Khawaja v Attorney-General [2022] FCA 334 | Case summary

Federal Court of Australia|2022-04-04|Before: Thawley J

The applicant's response to the second CPO letter 72 The applicant's solicitor responded on 29 September 2021. The letter referred to the "extensive written submissions [provided in the first Federal Court proceedings] on the question of jurisdictional error that went beyond the question of objective seriousness and addressed the mental health of Mr Khawaja". The letter continued (emphasis added): 3. … It was the position taken in the Federal Court proceedings … and remains our position now that Mr Khawaja's mental health is so intrinsic to the consideration of the purposes of parole in s 19AKA of the Crimes Act (Cth) that the Attorney-General cannot legally make a decision on parole without giving proper, meaningful and realistic consideration to Mr Khawaja's mental illness. 4. In the submissions filed in the Federal Court, our position was that the decision had it not been quashed would have been set aside as being legally unreasonable. This was on the basis that once consideration was given to Mr Khawaja's mental illness (being an illness that was undiagnosed up until many months after Mr Khawaja was incarcerated and which is something that Mr Khawaja is now being treated for), the concerns outlined in the previous notice were very clearly address[ed] and understandable. … 5. The submissions in our view effectively address the concerns raised in your notice. We attach those submissions to the present letter and respectfully request that they be considered to this end. Without seeking to set out those submissions exhaustively, we note the following in relation to the matters you have raised: a. in relation to the matters raised under the heading "nature and circumstances of the offence" and, relatedly under the heading "non-compliance with the terms of the conditional release", the sentencing judge made clear that Mr Khawaja's illness was an effective cause of his offending (including the bail offences). He has now taken significant steps to come to terms with his offending, to understand it and to progress treatment for his mental issues. He is a very different person now to the one who committed the offences he was sentenced for; b. in relation to the matters raised under the heading "minimisation of your offending", we contend that the fact that Mr Khawaja's actions are seen through his mental illness is the approach taken by the Sentencing Judge and both expert psychiatrists who gave evidence at trial. This is not something that Mr Khawaja uses to minimise his offending but rather something he needs to understand his offending so that he can address its causes and rehabilitate himself. He accepts entirely his wrongdoing and his expressions of remorse and contrition were accepted by both the Crown at the sentencing hearing and the sentencing judge (see paragraph 170), both of whom had the opportunity to see Mr Khawaja give evidence. The same remorse and contrition is palpable in his letter to the AttorneyGeneral provided on the previous occasion. Dealing with his mental illness is the most effective way for Mr Khawaja to understand the causes of the offending and to put in place the processes he needs to address his illness and ensure he does not reoffend; c. in relation to the matters raised under the heading "behaviour in custody and criminal history", Mr Khawaja made clear in his letter what he understood the incidents to refer to and requested that further details be provided to the extent that understanding was not correct. What Mr Khawaja understood were the incidents were explained and the important context was pointed out that this was at a time when he was suffering from a mental illness that was at that stage undiagnosed. He had not fully come to terms with his offending and had not commenced treatment for his illness; … 6. In our respectful submission, each of the goals of parole (protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community) are all overwhelmingly served by releasing Mr Khawaja on parole and allowing him the best opportunity to further his treatment in ways he cannot do in custody and to reintegrate into the community. 7 Assuming the Attorney-General is minded to refuse parole, we respectfully request that you clarify the following matters to enable us a full opportunity to address any concerns that may persist: a. We have now provided a great deal of material addressing Mr Khawaja's mental illness and the relationship between that illness and his offending, rehabilitation and the other purposes of parole. That includes Mr Khawaja's letter and our submissions in relation to the previous concerns notice, reports from two different experts, the sentencing judge and our submissions in the Federal Court. To the extent that Mr Khawaja's mental illness or its relationship to any of the matters set out above, we would appreciate the opportunity to address those concerns. We appreciate that the matter has a level of complexity so would welcome the opportunity to be heard further. … c. It was indicated that our client "exhibits manipulative and coercive behaviour" and there are reports of "poor behaviour" in prison. To the extent we have not adequately addressed these issues, please identify, with specificity, the circumstances of that behaviour and when it occurred... Presumably, CSNSW would have all the information at hand when preparing the report recommending release and submit there is no recent information post judgment demonstrating poor behaviour. We would be very willing to address any specific incidents that the Attorney-General may have concerns about. We are confident that there have been no recent matters we understand would give the Attorney-General any concern. 73 It is to be recalled that the CPO had not provided a copy of the report of CSNSW to Mr Khawaja or his solicitors with either the first or second CPO letter with the result that Mr Khawaja did not know if it contained something he had not already addressed. As is made clear by the correspondence on his behalf, and his handwritten letter, Mr Khawaja thought (but could not be sure) that he had addressed the issues which had been raised in the first CPO letter. Except for one, these occurred before his diagnosis in July 2020. As to the only event after that time, the event in August 2020, he had provided an explanation. 74 On 15 November 2021, the applicant's solicitor wrote again, noting that no response had been received to the solicitor's response to the second CPO letter and that no decision had been received. It noted that the original application for release on parole had been submitted on 26 May 2021. The letter continued: … As you are aware, that application was never considered according to law. As a result our client has been without a decision on his application for parole for over four months. This is entirely unsatisfactory and contrary to s 19AL(l) of the Crimes Act 1914 (Cth), which provides: 19AL Release on parole - making of parole order (1) The Attorney-General must, before the end of a non-parole period fixed for one or more federal sentences imposed on a person, either make, or refused to make, an order directing that the person be released from prison on parole (a parole order). The clear legislative intention is that decisions on parole must be made before the end of the non-parole period. Not only has this not been done; it should have been done months ago. As it currently stands, our client's liberty is being fundamentally infringed as he remains without a lawful decision on his parole. It is not clear to us why the Commonwealth appears to be taking such a cavalier approach to our client's detention. As you are aware, one of the primary reasons why it is in the public interest that our client be released on parole is so that he can access appropriate treatment for his mental health. The Commonwealth's continued refusal to make a decision has the effect of delaying him appropriate treatment. Our client's parole has been ventilated in the course of lengthy submissions in the Federal Court and your office has been provided with lengthy and comprehensive submissions as to why parole is appropriate in our client's case. We have addressed your concerns and indicated that, to the extent we have not adequately addressed you concerns, we could provide any further information or respond to any further requests or questions. No further information or response has been sought from us. We can only infer that the Attorney-General accepts that our client has satisfied the concerns raised in your letter. We note further that our client has now been incarcerated for what has almost been a further 6 months. Our client's case for parole is even stronger now than it was in June.

