McDonald v State Parole Authority of New South Wales

Supreme Court of NSW|2023-08-28|Before: Sweeney J

JUDGMENT

By summons filed 4 August 2023, the plaintiff, Tariq McDonald, seeks a review of two decisions of the State Parole Authority ("the Authority") made in respect of him on 5 May 2023 and 21 July 2023.
The orders he seeks are:

orders in the nature of certiorari quashing the Authority's decisions of 5 May 2023 and 21 July 2023;
an order in the nature of mandamus requiring that his application of 25 May 2023 to the Authority be heard and determined according to law.

The Authority filed a submitting appearance. With the consent of the parties, the Attorney General for New South Wales was granted leave to intervene in the proceedings and was joined as the second defendant, to oppose the orders sought by the plaintiff.
A Court Book containing all the material relied on by the plaintiff and the Attorney General was filed, subject to some orders about limitations on the use of some evidence.

Background

The following is the factual background to the plaintiff's application.
The plaintiff is currently serving a sentence of five years imprisonment, imposed by Hanley SC DCJ, for 26 offences of domestic violence committed against his former wife. The sentence commenced on 15 June 2020 and expires on 14 June 2025. The non-parole period of two and half years expired on 14 December 2022.

Grounds relied on by the plaintiff

The plaintiff relies on two grounds, one each in relation to each decision. The grounds are: "1. In deciding to decline parole consideration pursuant to s 137B of the Crimes (Administration of Sentences) Act 1999 on 5 May 2023, the defendant fell into jurisdictional error and/or error of law on the face of the record by: 1. failing to take into account a relevant consideration, namely the provisions of cl 223(1) of the Crimes (Administration of Sentences) Regulation 2014 nominated in the first paragraph of the plaintiff's application of 14 March 2023 as the basis for his application; and 2. making a finding for which there was no evidence, namely that the plaintiff had not sought to identify the provisions of cl 223 of the Crimes (Administration of Sentences) Regulation upon which he relied in seeking parole consideration; and 3. acting unreasonably and/or irrationally, in circumstances where the first paragraph of the plaintiff's application of 14 March 2023 for Manifest Injustice consideration of his eligibility for parole expressly relied on cl 223(1)(b) and (c) of the Crimes (Administration of Sentences) Regulation 2014. 2. In deciding on 21 July to stand over consideration of the plaintiff's application of 25 May 2023 to 15 September 2023, "For Manifest Injustice and Anniversary consideration", the defendant constructively failed to exercise its jurisdiction, by: 1. failing to take into account a relevant consideration, namely the ground for the plaintiff's application of 25 May 2023 as stated in paragraph 4 of that application, which relied on cl 223(1)(b) and (c) the Crimes (Administration of Sentences) Regulation 2014 and the fact that the outstanding charges forming the basis of the defendant's decision to refuse the plaintiff parole on 14 October 2022 had been finally resolved, including by the plaintiff having served the relevant sentence; 2. taking into account an irrelevant consideration, namely the separate provision in the Crimes (Administration of Sentences) Act for "anniversary consideration" of an offender's eligibility for parole, should they make an application to be released on parole in accordance with section 137A, of the Crimes (Administration of Sentences) Act; and 3. acting unreasonably and/or irrationally."

Plaintiff's submissions on Ground 1

Grounds 1(a) to (c) are interrelated.
In Ground 1(a) the plaintiff asserts that the Authority failed to take into account a relevant consideration. The plaintiff challenges the basis of the Authority's decision of 5 May 2023, that the "application does not seek to provide rationale as to clause of 223 for parole consideration." The plaintiff contends that he did seek to provide such a rationale in his application of 8 March 2023, referring to cl 223 in the opening paragraph of his application as the basis for it. The plaintiff submitted that the Authority was bound to take into account the circumstances in cl 223 which were relied upon by him in his application and his addendum, together, and plainly failed to do so. Thus he contends the Authority failed to take into account a relevant consideration. The plaintiff emphasised that the Authority's decision did not say "application does not provide rationale" but said "the application does not seek to provide rationale under cl 223."
In Ground 1(b) the plaintiff asserts that the Authority made a material finding in its decision of 5 May for which there was no evidence, being that the plaintiff had not sought to provide a rationale under cl 223 of the Regulation for consideration of his parole. The plaintiff submits he did, in his combined application and addendum, seek to provide a rationale under cl 223(1)(b) and (c) and that the material in his application provided a compelling basis for the Authority to favourably consider his parole, notwithstanding the newly laid charges.
In Ground 1(c) the plaintiff asserts the Authority's decision of 5 May was unreasonable and/or irrational, in that it is not possible to understand how the Authority arrived at the view that the plaintiff "did not seek to provide rationale as to clause of 223 for parole consideration" (per Minister for Immigration and Citizenship v Li (2013) 249 CLR 332) when the application expressly identified that rationale in its first paragraph. The plaintiff submits it was not open to the Authority, acting logically, to reach that conclusion. The plaintiff submitted that proper reasoning by the Authority in its consideration of the plaintiff's first application required, as a first step, engagement with which, if any, of the cl 223(1) circumstances were nominated by him in his application. The plaintiff submitted that the lack of intelligible justification for the Authority's 5 May decision in its reasons leads to the conclusion the decision was unreasonable.

Attorney General's submissions on Ground 1

The Attorney's essential submission in response to the plaintiff's submissions about the Authority's first decision is that the plaintiff has mischaracterised the decision and ignores that he again had outstanding charges, such that it was open for the Authority not to be satisfied that the plaintiff had demonstrated that circumstances of manifest injustice existed.
The Attorney submitted, in response to the plaintiff's submission that the Authority failed to take into account a mandatory consideration, that that ignores that on 3 May the plaintiff was charged with further offences. The Attorney submitted that when the plaintiff made his application in March he no longer had any outstanding charges, which had been the basis of the decisions in October and November 2022, such that he could have argued then that at least clause 223(1)(b) was engaged. However, on 3 May he was charged with new charges. So, the Attorney submits, the decisive factor in the previous decisions, of outstanding charges, was again relevant, and the plaintiff's contention that cl 223 was engaged was open to doubt.
The Attorney submitted that the plaintiff needed to explain how and why cl 223 was still engaged, given his position was the same as when the previous decisions were made, that is, he had outstanding charges. The Attorney submitted that in the addendum filed on his behalf on 4 May, the plaintiff did not refer to cl 223, but rather argued that the newly laid charges were oppressive and the timing suspicious. The Attorney submits that the Authority's decision "the application does not seek to provide a rationale as to cl of 223 for parole consideration" can be understood as the Authority expressing itself not to be satisfied that the plaintiff had sought to demonstrate the existence of facts to enliven a manifest injustice parole consideration under s 137B of the Act, and was correct, because the plaintiff had not explained how cl 223 was engaged when new charges had been laid.
The Attorney submitted that that construction of the Authority's decision is to be preferred because it makes sense of the decision, it takes into account the whole of the material and facts before the Authority, and the Court should not consider the Authority's decision with an eye attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [30].
In response, the plaintiff submitted that it is not this Court's role to read words into or out of the Authority's decision and that the Attorney's submissions demonstrated that the Authority's reasons were not clear.
The Attorney also submitted that the Authority's reasons do not provide evidence of a failure to take into account the circumstances prescribed by cl 223.
In response to Ground 1(b) the Attorney repeated that in his application and addendum the plaintiff did not seek to provide a rationale as to how cl 223 of the Regulation was still engaged, notwithstanding he had new outstanding charges.
As to Ground 1(c) the Attorney submitted that it could not be said that the Authority's decision was irrational or unreasonable in finding that the plaintiff did "not seek to provide a rationale as to cl of 223 for parole consideration" when in his addendum prepared after the new charges were laid, the plaintiff did not explain how cl 223 was still engaged notwithstanding the new charges, and therefore it was open to the Authority to reason as it did.
The Attorney also submitted that the Authority did not exercise a discretionary power provided by s 137B, because the discretion was only enlivened in circumstances provided by cl 223 of the Regulation as constituting manifest injustice, and the Authority was not satisfied that that jurisdictional fact existed, so the authorities relied on by the plaintiff on legal unreasonableness have no bearing on this decision.
In response, the plaintiff submitted that the principles of illogicality and irrationality apply to findings as to jurisdictional fact: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 per Crennan and Bell JJ, and that the Authority's decision to decline to embark on a substantive consideration of the manifest injustice circumstances or parole was an exercise, albeit preliminary, to the exercise of a power conferred by s 137B and had to be exercised reasonably.

