Review ground 1 - The decision that Mr Lodhi had not established 'exceptional circumstances' was an improper exercise of the power conferred by s 19AL, in that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power, or was otherwise legally unreasonable.
45 The Attorney-General stated that he had considered the reasons advanced by Mr Lodhi and by his legal representatives, but did not consider that he had established exceptional circumstances that would justify his release on parole at that time. As noted above, that first reason did not stand alone, but is to be read in the context of the second and third reasons. Mr Lodhi characterises the conclusion in the first reason given as legally unreasonable because, it is asserted:
(1) There is an absence of an "intelligible justification" for finding that the exceptional circumstances "test" was not overcome, citing Singh at [47] and Li at [76]. Rather, the reasons given are a conclusive statement, as opposed to a process of reasoning, and have the character of being arbitrary because it is not possible to glean either the reasoning process or how the decision was arrived at, citing Eden at [64] and Stretton at [11].
(2) The decision was informed by "irrational and arbitrary reasoning" contained in the covering departmental submission reproduced above. Counsel for Mr Lodhi took particular issue with the fact that the exceptional circumstances issues raised in their submission did not override the advice of CSNSW and the AFP; that the comments in Attachment C at [83] and [85] suggested that the evaluation of exceptional circumstances could take into account whether parole was opposed by the AFP; and that the AFP should either support or at least not oppose that taking place. While he accepted that there was nothing inherently irrational in giving consideration to the views of relevant agencies such as the AFP and CSNSW, the approach taken gave the ultimate determination to those agencies. This was evident given the similarity between the language of the recommendations and the reasons given, which was arbitrary, inflexible, beyond the scope of the power in s 19AL, and thereby legally unreasonable. This submission was maintained in reply written submissions and in oral submissions at the hearing.
(3) In absence of much content in the reasons, the focus needed to be on the outcome, relying on Singh at [45]. That outcome had the following characteristics, which were sought to be measured by reference to whether Mr Lodhi continued to pose a risk to the Australian public, asserting that there was "no basis" to conclude that he posed any actual or significant risk, as opposed to potential risk, to the community, referring in some detail to the following:
(a) the reference in the JCTT assessment, and by the AFP, to no new information of a significant risk, while retaining a concern over him posing only a potential threat;
(b) since consenting to participate in the CSNSW program called the "Proacative Integrated Support Model" (PRISM) on 12 July 2016, and thereafter commencing that program on 1 August 2016 (at which time he initially was guarded in his responses and continued to assert his innocence), Mr Lodhi has markedly changed his stance and repeatedly accepted responsibility for his offending and remorse for his conduct, as reflected in a 20 November 2019 PRISM progress report, referred to in Attachment C. He has now "disavowed extremist religious beliefs and religiously motivated violence and now holds beliefs consistent with mainstream values", attributing this to his participation in PRISM. The substance of this aspect of his case is that the original motivating factors in his offending are no longer present. This contrasts with his attitude at the time of his trial, sentence and appeals when he denied his guilt, and with the sentence finding that his intentions were "of a deeply fanatical, but sincerely held, religious and world view based on his faith and his attitude to the extreme dictates of fundamentalist Islamic propositions". The change is described as a complete and exceptional ideological rehabilitation, which is unique and compelling, setting him apart from other offenders in comparable situations, and meeting the description of exceptional circumstances;
(c) additionally, by the time of the second decision to refuse parole, Mr Lodhi favourably met most of the factors able to be taken into account under s 19ALA(1), referring to:
(i) his positive conduct in prison, with no substance abuse, and no prison charges since minor matters in 2006 and 2009;
(ii) his employment in a trusted position as a clerk, requiring intelligence clearance;
(iii) his significant achievement compared to other similar offenders in moving into mainstream custody and progressing to a C-1 minimum security classification;
(iv) his satisfactory completion of all available programs, including active participation in PRISM and exemplary participation in the EQUIPS Foundation program;
(v) the absence of any single victim in his offending;
(vi) the fact that while his offending was serious, he now lacks the ideological motivation to reoffend;
(vii) in substance, that deterrence in sentencing has worked;
(viii) that he has no prior criminal record;
(ix) the fact that while release was not recommended by CSNSW, four factors favouring release were identified, and release management processes were detailed;
(x) the fact that material before the Attorney-General supported a finding that releasing him would assist him to adjust to lawful community life;
(xi) the expiry of his head sentence on 21 April 2024, which leaves ample time for him to adjust to ordinary lawful community life on parole, which is acknowledged to be better than there being no period on parole; and
(xii) the fact that he met eight of the 10 matters identified in Attachment C that supported a finding of exceptional circumstances.
46 Mr Lodhi's submissions in chief concluded by suggesting that if his circumstances were not sufficient to meet the threshold of exceptional circumstances, it is difficult to imagine what would, such that no reasonable person would have found otherwise.