The departmental submission and analysis 75 On 22 November 2021, the Attorney-General was provided with a departmental submission containing recommendations and to which a number of documents were attached, including "Attachment C - Analysis" (departmental analysis). 76 The departmental submission recommended that the Attorney-General grant parole, but noted that it would be "open" for the Attorney-General not to do so. The recommendation stated that the department considered that "there could be longer term negative consequences for community safety if Mr Khawaja's release on parole is not granted". This can be seen in the following passages: Key Issues: On 5 November 202l, the Downing Centre District Court sentenced Mr Khawaja to a term of 4 years and 6 months imprisonment, commencing on 27 December 2018, for attempting to obstruct, pervert or defeat the course of justice, contrary to subsection 43(1) of the Crimes Act 1914 (Cth), and dishonestly intending to influence a Commonwealth public official, contrary to subsection 135.1(7) of the Criminal Code Act 1995 (Cth). On 22 June 2021 you decided to refuse to release Mr Khawaja on parole at that time. On 22 July 2021, Mr Khawaja commenced proceedings in the Federal Court of Australia seeking judicial review of your decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and section 39B of the Judiciary Act 1903 (Cth). Mr Khawaja alleged, amongst other things, that the Attorney-General had committed a material error by incorrectly attributing adverse comments in the parole decision to the sentencing court, when they were in fact made by the prosecution. The department sought Counsel advice, which confirmed that the error existed and recommended that the Attorney-General remake the decision. On 25 August 2021, the Federal Court ordered that your decision on 22 June 2021 be quashed and that you be required to remake the decision according to law. The department recommends that you grant parole to Mr Khawaja at this time, as there are no further rehabilitative benefits for him in custody, he has good family support and robust post-release plans in place, and Corrective Services NSW considered that his risks can be appropriately managed in the community. Corrective Services NSW recommends Mr Khawaja's release on parole. Full analysis of Mr Khawaja's parole consideration is at Attachment C. The error identified in the previous decision has been corrected. The department considers that if you are inclined to refuse to grant Mr Khawaja parole at this time, it would be open for you to do so on the basis of the nature and circumstances of his offending, comments by the sentencing judge, his breach of bail and manipulative and coercive behaviour while in custody, and prioritising the short term community safety benefit achieved by keeping Mr Khawaja in prison. Key Risks and Mitigation: The department considers there could be longer term negative consequences for community safety if Mr Khawaja's release on parole is not granted at this time, when he has robust post-release plans in place, plans to further his rehabilitation in the community and there are no further rehabilitative benefits for him in custody. This is discussed further in the departmental analysis at Attachment C. 77 The departmental analysis was a 22 page document which accompanied the two page departmental submission. It confirmed that each of the parole purposes in s 19AKA was served by granting parole. It stated, however, and consistently with the departmental submission, that it was "open" to the Attorney-General to conclude that short term risk was mitigated by refusing parole. The departmental analysis, consistently with the departmental submission, recorded that a refusal of parole would increase longer term risk. 78 In relation to the s 19AKA purpose of "rehabilitation of the offender", the departmental analysis included (emphasis in original): Rehabilitation of Mr Khawaja 150. When determining Mr Khawaja's potential release on parole, the department recommends that you consider his rehabilitative progress in custody and what gains he can make if he is refused parole and required to serve a further 12 months in custody, compared with what he could achieve if he is granted parole and released into the community. 151. Mr Khawaja has expressed remorse for his offending and this, to some extent, demonstrates insight for his offending. However, he has also emphasised his own public shame and the shame of his family that he has had to endure and has been unable to substantially articulate the impact of his actions on his victims, which indicates that he may be minimising his actions. 152. The role of Mr Khawaja's mental health does require careful consideration. Mr Khawaja's lawyers have submitted that Mr Khawaja's illness was an effective cause of his offending (including the bail offences). However, the department notes that the sentencing court concluded that there was no suggestion that Mr Khawaja's mental health deprived him of the capacity to reason in relation to any of his offences2. 2 See paragraph 179 of the sentencing remarks at Attachment D 153. According to Mr Khawaja's treating psychiatrist, Dr Henderson, since Mr Khawaja has commenced antipsychotic and mood stabiliser medication treatment, and psychological therapy for his personality disturbance, he appears to have demonstrated an improvement in his mental functioning with improved mood regulation and enhancement in his psychotic-like symptoms. Should Mr Khawaja engage in weekly psychological therapy specific for borderline personality disorder, his personality disorder is likely to further improve such that he will be at a significantly lower risk of further reoffending behaviour. 154. Dr Henderson reported concerns that the intensive psychological therapy required to treat severe personality disorders effectively is not generally available in the custodial environment, and formed the view that the hostile custodial environment and risk of further abuse will be generally counter-therapeutic to all treatment efforts. Mr Khawaja appears to be motivated to continue his treatment plan and engagement with Dr Henderson in the community. 155. It is encouraging that Mr Khawaja reports a commitment to remaining engaged with Dr Henderson on his release from custody, however there will be instances when Mr Khawaja will be faced with personal and romantic stressors. The comprehensive case plan prepared by CSNSW, which includes the use of cognitive behavioural therapy, involving tailored modules such as interpersonal relationships, communication, conflict resolution and managing impulsivity will all assist Mr Khawaja, and will complement his psychiatric treatment plan with Dr Henderson to mitigate any significant risks. 156. Mr Khawaja's submissions indicate that he understands the need to address his mental health issues, and the department considers his commitment to these efforts to be genuine. However, the department considers that concern remains that Mr Khawaja has not developed significant insight into his offending, which creates some risk that he will not be able to identify the risk factors that led to his offending and implement strategies to mitigate them. 157. CSNSW has advised that there are no further rehabilitation programs available to Mr Khawaja in custody. Rather, it has recommended Mr Khawaja's release on parole and reported that he will be referred for psychological interventions in the community. Mr Khawaja appears open to such interventions, and reported a commitment to engage with his treating psychiatrist Dr Henderson upon his release. 158. As there are no programs for Mr Khawaja to complete in custody, and given he has adequate psychological interventions offered in a community setting, the department considers it highly desirable for Mr Khawaja to have the opportunity to test these strategies and receive treatment in the community, while under conditions and supervision. 159. The department recommends that you conclude that rehabilitative factors weigh in favour of Mr Khawaja's release on parole at this time. 79 Something should be said about [152]. This is one of a number of paragraphs in the departmental analysis to similar effect. Another which should be pointed out, because it is located under the hearing "Minimisation of his offending", is at [102]: Minimisation of his offending 102. Mr Khawaja was advised that he places significant emphasis on his mental state as a contributing factor in his offending although the sentencing judge, while acknowledging his borderline personality diagnosis, found that his capacity to reason was not impacted. Mr Khawaja was advised that this may indicate that he does not take full responsibility for his actions, and that he may lack insight into his offending. 80 These paragraphs of the departmental analysis misunderstand the import of the sentencing judge's comments in significant respects. First, the departmental comments imply, adversely to Mr Khawaja, that the sentencing judge did not conclude that Mr Khawaja's mental state was a contributing factor. The opposite is true. The sentencing judge expressly concluded, consistently with the psychiatric evidence of both the prosecution and the applicant, that the applicant's mental condition provided a "cogent explanation" for the offences and that the mental illness was, at the least, a substantial cause of the offending. Secondly, the sentencing judge's observation at [179] of his reasons (which should be read with [180]) that Mr Khawaja did not lack capacity to reason was simply stating that the applicant's mental illness was not such as to deprive him totally of criminal responsibility in the M'Naghten sense. It was not a conclusion that rejected anything Mr Khawaja had said. Indeed, Mr Khawaja took responsibility for his offending before the sentencing judge and did not seek to minimise it. The reasoning process which led the Department to the position that Mr Khawaja did not take responsibility for his action or that he lacked insight into his offending or that he minimised his offending is not sound. There was nothing else referred to by the Department which supported those conclusions. Indeed, the material before the Department largely pointed the other way. 81 In relation to the s 19AKA purpose of "reintegration into the community", the departmental analysis stated (emphasis in original): Reintegration of Mr Khawaja into the community 160. Mr Khawaja has stable accommodation available to him with his parents. The residence in Westmead, Sydney has been assessed as suitable by CSNSW. 161. Mr Khawaja's legal representative submitted a letter from the president of the Randwick Petersham Cricket Club. Mr Khawaja intends to undertake volunteer work for the Cricket Club, including the opportunity for him to join a cricket team. This will support the formation of ties to the community and the creation of a routine once he is released from custody. 162. Mr Khawaja held long-term employment prior to his incarceration and CSNSW reports that Mr Khawaja generally displayed a positive attitude towards his custodial employment duties. The department considers that he should not experience significant barriers when returning to employment when released from custody. 163. Mr Khawaja has strong family support, adequate post-release plans and a robust management plan in place to continue his rehabilitation in the community (discussed above). CSNSW considers it can adequately monitor him upon release and he has demonstrated generally satisfactory conduct in custody. These are all factors which weigh heavily in favour of Mr Khawaja's prospects of successful reintegration into the community at this time. 164. The department recommends that you conclude that Mr Khawaja's reintegration into the community weighs in favour of his release on parole. 82 In relation to the s 19AKA purpose of "protection of the community", the departmental analysis included (emphasis in original): Protection of the community ... 171. The department considers that the risk of Mr Khawaja reoffending in a manner that poses a threat to community safety is minimal. The department has formed this view on the basis that: • CSNSW has reported that Mr Khawaja has demonstrated regret for, and insight into, his offending behaviour • Mr Khawaja is receiving treatment for his psychiatric condition, which he is determined to continue if released into the community, and is compliant with his medications • Mr Khawaja has appropriate approved accommodation in the community and acknowledges the need to distance himself from any of his victims or former work acquaintances, and • CSNSW recommends his release on parole. 172. The department considers that it is open to you to decide that Mr Khawaja poses some risk of reoffending and that this would pose a risk to community safety. You may decide that it is preferable to prioritise short-term community safety by keeping Mr Khawaja in prison where he cannot reoffend and pose an immediate risk to the community. 173. However, the department considers that you should also consider the longer term risk to the community of not providing an offender with time in the community with parole supervision and conditions. Based on the material available to the department, it appears that the longer term risk to the community can be better managed by Mr Khawaja's release on parole at this time. Mr Khawaja's release in circumstances where he has strong family support, adequate post-release plans and a robust management plan in place to continue to treat his mental health conditions will allow him to further his rehabilitation in the community. Mr Khawaja's ability to further his rehabilitation by remaining in custody is limited - CSNSW has advised that there are no further rehabilitation programs available to Mr Khawaja in custody. Rather, it has recommended. Mr Khawaja's release on parole and reported that he will be referred for psychological interventions in the community. Mr Khawaja appears open to such interventions, and reported a commitment to engage with his treating psychiatrist Dr Henderson upon his release. This indicates that any risk posed by Mr Khawaja can be adequately managed in the community, and will in fact lead to a further reduction in the risk he poses in the longer term. 174. The department considers this risk is pronounced in Mr Khawaja's case as refusing parole at this time will mean he will be reconsidered for release on parole 6 months before his Commonwealth sentence expires in June 2023. If Mr Khawaja is released at that time, parole conditions requiring Mr Khawaja to further his rehabilitation in the community will only be in place for a period of 6 months. Given Mr Khawaja's complex mental health needs, there is a risk that this shorter time period will not allow Mr Khawaja to adequately embed treatment in his life in the community, and the shorter period will necessarily mean he will be unlikely to achieve substantial gains in his mental health treatment while under supervision. The department considers that Mr Khawaja's release in such circumstances poses a longer term risk to the community as his prospects of rehabilitation and lawful reintegration would be negatively impacted. 175. For these reasons, the department does not recommend that he be refused parole at this time. Despite the seriousness of his offending, the department considers that any risks to community safety can be appropriately managed through parole conditions and supervision. The department considers that taking the above into consideration, the protection of the community should not weigh against Mr Khawaja's release on parole at this time. 176. However, the department considers that it is open to you to decide that the serious nature of Mr Khawaja's offending as set out in the sentencing judge's findings, combined with breach of bail conditions and his manipulative and coercive behaviour in custody, gives rise to a concern that he will not respect the authority of a parole officer, comply with the conditions of a parole order and live a law-abiding life. In these circumstances you may consider that Mr Khawaja's release on parole at this time represents an unacceptable risk to the safety of the community, and that the protection of the community weighs against his release on parole at this time. 83 In summary, the Department's view was that each of the s 19AKA purposes was best served by granting parole. The Department did consider, however, that it was "open" to refuse parole by taking the view that refusing parole would result in lower short term risk (necessarily because Mr Khawaja would be in jail) at the expense of increasing longer term risk to the community (because, if Mr Khawaja were released only 6 months before serving his full term, he could only be subject to parole conditions for 6 months which might prejudice reintegration in light of his complex condition and treatment needs). Of course, this position is amplified if parole were again refused or if Mr Khawaja serves the full term. After serving the full term, Mr Khawaja could not be subject to parole conditions and therefore could not be subjected to conditions designed to assist his reintegration into, and reduce risks to, the community.

