Frankcom v Commissioner of Corrective Services

On 25 March 2020, in the early stages of the COVID-19 pandemic, the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) (the Emergency Measures Act) came into operation.

The Emergency Measures Act amended the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act) by introducing Pt 15, including s 276 which conferred on the Commissioner of Corrective Services a power to make an order releasing an inmate to early parole, in the context of the COVID-19 pandemic, if the inmate belonged to one of the classes of inmate identified in the section and the other statutory requirements under s 276 were met.

The Commissioner issued instructions and put in place procedures for use in determining whether inmates should be released to early parole under s 276 of the CAS Act.

The plaintiff, Mr Frankcom, an inmate in a correctional centre, sought release to early parole under s 276 of the CAS Act. The Commissioner did not make a release order in the plaintiff’s case or in any other case.

By Mr Frankcom’s further amended summons filed on 22 February 2022, he now seeks to challenge the Commissioner’s decisions and approach in relation to s 276.

In his further amended summons, the plaintiff sought orders as follows:

The plaintiff’s grounds of review were premised on the fact that the plaintiff belonged to one of the classes referred to in s 276(1)(a) and that the Commissioner refused to consider the application of s 276(1) to the plaintiff’s circumstances. In substance, the plaintiff relied upon three grounds:

It is relevant to note that there was no challenge to the plaintiff’s standing to bring judicial review proceedings. Similarly, it was not in issue that the decisions identified by the plaintiff as the Systems Decision, the Alternative Systems Decision and the Submissions Decision, as well as the Rejection Decision identified in written submissions, were reviewable decisions for the purposes of whether relief as sought in the further amended summons should be granted. Accordingly, it is unnecessary to consider those matters further.

In order to deal with each of the three grounds of review relied on by the plaintiff, it is necessary to set out the relevant factual circumstances and the evidentiary basis relied upon by the plaintiff to establish each of the challenged decisions.

The evidence relied upon in this matter was largely documentary and it was agreed between the parties that tabs 21 and 22 (pp 140 to 148) of Ex RMS-2 in the proceedings were not to be included in the exhibit and those pages have been removed. There was also no dispute between the parties as to what relevantly occurred in the present case, which is described the paragraphs which follow.

In March 2020, the potential magnitude of the impact of the COVID-19 pandemic started to become apparent.

On 25 March 2020, the Emergency Measures Act, by which s 276 was inserted into the CAS Act, received the Royal Assent and came into force. Section 276 empowered the Commissioner to release certain inmates in correctional premises to early parole. The relevant text of s 276 is set out later in this judgment.

On 3 April 2020, cl 330 of the CAS Reg commenced when it was published on the NSW Legislation website: cl 2 of the Crimes (Administration of Sentences) Amendment (COVID-19) Regulation 2020. This clause established, among other things, the classes of inmates in respect of whom a release order under s 276 could be made. Once again, the relevant text of cl 330 is set out below.

On 17 April 2020, the Commissioner issued a Commissioner’s instruction under s 235B of the CAS Act (the 17 April 2020 instruction), which was binding on Correctional Services NSW staff. That instruction included:

The documents attached to the 17 April 2020 instruction included one headed “Procedures for releasing offenders to parole under the COVID-19 emergency provisions” (the 2020 Procedures) and a number of proforma that were designed for use if the procedures referred in the 2020 Procedures were implemented. Nothing is said to turn on the contents of those proformas.

The 2020 Procedures relevantly contained the following:

The plaintiff’s case was that the 2020 Procedures evidenced the “Systems Decision” that the Commissioner would not consider making determinations on whether to grant parole under s 276 based on the risk posed to individual inmates in their circumstances arising from the COVID-19 pandemic, but would only make such determinations on the basis of the operational needs of CSNSW. This contention was based on the fact that the section headed “1 Background” in the 2020 Procedures contained the following:

On 21 April 2020, the Acting Assistant Commissioner, Community Corrections, issued a memorandum (21 April 2020 memorandum) to the Directors and Managers of Community Corrections with the subject: “Preparations to implement emergency release procedures”.

The 21 April 2020 memorandum relevantly included the following:

On 24 April 2020, Ms Simpson of the Prisoners Legal Service made representations on behalf of a Mr Leonard, in relation to his possible release under s 276 of the CAS Act.

On 28 April 2020, the Commissioner responded to Ms Simpson by letter in the following terms:

The plaintiff’s case was that the statement in the Commissioner’s letter dated 28 April 2020 to Ms Simpson concerning Mr Leonard that: “I may enact this provision if I am satisfied it is essential to maintain the good order and security of correctional centres during the COVID-19 pandemic”, evidenced the “Alternative Systems Decision” to the effect that the Commissioner would only consider making determinations on whether to grant parole under s 276 if satisfied of that matter.

The plaintiff also contended that this 28 April 2020 letter, among others, evidenced the “Submissions Decision” that the Commissioner would not take any submissions in favour of the exercise of the power for any eligible inmate on the basis that the letter said: “I will not be taking applications from inmates, legal practitioners or family members”.

In 21 May 2020, Ms Hrouda, a solicitor from Legal Aid NSW, wrote to the Commissioner requesting that he apply s 276 of the CAS Act and cl 330 of the CAS Reg and release a Mr Bibby to early parole.

On 15 June 2020, the Acting Director, Corrections Strategy & Executive Services responded, on behalf of the Commissioner, to Ms Hrouda’s letter. After referring to Ms Hrouda’s letter and setting out a summary of the relevant effect of s 276 and cl 330 (about which no complaint is made in the present case), that response included the following:

This letter of 15 June 2020 to Ms Hrouda was also contended to evidence the “Submissions Decision” that the Commissioner would not take any submissions in favour of the exercise of the power for any eligible inmate based on the first paragraph of the letter quoted above.

At some time in 2021, possibly on 10 September 2021, a revised version of the 2020 Procedures document was finalised (the 2021 Procedures document).

The contents of the 2021 Procedures document were not, for present purposes, materially different from the 2020 Procedures document, but it can be noted that:

Like the 2020 Procedures, the 2021 Procedures also contained, in the section headed “1. Background”, the statement: “The provisions may or may not be used, depending on the operational needs of CSNSW to manage COVID-19 related issues”. Once again, this statement in the 2021 Procedures was said by the plaintiff to evidence the making of the “Systems Decision” that the Commissioner would not consider making determinations on whether to grant parole under s 276 based on the risk posed to individual inmates in their circumstances arising from the COVID-19 pandemic but would only make such determinations on the basis of the operational needs of CSNSW.

On 22 September 2021, Ms Simpson sent an email to the Acting Commissioner of Corrective Services to which was said to be attached “an application for parole pursuant to section 276 [of the CAS Act] for Mr Frankcom [the plaintiff] for your consideration.” The attachments included an eight page application together with 64 pages of supporting documentation.