47 The oral submissions made at the hearing of the application by Mr Lodhi's counsel amplified the written submissions by directing the Court's attention to both the case law and aspects of the material before the Attorney-General to advance the case for a finding of legal unreasonableness. In particular, the Court's attention was drawn to the following:
(1) A prior report by an AFP counter-terrorism psychologist dated 16 January 2019 had opined that, based on research around denial with sex offenders, it was highly likely that Mr Lodhi would continue to maintain his innocence. Conversely, the psychologist regarded it as unlikely that he would face the reality of admitting guilt to family and supporters after so many years, noting that any link between denial and risk was unknown within this offender group. As counsel submits orally:
… the expert opinion of this psychologist attached to the counter terrorism unit, has with respect been proven to be incorrect with respect to likelihoods, and that's what makes Mr Lodhi unusual, uncommon and exceptional. He has now admitted his fault. He no longer maintains his innocence. He has, in fact, been able to face the pathway that when he moved to offending and the erroneous path he took, he has disavowed his violent extremist ideology.
(2) Mr Lodhi's progress was also quite unlike that of a number of serious terrorist offenders. Counsel highlights the significant progress summarised at [93] of Attachment C, characterising this as unusual and exceptional. Counsel submits that there was no evidence to support a finding he was not capable of making a seamless transition into the community as at April 2020.
(3) The handwritten letter from Mr Lodhi in response to the "adverse comments" letter (this exchange jointly listed at item 5 of [26] above) highlighted the extent of, and reasons for, his complete departure from his prior ideology and incorrect understanding of what his religion required, stated that he was "completely wrong", and expressed remorse for what he had done, including a view that Islam dictated not harming anyone nor departing from the laws of the land.
(4) PRISM reports before the Attorney-General covering progress in the three-plus years from when he commenced on 1 August 2016 until the report of 20 November 2019 demonstrated the extent of progress that had been made. Mr Lodhi was by that time at the "action" stage, being the stage at which there has been specific overt modification in lifestyle over the past six months. (I pause to note that the report indicates this leads to the "maintenance" stage, during which a person is working to prevent reverting to old behaviours.) Also, the report records that Mr Lodhi's improvement in religious knowledge and practice were such that they presented as being consistent with mainstream human values and conducive to "pro-social community integration". It is submitted orally that "a reasonable decision made will place considerable weight upon the opinions of any author to a PRISM report who has been working with Mr Lodhi over a period of three years". This was said to be supported by his change of appearance, with Mr Lodhi now being clean shaven, and by neither the PRISM religious support officer or religious co-ordinator noting any current theological practices that were problematic in a May 2019 report, summarised in Attachment C. Further, Mr Lodhi was recorded as condemning the Islamic State's violent action, and saying that it had caused tremendous damage to Islam.
(5) The attribution of the fundamental and exceptional shift in Mr Lodhi's thinking to rehabilitation while serving his sentence, including especially his participation in the PRISM program, and in part his completion of the EQUIPS program in May 2019.
(6) The four most compelling factors in the written submissions, upon which particular emphasis is placed. These are, Mr Lodhi's status as a model prisoner for over 10 years; his exemplary participation and conduct in the EQUIPS program; his employment as a clerk for over two and a half years, being a highly trusted position with significant responsibilities; and, his being found by a psychologist's review on the papers to have a low or even very low risk of reoffending, which would be enhanced by re-establishing a family life and professional career as an architect.
(7) The characterisation of failure to give all the factors identified sufficient weight as an unreasonable or plainly unjust outcome, non-compliant with "criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice": Li per French CJ at [14], or with the "rules of reason and justice" per Hayne, Kiefel and Bell JJ at [65] and [76]. Reliance is also placed on the conclusion reached by Gageler J in Li at [124] that "[n]o reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment", and the observation of Allsop CJ in Stretton at [9] about the proper exercise of power entailing a rejection of unfairness, unreasonableness, arbitrariness, and that decisions should instead be informed by equality, humanity and dignity in the evaluative process.
48 The final part of the oral submissions for Mr Lodhi addresses the point taken in Attachment C at [92], that the outstanding reason for refusal of parole in the first parole decision made in April 2019 was that Mr Lodhi had not be able to progress through the prison classification system to the point where he was eligible for pre-release leave. Counsel highlighted the view of CSNSW that, given the length of time Mr Lodhi has been imprisoned, it would be prudent to ensure that this takes place prior to his release. Mr Lodhi submits, correctly in my view, that pre-release leave, or a progression to a C-3 classification, was assessed over and above positive findings with respect to each of the 13 considerations set out in s 19ALA(1) that may be taken into account, and over and above all of the extensive rehabilitation that had taken place, especially the four key factors outlined above. However, Mr Lodhi takes this a step further by asserting that this suggests that the Attorney-General considered that all risk had to be eliminated, which went beyond the purposes of parole set out in s 19AKA. As will be seen, I do not accept that this is the correct characterisation of the Attorney-General's approach. Rather, the concern was to do with assessment and management of risk so as to be reasonably assured that this was at an acceptable level, rather than the elimination of risk altogether.
49 The Attorney-General's written and oral submissions did not take issue with the information that was before him which was capable of supporting a conclusion that exceptional circumstances existed. Instead, the Attorney-General characterised Mr Lodhi's argument as placing labels associated with legal unreasonableness on parts of the reasons and materials, which did no more than demonstrate dissatisfaction with the adverse decision in that regard. This is either parallel to, or an implicit reference to, what Allsop CJ said in Stretton at [10] about the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power and of unnecessary and inappropriate categorisation. In making this submission the Attorney-General points out that Li at [63]-[76] should be read as a whole, as Allsop CJ suggested was necessary.
50 The Attorney-General submits that the arguments advanced on behalf of Mr Lodhi can be addressed by having regard to other factors that supported the decision that was made, referring in particular to Attachment C at [84] to [88], [93] to [94] and [96], which are reproduced at [27] above. In substance, the Attorney-General's case is that Mr Lodhi's arguments go no further than demonstrating that a different finding could have been made about exceptional circumstances, and fall well short of establishing that the contrary conclusion reached went beyond the range of outcomes that were reasonably open on the material. In support of this position, the Attorney-General points out that:
(1) the final recommendation advised him that if he decided to refuse to release Mr Lodhi on parole, the Commonwealth Parole Office would ask that Mr Lodhi be given an opportunity to participate in pre-release leave (being possible once his minimum security classification progresses further from C-1 to C-3);
(2) the factors in s 19ALA(1) that may be taken into account in making a parole decision are non-exhaustive, and s 19ALB(1) requires consideration beyond those factors going to the question of exceptional circumstances, as addressed in Attachment C at [82]-[88] (reproduced above at [27]) - Mr Lodhi disputes this interpretation, but I consider this to be clearly correct;
(3) the fact of Mr Lodhi meeting most of the s 19ALA(1) factors may be taken into account, but does not have to be, such that this circumstance does not and cannot be used to establish legal unreasonableness;
(4) there is no error, let alone jurisdictional error of the kind alleged, in having regard to the views of the relevant agencies, even to the point of deciding not to make the necessary finding and grant parole without their support, especially given the firsthand knowledge that CSNSW has of Mr Lodhi's progress in custody and the JCTT's access to relevant information about terrorism.
51 The Attorney-General's submissions go a long way to meeting Mr Lodhi's arguments. However, beyond those arguments, it readily appears that a significant reason why the Attorney-General was not satisfied that exceptional circumstances existed in this case was the absence of any opportunity to test the success of the progress that Mr Lodhi had made in the community, and thereby the practical effect of his apparent change of beliefs. Mr Lodhi expressly argues that this approach was inherently legally unreasonable. However, I am unable to accept that such conventional, and indeed logical, reasoning concerning parole can properly be seen to have that character. In my view it was reasonably open to the Attorney-General, and to those providing him with advice and recommendations, to reason that someone who has been in prison for a decade and a half is likely to encounter difficulties in readapting to life in the community, which may impede a successful transition from one to the other. Even absent the impediment of needing satisfaction of the existence of exceptional circumstances in s 19ALB(1), I cannot see how the optional factors in s 19ALA(1) preclude, as a matter of law or reason, having regard to a range of considerations which may in some way address such a transition, including, as in this case, arrangements for temporary release of some kind. It is not for this Court to make any merits assessment of how that is carried out, or as to the correctness or otherwise of the conclusions reached.
52 Mr Lodhi had not yet progressed to the C-3 minimum security classification necessary to enable pre-release leave to take place. While that is not spelt out in the first reason given, stating that Mr Lodhi had not established exceptional circumstances that would justify his release on parole, it is plainly enough referenced in the second reason, referring to continuing progression through minimum security classifications to provide a well-managed transition into the community and to enable an assessment of compliance. That is, there was a clear concern about the risk of a lapse in Mr Lodhi's reform and rehabilitation progress, not necessarily confined to terrorism offending. As noted at [5(1)] above, the express purposes of parole in s 19AKA are protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community. Parole is not only directed to the recurrence of offences that led to imprisonment, even if that is clearly a dominant consideration for terrorism offences giving rise to the need for exceptional circumstances, but also to other aspects of a successful transition back into the community, including, but not restricted to, lesser forms of offending.
53 Reading the Attorney-General's reasons beneficially and as a whole, as required, it is reasonable to infer, as Mr Lodhi not only does not accept, but challenges, that the Attorney-General considered the absence of exposure to the community one of the shortcomings in the factors otherwise indicating exceptional progress pointing to the existence of exceptional circumstances. That view was further reinforced by the Attorney-General's third, and also related, reason reflecting the AFP concern about the potential threat Mr Lodhi may pose to community safety. This was implicitly a concern that may be met by successful pre-release leave which was to be actively pursued by the Commonwealth Parole Office.
54 Even though the points made on behalf of Mr Lodhi, considered in some detail above, constituted compelling arguments in favour of a contrary conclusion, and may well have found traction in a merits review forum, they do not establish legal unreasonableness. They do not establish that the Attorney-General's decision is outside the range of permissible outcomes, particularly once the expressly considered factor of testing Mr Lodhi in the community is taken into account. The Attorney-General's stance is not a legally unreasonable one to take in relation to parole for any serious offence, let alone for terrorism offences with the high and very subjective hurdle of exceptional circumstances. Nor is this a conclusion that was so unreasonable that no reasonable person could have reached it.
55 It follows that review ground 1 must fail.