The Attorney-General's decision 84 As noted, the Departmental Submission recommended granting parole but stated that, alternatively, the Attorney-General might decide to refuse to grant parole and might decide to sign (or "not sign" or "discuss") a parole refusal notice which the Department had drafted and which was Annexure B to the departmental submission. The Attorney-General "agreed" that she would refuse parole and signed Attachment B. Whilst drafted by the Department, the reasons for decision for refusing parole, signed by the Attorney-General on 2 December 2021, are those of the Attorney-General. 85 The reasons for decision were short and in many respects similar to the first refusal reasons. After setting out formal matters, the reasons (in full) were as follows: In making this decision, I have taken into account the submissions you have made in support of your release on parole. The order for refusal of parole has been made for the following reasons: 1. I have given weight to the findings of the sentencing judge that in committing your offences, your offending was planned and not spontaneous, your conduct spanned over approximately 2 weeks and involved your interacting with the police on at least 8 instances while purporting to assist with their investigation, as a result of your failure to reveal to police that you had in fact created the false entries, and despite having many opportunities to correction [sic] the position, the victim continued to be remanded in custody in relation to an offence he did not commit, and you attempted to conceal your involvement in the offence. 2. I have taken into account that while in custody, CSNSW advises that you exhibit manipulative and coercive behaviours. It is reported that on occasion you have become passive-aggressive, undermining and disrespectful towards custodial officers. These types of problematic interactions with custodial staff indicate you have an issue with figures of authority. I have also taken into account that while on conditional release, you breached your bail condition not to associate with any person who may be called as a witness for the prosecution, including but not limited to, a number of named persons, which included F1. On 26 December 2018, you following F1's brother from his home address and handed him a letter addressed to F1, and requested that it be provided to her. In substance, the letter requested that F1 not give any evidence against you which was damaging to an assessment of your character by the court. I consider that your breach of bail conditions and your manipulative and coercive behaviour in custody gives rise to a concern that you will not respect the authority of a parole officer, and I am not satisfied that you will comply with the conditions of a parole order and live a law-abiding life. In these circumstances I consider that your release on parole at this time represents an unacceptable risk to the safety of the community. 3. I consider that refusing you release on parole at this time means the risk you pose to the community can be mitigated in the short term. 86 The reasoning as a whole is directed to the conclusion that refusing parole would mitigate short term risk to the community. The reasons do not contain any consideration of the longer term risks to the community which was a "pronounced" risk of refusing parole or of the rehabilitation of Mr Khawaja or of Mr Khawaja's reintegration into the community, each of which, according to the Department, favoured granting parole. The reasons do not mention Mr Khawaja's mental illness, which was the central focus of his submissions. None of these matters is either expressly or implicitly considered. Mr Khawaja's submissions were referred to only in a generalised statement in the opening words set out above which may well form part of a pro forma template used by the Department.

THE JUDICIAL REVIEW GROUNDS 87 Mr Khawaja relied on four grounds of judicial review, supported by lengthy particulars. The essence of the grounds as argued at hearing is that the Attorney-General erred: (1) in finding that CSNSW had advised that, as a matter of present fact, the applicant exhibits manipulative and coercive behaviour in custody and in concluding that Mr Khawaja has "an issue with figures of authority"; (2) in failing to consider, lawfully or at all: (a) the applicant's mental illness, in connection with: (i) the CSNSW report about the applicant's behaviour in jail; (ii) the nature and seriousness of the offending; and (iii) the three purposes of parole mentioned in s 19AKA; (b) the longer term risks to the community; (3) in failing to provide adequate reasons; (4) alternatively to grounds 1 to 3, in advising the applicant that the Attorney-General would reconsider the applicant for release on parole within 12 months of 2 December 2022 (the date of the second refusal) rather than 22 June 2022 (the date of the first refusal).

CONSIDERATION 88 Before addressing the grounds of review, it is convenient to say something more about the purposes of the power in s 19AL(1) to grant or refuse parole and the focus of the inquiry on judicial review.

The purposes of the power in s 19AL(1) 89 The power to release or not release a federal offender on parole concerns the administration of criminal justice: Lodhi at [6]. The purposes of the power under s 19AL(1) to grant or refuse parole is expressly identified in s 19AKA. There are three: (a) the protection of the community; (b) the rehabilitation of the offender; (c) the reintegration of the offender into the community. 90 The Attorney-General submitted that the purposes in s 19AKA were not express or implied mandatory considerations in the Peko-Wallsend sense or matters which had to be taken into account in exercising the power under s 19AL(1). Reference in this respect was made to s 19ALA. It was submitted that the purposes in s 19AKA "at best … provide guidance". 91 This submission was perhaps made in an attempt to defuse the fact that the reasons do not reveal any consideration having been given to the purposes in s 19AKA(b) and (c) and the fact that, in relation to the purpose in s 19AKA(a), the reasons only reveal a consideration of short term risk as opposed to the longer term risk a refusal of parole might cause. 92 For the reasons given next, it is not necessary to reach a view about whether the purposes in s 19AKA are mandatory relevant considerations in exercising the power under s 19AL(1). It should be observed nevertheless that the responsible exercise of Executive power would generally involve a consideration of, and an exercise of the power for, the purposes for which that power was conferred. 93 In the present case, Mr Khawaja asked that his mental illness be taken into account, amongst other things, in relation to each of the three matters expressly referred to in s 19AKA as the purposes for which the power under s 19AL(1) had been conferred on the Attorney-General. The requests were made on several occasions and were clearly articulated. Mr Khawaja was told that his submissions would be taken into account by the decision-maker. In these circumstances, if the Attorney-General proceeded to make a decision without considering Mr Khawaja's mental illness including in relation to each of the three purposes for which the power to grant or refuse parole was conferred, the implied condition to exercise the power in s 19AL(1) reasonably would likely be breached - see: [22] above. Further, Mr Khawaja would not have been afforded procedural fairness - see: [19] to [21] above. An opportunity to be heard extends beyond an opportunity to make submissions; it requires that a decision-maker hear and take the submissions into account: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [389] (Flick J). That is particularly so where the person affected has been told that his submissions would be taken into account by the decision-maker, as Mr Khawaja was - see: MZAFS v Minister for Immigration and Border Protection (2016) 237 FCR 347; [2016] FCA 75 at [7] (Edelman J).

The decision-maker and the relevant reasons 94 The issue on judicial review, stated at its simplest, is whether the applicant has discharged the onus of showing, on the grounds of judicial review advanced, that the Attorney-General's decision was not made in accordance with the authority conferred by the relevant statute. This might be established, for example, by showing that the decision exceeded the limits of the decision-making authority or failed to comply with an express or implied condition of conferral of statutory decision-making authority: MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 at [29], [30]. 95 The decision-maker was the Attorney-General. The Attorney-General could have, but did not, delegate the exercise of the power to someone else. The decision-maker was not the person who prepared the departmental submission or the departmental analysis. The question on judicial review is not whether the person or persons preparing the departmental submission or analysis erred or considered various things, albeit those matters can be relevant to whether or not the decision-maker erred - see generally: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [61]. Whilst the Attorney-General was entitled to obtain assistance from departmental officers, including through the preparation of summaries or analyses (see more generally Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 65-66 (Brennan J)), the question on judicial review of the Attorney-General's decision is focussed on what the Attorney-General considered and decided and why. Inferences may be drawn from the relevant circumstances, including from an analysis of the Attorney-General's reasons and from the material before her, in particular the material which was in fact considered by her. What inferences are appropriate to draw is a case specific inquiry. 96 I do not infer that the Attorney-General read all of the material which was placed before her. It was pointed out by counsel for the Attorney-General that the material was submitted to the Attorney-General on 22 November 2021 and the reasons were signed on 2 December 2021. There was, accordingly, opportunity to read all of the material. I would not infer that the material was considered on the basis of opportunity alone. The reasons specifically refer to the "findings of the sentencing judge" and to what "CSNSW advises", but nothing else. The Attorney-General rejected her Department's recommendation. There was no obligation to provide reasons for this rejection. Equally, however, the reasons in fact given provide no sound basis to infer that the Attorney-General considered the underlying material. There was a significant amount of material before the Attorney-General. Giving it careful consideration would have taken many hours. It is unlikely it was directly considered by the Attorney-General as opposed to having been considered by those who recommended that parole be granted. I refer below to a number of matters which one would have expected to be mentioned in the reasons for decision if the underlying material had been considered. Absent an appropriate basis, one cannot attribute to the Attorney-General the consideration given to the material by those who prepared the departmental submission or departmental analysis. The Attorney-General did not adopt the views reached by those people and it is unlikely that she considered the material those people considered. 97 The primary means of ascertaining what the Attorney-General considered is by an examination of the reasons for decision in the context in which those reasons were made. The reasons for decision set out what the Attorney-General decided and why, including her findings on material questions of fact and her references to the evidence and material on which those findings were based. It does not inexorably follow that the Attorney-General considered a matter merely because the matter is mentioned, or even actively considered, in a departmental submission or some other document which was placed before the Attorney-General. 98 There is little direct evidence as to how the Attorney-General went about making the decision. It is to be inferred that she read the two pages comprising the departmental submission because she marked on it her rejection of the Department's recommendation that parole be granted and indicated that she "agreed" to taking the alternative course of refusing to grant parole. It is to be inferred that the Attorney-General read the short reasons for decision she signed and dated which had been prepared for her by the Department in the event the Attorney-General rejected the Department's recommendation. 99 Counsel for the Attorney-General placed emphasis on the statement at the beginning of the reasons, namely: "I have taken into account the submissions you have made". I do not think this statement is intended to convey that the Attorney-General herself read the submissions made by Mr Khawaja. Rather, I think it was intended to convey that someone in the decision-making process had read the submissions which Mr Khawaja had made and, in this way, his submissions had been taken into account. Those who read Mr Khawaja's submissions would have granted parole. I think it unlikely that the Attorney-General read Mr Khawaja's submissions. It is likely, given the circumstances set out earlier that, if Mr Khawaja's submissions had been read by the Attorney-General, she would have addressed in the reasons for decision why parole was being refused notwithstanding the central role his mental illness played in favouring a grant of parole, including in relation to each of the purposes set out in s 19AKA. Mr Khawaja's mental illness was the central issue raised by Mr Khawaja. Whether or not there was a legal obligation to do so, it is unlikely that a decision-maker, having invited comment, would not address in the reasons for decision the central submission received if the decision-maker had in fact considered it. 100 There is a danger in making generalised statements that everything a person has submitted has been taken into account, at least if the generalised statement is unaccompanied by an identification of what the decision-maker understood the principal submissions to be: (1) First, it necessarily means that the decision-maker's understanding of the central submissions are not articulated and can therefore lead to a failure to appreciate the real issues which the affected person has raised for consideration. The precise identification of what has been submitted brings rigour to the intellectual process involved in making a decision because it usually results in the submission being considered and addressed. (2) Secondly, the use of generalised statements can lead to the undesirable perception that formulaic expression is being used to mask a lack of proper consideration to an issue raised in the context of a decision which has significant consequences - see, in a different context: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3]. It is one thing for a person to receive a decision which reveals that his or her main submissions were considered and rejected; it is quite another for the person to have his or her case rejected by a decision which is silent on the principal submissions the person raised. 101 The use of a generalised statement that everything a person has submitted has been taken into account does not shield from scrutiny the question whether the decision-maker in fact took the submissions into account. In the absence of some other basis in the reasons or circumstances for inferring that a particular submission was taken into account, a generalised statement that 'all submissions were taken into account' will often not prove to be a reliable basis to infer that the decision-maker in fact took a particular submission into account in any meaningful way - see, in a different statutory context: Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [43(g)]. The position is analogous to a generalised statement that 'all of the evidence was considered'. Such generalised statements do not discharge the obligation, where it exists, to refer to the evidence on which material findings were based and nor does it shield from scrutiny the consideration, if any, which was in fact given to the evidence - see: King v Minister for Immigration and Border Protection [2014] FCA 766; 142 ALD 305 at [37] (Flick J); Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522 at [32] (Flick, Barker, Rangiah JJ).

Ground 1 102 Ground 1 revolves around paragraph 2 of the Attorney-General's reasons: I have taken into account that while in custody, CSNSW advises that you exhibit manipulative and coercive behaviours. It is reported that on occasion you have become passive-aggressive, undermining and disrespectful towards custodial officers. These types of problematic interactions with custodial staff indicate you have an issue with figures of authority. 103 The better interpretation of this conclusion, in context, is that the Attorney-General concluded, as a matter of then current fact, that Mr Khawaja had "an issue with figures of authority". This conclusion was based on a finding of fact that CSNSW had advised that Mr Khawaja exhibits manipulative and coercive behaviours in custody. 104 The only material relied upon by counsel for the Attorney-General as rationally capable of supporting those conclusions was the following passage from the report from CSNSW: Behaviour in custody Mr Khawaja has progressed though the custodial classification system; and is currently managed as a C2 minimum security protection (Special Management Area Placement - SMAP) inmate. Mr Khawaja was initially classified to the Long Bay Correctional Centre, however following an alleged sexual assault; he was reclassified as a SMAP inmate and transferred to the South Coast Correctional Centre. Throughout Mr Khawaja's period of imprisonment, he has largely displayed a satisfactory response to the custodial environment, incurring one misconduct offence in August 2020 for failing to comply with correctional centre routine. However, perusal of custodial case notes indicates Mr Khawaja has, on occasion, demonstrated manipulative and coercing behaviours. Mr Khawaja is reported to become passive-aggressive, undermining and disrespectful towards custodial officers. In June 2019, Mr Khawaja was interviewed by correctional officers due to non compliance with his case manager. Mr Khawaja was identified as "highly manipulative and continuously attempting to manipulate / demand his custodial placement". Unfortunately, this manipulative behaviour is not isolated with a further incident occurring in August 2020, where Mr Khawaja failed to comply with a verbal direction when attending to a scheduled AVL visit. Mr Khawaja attempted to use his status and overwhelm a junior correctional staff, with Mr Khawaja stating the "FM (Functional Manager) would be hearing about how he was treated". In the preparation of this report, Community Corrections discussed these incidents further with Mr Khawaja. Mr Khawaja identified the latter situation escalated unnecessarily when he was in possession of personal documents and he disagreed with the request from custodial officers to secure the documents. Given the length of time Mr Khawaja has been in custody and the otherwise minimal negative recorded incidents, Mr Khawaja's behaviour in custody would therefore be considered satisfactory. 105 It is difficult to see how the conclusion could be reached from this material that Mr Khawaja exhibits (as opposed to exhibited) manipulative and coercive behaviours in custody or that, as a matter of then present fact, Mr Khawaja had "an issue with figures of authority". The report, which recommends parole be granted, records in the second paragraph that, throughout his period of imprisonment, Mr Khawaja had "largely displayed a satisfactory response to the custodial environment". The third paragraph, whilst in some respects unclear, appears to speak of occasional manipulative behaviour in the past. The fifth paragraph addresses an additional occurrence of manipulative behaviour in August 2020. The sixth paragraph observes that CSNSW had discussed these past incidents with Mr Khawaja. The last paragraph concluded that "Mr Khawaja's behaviour in custody" was considered to be satisfactory, having regard to the length of time he had been in custody "and the otherwise minimal recorded incidents". To many readers, the report would be interpreted as referring to past incidents of manipulative behaviour and would not be understood as suggesting Mr Khawaja presently has "an issue with figures of authority". 106 It is not necessary to reach a concluded view as to whether the Attorney-General's findings in this respect were "open" on a reading of the passage extracted above (there being nothing else relied upon as being capable of founding the conclusion). That is because I conclude that the Attorney-General's conclusions in this respect were affected by jurisdictional error for the reasons given in relation to ground 2. In brief, the Attorney-General did not consider the role Mr Khawaja's mental illness played in his past behaviour or the fact that he had improved with treatment.

Mental illness in relation to Mr Khawajas's behaviour in custody 107 The Attorney-General, by the CPO and AGS, had indicated that, as the decision-maker, the Attorney-General would consider the sentencing judge's remarks, Dr Henderson's report, the applicant's responses to the CPO letters which identified the relevant concerns and the submissions filed in the first Federal Court proceeding. The applicant had repeatedly requested that the decision-maker consider his explanation in relation to the concerns about his "behaviour in custody". The applicant had emphasised the role of his mental illness in relation to his early behaviour in jail and the fact that it had changed after treatment. Mr Khawaja's explanation was clearly and carefully set out by him. It was emphasised by his solicitors. It was explained again in the submissions in the first Federal Court proceeding. 108 I cannot conclude from the reasons given, assessed in the context of the material before the Attorney-General at the time the decision was made (including the departmental analysis which referred briefly to the applicant's explanation at [108]), that the Attorney-General considered the applicant's responses in reaching the conclusions at paragraph 2 of the reasons. There is nothing in the reasons from which it can appropriately be inferred that the Attorney-General considered the explanation Mr Khawaja had given in relation to his "behaviour in custody" or the role of his mental illness. 109 In terms of procedural fairness, the procedure adopted resulted in Mr Khawaja's submissions being considered by the Department (which recommended parole), but not apparently being considered by the decision-maker who rejected the Department's recommendation. This worked a "practical injustice". 110 In terms of legal unreasonableness, to which procedural fairness is closely linked (Li at [92]), having identified concerns and invited submissions, it was a breach of the implied condition to exercise the power under s 19AL(1) reasonably to fail to consider the substance of the submissions made in response to the concerns which had been identified. 111 In the circumstances, it was legally unreasonable and a breach of procedural fairness to reach the conclusions in paragraph 2 of the reasons without taking into account the role of the applicant's mental illness in his behaviour in jail. 112 If the applicant's mental illness (and subsequent treatment) had been taken into account, the Attorney-General may have concluded that the CSNSW report provided an insufficient basis to conclude that Mr Khawaja had, at the time of the decision, "an issue with figures of authority". There was nothing else relied upon by counsel for the Attorney-General as supporting the conclusions in paragraph 2. There was much in the material before the decision-maker against the conclusion. Accordingly, the applicant has discharged his onus of establishing that the outcome may have been different if his mental illness had been considered and, therefore, that the errors were material and "jurisdictional".

Mental illness in relation to the nature and seriousness of the offending 113 The Attorney-General's reasons included findings in relation to the nature of the offending: 1. I have given weight to the findings of the sentencing judge that in committing your offences, your offending was planned and not spontaneous, your conduct spanned over approximately 2 weeks and involved your interacting with the police on at least 8 instances while purporting to assist with their investigation, as a result of your failure to reveal to police that you had in fact created the false entries, and despite having many opportunities to correction [sic] the position, the victim continued to be remanded in custody in relation to an offence he did not commit, and you attempted to conceal your involvement in the offence. … I have also taken into account that while on conditional release, you breached your bail condition not to associate with any person who may be called as a witness for the prosecution, including but not limited to, a number of named persons, which included F1. On 26 December 2018, you following F1's brother from his home address and handed him a letter addressed to F1, and requested that it be provided to her. In substance, the letter requested that F1 not give any evidence against you which was damaging to an assessment of your character by the court. 114 The reasons for decision did not refer to the applicant's mental illness. I conclude that it was not taken into account. In circumstances where the applicant's mental illness had repeatedly been referred to as relevant to the nature of the offending, it is unlikely that it would not to have been mentioned in paragraph 1 if it had been taken into account. The sentencing judge had concluded that the mental illness provided a "cogent explanation" for the offending and was causative of it. This received no apparent consideration. An explanation for this might be the misunderstanding in the departmental analysis about the sentencing judge's observation to the intended effect that Mr Khawaja's mental illness was not such as to result in him having no criminal responsibility - see [79] and [80] above. 115 Mr Khawaja's mental illness was not mentioned in connection with the breach of bail conditions referred to in the reasons. The breach of bail conditions, leading to Mr Khawaja being taken into custody on 27 December 2018, occurred before sentencing, before diagnosis of the applicant's mental illness and before treatment. It was, in substance, part of the one course of conduct and its consequences. The lack of reference to mental illness in this regard reinforces the inference I draw from the reasons read in the context of the events described earlier that the Attorney-General did not properly take Mr Khawaja's submissions into account in refusing parole. It is no answer that the departmental analysis refers to Mr Khawaja's mental illness. The Department did not make the decision. The reasons for the refusal which the Attorney-General adopted are those which she signed, not the departmental submission or departmental analysis both of which recommended parole be granted.

Mental illness in relation to the purposes in s 19AKA 116 The Attorney-General's reason for refusing parole was ultimately that refusal mitigated short term risk: … I consider that your breach of bail conditions and your manipulative and coercive behaviour in custody gives rise to a concern that you will not respect the authority of a parole officer, and I am not satisfied that you will comply with the conditions of a parole order and live a law-abiding life. In these circumstances I consider that your release on parole at this time represents an unacceptable risk to the safety of the community. 3. I consider that refusing you release on parole at this time means the risk you pose to the community can be mitigated in the short term. 117 Although the reasons refer to s 19AKA in what is likely a pro forma part of the reasons, the reasons do not refer to or contain any analysis of: (1) the purpose of parole of rehabilitation of the offender; (2) the purpose of parole of reintegration of the offender into the community; (3) the longer term risk to the community. 118 Mr Khawaja had submitted that his mental illness was relevant to each of the s 19AKA purposes. The failure to refer to the matters set out above and, in that regard, Mr Khawaja's mental illness, reinforces the conclusion I have reached that the Attorney-General did not consider the applicant's mental illness. 119 The power in s 19AL(1) is an important one. It affects the liberty of the individual and it affects the community. The Department's analysis in the present case was to the effect that each of the purposes in s 19AKA were best served by granting parole. The reason for that was intimately connected with the applicant's mental illness and how that could best be managed in his interests and the interests of the community, particularly by reducing the risks to the community. The optimal outcome in the Department's view would be achieved by granting parole. Not releasing Mr Khawaja on parole created a longer term risk to the community by not providing Mr Khawaja with time in the community with parole supervision and conditions. According to the departmental analysis, this risk was "pronounced" in Mr Khawaja's case: at [174]. The short term risks could be adequately managed in the community: at [173]. These conclusions were consistent with the reasoning of the sentencing judge in setting the shorter than typical non-parole period. The reasons for decision do not disclose any consideration of why short term risk should be prioritised over the increased risks that such a decision might cause. 120 I am satisfied that the Attorney-General did not consider the applicant's mental illness in deciding whether to grant or refuse parole, including in connection with each of the purposes in s 19AKA, and that, in the particular circumstances of this case, it was legally unreasonably not to do so. It was also a breach of procedural fairness in the circumstances. As noted at [93] above, an opportunity to be heard extends beyond an opportunity to make submissions; it requires that a decision-maker hear and take the submissions into account. 121 It follows that Ground 2 is made out.

Grounds 3 and 4 122 It is not necessary to reach a concluded view on grounds 3 and 4. Ordinarily, I would address Grounds 3 and 4 in any event. However, in the circumstances, it is not in the interests of justice to delay making orders in order to prepare and deliver reasons in respect of issues which do not strictly need to be resolved. A lawful decision about parole should be made expeditiously meaning these reasons should be published as promptly as possible.

CONCLUSION 123 The parole decision must be quashed. 124 The applicant submitted that the Attorney-General's decision should be quashed and remitted with a direction that Mr Khawaja be granted parole. The statute reposes the decision-making power on the merits in the Attorney-General. The parole application must be remitted for consideration according to law. As I have noted, Mr Khawaja became eligible for parole on 26 June 2021 and he remains in jail without a lawful decision having been made about whether to grant or refuse parole. This situation obtains notwithstanding that the CSNSW and the Attorney-General's Department recommended parole and that the material indicates significant benefits might flow from a substantial period of supervised parole on conditions. Given Mr Khawaja's sentence expires on 26 May 2023, the reconsideration should be conducted expeditiously in the circumstances and the orders I now make seek to promote that result. I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.

Crimes Act 1914(Cth)ss 37(3), 43(1), 16BA, 19AKA, 19AL(1), 19AL(2), 19ALA(1), 19ALA(2)

Criminal Code Act 1995(Cth)ss 135.1(7), 144.1(1)

LEGISLATIVE CONTEXT 11 There is no entitlement to parole. The power to release a prisoner on parole after the expiry of the non-parole period is a matter for the executive: Minogue v Victoria [2019] HCA 31; (2019) 93 ALJR 1031 at [17]. For federal offenders, the power to release a prisoner on parole is conferred on the Attorney-General. 12 Part 1B of the Crimes Act is entitled "Sentencing, Imprisonment and Release of Federal Offenders". Division 5 of Part IB is entitled "Conditional Release on Parole or Licence". Subdivision A of Division 5 is entitled "Release on Parole or Licence" and includes provisions authorising the release of federal offenders on parole. The first section in Division 5 is s 19AKA which provides: Purposes of parole The purposes of parole are the following: (a) the protection of the community; (b) the rehabilitation of the offender; (c) the reintegration of the offender into the community. 13 The reference in paragraph (a) to "protection of the community" is not confined. The refusal of parole will invariably serve to protect the community in the short term in the sense that the offender will not be released into the community. It does not follow that the community is best protected by refusing parole. One reason for that is that offenders may be subject to conditions on parole, controlling risk and facilitating their rehabilitation and reintegration into the community. This is not the situation which prevails after a sentence has been fully served. 14 The nuanced nature of the issue is familiar to those with expertise in the area, including sentencing judges, Corrective Services NSW (CSNSW) and the Commonwealth Parole Office (CPO), a division of the Attorney-General's Department. 15 Whilst the three purposes cover different ground, a proper consideration of them in relation to a particular case will generally reveal that they interact and in some respects overlap. 16 A decision granting or refusing parole must be made before the non-parole period for a federal sentence expires. Section 19AL(1) provides: Release on parole - making of parole order (1) The Attorney-General must, before the end of a non-parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole (a parole order). Note 1: See subsection (5) if the person is subject to a State or Territory sentence. Note 2: See also sections 19ALA (matters that may be considered in decisions about parole orders) and 19ALB (decisions about parole orders - terrorism and control orders). 17 In making a parole decision under s 19AL(1), the Attorney-General may have regard to the matters set out in s 19ALA(1): Matters that may be considered in decisions about parole orders (1) In making a decision under section 19AL in relation to a person, the Attorney-General may have regard to any of the following matters that are known to the Attorney-General and relevant to the decision: (a) the risk to the community of releasing the person on parole; (b) the person's conduct while serving his or her sentence; (c) whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency; (d) the likely effect on the victim, or victim's family, of releasing the person on parole; (e) the nature and circumstances of the offence to which the person's sentence relates; (f) any comments made by the sentencing court; (g) the person's criminal history; (h) any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency; (i) the behaviour of the person when subject to any previous parole order or licence; (j) the behaviour of the person when subject to any previous parole order or licence; (k) whether releasing the person on parole is likely to assist the person to adjust to lawful community life; (l) whether the length of the parole period is sufficient to achieve the purposes of parole; (m) any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release. (2) Subsection (1) does not limit the matters that the Attorney-General may consider in making a decision under section 19AL. 18 Section 19ALA, whilst setting out a wide range of factors that the Attorney-General "may" take into account, does not expressly make consideration of any of the factors mandatory. Further, it does not limit the factors to which the Attorney-General may have regard: s 19ALA(2). 19 The Attorney-General must afford procedural fairness in exercising the power under s 19AL(1). As Bromwich J observed in Lodhi v Attorney-General (Cth) [2020] FCA 1383 at [6(e)]: [T]he Crimes Act contains no process for how consideration of release on parole is to be undertaken. It is essentially a matter for the Attorney-General to determine a procedure that is reasonable and will avoid practical injustice or unfairness having regard to the circumstances of the particular case. What is required may vary having regard to what has already occurred and what is said or done during the process 20 In Khazaal v Attorney-General (Cth) [2020] FCA 448 at [66], Wigney J observed: … [U]nlike the statutory schemes for the grant of parole in many of the States and Territories, there is no prescribed procedure that the Attorney must follow in considering and determining whether to make a parole order. There is certainly no requirement for a hearing, no express requirement for the Attorney to notify the person affected by the decision concerning parole … of any particular information, and no express requirement that the person be given the opportunity to make submissions. There is no doubt, however, that the Attorney must afford procedural fairness to the person affected by the parole decision. As the statutory scheme does not prescribe any procedure, it is entirely a matter for the Attorney to determine a procedure that will afford procedural fairness to the person and avoid any unfairness or injustice. 21 In this statutory context, procedural fairness has been held to include the requirement to make the person aware of the main factors or issues that would or could militate against the grant of parole. This would usually require making the person aware of specific adverse information that is credible, relevant and significant to the decision. The question is what "is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made": Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30] (Kiefel, Bell and Keane JJ). The purpose of the obligation to afford procedural fairness is the avoidance of "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] (Gleeson CJ). Further observations about what procedural fairness requires are made at [93] below. 22 The power to grant or refuse parole in s 19AL(1) is also conditioned on an implicit requirement that it be exercised reasonably in the sense described in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. The condition that the power be exercised reasonably is a "manifestation of the general and deeply rooted common law principle of construction that … decision-making authority … conferred by statute must be exercised according to law and to reason within limits set by the subject matter, scope and purposes of the statute": Li at [90] (Gageler J; emphasis in original). There is nothing about the statutory scheme which points to exclusion or modification of the implicit condition that the power be exercised reasonably - see: Li at [92] (Gageler J). 23 The precise content of an implicit requirement to exercise a power reasonably depends on the terms, scope, purpose and object of the particular statute: Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [135], citing Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [9]. Because Courts will not lightly interfere with the exercise of a discretionary power the test has been described as "stringent": SZVFW at [11] (Kiefel CJ). A repository of power has genuinely free discretion within the bounds of legal reasonableness: SZVFW at [51] (Gageler J). The standard of legal reasonableness has been expressed as the minimum to be expected of any "reasonable repository of power" in the circumstances; the implicit requirement to exercise the power reasonably is context-specific and confined in scope: SZVFW at [52] (Gageler J) 24 If the Attorney-General refuses to make a parole order under s 19AL(1), the Attorney-General must give the person notice of, and reasons for, the refusal and reconsider the refusal within 12 months of the refusal. Section 19AL(2) provides: (2) If the Attorney General refuses to make a parole order for a person under subsection (1) or paragraph (b) of this subsection, the Attorney General must: (a) give the person a written notice, within 14 days after the refusal, that: (i) informs the person of the refusal; and (ii) includes a statement of reasons for the refusal; and (iii) sets out the effect of paragraph (b) of this subsection; and (b) reconsider the making of a parole order for the person and either make, or refuse to make, such an order, within 12 months after the refusal. Note: See subsection (5) if the person is subject to a State or Territory sentence. 25 As was noted in Lodhi at [85], the requirement in s 19AL(2) to provide reasons for the refusal must be read with s 25D of the Acts Interpretation Act 1901 (Cth) (AI Act), which provides: Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. 26 Section 19AL(2), read with s 25D of the AI Act, requires no more than that the Attorney-General "set out" the findings which the Attorney-General in fact made, being those which the Attorney-General considered to be material to the decision which the Attorney-General made. Section 19AL(2) does not require the Attorney-General to make findings and then set out those findings. These points were made in a different but analogous context by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [68], [69] and [77]: [68] … In its terms, [s 430] requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. … A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. [69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. ... [77] The Federal Court granted review in these cases on the basis that, by reason of the Tribunal's failure to make findings, the Tribunal had failed to comply with "procedures that were required by this Act or the regulations to be observed in connection with the making of the decision" (s 476(l)(a)). It is implicit in what has already been said about s 430 that a complaint that the Tribunal has not made a finding of fact on a material question cannot support review on this ground. An alleged failure to make a finding of fact on a material question is not a failure to observe a "procedure ... required" by the Act. If it is an error, it is an error of substance. Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made. It is, however, enough to say that the conclusion that, so far as now relevant, s 430 requires only the recording of what was found and does not impose any duty to make findings, means that an asserted failure to make findings is not a breach of s 430. Accordingly, s 476(1)(a) is inapplicable. 27 After setting out these passages, Bromwich J in Lodhi observed (emphasis in original): [87] Two observations about the present matter flow from the above passages from Yusuf: (1) The s 25D obligation imposed on the Attorney-General did not require him to make any particular findings of fact, but rather to do no more than to set out any findings of fact that he did in fact make that he considered material to the decision not to make a parole order. (2) Review ground 4, and the submissions in support of it, asserts that the Attorney-General failed to give adequate reasons and thereby failed observe "procedures that were required to be observed in connection with the making of the decision", relying on the words of s 5(1)(b) of the ADJR Act. The terms of s 5(1)(b) are relevantly the same as the terms of s 476(1)(a) of the Migration Act as it was at the time it was under consideration in Yusuf. The conclusion in Yusuf at [77], reproduced above, means that it cannot be a failure to observe the procedures required by s 19AL that the reasons given did not include any particular factual finding beyond those given, and s 5(1)(b) of the ADJR Act is therefore inapplicable. [88] The above reasoning alone means that this ground of review must fail in the way that it has been brought. However, for completeness it is desirable to say something about the adequacy of the Attorney-General's reasons more generally. 28 The statutory obligation to provide reasons is relevant to the inferences it is appropriate to draw from the content of the reasons for decision given for refusing parole. Given that there is a statutory obligation to provide reasons which must "also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based", it is open to infer that a matter not mentioned in the reasons was not considered to be material: Yusuf at [5], [9]-[10] (Gleeson CJ), [44] (Gaudron J) and [69] (McHugh, Gummow and Hayne JJ. It is open to conclude, in light of the terms of the statutory obligation to provide reasons, that the reasons set out the facts the Attorney-General considered material to her decision and that the reasons refer to the evidence she considered in making those findings. When it comes to assessing whether jurisdictional error is established, inferences may be drawn from what the Attorney-General referred to, and from what is absent, from the Attorney-General's reasons because the reasons may be taken to disclose "the findings on material questions of fact" and "the evidence or other material on which those findings were based". 29 Drawing inferences in this way is not mandatory: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; 150 ALD 34 at [19]-[20] (Perram J); Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 at [44] (Greenwood, McKerracher and Burley JJ). Rather, the object is to ascertain the decision-maker's reasoning from the reasons given and from any other relevant circumstance which appropriately informs the inquiry. The drawing of inferences in the way referred to in Yusuf is just one means of determining how the decision-maker in fact reasoned. Further, it is important to recognise that, while it might be inferred that a particular matter was not considered to be material, that does not necessarily mean that the matter was not considered - see: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [31] (French CJ and Keifel J). An inference that something was not considered might be drawn in all the circumstances, including (for example) the absence of a reference to the matter in the reasons, but that is a different issue to whether the matter was considered to be material to the decision. 30 As to the broader question of whether reasons fall short of the standard required, Bromwich J in Lodhi stated: [89] The question of whether the reasons more generally fall short of what is legally required also depends upon the statutory framework in which the decision is made. As Buchanan J pointed out in Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35; 229 FCR 537 at [55] (Allsop CJ and Siopis J agreeing) in relation to a decision by the Full Bench of the Fair Work Commission (as Fair Work Australia was then known): It must therefore be understood that no attack, in proceedings of the present kind, is available against the Full Bench merely upon the ground of a dispute or quibble with the quality of the Full Bench reasons or the weight which it gave to particular aspects of the matter before it unless some error is demonstrated which may be said to have the result that the Full Bench has not really exercised the jurisdiction given to it, leaving the jurisdiction "in law constructively unexercised" and thereby exposing the Full Bench to an order that it perform the task it had failed to carry out (Hebburn; Coal & Allied) or, alternatively, that the Full Bench has purported to determine some matter outside its jurisdiction altogether (PSA). [90] Thus asserted shortcomings in the Attorney-General's reasons must rise to the level of demonstrating that the jurisdictional task required has not been performed. Reasons may be brief without being shown to be fatally flawed, with the focus required to be on the substance of what has been decided, including whether the real determinative issue has been exposed: see Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 at [64]. [91] Reasons will not be inadequate because there was evidence or other material by which a different conclusion could have been reached, or different reasoning adopted, or a means by which merits can be re-argued: Lopez-Avila v K & S Freighters Pty Ltd [2015] FCA 962; 68 AAR 86 at [22]. A provision such as s 25D of the Acts Interpretation Act, which uses familiar phrasing and concepts to do with material questions of fact and identifying evidence or other material upon which findings were based, is designed to expose thought processes to scrutiny, but not to encourage a "fine tooth comb" reading of such reasons: see Roncevich at [64] and Lopez-Avila at [22]. 31 With that context in mind, it is necessary to turn to the central facts.

