Whiteoak v State Parole Authority and the Attorney-General of NSW

By an amended summons filed in Court on 29 August 2019, Barry Whiteoak (the plaintiff) seeks, against the State Parole Authority (the Authority) and the Attorney-General of New South Wales (the second defendant), orders that:

The summons was supported by two affidavits of Melissa Smith of 1 May 2019, both of which were read without objection.

The Authority filed a submitting appearance. The second defendant, who was the only active defendant in the proceedings, read (without objection) the affidavit of Jennifer Hoy affirmed on 15 August 2019.

The second defendant did not object to the application for an extension of time. However, as previously noted, the orders sought by the plaintiff included an order seeking leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (the Felons Act) to commence the proceedings. Section 4 is in the following terms:

There is no issue that the plaintiff is in custody as a result of having been convicted of a serious indictable offence, namely murder. Accordingly, s 4 of the Felons Act prima facie applies. However, whether these proceedings are properly regarded as “civil proceedings” within the meaning of that term as it is used in s 4 is a separate question.

In Patsalis v State of NSW [1] the Court of Appeal concluded that the scope of s 4 was limited, and that a prisoner serving a custodial sentence was entitled to bring proceedings for judicial review of decisions relating to the conditions of his or her incarceration without a grant of leave because such proceedings did not fall within the ambit of the expression “civil proceedings” in that section. [2] In these circumstances, the second defendant submitted that leave under the Felons Act to bring the present proceedings was not required, a position with which counsel for the plaintiff agreed at the commencement of the hearing. Accordingly, I am not required to determine paragraphs (1), (2) and (3) of the amended summons.

The plaintiff was born in the United Kingdom, and came to Australia in 1971 at the age of 22 years. He has never applied for Australian citizenship. [3]

On 5 May 1978 the plaintiff was convicted of indecent assault of a female and sentenced to 3 years’ imprisonment with a non-parole period of 9 months. [4]

On 5 August 1980, the plaintiff was convicted of assault and was sentenced to imprisonment for a period of 18 months. [5]

In 1983, the plaintiff was convicted of murder following a trial. The Crown case was that the plaintiff had asked the deceased to have sex with him and that when the deceased refused, a struggle ensued in the course of which the deceased stabbed the plaintiff in the leg. The plaintiff then attacked the deceased, seized the knife and forced her onto the floor by her neck. He later placed the deceased’s body into a lift, and sent the lift to the ground floor of the building in which the attack had occurred. A post-mortem examination following the discovery of the deceased’s body established that the cause of her death was asphyxiation by strangulation. [6]

On 10 August 1984, Maxwell J sentenced the plaintiff to penal servitude for life. On 16 December 1994, that sentence was re-determined by McInerney J, pursuant to s 13A of the Sentencing Act 1989 (NSW) (the Sentencing Act), to a non-parole period of 15 years, and a balance of term of life imprisonment. [7] In the course of his judgment, McInerney J observed: [8]

The plaintiff’s non-parole period expired on 25 August 1998 [9] . His release on parole has been considered and refused by the Authority on numerous occasions, most recently in a decision of 16 November 2018. In the course of that decision, which is the focus of the present proceedings, the Authority noted [10] that the plaintiff’s conduct in custody had been “close to perfect”, with only three institutional infringements recorded against him, the first two of which occurred 25 years apart. The Authority also noted [11] that the plaintiff had been a “consistently good worker” and had achieved a C3 security classification, which had enabled him to take escorted external leave on 10 occasions without incident.

In 2006, the Department of Immigration and Citizenship (as it was then known) gave notice to the plaintiff that it was considering cancelling his visa, [12] as a consequence of which the plaintiff’s security classification was changed from C3 to C1. His visa was later cancelled. He has since progressed to a C2 classification, but recommendations to restore him to a C3 classification have not been followed. Absent a C3 classification, the plaintiff is not eligible to take external leave. [13]

The evidence before the Authority included material setting out the plaintiff’s post-release plans. In this regard, a report from Community Corrections dated 14 February 2017 recorded the following: [14]

A further report from Community Corrections dated 24 January 2018 which was before the Authority recorded the following: [15]