On 5 October 2021, Mr Tucker, Director, Corrections Strategy & Executive Services, on behalf of the Acting Commissioner responded to application in relation to Mr Frankcom. That response relevantly included:

The plaintiff contended that this letter of 5 October 2021 evidenced the “Submissions Decision” that the Commissioner would not take any submissions in favour of the exercise of the power for any eligible inmate. This letter was also submitted to be a decision declining to consider granting parole to the plaintiff under s 276, described as the “Rejection Decision”.

On 6 October 2021, the Acting Commissioner issued a Commissioner’s Instruction (the 6 October 2021 instruction) under s 235B of the CAS Act which rescinded and replaced the 17 April 2020 instruction. The 6 October 2021 instruction relevantly stated:

The updated policy and procedures referred to in the 6 October 2021 instruction included the 2021 Procedures document and related proformas.

On 29 October 2021, Mr Frankcom and two other plaintiffs filed a judicial review summons seeking various orders in relation to the Commissioner’s decisions under, and his failure to exercise power in, s 276 of the CAS Act.

On 22 December 2021, an amended summons was filed with Mr Frankcom as the only plaintiff.

By 11 January 2022, no assessment of Mr Frankcom for eligibility for release to parole under s 276 had been carried out.

As at early 2022, no inmate had been released to parole under s 276 of the CAS Act.

On 22 February 2022, at the start of the hearing in this matter, Mr Frankcom was granted leave to file his further amended summons, the relevant aspects of which have been referred to above.

The relevant statutory provisions which must be considered in order to determine the plaintiff’s grounds of review are set out below.

As noted above, the Emergency Measures Act amended the CAS Act by inserting a new Pt 15 headed “Special provisions for COVID-19 pandemic”. That Part contains three sections, ss 274, 275 and 276.

Section 274 provides two definitions including a definition of “prescribed period” referred to in ss 275 and 276. By virtue of cl 329A of the CAS Reg, the “prescribed period” now ends at the beginning of 26 March 2022.

Section 275 deals with visits to correctional premises during the COVID-19 pandemic and includes the following provisions:

The third section is s 276, which confers on the Commissioner a power to release an inmate to early parole. Section 276 of the CAS Act relevantly provides as follows:

Subclauses (1) and (3) of cl 330 of the CAS Reg specify, for the purposes of s 276(1)(a), the classes of inmates who may be released by the Commissioner in the following terms:

A “further provision” of the type referred to in s 276(10)(a) is contained in cl 330(2) which provides that:

The first ground of review involves contentions that the Commissioner has misconstrued s 276 of the CAS Act in three respects identified in pars 13, 14 and 15 of the further amended summons.

The first erroneous construction was said to be inherent in the Commissioner’s statement in the 2020 Procedures that: “[t]he provisions may or may not be used, depending on the operational needs of CSNSW to manage COVID-19 related issues”. The statement was repeated in the 2021 Procedures. This statement was submitted to amount to requiring there to be a particular general threshold of risk present before any application for parole would be considered, rather than assessing the question of risk in the circumstances of the individual inmate as s 276 required. One consequence of this misconstruction was contended to be that the Commissioner made the Systems Decision, which was thus liable to be set aside.

The second erroneous construction that the plaintiff relied upon was identified as the Commissioner in effect construing s 276 as authorising him to limit his consideration of whether to grant parole under s 276 to circumstances where he is satisfied it is essential to maintain the good order and security of correctional centres during the COVID-19 pandemic. The conclusion that he had so misconstrued the section was said to be based on the statement in the Commissioner’s letter dated 28 April 2020 to Ms Simpson concerning Mr Leonard that: “I may enact this provision if I am satisfied it is essential to maintain the good order and security of correctional centres during the COVID-19 pandemic”. The “Alternative Systems Decision” was contended to be based on this misconstruction and should be set aside.

The final erroneous construction of s 276 by the Commissioner was submitted to be that he construed the section as authorising him to refuse to take any submissions in favour of the exercise of the power from any eligible inmates. This was said to be evidenced by the statements in the letters of 28 April 2020 and 15 June 2020 that the Commissioner would not be taking or seeking applications for parole under s 276 from inmates, legal practitioners or family members, and the effective rejection of the plaintiff’s application by the letter of 5 October 2021. This misconstruction was submitted to have given rise to the Submissions Decision which was as a result liable to be set aside.

The applicable principles in relation to statutory construction are well established and were not in dispute in the present case. It is sufficient to note the following:

In addition, s 33 of the Interpretation Act 1987 (NSW) provides:

Before turning to the text of s 276, relevant parts of which have been set out above, the context, both statutory and historical, and the purposes of the Emergency Measures Act and the section, especially as revealed in the Second Reading Speech, should be considered.

As noted above, the Emergency Measures Act was enacted towards the beginning of the COVID-19 pandemic when the future course and severity of the pandemic was uncertain. The long title of the Emergency Measures Act was: “An Act to amend a number of Acts to implement emergency measures as a result of the COVID-19 pandemic”. The Acts amended included the Constitution Act 1902 (NSW), the Criminal Procedure Act 1986 (NSW) as well as the CAS Act. In large measure, the amendments permitted changes to how the legislative, executive and judicial branches of government might operate, as the public health emergency resulting from the spread of the COVID-19 virus evolved.

The immediate context of s 276 includes the two other sections of Pt 15, “Special provisions for COVID-19 pandemic”, inserted into the CAS Act in March 2020 by the Emergency Measures Act. The relevant terms of ss 274 and 275 have been set out above.

The Second Reading Speech in relation to the COVID-19 Legislation Amendment (Emergency Measures) Bill provides a useful insight into the historical context in which it was enacted and the purposes or objects of the Emergency Measures Act in general and of s 276 in particular. In his speech, the Attorney General stated: [1]

From the Second Reading Speech, it can be seen that the general purposes or objects of the Emergency Measures Act included:

The Attorney General’s use of the terms “services”, “institutions” and “the Government” is apt in the circumstances to include:

More specifically, the Attorney General stated in relation to the purposes for which the power to order early release under s 276 was conferred that:

It is apparent from the Second Reading Speech that the Parliament intended to confer on the Commissioner of Corrective Services a power that might be used, if the COVID-19 pandemic developed in such a way as to require the inmate population at one or more correctional premises to be reduced in order to protect the health of inmates and correctional services staff in correctional premises or to ensure the good order and security in correctional premises by, for example, maintaining social distancing and controlling physical contact in those premises. It does not, however, appear from the Speech that the general purposes of the Emergency Measures Act or the specific purpose of s 276 included addressing the health needs of individual inmates during the COVID-19 pandemic, except in so far as this was a factor in determining which classes of inmates might be considered for release under a Commissioner’s order. Nor does it appear that the power conferred by s 276 was to be a general power to be used immediately and without regard to whether its use is necessary because of the circumstances of CSNSW as a result of the pandemic.

Against that background, the construction of s 276 is to be considered.

The introductory words of s 276(1) confirm the extraordinary nature of the Commissioner’s power under the section. Those words establish that the section applies “[d]espite any other provision of this Act or the regulations or any other Act or law”. Further, the terms in which the power is conferred, “the Commissioner may, during the prescribed period”, mean that the power is discretionary and temporally limited, indicating that it is not intended to be a generally available or long term alternative to parole under Pt 6 of the CAS Act or leave arrangements under Pt 2 Div 3 of that Act. As already observed, the “prescribed period” expires on 26 March 2022.

Under s 276(1), the power to make a Commissioner’s order releasing an eligible inmate to early parole is enlivened if two conditions are satisfied:

As to the first condition, the classes of inmates which may be prescribed by the regulations for the purposes of s 276(1)(a) are dealt with in s 276(2), which sets out a list of criteria by reference to which a class of inmates may be prescribed. Subsection (2) includes pars (b) and (d) which make the length of an inmate sentence or non-parole period yet to be served and an inmate’s health or vulnerability relevant criteria. This is reflected in cl 330(1) of the CAS Reg which specifies that the relevant classes of inmate are: “(a) an inmate whose health is at higher risk during the COVID-19 pandemic because of an existing medical condition or vulnerability, other than an excluded inmate”; and, “(b) an inmate whose earliest possible release date is within 12 months, other than an excluded inmate”.

In light of the classes defined in cll 330(1)(a) and (b) of the CAS Reg, the first condition in s 276(1)(a) can be seen as taking into account not only the individual health needs and vulnerability of the inmate whose release may be considered, but also the length of the remaining portion of the inmate’s sentence or non-parole period as well as the factors that make an inmate an “excluded inmate”, as referred to in cl 330(1)(b) and defined in cl 330(3). This reflects the intention expressed in the Second Reading Speech “that if the power were used it would be in relation to lower risk or vulnerable inmates to be prioritised for potential release, such as older inmates nearing completion of their sentence”. Viewed in context and having regard to the purpose for which the classes in cll 330(1) and (3) are defined, however, the first condition in s 276(1)(a) is not principally or substantially directed towards ensuring that the health needs of individual inmates because of the COVID-19 pandemic are addressed by way of early release to parole under the section. Rather, the first condition is directed to limiting the inmates who may be the subject of a Commissioner’s order to those whose release is most appropriate when it might be sought to reduce the number of inmates in correctional premises to achieve required social distancing and to control physical contact in those premises.

It is to be noted that it was not in dispute that the plaintiff belongs to a class of inmates prescribed by cl 330 of the CAS Reg and thus the condition in s 276(1)(a) is satisfied in his case.

The second condition involves the Commissioner being satisfied that the release of the inmate on parole:

In the context of the exercise of a power that is conditioned, at least in part, on the assessment of “risk” arising from the potential future development of a pandemic, “necessary”, especially when qualified by the word “reasonably”, does not mean “absolutely or essentially necessary” but instead means “appropriate and adapted”: Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 at [39] (Gleeson CJ); Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [25]; 393 ALR 664 (Beech-Jones CJ at CL).

Consequently, the Commissioner is required to be satisfied that the release of the inmate is reasonably appropriate and adapted because of “the risk to public health or to the good order and security of correctional premises arising from the COVID-19 pandemic”. The words quoted in the preceding sentence present difficulties of construction.

In this regard, the plaintiff’s case depended to a significant extent on it being accepted that the words “the risk to public health or to the good order and security of correctional premises arising from the COVID-19 pandemic” in s 276(1)(b) should be construed as requiring the Commissioner “to ask himself whether the release of a particular inmate is necessary because of a risk arising from the COVID-19 pandemic”. This enquiry was said to call for consideration of “whether release of that inmate on parole is reasonably necessary when considering the risk posed by COVID-19 (the public health risk) to the inmate’s health”. It was also submitted that s 276(1)(a) and (b) evinced an intention that the provision was to be used to release inmates in poor health or who were otherwise vulnerable and that the risk to public health referred to in s 276(1)(b) included the risk to a particular inmate’s health. This approach was said to be supported by the reference in the Second Reading Speech to “the flexibility … necessary to give the commissioner the capacity to protect the health of inmates”. On that basis, it was submitted in effect that, since one purpose of the provision was to give the Commissioner the flexibility to release inmates to protect their individual health, the Commissioner was required to consider the protection of the health of inmates on an individual basis when deciding whether to make a Commissioner’s order. In further support, the plaintiff referred to Adamson J’s comments in Larter v Hazzard (No 2) [2021] NSWSC 1451 at [26]:

In substance, the plaintiff submitted that the “risk to public health” element of s 276(1)(b) required the Commissioner to focus, not on the health of the population (both inmates and staff) in correctional premises generally, but on the health of individual inmates and whether each individual should be released to protect that individual’s health because of the pandemic. It was also contended that there was nothing in the CAS Act that required the operation of s 276 to be based on there being a relevant nexus between Commissioner’s orders being made and the administration of correctional premises.

In my view, that construction of s 276(1)(b) and especially the words “public health” should not be adopted. The text of s 276(1)(b) establishes that the Commissioner may be satisfied that releasing the inmate is reasonably necessary having regard to two alternative risks:

There can be little if any doubt that the phrase “arising from the COVID-19 pandemic” qualifies both the risk to “public health” and risk to “the good order and security”. Furthermore, on an ordinary and grammatical reading of s 276(1)(b), the words “of correctional premises” qualify “good order and security”. This is also consistent with the context and purpose of the provision.

To read the words “of correctional premises” as also qualifying “public health” is syntactically clumsy. If that is not done, however, the “risk to public health”, which may be a basis for the Commissioner’s satisfaction required by s 276(1)(b), appears be at large and somewhat inexplicably dissociated from the functions and responsibilities of the Commissioner.

This problem is not overcome, in my view, by construing “the risk to public health” in s 276(1)(b) as meaning the risk posed by COVID-19 to an individual inmate’s health, as the plaintiff effectively contended. The text does not support this construction which would effectively involve reading “the risk to public health” as meaning “the risk to the particular individual resulting from the public health crisis”. While it can be accepted, as Adamson J held in Larter v Hazzard (No 2), that “public health” includes not only the health of the whole population but also, in some circumstances, involves the management of individuals, her Honour did not say that “public health” refers to the health of an individual as actually or potentially affected by the COVID-19 virus, as the plaintiff appeared to contend.

I accept that “public health” is not limited to the health of the whole population of New South Wales or of the public generally. That expression can include the health of the whole population in certain locations or facilities. In addition, managing “public health” may often involve managing the health of individuals. It does not follow from this, however, that “public health” is to be construed as referring to the health of an individual inmate as it might be affected by the COVID-19 pandemic.

In addition, it is not necessary or appropriate to adopt the plaintiff’s construction which would have the Commissioner’s consideration of the “risk to public health” focus on the health of the individual inmate since the first condition in s 276(1)(a) already takes that factor, among others, into account by including in the prescribed classes inmates whose health is at higher risk during the COVID-19 pandemic because of an existing medical condition or vulnerability (other than “excluded inmates”).

Furthermore in regard to the construction of s 276(1)(b), the Second Reading Speech provides assistance and indicates that the words in that paragraph were expressly designed to give the Commissioner “the capacity to protect the health of inmates and correctional services staff and ensure the good order and security of correctional premises through the emergency”. In this collocation, the words “of correctional premises through the emergency” qualify both “inmates and correctional services staff” as well as “the good order and security”. This forcefully suggests that the “public health” referred to in s 276(1)(b) was intended by the Parliament to refer to the health of the whole population, inmates and staff, of the various correctional premises for which the Commissioner is responsible.

Having regard to the text, context and purpose of s 276, in particular, and the Emergency Measures Act and the CAS Act in general, I am of the view that, although a little clumsy, the words “of correctional premises” in s 276(1)(b) were intended by Parliament to qualify both the risk to public health and the risk to good order and security. In effect, “of correctional premises” should be construed as meaning the same as “in correctional premises”. Thus, on this construction of s 276(1)(b), both the risks of which the Commissioner might be satisfied relate to circumstances in the correctional facilities for which he is responsible.

I am confirmed in my view by a consideration of s 275(2) of the CAS Act which empowers the Commissioner to prohibit or restrict visits to correctional premises during the prescribed period. It is significant that the Commissioner’s ability to take such action is conditioned on his being satisfied “that it is reasonably necessary to protect the health of an inmate, any other person or the public from the public health risk posed by the COVID-19 pandemic”. This wording indicates that if the Parliament had sought to make the second condition in s 276(1)(b) one which focused or depended upon the protection of the health of individual inmates or other persons from the public health risk posed by the COVID-19 pandemic, the same or similar wording to that used in s 275(2) would have been employed. The wording of s 276(1)(b) is entirely different and bespeaks a different legislative intent.

In summary, s 276(1) is to be construed as providing that the power to make a Commissioner’s order in respect of an inmate is enlivened if the inmate belongs to a class of inmates prescribed by the regulations and the Commissioner is satisfied that releasing the inmate on parole is reasonably necessary because of:

Even if the Commissioner’s power to make an order is enlivened under s 276(1), however, there are further limitations on the exercise of that power by virtue of:

If and when the Commissioner comes to consider exercising the power to make a Commissioner’s order, s 276(4) provides a list of five mandatory considerations including: “any other matter the Commissioner considers relevant”. The other four considerations are not related to public health or the health of any inmate and do not have any particular relevance in the present case.

Finally and importantly for the present case, s 276(11) establishes that nothing in the section requires the Commissioner to consider making a Commissioner’s order in respect of an inmate who belongs to a class of inmates prescribed for the purposes of s 276(1)(a).

Thus, even if an inmate is one whose health is at higher risk during the COVID-19 pandemic because of an existing medical condition or vulnerability and who is not an excluded inmate, the Commissioner is not required to consider releasing the inmate under s 276.

The first misconstruction relied upon by the plaintiff was submitted to arise out of the Commissioner’s statements in the 2020 Procedures and the 2021 Procedures that s 276 “may or may not be used, depending on the operational needs of CSNSW to manage COVID-19 related issues”. This was said to impose, in effect, an impermissible additional condition on the Commissioner’s exercise of the power under s 276 beyond the conditions specified in the section.

In my view, this misunderstands the Commissioner’s statements in the 2020 and 2021 Procedures and the way in which s 276 operates.

Section 276(11) makes explicit that the Commissioner is not required to consider making a Commissioner’s order in respect of an inmate even if the inmate belongs to one of the classes eligible for release under such an order. Consequently, the Commissioner cannot be compelled to exercise the power in s 276(1) in respect of any such inmate. This reflects the legislative intent that the power is not to be a power to be exercised immediately and generally, but rather is a power which the Commissioner can use but cannot be required to use in any particular circumstances.

The Second Reading Speech establishes that the power in s 276 was conferred on the Commissioner so that CSNSW, an organ of Government, would be prepared so as to be able to act flexibly as the public health emergency evolved. As a result, for example, if the effect of the COVID-19 pandemic developed in a way which threatened the continued effective functioning and operations of CSNSW, the Commissioner would have a power that could be exercised to reduce promptly the number of inmates in correctional premises in order to maintain social distancing and to control physical contact in those premises, to the extent required given the development of the pandemic.

In light of the text of s 276 and the fact that the Commissioner is not required to exercise the power in the case of any eligible inmate, its context including the circumstances in which the section was inserted into the CAS Act, the general purposes and objects of the Emergency Measures Act by which the section was inserted, the particular purposes sought to be achieved by the section, and the extraordinary nature and temporally limited scope of the Commissioner’s power, I am of the view that, on the proper construction of s 276:

The Commissioner’s decision if and when to start considering whether any Commissioner’s orders should be made is, however, subject to the principle articulated by Gageler J in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [90] that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute. Consequently, in the present case:

Given these conclusions, it does not appear to me that the Commissioner’s statements in the 2020 and 2021 Procedures that “[t]he provisions may or may not be used, depending on the operational needs of CSNSW to manage COVID-19 related issues” involves imposing an impermissible “gateway” on the exercise of the power to make Commissioner’s orders, any misconstruction of s 276 or any error of law. It is correct to say that the power conferred by s 276 on the Commissioner may or may not be used. It is the Commissioner who may determine whether or not to start considering whether any Commissioner’s orders should be made. That decision is not a decision to make a Commissioner’s order under s 276, which can only be exercised in respect of a particular inmate, but is an antecedent decision to start considering whether to make such orders at all. The stated basis for the antecedent decision is rationally linked to, and entirely consistent with, the subject matter, scope and purpose of s 276 and the CAS Act as a whole. It constitutes a reasonable basis on which the Commissioner is permitted to make the antecedent decision.

In addition, since the decision to start considering whether to make Commissioner’s orders is different from an antecedent to a decision to make an order under s 276(1) in any particular case, the Commissioner was not in effect imposing an impermissible, additional condition on the exercise of the power in s 276(1). Nor was he imposing an improper gloss on the section as to how the power in s 276 should be exercised once it was decided to start considering whether Commissioner’s orders should be made in particular cases.

Furthermore, even when considering the use of the power to make a Commissioner’s order, it is not correct to conclude, as the plaintiff submitted in relation to the first misconstruction, that s 276(1) required the Commissioner to assess “the question of risk in the circumstances of the individual prisoner”. For the reasons set out above in relation to the construction of the two conditions in s 276(1)(a) and (b), the issue of a particular inmate’s vulnerability to COVID-19 and the resulting risk to his or her health is taken into account directly only when considering whether the inmate is an eligible inmate within the meaning of s 276(1)(a). The risk assessment to be made when considering the second condition in s 276(1)(b) is to be made in relation to one or other of the two risks identified in that paragraph, namely:

For these reasons, I do not accept that the first misconstruction on which the plaintiff relied has been established. It follows that the Systems Decision, contended by the plaintiff to be the consequence of that misconstruction, did not involve any error of law and is not liable to be set aside.