Mr Khawaja's sentencing 44 Mr Khawaja pleaded guilty on 8 November 2019. 45 Mr Khawaja was sentenced on 5 November 2020 to a term of 4 years and 6 months imprisonment, commencing on 27 December 2018. 46 The sentencing hearing occurred over three days: 19 June 2020, 2 September 2020 and 11 September 2020. The sentencing judge, Weber SC DCJ, delivered detailed reasons on 5 November 2020: R v Khawaja [2020] NSWDC 718. 47 As mentioned, at the time the relevant offences were committed, Mr Khawaja had a significant, but undiagnosed, mental illness for which he was not receiving treatment. Mr Khawaja first received treatment for mental illness whilst in jail, after he had been assaulted. 48 A report of Dr Henderson incorrectly dated 12 July 2020 (presumably 12 June 2020) was relied upon on the first day of the sentencing hearing. Dr Henderson diagnosed borderline personality disorder and gave a differential diagnosis of schizophrenia. This was the first occasion Mr Khawaja's mental illness was diagnosed. 49 The Crown sought and was granted an adjournment to permit the Crown to retain its own expert in relation to Mr Khawaja's mental illness, Dr O'Dea. Dr O'Dea prepared a report dated 1 September 2020 in which he largely agreed with Dr Henderson. 50 Three aspects of the sentencing judge's observations should be noted for present purposes. First, his Honour considered that Mr Khawaja's mental illness provided a "cogent explanation" for his offending. His Honour stated: [193] In my view, the psychiatric evidence provides a cogent explanation of the offender's offending. It explains why an intelligent man would reason in such a preposterous manner so as to consider that his acts were an appropriate response to the situations which confronted him. [194] The psychiatric evidence is that the offender was in all probability significantly affected by his illness at the time of the offending. At that time he was experiencing feelings of abandonment, which is a factor which is characteristic of this illness. It was only in such a psychologically impaired state that he could reason that his proposed responses to his concerns were appropriate. 51 His Honour accepted, consistently with the view of the prosecution and defence psychiatrists, that Mr Khawaja's mental illness was "causative" of the offending: at [195]. According to the sentencing judge, the fact that Mr Khawaja had borderline personality disorder and that this was "causative" of the offending, lowered Mr Khawaja's moral culpability, reduced the significance of general deterrence, rendered Mr Khawaja an unsuitable vehicle for general deterrence and had the consequence that a custodial sentence would weigh more heavily on him: at [195]. 52 Secondly, his Honour recorded that Mr Khawaja was nevertheless not so mentally ill that he was not criminally responsible for what he had done. His Honour stated: [179] It should be noted however, that there can be no suggestion that the offender's psychiatric condition deprived him of his capacity to reason in relation to the offences which bring him before the court. [180] Dr Henderson opined that while the offender's ability to consider the implications of his actions and their wrongfulness was compromised at the time of the offending, he was not completely bereft of the ability to navigate the moral wrongfulness of his actions. Indeed, the offender conceded in cross- examination that he knew at the time that he committed each of the offences that his conduct was wrong. 53 Thirdly, his Honour recognised that the Mr Khawaja's mental illness was an important consideration in determining an appropriate sentence and took this into account in Mr Khawaja's favour in granting a longer period of parole. A longer period of parole would serve both Mr Khawaja's interests and the community's interests. The community's interests were promoted because a "lengthy period of parole will help to ensure the offender's compliance with his undertakings in respect of his future psychiatric health care". That is, parole conditions could be imposed so that Mr Khawaja could be appropriately reintegrated to the community whilst receiving appropriate treatment and this could be done in a way which minimised risks to the community. This could not be achieved if Mr Khawaja served a full term and was thereafter simply released. His Honour stated: [186] Dr Henderson expressed the view that the offender had made significant progress in his treatment notwithstanding the suboptimal custodial environment in which it was being received. He reported that the offender accepts that he suffers from psychiatric illness, and that this acceptance motivates him to engage in the treatment in the long-term. [187] Dr Henderson's opinion was that should the offender engage in weekly psychological therapy specific for borderline personality disorder, and take the prescribed medication, his personality disorder is likely to further improve, such that he will have a significantly lower risk of reoffending. He went on to express concerns as to whether the intensive psychological therapy required to treat the severe borderline personality disorder which afflicts the offender is available in the custodial setting. In that regard, he noted that the offender had been unable to access certain psychological treatment in recent months as a result of COVID-19 related limitations on professional visits. [188] Finally, he expressed the view that the hostile, custodial environment was generally counter-therapeutic to all relevant treatments which the offender requires. [189] Ultimately, Dr Henderson expressed the view that the offender's risk of reoffending was low. This opinion was based on various factors which I shall summarise in the following terms: (1) That the offender did not have a significant history of prior offending, nor antisocial personality disorder, nor significant substance abuse history; (2) In view of the fact that the offender's condition appears to have stabilised and is likely to improve with ongoing treatment, and the offender had experienced objective relief from treatment and developed insights into his condition; and (3) That the offender is motivated to continue that treatment in the long- term. [190] Dr Henderson said that his view that the offender's low risk of further offending behaviour was reinforced by the fact that the offender had completed tertiary education, had been involved in full-time employment, and was a member of a supportive family. Dr O'Dea did not express a contrary view on this issue to that expressed by Dr Henderson. [191] The offender gave evidence before me that he had read the treatment plan proposed by Dr Henderson, which involves him seeing a psychiatrist on release. He indicated that he would comply with the plan, even to the point of consenting to be admitted to a psychiatric hospital should his condition deteriorate, if such course were recommended by a treating psychiatrist. Dr Henderson gave evidence that he would be prepared to accept the offender as a patient upon the offender's release, and that he would carry out the psychiatric course of treatment which he has in mind. … Determining the Appropriate Punishment Prospects of rehabilitation and risk of reoffending [198] I accept the opinion proffered by Dr Henderson that provided he maintains his psychiatric treatment, the offender's prospects of rehabilitation are good, and his risk of reoffending is correlatively low. [199] I share Dr Henderson's opinion for the reasons articulated by him which can be summarised as follows: (1) That the offender has demonstrated an improvement in his mental functioning, together with improving the regulation and amelioration of any psychotic-like symptoms under treatment; (2) That he accepts that he suffers from a psychiatric condition, and appears motivated to continue to engage in treatment in the long-term (3) That should the offender engage in weekly psychiatric or psychological therapy specific for borderline personality disorder, his personality disorder is like to further proved improve; (4) That the offender does not have a significant prior offending history nor antisocial personality disorder or significant substance abuse history; (5) That the offender appears motivated to continue his treatment in the long-term; (6) That the offender has expressed remorse in relation to his offending and an insight into the effects of it; and (7) That the fact of the offender has completed tertiary education, has engaged in full-time employment, and has a supportive family. [200] The seriousness of the offending is such that gaol is the only appropriate punishment which can be imposed on the offender. Neither party suggested to the contrary. [201] This matter tosses up the ever present tensions in the sentencing process between punishment and rehabilitation. … Consideration of appropriate non-parole period [209] In structuring an appropriate sentence in this matter the non-parole period it is self-evidently of great significance. In the present case I consider that a longer period of parole than might otherwise be considered usual is appropriate. [210] I take this view as such a lengthy period of parole will help to ensure the offender's compliance with his undertakings in respect of his future psychiatric health care. As a consequence, I am of the view that it is both in the interest of the offender and in the public interest that such a non-parole period be set. 54 A non-parole period of 2 years and 6 months was set, expiring on 26 June 2021.

Khawaja v Attorney-General

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (29)

Cited By (10)