Osman v State Parole Authority & the Attorney General of New South Wales

Supreme Court of NSW|2020-10-06|Before: Wilson J

uth Wales Jurisdiction: Common Law Date of Decision: 10 July 2020 Before: State Parole Authority, constituted by Chairperson and members

Judgment

Maywand Osman is presently serving a sentence of imprisonment, having been convicted of offences of affray contrary to s 93C of the Crimes Act 1900 (NSW) and causing grievous bodily harm contrary to s 35 of the same Act. He first became eligible for parole on 22 August 2017; his total sentence expires on 22 November 2020.

The Evidence

The plaintiff read and relied upon two affidavits affirmed by Rhiannon McMillan on, respectively, 27 August 2020 and 16 September 2020. In her first affidavit Ms McMillan, who is the plaintiff's solicitor, provided some background information relevant to the hearing of the plaintiff's application for parole, and information to explain the delay in filing the present proceedings (principally connected with the procedural requirements relevant to obtaining a grant of legal aid to pursue them). She also provided the transcript of the hearing before the Authority on 10 July 2020, and of the Authority's decision of that day; together with an earlier decision of the Authority of 29 June 2018, similarly refusing the plaintiff parole. In her second affidavit, Ms McMillan produced a copy of an affidavit of Ahmed Kilani sworn on 8 July 2020, which was before the Authority on 10 July 2020.
The Attorney read and relied upon the affidavit of Patrick Mullane affirmed on 25 September 2020, by which Mr Mullane, solicitor for the Attorney, provided information about, and produced a volume of material related to, parole proceedings relevant to the plaintiff.
The plaintiff took objection to the contents of much of Mr Mullane's affidavit and the material he produced. Rather than expend a considerable amount of the time allocated to hearing the substantive claim in dealing with objections to evidence, the parties were content to leave the question of admissibility to the Court on an indication that, at least as a preliminary view, the Court was unlikely to need to consider any evidence except that referred to by the parties during the course of submissions as particularly salient to the determination of the plaintiff's complaints.
A schedule setting out the evidence admitted by the Court is an annexure to these reasons.

The Proceedings Before the Authority

The plaintiff was refused parole by the Authority on 23 June 2017, 29 June 2018, and 8 March 2019. After the last refusal, the plaintiff sought a review of the March 2019 decision.
On 10 July 2020, after a number of adjournments of the proceedings, the Authority convened to hear the application for review. To some extent the hearing also functioned as an anniversary hearing. The plaintiff and the Commissioner of Corrective Services NSW ("the Commissioner") were each represented by counsel. The Authority was constituted by the Chairperson (and Judicial Member), two Official Members, and two Community Members.
The Authority received evidence and submissions, the former in writing and the latter almost entirely so.
It is not necessary for the purposes of these proceedings to consider the evidence that was before the Authority, save for that which is directly relevant to a ground of appeal, that being the evidence of Dr Susan Pulman, filed for the Commissioner, and of Ahmed Khilani, filed for the plaintiff.
Dr Pulman, a forensic psychologist and clinical neuropsychologist, provided two reports, being a report of 2 October 2019 and a supplementary report of 29 May 2019, following assessments she had made of the plaintiff.
Dr Pulman's reports were lengthy and detailed, and it is not necessary to consider the greater part of what she reported, for present purposes. She took a history from the plaintiff, and comprehensively set out the details of the plaintiff's personal history, including his family circumstances, educational and vocational background, his account of the offences for which he is imprisoned, and his conduct and progress whilst incarcerated.
Of more salient matters, the plaintiff told Dr Pulman that the Pro-active Integrated Support Model ("PRISM") course had made a real difference to him, and that he would like to continue the programme when released into the community. He believed it helped him gain insight into his behaviour, the risks of being associated with a negative peer group, and the importance of focusing on future positive goals.
Dr Pulman noted in her first report that there was no indication that the plaintiff had been engaged in any violent behaviour during his incarceration. He had associations with people who are considered to hold extremist beliefs in custody, and had institutional misconduct charges for unlawfully using a phone or fax, intimidation, and failing to comply with correctional centre routine. Dr Pulman noted that Corrective Services Case notes recorded that he was influenced by other Muslim offenders, including those with confirmed extremist beliefs, although the depth and nature of his religious ideology was unclear.
In relation to his criminal history, the plaintiff told Dr Pulman that he had talked about his offending behaviour as a component of the PRISM programme. In his teenage years he had aspired to the "gangster way of life". He gave an account of the offences for which he is serving a sentence, acknowledging that it "got out of hand and I take responsibility for my actions, I didn't know however that they were going to turn up with weapons, I thought we were just going to have a fight and it would all be over with". After being released from prison, he was placed on an Interim Control Order, and acknowledged to Dr Pulman that he had breached the order, but did not appear to her to accept the significance of the breach, stating he was using a pay phone and "wasn't doing anything sinister".
Dr Pulman questioned the plaintiff about his knowledge of groups such as ISIS, and the plaintiff responded that initially he had considered that "everyone supported ISIS at Goulburn, that you shouldn't trust mainstream, we thought great when ISIS first started as it means Islam will spread, it's our faith". Having engaged with the Imam with the PRISM programme he said that he understood "the need to trust those who are educated in the religion, to trust in the community, those who had completed their qualifications in the Islamic faith". He acknowledged that he had learned how to read Arabic from other high security classification offenders convicted of national security offences, and described being exposed to general discussions in regard to terrorist offences and organisations. The plaintiff maintained that at no stage did he support any form of ideologically motivated violence and has renounced the actions of offenders convicted of national security offences and the legitimacy of terrorist organisations.
Dr Pulman noted that his reports of having a naïve understanding of terrorist groups before being in custody stood in contrast to the material found from the counter terrorism raids to which the plaintiff had been subjected, and the nature of his religious associates.
Dr Pulman noted that the plaintiff's PRISM reports identified his contact with alleged and confirmed extremists, including family and friends, as his primary extremist violence risk indicator. Dr Pulman noted that the plaintiff had expressed views that he does not hold any religious belief or attitude which condones violence or engagement, or encouragement of terrorism related activities. She concluded that it remains indeterminate: "as to whether he has internalised these views or is expressing such views in the knowledge that not doing so would hinder his prospects of release".
The plaintiff denied any current motivation to engage in any activities supporting violent and religious extremism. Dr Pulman noted that he had demonstrated identification with group activities, and the associated excitement and adventure, and "his ability to reject this lifestyle is yet to be tested".
Dr Pulman concluded that the plaintiff's educational, employment, and criminal history suggested antisocial tendencies and difficulties with self-regulation. She thought that it was difficult to determine the level of risk of the plaintiff engaging in, or inciting or assisting others to engage in, terrorist acts or violent extremism, given that "his expressed view and beliefs cannot be tested within his current custodial environment". Dr Pulman noted that a number of risk factors identified as part of his involvement in the PRISM programme continued to "present challenges for which [the plaintiff] reportedly requires ongoing support". The reports stipulated that the plaintiff continues to minimise the risk of contact with his previous associates, and Dr Pulman noted that this suggests that there continues to be some risk that he may re-engage with previous, or make new, associates who are prepared to engage in "terrorist acts, or that he may be influenced by the view of such associates". Risk assessment tools administered to the plaintiff informed Dr Pulman's opinions as to the risk of extremist violence, and violence more broadly.
Mr Khilani swore an affidavit on 8 July 2020. In it he stated that he was employed as a Prison Muslim Chaplain by the Islamic Council of NSW and, in the course of that employment, he visits prisons across the state and provides pastoral and spiritual care to inmates who seek it. He has worked as a religious mentor for some 20 years, and as a Prison Chaplain, specialising in working with inmates convicted of terrorism or terrorism related offences for 6 of those 20 years. Mr Khilani has also advised government agencies on issues connected with "de-radicalisation" and disengagement from religious extremism.
As part of his chaplaincy work, Mr Khilani first met the plaintiff in April 2015 and saw him on about 20 occasions from then until July 2020. He formed the view that the plaintiff had, over that time, changed from a man with rigid thinking and little insight to a far more open-minded individual engaged with positive change in his life. It was Mr Khalil's "professional opinion" that the plaintiff: "[…] is not a religious extremist and poses no threat to others and to society in general. He has excellent family support from his direct and close family and I am very confident he can be reintegrated into the community with little drama".
Both the plaintiff and the Commissioner filed written submissions. Although the Commissioner relied upon earlier submissions, it is not necessary to have regard to any but those prepared for the proceedings of 10 July 2020, those - together with the corresponding submissions filed for the plaintiff - being the only submissions referred to in a material way during the proceedings in this Court.
In his submissions to the Authority, the plaintiff accepted that consideration of his application for parole was governed by Division 3A of Part 6 of the Crimes (Administration of Sentence) Act 1999 (NSW) (the "CAS Act"), since he had previously been convicted of a "terrorism offence", as defined by s 159A of the CAS Act (which, in turn, references, relevantly, s 3 of the Crimes Act 1914 (Cth)), and was thus deemed a "terrorism related offender". The plaintiff argued however, that Division 2 of Part 6 also directly applied to the determination of his parole, as the sentence imposed upon him was one of more than three years duration, and a non-parole period had been specified. On that basis, it was submitted that the Authority should have regard to s 135 of the CAS Act in making its decision.
The plaintiff argued that s 159C of the Act should be construed with a focus on the specific conduct the section proscribes and, considered in that way, it was argued that it could not be concluded that the plaintiff "will, could, or might engage in, or incite or assist others to engage in, terrorist acts or violent extremism".
The Commissioner argued that the Authority was precluded from granting the plaintiff parole by operation of s 159C(1) of the CAS Act, because the plaintiff was a terrorism related offender about whom it could not reach the high standard of satisfaction required that the plaintiff would not engage in or incite or assist others to engage in terrorist acts or violent extremism.
At the hearing before the Authority Senior Counsel for the Commissioner sought an adjournment to permit the Commissioner to directly address the plaintiff's challenge to the correctness of the Authority's previous construction of s 159C of the CAS Act, in its earlier 2018 decision. There was debate on the construction issue before the Authority, with counsel making competing submissions as to the proper interpretation of the provision. Ultimately, the adjournment application was refused, and the Authority proceeded to determine the review.
In its ex tempore reasons, the Authority set out the history of parole proceedings relevant to the plaintiff, referring particularly to the "detailed judgment of the Authority in relation to Mr Osman on 29 June 2018", with the Authority stating: "We accept the approach outlined in that judgment".
Noting that the plaintiff is a terrorism related offender, the Authority observed: "The consequence is that div 3A of the Crimes (Administration of Sentences) Act 1999 applies. Significantly, 159C(1) mandates that the Parole Authority must not make a parole order directing the release of an offender who is known to the Parole Authority to be a terrorism-related offender unless (a) the Parole Authority is satisfied that the offender will not engage in or incite or assist others to engage in terrorist acts or violence extremism and the offender is otherwise eligible under this Act to be released on parole. Those are conjunctive, but you do not get to (b) until are satisfied of (a). Clearly, unless there is satisfaction reached in accordance with S159C (1)(a), the offender's eligibility otherwise does not fall to be considered. "Terrorist act" has the same meaning as in pt 5.3 of the Criminal Code Act 1999; "Violent extremism" is understood to mean the engagement in acts involving violent behaviour that is motivated or driven by extreme beliefs, whether religious or otherwise, that present a risk to the safety of members of the community. The fact is parole is precluded unless the Authority is satisfied that the offender will not engage the conduct that is proscribed. The Authority must be positively satisfied (in the sense used in the determination of 2018) that the offender will not engage in or incite or assist others to engage in terrorist acts or violent extremism. Unless so satisfied, there is no power to grant parole."
The judgment also dealt with the plaintiff's submission that s 135 of the CAS Act applied to his application, and that the Authority should give particular weight to the possibility that he would be released without supervision, if parole was not allowed, insofar as that was relevant to determining whether his release was in the interests of the safety of the community. The Authority's conclusion as to that submissions was: "That consideration should not be incorporated into the test required for 159C(1)(a). It is true that the legislation provides only that the Authority is not required to consider the matters in s 135, but looking at the construction of the Act, the only logical conclusion is that that particular consideration should not be incorporated into the test for 159C(1)(a). It is clear that unless satisfaction is reached in relation to 159(1)(a) you simply do not get to (b), and there is no power to make a parole order."
The evidence before the Authority was noted in brief, and some focus given to the reports prepared by Dr Pulman, which the Authority regarded both as "instructive" and: "the only evidence that the Authority has at this point in terms of expert opinion about the matter".
Having received the evidence and submissions, the Authority's determination to refuse parole was expressed thus: "The fact remains that the test posed in 159C(1)(a) is a very rigid test. Some may even say the test is too harsh, but that is the test and the effect of the test is that it actually precludes the Authority from making an order and directing the release of an offender on parole, where the offender is known to the Parole Authority to be a terrorismrelated offender, unless satisfaction is reached in terms of S159C(1)(a) namely, unless the Parole Authority is satisfied that the offender will not engage in or incite or assist others to engage in terrorist acts or violent extremism. It is a very strict test, and the expert evidence of the psychologist is instructive, contrary to the submissions on behalf of Mr Osman. It is instructive. It is instructive and is the only evidence that the Authority has at this point in terms of expert opinion about the matter. The conclusion is that on the totality of the material presently available, the Authority is not positively satisfied (in the sense of the Osman determination of 2018) that the offender will not engage in or incite or assist others to engage in terrorist acts or violent extremism. Accordingly, the Authority has no power to make an order for parole."

The Application for Judicial Review

The application is for judicial review of the decision of the Authority, invoking the supervisory jurisdiction of this Court, as expressed in s 69 of the Supreme Court Act. Although jurisdictional error can be difficult to distinguish from non-jurisdictional error, it was described by the High Court in Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, at 179, thus: "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 some circumstances. to make an erroneous finding or to reach a mistaken conclusion and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
Referring to Craig v South Australia, the errors which will constitute jurisdictional error were summarised in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1, at [72]-[73], as follows: "First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error 'if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist' (emphasis added). Second, the Court pointed out that jurisdictional error 'is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers' (emphasis added). (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Third, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that 'the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern' and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks' Union. As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that - examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example." (Footnotes omitted).
The plaintiff's principle complaint is that the Authority misconstrued and failed to exercise its jurisdiction pursuant to s 159C and s 159D of the CAS Act. It is contended that the Authority was required to make an evaluative judgment of the matters set out in s 159C, based upon a proper construction of the provision, but failed to properly exercise that jurisdiction by misconstruing the law and failing to give content to the criterion of the evaluative task.
There is also a complaint relating to purported failures of the Authority with respect to the material taken into account in making the decision to refuse parole. In reaching findings of fact not supported by probative material, and uniformed by logic, it is submitted that there was further error.
The Attorney submits that the construction given by the Authority to s 159C of the CAS Act was not erroneous, and its decision complied with the requirements of ss 159C and 159D. Further, it is argued that there was no error of law in the treatment of the evidence of Dr Pulman and Mr Kilani.

Determination

There is no question that a decision to grant or refuse parole is one which is amenable to review by the Supreme Court: Esho v Parole Board Authority of NSW [2006] NSWSC 304; Attorney General of New South Wales v Chiew Seng Liew [2012] NSWSC 1223.
Section 69 of the Supreme Court Act preserves the Curt's jurisdiction to grant any relief or remedy that was formerly by way of writ. It provides: 69 Proceedings in lieu of writs (1) Where formerly - (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act - (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. (2) Subject to the rules, this section does not apply to - (a) the writ of habeas corpus ad subjiciendum, (b) any writ of execution for the enforcement of a judgment or order of the Court, or (c) any writ in aid of any such writ of execution. (3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings - (a) jurisdiction to quash the ultimate determination of the court or tribunal, and (b) if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.
Errors of the nature contended for by the plaintiff are capable of being understood as jurisdictional error, open to be corrected by this Court.
It is important at the outset, however, to clearly state that jurisdictional review is not a means of reviewing the merits of the impugned decision. It was on that basis that the Court expressed the preliminary view at the hearing of this matter that it should not be necessary to have regard to much of the evidence produced by Mr Mullane in his affidavit.
The legislature has conferred upon the Authority the power to determine the merits of granting parole to an individual, and the Authority is specially constituted for that task. Its members are drawn from a wider range of experience and expertise than judicial or legal experience alone, and its consideration of the issues that routinely arise in parole hearings could not be reproduced or mirrored by a court. Jurisdictional review is directed to questions of compliance with the law. Importantly, in this instance, the principle question is whether the Authority correctly construed, and complied with, its statutory obligations pursuant to s 159C of the CAS Act.
I have referred already to the narrow time frame in which these proceedings have been brought. That narrow timeframe raises a further issue which it is convenient to note at the outset, that of utility. The plaintiff's parole is due to expire in a matter of weeks: there must in those circumstances be a real question as to the utility of these proceedings since, even if the orders he seeks are made, there would likely be at least some delay in the Authority reconsidering the question of parole. Whether the plaintiff would realise his liberty much if any sooner than the expiration of his sentence may be doubtful.
The plaintiff contends that there is utility in bringing the proceedings, to him, but also to other terrorism offenders.
Whilst a decision of a single judge of the Court will do little to clarify matters with respect to other terrorism offenders (although it is a necessary stepping stone to seeking a more authoritative statement of the law), I accept that there may be utility to the plaintiff if consideration of these matters raises the possibility of liberty earlier rather than later. On that basis, I turn to consider the grounds advanced by the plaintiff.

The Grounds for Review

Grounds 1 to 3A all raise a complaint as to the misconstruction by the Authority of s 159C of the CAS Act. Ground 4 asserts the failure of the Authority to have regard to a mandatory consideration, being the matters in s 159D of the CAS Act. Ground 5 complains of the failure to have regard to s 135 of the Act; whilst grounds 6 and 7 contend that the Authority erred in its consideration of evidence. Ground 8 raises as an alternative the errors advanced by grounds 1 - 7 as errors of law on the face of the record.

Ground 1: The SPA misconstrued its jurisdiction under s159C(1) of the Act by failing to consider necessary components of the meaning of "terrorist act" and give that particular content to the meaning of s 159C, to wit, the particular nature of any such acts and the specified intentions set out in s 100.1 (1) (b) and (c) of the Criminal Act, such as constitutes jurisdictional error.

Ground 3: The SPA misconstrued its jurisdiction under s 159C (1) of the Act by failing to properly construe "violent extremism" as intended in that section, such as to constitute jurisdictional error.

