Plaintiff v Defendant

Supreme Court of Victoria|2008-09-15|Before: JUDD J

ADMINISTRATIVE LAW - Judicial Review - Parole Board - Validity - Decision to revoke parole order - Error of Law - Bad faith - Application dismissed - Corrections Act 1986.

CONSTITUTIONAL LAW - Commonwealth Constitution Ch III - Role of Judges of Supreme Court as members of Parole Board - Whether an invalid investment of administrative or executive power - Whether incompatible with judicial function.

1 Thomas Samuel Kotzmann challenges the validity of Part 8, Division 5 of the Corrections Act 1986 which establishes the Adult Parole Board. He also applies to review a decision of the Board made on 16 January 2008 to revoke a parole order and the Board's failure to direct that his sentence be reduced by the length of time on parole.

2 Mr Kotzmann's application for review is made under r 56 of the Supreme Court Rules 1986. The Secretary to the Department of Justice was joined as a defendant and proper contradictor on the application of the Board.[1] Mr Kotzmann appeared in person.

3 Mr Kotzmann was convicted of armed robbery at the County Court at Melbourne and sentenced on 27 October 2000 to imprisonment for five years and six months with a non-parole period of two years and six months. On 19 September 2001 he was sentenced to imprisonment for a total of 11 months for theft and other offences. Mr Kotzmann was released on parole on 14 March 2003, but was again sentenced on 17 September 2004 to a term of imprisonment for a total of two years and three months with a non-parole period of 20 months for possession of fire-arms and other offences.

4 Because of his conviction and resulting sentence imposed on 17 September 2004, the parole order made on 14 March 2003 was cancelled and Mr Kotzmann was directed to serve imprisonment for an additional two years, 11 months and 27 days, being the balance of the term of imprisonment to which he had been sentenced on 27 October 2000 and 19 September 2001.

5 In 2007 Mr Kotzmann again became eligible for parole and, by an order of the Board made on 14 September 2007, he was released on parole commencing on 10 October 2007. One of the conditions of his parole order was that, for the first three months, he report at least twice each week to the supervising community corrections officer and submit to medical, psychological and psychiatric assessment as directed by the community corrections centre manager.

6 On 7 January 2008 the Board was advised by the corrections officer that Mr Kotzmann had failed to comply with his reporting obligations on three occasions up to 2 January 2008 and that on 3 January 2008 he had failed to attend a reporting session as directed, including a drug test on that day. The Board was advised that Mr Kotzmann failed to report on 4 January 2004, could not be located and that he had been involved in an incident alleged by police to be an assault.

7 On 8 January 2008 the corrections officer further informed the Board that Mr Kotzmann had failed to attend his appointment with him that day. There was also a report that Mr Kotzmann had been involved in a motor car accident.

8 On 9 January 2008 the Board requested the corrections officer to prepare a report which was delivered to the Board on 16 January 2008. On the same day, the Board considered the report and cancelled Mr Kotzmann's parole.

9 Some time after cancellation of his parole order Mr Kotzmann was arrested and returned to custody. The Board did not give a direction under s 77(7A) of the Act that some or all of the period during which the parole order was in force was to be regarded as time served in respect of the prison sentence. Consequently, Mr Kotzmann is required to complete the remainder of his custodial sentence without any reduction for time spent on parole.

10 On 1 February 2008 Mr Kotzmann wrote to the Board seeking the reasons for its decision. While the Board is not generally required to give reasons, it must, as soon as possible after making a determination revoking or cancelling a parole order, give a copy of the determination, including reasons, to the prisoner.[2] Mr Kotzmann's request was acknowledged on 8 February but no reasons were provided until 7 March 2008 and only then after numerous further requests. On 12 March 2008 the Board wrote to Mr Kotzmann enclosing a copy of the letter sent to his solicitor on 7 March 2008. The relevant part of the letter states:

The Board considered the contents of the Special Report about Mr Kotzmann at a hearing that took place on 16 January 2008. At the conclusion of the meeting, the Board cancelled Mr Kotzmann's parole order because he had "failed to comply with a condition of the order" and a warrant was subsequently issued for his arrest. The Board noted, amongst other issues, that Mr Kotzmann had failed to attend supervision appointments on 16 November 2007, 3 January 2008 and 4 January 2008. It also noted that Mr Kotzmann had failed to attend urine testing on 16 November 2007 and 28 November 2007.

11 Mr Kotzmann's challenge to the validity of the Corrections Act involves two broad arguments.

(a) The appointment of a judge of the Supreme Court to the Board is an impermissible attempt to confer administrative functions on a court which exercises Commonwealth jurisdiction under Chapter III of the Constitution.

(b) The performance of the functions of a Board member are repugnant to or incompatible with the office of a judge of such a court.

12 The Secretary acknowledges that the Supreme Court is part of the federal judicial system and that, as such, its functions are constrained by Chapter III of the Constitution. In Kable v Director of Public Prosecutions (NSW)[3] Gaudron J held that state courts "are part of the Australian judicial system created by Chapter III of the constitution and, in that sense and on that account, they have a role and existence which transcends their status as courts of the states".[4] Her Honour continued,

Once the notion that the constitution permits of different grades or qualities of justice is rejected, the consideration that state courts have a role and existence transcending their status as state courts directs the conclusion that Chapter III requires that the parliaments of the states not legislate to confer powers on state courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth.

Under the Constitution, therefore, the State courts have a status and a role that extends beyond their status and role as part of the State judicial systems. They are part of an integrated system of State and federal courts and organs for the exercise of federal judicial power as well as State judicial power. Moreover, the Constitution contemplates no distinction between the status of State courts invested with federal jurisdiction and those created as federal courts. There are not two grades of federal judicial power. The terms of s 71 of the Constitution equate the vesting of judicial power in the federal courts with the vesting of federal judicial power in the State courts. And s 77(iii) permits the Parliament of the Commonwealth to invest any court of a State with federal jurisdiction in respect of all matters that are or can be vested in the original jurisdiction of this Court or the federal courts. Other sections (200) of the Constitution also draw no distinction between the exercise of federal judicial power by the State courts and its exercise by federal courts.

14 Mr Kotzmann prepared and served a notice under s 78B of the Judiciary Act 1903 on the Attorneys-General of the Commonwealth of Australia and of each State and Territory, although none of them has elected to intervene in the proceeding. The notice is broad enough to cover the matters raised by him in connection with his challenge to the validity of the Corrections Act and his incompatibility argument.

15 The challenge to the validity of the Corrections Act was refined by Mr Kotzmann during his submissions and became focussed on the incompatibility of the function of the Board with the office of a judge of the Supreme Court. He did not, however, abandon his "invalid conferral" argument. His premise was that because at least one judge of the Supreme Court must be appointed to the Board, and become its chairperson,[6] this was not merely a power to appoint a judge persona designata, but a requirement that the Board shall consist of a representative of the court. Mr Kotzmann distinguished the position where a judicial officer is appointed to an administrative position while continuing to serve as a judge.[7] He argued that the requirement to appoint a judge to the Board amounted to the conferral on the court of an executive function that was incompatible with its integrity, independence and impartiality.

16 The starting point for Mr Kotzmann's challenge is the decision of the High Court in Kable[8] in which it was held that the Community Protection Act 1994 (NSW) was invalid because Chapter III of the Constitution limits the power of state parliaments to confer non-judicial functions on state courts. The significance of Kable to the legislative power of the state parliaments and thus the validity of state legislation is usefully summarised as follows:

State Parliaments can no longer claim plenary power over their courts. Kable, and in particular Gaudron and McHugh JJ's "integrated" approach, represents a significant diminution of State legislative power over State courts. Prior to Kable, Chapter III's "autochthonous expedient" did not limit State legislative power. The Commonwealth Parliament was required to take State courts as it found them. Kable establishes that State courts are not immune from Chapter III implications. As integral components of the Australian judicial system, State courts invested with federal jurisdiction must remain capable of exercising Commonwealth judicial power free from executive or legislative imposition. Accordingly, State legislative power is "vulnerable" to Chapter III's implied limitations.

Kable's limitation on State legislative power exists on two levels. Firstly, Gaudron and McHugh JJ's broad approach necessitates the continued existence of State Supreme Courts. Further, in addition to Supreme Courts, other State courts invested with federal jurisdiction are required to be compatible with Chapter III of the Commonwealth Constitution. Secondly, State Parliaments cannot undermine public confidence in the independence of State courts invested with federal jurisdiction.[9]

17 In order to examine the Chapter III implications for the Supreme Court and its judges arising out of the appointment of judges as members and chairperson of the Board, it is necessary to first understand the structure and operation of the legislative scheme under challenge. The Corrections Act establishes the Board which is to consist of persons appointed by the Governor in Council, and a Secretary. At least one judge of the Supreme Court must be appointed to the Board and be appointed chairperson. Section 61 provides,

(a) one or more Judges of the Supreme Court appointed by the Governor in Council on the recommendation of the Chief Justice of the Supreme Court, one of whom is to be appointed chairperson;

18 A member of the Board holds office for the term and subject to the conditions stated in the member's instrument of appointment but is eligible for re-appointment.[10] Section 63 provides:

(6) If a member who is a judge of the Supreme Court or the County Court ceases to be a judge, the member ceases to hold office as a member.

(8) The appointment as a member of the Board of a Judge of the Supreme Court or the County Court does not affect the tenure of office, rank, status or the remuneration rights or privileges of the Judge as the holder of office as a Judge, and for all purposes, service as a member of the Board by a Judge is to be regarded as service as a Judge.

19 The Board may exercise its powers and functions in divisions of the Board.[11] A division consists of three members of whom at least one must be a judge, retired judge, magistrate or retired magistrate who is the chairperson of that division.[12] Section 64 provides,

(4) The following questions which may arise before a division of the Board are to be decided by the chairperson of the division alone -

(a) whether a question is a question of fact or of law;

(b) any question determined to be a question of law.

20 In exercising its functions the Board is not bound by the rules of natural justice.[13] Notwithstanding the express abrogation of the rules of natural justice, the Board is invested with the power conferred upon a commissioner under ss 17, 18, 19, 20, 20A, 21 and 21A of the Evidence Act 1958 and the rules and orders made under s 20(4),

as if the Board were a body of persons to whom the Governor in Council has issued a commission and the person presiding at the meetings of the Board were the President or Chairman of that Commission.[14]

Accordingly, the Board may compel the production of documents and the attendance of witnesses, examine persons upon oath, impose penalties for refusing to give evidence, report to a law officer if a witness fails to attend, require continuous attendance under summons, and enjoy privilege and immunities in relation to enquiries as if the act, matter or thing done arose in or out of an action in the Supreme Court.

21 The Board is required to report to the Minister in relation to each 12 month period ending on 30 June in relation to the matters specified in s 72(1) of the Act. The Minister may require the Board to provide a report and recommendation concerning a person in the circumstances specified in s 72(4) and the Board must give the Minister a report on the matters stated in the requirement. These provisions indicate a close relationship between the Board and the executive. Presumably, reports given to the Minister under s 72(4) and (5) are or may be acted upon by the Minister. The scope of such a report is defined by the matters stated in the Minister's requirement.

22 At the request of the Attorney-General for the Commonwealth the Minister may authorise the Board or the Secretary to make reports and recommendations concerning a person detained in a prison in Victoria under or pursuant to a law of the Commonwealth.[15]

23 The Board may by instrument order that a prisoner serving a prison sentence in respect of which a non-parole period was fixed be released on parole.[16] The usual terms and conditions of a parole order are set out in the regulations,[17] although the Board may vary the terms and conditions to which a parole order is subject.[18]

24 A prisoner released on parole must, during the parole period, comply with the terms and conditions of the parole order.[19] Should the Board make a determination revoking or cancelling a parole order, the Board must give a copy of the determination to the prisoner including the reasons for the determination.[20] Apart from this requirement, there is no obligation upon the Board to give reasons for its decisions and determinations.

25 If a prisoner is released on parole the Board may at any time before the end of the parole period by order cancel the parole.[21] If the Board has cancelled the prisoner's parole it may at any time by further order revoke the cancellation.[22] If a prisoner's parole is cancelled or deemed to be cancelled, -

(a) the original warrant to imprison or other authority for the person's imprisonment is to be regarded as again in force; and

(b) any period during which the parole order was in force is not to be regarded as time served in respect of the prison sentence unless subsection (7A) applies.[23]

The Board may direct that some or all of the period during which a parole order that has been cancelled, or deemed to be cancelled, was in force is to be regarded as time served in respect of the prison sentence.

It is the fact that the Board did not give such a direction that is the second decision or determination under review. Mr Kotzmann has incorrectly characterised that conduct as a determination by the Board that he serve the portion of his sentence that was served in the community on parole.

27 Mr Kotzmann submitted that the judge or judges of the Supreme Court are conscripted as members of the Board. They are instruments of the executive to perform the functions of the Board which include the giving of advisory opinions to government.

28 He submitted that because the term of appointment ceases when the judge ceases to be a judge of the Supreme Court, the appointment is not to be construed merely as that of a judge appointed persona designata but as a judge of the Supreme Court. Mr Kotzmann then pointed to s 63(8) and the words, "service of a judge", to distinguish such an appointment from one made persona designata.

29 On behalf of the Secretary it was argued that the appointment of judges of the Supreme Court to the Board were appointments persona designata so that no function can be said to be conferred on a Chapter III court in breach of the principle in R v Kirby; ex parte Boilermaker Society of Australia.[24] In Kable,[25] Gaudron J explained the Boilermakers' doctrine.

The Boilermakers' doctrine, as it is sometimes called, prevents the Parliament of the Commonwealth from conferring judicial power on bodies other than courts and prevents it from conferring any power that is not judicial power or a power incidental thereto on the courts specified in s 71 of the Constitution. It also prevents the Parliament from conferring functions on judges in their individual capacity if the functions are inconsistent with the exercise of judicial power in the sense explained in Grollo v Palmer.

30 The Secretary submits that the appointment of a judge to the Board is not in his or her capacity as a judge. The Secretary likens an appointment to the Board to an appointment of members of the Federal Court of Australia to the Administrative Appeals Tribunal.

31 The persona designata doctrine, as an answer to the constraints on legislative power under the Boilermakers' doctrine, is a uniquely federal doctrine which has only limited application in the present case. There are material differences in the relationship between the legislature, executive and judiciary in a state context when compared with the federal model. The differences were recognised by all five judges in Kable.[26] McHugh J said,

I can see nothing in the New South Wales Constitution nor the constitutional history of the State that would preclude the State legislature from vesting legislative or executive power in the New South Wales judiciary or judicial power in the legislature or the executive. Nor is the federal doctrine of the separation of powers - one of the fundamental doctrines of the Constitution - directly applicable to the State of New South Wales. Federal judicial power may be vested in a State court although that court exercises non-judicial as well as judicial functions. Moreover, when the Parliament of the Commonwealth invests the judicial power of the Commonwealth in State courts pursuant to s 77(iii) of the Constitution, it must take the State court as it finds it. This is because the Constitution recognises that the jurisdiction, structure and organisation of State courts and the appointment, tenure and terms of remuneration of judges of State courts is not a matter within the legislative power of the federal Parliament. But in my opinion none of the foregoing considerations means that the Constitution contains no implications concerning the powers of State legislatures to abolish or regulate State courts, to invest State courts or State judges with non-judicial powers or functions, or to regulate the exercise of judicial power by State courts and judges.[27]

32 It is the scope of the "implications" with which this application is concerned. The statutory scheme in this case, unlike the legislation under consideration in Hilton v Wells,[28] does not indiscriminately confer any function associated with the Board on all judges of the Supreme Court. Section 63(6) is designed to maintain the correct composition of the Board by ensuring that at least one member is a serving judge. Section 63(8) is designed to protect and preserve judicial tenure and entitlements. Accordingly, the legislation does not have the effect of conferring some administrative or executive power or function upon the Supreme Court. Nor does it purport to regulate the exercise of judicial power by State courts or judges.

33 The Act provides for the nomination and appointment of one or more Supreme Court judge, as well as a range of other persons, including judges of the County Court, magistrates and retired judges. The Act has, in my opinion, successfully embodied a mechanism which avoids any suggestion of an impermissible conferral of non-judicial power on the Supreme Court. It is in this respect that the doctrine of persona designata has utility in the state context, distinguishing the scheme for appointments under the Act from one which might offend the Boilermakers' doctrine. But that is not the end of Mr Kotzmann's challenge. The more difficult legal question is whether the doctrine of "incompatibility", which imposes constraints on the federal doctrine of persona designata, precludes a judge of the Supreme Court from serving as a member of the Board.

34 Mr Kotzmann relies upon the expanded doctrine of incompatibility applied in Kable and Wilson v Minister of Aboriginal and Torres Strait Islander Affairs[29] to argue that the functions of the Board are so closely connected with the functions of the executive government as to make the appointment to the Board of a judge of the Supreme Court incompatible with judicial office. Mr Kotzmann submits that the functions of the Board are not independent of any instruction, advice or wish of the legislature or executive government. They are not performed independently of political policy.

35 Mr Kotzmann submitted that the broader principle of incompatibility, which found expression in Grollo v Palmer[30] and was applied in Wilson, should be applied in the present case with the result that insofar as the Corrections Act requires the appointment of a judge of the Supreme Court to the Board, it is invalid. In Wilson, the High Court (Brennan CJ, Dawson, Toohey, McHugh, Gaudron and Gummow JJ) held that the function of reporting to the Minister under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was incompatible with judicial office. The court said that incompatibility is ascertained by reference to the function that has to be performed to exercise the power. The joint judgment (Brennan, Dawson, Toohey, McHugh and Gummow JJ) continued,[31]

The statute or the measures taken pursuant to the statute must be examined in order to determine, first, whether the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government. If the function is not closely connected with the Legislature or the Executive Government, no constitutional incompatibility appears. Next, an answer must be given to the question whether the function is required to be performed independently of any instruction, advice or wish of the Legislature or the Executive Government, other than a law or an instrument made under a law (hereafter "any non-judicial instruction, advice or wish"). If an affirmative answer does not appear, it is clear that the separation has been breached. The breach is not capable of repair by the Chapter III judge on whom the function is purportedly conferred, for the breach invalidates the conferral of the function. If the function is one which must be performed independently of any non-judicial instruction, advice or wish, a further question arises: Is any discretion purportedly possessed by the Chapter III judge to be exercised on political grounds - that is, on grounds that are not confined by factors expressly or impliedly prescribed by law? In considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests. An obligation to observe the requirements of procedural fairness is not necessarily indicative of compatibility with the holding of judicial office under Chapter III, for many persons at various levels in the executive branch of government are obliged to observe those requirements. But, conversely, if a judicial manner of performance is not required, it is unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion.

36 The examination of the Corrections Act for the purpose of discerning incompatibility is to be qualified, in the State context, by what was said by McHugh J in Kable:

although nothing in Ch III prevents a State from conferring executive government functions on a State court judge as persona designata, if the appointment of a judge as persona designata gave the appearance that the court as an institution was not independent of the executive government of the State, it would be invalid. No doubt there are few appointments of a judge as persona designata in the State sphere that could give rise to the conclusion that the court of which the judge was a member was not independent of the executive government. [32]

37 Mr Kotzmann submitted that incompatibility is apparent from the power conferred upon the Board to revoke parole for no apparent reason. That power coupled with the close connection between the Board and the executive, leaves the Board exposed to a perception that the power to order or revoke parole may be exercised to assist in political objectives or policies, such as to relieve pressure on the overcrowding of prisons or to ensure that new prisons are sufficiently populated. Mr Kotzmann submitted that the performance of the functions of the Board are "dictated by the current policy of the political party holding office". He pointed to the opportunity for the executive to require advice under s 72(4) and (5) and the overarching reporting obligation to the Minister under s 72(1).

38 Mr Kotzmann further submitted that the Board is susceptible to police interference because it conducts its affairs in private, leaving open the possibility that decisions may be made or may be perceived as having been made for a collateral purpose - to assist the police. He submitted that the Board took into account evidence that would not be admissible in judicial proceedings.

39 That submission is given colour by an allegation, forming the basis of one of the more conventional grounds for review, that the Board acted on false assertions about him made to his corrections officer by a police officer. He was unaware of the allegations contained in the Special Report prepared by his corrections officer until some time after the decision to revoke was made. He was given no opportunity to respond. He submitted that the decision to revoke his parole was based on false, unanswered, allegations.

40 The Secretary submits that while the Board is closely connected with the executive it operates independently and its decisions are made free of political influence; and it is unlikely that ordinary members of the community would regard the appointment of a judge of this court, sitting as a member of the Board and its chairman, as compromising the integrity and independence of the judge or of this court.

41 Mr Kotzmann's incompatibility argument requires an examination and assessment of the nature of the function performed by the Board, the manner in which the Board performs its functions and the extent to which those matters may diminish public confidence in the integrity of the judiciary as an institution or the capacity of the individual judge to perform his or her judicial functions with integrity.[33]

42 In the recent decision of Hussain v Minister for Foreign Affairs[34] the Full Court of the Federal Court of Australia (Weinberg, Bennett and Edmunds JJ) considered the validity of ss 39A and 39B of the Administrative Appeals Tribunal Act 1975 (Cth). Those provisions provide that the Attorney-General for the Commonwealth may certify in writing that the disclosure of information concerning a specified matter or the disclosure of any matter contained in a document in proceedings before the Tribunal would be contrary to the public interest by reason that such disclosure would prejudice the security of Australia.

43 In Hussain the Full Court undertook a thorough and useful review of the authorities from which emerge the following propositions:

(1) Federal jurisdiction has been invested in State courts under Chapter III of the constitution. The Supreme Court of Victoria is, accordingly, amenable to the requirement that no function can be conferred upon a judge that is incompatible either with the judge's performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power.[35]

(2) Incompatibility might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished.[36]

(3) Thus, incompatibility will exist if a discretion is to be exercised by a judge on political grounds, that is, grounds that are not confined by factors expressly or impliedly prescribed by law.

(4) Further, a relevant consideration is the extent to which the function is to be performed without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests. It was noted by the court in Wilson that if a judicial manner of performance is not required it is unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion.

(5) Public confidence in the judiciary may, in some circumstances, be enhanced when a judge is appointed to undertake troublesome or controversial tasks associated with the executive government.[37]

(6) Since Wilson and Kable, which were perceived as extending the scope of the incompatibility doctrine, its application has been limited in more recent decisions of the High Court.[38] The common feature of each of those decisions is that it concerned the conduct of a judge performing his or her functions as part of the court. In the present case we are concerned with a judge of the court performing non-judicial functions as chairperson or a member of the Board.

(7) The fact that the Corrections Act operates to deny a prisoner natural justice does not of itself demonstrate that a judge, acting as a designated person, cannot be appointed a member of the Board.[39]

44 Individual views will differ as to what will erode public confidence in the court and judiciary. The functions of the Board fall within that category of case where the public confidence and its integrity is very likely to be enhanced by the appointment of judicial officers and in particular a judge of this court. On the other hand, there are functions which may, according to some, appear to diminish public confidence in the court.

45 A decision to revoke a parole order might be validly made on the basis of incorrect information provided to the Board privately, without notice to the person affected and without any opportunity given to the prisoner to be heard in relation to it. That information may also induce the Board not to exercise the power under s 77(7A). While a prisoner has no right to a parole order, its revocation and the timing of its revocation may have the effect of significantly extending the time a prisoner remains under sentence; with the risk that having served time on parole in the community he or she will be required to complete the remainder of the sentence in custody. If the power under s 77(7A) is to be exercised properly the Board ought to be required to satisfy itself of the correctness of the information taken into account. That opportunity is significantly diminished if natural justice is denied a prisoner whose parole order is revoked. The role of the Supreme Court and the necessary appointment of a judge of this court may be perceived by some as an attempt to assuage concerns about the unfairness of the procedures prescribed by the legislation.

46 The Board reports directly to the Minister and is required to report, advise and recommend as directed. Section 72 permits the Minister to require the Board to give a "report and recommendation concerning a person..." and report on a "matter stated in (a) requirement...". While it is true that the scope of such a report is limited, it is sufficiently wide to authorise the Minister to require the Board to exercise its powers under s 71 to undertake an inquiry in the nature of a commission. Such an inquiry may be of the same character as that under consideration in Wilson. Thus, the legislation has the potential to make the Board an instrument of the executive.

47 Ultimately, the issue is to be resolved in the state context, by asking whether the appointment gives "the appearance that the court as an institution is not independent of the executive government".[40] Fashioned in that way, I would answer the question, No.

48 While a judge of the Supreme Court is the chairperson, he or she does not constitute the Board. Decisions are made collectively. Other appointees include serving and retired judicial officers. There is a possibility of executive interference, but no evidence of any such interference in the decision-making processes of the Board. The power of the Board to conduct an effective and thorough enquiry, should it be so advised, may be regarded as a measure to enable the Board to protect the rights of prisoner.

49 There is no right to a parole order. There is no legitimate expectation that a direction will be made under s 77(7A). The nature of a parole order and the legitimate community expectations regarding the management of prisoners released into the community lead me to the conclusion that reasonable members of the community would consider the involvement of a Supreme Court judge on the Board as appropriate and independent supervision of an executive function that has the potential to be employed unfairly.

50 These matters persuade me that the appointment of a judge or judges of this court, as serving members of the Board, does not give the appearance that this court, as an institution, is not independent of the executive government.

51 Mr Kotzmann advanced an additional argument, submitting that when revoking a parole order the Board had the power to interfere with the sentence imposed by a sentencing judge or magistrate. Unless the Board decided to exercise its power under s 77(7A), to direct that the time spent on parole be regarded as time served in respect of a prison sentence, the effective time of the sentence would be increased. In my opinion, there is no substance behind this argument. The Corrections Act operates so as to enable the Board to release a prisoner into the community subject to conditions. If parole is revoked, s 77(7)(b) provides that any period during which the parole order was in force is not to be regarded as time served in respect of the prison sentence unless a direction is made under s 77(7A).

52 Accordingly, I find that Mr Kotzmann's challenge to the validity of the Corrections Act fails. In any event, there would seem to be no utility for Mr Kotzmann should he succeed in his challenge. To invalidate the Board would be to eliminate any opportunity Mr Kotzmann might otherwise have to obtain relief on one or more of his other grounds of review.

53 In addition to his challenge to the validity of the Corrections Act, Mr Kotzmann relied upon a number of more conventional grounds of judicial review.

54 Mr Kotzmann submitted that the power to revoke parole and the power to give a direction under s 77(7A) are unfettered. That is not the case. The power to revoke must, for example, only be exercised bona fide and for a proper purpose. It may not be exercised for a collateral purpose. There is a requirement that reasons for revocation are given "as soon as possible". The revocation order is amenable to review under order 56 of the Rules of Court. Similarly, the power under s 77(7A) must not be exercised improperly, capriciously or for a collateral purpose.

55 Mr Kotzmann identified two substantive grounds for review which are not resolved by his challenge to the validity of the Corrections Act. First, he alleges that the decision to revoke his parole order discloses an error on the face of the record. Second, he alleges that the power was exercised in bad faith.

56 The principles applicable to judicial review for error on the face of the record are not controversial and are set out in Craig v South Australia.[41]

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirements of procedural fairness, fraud and "error of law on the face of the record". Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the "record" of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.

57 The record, for the purpose of this application, is a letter dated 7 March 2008 from the Board to Mr Kotzmann's solicitors. The relevant part of that letter has been set out above. I note that the Board did not provide any reasons for its refusal to give a direction under s 77(7A) and there is no requirement that it do so.

58 Failure to comply with a condition of a parole order is, without doubt, a ground upon which the Board may validly exercise its power to revoke the order. Accordingly, there does not appear to be any error on the face of the record.

59 Mr Kotzmann's real complaint is that the decision was based upon a misunderstanding of fact. He alleges that the Board did not take account of or have regard to a medical certificate indicating that at the time he was required to attend for reporting he was unable to do so or was in some way compromised because of an injury. Mr Kotzmann submits that the Board was required to accept the medical certificate which was, even on his version of events, subsequently obtained. Whatever status is to be given to a medical certificate in circumstances where a prisoner on parole is unable to attend a reporting obligation, the fact remains that no such certificate was provided until after Mr Kotzmann had failed to attend appointments on 3 and 4 January 2008.

60 Furthermore, the decision of the Board is based upon the contents of a "Special Report" prepared by Mr Kotzmann's corrections officer. That report concludes with the following recommendation:

Mr Kotzmann last reported to Oakleigh Community Corrections on the 31/12/07. Mr Kotzmann has not physically reported to Oakleigh Community Correctional Services for two and half weeks. He claims to be residing at his partner's Glen Iris address, however police have advised this Service that this is not correct in their opinion, having attempted to execute a warrant at this address. He has further failed to report to Oakleigh Community Correctional Services on the 14/1/08 and the 15/1/08, as directed, with medical documentation, instead forwarding a doctors certificate through his solicitor that did not provide that specific information that was requested of him for the Board. Moreover, this solicitor advised this Service that he was unaware that Mr Kotzmann was seriously injured from what he had observed. Mr Kotzmann has incurred numerous unacceptable absences, provided positive drug tests with diluted samples and has been unwilling to address his offending behaviour in supervision. In light of these circumstances, it is respectfully recommended to the Board that Mr Kotzmann's Parole be cancelled.

61 In my opinion the Board was entitled to act upon that recommendation to revoke Mr Kotzmann's parole. It was not required to afford Mr Kotzmann any opportunity to challenge the accuracy of the Special Report or to be heard in response to allegations made or contained in the report. Mr Kotzmann was unaware of the content of the report until after it was acted on by the Board. These circumstances may be regarded as harsh and unjust, but the legislation has expressly abrogated any entitlement to procedural fairness. The fact that the Board may have acted on an incorrect report, or evidence, does not vitiate the Board's decision.

62 It is not part of this review to question the accuracy of the Special Report and recommendation. But, having read the report and recommendation and Mr Kotzmann's affidavit, there is no real controversy concerning his failure to comply with his parole conditions. Rather, Mr Kotzmann's complaint is that the Board should have decided differently, having regard to his alleged injury and the subsequent production of a medical certificate. In my opinion there is no substance to this ground.

63 Mr Kotzmann's second substantive ground is that the Board acted in bad faith. The particulars set out in the amended grounds dated 3 July 2008 are unhelpful but during his submission Mr Kotzmann articulated his complaint as a challenge to the integrity of the Board because, so he alleged, the decision to revoke was motivated by a desire to assist the police in achieving their objectives and not, as set out in the reasons, his failure to attend in compliance with his reporting conditions.

64 Mr Kotzmann's affidavits reveal that he has had a longstanding involvement with police. He maintains that the Board or members of it were communicating "behind closed doors" with police. He contends that his parole order was cancelled as a result of false assertions made by police to the Board either directly or via his corrections officer. But there is no evidence advanced by Mr Kotzmann of any communications, improper or otherwise, between the Board and police prior to the revocation of his parole order. In a letter to the Board dated 27 March 2008 Mr Kotzmann complained about the absence of reasons and asserts that his failure to attend when required was justified due to his injuries. He then speculates that the decision of the Board to revoke his parole order must have been made for some other purpose. His letter continues,

Therefore the only reasonable conclusion I can reach as to why my parole order was cancelled, based on the telephone conversation I had with my CCO prior to his completion of my return to custody report is the Board decision was predicated upon submissions made to them by Victoria Police's assertions (that I) was alleged to have been involved in the commission of further offences.

65 Mr Kotzmann's affidavits do not elaborate except to reassert his belief that his parole order was cancelled as a result of information given to the Board by the police. He calls in aid the delay in the provision of reasons to raise suspicion as to their accuracy and genuineness. He challenges, paragraph by paragraph, the report prepared by his corrections officer. The difficulty confronting Mr Kotzmann is that the Board is not required to accord him natural justice and he is not guaranteed any opportunity, before the Board or elsewhere, to challenge the correctness of the report made to the Board by his corrections officer. Unless the Board has reason to doubt the accuracy and genuineness of the Special Report and recommendations it is entitled, in my respectful opinion, to act upon the report which in this case it has apparently done. In the circumstances the bad faith ground of review must fail.

66 I note that there was a remaining ground framed as both an error of law on the face of the record and bad faith, involving the failure by the board to give a direction under s 77(7A). There is no evidence or other basis advanced to support an allegation that the failure by the Board to give such a direction involved an error of law or that the decision was one made in bad faith. It is always possible that had Mr Kotzmann been given the opportunity to challenge the allegations contained in the Special Report, and to put his side of the case to the Board, it may have been persuaded to make such a direction. But the Board was not obliged to give him that opportunity and its refusal to give a direction cannot be criticised on that basis.

67 Mr Kotzmann's challenge to the Corrections Act raises some important issues concerning the relationship between this court, its judges and the executive. His challenge, however, fails.

68 The other grounds upon which Mr Kotzmann applies to review the decision of the Board also fail. The Board was entitled to and did act upon the report from Mr Kotzmann's corrections officer. Mr Kotzmann did not have the right to challenge the correctness of the allegations contained in the Special Report or to put his side of the story to the Board before it made its decision to revoke his parole order. The Board was not required to give him that opportunity and did not do so. In any event, the facts conceded by Mr Kotzmann were, in my view, sufficient to justify a revocation of his parole order.

69 Once his parole order was revoked Mr Kotzmann was liable to be arrested and returned to prison to serve the remainder of his sentence without regard to time served on parole. The Board did not give a direction under s 77(7A) to credit Mr Kotzmann with some or all of the time spent on parole in reduction of his prison sentence and it was not required to do so. Mr Kotzmann had no right to any such reduction.

[1] R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35-36.

[7] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 584; Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57.

[9] Johnson and Hardcastle State Courts: The Limits of Kable 1998 20 Sydney L Review 216 at 243.

[24] [1956] HCA 10; (1956) 94 CLR 254. See also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 584; Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57.

[26] Brennan CJ at 66-67; Dawson J at 77-78; Toohey J at 92; Gaudron J at 101-2, 104; McHugh J at 109-110; Gummow J at 132-137.

[31] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 17.

[32] Pages 117-118 (emphasis added); see also Gaudron J at p 104, "The limitation on State legislative power is more closely confined and relates to powers or functions imposed on a State court, rather than its judges in their capacity as individuals, and is concerned with powers or functions that are repugnant to or incompatible with the exercise of the judicial power of the Commonwealth.

[33] Grollo v Commissioner of Australian Federal Police (1995) 185 CLR 348 at 365.

[35] Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, at 364-365.

[38] Nicholas v R [1998] HCA 9; (1998) 193 CLR 173; Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575; Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45; Thomas v Mowbray [2007] HCA 33; (2007) 237 ALR 194; and Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 242 ALR 191.

[40] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 per McHugh J at 117-118.

[41] [1995] HCA 58; (1995) 184 CLR 163, 175, emphasis added.

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