Osman v State Parole Authority & the Attorney General of New South Wales

1. [1]

   Maywand Osman is presently serving a sentence of imprisonment, having been convicted of offences of affray contrary to s 93C of the Crimes Act 1900 (NSW) and causing grievous bodily harm contrary to s 35 of the same Act. He first became eligible for parole on 22 August 2017; his total sentence expires on 22 November 2020.

2. [2]

   On 10 July 2020, the first defendant, the State Parole Authority (“the Authority”) refused a grant of parole to the plaintiff. By Further Amended Summons, filed in Court on 6 October 2020 with leave, the plaintiff seeks judicial review of that decision pursuant to s 69 of the Supreme Court Act 1970 (NSW).

3. [3]

   The plaintiff seeks orders in the nature of certiorari quashing the decision of the Authority, and in the nature of mandamus directing the Authority to convene and determine the plaintiff’s eligibility for parole in accordance with law.

4. [4]

   The plaintiff advances nine grounds, by which he asserts that the decision of the Authority to refuse him parole was infected by jurisdictional error or that, in the alternative, there is error on the face of the record. Those grounds are as follows:

   1. (1)

      “The SPA misconstrued its jurisdiction under s159C(1) of the Act by failing to consider necessary components of the meaning of "terrorist act" and give that particular content to the meaning of s 159C, to wit, the particular nature of any such acts and the specified intentions set out in s 100.1 (1) (b) and (c) of the Criminal Act, such as constitutes jurisdictional error.

   2. (2)

      The SPA misconstrued its jurisdiction under s 159C (1) of the Act such as to constitute jurisdictional error, by falling to give proper content to the terms "engage in, or incite or assist others", which directed attention to legal relationships of direct, joint or accessorial responsibility.

   3. (3)

      The SPA misconstrued its jurisdiction under s 159C (1) of the Act by failing to properly construe "violent extremism” as intended in that section, such as to constitute jurisdictional error.

   4. (4)

      The SPA erred in failing to have regard to a mandatory consideration, namely those matters in s 159D (1) of the Act.

   5. (5)

      The SPA erred in failing to have regard to s 135 (2)(c) of the Act, which is a relevant consideration in a determination under s 159C, when read in conjunction with s 159D(1).

   6. (6)

      In making the Refusal Decision, the SPA took into account an irrelevant consideration by relying on the evidence of Dr Pulman as "instructive” expert opinion when:

   7. (7)

      In making the Refusal Decision, the SPA took into account an irrelevant consideration in finding that the evidence of Dr Pulman was "the only evidence that the [SPA] has at this point in terms of expert opinion about the matter" without giving proper consideration to the opinion of Mr Kilani as evidence based on specialised knowledge.

   8. (8)

      In the alternative, there is error of law apparent on the face of the record of the proceedings on each of the grounds set out above at 1-10. [sic-7].”

5. [5]

   The Authority filed a submitting appearance; the Attorney is the only active contradictor, a role for which the Court is grateful. The matter came before me for hearing on 6 October 2020; my reasons and the orders of the Court were reserved until today.

6. [6]

   Because of the shortness of time until the expiration of the plaintiff’s sentence, the Court allocated an early hearing date and, although no formal order was made, the proceedings have been treated with expedition. On the same basis, these reasons will be as thorough as is possible to meet the obligation to fully explain the orders of the Court, bearing in mind the urgency of the matter.

The Evidence

1. [7]

   The plaintiff read and relied upon two affidavits affirmed by Rhiannon McMillan on, respectively, 27 August 2020 and 16 September 2020. In her first affidavit Ms McMillan, who is the plaintiff’s solicitor, provided some background information relevant to the hearing of the plaintiff’s application for parole, and information to explain the delay in filing the present proceedings (principally connected with the procedural requirements relevant to obtaining a grant of legal aid to pursue them). She also provided the transcript of the hearing before the Authority on 10 July 2020, and of the Authority’s decision of that day; together with an earlier decision of the Authority of 29 June 2018, similarly refusing the plaintiff parole. In her second affidavit, Ms McMillan produced a copy of an affidavit of Ahmed Kilani sworn on 8 July 2020, which was before the Authority on 10 July 2020.

2. [8]

   The Attorney read and relied upon the affidavit of Patrick Mullane affirmed on 25 September 2020, by which Mr Mullane, solicitor for the Attorney, provided information about, and produced a volume of material related to, parole proceedings relevant to the plaintiff.

3. [9]

   The plaintiff took objection to the contents of much of Mr Mullane’s affidavit and the material he produced. Rather than expend a considerable amount of the time allocated to hearing the substantive claim in dealing with objections to evidence, the parties were content to leave the question of admissibility to the Court on an indication that, at least as a preliminary view, the Court was unlikely to need to consider any evidence except that referred to by the parties during the course of submissions as particularly salient to the determination of the plaintiff’s complaints.

4. [10]

   A schedule setting out the evidence admitted by the Court is an annexure to these reasons.

The Proceedings Before the Authority

1. [11]

   The plaintiff was refused parole by the Authority on 23 June 2017, 29 June 2018, and 8 March 2019. After the last refusal, the plaintiff sought a review of the March 2019 decision.

2. [12]

   On 10 July 2020, after a number of adjournments of the proceedings, the Authority convened to hear the application for review. To some extent the hearing also functioned as an anniversary hearing. The plaintiff and the Commissioner of Corrective Services NSW (“the Commissioner”) were each represented by counsel. The Authority was constituted by the Chairperson (and Judicial Member), two Official Members, and two Community Members.

3. [13]

   The Authority received evidence and submissions, the former in writing and the latter almost entirely so.

4. [14]

   It is not necessary for the purposes of these proceedings to consider the evidence that was before the Authority, save for that which is directly relevant to a ground of appeal, that being the evidence of Dr Susan Pulman, filed for the Commissioner, and of Ahmed Khilani, filed for the plaintiff.

5. [15]

   Dr Pulman, a forensic psychologist and clinical neuropsychologist, provided two reports, being a report of 2 October 2019 and a supplementary report of 29 May 2019, following assessments she had made of the plaintiff.

6. [16]

   Dr Pulman’s reports were lengthy and detailed, and it is not necessary to consider the greater part of what she reported, for present purposes. She took a history from the plaintiff, and comprehensively set out the details of the plaintiff’s personal history, including his family circumstances, educational and vocational background, his account of the offences for which he is imprisoned, and his conduct and progress whilst incarcerated.

7. [17]

   Of more salient matters, the plaintiff told Dr Pulman that the Pro-active Integrated Support Model (“PRISM”) course had made a real difference to him, and that he would like to continue the programme when released into the community. He believed it helped him gain insight into his behaviour, the risks of being associated with a negative peer group, and the importance of focusing on future positive goals.

8. [18]

   Dr Pulman noted in her first report that there was no indication that the plaintiff had been engaged in any violent behaviour during his incarceration. He had associations with people who are considered to hold extremist beliefs in custody, and had institutional misconduct charges for unlawfully using a phone or fax, intimidation, and failing to comply with correctional centre routine. Dr Pulman noted that Corrective Services Case notes recorded that he was influenced by other Muslim offenders, including those with confirmed extremist beliefs, although the depth and nature of his religious ideology was unclear.

9. [19]

   In relation to his criminal history, the plaintiff told Dr Pulman that he had talked about his offending behaviour as a component of the PRISM programme. In his teenage years he had aspired to the “gangster way of life”. He gave an account of the offences for which he is serving a sentence, acknowledging that it “got out of hand and I take responsibility for my actions, I didn’t know however that they were going to turn up with weapons, I thought we were just going to have a fight and it would all be over with”. After being released from prison, he was placed on an Interim Control Order, and acknowledged to Dr Pulman that he had breached the order, but did not appear to her to accept the significance of the breach, stating he was using a pay phone and “wasn’t doing anything sinister”.

10. [20]

    Dr Pulman questioned the plaintiff about his knowledge of groups such as ISIS, and the plaintiff responded that initially he had considered that “everyone supported ISIS at Goulburn, that you shouldn’t trust mainstream, we thought great when ISIS first started as it means Islam will spread, it’s our faith”. Having engaged with the Imam with the PRISM programme he said that he understood “the need to trust those who are educated in the religion, to trust in the community, those who had completed their qualifications in the Islamic faith”. He acknowledged that he had learned how to read Arabic from other high security classification offenders convicted of national security offences, and described being exposed to general discussions in regard to terrorist offences and organisations. The plaintiff maintained that at no stage did he support any form of ideologically motivated violence and has renounced the actions of offenders convicted of national security offences and the legitimacy of terrorist organisations.

11. [21]

    Dr Pulman noted that his reports of having a naïve understanding of terrorist groups before being in custody stood in contrast to the material found from the counter terrorism raids to which the plaintiff had been subjected, and the nature of his religious associates.

12. [22]

    Dr Pulman noted that the plaintiff’s PRISM reports identified his contact with alleged and confirmed extremists, including family and friends, as his primary extremist violence risk indicator. Dr Pulman noted that the plaintiff had expressed views that he does not hold any religious belief or attitude which condones violence or engagement, or encouragement of terrorism related activities. She concluded that it remains indeterminate:

13. [23]

    The plaintiff denied any current motivation to engage in any activities supporting violent and religious extremism. Dr Pulman noted that he had demonstrated identification with group activities, and the associated excitement and adventure, and “his ability to reject this lifestyle is yet to be tested”.

14. [24]

    Dr Pulman concluded that the plaintiff’s educational, employment, and criminal history suggested antisocial tendencies and difficulties with self-regulation. She thought that it was difficult to determine the level of risk of the plaintiff engaging in, or inciting or assisting others to engage in, terrorist acts or violent extremism, given that “his expressed view and beliefs cannot be tested within his current custodial environment”. Dr Pulman noted that a number of risk factors identified as part of his involvement in the PRISM programme continued to “present challenges for which [the plaintiff] reportedly requires ongoing support”. The reports stipulated that the plaintiff continues to minimise the risk of contact with his previous associates, and Dr Pulman noted that this suggests that there continues to be some risk that he may re-engage with previous, or make new, associates who are prepared to engage in “terrorist acts, or that he may be influenced by the view of such associates”. Risk assessment tools administered to the plaintiff informed Dr Pulman’s opinions as to the risk of extremist violence, and violence more broadly.

15. [25]

    Mr Khilani swore an affidavit on 8 July 2020. In it he stated that he was employed as a Prison Muslim Chaplain by the Islamic Council of NSW and, in the course of that employment, he visits prisons across the state and provides pastoral and spiritual care to inmates who seek it. He has worked as a religious mentor for some 20 years, and as a Prison Chaplain, specialising in working with inmates convicted of terrorism or terrorism related offences for 6 of those 20 years. Mr Khilani has also advised government agencies on issues connected with “de-radicalisation” and disengagement from religious extremism.

16. [26]

    As part of his chaplaincy work, Mr Khilani first met the plaintiff in April 2015 and saw him on about 20 occasions from then until July 2020. He formed the view that the plaintiff had, over that time, changed from a man with rigid thinking and little insight to a far more open-minded individual engaged with positive change in his life. It was Mr Khalil’s “professional opinion” that the plaintiff:

17. [27]

    Both the plaintiff and the Commissioner filed written submissions. Although the Commissioner relied upon earlier submissions, it is not necessary to have regard to any but those prepared for the proceedings of 10 July 2020, those – together with the corresponding submissions filed for the plaintiff – being the only submissions referred to in a material way during the proceedings in this Court.

18. [28]

    In his submissions to the Authority, the plaintiff accepted that consideration of his application for parole was governed by Division 3A of Part 6 of the Crimes (Administration of Sentence) Act 1999 (NSW) (the “CAS Act”), since he had previously been convicted of a “terrorism offence”, as defined by s 159A of the CAS Act (which, in turn, references, relevantly, s 3 of the Crimes Act 1914 (Cth)), and was thus deemed a “terrorism related offender”. The plaintiff argued however, that Division 2 of Part 6 also directly applied to the determination of his parole, as the sentence imposed upon him was one of more than three years duration, and a non-parole period had been specified. On that basis, it was submitted that the Authority should have regard to s 135 of the CAS Act in making its decision.

19. [29]

    The plaintiff argued that s 159C of the Act should be construed with a focus on the specific conduct the section proscribes and, considered in that way, it was argued that it could not be concluded that the plaintiff “will, could, or might engage in, or incite or assist others to engage in, terrorist acts or violent extremism”.

20. [30]

    The Commissioner argued that the Authority was precluded from granting the plaintiff parole by operation of s 159C(1) of the CAS Act, because the plaintiff was a terrorism related offender about whom it could not reach the high standard of satisfaction required that the plaintiff would not engage in or incite or assist others to engage in terrorist acts or violent extremism.

21. [31]

    At the hearing before the Authority Senior Counsel for the Commissioner sought an adjournment to permit the Commissioner to directly address the plaintiff’s challenge to the correctness of the Authority’s previous construction of s 159C of the CAS Act, in its earlier 2018 decision. There was debate on the construction issue before the Authority, with counsel making competing submissions as to the proper interpretation of the provision. Ultimately, the adjournment application was refused, and the Authority proceeded to determine the review.

22. [32]

    In its ex tempore reasons, the Authority set out the history of parole proceedings relevant to the plaintiff, referring particularly to the “detailed judgment of the Authority in relation to Mr Osman on 29 June 2018”, with the Authority stating:

23. [33]

    Noting that the plaintiff is a terrorism related offender, the Authority observed:

24. [34]

    The judgment also dealt with the plaintiff’s submission that s 135 of the CAS Act applied to his application, and that the Authority should give particular weight to the possibility that he would be released without supervision, if parole was not allowed, insofar as that was relevant to determining whether his release was in the interests of the safety of the community. The Authority’s conclusion as to that submissions was:

25. [35]

    The evidence before the Authority was noted in brief, and some focus given to the reports prepared by Dr Pulman, which the Authority regarded both as “instructive” and:

26. [36]

    Having received the evidence and submissions, the Authority’s determination to refuse parole was expressed thus:

The Application for Judicial Review

1. [37]

   The application is for judicial review of the decision of the Authority, invoking the supervisory jurisdiction of this Court, as expressed in s 69 of the Supreme Court Act. Although jurisdictional error can be difficult to distinguish from non-jurisdictional error, it was described by the High Court in Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, at 179, thus:

2. [38]

   Referring to Craig v South Australia, the errors which will constitute jurisdictional error were summarised in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1, at [72]–[73], as follows:

3. [39]

   The plaintiff’s principle complaint is that the Authority misconstrued and failed to exercise its jurisdiction pursuant to s 159C and s 159D of the CAS Act. It is contended that the Authority was required to make an evaluative judgment of the matters set out in s 159C, based upon a proper construction of the provision, but failed to properly exercise that jurisdiction by misconstruing the law and failing to give content to the criterion of the evaluative task.

4. [40]

   There is also a complaint relating to purported failures of the Authority with respect to the material taken into account in making the decision to refuse parole. In reaching findings of fact not supported by probative material, and uniformed by logic, it is submitted that there was further error.

5. [41]

   The Attorney submits that the construction given by the Authority to s 159C of the CAS Act was not erroneous, and its decision complied with the requirements of ss 159C and 159D. Further, it is argued that there was no error of law in the treatment of the evidence of Dr Pulman and Mr Kilani.

Determination

1. [42]

   There is no question that a decision to grant or refuse parole is one which is amenable to review by the Supreme Court: Esho v Parole Board Authority of NSW [2006] NSWSC 304; Attorney General of New South Wales v Chiew Seng Liew [2012] NSWSC 1223.

2. [43]

   Section 69 of the Supreme Court Act preserves the Curt’s jurisdiction to grant any relief or remedy that was formerly by way of writ. It provides:

3. [44]

   Errors of the nature contended for by the plaintiff are capable of being understood as jurisdictional error, open to be corrected by this Court.

4. [45]

   It is important at the outset, however, to clearly state that jurisdictional review is not a means of reviewing the merits of the impugned decision. It was on that basis that the Court expressed the preliminary view at the hearing of this matter that it should not be necessary to have regard to much of the evidence produced by Mr Mullane in his affidavit.

5. [46]

   The legislature has conferred upon the Authority the power to determine the merits of granting parole to an individual, and the Authority is specially constituted for that task. Its members are drawn from a wider range of experience and expertise than judicial or legal experience alone, and its consideration of the issues that routinely arise in parole hearings could not be reproduced or mirrored by a court. Jurisdictional review is directed to questions of compliance with the law. Importantly, in this instance, the principle question is whether the Authority correctly construed, and complied with, its statutory obligations pursuant to s 159C of the CAS Act.

6. [47]

   I have referred already to the narrow time frame in which these proceedings have been brought. That narrow timeframe raises a further issue which it is convenient to note at the outset, that of utility. The plaintiff’s parole is due to expire in a matter of weeks: there must in those circumstances be a real question as to the utility of these proceedings since, even if the orders he seeks are made, there would likely be at least some delay in the Authority reconsidering the question of parole. Whether the plaintiff would realise his liberty much if any sooner than the expiration of his sentence may be doubtful.

7. [48]

   The plaintiff contends that there is utility in bringing the proceedings, to him, but also to other terrorism offenders.

8. [49]

   Whilst a decision of a single judge of the Court will do little to clarify matters with respect to other terrorism offenders (although it is a necessary stepping stone to seeking a more authoritative statement of the law), I accept that there may be utility to the plaintiff if consideration of these matters raises the possibility of liberty earlier rather than later. On that basis, I turn to consider the grounds advanced by the plaintiff.

9. [50]

   Grounds 1 to 3A all raise a complaint as to the misconstruction by the Authority of s 159C of the CAS Act. Ground 4 asserts the failure of the Authority to have regard to a mandatory consideration, being the matters in s 159D of the CAS Act. Ground 5 complains of the failure to have regard to s 135 of the Act; whilst grounds 6 and 7 contend that the Authority erred in its consideration of evidence. Ground 8 raises as an alternative the errors advanced by grounds 1 – 7 as errors of law on the face of the record.

10. [51]

    By these grounds, the plaintiff contends that the Authority failed to properly construe its jurisdiction by failing to sufficiently engage with the criterion relevant to “terrorist acts” and by failing to properly construe the phrase “violent extremism”. Since both “terrorist acts” and “violent extremism” appear side by side in s 159C(1)(a), it is convenient to deal with these complaints together.

11. [52]

    It is conceded by the plaintiff that there was some “limited content” given to the meaning of the phrase “terrorist act” as it applies in the CAS Act, but it is argued that that consideration was insufficient. The Attorney argues that the test established by s 159C is a very strict test, and that it was both properly understood by the Authority, and properly applied. The reasons were adequate to explain the Authority’s application of the provision, particularly so since the reasons adopted and incorporated the earlier decision of the Authority of 29 June 2018.

12. [53]

    In considering this ground, it is useful to have regard to the proceedings before the Authority, as they were argued before it. The correct interpretation of s 159C, and the need for the Commissioner to make considered submissions on the matter, was the basis upon which he made his unsuccessful application for an adjournment of the hearing. It was a prominent feature of the written submissions filed for the plaintiff, and it was the subject of discussion between counsel and the Authority from the commencement of the hearing. The correct construction of s 159C was a matter clearly raised and argued by the plaintiff before the Authority, and it must have been a matter at the forefront of the Authority’s consideration in determining the question of parole.

13. [54]

    The Chairperson, referring to the plaintiff’s arguments in submission, and to the earlier June 2018 determination of the Authority (then presided over by Wood J), observed in discussion with counsel for the plaintiff that the test for a grant of parole was as articulated by s 159C, and the approach to be taken by the Authority was to “follow the Act”. His Honour noted that the state of satisfaction to be reached could be described as “positively satisfied” or “affirmatively satisfied” but:

14. [55]

    Counsel for the plaintiff disputed that as “speculation”, but his Honour did not accept that characterisation. He said:

15. [56]

    In the ex tempore reasons delivered by the Authority, the issue of the construction of s 159C was considered, with the Authority concluding that s 159C mandated that the Parole Authority must not make a parole order with respect to a terrorism offender unless satisfied that the offender will not do those things referred to in s 159C(1) of the CAS Act. Regarding ss(1)(a) and (1)(b) as conjunctive, the Authority was of the view that “you do not get to (b) until you are satisfied of (a).

16. [57]

    Section 159C is found in Division 3A of Part 6 of the CAS Act. It is in these terms:

17. [58]

    The Authority regarded the test posed by s 159C as “a very rigid test” which precluded it from making a grant of parole and directing the release of a terrorism offender unless satisfied that the “very strict test” established by s 159C(1)(a) was satisfied. It was not “positively satisfied (in the sense of the Osman determination of 2018)” and refused parole.

18. [59]

    In its reasons, they being the relevant “record” for the purposes of judicial review, it is correct that, as the plaintiff complains, the Authority did not set out and separately consider, or “give content to”, the criteria established by s 159C(1)(a), that the offender will not “engage in, or incite or assist others to engage in, terrorist acts or violent extremism”. However, that does not in my view lead to the necessary conclusion that the Authority misconstrued and failed to fulfil its statutory duties.

19. [60]

    One must firstly be conscious of the nature of proceedings conducted by an administrative tribunal. Specific powers and duties have been conferred on particular tribunals by the legislature with the intention of establishing bodies that are relatively informal, which can work flexibly and efficiently, and which will have a level of expertise in the relevant area. In the instant matter, Part 8 of the CAS Act sets out the role and procedure of the Authority. The Authority, unlike a court, is not restricted by the rules of evidence and procedure and, whilst it is presided over, as in the present instance, by a highly experienced judicial officer, its members bring to it a wider range of experience and knowledge than of the law alone.

20. [61]

    Nor does the Authority bear an obligation to give extensive reasons for its decisions. Section 193C(1) of the CAS Act requires the Authority to “cause a record of its reasons… to be kept in the minutes of its meetings” for some decisions, including decisions in which parole is refused: s 193C(1)(a). The record of reasons must address (relevantly) those matters it is required by the Act or the Regulations to take into account: s 193C(2)(c).

21. [62]

    Also, as the Federal Court observed in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107, at 364, [45]:

22. [63]

    See also Attorney General of New South Wales v New South Wales State parole Authority [2006] NSWSC 865, per McClellan CJ at CL at [49], where this Court applied that principle to decisions of the Parole Authority:

23. [64]

    Although the plaintiff is critical of the Authority for failing to properly consider the construction of s 159C, it is clear from the argument before the Authority, from the discussion between the Chairperson and counsel during the hearing, and from the Authority’s reasons, that the Authority was alive to the controversy between the parties as to the construction of s 159C, had considered the issue carefully, and proceeded on the basis that the provision had been properly considered and construed in June 2018, with the Authority as constituted in 2020 regarding that as the correct approach.

24. [65]

    There was debate during the hearing before me as to the extent to which the Authority’s June 2018 reasons could be regarded as incorporated into the 2020 decision and, whilst I accept that the factual and evidentiary matters referred to in the 2018 decision could not be taken as forming part of the Authority’s 2020 reasons, those portions addressing its consideration, construction, and application of s 159C should be. The Authority plainly intended to include in its reasons at least that part of the 2018 judgment, where consideration was there given to matters of law, and said so in its reasons, at T9:46–T10:01, and at T12:42, of the decision of 10 July 2020.

25. [66]

    In the earlier decision of the Authority, there was, as the Chairperson observed, “quite a detailed judgment”, in which s 159C of the CAS Act was considered, no doubt because of the then recent passage of the Terrorism Legislation Amendment (Police Powers and Parole) Bill 2017 (NSW) through the Parliament, legislation which altered the way in which parole decisions were to be made for “terrorism offenders” as opposed to other prisoners.

26. [67]

    In the 2018 decision, the Authority referred to the amendment to the legislation and observed:

27. [68]

    Under a heading “CAS Act Division 3A – Interpretation”, the Authority – across four and a half pages of transcript – gave careful and thorough consideration to the construction of the Division, and particularly, to the construction and operation of s 159C. The whole of that consideration is plainly what the Authority was referring to when it said in its 2020 decision, “we accept the approach outlined in the judgment”. Having accepted that approach as correct, there was no need for the Authority to reproduce the content of that portion of the 2018 decision in its 2020 decision, or to re-consider what had already been examined.

28. [69]

    In the 2018 decision, the Authority referred to the meaning of “terrorist act”, and noted that it had the same meaning for present purposes as defined in ss 100.1(1)–100.1(4) of the Criminal Code (Cth) (“the Code”). That is (relevantly):

29. [70]

    That provision is located in Part 5.3 of the Code, and forms part of the definition of “terrorism offence” given by s 3 of the Commonwealth Crimes Act. Although the section was not reproduced in the Authority’s judgment, it did not need to be; it is plain that the Authority was alive to its relevance, and to the very particular and narrow meaning of “terrorist act”.

30. [71]

    The 2018 decision correctly noted that there was no statutory definition of “violent extremism” in the CAS Act or in the Code, and noted that:

31. [72]

    The use of the phrase “or otherwise” was particularly criticised by the plaintiff as importing error by defining “violent extremism” too broadly and without precision. The Court was referred to the decision of State of New South Wales v Elmir (Final) [2019] NSWSC 1867 at [34] wherein Walton J considered the phrase to refer to “violence motivated by, or undertaken in furtherance of, extreme political or religious views”.

32. [73]

    Although the use of an open ended phrase such as “or otherwise” is generally unhelpful, I do not regard it as constituting jurisdictional error or error on the face of the record in the present context. There does not seem to be any real basis to constrain the meaning of the phrase “violent extremism” to applying only to acts of religious extremism. A violent act in support of, or to advance, an extreme viewpoint or system of belief, whether religious, or political, or of some other nature, is likely to be caught by the phrase “violent extremism”. By “religious or otherwise” the 2018 decision of the Authority comprehends the phrase “violent extremism” to include violent acts motivated by an extreme religious viewpoint, but also those motivated by extreme views with non-religious origins. As the Attorney pointed out in oral submission, that could include violent acts done with an intention of advancing an ideological cause which is not religious, and may not be political.

33. [74]

    A broad construction of the meaning of the phrase is consistent with the clear intention of the legislature to more severely restrict the liberty of persons regarded as “terrorist offenders”.

34. [75]

    In the 2018 decision, the Authority went on to consider what level of satisfaction was required by s 159C(1)(a), referring to Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 261–262; Fernandez v Government of Singapore (1971) 1 WLR 987 at 993-994; and Malec v JC Hutton Pty Ltd (1990) 169 CLR 368; [1990] HCA 20 at 643- 643, as to a test to be applied to a future possibility rather than a past occurrence. Ultimately, it concluded that what was required was for it to:

35. [76]

    By “relevant conduct,” the Authority was referring back to those matters set out in s 159C, as defined by s 3 of the Crimes Act 1914 and as illuminated by s 100.1(1) – (4) of the Code.

36. [77]

    The Authority did not, in the 2020 decision or in those parts of the 2018 decision it referred to and relied upon, go on to list what was meant by “relevant conduct”, or to directly apply the evidence to every possible configuration of a terrorist act or act of violent extremism caught by Part 5.3 of the Code. The task would be as daunting as it should be unnecessary.

37. [78]

    To illustrate that point, s 159(1)(a) requires the Authority to be satisfied that an offender will not do any one of:

    1. (1)

       Engage in terrorist acts;

    2. (2)

       Incite terrorist acts;

    3. (3)

       Assist others to engage in terrorist acts;

    4. (4)

       Engage in violent extremism;

    5. (5)

       Incite violent extremism; or

    6. (6)

       Assist others to engage in violent extremism.

38. [79]

    To fully elucidate the meaning of the provision as it applies to “terrorist act”, and without turning to “violent extremism” at all, for each act referring to a terrorist act, that is the first three types of act caught by the provision, it would be necessary to canvas each of those things referred to in s 101.1(1), (2), and (4). This permits of hundreds and hundreds of possible permutations, any one of which will be a “terrorist act” for the purposes of the Code, and thus for the purposes of s 159C. For my part, I do not think that such a detailed explication of the meaning of “terrorist act” is what is required of the Authority.

39. [80]

    Bearing in mind that the Authority’s reasons should not be parsed and analysed with a determination to find error, I can see no error in the construction of s 159C applied by the Authority. It should not be necessary for a tribunal to set out the full terms of relevant legislation, such as the relevant portions of the Code, for it to be understood that the body was aware of and understood the legislation. Nor should it be necessary for a tribunal to analyse legislation in its reasons in exhaustive detail. A tribunal cannot, after all, make law, and its interpretation of statutory provisions is not authoritative: Kirk v Industrial Court at [69]. That must come from an authoritative statement from a superior court.

40. [81]

    As the Chairperson observed in the course of discussion with counsel, and in the Authority’s decision, the test imposed by s 159C is a very strict test. It is one which is difficult for a prisoner deemed a terrorist offender to meet; that is clear from the language and intention of the provisions introduced by the 2017 amendments: “the Parole Authority must not make a parole order”; “unless satisfied that the offender will not”. These provisions do not allow the Authority any discretion in the application of s 159C.

41. [82]

    The language of the provision is consistent with the apparent aims of Division 3A. Division 3A was introduced into the CAS Act by the Terrorism Legislation Amendment (Police Powers and Parole) Bill 2017 (NSW). The amendments followed the event now infamous as the Lindt Café Siege, and the subsequent findings and recommendations of the Coroner relevant to that incident.

42. [83]

    It is clear that, following that event, the legislature intended to more stringently regulate the conduct and oversight of persons deemed to be terrorism offenders. So much is clear from both the legislation, and from the content of the speeches in the Legislative Assembly on 21 June 2017, when the Bill was debated. Although the statutory language is clear, and recourse to extrinsic materials is not needed to construe the provision, the second reading speeches confirm the construction.

43. [84]

    The Hansard records the Premier, in moving that the Bill be read a second time, as stating:

44. [85]

    In the same sitting, the Attorney made remarks demonstrating a similar intention to make it more difficult for those designated as terrorism offenders to be granted parole. The Hansard records him as saying:

45. [86]

    The language of s 159C establishes a presumption against parole for a terrorism offender, which can only be displaced if both s 159C(1)(a) and (1)(b) are satisfied. Section 159C(1)(a) requires the Authority to be positively or affirmatively satisfied that the conduct referred to in (1)(a) will not eventuate. That is a very high bar to pass, as was observed to in the 2020 decision, and in those portions of the 2018 decision to which the latter decision referred. That is, as the Authority said in the 2018 decision, adopted by the 2020 decision:

46. [87]

    The Authority was aware of the high bar created by s 159C(1). It was aware of and understood the meaning of the phrase “terrorist act”, having explicitly observed that the phrase “has the same meaning as in Part 5.3 of the Criminal Code Act 1999”. Its understanding of “violent extremism” as “engagement in acts involving violent behaviour that is motivated or driven by extreme beliefs” and which “present a risk to the safety of the community” is sufficient. The fact that extreme beliefs were characterised by the Authority as “religious or otherwise” does not detract from that conclusion.

47. [88]

    The Authority correctly, in my view, proceeded on the basis that it had to be positively satisfied that the plaintiff would not engage in one of those acts caught by s 159C(1)(a), before it could proceed further to determine the question of parole.

48. [89]

    These grounds are not made out.

49. [90]

    By this ground, the plaintiff argues that the Authority fell into error in failing to “give content to” the words “engage in, or incite or assist others” in s 159C of the CAS Act. It is argued that it was necessary for the Authority to delineate between a terrorist act done as a principal – “engage in”; and acts done by inciting or assisting another, since the nature of those acts rely upon differing states of mind to which the Authority should have given attention. It is argued that the failure to “engage with its jurisdiction in relation to the necessary criterion of” engage / incite / assist constitutes a failure to properly construe the terms, resulting in jurisdictional error.

50. [91]

    The plaintiff suggests that the Authority should have had regard to the meaning of the words given at common law and in the Code but, as the Attorney pointed out in submission, there are problems with that approach that do not support its legitimacy.

51. [92]

    Although the CAS Act specifically refers to or adopts particular parts of the Code, such as Part 5.3, the definition in the Code of “incite” at s 11.4 is not one of those particular provisions. It might be concluded that, if the legislature intended the word to have the same meaning in the CAS Act as it has in the Code, it would have said so.

52. [93]

    There is no definition of “engage” or “assist” found in the Code. It would be an unusual approach to statutory construction to rely upon another act to supply the meaning of one word in a provision, but look elsewhere for meaning for other words in the same provision.

53. [94]

    Similarly, whilst the common law can supply a meaning for “incite” and “assist” in the context of accessorial liability to crime, it does not illuminate the meaning of “engage”. That does not suggest that meaning for two of the three words can be drawn from one source, when the same source is barren of assistance in construing the third.

54. [95]

    Since reference to the common law or to the Code would mean adopting an inconsistent approach to give meaning to individual words used in s 159C(1), I respectfully reject the plaintiff’s submission in that regard. Consistent with authority, it is appropriate to have regard to the ordinary meaning of the words, bearing in mind the purpose of the Act, as mandated by s 33 of the Interpretation Act 1987 (NSW). As was observed by French CJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, at [4]:

55. [96]

    That appears to be the approach taken by the Authority: to give the words their ordinary meaning, with regard to the purpose of Division 3A, without need for any exploration of possible common law or Code definitions or meaning.

56. [97]

    I can discern no error in that approach.

57. [98]

    This ground combines each of grounds 1, 2, and 3 and was added by the plaintiff to address a criticism made by the Attorney in his written submissions. It is adequately addressed by the determination of the individual grounds, above.

58. [99]

    The plaintiff contends that, in making its determination under s 159C, the Authority is required to have regard to those matters in s 159D(1), this being a mandatory consideration, and may have regard to s 159D(2). In failing to consider s 159D there was, it is submitted, jurisdictional error.

59. [100]

    Section 159D(1) and (2) is in these terms:

60. [101]

    The language is that of command, that the Authority “is to have regard to any credible information it has” in fulfilling its statutory obligation with respect to the test established by s 159C, a test echoed in the language of s 159D.

61. [102]

    In the 2020 reasons, s 159D is not specifically referred to. The Attorney argued that the section was referred to in the 2018 decision of the Authority, and that the discussion therein may be regarded as imported into the 2020 decision. I cannot, however, accept that approach.

62. [103]

    I have referred earlier to the basis upon which the portions of the 2018 decision can be taken to be incorporated into the 2020 decision, namely, that the Authority in its consideration of the meaning and application of s 159C specifically referred to and adopted the approach of the differently constituted 2018 Authority. For two reasons, it is not open to proceed in the same way with respect to the Authority’s reasons relevant to this ground.

63. [104]

    Firstly, I do not understand the Authority’s reference to the earlier decision to function as an adoption of the whole of it. The references were made in the context of the resolution of the debate as to the meaning of s 159C, and in thereafter reaching a conclusion, having applied s 159C as it was construed by the Authority in 2018. The references cannot in my view be taken as an adoption of any part of the 2018 reasons beyond that.

64. [105]

    Secondly, beyond referring to earlier decisions with respect to specific matters, such as the construction of s 159C, it would make little sense for the Authority to seek to incorporate by reference matters from an earlier decision where there was a distinctly temporal relevance that may no longer apply. In the 2018 decision, the Authority referred to s 159D in the context of its consideration of the information that informed its decision at that time to refuse parole. That was a decision made on the basis of material then available to the Authority. In 2020, the obligation of the Authority was to have regard to the credible information available to it at that time to determine whether the presumption against parole created by s 159C was displaced.

65. [106]

    On that basis, this ground falls to be determined by reference to the 2020 decision alone, a decision in which s 159D was not referred to in terms. The question is if the failure to refer to the provision, even whilst going about the task the provision requires be undertaken, constitutes jurisdictional error. I am not persuaded that it does.

66. [107]

    I have already referred to the less stringent requirements that apply to the reasons given by an administrative tribunal, as opposed to those that apply to a court exercising a judicial function, and to s 193 of the CAS Act with respect to what is required under the Act.

67. [108]

    What is significant in my view is not whether an administrative tribunal recited legislation, but whether it complied with it. The reasons of the Authority make clear that it did, insofar as there was “credible information” to which to have regard when assessing risk. What was or was not credible information of the material before the Authority is not a matter that falls to be determined by this ground, since it is not raised by the plaintiff.

68. [109]

    The Authority said that it had had regard to all of the information and submissions placed before it. In the course of giving judgment the Authority specifically referred to:

    1. (1)

       An updated PRISM report of 20 January 2020 together with an addendum of 24 February 2020;

    2. (2)

       The risk assessment reports from Dr Pulman, with that dated 29 May 2020 in some detail;

    3. (3)

       The affidavits of Mr Kilani, Tamara Daqiq, and of the plaintiff’s mother; and

    4. (4)

       The submissions of the parties.

69. [110]

    The Authority placed some weight on the reports from Dr Pulman; apparently less weight was given to the affidavits. The Authority noted that the material “was to be considered in conjunction with all the available material”. It went on to consider the s 159C(1) test, concluding that “on the totality of the material presently available” the Authority had not reached the necessary state of satisfaction as to those matters in s 159C(1).

70. [111]

    That is, the Authority read and considered all available information and made its decision. Its decision was that mandated by s 159C(1), and referenced in s 159D, concerning whether it could be satisfied that the plaintiff would not “engage in, or incite or assist others to engage in, terrorist acts or violent extremism”.

71. [112]

    The plaintiff has not, by this ground, pointed to any “credible information” to which the Authority failed to have regard and I have not identified any in the limited evidence admitted in these proceedings.

72. [113]

    This ground fails.

73. [114]

    By this ground the plaintiff contends that the Authority should have regard to s 135(2)(c) when making its determination under s 159C and, in holding to the contrary, there was error.

74. [115]

    Section 135 is found in Division 2 of Part 6 of the CAS Act, that being the Division that applies to parole orders for sentences of 3 years or more. The plaintiff is serving a sentence of 5 years and 3 months imprisonment and, he argues, s 135 therefore applies to him.

75. [116]

    The Authority specifically considered the application of s 135, as it was urged to do by the plaintiff in his submissions to it. In discussion with counsel the Chairperson pointed to the plaintiff’s contention in that regard, observing to counsel for the Commissioner:

76. [117]

    With counsel for the plaintiff there was the following exchange:

77. [118]

    It seems that, at least before the Authority, the plaintiff did not greatly differ from the view expressed by the Chairperson in his opinion of the relevance of s 135. Before this Court, however, it is contended that the Authority erred in concluding that it could not have regard to the matters in s 135(2)(c) when considering s 159C(1)(a).

78. [119]

    In its decision, the Authority concluded that s 135 could not be incorporated into the s 159C test. It said:

79. [120]

    In my view, the Authority was correct to so hold.

80. [121]

    By its clear terms s 159C(1)(a) of the CAS Act prohibits the Authority from making a parole order directing the release of a terrorism related offender unless it is satisfied that the offender will not engage in the conduct specified in the section. That is the first test that the Authority must turn to when considering parole for a terrorism related offender.

81. [122]

    Only if the Authority reaches that positive state of satisfaction, can it turn to consider those things referred to by s 159C(1)(b) as to the offender’s eligibility for parole otherwise. It is necessary for ss (1)(a) to be met before the Authority could turn to ss (1)(b); that is the purpose of the conjunctive “and” between the two subsections.

82. [123]

    In determining whether a terrorism related offender “is otherwise eligible under this Act to be released on parole,” the Authority is obliged to consider those other provisions in the Act governing eligibility, relevantly for present purposes, s 135.

83. [124]

    Section 135(1) is framed as a command – “the Parole Authority must not make a parole order” unless satisfied that an order is in the interests of the community. In determining whether parole is in the interests of the community pursuant to s 135(1), regard must be had to those matters enumerated in s 135(2), including the risk to the safety of the community in releasing an offender with no or insufficient parole. That is the point at which s 135(2)(c) falls to be considered.

84. [125]

    The correctness of that approach finds some support in s 135(8) which provides that the Authority is not required to consider those matters in the section if, under Division 3A, it determines it cannot make a parole order. Put another way, only if the Authority reaches the state of satisfaction in s 159C(1)(a) is it required to consider the matters in s 135.

85. [126]

    That was the approach of the Authority in the plaintiff’s case, and it was in my opinion the correct approach.

86. [127]

    These grounds complain of the error made by the Authority in taking into account an irrelevant consideration – the reports of Dr Pulman; and in failing to take into account a relevant consideration – the affidavit of Mr Kilani.

87. [128]

    In Craig v South Australia, the High Court held (at 179) that for an administrative tribunal to “ignore relevant material” or to “rely on irrelevant material” in circumstances where “the tribunal’s exercise or purported exercise of power is thereby affected” is to exceed its authority or powers. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Mason J collected (at 39) a number of propositions that were established by the authorities with respect to the related grounds of failure to take into account a relevant consideration, or taking into account an irrelevant consideration, by makers of administrative decisions. His Honour said:

88. [129]

    There is no question but that the Authority took into account Dr Pulman’s report, and regarded it as “instructive” or important in considering the test at s 159C(1)(a). Of the evidence, the Authority said:

89. [130]

    Later in its reasons the Authority observed that Dr Pulman’s report was “instructive and is the only evidence that the Authority has at this point in terms of expert opinion about the matter”.

90. [131]

    It is clear that the Authority regarded the psychological reports as “credible information” relevant to the assessment of the risk that the plaintiff would involve himself in the conduct referred to in s 159C, and gave it some weight in that regard. I can see nothing in the CAS Act that prohibits the Authority from so doing.

91. [132]

    The reports were prepared by a highly qualified forensic and neuropsychologist with decades of experience to inform her opinions, and specific training in risk assessment, albeit not in the administration of one particular actuarial tool. She had been engaged to assess the plaintiff from that perspective and consider the level of risk he might pose to the community of conduct caught by s 159C.

92. [133]

    Although her report was not couched in terms of the likelihood or otherwise of the plaintiff “engaging in, or inciting or assisting others to engage in, terrorist acts or violent extremism”, that was not a matter for her in any event; that was the test for the Authority to apply.

93. [134]

    What Dr Pulman’s report did do was raise the prospect that the plaintiff was espousing his rejection of extremist views because he understood that his release from custody depended upon it, rather than from any real conviction in that regard. That in turn was relevant to the question for the Authority, whether it could be satisfied that the plaintiff would not engage in terrorist acts or violent extremism within the meaning of s 159C.

94. [135]

    In my conclusion there was no error in the Authority giving consideration to Dr Pulman’s reports, and “making of them what it would”. The information she provided was capable of being regarded as credible, and it informed the test the Authority was obliged to consider. Whether it was “instructive” or not was ultimately a matter for the Authority.

95. [136]

    The same principles set out in Peko-Wallsend and referred to above are relevant to the complaint as to the asserted failure of the authority to consider Mr Kilani’s affidavit as specialised or “expert evidence” available to consider in the same way as Dr Pulman’s evidence was considered by the Authority.

96. [137]

    There are two obvious points to make at the outset when considering this ground. The first is that Mr Kilani was not advanced or relied upon by the plaintiff as an expert. His particular experience was set out in his affidavit, but the plaintiff did not at any stage rely upon his evidence as that of an expert. Although the hearings before the Authority are not bound by the rules of evidence, there are some conventions of practice familiar to the Authority and to the legal professionals appearing before it that are typically observed, including the acknowledgment by expert witnesses of the Expert Witness Code of Conduct. Mr Kilani did not refer to or accept the Code of Conduct, and that may be taken as confirmation that his evidence was not advanced as that of an expert.

97. [138]

    If the plaintiff did not advance or refer to Mr Kilani as an expert, it is unclear to me why the Authority should have done so, or why its failure in that regard is an error amenable to judicial review.

98. [139]

    The second point to be made is that, notwithstanding Mr Kilani’s extensive experience in working with persons regarded as terrorists or religious extremists, he did not interact with the plaintiff in that capacity. As is clear from his affidavit, whilst Mr Kilani has in the past been consulted by government bodies concerning matters connected to religious extremists and religious extremism, Mr Kilani’s interaction with the plaintiff was in his capacity as a religious minister giving spiritual care and guidance to a member of his religious community. Mr Kilani was not asked to make an assessment of the plaintiff’s capacity for extremist violence, and made no such assessment. He expressed his opinion as a religious cleric about a member of his flock.

99. [140]

    It was open to the Authority not to treat Mr Kilani’s “professional opinion” as expert or specialised evidence informing the assessment of risk.

100. [141]

     That the Authority did take Mr Kilani’s opinion into account however, should not be doubted, when all relevant circumstances are considered. The Authority both said in its reasons that it had considered the affidavit, and quoted the most significant part of it. Although the plaintiff urged a conclusion that the Authority did not “engage in an active intellectual process” in considering the content of Mr Kilani’s affidavit, there is no clear evidence of that, and it is the plaintiff who bears the burden of establishing the proposition.

101. [142]

     Mr Kilani’s evidence was not voluminous or complex; it was short and straightforward. The Authority had received the material in advance of the hearing, and had adequate time to reflect upon it. The Authority quoted in its reasons the aspect of the evidence most critical to the test at s 159C(1). Those features point to the Authority having considered the content of Mr Kilani’s affidavit in a meaningful way, in the context of the whole of the information before it, and apportioning to it the weight it thought the evidence warranted. Weight was a matter for the Authority.

102. [143]

     Where an administrative decision maker says consideration has been given to a particular matter, a conclusion to the contrary will not be lightly made: Carrascalao at 364, [48].

103. [144]

     I cannot conclude that the Authority failed to have regard to Mr Kilani’s evidence or engage with it in a considered way.

104. [145]

     For the reasons given above, I do not conclude that there was error on the face of the record.

105. [146]

     Not having concluded that the Authority fell into error, it has not been necessary to consider the question of materiality referred to in Minister for Immigration and Border Protection v SZMTA & Anor (2019) 264 CLR 421; [2019] HCA 3; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34.

Conclusion

1. [147]

   The plaintiff has failed to establish a basis for relief against the orders of the Authority made on 10 July 2020. The summons should be dismissed, with costs.

2. [148]

   The orders of the Court are:

   1. (1)

      Summons filed on 6 October 2020 is dismissed;

   2. (2)

      Subject to order (3), costs on an ordinary basis against the plaintiff;

   3. (3)

      Should either party seek an order for costs different to that specified at order (2), submissions and evidence should be filed and served by 30 November 2020; with any submissions and evidence in reply to be filed and served by 13 December 2020. Any variation to order (2) will be determined on the papers.