The Authority also referred [16] to the contents of a joint report of Sarah Wright (Forensic Psychologist) and Laura O’Neill (Senior Psychologist) dated 26 July 2017 which made a number of recommendations regarding the management and supervision of the plaintiff in the event of his release. They included (inter alia) a recommendation that the plaintiff seek the support of a psychologist for assistance with:

The joint report of Ms Wright and Ms O’Neill also recognised that in the event that the plaintiff was deported on release, these recommendations would not be implemented: [17]

Also before the Authority was a report of Dr Dayalan, Psychiatrist, who stated [18] :

On 3 July 2018, the Serious Offenders Review Council furnished a report which was before the Authority, and which expressed the following conclusions: [19]

On 27 July 2018, the Authority indicated that it had formed an intention to grant the plaintiff parole and stood the matter over to allow the parties to make submissions. Those submissions were received on 29 September 2018, at which time the State opposed the plaintiff’s release. [20] Having heard submissions, the Authority subsequently refused the plaintiff’s application.

As previously noted, [21] the plaintiff has never applied for Australian citizenship, a matter in respect of which the Authority said the following: [22]

The Authority concluded [23] that it had not been established that it was in the interests of the safety of the community to release the plaintiff on parole. In addressing that issue, the Authority said: [24]

On the assumption that the plaintiff would return to the United Kingdom if released, the Authority stated: [26]

The Authority then stated: [27]

Having refused the plaintiff’s application for release, the Authority noted: [28]

It is apparent that in reaching its decision, the Authority construed the term “community” in s 135 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the Administration Act) as extending to the community in the United Kingdom to which the plaintiff intends to move in the event that he is released and deported. That construction is at the heart of what the plaintiff says are the Authority’s errors.

Although nothing turns on it, it should be noted that the issues raised by the plaintiff for this Court’s determination were not raised before the Authority, and thus were not argued and did not form any part of the Authority’s decision.

The competing positions of the parties may be shortly summarised.

The plaintiff’s fundamental proposition is that the term “community” in s 135 of the Administration Act should be construed as being confined to the community in NSW, and not construed as extending to a community within another jurisdiction to which an offender may be deported upon release.

Accepting that construction to be correct, it is the plaintiff’s position that the Authority erred in law, or committed jurisdictional error, by taking into account:

The second defendant’s position is that having regard to the text of the Administration Act, and the context in which the term “community” appears, the term should be construed as extending to the community within the United Kingdom to which the plaintiff proposes to relocate if released on parole and deported. It is the second defendant’s position that the Authority was correct in its approach, and did not err in its conclusions.

It is appropriate at this point to set out a number of statutory provisions which were referred to by the parties in their submissions.

The objects of the Administration Act are set out in s 2A in the following terms:

Section 135 of the Administration Act sets out the duties of the Authority in considering a person’s release on parole, and is in the following terms:

The power of the Authority to release an offender on parole is found in s 149(1) of the Administration Act which provides as follows:

Section 154 of the Administration Act requires the Authority, in exercising its functions under Part 6 in relation to a serious offender to whom s 154 applies, to have regard to the need to (inter alia) preserve the safety of the community:

Section 185 of the Administration Act sets out the functions of the Authority (one of which it was exercising at the time of reaching its decision):

Prior to its repeal by the Sentencing Act, the Probation and Parole Act 1983 (NSW) (the Parole Act) included s 26 which was in the following terms:

Prior to its repeal by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW), the Sentencing Act included s 17 which was in the following terms:

Both the Parole Act and the Sentencing Act are relied upon by the plaintiff as constituting part of the relevant legislative history to which I have referred in more detail below.

Section 5(2) of the Interpretation Act 1987 (NSW) (the IA) is in the following terms:

Section 12 of the IA is in the following terms:

Counsel for the plaintiff turned firstly to the provisions of ss 5(2) and 12 of the IA. He submitted that when considered together, those provisions supported the conclusion that NSW was a “locality” and a “jurisdiction” for the purposes of s 12(1)(b) and that this, in turn, supported the conclusion that the Authority had erred.

Counsel also referred to the objects set out in s 2A of the Administration Act, and submitted that when viewed in its proper context, the term “general community” in s 2A(1)(a) should be construed as meaning the community in NSW, because it is from that community that an offender is removed upon being sentenced and placed in a correctional facility. Counsel submitted that there was nothing to indicate that the “general community” into which an offender is re-integrated upon release should not be interpreted in the same way, and that there was nothing to indicate that the “general community” referred to in s 2A(1)(d) should extend to a different community in a foreign jurisdiction. It was submitted that had it been the intention of the legislature to extend the term in that way, such intention would have been reflected in plain and unambiguous language.

Counsel further submitted that a fundamental principle of statutory construction is that where a word is repeatedly used within the same Act, it should be given a consistent construction. [29] With that in mind, and bearing in mind the duties and functions of the Authority, counsel submitted that there was no reason why the term “community” should be construed as having a different meaning as between s 2A(1)(a) and s 2A(1)(d) of the Administration Act, or as between those sections and s 135.

Counsel for the plaintiff also relied upon a number of definitions of the word “community”, including that in the Macquarie Dictionary (7th Edition) which is in the following terms:

It was submitted that such definition supported the conclusion that the term “general community” referred to s 2A(1)(a) and (d) of the Administration Act should be construed as a reference to the whole of the community of NSW.

Counsel for the plaintiff also pointed to the fact that an offender’s deportation is not a mandatory consideration for the purposes of s 135 of the Administration Act. Counsel submitted that an offender who is released on parole necessarily serves the remainder of his or her sentence in the NSW community until such time as permission to leave the State is granted, or until the Commonwealth Government intervenes and orders that he or she be deported. Counsel submitted that there was a general rule of statutory construction that confined State enactments to State proceedings, and that a reference to courts, matters, things and persons in the legislation of a State was to be construed as a reference to courts, matters, things and persons in that particular State, and nowhere else. [30] It was submitted that if the word “community” was construed as being the NSW community for the purposes of s 135 of the Administration Act, the extent to which deportation may be considered under the Administration Act was necessarily limited. That outcome, it was submitted, was consistent with deportation not being a mandatory factor.

Counsel for the plaintiff further submitted that the legislature of one country is presumed not to deal with persons or matters, the jurisdiction over which properly belongs to another country, and that there was a presumption that legislation is not to have an extra-territorial effect. It was submitted that in the context of the present case, this meant that the safety of the community in the United Kingdom was irrelevant to the statutory duties of the Authority. Counsel submitted and that it was beyond the Authority’s jurisdiction to refuse parole on the basis of an assessment of the interests of the safety of an overseas community over which it had no control.

Counsel for the plaintiff then turned to the legislative history of s 135 of the Administration Act. In this regard, he took the Court to the second reading speech in which reference was made (inter alia) to the need to assist an offender’s re-integration “into the community”. It was submitted that in its proper context, this could only refer to the community of NSW.

The submissions of counsel for the plaintiff then turned to the principle of legality, in the context of the legislative history of s 135. It was submitted, in particular, that under the Parole Act [31] and the Sentencing Act, [32] which were effectively the predecessors to the Administration Act, an offender was entitled to be considered for parole and released irrespective of whether he or she was liable to deportation. It was submitted that had the Parliament intended to alter that position, it would have stated such intention in unambiguous language.

Counsel for the plaintiff further submitted that it was difficult to envisage that there would ever be any change in the plaintiff’s circumstances which would support any further application for release. He submitted that in these circumstances, the plaintiff faced indefinite incarceration.

Finally, counsel for the plaintiff submitted that in reaching its decision, the Authority had made no reference to guidelines or guiding principles. It was submitted that the guiding principles attached to the Authority’s Annual Report released in 2013 did not indicate that they were made in consultation with the Minister. Whilst acknowledging that such guiding principles did not have the force of law, and did not have to be taken into account under s 135 of the Administration Act, and whilst further acknowledging that subsequent Annual Reports did not include a copy of any further guiding principles, counsel cited the fact that the 2013 principles included the following:

Senior counsel for the second defendant commenced by taking the Court to the text, statutory context, and purpose of s 135 of the Administration Act. He submitted that in circumstances where the term “community” was not defined in the Administration Act, and where the text of s 135 was silent as to the geographical reach of the term, neither of the respective constructions advanced by the parties was precluded, or for that matter required, by the text of the section alone.

Senior counsel submitted that whilst dictionary definitions may assist in identifying the range of possible meanings that a word may bear in various contexts, such definitions will not assist in ascertaining the precise meaning that the word may bear in a specific context. It was further submitted that in any event, the particular definitions relied upon by the plaintiff, although they referred to a “locality”, simply meant “a place”, and did not carry with them any particular implication(s) as to the degree of “localness” which was required. Senior counsel also referred the Court to the definition of the word “community” which appears in the Oxford Dictionary of English (3rd Edition) in the following terms:

It was submitted that nothing in that definition suggested that the place must be limited to a particular size (such as a state or even a country), and that the word “community” was therefore capable of referring to the New South Wales community, the Australian community, or an overseas community.

It was further submitted that the principle of consistency in statutory construction did not assist the plaintiff, because there was no reference to the term “community” in the Administration Act that could be unequivocally related to one or other of the constructions for which each party contended.

Senior counsel then turned to the context in which the word “community” is used in the Administration Act. In doing so, he relied upon a series of factors which, it was submitted, supported the second defendant’s construction.

Firstly, it was submitted that s 135(2)(b) of the Administration Act, along with the other sub-paragraphs of s 135(2), informed the meaning of the term “community” because they were expressed to be necessary integers in the Authority’s assessment of the “safety of the community”. Senior counsel submitted that there was no indication in s 135(2)(b) that the risk of an offender re-offending was to be considered in a geographically limited way, and that such inquiry was to be undertaken regardless of where it was anticipated that an offender would ultimately come to reside if and when released. It was submitted that this meant that in a case where it was known that an offender would be deported, the Authority was not relieved of its statutory duty to consider the risk of re-offending.

Secondly, it was submitted that s 135(2)(c) of the Administration Act was premised on the proposition that a gradual and supervised release of an offender was generally preferable to a sudden and unsupervised release. It was submitted that the policy in favour of gradual release furthered the purposes of the Act, which included the rehabilitation of offenders and their re-integration into the community. Senior counsel submitted that if the plaintiff’s construction was to be preferred, the Authority would be precluded from giving effect to such a policy in the case of any offender who was liable to deportation, for the simple reason that if deported, such an offender could not be subject to any supervision at all. This, it was submitted, would mean that the Authority’s responsibility to facilitate rehabilitation and reintegration of offenders would cease in the case of an offender such as the plaintiff who was eligible for parole, but who would be deported on release and thus not subject to any supervision at all during his parole period.

Thirdly, senior counsel relied upon those provisions of Part 2, Division 5 of the Administration Act which govern the detention of prisoners from Norfolk Island in New South Wales Correctional Centres, [33] and the provisions of Part 6, Division 4A which allow the Authority to make parole orders in relation to such prisoners. [34] Senior counsel submitted that such provisions were predicated on the assumption that s 135 was capable of having some operation in respect of prisoners who were from Norfolk Island, many of whom it could sensibly be expected would wish to return there once released. It was submitted that if s 135 were construed as denying the Authority the power to consider the safety of the community beyond New South Wales, it would require the Authority to exercise its powers over Norfolk Island prisoners without regard to the risks that a grant of parole might visit upon Norfolk Island residents. Senior counsel submitted that it was implausible to suggest that the Act was intended to operate in this way.

Fourthly, senior counsel relied upon the provisions in the Administration Act in respect of terrorism-related offenders. [35] In doing so, he pointed out that in order to satisfy itself of the matters in s 159C(1)(a), the Authority was required to assess the risk that an offender would engage in terrorist acts or violent extremism in any other part of Australia, or in any other country. Whilst accepting that such provisions could not be strictly regarded as an integer in the assessment of the interests of the safety of the community, senior counsel submitted that they nevertheless reflected the fact that the Parliament’s concern extended to the conduct of offenders overseas. This, it was submitted, supported a conclusion that the “community” referred to in the Administration Act was broader than the community of New South Wales, or for that matter the community of Australia as a whole.

Fifthly, senior counsel relied upon the extent to which the Administration Act contemplates and authorises co-operation between authorities in New South Wales and those of other jurisdictions. [36]

Senior counsel then turned to the legislative history of s 135. He submitted that such history favoured a construction which permitted the Authority, in determining an application for release on parole, to have regard to the risk to the community in an offender’s country of intended deportation. It was submitted that the legislative history reflected an alteration of the criteria that the Authority was to apply, and shifted away from a consideration of the public interest generally towards a consideration of the interests of the safety of the community. It was submitted that the various legislative amendments had not purported to introduce any constraint on the Authority’s ability to have regard to risks to the community that might eventuate outside New South Wales.

In terms of the IA, senior counsel submitted that both the principle embodied in s 12(1)(b), and the associated presumption against extra-territoriality, were necessarily subject to any expressed contrary intention. Such an intention, it was submitted, was evident in the present case when one considered the provisions of s 135, the rehabilitative and corrective responsibilities of the Authority, and the fact that the Administration Act contemplated extensive co-operation with the authorities of other jurisdictions.

Finally, senior counsel submitted that the principle of legality did not assist the plaintiff. It was submitted that such a principle was concerned with the preservation of fundamental rights and principles, and systemic values, and that what had been identified by the plaintiff did not fall into any of those categories.

In considering the competing submissions of the parties, it is appropriate to commence by setting out a number of general principles of statutory construction.

Firstly, the primary objective of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must therefore be determined by reference to the language of the instrument when viewed as a whole. [37]

Secondly, the task of statutory construction begins and ends with a consideration of the statutory text, which must be considered in light of its context, its legislative purpose, the relevant legislative history, and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. [38]

Thirdly, context should be considered in the first instance, and not merely when ambiguity is said to arise. [39]

Fourthly, although the legal meaning of a particular provision will ordinarily correspond with its grammatical meaning, the context of the words, the consequences of a literal or grammatical construction, and the purpose of the statute, may require the provision to be read in a way that does not correspond with the literal or grammatical meaning. [40]

Fifthly, a construction that promotes the purpose of the legislation is to be preferred over one which does not. [41]

Finally, it is a circular, and erroneous, approach to statutory construction to construe the words of a definition by reference to the term defined. [42]

Applying these principles to the circumstances of the present case, I have come to the view that for a number of reasons, the construction advanced by the second defendant is to be preferred.

The evidence before the Authority was that upon release, the plaintiff will inevitably be deported to the United Kingdom. Accepting that to be the case, and in circumstances where one of the express objectives of the Act is to provide for the rehabilitation of offenders with a view to their reintegration into the general community, [43] the plaintiff would not, if released, be subject to any supervision at all. He could not be compelled to undertake, or not to undertake, any activity and the implementation of any recommendation which might be made in relation to his rehabilitation would be entirely dependent upon his motivation, and his willingness to co-operate. For example, although the plaintiff could be asked to attend an interview with correctional or law enforcement authorities in the United Kingdom, he would not be under any obligation to do so. This total absence of supervision would arise in circumstances where, on the evidence before the Authority, the plaintiff:

I have already noted that one of the stated objectives of the Administration Act is directed towards the rehabilitation of offenders. In the present case, a necessary component of the plaintiff’s rehabilitation is the taking of steps which have been assessed as being necessary for the purposes of addressing his identified risk of recidivism. However, for the reasons I have outlined, such steps could not be implemented. If the plaintiff's construction were accepted it would follow that in a case such as the present, the Authority would, in reaching its decision to whether the offender in question should be released, effectively put aside the question of rehabilitation, irrespective of how dangerous the offender was, and irrespective of the level of risk that he or she posed. Such an outcome would hardly be conducive to an offender’s rehabilitation. In fact, it would impede it, because it would mean that an offender could be released without any effective supervision at all. That would promote an approach which was at odds with one of the stated objectives of the Administration Act. In my view, it cannot have been the intention of the Parliament that the Authority would carry out its functions in a way which failed to advance one of the objectives of the Act, and which ignored the significant risk of re-offending in the absence of rehabilitation.