Plaintiff's submissions on Ground 2

Grounds 2(a) to (c) are also interrelated.
In Ground 2(a), asserting a failure to take into account a relevant consideration, the plaintiff contends that in its notification of its determination of 21 July 2023 to stand over to 15 September 2023 consideration of his application "for Manifest Injustice and Anniversary Consideration", there is no indication that there was any evaluation of the grounds of his application by the Authority at its meeting on 21 July 2023.
The plaintiff submits that the grounds of his application of 25 May were set out in paragraph 4 of the application, and expressly relied on s 137B of the Act and cl 223(1)(b) and (c) of the Regulation, stating that the outstanding charge which formed the basis of previous parole refusal had been resolved and the sentence served, and therefore, a matter relevant to the decision to refuse parole was no longer relevant or has been addressed in a way that warrants reconsideration. The plaintiff submitted that the question of which of the cl 223(1) circumstances was nominated in his application was a mandatory relevant consideration by the Authority, that the Authority was required to consider the application to decide whether to embark on a substantive consideration of the existence of one of the circumstances of manifest injustice in cl 223, and the applicant's entitlement to parole. Because the applicant had identified a circumstance in his application, the Authority had to consider the application to enable it to determine if a cl 223 circumstance was identified. This required the Authority to engage with the considerations in an "active intellectual process": Tickner v Chapman (1995) 57 FCR 451, that is to read, identify, understand and evaluate the application. The plaintiff submitted the Authority failed to take into account his second application in that the Authority's notification of its decision does not suggest any active intellectual engagement with the cl 223(1) circumstances identified in the second application.
The plaintiff submitted that the Authority's decision did not reflect that it reviewed and understood the plaintiff's application and decided it was appropriate to obtain a Community Correction Officer's report, that that cannot be inferred from the decision because it does not say that. Rather, the plaintiff submitted, it appears the Authority stood over consideration of the second application because it wished to combine consideration of his second application with "anniversary" consideration of his parole.
In Ground 2(b) the plaintiff contends the Authority erred by taking into account an irrelevant consideration, being the provision for "anniversary" consideration of the plaintiff's eligibility for parole, which is in a distinct and separate statutory scheme under the Act.
The plaintiff accepts that the Authority has a broad discretion to adjourn its proceedings for "such reasons as it thinks fit", pursuant to cl 11(2) of Sch 1 to the Act, but submitted the reason for adjourning consideration of the plaintiff's application must be a lawful reason.
The plaintiff submitted that his non-parole period expired on 14 December 2022, so his "annual review date", as defined in s 137A(1A) of the Act, is 14 December 2023. The plaintiff submitted that "anniversary consideration" of his parole is not possible before 14 October 2023, since s 137A(1) and (2) specify that an offender may only apply to be released on parole 90 days before his annual review date, and the Authority must consider such an application not more than 60 days before the annual review date. Therefore, the plaintiff contends that when the Authority decided on 21 July 2023 to stand his matter over to 15 September 2023 "for Manifest Injustice and Anniversary Considerations" the Authority could not lawfully consider "anniversary considerations" on 15 September under s 137A of the Act, it was a prohibited consideration at that time, and therefore that was an irrelevant consideration.
The plaintiff did not accept the Attorney General's submission, relying on obiter observations of McClellan CJ at CL in Attorney General for New South Wales v New South Wales State Parole Authority & Anor [2006] NSWSC 865, that although s 137A of the Act places time limits on annual applications by offenders for consideration of parole on their annual review date, it does not prohibit the Authority from considering an offender's parole earlier than the 12 month anniversary.
The plaintiff also submitted that the request for a further Community Corrections Officer's report should not be regarded as an independent basis for the Authority's decision to adjourn consideration of his application, separate from the stated reason that consideration of the application was adjourned for "Manifest Injustice and Anniversary Considerations".
In Ground 2(c) the plaintiff asserts that the Authority's decision to stand over his application to 15 September was unreasonable, in that it had a duty to consider his application within a reasonable time, and the decision to adjourn lacked any "evident and intelligible justification" in circumstances where "anniversary consideration" of the plaintiff's parole was not possible on 15 September (for the reasons relied on in support of Ground 2(b)) and because the Authority already had a "Pre-Release Manifest Injustice Report" prepared by Community Corrections, recommending the plaintiff's release to parole, so it did not need a further report. The plaintiff submits it was unreasonable for the Authority to defer consideration of his second application for a further almost two months with a view to it occurring simultaneously with "anniversary" consideration. In so submitting, the plaintiff relied in part on the provision in s 141(2) of the Act that the question of whether an offender should be released on parole may be deferred once only and not for more than 2 months, and the time between when the application was filed in May and September, and indeed the time from when his first application was filed in March until September. The plaintiff submits that consideration of his application for parole had been significantly delayed by the Authority's error in considering his first application, and further delay until September to consider his application had the effect of rendering nugatory his application for early consideration of his parole on manifest injustice grounds before his annual review consideration.
The plaintiff submitted that the power in cl 11 of Sch 1 for the Authority to adjourn its proceedings must also be exercised reasonably, and with due regard for the purpose of s 137B, to provide for earlier consideration of parole than is available under the s 137A anniversary scheme.

The Attorney General's submissions on Ground 2

In response to Ground 2(a) the Attorney submitted that properly understood, the Authority's decision of 21 July was a procedural decision to adjourn, in order to obtain an up-to-date report to inform its consideration of the plaintiff's application, which was legally permissible for the Authority to do. The Attorney submitted that the Authority's need for a Community Corrections Officer's report was understandable given that the previous report was dated April 2023, predating the charges laid on 3 May 2023.
The Attorney submitted that it cannot be said to be unreasonable that the Authority would consider it useful to seek an updated Community Corrections report, and that such a report might be considered necessary for the Authority to consider the mandatory consideration of "the risk to the safety of members of the community of releasing the offender on parole", in light of the new charges, so it was open to the Authority to seek such a report.
The Attorney submitted that the plaintiff's assertion that the Authority failed to take into account a mandatory consideration is premature, because the only decision the Authority made was a procedural decision to adjourn and seek an up-to-date report, so the occasion for it to embark on a substantive consideration of the plaintiff's application and take into account mandatory considerations has not yet arisen.
Secondly, the Attorney submitted that even if it was mandatory for the Authority to consider the matter the subject of Ground 2(a) when deciding to adjourn, there was no evidence it failed to do so; that it is conceivable the Authority read and understood the plaintiff's application and decided it was appropriate to obtain a report. The Attorney submitted that the fact of the Authority having made a decision to adjourn does not suggest it failed to have regard to the alleged mandatory consideration, and a failure to mention a consideration does not demonstrate a failure to consider it: Minister for Corrections v Cawthray and the State Parole Authority [2015] NSWSC 1188 at [30]; Al Qatani v Parole Authority of New South Wales [2007] NSWSC 1270 at [15].
The Attorney submitted there is a want of evidence that the Authority had embarked on a substantive consideration of the plaintiff's second application and in deciding to adjourn it failed to have regard to the asserted mandatory consideration.
In response to Ground 2(b) the Attorney submitted that the plaintiff did not identify any provision in the Act which prohibits the Authority from having regard to the allegedly prohibited consideration, and no such provision exists. The Attorney submitted that s 135(3)(j) of the Act permits the Authority, in making a decision whether to release an offender on parole, to take into account "any other matters that the Parole Authority considers to be relevant." Therefore, the Attorney submitted, in a substantive consideration of the plaintiff's application, it would be open to the Authority to consider that the plaintiff was due for his next anniversary consideration in the next month, if it considered it relevant, and therefore it must be a permissible matter for the Authority to consider when making its procedural decision to adjourn and seek more information relevant to its substantive consideration.
The Attorney relied on the power in cl 11 of Sch 1 to the Act for the Authority to adjourn its proceedings for such reasons as it thinks fit, and inform itself of any matter in any such manner as it thinks appropriate, and also relied on cl 11(5) that "A decision of the Parole Authority is not vitiated merely because of any informality or want of form".
The Attorney submitted that in light of that provision, giving the Authority a broad mandate to conduct its proceedings as it sees fit, there is little room to imply from the statute a prohibited consideration, especially when the Act expressly makes reference to a small number of prohibited and mandatory considerations. So, the Attorney submitted, there is no basis in the statute to treat as a prohibited consideration what the plaintiff asserts to be such, that is, his annual review. The Attorney submitted that, given the Authority had, in November 2022, scheduled a meeting on 20 October 2023 to consider the plaintiff's annual review, it is an unlikely reading of the Authority's decision of 21 July that it stood over the application to 15 September to undertake an anniversary review on that date.
So the Attorney submitted the reference in the decision of 21 July to "Manifest Injustice and Anniversary consideration" should be construed as meaning consideration of whether the plaintiff should be released under the manifest injustice provisions or whether the question of his parole should await his anniversary consideration. The Attorney submitted this reading of the decision should be preferred because it makes sense, because it takes account of the already scheduled anniversary consideration on 20 October 2023, and because the Court should not approach the Authority's decisions with an eye attuned to the perception of error.
However, the Attorney submitted, if the plaintiff's characterisation of the decision was correct, it would not involve jurisdictional error on the part of the Authority because, relying on the remarks of McClellan CJ at CL at [70] of Attorney General for New South Wales v New South Wales State Parole Authority, there is not jurisdictional error in the Authority dispensing with the time limits imposed on offenders in s 137A and considering anniversary parole ahead of the 60 day time limit in that section.
The Attorney also submitted that if there was error in the Authority considering the plaintiff's anniversary review, it was not material to the decision to adjourn, because the Authority plainly considered it needed a further Community Corrections Officer's report, and that was an independent, sufficient and lawful reason for adjourning the matter. The Attorney submitted that an error is material to a decision only if compliance could realistically have resulted in a different decision: MZAPC V Minister for Immigration and Border Protection (2021) 273 CLR 506.
In response to Ground 2(c) the Attorney submitted it was not legally unreasonable or irrational for the Authority to adjourn its consideration of the plaintiff's case to obtain an up-to-date Community Corrections Officer's report, particularly having regard to the power in cl 11 of Sch 1 for the Authority to adjourn its proceedings for such reasons as it thinks fit, and the power in cl 222A(3) to require a Community Corrections Officer's report.
The Attorney submitted it could not be contended that the adjournment was not for a reasonable time in light of the evidence that the preparation of a Community Corrections Officer's report normally takes six weeks, and having regard to s 141, which provides that once the Authority has embarked on a substantive review of whether an offender should be released on parole, the Authority may defer the decision for not more than 2 months. The Attorney submitted that while that provision was not engaged in this case, because the Authority had not begun a substantive consideration of the plaintiff's application, it provided some guidance as to what the statute considered a reasonable time for an adjournment.

