fairness. The importance of these two principles requires a conservative approach to the interpretation of statutes affecting them. " 17 There are many other statements in the cases to like effect. It thus becomes necessary to consider whether the Act, with sufficient clarity, authorised a departure from such a fundamental rule of procedural fairness as the one that requires a party to be appraised of the material taken into account by a Tribunal exercising significant powers of a quasi judicial nature. 18 The first matter to consider is the proper interpretation of s194 of the Act. Mr Dhanji submitted that it should be interpreted strictly. He contended that the reference in the preliminary words to "this Act or the regulations" restricted the operation of the section so that it did not impact, in any event, upon the requirements of the common law. The short answer to that argument is, I think, s139(3)(b) which contains an express obligation to send relevant reports and documents to the offender "subject to section 194". 19 He also submitted that the restriction upon the requirement to provide "a copy of a report etc" meant no more than that. In other words, the section does not purport to restrict the substance of a protected report etc being conveyed orally or by some means other than the provision of a copy. 20 The Crown Advocate, to the contrary referred to the history of s194 to the heading "Security of certain Information" and to the use of the word "access" in ss(2). In submitting, in effect, that an opinion formed by a judicial member under s194 entitled the Authority to refuse to divulge any information about the relevant material he also referred to the Explanatory Note to the relevant Bill in relation to the clause which became s194: "Clause 194 allows an offender to be refused access to information that might prejudice the security, discipline or good order of a correctional centre or endanger the offender or any other person." 21 Of course I can only use extrinsic material such as the section heading and the Explanatory Note in the circumstances set forth in s34 of the Interpretation Act. 22 As the Crown Advocate pointed out s194 of the Act is the successor in very similar terms to s49 of the Sentencing Act 1989. The present Act arises from a report by the Law Reform Commission which recognised the problem now faced:

"The Sentencing Act 1989 (NSW) s49 permits a judicial member of the Board to withhold a copy of a report or document (or any part of it) from a prisoner if, in his or her opinion, provision of the document would adversely affect the security, discipline or good order of a prison or endanger the prisoner or any other person. The prisoner is not entitled to be told whether a certificate has been issued under s49, although the Commission understands that it is the Board's practice to inform the prisoner's legal representative that a s49 certificate exists and to indicate briefly the nature of the subject material. The Commission considered that this power may limit procedural fairness for the offender. Submissions revealed some disquiet about s49 in that it did not comply with the rules of natural justice. Proposals included providing for review of a decision to issue a certificate either by the Ombudsman or a Court, and establishing criteria to restrict further the circumstances in which the certificate could be issued. The utility of a provision in the terms of s49 is obvious, and it was accepted in other submissions as necessary. The Commission recognises that there might be circumstances, such as those outlined in one submission, where the judicial member can be seen to have been over-cautious in withholding information which can legitimately be made available to the prisoner from other sources. However, this does not negate the fact that there will be situations where to reveal information is to place the supplier or author in real danger, or to threaten the administration of justice. The commission does not consider that s49 should be amended. However, as it constitutes an incursion on principles of natural justice, we would expect that it will be used only when absolutely necessary." 23 Regrettably, in this case, what was said to be the "Boards practice" was not, for whatever reason, followed by the Authority. Indeed, the Authority did not even, in general terms, disclose the actual basis upon which the material was thought to fall within s194. Also regrettable is the fact that although it seems that Parliament may have intended that s194 have the meaning contended for by the Crown, the words used are quite specific. Arguably, this was so in order that the Authority might lawfully "indicate briefly the nature of the subject material " as contemplated by the Law Reform Commission Report. To be contrasted with s194 for instance is s76(2) of the Corruption and Crime Commission Act 2003 (WA) which was the subject of Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532: "(2) The Commissioner of Police may identify any information provided to the court for the purposes of the review as confidential if its disclosure might prejudice the operations of the Commissioner of Police, and information so identified is for the court's use only and is not to be disclosed to any other person, whether or not a party to the proceedings, or publicly disclosed in any way." 24 In my opinion, the words used in s194, which I am called upon to interpret, are not ambiguous or obscure, nor does the ordinary meaning which they convey lead to a result that is manifestly absurd or unreasonable. 25 As a consequence, in my view, while the Authority was not obliged to provide a copy of the relevant material to the Plaintiff or his advisors, the Authority remained bound, consistently with s194 to afford the Plaintiff procedural fairness. This may have involved balancing the public interest against the Plaintiff's entitlement to natural justice. It is difficult to conceive that the public interest required the Authority to say absolutely nothing about the nature or quality of the material it proposed to rely on, but, in any event, the Plaintiff was entitled to some reasons for the approach the Authority took 26 Mr Dhanji, in his submissions identified means, short of providing a copy of the material, by which the Authority could seek to achieve procedural fairness. He mentioned: "Disclosure of the material to the plaintiff's legal representatives on the basis of undertakings not to disclose the material to any other person including the plaintiff; Providing an outline of the content or substance of the material; Providing an opportunity to the plaintiff to respond to the matters which were raised by the material through questioning of the plaintiff and the witnesses; Raising with the plaintiff conditions of parole that might be imposed in order to reduce any concerns arising from the material not provided to the plaintiff." 27 The factual situation in Veal v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] 222 ALR 411 bore some similarity to the present facts. The Refugee Review Tribunal (the tribunal) while considering an appeal from a decision refusing the grant of a protection visa received a letter from an identified author making serious allegations about the appellant. The tribunal did not inform the appellant that it had received this letter, which it regarded as confidential, but referred to it in its findings stating that the tribunal had given the letter no weight. 28 In the course of determining that there had been a breach of procedural fairness, the High Court (Gleeson CJ, Gummow, Kirby, Heydon and Hayne JJ) said : "…… But it by no means follows that the Tribunal was bound to give the appellant a copy of the letter, or tell him who had sent it, or even tell him that the information had been sent in written form. To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations. How the allegations had been given to the Tribunal was not important. No doubt the appellant's response to the allegations would then have had to be considered by the Tribunal in light of the fact that the credibility of the person who made the allegations could not be tested. And that may well leave the Tribunal in a position where it could not decide whether the allegations made had substance. But the procedure outlined would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa as the "problem of confidentiality". Although it may be accepted that the Tribunal sought to act fairly, the procedure it in fact adopted was not fair.

29 Of course, I am not deciding whether or not the Plaintiff should be granted parole. That is entirely a matter for the Authority. I am persuaded, however, that he was denied procedural fairness thus enlivening s69 of the Supreme Court Act and that the Authority's decision should be quashed. The application for parole will need to be reconsidered.

1. I quash the decision of the Authority dated 11 March 2009. 2. I return the matter to the Authority to be dealt with according to law. 3. I order the Attorney General to pay the Plaintiff's costs

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.