Frankcom v Commissioner of Corrective Services

S Prince SC and J Lucy (Plaintiff) M O'Brien (Defendant)

Legal Aid NSW (Plaintiff) Crown Solicitor NSW (Defendant) File Number(s): 2021/00340009-1

Introduction

1. On 25 March 2020, in the early stages of the COVID-19 pandemic, the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) (the Emergency Measures Act) came into operation.
2. The Emergency Measures Act amended the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act) by introducing Pt 15, including s 276 which conferred on the Commissioner of Corrective Services a power to make an order releasing an inmate to early parole, in the context of the COVID-19 pandemic, if the inmate belonged to one of the classes of inmate identified in the section and the other statutory requirements under s 276 were met.
3. The Commissioner issued instructions and put in place procedures for use in determining whether inmates should be released to early parole under s 276 of the CAS Act.
4. The plaintiff, Mr Frankcom, an inmate in a correctional centre, sought release to early parole under s 276 of the CAS Act. The Commissioner did not make a release order in the plaintiff's case or in any other case.
5. By Mr Frankcom's further amended summons filed on 22 February 2022, he now seeks to challenge the Commissioner's decisions and approach in relation to s 276.

The plaintiff's further amended summons and grounds of review

Orders sought

1. In his further amended summons, the plaintiff sought orders as follows: 1. Orders in the nature of certiorari quashing three decisions of the Commissioner "made on an unknown date or dates (but between 25 March 2020 and 6 October 2021" that: 1. he would not consider making determinations on whether to grant parole under s 276 based on the risk posed to individual inmates in their circumstances arising from the COVID-19 pandemic - this was defined in par 9(a) of the further amended summons as the "Systems Decision"; 2. he would only consider making determinations on whether to grant parole under s 276 if "satisfied it is essential to maintain the good order and security of correctional centres during the COVID-19 pandemic - this was defined in par 9(b) of the further amended summons as the "Alternate Systems Decision"; and 3. he would not take any submissions in favour of the exercise of the power for any person identified as belonging to a class of inmates within the meaning of s 276(1)(a) of the CAS Act and cl 330 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (CAS Reg) - this was defined in par 9(c) of the further amended summons as the "Submissions Decision". 1. An order in the nature of mandamus requiring the Commissioner to apply s 276 according to law; and 2. Declarations that: 1. the Commissioner misconstrued s 276 "in requiring that a particular general threshold of risk be present before any application for parole will be considered, rather than by assessing the question of risk in the circumstances of the individual prisoner as required by the section"; 2. the Commissioner misconstrued s 276 "in determining to not consider making individual determinations on whether to grant parole under the section unless he is 'satisfied it is essential to maintain the good order and security of correctional centres during the COVID-19 pandemic'"; 3. the Commissioner misconstrued s 276 "in determining that it authorised him to refuse to take any submissions in favour of the exercise of the power for any person identified as belonging to a class of inmates" specified in s 276(1)(a); 4. the Systems Decision, the Alternative Systems Decision and/or the Submissions Decision are invalid; 5. the Commissioner's decision on 5 October 2021 declining to consider granting parole to the plaintiff under s 276 is invalid.

Grounds of review

1. The plaintiff's grounds of review were premised on the fact that the plaintiff belonged to one of the classes referred to in s 276(1)(a) and that the Commissioner refused to consider the application of s 276(1) to the plaintiff's circumstances. In substance, the plaintiff relied upon three grounds: 1. Jurisdictional error and error of law in that the Commissioner misconstrued s 276 in the following respects: 1. misconstruing the section "in requiring that a particular general threshold of risk be present before any application for parole will be considered, rather than by assessing the question of risk in the circumstances of the individual prisoner"; 2. misconstruing the section "as authorising the Defendant to limit his consideration to making determinations on whether to grant parole under section 276 … if he is 'satisfied it is essential to maintain the good order and security of correctional centres during the COVID 19 pandemic'"; 3. misconstruing the section "in determining that it authorised him to refuse to take any submissions in favour of the exercise of the power from any person identified as belonging to a[n eligible] class of inmates". 1. Unreasonableness in that, as a result of one or more of the errors in (1) (a), (b) and (c), the Systems Decision, the Alternative Systems Decision and/or the Submissions Decision were decisions that no reasonable decision maker could have made. 2. Jurisdictional error by failing to exercise his jurisdiction in that, having commenced the task of considering whether to exercise the power in s 276 in relation to all inmates, or all eligible inmates, the Commissioner failed to complete the task by conducting or procuring an assessment of the plaintiff for the purposes of s 276(1).

The basis on which the matter proceeded

1. It is relevant to note that there was no challenge to the plaintiff's standing to bring judicial review proceedings. Similarly, it was not in issue that the decisions identified by the plaintiff as the Systems Decision, the Alternative Systems Decision and the Submissions Decision, as well as the Rejection Decision identified in written submissions, were reviewable decisions for the purposes of whether relief as sought in the further amended summons should be granted. Accordingly, it is unnecessary to consider those matters further.
2. In order to deal with each of the three grounds of review relied on by the plaintiff, it is necessary to set out the relevant factual circumstances and the evidentiary basis relied upon by the plaintiff to establish each of the challenged decisions.

Relevant factual circumstances

1. The evidence relied upon in this matter was largely documentary and it was agreed between the parties that tabs 21 and 22 (pp 140 to 148) of Ex RMS-2 in the proceedings were not to be included in the exhibit and those pages have been removed. There was also no dispute between the parties as to what relevantly occurred in the present case, which is described the paragraphs which follow.
2. In March 2020, the potential magnitude of the impact of the COVID-19 pandemic started to become apparent.
3. On 25 March 2020, the Emergency Measures Act, by which s 276 was inserted into the CAS Act, received the Royal Assent and came into force. Section 276 empowered the Commissioner to release certain inmates in correctional premises to early parole. The relevant text of s 276 is set out later in this judgment.
4. On 3 April 2020, cl 330 of the CAS Reg commenced when it was published on the NSW Legislation website: cl 2 of the Crimes (Administration of Sentences) Amendment (COVID-19) Regulation 2020. This clause established, among other things, the classes of inmates in respect of whom a release order under s 276 could be made. Once again, the relevant text of cl 330 is set out below.
5. On 17 April 2020, the Commissioner issued a Commissioner's instruction under s 235B of the CAS Act (the 17 April 2020 instruction), which was binding on Correctional Services NSW staff. That instruction included: "INSTRUCTION As part of the COVID-19 Legislation Amendment (Emergency Measures) Bill, amendments to the Crimes (Administration of Sentences) Act 1999 (CAS Act) allow for the release of an inmate to parole by way of a Commissioner's order. Having regard to s. 276 of the CAS Act, the documents attached to this Instruction set policy and procedures relating to: • Identifying eligible offenders • Assessment of eligible offenders • Establishment of Assessment Panels to consider and recommend eligible offenders • Decision making and approval process for the making of a Commissioner's order The authority provided under the amendment to make an order releasing an inmate to parole, is for a prescribed period only."
6. The documents attached to the 17 April 2020 instruction included one headed "Procedures for releasing offenders to parole under the COVID-19 emergency provisions" (the 2020 Procedures) and a number of proforma that were designed for use if the procedures referred in the 2020 Procedures were implemented. Nothing is said to turn on the contents of those proformas.

Relevant statutory provisions

1. The relevant statutory provisions which must be considered in order to determine the plaintiff's grounds of review are set out below.
2. As noted above, the Emergency Measures Act amended the CAS Act by inserting a new Pt 15 headed "Special provisions for COVID-19 pandemic". That Part contains three sections, ss 274, 275 and 276.
3. Section 274 provides two definitions including a definition of "prescribed period" referred to in ss 275 and 276. By virtue of cl 329A of the CAS Reg, the "prescribed period" now ends at the beginning of 26 March 2022.
4. Section 275 deals with visits to correctional premises during the COVID-19 pandemic and includes the following provisions: "275 Visits to correctional premises during COVID-19 pandemic (1) During the prescribed period, the Commissioner may prohibit or otherwise restrict any person, or any class of persons, from entering or visiting, or visiting a particular person within, correctional premises. (2) The Commissioner may take action under this section - (a) only if satisfied that it is reasonably necessary to protect the health of an inmate, any other person or the public from the public health risk posed by the COVID-19 pandemic, and (b) despite any other provision of this Act or the regulations or any other Act or law. …".
5. The third section is s 276, which confers on the Commissioner a power to release an inmate to early parole. Section 276 of the CAS Act relevantly provides as follows: "276 Commissioner may grant parole during COVID-19 pandemic (1) Despite any other provision of this Act or the regulations or any other Act or law, the Commissioner may, during the prescribed period, make an order (a Commissioner's order) releasing an inmate on parole if - (a) the inmate belongs to a class of inmates prescribed by the regulations, and (b) the Commissioner is satisfied that releasing the inmate on parole is reasonably necessary because of the risk to public health or to the good order and security of correctional premises arising from the COVID-19 pandemic. (2) A class of inmates may be prescribed according to any of the following - (a) the offence committed by an inmate, (b) the period remaining before the expiry of an inmate's sentence or non-parole period, (c) an inmate's age, (d) an inmate's health or vulnerability, (e) any other matter. (3) However, the Commissioner may not make a Commissioner's order in respect of any of the following inmates - (a) an inmate serving a sentence of imprisonment for any of the following offences - (i) murder, (ii) a serious sex offence or an offence of a sexual nature (within the meaning of the Crimes (High Risk Offenders) Act 2006), (iii) a terrorism offence (within the meaning of Division 3A of Part 6 of this Act), (b) an inmate serving a sentence of imprisonment for life, (c) a serious offender, (d) an inmate kept in custody in relation to an offence against a law of the Commonwealth, (e) a Commonwealth post sentence terrorism inmate, (f) a NSW post sentence inmate. (4) Before making a Commissioner's order in respect of an inmate, the Commissioner must consider the following - (a) the risks to community safety of releasing the inmate, (b) the impact of the release of the inmate on any victim whose name is recorded in the Victims Register in relation to the inmate, (c) in the case of an inmate who has previously been convicted of a domestic violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) - the protection of the victim of the domestic violence offence and any person with whom the inmate is likely to reside if released, (d) the availability of suitable accommodation for the inmate if released, (e) any other matter the Commissioner considers relevant. … [Subsections (5), (6), (7), (8) and (9) deal with parole conditions and revocation and other matters concerning the management of inmates released on parole under the section.] ... (10) The regulations may make further provision for and with respect to - (a) the functions of the Commissioner under this section and the application of this Act in respect of an inmate released on parole under a Commissioner's order during the prescribed period, and (b) the application of this section and this Act to an inmate released on parole under a Commissioner's order who remains on parole at the end of the prescribed period. (11) Nothing in this section requires the Commissioner to consider making a Commissioner's order in respect of an inmate who belongs to a class of inmates prescribed by the regulations."