Relevant statutory provisions

A consideration of the issues raised by the parties requires a consideration of the following provisions of the Act and Regulation.
Section 2A of the Act provides, as relevant: "2A Objects of Act (1) This Act has the following objects - … (d) to provide for the rehabilitation of offenders with a view to their reintegration into the general community. (2) In the pursuit of these objects, due regard must be had to the interests of victims of the offences committed by offenders."
Section 135 provides, as relevant: "135 General duty of Parole Authority relating to release of offender (1) The Parole Authority must not make a parole order directing the release of an offender unless it is satisfied that it is in the interests of the safety of the community. (2) In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must have regard to the following principal matters - (a) the risk to the safety of members of the community of releasing the offender on parole, (b) whether the release of the offender on parole is likely to address the risk of the offender re-offending, (c) the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole or at a later date with a shorter period of supervised parole. (3) In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must also have regard to the following matters - (a) the nature and circumstances of the offence to which the offender's sentence relates, (b) any relevant comments made by the sentencing court, (c) the offender's criminal history, (d) the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole, … (f) any report in relation to the granting of parole that has been prepared by a community corrections officer, … (j) any other matters that the Parole Authority considers to be relevant."
Section 137 provides, as relevant: "137 Consideration of parole when offender first eligible for parole (1) The Parole Authority must consider whether or not an offender should be released on parole at least 60 days before the offender's parole eligibility date.
Section 137A provides, as relevant: "137A Consideration of parole in subsequent years (1) At any time within 90 days before an offender's annual review date, the offender, if still eligible for release on parole, may apply to be released on parole. (1A) For the purposes of this section, an offender's annual review date occurs on each anniversary of the offender's parole eligibility date. (2) After receiving such an application, but not more than 60 days before the offender's annual review date, the Parole Authority must consider whether or not the offender should be released on parole. (3) Despite subsection (2) - … (c) in any case, the Parole Authority may decline to consider an offender's case for up to 3 years at a time after it last considered the grant of parole to the offender."
Section 137B provides: "137B Consideration of parole so as to avoid manifest injustice The Parole Authority may consider an offender's case at any time after the date on which the offender first becomes eligible for release on parole, and without the need for an application, in such circumstances as may be prescribed by the regulations as constituting manifest injustice."
Clause 223 of the Regulation provides, as relevant: "223 Circumstances constituting manifest injustice (1) For the purposes of section 137B of the Act, the following circumstances are prescribed as circumstances of manifest injustice where parole has been refused or revoked (whether before or after release) - … (b) if it becomes apparent that a matter that was relevant to the decision to refuse or revoke parole is no longer relevant, (c) if it becomes apparent that a matter that was relevant to the decision to refuse or revoke parole has been addressed in a way that warrants reconsideration of the decision or can be so addressed by imposing additional conditions on parole"
Clause 222A provides: "222A Preparation of reports by community corrections officer (1) A report prepared by a community corrections officer for the purposes of section 135 of the Act (a parole report) must address the following matters - (a) whether or not the officer recommends that a parole order be made for the offender, (b) the risk of the offender re-offending while on release on parole, and the measures to be taken to address that risk, (c) how the offender would be managed in the community while on release on parole, as set out in a post-release plan prepared by a community corrections officer in relation to the offender, (d) the offender's attitude to the offence to which his or her sentence relates, including, where relevant, the offender's attitude to any victim of the offence to which his or her sentence relates, or to the family of any such victim, (e) the offender's willingness to participate, and participation, in rehabilitation, work, education or other programs in custody and the availability of those programs, (f) the offender's behaviour in custody, including any correctional centre offences or other offences committed by the offender while in custody, (g) the offender's response to any previous period of supervision in the community (if applicable) and the willingness of the offender to comply with any conditions to which his or her parole may be made subject. (2) A parole report for an offender is not required to include a matter under subclause (1)(b)-(g) if a previous parole report has been prepared for the offender and the community corrections officer is of the opinion that the particulars of that matter have not changed since the previous report was prepared. (3) Despite subclause (2), the Parole Authority may require a parole report for an offender to include any or all of the matters referred to in subclause (1)(b)-(g)."
Clause 11 of Sch 1 to the Act states: "11 General procedure (1) Except as otherwise provided by this Act or the regulations - (a) meetings of the Parole Authority are to be held at such times and places as are fixed by the Chairperson, and (b) the procedure for the convening of meetings of the Parole Authority and for the conduct of business at those meetings is to be as determined by the Chairperson. (2) The Parole Authority may from time to time adjourn its proceedings to such times, dates and places and for such reasons as it thinks fit. (3) The Parole Authority is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks appropriate. (4) Proceedings before the Parole Authority - (a) are to be open to the public, unless the Parole Authority determines in a particular case that the proceedings are to be conducted wholly or partly in the absence of the public, and (b) are not to be conducted in an adversarial manner, and (c) are to be conducted with as little formality and technicality, and with as much expedition, as fairness to any affected person and the requirements of this Act permit. (5) A decision of the Parole Authority is not vitiated merely because of any informality or want of form."
Section 141 of the Act provides, as relevant: "141 Decision following review (1) After reviewing all the reports, documents, submissions and other information placed before it, the Parole Authority must decide - (a) whether or not the offender should be released on parole, or (b) whether, for reasons specified by the Parole Authority in its minutes, the question of whether or not the offender should be released on parole should be deferred. (2) The question of whether or not the offender should be released on parole - (a) may be deferred once only, and (b) may not be deferred for more than 2 months."

General principles

The role of the Court on this application is not to review the merits of the Authority's decisions, but to consider whether in making the decisions the Authority committed an error of law: Attorney General for New South Wales v New South Wales State Parole Authority & Anor per McClellan CJ at CL at [74].
In the same decision, McClellan CJ at CL said: "It is important when considering the 'reasons' of a body such as the Parole Authority that the court not adopt a 'fine tooth comb' approach to its published reasons", in accordance with Minister for Immigration and Ethnic Affairs v Wu Shan Liang. It is inappropriate to subject the Authority's reason to minute examination or fine scrutiny with an eye attuned to the perception of error: Attorney General of New South Wales v George [2020] NSWSC 1621.
In Minister for Corrections v Cawthray and the State [2015] NSWSC 1188, Bellew J said at [30]: "The reasons of an administrative decision maker are meant to inform. They are not meant to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which they have been expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang".

Consideration of Ground 1

The plaintiff's essential challenge to the Authority's decision of 5 May is that contrary to its stated reason that "the application does not seek to provide rationale as to cl of 223 for parole consideration", he had relied on cl 223(1)(b) and (c), and that in so deciding, the Authority failed to take into account that aspect of his application, acted unreasonably in so doing, and made a decision for which there was no evidence.
In his application, the plaintiff referred to cl 223(1)(b) and (c) as the basis for his Manifest Injustice grounds. That Regulation states: "(1) For the purposes of section 137B of the Act, the following circumstances are prescribed as circumstances of manifest injustice where parole has been refused… … (b) if it becomes apparent that a matter that was relevant to the decision to refuse or revoke parole is no longer relevant, (c) if it becomes apparent that a matter that was relevant to the decision to refuse or revoke parole has been addressed in a way that warrants reconsideration of the decision or can be so addressed by imposing additional conditions on parole".
The relevant matter identified in his application as the matter that was no longer relevant was the outstanding charge which was the basis of the October and November 2022 refusals of parole, and which, as the application recited, had been dealt with. However, on 3 May, the plaintiff was charged with fresh offences. So, at the time of the Authority's consideration of his application on 5 May he again had outstanding charges.
In the addendum of 4 May filed on his behalf, counsel for the plaintiff expressed dissatisfaction with the timing of the fresh charges and sought to distinguish them, as offences alleged to have occurred in 2015 to 2019, from fresh offences committed by an offender while on parole.
The Authority's decision was: "State Parole Authority notes Community Corrections Officer's report dated 18 April 2023. State Parole Authority declines parole consideration under the provisions of Manifest Injustice. Reason/s: application does not seek to provide rationale as to cl of 223 for parole consideration."
I consider that the plaintiff's approach to this decision has been with "a fine tooth comb", focusing too narrowly and critically on the wording of the Authority's stated reason for its decision. When examined as a whole, the decision's meaning and sense is understandable. Although the plaintiff's application and addendum referred to cl 223(1)(b) and (c), and took issue with the nature and timing of the charges laid on 4 May, they did not really engage with how the provisions of cl 223 were applicable to the applicant's case, now that he once again had outstanding charges. It was not sufficient to simply state the clauses.
It can be clearly inferred from the terms of the whole of the Authority's decision that the Authority considered the favourable Community Corrections Report, and the Manifest Injustice grounds referred to. It cannot be said that the Authority acted unreasonably, or failed to take into account a relevant consideration, or made a decision for which there was no evidence, when the plaintiff's application and addendum did not address how a matter that was relevant to the previous decisions to refuse parole, outstanding charges, was no longer relevant or had been addressed in a way that warranted reconsideration, when he again had outstanding charges.
The plaintiff has not made out any of his grounds of challenge to the Authority's first decision and his challenge to that decision must fail.

Consideration of Ground 2

The plaintiff's approach to the Authority's second decision also involves a "fine tooth comb". The powers of the Authority in cl 11 of Sch 1 to the Act to adjourn its proceedings for such reasons as it thinks fit, and cl 222A(3) of the Regulation to require a report, are fatal to the plaintiff's challenge to the decision of 21 July 2023. That decision can be fairly and sensibly read as a decision which shows that the Authority read and understood the plaintiff's application and decided to adjourn and seek a Community Corrections Officer's report, which decision cannot be said to be unreasonable given that the previous report of April 2023 predated the charges laid in May 2023. The time period of the adjournment, given the time necessary for a report to be prepared, was not unreasonable. A reading of the whole of the decision, including a reference to the much impugned "anniversary consideration", demonstrates, in my view, that the Authority was aware of all of the relevant circumstances of the plaintiff's case.
I do not consider that the reference to "anniversary consideration" demonstrates the Authority's intention to conduct that consideration on the adjourned date of 15 September. However, if it did, I incline to the view expressed by McClellan CJ at CL in Attorney General for New South Wales v New South Wales State Parole Authority that the time limits in s 137A of the Act on applications by offenders do not prohibit the Authority from considering that matter, particularly in this case when that date was approaching. That is, it was not a prohibited consideration by the Authority in making the decision to adjourn its consideration of the plaintiff's case to 15 September for a further report and informed consideration. To the extent it was a factor in the Authority's decision to adjourn its proceedings, it has not been demonstrated to be a sole or overriding consideration.
The plaintiff has not demonstrated that any aspect of the decision of that date was unreasonable, or that it took into account an irrelevant consideration, or that it failed to properly take into account his application. Therefore, the plaintiff's challenge to the Authority's second decision fails.
The plaintiff has not succeeded in demonstrating that any error of law was made by the Authority in either decision challenged in these proceedings. Therefore the summons is dismissed.
The Attorney General, if successful, did not seek a costs order. Therefore I make no order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2023

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