I am fortified in that view by a number of authorities to which I was taken by senior counsel for the second defendant in the course of argument.

In Attorney-General (NSW) v Liew [44] Beech-Jones J considered the previous terms of s 135 (1) of the Administration Act which precluded the Authority from making a parole order unless it was satisfied “that the release of the offender was appropriate in the public interest". For the purposes of making that assessment, the Authority was required to take into account a number of matters, including the need to protect the safety of the community. Having observed [45] that the defendant’s deportation upon release was an assumption on which all parties had proceeded, his Honour said:

Whilst his Honour was considering s 135 of the Administration Act in terms which were different to those presently under consideration, his determination provides some support for the conclusion that both the fact of an offender’s deportation, and the circumstances which would prevail in the country to which he or she was to be deported, are relevant considerations.

In R v Parole Board; Ex parte White [46] the Queen's Bench Division was called upon to determine whether the consideration, by a Parole Board, of the protection of the public was capable of extending to a consideration of the risk to the public in Jamaica, that being the country to which the offender was to be deported when released. Butler-Sloss LJ said:

In R v Fox [47] the Supreme Court of South Australia considered whether a person found not guilty of attempted murder by reason of mental incompetence should be released in circumstances where it was contemplated that he would be deported to the United States. In circumstances where there was evidence tending to establish that the applicant posed a risk to those who were around him, Gray J noted that an issue had arisen as to whether or not the phrase “community" included the community of the United States and observed: [48]

His Honour went on to say: [49]

In Miketic v Prisoners Review Board [50] the Supreme Court of Western Australia dealt with an application by the plaintiff for parole, in circumstances where he had argued that due to strong family ties and employment prospects in Serbia, the Parole Board had been required, but had failed, to take those circumstances into account in the event that he would be deported following any grant of parole. Martin CJ observed: [51]

His Honour went on to say: [52]

In Attorney-General for the State of New South Wales v XY [53] the Court of Appeal was called upon to consider the provisions of s 43(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) which provided that the Mental Health Review Tribunal must not make an order for the release of a forensic patient unless satisfied on the evidence available that the safety of the patient, or any member of the public, would not be seriously endangered by the patient’s release. There was evidence before the Tribunal, which the Tribunal accepted, that the respondent would benefit from a transfer from New South Wales to Queensland. The Tribunal subsequently made an order that the patient be unconditionally released upon notification of his admission to a forensic unit in that State. In obiter remarks, Beazley P observed [54] :

Basten JA, in remarks which were also obiter, said: [55]

In Ripi v Parole Board Queensland [2018] QSC 205 Davis J in the Supreme Court of Queensland considered an application for judicial review of a decision by the Parole Board. The applicant had relied, in favour of a grant of parole, upon circumstances that would prevail upon his deportation to New Zealand after he had been released. The Parole Board had observed that it was required to assess the level of risk posed by the plaintiff to the community, whether that community be in Australia or New Zealand, and had expressed its concern that the plaintiff was effectively an untreated sex offender who would only receive minimal supervision in New Zealand. Davis J rejected the plaintiff's submission that the Board had failed to consider relevant guidelines which it was instructed to consider where there was an unacceptable risk to the community if he was released on parole. Whilst his Honour was not called upon to determine the meaning of the word “community", his judgment contained nothing to suggest that he considered the Board had erred by taking into account the safety of the community in New Zealand.

It must be acknowledged that none of these authorities are directly on point. However, they are generally supportive of the proposition that the Authority did not err by taking into account the fact of the plaintiff’s inevitable deportation, and the circumstances which would prevail in that event in terms of his ongoing supervision.

I do not consider that any of the dictionary definitions to which I was referred provide any real assistance in determining the issue. Whilst dictionary definitions may assist in identifying the range of possible meanings that a word may bear in various contexts, they will not assist in ascertaining the precise meaning that a word bears in a particular context. It is partly for this reason that courts have cautioned against an approach to statutory construction which seeks to make a “fortress” out of a dictionary. [56] There is nothing in the dictionary definitions of the word “community” to which I was referred which supports a conclusion that such term, when used in the Administration Act, refers to the community of New South Wales only.