By these grounds, the plaintiff contends that the Authority failed to properly construe its jurisdiction by failing to sufficiently engage with the criterion relevant to "terrorist acts" and by failing to properly construe the phrase "violent extremism". Since both "terrorist acts" and "violent extremism" appear side by side in s 159C(1)(a), it is convenient to deal with these complaints together.
It is conceded by the plaintiff that there was some "limited content" given to the meaning of the phrase "terrorist act" as it applies in the CAS Act, but it is argued that that consideration was insufficient. The Attorney argues that the test established by s 159C is a very strict test, and that it was both properly understood by the Authority, and properly applied. The reasons were adequate to explain the Authority's application of the provision, particularly so since the reasons adopted and incorporated the earlier decision of the Authority of 29 June 2018.
In considering this ground, it is useful to have regard to the proceedings before the Authority, as they were argued before it. The correct interpretation of s 159C, and the need for the Commissioner to make considered submissions on the matter, was the basis upon which he made his unsuccessful application for an adjournment of the hearing. It was a prominent feature of the written submissions filed for the plaintiff, and it was the subject of discussion between counsel and the Authority from the commencement of the hearing. The correct construction of s 159C was a matter clearly raised and argued by the plaintiff before the Authority, and it must have been a matter at the forefront of the Authority's consideration in determining the question of parole.
The Chairperson, referring to the plaintiff's arguments in submission, and to the earlier June 2018 determination of the Authority (then presided over by Wood J), observed in discussion with counsel for the plaintiff that the test for a grant of parole was as articulated by s 159C, and the approach to be taken by the Authority was to "follow the Act". His Honour noted that the state of satisfaction to be reached could be described as "positively satisfied" or "affirmatively satisfied" but: "[…] however the level or threshold of satisfaction is expressed, if you're there at the end and you can't say that the offender will not engage in conduct, then you can't be satisfied."
Counsel for the plaintiff disputed that as "speculation", but his Honour did not accept that characterisation. He said: "I don't agree it is speculation. There is no black and white. But it is an extremely rigid test and perhaps too rigid on one view. There's a good argument that it's too rigid, but the test is there and it requires satisfaction that things won't happen, the proscribed conduct won't occur. That's why it's such a hard test."
In the ex tempore reasons delivered by the Authority, the issue of the construction of s 159C was considered, with the Authority concluding that s 159C mandated that the Parole Authority must not make a parole order with respect to a terrorism offender unless satisfied that the offender will not do those things referred to in s 159C(1) of the CAS Act. Regarding ss(1)(a) and (1)(b) as conjunctive, the Authority was of the view that "you do not get to (b) until you are satisfied of (a).
Section 159C is found in Division 3A of Part 6 of the CAS Act. It is in these terms: 159C Limitation on release on parole of terrorism related offenders (1) The Parole Authority must not make a parole order directing the release of an offender who is known to the Parole Authority to be a terrorism related offender unless - (a) the Parole Authority is satisfied that the offender will not engage in, or incite or assist others to engage in, terrorist acts or violent extremism, and (b) the offender is otherwise eligible under this Act to be released on parole. (2) The grounds on which the Parole Authority may revoke the parole order of an offender who is known to the Parole Authority to be a terrorism related offender include that the Parole Authority has become aware that the offender may engage in, or incite or assist others to engage in, terrorist acts or violent extremism. (3) The grounds on which a judicial member of the Parole Authority may suspend the parole order of an offender who is known to the judicial member to be a terrorism related offender include that the judicial member has become aware that the offender may engage in, or incite or assist others to engage in, terrorist acts or violent extremism.
The Authority regarded the test posed by s 159C as "a very rigid test" which precluded it from making a grant of parole and directing the release of a terrorism offender unless satisfied that the "very strict test" established by s 159C(1)(a) was satisfied. It was not "positively satisfied (in the sense of the Osman determination of 2018)" and refused parole.
In its reasons, they being the relevant "record" for the purposes of judicial review, it is correct that, as the plaintiff complains, the Authority did not set out and separately consider, or "give content to", the criteria established by s 159C(1)(a), that the offender will not "engage in, or incite or assist others to engage in, terrorist acts or violent extremism". However, that does not in my view lead to the necessary conclusion that the Authority misconstrued and failed to fulfil its statutory duties.
One must firstly be conscious of the nature of proceedings conducted by an administrative tribunal. Specific powers and duties have been conferred on particular tribunals by the legislature with the intention of establishing bodies that are relatively informal, which can work flexibly and efficiently, and which will have a level of expertise in the relevant area. In the instant matter, Part 8 of the CAS Act sets out the role and procedure of the Authority. The Authority, unlike a court, is not restricted by the rules of evidence and procedure and, whilst it is presided over, as in the present instance, by a highly experienced judicial officer, its members bring to it a wider range of experience and knowledge than of the law alone.
Nor does the Authority bear an obligation to give extensive reasons for its decisions. Section 193C(1) of the CAS Act requires the Authority to "cause a record of its reasons… to be kept in the minutes of its meetings" for some decisions, including decisions in which parole is refused: s 193C(1)(a). The record of reasons must address (relevantly) those matters it is required by the Act or the Regulations to take into account: s 193C(2)(c).
Also, as the Federal Court observed in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107, at 364, [45]: "[…] in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Khadgi at [63] and Telstra v ACCC at [62])."
See also Attorney General of New South Wales v New South Wales State parole Authority [2006] NSWSC 865, per McClellan CJ at CL at [49], where this Court applied that principle to decisions of the Parole Authority: "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: see Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Neaves, French and Cooper JJ in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. This principle is obviously appropriate to the reasons of the Authority."
Although the plaintiff is critical of the Authority for failing to properly consider the construction of s 159C, it is clear from the argument before the Authority, from the discussion between the Chairperson and counsel during the hearing, and from the Authority's reasons, that the Authority was alive to the controversy between the parties as to the construction of s 159C, had considered the issue carefully, and proceeded on the basis that the provision had been properly considered and construed in June 2018, with the Authority as constituted in 2020 regarding that as the correct approach.
There was debate during the hearing before me as to the extent to which the Authority's June 2018 reasons could be regarded as incorporated into the 2020 decision and, whilst I accept that the factual and evidentiary matters referred to in the 2018 decision could not be taken as forming part of the Authority's 2020 reasons, those portions addressing its consideration, construction, and application of s 159C should be. The Authority plainly intended to include in its reasons at least that part of the 2018 judgment, where consideration was there given to matters of law, and said so in its reasons, at T9:46-T10:01, and at T12:42, of the decision of 10 July 2020.
In the earlier decision of the Authority, there was, as the Chairperson observed, "quite a detailed judgment", in which s 159C of the CAS Act was considered, no doubt because of the then recent passage of the Terrorism Legislation Amendment (Police Powers and Parole) Bill 2017 (NSW) through the Parliament, legislation which altered the way in which parole decisions were to be made for "terrorism offenders" as opposed to other prisoners.
In the 2018 decision, the Authority referred to the amendment to the legislation and observed: "As a consequence the starting point for this review is whether the Authority is permitted in compliance with Division 3A of the CAS Act which came into effect on 22 June 2017, and in particular S159C, to make a parole order. It is only if it reaches the level of satisfaction required by S159C(1), that it would then be necessary or appropriate for it to go on to consider whether it is satisfied that the release of the offender would be "in the interests of the safety .of the community", in accordance with the amended section 135 of the CAS Act."
Under a heading "CAS Act Division 3A - Interpretation", the Authority - across four and a half pages of transcript - gave careful and thorough consideration to the construction of the Division, and particularly, to the construction and operation of s 159C. The whole of that consideration is plainly what the Authority was referring to when it said in its 2020 decision, "we accept the approach outlined in the judgment". Having accepted that approach as correct, there was no need for the Authority to reproduce the content of that portion of the 2018 decision in its 2020 decision, or to re-consider what had already been examined.
In the 2018 decision, the Authority referred to the meaning of "terrorist act", and noted that it had the same meaning for present purposes as defined in ss 100.1(1)-100.1(4) of the Criminal Code (Cth) ("the Code"). That is (relevantly): 100.1 Definitions (1) In this Part: [….] terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public. [….] (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public. (4) In this Division: (a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and (b) a reference to the public includes a reference to the public of a country other than Australia.
That provision is located in Part 5.3 of the Code, and forms part of the definition of "terrorism offence" given by s 3 of the Commonwealth Crimes Act. Although the section was not reproduced in the Authority's judgment, it did not need to be; it is plain that the Authority was alive to its relevance, and to the very particular and narrow meaning of "terrorist act".
The 2018 decision correctly noted that there was no statutory definition of "violent extremism" in the CAS Act or in the Code, and noted that: "it can be understood to mean the engagement in acts involving violent behaviour that are motivated or driven by extreme beliefs, whether religious or otherwise, that present a risk to the safety of members of the community."
The use of the phrase "or otherwise" was particularly criticised by the plaintiff as importing error by defining "violent extremism" too broadly and without precision. The Court was referred to the decision of State of New South Wales v Elmir (Final) [2019] NSWSC 1867 at [34] wherein Walton J considered the phrase to refer to "violence motivated by, or undertaken in furtherance of, extreme political or religious views".
Although the use of an open ended phrase such as "or otherwise" is generally unhelpful, I do not regard it as constituting jurisdictional error or error on the face of the record in the present context. There does not seem to be any real basis to constrain the meaning of the phrase "violent extremism" to applying only to acts of religious extremism. A violent act in support of, or to advance, an extreme viewpoint or system of belief, whether religious, or political, or of some other nature, is likely to be caught by the phrase "violent extremism". By "religious or otherwise" the 2018 decision of the Authority comprehends the phrase "violent extremism" to include violent acts motivated by an extreme religious viewpoint, but also those motivated by extreme views with non-religious origins. As the Attorney pointed out in oral submission, that could include violent acts done with an intention of advancing an ideological cause which is not religious, and may not be political.
A broad construction of the meaning of the phrase is consistent with the clear intention of the legislature to more severely restrict the liberty of persons regarded as "terrorist offenders".
In the 2018 decision, the Authority went on to consider what level of satisfaction was required by s 159C(1)(a), referring to Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 261-262; Fernandez v Government of Singapore (1971) 1 WLR 987 at 993-994; and Malec v JC Hutton Pty Ltd (1990) 169 CLR 368; [1990] HCA 20 at 643- 643, as to a test to be applied to a future possibility rather than a past occurrence. Ultimately, it concluded that what was required was for it to: "[…] be satisfied to a high standard, commensurate with the purposes and objectives of the legislation, that the offender will not engage in the relevant conduct."
By "relevant conduct," the Authority was referring back to those matters set out in s 159C, as defined by s 3 of the Crimes Act 1914 and as illuminated by s 100.1(1) - (4) of the Code.
The Authority did not, in the 2020 decision or in those parts of the 2018 decision it referred to and relied upon, go on to list what was meant by "relevant conduct", or to directly apply the evidence to every possible configuration of a terrorist act or act of violent extremism caught by Part 5.3 of the Code. The task would be as daunting as it should be unnecessary.
To illustrate that point, s 159(1)(a) requires the Authority to be satisfied that an offender will not do any one of: 1. Engage in terrorist acts; 2. Incite terrorist acts; 3. Assist others to engage in terrorist acts; 4. Engage in violent extremism; 5. Incite violent extremism; or 6. Assist others to engage in violent extremism.
To fully elucidate the meaning of the provision as it applies to "terrorist act", and without turning to "violent extremism" at all, for each act referring to a terrorist act, that is the first three types of act caught by the provision, it would be necessary to canvas each of those things referred to in s 101.1(1), (2), and (4). This permits of hundreds and hundreds of possible permutations, any one of which will be a "terrorist act" for the purposes of the Code, and thus for the purposes of s 159C. For my part, I do not think that such a detailed explication of the meaning of "terrorist act" is what is required of the Authority.
Bearing in mind that the Authority's reasons should not be parsed and analysed with a determination to find error, I can see no error in the construction of s 159C applied by the Authority. It should not be necessary for a tribunal to set out the full terms of relevant legislation, such as the relevant portions of the Code, for it to be understood that the body was aware of and understood the legislation. Nor should it be necessary for a tribunal to analyse legislation in its reasons in exhaustive detail. A tribunal cannot, after all, make law, and its interpretation of statutory provisions is not authoritative: Kirk v Industrial Court at [69]. That must come from an authoritative statement from a superior court.
As the Chairperson observed in the course of discussion with counsel, and in the Authority's decision, the test imposed by s 159C is a very strict test. It is one which is difficult for a prisoner deemed a terrorist offender to meet; that is clear from the language and intention of the provisions introduced by the 2017 amendments: "the Parole Authority must not make a parole order"; "unless satisfied that the offender will not". These provisions do not allow the Authority any discretion in the application of s 159C.
The language of the provision is consistent with the apparent aims of Division 3A. Division 3A was introduced into the CAS Act by the Terrorism Legislation Amendment (Police Powers and Parole) Bill 2017 (NSW). The amendments followed the event now infamous as the Lindt Café Siege, and the subsequent findings and recommendations of the Coroner relevant to that incident.
It is clear that, following that event, the legislature intended to more stringently regulate the conduct and oversight of persons deemed to be terrorism offenders. So much is clear from both the legislation, and from the content of the speeches in the Legislative Assembly on 21 June 2017, when the Bill was debated. Although the statutory language is clear, and recourse to extrinsic materials is not needed to construe the provision, the second reading speeches confirm the construction.
The Hansard records the Premier, in moving that the Bill be read a second time, as stating: "New section 159B establishes that the new provisions apply to offenders with links to terrorism or violent extremism. This includes those serving a sentence for terrorism offences and those who previously have been convicted of, or charged with, terrorism offences. It also extends to offenders subject to a control order made under part 5.3 of the Commonwealth Criminal Code, being those who have advocated or supported terrorist acts, and those who have associations or affiliations with supporters of terrorist acts or violent extremism. Under new section 159C, the State Parole Authority must not make a parole order for a terrorism offender unless satisfied that the offender will not engage in, or incite or assist others to engage in, terrorist acts or violent extremism. In making such a determination, new section 159D requires the parole authority to have regard to any credible information it has on the risk that the offender may engage in, or incite or assist others to engage in, terrorist acts or violent extremism under the terms of the proposed parole order and in the future, and have regard in particular to whether the nature of any associations or affiliation that the offender has with any persons or groups advocating support for terrorist acts or violent extremism gives rise to any such risk."
In the same sitting, the Attorney made remarks demonstrating a similar intention to make it more difficult for those designated as terrorism offenders to be granted parole. The Hansard records him as saying: "The Terrorism Legislation Amendment (Police Powers and Parole) Bill 2017 demonstrates the Government's commitment to protecting the public from the scourge of terrorism by ensuring the NSW Police Force has appropriate powers and legal protections when responding to acts of terrorism and by introducing a presumption against parole for terrorism-related offenders. This bill implements two very important commitments made by the New South Wales Government. The first arose from the Government's acceptance of the recommendations from the State Coroner's inquest into the deaths arising from the Lindt cafe siege. This bill implements recommendation 24, which was that the Government consider amending the Terrorism (Police Powers) Act 2002 to ensure that police officers have sufficient legal protection to respond to a terrorist incident in a manner most likely to minimise the risk to members of the public. The second commitment arose from the Council of Australian Governments meeting on 9 June 2017 at which first Ministers of the Commonwealth, States and Territories unanimously agreed that there should be a presumption against the granting of parole for anyone who has demonstrated support for or who has links to terrorist activity. [....] This bill amends the Crimes (Administration of Sentences) Act 1999 to provide that terrorism related offenders are not to be released on parole unless the State Parole Authority is satisfied that the offender will not engage in, or incite or assist others to engage in, terrorist acts or violent extremism. [….] In making a determination about the parole of a terrorism related offender, the State Parole Authority must have regard to any credible information it has on the risk that the offender may engage in, or incite or assist others to engage in, terrorist acts or violent extremism under the terms of the proposed parole order, or in the future. The State Parole Authority must also have regard to whether the nature of any associations or affiliation that the offender has with any persons or groups advocating support for terrorist acts or violent extremism gives rise to any such risk."
The language of s 159C establishes a presumption against parole for a terrorism offender, which can only be displaced if both s 159C(1)(a) and (1)(b) are satisfied. Section 159C(1)(a) requires the Authority to be positively or affirmatively satisfied that the conduct referred to in (1)(a) will not eventuate. That is a very high bar to pass, as was observed to in the 2020 decision, and in those portions of the 2018 decision to which the latter decision referred. That is, as the Authority said in the 2018 decision, adopted by the 2020 decision: "so long as the possibility of the chance of the offender engaging in the relevant conduct in the future is not dismissed as speculative, it would appear that the presence of any chance, even a low chance, would require parole to be refused".
The Authority was aware of the high bar created by s 159C(1). It was aware of and understood the meaning of the phrase "terrorist act", having explicitly observed that the phrase "has the same meaning as in Part 5.3 of the Criminal Code Act 1999". Its understanding of "violent extremism" as "engagement in acts involving violent behaviour that is motivated or driven by extreme beliefs" and which "present a risk to the safety of the community" is sufficient. The fact that extreme beliefs were characterised by the Authority as "religious or otherwise" does not detract from that conclusion.
The Authority correctly, in my view, proceeded on the basis that it had to be positively satisfied that the plaintiff would not engage in one of those acts caught by s 159C(1)(a), before it could proceed further to determine the question of parole.
These grounds are not made out.

Ground 2:The SPA misconstrued its jurisdiction under s 159C (1) of the Act such as to constitute jurisdictional error, by falling to give proper content to the terms "engage in, or incite or assist others", which directed attention to legal relationships of direct, joint or accessorial responsibility.

By this ground, the plaintiff argues that the Authority fell into error in failing to "give content to" the words "engage in, or incite or assist others" in s 159C of the CAS Act. It is argued that it was necessary for the Authority to delineate between a terrorist act done as a principal - "engage in"; and acts done by inciting or assisting another, since the nature of those acts rely upon differing states of mind to which the Authority should have given attention. It is argued that the failure to "engage with its jurisdiction in relation to the necessary criterion of" engage / incite / assist constitutes a failure to properly construe the terms, resulting in jurisdictional error.
The plaintiff suggests that the Authority should have had regard to the meaning of the words given at common law and in the Code but, as the Attorney pointed out in submission, there are problems with that approach that do not support its legitimacy.
Although the CAS Act specifically refers to or adopts particular parts of the Code, such as Part 5.3, the definition in the Code of "incite" at s 11.4 is not one of those particular provisions. It might be concluded that, if the legislature intended the word to have the same meaning in the CAS Act as it has in the Code, it would have said so.
There is no definition of "engage" or "assist" found in the Code. It would be an unusual approach to statutory construction to rely upon another act to supply the meaning of one word in a provision, but look elsewhere for meaning for other words in the same provision.
Similarly, whilst the common law can supply a meaning for "incite" and "assist" in the context of accessorial liability to crime, it does not illuminate the meaning of "engage". That does not suggest that meaning for two of the three words can be drawn from one source, when the same source is barren of assistance in construing the third.
Since reference to the common law or to the Code would mean adopting an inconsistent approach to give meaning to individual words used in s 159C(1), I respectfully reject the plaintiff's submission in that regard. Consistent with authority, it is appropriate to have regard to the ordinary meaning of the words, bearing in mind the purpose of the Act, as mandated by s 33 of the Interpretation Act 1987 (NSW). As was observed by French CJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, at [4]: "The starting point […] is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose".
That appears to be the approach taken by the Authority: to give the words their ordinary meaning, with regard to the purpose of Division 3A, without need for any exploration of possible common law or Code definitions or meaning.
I can discern no error in that approach.

Ground 3A: The SPA misconstrued its jurisdiction in failing to consider the necessary components of the meaning of 'engage in, or incite or assist others to engage in terrorist acts or violent extremism' in s 159C(1), such as constitutes jurisdictional error.

This ground combines each of grounds 1, 2, and 3 and was added by the plaintiff to address a criticism made by the Attorney in his written submissions. It is adequately addressed by the determination of the individual grounds, above.

Ground 4: The SPA erred in failing to have regard to a mandatory consideration, namely those matters in s 159D (1) of the Act.

The plaintiff contends that, in making its determination under s 159C, the Authority is required to have regard to those matters in s 159D(1), this being a mandatory consideration, and may have regard to s 159D(2). In failing to consider s 159D there was, it is submitted, jurisdictional error.
Section 159D(1) and (2) is in these terms: 159D General provisions relating to terrorism related offenders (1) In deciding whether or not to release a terrorism related offender on parole, the Parole Authority is to - (a) have regard to any credible information it has on the risk that the offender may engage in, or incite or assist others to engage in, terrorist acts or violent extremism under the terms of the proposed parole order and in the future, and (b) have regard in particular to whether the nature of any associations or affiliation that the offender has with any persons or groups advocating support for terrorist acts or violent extremism gives rise to any such risk. (2) The Parole Authority or a judicial member of the Parole Authority may, for the purposes of this Division, have regard to advice received from the NSW Police Force or from any other public authority (whether of this or any other State or Territory or of the Commonwealth) established for law enforcement, security or anti-terrorist purposes. […].
The language is that of command, that the Authority "is to have regard to any credible information it has" in fulfilling its statutory obligation with respect to the test established by s 159C, a test echoed in the language of s 159D.
In the 2020 reasons, s 159D is not specifically referred to. The Attorney argued that the section was referred to in the 2018 decision of the Authority, and that the discussion therein may be regarded as imported into the 2020 decision. I cannot, however, accept that approach.
I have referred earlier to the basis upon which the portions of the 2018 decision can be taken to be incorporated into the 2020 decision, namely, that the Authority in its consideration of the meaning and application of s 159C specifically referred to and adopted the approach of the differently constituted 2018 Authority. For two reasons, it is not open to proceed in the same way with respect to the Authority's reasons relevant to this ground.
Firstly, I do not understand the Authority's reference to the earlier decision to function as an adoption of the whole of it. The references were made in the context of the resolution of the debate as to the meaning of s 159C, and in thereafter reaching a conclusion, having applied s 159C as it was construed by the Authority in 2018. The references cannot in my view be taken as an adoption of any part of the 2018 reasons beyond that.
Secondly, beyond referring to earlier decisions with respect to specific matters, such as the construction of s 159C, it would make little sense for the Authority to seek to incorporate by reference matters from an earlier decision where there was a distinctly temporal relevance that may no longer apply. In the 2018 decision, the Authority referred to s 159D in the context of its consideration of the information that informed its decision at that time to refuse parole. That was a decision made on the basis of material then available to the Authority. In 2020, the obligation of the Authority was to have regard to the credible information available to it at that time to determine whether the presumption against parole created by s 159C was displaced.
On that basis, this ground falls to be determined by reference to the 2020 decision alone, a decision in which s 159D was not referred to in terms. The question is if the failure to refer to the provision, even whilst going about the task the provision requires be undertaken, constitutes jurisdictional error. I am not persuaded that it does.
I have already referred to the less stringent requirements that apply to the reasons given by an administrative tribunal, as opposed to those that apply to a court exercising a judicial function, and to s 193 of the CAS Act with respect to what is required under the Act.
What is significant in my view is not whether an administrative tribunal recited legislation, but whether it complied with it. The reasons of the Authority make clear that it did, insofar as there was "credible information" to which to have regard when assessing risk. What was or was not credible information of the material before the Authority is not a matter that falls to be determined by this ground, since it is not raised by the plaintiff.
The Authority said that it had had regard to all of the information and submissions placed before it. In the course of giving judgment the Authority specifically referred to: 1. An updated PRISM report of 20 January 2020 together with an addendum of 24 February 2020; 2. The risk assessment reports from Dr Pulman, with that dated 29 May 2020 in some detail; 3. The affidavits of Mr Kilani, Tamara Daqiq, and of the plaintiff's mother; and 4. The submissions of the parties.
The Authority placed some weight on the reports from Dr Pulman; apparently less weight was given to the affidavits. The Authority noted that the material "was to be considered in conjunction with all the available material". It went on to consider the s 159C(1) test, concluding that "on the totality of the material presently available" the Authority had not reached the necessary state of satisfaction as to those matters in s 159C(1).
That is, the Authority read and considered all available information and made its decision. Its decision was that mandated by s 159C(1), and referenced in s 159D, concerning whether it could be satisfied that the plaintiff would not "engage in, or incite or assist others to engage in, terrorist acts or violent extremism".
The plaintiff has not, by this ground, pointed to any "credible information" to which the Authority failed to have regard and I have not identified any in the limited evidence admitted in these proceedings.
This ground fails.

Ground 5: The SPA erred in failing to have regard to s 135 (2)(c) of the Act, which is a relevant consideration in a determination under s 159C, when read in conjunction with s 159D(1).

