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In this case, the Court of Appeal considered whether a decision to cancel or suspend parole under s 205(2) of the Corrective Services Act 2006 was attended by an obligation to afford the prisoner natural justice. In considering the relevant provisions of the Act, Fraser JA (Gotterson JA and North J agreeing) found that the Act excluded the common law right to be heard, including both its incidents of a right to be heard before the prejudicial exercise of the statutory power and that the failure to afford the right to a person who is prejudiced by the subsequent decision renders that decision inefficacious.
Fraser and Gotterson JJA and North J
23 March 2018
The respondent, who was serving a sentence of imprisonment, was released on parole and returned to custody a number of times in 2015. . On 17 November 2015 the appellant board suspended the respondent’s parole order indefinitely under s 205(2)(a)(i) Corrective Services Act 2006, which provided that:
“(2) A parole board may, by written order—
(a) amend, suspend or cancel a parole order if the board reasonably believes the prisoner subject to the parole order—
(i) has failed to comply with the parole order; or”
The board gave the respondent an information notice under s 208 of the Act, which relevantly provided that:
“(1) If a parole board makes a written order suspending or cancelling a prisoner’s parole order, the board must give the prisoner an information notice on the prisoner’s return to prison.
(2) The parole board must consider all properly made submissions and inform the prisoner, by written notice, whether the board has changed its decision and, if so, how.”
The information notice notified the respondent of the decision, gave a reason for it, and invited the respondent to show cause by written submissions within 21 days as to why the board should change its decision. . The reason was that the board “reasonably believed that the respondent had failed to comply with conditions of the parole order that the respondent give a test sample as directed by a Corrective Services officer and not take preparatory steps to breach, or otherwise evidence an intention to breach, the parole order”. .
The respondent applied for a statutory order of review of the board’s decision to suspend the parole order indefinitely (and another decision which is not presently relevant). . The primary judge ordered that the decision be set aside on the basis that the information notice did not advise the respondent of “the reason for the decision”, in terms of the definition of “information notice” in s 208(4), because it did not refer to the evidence in the board’s possession upon which the board based its finding that the respondent had failed to comply with the parole order. , .
The board appealed. . In the Court of Appeal, the issue was whether a decision to cancel or suspend parole under s 205(2) of the Act was attended by an obligation to afford the prisoner natural justice. . In particular, the issue was:
“… whether the terms of the statute ‘display a legislative intention to exclude the rules of natural justice and in particular the common law right of the appellants to be heard in opposition to any potential finding that would prejudice their interests’”. .
Fraser JA (with whom Gotterson JA and North J agreed) noted that the common law right had two incidents: first, a right to be heard before the prejudicial exercise of the statutory power, and second, that the failure to afford the right to a person who is prejudiced by the subsequent decision renders that decision inefficacious. .
His Honour held that the relevant provisions of the Act excluded any such right in relation to a decision to suspend or cancel a prisoner’s parole order under s 205(2). . His Honour referred in particular to four matters. . First, inconsistent with the first incident of the common law right, a prisoner has no right to be heard before a decision is made under s 205(2). . Second, inconsistent with the second incident of the common law right, immediately upon the making of a decision under s 205(2) that decision operates to the prejudice of the prisoner although the prisoner will not have been afforded an opportunity to be heard. .
Third, s 208(2) does not confer upon a prisoner a right to challenge the decision made under s 205(2). Instead, it allows the prisoner to make a submission that the board should in the circumstances prevailing at a subsequent time make a different decision. . Fourth, if and to the extent that the decision under s 208(2) differs from the earlier decision under s 205(2), the subsequent decision will commence to have effect under the enactment from the time of that subsequent decision, leaving intact the legal effect of the decision under s 205(2) at all times before the making of the subsequent decision. .
Accordingly, the Court allowed the appeal. , –.
M J Hafeez-Baig