Federal Court of Australia

Chukwuma v Attorney General of Australia [2022] FCA 948

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant is serving a sentence of imprisonment of about 10½ years, with a non-parole period of 6½ years, for a federal offence.

2    On 10 August 2021, a delegate of the respondent (the Attorney-General) made a decision pursuant to s 19AL(1) of the Crimes Act 1914 (Cth) (the Crimes Act) refusing to order the release of the applicant on parole. The applicant has applied for judicial review of that decision.

3    The applicant relies on s 5(1)(e) (improper exercise of power) and s 5(1)(h) (no evidence or other material) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The applicant alleges that the Attorney-General erred in finding:

(1)    The applicant posed an unacceptable risk to the community in circumstances where the evidence before the decision maker disclosed that the applicant would not return to the Australian community;

(2)    The applicant would not comply with parole conditions or engage with Community Corrections to make rehabilitative progress and reintegrate into the community in circumstances where the evidence before the decision maker disclosed that the applicant would not return to the Australian community; and

(3)    The applicant had displayed conduct whilst in prison which demonstrates a pattern of disrespect for authority in circumstances where there was no such evidence or material before the decision maker to justify such a finding.

4    The first two grounds are based upon the applicant’s proposition that he could pose no risk to the Australian community if he were released on parole as he would immediately be detained in immigration detention and then deported to Nigeria.

5    It is necessary to examine the factual background and the statutory scheme for parole in order to give context to the applicant’s grounds of review.

Factual background

6    On 14 October 2016, the applicant was sentenced in the District Court of South Australia to a term of 10 years, 6 months and 8 days’ imprisonment, commencing on 17 February 2015, for an offence of unlawfully attempting to possess a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth).

7    The District Court imposed a non-parole period of 6 years and 6 months, expiring on 16 August 2021. The applicant’s head sentence will expire on 24 August 2025.

8    The applicant was involved in a scheme arranged by Nigerian principals for the importation of methamphetamine from China. The applicant’s role was to arrange the transportation of the methamphetamine from Sydney to Adelaide and then collect it in Adelaide. At the time of his sentencing, the applicant was on parole for similar offending.

9    On 16 July 2021, an officer of the Attorney-General’s Department wrote to the applicant informing him that he would be considered for parole. The letter set out a number of matters militating against the applicant’s release on parole and invited him to comment. The letter stated, amongst other things:

Without further information about your plans if you are released into immigration detention or the community in Liberia (sic), the decision-maker may consider that you currently lack adequate post-release plans and that your release on parole at this time therefore poses an unacceptable risk to the community.

10    The applicant responded in an undated letter. The applicant stated, relevantly:

After being assessed for my IDP (Individual Development Plan) by Sentence Management Unit, I was deemed not suitable for any custodial based course or program. I have repeatedly asked my Case Management Co-ordinator during my case reviews, and point to point contact, for participation in core programs and tertiary education. I rely on the department, as a vulnerable person, to facilitate these courses, I cannot, and am not allowed to facilitate these courses for myself. I am completely reliant upon the department.

As you know, I am currently at a medium security prison (Mobilong Prison), and the normal progression to low security institutions are Cadell Training Centre, Adelaide Pre-release Centre and home detention. Normally I would be eligible to progression. But because my visa cancellation and potential deportation, I was not allowed to progress. Now I await my deportation outcome.

After speaking with Scott (ID PRSJAF) from Australia Border Force. I have carefully reconsidered my position and I confirm that I accept my visa cancellation. I am a citizen of Nigeria and I hold a current and valid Nigerian passport. I have applied for my deportation to go back to my home county (Nigeria). My whole family live in Nigeria. We have businesses there. This is where all my support networks are located. My support networks, family and friends will help assist me, both in, the risk of reoffending and reintegrating back into society.

11    On 10 August 2021, a delegate of the Attorney-General issued a “Refusal Notice” stating she had decided to refuse the release of the applicant on parole. The notice continued:

The order for refusal of parole has been made for the following reasons:

1.     I have taken into account the nature and circumstances of your offending, and the findings of the sentencing court, and that you were on parole for a similar Commonwealth drug offence at the time of your offending. This was an aggravating feature in your offending. The court remarked you had taken advantage of your liberty to commit an identical and in some ways more serious offence and your offending was ‘extremely serious’. The court found ‘your role was an important one in the chain of collection and ultimate distribution of a very harmful illicit substance’. The court noted the amount of drug imported was found to be 13.16 kilograms of pure methylamphetamine.

2.     You have a largely unsatisfactory response to previous periods of supervision and you have displayed a pattern of behaviour in custody that indicates you may have difficulty complying with parole conditions. Your behaviour when previously subject to conditional release demonstrates a level of non-compliance. Your conduct while in prison demonstrates a pattern of disrespect for authority. I am not satisfied that you will comply with parole conditions or engage with Community Corrections to make rehabilitative progress and reintegrate into the community.

3.     You lack sufficient post-release plans if you are released into immigration detention or deported to Nigeria. You have not identified any plans on how you can further your rehabilitation and improve your prospects of reintegration and you have not provided information about why you do not pose a risk to the safety of the community. You have not provided adequate information about your plans if you are released into immigration detention or if you are deported. I am concerned that your release at this time therefore poses an unacceptable risk to the community.

12    On 10 November 2021, the applicant filed an application for an extension of time to commence proceedings seeking relief under the ADJR Act. On 6 December 2021, the Court ordered, by consent, that the time for the applicant to lodge an application for review be extended to one business day after the making of the orders. Although the applicant failed to file any application within the extended time, the Attorney-General consented to a further extension, and the application has now been filed.

13    The application as filed seeks relief under the ADJR Act both in respect of the decision to refuse parole and failure to make a decision reconsidering that decision within a reasonable time frame. At the hearing, only the former was pursued. The grounds argued by the applicant are those described at the commencement of these reasons.

The legislative scheme for parole

14    Part IB of the Crimes Act is entitled, “Sentencing, imprisonment and release of federal offenders”.

15    It is relevant to summarise the provisions of Part IB dealing with sentences of imprisonment and non-parole periods before considering the provisions concerning release on parole.

16    Division 2 of Pt IB is entitled, “General sentencing principles”. Section 16A(1) provides that in determining the sentence to be passed, or the order to be made, for a federal offence, the Court must impose a sentence or make an order that is, “of a severity appropriate in all the circumstances of the offence”.

17    Section 16A(2) specifies that, in addition to any other matters, the Court must take into account 17 specified matters. Those include matters such as the nature and circumstances of the offence and the prospects of rehabilitation of the person.

18    Division 3 of Pt IB has the heading “Sentences of imprisonment”. Section 19A provides, relevantly, that a federal offender who is ordered by a court to be detained in a prison in a State or Territory may be detained in any prison in that State or Territory.

19    Division 4 is entitled, “The fixing of non-parole periods and the making of recognizance release orders”. Section 19AB(1) provides, relevantly, that, subject to s 19AB(3), a court must fix a single non-parole period in respect of a federal sentence if the Court imposes a sentence which exceeds three years’ imprisonment. The term “non-parole period” is defined in s 16(1) to mean, relevantly, “that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole”.

20    Section 19AB(3) provides that a court may decline to fix a non-parole period where, relevantly, the Court is satisfied that a non-parole period is not appropriate having regard to the nature and circumstances of the offences and the antecedents of the person. The explanatory memorandum for the Crimes Legislation Amendment Bill (No 2) 1989 (Cth), indicates application of this provision is, “intended for those cases where the crimes are serious or where there is a history of repeated offences and would require the offender to serve the full sentence”.

21    Subsection 19AF(1) provides that the Court must fix a non‐parole period that ends not later than the end of the sentence, or of the last to be served of the sentences.

22    The Crimes Act does not otherwise specify any particular factors to be considered in fixing a non-parole period.

23    Section 19AK provides:

19AK    Possible deportation no impediment to fixing non-parole period

Where a person is convicted of a federal offence, a court is not precluded from fixing a non parole period in respect of the sentence imposed for that offence merely because the person is, or may be, liable to be deported from Australia

24    The explanatory memorandum for the Crimes Legislation Amendment Bill (No 2) states that the intention of s 19AK is that, “in general non-parole periods be fixed for deportees”.

25    Division 5 of Part IB of the Crimes Act is entitled “Conditional release on parole or licence”.

26    Section 19AKA describes the purposes of parole as follows:

19AKA Purposes of parole

The purposes of parole are the following:

(a)    the protection of the community;

(b)    the rehabilitation of the offender;

(c)    the reintegration of the offender into the community.

27    Section 19AL provides for the making of parole orders by the Attorney-General:

19AL    Release on parole—making of parole order

(1)    The Attorney General must, before the end of a non parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole (a parole order).

...

Note 2:    See also sections 19ALA (matters that may be considered in decisions about parole orders) and 19ALB (decisions about parole orders—terrorism and control orders).

(2)    If the Attorney General refuses to make a parole order for a person under subsection (1) or paragraph (b) of this subsection, the Attorney General must:

(a)    give the person a written notice, within 14 days after the refusal, that:

(i)    informs the person of the refusal; and

(ii)    includes a statement of reasons for the refusal; and

(iii)    sets out the effect of paragraph (b) of this subsection; and

(b)    reconsider the making of a parole order for the person and either make, or refuse to make, such an order, within 12 months after the refusal.

…

(3)    A parole order must:

(a)    be in writing; and

(b)    specify whether or not the person is to be released subject to supervision; and

(c)    if it is proposed that the supervision period for a person released on parole subject to supervision should end before the end of the person’s parole period—specify the day on which the supervision period ends.

…

28    An order directing that a person be released on parole is called a “parole order”: see s 16(1) of the Crimes Act.

29    Section 19ALA sets out a non-exhaustive list of matters that may be considered when considering making a parole order:

19ALA    Matters that may be considered in decisions about parole orders

(1)    In making a decision under section 19AL in relation to a person, the Attorney General may have regard to any of the following matters that are known to the Attorney General and relevant to the decision:

(a)    the risk to the community of releasing the person on parole;

(b)    the person’s conduct while serving his or her sentence;

(c)    whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency;

(d)    the likely effect on the victim, or victim’s family, of releasing the person on parole;

(e)    the nature and circumstances of the offence to which the person’s sentence relates;

(f)    any comments made by the sentencing court;

(g)    the person’s criminal history;

(h)    any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency;

(i)    the behaviour of the person when subject to any previous parole order or licence;

(j)    the likelihood that the person will comply with the conditions of the parole order;

(k)    whether releasing the person on parole is likely to assist the person to adjust to lawful community life;

(l)    whether the length of the parole period is sufficient to achieve the purposes of parole;

(m)    any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release.

(2)    Subsection (1) does not limit the matters that the Attorney General may consider in making a decision under section 19AL.

30    Section 19AMA provides, relevantly, that a person’s parole period starts when the person is released from prison on parole, and ends at the last day of any federal sentence being served.

31    Section 19AN provides that:

A parole order:

(a)    is subject to the condition that the offender must, during the parole period, be of good behaviour and not violate any law; and

(b)    if the parole order specifies in accordance with subsection 19AL(3) that the person is to be released subject to supervision—is subject to the condition that the offender must, during the supervision period, be subject to the supervision of a parole officer or other person specified in the order and obey all reasonable directions of that officer or other person; and

(c)    is subject to such other conditions (if any) as the Attorney General specifies in the order.

32    Section 19AU(1) allows the Attorney-General to revoke a parole order before the end of the parole period if the offender has failed to comply with a condition of the order, or there are reasonable grounds for suspecting that the person has failed to comply.

Consideration

33    The applicant’s first ground asserts that the Attorney-General’s delegate erred in finding that the applicant, “posed an unacceptable risk to the community in circumstances where the evidence before the decision maker disclosed that the applicant would not return to the Australian community”.

34    The applicant relies on the grounds of review in ss 5(1)(e) and 5(1)(h) of the ADJR Act. The ground under s 5(1)(e) is improper exercise of power, which, under s 5(2), includes taking an irrelevant consideration into account, and exercising a power in a way that is so unreasonable that no reasonable person could have so exercised the power. The ground under s 5(1)(h) is that there was no evidence or other material to justify the making of the decision. Section 5(1)(h) must be read with s 5(3), which provides that the ground is not made out unless, relevantly, there was no evidence or other material from which the decision maker could reasonably be satisfied that the relevant matter was established.

35    The delegate stated in her reasons:

You lack sufficient post-release plans if you are released into immigration detention or deported to Nigeria. You have not identified any plans on how you can further your rehabilitation and improve your prospects of reintegration and you have not provided information about why you do not pose a risk to the safety of the community. You have not provided adequate information about your plans if you are released into immigration detention or if you are deported. I am concerned that your release at this time therefore poses an unacceptable risk to the community.

36    The applicant submits that the references in ss 19AKA and 19ALA of the Crimes Act to “the community” are to the Australian community, and that when making a decision under s 19AL(1), the Attorney-General can only consider the risk to the Australian community. The applicant submits that if the delegate’s finding was that he would pose a risk to the Nigerian community if released on parole, that was an irrelevant consideration. The applicant submits, in the alternative, that if the delegate’s finding was that he would pose a risk to the Australian community, that finding was illogical, unreasonable and made without evidence, in circumstances where he will never enter the Australian community.

37    In his response to the Department’s letter of 16 July 2021, the applicant made it clear that his visa had been cancelled and that he had requested his removal to Nigeria. As the applicant does not hold a visa that is in force, he is an “unlawful non-citizen” within s 14 of the Migration Act 1958 (Cth). Sections 189(1) and 196(1) of the Migration Act require that the applicant, as an unlawful non-citizen, be held in immigration detention after his release from prison, until, pursuant to s 198(1), he is removed from Australia. The Attorney-General must be taken to have correctly understood the law: compare CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [6] (Keifel CJ and Gageler J). Accordingly, the delegate must have understood that it was highly unlikely that the applicant would enter the general Australian community upon his release on parole.

38    The applicant’s submission makes it necessary to identify the “community” to which the delegate considered the applicant would pose a risk if released on parole. The answer must be inferred since the delegate did not specify whether she was referring to risk to the Australian community, or the Nigerian community, or both.

39    The ordinary meaning of “community” in the context of ss 19AKA and 19ALA of the Crimes Act is, “all the people of a specific locality or country”: see Macquarie Dictionary Online. The delegate should be understood to have used the term in accordance with that meaning.

40    In her reasons, the delegate referred to the applicant’s, “risk to the safety of the community”. The “community” the delegate was referring to can be inferred from the preceding sentence, where the delegate stated that the applicant lacked, “sufficient post-release plans if you are released into immigration detention or deported to Nigeria”. That was a recognition that if the applicant were released on parole, he could or would be released into immigration detention and then deported to Nigeria. It should be accepted that while in immigration detention, the applicant would be within the “Australian community”. A detainee in an immigration detention centre in Australia, staffed by Australians, can appropriately be described as being detained within the Australian community. Accordingly, the delegate had in mind the applicant’s plans both in the Australian community and the Nigerian community. In that context, when the delegate referred in the next sentence to the applicant’s, “risk to the safety of the community”, it should be inferred that she was referring to the risk to the safety of both the Australian community and the Nigerian community. She was also referring to both communities in the final sentence of the paragraph when she found that the applicant’s release, “poses an unacceptable risk to the community.”

41    The delegate was entitled to conclude that the applicant’s history of serious criminal offending, including while on parole, demonstrated that he would pose a risk to the safety of any community he was released into. The applicant’s submission that he would never enter “the Australian community” if he were released from prison on parole, and would therefore be incapable of posing a risk to the Australian community, cannot be accepted. That is because he would be within the Australian community while being held in immigration detention pending his removal to Nigeria. Although s 198(1) of the Migration Act would require his removal, “as soon as reasonably practicable”, there would be an indeterminate period of time within which he would be in the Australian community. In addition, the nature of the applicant’s offending, involving assisting in the distribution of drugs in Australia, where the importation was organised by Nigerian principals, left it open to the delegate to conclude that he could pose a threat to the Australian community, even after his deportation to Nigeria. Therefore, the delegate’s opinion that releasing the applicant on parole would pose an unacceptable risk to the Australian community had an evident and intelligible basis. It was not made without evidence, and was not illogical or legally unreasonable.

42    When deciding to refuse to make a parole order, the delegate also took into account the risk that the applicant would pose to the safety of the Nigerian community and, consequently, the protection of the Nigerian community from that risk. The applicant submits that when considering whether to make a parole order, risk to, and protection of, any community other than the Australian community is an “irrelevant consideration” within s 5(2)(a) of the ADJR Act.

43    Section 19AL(1) confers upon the Attorney-General an obligation to, before the end of a non-parole period, make, or refuse to make, an order directing that a person be released from parole. The provision directs the Attorney-General to make a decision, and when to make the decision. However, the provision does not expressly impose any limits upon the matters the Attorney-General may take into account. Section 19ALA(1) provides that the Attorney-General may have regard to such of thirteen specified matters as are known to the Attorney-General and are relevant to the decision, but s 19ALA(2) indicates that the Attorney-General is not limited to considering those matters.

44    Sections 19AL(1) and 19ALA(1) allow the Attorney-General to make value judgments as to the weight to give to the matters the Attorney-General considers to be relevant. There may be room for reasonable differences of opinion as to the outcome, no particular opinion being uniquely right. Accordingly, the decision can be described as discretionary: see Norbis v Norbis (1986) 161 CLR 513 at 517–518; Bondelmonte v Bondelmonte (2017) 341 ALR 179 at [31].

45    In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason J observed at 40:

…where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

(Citations omitted.)

It is necessary to consider whether, as a matter of construction, s 19AL(1) of the Crimes Act, precludes the Attorney-General from considering protection of a foreign community when considering whether to make a parole order.

46    The applicant submits that the Attorney-General cannot take into account risk to and protection of a foreign community, when deciding whether a prisoner should be released on parole. The Crimes Act contains no express restriction of that kind. It is, accordingly, necessary to examine whether the Crimes Act, properly construed, implies such a restriction.

47    Section 19AKA provides that the purposes of parole are, relevantly, “the protection of the community” (para (a)), and, “the reintegration of the offender into the community” (para (c)). Section 19ALA(1) provides that the Attorney-General may have regard to, relevantly, “the risk to the community” (para (a)), and whether releasing the person on parole is likely to assist the person to adjust to “community life” (para (k)).

48    The applicant’s submission involves two premises. The first is that the references to “the community” in ss 19AKA and 19ALA(1) are only to, “the Australian community”. The second is that the only matters which may be taken into account by the Attorney-General under s 19AL(1) when considering a parole order are matters relevant to the purposes of parole specified in s 19AKA.

49    There is some textual and contextual support for the applicant’s first premise. Division 5 of Part IB of the Crimes Act is concerned with release on parole or licence from a sentence of imprisonment for an offence against a law of the Commonwealth of Australia, where the prisoner has been sentenced by an Australian court, and where the sentence is being served in an Australian prison. In addition, the phrase, “the community”, uses the definite article, implying a particular community. It would be natural to understand “the community” as referring to the Australian community.

50    However, there are several factors which indicate that s 19AKA intends to refer to the community into which the offender will be released following a grant of parole, whether that community is the Australian community or the foreign community.

51    First, s 19AKA uses the expression “the community”, not, “the Australian community”. If the latter was meant, that could readily have been said.

52    Second, the general sentencing principles in the Crimes Act do not confine the sentencing court to taking into account only harm done to, and protection of, members of the Australian community. Section 16A(1) requires the court to impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. The list of factors to be taken into account under s 16A(2) is non-exhaustive: Johnson v The Queen (2004) 78 ALJR 616 at [15]; Hili v The Queen (2010) 242 CLR 520 at [25]; Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at [18].

53    A non-parole period is the minimum period that the sentencing court considers to be appropriate for an offender to spend confined in a prison: see Power v The Queen (1974) 131 CLR 623 at 628–629. Just as the requirements of ss 16A(1) and (2) must be considered in imposing a sentence of imprisonment, they must be considered in determining a non-parole period: compare Hili v The Queen at [40].

54    The factors relevant to determining the appropriate severity of a sentence or non-parole order are not confined to factors connected with members of the Australian community. For example, under s 16A(2)(e), the court must take into account, “any injury, loss or damage resulting from the offence”, and, under s 16A(2)(d), “the personal circumstances of any victim of the offence”. These provisions envisage that when deciding a sentence or non-parole order, the sentencing court may take into account injury, loss or damage to, and therefore protection of, victims who are not part of the Australian community. It would be an incongruous result for the sentencing court to be permitted or required to take into account protection of members of a foreign community when determining a term of imprisonment and non-parole period, but for the Attorney-General to be prohibited from taking into account the same matter when determining whether a prisoner should be released on parole. That is particularly unlikely when the Attorney-General is expressly permitted under s 19ALA(1)(d) to take into account, “the likely effect on the victim, or the victim’s family, of releasing the person on parole”. That factor raises for consideration risk to, and protection of, foreign, as well as Australian, victims and their families.

55    Third, s 3A of the Crimes Act provides:

This Act applies throughout the whole of the Commonwealth and the Territories and also applies beyond the Commonwealth and the Territories.

56    In Liophar v The Queen (1999) 200 CLR 485 at [96], Gaudron, Gummow and Hayne JJ held that, “Section 3A is intended to and does displace any presumption that a penal statute will be taken not to have extraterritorial operation”. That may be seen, for example, in s 52 of the Crimes Act which makes it an offence to perform an “act of piracy” on the high seas and places beyond the jurisdiction of any country. The protection offered by that provision extends to communities other than the Australian community. A sentence of imprisonment and non-parole period for such an offence would necessarily take into account the risk to, and protection of, such foreign communities. A parole decision would naturally also take such matters into account.

57    Fourth, s 19AK of the Crimes Act has relevance to the question of whether the purposes of parole described in s 19AKA of protection of the community, extends to a foreign community. That section provides that a court is not precluded from fixing a non-parole period in respect of the sentence imposed for that offence merely because the person is, or may be, liable to be deported from Australia. Unless a non-parole period is set, the offender will have to serve the full sentence. Section 19AK is protective of federal offenders who are liable to deportation by recognising that such persons should not necessarily be deprived of the opportunity for parole.

58    Section 19ALA(1)(a) allows the Attorney-General to take into account, “the risk to the community of releasing the person on parole”. When a prisoner is released on parole and then deported, any parole conditions imposed under s 19AN may be difficult, or impossible to enforce. It would be an unlikely outcome for s 19AK to specifically permit a non-parole period to be fixed for an offender who may be deported, taking into account matters including injury and damage to persons who are part of a foreign community, but, at the same time, for s 19ALA(1) to prohibit the Attorney-General from taking into account the danger of releasing an unreformed, unsupervised and unmonitored offender into the same foreign community. In a context where s 19AK specifically envisages that a person released on parole may be deported, s 19ALA(1) should be understood as referring to the risk to the community into which the person will be released.

59    Fifth, in Whiteoak v State Parole Authority and the Attorney-General of NSW [2020] NSWSC 185, consideration was given to s 135(1) of the Crimes (Administration of Sentences) Act 1999 (NSW), which provides that the NSW Parole Authority, “must not make a parole order directing the release of an offender unless it is satisfied that it is in the interests of the safety of the community”. The plaintiff’s visa had been cancelled and he would be removed to the United Kingdom following his release. The Parole Authority was not satisfied his release on parole was in the interests of the safety of “the community”, construing “the community” as extending to the community of the United Kingdom. The plaintiff argued that “the community” should be understood as, “being confined to the community in NSW, and not construed as extending to a community within another jurisdiction to which an offender may be deported upon release”.

60    The plaintiff’s argument was rejected by Bellew J. His Honour observed at [75]:

The evidence before the Authority was that upon release, the plaintiff will inevitably be deported to the United Kingdom. Accepting that to be the case, and in circumstances where one of the express objectives of the Act is to provide for the rehabilitation of offenders with a view to their reintegration into the general community, the plaintiff would not, if released, be subject to any supervision at all. He could not be compelled to undertake, or not to undertake, any activity and the implementation of any recommendation which might be made in relation to his rehabilitation would be entirely dependent upon his motivation, and his willingness to co-operate.

(Citations omitted.)

61    In those circumstances, his Honour observed at [76] that the consequence of the plaintiff’s construction was:

… the Authority would, in reaching its decision to whether the offender in question should be released, effectively put aside the question of rehabilitation, irrespective of how dangerous the offender was, and irrespective of the level of risk that he or she posed. Such an outcome would hardly be conducive to an offender’s rehabilitation. In fact, it would impede it, because it would mean that an offender could be released without any effective supervision at all. That would promote an approach which was at odds with one of the stated objectives of the [Crimes (Administration of Sentences) Act]. In my view, it cannot have been the intention of the Parliament that the Authority would carry out its functions in a way which failed to advance one of the objectives of the Act, and which ignored the significant risk of re-offending in the absence of rehabilitation.

62    The phrase, “the community”, in s 19AKA of the Crimes Act should be construed in the same way as in Whiteoak. As Bellew J observed, release on parole followed by removal of an offender to another country without any effective supervision may impede an offender’s rehabilitation. That would be inconsistent with the purpose stated in s 19AKA(b) of, “the rehabilitation of the offender”. Section 15AA of the Acts Interpretation Act 1901 (Cth) provides that the interpretation that would best achieve the purpose or object of the Act is to be preferred to each other interpretation. Section 19AL(1) should be construed consistently with the expressly stated purposes of parole, including the purpose of rehabilitation of offenders. This indicates that “the community” in s 19AKA should be construed as the community into which the prisoner will be released.

63    The applicant’s submission that Whiteoak is distinguishable must be rejected. The applicant relies on the object in s 2A(1)(a) of the Crimes (Administration of Sentences) Act of ensuring, “that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment”. The applicant argues that the word “general” in “the general community”, must have some work to do, and has a broader meaning than “the community”. However, in the context of a sentence of imprisonment that removes the person from the “general community”, the word “general” seems to merely distinguish the outside community from the prison community. In the context of release of prisoners into the community on parole, the expression “the community” in s 19AKA must also mean the outside, or general, community. Accordingly, Whiteoak is not distinguishable.

64    For these reasons, where s 19AKA provides that a purpose of parole includes, “the protection of the community”, it should not be understood as referring only to the Australian community. It extends to any community into which the parolee will be released, including any foreign community to which the person will be removed. It follows that there is no basis for the applicant’s submission that risk to, and protection of, a foreign community is an irrelevant consideration for the purposes of a decision as to whether or not to release a prisoner on parole under s 19AL(1).

65    Even if I had concluded that s 19AKA should be understood as referring only to the Australian community, I would have rejected the applicant’s submission that the Attorney-General may only take into account matters relevant to the purposes of parole stated in that provision.

66    Section 19AL(1) does not, on its face, restrict the matters to which the Attorney-General may have regard. Section 19ALA(1) sets out a broad range of matters the Attorney-General may consider, but s 19ALA(2) indicates that the Attorney-General is not limited to those matters. Section 19ALA(2) supports a broad, rather than narrow, construction of s 19AL(1).

67    When originally introduced, Division 5 of Part IB of the Crimes Act did not contain s 19AKA or s 19ALA. Those sections were added by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth). The relevant explanatory memorandum stated in relation to s 19AKA:

Section 19AKA establishes that the purposes of parole are the protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community. The purpose of this item is to provide guidance in ensuring that parole conditions are consistent with the purposes of parole, for use in making decisions on release on parole, and when considering breaches of parole conditions.

68    The explanatory memorandum makes it clear that the statement of the purposes of parole was to “provide guidance” to the Attorney-General when making a decision under s 19AL(1), not to limit the considerations to which the Attorney-General may have regard. Section 15AB of the Acts Interpretation Act indicates that an explanatory memorandum may be used to confirm the ordinary meaning of a provision or to determine the meaning of an ambiguous or obscure provision.

69    It can readily be envisaged that circumstances falling outside the purposes stated in s 19AKA may provide a basis for the Attorney-General to make a parole order. An example is found in Pulini v Assistant Minister to the Attorney-General of the Commonwealth of Australia [2021] FCA 1543, where I held that the Assistant Minister to the Attorney-General had erred in failing to consider a submission that the welfare of the applicants’ child supported their release on parole, even though that matter did not fall within the purposes described in s 19AKA. Another example is that in South Australia v O'Shea (1987) 163 CLR 378, it was accepted that the public interest, including the need to maintain public confidence in the system of criminal justice, could be taken into account in making a decision concerning release on licence under the relevant legislation. It is improbable that the legislative intention is to prevent the Attorney-General from taking such matters into account under s 19AL(1) of the Crimes Act.

70    While regard may be had, as a matter of general statutory construction, to an objects or purposes clause to resolve uncertainty or ambiguity, such a provision does not control clear statutory language, or command a particular outcome of the exercise of discretionary power: see Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470 at [48]; National Disability Insurance Agency v WRMF (2020) 276 FCR 415 at [145].

71    In considering whether to make a parole order, the discretion conferred upon the Attorney-General is not confined to matters relevant to the purposes of parole stated in s 19AKA. While those purposes may provide guidance, they do not control or confine the exercise of the power.

72    Therefore, even if I had construed the expression “the community” in s 19AKA as meaning “the Australian community”, I would not have accepted the applicant’s submission that the Attorney-General was confined to taking into account protection of the Australian community.

73    For these reasons, the applicant’s first ground must be rejected.

74    The applicant’s second ground is that the delegate erred in finding that the applicant, “would not comply with parole conditions or engage with Community Corrections to make rehabilitative progress and reintegrate into the community in circumstances where the evidence before the decision maker disclosed that the applicant would not return to the Australian community”.

75    The second ground seems to rely upon the same arguments as the first ground. As I have rejected the first ground, the second ground must also be rejected.

76    The applicant’s third ground is that the delegate erred in finding that the applicant, “had displayed conduct whilst in prison which demonstrates a pattern of disrespect for authority in circumstances where there was no such evidence or material before the decision maker to justify such a finding”.

77    The applicant submits that the delegate erred in the manner described in ss 5(1)(h) and (3) of the ADJR Act. The applicant submits that the case review notes for the applicant ought to be the best source of evidence in ascertaining his behaviour while in prison because they are direct recordings of his behaviour. He points out that the most recent case review note states that the applicant continues to be an easily managed prisoner who is always polite and respectful. He submits that he resides in the lowest security unit and to reside in that unit a prisoner’s behaviour must be of an exceptional standard and a good work ethic is required.

78    However, in the Department’s letter to the applicant it was noted that he had received seven warnings while in custody, apparently for behaviour that was contrary to prison rules. The applicant’s response addressed those warnings, explaining the circumstances in which they occurred. Nevertheless, the warnings provided some evidence from which the delegate could reasonably be satisfied that the applicant had displayed a pattern of behaviour in custody which indicated he may have difficulty complying with parole conditions. Accordingly, the applicant’s submission must be rejected.

79    The applicant submits that the delegate’s finding that the applicant had not, “identified any plans on how you can further your rehabilitation”, was unwarranted and contrary to the evidence.

80    The Department’s letter of 16 July 2021, stated:

Without further information about your plans if you are released into immigration detention or the community in Liberia (sic), the decision-maker may consider that you currently lack adequate post-release plans and that your release on parole at this time therefore poses an unacceptable risk to the community.

81    The applicant submitted in response that:

My whole family live in Nigeria. We have businesses there. This is where all my support networks are located. My support networks, family and friends will help assist me, both in, the risk of reoffending and reintegrating back into society.

82    The delegate found in her reasons:

You lack sufficient post-release plans if you are released into immigration detention or deported to Nigeria. You have not identified any plans on how you can further your rehabilitation and improve your prospects of reintegration and you have not provided information about why you do not pose a risk to the safety of the community.

83    The delegate considered the applicant’s assertion that his family and friends in Nigeria would assist him in his rehabilitation and reintegration did not amount to “any plan” for his rehabilitation and reintegration. That was a factual determination. It had an evident and intelligible basis, namely that the mere claim that the applicant’s family and friends would help him was not a plan, or scheme of action, by which he could achieve rehabilitation and reintegration. I do not accept that the delegate’s finding was illogical, unreasonable or made without evidence.

84    The applicant also submits that the delegate’s finding that the applicant had not, “identified any plans on how you can further your rehabilitation”, was unwarranted given he had explained that he had been deemed unsuitable to participate in any custodial based rehabilitation or educational courses. However, the delegate’s finding was based on the applicant’s lack of “post-release plans”. It was not concerned with any failure to participate in programs within the prison system.

85    The applicant’s third ground must be rejected.

Conclusion

86    I have rejected the three grounds advanced by the applicant.

87    The application must be dismissed.

88    The applicant will be ordered to pay the respondent’s costs.

89    Although I have not specifically referred to the Attorney-General’s helpful submissions, I acknowledge the assistance provided by the parties.

Associate:    

Dated:    16 August 2022