First ground - construction of s 276

1. The first ground of review involves contentions that the Commissioner has misconstrued s 276 of the CAS Act in three respects identified in pars 13, 14 and 15 of the further amended summons.
2. The first erroneous construction was said to be inherent in the Commissioner's statement in the 2020 Procedures that: "[t]he provisions may or may not be used, depending on the operational needs of CSNSW to manage COVID-19 related issues". The statement was repeated in the 2021 Procedures. This statement was submitted to amount to requiring there to be a particular general threshold of risk present before any application for parole would be considered, rather than assessing the question of risk in the circumstances of the individual inmate as s 276 required. One consequence of this misconstruction was contended to be that the Commissioner made the Systems Decision, which was thus liable to be set aside.
3. The second erroneous construction that the plaintiff relied upon was identified as the Commissioner in effect construing s 276 as authorising him to limit his consideration of whether to grant parole under s 276 to circumstances where he is satisfied it is essential to maintain the good order and security of correctional centres during the COVID-19 pandemic. The conclusion that he had so misconstrued the section was said to be based on the statement in the Commissioner's letter dated 28 April 2020 to Ms Simpson concerning Mr Leonard that: "I may enact this provision if I am satisfied it is essential to maintain the good order and security of correctional centres during the COVID-19 pandemic". The "Alternative Systems Decision" was contended to be based on this misconstruction and should be set aside.
4. The final erroneous construction of s 276 by the Commissioner was submitted to be that he construed the section as authorising him to refuse to take any submissions in favour of the exercise of the power from any eligible inmates. This was said to be evidenced by the statements in the letters of 28 April 2020 and 15 June 2020 that the Commissioner would not be taking or seeking applications for parole under s 276 from inmates, legal practitioners or family members, and the effective rejection of the plaintiff's application by the letter of 5 October 2021. This misconstruction was submitted to have given rise to the Submissions Decision which was as a result liable to be set aside.

Applicable principles of construction

1. The applicable principles in relation to statutory construction are well established and were not in dispute in the present case. It is sufficient to note the following: 1. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is to be had to its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 (SZTAL) at [14]; Keybridge Capital Ltd v WAM Active Ltd (2021) 105 NSWLR 278; [2021] NSWCA 203 at [76]. 2. Context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense, including the statutory and historical context, and the purpose of the legislation: SZTAL at [14]; Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 at [29]-[30]; 393 ALR 485. 3. The natural and ordinary meaning of words in a statue are important to the process of construction, but if the natural or ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected: SZTAL at [14].
2. In addition, s 33 of the Interpretation Act 1987 (NSW) provides: "In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object."

Context and purpose of s 276, Pt 15 and the Emergency Measures Act

1. Before turning to the text of s 276, relevant parts of which have been set out above, the context, both statutory and historical, and the purposes of the Emergency Measures Act and the section, especially as revealed in the Second Reading Speech, should be considered.
2. As noted above, the Emergency Measures Act was enacted towards the beginning of the COVID-19 pandemic when the future course and severity of the pandemic was uncertain. The long title of the Emergency Measures Act was: "An Act to amend a number of Acts to implement emergency measures as a result of the COVID-19 pandemic". The Acts amended included the Constitution Act 1902 (NSW), the Criminal Procedure Act 1986 (NSW) as well as the CAS Act. In large measure, the amendments permitted changes to how the legislative, executive and judicial branches of government might operate, as the public health emergency resulting from the spread of the COVID-19 virus evolved.
3. The immediate context of s 276 includes the two other sections of Pt 15, "Special provisions for COVID-19 pandemic", inserted into the CAS Act in March 2020 by the Emergency Measures Act. The relevant terms of ss 274 and 275 have been set out above.
4. The Second Reading Speech in relation to the COVID-19 Legislation Amendment (Emergency Measures) Bill provides a useful insight into the historical context in which it was enacted and the purposes or objects of the Emergency Measures Act in general and of s 276 in particular. In his speech, the Attorney General stated: [1] "The COVID-19 Legislation Amendment (Emergency Measures) Bill seeks to prepare New South Wales services and institutions for the impacts of COVID-19 in line with critical health advice. Broadly, the bill seeks to do three things: first, to take immediate steps to address existing barriers in our laws that may get in the way of social distancing; second, to empower our agencies and institutions with the capacity to continue functioning; and third, to build in flexibility so that the Government is able to act further as the public health emergency evolves. Some of the amendments in the bill are extraordinary, which is why they generally have sunset clauses of between six months to 12 months. … … The bill seeks to provide us with powers we hope we will never have to use but the evolution of the pandemic may require it. This includes amendments to the Crimes (Administration of Sentences) Act 1999 to give the Commissioner of Corrective Services the flexibility to release certain inmates early on parole in response to COVID-19. This flexibility is necessary to give the commissioner the capacity to protect the health of inmates and correctional services staff and ensure the good order and security of correctional premises through the emergency. The Government contemplates that if the power were used it would be in relation to lower risk or vulnerable inmates to be prioritised for potential release, such as older inmates nearing completion of their sentence. The bill creates a power for the Government to make regulations to determine a class of inmates for potential conditional release and allows the Commissioner of Corrective Services to grant parole to those inmates. This will be possible for eligible inmates, irrespective of whether their non-parole period has expired. However, certain classes of inmates will be automatically disqualified from being considered for parole. The commissioner will not have the power to release an inmate serving a life sentence, a sentence of imprisonment for murder, a serious sex offence or a terrorism offence. I will shortly be providing a Government amendment that will list further exclusions. While the commissioner already has the power to release inmates into the community on temporary leave permits, the parole framework is being used as it is designed to manage the transition from Correctional Services to the community and includes supervision of inmates by Community Corrections and management by the State Parole Authority. The conditional release of an inmate will be subject to the standard conditions of parole, which are that the parolee must be of good behaviour, must not commit any offence and must adapt to normal community life, and any other conditions the commissioner considers appropriate. There is no limit to the conditions the commissioner can impose, which could include home detention and electronic monitoring. These are broad and extraordinary powers, but necessary to respond to the grave risks posed by the COVID-19 pandemic and to control physical contact in places of detention. … The bill will commence on assent. The bill will provide for transitional arrangements that will enable action taken under these extraordinary powers to remain valid post the sunset period. …".

The construction of s 276

1. The introductory words of s 276(1) confirm the extraordinary nature of the Commissioner's power under the section. Those words establish that the section applies "[d]espite any other provision of this Act or the regulations or any other Act or law". Further, the terms in which the power is conferred, "the Commissioner may, during the prescribed period", mean that the power is discretionary and temporally limited, indicating that it is not intended to be a generally available or long term alternative to parole under Pt 6 of the CAS Act or leave arrangements under Pt 2 Div 3 of that Act. As already observed, the "prescribed period" expires on 26 March 2022.
2. Under s 276(1), the power to make a Commissioner's order releasing an eligible inmate to early parole is enlivened if two conditions are satisfied: 1. the inmate belongs to a class of inmates prescribed by the regulations: s 276(1)(a); and 2. the Commissioner is satisfied that releasing the inmate on parole is "reasonably necessary because of the risk to public health or to the good order and security of correctional premises arising from the COVID-19 pandemic": s 276(1)(b).

The first condition - s 276(1)(a)

1. As to the first condition, the classes of inmates which may be prescribed by the regulations for the purposes of s 276(1)(a) are dealt with in s 276(2), which sets out a list of criteria by reference to which a class of inmates may be prescribed. Subsection (2) includes pars (b) and (d) which make the length of an inmate sentence or non-parole period yet to be served and an inmate's health or vulnerability relevant criteria. This is reflected in cl 330(1) of the CAS Reg which specifies that the relevant classes of inmate are: "(a) an inmate whose health is at higher risk during the COVID-19 pandemic because of an existing medical condition or vulnerability, other than an excluded inmate"; and, "(b) an inmate whose earliest possible release date is within 12 months, other than an excluded inmate".
2. In light of the classes defined in cll 330(1)(a) and (b) of the CAS Reg, the first condition in s 276(1)(a) can be seen as taking into account not only the individual health needs and vulnerability of the inmate whose release may be considered, but also the length of the remaining portion of the inmate's sentence or non-parole period as well as the factors that make an inmate an "excluded inmate", as referred to in cl 330(1)(b) and defined in cl 330(3). This reflects the intention expressed in the Second Reading Speech "that if the power were used it would be in relation to lower risk or vulnerable inmates to be prioritised for potential release, such as older inmates nearing completion of their sentence". Viewed in context and having regard to the purpose for which the classes in cll 330(1) and (3) are defined, however, the first condition in s 276(1)(a) is not principally or substantially directed towards ensuring that the health needs of individual inmates because of the COVID-19 pandemic are addressed by way of early release to parole under the section. Rather, the first condition is directed to limiting the inmates who may be the subject of a Commissioner's order to those whose release is most appropriate when it might be sought to reduce the number of inmates in correctional premises to achieve required social distancing and to control physical contact in those premises.
3. It is to be noted that it was not in dispute that the plaintiff belongs to a class of inmates prescribed by cl 330 of the CAS Reg and thus the condition in s 276(1)(a) is satisfied in his case.

The second condition - s 276(1)(b)

1. The second condition involves the Commissioner being satisfied that the release of the inmate on parole: 1. is "reasonably necessary", 2. "because of the risk to public health or to the good order and security of correctional premises arising from the COVID-19 pandemic".
2. In the context of the exercise of a power that is conditioned, at least in part, on the assessment of "risk" arising from the potential future development of a pandemic, "necessary", especially when qualified by the word "reasonably", does not mean "absolutely or essentially necessary" but instead means "appropriate and adapted": Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 at [39] (Gleeson CJ); Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [25]; 393 ALR 664 (Beech-Jones CJ at CL).
3. Consequently, the Commissioner is required to be satisfied that the release of the inmate is reasonably appropriate and adapted because of "the risk to public health or to the good order and security of correctional premises arising from the COVID-19 pandemic". The words quoted in the preceding sentence present difficulties of construction.
4. In this regard, the plaintiff's case depended to a significant extent on it being accepted that the words "the risk to public health or to the good order and security of correctional premises arising from the COVID-19 pandemic" in s 276(1)(b) should be construed as requiring the Commissioner "to ask himself whether the release of a particular inmate is necessary because of a risk arising from the COVID-19 pandemic". This enquiry was said to call for consideration of "whether release of that inmate on parole is reasonably necessary when considering the risk posed by COVID-19 (the public health risk) to the inmate's health". It was also submitted that s 276(1)(a) and (b) evinced an intention that the provision was to be used to release inmates in poor health or who were otherwise vulnerable and that the risk to public health referred to in s 276(1)(b) included the risk to a particular inmate's health. This approach was said to be supported by the reference in the Second Reading Speech to "the flexibility … necessary to give the commissioner the capacity to protect the health of inmates". On that basis, it was submitted in effect that, since one purpose of the provision was to give the Commissioner the flexibility to release inmates to protect their individual health, the Commissioner was required to consider the protection of the health of inmates on an individual basis when deciding whether to make a Commissioner's order. In further support, the plaintiff referred to Adamson J's comments in Larter v Hazzard (No 2) [2021] NSWSC 1451 at [26]: "The concept, "public health" includes not only the health of the whole population but also, in some circumstances, the management of individuals. Where the health concern is a highly transmissible disease, such as caused by infection from the virus, the management of individuals is inextricably linked with the health of the population since, as recent experience has shown, a single case can rapidly lead to widespread infection throughout the community."

Section 276(1) summary

1. In summary, s 276(1) is to be construed as providing that the power to make a Commissioner's order in respect of an inmate is enlivened if the inmate belongs to a class of inmates prescribed by the regulations and the Commissioner is satisfied that releasing the inmate on parole is reasonably necessary because of: 1. the risk to the health of the whole population of one or more correctional premises arising from the COVID-19 pandemic; or 2. the risk to the good order and security of one or more correctional premises arising from the COVID-19 pandemic.

Further limitations on the power in s 276(1)

1. Even if the Commissioner's power to make an order is enlivened under s 276(1), however, there are further limitations on the exercise of that power by virtue of: 1. s 276(3) of the CAS Act, which prohibits the Commissioner from making an order under s 276(1) in respect of the types of inmates listed in pars (a) to (f) of that subsection (it was common ground that the plaintiff did not fall within any of the categories of inmates in s 276(3) of the CAS Act); and 2. s 276(10)(a) of the CAS Act and cl 330(2) of the CAS Reg, the latter of which provides that a Commissioner's order may be made "only if [the Commissioner is] satisfied that [the inmate's release] does not pose an unacceptable risk to community safety".

Relevant considerations if the s 276 power is to be exercised

1. If and when the Commissioner comes to consider exercising the power to make a Commissioner's order, s 276(4) provides a list of five mandatory considerations including: "any other matter the Commissioner considers relevant". The other four considerations are not related to public health or the health of any inmate and do not have any particular relevance in the present case.

The Commissioner is not required to consider releasing an inmate

1. Finally and importantly for the present case, s 276(11) establishes that nothing in the section requires the Commissioner to consider making a Commissioner's order in respect of an inmate who belongs to a class of inmates prescribed for the purposes of s 276(1)(a).
2. Thus, even if an inmate is one whose health is at higher risk during the COVID-19 pandemic because of an existing medical condition or vulnerability and who is not an excluded inmate, the Commissioner is not required to consider releasing the inmate under s 276.

The first misconstruction

1. The first misconstruction relied upon by the plaintiff was submitted to arise out of the Commissioner's statements in the 2020 Procedures and the 2021 Procedures that s 276 "may or may not be used, depending on the operational needs of CSNSW to manage COVID-19 related issues". This was said to impose, in effect, an impermissible additional condition on the Commissioner's exercise of the power under s 276 beyond the conditions specified in the section.
2. In my view, this misunderstands the Commissioner's statements in the 2020 and 2021 Procedures and the way in which s 276 operates.
3. Section 276(11) makes explicit that the Commissioner is not required to consider making a Commissioner's order in respect of an inmate even if the inmate belongs to one of the classes eligible for release under such an order. Consequently, the Commissioner cannot be compelled to exercise the power in s 276(1) in respect of any such inmate. This reflects the legislative intent that the power is not to be a power to be exercised immediately and generally, but rather is a power which the Commissioner can use but cannot be required to use in any particular circumstances.
4. The Second Reading Speech establishes that the power in s 276 was conferred on the Commissioner so that CSNSW, an organ of Government, would be prepared so as to be able to act flexibly as the public health emergency evolved. As a result, for example, if the effect of the COVID-19 pandemic developed in a way which threatened the continued effective functioning and operations of CSNSW, the Commissioner would have a power that could be exercised to reduce promptly the number of inmates in correctional premises in order to maintain social distancing and to control physical contact in those premises, to the extent required given the development of the pandemic.
5. In light of the text of s 276 and the fact that the Commissioner is not required to exercise the power in the case of any eligible inmate, its context including the circumstances in which the section was inserted into the CAS Act, the general purposes and objects of the Emergency Measures Act by which the section was inserted, the particular purposes sought to be achieved by the section, and the extraordinary nature and temporally limited scope of the Commissioner's power, I am of the view that, on the proper construction of s 276: 1. the Commissioner cannot be compelled to exercise the power to make Commissioner's orders conferred on him by the section; 2. as the conferee of the power, the Commissioner can decide if and when to start considering whether any Commissioner's orders should be made; and 3. the Commissioner is not required to decide whether or not to start considering whether any Commissioner's orders should be made, in response to an application from an inmate or in any other particular circumstances.

The second misconstruction

1. The second misconstruction was said to be construing s 276 as authorising the Commissioner to limit his consideration of whether to grant parole under s 276 to circumstances where he is satisfied it is essential to maintain the good order and security of correctional centres during the COVID 19 pandemic. This was based on the statement in the Commissioner's letter of 28 April 2020 concerning Mr Leonard that "I may enact this provision if I am satisfied it is essential to maintain the good order and security of correctional centres during the COVID-19 pandemic". It was submitted in effect that this misconstruction gave rise to the "Alternative Systems Decision".
2. It is well established that a court exercising the power of judicial review should not be concerned with looseness of language and should not construe the reasons of an administrative decision maker "minutely and finely with an eye keenly attuned to error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6. When this approach is adopted and on a fair reading of the Commissioner's letter of 28 April 2020, it does not appear to me that the Commissioner was purporting to give a comprehensive description of the operation of s 276 of the CAS Act in the words relied upon by the plaintiff.
3. The context of the words to which the plaintiff drew attention includes the following: "As you are aware, recent amendments to Section 276 of the Crimes (Administration of Sentences) Act 1999 provides me the temporary power to release certain categories of inmates to early parole. I may enact this provision if I am satisfied it is essential to maintain the good order and security of correctional centres during the COVID-19 pandemic. In doing so, I will not be taking applications from inmates, legal practitioners or family members. To ensure we are prepared in the event this power is enacted, early assessments of inmates who meet the legislative and policy criteria has commenced. This does not mean any inmate assessed as eligible will be released. In fact, no inmates may be released at all. Your client, Mr Leonard, may be considered for early assessment along with all other inmates that meet the legislative and policy criteria."
4. Although the use of the words "enact" and "enacted" are not strictly appropriate, it is clear that they refer to the Commissioner's decision whether to start considering making Commissioner's orders and do not refer to the consideration of whether such an order should be made in any particular case. Just as the operational needs of CSNSW would be a reasonable basis for making the antecedent decision to start considering whether any Commissioner's orders should be made, as explained above in relation to the plaintiff's first misconstruction submission, what is essential for maintaining the good order and security of corrections centres during the COVID-19 pandemic is also a permissible and reasonable basis on which to decide to start considering whether any Commissioner's orders should be made. The good order and security of correctional premises, like the operational needs of CSNSW, are reasonably connected with starting to consider using the power under s 276(1) in the sense that there is a rational link between those considerations and the nature and purpose of the power. In addition, those considerations are consistent with, and supported by, the subject matter, scope and purpose of the CAS Act as a whole and the Emergency Measures Act.

The third misconstruction

1. The plaintiff's third misconstruction ground was to the effect that the Commissioner construed s 276 as authorising him to refuse to take any submissions in favour of the exercise of the power from eligible inmates. This was based on statements in the letters of 28 April 2020 and 15 June 2020 that he would not be taking or seeking applications for parole under s 276 from inmates, legal practitioners or family members and on the effective rejection of the plaintiff's application by the letter of 5 October 2021. On this basis, it was also submitted by the plaintiff that the Submissions Decision should be set aside.
2. The statement in the letter of 28 April 2020 that the Commissioner "will not be taking applications from inmates, legal practitioners or family members" is, in my view, an indication of what the Commissioner intended to do in the circumstances as anticipated at that time. The statement in the letter of 15 June 2020 that "the Commissioner is not seeking individual applications from inmates, their families or legal representatives" states what the Commissioner is not doing at that time but it might imply that the Commissioner was not intending to seek such applications in the future if circumstances continued as they then were. The letter of 5 October 2021 written on behalf of the Acting Commissioner relating to the plaintiff does not state that the Commissioner is not taking or seeking individual applications but does make clear that "[a]t this time, it has not been determined necessary … to make orders … to release eligible inmates to parole" and, implicitly, applications or submissions in respect of individual inmates would serve no purpose at that time.
3. Nothing in s 276 expressly requires the Commissioner to take or seek submissions from inmates as to whether they are eligible for release to early parole under the section or whether a Commissioner's order should be made in respect of them if they are eligible. Section 276(11) expressly states "[n]othing in this section requires the Commissioner to consider making a Commissioner's order in respect of an [eligible] inmate".
4. Nonetheless, it is well settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of the common law principle that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual, unless clearly displaced by the particular statutory scheme: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [75]. Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 (Plaintiff S10), at [99]-[100], provides an example of a statutory scheme where that presumption is displaced.

The 5 October 2021 letter and the decision declining to consider the plaintiff's application

1. The decisions of which the plaintiff seeks review include, in addition to the Systems Decision, the Alternative Systems Decision and the Submissions Decision, the decision said to be recorded in the 5 October 2021 letter by which Ms Simpson was informed that the Acting Commissioner effectively declined to consider granting parole to the plaintiff under s 276: see par 9(d) of the further amended summons. (This decision was defined as the Rejection Decision at par 38 of the plaintiff's written submissions.) It is convenient to deal with that decision at this point.
2. The plaintiff submitted that on the proper construction of s 276(1), a duty was imposed on the Commissioner to consider an application or request for parole under that provision by any inmate or an eligible inmate. This was said to be supported by the matters required by s 276(4) to be considered by the Commissioner before a Commissioner's order is made. The fact that these matters included ones personal to the particular inmate was submitted to indicate a Parliamentary intention that the Commissioner is to consider and determine what, if any, action should be taken in respect of any request for early parole under s 276(1). The Plaintiff relied upon the High Court's decision in Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1; [1976] HCA 20 to support this submission. In that case, Mason J said at 18: "It is not to the point to say that the regulation makes no provision for the making of applications and still less that it does not explicitly impose on the Minister a duty to determine applications. The existence of the discretion attracts the principle of construction enunciated by Kitto J. It is implicit in what has been said that the existence of the discretion implies the existence of a duty to determine any application that is made."
3. The principle of construction enunciated by Kitto J referred to his Honour's judgment in The Queen v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; [1965] HCA 27 is as follows: "It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself: Sharp v. Wakefield (1891) AC 173, at p 179. The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed. Even then a court does not direct that the discretion be exercised in a particular manner not expressly required by law, but confines itself to commanding the officer by writ of mandamus to perform his duty by exercising the discretion according to law."

Conclusion on first ground of review

1. The plaintiff has not established that the Commissioner misconstrued s 276 of the CAS Act in any of the ways relied upon by the plaintiff in relation to the first ground of review. Each of the Systems Decision, the Alternative Systems Decision, the Submissions Decision and the Rejection Decision was not based upon an erroneous construction of s 276 nor was any of them liable to be set aside on the bases submitted by the plaintiff. Similarly, since the plaintiff has not established any of the misconstructions which it contended justified the granting of the declaratory relief sought or an order in the nature of mandamus, those orders should not be made.

Second ground of review - unreasonableness

1. As formulated in par 16 of the further amended summons, the second ground of review, unreasonableness, was dependent on one or more of the errors of construction of s 276 identified in the first ground of review being made out so that the relevant decision was one that no reasonable decision maker could have made.
2. Since none of the errors of construction relied upon by plaintiff under the first ground of review has been made out, the foundation for the plaintiff's case that the decisions were unreasonable as formulated in the second ground of review has not been established. Consequently, I would not uphold the second ground of review.

Third ground of review - failure to exercise jurisdiction

1. The third ground of review, set out in par 17 of the further amended summons, was, in substance, that the Commissioner failed to exercise his jurisdiction because, having commenced the task of considering whether to exercise the power in s 276 in relation to all inmates, or all eligible inmates, he did not complete the task by conducting or procuring an assessment of, and recommendation in respect of, the plaintiff for the purposes of s 276(1).
2. In par 37 of the plaintiff's written submissions, this ground was elaborated upon utilising the concepts of: 1. the "procedural decision" described as "the decision to consider exercising the power to grant an inmate or inmates parole"; and 2. the "substantive decision" being "the decision whether to grant an inmate parole".

Submissions

1. It was submitted that "[o]nce the Commissioner has made a procedural decision, he is required to consider the exercise of the power [to make a Commissioner's order] in accordance with law. That is, the Commissioner and any public servants assisting him are required to undertake the process of consideration in a procedurally fair and legally reasonable manner, and without misdirecting themselves as to the construction of the provision". In support, the plaintiff relied on statements of principle in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 (Plaintiff M61) and Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 (SZSSJ) concerning provisions of the Migration Act 1958 (Cth).
2. In substance, the plaintiff submitted that the Commissioner made the "procedural decision" and embarked upon considering whether to exercise the power under s 276(1) in respect of every inmate when he issued the 17 April 2020 instruction with the attached 2020 Procedures and proforma documents, thereby setting in place a process for assessing and recommending inmates for release to early parole.
3. It was also submitted that the terms of the Acting Assistant Commissioner's 21 April 2020 memorandum evidenced the commencement of preparing to use the power to make Commissioner's orders from 22 April 2020, including the production of list of eligible offenders, conducting checks to assess suitability and other matters referred to in the memorandum. It was submitted that statements in the memorandum such as "[c]urrently, there has not been a decision to use the provisions" and "from 22 April 2020, Community Corrections will start preparing to use the provisions, even though they may not eventually be required" were not determinative of whether the Commissioner had, in fact, embarked on considering whether to exercise the power under s 276. These processes undertaken by CSNSW to assist the Commissioner's consideration of the possible exercise of the power in s 276(1) were submitted to derive their character from the Commissioner's having made the procedural decision.
4. In his written submissions at pars 49 and 50 the plaintiff argued in effect that the Commissioner's putting in place a procedure for each eligible offender to be classified into one of three groups and assessed for the purposes of the exercise of the power under s 276 was comparable to the Departmental officers in SZSSJ undertaking international treaty obligations assessments in respect of applicants in order to assist the Minister in considering whether to exercise powers under the Migration Act. Since it was held by the High Court in SZSSJ that such an assessment was properly characterised as a process undertaken by a Departmental officer for the purposes of relevant provisions of the Migration Act, it was submitted that the same reasoning should be applied to the circumstances of the present case to conclude that the assessment of inmates under the 2020 Procedures was a process undertaken by CSNSW staff for the purposes of s 276(1) of the CAS Act. Thus it was contended that, by issuing the 17 April 2020 instruction and the 2020 Procedures, the Commissioner had made the procedural decision and consequently the actions of the Commissioner and his staff had a statutory basis. It was then submitted that, their actions having that statutory basis, the Commissioner and the staff assisting him are required to undertake the process of assessment and to do so in accordance with law.

Consideration

1. The designations "procedural decision" and "substantive decision" were used in the High Court's judgment in SZSSJ at [53] to describe the two types of decisions involved in the provisions of the Migration Act 1958 (Cth) identified in Plaintiff M61 at [70]. In SZSSJ, the relevant provisions included: 1. s 48B(1) and (2) of the Migration Act which empowered the Minister personally to determine in relation to "a particular non-citizen" that s 48A did not apply to prevent an application for a protection visa by the non-citizen and s 48B(6) which provided that the Minister did not have a duty to consider whether to exercise the power under s 48B(1) whether requested to do so or not; and 2. s 195A(2) of the Migration Act which empowered the Minister personally to grant a visa of a particular class (whether or not the person has applied for the visa) to a person detained under s 189" and s 195A(4) which provided that the Minister did not have a duty to consider whether to exercise the power under s 195A(2) whether requested to do so or not.
2. In relation to these provisions, French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ identified three relevant principles in SZSSJ, at [53]-[55]: "First, each [of ss 48B and 195A] confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness. Second, processes undertaken by the Department to assist in the Minister's consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister's consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister's instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness. Third, the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or to lift a bar in a particular case or class of cases is a question of fact."

Conclusion on third ground of review

1. For these reasons, I am of the view that the plaintiff's third ground of review has not been made out.

Conclusion and orders

1. The plaintiff has not been successful in establishing any of the grounds of review relied upon. As a result, none of the orders sought should be made.
2. In the Commissioner's written submissions at par 76, it was indicated in effect that if the Commissioner were successful, he would not be seeking costs and it would be appropriate to make no order as to costs. The plaintiff made no submissions to the contrary.
3. For all the reasons set out above, the orders of the Court are: 1. The plaintiff's further amended summons is dismissed. 2. There is no order as to costs to the intent that each party should pay his own costs.

Endnote

1. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 March 2020 at 2230-2232. 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: 07 March 2022