Citation : NGJF -v- PRISONERS REVIEW BOARD [2010] WASC 107

Administrative law - Mistake as to source of power - Validity of decision - Whether material difference in relevant considerations - Error of law - Jurisdictional error - Whether recommendation to Minister against parole a 'decision' under relevant statutory scheme - Whether 'decision' authorised by statute and affects rights - Whether statutory duty to give reasons - Beneficial legislation

Interpretation Act 1984 (WA), s 5, s 12(a), s 60

Offenders Community Corrections Act 1963 (WA), s 4, s 20T, s 21, s 32 - s 34, s 34A, s 40, s 40A, s 40B, s 40C, s 40D, s 41, s 44, s 45, s 49A, s 50, s 50H, s50X, s 50Z, s 50ZA, s 50ZB, s 50ZG, s 50ZH

Parole and Sentencing Legislation Amendment Act 2006 (WA), pt 2

Sentence Administration Act 1995 (WA), s 3, s 23, s 27, s 30 - s 34, s 35, s 39, s 40, s 49, s 58, s 67, s 114, s 115

Sentence Administration Act 2003 (WA), s 3, s 4, s 5A, s 5B, s 5C, s 12, s 12A, s 13, s 14, s 14A, s 25, s 48, s 102 - s 106, s 107, s 107A, s 107B, s 107C, s 108, s 109, s 113, s 115, s 115A, s 119

Sentencing (Consequential Provisions) Act 1995 (WA), s 77, s 86

Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 29(1), sch 1 cl (3), cl 13(5)

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Andrew Koh Nominees Pty Ltd v Balneum Joint Venture [2007] WASCA 152; (2007) 33 WAR 561

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (1999) 199 CLR 135

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) SR (NSW) 416

Ex parte Miah; Re Minister for Immigration and Multicultural Affairs [2001] HCA 22; (2001) 206 CLR 57

FAI Insurances Ltd v Winneke [1982] HCA 26; (1981) 151 CLR 342

Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99

Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149

IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1

Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531

Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513

NGJF v Prisoners Review Board [2010] WASC 107

Nilant v Macchia [2000] FCA 1528; (2000) 104 FCR 238

Pape v Commissioner for Taxation [2009] HCA 23

Parole Board; Ex parte Forbes (1996) 89 A Crim R 139

Perkins v County Council of Victoria [2000] VSCA 171; (2000) 2 VR 246

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476

Public Service Board of New South Wales v Osmond [1987] HCA 7; (1986) 159 CLR 656

R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322

R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170

Rechichi v The Parole Board of Western Australia [2001] WASC 363

Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128

State of South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378

Thong Chua v Attorney-General for the Commonwealth of Australia (1986) 11 FCR 187

Vaw (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631

Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589

3 In 1992, the respondent was sentenced to life imprisonment for wilful murder under the then applicable provisions of the Criminal Code (WA): s 282(c)(ii). Section 282(c) (since repealed) provided:

[A] child or young person under the age of 18 years who commits the crime -

(c) of wilful murder is liable to a punishment of -

(i) strict security life imprisonment; or

(ii) life imprisonment; or

(iii) an order that the child or young person be detained in strict custody until the Governor's pleasure is known and, thereafter, in safe custody in such place or places as the Governor may, from time to time, direct.

4 At that time, the Offenders Community Corrections Act 1963 (WA) (OCC Act) was in force. By s 37A(6)(e) of the OCC Act, no order as to eligibility of parole was to be made in respect of a sentence of life imprisonment. Accordingly, the respondent's eligibility for parole depended upon the application of s 34 and s 40D of the OCC Act, referred to below.

5 Following a review of the respondent's case on 2 June 2009, there was a report furnished by the appellant to the Attorney General. On the application of the respondent, the learned primary judge made the following declaration:

1. The making of a report by the Prisoners Review Board to the Minister in 2009 containing recommendations with respect to the Plaintiff against parole and against participation in a re-socialisation programme was a decision to which section 107B Sentence Administration Act 1995 applied.

6 The appellant appeals the making of that declaration. It may be noted that the reference in the declaration to s 107B of the Sentence Administration Act 1995 (WA) (the 1995 Act) appears to be an error, and

that the declaration was presumably intended to refer to s 107B of the Sentence Administration Act 2003 (WA) (2003 SA Act).

7 Although not the subject of a declaration, in his reasons in NGJF v Prisoners Review Board [2010] WASC 107, the primary judge said, with respect to the reasons to be supplied by the appellant [89]:

Such reasons should be sufficiently specific to enable the plaintiff to understand what criteria have been relied upon, what information has been used and what factual findings were made.

1. His Honour erred in law in making a declaration that the making of a report by the Prisoners Review Board to the Minister in 2009 containing recommendations with respect to the Respondent against parole and against participation in a re-socialisation programme was a decision to which section 107B Sentence Administration Act 1995 applied.
2. His Honour erred in finding that the reasons to be given pursuant to his declaration 'should be sufficiently specific to enable the Respondent to understand what criteria have been relied upon, what information has been used and what factual findings were made' as reasons having such content would inform the Respondent of the 'case against him', a rule of natural justice which is excluded by section 115 Sentence Administration Act 1995.

9 The appellant also seeks to add a third ground as follows:

His Honour erred in finding that the making of a report by the Prisoners Review Board to the Minister in 2009 was a decision to which section 107B Sentence Administration Act 2003 applied because the report was made under the Sentence Administration Act 2003 when it should have been made under the Offenders Community Corrections Act 1963 and was therefore a nullity and no decision at all.

10 It is convenient, at the outset, to mention the evidence before the trial judge.

11 The evidence led by the respondent included the following correspondence.

12 By letter dated 2 July 2009, the respondent wrote to the Attorney General in these terms:

It has today been brought to my attention the Prisoners Review Board determined to make recommendation to you in a review on 2 June 2009, although the Board have not informed me of the same.

Although the Board did not receive updated information for this review, it has for the first time determined I am not suitable for participation in a re-socialisation program, or release on parole. Had I known the Board were going to flip-flop their decision in-line with the former Attorney-General's past recommendation, I would have forgone other applications and solely concentrated on an Interstate prison transfer.

It seems clear that your office has been mislead in this matter; as the Board provided a substantially different recommendation from past decisions, yet it based its conclusion on static information; thus raising my concern about further consequences to my release. Undoubtedly, if my application for Interstate prison transfer is approved, the Board's rubber-stamp decision will create a new hurdle to my possible release by the NSW Adult Parole Board, when you consider the Board's past decisions were always to progress towards release.

Given these facts, the Board's change in attitude by not recommending my progress towards release seems difficult and absolute when you consider that no further reports were requested from any department. Therefore, I can now only hope that my application for prison transfer Interstate may be approved, considering that this is the only viable submission before you.

13 By letter dated 5 August 2009, the respondent wrote to the appellant:

RE: Scheduled review for June 2009

Dear Sir / Madam

I understand the Prisoners Review Board (the Board) conducted a hearing of my case on or around 2 June 2009.

I further understand the tenor of the Board's decision is the Board now considers me to be not suitable for participation in a re-socialisation program, nor release on parole, either in this State or any other State.

If my understanding be true, I respectfully request the Board formally notify me in writing of the same at the Board's earliest convenience; together with a reasonably cogent summary of the Board's reasons for decision, including all findings on material questions of fact - referring to any probative evidence or other cogent material on which those findings were based.

Further, I wish for the Board to convey to me 'why' the Board have now determined to do a complete about-face from the Board's previous and consistent support of my progression towards release - what has changed? (emphasis added)

14 By letter dated 14 August 2009, the Attorney General wrote to the respondent:

LETTER REGARDING THE PRISONERS REVIEW BOARD

Thank you for your letter dated 2 July 2009 regarding a decision reached by the Prisoners Review Board (the Board) in relation to the status of your parole.

I am advised that the Board reviewed your case on 2 June 2009, and made a decision to prepare a report in accordance with section 12A of the Sentence Administration Act 2003.

I am further advised that the report is currently being prepared for my attention. After I am in receipt of the Board's recommendation and any other information that I consider to be relevant, and I have finalised my decision regarding the Boards' recommendation I will then be in a position to consider whether your application for an interstate prison transfer is necessary, which will occur separately.

You will be notified of my decision in due course. (emphasis added)

15 By letter dated 17 August 2009, the respondent wrote to the Attorney General:

Further to my previous letter to you of 2 July 2009, I have today received a reply letter from the Prisoners Review Board (the Board) of 13 August 2009 (enclosed), in response to my earlier letter of 5 August 2009 (enclosed).

Considering the Board's letter does not address any of the concerns I raised, I am forced to respectfully ask you that you confirm the Board's decision of 2 June 2009 - that I am no longer suitable for participation in a re-socialisation program, nor release on parole, in this State, or any other State; as I am yet to receive any formal correspondence from the Board regarding this matter. I also ask if you can further outline the questions I posed to the Board in my letter of 5 August 2009.

I understand your considerable work commitments ensure your daily attention, and I am therefore reluctant to bring this matter to your attention, and ask that you make inquiry. This is a matter that was completely within the Board's purview to resolve, however, the Board have chosen not to resolve this matter at all.

Further, as a matter of interest, I enclose my earlier correspondence to Mr/Ms R Harmer, Correspondence Officer for the Board, of 19 July 2009, and the Board's reply of 31 July 2009. I note the Board's reply of 13 August appears to be almost verbatim the Board's reply of 31 July.

16 By letter dated 10 September 2009, the appellant wrote to the respondent:

I refer to your correspondence to the Prisoners Review Board (the Board) dated 19 July 2009 and 5 August 2009.

Firstly, I apologise for the standard response that you received which was not appropriate in the circumstances.

I also take this opportunity to apologise for the lack of notice to you of the Boards decision relating to your case from the meeting held on 2 June 2009.

I now enclose a copy of that decision for your records.

Further, the Board has now received formal notification from the Attorney General and notes that he has not approved your release on parole nor participation in a re-socialisation programme.

In relation to your letter dated 5 August 2009, I have asked the Registrar, Prisoners Review Board to provide you with a response. As you have addressed many issues, some of which are complex, the Registrar has asked for a period of 4 weeks to respond which has been agreed.

17 The enclosure in the above letter was dated 2 June 2009 and was in these terms:

The Prisoners Review Board today considered your case and resolved to prepare a report to the Attorney General.

You will be advised of any further outcomes.

18 By letter dated 18 September 2009, the appellant wrote to the respondent's then solicitors:

In response to the issues numbered 23 - 26 that you have raised on page three of your letter to the Prisoners Review Board (the Board) dated 31 August 2009 on behalf of your client, [the respondent] I would like to advise you of the following,

1. We have previously advised your client, [the respondent] that it is the responsibility of the Department of Correctives Services to liaise with interstate authorities prior to any recommendations being forwarded to the Board and the Board has no role in investigating applications for transfer of parole interstate.
2. The advice letter to [the respondent] detailing the Board's decision to prepare a report to the Attorney General dated 2 June 2009 was not sent due to an administrative error. On 10 September 2009, the Acting Executive Manager apologised to [the respondent] in writing and provided him with a copy of the letter.
3. The Board's report and the recommendations included in the Board's Sixth Statutory Report is provided to the Attorney General in accordance with the section 12 subsection 2(b) of the Sentence Administration Act 2003.
4. Any response in relation to the possibility of an 'in principle' transfer of parole order to NSW is not a matter for the Board, but as previously stated, a matter for the Department of Corrective Services.

In addition, I note the Acting Executive Manager in his letter of 10 September 2009 advised [the respondent] of the Attorney General's decision not to approve [the respondent's] release on parole or his participation in a re-socialisation program.

For your information the Sixth Statutory Report to the Attorney General dated 29 July 2009 is a confidential document and therefore not available. (emphasis added)

19 By letter dated 7 October 2009, the Attorney General wrote:

REQUEST FOR INQUIRY INTO PAROLE BOARD DECISION

Thank you for your letter dated 17 August 2009 regarding a request for confirmation of the Prisoners Review Board's (the Board) decision to deny you release on parole and participation in a re-socialisation programme.

The Board last conducted a review in relation to your matter on 2 June 2009 and the report and recommendation from that meeting was provided to my office on 29 July 2009 for my decision. After carefully reviewing your matter, I confirm that I have agreed with the recommendation made to me by the Board and have determined to deny both your release to parole and participation in a re-socialisation program at this time.

I can advise that the Board apologises for the responses you received on 19 July 2009 and 31 July 2009, which were standard responses commissioned by secretariat staff. With respect to your earlier letter dated 5 August 2009, I note that you have addressed many issues, some of which are complex, and I advise that the Registrar will respond to you within the next four weeks.

Thank you for bringing these matters to my attention. (emphasis added)

20 Further correspondence from the appellant to the respondent dated 3 and 16 November 2009 referred, in effect, to the appellant's report to the Attorney General as a 'statutory report' under the 2003 SA Act. The latter letter stated:

I refer to your letter dated 3 November 2009.

Section 5A of the Act details the considerations against which the Board considers all information provided to it when reviewing any matter for release.

As I stated in my letters dated 18 September 2009 and 3 November 2009, the Sentence Administration Act 2003 (the Act) does not require the Board to provide a prisoner with a copy of the Statutory Report to the Attorney General and it is that report that contains the information you are requesting.

Therefore, I cannot assist you further and I am unable to continue to respond to the same requests framed in a different manner. (emphasis added)

21 On 15 December 2009, the Attorney General wrote to the respondent in these terms:

REQUEST FOR EXPLANATION AND REASONS FOR DENIAL OF RELEASE ON PAROLE OR PARTICIPATION IN A RE-SOCIALlSATlON PROGRAM

Thank you for your letter dated 14 October 2009 in which you request that I supply you with reasons for the decision to deny your release on parole or participation in a re-socialisation program.

I have previously advised you in my letter of 7 October 2009 that, after carefully reviewing your matter, I agreed with the recommendation made to me by the Prisoners Review Board (the Board) and determined to deny both your release to parole and participation in a re-socialisation program at this time.

I note that you have been advised by the Registrar of the Board on 18 September 2009 that there was no legislative requirement to provide you with the Board's reasons and recommendations and, as the rules of natural justice do not apply to the Board, that information would not be provided.

I concur with the Board's decision not to provide you with this information and, as a reply to your request may identify some of that information, I am unable to assist you further in this matter. (emphasis added)

22 By letter dated 23 December 2009, the respondent wrote to the appellant:

'VICTIM'S SUBMISSION'

I respectfully seek your written response to the following queries concerning the making of, receipt, and use by the Prisoners Review Board (the Board) of a 'victim's submission', pursuant to section 5C Sentence Administration Act 2003.

1. Does the Board have policies / procedures which give form to the making of, receipt, and weight by which a victim's submission is received and considered by the Board?

a. If yes, could you please furnish me a copy of such policies/procedures?

1. Of what weight would the Board use a victim's submission which contained factual inaccuracies?
2. Of what weight would the Board use a victim's submission which contained knowingly malicious and dishonest material?
3. Of what weight would the Board use a victim's submission whose contents was founded on a breach of duty by a public officer, and an unauthorised disclosure of confidential Case File documentation and related materials of the Western Australian Police Service (representing a breach of sections 81(1) and 85 Criminal Code 1913)?
4. Of what weight would the Board use a victim's submission whose contents was founded on an unauthorised access of 'court record' materials of the Children's Court of Western Australia (representing a breach of section 51A Children's Court of Western Australia Act 1988)?

23 By letter dated 19 January 2009 [sic 2010], the appellant wrote to the respondent:

REFERENCE: LETTERS DATED 23 DECEMBER 2009 & 5 JANUARY 2010

In regard to your letter dated 23 December 2009 and received on 7 January 2010, comment cannot be made in general terms as each Board matter is considered individually, in accordance with the required legislation, therefore I refer you the relevant sections of the Sentence Administration Act 2003 pertaining to victims, which are as follows,

victim of an offence means -

(a) a person who has suffered injury, loss or damage as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender; or

(b) where the offence resulted in a death, any member of the immediate family of the deceased;

victim's submission has the meaning given to that term by section 5C(1);

5A Release considerations about people in custody

(d) issues for any victim of an offence for which the prisoner is in custody if the prisoner is released, including any matter raised in a victim's submission;

5C. Victim's submission to Board

(1) A victim's submission is a written submission by a victim of an offence for which a prisoner is in custody that does either or both of the following -

(a) states the victim's opinion of the effect the release of the prisoner would have on the victim;

(b) makes suggestions about the conditions that should apply to the prisoner if released.

(2) If a victim is personally incapable of making a victim's submission due to age, disability or infirmity, a person may make a victim's submission on the victim's behalf.

(3) The Board and the CEO are to establish procedures for the making of victims' submissions and their receipt by or transmission to the Board.

(4) In performing its functions, the Board is to have regard to any victim's submission received by or transmitted to it in accordance with the procedures and is to give the submission such weight as it sees fit.

(5) The Board must not -

(a) give a victim's submission, or a copy of a victim's submission, to the prisoner or to any person acting for or on behalf of, or representing, the prisoner; or

(b) allow the prisoner or any person acting for or on behalf of, or representing, the prisoner to view a victim's submission.

In response to the first question in your letter dated 5 January 2010, received 11 January 2010, your next statutory review is due 27.08.2012 and your matters will be listed before the Prisoners Review Board for consideration prior to that date, on receipt of the required reports and assessments.

In relation to the second matter you raised, you will need to speak with the Department of Corrective Services staff regarding what services are available to you prior to that next review, as this is their area of responsibility. (emphasis added in first paragraph)

24 The appellant's evidence comprised an affidavit of Ms Sharon-Lee Holland sworn 1 April 2010. Ms Holland deposed that she was the Registrar of the appellant, and stated, inter alia:

1. The Prisoners Review Board reviewed the Plaintiff's case in June 2009.
2. The Prisoners Review Board did not make any decisions in relation to the Plaintiff. The only 'decision' the Prisoners Review Board made was to send a report to the Attorney General in relation to the Plaintiff. The Attorney General is empowered to make all material decisions in relation to the Plaintiffs case.
3. The Plaintiff was informed that the Prisoners Review Board had decided to send a report to the Attorney General by letter of the A/Executive Manager dated 10 September 2009. This letter also informed the Plaintiff of the Attorney General's decision in relation to his case. Annexed hererto [sic] and marked 'SLH 5' is a copy of the letter.
4. From my review of files it has never been the practice of the Prisoners Review Board to provide to prisoners copies of reports prepared for the Attorney General in relation to them.
5. Reports provided to the Attorney General often include victim and secondary victim submissions, reports by psychiatrists and psychologists who deal with the prisoner, reports by prison and community based assessment officers and community corrections officers and other prison staff. Members of the public who have been nominated by prisoners as playing an intended support role if a prisoner is released on parole also provide their views on a range of matters.
6. It is vital in the community's interests that people providing information in relation to prisoners do so with absolute candour and honesty. They must be able to provide information without fear of reprisal or other complications that may arise if a prisoner knows what has been said or written about them.

(a) the Board had provided a report to the Attorney General in reliance on s 12 or s 12A of the 2003 SA Act; and

(b) the report included a recommendation to the Attorney General:

(i) that the Governor should be advised not to exercise any power to release the respondent on parole; and

(ii) not to approve the respondent's participation in a re-socialisation programme.

26 The OCC Act made provision, inter alia, for the release of offenders on probation orders, community service orders, parole orders, home detention orders, or work release orders, and for conditions applicable to those orders and to work and development orders.

27 The Act contained the following definitions, in s 4:

'Chief executive officer' means chief executive officer of the department

'Parole order' means an order under this Act directing that a prisoner be released from prison on parole

'The Board' means the Parole Board established under this Act

'The parole period' means the period during which a prisoner is released from a prison on parole under the supervision of a community corrections officer pursuant to a parole order

28 Part III of the Act dealt with parole. In that part, the term 'prisoner' was defined in an inclusive way: s 20T.

29 Section 21, which established the Parole Board, provided:

Establishment of Parole Board

21. (1) For the purposes of this Act, there shall be a Board by the name of the Parole Board.

(2) The Board shall consist of 7 members, namely -

(a) a judicial member appointed by the Governor on the recommendation of the Minister;

(b) the chief executive officer;

(c) a prescribed officer nominated by the chief executive officer;

(d) a member of the Police Force nominated by the Commissioner of Police; and

(e) 3 other persons appointed by the Governor.

(3) References in this Act to an appointed member shall be construed as references to a man or a woman appointed by the Governor under subsection (2) (e), as the case requires.

(4) In this section and in sections 23 and 23A 'prescribed officer' means an officer employed under section 5C or 5D (1).

Powers, duties and functions of the Board

31. (1) The powers, duties and functions of the Board are such as are prescribed by or under this or any other Act.

(2) The Board may do all things necessary or convenient to be done for or in connection with, or as incidental to, the performance of its powers, duties and functions.

(3) A person who is or has been a member or acting member is not personally liable to any action or suit whatsoever in respect of any act done or omitted to be done in the exercise or performance or purported exercise or purported performance of any power, duty or function conferred or imposed on the Board or on any member or members by or under this or any other Act.

31 Section 32 provided that the Board was the successor of the Indeterminate Sentences Board under the Prisons Act 1903 (WA), and that anything done or commenced by that previous Board before the commencement of the OCC Act may be done by the Board insofar as necessary to give effect to the provisions of the OCC Act.

32 By s 33, the Board had the powers of a Royal Commission.

33 Section 34 provided for the furnishing of reports by the Board to the Minister.

34 Section 34(1) provided that the Board should submit annual reports to the Minister as to, in effect, the operation of the Act, including the number of persons released on parole.

35 Section 34(2) provided, in a series of subsections, for mandatory reporting by the Board to the Minister, with respect to certain persons in custody and prisoners.

36 Section 34(2)(a) provided that the Board should report to the Minister, whenever requested by the Minister, in relation to, in effect, persons (identified by reference to certain provisions of the Criminal Code) in custody who were insane or of unsound mind. Section 34(2)(c) further provided that whether requested by the Minister or not, the Board should provide a report to the Minister on such persons annually.

37 By s 34(4), reports under s 34(2)(a) or (c) were required to contain a recommendation to the Minister as to whether or not the Governor should be advised to exercise any power to release the person from custody and, if release were so recommended, on what, if any, conditions.

38 Section 34(2)(b) provided that the Board should provide a written report to the Minister with respect to a prisoner, whenever requested by the Minister. It is to be noted that s 34(2)(b) dealt with prisoners generally. Section 34(5) provided that a report under s 34(2)(b) should contain a recommendation to the Minister as to whether or not the Governor should be advised to exercise any power to release the prisoner from prison, and, if release were so recommended, on what if any conditions.

39 Section 34(2)(d) dealt with prisoners undergoing life imprisonment. That provision, and the table to that section, provided, in effect, that, whether requested by the Minister or not, the Board should provide a written report to the Minister periodically with respect to prisoners undergoing life imprisonment. Relevantly, in respect of a prisoner undergoing a sentence of life imprisonment imposed under s 282(c)(ii) of the Criminal Code, the Board was obliged to provide a written report to the Minister 12 years after the prisoner was sentenced, and every three years thereafter. As noted below, s 34(6) provided that a report under s 34(2)(d) 'may' contain a recommendation to the Minister as to whether or not the Governor should be advised to exercise any power to release the prisoner from prison, and, if release were so recommended, on what if any conditions.

40 Section 34(2)(e) provided, in effect, that the Board should report to the Minister whenever requested to do so by the Minister upon any special matters relating to the operation of the Act, or to the exercise of any power or function of the Board specified in the Minister's request.

41 Section 34(2)(f) provided, in effect, that where the Board had ordered a prisoner to be returned to custody under s 34A, it should, within one month, furnish to the Minister a written report setting out the reasons thereof.

42 Section 34(3) was permissive in terms. It provided, in effect, that the Board 'may' furnish a report to the Minister with respect to a person referred to in subs (2)(a) (ie, in effect certain persons in custody who were insane), or with respect to a prisoner, if 'circumstances appear to the Board to be exceptional'.

43 Section 34(6) dealt with reports under s 34(2)(d) and s 34(3). Section 34(6), read with s 34(5), provided, in effect, that a report under s 34(2)(d) with respect to a prisoner, or a report under s 34(3) with respect to a prisoner, 'may' contain a recommendation to the Minister as to whether or not the Governor should be advised to exercise any power to release the prisoner from prison, and, if release were so recommended, on what if any conditions.

44 Similarly, s 34(7) provided, in effect, that a report by the Board to the Minister under s 34(3) with respect a person under s 34(2)(a) (an insane person in custody), 'may' contain a recommendation to the Minister as to whether or not the Governor should be advised to exercise any power to release the prisoner from prison, and, if release were so recommended, on what if any conditions.

45 Section 34(8) provided that where the Board provided a report to the Minister under s 34(2)(b) or (d), or (3), in respect of a prisoner undergoing a sentence of strict security life imprisonment or a sentence of life imprisonment, and where that report contained a recommendation to the Minister that the Governor be advised that the prisoner be released from prison, the Board should give express attention in the report to:

(a) the nature and circumstances of the offence for which the sentence was imposed;

(b) the degree of risk that the release of the prisoner appears to present to the community or to any individual in the community;

(c) if release on parole is recommended, the period for which, and the extent to which, the prisoner should be supervised by the community corrections officer whilst on parole; and

(d) such other matters as the Board thinks fit.

46 Section 34A (to which s 34(2)(f) applied) provided, in effect, that where a person had been ordered to be kept in safe custody during the pleasure of the Governor under s 653 or s 693(4) of the Criminal Code, and that person was released from custody by order of the Governor, the Governor could impose conditions, including conditions that the person be under the supervision of a community corrections officer. Where a person was so released subject to the supervision of a community corrections officer, the Board could, in respect of that person, inter alia, 'in its discretion ... order that the person be returned to the custody of the person ... from which he was released by the Governor': s 34A(2)(b).

Release on parole during life sentence

40D. (1) Subject to subsections (2) and (2b), following the furnishing of a report by the Board under section 34(2)(b) or (d) or (3) the Governor may by order in writing direct that a prisoner undergoing a sentence of strict security life imprisonment or a sentence of life imprisonment be released from prison on parole at the time determined under the order and the prisoner shall be released accordingly.

48 Section 40D was part of div 7 of pt III of the OCC Act. Other provisions in div 7 of pt III included the following.

49 Section 40 provided that the Board may, in its discretion, by order in writing direct that a person serving a term of imprisonment in respect of which a minimum term was fixed, be released from prison on parole.

40A. (1) The Board shall by order in writing direct that a prisoner serving a term of imprisonment in respect of which an order was made under s 37A be released from prison on parole at the time determined under the order made under this subsection and the prisoner shall be released accordingly.

...

(7) The powers of the Board under subsection (1) may be exercised by the secretary to the Board, or a member, on behalf of and in the name of the Board.

51 Under s 37A, a court in sentencing a person could, in certain circumstances, order that a convicted person be eligible for parole. Section 37A(1) and subs 6(e) provided:

Parole eligibility by order of the court

37A. (1) Where a court sentences a person convicted of an offence to a term of imprisonment the court may, if it considers that the making of an order under this subsection is appropriate, order that the convicted person be eligible for parole ...

(6) The court shall not make an order under subsection (1) in respect of -

...

(e) strict security life imprisonment or life imprisonment.

52 Section 40B provided, in effect, that in the circumstances provided, following receipt of a report by the chief executive officer, the Board could, under s 40B(3) and (5), in effect, determine or order that parole be deferred or withheld under s 40A. In relation to such an order or determination, s 40B(7)(a) and (b) and s 40(8) provided that:

40B. ...

(7) Where the Board has made an order containing a direction under subsection (3)(a) or (5)(a) or determination under subsection (3)(b) or (5)(b) -

(a) the Board shall notify the prisoner; and

(b) the prisoner may make representations in writing to the Board with respect to the direction or determination.

(8) Subject to section 49A the notification under subsection (7)(a) shall inform the prisoner of the reasons for the direction or determination and of the right to make representations under subsection (7)(b).

53 Section 40C provided that in respect of certain specified classes of prisoner (including those detained during the Governor's pleasure), the Board (in the case of detention imposed before the commencement date) or the Governor, following the furnishing of a report by the Board under s 34(2)(b), (d) or (3) (in the case of detention imposed on or after the commencement date), may order the prisoner to be released on parole.

54 Section 41 applied to the cancellation, amendment or variation of parole orders before the prisoner was released.

55 Section 41(1) provided that before a prisoner was released from prison under a parole order 'made by or on behalf of the Board', the order may be 'cancelled, amended or varied' by the Board in writing, and that any order so amended or varied applied accordingly.

56 Section 41(1b) made similar provision in relation to a parole order 'made by the Governor'. It provided that such a parole order could be cancelled, amended or varied by the Governor and that any order so amended applied accordingly.

57 Under s 41(1a), and (1c), where a prisoner's parole was so 'cancelled', the prisoner:

(a) may make representations in writing to the Board with respect to the cancellation; and

(b) shall, subject to section 49A, be informed by the Board of the reasons for the cancellation and of the right to make representations under paragraph (a).

58 It appears that no such right existed if the order had been 'amended or varied'.

59 Section 44 dealt with cancellation, amendment and suspension of a parole order after the prisoner had been released on parole. Section 44(1), (3f) and (3g) provided:

44. (1) Where a prisoner is released on parole under this Act, the Board may at any time, before the expiration of the parole period, by order in writing signed by any 2 members cancel, amend, suspend or vary the parole order relating to the prisoner and the parole order as so varied applies to the prisoner accordingly.

...

(3f) Where a prisoner's parole is cancelled or suspended under subsection (1) and the prisoner is returned to prison or another institution -

(a) the prisoner may make representations in writing to the Board with respect to the cancellation or suspension; and

(b) on being so returned, the prisoner shall, subject to section 49A, be informed of the reasons for the cancellation or suspension and of the right to make representations under paragraph (a).

(3g) Where representations are made under subsection (3f)(a) by a prisoner whose parole is cancelled and who is returned to prison to continue serving a sentence of strict security life imprisonment or a sentence of life imprisonment, the Board shall furnish to the Minister -

(a) a copy or summary of the representations; and

(b) a report containing a recommendation as to whether or not the Governor should be advised to take any further action under section 40D in relation to the prisoner.

60 Section 45 provided that the Board may release a prisoner on parole, notwithstanding that the parole had been cancelled on a prior occasion.

49A. (1) Where the Board is of the opinion that it would be in the interest of the prisoner or any other person, or of the public, to withhold from the prisoner any or all of the reasons referred to in section 40B (8), 41(1a) (b) or 44 (3f) (b), the Board may so withhold the reason or reasons.

(2) Where the Minister is of the opinion that it would be in the interest of the prisoner or any other person, or of the public, to withhold from the prisoner any or all of the reasons referred to in section 41(1c) (b), the Minister may so withhold the reason or reasons.

50. The rules known as the rules of natural justice (including any duty of procedural fairness) do not apply to or in relation to the doing or omission of any act, matter, or thing under this Part by -

(a) the Governor;

(b) the Board, the secretary to the Board, or a member or members;

(c) the Minister; or

(d) the chief executive officer.

63 Other provisions of the OCC Act also excluded the rules of natural justice: s 50H (the making or cancellation of home detention orders), and s 50ZH (the making or cancellation of work release orders).

64 In relation to work release orders, s 50X provided, in effect, that the chief executive officer may refer a prisoner meeting specified criteria to the Board for consideration that he be made the subject of a work release order. Section 50X(3) provided that in relation to certain classes of prisoner, including those undergoing life imprisonment, the Board could not, except with the prior approval of the Governor, make a work release order.

65 Under s 50X(4), the Board, upon a consideration of the reference by the chief executive officer, had power to direct that the prisoner be released on a work release order, or to defer the making of the work release order, or to decline to make a work release order.

66 Section 50X(7) provided that, except in the case of a prisoner undergoing strict security life imprisonment, if the Board declined (but not, it seems, deferred) a work release order, the Board should give notice to the offender, and consider any written submissions by the offender in response.

67 Section 50Z, s 50ZA and s 50ZB provided for the Board to cancel a work release order in certain circumstances and to provide reasons for the cancellation. Under s 50ZG, the Board could withhold reasons from the prisoner, if it considered it to be in the interests of the prisoner, or any other person, or the public, to do so.

51. A member or the secretary to the Board, a community corrections officer, a person engaged under section 5F, or a volunteer shall not, except -

(a) for the purposes of this Act and in the due exercise of his functions thereunder;

(b) where ordered by a court or judge to do so; or

(c) to such persons or bodies or in such circumstances as the Attorney General approves from time to time,

produce in any court or to any person any return, declaration, statement, report or other document, or disclose to any court or person the fact that he has received any information, or the nature thereof, or the name of the person who gave that information, or any matter or thing coming under his notice in the performance of his duties under this Act.

References to the 'Governor' and the 'Minister'

69 It is appropriate to mention, at this juncture, the relevant provisions of the Interpretation Act 1984 (WA) in relation to references to the 'Minister' and the 'Governor' in the OCC Act.

70 Section 12(a) of the Interpretation Act provides:

A reference in a written law to the Minister shall be construed in the case of a reference in an Act, as a reference to the Minister of the Crown to whom the administration of the Act, or the provision of the Act, in which or in respect of which the term is used, is for the time being committed by the Governor.

71 Section 60 of the Interpretation Act provides:

Where in a written law the Governor is authorised or required to do any act, matter, or thing, it shall be taken to mean that such act, matter, or thing may or shall be done by the Governor with the advice and consent of the Executive Council.

Case law on parole provisions in the OCC Act

72 Before considering the repeal of the OCC Act, it may be noted that a number of the provisions in div 7 of pt III of the OCC Act, and in particular s 40B, were considered by Wheeler J in Parole Board; Ex parte Forbes (1996) 89 A Crim R 139. That case concerned an application by a prisoner for the provision of more comprehensive reasons by the Parole Board under s 40B(8), in circumstances where the Board had initially determined to defer his parole and, 10 months later, determined that he should be denied parole due to a risk of reoffending. Wheeler J granted the application. After referring to s 40B(7) (see [52] above), her Honour said:

It is to be noted that the right to make representations arises after the Board has made its determination. There is apparently no right to make representations prior to the making of a determination under s40B(5). Nor is there any obligation on the Board to provide the material upon which such representations could be made, because by the provisions of s50 the rules of natural justice are specifically excluded in relation to the Board's powers and duties relating to parole.

...

In a context where it appears that the right to make representations is in effect a right to seek to persuade a body to change its mind, it seems to me that it makes sense to regard the right as one arising whenever the body does in fact make up its mind; in this context every time that the Board decides either to defer or further defer the making of an order pursuant to s40A, and every time that the Board determines that an order should not be made under s40A.

...

Such a conclusion also appears to me to be more consistent with the requirements of fairness, for which s40B(8) in a limited way appears intended to provide, than that contended for by counsel for the Board. If the Board initially refuses to make an order for parole because of a particular concern, and that concern is allayed by representations made on behalf of the prisoner or by subsequent events, it appears on its face inconsistent with ordinary notions of fairness that the Board should then be permitted to make a further determination that parole should be refused based on an entirely different concern and without even a duty to notify the prisoner of its change of mind. I note that elsewhere in the Act the Board is required to give reasons where it amends, cancels or varies a previous decision, and this to some extent also fortifies the conclusion which I have reached, although the particular nature of those decisions is of a different kind which may explain the imposition of the statutory duty in those cases: see s41(1a)(b); s41(1c)(b); and s44(3f)(b).

It follows that the Board was required to provide reasons pursuant to s40B(8) in relation to both its determination to defer of 17 November 1995 and its determination to deny parole of 13 September 1996. The question then arises whether the notifications provided by the Board were 'reasons' within the meaning of s40B(8). The statutory context of the duty to provide reasons assists in determining its content. Very broadly, there is the general consideration that the decision made is one denying a prisoner the opportunity to be at liberty which the Act otherwise would have afforded him. This suggests that a purpose of the requirement for giving reasons is to ensure that a prisoner will be able to say, as Woodward J put it in the context of the Administrative Decisions (Judicial Review) Act 1997 (Cwth) in Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500: 'Even though I may not agree with it, I now understand why the decision went against me.' More specifically however, the requirement to give reasons is closely coupled with the ability of the prisoner to make representations. This suggests that the prisoner is to be able to correct any errors of fact which may have influenced the Board and perhaps to reorganise his affairs, so far as he is able to do so, so as to remedy any deficiency which the Board may have seen in his parole plan or likely circumstances upon his release (see Algoni Pty Ltd v Secretary, Department of Industrial Relations (1985) 3 NSWLR 515 at 527, 529, 530).

These factors indicate that the Board is required to provide not only its conclusion, eg that there is not an appropriate parole plan, or that the prisoner is at high risk of reoffending, but also the material which led the Board to that conclusion and, if relevant, the criteria against which the Board judged the information available to it. The reasons should be sufficiently specific to enable a prisoner to understand what aspects of his previous offending, his conduct within prison, or plans which may have been made for his release, caused the Board to have the concerns which gave rise to its determination. This view is strengthened by s49A of the Act which provides that the Board may withhold reasons referred to in inter alia, s40B(8): 'where the Board is of the opinion that it would be in the interest of the prisoner or any other person, or of the public' to withhold them. This suggests reasons which are of such specificity that they may refer, for example, to details of the prisoner's mental state, to the concerns which the prisoner's family have about him, to reports which have been made by prison officers, or other details which one can easily imagine it would not be in the interests of the prisoner or of some other persons to have made known.

There are a number of reservations that require to be expressed in relation to the reasons which the Board should provide. First, having regard to the apparent purpose of s40B(8), it is clearly not intended that the reasons be the type of detailed outline of facts, reasoning and conclusions which is required of a court or tribunal from which a right of appeal lies. Further, there is no standard of perfection imposed upon the Board. Mere failures in accurate and comprehensive expression, lack of fine detail, and matters of that kind will not result in the Board having failed to comply with the duty which s40B(8) casts upon it; what is required is a notification which read as a whole and against the background of any correspondence or other matters known to the prisoner clearly indicates why it reached its decision (see, in another context, eg Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 35 ALR 388 at 392-3, Bisley Investment Corp v Australian Broadcasting Tribunal (1982) 40 ALR 233 and Simpson and Another v Minister for Immigration and Ethnic Affairs (1994) ALD 389.) Having regard to the context of the provision in the Act, and to the sorts of considerations which clearly govern the insertion of s49A into the Act, it appears that the Board would not be required to refer to all the sources of its information, for example so long as its concerns were sufficiently revealed.

73 Her Honour's observations were applied with respect to s 27(2) of the 1995 Act by Pullin J (as his Honour then was) in Rechichi v The Parole Board of Western Australia [2001] WASC 363.

74 It is to be noted that under s 40B(7) of the OCC Act, and under s 27(3) of the 1995 Act (relevant to a decision under s 27(2) of that Act), there was an express statutory right to make submissions to the Board in relation to the Board's decision.

Sentencing (Consequential Provisions) Act 1995 (WA) and the 1995 Act

75 The OCC Act was repealed by s 77 of the Sentencing (Consequential Provisions) Act 1995. The Sentencing (Consequential Provisions) Act 1995, nevertheless continued to apply certain provisions of the OCC Act in relation to persons in custody prior to the commencement of the Sentencing Act 1995 (WA).

76 In relation to persons who were in custody and subject to a sentence of life imprisonment immediately prior to the commencement of the Sentencing Act 1995, s 86 of the Sentencing (Consequential Provisions) Act 1995 provided:

86. If immediately before commencement a person is in custody and subject to a sentence of life imprisonment, then on and after commencement the repealed Act [the OCC Act], and in particular sections 34 and 40D of it, continue to operate in respect of the person and the sentence, but -

(a) any release of the person on parole in accordance with the repealed Act is to be by means of a parole order made by the Governor under Division 6 of Part 3 of the Sentence Administration Act 1995;

(b) the parole period for the parole order is that provided by section 23(3) of the Sentence Administration Act 1995; and

(c) Divisions 6, 7 and 8 of Part 3 and Parts 4 to 11 of the Sentence Administration Act 1995 apply to and in respect of the person and the parole order.

77 With respect to s 86(a) of the Sentencing (Consequential Provisions) Act 1995, div 6 of pt 3 of the 1995 Act (s 30 - s 34) provided:

(1) A parole order is an order that on a release date specified in the order a prisoner is to be released on parole for a parole period specified in the order if he or she gives a written undertaking that while on parole he or she will comply with -

(a) the standard obligations in section 31;

(b) any of the additional requirements in section 32 that are specified in the parole order; and

(c) section 76.

(2) It is a condition of every parole order that if the prisoner commits an offence (in this State or elsewhere) while on parole, then -

(a) if the prisoner is sentenced to imprisonment for the offence, the parole order shall be cancelled under Part 6; or

(b) in any other case, the parole order may be cancelled under section 37.

(3) A parole order may relate to more than one term.

(4) A prisoner who is released under a parole order is nevertheless still subject to the sentence or sentences of imprisonment to which the parole order relates.

The standard obligations of a parole order are that the prisoner -

(a) must report to a community corrections centre within 72 hours after being released, or as otherwise directed by a CCO; and

(b) must notify a CCO of any change of address or place of employment within 2 clear working days after the change.

(1) A parole order may contain such of these additional requirements as the Board or the Governor (as the case may be) thinks fit -

(a) a requirement as to where the prisoner must reside;

(b) a requirement that the prisoner wear any device for monitoring purposes;

(c) a requirement that the prisoner permit the installation of any device or equipment at the place where the prisoner resides for monitoring purposes;

(d) a requirement that the prisoner must not leave this State except with and in accordance with the written permission of the CEO;

(e) requirements to facilitate the prisoner's rehabilitation; or

(f) prescribed requirements.

(2) Without limiting subsection (1) a parole order may contain as additional requirements all or any of the standard obligations applicable to a WRO under paragraphs (a) and (b) of section 51.

(1) A prisoner must give the written undertaking required by a parole order on or before the release date specified in it and if he or she does not, the parole order is to be taken as having been cancelled.

(2) If -

(a) a parole order was not made in respect of a prisoner because the prisoner gave notice that he or she did not want to be released on parole; or

(b) a parole order was cancelled by the operation of subsection (1),

and the prisoner subsequently gives the Board written notice that he or she wants to be released on parole, the Board or the Governor (as the case may be) may then make a parole order.

(3) The release date in a parole order under subsection (2) is that set by the Board or the Governor (as the case may be).

(1) The CEO must ensure that a CCO is assigned to supervise a prisoner while on parole.

(2) However, if at any time the CEO is satisfied that -

(a) the prisoner is complying with his or her undertaking in a satisfactory manner; and

(b) the risk of the prisoner re-offending if not subject to supervision by a CCO is minimal,

the CEO may recommend to the Board that the prisoner no longer be supervised by a CCO.

(3) If the CEO makes such a recommendation, the Board may direct the CEO that the prisoner need not be supervised while on parole and the CEO may cease the supervision of the prisoner.

(4) If the CEO ceases the supervision of a prisoner, the CEO is to inform the prisoner.

(5) The fact that a prisoner ceases to be under supervision does not affect the prisoner's duty to obey the requirements of his or her undertaking.

(6) The Board at any time may cancel a direction given to the CEO under subsection (3).

78 With respect to s 86(b) of the Sentencing (Consequential Provisions) Act 1995, s 23(3) of the 1995 Act provided:

(3) The parole period in the parole order is to be set by the Governor and must be at least 6 months and not more than 5 years.

79 With respect to s 86(c) of the Sentencing (Consequential Provisions) Act 1995:

• div 6 of pt 3 concerned parole orders and its provisions have been quoted above;
• div 7 of pt 3 concerned the amendment, suspension and cancellation of a parole order;
• div 8 of pt 3 contained miscellaneous provisions concerning the resolution of cases of 'doubt or difficulty';
• pt 4 dealt with work release orders;
• pt 5 dealt with home detention orders;
• pt 6 dealt with provisions applicable to 'early release orders' (defined in s 4 as parole orders, home detention orders and work release orders);
• pt 7 dealt with provisions applicable to offenders on community orders, early release orders and work and development orders;
• pt 8 dealt with community correction centres, including their activities and management;
• pt 9 dealt with the functions of the chief executive officer and other staff in the administration of the Act;
• pt 10 dealt with the establishment, functions and powers of the Parole Board, including reports to the Minister on the Board's functions and in response to the Minister's requests concerning any specified special matters relating to the operation of the Act or the Sentencing Act 1995 so far as was relevant to the Board, and the performance of the Board; and
• pt 11 dealt with miscellaneous provisions.

80 The 1995 Act provided that it was to be read with the Sentencing Act 1995: s 3.

81 The provisions of the 1995 Act which dealt with reports by the Board to the Minister, including in relation to a person sentenced to a life term, appeared in pt 2 of the 1995 Act (s 14) and pt 3 div 2 (s 20) of the 1995 Act. Division 4 of pt 3 of the 1995 Act contained provisions, inter alia, in relation to the Governor making a parole order in respect of a prisoner serving life imprisonment. It is to be noted that pt 2 and pt 3 div 1 - 5 were not picked up and applied by s 86 of the Sentencing (Consequential Provisions) Act 1995.

82 Like div 7 of pt III of the OCC Act, the 1995 Act contained a number of provisions expressly providing (subject to s 114) for the Board to furnish reasons for certain decisions, and for the prisoner to be informed of the decision and reasons, and permitting the prisoner to make written representations to the Board in relation thereto:

• s 27 - where the Board refused, deferred or postponed parole
• s 35 - where the Board, or the Governor, before release of the prisoner, cancelled parole
• s 39 - where the chief executive officer or the Board suspended a parole order
• s 40 - where the Board cancelled a parole order
• s 49 - where the Board refused to make a work release order

83 Also, s 58 of the 1995 Act provided that any decision to cancel a work release order must be the subject of written notice to the prisoner, and include reasons for the decision. That section does not, however, provide for the prisoner to make representations to the Board in response thereto. Similarly, s 67 of the 1995 Act provided that if the chief executive officer cancelled a home detention order, the prisoner was to be informed of the decision, with reasons, but there was no provision for the prisoner to make responsive submissions or representations.

(1) This section applies to those sections in this Act which refer to it.

(2) If a person is required to give a prisoner reasons for a decision, then if the person decides that it would be in the interest of the prisoner or any other person, or the public, to withhold from the prisoner any or all of the reasons, the person may do so.

The rules known as the rules of natural justice (including any duty of procedural fairness) do not apply to or in relation to the doing or omission of any act, matter or thing under Part 2, 3, 4, 5, 6 or 7 by -

(a) the Governor;

(b) the Minister;

(c) the Board or its members or secretary; or

(d) the CEO.

The repeal of the 1995 Act: the Sentencing Legislation Amendment and Repeal Act 2003 (WA)

The amendment and continued application (as amended) of s 86 of the Sentencing (Consequential Provisions) Act 1995

86 The 1995 Act was repealed by s 29(1) of the Sentencing Legislation Amendment and Repeal Act 2003. Section 29 of that Act provided that sch 1 had effect in relation to such repeal.

87 Clause 3 of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 provided:

1. Application of Interpretation Act 1984 s 36

Section 36 of the Interpretation Act 1984 applies as if the Sentence Administration Act 1995 had been repealed and re-enacted by the Sentence Administration Act 2003.

88 Section 36 of the Interpretation Act 1984 provides:

1. Repealing and re-enacting a provision, effect of

Where a written law repeals and re-enacts, with or without modification, any enactment -

(a) all districts or other local divisions or areas;

(b) all councils, corporations, boards, tribunals, commissions, trusts, or other bodies constituted, and all elections and appointments of members thereof made; and

(c) all offices constituted and appointments of officers made;

(d) all subsidiary legislation, warrants, certificates, and documents made; and

(e) all other acts, matters, and things whatsoever,

which, at the commencement of the repealing law, are respectively in existence, or in force or operation, under or for the purposes of such provision, shall, in so far as is consistent with the repealing law, subsist and enure for the purposes of such law and shall continue as if the repealing law had been in operation when they respectively originated or were constituted, made or done and they had originated or been constituted, made or done under that law.

89 Clause 13(5) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 continued, with some modification, the operation of s 86 of the Sentencing (Consequential Provisions) Act 1995. It provided:

(5) If immediately before commencement a person to whom section 86 of the 1995 Act applies is in custody subject to the sentence referred to in section 86, then on and after commencement section 86, other than paragraphs (a), (b) and (c), continues to apply but -

(a) any release of the person on parole in respect of the sentence is to be by means of a parole order made by the Governor under Part 3 of the Sentence Administration Act 2003;

(b) the parole period for the parole order is that provided by section 25(3) of the Sentence Administration Act 2003; and

(c) Part 3 Divisions 6 to 11 and Parts 4 to 10 of the Sentence Administration Act 2003 apply to and in respect of the person and the parole order.

90 In relation to cl 13(5)(a) of sch 1 to the Sentencing Legislation Amendment and Repeal Act 2003, the words 'by means of a parole order made by the Governor under pt 3 of the Sentence Administration Act 2003' require elucidation.

91 Part 3 of the 2003 SA Act provides for the making of parole orders. The term 'parole order' is defined, as referred to above, as 'an order made under pt 3 that a prisoner be released on parole'. Part 3 of the 2003 SA Act provides for the making of parole orders by the Board (s 20, s 23) and by the Governor (ss 12, 25, 27, 27B). It also provides for the nature, functions and supervision of parole orders (s 28 - s 31), and for the general provisions relating to parole orders including where the prisoner has given notice that he or she does not wish to be released on parole (s 32 - s 35). It also provides for the amendment, suspension and cancellation of parole orders (s 36 - s 46), for notification to the Minister of decisions to amend, suspend and cancel parole orders made by the Governor (s 48) and for applications to be made to the court in respect of doubtful cases (s 49).

92 It is to be noted that ss 25(1), 25(1A) and 27 in pt 3 of the 2003 SA Act commence with the words 'the Governor may make a parole order'. Section 27B(1), in contradistinction to those provisions, uses the language 'by means of a parole order made by the Governor'. Section 27B(1) provides:

27B. Release may be by parole order

(1) The release by the Governor of a person in, or regarded as being in, strict or safe custody by virtue of an order made under Chapter XXVIII of The Criminal Code may, if the Governor thinks fit, be by means of a parole order made by the Governor. (emphasis added)

93 Bearing in mind the nature and scope of pt 3 of the 2003 SA Act, it seems to me that the words in cl 13(5)(a) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 that 'any release ... is to be by means of a parole order made by the Governor under pt 3 of the Sentence Administration Act 2003' mean, in effect, that the release of a prisoner under an order of the Governor directing the release of a prisoner on parole under s 40D(1) of the OCC Act is to be made on the basis that the order directing release is a parole order made by the Governor for the purposes of pt 3 of the 2003 SA Act.

94 In relation to cl 13(5)(b) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003, the 'parole period' provided by s 25(3) of the Sentence Administration Act 2003 is set out in [109] below.

95 In relation to pts 4 to 10 of the 2003 SA Act (mentioned, along with divs 6 - 11 of pt 3 of the 2003 SA Act in cl 13(5)(c) of sch 1):

• pt 4 deals with re-entry release orders under which, if made, the prisoner must, inter alia, do a prescribed number of hours of community corrections activities each week and not change address or employment without permission;
• pt 5 contains provisions applicable to 'early release orders' (defined in s 4 as parole orders and re-entry release orders), including their suspension and cancellation;
• pt 6 contains provisions applicable to offenders on community corrections orders, early release orders and work and development orders;
• pt 7 deals with community correction centres, including their activities and management;
• pt 8 deals with the functions of the chief executive officer and other staff in the administration of the Act;
• pt 9 deals with the establishment, functions and powers of the Prisoners Review Board, including notification and publication of the Board's decisions and reports to the Minister on the Board's functions and in response to the Minister's requests concerning any specified special matters relating to the operation of the Act or the Sentencing Act 1995 so far as is relevant to the Board, and the performance of the Board; and
• pt 10 deals with miscellaneous provisions.

The 2003 SA Act as originally enacted - the provision of reasons for decisions

96 Like the 1995 Act, the 2003 SA Act, as originally enacted, and prior to the amendments in 2006 referred to below, contained a number of provisions expressly providing for the Board (or in some cases the chief executive officer), to furnish reasons for certain decisions, and for the prisoner to be informed of the decision and reasons, and permitting the prisoner to make written submission or representations to the Board in relation thereto. Those provisions were: ss 21, 24, 42, 45, 47 and 53 of the 2003 SA Act as originally enacted.

97 Section 47, in the 2003 SA Act as originally enacted, provided:

1. Decision to refuse etc. parole, Board may review

(1) A prisoner given notice under section 42(1) or 45(1) of a decision of the Board may request the Board to review its decision and may make submissions to the Board about its decision and reasons (if any are supplied).

(2) A prisoner given notice under section 24(1), 42(2) or 45(2) of a decision of the CEO may request the Board to review the CEO's decision and may make submissions to the Board about the CEO's decision and reasons (if any are supplied).

(3) Any such request or submissions must be made in writing.

(4) On a request made under subsection (1), the Board must consider any such submissions and review its decision and may confirm or amend it or cancel it and make another decision.

(5) On a request made under subsection (2), the Board must consider any such reasons and submissions and review the CEO's decision and may confirm it or -

(a) if the CEO's decision was made under section 23(3)(a), make a parole order in accordance with section 23 as if it were the CEO;

(b) if the CEO's decision was made under section 38(1), cancel or amend it; or

(c) if the CEO's decision was made under section 44(3), make a parole order in accordance with section 23 as if it were the CEO.

(6) Any such parole order made by the Board is to be taken to be a CEO parole order for the purposes of this Act.

(7) The Board must give the prisoner written notice of its decision on a review conducted under this section.

98 Section 64 of the 2003 SA Act as originally enacted, provided that if a re-entry release order were cancelled, written notice and the reasons for the decision should be given to the prisoner. It made no provision for the prisoner to make representations in relation thereto.

2006 amendments to the 2003 SA Act and the provision of reasons for decisions

99 Sections 21, 24, 42, 45, 47, 53 and 64 of the 2003 SA Act as originally enacted, referred to above, were repealed by various provisions in pt 2 of the Parole and Sentencing Legislation Amendment Act 2006 (WA) (2006 Amending Act).

100 The 2006 Amending Act also introduced into the 2003 SA Act, inter alia, ss 5B, 5C, 12A, 13, 14, 14A, 102 - 106, 107A, 107B, 107C and 115A. It also amended s 48.

101 Following the 2006 Amending Act, the 2003 SA Act, as amended, included the following provisions referring to the provision of reasons for decisions:

1. Parole ordered by Governor, Minister to be advised of amendment, suspension or cancellation

(1) If in respect of a prisoner subject to a parole order made by the Governor -

(i) directs the CEO that the prisoner need no longer be supervised; or

(ii) cancels such a direction;

(b) under section 36 or 37, the order is amended;

(c) under Division 9, the order is suspended and the suspension is not cancelled by the Board within 30 days afterwards; or

(d) under Division 10, the order is cancelled,

the Board must give the Minister as soon as practicable -

(e) written notice of and reasons for the decision;

(ea) a summary of the grounds and any submissions in an application for a review made by the prisoner under section 115A; and

(f) if the parole order has been cancelled, a report containing a recommendation as to whether or not the Governor should be advised to again exercise the power to release the prisoner on parole.

(2) The Governor may cancel a decision referred to in subsection (1).

...

107B. Notification of Board's decisions

(1) The Board must give a prisoner written notice of any decision made under this Act in respect of the person as soon as practicable after the decision is made.

(2) The Board must give the CEO written notice of any decision made under this Act in respect of a prisoner as soon as practicable after the decision is made.

(3) Without limiting subsections (1) and (2), they apply -

(a) to a decision, whether by the Board or the Governor, not to make an early release order in respect of a prisoner;

(b) to a decision to make a parole order in which the release date is not the day when, under section 23(2) or section 93(1) of the Sentencing Act 1995, the prisoner is eligible to be released on parole;

(c) to a decision, whether by the Governor or the Board, to amend, suspend or cancel an early release order; and

(d) to a decision by the Board not to make a request under section 13(4) after receiving a report under section 13(3) or not to endorse, with or without variations, a re-socialisation programme received under section 13(4),

and, in the case of subsection (1) -

(e) to a decision by the CEO to suspend an early release order.

(4) Subject to section 114, a notice under subsection (1) or (2) must include the reasons for the decision.

(5) If the decision is a reviewable decision, as that term is defined in section 115A, a notice under subsection (1) must inform the prisoner of the effect of section 115A.

107C. Publication of Board's decisions

(1) This section operates despite section 119.

(2) The chairperson of the Board may make public a decision of the Board or the reasons for it if the chairperson considers it is in the public interest to do so having regard to all the circumstances including the interests of the prisoner concerned and the interests of any victim.

...

114. Reasons for decision may be withheld

(1) This section applies to those sections in this Act which refer to it.

(2) If a person is required to give a prisoner reasons for a decision, then if the person decides that it would be in the interest of the prisoner or any other person, or the public, to withhold from the prisoner any or all of the reasons, the person may do so.

...

115A. Board may review decisions about release

(1) In this section -

reviewable decision has a meaning in accordance with subsections (2), (3) and (4).

(2) Subject to subsection (4), a decision made -

(a) by the Board not to make an early release order;

(b) by the Board to make a parole order in which the release date is not the day when, under section 23(2) or section 93(1) of the Sentencing Act 1995, the prisoner is eligible to be released on parole;

(c) by the Board to suspend or cancel an early release order;

(d) by the CEO to suspend an early release order;

(e) by the Board not to make a request under section 13(4) after receiving a report under section 13(3) or not to endorse, with or without variations, a re-socialisation programme received under section 13(4); or

(f) by the Board as to the nature or content of a re-socialisation programme endorsed under section 13(5) or approved under section 14(5),

is a reviewable decision.

(3) The regulations may provide that a decision of a prescribed kind made under the regulations is a reviewable decision.

(4) A decision under subsection (8), or by the Board on further considering a matter pursuant to a decision under subsection (8), is not a reviewable decision.

(5) A prisoner about whom a reviewable decision is made may request the Board to review the decision.

(6) A request may only be made on the grounds that the person who made the decision -

(a) did not comply with this Act or the regulations;

(b) made an error of law; or

(c) used incorrect or irrelevant information or was not provided with relevant information.

(a) be in writing;

(b) state the grounds for it; and

(c) include any submissions that the applicant wants to make to the Board about the decision concerned and the reasons for it.

(8) When a request is made, the chairperson of the Board must consider any submissions included in it and review the decision concerned and may -

(a) confirm, amend or cancel the decision;

(b) make another decision; or

(c) refer the decision to the Board for further consideration.

(9) The chairperson may delegate the functions in subsection (8) to a deputy chairperson.

(10) A deputy chairperson to whom the functions in subsection (8) are delegated must not decide any question of law but must refer it to the chairperson to decide.

(11) The Board must give the applicant written notice of any decision on a review requested under this section.

102 The 2003 SA Act provides that it should be read with the Sentencing Act 1995: s 3.

103 By s 4(1) of the 2003 SA Act, words and expressions, if not otherwise defined, have the same definition as in the Sentencing Act 1995 and, in particular, pt 13 of that Act.

104 Section 4(2) contains the following definitions:

Board means the Prisoners Review Board;

early release order means -

(a) a parole order; or

(b) a re-entry release order;

...

parole order means an order made under Part 3 that a prisoner be released on parole and includes a parole order made for the purposes of section 72 or 73;

...

prisoner means -

(a) a person sentenced to a fixed term, whether a parole term or not;

(b) a person sentenced to a life imprisonment;

(c) a person sentenced to indefinite imprisonment; or

(d) a Governor's pleasure detainee;

...

Re-entry release order means a re-entry release order made under Part 4 and includes a re-entry release order made for the purposes of section 72;

Release considerations relating to a prisoner has the meaning given to that term in section 5A;

re-socialisation programme means a programme of a prescribed kind that can be provided under the Prisons Act 1981 to address the following factors insofar as they are relevant to equipping a particular prisoner for re-entry into the general community -

(a) education;

(b) employment;

(c) drug and alcohol use;

(d) mental and physical health;

(e) attitudes and social control;

(f) institutionalisation and life skills;

(g) housing;

(h) financial support and debt;

(i) family and community networks;

(j) any other prescribed factor;

...

victim of an offence means -

(a) a person who has suffered injury, loss or damage as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender; or

(b) where the offence resulted in a death, any member of the immediate family of the deceased;

105 Section 4(3) provides that 'RRO' is used as an abbreviation for re-entry release order and 'WDO' is used as an abbreviation for a work and development order.

5A. Release considerations about people in custody

In this Act a reference to the release considerations relating to a prisoner is a reference to these considerations -

(a) the degree of risk (having regard to any likelihood of the prisoner committing an offence when subject to an early release order and the likely nature and seriousness of any such offence) that the release of the prisoner would appear to present to the personal safety of people in the community or of any individual in the community;

(b) the circumstances of the commission of, and the seriousness of, an offence for which the prisoner is in custody;

(c) any remarks by a court that has sentenced the prisoner to imprisonment that are relevant to any of the matters mentioned in paragraph (a) or (b);

(d) issues for any victim of an offence for which the prisoner is in custody if the prisoner is released, including any matter raised in a victim's submission;

(e) the behaviour of the prisoner when in custody insofar as it may be relevant to determining how the prisoner is likely to behave if released;

(f) whether the prisoner has participated in programmes available to the prisoner when in custody, and if not the reasons for not doing so;

(g) the prisoner's performance when participating in a programme mentioned in paragraph (f);

(h) the behaviour of the prisoner when subject to any release order made previously;

(i) the likelihood of the prisoner committing an offence when subject to an early release order;

(j) the likelihood of the prisoner complying with the standard obligations and any additional requirements of any early release order;

(k) any other consideration that is or may be relevant to whether the prisoner should be released.

5B. Community safety paramount

The Board or any other person performing functions under this Act must regard the safety of the community as the paramount consideration.

108 Section 5C requires the Board to have regard in the performance of its functions to a 'victim's submission'. Section 5C provides:

5C. Victim's submission to Board

(1) A victim's submission is a written submission by a victim of an offence for which a prisoner is in custody that does either or both of the following -

(a) states the victim's opinion of the effect the release of the prisoner would have on the victim;

(b) makes suggestions about the conditions that should apply to the prisoner if released.

(2) If a victim is personally incapable of making a victim's submission due to age, disability or infirmity, a person may make a victim's submission on the victim's behalf.

(3) The Board and the CEO are to establish procedures for the making of victims' submissions and their receipt by or transmission to the Board.

(4) In performing its functions, the Board is to have regard to any victim's submission received by or transmitted to it in accordance with the procedures and is to give the submission such weight as it sees fit.

(5) The Board must not -

(a) give a victim's submission, or a copy of a victim's submission, to the prisoner or to any person acting for or on behalf of, or representing, the prisoner; or

(b) allow the prisoner or any person acting for or on behalf of, or representing, the prisoner to view a victim's submission.

109 Division 5 of pt 3 of the 2003 SA Act deals with the Governor making a parole order in respect of a prisoner serving a life sentence. Section 25 provides:

25. Life imprisonment, Governor may parole prisoner

(1) The Governor may make a parole order in respect of a prisoner serving life imprisonment for murder but only if -

(a) a minimum period has been set under section 90(1)(a) of the Sentencing Act 1995; and

(b) the prisoner has served the minimum period; and

(c) a report has been given by the Board to the Minister under section 12 or 12A.

(1A) The Governor may make a parole order in respect of a prisoner serving life imprisonment for an offence other than murder but only if -

(a) the prisoner has served the period required by section 96(1) of the Sentencing Act 1995; and

(b) a report has been given by the Board to the Minister under section 12 or 12A.

(2) The release date in the order is that set by the Governor.

(3) The parole period in the order is to be set by the Governor and must be at least 6 months and not more than 5 years.

110 Section 12 provides:

12. Reports by Board to Minister about prisoners generally

(1) At any time the Minister, in writing, may request the Board to report about a prisoner.

(2) The Board must give the Minister a written report about a prisoner -

(a) whenever it gets a written request to do so from the Minister;

(b) whenever it thinks there are special circumstances which justify doing so; and

(c) in any event, in the case of a person referred to in paragraph (d) of the definition of 'prisoner' in section 4(2), at least once in every year.

(3) A report given under subsection (2) must deal with the release considerations relating to the prisoner.

(4) A report -

(a) must, if given under subsection (2)(a); and

(b) may, if given under subsection (2)(b) or (c),

recommend whether or not the Governor should be advised to exercise any power vested in the Governor to release the prisoner and, if release is recommended, the requirements or conditions (if any) that should apply to the prisoner's release.

(5) If a report given under subsection (2) about a prisoner recommends that the prisoner be released, the report must, in addition to addressing the matters required by subsections (3) and (4), report -

(a) on the nature and circumstances of the offence that gave rise to the prisoner being in custody; and

(b) if parole is recommended -

(i) on the period for which the prisoner should be on parole; and

(ii) on the additional requirements (if any) to which the prisoner should be subject while on parole,

and may address any other matters the Board thinks fit.

(6) In the case of a person referred to in paragraph (d) of the definition of 'prisoner' in section 4(2) Minister, in this section, means the Minister administering Chapter XXVIII of The Criminal Code.

12A**. Reports by Board to Minister about prisoners serving life terms or indefinite imprisonment**

(1) In this section -

prisoner means a person serving a sentence described in column 1 of the Table to this section.

(2) The Board must give the Minister a written report about a prisoner at the times stated in columns 2 and 3 of the Table to this section, whether or not it has given the Minister a report about the prisoner under section 12.

(3) A report given under subsection (2) must deal with the release considerations relating to the prisoner.

(4) If a report given under subsection (2) recommends that the prisoner be released, the report must, in addition to any other matters the Board thinks fit, report on -

(a) whether the prisoner should be released on parole; and

(b) if release on parole is recommended -

(i) the period for which the prisoner should be on parole; and

(ii) the additional requirements (if any) to which the prisoner should be subject while on parole.

(5) A report given under subsection (2) may recommend whether or not the Governor should be advised to exercise any power vested in the Governor to release the prisoner, and, if release is recommended, the requirements or conditions (if any) that should apply to the prisoner's release

7 years after the day on which the term began or is taken to have begun

Life imprisonment for murder where a minimum period has been set under section 90(1)(a) of the Sentencing Act 1995

112 Section 13 provides:

1. Board may recommend re-socialisation programmes for prisoners serving life terms or indefinite imprisonment

(1) In this section -

prisoner means a person serving a sentence described in column 1 of the Table to section 12A.

(2) At a prescribed time in the sentence of a prisoner the CEO must assess -

(a) the suitability of the prisoner for inclusion in a re-socialisation programme; and

(b) whether the prisoner's participation in a re-socialisation programme can be facilitated by the CEO.

(3) The CEO is to give the Board a written report on the outcome of an assessment made under subsection (2).

(4) If the Board -

(a) has received a report under subsection (3) advising that the CEO can facilitate the prisoner's participation in a re-socialisation programme; and

(b) considers that the prisoner may be suitable for inclusion in a re-socialisation programme,

the Board may request the CEO to give it a detailed description of a re-socialisation programme in which the prisoner should participate before being released, and the CEO must comply with that request.

(5) If after -

(a) receiving a re-socialisation programme from the CEO under subsection (4); and

(b) considering the release considerations relating to the prisoner,

the Board endorses the programme, with or without variations, the Board may, in a report given under section 12A(2) or at any other time, recommend to the Minister that the Governor should be advised to approve of the programme as so endorsed and of the prisoner's participation in it.

(6) If the Governor approves of the re-socialisation programme and of the prisoner's participation in it, the Board is to provide it to the CEO as so approved.

(7) The CEO must give a copy of the approved re-socialisation programme to the prisoner and implement it as far as is reasonably practicable unless it is suspended or cancelled in accordance with the regulations.

(8) A prisoner is not to participate in a re-socialisation programme other than one approved by the Governor and provided to the CEO under subsection (6).

(9) Nothing in this section limits the power of -

(a) the Board to recommend to the CEO any other programme in which the prisoner should participate before being released; or

(b) the CEO to implement any other programme before the prisoner is released.

113 It is to be noted that the above provisions (other than s 25(3)) were contained in pt 2 and pt 3 div 5 of the 2003 SA Act, and were not included in the provisions of the 2003 SA Act picked up and applied by cl 13(5) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003.

114 Provisions of the 2003 SA Act which were picked up and applied by cl 13(5) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 include ss 48, 107B, 107C, 114 - 115A (referred to earlier) and the following.

115 Part 9 of the 2003 SA Act deals with the Prisoners Review Board. Sections 102, 106, 107, 107A, 108, 109, 115 and 119 provide:

102. Prisoners Review Board established

(1) A board called the Prisoners Review Board is established.

(2) The Board is to be taken to be a continuation of the Parole Board established previously.

...

106. Functions

(1) The functions of the Board are set out in this Act.

(2) The Board may do all things necessary or convenient to be done for or in connection with, or as incidental to, the performance of its functions.

(3) A member of the Board, other than the chairperson, must comply with any relevant public sector standard or code of ethics established under section 21 of the Public Sector Management Act 1994 when performing functions as a member of the Board.

107. Board to have powers of Royal Commission

(1) For the purpose of carrying out its functions, the Board and its chairperson and members have and may exercise the powers that a Royal Commission and its chairman and commissioners have under the Royal Commissions Act 1968.

(2) The Royal Commissions Act 1968, with any necessary changes, has effect in relation to the Board, its chairperson and members.

107A. Board may call on expert or professional assistance

The Board may appoint a person with relevant knowledge or experience to assist the Board in relation to a matter within the Board's functions by providing a report, advice or professional services.

...

108. Orders by the Board

(1) In this section -

authorised person means -

(a) the registrar or a member of the Board; or

(b) a departmental officer performing the functions of a prescribed office or an office of a prescribed class.

(2) An order giving effect to a decision made by the Board is to be signed by 2 members of the Board.

(3) A notice of a decision made by the Board may be signed by an authorised person.

(4) Despite subsection (2), an authorised person, on behalf of and in the name of the Board, may make a parole order in accordance with guidelines issued by the Board except in respect of a prisoner serving a parole term of at least 2 years for a serious offence.

(5) The Board may issue guidelines to be observed by authorised persons when making parole orders under subsection (4).

109. Board may require prisoner to appear before it

(1) At any time while a prisoner is subject to a parole order (other than a parole order (unsupervised)) or an RRO, the Board, by order, may require him or her to appear before the Board.

(2) For the purposes of subsection (1), the Board may issue a warrant to have the prisoner arrested and brought before the Board.

(3) The powers in this section may be exercised whether or not the Board has amended, suspended, cancelled or otherwise made a decision in relation to the order concerned.

...

115. Exclusion of rules of natural justice

The rules known as the rules of natural justice (including any duty of procedural fairness) do not apply to or in relation to the doing or omission of any act, matter or thing under Parts 2 to 6 by -

(a) the Governor;

(b) the Minister;

(c) the Board;

(d) an authorised person as defined in section 108(1); or

(e) the CEO.

119. Secrecy

(1) A person who is or has been in a position to which this section applies must not, whether directly or indirectly, record, disclose, or make use of any information obtained because of being in that position, except -

(a) for the purposes of and in the due exercise of functions under this Act;

(b) when ordered by a court or a judge to do so; or

(c) in circumstances approved, or of a kind approved, by the Minister.

Penalty: $2 500.

(2) The positions to which this section applies are -

(a) a member, a deputy of a member, an acting member, the registrar or a member of the staff of the Board;

(b) the CEO; and

(c) a member of the departmental staff.

Disposition of the appeal - the third (proposed) ground of appeal

117 It is convenient to refer to the third (proposed) ground of appeal first.

118 The effect of this ground is to contend that the Board did not act under s 34 of the OCC Act, but instead acted erroneously under the 2003 SA Act, and any 'decision' was therefore invalid.

119 The judge found (reasons [56], [81]), in my view correctly, that the report to the Minister the subject of the respondent's application could not have lawfully been made pursuant to s 12 or s 12A of the 2003 SA Act, and that the decision to recommend against his participation in a re-socialisation programme was not a decision for the purpose of s 13 of the 2003 SA Act. As to the latter decision, his Honour found it (again, in my view, correctly) to be 'necessarily connected to the recommendation to deny him parole' [81].

120 The above-mentioned provisions of the 2003 SA Act were not made applicable to the respondent by s 86 of the Sentencing (Consequential Provisions) Act 1995, as amended by cl 13(5) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003. Further, s 12A had no application because it only applied to the categories of prisoner referred to in the table to that provision, and the respondent did not fall within any of those categories.

121 The judge went on to hold, however, that the 'better view is that the report in this case was one made under s 34(3) of the [OCC Act] in its continued application to [the respondent]' (reasons [56]).

122 With respect, the judge's finding referred to above seems to me to be in error for the following reasons.

123 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, Mason J (as his Honour then was) said:

(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 Pty Ltd, adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury, and Water Conservation and Irrigation Commission (NSW) 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 (39 - 40).

124 The OCC Act does not expressly stipulate the considerations to be addressed in a report to the Minister, save insofar as the report recommends release - in which case, s 34(8) applies.

125 Section 34(8) provides that where the report contains a recommendation of release 'the Board shall give express attention in the report' to the matters in subsections (a) to (d) of s 34(8).

126 The words 'express attention' in this context, in my view, not only signify that the report itself must expressly advert to those considerations, but also, by necessary implication, that the Board is bound to consider those matters in its decision to make a recommendation in favour of release.

127 In considering the factors that the Board is bound to take into account, having regard to the subject matter, scope and purpose of the statute, attention must also be paid, in my view, to the particular provision of s 34 under which a report is made. For example, the matters to be considered and addressed in a report pursuant to a request from the Minister under s 34(2)(b), would include matters derived from a consideration of the nature and scope of the Minister's request. Similarly, where 'exceptional circumstances' were found by the Board to exist for the purposes of s 34(3), the matters to be addressed would need to take into account the 'exceptional circumstances' which provide the occasion for the report.

128 The matters in s 34(8) would also, in my view, be matters which, by necessary implication, the Board is bound to consider in recommending against release because only by considering those matters could the Board reach a decision about what recommendation it should make. In this respect, it is also important to note that the power under s 40D(1) is exercisable following the furnishing of a report by the Board, whether or not the report contains a recommendation concerning release, and if it does, whether or not the recommendation is for or against release.

129 Further, it follows, in my view, that the matters in subsections (a) and (b) of s 34(8), as matters to which the Board must specifically have regard, and by their nature, are matters which would be required to be given weight as fundamental elements in a decision to make a recommendation in favour of, or against, release on parole: R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322, 329; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 [71] - [73], [75].

130 In relation to s 34(8)(d), which refers to 'such other matters as the Board thinks fit', the Board's discretion is unconfined, except insofar as there may be found in the subject matter, scope and purpose of the OCC Act, some implied limitation on the factors to which the Board may legitimately have regard.

131 In this case, even if it be assumed that having regard to the subject matter, scope and purpose of the OCC Act, the 'release considerations' in s 5A of the 2003 SA Act, and the 'victim's submission' in s 5C of the 2003 SA Act are, of their nature, the kinds of considerations which the Board may take into account when reporting to the Minister under s 34(3) of the OCC Act, there remains a significant difference between the statutory scheme under s 34 of the OCC Act and the statutory scheme in the 2003 SA Act. The difference is that under s 5B of the 2003 SA Act, the Board, in performing its functions under the Act, must regard the safety of the community as 'the paramount consideration'. Accordingly, in preparing reports and recommendations to the Minister under the 2003 SA Act, the Board is required to have regard to the safety of the community as 'the paramount consideration'. The Board's discretion under s 34 is not, in my view, so confined. Whilst the safety of the community is a matter referred to in s 34(8)(b), and is, in my view, by necessary implication a factor which the Board is bound to consider in any recommendation for or against parole, it is not 'the paramount consideration' to which regard must be had by the Board under the OCC Act. Providing that it (with the consideration in s 34(8)(a)) is given weight as a fundamental element, the balancing of that factor with other considerations is a matter for the Board under the OCC Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (41).

132 Whilst the Board might, in the circumstances of a particular case, consider it appropriate to attach paramountcy to that particular consideration in reporting and recommending under the OCC Act with respect to a prisoner, there is no legislative command to give it paramountcy in all cases.

133 Accordingly, in my view, the recommendations in the report which the Board prepared in relation to the respondent were purportedly made pursuant to the statutory scheme in the 2003 SA Act which elevated a relevant consideration under s 34 of the OCC Act to 'the paramount consideration' to be observed in all cases considered by the Board.

134 Whilst the validity of an administrative act is not necessarily impugned by there having been a mistake as to the source of the power stated by the decision-maker as that upon which reliance has been placed, the issue of validity depends upon the particular statutory regime under consideration and the availability of an alternative source of power: Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 618; Vaw (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631, 636 - 644, 669.

135 Where there is said to be a potential alternate statutory power open to support the relevant administrative act, it is necessary to carefully analyse the statutory power actually (albeit erroneously) relied upon, and the posited alternate statutory power, in order to determine the effect of the tribunal's failure to rely on the posited alternative power: VAW (Kurri Kurri) Pty Ltd v Scientific Committee [32].

136 In this context, the observations of Black CJ in Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 are relevant. His Honour said (Gummow J agreeing (437)):

There must of course be limits to the general principle that an act purporting to be done under one statutory authority may be supported under another statutory authority. The suggested other source of power may, for example, be seen to be unavailable because its exercise depends upon the fulfilment of some condition precedent peculiar to it and the event has not yet occurred: see Saatchi (supra) at 23 per Wilcox J and R v Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452 at 587 per Williams J. There may also be cases in which the matters to which the decision-maker would be bound to have regard in exercising the other source of power differ materially from the matters relevant to the exercise of the assumed source of power with the result that the other source of power cannot be relied upon to support the decision. Similarly, matters may be taken into account in the purported exercise of a power that would invalidate the attempted exercise of a power derived from another source because, in the context of the other source, they were irrelevant matters. Moreover, for reasons of this nature, where the effect of the exercise of the power upon third parties may differ according to the source of the power, the exercise of the power may not be supportable as a valid exercise of power derived from another source (412).

137 His Honour concluded, on the facts of that case, that the mistake as to the appropriate head of power was immaterial as

no consequence attached to the specification of a source of power that did not in fact exist. The circumstances relevant to the proper exercise of the power were exactly the same whether the source of the power was s 597(1) of the Corporations Law, as it supposed, or whether the source was s 11(4) of the ASC Act operating in combination with s 597 (412 - 413).

138 The court reached a similar conclusion in VAW (Kurri Kurri) Pty Ltd v Scientific Committee. Upon considering the relevant heads of power in that case, Spigelman CJ concluded (Beazley and Hodgson JJA concurring [172], [214]):

In the present case no aspect of the procedure or of substance differed in any material respect depending whether the matter was commenced upon the initiative of the Committee or upon nomination by a third party ... the scope of the relevant considerations, the substance of the tests to be applied and the consequences ... did not differ in any respect depending on the source of the initial trigger mechanism [54].

139 For the reasons in [131] - [132] above, in my view, there was a material difference in the matters relevant to the exercise of the two posited heads of power in this case. In the preparation of a report and recommendation under the SA Act, the Board was obliged to regard the safety of the community as 'the paramount consideration', whereas that consideration was not accorded paramountcy under the OCC Act. Moreover, from the perspective of the prisoner, the effect of the exercise of the power may differ depending upon whether the safety of the community is necessarily 'the paramount consideration' upon which the Board is required to act. It follows that s 34(3) of the OCC Act is not available as an alternate source of power to support a report and recommendation purportedly made by the Board under s 12 or s 12A of the SA Act.

140 For this reason, even assuming that a recommendation in a report under s 34(3) of the Act reflects a decision to make a recommendation and is a decision within the meaning of s 107B of the 2003 SA Act, the recommendation in the report to the Attorney General in 2009 cannot be properly regarded as a recommendation in a report made under s 34(3) of the OCC Act. Insofar as the learned trial judge considered that it was, in my view, he erred. That means that neither s 12 or s 12A of the SA Act nor s 34(3) of the OCC Act constituted a valid head of power capable of sustaining the Board's actions, meaning that the Board's report and recommendation were made ultra vires and were therefore invalid.

141 If I am wrong in this conclusion, and s 34(3) of the OCC Act was an available head of power, in my view, it is to be inferred that the Board made an error of law in the exercise of that power. The error, it is to be inferred, is that the Board considered itself obliged to elevate the safety of the community to 'the paramount consideration' in making the report and recommendation under s 34(3) when it was not obliged to do so. In my view, such an error of law was a jurisdictional error. By considering itself bound to elevate the safety of the community to 'the paramount consideration', the Board misunderstood the nature of its jurisdiction under the OCC Act and, in consequence, applied a wrong test. If an administrative tribunal misunderstands the nature of its power, applies a wrong test, does not apply itself to the relevant question, or misconceives its function or the nature of the opinion it is to form, this constitutes a jurisdictional error and renders the act or decision a purported rather than real exercise of its power: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, 420; Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 [72]; Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128 [80] - [82], [85] - [86]; Ex parte Miah; Re Minister for Immigration and Multicultural Affairs [2001] HCA 22; (2001) 206 CLR 57 [80]; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 [41]; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 - 180. Such a jurisdictional error renders the relevant administrative act or decision null and void at law so as to leave the duty to do the relevant act, or make the relevant decision, unperformed: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 [76]; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [51], [63], [152].

142 Accordingly, there is merit in the proposed third ground. I would allow the appellant leave to amend its grounds of appeal to include the third proposed ground. The point underlying the ground raises a matter of law, no new evidence is required, it was addressed by the judge below and no prejudice arises from it being raised now.

143 If the third ground is upheld, the appeal should be allowed. I will consider the first ground in deference to the arguments raised by counsel for the appellant, and by the respondent. In addressing the first ground, I will assume, as the judge found, that the Board's report, including its recommendation to the Minister the subject of the application below, was a report validly made under s 34(3) of the OCC Act. Also, in addressing the first ground, I will assume, as the appellant in effect asked the court to assume, that the Minister had the authority of cabinet to decide whether the Executive Council should or should not tender advice to the Governor to release the respondent. The assumption is made for the purpose of considering the arguments in the appeal on the first ground, but its validity or otherwise was not debated and the court did not have the benefit of submissions on behalf of the Attorney General in that regard. The reasons in relation to the first ground are to be read with those qualifications in mind.

144 The appellant, by its first ground, alleged, in effect, that the judge in holding that a recommendation by the Board against the respondent's release on parole and against his participation in a re-socialisation programme was a decision under s 107B of the 2003 SA Act, erred in :

(a) having regard to the use of the word 'decision' in certain correspondence from the appellant and the Attorney General as an aid to the proper construction of the word 'decision' in s 107B of the 2003 SA Act;

(b) having regard to the meaning of the word 'decision' in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), as explained in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, in construing s 107B;

(c) having regard to authorities dealing with certiorari or natural justice, which have held that in certain circumstances, reports, recommendations or preliminary decisions may attract judicial review;

(d) having regard to wider policy considerations relating to the provision of reasons and failing to have regard to the limited operation of any recommendation by the Board to the Minister, when construing s 107B;

(e) considering that the appellant had a 'critical role', involving more than an investigatory role, in the decision-making process with regard to prisoners serving life sentences.

145 It is convenient to address, briefly at the outset, the first two alleged errors.

146 As to the first, whilst his Honour mentioned that the language of 'decision' was 'noteworthy', his Honour nevertheless expressly recognised that the question under consideration was one of statutory construction (reasons [46] - [47]). I am unable to discern, from a reading of the reasons as a whole, that the judge erred in treating the language in the correspondence as an aid to statutory construction.

147 As to the second alleged error, the judge said, with reference to the ADJR Act, that the decision in Australian Broadcasting Tribunal v Bond provided 'guidance' in the interpretation of s 107B (reasons [52]). It appears that the guidance derived by his Honour was that he considered that unlike the ADJR Act, 'finality', as explained in Australian Broadcasting Tribunal v Bond, is not a necessary quality of a 'decision' under s 107B, and that, moreover, s 3(3) of the ADJR Act illustrates that the legislature may provide for certain reports and recommendations to be 'decisions' (reasons [51] - [52], [57]). As I understand his Honour's reasons, his Honour nevertheless recognised, in effect, that the ADJR Act permitted a review of conduct, which influenced how the word 'decision' was interpreted in Australian Broadcasting Tribunal v Bond, and that the deeming under s 3(3) of the ADJR Act of certain reports and recommendations as 'decisions', cannot be applied to the 2003 SA Act. The judge's observations, it seems to me, were simply a prelude to the reasoning which is under principal attack in this appeal. The appellant's principal attack on the judge's reasons emerged by reference to the third, fourth and fifth alleged errors, referred to above. Unless the appellant succeeds on those alleged errors, the appeal on the first ground, in my view, cannot succeed.

148 The appellant's principal argument in the appeal is that the recommendation by the Board to the Minister under s 34(3) of the OCC Act does not have the requisite quality of finality to constitute a decision, and that the Board's report and recommendation, whilst a 'necessary step in the decision making process' is not 'critical' and that the Governor has a 'completely discrete and unfettered decision making power following receipt of a report'. In this regard, the appellant submitted, in effect, that a report by the Board under s 34(3) had no capacity to affect the respondent's legal rights or obligations. It submitted that the only person with a power to affect his legal rights or obligations was the Governor, under s 40D(1), and that the Minister, in relation to any advice to the Governor, or the Governor, could act for 'purely political reasons'. Counsel relied on State of South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378.

149 In order to address these submissions, it is necessary to have regard to the subject matter, scope and purpose of the 2003 SA Act, and its application with respect to s 34 and s 40D of the OCC Act. I address these matters below.

Reasoning on appellant's principal submissions

150 Section 107B(4) of the 2003 SA Act requires that a notice under subsections (1) and (2) must 'include the reasons for the decision'. Section 107B(1) and (2) of the 2003 SA Act apply to any 'decision made under this Act'. The statutory requirement to give reasons is to be considered against the general law background that no rule of common law, and no principle of natural justice, requires reasons to be given for administrative decisions: Public Service Board of New South Wales v Osmond [1987] HCA 7; (1986) 159 CLR 656. Also, s 107B(1) and (2) direct attention to 'any decision', whereas prior to the amendments effected by the 2006 Amending Act, only certain specified decisions were the subject of a requirement to give reasons. Section 107B is, accordingly, a remedial or beneficial provision, to be given a liberal interpretation so as to give the fullest relief which the fair meaning of its language will allow: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 12; Barns v Barns [2003] HCA 9; (2003) 214 CLR 169, 187 - 188; Andrew Koh Nominees Pty Ltd v Balneum Joint Venture [2007] WASCA 152; (2007) 33 WAR 561 [32]; Nilant v Macchia [2000] FCA 1528; (2000) 104 FCR 238, 247.

151 In terms of policy considerations, the potential advantages and disadvantages associated with the provision of reasons were discussed by Gibbs CJ in Public Service Board v Osmond 668 - 669; cf Perkins v County Council of Victoria [2000] VSCA 171; [2000] VSCA 171; (2000) 2 VR 246 [56]. In the case of the 2003 SA Act, as amended, the legislature has resolved the competing policy considerations in favour of the provision of reasons in respect of decisions made under that Act.

152 In s 107B(1) and (2), the word 'under' is to be read as including 'by', 'in accordance with', 'pursuant to' and 'by virtue of': definition of 'under' in s 5 Interpretation Act 1984.

153 For the reasons indicated in [90] - [93] above, in my view, a decision of the Governor under s 40D(1) of the OCC Act, following the furnishing of a report under s 34(2)(b), (d) or (3), to release a prisoner in the respondent's position on parole, is to be regarded as a 'parole order' within the meaning and for the purposes of pt 3 of the 2003 SA Act.

154 Accordingly, a decision by the Governor under s 40D(1) of the OCC Act to release a prisoner on parole is, in my view, a decision made in accordance with, pursuant to, or by virtue of the 2003 SA Act, and is thereby a decision within the meaning of s 107B of that Act.

155 Similarly, and by necessary implication, a decision by the Governor not to release, on parole, a prisoner serving a life sentence following the furnishing of a report under s 34(2)(b), (d) or (3) of the OCC Act would also, in my opinion, be a decision 'made under' the 2003 SA Act.

156 Such a decision falls expressly, in my view, within s 107B(3)(a) of the 2003 SA Act as a 'decision ... by ... the Governor, not to make an early release order in respect of a prisoner'. So much was conceded by counsel for the appellant. It is a decision in respect of which reasons must (subject to s 114) be supplied: s 107B(4) of the 2003 SA Act. Although it is the Board that must supply the reasons, it is to be inferred that the Minister who receives the report, as the person responsible for administering the OCC Act, is obliged to inform the Board of the Governor's reasons, for the purpose of the Board discharging its obligation to provide such reasons to the prisoner.

157 It is to be noted that a decision by the Governor within the meaning of s 107B(3)(a) is not a 'reviewable decision' for the purposes of s 115A of the 2003 SA Act. Accordingly, the 2003 SA Act contemplates the provision of reasons for a 'decision made under [the 2003 SA Act]' even if a prisoner is not entitled to request a review and reconsideration of the decision within the framework of s 115A.

158 If a decision by the Governor to release or not release a prisoner on parole following the furnishing of a report under s 34(2)(b), (d) or (3) of the OCC Act is a 'decision made under [the 2003 SA Act]', the next question is whether a decision to include a recommendation in the report from the Board is itself a 'decision made under [the 2003 SA Act]'.

159 In this regard, the following matters are, in my view, relevant. First, s 107B(3) is not an exhaustive list of the decisions the subject of s 107B(1) and (2). Section 107B(1) and (2) refer to 'any' decisions made under the 2003 SA Act. There is a generality in the language used.

160 Secondly, in my view, the observations of Gummow, Callinan and Heydon JJ in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 are pertinent to the construction of s 107B. Although that case concerned the phrase 'decision of an administrative character made ... under an enactment' in State legislation equivalent to the ADJR Act, it provides guidance, in my view, in the present circumstances, insofar as the subject matter of the 2003 SA Act concerns the rights and obligations of persons (prisoners) in respect of administrative decisions affecting their legal rights. Section 107B, introduced by the 2006 Amending Act, was evidently designed to confer certain rights on prisoners affected by administrative decisions concerning their detention and potential release, including, but not limited to, persons with specified rights of review under s 115A.

161 In my view, the following observations in Griffith University v Tang at [78] - [80], [85] - [86] and [89] are pertinent:

[78] There is a line of authority in the Federal Court, beginning with the judgment of Lockhart and Morling JJ in Chittick v Ackland and including the judgments of Kiefel J and Lehane J in Australian National University v Lewins, which assists in fixing the proper construction of the phrase 'decision of an administrative character made ... under an enactment'. As noted earlier in these reasons, the presence in the definition in the AD(JR) Act of the words '(whether in the exercise of a discretion or not ... )' indicates that the decision be either required or authorised by the enactment. Mayer shows that this requirement or authority may appear sufficiently as a matter of necessary implication. However, whilst this requirement or authority is a necessary condition for the operation of the definition, it is not, by itself, sufficient.

[79] The decision so required or authorised must be 'of an administrative character'. This element of the definition casts some light on the force to be given by the phrase 'under an enactment'. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?

[80] The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?

...

[85] The legal rights and obligations which are affected by the authority of the decision derived from the enactment in question may be those rights and obligations founded in the general or unwritten law. For example, in Commissioner of Australian Federal Police v Propend Finance Pty Ltd, it was the decision to issue the search warrants pursuant to s 10 of the Crimes Act 1914 (Cth) which provided the police officers executing them with lawful authority to commit what otherwise were acts of trespass and conversion and attracted the operation of the AD(JR) Act.

[86] However, that which is affected in the fashion required by the statutory definition may also be statutory rights and obligations. An example is that given by Toohey and Gaudron JJ in Bond of a requirement, as a condition precedent to the exercise of a substantive statutory power to confer or withdraw rights (eg, a licence), that a particular finding be made. The decision to make or not to make that finding controls the coming into existence or continuation of the statutory licence and itself is a decision under an enactment.

...

[89] The determination of whether a decision is 'made ... under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice. (citations omitted)

162 Thirdly, whilst the decision to recommend for or against parole is expressly authorised by s 34(6) of the OCC Act, in my view, it is also impliedly authorised by the 2003 SA Act. Insofar as the Governor's decision under s 40D(1) of the OCC Act to release a prisoner is made on the basis that it is an order under pt 3 of the 2003 SA Act, the precondition for the making of the order, ie, the report by the Board under s 34(3) of the OCC Act, is a step impliedly made in accordance with pt 3 of the 2003 SA Act. As a s 34(3) report may contain a recommendation by reason of s 34(6) of the OCC Act, any recommendation in such a report is itself impliedly authorised by pt 3 of the 2003 SA Act.

163 Fourthly, for present purposes, such a report is capable of affecting rights and obligations, having regard to the observations of the majority in Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149. In that case, Brennan CJ, Gaudron and Gummow JJ, with reference to Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, said:

In Ainsworth the Court reiterated the function of certiorari. In the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ it was said: 'The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review.' Brennan J spoke to similar effect as follows: 'Quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash.'

Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently 'affects rights' in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently 'determines' or is connected with that decision.

The form in which a decision-making structure is established may be likely to indicate the nature of the function exercised at each stage within that structure. Nevertheless, the difference between the two situations outlined above is one of substance as well as form. In the second situation, the question becomes whether the stage of the process under challenge has the necessary effect on the final or ultimate decision (159 - 160).

164 In Hot Holdings Pty Ltd v Creasy, the majority held that in relation to the second category of case referred to above, a preliminary decision or recommendation, if it is one to which regard must be paid by the final decision-maker, will have the requisite legal effect upon rights to attract certiorari. The majority said (170 - 171):

The point is whether the decision as to initial compliance at the same time, which led to an order for a ballot to be held, has an apparent or discernible legal effect upon the Minister's final decision. It is to that question that we now turn.

Apparent legal effect?

In the Supreme Court Malcolm CJ recognised that:

'the making of the report by the Warden conditions the exercise by the Minister of his discretionary power to grant or refuse the application. The content of the report does not condition the exercise of the power.'

The Chief Justice here draws a distinction. This is between a preliminary finding which is a necessary precondition of a final exercise of power, in the sense that the actual content of the finding must support the final decision, and a finding which is a necessary precondition in the sense only that, so long as it is made, it activates the power, regardless of its content. Ex parte Lain was a case of the former type. There, the determination of the Criminal Injuries Compensation Board in favour of an applicant was a precondition of the Board's authority to make a payment. In contrast, the present is a case of the latter type. The Minister may grant or refuse to grant whether or not the warden recommended the grant or refusal of the mining tenement.

While it may be true that the content of the warden's report and recommendation does not bind the Minister, this does not mean that the report and recommendation of the warden is not something to which the Minister is bound to have regard in exercising his discretion.

...

The courts do not readily classify as absolute or unfettered a statutory discretion, the exercise of which will affect the rights of the citizen, and, if the legislature intends that result, 'it should do so by a very plain expression of its intent'. Thus, apart from express provision, a statute may impliedly require the repository of a power to have regard to certain considerations in deciding on its exercise and, in determining whether the repository is bound to have regard to any and what matters, the subject matter, scope and purpose of the statute must be considered. (citations omitted)

165 In the application of the principles to the facts of that case, the majority said (174):

Here, the legislature provided no other means for the Minister to be informed of matters specific to the individual applicants. It is apparent that the Minister is bound to consider the information which the warden transmits under s 58(3) and s 75(3). The Minister may not exercise the discretion to grant or refuse applications until the warden's recommendation and report, expressing as it must the warden's decision on priority, is received and taken into account. The result of this statutory process is that, regardless of the content of the 'right in priority', the warden's decision has a discernible legal effect upon the Minister's exercise of discretion.

That conclusion is not affected by those provisions which make clear that the Minister is in no way bound by the recommendation of the warden (ss 59(4), 75(4)). These provisions are but a statutory indication that the weight of those considerations need not be decisive. They do not go to show that the consideration is other than one which the Minister is bound to consider.

166 Broadly similar reasoning should, in my view, be applied in this case.

167 In my view, the Minister is obliged to have regard to any recommendations in a report which is furnished to the Minister pursuant to s 34(3) of the OCC Act. My reasons for this conclusion are as follows. First, the Governor may not exercise any power of release until after the Board has furnished a report. Although a recommendation by the Board is not, in itself, a precondition to the exercise of power by the Governor, the fact that the furnishing of a report is a precondition, and the fact that the Board is authorised to make a recommendation in the report to be furnished, provides a basis for inferring that if a report is received by the Minister containing a recommendation, regard must be had to it by the Minister. Secondly, moreover, the recommendation provided for by s 34(6) is in the nature of a recommendation to the Minister as to whether or not the Governor should be advised to exercise a power to release the prisoner. The fact that the recommendation is made for the purpose of the Governor receiving advice indicates that the recommendation is to be considered by the Minister. Thirdly, a report by the Board to the Minister and any recommendation therein will address a number of considerations 'personal to' the prisoner (in the words of Mason CJ in South Australia v O'Shea (387)), or 'specific to' the prisoner (in the words of the majority in Hot Holding 174), including his behaviour in prison, the likelihood of his reoffending, and related matters. Fourthly, the legislature has provided no other means for the Minister to be informed on matters specific to the prisoner. Fifthly, the report and recommendation is to the Minister responsible for the administration of the OCC Act.

168 Finally, s 40D(1) is to be construed on the basis that the Governor orders the release of a prisoner under that section with the advice and consent of the Executive Council. The Executive Council is 'to advise the Governor in the government of the State': cl VI Letters Patent 14 February 1986 (gazetted 28 February 1986). A decision by the Governor to release a prisoner on parole under s 40D(1) is the formal act reflecting advice tendered by the Executive Council to the Governor: Thongchua v Attorney-General for the Commonwealth of Australia (1986) 11 FCR 187 191 - 192; Steiner v Attorney-General (Commonwealth) [1983] FCA 338; (1983) 74 FLR 89, 93. The power to release is reposed in 'a political branch of government': South Australia v O'Shea, 410.

169 Although the ultimate decision not to release a prisoner following a report by the Board rests with the political branch of government, the legislature, by s 107B(3)(a), requires that reasons should be supplied to the prisoner for that decision.

170 Whilst in this case there is no legislative provision requiring the Governor to act on the advice of the Minister alone (compare the relevant legislative provision considered in Thongchua), on the assumption referred to in [143] above, in substance the decision whether or not to release the prisoner the subject of the Board's report and recommendation is that of the Minister. The Minister, as I have indicated, is required to have regard to the Board's recommendation (irrespective of whether, in the end, the Minister accepts it or not).

171 In these circumstances, in my opinion, a recommendation by the Board to the Minister is 'sufficiently ... connected with' (Hot Holdings (159)) the Governor's decision under s 40D(1), that it may be considered as having 'merited the legislative conferral' (Griffith University [79]) of a right to reasons within the meaning of s 107B.

172 I should add, for completeness, that there was no debate in the appeal as to whether the statutory scheme was such that a prisoner could seek judicial review of, or declaratory relief in relation to, a decision of the Governor for ultra vires: see, for example, R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170; FAI Insurances Ltd v Winneke [1982] HCA 26; (1981) 151 CLR 342; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (1999) 199 CLR 135, 146; Pape v Commissioner for Taxation [2009] HCA 23 [235] (Gummow, Crennan & Bell JJ). Rather, the appellant contended, in substance, that whether or not the ultimate decision of the Governor was amenable to judicial review, the recommendation in a report to the Minister under s 34(3) was incapable of affecting the respondent's rights insofar as that issue was relevant to the proper construction of s 107B. For the reasons indicated above, I would not accept that submission.

173 For these reasons, I would not accept the challenges to the judge's decision under the first ground of appeal insofar as the appellant contends that a decision by the Board to include a recommendation in a report under s 34(3) is not a decision within the meaning of s 107B.

174 The second ground of appeal raises a matter which did not become the subject of a declaration or order by the judge. It is also a theoretical matter, in that his Honour's reference to '[s]uch reasons', referred to in [7] above, is a reference to the reasons which his Honour said should be supplied in respect of a decision the subject of the declaration referred to in [5] above, ie, the report of the Board to the Minister 'in 2009'. I have found that that decision is invalid.

175 In my view, it is unnecessary and inappropriate to deal with the second ground. If and when a proper decision is made by the appellant, any challenge to the adequacy of the reasons may then be assessed, having regard, inter alia, to the nature of the decision, the proper construction of the legislative provision pursuant to which it is made, the proper construction of s 107B, and the nature and scope of the reasons provided.

176 The substantive orders sought by the appellant are:

1. Appeal be upheld.
2. The declaration made by Hall J on 21 May 2010 be quashed.
3. No order as to costs.

177 It also applies to amend the notice of appeal with respect to incorporating ground 3.

178 I would grant leave to amend the notice of appeal to add proposed ground 3, and I would uphold the appeal in relation to ground 3. I would also make the other orders sought by the appellant.