Importantly, there is also nothing in the Administration Act which provides support for the proposition that the word “community” is to be construed in a way which is geographically limited. Indeed, as senior counsel for the second defendant pointed out, such indications as are contained in the Administration Act tend generally to the contrary [57] and support the approach taken by the Authority.

Whilst I accept that where a term is used more than once in an Act it should be given a consistent interpretation, there is nothing which prevents that approach from being adopted in the present case. The construction of the word “community” as propounded by the second defendant can be consistently adopted wherever it appears in the Administration Act without giving rise to any inconsistency.

I have already noted the reliance placed by counsel for the plaintiff upon the principle of legality. Pursuant to that principle, the law recognises that absent express words or necessary implication, it is to be inferred that the Parliament, in enacting a particular provision, did not intend to remove fundamental rights and freedoms. [58] The principle has been described as a working hypothesis, the existence of which is known both to Parliament and the courts, and upon which statutory language will be interpreted. [59] In my view, reliance on the principle of legality in the present circumstances is somewhat misplaced for two principal reasons.

Firstly, the submission advanced on behalf of the plaintiff embodied the proposition that under the legislation which preceded s 135 of the Administration Act, an offender was entitled to be considered for parole if he or she was liable to deportation. Although not expressly put, the effect of the submission was that the opposite was the case under the Administration Act. Properly understood that is not the position. There is nothing preventing the Authority from considering the release on parole of a person who is subject to deportation. Indeed, as the Authority pointed out [60] it often considers whether to grant parole to foreign nationals whose visas have been cancelled.

Secondly, as I have noted, the principle of legality has, as its focus, fundamental rights and freedoms. In Lee v NSW Crime Commission, [61] Gageler and Keane JJ made reference to a statement of Marshall CJ in the Supreme Court of the United States in 1805 [62] where his Honour had observed:

The legislative history in the present case does not support a conclusion that as a consequence of the enactment of s 135 of the Administration Act there has been any infringement of rights, any overthrowing of fundamental principles, or any departure from the general system of law relating to an offender’s release on parole.

I am also unable to accept the proposition that the effect of the Authority’s determination is that the plaintiff will be held in custody indefinitely. That proposition is predicated on the assumption the plaintiff’s circumstances will remain as they are. That may not necessarily be the case. Changes in the plaintiff’s circumstances could be brought about, for example, by the plaintiff taking the further rehabilitative steps which were identified in the evidence which was before the Authority. If those steps were taken, there may be some potential for the plaintiff to demonstrate that he was not as significant a risk as the Authority has determined is presently the case.

I am also not persuaded that the adoption of the second defendant’s construction would infringe the principle that legislation is presumed not to apply to persons or matters outside the limits of the territory to which such legislation extends. In Jumbunna Coal Mine NL v Victorian Coal Miners’ Association [63] , O’Connor J observed:

In a subsequent decision of Barcelo v Electrolytic Zinc Co of Australasia Limited [64] Dixon J (as his Honour then was) confirmed the principle that the operation of general language in a statute is to be confined to subject matter under the effective control of the Legislature. His Honour observed that it is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other Sovereign or State.

The adoption of the construction advanced by the second defendant does not infringe these principles. That construction simply means that in carrying out its functions, the Authority may take certain matters into account. In doing so, the Authority is not purporting to regulate anything at all which might occur outside New South Wales.

Moreover, the fact that an offender’s deportation is not a mandatory consideration in s 135(2) of the Administration Act is not to the point, and does not support the conclusion that the Authority erred. Whilst s 135(2) sets out a number of mandatory considerations for the Authority to take into account, the section does not purport to constitute an exhaustive list of those considerations that might be relevant in a given case.

Finally, whilst I acknowledge the provisions of s 12 of the IA to which I was taken, I am unable to accept the submission, based on those provisions, that the plaintiff’s construction should be preferred. Section 5 of the IA makes it clear that its provisions (including those in s 12) are subject to the expression of a contrary intention. In my view, the various factors to which I have referred above [65] evidence that contrary intention.

For these reasons I make the following orders: