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Supreme Court 11 October 2012

Attorney General of New South Wales v Chiew Seng Liew

[2012] NSWSC 1223

Homicide
JUDICIAL REVIEW ADMINISTRATIVE LAW WHAT CONSTITUTES RECORD STATUTORY OBLIGATIONS TO GIVE REASONS WHETHER REASONS INADEQUATE COSTS.

Citation: Attorney General of New South Wales v Chiew Seng Liew [2012] NSWSC 1223
Court: Supreme Court of New South Wales
Date: 11 October 2012
Judge: Beech-Jones J

Background

The first defendant was convicted of the 1991 murder of Dr Victor Chang and sentenced to a minimum term of 20 years imprisonment. His parole eligibility date arrived in July 2011, and in September 2012 the State Parole Authority (the "Authority") determined to release him on parole subject to conditions. The Authority is the body to which Parliament has exclusively entrusted parole decisions.

The Attorney General of NSW challenged the legal validity of that decision by way of judicial review, seeking an order in the nature of certiorari to quash the Authority's determination. The challenge was expressly confined to questions of legal validity. Beech-Jones J emphasised at the outset that the court's role was not to review the merits of the parole decision, and that nothing in the judgment should be read as either criticism or endorsement of the Authority's reasoning.

The third defendant, the Commissioner for Corrective Services, was joined because of his responsibility for the prisoner's detention or release, but neither the Commissioner nor the Authority took an active part in the proceedings.

Legal Issues

  • Whether the Authority committed jurisdictional error by failing to consider mandatory relevant considerations, specifically issues surrounding the deportation of the first defendant that would arise upon his release
  • Whether the Authority's own Operating Guidelines created a mandatory consideration that was not addressed
  • Whether there was an independent statutory or common law obligation on the Authority to consider deportation consequences
  • Whether the Authority's reasons were inadequate, constituting an error on the face of the record
  • Whether the Authority is a "tribunal" within the meaning of s 69 of the Supreme Court Act 1970, such that a failure to provide adequate reasons would itself ground relief in the nature of certiorari

Decision

Failure to consider deportation as a mandatory relevant consideration: The Attorney argued that the Authority was required to turn its mind to the consequences of deportation that would follow the first defendant's release. Beech-Jones J rejected this ground. Having examined the statutory framework in the Crimes (Administration of Sentences) Act 1999 and the material before the Authority, the court was not satisfied that deportation consequences constituted a mandatory relevant consideration which the Authority was legally obliged to address.

The Authority's Operating Guidelines: The Attorney contended that the Authority's own Operating Guidelines required it to consider deportation and that its failure to do so was a jurisdictional error. The court rejected this contention. The Operating Guidelines did not impose a mandatory obligation of the kind that would give rise to jurisdictional error if unaddressed.

Adequacy of reasons: The Attorney submitted that the Authority's reasons were inadequate. The court considered whether deficient reasons could constitute an error on the face of the record and found that this ground was not established on the facts. The court noted the limited scope of the obligation to give reasons under the statute and was not persuaded that any reviewable error arose from the reasons provided.

Whether the Authority is a "tribunal" for the purposes of s 69: The Attorney argued that the Authority's amenability to certiorari was itself sufficient to bring it within the definition of "tribunal" in s 69(3) of the Supreme Court Act 1970, which would have expanded the grounds for relief. Beech-Jones J declined to decide this question. He observed that no authority was cited for the proposition, that it was potentially far-reaching, and that prior Court of Appeal decisions had proceeded on assumption rather than determination. Because the issue was not critical to the outcome, the court left it for a case in which it received fuller argument.

Orders Made

  • The Further Amended Summons was dismissed
  • The Attorney General (plaintiff) was ordered to pay the first defendant's costs of the proceedings
  • The stay of the Authority's decision dated 19 September 2012 that had been made on 9 October 2012 was discharged

Key Takeaways

  • A court conducting judicial review of a parole decision is limited to questions of legal validity; the merits of the Authority's decision to grant or refuse parole are exclusively within the Authority's remit under the Crimes (Administration of Sentences) Act 1999.
  • For a relevant consideration to be mandatory (such that failure to consider it constitutes jurisdictional error), it must be shown to be legally required by the statute or applicable framework; the mere practical significance of a consideration, such as post-release deportation, does not automatically elevate it to a mandatory status.
  • An administrative body's own operating guidelines do not automatically generate enforceable mandatory obligations, and non-compliance with them will not necessarily constitute jurisdictional error.
  • Whether the State Parole Authority qualifies as a "tribunal" within s 69(3) of the Supreme Court Act 1970 remains an open question in NSW; Beech-Jones J expressly declined to resolve it without fuller argument, noting that past Court of Appeal decisions had assumed the answer without determining it.
  • Statutory obligations to give reasons are construed by reference to their specific terms, and inadequate reasons will ground certiorari only where a reviewable error is actually established on the face of the record.

Legislation and Cases Referenced

Legislation
- - Crimes (Administration of Sentences) Act 1999 - Part 6, s 3, s 126, s 127, s 128, s 131, s 132, s 135, s 143, s 143A, s 144, s 145, s 146, s 147, s 149, s 151, s 153, s 156, s 185A, s 193C
- - Crimes (Administration of Sentences) Amendment (Parole) Act 2004 - s 185A
- - Migration Act 1958 (Cth) - s 476
- - Supreme Court Act 1970 - s 69
- - Uniform Civil Procedure Rules 2005 - r 36.16(3B)

Cases
- - Al Qatrani v Parole Authority of New South Wales [2007] NSWSC 1270
- - Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
- - Attorney General for New South Wales v New South Wales State Parole Authority & Anor [2006] NSWSC 865
- - Attorney-General (NSW) v Quinn [1990] HCA 21; 170 CLR 1
- - Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; 180 LGERA 99
- - Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372
- - Craig v State of South Australia [1995] HCA 58; 184 CLR 163
- - Dimatos v Coombe [2011] VSC 619
- - Kerry, Re [2010] NSWCA 232
- - Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531
- - L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15
- - Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143
- - Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
- - Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
- - Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
- - Osland v Secretary, Department of Justice [2008] HCA 37; 234 CLR 275
- - O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210
- - R v Lim and Liew (unreported, NSWCCA, 24 December 1993)
- - R v Shrestha (1991) 173 CLR 48