Tulloh v Chief Executive Officer of the Department of Corrective Services

[2020] WASCA 10

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Jurisdictional error
3. › Effect of invalid administrative decision
4. › Whether invalid decision has legal effect before being set aside
5. › Whether effect depends on statutory framework and context
6. › Sentence Administration Act 1995 (WA), s 71(1)
7. › Sentence Administration Act 2003 (WA), s 70, s 115A
1. Administrative Law
2. › Prisoners and parole
3. › Cancellation of parole order
4. › Consequences of cancellation
5. › Whether 'cancelled' in s 71(1) means 'cancelled in fact' or 'validly cancelled'
6. › Whether CEO's authority to detain dependent on validity of cancellation order or merely upon fact it was made
7. › Sentence Administration Act 1995 (WA), s 71(1)
1. Tort
2. › False imprisonment
3. › Lawful authority for detention
4. › Prisoner detained pursuant to subsequently quashed parole cancellation order
5. › Whether detention unlawful during period before cancellation order quashed
1. Statutory Interpretation
2. › Construction of penal and custodial legislation
3. › Whether beneficial construction applies to parole legislation
4. › Whether legislation enacted for benefit of prisoners
5. › Meaning of 'cancelled' in context of consequences provisions
6. › Administrative convenience as factor in construction

Quick Take

The word 'cancelled' in s 71(1) of the Sentence Administration Act 1995 (WA) means 'cancelled in fact' and not 'validly cancelled'. The CEO's authority to detain a prisoner following cancellation of parole is not dependent on the validity of the cancellation order but merely upon the fact that it was made. An invalid parole cancellation order has legal effect for the purpose of calculating a prisoner's release date and authorising detention until it is set aside by a court. The statutory scheme provides separate mechanisms (s 115A review and s 49 resolution of doubts) for challenging the validity of cancellation orders, and these are the appropriate avenues rather than treating the order as having no effect.