By this ground the plaintiff contends that the Authority should have regard to s 135(2)(c) when making its determination under s 159C and, in holding to the contrary, there was error.
Section 135 is found in Division 2 of Part 6 of the CAS Act, that being the Division that applies to parole orders for sentences of 3 years or more. The plaintiff is serving a sentence of 5 years and 3 months imprisonment and, he argues, s 135 therefore applies to him.
The Authority specifically considered the application of s 135, as it was urged to do by the plaintiff in his submissions to it. In discussion with counsel the Chairperson pointed to the plaintiff's contention in that regard, observing to counsel for the Commissioner: "One of the points that's made is the suggestion that in considering the issue we're considering today, the Authority can or should have regard to, for example, 135(2){c) which is the risk to community safety in releasing an offender at the end of the sentence without a period of supervision, supervised parole, et cetera, but that's not really tenable."
With counsel for the plaintiff there was the following exchange: "MR NASH: I just wanted to turn up 159C(1)(b). Is your Honour saying that his eligibility, that that then encompasses 135? HIS HONOUR: (1)(b) would, but only if we get to that. MR NASH: No, that's right. HIS HONOUR: You don't ever get to it, unless satisfied in terms of 159C(1)(a). MR NASH: Can I just make that point, your Honour. We say and we don't want to spend a lot of time on the 135(8) point but all we say is that the Authority is not prohibited from the terms of 135(8). HIS HONOUR: The words are "is not required to". MR NASH: Correct. HIS HONOUR: But it makes no logical sense to consider all those things that are referable to parole generally when we have to get past the threshold test in 159C(1)(a). With due respect, I don't think there is merit in the suggestion that we should consider the S 135 matters at this point and I reject it. MR NASH: Thank you, your Honour. I won't spend any more time on it. We don't think it's a very big deal."
It seems that, at least before the Authority, the plaintiff did not greatly differ from the view expressed by the Chairperson in his opinion of the relevance of s 135. Before this Court, however, it is contended that the Authority erred in concluding that it could not have regard to the matters in s 135(2)(c) when considering s 159C(1)(a).
In its decision, the Authority concluded that s 135 could not be incorporated into the s 159C test. It said: "A particular submissions was advance in reference to 135C(2)(c), namely that in considering whether it is in the interests of the safety of the community of release of an offender to parole, the Parole Authority must have regard relevantly to (2)(c) namely, he risk to community safety of releasing an 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. In my view, that consideration should not be incorporated into the test required for 159C(1)(a). It is true that the legislation provides only that the Authority is not required to consider the matters in s 135, but looking at the construction of the Act, the only logical conclusion is that that particular consideration should not be incorporated into the test for 159C(1)(a). It is clear that unless satisfaction is reached in relation to 159(1)(a) you simply do not get to (b), and there is no power to make a parole order."
In my view, the Authority was correct to so hold.
By its clear terms s 159C(1)(a) of the CAS Act prohibits the Authority from making a parole order directing the release of a terrorism related offender unless it is satisfied that the offender will not engage in the conduct specified in the section. That is the first test that the Authority must turn to when considering parole for a terrorism related offender.
Only if the Authority reaches that positive state of satisfaction, can it turn to consider those things referred to by s 159C(1)(b) as to the offender's eligibility for parole otherwise. It is necessary for ss (1)(a) to be met before the Authority could turn to ss (1)(b); that is the purpose of the conjunctive "and" between the two subsections.
In determining whether a terrorism related offender "is otherwise eligible under this Act to be released on parole," the Authority is obliged to consider those other provisions in the Act governing eligibility, relevantly for present purposes, s 135.
Section 135(1) is framed as a command - "the Parole Authority must not make a parole order" unless satisfied that an order is in the interests of the community. In determining whether parole is in the interests of the community pursuant to s 135(1), regard must be had to those matters enumerated in s 135(2), including the risk to the safety of the community in releasing an offender with no or insufficient parole. That is the point at which s 135(2)(c) falls to be considered.
The correctness of that approach finds some support in s 135(8) which provides that the Authority is not required to consider those matters in the section if, under Division 3A, it determines it cannot make a parole order. Put another way, only if the Authority reaches the state of satisfaction in s 159C(1)(a) is it required to consider the matters in s 135.
That was the approach of the Authority in the plaintiff's case, and it was in my opinion the correct approach.

Ground 6: In making the Refusal Decision, the SPA took into account an irrelevant consideration by relying on the evidence of Dr Pulman as "instructive" expert opinion when: (i) Dr Pulman's evidence did not address the question of whether, or alternatively, did not find that, the applicant will not engage in, or incite or assist others to engage in, terrorist acts or violent extremism or was at risk or substantial risk of the same as contemplated by s159C(1)(a); and/or (ii) Dr Pulman did not have the requisite training to apply the Violent Extremist Risk Assessment-2R; and/or (iii) The evidence of Dr Pulman, to the extent it engaged with the assessment under s159C(1)(a), was speculative.

Ground 7: In making the Refusal Decision, the SPA took into account an irrelevant consideration in finding that the evidence of Dr Pulman was "the only evidence that the [SPA] has at this point in terms of expert opinion about the matter" without giving proper consideration to the opinion of Mr Kilani as evidence based on specialised knowledge.

These grounds complain of the error made by the Authority in taking into account an irrelevant consideration - the reports of Dr Pulman; and in failing to take into account a relevant consideration - the affidavit of Mr Kilani.
In Craig v South Australia, the High Court held (at 179) that for an administrative tribunal to "ignore relevant material" or to "rely on irrelevant material" in circumstances where "the tribunal's exercise or purported exercise of power is thereby affected" is to exceed its authority or powers. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Mason J collected (at 39) a number of propositions that were established by the authorities with respect to the related grounds of failure to take into account a relevant consideration, or taking into account an irrelevant consideration, by makers of administrative decisions. His Honour said: "(a) The ground of failure to take into account a relevant consideration can only be made out if a decision·maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty. Ltd. v. MacKellar; CREEDNZ Inc. v. Governor-General; Ashby v. Minister of Immigration. The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, that a decision-maker must take into account those matters which he 'ought to have regard to' should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion 'must call his own attention to the matters which he is bound to consider'. (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Ply. Ltd., adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury, and Water Conservation and Irrigation Commission (N.S.W) v. Browning. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, e.g., the various expressions in Baldwin & Francis Ltd. v. Patents Appeal Tribunal; Hanks v. Minister of Housing and Local Government; Reg. v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society. A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg. v. Bishop of London (39); Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd. (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation. It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty. Ltd. v. MacKellar; Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd.; Elliott v. Southwark London Borough Council; Pickwell v. Camden London Borough Council." (Footnotes omitted).
There is no question but that the Authority took into account Dr Pulman's report, and regarded it as "instructive" or important in considering the test at s 159C(1)(a). Of the evidence, the Authority said: "The State submissions of 2 June 2020 deal with the risk assessment report of Dr Pulman dated 29 May 2020, and it is said that there are substantive concerns raised as to the offender's risk profile. The submissions effectively contain an analysis of Dr Pulman's report. In any event, it is a matter for us, ultimately, to digest Dr Pulman's report and make of it what we will. A number of aspects present as particularly significant. At p 11 of Dr Pulman's report: "Similarly, despite Mr Osman's express views that he does not hold any religious beliefs or attitudes which condone violence engagement or encouragement of terrorism-related activities, or remains indeterminate as to whether he has internalised these it views or is expressing such views in the knowledge that not doing so would hinder his prospects of release. Mr Osman acknowledges his difficulties in changing his attitude towards the gangster lifestyle, stating that his previous admiration for persons such as Sharrouf and Elomar represented a blend of gangster and religion. Therefore, there remains the risk that despite his active participation in PRISM, the prison program, he may not have internalised a pro-social belief system. Given the recent events, this domain continues to pose a risk as recent incidents suggest that Mr Osman may not have internalised his expressed pro-social beliefs and is still attracted to anti-social and violent activities." At p 12 of Dr Pulman's report, there is a reference to the offender's established association with organised criminal networks with alleged involvement in terrorism offences and communications referred to in the report of 2 October 2019. At p 13 of Dr Pulman's report, it quotes: "Despite Mr Osman's view expressed on 19 September 2019, he has demonstrated capacity to commit violence, suggesting he is yet reject his previous lifestyle. Mr Osman continues to be motivated to by status and leadership in anti-social group activities and acknowledged enjoying having control of a group as it earned him respect. There remains a continued risk that Mr Osman is motivated by such a lifestyle." At p 15: "Mr Osman remains influenced by others and there remains the risk that he may assist others to engage in violent acts out of a sense of loyalty and status. The extent to which this involvement also includes terrorist acts or violent extremism is less clear. As outlined in my previous report, it is difficult to determine the level of risk given his current expressed views and beliefs cannot be adequately tested within his current custodial environment. Despite this, Mr Osman has demonstrated a capacity and willingness to engage in violence within the custodial environment which would suggest he has not rejected attitudes and beliefs supporting violence."
Later in its reasons the Authority observed that Dr Pulman's report was "instructive and is the only evidence that the Authority has at this point in terms of expert opinion about the matter".
It is clear that the Authority regarded the psychological reports as "credible information" relevant to the assessment of the risk that the plaintiff would involve himself in the conduct referred to in s 159C, and gave it some weight in that regard. I can see nothing in the CAS Act that prohibits the Authority from so doing.
The reports were prepared by a highly qualified forensic and neuropsychologist with decades of experience to inform her opinions, and specific training in risk assessment, albeit not in the administration of one particular actuarial tool. She had been engaged to assess the plaintiff from that perspective and consider the level of risk he might pose to the community of conduct caught by s 159C.
Although her report was not couched in terms of the likelihood or otherwise of the plaintiff "engaging in, or inciting or assisting others to engage in, terrorist acts or violent extremism", that was not a matter for her in any event; that was the test for the Authority to apply.
What Dr Pulman's report did do was raise the prospect that the plaintiff was espousing his rejection of extremist views because he understood that his release from custody depended upon it, rather than from any real conviction in that regard. That in turn was relevant to the question for the Authority, whether it could be satisfied that the plaintiff would not engage in terrorist acts or violent extremism within the meaning of s 159C.
In my conclusion there was no error in the Authority giving consideration to Dr Pulman's reports, and "making of them what it would". The information she provided was capable of being regarded as credible, and it informed the test the Authority was obliged to consider. Whether it was "instructive" or not was ultimately a matter for the Authority.
The same principles set out in Peko-Wallsend and referred to above are relevant to the complaint as to the asserted failure of the authority to consider Mr Kilani's affidavit as specialised or "expert evidence" available to consider in the same way as Dr Pulman's evidence was considered by the Authority.
There are two obvious points to make at the outset when considering this ground. The first is that Mr Kilani was not advanced or relied upon by the plaintiff as an expert. His particular experience was set out in his affidavit, but the plaintiff did not at any stage rely upon his evidence as that of an expert. Although the hearings before the Authority are not bound by the rules of evidence, there are some conventions of practice familiar to the Authority and to the legal professionals appearing before it that are typically observed, including the acknowledgment by expert witnesses of the Expert Witness Code of Conduct. Mr Kilani did not refer to or accept the Code of Conduct, and that may be taken as confirmation that his evidence was not advanced as that of an expert.
If the plaintiff did not advance or refer to Mr Kilani as an expert, it is unclear to me why the Authority should have done so, or why its failure in that regard is an error amenable to judicial review.
The second point to be made is that, notwithstanding Mr Kilani's extensive experience in working with persons regarded as terrorists or religious extremists, he did not interact with the plaintiff in that capacity. As is clear from his affidavit, whilst Mr Kilani has in the past been consulted by government bodies concerning matters connected to religious extremists and religious extremism, Mr Kilani's interaction with the plaintiff was in his capacity as a religious minister giving spiritual care and guidance to a member of his religious community. Mr Kilani was not asked to make an assessment of the plaintiff's capacity for extremist violence, and made no such assessment. He expressed his opinion as a religious cleric about a member of his flock.
It was open to the Authority not to treat Mr Kilani's "professional opinion" as expert or specialised evidence informing the assessment of risk.
That the Authority did take Mr Kilani's opinion into account however, should not be doubted, when all relevant circumstances are considered. The Authority both said in its reasons that it had considered the affidavit, and quoted the most significant part of it. Although the plaintiff urged a conclusion that the Authority did not "engage in an active intellectual process" in considering the content of Mr Kilani's affidavit, there is no clear evidence of that, and it is the plaintiff who bears the burden of establishing the proposition.
Mr Kilani's evidence was not voluminous or complex; it was short and straightforward. The Authority had received the material in advance of the hearing, and had adequate time to reflect upon it. The Authority quoted in its reasons the aspect of the evidence most critical to the test at s 159C(1). Those features point to the Authority having considered the content of Mr Kilani's affidavit in a meaningful way, in the context of the whole of the information before it, and apportioning to it the weight it thought the evidence warranted. Weight was a matter for the Authority.
Where an administrative decision maker says consideration has been given to a particular matter, a conclusion to the contrary will not be lightly made: Carrascalao at 364, [48].
I cannot conclude that the Authority failed to have regard to Mr Kilani's evidence or engage with it in a considered way.

Ground 8: In the alternative, there is error of law apparent on the face of the record of the proceedings on each of the grounds set out above at 1-10 [sic - 7]

For the reasons given above, I do not conclude that there was error on the face of the record.

Other: Materiality

Not having concluded that the Authority fell into error, it has not been necessary to consider the question of materiality referred to in Minister for Immigration and Border Protection v SZMTA & Anor (2019) 264 CLR 421; [2019] HCA 3; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34.

Conclusion

The plaintiff has failed to establish a basis for relief against the orders of the Authority made on 10 July 2020. The summons should be dismissed, with costs.

orders

The orders of the Court are: 1. Summons filed on 6 October 2020 is dismissed; 2. Subject to order (3), costs on an ordinary basis against the plaintiff; 3. Should either party seek an order for costs different to that specified at order (2), submissions and evidence should be filed and served by 30 November 2020; with any submissions and evidence in reply to be filed and served by 13 December 2020. Any variation to order (2) will be determined on the papers.

Schedule to Judgment - Determination of Objections to Evidence

Affidavit of Patrick Mullane affirmed 25 September 2020 Paragraph/s Words objected to Determination 4, 5, 6, 7 Entirety of each paragraph, including exhibit documents Not relevant Excluded 8 "concluding for the … in the public interest" Not relevant Excluded 10 "to allow for … post release plans" Not relevant Excluded 11 "pending receipt of … if released to parole" Not relevant Excluded 12, 13, 14 Entirety of each paragraph, including exhibited documents Not relevant Excluded 16 "The authority found … "the proscribed conduct")." Not relevant Excluded 17 Entirety of paragraph, including exhibited document. Not relevant Excluded 18 "to seek updated … (JCTT)." Not relevant Excluded 19 "The Authority was … of the CAS Act." Not relevant Excluded 21, 22 Entirety of each paragraph, including exhibited document. Not relevant Excluded 23 "in anticipation of … assessment report" Not relevant Excluded 24 Entirety of paragraph, including exhibited documents Not relevant Excluded 25 Entirety of each paragraph, including exhibited documents Paragraph not relevant and excluded, but admit report of Dr Pulman 2/10/19 27 "to seek receipt of … the Commissioner." Not relevant Excluded 29, 30 Entirety of each paragraph, including exhibited documents. Not relevant Excluded 32 Entirety of each paragraph, including exhibited documents Paragraph not relevant and excluded, but admit submissions filed by the plaintiff on 10/7/20 33 Entirety of each paragraph, including exhibited documents Paragraph and annexure admitted 34 Entirety of each paragraph, including exhibited documents Not relevant Excluded 36 Entirety of each paragraph, including exhibited documents Paragraph not relevant and excluded, but admit supplementary report of Dr Pulman dated 29/5/20

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: 12 October 2020

Crimes (Administration of Sentence) Act 1999(NSW)

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