Statutes - Statutory interpretation - Prisoner sentenced in Queensland to term of 7 years expiring 12 May 2017 with minimum term expiring 12 May 2013 - Prisoner transferred to Western Australia - Whether Prisoners Review Board had power to make a parole order in May 2013, or whether parole orders could not be made before 12 May 2015

Prisoners (Interstate Transfer) Act 1983 (WA), s 25, s 26

Sentence Administration Act 2003 (WA), s 20

Sentencing Act 1995 (WA), s 93

1 The issue of statutory construction raised by this application relates to the interaction between legislation governing the effect of the transfer of an interstate prisoner to Western Australia with the generally applicable provisions regulating the earliest time at which parole may be granted.

2 The applicant Mr Diano is a sentenced prisoner. He was sentenced in Queensland in 2010. Early in 2013 he was transferred to Western Australia under legislation regulating the transfer of prisoners between states. In May 2013, the Prisoners' Review Board (the Board) made a parole order. In October 2013, the Board cancelled the parole order on the ground that it had no power to make a parole order until 2015.

3 Mr Diano challenges the Board's decision to cancel his parole. For the reasons that follow, Mr Diano's challenge fails.

5 On 12 May 2010, Mr Diano was sentenced by the Supreme Court of Queensland to a term of imprisonment of 7 years, with an order that he be eligible for parole on 12 May 2013.

6 Until January 2013, Mr Diano served his term of imprisonment in Queensland.

7 On 24 January 2013, an order was made to transfer Mr Diano by the Queensland Minister for Police and Community Safety under the Prisoners (Interstate Transfer) Act 1982 (Qld) (the Queensland Transfer Act). The effect of that order was that Mr Diano was to serve the balance of his sentence of imprisonment in accordance with the law of Western Australia.

8 On 14 May 2013, the Board made or purported to make an order that the applicant be released on parole on 15 May 2013 (the May Parole Order).

9 On 15 May 2013, Mr Diano was released from custody in reliance upon that order.

10 On 15 October 2013, the Board cancelled or purported to cancel the May Parole Order, and advised Mr Diano that his parole order had been cancelled and that a warrant had been issued for his arrest.

11 On 31 October 2013, the chairperson of the Board decided to confirm the decision of the Board that had been made on 15 October 2013. The chairperson expressed the view that the Board should not have released Mr Diano on parole on 15 May 2013 because he was not eligible to be released on parole until 12 May 2015.

12 Mr Diano returned to custody on 1 November 2013.

14 Mr Diano seeks a writ of certiorari to quash the decision of the Board to cancel the May parole order, and to quash the decision to confirm that cancellation.

(1) [The chairperson] made an error of law in his enquiry into and determination of the cancellation of the Applicant's parole by misinterpreting the Prisoners (Interstate Transfer) Act 1983 (WA).

(2) Further and in the alternative, [the chairperson] failed to afford the Applicant the right to have the matter determined by the Supreme Court, that failure arising by not referring the Applicant's matter to the Supreme Court pursuant to s 49 of the Sentencing Administration Act 2003 (WA) prior to cancellation of the Applicant's parole.

16 The application gives rise to a crisp issue: did the Board have power to grant parole in May 2013?

17 Mr Diano rightly accepts that if the Board was correct in the view it took about the lack of power to make a parole order, then the cancellation order was appropriate.[1]

18 Conversely, if the Board did have power to make a parole order, the Board's cancellation decision and the chairperson's decision to confirm that cancellation would be infected by jurisdictional error of law. That is because the decision would have involved a misconstruction of the statute which was the source of the Board's power, and a misconception of the nature of the function which the Board was required to perform in making the parole order.[2]

19 Thus, the critical question is whether the Board had the power to make a parole order setting a release date at the relevant times in 2013.

20 I begin by setting out the terms of the relevant legislation.

21 Sections 25 and 26 of the Prisoners (Interstate Transfer) Act 1983 (WA) (Transfer Act) provide, so far as is material, as follows:

1. Sentence deemed to have been imposed in Western Australia

(1) Where under an interstate law an order is issued for the transfer to Western Australia of a person imprisoned in a participating State and the person is brought into Western Australia pursuant to the order, then from the time the person arrives in Western Australia -

(a) any State sentence of imprisonment (as defined in the interstate law of the participating State) imposed upon the person by a court of the participating State and any sentence of imprisonment deemed by the provision of an interstate law that corresponds to this section to have been imposed by a court of the participating State shall be deemed to have been imposed upon the person; and

(b) any direction or order given or made by a court of the participating State with respect to when any such State sentence of imprisonment shall commence shall, so far as practicable, be deemed to have been given or made,

by a corresponding court of Western Australia and, except as otherwise provided in this Act, shall be given effect to in Western Australia, and the laws of Western Australia shall apply, as if such a court had had power to impose the sentence and give or make the direction or order, if any, and did in fact impose the sentence and give or make the direction or order, if any.

(2) Subsection (1) does not apply to or in respect of a sentence of imprisonment imposed upon a person where the person has completed serving that sentence.

1. Provisions relating to translated sentences

(1) Where under a law of a participating State there has been fixed by a court in respect of a translated sentence a minimum term of imprisonment (being a shorter term than the translated sentence), during which minimum term the person subject to the sentence is not eligible to be released on parole, then, except as otherwise provided in this Act, that minimum term shall be deemed likewise to have been fixed by the corresponding court of Western Australia.

(2) Where a translated sentence or a minimum term deemed under subsection (1) to have been fixed by a corresponding court of Western Australia -

(a) is varied or quashed on a review by or appeal to a court of the participating State where the sentence or minimum term was imposed or fixed, the sentence or minimum term shall be deemed to have been varied to the same extent, or to have been quashed, by a corresponding court of Western Australia; or

(b) otherwise is varied or ceases to have effect as a result of action taken by any person or authority in that participating State, the sentence shall be deemed to have been varied to the same extent, or to have ceased to have effect, as a result of action taken by an appropriate person or authority in Western Australia.

(3) Nothing in this Act operates to permit in Western Australia any appeal against or review of any conviction, judgment, sentence or minimum term made, imposed or fixed in relation to a person by a court of a participating State.

...

(6) A person who is subject to a translated sentence -

(a) shall be deemed to have served in Western Australia such period of the translated sentence as, up to the time of his transfer to Western Australia, he had served in respect of that sentence in a participating State (including any period deemed by the provision of an interstate law that corresponds to this paragraph to have been served in a participating State and any period spent in custody while being transferred to a prison in Western Australia);

(b) shall be deemed to be entitled under the Prisons Act 1981 to any remission of his translated sentence for which, up to the time of his transfer to Western Australia, he was eligible in respect of that translated sentence in the participating State (including any remission of sentence deemed by an interstate law to have been earned in a participating State), except that if the remission of sentence to which a person would otherwise be deemed to be eligible under this paragraph relates to or is conferred or calculated by reference to a period of his sentence greater than that which he has served prior to the time of his transfer to Western Australia, he shall be deemed to be entitled under the Prisons Act 1981 to such proportionate amount of that period of remission of sentence as the period of sentence served by him prior to his transfer to Western Australia bears to the period by reference to which the remission to which he would otherwise have been deemed to be eligible was calculated; and

(c) shall be entitled, in addition to the remission to which he is deemed to be entitled under paragraph (b) of this subsection, to further remission of sentence under the Prisons Act 1981 which shall be calculated with reference to the balance of the term of his sentence remaining to be served from the time of the arrival of that person in Western Australia.

(7) Subsection (5) does not apply in relation to a conviction or transferred sentence referred to in section 24(2)(a) or (b) of the Transfer of Prisoners Act 1983 of the Commonwealth, but nothing in this subsection shall be construed as preventing the Queen or the Governor from exercising the royal prerogative of mercy as referred to in section 24(2) of that Act.

22 The Queensland Transfer Act was an interstate law, and the Queensland Supreme Court a corresponding court, for the purposes of s 25 and s 26.[3]

23 Section 89 of the Sentencing Act 1995 (WA) empowers a court sentencing an offender to a fixed term to order that the offender be eligible for parole in respect of that term by making a parole eligibility order. A term to which a parole eligibility order applies is a 'parole term'.[4]

24 Section 93 of the Sentencing Act fixes the time at which a prisoner serving a parole term becomes eligible for parole. It provides as follows:

(1) Subject to section 94, a prisoner serving a parole term is eligible to be released on parole -

(a) if the term served is 4 years or less - when he or she has served one half of the term; or

(b) if the term served is more than 4 years - when he or she has served 2 years less than the term.

(2) Any order for the release on parole of a prisoner to whom subsection (1) applies must be made in accordance with Part 3 of the Sentence Administration Act 2003.

(3) If a prisoner serving a parole term has not been released on parole before the term ends, the prisoner is discharged from that sentence when the term ends and, subject to Part 2 Division 2 of the Sentence Administration Act 2003, must be released then.

25 The power of the Board to make a parole order in respect of the prisoner is conferred by s 20 of the Sentence Administration Act 2003 (WA).

(1) Before the day when, under section 93(1) of the Sentencing Act 1995, a prisoner is eligible to be released on parole, the Board must consider whether the prisoner should be released on parole.

(2) If the Board, having regard to -

(a) the release considerations relating to a prisoner; and

(b) any report made by the CEO under section 17; and

(c) any other information about the prisoner brought to its attention,

decides that it is appropriate to release the prisoner on parole, it must make a parole order in respect of the prisoner.

(3) The release date in the order is that set by the Board, but it must not be earlier than the day when, under section 93(1) of the Sentencing Act 1995, the prisoner is eligible to be released on parole.

(4) The parole period in the order is the period that begins on the day when the prisoner is released and ends when the parole term ends.

(5) If the Board decides it is not appropriate to release a prisoner on parole, it is not precluded from subsequently reconsidering whether the prisoner should be released on parole.

27 As will be seen, it is s 20 that is the source of the power of the Board in this case to make a parole order. That proposition was common ground at the hearing of this application.

28 The principles of statutory construction are wellknown. I refer to the outline in Curtin University of Technology v Woods Bagot Pty Ltd.[5]

29 In broad summary, the search is for the intention of Parliament expressed and embodied in the legislation. The starting point is the text of the statute. The text is the surest guide to legislative intention. The language of the statute should be interpreted taking into account its context, including any general purpose or policy of the relevant provisions that may be discerned. The consequences of an interpretation, and any perceived improbability of result, may be capable of assisting in choosing between constructional choices that are open on the language of the statute. The statute should be construed as a whole.

30 In Commissioner of Taxation v Consolidated Media Holdings Ltd,[6] French CJ, Hayne, Crennan, Bell and Gageler JJ emphasised the centrality of the text in statutory construction:

This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text [Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 46 [47]; [2009] HCA 41]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.

31 Martin CJ recently made observations to like effect in The Wilderness Society of WA (Inc) v Minister for Environment.[7]

32 A legislative purpose, discerned from the text and extrinsic material, assists in choosing between constructional choices that are open on the language of the statute; it cannot sustain a construction that is not available as a meaning of the language of the text.[8]

33 The application of the rules of construction involves the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to rules of construction.[9]

34 Where multiple enactments comprise a legislative scheme, they should be construed accordingly. The court should endeavour to construe interrelated statutes to produce a sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation.[10]

35 The nub of Mr Diano's argument is that in order for s 25 and s 26 of the Transfer Act to achieve their purpose, he should have been eligible for parole on 12 May 2013, the date fixed by the Queensland Supreme Court. It is convenient to begin by giving attention to s 25 and s 26 of the Transfer Act, and to some aspects of what those sections do and do not achieve in their operation in the present case.

36 The primary effect of s 25 of the Transfer Act is that, from the time Mr Diano arrived in Western Australia, the sentence of 7 years' imprisonment imposed upon him by the Supreme Court of Queensland is deemed to have been imposed upon him by this court.

37 The stated effect of s 26 of the Transfer Act is that the minimum term imposed by the Queensland Supreme Court shall be deemed to have been fixed by this court.

38 In understanding s 26, it is helpful to identify the statutory regime about parole dates that was generally applicable at the time when the Transfer Act was enacted. At that time a sentencing court in Western Australia fixed a minimum term, and the power of the Parole Board to release a prisoner on parole was exercisable not earlier than at the expiration of the minimum term.[11]

39 In 1995, in enacting the Sentencing Act, the Parliament of Western Australia altered its approach to the fixing of the earliest date at which a prisoner would be eligible for parole. Under the Sentencing Act, s 93 governs when a prisoner is eligible for parole. Thus, the earliest date for eligibility for parole is governed by legislative prescription, not by order of the sentencing court. Another effect of s 93 is that no period of parole ever exceeds two years.

40 The deemed fixing by the WA Supreme Court of a minimum term does not create or confer any power on the Board to grant parole. More generally, nothing in s 25 or s 26 or elsewhere in the Transfer Act confers any power on the Board to grant parole. That is accepted by the applicant.[12]

41 In Western Australia, the only source of the power of the Board to grant parole is s 20 of the Sentence Administration Act. Section 20(3) provides that the release date set by the Board in making a parole order must not be earlier than the day when, under s 93 of the Sentencing Act, the prisoner is eligible to be released on parole. In my opinion, on a proper construction of s 20, including s 20(3), the Board has no power to make an order for parole with a release date earlier than the date when, under s 93 of the Sentencing Act, the prisoner is eligible to be released on parole. In other words, s 20(3) conditions the exercise of the power conferred by s 20.

42 For the reasons that follow, in my opinion nothing in the Transfer Act qualifies that proposition.

43 Mr Diano's submissions rely heavily on the purpose of the Transfer Act. Mr Diano submits that:

(1) the purpose of the Transfer Act is to ensure that transferred prisoners will stand in the same position after transfer as they stood before transfer in respect of both head sentence and minimum term;[13] and

(2) in order to achieve that purpose, the legislation should be construed so that the applicant was eligible for parole on the date ordered by the Queensland Supreme Court.

44 I accept that the first proposition reflects the purpose of the Transfer Act when it was enacted. But I do not accept that the Transfer Act has had that effect since the 1995 amendments, and I do not accept the second proposition. As I have said, there is a limit to how far the evident purpose of legislation can sustain a construction. Purpose informs the choice between constructional options that are reasonably available as readings of the statutory text. The text cannot be rewritten in order to attempt to advance the purpose. Section 26 cannot be read as conferring any power to grant parole. The power to grant parole is conferred by other legislation, namely s 20 of the Sentence Administration Act. The section that confers the power to grant parole conditions the exercise of that power.[14] There is nothing in s 26 of the Transfer Act that is sufficient to read it as removing the condition of the exercise of the power to grant parole found in that other legislation.

45 In effect, Mr Diano submits that s 26(1) of the Transfer Act should be read as if it had, at the end of its text, the additional words 'and the person subject to the sentence is deemed to be eligible for parole upon the expiration of the minimum term'.

46 In my view, the text and structure of s 25 and s 26 of the Transfer Act, read in context, do not sustain the reading of those additional words into s 26(1) of the Transfer Act. That view is reinforced by consideration of the legislative history.

47 When the Transfer Act was enacted there was no need to read s 26(1) with those additional words inserted, and it could not have been so read. Under the generally applicable regime, the sentencing court fixed the minimum term. Eligibility for parole upon the expiration of the minimum term was effected by other legislation then in force, namely s 41 of the Offenders Probation and Parole Act 1963 (WA).

48 The repeal of that other legislation, and its replacement by the Sentencing Act and Sentence Administration Act, does not support or sustain the reading into the Transfer Act of words that could not have been read into the Transfer Act when it was enacted. To the contrary, in 1995 Parliament made clear policy choices: eligibility for parole would be fixed by statute and not by a court; and the period of parole would never exceed two years. Those policy choices are revealed, and given effect to, by clear and unambiguous language.

49 Although Parliament made consequential amendments to many Acts when it passed the Sentencing Act,[15] no amendments were made to the Transfer Act.

50 It should not be overlooked that the Sentencing Act and Sentence Administration Act were enacted subsequently to the Transfer Act. Thus, the Transfer Act, as the earlier Act, cannot be construed as qualifying or impliedly repealing those other Acts.

51 In my opinion, the evident policy of the Transfer Act, as the earlier legislation, cannot be used to justify reading into s 26 additional words that:

(a) could not have been read into s 26 when first enacted in 1984;

(b) need to be read into s 26 to advance the policy of the Transfer Act only because of the legislative choices made in 1995 that changed the framework about the date of eligibility for parole in which the Transfer Act had been enacted; and

(c) would be inconsistent with the unambiguous and unqualified provisions of the later legislation.

52 When it was enacted, the policy of the Transfer Act - that a transfer does not prejudice a prisoner - was not achieved by provisions of the the Transfer Act alone. Rather, the policy of the Transfer Act when enacted was effected by the interaction of its provisions with other (generally applicable) legislation that conferred the power to grant parole and that governed the date for earliest eligibility for parole. When, in 1995, Parliament replaced that other legislation with a substantially different regime, it did not make changes to the Transfer Act that would have been necessary and appropriate for that Act to continue to achieve fully its policy. Those changes would have involved exceptions to the policy choices made in the 1995 legislation.

53 In my view, applying the rules of statutory construction, the legislature must be taken to have made a choice that the policy of the Transfer Act - that a prisoner's position be unaffected by an interstate transfer - be subject to and qualified by the policy of the Sentencing Act and Sentence Administration Act that earliest parole eligibility date is fixed by statute, and a period of parole is not more than two years. To my mind, for the court to adopt Mr Diano's construction would be going beyond the proper role of the court in interpreting legislation. Rather, it would be tantamount to the court making an amendment to the Transfer Act that was not made by Parliament in 1995, with the effect of qualifying the unqualified provisions enacted in 1995 and thereafter.

54 The unambiguous mandatory provisions of s 93 of the Sentencing Act and s 20(3) of the Sentence Administration Act cannot justifiably be read as being subject to an exception in the case of a minimum term set by an interstate court after transfer of a prisoner.

55 Mr Diano further submits that in cancelling his parole on 15 October, the Board effectively reviewed the minimum term set in the Supreme Court of Western Australia and any such review is specifically prohibited by s 26(3) of the Transfer Act. I do not accept that submission. The Board's cancellation of the parole order did not involve any review of the minimum term set by the Supreme Court of Queensland. Rather, it reflected the Board's view, with which I agree, of the proper construction and operation of the legislation conferring power on it to make a parole order.

56 For these reasons, I find that the Board had no power to make a parole order in May 2013. By force of s 20(3) of the Sentence Administration Act, and s 89 of the Sentencing Act, the release date fixed by the Board cannot be earlier than 12 May 2015.

57 Thus, the Board made no error, and ground 1 must be dismissed.

58 Senior counsel for Mr Diano rightly accepts that this conclusion means that ground 2 cannot advance the position.

59 For these reasons, the application must be dismissed.

[2] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [45] [46].

[3] See Prisoners (Interstate Transfer) Act 1983 (WA), s 4, and Prisoners (Interstate Transfer) Order 1984 (Government Gazette 29 June 1984, 1794); Prisoners (Interstate Transfer) Amendment Order 2010 (Government Gazette 9 November 2010, 5627 5628).

[5] Curtin University of Technology v Woods Bagot Pty Ltd [2012] WASC 449 [34] [41].

[6] Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 [39].

[7] The Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307 [167].

[8] Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 113; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 [3] [32]; Wilderness Society of WA (Inc) v Minister for Environment [167].

[9] Lacey v AttorneyGeneral (Qld) [2011] HCA 10 [44].

[10] Pavlovic v Spooner [2014] WASCA 31 [27] [28], [122] [123], and cases there cited.

[11] See s 37 and s 41 of the Offenders Probation and Parole Act 1963 (WA) (reprint 11, June 1984).

[13] Relying on Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, 298.

[14] Section 20(3) of the Sentence Administration Act.

[15] Sentencing (Consequential Provisions) Act 1995 (WA).