[44] In my opinion, the defendant, whether by choice or obligation, delivered reasons for its decision. In the course of doing so it failed to provide reasons that properly or adequately explained that decision. It seems to me to be sensible, and not contrary to relevant authority, that an administrative body that chooses, or is required, to furnish reasons for a decision, should thereby become exposed to scrutiny in the same way as a judge or magistrate. The wisdom that informs the standard in the latter case could not sensibly be discarded when applied to the particular circumstances of the defendant in the present case. If it were otherwise, an obligation or decision to give reasons would have the potential to degenerate into formulaic repetition and the production of reasons of no practical use. Nor is this in conflict with the very important notion, explained by McClellan CJ at CL in Hall (supra), that reasons of an administrative body such as the defendant should not be examined with a fine tooth comb. In the circumstances, the plaintiff is entitled to an order requiring the defendant to remedy an error of law."
24 With great respect, I adopt the reasoning of Harrison J.
25 As a consequence, and as conceded by the Attorney General, there has been a failure by the Authority to give adequate reasons for the decision.
Ground 2: Absence of Evidence / Wrong Test
26 As recited, the reasoning of the Authority for the revocation on 20 March 2008 and the confirmation of that revocation on 28 April 2008 was expressed in the reasons of the Chairperson delivered, ex tempore, on 28 April 2008. The Court must be extremely careful not to impose upon the Authority impossible conditions. Further, like all ex tempore judgments, it is impermissible for a Court to comb through the judgment for the purpose of finding infelicitous expressions upon which orders would be based. Nevertheless, the use of the expression "unlikely to adapt" as the basis for the revocation initially made on 20 March 2008 was a reason repeated on a number of occasions. Indeed, it is the only reason expressed by the Chairperson for each decision on revocation, namely, 20 March 2008 and 28 April 2008.
27 This is an understandable position. The only evidence before the Tribunal was that, at its highest, Mr Murray was "unlikely to adapt to normal lawful community life", not that he was "unable" so to do, nor even "unlikely to be able to adapt".
28 That evidence was expressed a number of ways. The Pre-Sentence Report (a report available to the sentencing judge who granted parole) dealt with previous breaches of parole and his attitude to supervision. There was a further report entitled the Revocation Prior to Release Report. It recommended that Mr Murray's parole be revoked prior to release. It did so on the basis that the Authority may decide to:
"vary Mr Murray's parole order to that of a supervised order … or … revoke Mr Murray's parole order prior to release."
29 In evidence, Mr McKinnon, on behalf of the Probation and Parole Service, made a number of comments. Unfortunately because of technical issues associated with the audio equipment, not all of it was heard by the Authority or transcribed. Nevertheless, there is no doubt that Mr McKinnon expressed a dilemma for the Service and expressed the view that Mr Murray was "unlikely to adapt to normal lawful community life if released now". Moreover, while recommending revocation of the parole, the Probation and Parole Service stated that it would be happy if the Authority released Mr Murray on supervised parole and subject to the conditions contained in the Pre-Release Report. Mr McKinnon expressed "reservations that Mr Murray can adapt to normal lawful community life".
30 None of the evidence before the Authority dealt with the capacity of Mr Murray to adapt to such life, only the likelihood that he would or would not adapt. While there may be nice conceptual distinctions between being satisfied on the balance of probabilities of a person's ability, on the one hand, and the likelihood that the person is unable, on the other, the Authority did not express itself in those terms.
31 The power of revocation is conditioned, relevantly, on the satisfaction by the Authority of the incapacity of an offender to adapt. The evidence did not address incapacity. Nor was incapacity the basis of the decision of the Authority. The Authority addressed the likelihood of adapting, not even the likelihood of being able to adapt.
32 On the basis of the foregoing, the Authority has acted in the absence of evidence of the criterion that it must consider and/or has asked itself the wrong question and acted upon the wrong criterion.
33 When the Authority determined the "likelihood" as distinct from "capacity", it asked itself the wrong question and applied a wrong and inadmissible test. As expressed by the High Court of Australia:
"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in circumstances, to make an erroneous finding or to reach a mistake in conclusion and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds it authority or powers. Such an error of law is a jurisdictional error which would invalidate any order or decision of the tribunal which reflects it." ( Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.)
34 As stated by Jordan CJ:
"I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R v Minister of Health [1939] 1 KB 232 at 245-246. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of the statute investing a tribunal with jurisdiction leaves it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply 'a wrong and inadmissible test': Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898 at 917; or to 'misconceive its duty', or 'not to apply itself to the question which the law prescribes': R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 242-243; or 'to misunderstand the nature of the opinion which it is to form': R v Connell (1944) 69 CLR 407 at 432; in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to issue of a prerogative writ of mandamus to hear and determine the matter according to law: R v Board of Education [1910] 2 KB 165." ( Ex parte Hebburn Ltd v Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420; (1947) 64 WN(NSW) 107 at 108, per Jordan CJ with whom Davidson and Street JJ concurred.)
35 In the circumstances before the Court, the Authority has asked itself the wrong question or identified the wrong issue and that mistake goes to a fundamental precondition on the exercise of its jurisdiction. Alternatively, it has taken account of an irrelevant consideration. As such, there is jurisdictional error, because the Authority misunderstood the nature of the opinion that it was to form. The exercise of the jurisdiction has been, and remains, constructively unexercised. There is error of law and error of jurisdiction. Prerogative writ, or orders in the nature of prerogative writ, will issue.
36 Further, and in the alternative to the foregoing, there is no basis, on the evidence before the Authority, upon which it could have found that Mr Murray was "unable to adapt to normal lawful community life".
37 Legal principles establish that it is an error of law if findings are made upon which there is no evidence. This is in contradistinction to findings that are irrational or based upon insufficiency of evidence: see Australian Gas Light Company v Valuer-General (1940) 40 SR(NSW) 126; (1940) 57 WN(NSW) 53, per Jordan CJ. It is not sufficient (or a different issue) if the findings are illogical or insufficient. But an absence of evidence to support findings of fact crucial to the determination of the Authority is an error of law, upon which basis prerogative writ (or orders in the nature thereof) will issue: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 (per Mason CJ). (See also Esho v Parole Board Authority of NSW [2006] NSWSC 304 at [28] and following.)
38 As a consequence of the foregoing, I find, also, that the Authority has issued the revocation of parole in the absence of evidence of the criterion upon which it purported to act and/or that it issued the revocation without jurisdiction so to do because it asked itself the wrong question and/or applied the wrong test. As a consequence, prerogative writ, or orders in the nature thereof, shall issue.
39 Certiorari and mandamus (or orders in the nature thereof) are discretionary. Prohibition is not. Because Mr Murray is currently held in custody in circumstances where there is a valid grant of parole, it is at least arguable that prohibition would issue, although not necessarily against the same parties. The Court is not satisfied of any other discretionary issue that would override the implementation of the order of the District Court granting parole. Nevertheless, there was evidence before the Authority, upon which it could have based an order, that such parole be on a supervised or conditional basis. Mr Murray accepted those proposed conditions.
40 Prohibition was not sought and is not granted. Given the specialist nature of the Authority and its particular expertise, it is appropriate that, in the exercise of my discretion, I issue the orders with an effect commencing 12noon Friday 19 September 2008, to allow the Authority the time to consider the conditions appropriate for Mr Murray's release and, to the extent desired, to impose them.
41 In the circumstances, I make the following orders: