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High Court of Australia |
THE STATE OF SOUTH AUSTRALIA v. O'SHEA [1987] HCA 39; (1987) 163 CLR 378
F.C. 87/037
Criminal Law (S.A.) - Crown
High Court of Australia
Mason C.J.(1), Wilson(2), Brennan(3), Deane(4) and Toohey(2) JJ.
CATCHWORDS
Criminal Law (S.A.) - Detention - Sexual offence - Indefinite detention - Release on licence - Offender at large on expiration of licence - Subsequent apprehension on warrant and return to detention - Whether issue of warrant justified - Criminal Law Consolidation Act 1935 (S.A.) , s. 77a - Correctional Services Act 1982 (S.A.), s. 64.Crown - Governor in Council - Natural justice - Indefinitely detained sexual offender - Power to release on licence on recommendation of Parole Board - Hearing by Board - Offender and counsel present - Recommendation of release on licence - Consideration by Cabinet - Failure of Governor in Council to act on recommendation - Right to hearing by Governor in Council - Criminal Law Consolidation Act 1935 (S.A.), s. 77a - Correctional Services Act 1982 (S.A.), s. 64.
HEARING
Canberra, 1987, March 19;DECISION
MASON C.J. For the reasons given by Wilson and Toohey JJ. I would dismiss the appeal by Mr O'Shea.2. The outcome of the appeal by the State of South Australia turns on the question whether the decision of the Governor in Council not to release Mr O'Shea, despite the Parole Board's ("the Board") recommendation that he be released, was subject to a duty to act fairly. The answer to this question hinges to a large extent on the relevant statutory framework: Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, at pp 584-585.
3. On 28 February 1978 Jacobs J. directed that Mr O'Shea be detained in an institution during Her Majesty's pleasure pursuant to s.77a(3) of the Criminal Law Consolidation Act 1935 (S.A.) as amended ("the Act"), without imposing any other sentence, after Mr O'Shea had been convicted in the Supreme Court of South Australia of two offences of indecent assault against young children. Section 77a provides for a regime of preventive detention by means of the imposition of an indeterminate sentence on a person who is found guilty of one of a specified class of sexual offences and is declared by the court or judge to be incapable of exercising proper control over his sexual instincts. The court or judge may make such a declaration and direct that the offender be detained in an institution during Her Majesty's pleasure, either in addition to, or instead of, imposing any other sentence, where two or more medical practitioners appointed by the court or judge have reported that the person is so incapable and the court or judge considers the matters reported to be proved (s.77a(3)).
4. Section 77a(3) goes on to provide:
"Every offender in respect of whom such a direction is given -
and, until the Governor gives a direction, in any gaol;
(b) shall not be released unless -
(i) the Governor is satisfied, on the recommendation of the
Parole Board, that he is fit to be at liberty and terminates
his detention;
or
(ii) the Governor releases him on licence in pursuance of thisThe references in the statute to "the Governor" are references to the Governor with the advice and consent of the Executive Council: Acts Interpretation Act 1915 (S.A.), s.23.
section."
5. An offender detained under s.77a of the Act is to be examined once in every three months by the superintendent or deputy superintendent of Glenside Hospital or by some other person appointed by the Governor to conduct examinations under s.77a(6). The person making the examination shall forthwith make a report to the Director-General of Medical Services (s.77a(6)). The Governor may, on the recommendation of the Board, release on licence a person detained in an institution under the section (s.77a(7a)). The terms and conditions on which a person is released on licence shall be determined by the Governor on the recommendation of the Board (s.77a(7b)).
6. The Board consists of six members appointed by the Governor under s.55 of
the Correctional Services Act 1982 (S.A.). Under s.64 of that Act the Board
shall, at least once in each year, review the progress and circumstances of,
and report to the Minister for
Correctional Services on, every prisoner
serving a sentence of life imprisonment or any sentence of indeterminate
duration (s.64(2)).
Apart from that, the Board shall, at any time at the
request of the Minister, report to him on any prisoner serving a sentence of
life imprisonment or any sentence of indeterminate duration (s.64(3)). The
Board may, in its report in respect of a prisoner, include
such
recommendations as to the release of the prisoner as the Board
is empowered to
make (s.64(4)). But s.64(5) conditions the Board's
power to make such a
recommendation in this way:
"The Board shall not recommend to the Governor the release of a
person declared to be incapable of exercising proper control over
his sexual instincts unless 2 medical practitioners have examined
the prisoner and are of the opinion that he is fit to be
released."
7. Before preparing a report with respect to a prisoner the Board may
interview him. The Board is also required to interview a
prisoner at his
request, but is not required to do so pursuant to the prisoner's request more
than once a year (s.63(3) and (4)).
8. It is a basic principle of the common law that an offender should be given the sentence appropriate to his crime and no more. Even if in determining the sentence appropriate to the crime it is proper to take account of the need to protect the community from an offender who is incapable of controlling his established propensity for sexual or violent crime, a court could not consistently with that basic principle sentence an offender to a sentence of indeterminate duration other than life imprisonment. And the common law did not countenance preventive detention except in so far as protection of the community is a legitimate matter to be considered in fixing the length of the sentence. The regime for which s.77a of the Act provides therefore represents a marked departure from the common law.
9. There is of course an obvious tension between protection of individual liberty, which is deeply rooted in common law tradition and democratic ideals, and the need to protect the community from offenders who, because they are unable to control their sexual impulses, are likely to constitute a menace or a risk to society. The Parliament of South Australia has endeavoured to resolve this tension by prescribing the procedures set out in s.77a. These procedures seek to ensure the protection of the community by providing that an offender who is the subject of a declaration and direction under sub-section (3) shall not be released until the Governor in Council is satisfied, on the recommendation of the Board, that he is fit to be at liberty and terminates his detention or releases him on licence under sub-section (7a). The protection of the community is reinforced by the brake put upon the Board's power to recommend release by s.64(5) of the Correctional Services Act which prohibits a recommendation for release unless it is supported by the opinion of at least two medical practitioners who have examined the offender.
10. At the same time Parliament has endeavoured to safeguard the interests of the offender by ensuring frequent and regular examination of him under s.77a(6) of the Act, by requiring the Board to report to the Minister on the offender at least once a year and at any time at the request of the Minister, and by providing for the Board to interview the offender (a) before preparing any report and (b) at the offender's request: s.63(3) of the Correctional Services Act. Moreover, s.77(2)(c) of that Act gives a right to the offender to make submissions to the Board in writing. This right, which may be exercised in relation to the Board's preparation of a report and recommendation, was exercised by Mr O'Shea in the present case. Indeed, he attended a hearing before the Board with his counsel who presented submissions to the Board, after copies of the two medical opinions on which the recommendation was based were made available to them.
11. If the legislation reposed in the Board the final responsibility for deciding whether an offender should be released, instead of entrusting that responsibility to the Governor in Council, the Board would have discharged its duty to act fairly by adopting the procedure which it followed in the present case. The question is whether the duty to act fairly calls for something more when the final decision is made by the Governor in Council, not by the Board. There is a common law duty to act fairly in the making of administrative decisions which affect the rights, interests and legitimate expectations of an individual, subject only to the clear manifestation of a contrary statutory intention: Kioa, at pp.584, 632. This common law duty is capable of applying to the Governor in Council, there being nothing in the relationship between the Governor and the Executive which inhibits the existence of such a duty: F.A.I. Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342, at pp 364-366. That decision stands as authority for the proposition that the mere vesting of decision-making authority in the Governor in Council is not a sufficient manifestation of intention to exclude the common law duty. There the Court rejected the argument that the Governor in Council is intrinsically unsuited, by reason of its composition and procedures, to discharging the duty to act fairly, pointing out that the Governor in Council could delegate to a committee of its members or to the responsible Minister the function of considering written submissions and reporting on them (at pp.369-371).
12. In F.A.I. Insurances it was significant that the decision, that of granting or refusing an application for renewal of a licence was to be made principally, if not exclusively, by reference to considerations relating to the applicant, rather than issues of general policy. It was therefore a decision of a kind usually made by a Minister or statutory officer in which case the duty to act fairly ordinarily applies. In this situation it is not to be supposed that Parliament intended to exclude a duty to act fairly by vesting authority to make the decision in the Governor in Council.
13. In the present case the nature of the decision to be made, the release of the offender or the continuation of his preventive detention, concerned considerations personal to Mr O'Shea rather than issues of general policy. And, but for the provisions in s.77a safeguarding the offender's interests, there might be a basis for saying that, the Board having recommended release, Mr O'Shea had a legitimate expectation that the recommendation would not be rejected without his submissions being considered.
14. At this point it is necessary to take account of a constitutional practice which is followed in South Australia. Recommendations to the Governor in Council are based on a Cabinet decision, not on a decision by the responsible Minister. The participation by Cabinet in the decision-making process generates two important objections to the existence of a duty to act fairly. First, it is said, Cabinet is a political institution primarily concerned with the "political, economic and social concerns of the moment": Attorney-General of Canada v. Inuit Tapirisat of Canada (1980) 115 DLR(3d) 1, at p 17. So it is, but in some instances Cabinet is called upon to decide questions which are much more closely related to justice to the individual than with political, social and economic concerns. The fact that Cabinet ordinarily directs its attention to concerns of this kind is not a reason for denying the existence of a duty to act fairly in a matter which turns not on such concerns, but on considerations peculiar to the individual. A Minister is to some extent, like Cabinet, concerned to make political judgments. Yet in appropriate cases he will be subject to a duty to act fairly.
15. The second objection is that Cabinet holds its meetings in private, that its proceedings are confidential and that it does not give reasons for its decisions. The strength of this objection is that it makes it extremely difficult, if not impossible, for the courts to dictate to Cabinet the mode in which it should consider a matter coming before it. It could scarcely be supposed that a court could require Cabinet to give particulars to an interested person of its possible objections to his application or submission so that he might meet them or that a court could pronounce a decision invalid because Cabinet had not given such particulars. Nor would a court ordinarily require the Minister to disclose his submission to Cabinet, because to do so would compel disclosure of material considered by Cabinet. But I can find no persuasive reason why the courts should not, in an appropriate case, require as an incident of natural justice or the exercise of a duty to act fairly that there be placed before Cabinet by the responsible Minister the written submissions of the individual affected by the decision to be made or an accurate summary of such submissions. Such a requirement could not amount to an intrusion into Cabinet's control of its own proceedings and it would in all probability conform to existing practice. If at some later stage it were to appear that the Parliament was entrusting the Governor in Council with the making of decisions affecting individuals so as to avoid the need to act fairly the Court might be compelled to go further, but at this stage such a course is not warranted.
16. In the making of a decision under s.77a of the Act the public interest is plainly a relevant consideration. Even if all the medical opinions support a recommendation by the Board for release, the Cabinet in tendering advice to the Governor in Council may conclude that nonetheless in the public interest the offender should not be released because, in the light of his history, his release would entail a level of risk that is unacceptable. The Solicitor-General submits that the assessment of what is in the public interest involves an element of policy or political judgment. Indeed, he goes further and says that in making this judgment members of Cabinet would be influenced by their assessment of the possibility of an adverse public reaction to the offender's release. According to the argument, these are matters of political judgment on which the offender is not entitled to be heard.
17. It was not submitted that likely public reaction stands outside the ambit of the statutory discretion. Quite obviously a person who has to decide whether an offender should be released may take into account the likely reaction of the community to the release of the offender against whom a judge has made a declaration that he is incapable of controlling his sexual instincts. The dividing line between an individual's perception of what is necessary or desirable in terms of protection of the community and the individual's perception of what the community considers is necessary or desirable for its own protection is so shadowy that it may well be impractical to identify it as a criterion of relevance to the exercise of the discretion. And, having regard to the problems associated with the giving of reasons for a Cabinet decision, I do not see how such a criterion of relevance could be implemented by the courts. But this is not a matter that I need to decide. It is sufficient for present purposes for me to assume that Cabinet may decide not to release an offender for public interest reasons of the kind mentioned.
18. I would reject the argument that, because this notion of public interest involves some aspects of political or policy judgment, it lies outside the ambit of the doctrine of natural justice or the duty to act fairly. True it is that the courts do not substitute their view of policy for that prescribed by the Executive, but this does not mean that policy issues stand apart from procedural fairness. Although it is unrealistic and impractical to insist on a person having the opportunity to present submissions on matters of high level general policy, the same considerations do not apply to the impact of policy on the individual and to those aspects of policy which are closely related to the circumstances of the particular case and that is the case here.
19. The scheme for which s.77a provides is not unfamiliar. It allows a place for the presentation of the offender's case - before the Board when it is considering whether it should make a recommendation for release. There are many illustrations of this legislative model which entails the holding of an inquiry by a body authorized to make a recommendation to a Board or Minister which may make a decision rejecting the recommendation without conducting any further inquiry: see Taylor v. Public Service Board (N.S.W.) [1976] HCA 36; (1976) 137 CLR 208; Kioa v. West; Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. [1986] HCA 40; (1986) 60 ALJR 560; 66 ALR 299. The hearing before the recommending body provides a sufficient opportunity for a party to present his case so that the decision-making process, viewed in its entirety, entails procedural fairness. If the decision-maker intends to take account of some new matter, not appearing in the report of the recommending body, and the party has had no opportunity of dealing with it, the decision-maker should give him that opportunity: Peko-Wallsend.
20. The critical narrow question is whether Mr O'Shea has had an adequate opportunity of presenting submissions on the question of public interest. As I see it, the scope of the Board's discretion in making its recommendation under s.77a(3)(b) is as wide as the Governor in Council's discretion under the same provision. The Board therefore had authority to consider any submission Mr O'Shea wished to make on the matter of public interest and to deal with it in the report containing the recommendation that he be released, so that the submission and the Board's evaluation of it goes forward to Cabinet and the Governor in Council. Although s.77a(3) does not specifically so provide, the procedure which I have indicated should be followed so as to ensure procedural fairness. As the report of the Board to the Governor in Council is not in evidence we do not know its contents. But this is by the way as Mr O'Shea does not claim that he made any submission to the Board on the matter of public interest. Accordingly, no denial of natural justice or breach of the duty to act fairly has been established.
21. In conclusion I make the comment that there are obvious difficulties in a procedure which commences with a judge imposing an indeterminate sentence on the footing that he has declared that the offender is incapable of controlling his sexual instincts and provides for subsequent administrative reviews of the offender's condition by administrative bodies culminating in a recommendation by the Board which is considered by Cabinet and then by the Governor in Council. The initial declaration by the judge may exercise a controlling influence in the minds of those who subsequently consider whether the offender should be released. The system would offer greater protection to the offender if provision were made for a subsequent judicial review of the offender's capacity to control his sexual instincts. However, the Parliament has chosen the present procedures no doubt because it considers that political assessment of the public interest is to be preferred to judicial assessment.
22. In the result I would dismiss the appeal by Mr O'Shea and allow the appeal by the State of South Australia.
WILSON AND TOOHEY JJ. These two appeals from decisions of the Full Court of the Supreme Court of South Australia (Zelling A.C.J., Cox and O'Loughlin JJ.) were heard together. Both matters relate to the indefinite detention of Mr O'Shea in a prison in South Australia. In the first appeal, the State of South Australia ("the State") appeals from an order declaring void a decision of His Excellency the Governor of the State ("the Governor") whereby the Governor declined to act on a recommendation of the Parole Board of South Australia ("the Board") that Mr O'Shea be released on licence. The second matter is an appeal by Mr O'Shea from a decision rejecting his attack on certain of the procedures adopted by the Board in returning him to custody following his release on licence on an earlier occasion.
2. On 19 December 1977 Mr O'Shea was convicted in the Supreme Court of South
Australia of two offences of indecent assault against
young children. He had
been convicted of similar offences in 1962 and 1967. On the occasion of his
convictions in 1977 Mr O'Shea
requested the learned trial judge, Jacobs J., to
take into account another four offences of a similar kind. However, he later
denied
any involvement in some of these last-mentioned offences and although
Jacobs J. confessed to having "little confidence" in those
denials his Honour
put them aside as having no bearing on the course he proposed to follow. The
offences of which Mr O'Shea was
convicted were offences to which s.77a of the
Criminal Law Consolidation Act 1935 (S.A.) as amended ("the Criminal Law Act")
applied.
In accordance with that section, Jacobs J. directed three legally
qualified
medical practitioners to inquire as to the mental condition
of Mr
O'Shea and in particular whether his mental condition was such
that he was
incapable of exercising proper control over his
sexual instincts. In due
course, each of those practitioners reported
on oath to the Court and it was
proved to the satisfaction
of the Judge that Mr O'Shea was so incapable.
Jacobs J. then, on 28 February
1978, exercised the power conferred by s.77a(3)
and
directed that Mr O'Shea be detained in an institution during Her Majesty's
pleasure.
His Honour refrained from imposing what the
sub-section describes
as "any other sentence" and what his Honour referred to as "a
purely punitive
sentence". It is now common
ground between the parties that a direction given
pursuant to s.77a(3) satisfies the
description of a "sentence of indeterminate
duration" (our emphasis) within the meaning of s.64 of the Correctional
Services Act 1982 (S.A.) as amended ("the Correctional Services Act"). When
announcing his decision, Jacobs J. added the following comment:
"No doubt the prisoner will see this order as being punitive as in
a sense no doubt it is, because at least for the time being he
will be deprived of his liberty, but he ought not to see it as
wholly indeterminate, or as it were a life sentence. His progress
and his treatment, which I am assured will be undertaken, will be
under constant review. It may well be that the time will come
when the kind of supervision outside the confines of an
Institution, to which Mr. Kidney has referred in his report which
is before me, will be appropriate, but I think it is clear on the
evidence before me that that time has not arrived."
3. On 4 December 1980 the Governor, on the recommendation of the Board,
released Mr O'Shea on licence pursuant to s.77a(7a) of the
Criminal Law Act.
The licence was subject to a number of conditions. Following allegations that
he had breached one of those conditions,
a warrant was issued pursuant to
s.77a(7c)(b) and on 2 February 1981 he was brought before the Board and was
returned to custody.
4. In July 1982 Mr O'Shea sought leave of the Court of Criminal Appeal to appeal against the direction of Jacobs J. of 28 February 1978. The application was refused: see Reg. v. O'Shea (1982) 31 SASR 129.
5. On 22 September 1983 the Governor, again pursuant to s.77a(7a) of the
Criminal Law Act, released Mr O'Shea upon licence for a
period of three
calendar months commencing 27 September 1983. When the licence period expired
Mr O'Shea remained at liberty. The
Board did not take any action. An
affidavit sworn by the Acting Secretary to the Board informed the Supreme
Court as follows:
"No matter concerning or involving Mr. O'Shea was raised before
the Parole Board in the period September, 1983 to April, 1985. In
particular, the Parole Board did not consider or reconsider Mr.
O'Shea's position upon the expiry of the aforesaid licence....
There is nothing within any of the documents held by the Parole
Board relating to Mr. O'Shea which would provide any explanation
as to why the matter did not again come before the Parole Board.
In particular there is nothing within any of those documents which
expressly or by inference might suggest that the Parole Board had
determined not to reconsider Mr. O'Shea's case."
6. On 9 April 1985 the Minister of Correctional Services informed the
Chairman of the Board of allegations conveyed to him by the
Minister of
Community Welfare to the effect that Mr O'Shea, in the name of "Michael
Harrison", was operating an organization called
"Caring is a Community
Concern" which organization was advertising camps for young children. A
warrant was issued, in purported
pursuance of s.77a(7c) of the Act, and Mr
O'Shea was apprehended and detained in the Adelaide Gaol. He was advised in
writing that
the Board would interview him "in regard to your release on
licence" on 16 April 1985. That interview took place but did not proceed
very
far because of police inquiries that were being undertaken. However, the
Chairman informed Mr O'Shea that he had been brought
back because his licence
had expired. She explained that, although there were matters which the Board
wished to discuss with him,
it was neither fair nor appropriate to do that
until the police inquiries were completed. He was returned to custody. At
about
the same time he was charged with two offences, one of indecent assault
and one of gross indecency, each involving a young boy.
7. At its meeting on 8 May 1985 the Board deferred further consideration of Mr O'Shea's case pending the conclusion of the criminal proceedings. In the meantime, routine reports on Mr O'Shea from psychiatrists and social workers were provided to the Board.
8. By letter dated 20 December 1985 Mr O'Shea's solicitor advised the Board
that on 16 December 1985 the Crown had discontinued
the charges against his
client. That letter came before the Board at its meeting on 15 January 1986,
when it was resolved to request
two medical practitioners to examine Mr
O'Shea. The significance of that step is to be seen in the context of s.64(5)
of the Correctional
Services Act, which provides:
"The Board shall not recommend to the Governor the release of a
person declared to be incapable of exercising proper control over
his sexual instincts unless 2 medical practitioners have examined
the prisoner and are of the opinion that he is fit to be
released."
9. In due course the two reports were received. Both practitioners were of
the opinion that Mr O'Shea was fit to be released on
licence. It is fair to
say that both reports contained some reservations and stressed the importance
of securing his observance
of appropriate conditions.
10. The medical reports and other material were considered by the Board on 18
March 1986. The meeting was attended by Mr O'Shea
and his counsel. His
counsel made submissions on his behalf. The Chairman then announced that the
Board would recommend his release
on licence subject to conditions which would
be determined at a later date. By letter dated 16 April 1986 Mr O'Shea was
advised
that in addition to the standard conditions the following special
conditions would be recommended to the Governor:
"1. That you undergo such psychiatric or psychological or medical
or other treatment and/or counselling as your parole officer shall
from time to time direct.
2. That you do not join or become involved in any organisation
which either directs childrens' activities, raises money for and
on behalf of childrens' charities or is in any way involved with
children whatsoever.
3. That you do not associate with any child under the age of 16
years except in the presence of another adult without first
obtaining the prior written permission of your parole officer,
provided that this shall not apply to the children of your
marriage.
4. That you do not live outside the metropolitan area of
Adelaide without the prior written permission of the Parole
Board."
11. On 8 May 1986 the Governor in Council resolved to take no action on the
recommendation of the Board and Mr O'Shea was advised
to this effect by letter
from the Minister of Correctional Services dated 12 May 1986.
12. It is convenient, before embarking on a consideration of the issues
raised by the appeals, to set out the statutory framework.
So far as material,
s.77a of the Criminal Law Act provides:
"(1) In any case where a person has been found guilty of an
offence to which this Act applies, the court or judge sitting for
the trial of that offence may, at its or his discretion, direct
that two or more legally qualified medical practitioners, named by
the court or judge, inquire as to the mental condition of the
offender and in particular whether his mental condition is such
that he is incapable of exercising proper control over his sexual
instincts.
(2) The medical practitioners shall conduct the inquiry by means
of personal examination of the offender and by reference to the
depositions and such other records relating to him as they think
necessary and shall give their report on oath to the court or
judge.
For the purpose of conducting the examination and making their
report, the medical practitioners may obtain the assistance of any
psychologist, social worker, probation officer or other person
whose assistance they think necessary.
(3) If the medical practitioners report to the court or judge
that the offender is incapable of exercising proper control over
his sexual instincts, the court or judge may, either in addition
to, or instead of, imposing any other sentence, declare that the
offender is so incapable and direct that he be detained in an
institution during Her Majesty's pleasure; but the offender shall
be entitled to call evidence in rebuttal of the report and no such
order shall be made unless the court or judge considers the
matters reported to be proved.
Every offender in respect of whom such a direction is given -
(a) shall be detained in such institution as the Governor directs
and, until the Governor gives a direction, in any gaol;
(b) shall not be released unless -
(i) the Governor is satisfied, on the recommendation of the
Parole Board, that he is fit to be at liberty and terminates
his detention;
or
(ii) the Governor releases him on licence in pursuance of this
section.
.....
(6) An offender detained under this section shall be examined at
least once in every three months by the superintendent or deputy
superintendent of Glenside Hospital or by some other person
appointed by the Governor to conduct examinations under this
section. The person making an examination under this subsection
shall forthwith furnish a report of the examination to the South
Australian Health Commission.
(7) An offender detained in an institution pursuant to this
section may be removed at any time to another institution by order
of the Chief Secretary.
(7a) Where an offender has been detained in an institution
pursuant to this section, the Governor may, on the recommendation
of the Parole Board, release that person on licence.
(7b) The terms and conditions on which a person is released on
licence under this section shall be determined by the Governor on
the recommendation of the Parole Board.
(7c) Where -
(a) the period for which a person was released on licence under
this section has expired;
or
(b) the Parole Board has reasonable cause to suspect that any
such person has contravened, or failed to comply with, any
term or condition on which he was released,
a person authorized by warrant signed by two members of the Parole
Board may apprehend the person so released and return him to
custody, or detain him for examination by the Parole Board, in
accordance with the terms of the warrant.
..."
13. Part VI of the Correctional Services Act deals with Parole. Section 55
deals with the constitution of the Board. It is to
consist of six members
appointed by the Governor. One, who shall be the Chairman,
must be a judge or
retired judge or a person who
has, in the opinion of the Governor, extensive
knowledge of, and experience in,
the science of criminology, penology or any
other
related science. One member shall be a medical practitioner who has, in
the opinion
of the Governor, extensive knowledge of, and
experience in, the
practice of psychiatry. Another member shall be an expert in criminology,
sociology or other related science.
The remaining three members shall be
persons nominated by the Minister. The Part contains s.64, which at all
material times included
the following provisions:
"(2) The Board shall, at least once in each year, review the
progress and circumstances of, and report to the Minister on,
every prisoner serving a sentence of life imprisonment or any
sentence of indeterminate duration ...
(3) The Board shall, at any time at the request of the Minister,
report to the Minister -
(a) on any prisoner serving a sentence of life imprisonment or
any sentence of indeterminate duration;
...
(3a) The Board shall, before preparing a report on a prisoner
pursuant to subsection (2) or (3)(a), interview the prisoner in
person.
(4) The Board may, in a report furnished under subsection (2) orSub-section (5) then follows, the words of which have already been stated. It imposes a condition precedent to any recommendation from the Board for the release of a person declared to be incapable of exercising proper control over his sexual instincts.
(3)(a) in respect of a prisoner, include such recommendations as
to the release of the prisoner as the Board is empowered to make
pursuant to this Act or any other Act."
14. The Statutes Amendment (Parole) Act 1986 (S.A.), which came into
operation on 8 December 1986, amended the Correctional Services
Act. Section
5 amended s.63, a section dealing with the general powers of the Board, by
inserting the following sub-sections:
"(3) The Board may (and shall, if a prisoner so requests)
interview a prisoner at any time and, if such an interview is to
be conducted outside the prison, may request the manager of the
prison to cause the prisoner to be brought before the Board at a
specified time and place.
(4) The Board is not obliged to interview a prisoner pursuant toSection 6 of the same Act removed sub-s.(3a) from s.64.
the prisoner's request more than once in any year."
15. We now turn to the submissions advanced by Mr Tilmouth, counsel for Mr O'Shea, in support of his client's appeal. Those submissions focus on the proper construction of s.77a(7c) of the Criminal Law Act. First, it is argued that the sub-section does not authorize the Board to issue a warrant merely to return a person to custody on the expiry of the period for which he was released on licence. A fortiori, it does not authorize a return to custody when the person in question has remained at liberty for a substantial period after the expiry of the licence. The power to issue a warrant, conferred by sub-s.(7c), is enlivened only by the desire of the Board to examine the person, whether because the period for which he was released on licence has expired or because the Board has reasonable cause to suspect that the person has contravened, or failed to comply with, any term or condition on which he was released. The licence period having expired 15 months earlier and there being no suspicion concerning Mr O'Shea's observance, during the currency of the licence, of the conditions to which he was subject, there was no power to issue the warrant which led to his return to custody. The second submission is that the warrant in question is void for ambiguity. The ambiguity is said to reside in the fact that the warrant authorizes those to whom it is directed to apprehend Mr O'Shea and "return him to prison (or, as the case may require) detain him for examination by the Board". The third submission is that, in any event, the principles of natural justice required that Mr O'Shea be given the opportunity to make representations to the Board before the warrant was issued.
16. Despite some difficulties in the way of understanding the legislative scheme embodied in s.77a, certain things are clear. First, the section reflects a strong concern to protect the community from a person who, having been convicted of an offence or offences falling within a certain class, is proved to be incapable of exercising proper control over his sexual instincts. Secondly, the means adopted to provide that protection is a form of preventive detention. Thirdly, recognizing the possibility of injustice inherent in that form of detention, the section provides for medical examination of the detainee at intervals of three months. The report of an examination is to be furnished forthwith to the South Australian Health Commission. We digress to mention that further safeguards against the possibility of an offender who has been sentenced to preventive detention being forgotten will be seen in the provisions of s.64 of the Correctional Services Act, which have already been set out. On the other hand, fourthly, s.77a of the Criminal Law Act makes plain the importance placed upon the protection of the community. The offender is not to be released unless the Governor (that is, the Governor with the advice and consent of the Executive Council: Acts Interpretation Act 1915 (S.A.) as amended, s.23) is satisfied, on the recommendation of the Board, that the offender is fit to be at liberty and terminates the detention or unless the Governor releases the offender on licence: s.77a(3). He may only be released on licence on the recommendation of the Board: s.77a(7a). Furthermore the terms and conditions on which the offender is released on licence shall be determined by the Governor on the recommendation of the Board: s.77a(7b).
17. So much is clear. Section 77a(7c) completes the scheme. It might have been expected that the section would maintain the same clarity in providing for the procedures that were to follow an offender's release on licence: for example, the revocation of the licence in the event of a breach of condition and the renewal or extension of the licence in the event of progress in rehabilitation. Reference has already been made to Part VI of the Correctional Services Act (which includes s.64). Division III of this Part (ss.66-77) contains detailed and apparently exhaustive provisions governing release on parole and its revocation, provisions of a kind which, had they been adopted with appropriate modification in relation to s.77a, could have proved helpful to Mr O'Shea's understanding of his position. Leaving aside the fresh allegations that were investigated in April 1985 and led to fresh charges being laid against Mr O'Shea, it does seem extraordinary that the legislature should have contemplated that at any time after the expiry of the period for which an offender was released on licence he should be the subject of a warrant requiring his return to custody, however exemplary his conduct may have been while on licence, and with no express obligation on the Board to evaluate the effect of the period spent at liberty under licence on his rehabilitation and no obligation to report to the Minister or make any recommendation other than the routine "at least once in each year" report required by s.64(2) of the Correctional Services Act.
18. Nevertheless, in our opinion, s.77a(7c) of the Criminal Law Act offers no support for the submissions advanced by Mr Tilmouth. It clearly authorizes, where the period for which the offender was released on licence has expired, the issue of a warrant to secure the offender's return to custody. Once returned to custody, the Board can examine the offender at any time in accordance with the provisions of the Correctional Services Act. In such a case, it does not find its authority to do so in s.77a(7c). The alternative purpose of a warrant issued pursuant to sub-s.(7c), namely, to detain the offender for examination by the Board, is appropriate only to the case where, during the period of a licence, the Board has reasonable cause to suspect that a breach of condition has occurred. In such a case, the suspicion must be followed through by, inter alia, examination of the offender. In the event that, in consequence of that examination or otherwise, the Board's suspicion is confirmed, s.77a(7c) presumably empowers the Board to cause a warrant to be issued to return the offender to custody. We say "presumably" because, as we have noted, the Act fails to confer expressly on the Board the power to revoke a licence. However, such a procedure was not relevant to a person in Mr O'Shea's position. His licence to be at liberty was no longer current. The only course open to the Board when the matter came to its attention was to secure his return to custody. Mr Tilmouth argued that there was a discretion in the Board to allow Mr O'Shea to remain at liberty notwithstanding the expiry of the licence. But this would be to credit the Board with a power which the section clearly reserves to the Governor in Council. There is no escape from the conclusion that, once the period for which a person was released on licence has expired, that person should be in custody under the authority of the original order for indeterminate detention made by the Court and should remain in custody until the Governor either terminates his detention or releases him on another licence. It should be added that the materials leave no doubt as to the intention of the Board in the present case. As the Chairman of the Board explained to Mr O'Shea at the interview on 16 April 1985, he was brought back because his licence had expired. That being so, the Board was free to examine him whenever it wished. It is apparent from the written advice to Mr O'Shea following the meeting on 16 April that the Board had in mind his further release on licence. However, in the light of the fresh charges laid against him at that time, it was obvious that any consideration of that further release would have to be deferred and this was borne out by the decision of the Board on 8 May 1985. When those charges were disposed of by nolle prosequi in December 1985, the Board acted expeditiously in calling for the fresh medical reports that were a condition precedent to a fresh approach to the Governor.
19. It follows from the construction of s.77a(7c) that we have expounded that Mr O'Shea's attack on the validity of the warrant cannot bring him the relief from further detention that he seeks. The warrant issued by the Board was irregular in failing to make clear whether Mr O'Shea was to be apprehended and returned to custody or, alternatively, to be apprehended and detained for examination by the Board. But whatever the effect of that defect it does not render unlawful his continued detention in custody following his apprehension. That continued detention finds its authority in the earlier warrant based on the order of Jacobs J. in 1977. The order of the Governor releasing him on licence for three months effected a break in the authority of that warrant but upon the expiry of that period the warrant remained effective to justify his continued detention until further order of the Governor. This is so regardless of the manner in which Mr O'Shea came back into the care of the gaoler. It is therefore unnecessary, in order to determine the issue which is the subject of Mr O'Shea's appeal, to consider whether the defect in the warrant issued by the Board rendered it invalid because of ambiguity.
20. Again, the conclusion that the Criminal Law Act required Mr O'Shea's return to custody upon the expiration of the period of the licence pending some further recommendation by the Board and order of the Governor answers Mr O'Shea's contention that he should have been afforded some form of hearing by the Board before it authorized his return to custody. On the proper construction of the section, there is simply no room for such a procedure. As we have explained, there is the opportunity of a hearing following his return to custody and, but for the intervention of the police inquiries, it is apparent that it would have been undertaken expeditiously.
21. We turn now to the appeal brought by the State from the majority decision of the Full Court (Cox and O'Loughlin JJ., Zelling A.C.J. dissenting) declaring void the decision of the Governor to take no action on the recommendation of the Board that Mr O'Shea be released on licence subject to the conditions to which we have already referred. The learned Solicitor-General for South Australia submitted that, on the proper construction of the legislation, there is no obligation resting on the relevant Minister or the Government to inform an offender of the advice that is proposed to be tendered to the Governor by the Executive Council, regardless of whether that advice is favourable or unfavourable to the offender. Nor, in the submission of the Solicitor-General, is there any obligation to invite the offender to make any representations in relation to the Board's recommendation.
22. In our opinion this case does not call for an extensive discussion of the
rules of natural justice such as has been undertaken
by this Court on a number
of occasions in the recent past: see, for example, Twist v. Randwick
Municipal Council
[1976] HCA 58; (1976) 136 CLR
106; Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137
CLR 396; Heatley v. Tasmanian Racing and Gaming Commission
[1977] HCA 39; (1977) 137 CLR 487;
F.A.I.
Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342; National Companies and
Securities Commission v. News Corporation Ltd. [1984] HCA 29; (1984) 156 CLR
296; Kioa v.
West [1985] HCA 81; (1985) 159 CLR 550.
But it may be said that the answer to the question
as to what natural justice requires in
any particular case
that is governed by
statute will depend to a large extent upon the particular statutory framework
within which
the question arises.
As Mason J. (as
his Honour then was) said
in Kioa v. West, at pp 584-585:
"Where the decision in question is one for which provision is made
by statute, the application and content of the doctrine of natural
justice or the duty to act fairly depends to a large extent on the
construction of the statute. In Mobil Oil Australia Pty. Ltd. v.
Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 C.L.R. 475, at
pp.503-504, Kitto J. pointed out that the obligation to give a
fair opportunity to parties in controversy to correct or
contradict statements prejudicial to their view depends on 'the
particular statutory framework'. What is appropriate in terms of
natural justice depends on the circumstances of the case and they
will include, inter alia, the nature of the inquiry, the
subject-matter, and the rules under which the decision-maker is
acting: Reg. v. Commonwealth Conciliation and Arbitration
Commission; Ex parte Angliss Group (1969) 122 CLR 546, at
pp 552-553; National Companies and Securities Commission v. News
Corporation Ltd. [1984] HCA 29; (1984) 156 CLR 296, at pp 311, 319-321."
23. The legislation is detailed and explicit in securing the participation of
an offender at the stage when the Board is preparing
a report. Section 64(3a)
of the Correctional Services Act, until its repeal in 1986, provided in
mandatory terms that the Board
interview the offender in person before
preparing its report
to the Minister. As we have already noted, that
sub-section was repealed
by an amending statute which inserted two new
sub-sections
in s.63 of the same Act which provided that the Board may (and
shall,
if an offender so requests) interview an offender at any time. In
addition, s.77(2)(c) of the Correctional Services Act secures
a right to any
person to whom any proceedings under Part VI relate to make such submissions
to the Board, in writing, as he thinks
fit. This provision applies to the
Board's preparation of
a report and recommendation on an offender who is
serving a sentence of
indeterminate duration. There is no complaint in the
present
case relating to the procedures adopted by the Board in preparing its
report and recommendation. There was a hearing attended by
Mr O'Shea and his
counsel at which his counsel presented submissions
to the Board. Copies of
the two medical reports upon which
the recommendation was based were made
available to them. They were
therefore fully seized of the guarded opinions
expressed by
the two doctors and of the emphasis upon the importance of
conditions
that were to accompany any release upon licence. Thereafter,
the
precise conditions that were to form part of the Board's recommendation
were
determined and conveyed to Mr O'Shea in writing.
24. The nature of the decision of the Governor stands in contrast to that of
the Board. For its part, the Board, assisted by medical
reports, draws on the
expert qualifications and experience of its members in law, criminology and
medicine in determining whether
an offender detained under s.77a of the
Criminal Law Act is fit to be at liberty or should be released on licence
subject to certain
terms and conditions. Clearly, the legislature believes
that, without more, the recommendation of the Board may not offer sufficient
protection to the community. The operative decision, given the provision of
expert medical opinion supported by the judgment of
the Board, is reserved to
a political institution, the Governor in Executive Council. The legislative
scheme reflects the duality
which, in In re Findlay (1985) AC 318, Lord
Scarman found to exist in the parole system in England established by the
Criminal Justice
Act 1967 (U.K.), ss.60, 61. Under that scheme the Home
Secretary was empowered, in the exercise of a statutory discretion, to release
prisoners on licence if, in cases referred to it for advice, the Parole Board
so recommended. Lord Scarman, in a speech concurred
in by Lord Diplock, Lord
Roskill, Lord Brandon of Oakbrook and Lord Brightman, said at pp.332-333:
"A characteristic of the parole system is its duality. TheIn the same way the, duality of the legislative scheme embodied in s.77a of the Criminal Law Act characterizes the Governor's decision as an expression of an unfettered discretion as to what the public interest requires in the instant case. It may be that a system of judicial review would ensure greater protection for the individual than the present scheme, but that is not what the legislature has provided.
Secretary of State and the board have to concur. The board must
include among its members a very special expertise.... The
emphasis is upon the need for the board to include among its
members persons with the skills and experience required to assess
the risk of early release. But the Secretary of State has clearly
to consider other aspects of the early release of a prisoner
serving a sentence of imprisonment. Deterrence, retribution, and
public confidence in the system are factors of importance. The
Parole Board, through its judicial and other members, can offer
advice on these aspects of the question. But neither the board
nor the judiciary can be as close, or as sensitive, to public
opinion as a minister responsible to Parliament and to the
electorate. He has to judge the public acceptability of early
release and to determine the policies needed to maintain public
confidence in the system of criminal justice. This must be why
Parliament saw as necessary the duality of the parole system:
without the advice and recommendation of a body capable of
assessing the risk of early release the Secretary of State was not
to act: but, having received such advice and recommendation, he
was to authorise early release only if he himself was satisfied
that it was in the public interest that he should."
25. The Correctional Services Act expressly secures procedural fairness to Mr O'Shea in the course of the Board's consideration of his case. But beyond that he is in the hands of the Government, which must accept political responsibility for his release. Given the nature of this decision, it cannot be said that Mr O'Shea could have more than a hope that the Governor would be prepared to act on the recommendation of the Board. Hope, of itself, is not sufficient to ground an expectation that will attract legal consequences. So far as the concept of legitimate expectation is concerned, Mr O'Shea must be taken to know that the Act committed to the Governor, with the advice and consent of the Executive Council, the responsibility for determining where the public interest lay. He would also know that the reservations expressed in the medical reports and implied in the stringent conditions recommended by the Board would be likely to give the Governor and the members of the Executive Council cause for anxious consideration as to whether to release Mr O'Shea. The nature of the decision that they were required to make was such that participation by Mr O'Shea was inappropriate.
26. Further support for that view is to be gained from a consideration of the practical difficulties of allowing representations to be made by Mr O'Shea. The report and recommendation is received by the Minister from the Board. He then takes the matter to Cabinet for decision as to the advice that will be tendered by the Executive Council to the Governor. He cannot be required, before taking it to Cabinet, to disclose to Mr O'Shea his personal view of the matter. The conventions governing the secrecy of Cabinet discussions protect the Minister's position in that regard. In any event, there can be no guarantee that Cabinet will accept his view. Nor, should Cabinet resolve that the Executive Council will advise the Governor not to act on the recommendation, could that decision be conveyed to Mr O'Shea so that he could make representations with a view to Cabinet reconsidering the matter. In truth, Mr O'Shea will have had a full and final opportunity to adduce material and make submissions on the question of his release on licence in the course of the hearing before the Board. The procedures simply do not permit a further opportunity at a later stage: cf. Twist v. Randwick Municipal Council, at p 110. There is no suggestion that the Minister, on receiving the Board's report, gathered additional material personal to Mr O'Shea which turned the scales against him. If that happened in a particular case, the Minister would be obliged to send the matter back to the Board so that the additional material could receive its consideration: cf. Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. [1986] HCA 40; (1986) 60 ALJR 560, at pp 568, 574-575; [1986] HCA 40; 66 ALR 299, at pp 313, 323-325. In the end the decision of the Governor and his advisers will turn on whether, in the light of the Board's report, it is seen to be in the public interest to act on the recommendation of the Board.
27. In the Full Court, Cox J., with whose reasons for judgment O'Loughlin J. concurred, proceeded on the basis that as a matter of practice "the final decision will rest with the Minister whose responsibility it will be to tender the appropriate advice to the Executive Council". This is consistent with his Honour's understanding of what was common ground between the parties. However, the Solicitor-General informed the Court, and it was not disputed, that the common ground referred to by his Honour was confined to the fact that the Minister of Correctional Services was responsible for the administration of the relevant legislation. It was asserted by the Solicitor-General, again without contradiction, that all matters in South Australia upon which advice is to be tendered to the Governor by the Executive Council are submitted to Cabinet for consideration. This misunderstanding of the practice was of crucial importance to the conclusion to which Cox J. came, because it led his Honour to derive more assistance from the decision of this Court in F.A.I. Insurances Ltd. than was warranted. It was held in that case that the Governor in Council, in deciding whether to renew his approval of an insurer for the purposes of the Workers Compensation Act 1958 (Vict.), was obliged to observe the requirements of natural justice. This led to a holding that the insurer should be given the opportunity to be heard before a decision not to renew the approval was made.
28. There are several features of F.A.I. Insurances Ltd. which distinguish it
from the present case. The facts are set out shortly
in the report, at
pp.343-344, as follows:
"On 2 December 1980 F.A.I. applied to the Minister of Labour andIt will be seen at once that there was no question of any Cabinet consideration involved in the matter. The Minister represented to F.A.I. - and there was no suggestion to the contrary - that he was the decision-maker. In the light of that circumstance, the fact that the legislation selected the Governor in Council as the ultimate decision-maker did not attract the same significance as it might readily do in other circumstances. The case was seen to be more analogous to one where the Minister himself has the statutory power.
Industry for renewal of approval for twelve months from 31
December 1980. In its application it requested that 'if it be
considered that there is any matter which might give rise to its
approval not being renewed, F.A.I. be given notice thereof and an
opportunity to make submissions and provide evidence (as
appropriate) specifically directed to it'. By letter of 18 May
1981 the Minister advised F.A.I. that he had decided to recommend
to the Governor in Council that the application be not approved.
He set out 'the summary of the case against' F.A.I. which included
the high level of investment in related bodies, certain aspects of
group and inter-company transactions, inadequate provision for
inflation in respect of unsettled claims, the purchase of
investments at prices above independent valuations, and the manner
in which the appellant had conducted its workers' compensation
business in New South Wales. On 21 May F.A.I.'s solicitors wrote
to the Minister and to the Clerk to the Executive Council asking
for an opportunity to answer the matters raised by the Minister.
F.A.I. was not afforded such an opportunity, and by Order in
Council of 26 May the Governor in Council refused to grant
approval to the appellant as an insurer...."
29. Again, the nature of the decision in F.A.I. Insurances Ltd. was entirely different to the decision which was required of the Governor in the present case. In the former case, the regulations specifically required that in the granting of any approval or renewal "regard shall be had to the commitments and financial position of the applicant and in the case of renewal to the observance of these Regulations by the applicant". The detailed reasons given by the Minister to F.A.I. for his decision to recommend that the application be not approved confirm the factual character of the decision. There was little, if any, room for the exercise of any general discretion directed to the public interest.
30. Finally, a significant distinguishing feature of F.A.I. Insurances Ltd. was the fact that F.A.I. was not given any opportunity at all to put its case. The Minister acted on information supplied to him from sources other than F.A.I. and in disregard of an express request from the company to be permitted to supply material and make submissions relevant to that information. In the present case, however, there has been a hearing attended by Mr O'Shea and his counsel. The opportunity was there, and no doubt was availed of, for everything to be said that could be said in his favour with respect to any risk to the community that might be involved in his release. In the event, the outcome of that hearing was a recommendation favourable to Mr O'Shea. All that remained was for a political decision to be taken by Cabinet and confirmed by the Governor in Council. As we have said, there is no basis for supposing that the final decision was influenced by fresh material relating to Mr O'Shea personally which was not known to the Board at the time when it held a hearing in Mr O'Shea's presence.
31. We would therefore allow the State's appeal and dismiss Mr O'Shea's appeal.
BRENNAN J. Wilson and Toohey JJ. have set out in their judgment the chain of events out of which these appeals arise and the relevant statutory provisions. I need not repeat them. I am in agreement with their Honours' conclusions on both appeals but I should state my reasons for that agreement.
2. Section 77a of the Criminal Law Consolidation Act 1935 (S.A.) ("the Act") and s.64 of the Correctional Services Act 1982 (S.A.) are the relevant provisions defining the functions of the Parole Board with respect to the apprehension or detention in custody of an offender who is declared to be incapable of exercising proper control over his sexual instincts. I shall refer to such a person simply as an offender. By s.77a(3), a judge may, either in addition to or instead of imposing any other sentence, direct that the offender be detained in an institution during Her Majesty's pleasure. Such a direction is the continuing authority for detaining an offender until the Governor makes a decision to release him - that is, a decision to terminate his detention: s.77a(3)(b)(i). At that time, the Queen's pleasure to terminate the detention is known. The Governor is bound to act with the advice and consent of the Executive Council: s.23 of the Acts Interpretation Act 1915 (S.A.). From the time when the judge's direction is given or, if a term of imprisonment is imposed, from the expiration of that term (s.77a(5)) until the Governor decides to terminate the offender's detention, the offender is to be detained in an institution. The institution in which the offender is to be detained is "any gaol" unless the Governor directs that the offender be detained in another institution: s.77a(3)(a). The offender may be removed to another institution by order of the Chief Secretary. At any time prior to the termination of the offender's detention, he can be released on licence by the Governor: s.77a(3)(b)(ii). The Board has no power itself to release an offender from detention either on licence or absolutely, but it has a function of recommendation to perform.
3. By s.64(2) and (3)(a) of the Correctional Services Act, the Board is required at least once a year and at any time at the request of the Minister to report to the Minister on an offender serving a sentence of indeterminate duration. In any such report the Board may include "such recommendations as to the release of the prisoner as the Board is empowered to make pursuant to this Act or any other Act": s.64(4). A power to make a recommendation to the Governor for the final release of an offender is impliedly conferred on the Board by s.77a(3)(b)(i) of the Act, for the Governor may not terminate the detention of an offender under that sub-paragraph except on the Board's recommendation that he is fit to be at liberty. Section 77a(7a) also provides for a recommendation to be made by the Board with respect to the release of an offender on licence. Section 64(5) of the Correctional Services Act forbids the making of a recommendation for release unless two medical practitioners have examined the offender and are of the opinion that he is fit to be released. When an offender is released on licence, the period of release may be specified (s.77a(7c)) and the release is made on such terms and conditions as the Governor prescribes on the recommendation of the Board: s.77a(7b).
4. The Board is given no power to modify the operation of either the judge's direction or the Governor's determination to release an offender from detention, whether on licence or absolutely. The denial to the Board of power to affect the detention in an institution of offenders who have been declared to be incapable of controlling their sexual instincts may be contrasted with the Board's power to order the release of prisoners in respect of whom a non-parole period has been fixed: see Div.III of Pt VI of the Correctional Services Act. With one exception, the Board's functions with respect to offenders who have been declared to be incapable of controlling their sexual instincts are limited to reporting to the Minister and, if the requisite medical opinion is forthcoming, making recommendations to the Governor as to release of offenders.
5. The exception relates to the apprehension of offenders who, having been released on licence, are no longer entitled to remain free of institutional detention. A licence to be free of institutional detention may be spent because the period of release on licence has expired or because a breach of the terms and conditions of the licence has occurred. To secure the return of an offender to institutional detention, s.77a(7c) of the Act empowers two members of the Board to issue a warrant to "apprehend the person so released and return him to custody". This is not a warrant to detain the offender in institutional custody. The authority for that detention is to be found in the judge's direction. The power conferred on Board members to issue the warrant is conferred subject to satisfaction of one or other of the conditions prescribed by sub-s.(7c): either the period of release on licence has expired or the Board "has reasonable cause to suspect" a breach of the licence terms and conditions. The Board has no function to perform with respect to the fulfilment of the first condition. As to the second condition, the Board's only function is to determine whether it "has reasonable cause to suspect". That is not a function which requires the Board to hear the offender before making the determination. It would oftentimes sterilize the power of Board members to authorize the apprehension of an offender if the Board had to hear him before determining whether it had reasonable cause to suspect. For example, if the offender had breached a reporting condition, could no warrant be issued until the offender had been found and called on to show cause?
6. Of course, the Board's suspicion of breach of the terms and conditions of a licence may prove to be mistaken on enquiry. To guard against that possibility, the Act makes provision for another kind of warrant: a warrant to apprehend an offender and to detain him "for examination by the Parole Board". No doubt such a warrant might be issued with a view to the offender's return to institutional detention if the Board is satisfied that what it suspected is in fact true. When a person is detained for examination by the Board, the Board's examination is not for the purpose of determining whether, in the exercise of a discretion, the offender should be returned to institutional detention. That must happen if the licence is exhausted, whether by effluxion of time or by breach of its conditions. The purpose of the Board's examination is to ascertain whether the licence is exhausted. That examination does not take place before the warrant is issued and need not be made thereafter unless the Board thinks it desirable to do so: the warrant can in any case require the person executing it to return the offender to institutional detention without any examination by the Board. Of course, if neither of the conditions governing the power to issue warrants was satisfied, the purported issue of a warrant would be invalid and the apprehension of an offender thereunder would be unlawful, but that consideration does not lead to the conclusion that the Board must hear an offender before two of its members can issue a warrant for his apprehension.
7. One of the grounds advanced in support of the appeal by Mr O'Shea was that the Board failed to hear him before the warrant for his apprehension was issued. It was submitted that the Board must have a discretion to exercise, else an offender might have to be returned to institutional detention when his interests and the interests of the public would be served by his remaining free. The short answer to that submission is that s.77a(3)(b)(i) entrusts the decision to terminate an offender's detention to the Governor alone. The Board has no authority to leave an offender free beyond the time when, according to the terms of the licence, he is no longer entitled to be free on licence. The only function which the Board may have in connection with the return of an offender to custody is to determine whether it has reasonable cause to suspect that a breach of the terms and conditions of the licence has occurred and, if it should examine the offender, to determine whether the suspicion was well-founded. As the Board has no other material function to perform, it is not required to hear an offender before a warrant of apprehension is issued.
8. Another ground advanced in support of Mr O'Shea's appeal was that the form of the warrant of apprehension was bad. As the warrant was framed in the alternative - either to return Mr O'Shea to prison "(or, as the case may require) detain him for examination by the Board" - a person executing the warrant could not know whether Mr O'Shea should be returned to his former custody or detained for examination by the Board. Whatever substance there may be in this attack on the warrant, once it is appreciated that Mr O'Shea's institutional detention was justified not by the warrant but by the original direction of the judge, the validity of the warrant is irrelevant to the lawfulness of his institutional detention. The warrant relates only to his apprehension and delivery into custody. He was liable at the material time to be kept in institutional detention whether or not a warrant for his apprehension was issued and whether or not that warrant was valid.
9. Mr O'Shea having been returned to his former custody, he could not be released again except by a decision of the Governor that he is fit to be at liberty and his detention be terminated or that he be released on licence again. As we have seen, neither of these decisions could be taken except on a recommendation from the Board. The Board is a body consisting of six members one of whom must have extensive knowledge of and experience in psychiatry, and another of whom must have extensive knowledge of or experience in criminology, sociology or a related science: s.55 of the Correctional Services Act. Before the Board made its recommendation to the Governor and to the Minister in this case, it heard Mr O'Shea. The recommendation was favourable to his release but it was not accepted. Neither the Governor nor the Minister heard Mr O'Shea before the decision was reached not to release him. Was Mr O'Shea entitled to a hearing or, to put the question in the way in which it must be answered as a proposition of law, was a further hearing required before the Governor could exercise his discretionary power under s.77a(3) not to release him?
10. The administrative scheme for the release of offenders who have been declared unable to control their sexual instincts has three tiers: medical examination, Board recommendation and Governor's decision. The only repository of the power to release is the Governor, but the power to release an offender cannot be exercised unless the medical practitioners and the Board are of the opinion that he is fit to be released. One cannot predicate of that scheme of administration that, after examination by the medical practitioners and hearing by the Board, the Governor is required to have a further hearing. It is a commonplace of modern schemes of administration that a power of decision is reserved to a Governor or Minister after an inquiry by an expert board and, unless the relevant statute so prescribes, it is not necessary for the repository of the power to have a further hearing, even though the repository is free to exercise his discretionary power in a manner contrary to a recommendation which emerges from the inquiry: Taylor v. Public Service Board (N.S.W.) [1976] HCA 36; (1976) 137 CLR 208, at pp 215,217,221-222,224,226. This form of administrative scheme is suited to cases where the facts need to be found and evaluated - a task entrusted often to persons with expert qualifications - but there is an element of policy in the decision which the repository of the power is to keep in his own hands. It is not a general rule of administrative procedure as it is of judicial procedure that the person who hears should decide: Taylor v. Public Service Board; Sean Investments Pty.Ltd. v. MacKellar (1981) 38 ALR 363, at pp 369-370; Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, at pp 627- 628. A need for a further hearing by a repository of a power after a hearing by an expert board may arise if, in the particular circumstances, the interests of a party are affected by some new fact or matter which the decision-maker proposes to take into account and which the party has had no opportunity to deal with: see Errington v. Minister of Health (1935) 1 KB 249; Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. [1986] HCA 40; (1986) 60 ALJR 560, at pp 568,574-575, 579; [1986] HCA 40; 66 ALR 299, at pp 313,323-325,333. But there does not have to be a further hearing on matters of policy alone.
11. If a statute provides for the facts relevant to a decision to be ascertained and evaluated by a board and for the board to report and make a recommendation to the decision-maker, prima facie there is no room for an implication that the power to make the decision is conditioned on the giving of an opportunity for a further hearing. To impose such a condition without statutory warrant would be to force a judicial model on the administrative process. That is not the function of a court. Such a doctrine would require, in effect, two hearings, even though no new fact had emerged after the first hearing and no fact was being taken into account by the decision-maker which had not been taken into account at the first hearing. There is no lack of administrative fairness in a system in which a decision-maker reaches his decision on facts ascertained and evaluated by a board appointed by statute for that purpose provided the decision-maker does not take into account any other fact on which the affected person has had no opportunity to be heard. The decision-maker's general policy or the manner in which he should exercise his discretion on the ascertained facts are not matters on which an opportunity for a further hearing must be given. The pyramidal structure of administration by which the powers of discretionary decision-making are reposed in a Governor (acting on the advice of the Executive Council), Minister or senior official standing at the peak of a bureaucracy could not operate efficiently if the decision-maker were required to give an opportunity for a hearing in every case affecting an individual after that individual had had an opportunity, in the course of the administrative process, of dealing with every fact which is to be taken into account in reaching the decision.
12. In the course of the appeal, some reference was made to the political considerations which members of the State Cabinet might take into account in advising the Governor on the exercise of his power to release an offender. Whether or not political considerations may lead to the making of unjust decisions, the Act reposes the power in the Governor acting on the advice of the Executive Council, that is, in a political branch of government. The court's concern is not with the merits of a decision: Parliament has entrusted that question to the Executive Government. The court's concern is solely with the legal regularity of the impugned exercise of the power. It can surely make no difference to the procedural requirements affecting the exercise of the power of the Governor that the Board's recommendation is to release or not to release an offender. The offender's interest is in his freedom which lies within the Governor's discretion and, if he were to have a right to a hearing by the Governor, he should have it whatever the Board may have recommended. The procedural requirements affecting the exercise of the Governor's power should not depend on whether a favourable recommendation has created a "legitimate expectation" in the offender. I have elsewhere stated my view about this notion: see Kioa v. West, at pp 617-622. It is a notion which, if taken as a criterion, is apt to mislead for it tends to direct attention on the merits of the particular decision rather than on the character of the interests which any exercise of the power is apt to affect. The risk that an unjust decision might be made by the Governor on the advice of Cabinet furnishes no ground for the court to impose on the Governor, the Cabinet or a Minister a requirement to give an offender who has already been heard by the Board a further opportunity to be heard before a decision on his release is made.
13. Under the Act, an offender does not have to be heard by the Minister as
to the level of community risk which should be accepted
consistently with
the
public interest in releasing persons who have been declared incapable of
controlling their sexual instincts.
The public interest
in this context is a
matter of political responsibility (see per Lord Greene M.R. in Johnson & Co.
v. Minister
of Health (1947)
2 All ER 395, at p 399) and the Minister is not
bound to hear an individual before formulating or applying a general
policy or
exercising
a discretion in the particular case by reference to the interests
of the general public, even when the decision
affects the individual's
interests. When we reach the area of ministerial policy giving effect to the
general public interest, we
enter the political field.
In that field a
Minister or a Cabinet may determine general policy or the interests of the
general public
free of procedural constraints;
he is or they are confined only
by the limits otherwise expressed or implied by statute. One may
apply,
mutatis mutandis, to the
scheme of s.77a of the Act the observations of Lord
Scarman in In re Findlay (1985) AC 318, at p
333:
" The emphasis is upon the need for the board to include among its
members persons with the skills and experience required to
assess the risk of early release. But the Secretary of State
has clearly to consider other aspects of the early release of a
prisoner serving a sentence of imprisonment. Deterrence,
retribution, and public confidence in the system are factors of
importance. The Parole Board, through its judicial and other
members, can offer advice on these aspects of the question. But
neither the board nor the judiciary can be as close, or as
sensitive, to public opinion as a minister responsible to
Parliament and to the electorate. He has to judge the public
acceptability of early release and to determine the policies
needed to maintain public confidence in the system of criminal
justice. This must be why Parliament saw as necessary the
duality of the parole system: without the advice and
recommendation of a body capable of assessing the risk of early
release the Secretary of State was not to act; but, having
received such advice and recommendation, he was to authorise
early release only if he himself was satisfied that it was in
the public interest that he should."
14. In this case, Mr O'Shea has not shown that the Minister or the Cabinet
declined to adopt the recommendation of the Board for
any reason other than
the interests of the general public. The relevant circumstances had been
inquired into by the Board. There
was no legally vitiating error in the
decision to advise the Governor not to release. However, the majority of the
Full Court (Cox
and O'Loughlin JJ., Zelling A.C.J. dissenting) held that the
Minister of Correctional Services was under a duty, if he did not propose
to
advise the Governor to accept the recommendation of the Board, to notify Mr
O'Shea of the material on which his advice would be
based and to invite him to
make such submissions as he saw fit. This course was thought to be an
application of the principle in
F.A.I. Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151
CLR 342, but there is a distinction between that case and this. In
that case,
the decision
to be made depended on matters
of fact relating to the
appellant's financial capacity, and the appellant
had not been heard on those
matters; in this case, the
material facts relating to Mr O'Shea had been
inquired into by the Board which
did hear Mr O'Shea and,
so far as is shown,
no new
matter of fact on which Mr O'Shea was denied an opportunity to be heard
was taken
into account. Unless
a decision which is ex facie
regular and
reasonable and made in accordance with statutory procedure is shown
to have
been made by
having regard to facts (other
than general policy or the
interests of the general public) on which the person
whose interests are
adversely affected had no opportunity
to be heard, the courts have no grounds
for interference. That is the
present case. The decision
of the Governor
should not have
been set aside. I would allow the appeal of the State of
South Australia,
quash the judgment of
the Full Court of the Supreme Court
of
South Australia and in lieu thereof dismiss Mr O'Shea's summons for
declaratory relief. I
would dismiss Mr O'Shea's appeal.
DEANE J. I agree with Wilson and Toohey JJ. that, for the reasons which they give, the appeal by Mr. O'Shea should be dismissed.
2. I would also dismiss the appeal by the State of South Australia. In relation to that appeal, I agree with the reasoning of Cox J. in the Full Court of the Supreme Court of South Australia. The issue involved in that appeal appears to me, however, to be of such importance that it is desirable that I express my conclusions in my own words. I shall endeavour to avoid unnecessary repetition of either the facts or the terms of the relevant statutory provisions.
3. The starting point of a proper consideration of the appeal by the State of South Australia lies in the nature of the direction for the detention of Mr. O'Shea during Her Majesty's pleasure which was given by Jacobs J. pursuant to s.77a of the Criminal Law Consolidation Act 1935 (S.A.). As Jacobs J. was at pains to point out, that direction was not properly to be seen as a punitive sentence. It was a protective order based on the sworn opinion of three medical experts that Mr. O'Shea's medical condition was such that he was not, at that time, capable of exercising proper control over his sexual instincts. Jacobs J. did not see that medical condition as a necessarily permanent one. To the contrary, he stressed to Mr. O'Shea that he ought not view the order of detention "as wholly indeterminate, or as it were a life sentence". His Honour assured Mr. O'Shea that "(h)is progress and his treatment" would "be under constant review". It is apparent that Jacobs J. anticipated that Mr. O'Shea would remain in protective custody under the order only for so long as his medical condition remained such as to necessitate his continued detention in an institution.
4. Nine and a half years on, any appropriate punitive sentence for the offences of which Mr. O'Shea was convicted in December 1977 would long since have expired. The order for his compulsory detention continues to run its unlimited course. The statutory safeguards to protect a person detained under such an order have, however, been brought into play. Mr. O'Shea has undergone further medical examination and assessment. The conclusion of the two medical experts selected by the South Australian Parole Board is that his condition is now such that he should be released from custody on conditional licence. The Parole Board, which is a specialist body entrusted with giving advice to the Governor of South Australia in such cases, has considered those reports and itself conducted a thorough inquiry. It has concluded, and recommended to the Governor, that Mr. O'Shea should be released on licence subject to conditions and safeguards. Yet he remains in Adelaide Gaol under the indeterminate order. The reason is that the Governor in Council, that is to say, the Governor acting on Ministerial advice (see Acts Interpretation Act 1915 (S.A.), s.23), has declined to act on the Parole Board's recommendation. The Court was informed by the learned Solicitor-General for South Australia, who appeared for the State on the hearing of the appeal, that the effective decision not to act on the recommendation of the Parole Board was made by the South Australian Cabinet and not, as had been understood by Cox J. in the Supreme Court, by the responsible Minister alone. It was submitted by the Solicitor-General that, in making that decision, Cabinet was entitled to act on broad discretionary grounds and to be "influenced by questions such as public reaction to the release of such people on licence".
5. As has been said, the order for the "at pleasure" detention of Mr. O'Shea was not punitive in nature. It was a protective order made upon medical grounds. There has, in recent times, been informed criticism of legislative provisions authorizing the making of such orders for indefinite detention (see, e.g., Criminal Law and Penal Methods Reform Committee of South Australia (chaired by Mitchell J.), First Report, Sentencing and Corrections, par.3.14, pp.89-94; George, "Commitment and Discharge of the Mentally Ill in South Australia", Adelaide Law Review, vol.4 (1972), 330, at pp.362-363; Potas, Just Deserts for the Mad (1982) pp.165-166; Hacker and Frym, "The Sexual Psychopath Act in Practice: A Critical Discussion", California Law Review, vol.43 (1955), 766, at pp.777-780 and, though of less direct relevance, Report of the Royal Commission into New South Wales Prisons (Nagle J.), ch.29 ("Governor's Pleasure Prisoners")). Regardless of whether such general criticism be justified, it is manifest that a discretionary power to reject, on "political" grounds such as the state of public opinion, independent medical advice and the recommendation of a specialist Board for the release on licence of a person detained under such an order lies ill with acceptable minimum safeguards of human liberty and dignity. Indeed, one could be led to speculate about what kind of prisoner Mr. O'Shea is in circumstances where his "at pleasure" and non-punitive incarceration is now being continued, against expert and specialist advice, as a result of a discretionary decision made by a political body. That matter of possible speculation is not, however, the question in issue in the appeal. The question in issue is whether the Cabinet of South Australia was entitled to exercise the power to effectively reject the recommendation of the Parole Board that Mr. O'Shea be released on licence without even extending to him an opportunity of being heard. In my view, the standards of procedural fairness which are accepted as fundamental by the common law dictate the answer that it was not.
6. There is no suggestion that Cabinet acted otherwise than in accordance with what a majority of its members genuinely believed to be in the public interest. Beyond that, the reasons which led Cabinet to reject the Parole Board's recommendation have not been disclosed. The procedure laid down by the Criminal Law Consolidation Act is not one under which the Parole Board is a mere fact-finding body whose function is to ascertain relevant facts, hear submissions and report to a Minister upon the facts and conflicting claims to enable the particular Minister to make an informed decision. The function of the Parole Board was to inquire and recommend. It has not been disclosed whether any of the primary material upon which the Parole Board's recommendation was based was even before the Cabinet. Nor has it been disclosed whether Cabinet was unanimous or divided or whether different reasons appealed to different Ministers. It may be that the qualifications and countervailing considerations set out in the medical reports which were before the Parole Board, assuming that those reports were also before Cabinet, alone sufficed to lead a majority of Cabinet to decide that the Parole Board's recommendation should not be accepted. Alternatively, other material, of which Mr. O'Shea even now remains unaware, may have influenced the decision that his indefinite detention should continue notwithstanding the Parole Board's recommendation. In that regard, it is relevant to note that the affidavit of the Acting Secretary of the Parole Board discloses that Mr. O'Shea's arrest in 1985, after the expiry of a period of release on licence, was the result of concern expressed about him and his activities by the then South Australian Minister of Community Welfare to the then Minister of Correctional Services. One can point to authority which lends some support for the approach that, in such circumstances, the onus lies on the South Australian Government to dispel the possibility that its decision that Mr. O'Shea's indefinite detention should continue was based upon additional material, whether written or oral or whether medical or otherwise, of which he was unaware (see, e.g., Re Gray Line of Victoria Ltd. and Chabot (1980) 117 DLR (3d) 89, at pp 96-98). It is however, unnecessary to pursue that question. In the circumstances of the present case, Cabinet's decision and the consequent decision of the Governor in Council were vitiated by a failure to observe the requirements of procedural fair play regardless of whether new material was or was not taken into account.
7. The common law rules of natural justice or procedural fair play are not susceptible of being expressed in terms of logical syllogism or precise comprehensive formula. They reflect the minimum standards of basic fairness which the common law requires to be observed in the exercise of government (and, in some circumstances, non-government) authority or power. They may be excluded or modified by the express provision or clear intendment of the legislative provisions creating, conferring, or regulating the exercise of, the relevant authority or power. If not so excluded or modified, such legislative provisions are to be construed as impliedly requiring that those common law rules of procedural fair play be observed.
8. There was a time when the mere fact that the decision rejecting the recommendation of the Parole Board was made by the Governor in Council would have been thought to have excluded both the common law requirements of procedural fairness and the possibility of effective legal challenge to the validity of the actual decision. That time has now gone in this country. If those common law requirements would otherwise apply to require that a person affected by a decision made in the exercise of a statutory power or authority be given the opportunity of being heard, the fact that the decision-making power or authority is entrusted to the Governor in Council will neither automatically deprive the person affected of the right to insist upon that opportunity nor render the decision in question immune from challenge in the courts of the land. That fact will, in view of the essentially formal character of the process of actual decision-making by the Governor in cases such as the present and the undesirability of having the Governor joined as a party to legal proceedings, ordinarily be relevant to shift the focus of examination and attack from the actual decision of the Governor to the advice proffered by Cabinet or a Minister. It (i.e. the fact that the Governor in Council is the repository of the relevant statutory power or authority) may also constitute a factor facilitating the identification of a legislative intent that the ordinary requirements of procedural fair play be excluded. Of itself, however, it is quite inadequate to warrant the inference of such a legislative intent in relation to a decision involving the liberty of the subject such as that under challenge in the present case.
9. It was submitted on behalf of South Australia that Mr. O'Shea was not entitled to a hearing in the present case for the reason that the decision not to act on the recommendation for his release did not adversely affect any relevant "right" or "legitimate expectation". There are two short answers to that submission. First, whatever meaning one gives to the unsatisfactory phrase "legitimate expectation" (see, e.g., Churches, "Justice and Executive Discretion in Australia", Public Law (1980), 397, at pp.407ff.; Hodgson, "The Current Status of the Legitimate Expectation in Administrative Law", Melbourne University Law Review, vol.14 (1984), 686), a person who has been deprived of his liberty on medical grounds has a "legitimate expectation" of being released on licence once the stage is reached where the appropriate specialist statutory tribunal, acting on independent medical advice and after full inquiry, has concluded and recommended that he be so released. Put in language that has been used in this Court, he has a "reasonable expectation" that "some form of ... liberty will be available" in accordance with the recommendation to the Governor of the competent statutory authority (see Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, at p 508). Secondly, the common law requirements of procedural fairness cannot, in any event, properly be confined, in a case involving the exercise of government power or authority, by reference to some formula framed in terms of "rights" or of some rigid view of "legitimate expectation". The question which matters in such a case is not whether the claimant who asserts a denial of procedural fairness had some legal right or "legitimate expectation" in the sense of the benefit of some new type of administrative estoppel, but whether the relevant government power or authority was being exercised to his individual disadvantage (cf. Wade, Administrative Law, 5th ed. (1982), p.465; Hlophe, "Legitimate Expectation and Natural Justice: English, Australian and South African Law", South African Law Journal, vol.104 (1987), 165, at p 176). In Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, at p 632, I expressed the view that the common law rules of procedural fairness extend, in the absence of a clear contrary legislative intention, to control any administrative decision which is made pursuant to statutory power and which "directly affects the rights, interests, status or legitimate expectations of another in his individual capacity". In that statement of my understanding of the area of operation of those common law rules in relation to the exercise of government or public authority or power, I was led to use the words "rights ... or legitimate expectations" by the strong support which their use derives from modern authority. I added the words "interests" and "status", which I consider to be words of wide and flexible connotation, to cover other cases in which the effect of the exercise of public power or authority on the person, affairs or aspirations of another, in his individual capacity as distinct from merely as a member of the general public, is such that minimum standards of fairness demand that consideration be given to his particular position and circumstances. In such a case, the person affected will have standing to assert invalidity if procedural fairness is denied. That is not, of course, to say that the applicability and content of those common law rules is left to "individual predilections ungoverned by authority" (cf. per Jacobs J., H.C. Sleigh Ltd. v. South Australia [1977] HCA 2; (1977) 136 CLR 475, at p 514). In cases where there is room for doubt about whether a person is sufficiently affected in his individual capacity to invoke their protection, the path to decision must lie essentially in the ordinary processes of legal reasoning by analogy and deduction, enlightened, in an appropriate case, by considerations of public policy and common sense. The present does not, however, seem to me to be a borderline or unclear case. To the contrary, I find it difficult to envisage a category of case to which the common law rules of procedural fairness are more clearly in point than the case of a political decision that a person be indefinitely held in gaol notwithstanding expert advice and specialist recommendation to the effect that the medical grounds upon which his detention was initially ordered no longer justify it.
10. A related submission advanced on behalf of the State of South Australia was to the effect that the very fact that the decision of the State Cabinet to reject the recommendation of the Parole Board might be based on essentially political grounds, such as likely "public reaction", made it inappropriate for Mr. O'Shea to be heard in relation to the decision. That submission becomes increasingly unattractive the more one considers its implications (cf. Lord Atkin's comments, in relation to a similar submission, in Liversidge v. Sir John Anderson [1941] UKHL 1; (1942) AC 206, at p 244). Indeed, the fact that such a decision might be made on political grounds which might not have been raised before, or thought to have been relevant by, the Parole Board itself constitutes a powerful reason why the person whose continued incarceration is involved should be at least given the opportunity of being heard in relation to them. In that regard, it cannot be too strongly stressed that the question whether the expert medical advice and the specialist recommendation of the Parole Board should be rejected, with the consequence that the indefinite incarceration of the appellant would continue, was a quite different question from any which had previously arisen and in respect of which the appellant had previously been given an effective opportunity of being heard. It was said, on behalf of the State, that the diverse considerations which might have influenced different members of Cabinet "are not the sorts of matters on which one would expect a person to have a right to be heard simply because the right to be heard on matters like that is, with respect, a somewhat empty right". To echo the rhetoric of Lord Atkin in Liversidge v. Anderson (at p 245), I know of only one authority which supports such an approach to the right to be heard in relation to matters founding an effective decision that indefinite incarceration should be imposed or continued otherwise than as punishment for a specific proven offence. "'No, no]' said the Queen. 'Sentence first - verdict afterwards'" (Alice in Wonderland, ch.xii). I reject that approach.
11. It should be mentioned that the State of South Australia placed particular reliance upon the speeches of the members of the House of Lords in In re Findlay (1985) AC 318. That reliance was misplaced. Findlay was concerned with the validity of a general policy formulated by the English Home Secretary in relation to the early release on licence of persons serving punitive custodial sentences. The arguments rejected by the House of Lords were to the effect that the observance of any such general policy was unlawful and that, in any event, the particular general policy was invalidated by a failure of the Home Secretary to consult the Parole Board before adopting it. The case was not one in which the Minister had acted against the Parole Board's recommendation in a particular instance without according the prisoner concerned the right of a hearing. Nor was it a case in which it was suggested that a subsequent decision had been made, in the context of the general policy, without observing the requirements of procedural fair play in relation to the individual prisoner concerned. That being so, Findlay has nothing to say about the right to a hearing in the circumstances of this case.
12. Finally, it was submitted on behalf of the State of South Australia that the fact that different members of Cabinet might act for different reasons precluded any effective opportunity of being heard being extended to Mr. O'Shea before Cabinet determined to advise the Governor to decline to act upon the recommendation of the Parole Board. There is no merit in that submission. As I have indicated, the power of the South Australian Cabinet to reject on discretionary grounds the finding of a specialist Board that the continued non-punitive detention of a person on medical grounds is unjustified is, for me, an extraordinary one. The fact that such a power is vested in a Cabinet which is under no obligation to formulate or provide corporate (or any) reasons for its decision cannot properly be used as the basis of an argument that the person concerned is, for that reason, to be denied even the right of a hearing before expert advice and specialist recommendations are rejected. If a State Parliament sees fit effectively to entrust such a power to a political body, that body must make such adjustments to its proceedings as are necessary to permit observance of the minimum standards of procedural fairness. In the absence of applicable constitutional restraints, it would, of course, lie within the legislative competence of such a Parliament to take the further step of providing that the person concerned should not enjoy an opportunity of even being heard before an effective decision is made on unidentified discretionary grounds that his non-punitive detention in gaol should be indefinitely continued notwithstanding a recommendation by the relevant statutory specialist Board, based on medical advice and after a hearing, to the effect that the medical basis of his incarceration no longer justifies it. So far as I am concerned, a legislative provision would need to be quite unambiguous before I would construe it as disclosing an intention to take that further step towards the tyranny of arbitrary detention. I do not so construe the provisions of s.77a in the present case.
13. Both appeals should be dismissed.
ORDER
Appeal by the State of South Australia allowed.Order that the Full Court of the Supreme Court of South Australia dated 30 July 1986 in proceedings No. 1582 of 1986 be set aside and in lieu thereof order that the application by Lawrence John Edward O'Shea for declaratory relief be dismissed.
Appeal by John Edward O'Shea dismissed.
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