Federal Court of Australia

Lodhi v Attorney-General (Cth) [2020] FCA 1383

ORDERS

THE COURT ORDERS THAT:

1.    The further amended originating application be dismissed.

2.    The applicant pay the respondent’s costs as assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    The applicant, Mr Faheem Lodhi, was sentenced to imprisonment for 20 years after being found guilty by a jury, and being convicted, of committing the federal offence of doing an act in preparation for a terrorist act contrary to s 101.6 of the Criminal Code (Cth), in the Schedule to the Criminal Code Act 1995 (Cth). Mr Lodhi was also found guilty, convicted and sentenced to 10-year concurrent sentences for each of two further federal offences of collecting documents connected with preparation for a terrorist act (Criminal Code, s 101.5(1)) and possessing a document connected with preparation for a terrorist act (Criminal Code, s 101.4(1)). He was acquitted on a fourth charge. Appeals against conviction and sentence were unsuccessful, and an application for special leave to appeal to the High Court was refused.

2    The three sentences were made subject to a single non-parole period of 15 years. Mr Lodhi was eligible for parole from 22 April 2019. He has been refused parole twice by the respondent, the Commonwealth Attorney-General, in April 2019 and April 2020. As a result, he has served well over 16 years in prison. His parole is required by statute to be considered again by the anniversary of the second parole decision, in April 2021, just prior to the completion of 17 years imprisonment.

3    After Mr Lodhi’s parole was refused the first time in April 2019, the federal parole provisions were made considerably harsher by providing that the Attorney-General must not make a parole order for someone in Mr Lodhi’s situation unless satisfied that “exceptional circumstances” exist to justify it. On 14 April 2020, the Attorney-General again refused to make a parole order (second parole decision). Very short reasons were given for that decision, in the context of a detailed submission, with 16 attachments, from the Attorney-General’s Department.

4    By a further amended originating application, Mr Lodhi seeks judicial review of the second parole decision, challenging the conclusion that exceptional circumstances had not been established.

The parole provisions as amended in 2019

5    Part 1B, Division 5, Subdivision A of the Crimes Act 1914 (Cth) provides for the release of federal offenders on parole or by licence. In the absence of any State or Territory sentences being served, the provisions that are relevant to the present situation of parole refusal relevantly state:

(1)    The purposes of parole are protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community: s 19AKA.

(2)    Before the end of a federal non-parole period, the Attorney-General must either make or refuse to make an order directing that the offender be released on parole: s 19AL(1).

(3)    If the Attorney-General refuses to make a parole order, within 14 days of that refusal written notice must be given informing the offender of the refusal, including reasons, and advising that reconsideration must take place within 12 months of that refusal: s 19AL(2).

(4)    In making a parole decision under s 19AL, the Attorney-General may have regard to a list of matters set out in s 19ALA(1), including in particular any report or information in relation to the granting of parole by the relevant State or Territory corrective services or parole agency: s 19ALA(1)(h).

(5)    Per s 19ALB(1), which came into effect on 12 December 2019:

Despite any law of the Commonwealth, the Attorney-General must not make a parole order in relation to a person covered by subsection (2) unless the Attorney-General is satisfied that exceptional circumstances exist to justify making a parole order.

(6)    The Attorney-General is prohibited from making a parole order in relation to a person who has been convicted of a terrorism offence: s 19ALB(2)(a). It is common ground that Mr Lodhi is such a person, and that therefore s 19ALB(1) applied to the second parole decision.

6    The Attorney-General submits, and Mr Lodhi does not dispute, that the following propositions arise from the statutory framework for federal parole, including the provisions referred to above:

(a)    the power to release or not release a federal offender on parole concerns the administration of criminal justice;

(b)    that power is conferred on a Minister of State (the Attorney-General), rather than some statutory body (such as a state parole authority);

(c)    while s 19AL(1) requires the Attorney-General to make a decision in relation to parole, the Attorney-General has a discretion to grant or refuse parole;

(d)    s 19ALA [not s 19AM as stated in the Attorney-General’s submissions], while setting out a wide range of factors that the Attorney-General can take into account, does not make consideration of any of the factors mandatory and – significantly – does not limit the factors to which the Attorney-General can have regard;

(e)    the Crimes Act contains no process for how consideration of release on parole is to be undertaken. It is essentially a matter for the Attorney-General to determine a procedure that is reasonable and will avoid practical injustice or unfairness having regard to the circumstances of the particular case. What is required may vary having regard to what has already occurred and what is said or done during the process; and

(f)    when the Attorney-General refuses to release a federal offender on parole the Attorney-General must reconsider the decision within 12 months (there is no minimum period that must pass before the Attorney-General reconsiders a refusal).

The explanatory memorandum and second reading speech in relation to s 19ALB

7    The Attorney-General refers to the Revised Explanatory Memorandum to the Bill that became the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 (Cth), which in turn enacted s 19ALB. In particular, the Attorney-General relies upon [34]-[40], which are as follows (emphasis added to the word “presumption”):

Item 16 – After section 19ALA

[34]    The Attorney-General is responsible for making decisions regarding federal offenders who have been sentenced to a period of imprisonment of more than three years in respect of whom a non-parole period has been set.

[35]    Item 16 inserts new section 19ALB to introduce a presumption against parole for a person who has either been convicted of a terrorism offence, is subject to a control order under Part 5.3 of the Criminal Code or has made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3 of the Criminal Code.

[36]    The presumption against parole gives primacy to the first purpose of parole stated in section 19AKA of the Crimes Act—the protection of the community—by placing the onus on the terrorism-related offender to demonstrate exceptional circumstances exist to justify their release on parole.

[37]    Like the presumption against bail, the presumption against parole is a mechanism to enhance the management of the particular risks posed by terrorist offenders and other offenders who have expressed support for, or have links to, terrorist activity.

[38]    The presumption will operate to prevent terrorist offenders and other terrorism-related offenders being released on parole unless exceptional circumstances exist. This measure sets an appropriately strict test for considering whether to release such offenders on parole, given the nature of the threat posed by such offenders.

[39]    Exceptional circumstances is not defined in the provisions in order to maintain the existing discretion of the Attorney-General to deny or approve parole for all federal offenders serving a non-parole period.

[40]    In accordance with the existing parole decision making arrangements for all federal offenders, offenders subject to the presumption against parole will be afforded procedural fairness during the process of each consideration by the Attorney-General of whether or not to grant parole. The onus is on the offender during this process to show that there is a situation which is out of the ordinary or unusual in some respect to satisfy the Attorney-General that exceptional circumstances exist to justify parole.

8    The second reading speech by Senator Duniam, the Assistant Minister for Forestry and Fisheries and Assistant Minister for Regional Tourism, included the following (1 August 2019, at p 1424, again emphasis added to the word “presumption”):

The Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019 continues the important work of protecting our community. It will ensure that there is a presumption against bail and parole for all terrorists and their supporters. It will also make two changes to improve the operation of the continuing detention order (CDO) scheme for high-risk terrorist offenders.

Schedule 1 — Restrictions on bail and parole

Introducing new restrictions on the existing arrangements for bail and parole ensures there is a presumption against bail and parole for persons who have demonstrated support for, or have links to, terrorist activity, which is consistent with the agreement reached by the Council of Australian Governments (COAG).

9    A collateral issue arises as to whether it is correct to describe the s 19ALB(1) statutory prohibition on making a parole order as a “presumption” against parole. For the reasons that immediately follow, I consider that this characterisation is incorrect, and accordingly neither the Revised Explanatory Memorandum, nor the second reading speech, insofar as they pertain to s 19ALB(1), are of any assistance in determining this judicial review application.

10    In Hammoud v DPP (Cth) [2006] VSC 516, bail was refused by reason of s 15AA(1) of the Crimes Act, which comprises a similar restriction on the grant of bail for a terrorism-related offence. That section, which has not been materially altered to date, provides that:

Despite any other law of the Commonwealth, a bail authority must not grant bail to [persons charged with federal terrorism and related offences] unless the bail authority is satisfied that exceptional circumstances exist to justify bail.

11    At [1] in Hammoud it was said that s 15AA “enacts a rebuttable presumption against bail being granted to a person charged with a terrorism offence”, but that characterisation was not supported by any reasoning. It appears that this may have been based upon suggestions in the Supplementary Explanatory Memorandum to the Anti-Terrorism Bill 2004 (the Bill which resulted in s 15AA being enacted) that this provision would create a presumption against bail. That understanding was repeated in R v NK [2016] NSWSC 498 at [26], which was in turn quoted with approval in R v Naizmand [2016] NSWSC 836 at [14]. With the greatest of respect to the experienced criminal law judges in all three bail cases, and having due regard to the general urgency of bail applications, in which the description of the effect of legislation in extrinsic material is likely to be both convenient and expedient, for the reasons that follow I do not consider that characterisation is correct in relation to s 15AA, and therefore cannot properly be called in aid of understand the meaning of s 19ALB(1).

12    In Re Bolton; Ex parte Beane (1987) 162 CLR 514, the actual text of a Commonwealth statute prevailed over its apparently intended broader operation as reflected in a second reading speech. While it was found to be permissible to use this extrinsic material to aid in the interpretation of an Act pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth), the clear text of the law would ultimately be determinative: see Re Bolton at 518, 532 and 547.

13    Further, as the High Court pointed out some 22 years later in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27, even where there was a statutory impetus to interpret legislation in a way that promoted the purpose or object underlying the statute, and extrinsic material such as a second reading speech could be used to aid in this interpretation, the more determinative interpretation would be reached through the “established common law approach, which begins with the ordinary grammatical meaning of the text having regard to context and purpose” (at [5]). The High Court went on to say at [47], omitting footnotes:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

14    Re Bolton was applied, along with other authority, by a five member bench of the New South Wales Court of Criminal Appeal, in R v JS [2007] NSWCCA 272; 230 FLR 276 at [141]-[142].  In JS, an explanatory memorandum which described the introduction of the Criminal Code (Cth) as not changing the pre-existing law in a particular respect was characterised at [144] as “aspirational” and of no use for the purpose of interpretation. By a conventional process of statutory construction, the provision under consideration was found to have changed the pre-existing law in a fundamental and absurd way that proved fatal to the prosecution case.

15    Re Bolton was quoted with evident approval by the High Court in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [32]. In Saeed, the plurality observed by reference to other prior authority of the High Court:

(1)    at [31] that “[s]tatements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning”; and

(2)    at [33] that “it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction”.

16    With those principles in mind, it is necessary to give primacy to the text of s 19ALB(1), including in its context.

17    The nature of a provision like s 19ALB was considered in a comparable judicial review setting by Greenwood J in Hasim v Attorney-General (Cth) [2013] FCA 1433; 218 FCR 25 in relation to the parallel provision for release on licence in s 19AP(4):

The Attorney-General must not grant a licence under this section unless he or she is satisfied that exceptional circumstances exist which justify the grant of the licence.

18    Greenwood J observed in relation to that provision:

(1)    at [47] that it “may be that the Attorney-General reaches a relevant state of statutory satisfaction as to the subsistence of exceptional circumstances”;

(2)    at [48], that s 19AP(4) is an “express statutory prohibition” which operates to constrain the discretion; and

(3)    at [49(4)] that:

the identified statutory factor informing the exercise of the discretion is whether the decision-maker can be satisfied that exceptional circumstances justifying the grant of a licence exist because if the decision-maker is not satisfied of that factual matter, he or she must not exercise the discretion favourably to the applicant for the licence.

19    There is no need to go beyond the text of s 19ALB(1), which is clear enough. In light of Re Bolton, Saeed and JS, and assisted by Hasim, upon a plain and literal reading of the words used by Parliament, s 19ALB(1) is not correctly characterised as creating a presumption against a parole order being made. That is, quite simply, because no language of, or akin to, a presumption is present. In those circumstances, it is appropriate to disregard the references to that effect in the revised explanatory memorandum and second reading speech and instead apply the reasoning in Hasim outlined above. That is, the effect of s 19ALB(1) is, as expressly provided, to create a statutory prohibition on the making of a parole order unless the Attorney-General is satisfied that exceptional circumstances exist to justify doing so.

20    The questions raised by the grounds of review detailed below are:

(1)    whether it has been established that the Attorney-General made a vitiating error by purporting to find that no exceptional circumstances existed to his satisfaction; and

(2)    if so, whether the discretion to grant relief should be exercised in Mr Lodhi’s favour.

This second question must be considered especially in light of the independent precautionary reasons given for recommending that a parole order not be made regardless by bodies such as Corrective Services NSW (CSNSW) and the Australian Federal Police (AFP).

The meaning of “exceptional circumstances” in s 19ALB(1)

21    The leading exposition of legislative use of the phrase “exceptional circumstances” arose in Lord Bingham of Cornhill CJ’s consideration of sentencing legislation in the English Court of Appeal in R v Kelly (Edward) [2000] QB 198 at 208, where his Lordship said:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

22    That passage has been adopted in many cases in Australia involving statutes with this or similar phrases since then, including by Callinan J in Baker v The Queen [2004] HCA 45; 223 CLR 513 at [173]. While the above description arose in respect of different legislation and circumstances to the present, it is a safe and sound general approach to take in relation to that same phrase in s 19ALB and like provisions. That said, as Greenwood J observed in Hasim at [55], the content of that phase “must be determined having regard to the statutory context within which it appears”. Moreover, as Gleeson CJ observed in Baker, albeit in a judicial, rather than executive, decision-making context (footnote embedded):

There is nothing unusual about legislation that requires courts to find “special reasons” or “special circumstances” as a condition of the exercise of a power [eg, United Mexican States v Cabal [2001] HCA 60; 209 CLR 165]. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.

23    Regarding this passage, Kiefel J observed in Hatcher v Cohn [2004] FCA 1548; 139 FCR 425 at [50] that, although Gleeson CJ in Baker was addressing judicial decision-making, those observations were apposite to executive decision-making such that the words “exceptional circumstances” may “apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the words of the relevant statutory provision”.

24    There is nothing in s 19ALB, or elsewhere in the Crimes Act, to suggest any limitation on the ordinary understanding of the meaning to be given to “exceptional circumstances”. Thus, in order to be able to make a parole order in favour of Mr Lodhi, the Attorney-General had to reach a positive state of satisfaction that Mr Lodhi’s circumstances in some way had a character that was, or was akin to being, to paraphrase Lord Bingham in Kelly, out of the ordinary course, unusual, special, uncommon, or going beyond what is regularly, routinely, or normally encountered, but not necessarily unique, unprecedented, or very rare. Conversely, was there an error made by the Attorney-General in failing to be so satisfied?

The second parole recommendation and related documents

25    The Attorney-General had before him a submission from his Department, accompanied by 16 attachments. The body of the submission was not lengthy, and is better reproduced than summarised (emphasis in original):

Mr Lodhi is serving an effective term of 20 years’ imprisonment, commencing on 22 April 2004, for collecting and making a document related to a terrorist act, possessing things in connection with a terrorist act and doing an act in preparation for a terrorist act involving the destruction of infrastructure somewhere in Sydney, contrary to subsections 101.4(1), 101.5(1) and 101.6(1) of the [Criminal Code]. The Court specified a non-parole period of 15 years imprisonment, which expired on 21 April 2019. Mr Lodhi’s head sentence will expire on 21 April 2024.

Last year you signed a Refusal Notice (Attachment B) declining to grant Mr Lodhi release on parole (MS19-000358 refers). You are obliged to reconsider his release within 12 months of your previous decision.

There have been a number of changes in Mr Lodhi’s circumstances since your initial decision to refuse to release Mr Lodhi. He has completed the programme recommended by NSW Corrective Services, has been co-operating with the clinicians from the PRISM programme – the special programme for terrorist offenders, and has reached a minimum security classification. Despite these positive developments, Corrective Services NSW is still recommending you do not release Mr Lodhi on parole at this time on the basis that Mr Lodhi would be best prepared for release on parole by continuing his progression through minimum security classifications to pre-release leave and programmes to provide a well-managed transition into the community.

In addition, since your previous consideration, section 19ALB of the Crimes Act 1914 now requires that you not make a parole order in relation to a person who is serving a sentence for terrorism offences unless you are satisfied that exceptional circumstances exist to justify malting a parole order. Counsel for Mr Lodhi argues that you should find that Mr Lodhi’s good conduct, advancement through the classification system, low risk of terrorist re-offending and pro-social family support amount to exceptional circumstances that would justify his release on parole. However, those factors do not override the advice of Corrective Services NSW, and the advice from the AFP that it maintains concern about the potential threat Mr Lodhi poses to the community. Therefore, it is recommended that you find that exceptional circumstances do not exist at this time to justify Mr Lodhi’s release on parole. Detailed consideration of these issues is set out in Attachment C.

Since the submission was prepared the Department has received a letter from Mr Lodhi’s solicitor asking that you take into account the effects of the COVID-19 pandemic on prisoners. (Attachment P) The solicitor states that Mr Lodhi, like other prisoners, has no ability to practice social distancing and frequent hand washing. In addition Mr Lodhi is 50 years old which places him towards the higher risk group. He has already served his non-parole period. The solicitor draws your attention to legislation being introduced in NSW to give the Commissioner extraordinary powers to release certain inmates due to the COVID-19 virus.

However, those powers do not include the release of Commonwealth offenders and do not apply to NSW offenders convicted of terrorism offences. While the Commonwealth is considering whether some offenders should be granted early release in the current circumstances, at this time, the release of elderly or at risk minimum security prisoners is contemplated, not the release of serious offenders.

26    The attachments to the submission that are of particular relevance to the issues in this proceeding include:

(1)    a 19-page, 101-paragraph document described as a “detailed consideration of case” (Attachment C);

(2)    a parole report from CSNSW (Attachment G);

(3)    a letter, partly redacted, on AFP letterhead, from the Sydney Joint Counter-Terrorism Team (JCTT), which includes officers of the New South Wales Police Force (NSWPF) and officers of the AFP, countersigned by Detective Superintendents from the NSWPF and AFP (Attachment I);

(4)    a JCTT operational threat assessment, extensively redacted (Attachment J), part of which reproduces operational advice from a JCTT psychologist upon which Mr Lodhi relies;

(5)    an “adverse comments” letter sent to Mr Lodhi (Attachment K), together with the responses furnished by him and on his behalf (Attachments L to P).

27    Attachment C, in considering Mr Lodhi’s case, included the following parts that contain passages that he places particular reliance upon in his submissions in this Court:

(1)    a section addressing “exceptional circumstances”:

[81]    Exceptional circumstances is not defined in section 19ALB.

[82]    It is useful to consider what might constitute exceptional circumstances. Possible factors that, taken together, may establish exceptional circumstances include where an offender:

•    has taken responsibility for their offending.

•    has expressed remorse.

•    has participated in or is continuing to participate in relevant programmes.

•    has been assessed as being at low risk of re-offending.

•    has behaved well in prison, with no adverse incidents.

•    has attained a minimum security classification.

•    is in a mainstream minimum security prison.

•    has participated in external leave with no adverse reports.

•    has strong and pro-social family and/or community support.

•    is recommended for release on parole by Corrective Services.

[83]    An additional factor to be taken into consideration may include whether an offender’s release to parole is opposed by the AFP.

[84]    Counsel engaged by Mr Lodhi submits that Mr Lodhi’s good behaviour in custody, progression through the classification system and participation in PRISM show that Mr Lodhi has been rehabilitated and is no longer a threat to the Australian community. Those factors and his family support show that Mr Lodhi is ready for reintegration into the community. He argues that the protection of the community is best served by Mr Lodhi having a lengthy period of parole supervision to enable him to adjust to life in the community. Counsel invites you to find that all of the positive factors in Mr Lodhi’s case amount to exceptional circumstances and that therefore, he should be released from prison on parole.

[85]    Additionally, the report from the AFP notes that there is no new information to judge the risk Mr Lodhi’s release may pose to the community. It is important to note that the AFP does not have any current information regarding whether Mr Lodhi presents a risk to the community if he is released on parole at this time. However, the threshold for meeting the criteria for ‘exceptional circumstances’ should be considered to be relatively high, given the dangers to the community that terrorist offenders and acts of terrorism present. It is reasonable to take the position that the AFP should support release on parole of an offender, or at the very least not oppose parole, in support of an offender’s claim of exceptional circumstances to justify release on parole.

[86]    Mr Lodhi has been progressing through the prison classification system, and he appears to have strong pro-social family support. He has behaved well in prison, and has been actively participating in PRISM. He is considered to be a low risk of reoffending, and he appears to have acknowledged the harm his offending caused to the community.

[87]    However, Mr Lodhi is yet to progress to external leave and he has not been recommended for release by Corrective Services NSW at this time.

[88]    As a result, it is reasonable for you to find that exceptional circumstances have not been established in Mr Lodhi’s case.

(2)    a section that dealt with other matters for consideration that had changed and not changed since the 2019 decision not to make a parole order:

[89]    Several of the reasons for your decision to refuse Mr Lodhi release on parole in 2019 no longer apply. As recommended by Corrective Services NSW, Mr Lodhi has undertaken the EQUIPS Foundation programme. The reports on Mr Lodhi’s participation in the programme are positive. He is not required to undertake any of the other EQUIPS programmes.

[90]    Similarly the reasons relating to Mr Lodhi’s participation in the PRISM programme are no longer relevant. Previously the PRISM clinicians regarded Mr Lodhi’s engagement with PRISM as superficial because of his unwillingness to disclose personal information or accept responsibility for his offending. They are now pleased with Mr Lodhi’s level of engagement in the programme. He has been willing to admit his offence, has expressed remorse for his actions and is grateful that he was prevented from committing any act of violence. Mr Lodhi has been able to discuss factors that led to his offending, has developed a PRISM Intervention plan and is working with the PRISM clinicians to develop post-release plans. PRISM staff are also working with Mr Lodhi’s wife to prepare for his reintegration into the community.

[91]    Mr Lodhi is still assessed as being at low risk of either terrorist or general re-offending. While expressing general concern about a potential threat that Mr Lodhi may pose, the JCTT states that there is no new information to suggest that Mr Lodhi would pose a ‘significant threat to the community if he was released on parole.’

[92]    The outstanding reason from those set out in the 2019 Refusal Notice remains the fact that Mr Lodhi has not yet been able to progress through the classification system to a point where he is eligible for pre-release leave. Corrective Services NSW considers that given the length of time Mr Lodhi has been in custody to ensure that he is well prepared for release, it would be prudent to ensure that he has a graduated progression through minimum classifications and pre-release leave before he is released.

[93]    A number of serious terrorist offenders in New South Wales have made no progress in the classification system since their imprisonment and remain as maximum security Extreme High Risk and National Security Inmates in the High Risk Management Unit at Goulburn. In contrast, since Mr Lodhi entered custody in April 2004, he has made slow but steady progress through the prison classification system. After serving the initial nine years of his imprisonment in the High Risk Management Unit, Mr Lodhi has been in mainstream custody since June 2013. He has now reached a minimum security classification without being regressed in classification at any time. This is a significant achievement.

[94]    However, Mr Lodhi only attained his initial minimum security classification in December 2019. He has been in a minimum security environment since then. A period of between three and four months is a very short time viewed in the context of Mr Lodhi’s 15 year non-parole period, now almost 16 years in custody. A C1 classification does not entitle a prisoner to pre-release leave. Mr Lodhi would need to reach a C3 classification first. Mr Lodhi has applied for an off-complex permit which would enable him to undertake supervised work outside the prison walls. This is a step towards work release where prisoners remain in custody overnight but go out to work in the community during the day in paid employment. Such prisoners in the final stages of their non-parole periods are also eligible for day leave and weekend leave with their families.

[95]    Mr Lodhi’s Counsel and the psychological report argue that such leave is not a necessary prerequisite to parole. It is true that many prisoners are released on parole without having had the benefit of pre-release leave. That may be because they are unable to find work or because they do not have family members who can be their sponsors for weekend leave. Such leave is less important when prisoners have short sentences and have only been out of the community for a year or two.

[96]    Mr Lodhi has been out of the community for almost 16 years. Much of that time was spent in very restrictive conditions meaning that Mr Lodhi was not able to keep up with changes in the outside world. Even within Mr Lodhi’s family, many changes will have occurred over that time. Mr Lodhi himself has not had to cope with the stresses of normal family life. Giving Mr Lodhi the opportunity to participate in such programmes would be of benefit to him in giving him a gradual transition into the community and family life. It would also enable Corrective Services to see how well he complies with the conditions of pre-release leave which provides an indication of how compliant a prisoner will be with parole conditions.

[97]    Therefore, this reason still stands as a reason for refusing to release Mr Lodhi on parole at this time.

(3)    a recommendation that the Attorney-General find that exceptional circumstances did not exist at that time to justify release on parole:

[98]    Therefore taking all relevant factors into account in Mr Lodhi’s case, it is recommended that you find that exceptional circumstances do not exist at this time that would justify Mr Lodhi’s release on parole. If you agree with the recommendation, the Commonwealth Parole Office will write to the Commissioner for Corrective Services asking that, if appropriate, Mr Lodhi be given the opportunity to participate in external leave.

28    Parts of the parole report and JCTT operational threat assessment are referred to in more detail below.

The second parole decision

29    The notice from the Attorney-General to Mr Lodhi, required under s 19AL, included the following (omitting formal parts):

Federal offenders are subject to sentencing and management provisions set out in Part IB of the Crimes Act. In making a parole determination, the decision-maker may have regard to the matters that are known to the decision-maker and relevant to the decision. This can include comments made by the sentencing court; whether a person has satisfactorily completed programs ordered by a court or recommended by corrective services; parole reports on the offender’s conduct while serving his or her sentence; post-release plans and the risk to the community of releasing an offender on parole. The above list does not limit the matters that can be taken into account by the decision-maker when making a decision on whether to grant or refuse parole.

Despite any law of the Commonwealth, under section 19ALB of the Crimes Act, I must not make a parole order in relation to a person convicted of terrorist offences unless I am satisfied that exceptional circumstances exist to justify making a parole order.

Under paragraph 19AL(2)(a) of the Crimes Act, I am required to give you reasons for my decision to refuse to release you. This order for refusal of parole has been made for the following reasons:

1.    I have considered the reasons put forward by you and your legal representatives, but I do not consider that you have established exceptional circumstances that would justify your release on parole at this time.

2.    Given the length of time that you have served in custody, I agree with the recommendation from Corrective Services NSW that you not be granted parole at this time and that you would be best prepared for release on parole by continuing your progression through minimum security classifications to provide a well-managed transition into the community and enable Corrective Services NSW to assess your compliance.

3.    Given the serious nature of your offending, the Australian Federal Police remains concerned about the potential threat you may pose to community safety if you are released on parole at this time.

30    Thus, in making the decision to refuse to make a parole order, as the more detailed consideration below explains, it may be seen that the Attorney-General:

(1)    accepted the recommendation from his Department that he find that exceptional circumstances did not exist at that time to justify Mr Lodhi’s release on parole, in substance finding that exercise of the power to make a parole order was not authorised because of the prohibition in s 19ALB(1);

(2)    accepted a recommendation from CSNSW that Mr Lodhi not be granted parole at that time, for reasons which entailed progression to eligibility for pre-release leave, which was in substance a basis for refusal of parole on that discretionary ground, as well as forming part of the reasons for not being satisfied as to exceptional circumstances; and

(3)    recorded that the AFP had concerns about a potential threat to the community if Mr Lodhi was released on parole at that time, which was in substance a further basis for refusal of parole on a discretionary ground related to the perceived need for pre-release leave, as well as also forming part of the reasons for not being satisfied as to exceptional circumstances.

31    The terms of the covering submission to the Attorney-General, reproduced above, indicate that the second and third reasons were not overridden by other factors pointing to the existence of exceptional circumstances raised by counsel for Mr Lodhi in a submission to the Attorney-General. These factors can be summarised as being good conduct, advancement through the prison classification system, low risk of terrorist re-offending and prosocial family support.

The grounds of review

32    The final version of the originating application pleads the following grounds of review:

[1]    … The Attorney-General’s decision that the Applicant had not established ‘exceptional circumstances’ was an improper exercise of the power conferred by s. 19AL of the Crimes Act 1914 (Cth) [s. 5(1)(e)], in that the exercise of the power was so unreasonable that no reasonable person could have so [exercised] the power (s. 5(2)(g)), or the decision was otherwise legally unreasonable.

[2]    The Attorney-General’s decision adopting the ‘recommendation from Corrective Services NSW’ that the Applicant should not be granted release to parole until he ‘continued [his] progression through minimum security classifications’ was not based on evidence or material that justified the decision [s. 5(1)(h)], specifically:

(a)    [CSNSW’s] recommendation was made at a time when the Applicant was a medium security classification inmate [18 November 2019];

(b)    The Attorney-General’s decision was made at a time when the Applicant had

a. progressed to a minimum security classification inmate, and

b. had been a minimum security classification inmate for a period of 4 months; [11 December 2019 – 14 April 2020]

or the decision was otherwise legally unreasonable.

[3]    … The Attorney-General’s decision not to make a parole order on the basis of ‘the Australian Federal Police’s concerns as to the serious nature of the offending and the potential threat the Applicant may pose to community safety’ was an improper exercise of the power conferred by s. 19AL of the Crimes Act 1914 (Cth) [s. 5(1)(e)], in that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power [s. 5(2)(g)] or the decision was otherwise legally unreasonable.

[4]    … The Attorney-General failed to give adequate reasons, and so failed to observe procedures that were required by law to be observed in connection with the making of the decision [s.5(1)(b)].

Applicable principles for review grounds 1 to 3: Wednesbury unreasonableness and legal unreasonableness

33    It is convenient first to consider what is required to make good the pleaded review grounds of unreasonableness for review grounds 1, 2 and 3, being:

(1)    the common law concept of a decision being made that is so unreasonable that no reasonable person could have made it, commonly known as Wednesbury unreasonableness, following Associate Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 234; and

(2)    the more recently developed concept of legal unreasonableness, encompassing and going beyond Wednesbury unreasonableness.

34    An important caveat to the scope of both Wednesbury unreasonableness and legal unreasonableness, for which reference to the latter alone will generally suffice, is that neither can be used as a device for this Court to review the merits of the Attorney-General’s decision. The challenge must be strictly confined to the legality of the process by which the impugned decision was made. As Brennan J observed in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

35    Legal unreasonableness remains constrained because, as Gageler J observed in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, after commenting upon Wednesbury, upon Kruger v Commonwealth (1997) 190 CLR 1 at 36, and upon Quin (footnotes omitted or embedded; emphasis in original):

[90]    Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject matter, scope and purposes of the statute.

[91]    The implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made [Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290]:

“Just as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.”

[92]    Like procedural fairness, to which it is closely linked, reasonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context of that power or duty. The common law principle of construction by reference to which reasonableness is implied does not exclude implication of a different or more particular condition of an exercise of a particular statutory discretionary power or of the performance of a particular statutory duty. The principle rather establishes a condition of reasonableness as a default position. Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed.

36    The plurality in Li observed earlier:

(1)    At [65] that a decision according to law is one that is “legal and regular, not arbitrary, vague and fanciful”, but at [66] (footnots omitted):

This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. …

(2)    At [76]:

As to the inferences that may be drawn by an appellate court, it was said in House v The King [(1936) 55 CLR 499 at 505] that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

The characterisation of a decision as lacking, or not lacking, an evident and intelligible justification has been one of the judicial techniques for avoiding merits review.

37    In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, the Full Court (Allsop CJ, Robertson and Mortimer JJ) said at [44]:

In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the Court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]):

“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383-384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision- making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47].

38    Review grounds 1, 2 and 3 are expressed to be confined to an asserted error of the Attorney-General in not being satisfied that exceptional circumstances existed so as to allow a parole order to be made. The requirement of that state of mind being reached before the power can be exercised precludes the concept of legal unreasonableness being applied to assess the final outcome of the refusal of parole independently of that requirement. That is, even if legal unreasonableness is demonstrated in relation to an aspect of whether or not to make a parole order on the merits, if this does not in some way vitiate the decision that exceptional circumstances do not exist, that defect in reasoning will not invalidate the exercise of the power. Thus it is not enough for Mr Lodhi to demonstrate that a reason given for not making a favourable parole decision is legally unreasonable, if that legal unreasonableness does not also infect an adverse finding of exceptional circumstances.

39    Moreover, because Mr Lodhi’s challenge focuses on the outcome of the Attorney-General’s exercise of power, in the context that factors relied upon supported a different conclusion being reached, this raises the question of the decisional freedom available to the Attorney-General in relation to reaching, or not reaching, that state of satisfaction. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1, Allsop CJ, Griffiths and Wigney JJ considered legal unreasonableness as an enlargement of Wednesbury unreasonableness. In that case, Mr Stretton had migrated to Australia as a child and lived here for over 50 years without becoming an Australian citizen. His visa was cancelled on character grounds because he had sexually abused his granddaughter. The primary judge’s decision to overturn that cancellation decision was reversed upon the primary basis that the decision was not unreasonable in the legal sense.

40    As Allsop CJ observed in Stretton at [17], while others exercising the visa cancellation power may have been willing to take the low risk of Mr Stretton reoffending, this was not sufficient for the decision to be characterised as legally unreasonable. Rather, the Chief Justice reasoned, the visa cancellation power called for an evaluative balancing of the low unquantifiable risk of reoffending against the immediate hardship to Mr Stretton if he was removed from Australia, which did not lend itself to a ready answer by some calculus. The primary judge had not been entitled to imbue the task of judicial review with his Honour’s personal view of what was reasonable, nor in doing so to decide what was “necessary” for the purpose to be served by the impugned decision in the absence of that being part of the statutory power in question, even if such a single purpose could readily be isolated. Thus, the Chief Justice reasoned as part of [21]:

That an assessment whether the decision-maker’s conclusion was legally unreasonable may involve some consideration of disproportionality does not authorise the Court to decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable. The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion.

See also Stretton per Griffiths J at [75] and Wigney J at [90].

41    In Minister for Immigration v Eden [2016] FCAFC 28; 240 FCR 158, the Full Court (again, Allsop CJ, Griffiths and Wigney JJ, but with a single judgment of the Court) was again considering a visa cancellation decision and the question of legal unreasonableness, and again reversed a primary judge’s decision to quash that decision. In summarising the principles described in Li, Singh and Stretton, their Honours observed on the topic of decisional freedom in reaching a particular result, that, provided a decision challenged as to the result falls within the “range of possible lawful outcomes” it will not be legally unreasonable: [62]. The evaluative task on judicial review concerns the nature and quality of the decision in the context of the subject matter, scope and purpose of the power that has been exercised, informed by the common principles and values concerning reasonableness of decision-making, and ordinarily paying close attention to the evidence or other material that was before the decision-maker: [63].

42    If the reasons given provide an evident and intelligible justification it is unlikely the decision will be legally unreasonable, although that does not necessarily mean that the identification of specific error is required: Eden at [64], citing Singh at [47]. However, if the decision or its justification are outweighed by findings that the decision was outside the bounds of legal reasonableness or the range of possible lawful outcomes, legal unreasonableness may still be made out: Eden at [64], citing Li at [76] and Stretton at [13].

43    The above principles mean that the Attorney-General’s role was to make the parole decision, and the role of this Court is to ensure that that was carried out within the proper exercise of the power bestowed, but not to second-guess the ultimate decision. A judge’s personal view of the merits of the decision is irrelevant. Concepts such as fairness and reasonableness have a more confined meaning and operation than used in more general settings, such as making findings on the merits of a particular case, or asserting what those findings should be. It is not part of this Court’s function even to consider whether parole should, or should not, have been granted to Mr Lodhi.

44    It is also important to keep steadily in mind that the determination of whether or not a decision is vitiated by legal unreasonableness does not entail the mere application of definitions derived from particular phrases deployed in the decisions referred to above, or in other decisions, even if some of those expressions may be useful to encapsulate the conclusion reached by a proper process of judicial review: Eden at [65]. Words and phrases such as “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, “obviously disproportionate” and “plainly unjust” are nothing more or less than conclusions reached from a consideration of whether the reasoning or outcome falls outside what is legally permitted, not a covert means of conducting impermissible merits review by applying the Court’s subjective view on what has taken place.

Review ground 1 – The decision that Mr Lodhi had not established ‘exceptional circumstances’ was an improper exercise of the power conferred by s 19AL, in that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power, or was otherwise legally unreasonable.

45    The Attorney-General stated that he had considered the reasons advanced by Mr Lodhi and by his legal representatives, but did not consider that he had established exceptional circumstances that would justify his release on parole at that time. As noted above, that first reason did not stand alone, but is to be read in the context of the second and third reasons. Mr Lodhi characterises the conclusion in the first reason given as legally unreasonable because, it is asserted:

(1)    There is an absence of an “intelligible justification” for finding that the exceptional circumstances “test” was not overcome, citing Singh at [47] and Li at [76]. Rather, the reasons given are a conclusive statement, as opposed to a process of reasoning, and have the character of being arbitrary because it is not possible to glean either the reasoning process or how the decision was arrived at, citing Eden at [64] and Stretton at [11].

(2)    The decision was informed by “irrational and arbitrary reasoning” contained in the covering departmental submission reproduced above. Counsel for Mr Lodhi took particular issue with the fact that the exceptional circumstances issues raised in their submission did not override the advice of CSNSW and the AFP; that the comments in Attachment C at [83] and [85] suggested that the evaluation of exceptional circumstances could take into account whether parole was opposed by the AFP; and that the AFP should either support or at least not oppose that taking place. While he accepted that there was nothing inherently irrational in giving consideration to the views of relevant agencies such as the AFP and CSNSW, the approach taken gave the ultimate determination to those agencies. This was evident given the similarity between the language of the recommendations and the reasons given, which was arbitrary, inflexible, beyond the scope of the power in s 19AL, and thereby legally unreasonable. This submission was maintained in reply written submissions and in oral submissions at the hearing.

(3)    In absence of much content in the reasons, the focus needed to be on the outcome, relying on Singh at [45]. That outcome had the following characteristics, which were sought to be measured by reference to whether Mr Lodhi continued to pose a risk to the Australian public, asserting that there was “no basis” to conclude that he posed any actual or significant risk, as opposed to potential risk, to the community, referring in some detail to the following:

(a)    the reference in the JCTT assessment, and by the AFP, to no new information of a significant risk, while retaining a concern over him posing only a potential threat;

(b)    since consenting to participate in the CSNSW program called the “Proacative Integrated Support Model” (PRISM) on 12 July 2016, and thereafter commencing that program on 1 August 2016 (at which time he initially was guarded in his responses and continued to assert his innocence), Mr Lodhi has markedly changed his stance and repeatedly accepted responsibility for his offending and remorse for his conduct, as reflected in a 20 November 2019 PRISM progress report, referred to in Attachment C. He has now “disavowed extremist religious beliefs and religiously motivated violence and now holds beliefs consistent with mainstream values”, attributing this to his participation in PRISM. The substance of this aspect of his case is that the original motivating factors in his offending are no longer present. This contrasts with his attitude at the time of his trial, sentence and appeals when he denied his guilt, and with the sentence finding that his intentions were “of a deeply fanatical, but sincerely held, religious and world view based on his faith and his attitude to the extreme dictates of fundamentalist Islamic propositions”. The change is described as a complete and exceptional ideological rehabilitation, which is unique and compelling, setting him apart from other offenders in comparable situations, and meeting the description of exceptional circumstances;

(c)    additionally, by the time of the second decision to refuse parole, Mr Lodhi favourably met most of the factors able to be taken into account under s 19ALA(1), referring to:

(i)    his positive conduct in prison, with no substance abuse, and no prison charges since minor matters in 2006 and 2009;

(ii)    his employment in a trusted position as a clerk, requiring intelligence clearance;

(iii)    his significant achievement compared to other similar offenders in moving into mainstream custody and progressing to a C-1 minimum security classification;

(iv)    his satisfactory completion of all available programs, including active participation in PRISM and exemplary participation in the EQUIPS Foundation program;

(v)    the absence of any single victim in his offending;

(vi)    the fact that while his offending was serious, he now lacks the ideological motivation to reoffend;

(vii)    in substance, that deterrence in sentencing has worked;

(viii)    that he has no prior criminal record;

(ix)    the fact that while release was not recommended by CSNSW, four factors favouring release were identified, and release management processes were detailed;

(x)    the fact that material before the Attorney-General supported a finding that releasing him would assist him to adjust to lawful community life;

(xi)    the expiry of his head sentence on 21 April 2024, which leaves ample time for him to adjust to ordinary lawful community life on parole, which is acknowledged to be better than there being no period on parole; and

(xii)    the fact that he met eight of the 10 matters identified in Attachment C that supported a finding of exceptional circumstances.

46    Mr Lodhi’s submissions in chief concluded by suggesting that if his circumstances were not sufficient to meet the threshold of exceptional circumstances, it is difficult to imagine what would, such that no reasonable person would have found otherwise.

47    The oral submissions made at the hearing of the application by Mr Lodhi’s counsel amplified the written submissions by directing the Court’s attention to both the case law and aspects of the material before the Attorney-General to advance the case for a finding of legal unreasonableness. In particular, the Court’s attention was drawn to the following:

(1)    A prior report by an AFP counter-terrorism psychologist dated 16 January 2019 had opined that, based on research around denial with sex offenders, it was highly likely that Mr Lodhi would continue to maintain his innocence. Conversely, the psychologist regarded it as unlikely that he would face the reality of admitting guilt to family and supporters after so many years, noting that any link between denial and risk was unknown within this offender group. As counsel submits orally:

… the expert opinion of this psychologist attached to the counter terrorism unit, has with respect been proven to be incorrect with respect to likelihoods, and that’s what makes Mr Lodhi unusual, uncommon and exceptional. He has now admitted his fault. He no longer maintains his innocence. He has, in fact, been able to face the pathway that when he moved to offending and the erroneous path he took, he has disavowed his violent extremist ideology.

(2)    Mr Lodhi’s progress was also quite unlike that of a number of serious terrorist offenders. Counsel highlights the significant progress summarised at [93] of Attachment C, characterising this as unusual and exceptional. Counsel submits that there was no evidence to support a finding he was not capable of making a seamless transition into the community as at April 2020.

(3)    The handwritten letter from Mr Lodhi in response to the “adverse comments” letter (this exchange jointly listed at item 5 of [26] above) highlighted the extent of, and reasons for, his complete departure from his prior ideology and incorrect understanding of what his religion required, stated that he was “completely wrong”, and expressed remorse for what he had done, including a view that Islam dictated not harming anyone nor departing from the laws of the land.

(4)    PRISM reports before the Attorney-General covering progress in the three-plus years from when he commenced on 1 August 2016 until the report of 20 November 2019 demonstrated the extent of progress that had been made. Mr Lodhi was by that time at the “action” stage, being the stage at which there has been specific overt modification in lifestyle over the past six months. (I pause to note that the report indicates this leads to the “maintenance” stage, during which a person is working to prevent reverting to old behaviours.) Also, the report records that Mr Lodhi’s improvement in religious knowledge and practice were such that they presented as being consistent with mainstream human values and conducive to “pro-social community integration”. It is submitted orally that “a reasonable decision made will place considerable weight upon the opinions of any author to a PRISM report who has been working with Mr Lodhi over a period of three years”. This was said to be supported by his change of appearance, with Mr Lodhi now being clean shaven, and by neither the PRISM religious support officer or religious co-ordinator noting any current theological practices that were problematic in a May 2019 report, summarised in Attachment C. Further, Mr Lodhi was recorded as condemning the Islamic State’s violent action, and saying that it had caused tremendous damage to Islam.

(5)    The attribution of the fundamental and exceptional shift in Mr Lodhi’s thinking to rehabilitation while serving his sentence, including especially his participation in the PRISM program, and in part his completion of the EQUIPS program in May 2019.

(6)    The four most compelling factors in the written submissions, upon which particular emphasis is placed. These are, Mr Lodhi’s status as a model prisoner for over 10 years; his exemplary participation and conduct in the EQUIPS program; his employment as a clerk for over two and a half years, being a highly trusted position with significant responsibilities; and, his being found by a psychologist’s review on the papers to have a low or even very low risk of reoffending, which would be enhanced by re-establishing a family life and professional career as an architect.

(7)    The characterisation of failure to give all the factors identified sufficient weight as an unreasonable or plainly unjust outcome, non-compliant with “criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice”: Li per French CJ at [14], or with the “rules of reason and justice” per Hayne, Kiefel and Bell JJ at [65] and [76]. Reliance is also placed on the conclusion reached by Gageler J in Li at [124] that “[n]o reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment”, and the observation of Allsop CJ in Stretton at [9] about the proper exercise of power entailing a rejection of unfairness, unreasonableness, arbitrariness, and that decisions should instead be informed by equality, humanity and dignity in the evaluative process.

48    The final part of the oral submissions for Mr Lodhi addresses the point taken in Attachment C at [92], that the outstanding reason for refusal of parole in the first parole decision made in April 2019 was that Mr Lodhi had not be able to progress through the prison classification system to the point where he was eligible for pre-release leave. Counsel highlighted the view of CSNSW that, given the length of time Mr Lodhi has been imprisoned, it would be prudent to ensure that this takes place prior to his release. Mr Lodhi submits, correctly in my view, that pre-release leave, or a progression to a C-3 classification, was assessed over and above positive findings with respect to each of the 13 considerations set out in s 19ALA(1) that may be taken into account, and over and above all of the extensive rehabilitation that had taken place, especially the four key factors outlined above. However, Mr Lodhi takes this a step further by asserting that this suggests that the Attorney-General considered that all risk had to be eliminated, which went beyond the purposes of parole set out in s 19AKA. As will be seen, I do not accept that this is the correct characterisation of the Attorney-General’s approach. Rather, the concern was to do with assessment and management of risk so as to be reasonably assured that this was at an acceptable level, rather than the elimination of risk altogether.

49    The Attorney-General’s written and oral submissions did not take issue with the information that was before him which was capable of supporting a conclusion that exceptional circumstances existed. Instead, the Attorney-General characterised Mr Lodhi’s argument as placing labels associated with legal unreasonableness on parts of the reasons and materials, which did no more than demonstrate dissatisfaction with the adverse decision in that regard. This is either parallel to, or an implicit reference to, what Allsop CJ said in Stretton at [10] about the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power and of unnecessary and inappropriate categorisation. In making this submission the Attorney-General points out that Li at [63]-[76] should be read as a whole, as Allsop CJ suggested was necessary.

50    The Attorney-General submits that the arguments advanced on behalf of Mr Lodhi can be addressed by having regard to other factors that supported the decision that was made, referring in particular to Attachment C at [84] to [88], [93] to [94] and [96], which are reproduced at [27] above. In substance, the Attorney-General’s case is that Mr Lodhi’s arguments go no further than demonstrating that a different finding could have been made about exceptional circumstances, and fall well short of establishing that the contrary conclusion reached went beyond the range of outcomes that were reasonably open on the material. In support of this position, the Attorney-General points out that:

(1)    the final recommendation advised him that if he decided to refuse to release Mr Lodhi on parole, the Commonwealth Parole Office would ask that Mr Lodhi be given an opportunity to participate in pre-release leave (being possible once his minimum security classification progresses further from C-1 to C-3);

(2)    the factors in s 19ALA(1) that may be taken into account in making a parole decision are non-exhaustive, and s 19ALB(1) requires consideration beyond those factors going to the question of exceptional circumstances, as addressed in Attachment C at [82]-[88] (reproduced above at [27]) – Mr Lodhi disputes this interpretation, but I consider this to be clearly correct;

(3)    the fact of Mr Lodhi meeting most of the s 19ALA(1) factors may be taken into account, but does not have to be, such that this circumstance does not and cannot be used to establish legal unreasonableness;

(4)    there is no error, let alone jurisdictional error of the kind alleged, in having regard to the views of the relevant agencies, even to the point of deciding not to make the necessary finding and grant parole without their support, especially given the firsthand knowledge that CSNSW has of Mr Lodhi’s progress in custody and the JCTT’s access to relevant information about terrorism.

51    The Attorney-General’s submissions go a long way to meeting Mr Lodhi’s arguments. However, beyond those arguments, it readily appears that a significant reason why the Attorney-General was not satisfied that exceptional circumstances existed in this case was the absence of any opportunity to test the success of the progress that Mr Lodhi had made in the community, and thereby the practical effect of his apparent change of beliefs. Mr Lodhi expressly argues that this approach was inherently legally unreasonable. However, I am unable to accept that such conventional, and indeed logical, reasoning concerning parole can properly be seen to have that character. In my view it was reasonably open to the Attorney-General, and to those providing him with advice and recommendations, to reason that someone who has been in prison for a decade and a half is likely to encounter difficulties in readapting to life in the community, which may impede a successful transition from one to the other. Even absent the impediment of needing satisfaction of the existence of exceptional circumstances in s 19ALB(1), I cannot see how the optional factors in s 19ALA(1) preclude, as a matter of law or reason, having regard to a range of considerations which may in some way address such a transition, including, as in this case, arrangements for temporary release of some kind. It is not for this Court to make any merits assessment of how that is carried out, or as to the correctness or otherwise of the conclusions reached.

52    Mr Lodhi had not yet progressed to the C-3 minimum security classification necessary to enable pre-release leave to take place. While that is not spelt out in the first reason given, stating that Mr Lodhi had not established exceptional circumstances that would justify his release on parole, it is plainly enough referenced in the second reason, referring to continuing progression through minimum security classifications to provide a well-managed transition into the community and to enable an assessment of compliance. That is, there was a clear concern about the risk of a lapse in Mr Lodhi’s reform and rehabilitation progress, not necessarily confined to terrorism offending. As noted at [5(1)] above, the express purposes of parole in s 19AKA are protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community. Parole is not only directed to the recurrence of offences that led to imprisonment, even if that is clearly a dominant consideration for terrorism offences giving rise to the need for exceptional circumstances, but also to other aspects of a successful transition back into the community, including, but not restricted to, lesser forms of offending.

53    Reading the Attorney-General’s reasons beneficially and as a whole, as required, it is reasonable to infer, as Mr Lodhi not only does not accept, but challenges, that the Attorney-General considered the absence of exposure to the community one of the shortcomings in the factors otherwise indicating exceptional progress pointing to the existence of exceptional circumstances. That view was further reinforced by the Attorney-General’s third, and also related, reason reflecting the AFP concern about the potential threat Mr Lodhi may pose to community safety. This was implicitly a concern that may be met by successful pre-release leave which was to be actively pursued by the Commonwealth Parole Office.

54    Even though the points made on behalf of Mr Lodhi, considered in some detail above, constituted compelling arguments in favour of a contrary conclusion, and may well have found traction in a merits review forum, they do not establish legal unreasonableness. They do not establish that the Attorney-General’s decision is outside the range of permissible outcomes, particularly once the expressly considered factor of testing Mr Lodhi in the community is taken into account. The Attorney-General’s stance is not a legally unreasonable one to take in relation to parole for any serious offence, let alone for terrorism offences with the high and very subjective hurdle of exceptional circumstances. Nor is this a conclusion that was so unreasonable that no reasonable person could have reached it.

55    It follows that review ground 1 must fail.

Review ground 2 – The decision adopting the ‘recommendation from Corrective Services NSW’ that Mr Lodhi should not be granted release to parole until he ‘continued [his] progression through minimum security classifications’ was not based on evidence or material that justified the decision, or was otherwise legally unreasonable.

56    This ground of review focuses on an aspect of what has already been considered in some detail above, namely the impediment to the grant of parole found to be posed by Mr Lodhi’s minimum security classification progressing short of C-3 so as to permit day release. It turns on the parole report from CSNSW, Attachment G, and the use to which it was put in the recommendations made to the Attorney-General. It is convenient to reproduce the concluding part of that report:

Custodial case management if parole is refused

Should Mr Lodhi not be granted parole at this time, it is recommended that he progress through the classification system with continued engagement in addressing his current offences with the intervention of PRISM. Furthermore Mr Lodhi would benefit from maintaining his custodial employment and following Correctional Centre Routine.

Assessment and Recommendation

Key reasons for release to parole

•    Mr Lodhi has approved post-release accommodation.

•    Mr Lodhi has completed EQUIPS Foundations.

•    Mr Lodhi’s custodial behaviour remains acceptable, and has maintained employment.

•    Mr Lodhi’s willingness to engage in the agreed PRISM Intervention Plan, with a focus on insight, identity, associations, religious knowledge and re-offending.

Key reasons against release

•    Mr Lodhi has been incarcerated for an extensive period of time, in order to successfully transition and reintegrate into the community, he would benefit in progression through the classification system.

Overall Assessment

Since the submission of the [Full Pre-Release Report] in 2018 Mr Lodhi has been able to progress in addressing his offence through interventions with PRISM. Mr Lodhi completed EQUIPS Foundations and presented willingness to complete any program identified to address his offending.

Mr Lodhi’s compliance in custody would be described as a compliant inmate with a strong custodial work ethic.

As Mr Lodhi has been incarcerated for an extensive period of time, in order to successfully transition and reintegrate into the community, he would benefit in progression through the classification system.

Recommendation

Community Corrections does not recommend that a parole order is made for Mr Lodhi.

57    That recommendation was supported by the following comments after the signature of its author, by:

(1)    the parole report writer’s unit leader:

It is encouraging that Mr Lodhi has progressed with his intervention with PRISM and appears to be acknowledging the seriousness of his offence.

Mr Lodhi has successfully undertaken the EQUIPS Foundations program and continues to comply with Correctional Centre routine including employment.

Due to the length of time Mr Lodhi has spent in custody he would benefit from progressing through the classification system. This will allow Mr Lodhi to be housed in a minimum security environment, which in time will allow him to access programs to ready him for his release to the community.

(2)    the manager of the corrections office at the prison:

It is positive to see Mr Lodhi has made positive gains since his previous review.

Mr Lodhi as outlined in the body of the report has been incarcerated for an extended period of time. In light of this it would be prudent to ensure he is well prepared for release via a graduated process and progression through minimum classifications and pre-release programs.

(3)    the acting Director of Community Corrections:

The recommendation not to release until Mr Lodhi has participated in pre-release leave is supported.

58    The departmental submission at Attachment C said of the parole report, recommendation and supporting comments:

[28]    Mr Lodhi has made positive progress since he was last considered for release on parole. The parole report puts forward the following factors in support of Mr Lodhi’s release on parole: his custodial behaviour is acceptable and he has completed EQUIPS Foundation, as previously recommended; he has maintained prison employment; he has been willingly engaging in his agreed PRISM intervention plan with a focus on gaining insight into his identity, associations, religious knowledge and prevention of re-offending. He has approved post-release accommodation.

[29]    The main factor leading to the report’s recommendation against Mr Lodhi’s release on parole is that he has been in custody for a long time and would benefit from being able to progress through the classification system to enable him to transition into the community. It would be of benefit to Mr Lodhi to be able to transfer to a minimum security environment which would allow him to access programmes to prepare him for release into the community such as pre-release leave and external employment. There is no obvious barrier to his progression through the classification system.

…

[97]    Therefore, this reason still stands as a reason for refusing to release Mr Lodhi on parole at this time.

59    Mr Lodhi also places reliance on the ultimate recommendation based on this issue in Attachment C at [97]. This should be read in the context of [92]-[98] to be clear about what the attachment refers to as the reason for recommending against granting parole. It is convenient to reproduce again a portion of the departmental covering submission, immediately prior to addressing the issue of exceptional circumstances (emphasis added):

There have been a number of changes in Mr Lodhi’s circumstances since your initial decision to refuse to release Mr Lodhi. He has completed the programme recommended by NSW Corrective Services, has been co-operating with the clinicians from the PRISM programme – the special programme for terrorist offenders, and has reached a minimum security classification. Despite these positive developments, Corrective Services NSW is still recommending you do not release Mr Lodhi on parole at this time on the basis that Mr Lodhi would be best prepared for release on parole by continuing his progression through minimum security classifications to pre-release leave and programmes to provide a well-managed transition into the community.

60    It is this recommendation against parole, and the reasons for making it, that formed the basis for the Attorney-General’s second reason for refusing to make a parole order.

61    Mr Lodhi submits that legal unreasonableness arises in two ways. First, he submits that the characterisation of CSNSW’s submission as “still recommending” that he not be released to parole following achieving minimum security status, was wrong and misrepresented that recommendation. Mr Lodhi submits that this was perpetuated in the Attorney-General’s second reason for refusing parole in the reference to the recommendation being to continue progression through minimum security classifications to provide a well-managed transition into the community. Secondly, he submits that it was legally unreasonable for the Attorney-General to accept the departmental submission (Attachment C at [97]) that Mr Lodhi’s continued progression through minimum security still stood as a reason for refusing parole.

62    The substance of the first argument is that the recommendation and the second reason for refusing parole wrongly suggested that Mr Lodhi had not progressed to a minimum security classification, whereas he had reached that status from medium security in November 2019. The recommendation is therefore characterised as not supported by the evidence that was before the Attorney-General, and also irrational, and the decision adopting it as legally unreasonable.

63    Respectfully, the interpretation of both the submission and the second reason upon which this submission depends itself misreads what was being said in both places, when due regard is had to context. The issue being raised was not progression from medium to minimum security, but rather progression within the minimum security band from C-1, which did not permit day release, to C-3, which did. There was no misunderstanding that I can detect that Mr Lodhi had not progressed to a minimum security classification, but rather a view taken that he had not progressed far enough within that classification to permit pre-release leave to take place. Thus this foundation for asserting a lack of evidence, or legal unreasonableness, is absent and this argument in support of this ground of review must be rejected.

64    The substance of the second argument advanced by Mr Lodhi is that three matters were raised in Attachment C as reasons for not granting parole, each of which is argued to be legally unreasonable:

(1)    that he needed a lengthier period of time in minimum security, referring to Attachment C at [94];

(2)    that he needed access to pre-release leave and programs, referring to Attachment C at [92]; and

(3)    that time was needed to see how well he complied with the conditions of pre-release leave, which would provide an indication of how compliant he would be with parole conditions, referring to Attachment C at [96].

65    Each of those reasons is said not to provide a rational or reasonable basis to recommend against parole, because, in turn, there was no evidence to support them, and it is asserted that:

(1)    CSNSW had not recommended a lengthier time in minimum security, but rather progression through minimum security, which he had achieved;

(2)    The departmental submission (Attachment C at [95]) accepted that pre-release is not a prerequisite to parole, and, in substance, points to why this was not necessary for Mr Lodhi given his factual circumstances, a psychologist’s report and his family support, unlike certain other offenders’ circumstances involving criminogenic factors which elevate the risk of reoffending, such as mental health issues, drug and alcohol addiction, or sexual addiction; and

(3)    Mr Lodhi was a model inmate and there was nothing to suggest he would be other than compliant.

66    The substance of the Attorney-General’s response, contained in submissions that do not need to be addressed in detail, is that Mr Lodhi’s characterisation of Attachment C at [92]-[98] does not do justice either to those paragraphs, or to the material that stood behind them.

67    The approach taken by Mr Lodhi in support of this second argument involves breaking down a chain of reasoning into its constituent parts, and then finding fault in each part as though each was independent. Read as a whole, the Attorney-General’s reasons for refusing to make a parole order were as described in response to review ground 1 above at [52]-[53], rather than any wider basis reflected in the various reports and submissions. Those bases for the decision have not been found to warrant any conclusion of either Wednesbury unreasonableness or legal unreasonableness. However, even if that was not so, and instead the three individual matters identified by Mr Lodhi had to be considered as to whether they were individually or collectively an integral part of the decision that was made, and lacking in any evidence in support of them or otherwise legally unreasonable, this aspect of review ground 2 would fail in any event for the following reasons.

68    As to the first matter identified, I do not read [94] of Attachment C as containing any recommendation or even view that Mr Lodhi necessarily needed a lengthier period of time in minimum security per se. On the contrary it recorded, accurately, no more than the fact of him having been at a minimum security classification for a relatively short time. This was less than five months from December 2019 to the decision made in April 2020, as contrasted to the 16 years which Mr Lodhi had by April 2020 been in prison. Importantly, Attachment C at [98] records that if parole is refused as recommended, the Commonwealth Parole Office will ask, if appropriate, that Mr Lodhi be given the opportunity to participate in pre-release leave, with success in executing this being the last identified impediment to the grant of parole. That strongly suggests that an assurance of compliance with parole conditions, rather than the effluxion of any particular period of time, is all that probably stands in the way of parole being granted when it is next to be considered.

69    As to the second matter identified, the acknowledgment that pre-release is not always a prerequisite for the grant of parole in Attachment C at [95] does not stand in the way of that being a legally reasonable requirement to be met in this case. That would be clear enough without the presence of s 19ALB(2), given the very nature of terrorism offences, but the enactment of a need for satisfaction as to exceptional circumstances puts that beyond doubt. There is nothing in the text or context of s 19LB(2) that precludes this being treated a necessary ingredient for satisfaction as to the existence of exceptional circumstances in a given case. Moreover, earlier in the report at [92], pre-release leave and related programs were identified as being a prudent course to take, and [95] noted that such leave is less important for prisoners with short sentences who have only been out of the community for a year or two.

70    While a matter for the Attorney-General, and for the facts and circumstances of a given case, it is always going to be inherently difficult to characterise making pre-release leave an effective prerequisite for the grant of parole for terrorism offences as being not supported by any evidence or otherwise as being legally unreasonable. On the facts of this case, arguing either was always going to be an especially challenging task. Mr Lodhi was arrested in 2004, and tried, convicted and sentenced in 2006. He maintained his innocence through that process, through the appeal process, and even after he commenced the PRISM program on 1 August 2016, over twelve years after his offending. The material suggests that he had not departed from that stance until after parole was refused the first time in April 2019, 15 years after the offending. As late as May 2019, he was still described as guarded, defensive and dismissive, but making gradual improvements, culminating in reaching C-1 minimum security classification by December 2019, for which he has been praised. In those circumstances, it is unsurprising that the recommendation was made and accepted that Mr Lodhi’s willingness to comply with parole conditions should be tested by way of pre-release leave, rather than favourable assumptions being made about what would happen upon the grant of parole, in the absence of being tested in the community. It is a stance that has an evident and intelligible justification. It is neither legally unreasonable, nor a conclusion that no reasonable person could reach.

71    As to the third matter identified, being that Mr Lodhi was a model inmate and there was nothing to suggest he would be other than compliant, the same reasoning applies as for the second matter above. The Attorney-General was not required to make any finding, based on any evidence, that Mr Lodhi would necessarily be compliant. He was legally entitled to want to have an assurance in that regard before being satisfied that exceptional circumstances had been established.

72    It follows that review ground 2 cannot succeed.

Review ground 3 – The decision not to make a parole order on the basis of ‘the Australian Federal Police’s concerns as to the serious nature of the offending and the potential threat Mr Lodhi may pose to community safety’ was an improper exercise of the power conferred by s 19AL, in that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power or the decision was otherwise legally unreasonable.

73    This review ground characterises the Attorney-General’s decision not to make a parole order on the basis of AFP concerns about the serious nature of Mr Lodhi’s offending and the potential threat he may pose, set out in Attachment J, as an improper exercise of power, and thereby vitiated by Wednesbury unreasonableness or legal unreasonableness. The particular passage of that letter to which objection is taken is the penultimate paragraph that is visible (being surrounded by redactions) and the conclusion:

On 1 August 2016, LODHI commenced participation in the PRISM program, where he has been described as guarded in his responses and has continued to maintain that he is innocent of the offences for which he has been convicted.

…

It further demonstrates that at this time we have no new Information to suggest LODHI poses a significant risk to the community if he was released on parole. The JCTT however maintains concern over the potential threat to the community posed by LODHI.

74    The text above also appeared in a letter from 10 months earlier, dated 15 February 2019. The objections are that the first of the two paragraphs reproduced above is wrong because, by the second half of 2019, Mr Lodhi was no longer maintaining his innocence, and the conclusion is a verbatim adoption of what is said in the 15 February 2019 letter, already taken into account in relation to the first parole decision made in April 2019. While it is correct that the reference to maintaining an assertion of innocence was no longer correct by the second half of 2019, what matters is whether that mischaracterisation was carried through to the submission furnished to the Attorney-General, and in particular in the detailed consideration of this case in Attachment C. Most particularly, at [89] and [90] of Attachment C, reproduced above at [27(2)], it was acknowledged that changes had taken place since the first parole refusal decision, and expressly recorded that Mr Lodhi was “willing to admit his offence, has expressed remorse for his actions and is grateful that he was prevented from committing any act of violence”. It was then stated at [91], which it is convenient to reproduce again because it is a clear enough a reference to the 11 December 2019 AFP letter:

Mr Lodhi is still assessed as being at low risk of either terrorist or general re-offending. While expressing general concern about a potential threat that Mr Lodhi may pose, the JCTT states that there is no new information to suggest that Mr Lodhi would pose a ‘significant threat to the community if he was released on parole.’

75    This was evidently what was being referred to in the Attorney-General’s third reason for deciding not to make a parole order:

Given the serious nature of your offending, the Australian Federal Police remains concerned about the potential threat you may pose to community safety if you are released on parole at this time.

76    The substance of this review ground is that excessive weight was given to this concern, going far enough to be manifestly unreasonable. Reliance in that regard is placed upon Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. While Mr Lodhi relies on a portion of the judgment of Mason J at 40, it is best to place that passage in its context from 40-41. This makes it clear that the substance of this challenge is Wednesbury unreasonableness, making it convenient to proceed under the more general umbrella of legal unreasonableness (omitting footnotes, emphasis added to the specific passage relied upon):

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty. Ltd. v. MacKellar; Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd.; Elliott v. Southwark London Borough Council; Pickwel1 v. Camden London Borough Council. I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”. This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss. 5(2)(g) and 6(2)(g) of the A.D.(J.R.) Act in these terms.

77    Mr Lodhi raised three central reasons for asserting that the views expressed in the AFP letter were legally unreasonable, which, it should be noted, is not the Attorney-General’s decision or reasons, although it was clearly enough adopted as to the concerns expressed. First, he submits that merely asserting that the serious nature of the offending in and of itself gave rise to a concern about a potential threat to community safety was overly simplistic so as to disclose an improper and unreasonable exercise of power. He submits that the scope of a prior decision will always be concerned with offenders who commit offences of varying degrees of seriousness and that the purpose of the decision is whether it is or is not acceptable to release the offender to parole in accordance with the statutory purpose, relevantly, whether a serious offender can be safely released to the community. He argues that every offender imprisoned for a serious offence poses a potential threat and on that logic the fact of commission of such an offence would be capable of justifying a refusal to make a parole order in every case, not just this case. He submits such an inflexible and artificial reasoning process is inconsistent with a legislative regime that contemplates that there will be circumstances in which, despite a serious offence having been committed, it will nonetheless be appropriate to make a parole order.

78    Secondly, Mr Lodhi submits that even noting the limitations arising from the redacted material, it is not possible to ascertain how or why the AFP took the view that the serious nature of his offending made him an ongoing risk to community safety. He argues that it is similarly not apparent from the reasons given, or in the detailed departmental submissions, that any meaningful consideration was given to how or why the serious nature of the offending in 2003-2004 informed a concern as to the potential threat that he posed to community safety in 2020. While the offence is undoubtedly serious, the conduct did not exist in a vacuum. He submits that given that s 19ALA(1)(e) permits consideration of the nature and circumstances of the offence, proper consideration reveals that the factors that led to the offence in which the risk to the community resides have fallen away. This is a further reference to the changes in Mr Lodhi’s responsibilities and attitude, and stance to his religion, detailed earlier in these reasons. He submits that a consideration of the seriousness of the offence as the only factor that informs an assessment of the risk to community safety is inconsistent with the legislative regime that specifically permits consideration of other relevant factors as set out in s 19ALA(1). The seriousness of the offence plainly did not change between the time of the two parole decisions. In 2019 the Attorney-General did not assert reliance on the views of the JCTT or the AFP, nor indicate that any reliance had been placed on the simple fact of the serious nature of the offending as justifying his decision to refuse to make a parole order. Mr Lodhi therefore submits that it is irrational and legally unreasonable that a static and unchanging factor, being the seriousness of his offence, did not assume any significance in the 2019 refusal but came to assume such significance in 2020.

79    The Attorney-General submits that the above arguments, properly considered, do not rise higher than impermissible merits review, and in so doing oversimplify the consideration given to the views expressed in the AFP letter. He points to the objective seriousness of the offences, being among the most serious in Commonwealth criminal law, and the detailed circumstances of the offending that were before him. In those circumstances, he submits that there was ample justification for having regard to, and accepting, those views. He submits that there is no irrationality in deciding to make the decision in 2019 without needing to rely on the views of the JCTT in 2019, and then having regard to those views, although substantially unchanged, in 2020, not least because each parole decision is different.

80    I am of the view that the arguments upon which Mr Lodhi relies point to different reasoning that could have been relied upon, different conclusions that could have been reached, and a different result that might have been arrived at, but fall well short of successfully characterising the decision made as being legally unreasonable or being infected by Wednesbury unreasonableness. It seems clear enough that the 2019 decision to refuse to make a parole order was more straightforward than the present decision. At that time, Mr Lodhi had not renounced his extreme beliefs, had not taken responsibility for his actions, and had not departed from his assertions of innocence. In those circumstances, the Attorney-General did not need to go so far as to take into account the views of the JCTT as expressed via the AFP letter.

81    By 2020, the argument for parole was objectively much stronger as all those features had apparently changed. In that sense, the decision was more finely balanced. But the view expressed to the Attorney-General, and accepted by him, was that the concern expressed in 2019 as to Mr Lodhi’s lack of exposure to the community, and his ability to reintegrate into the community, remained. The existence of the s 19ALB(1) hurdle of exceptional circumstances indicates that it will generally be difficult to have a favourable parole decision made for terrorism offences. This is a statutory recognition of the dangers to the community inherent in such offences, without that needing to be spelt out or justified in each case. I do not accept that it was necessary that the specific basis for such concerns be spelt out in the reasons in the present circumstances, given the detailed information provided to the Attorney-General and his acceptance of key concerns expressed to him. This is so despite the fact that there are limitations and hazards in adopting and acting upon assistance given by departmental officers by way of summaries of information: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [61].

82    Reasonable minds can differ as to what the outcome should be, and the very existence of such a difference is ordinarily a strong indication that the decision made was not legally unreasonable: see Eden at [62]. That is the present situation.

83    Review ground 3 must therefore fail.

Review ground 4 – The Attorney-General failed to give adequate reasons, and so failed to observe procedures that were required by law to be observed in connection with the making of the decision

84    This ground of review attacks the sparseness of the Attorney-General’s reasons. The submission characterises those reasons as being no more than conclusive statements which do not disclose a process of reasoning, adequately set out the findings on material questions of fact, or refer to the evidence or other material on which those findings were based. Mr Lodhi submits that while the submissions before the Attorney-General contain a detailed consideration of the large volume of evidence, including materials provided by him and on his behalf, there is nothing to indicate beyond limited references in the reasons what was accepted or rejected. He therefore asserts that the Attorney-General failed to set out adequate or lawful reasons for the decision to refuse him parole, and so failed to observe procedures required by law to be observed, in the terms of s 5(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

85    The nature and extent of the obligation to give reasons is dictated by the terms of the relevant statutory obligation to do so, and the context. It is important to note that at common law there was no obligation imposed on administrative decision-makers to give reasons, with such a requirement being a matter for the legislature, unless a necessary incident of procedural fairness: Public Service Board v Osmond (1986) 159 CLR 656 at 669-70. The requirement to give reasons contained in s 19AL(2) is sparse, but it is supplemented by s 25D of the Acts Interpretation Act 1901 (Cth), which provides:

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

86    An important and relevantly similar provision to s 25D of the Acts Interpretation Act is s 430(1) of the Migration Act 1958 (Cth). Section 430(1) requires a written statement of a decision made on merits review by the Administrative Appeals Tribunal to set out the reasons, findings on any material questions of fact, and to refer to the evidence or any other material on which those findings of fact were based. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, the High Court (McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed) said of the requirement imposed by s 430, which has not changed as to the relevant paragraphs (a) to (d) of 430(1) since then (omitting footnotes; emphasis in original):

[68]    … In its terms, [s 430] requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. … A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.

[69]    It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material.

...

[77]    The Federal Court granted review in these cases on the basis that, by reason of the Tribunal’s failure to make findings, the Tribunal had failed to comply with “procedures that were required by this Act or the regulations to be observed in connection with the making of the decision” (s 476(l)(a)). It is implicit in what has already been said about s 430 that a complaint that the Tribunal has not made a finding of fact on a material question cannot support review on this ground. An alleged failure to make a finding of fact on a material question is not a failure to observe a “procedure ... required” by the Act. If it is an error, it is an error of substance. Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made. It is, however, enough to say that the conclusion that, so far as now relevant, s 430 requires only the recording of what was found and does not impose any duty to make findings, means that an asserted failure to make findings is not a breach of s 430. Accordingly, s 476(1)(a) is inapplicable.

87    Two observations about the present matter flow from the above passages from Yusuf:

(1)    The s 25D obligation imposed on the Attorney-General did not require him to make any particular findings of fact, but rather to do no more than to set out any findings of fact that he did in fact make that he considered material to the decision not to make a parole order.

(2)    Review ground 4, and the submissions in support of it, asserts that the Attorney-General failed to give adequate reasons and thereby failed observe “procedures that were required to be observed in connection with the making of the decision”, relying on the words of s 5(1)(b) of the ADJR Act. The terms of s 5(1)(b) are relevantly the same as the terms of s 476(1)(a) of the Migration Act as it was at the time it was under consideration in Yusuf. The conclusion in Yusuf at [77], reproduced above, means that it cannot be a failure to observe the procedures required by s 19AL that the reasons given did not include any particular factual finding beyond those given, and s 5(1)(b) of the ADJR Act is therefore inapplicable.

88    The above reasoning alone means that this ground of review must fail in the way that it has been brought. However, for completeness it is desirable to say something about the adequacy of the Attorney-General’s reasons more generally.

89    The question of whether the reasons more generally fall short of what is legally required also depends upon the statutory framework in which the decision is made. As Buchanan J pointed out in Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35; 229 FCR 537 at [55] (Allsop CJ and Siopis J agreeing) in relation to a decision by the Full Bench of the Fair Work Commission (as Fair Work Australia was then known):

It must therefore be understood that no attack, in proceedings of the present kind, is available against the Full Bench merely upon the ground of a dispute or quibble with the quality of the Full Bench reasons or the weight which it gave to particular aspects of the matter before it unless some error is demonstrated which may be said to have the result that the Full Bench has not really exercised the jurisdiction given to it, leaving the jurisdiction “in law constructively unexercised” and thereby exposing the Full Bench to an order that it perform the task it had failed to carry out (Hebburn; Coal & Allied) or, alternatively, that the Full Bench has purported to determine some matter outside its jurisdiction altogether (PSA).

90    Thus asserted shortcomings in the Attorney-General’s reasons must rise to the level of demonstrating that the jurisdictional task required has not been performed. Reasons may be brief without being shown to be fatally flawed, with the focus required to be on the substance of what has been decided, including whether the real determinative issue has been exposed: see Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 at [64].

91    Reasons will not be inadequate because there was evidence or other material by which a different conclusion could have been reached, or different reasoning adopted, or a means by which merits can be re-argued: Lopez-Avila v K & S Freighters Pty Ltd [2015] FCA 962; 68 AAR 86 at [22]. A provision such as s 25D of the Acts Interpretation Act, which uses familiar phrasing and concepts to do with material questions of fact and identifying evidence or other material upon which findings were based, is designed to expose thought processes to scrutiny, but not to encourage a “fine tooth comb” reading of such reasons: see Roncevich at [64] and Lopez-Avila at [22].

92    It is in the above context that Mr Lodhi’s more general submissions about the adequacy of the Attorney-General’s reasons, and the response to those submissions must be considered. The Attorney-General, after referring to general principles concerning reasons, advances three reasons as to why his reasons are not inadequate as asserted:

(1)    The first reason states that he was not satisfied that Mr Lodhi had established exceptional circumstances. When this reason is considered in the context of Attachment K (the “adverse comments” letter sent to Mr Lodhi) and his response, it can readily be inferred that the Attorney-General did not accept Mr Lodhi’s submissions as to why he had satisfied the exceptional circumstances requirement.

(2)    The second reason was not inadequate because it expressly states that the Attorney-General agreed with a recommendation from CSNSW that Mr Lodhi not be granted parole at this time, but rather would be best prepared for release on parole by continuing progression through minimum security classifications to provide a well-managed transition into the community and enable his compliance to be assessed.

(3)    The third reason was not inadequate, recording that the AFP remains concerned about the potential threat Mr Lodhi may pose to community safety if he was released on parole at this time, readily supporting the inference that the Attorney-General accepted the concerns raised in the AFP letter and did not accept Mr Lodhi’s submissions in response.

93    The first point to note is that the obligation imposed by s 25D only pertains to factual findings that were in fact made, as Yusuf discussed above makes clear. This was not a case in which the Attorney-General decided that factual findings needed to be made, as least as to s 19ALB(1). Rather, he was not satisfied that exceptional circumstances existed, and therefore could not exercise the power to make a parole order in favour of Mr Lodhi. I am unable to see why further reasons had to be given for the absence of such a state of mind, especially in light of the second and third reasons.

94    The second and third reasons function in two ways. First, they illuminate the key bases on which the Attorney-General was not satisfied that exceptional circumstances existed. In reverse order, these were concerns about community safety, and the absence of conduct in the community by way of pre-release leave to assess the prospects of compliance with parole conditions. This gives support and some measure of reasons for the lack of satisfaction being reached.

95    The second and third reasons given for the decision also function as independent reasons why parole would not be granted in any event. For the reasons explained in response to review grounds 2 and 3, I see no element of legal unreasonableness in either of those reasons. While short, they clearly enough explain why parole was not thought appropriate, implicitly as a matter of community safety until likely compliance with parole conditions had been tested by way of pre-release day leave.

96    For the foregoing reasons I am not satisfied that the reasons given have been successfully demonstrated to be vitiated by reason of legal unreasonableness or Wednesbury unreasonableness, such that this ground of review must fail.

Conclusion

97    As all four grounds of review have failed, the further amended originating application must be dismissed. There is no reason why costs should not follow the event, and accordingly Mr Lodhi must pay the Attorney-General’s costs as assessed or agreed.

Associate:

Dated:    28 September 2020