The second misconstruction was said to be construing s 276 as authorising the Commissioner to limit his consideration of whether to grant parole under s 276 to circumstances where he is satisfied it is essential to maintain the good order and security of correctional centres during the COVID 19 pandemic. This was based on the statement in the Commissioner’s letter of 28 April 2020 concerning Mr Leonard that “I may enact this provision if I am satisfied it is essential to maintain the good order and security of correctional centres during the COVID-19 pandemic”. It was submitted in effect that this misconstruction gave rise to the “Alternative Systems Decision”.

It is well established that a court exercising the power of judicial review should not be concerned with looseness of language and should not construe the reasons of an administrative decision maker “minutely and finely with an eye keenly attuned to error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6. When this approach is adopted and on a fair reading of the Commissioner’s letter of 28 April 2020, it does not appear to me that the Commissioner was purporting to give a comprehensive description of the operation of s 276 of the CAS Act in the words relied upon by the plaintiff.

The context of the words to which the plaintiff drew attention includes the following:

Although the use of the words “enact” and “enacted” are not strictly appropriate, it is clear that they refer to the Commissioner’s decision whether to start considering making Commissioner’s orders and do not refer to the consideration of whether such an order should be made in any particular case. Just as the operational needs of CSNSW would be a reasonable basis for making the antecedent decision to start considering whether any Commissioner’s orders should be made, as explained above in relation to the plaintiff’s first misconstruction submission, what is essential for maintaining the good order and security of corrections centres during the COVID-19 pandemic is also a permissible and reasonable basis on which to decide to start considering whether any Commissioner’s orders should be made. The good order and security of correctional premises, like the operational needs of CSNSW, are reasonably connected with starting to consider using the power under s 276(1) in the sense that there is a rational link between those considerations and the nature and purpose of the power. In addition, those considerations are consistent with, and supported by, the subject matter, scope and purpose of the CAS Act as a whole and the Emergency Measures Act.

In my view, the Commissioner’s description of the power and the circumstance in which he would start to consider using the power to make Commissioner’s orders, in his letter of 28 April 2020, do not involve any misconstruction of s 276 of the CAS Act as contended by the plaintiff. Further, there was no misconstruction or error of law involved in what the plaintiff called the Alternative Systems Decision.

In these circumstances, I do not accept the second ground that the Commissioner fell into error by making the second misconstruction as the plaintiff contended. Nor do I conclude that the Alternative Systems Decision should be set aside.

The plaintiff’s third misconstruction ground was to the effect that the Commissioner construed s 276 as authorising him to refuse to take any submissions in favour of the exercise of the power from eligible inmates. This was based on statements in the letters of 28 April 2020 and 15 June 2020 that he would not be taking or seeking applications for parole under s 276 from inmates, legal practitioners or family members and on the effective rejection of the plaintiff’s application by the letter of 5 October 2021. On this basis, it was also submitted by the plaintiff that the Submissions Decision should be set aside.

The statement in the letter of 28 April 2020 that the Commissioner “will not be taking applications from inmates, legal practitioners or family members” is, in my view, an indication of what the Commissioner intended to do in the circumstances as anticipated at that time. The statement in the letter of 15 June 2020 that “the Commissioner is not seeking individual applications from inmates, their families or legal representatives” states what the Commissioner is not doing at that time but it might imply that the Commissioner was not intending to seek such applications in the future if circumstances continued as they then were. The letter of 5 October 2021 written on behalf of the Acting Commissioner relating to the plaintiff does not state that the Commissioner is not taking or seeking individual applications but does make clear that “[a]t this time, it has not been determined necessary … to make orders … to release eligible inmates to parole” and, implicitly, applications or submissions in respect of individual inmates would serve no purpose at that time.

Nothing in s 276 expressly requires the Commissioner to take or seek submissions from inmates as to whether they are eligible for release to early parole under the section or whether a Commissioner’s order should be made in respect of them if they are eligible. Section 276(11) expressly states “[n]othing in this section requires the Commissioner to consider making a Commissioner’s order in respect of an [eligible] inmate”.

Nonetheless, it is well settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of the common law principle that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual, unless clearly displaced by the particular statutory scheme: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [75]. Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 (Plaintiff S10), at [99]-[100], provides an example of a statutory scheme where that presumption is displaced.

In the present case, similarly to some of the circumstances in Plaintiff S10, the statutory scheme established by s 276 has the following characteristics:

In all the circumstances, in my view, the statutory scheme of s 276 displaces the usual common law presumption.

Further, and in any event, even if in considering whether to make Commissioner’s orders the Commissioner was required to accord eligible inmates procedural fairness, such an obligation would not arise prior to the Commissioner deciding to start considering making those orders. For the reasons set out in more detail below when considering the third ground of review, as a matter of fact at the time of writing each of the letters relied on by the plaintiff the Commissioner had not made a decision to start considering whether to make Commissioner’s order and was not required to accord procedural fairness to the plaintiff or any other inmate.

For these reasons and in these circumstances, I reject the contention that s 276 is to be construed as requiring the Commissioner to take or seek applications in respect of any eligible inmate, including the plaintiff, at the time of the letters and up to this time.

Therefore, in the circumstances of the present case, the Commissioner did not misconstrue s 276 when he responded by way of the three letters relied upon by the plaintiff in relation to the third misconstruction ground. Nothing in s 276 or the CAS Act or otherwise required the Commissioner to take or seek applications or submissions in relation to the exercise of the power in s 276 from any eligible inmates, at the times when the letters in question were written.

Accordingly, I do not accept that the plaintiff’s third misconstruction ground has been made out or that, as a result, the Submissions Decision is affected by error and is liable to be set aside.

The decisions of which the plaintiff seeks review include, in addition to the Systems Decision, the Alternative Systems Decision and the Submissions Decision, the decision said to be recorded in the 5 October 2021 letter by which Ms Simpson was informed that the Acting Commissioner effectively declined to consider granting parole to the plaintiff under s 276: see par 9(d) of the further amended summons. (This decision was defined as the Rejection Decision at par 38 of the plaintiff’s written submissions.) It is convenient to deal with that decision at this point.

The plaintiff submitted that on the proper construction of s 276(1), a duty was imposed on the Commissioner to consider an application or request for parole under that provision by any inmate or an eligible inmate. This was said to be supported by the matters required by s 276(4) to be considered by the Commissioner before a Commissioner’s order is made. The fact that these matters included ones personal to the particular inmate was submitted to indicate a Parliamentary intention that the Commissioner is to consider and determine what, if any, action should be taken in respect of any request for early parole under s 276(1). The Plaintiff relied upon the High Court’s decision in Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1; [1976] HCA 20 to support this submission. In that case, Mason J said at 18:

The principle of construction enunciated by Kitto J referred to his Honour’s judgment in The Queen v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; [1965] HCA 27 is as follows:

In the present case, however, s 276(11) provides that nothing in the section requires the Commissioner to consider making an order under s 276(1) in respect of an inmate, such as the plaintiff, who belongs to a class of inmates eligible for release under the section. In these circumstances, it can be seen that the express provision in s 276(11) displaces the principle in Murphyores that the existence of the discretion implies the existence of a duty to determine any application that is made. In addition, the construction of the conditions in s 276(1)(a) and (b) set out above and the Parliamentary intent that the purpose of s 276 was not to create a power that must be exercised upon application by an eligible inmate but rather a power which it was hoped would not have to be used and which was designed to confer flexibility on the Commissioner to enable him to respond to the potential effects of COVID-19 on CSNSW militate against an implication such as that referred to in Murphyores. The question whether when Parliament reposes a discretionary power in a person, it intends to repose with it a duty to consider and determine whether to exercise the power (favourably or unfavourably) is to be determined, not by application of presumptions or starting points but by construction of the statute in question: Yasmin v Attorney-General (Cth) (2015) 236 FCR 169; [2015] FCAFC 14 at [113]. When the whole text of s 276 is viewed in its context in the widest sense, I am of the view that the existence of the discretion in s 276(1) does not give rise to a duty on the part of the Commissioner to determine any application that is made. Furthermore, even if such a duty did arise on the proper construction of s 276, it would not arise before the Commissioner decided to start considering whether to make orders under s 276(1).

Accordingly, on the proper construction of s 276 and in the relevant circumstances of this case, there was no duty on the Commissioner to consider the plaintiff’s application and the Acting Commissioner’s declining to consider granting parole to the plaintiff under s 276 as recorded in the letter of 5 October 2021 was not based on a misconstruction of s 276 and is not affected by jurisdictional or other legal error. The Rejection Decision is, as a result, not liable to be set aside and this ground of review does not provide a foundation for making an order in the nature of mandamus requiring the Commissioner to consider the plaintiff’s application for release to early parole under s 276 of the CAS Act.

The plaintiff has not established that the Commissioner misconstrued s 276 of the CAS Act in any of the ways relied upon by the plaintiff in relation to the first ground of review. Each of the Systems Decision, the Alternative Systems Decision, the Submissions Decision and the Rejection Decision was not based upon an erroneous construction of s 276 nor was any of them liable to be set aside on the bases submitted by the plaintiff. Similarly, since the plaintiff has not established any of the misconstructions which it contended justified the granting of the declaratory relief sought or an order in the nature of mandamus, those orders should not be made.

As formulated in par 16 of the further amended summons, the second ground of review, unreasonableness, was dependent on one or more of the errors of construction of s 276 identified in the first ground of review being made out so that the relevant decision was one that no reasonable decision maker could have made.

Since none of the errors of construction relied upon by plaintiff under the first ground of review has been made out, the foundation for the plaintiff’s case that the decisions were unreasonable as formulated in the second ground of review has not been established. Consequently, I would not uphold the second ground of review.

The third ground of review, set out in par 17 of the further amended summons, was, in substance, that the Commissioner failed to exercise his jurisdiction because, having commenced the task of considering whether to exercise the power in s 276 in relation to all inmates, or all eligible inmates, he did not complete the task by conducting or procuring an assessment of, and recommendation in respect of, the plaintiff for the purposes of s 276(1).

In par 37 of the plaintiff’s written submissions, this ground was elaborated upon utilising the concepts of:

It was submitted that “[o]nce the Commissioner has made a procedural decision, he is required to consider the exercise of the power [to make a Commissioner’s order] in accordance with law. That is, the Commissioner and any public servants assisting him are required to undertake the process of consideration in a procedurally fair and legally reasonable manner, and without misdirecting themselves as to the construction of the provision”. In support, the plaintiff relied on statements of principle in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 (Plaintiff M61) and Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 (SZSSJ) concerning provisions of the Migration Act 1958 (Cth).

In substance, the plaintiff submitted that the Commissioner made the “procedural decision” and embarked upon considering whether to exercise the power under s 276(1) in respect of every inmate when he issued the 17 April 2020 instruction with the attached 2020 Procedures and proforma documents, thereby setting in place a process for assessing and recommending inmates for release to early parole.

It was also submitted that the terms of the Acting Assistant Commissioner’s 21 April 2020 memorandum evidenced the commencement of preparing to use the power to make Commissioner’s orders from 22 April 2020, including the production of list of eligible offenders, conducting checks to assess suitability and other matters referred to in the memorandum. It was submitted that statements in the memorandum such as “[c]urrently, there has not been a decision to use the provisions” and “from 22 April 2020, Community Corrections will start preparing to use the provisions, even though they may not eventually be required” were not determinative of whether the Commissioner had, in fact, embarked on considering whether to exercise the power under s 276. These processes undertaken by CSNSW to assist the Commissioner’s consideration of the possible exercise of the power in s 276(1) were submitted to derive their character from the Commissioner’s having made the procedural decision.

In his written submissions at pars 49 and 50 the plaintiff argued in effect that the Commissioner’s putting in place a procedure for each eligible offender to be classified into one of three groups and assessed for the purposes of the exercise of the power under s 276 was comparable to the Departmental officers in SZSSJ undertaking international treaty obligations assessments in respect of applicants in order to assist the Minister in considering whether to exercise powers under the Migration Act. Since it was held by the High Court in SZSSJ that such an assessment was properly characterised as a process undertaken by a Departmental officer for the purposes of relevant provisions of the Migration Act, it was submitted that the same reasoning should be applied to the circumstances of the present case to conclude that the assessment of inmates under the 2020 Procedures was a process undertaken by CSNSW staff for the purposes of s 276(1) of the CAS Act. Thus it was contended that, by issuing the 17 April 2020 instruction and the 2020 Procedures, the Commissioner had made the procedural decision and consequently the actions of the Commissioner and his staff had a statutory basis. It was then submitted that, their actions having that statutory basis, the Commissioner and the staff assisting him are required to undertake the process of assessment and to do so in accordance with law.

Later, at par 57 of the written submissions, the plaintiff submitted that the Commissioner failed to complete the statutory task he commenced because he did not cause an assessment of the plaintiff to be completed in accordance with the 2020 Procedures or a recommendation for or against parole to be made. This was said to be an error of law and DOU16 v Minister for Home Affairs (2019) 272 FCR 358; [2019] FCAFC 212 at [36]-[39] was cited as authority for this proposition.

This third ground was submitted to be another basis on which the Rejection Decision was invalid and also provided a basis for making an order in the nature of mandamus to compel the Commissioner to compete the task in relation to the plaintiff, upon which he had embarked, according to law.

The Commissioner submitted in substance that, as matters of fact and on the correct understanding of the 17 April 2020 instruction and the 2020 Procedures, no procedural or substantive decision had been made or other relevant step taken to commence any “statutory task”. In these circumstances and since the Commissioner was not required to exercise the power under s 276 and could not be compelled to do so, there was no relevant decision to be reviewed and no order in the nature of mandamus or other relief was appropriate. Alternatively, the Commissioner submitted that, if a relevant decision has been made, it was in exercise of a non-statutory power and such a decision could only be reviewed on a ground such as unreasonableness and that had not been made out in the circumstances of this case. It was submitted that, further and in any event, the Rejection Decision was not made pursuant to the 17 April 2020 instruction or on the basis of that instruction.

The designations “procedural decision” and “substantive decision” were used in the High Court’s judgment in SZSSJ at [53] to describe the two types of decisions involved in the provisions of the Migration Act 1958 (Cth) identified in Plaintiff M61 at [70]. In SZSSJ, the relevant provisions included:

In relation to these provisions, French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ identified three relevant principles in SZSSJ, at [53]-[55]:

Two observations should be made at this point. First, ss 48B and 195A of the Migration Act are provisions which operate generally and are not temporally limited or designed to deal with a particular emergency. Secondly, the procedural decision inherent in those sections was to be made in relation to particular non-citizens or persons detained under the Migration Act, and was not a general decision whether or not to start exercising the power conferred by the relevant section at all.

There are some similarities and some significant differences between the sections of the Migration Act considered in SZSSJ and s 276 of the CAS Act. Like the Migration Act sections, s 276 confers a non-compellable power on the Commissioner that involves the making of two decisions and the Commissioner has no obligation to make either decision, and neither decision is conditioned by any express requirement that the Minister afford procedural fairness. Unlike the Migration Act sections, however, the power conferred by s 276 is not a generally operative power but has been conferred for a limited time and for the limited purpose of dealing with the effects of the COVID-19 pandemic, for example, in the situation where the effects of the pandemic became sufficiently severe as to require the inmate population of one or more correctional premises to be reduced.

In addition, while the Commissioner’s exercise of his power to make Commissioner’s orders involves two decisions, as explained above when considering the first misconstruction ground, the first or antecedent decision under s 276 is whether to start considering whether any Commissioner’s orders should be made at all; it is not whether to consider making a Commissioner’s order in respect of any individual inmate or inmates, unlike the procedural decisions under the Migration Act provisions.

As a result of the differences between the text, context, scope and purpose of s 276 of the CAS Act and those of ss 48B and 195A of the Migration Act, and the factual differences between SZSSJ and this case, the principles identified by the High Court in SZSSJ provide limited guidance in the present matter. In particular, because of the difference between the antecedent decision required under s 276 and the procedural decisions under the Migration Act provisions, it does not appear to me that the second principle in SZSSJ has direct relevance in the present case. The antecedent decision under s 276 is not made in respect of an individual inmate or inmates and there does not appear to me to be any appropriate basis to imply a requirement to accord procedural fairness to individual inmates when the Commissioner is determining whether to start considering making Commissioner’s orders. This is so, even though such orders can only eventually be made in respect of individual inmates. This conclusion is also consistent with the express terms of s 276(11) and the scope and purpose of the section, the CAS Act and the Emergency Measures Act.

In addition, the application in SZSSJ of the second principle flowed from the fact that the unchallenged finding of the Full Court was that the Minister had made a personal procedural decision to consider whether to grant a visa under s 195A or to lift the bar under s 48B in the case of each relevant particular applicant in that case: SZSSJ at [56]. In the absence of a similar finding that the Commissioner had made the antecedent decision to start considering whether any Commissioner’s orders should be made, the specific reasoning in SZSSJ does not apply in this case.

By way of contrast, the third principle in SZSSJ does appear directly applicable in relation to s 276. The question of the whether the Commissioner has made the antecedent decision to start considering whether any Commissioner’s orders should be made is a question of fact.

What will be determinative in the present case is not the direct application of principles based on sections of the Migration Act, but how s 276 of the CAS Act, on its proper construction, operates in the circumstances disclosed in the evidence.

Turning to the facts, the first relevant step taken by the Commissioner was the issuing of the 17 April 2020 instruction with the attached documents, which included the 2020 Procedures. The documents attached to the 17 April 2020 instruction were said to:

The setting of policy and procedures in relation to matters that would be relevant to the exercise of the power to make Commissioner’s orders is equivocal as to whether a decision had been made to start considering whether to use the power to make such orders. The 2020 Procedures provide further information as to whether such a decision had been made.

After referring to the provisions in s 276, the 2020 Procedures stated that those provisions “may or may not be used, depending on the operational needs of CSNSW to manage COVID-19 related issues”. This indicates that no decision had been made to start considering whether any Commissioner’s orders should be made. In a similar vein, the 2020 Procedures continued:

The clauses “[i]f used” and “[if] the provisions are invoked” suggest that no decision had been made to use the provisions of s 276 at the time the 2020 Procedures were issued. Furthermore, the sentence commencing “[i]f the provisions are invoked …” indicates that the procedures set out in the 2020 Procedures were not to be implemented at that time but were to be implemented if and when a decision was made to start considering whether any Commissioner’s orders should be made and, at that future time, those procedures would “need to be implemented quickly”. These statements are consistent with sound administrative preparation designed to put CSNSW in a position to act promptly if and when the Commissioner made a decision to start considering whether any Commissioner’s orders should be made under s 276. They are not consistent with a decision to consider making such orders already having been made.

This conclusion is confirmed by the further statement in the 2020 Procedures that “[t]he relevant Assistant Commissioners will advise their staff if the provisions are invoked.”

The detailed provisions in the 2020 Procedures concerning identifying eligible offenders, classification into assessment groups, and the assessment, review, recommendation and approval processes do not establish, in my view, that the decision to start considering whether any Commissioner’s orders should be made had been taken. Rather, they establish that preparation has been undertaken, including developing and issuing procedures to be followed, so that if such a decision were made it could be implemented promptly.

Consideration of the Acting Assistant Commissioner, Community Corrections’ 21 April 2020 memorandum does not lead to a different conclusion. In the “Background” section of this memorandum, it is stated that:

The statement that “[c]urrently, there has not been a decision to use the provisions” could not be clearer and there is no reason to doubt its accuracy. The last sentence of the quotation provides further support for this conclusion as it refers to implementation at a potential future point in time not any current implementation of the procedures.

Even though the 21 April 2020 memorandum envisaged that, on the day it was issued, the Parole Unit would receive the first list of eligible offenders and thus some steps would be taken which were relevant to making a decision whether or not make Commissioner’s orders, it does not follow that a decision to start considering whether any Commissioner’s orders should be made had been taken by that time. That comment concerning the first list of eligible offenders in the 21 April 2020 memorandum was under the heading “Preparing to implement the emergency release procedures” and it is noted later in the memorandum:

The fact that no decision was ever made to start considering whether the power under s 276 should be used in any particular case is also supported by the terms of the Commissioner’s letter concerning Mr Leonard of 28 April 2020 where it is noted that “I may enact this provision …”, indicating that it had not then been decided to start considering exercising the power under s 276. The preparations already undertaken were referred to in that letter in the following way:

Similarly:

Having regard to all the evidence including the material referred to above, I am more than satisfied that at no relevant time has a decision been made by the Commissioner to start considering using the power under s 276 of the CAS Act to make Commissioner’s orders.

In these circumstances and to the extent that the second principle in SZSSJ has any relevant application, it would be that, the Commissioner not having made a personal procedural decision to consider whether to make any substantive decisions under s 276, processes undertaken by CSNSW staff on the Commissioner’s instructions to assist him to make any relevant decision do not have a statutory basis and do not attract a requirement to afford procedural fairness.

In addition, in light of the fact that no decision to start considering using the power in s 276 has been made, the Commissioner’s and CSNSW staff’s preparatory actions do not amount to commencing any “statutory task” (to use the terminology of the plaintiff’s submissions) or have “no statutory basis” (to adopt the language of the High Court in SZSSJ at [54]). Taking steps to be prepared so that the statutory tasks involved in considering whether to make any Commissioner’s orders might be performed promptly and efficiently, if the antecedent decision were made, is distinct from, and not to be confused with, embarking upon the statutory task itself. This is so especially where it was explicitly stated to staff and in letters concerning relevant inmates that no decision to start considering using the power to make Commissioner’s orders had yet been made and such a decision might never be made.

In the absence of any antecedent decision by the Commissioner to start considering using the power to make Commissioner’s orders under s 276, the necessary factual foundation for the plaintiff’s contention that the Commissioner had embarked upon his statutory task and was required to obtain or conduct an assessment of the plaintiff in accordance with the 2020 or 2021 Procedures and to complete that task of determining whether to make a Commissioner’s order in respect of the plaintiff was not established. Consequently, the plaintiff has not made out the factual basis for his third ground of review.

Furthermore, even if the Commissioner had made the antecedent decision to start considering whether to make Commissioner’s orders and had taken steps to exercise the power under s 276(1) in respect of an eligible inmate or inmates, in my view on the proper construction of s 276 the Commissioner would not be required then to complete his consideration of whether any such inmate or inmates should be released under the section. This is so for a number of reasons.

First, s 276(11) provides that “[n]othing in this section requires the Commissioner to consider making a Commissioner’s order in respect of an [eligible] inmate”. Considering making an order includes starting to consider and continuing to consider the matter until a decision is made. The natural meaning of s 276(11) is that nothing in the section requires the Commissioner to start, or to continue, to consider making a Commissioner’s order in respect of any eligible inmate. Section 276(11) does not state that if the Commissioner starts to consider making a Commissioner’s order in respect of any eligible inmate, he must continue to do so until he makes a decision one way or the other. The natural meaning of s 276(11) is also consistent with, and not contradicted by, any of the other provisions of the section. On this construction, the Commissioner could stop his consideration of whether to make Commissioner’s order in respect of a particular eligible inmate or all such inmates at any time before he reached a decision and could not be compelled to continue.

Secondly, this construction of s 276(11) is also consistent with the context, scope and purpose of the section and the Emergency Measures Act by which the section was inserted into the CAS Act. The power to make Commissioner’s orders under s 276 was conferred so that the Commissioner could take steps to manage public health in correctional premises and their good order and security during the COVID-19 pandemic and, in particular, in circumstances where the effects of the pandemic were sufficiently severe as to require the inmate population of a correctional facility to be reduced in order, for example, to achieve required social distancing or to control physical contact in such facilities. However, even if circumstances at one time justified the Commissioner starting to consider releasing inmates to early parole under s 276, it would be unlikely that the Parliament intended that the Commissioner was nonetheless required to continue to consider the early release of eligible inmates when the need to release inmates to early parole in order to deal with the effects of the COVID-19 pandemic had passed. A construction of s 276 which permits the Commissioner to stop considering whether to make Commissioner’s orders when the effects of the pandemic do not justify or require them gives proper effect to the purpose of the provision in light of the circumstances in which it was enacted.

While it must be accepted as a matter of principle that if the Commissioner embarks upon consideration of whether a particular eligible inmate should be released, he must do so in accordance with law, it does not follow that if the Commissioner embarks on that consideration, he is bound to complete that consideration and cannot decide to stop the process without reaching a decision in respect of a particular inmate, notwithstanding s 276(11).

Furthermore, on the proper construction of s 276, the Commissioner is in a quite different position from that of a judicial or quasi-judicial body whose jurisdiction is properly invoked. In this regard, the plaintiff’s reliance on DOU16 v Minister for Home Affairs (2019) 272 FCR 358; [2019] FCAFC 212 (DOU16) at [36]-[39] to support a general proposition that, once an administrative decision maker embarks upon a statutory task, there will be an error of law if the decision maker fails to complete the task, appears to overstate what was actually the basis for the decision in that case. The paragraphs of the judgment in DOU16 relied upon by the plaintiff relate to the Administrative Appeals Tribunal’s failure to fulfil its statutory task, or exercise its jurisdiction, because it failed to complete a close consideration of a substantial claim made in proceedings before the Tribunal and thereby erred in law: see for example DOU16 at [35] as well as [36]-[39]. There can be no doubt that such a proposition is correct in relation to the Administrative Appeals Tribunal or any other judicial or quasi-judicial body whose jurisdiction is properly invoked: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24]-[25]; (2003) 77 ALJR 1088; Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [104]. DOU16 does not, however, establish a wider principle of law applicable to the present case that an administrative decision maker who starts considering whether to make a decision, which the decision maker is not required to consider making, will make an error of law if he or she does not complete the decision making process. Indeed, the reasoning of the High Court in Plaintiff M61 suggests to the contrary. In Plaintiff M61 at [99], French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ stated:

Nonetheless, it is not necessary to reach any definitive conclusion on that issue, since the factual circumstances in the present case do not establish that the Commissioner embarked on any relevant statutory task and, on the proper construction of s 276 of the CAS Act, the Commissioner was not required to continue considering whether to make a Commissioner’s order in respect of the plaintiff, even if he had embarked on that task.

For these reasons, I am of the view that the plaintiff’s third ground of review has not been made out.

The plaintiff has not been successful in establishing any of the grounds of review relied upon. As a result, none of the orders sought should be made.

In the Commissioner’s written submissions at par 76, it was indicated in effect that if the Commissioner were successful, he would not be seeking costs and it would be appropriate to make no order as to costs. The plaintiff made no submissions to the contrary.

For all the reasons set out above, the orders of the Court are: