VLASSAKIS v ATTORNEY-GENERAL (SA) [2026] SASCA 67

Applicant: JAMES SPYRIDON VLASSAKIS Counsel: MS B POWELL KC WITH MR A PANOUSAKIS - Solicitor: ADELAIDE CRIMINAL LAW Respondent: ATTORNEY-GENERAL (SA) Counsel: MR M WAIT SC WITH MS S WILSON - Solicitor: CROWN SOLICITOR (SA) First Interested Party: PAROLE ADMINISTRATIVE REVIEW COMMISSIONER Counsel: MR M WAIT SC WITH MS S WILSON - Solicitor: CROWN SOLICITOR (SA) Second Interested Party: PAROLE BOARD OF SOUTH AUSTRALIA Counsel: MR R WHITINGTON KC - Solicitor: GRIFFINS LAWYERS Hearing Date/s: 19/05/2026 File No/s: CIV-26-001018 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. VLASSAKIS v ATTORNEY-GENERAL (SA) [2026] SASCA 67 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby) 18 June 2026 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND PROVISIONS - EXERCISE OF POWERS AND DUTIES ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - GROUNDS FOR CERTIORARI TO QUASH - EXCESS OR WANT OF JURISDICTION - PARTICULAR INSTANCES OF JURISDICTIONAL ERROR ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - FAILURE TO CONSIDER ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - DISCRETION OF COURT AND MATTERS PRECLUDING RELIEF - GENERALLY This is the determination of questions reserved on a case stated pursuant to r 214.7 of the Uniform Civil Rules 2020 (SA) on an application for judicial review of an administrative decision. -- 1 of 48 -- On 21 June 2001, James Spyridon Vlassakis was convicted of four counts of murder. A judge sentenced him to life imprisonment with a non-parole period of 26 years, backdated to commence on 2 June 1999. On 1 December 2024, that is, six months before the expiry of his non-parole period, Mr Vlassakis became eligible to apply for release on parole pursuant to ss 67(2) and (3) the Correctional Services Act 1982 (SA) (‘the CS Act’) and proceeded to do so on 9 December 2024. The Parole Board of South Australia (‘the Parole Board’) resolved to release Mr Vlassakis on parole with conditions on 5 August 2025 (‘the release decision’). The Parole Board provided its reasons on 19 August 2025 to the Attorney-General of South Australia, the Commissioner for Police and the Commissioner for Victims’ Rights. The Attorney-General subsequently sought a review of the release decision by the Parole Administrative Review Commissioner (‘the Commissioner’). Following a hearing of the review proceedings, on 15 December 2025 the Commissioner set aside the decision of the Parole Board pursuant to s 77E of the CS Act and issued written reasons. On 23 January 2026, the Parole Board filed an Originating Application for Review of the Commissioner’s decision. On 18 March 2026, the Attorney-General filed a Notice of Case Stated, seeking that the following questions be reserved for consideration before the Court of Appeal: 1. Does the [Parole Board] have a relevant interest in the subject matter of the action and, consequently, standing to bring it? 2. Does the [Parole Board] have power under the Correctional Services Act 1982 (Act) or otherwise to bring the judicial review proceedings? 3. Did the Commissioner fall into jurisdictional error by: 3.1 failing to give due weight to the decision of the [Parole Board] and/or departing from the decision of the [Parole Board] without cogent reasons for doing so?; and/or 3.2 impermissibly substituting his view of the circumstances and gravity of the offences for which the Prisoner was sentenced for the view expressed by the court in passing sentence in contravention of s 67(4)(c) of the Act? 4. Should the Court, in the exercise of its discretion, grant the relief sought by the [Parole Board]? The parties were granted leave on proposed Questions 1, 2 and 3, and the reserved questions were listed for hearing before the Court of Appeal. They were also given leave to prosecute the reservation and answering of Question 4 at that hearing. On 18 May 2026, the day before the hearing, Mr Vlassakis applied to be joined to the proceeding as an applicant. The Coram convened that afternoon where it determined to join Mr Vlassakis as an applicant. The Court indicated that it would hear first from Mr Vlassakis on Questions 3 and 4, then the Parole Board as if it were an interested party under the Uniform Civil Rules, and then the Attorney-General. The Court took the view that in those circumstances it became unnecessary to consider Questions 1 and 2, or any further argument advanced by the Attorney-General about the Hardiman principle, articulated by the High Court in R v Australia Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. Held, answering Question 3.1 reserved for determination in the affirmative: Consideration of the standard of review and the meaning of ‘cogent reasons’ pursuant to s 77E(5) of the CS Act (per Livesey P and Bleby JA) -- 2 of 48 -- 1. A finding that cogent reasons exist for departing from a discretionary decision of the Parole Board under s 77E(5) of the CS Act does not require a finding of error of the kind identified in House v The King (1936) 55 CLR 499. Section 77E establishes a separate standard of review that is higher than simply substitution of the decision the Court thinks appropriate but falling short of error. The standard requires compelling, convincing or powerful reasons to depart from the decision. 2. The Parole Board did not substitute its view of the gravity of the offending for that of the sentencing judge. It was not open for the Commissioner to find that the Parole Board underestimated the effect of the gravity of Mr Vlassakis’ offending. 3. The Commissioner fell into jurisdictional error by departing from the reasons of the Parole Board in circumstances where his reasons for doing so were not capable of amounting to cogent reasons. (per S Doyle JA) 1. Read as a whole, s 77E of the CS Act provides for a bespoke form of merits-based administrative review by the Commissioner, with the standard of review, or the standard for intervention, being cogent reasons to depart from the decision under review, after giving due weight to the decision and the reasons for it. 2. A mere difference in view as to the weight to be attached to a particular consideration relevant to the parole decision was not sufficient to amount to cogent reasons for the purposes of s 77E(5) of the CS Act. Consideration of the requirement of cogent reasons as comprising a jurisdictional fact (per Livesey P and Bleby JA) 1. The existence of cogent reasons is adjudicated upon in the course of the inquiry, rather than as an essential preliminary to the decision-making process. 2. The obligations to give due weight to the decision of the Parole Board and not to depart from the decision of the Parole Board except for cogent reasons are not jurisdictional facts. Rather, they are evaluative matters for the Commissioner to assess that are bound up with the review function with which he or she is charged. This Court’s role, consequently, is not to substitute its view as to whether cogent reasons exist. (per S Doyle JA) 1. To the extent that the existence of cogent reasons is a jurisdictional fact, it is not one which involves the state of mind of the Commissioner. Rather, it is a fact or matter capable of objective determination. 2. The requirement of cogent reasons is part of the statutory formulation of the power to be exercised by the Commissioner, rather than a preliminary or ancillary factual reference. Held, answering Question 3.2 reserved for determination in the affirmative: (per Livesey P and Bleby JA) 1. The necessary effect of the Commissioner’s reasoning, in circumstances where he relied solely on the gravity of the offending as the basis of his assessment as to the risk to the community, was that the gravity of the offending was such that the non-parole period was inadequate. For a parole authority to substitute a view of gravity of the offending for that of the sentencing judge would transgress the prohibition in s 67(4)(c) of the CS Act. 2. The Commissioner’s reasons offered no analysis of how the gravity of offending operated as a risk factor, 24 years after sentencing. The relevance of the gravity of the offending in any -- 3 of 48 -- given case is necessarily informed by the other relevant considerations specified by s 67(4) of the CS Act that must be taken into account by the decision-maker. (per S Doyle JA dissenting) 1. It can be safely inferred from a reading of his reasons as a whole that the Commissioner reached the conclusion he did having regard to an assessment of all of the considerations relevant to the risk to the community, as required by s 67(4) of the CS Act, and as canvassed in the reasons of the Parole Board and the Commissioner. 2. It cannot be said that, upon the expiration of his non-parole period, the Prisoner was entitled to parole in the absence of a report or some other clear evidence indicating the inappropriateness of his release on parole. 3. It was not inherent in the Commissioner’s reliance upon his view that the Parole Board underestimated the effect of the gravity of the Prisoner’s offending that his Honour departed from sentencing judge’s view of that gravity in contravention of s 67E(4)(c) of the CS Act. Held (Livesey P and Bleby JA, S Doyle JA agreeing), declining to reserve Proposed Question 4, but making an order in the nature of certiorari setting aside the decision of the Commissioner and remitting the Attorney-General’s application for review of the decision of the Parole Board, to the Commissioner, for determination according to law: 1. It is not necessary or appropriate to fashion a further question of law to be reserved to the Court of Appeal in circumstances where it may, when hearing and determining a question of law referred to or reserved for its consideration under s 19B of the Supreme Court Act 1935 (SA), exercise any jurisdiction or powers that the Supreme Court has in its General Division pursuant to s 19D(a) of the Supreme Court Act 1935 (SA). 2. The applicant’s moving for the reservation of Proposed Question 4 can be taken as an application for the Court of Appeal, acting pursuant to s 19D, to exercise the dispositive powers of relief that the General Division of the Supreme Court has on the Originating Application Review. Corrections Act 1986 (Vic) s 74AB; Correctional Services Act 1982 (SA) ss 55(3), 67(2), 67(3), 67(3a), 67(4)(c), 77E; District Court Act 1991 (SA) ss 42B(1), 42E, 42F; Legislation Interpretation Act 2021 (SA) s 16; Sentencing Act 2017 (SA) s 3; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 70(5); Supreme Court Act 1935 (SA) ss 19B, 19D; Uniform Civil Rules 2020 (SA) (SA) r 214.7, referred to. Commissioner for Consumer Affairs v McMurray (2017) 128 SASR 1, not followed. Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; Cabal v Attorney-General (Cth) (2001) 113 FCR 154; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Country Carbon Pty Ltd v Clean Energy Regulator (2018) 267 FCR 126; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Henderson v South Australian Housing Trust (2024) 145 SASR 111; House v The King (1936) 55 CLR 499; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Pallas v Lendlease Corporation Ltd (2024) 114 NSWLR 81; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; Rainforest Reserves Australia Inc v Minister for the Environment and Water [2025] FCA 532; Re AKS [2016] SACAT 19; Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; Totaan v R (2022) 108 NSWLR 17, considered. -- 4 of 48 -- VLASSAKIS v ATTORNEY-GENERAL (SA) [2026] SASCA 67 Court of Appeal – Civil: Livesey P, S Doyle and Bleby JJA 1 LIVESEY P AND BLEBY JA: On 23 January 2026, the Parole Board of South Australia (‘the Parole Board’) filed an Originating Application for judicial review of a decision of the Parole Administrative Review Commissioner (‘the Commissioner’). That decision was to overturn the decision of the Parole Board to release James Spyridon Vlassakis on parole. This is the determination of questions reserved on a case stated pursuant to r 214.7 of the Uniform Civil Rules 2020 (SA) on the application for judicial review. At the heart of the application for judicial review, and the questions reserved, is a complaint that the Commissioner fell into jurisdictional error when exercising his power of review of a decision of the Parole Board pursuant to s 77E of the Correctional Services Act 1982 (SA) (‘the CS Act’). 2 Before addressing the relevant background and issues arising for determination, it is necessary to explain what this Court is and is not deciding. This Court is deciding questions of law reserved for its consideration in the course of judicial review proceedings, in which the legality of the Commissioner’s decision-making has been challenged. Those proceedings and the questions of law arising in this case do not decide whether Mr Vlassakis should be released on parole. The decision whether to release a prisoner on parole is a decision made by the Parole Board, subject only to any review undertaken by the Commissioner, under the CS Act. While the Supreme Court can judicially review whether the statutory processes have been undertaken according to law, it is not for this Court to decide whether any prisoner should or should not be released on parole. The distinction, while subtle, is legally important. Subject only to the availability of a review by the Commissioner, and the potential for judicial review, Parliament has determined that the Parole Board must decide whether any prisoner should be released on parole. 3 For the following reasons, the Commissioner fell into jurisdictional error when conducting his review under the CS Act. In the exercise of the discretion which the parties asked this Court to exercise, the application for judicial review should be granted. Background 4 On 21 June 2001, James Spyridon Vlassakis was convicted of four counts of murder. A judge sentenced him to life imprisonment with a non-parole period of 26 years, backdated to commence on 2 June 1999. The circumstances of the murders in which Mr Vlassakis participated are notorious in South Australia. They were part of a series of 12 killings orchestrated and carried out by and with two other men between 1992 and 1999. The sentencing judge indicated that had it not been for Mr Vlassakis’ plea of guilty, his extensive cooperation with police and his undertaking to give evidence in the forthcoming trial of others charged in -- 5 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 2 connection with the killings (which, in due course, occurred), he would have imposed a non-parole period of 42 years. 5 Mr Vlassakis’ non-parole period expired on 1 June 2025. On 1 December 2024, that is, six months before the expiry date, he became eligible to apply for release on parole pursuant to ss 67(2) and (3) of the CS Act. On 9 December 2024, he applied for release on parole pursuant to s 67(2) of the CS Act. On 5 August 2025, the Parole Board resolved to release Mr Vlassakis on parole with conditions (‘the release decision’). 6 On 19 August 2025, the Parole Board issued its reasons for the release decision. It provided those reasons to Mr Vlassakis, the Attorney-General of South Australia, the Commissioner for Police and the Commissioner for Victims’ Rights. It provided an additional written report to the Commissioner for Victims’ Rights. The Commissioner for Police and the Commissioner for Victims’ Rights both advised the Parole Board that they did not intend to seek a review of the release decision. The Commissioner for Police requested that the Parole Board consider including an additional condition to the proposed parole conditions, to the effect that Mr Vlassakis submit to an annual psychological review for the first five years following his release from custody and thereafter at the direction of a Community Corrections Officer. 7 On 17 October 2025, the Attorney-General, through the Crown Solicitor, wrote to the Commissioner advising that he sought to review the release decision. 8 On 3 November 2025, the Parole Board wrote to the Commissioner of Police, indicating that it was supportive of his request to include the further condition concerning psychological reviews. 9 The Attorney-General provided the Commissioner with written submissions on its application for review, together with an affidavit of Timothy Jarrad, Director, Rehabilitation Services, Department of Correctional Services, dated 26 November 2025. The Commissioner for Victims’ Rights also provided written submissions. 10 The Commissioner conducted a hearing of the review proceedings on 5 December 2025. He heard submissions from counsel for the Attorney-General and counsel for Mr Vlassakis. On 15 December 2025, he issued written reasons for his decision and served them on the Parole Board. On the same date, he issued updated reasons including two orders. The orders were as follows: In accordance with section 77E(6) of the Correctional Services Act 1982 I make the following orders: 1. Set aside the decision of the Parole Board dated 5 August 2025 to release James Spyridon Vlassakis on parole (section 77E(6)(c)); -- 6 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 3 2. Substitute my own decision to refuse the application the subject of this review, namely the application made by James Spyridon Vlassakis for release on parole (section 77E(6)(c)(i)); I further note that the Parole Board must now exercise its powers in accordance with section 67(9) of the Act. 11 As already noted, the Parole Board filed the Originating Application for Review on 23 January 2026. The Originating Application named the Attorney-General as Respondent and the Commissioner and Mr Vlassakis as Interested Parties. 12 The Statement of Facts, Issues and Contentions – Revision 1, filed on 16 March 2026, set out the following contentions of the Parole Board on the Originating Application:1 3. In the premises, the Commissioner fell into jurisdictional error by failing to give due weight to the decision of the Board and departing from the decision of the Board without cogent reasons for doing so in circumstances where, by his Reasons: a. the Commissioner reasoned that the circumstances and gravity of the offences for which the Prisoner was sentenced were such that, in his view, the Prisoner would be a risk to the community if released on the first occasion on which parole was available; b. the Commissioner reasoned that, accordingly, given that this was the first occasion on which parole was available to the Prisoner following completion of the Prisoner’s non-parole period, to release the Prisoner at this early stage would be a risk to the community; c. other than his finding that this was the first occasion on which parole was available, the Commissioner provided no reason, cogent or otherwise, for the conclusion that release of the Prisoner on parole presented a risk to the community; d. that is, the Commissioner effectively reasoned that, in his view, the nature of the offending for which the Prisoner was sentenced necessitated a longer non-parole period than that which was imposed by the court in sentencing; e. accordingly, the Commissioner impermissibly substituted his view of the nature of the offending for which the Prisoner was sentenced for the view expressed by the court in passing sentence and thereby failed to have regard to the provision of s 67(4)(c) of [the CS Act]; f. the Commissioner did not provide a cogent reason to depart from the Release Decision of the Board; g. in effect, the Commissioner acted ultra vires his jurisdiction by resentencing the Prisoner. 1 The numbering is a consequence of deletions from the original Statement of Facts, Issues and Contentions. -- 7 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 4 13 The Parole Board sought, by way of relief, an order in the nature of certiorari setting aside the decision of the Commissioner. 14 On 18 March 2026, the Attorney-General filed a Notice of Case Stated, seeking that the following questions be reserved: 1. Does the [Parole Board] have a relevant interest in the subject matter of the action and, consequently, standing to bring it? 2. Does the [Parole Board] have power under the Correctional Services Act 1982 (Act) or otherwise to bring the judicial review proceedings? 3. Did the Commissioner fall into jurisdictional error by: 3.1 failing to give due weight to the decision of the [Parole Board] and/or departing from the decision of the [Parole Board] without cogent reasons for doing so?; and/or 3.2 impermissibly substituting his view of the circumstances and gravity of the offences for which the Prisoner was sentenced for the view expressed by the court in passing sentence in contravention of s 67(4)(c) of the Act? 4. Should the Court, in the exercise of its discretion, grant the relief sought by the [Parole Board]? 15 The Notice of Case Stated was accompanied by a Statement of Agreed Facts. 16 On 19 March 2026, Livesey P granted leave on proposed Questions 1, 2 and 3 and listed the reserved questions for hearing before the Court of Appeal on 19 May 2026. He gave leave to the parties to prosecute the reservation and answering of Question 4 before the full bench. 17 The Parole Board and the Attorney-General filed written submissions and a Core Appeal Book Index in accordance with the timetable set by the Court. Then on 18 May 2026, the day before the hearing, Mr Vlassakis applied to be joined to the proceedings as an applicant. 18 The Coram convened that afternoon. Senior counsel for the Parole Board indicated that on joinder of Mr Vlassakis as an applicant, the Parole Board would defer to him as the person having the prime carriage of argument on the case stated but would nonetheless assist the Court. The consequence was that Questions 1 and 2 became unnecessary to decide. 19 The Attorney-General did not oppose the application but maintained that for the Parole Board to remain as a party would be inconsistent with the Hardiman principle, known for being the High Court’s statement in R v Australian Broadcasting Tribunal; Ex parte Hardiman,2 in which the Australian Broadcasting 2 (1980) 144 CLR 13. -- 8 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 5 Tribunal presented substantive argument in opposition to an application for mandamus and prohibition in respect of its functions:3 In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal. 20 The Attorney-General had deployed this principle in service of its answer to Question 2 on the case stated. Insofar as he sought to maintain the importance of the principle in the face of the application for joinder, this was not to urge the Court to refuse to hear the Parole Board’s submissions. Rather, it was to urge the Parole Board to reconsider its role on the basis that in the likely event that it was called on to consider a fresh application by Mr Vlassakis, or address parole conditions into the future, an application for apprehended bias against it was ‘a very live possibility’. The Attorney-General maintained that his stance was to protect the integrity of the Parole Board. 21 The Parole Board disputed that its involvement as an applicant contravened the Hardiman principle. Noting the contentions set out earlier, the Parole Board submitted that it made no submission about the gravity of the offending per se or whether the Commissioner’s assessment was right or wrong. The Parole Board’s concern was with whether the Commissioner’s decision on the review miscarried because his reasons for departing from its decision were not cogent and breached the mandatory provisions of the Act. 22 It was not necessary to resolve this dispute. It is clear enough that it is unusual for the Parole Board to bring an application to judicially review a decision of its reviewer. However, the Attorney-General made no application consequent on his contention that the Parole Board was transgressing the Hardiman principle. His submissions were more of a last effort to invite and persuade the Parole Board to vacate the field. The Parole Board firmly declined that invitation. In circumstances where the Attorney-General sought no relief, the argument risked aridity. 23 The Court determined to join Mr Vlassakis as an applicant. It indicated that it would hear first from Mr Vlassakis on Questions 3 and 4, then the Parole Board as if it were an interested party under the Uniform Civil Rules, and then the Attorney-General. It would then hear replies. The Court took the view that in those circumstances it was not necessary to consider Questions 1 and 2, or any further argument about the Hardiman principle. 3 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35–36 (Gibbs, Stephen, Mason, Aickin and Wilson JJ). -- 9 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 6 24 At the hearing of the questions reserved, senior counsel for Mr Vlassakis relied on the written submissions that had been filed by the Parole Board. Senior counsel for the Parole Board supplemented those written submissions with oral submissions and also replied to the oral submissions of the Attorney-General. Notwithstanding these practical arrangements, the Court has treated Mr Vlassakis as the applicant and the Parole Board as an interested party. The release decision 25 The Parole Board gave written reasons for the release decision over about nine pages. It set out the matters it was required to consider when determining an application for release from prison by a life-sentenced prisoner. One of those considerations was that mandated by s 67(4)(c) of the CS Act: (c) where the prisoner was imprisoned for an offence or offences involving violence, the circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment (but the Board may not substitute its view of these matters for the view expressed by the court in passing sentence); … 26 The Parole Board summarised the circumstances of the offences. It then turned to the sentencing remarks of the sentencing judge, noting the judge’s findings about Mr Vlassakis’ upbringing and his suffering from a major depressive disorder and post-traumatic stress disorder. These arose out of various incidents that included physical, sexual and emotional abuse. The Parole Board also noted the judge’s observations about Mr Vlassakis having fallen under the influence of his co-offender John Bunting. It continued: His Honour stated “In summary, you did not originate the idea to kill any of these men and you obeyed orders in each case from someone who exercised considerable influence over you. I accept that there was also an element of fear which led you to become involved, although at no stage was any actual threat or force used against you. It cannot be said that you were in any sense left with no choice in any of these instances.” … “Your pleas of guilty and your cooperation with the authorities, particularly your undertaking to give evidence for the prosecution at the forthcoming trial of the other alleged offenders, are matters of particular importance to the sentencing process.” (Emphasis in original.) 27 The Parole Board then examined the likelihood of Mr Vlassakis complying with the conditions of parole, noting his progress in prison, with only two behavioural events recorded, the community supports he would be linked with on release, his good support within the community and his demonstration, in interviews, that ‘he is sensibly aware of the challenges he will face if released on parole’. 28 The Parole Board having already essayed a description of the offending under the heading, ‘Circumstances of Offences’, it then said, under the heading, ‘Circumstances and Gravity of the Offences’: -- 10 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 7 The offences committed by Mr Vlassakis were undoubtedly very serious, and the Parole Board has had due regard to the sentencing remarks of the Honourable Justice Duggan. The Parole Board is mindful that sentencing and punishment are matters for the Court. The Parole Board’s responsibility is not have regard to the legislative criteria. The Court chose to set a non-parole period unlike the case of Mr Bunting and Mr Wagner where the Court refused to set a non-parole period. This passage proved central to the reasons of the Commissioner on review. 29 The Parole Board’s reasons then addressed: • the impact that release of Mr Vlassakis was likely to have on any registered victim; • the behaviour of Mr Vlassakis whilst in prison; • urine testing in prison; • reports tendered to the Parole Board, comprising: • medical; • psychiatric; • psychological; and • social background; • the probable circumstances of Mr Vlassakis after release; • co-operation with authorities; • electronic monitoring; and • community safety. 30 The Parole Board concluded: It is the view of the Parole Board that it is now appropriate for Mr Vlassakis to be released onto parole, on conditions. In reaching this decision, the Parole Board has had regard to all the legislative criteria and all the reports and submissions received by the Parole Board as detailed. The decision of the Commissioner on review 31 The right of review of a decision of the Parole Board by the Commissioner is governed by s 77E of the CS Act: 77E—Right of review of Board decision to release life prisoners on parole etc (1) Any of the following persons may apply for a review by the Commissioner of a reviewable decision: -- 11 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 8 (a) the Attorney-General; (b) the Commissioner of Police; (c) the Commissioner for Victims’ Rights. (2) An application under this section— (a) must be made within 60 days after notification of the reviewable decision; and (b) must, within 3 days of being made— (i) be served personally on— (A) the CE; and (B) the prisoner; and (ii) be served in a manner determined by the Commissioner on the Board and each of the other persons who may apply under subsection (1) for a review of a reviewable decision. (3) On a review, the Commissioner— (a) will examine the reviewable decision on the evidence or material before the Board; and (b) may consider further evidence or material that the Commissioner decides, in the circumstances of the particular case, to admit for the purposes of the review. (4) The Commissioner, on a review— (a) is not bound by the rules of evidence but may inform himself or herself as the Commissioner thinks fit; and (b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms. (5) The Commissioner must, on a review, give due weight to the reviewable decision and the reasons for it and not depart from the decision except for cogent reasons. (6) The Commissioner may, on a review under this section— (a) affirm the reviewable decision; or (b) vary the reviewable decision; or (c) set aside the reviewable decision and— (i) substitute his or her own decision; or (ii) send the matter back to the Board for reconsideration in accordance with any directions or recommendations that the Commissioner considers appropriate, -- 12 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 9 and, in any case, may make any order the Commissioner considers appropriate (including any interim order pending the reconsideration and determination of the matter by the Board, or any ancillary or consequential order, that the Commissioner considers appropriate). (7) The Commissioner must advise the parties to the review and the prisoner of his or her decision on the review. (8) The Commissioner must, if required to do so by the Supreme Court, provide the Court with a copy of the reasons for his or her decision on a particular review. 32 The requirement in s 77E(5) that the Commissioner give due weight to the reviewable decision and the reasons for it and not depart from the decision except for cogent reasons is central to the application for judicial review and Reserved Question 3. 33 The decision of the Commissioner on review, dated 15 December 2025, spans five pages. It is not necessary to summarise the entire decision. The Attorney-General submitted to the Commissioner that there were three reasons that, together or separately, constituted ‘cogent reasons’ within the meaning of s 77E(5) to depart from the decision of the Parole Board. These were:4 1. There was a chance of reoffending on the basis of the necessity for more sessions in the ‘Living without Violence’ program. 2. His drug use record whilst in custody was underestimated. 3. The gravity and circumstances of the offending were cause to overturn the parole board’s decision. 34 The Commissioner summarised the submissions on behalf of the Attorney-General under each heading. His finding that there were cogent reasons to depart from the decision of the Parole Board was based on his assessment of the gravity of the offending. He summarised the Attorney-General’s submissions on this topic as follows:5 3. Ms Wilson then turns to the question of the gravity of offending. Clearly this is the most relevant and important argument she presents. Although one cannot glean too much from the actual language of the parole board, I think to describe the offending as “undoubtedly very serious” is a clear understatement. The Gravity of the Offending Ms Wilson argues that the offending of Mr Vlassakis was such that one could not be confident, at this stage, that the interests of the community have been properly protected. I will return that shortly. (Emphasis added.) 4 Parole Administrative Review Commissioner, Reasons, 15 December 2025 (‘Reasons’), p 3. 5 The heading appears to have been misplaced in a typographical error. This passage reproduces the section of the Reasons exactly as it appears. -- 13 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 10 35 The Commissioner briefly addressed the submissions of senior counsel for Mr Vlassakis. He indicated that he bore in mind the fact that Mr Vlassakis had partaken in all courses asked of him, as well as Mr Vlassakis’ cooperation with the police and with the prosecuting authorities. He noted senior counsel’s submission that these matters indicated that Mr Vlasskis was ready for release. 36 The Commissioner’s conclusion incorporated his view about the Parole Board’s ‘understatement’ of the gravity of the offending: Conclusion On the one hand, there is much to be said for the behaviour of Mr Vlassakis, whist in custody since these crimes were committed. He has to be commended for his cooperation and his pleas of guilty. However, I do remind myself that he has been given a substantial benefit by the sentencing judge in relation to that behaviour. The task of the Parole Board and myself, on reviewing their decision, is not to concern ourselves with the sentence of 26 years but be concerned with what should happen post that period. I am mindful of the legislative mandate, that is, the protection of the public that is of paramount concern. I am concerned, in this matter, by the enormity of the crime. That is something, which the legislation demands I must take into account. These were no (sic) normal crimes and without going into details, I adopt the recitation of the judge in his sentencing remarks as to what happened. There are certain aspects of the offending that concern me when considering parole at this early stage, being the first occasion after the completion of the non-parole period. It was argued, as a mitigating factor, that the question of the influence over him by Mr Bunting was important. However, this could not in any way, excuse crimes of this magnitude, nor has anyone sought to argue that and, of course, there is his relative youth and admissions of guilt and assistance. However, these offences were very evilly premeditated by everyone, they were violent, gross, and committed over a substantial period of time. There were certain aspects of these crimes that could be described as disgustingly unusual. I find that the Parole Board have underestimated the effect of the gravity of the criminal behaviour of Mr Vlassakis. I find that because of the gravity of the offending as described above, with the fact that this is the first occasion on which parole is available, to release Mr Vlassakis at this relatively early stage would be a risk to the community. (Emphases added.) 37 For reasons developed below, the highlighted passages encapsulate the basis on which the Commissioner found there to be cogent reasons for departing from the Parole Board’s decision. Question 3.1: Did the Commissioner fall into jurisdictional error by failing to give due weight to the decision of the Parole Board and/or depart from the decision of the Parole Board without cogent reasons for doing so? 38 This question requires, first, an analysis of what is capable of amounting to ‘cogent reasons’ within the meaning of s 77E(5). The Attorney-General challenged obiter dicta statements in the Full Court to the effect that it is necessary to identify error before cogent reasons can be established. In any event, he sought to distinguish s 77E(5) from the regime in respect of which those statements were made. -- 14 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 11 The meaning of ‘cogent reasons’ in s 77E(5) 39 The meaning of ‘cogent reasons’ as a standard governing the power to depart from an administrative decision on review has been considered primarily in the context of the use of that phrase in s 42E of the District Court Act 1991 (SA) (‘District Court Act’). Section 42 sits within Division 2 of Part 6 of that Act, establishing the Administrative and Disciplinary Division of the District Court. Subdivision 2, in which s 42 appears, is concerned with administrative appeals, the appellate jurisdiction for which is conferred on the District Court by other Acts. Section 42B(1) provides: (1) This Subdivision applies in relation to the appellate jurisdiction conferred on the Court by another Act (the special Act) subject to the provisions of the special Act. 40 Section 42E provides: 42E—Conduct of appeal (1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it. (2) The Court, on an appeal— (a) is not bound by the rules of evidence but may inform itself as it thinks fit; and (b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. (3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons. 41 It is necessary to bear in mind that the ‘cogent reasons’ standard is here applied to the appellate jurisdiction of a court, not a further administrative decision-maker or tribunal. 42 In Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) (‘Marksman’),6 Stanley J, with whom Gray J agreed, said of the ‘cogent reasons’ standard in s 47E:7 Section 42E(3) is a mandatory provision requiring the Court on appeal to give due weight to the decision being appealed against and the reasons for it, and not to depart from the decision except for cogent reasons. There are two critical features to the operation of s 42E(3). First, the nature of the appeal being conducted by the Court is limited. The Court is not to allow the appeal from the decision appealed against except for cogent reasons. I consider that the purpose of s 42E(3) is to indicate that the appeal, while it is to be conducted in accordance with the terms of s 42E(2), is not an ordinary merits review of the decision the subject of the appeal. The Court on appeal is not to merely substitute its view for that of the original decision-maker. It is only to depart from that decision where cogent reasons exist. “Cogent” means compelling, convincing, powerful. Second, in the context 6 [2016] SASCFC 72. 7 Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72 at [315]. -- 15 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 12 of this appeal, the decision being appealed against is the decision of the Registrar, affirmed by the Committee, to cancel the respondent’s licences, and the Court is required in conducting the appeal from that decision, to give due weight not only to the decision but to the reasons for it. Those reasons include not only the reasons of the Registrar but, for the reasons explained above, the reasons of the Committee. (Footnotes omitted.) 43 The following year, the Full Court again had cause to consider this subdivision, in Commissioner for Consumer Affairs v McMurray (‘McMurray’).8 The ultimate question in that case was whether there had been an error of law. Justice Blue quoted the passage from Stanley J’s judgment in Marksman. His Honour then expanded on the standard of deferential treatment to be accorded to the underlying decision, in remarks that were, at least insofar as the challenge related to the exercise of a discretion, strictly obiter because of the nature of the asserted error in that case:9 The deference to be accorded to the underlying decision on an appeal governed by s 42E depends on the nature of the asserted error in the decision and reasons for the decision. Where the asserted error relates to the exercise of a discretion or the making of an evaluative judgment or policy decision, it will be necessary for the appellant to establish a process or outcome error of the type identified by the High Court in House v The King,10 and the mere establishment of a process error will not avail the appellant unless the appellant also demonstrates that there should have been a different outcome. Where the asserted error relates to a finding on an ultimate factual issue determinative of the result, it will not be sufficient for an appellant merely to demonstrate that the judge on appeal would not have made that factual finding. It will ordinarily be necessary for the appellant to demonstrate that the finding made was not open on the material properly before the decision-maker. Particular appellate restraint will need to be exercised when the finding turns on credit. When the asserted error relates to a finding on a primary or intermediate factual issue but not an ultimate issue, but in addition the appellant will also need to demonstrate that the correct factual finding would have led to a different outcome. Where the asserted error relates to a finding on an ultimate legal issue determinative of the result, the position is different. The appeal judge is required to determine the legal issue and if the judge concludes that the decision-maker wrongly decided the legal issue and it was determinative of the result, the appeal should be allowed. No question of deference to the decision of the decision-maker arises. Where the asserted error is of a primary or intermediate legal issue but not an ultimate issue, the appeal judge is required to determine the legal issue and then the appellant will also need to demonstrate that the correct legal position would have led to a different outcome. (Emphasis added; footnote in original.) 8 (2017) 128 SASR 1. 9 Commissioner for Consumer Affairs v McMurray (2017) 128 SASR 1 at [44]-[47] (Blue J, Parker and Hinton JJ agreeing). 10 House v The King (1936) 55 CLR 499 at 505-506 per Dixon, Evatt and McTiernan JJ. -- 16 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 13 44 Justice Hinton reached the same conclusion. His Honour referred to the statement of the plurality in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission11 to the effect that ordinarily, on an appeal by way of rehearing (as opposed to a hearing de novo), if there has been no further evidence admitted and no relevant change in the law, the court or tribunal can only interfere if satisfied that there was an error on the part of the primary decision-maker:12 That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance. (Footnotes omitted.) 45 Justice Hinton concluded in respect of the District Court Act provisions:13 The language of s 42F of the DCA permits affirmation, rescission and substitution, or remittal for consideration or further consideration. None of the alternatives permit the District Court to examine the decision of the original decision-maker on the evidence or material before the original decision-maker and simply substitute the decision it thinks appropriate. For these reasons, I agree with Blue J that in an appeal under Pt 6 Div 2 of the DCA, unless a special Act otherwise provides, it is incumbent upon an appellant to demonstrate error before the appellate court may interfere with the decision of the original decision-maker. As Blue J indicates, this conclusion has the consequence that if the decision appealed against is in the nature of a discretion, an error of the type identified in House v The King14 must be established … (Footnote in original.) 46 The applicant submitted that these observations applied with equal force to a review by the Commissioner under s 77E(5) of the CS Act, such that before the Commissioner could depart from a discretionary decision of the Parole Board, it was necessary that error of the kind identified in House v The King15 be established. Errors of this kind include acting upon a wrong principle, allowing extraneous and irrelevant mattes to guide or affect the decision, mistaking the facts, and failing to take into account a material consideration.16 The Attorney-General contested the correctness of the statements in McMurray, although he contended that error of this kind on the part of the Parole Board was established in any event. 47 Section 77E of the CS Act is drafted in terms that reflect s 42E of the District Court Act closely. The requirement to give due weight to the decision under review 11 (2000) 203 CLR 194. 12 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14] (Gleeson CJ, Gaudron and Hayne JJ). 13 Commissioner for Consumer Affairs v McMurray (2017) 128 SASR 1 at [82]. 14 House v The King (1936) 55 CLR 499. 15 (1936) 55 CLR 499. 16 House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ). -- 17 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 14 and not to depart from it except for cogent reasons is sufficient to demonstrate that the review does not operate as a hearing de novo. That does not necessarily mean that the nature of the review defaults to a rehearing such as requires the establishment of error. The types of error that Blue J identified in McMurray would be sufficient to establish cogent reasons; the question remains whether they are necessary. 48 The Attorney-General submitted that there were a number of indicators of text, context and purpose that contradicted the interpretation favoured in McMurray or which, at least, required that it not be applied to s 77E. First, the obligation to give ‘due weight’ to the decision the subject of review sits badly with a review standard of error: if error were required to be shown, the obligation to give due weight would be rendered largely redundant. When this is considered together with the departure standard of ‘cogent reasons’, it suggests that while there must be a compelling reason to depart, in the case of the exercise of a discretion, that is not limited to cases of error. 49 Secondly, the Attorney-General submitted that to incorporate principles of appellate review into an administrative review process would effectively narrow the review jurisdiction to ‘something akin to judicial review’ and that it might be doubted that Parliament intended to impose such a constraint when supplementing existing judicial review processes. The force of this submission about purpose in isolation is limited. Review under s 42E remains review by a court. The establishment of a supplementary review jurisdiction in the District Court can, on its own, be understood as a policy decision as to the appropriate jurisdiction to be reviewing certain classes of decision. That is less the case, however, with s 77E, the Commissioner being an administrative body. In any event, there are more telling indicators of text, context and purpose. 50 Section 77E(4) provides: (4) The Commissioner, on a review— (a) is not bound by the rules of evidence but may inform himself or herself as the Commissioner thinks fit; and (b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms. 51 As set out earlier, s 42E of the District Court Act is in relevantly similar terms. These provisions speak against the review standard being limited to the ascertainment of error and in favour of a standard that aligns more closely with that of a hearing de novo albeit one that is subjected to the ‘due weight’ and ‘cogent reasons’ restraints. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (‘Builders Licensing Board’), Mason J said:17 17 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621 (Mason J, Barwick CJ and Stephen J agreeing). -- 18 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 15 Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. … There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo … The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo. On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance. 52 Neither s 42E nor s 77E specifies that the review is to be by way of rehearing. The relevance of these remarks is that they assist with indicators as to the nature of the appeal. Builders Licensing Board was decided long before the kind of review jurisdiction presently under consideration was conceived. 53 Each of ss 42E(1), (2) and (3) closely approximates ss 77E(3), (4) and (5) of the CS Act respectively. The one substantive difference is that the Commissioner is not a court. To the extent that this may be regarded as a distinction of substance, the conferral of a review power on a second administrator tends to speak against the power being limited to the standards of appellate review. Ultimately, however, the interpretation of the standard depends on an analysis of the statutory provisions in accordance with orthodox principles of interpretation. 54 The obligation to give ‘due weight’ to the decision and not depart from it except for cogent reasons is a formulation that deviates from that of ‘rehearing’. It patently does not authorise a review de novo. However, in terms, these obligations indicate a standard of departure that is not necessarily confined to the discernment of error. 55 Then, the following features of s 42E of the District Court Act, namely: • the discretion to allow further evidence ‘or material’; • the non-application of the rules of evidence and ability of the court to inform itself as it thinks fit; and • the obligation to act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms; -- 19 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 16 together further support the review standard of the appellate jurisdiction not being confined to the demonstration of error. 56 When considered together, these features strongly support there being greater scope to depart from the original decision than just in the case of error. The standard nonetheless requires, as Stanley J expressed it in Marksman, compelling, convincing or powerful reasons to depart from the decision. It is a high standard. It does not allow the simple substitution of views or the mere allocation of different weight to relevant considerations. However, neither the text nor the context of the provision supports it being limited to cases of error. 57 The Attorney-General explained in the Second Reading Speech on the introduction of s 42E:18 The appeal to be provided in the District Court Act, as amended by this Bill, does not fall exactly into any of the three categories of appeal in the strict sense, appeal de novo or rehearing. … The Court is not limited to consideration of whether the original decision was correct, at the time when it was made, on the evidence then available. The Court may receive new evidence and may substitute its own decision in place of the original decision. However, the Court must give due weight to the original decision and must not depart from it unless satisfied that there are cogent reasons to do so. This is to ensure that the parties present their evidence or submissions fully and properly to the original decision-maker, and do not simply rely on the right of appeal to sort things out. It is also to ensure that the expertise of the original decision-maker and the policy framework in which the original decision was made is not devalued. The Court will not proceed as if the original decision had never been made. The original decision will be the starting point, but the Court is free to depart from it if proper reasons exist. 58 These passages offer a rationale for the drafting that confirms the meaning conveyed by the text of s 42E.19 59 It follows that we respectfully disagree with the interpretation of s 42E preferred by the Court in McMurray. That interpretation was, as indicated earlier, obiter dicta, as the claimed basis for the s 42E review in that case was an error of law. The reasoning of Blue J, set out earlier, does not, with respect, engage with the possibility of a separate standard that sits between review for error and a hearing de novo. Justice Hinton’s reasoning, also set out earlier, draws on the powers available to the Court on review under s 42F of the District Court Act, observing that:20 18 South Australia, Parliamentary Debates, Legislative Council, 518 November 1999, pp 516–517 (The Hon KT Griffin). 19 Legislation Interpretation Act 2021 (SA), s 16. 20 Commissioner for Consumer Affairs v McMurray (2017) 128 SASR 1 at [82]. -- 20 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 17 None of the alternatives permit the District Court to examine the decision of the original decision-maker on the evidence or material before the original decision-maker and simply substitute the decision it thinks appropriate. 60 This analysis is limited to a consideration of the Court’s dispositive powers. It does not engage with the functions of the Court on an appeal as discerned from s 42E. Section 42F provides: 42F—Decision on appeal The Court may, on an appeal— (a) affirm the decision appealed against; (b) rescind the decision and substitute a decision that the Court considers appropriate; (c) remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court. 61 We do not think that these dispositive powers assist with the question of construction as to the nature of the review. 62 In addition, Hinton J’s conclusion appears to have been premised on binary possibilities:21 In my view, the appeal to which ss 42E and 42F DCA apply is an appeal in the nature of a rehearing. The important question that then arises is whether it is necessary for the appellant to demonstrate error before the District Court may interfere with the decision of the original decision-maker appealed from or whether that Court is free to substitute its own opinion having undertaken an independent assessment of the decision of the original decision-maker on the evidence or material before the original decision-maker (and any fresh evidence received). 63 His Honour did not appear to entertain the possibility of a separate standard of review that is higher than ‘simply substitut[ing] the decision [the Court] thinks appropriate’ but falling short of error. 64 In our view, the obiter dicta of the Court in McMurray as to the standard of review established by s 42E of the District Court Act is incorrect and should not be followed. The Court is not here directly concerned with the operation of s 42E, but with s 77E of the CS Act. It is necessary to pronounce on the review standard prescribed by that section. The exercise in statutory interpretation we have undertaken with respect to s 42E applies, in its terms, to s 77E and we would so apply it. If anything, the proposition that s 77E establishes the separate review standard we have described is slightly stronger, in circumstances where the review body is an administrative body rather than a court. 21 Commissioner for Consumer Affairs v McMurray (2017) 128 SASR 1 at [80]. -- 21 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 18 65 A finding that cogent reasons exist for departing from a discretionary decision of the Parole Board under s 77E(5) does not require a finding of error of the kind identified in House v The King,22 although error of that kind will, in all likelihood, amount to cogent reasons. Nevertheless, the Commissioner cannot simply substitute his or her own view or merely allocate greater or less weight to identified relevant considerations. We respectfully adopt the phrasing of Stanley J in Marksman, to the effect that in order to be ‘cogent’, the reason or reasons for departing from the decision must be compelling, convincing or powerful.23 Challenging the existence of ‘cogent reasons’ on judicial review 66 The Attorney-General accepted that the requirement of cogent reasons places a jurisdictional limit of the powers of the Commissioner. Question 3.1 raises, in addition, the question of whether the requirement that the Commissioner can depart from a decision of the Parole Board only for cogent reasons is a bare jurisdictional fact that enlivens the Commissioner’s power to so depart, or whether the cogency of the Commissioner’s reasons for departing from the decision, while jurisdictional, is a matter of opinion for the Commissioner to determine. This informs the content of a challenge on judicial review as to the existence of cogent reasons. In Enfield City Corporation v Development Assessment Commission, the High Court described the concept of ‘jurisdictional fact’ as follows:24 The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. 67 By contrast, where a criterion is predicated on a state of satisfaction or opinion of the decision-maker, the question for the reviewing court is whether the decision-maker held the opinion or state of satisfaction. The court nonetheless examines that question by reference to accepted descriptions of jurisdictional error:25 What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide. 22 (1936) 55 CLR 499. 23 Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72 at [315]. 24 Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at [28] (Gleeson CJ, Gummow, Kirby and Hayne JJ). 25 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432 (Latham CJ). -- 22 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 19 68 In Rainforest Reserves Australia Inc v Minister for the Environment and Water,26 Shariff J described the term ‘jurisdictional fact’ as ‘elusive and complex’.27 That description is borne out by the inquiry in the present case. 69 In Cabal v Attorney-General (Cth), Weinberg J explained:28 The so-called doctrine of “jurisdictional fact” (assuming that it is correct to so describe it) represents an exception to the principles of restraint which normally govern judicial review. “Jurisdictional fact” enables such review whenever the Court determines for itself that a statutorily required fact does not exist. Parliament can stipulate that any action which it authorises depends upon the existence of various preconditions. The legislation may require the existence of those preconditions to be established in the mind of the person or body exercising the power, or in the mind of the reviewing court. Where the power depends upon factual requirements being demonstrated to the satisfaction of the person in whom it is reposed, it is that person’s determination of the facts which is decisive. The validity of the exercise of the power is unaffected if the person, acting in good faith and otherwise according to law, considers the facts, and reaches an opinion about them, albeit one which a court would not share. Where the power depends upon the existence of objective facts, the court on judicial review is given the final say as to whether the required facts exist. 70 Justice Mortimer adopted this description in Country Carbon Pty Ltd v Clean Energy Regulator.29 Whether a criterion is a jurisdictional fact or a matter for the formation of opinion by the decision-maker is a question of statutory interpretation. In the ordinary course, this will not be a difficult exercise: it will depend on whether Parliament has conditioned the exercise of the power to depend on the objective existence of a fact, or on the state of opinion or satisfaction of the decision-maker. Nevertheless, whether a criterion for the exercise of a power is a jurisdictional fact is a question of statutory construction that is not, in all cases, simple. In Timbarra Protection Coalition Inc v Ross Mining NL (‘Timbarra’), Spigelman CJ explained:30 Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts. Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power — it is not necessary to determine which, for present purposes — a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts. 26 (2025) 311 FCR 98. 27 Rainforest Reserves Australia Inc v Minister for the Environment and Water (2025) 311 FCR 98 at 110 [58] (Shariff J). 28 Cabal v Attorney-General (Cth) (2001) 113 FCR 154 at [50]. 29 (2018) 267 FCR 126 at [166]. 30 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [40]-[42]. -- 23 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 20 Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker — “opinion”, “belief”, “satisfaction” — the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact: see Craig, Administrative Law, 3rd ed (1994) at 368-370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 198C. Where such words do not appear, the construction is more difficult. 71 In the absence of any expression of a requirement of opinion or satisfaction in s 77E(5), the requirement of ‘cogent reasons’ raises a constructional choice: whether this must be established as an (objective) jurisdictional fact, or whether it is sufficient that the Commissioner is of the opinion that there are cogent reasons to depart. Put another way, is the cogency of the Commissioner’s reasons for departing from a decision of the Parole Board a matter for the Commissioner, or a matter for the reviewing court? 72 The starting point is necessarily the text. As observed earlier, ‘cogent’ means compelling, convincing, powerful. Whether reasons are cogent is a matter of evaluative assessment, not objectively ascertainable historical fact. This speaks in favour of the existence of cogent reasons being a matter for the satisfaction of the Commissioner. In Plaintiff M70/2011 v Minister for Immigration and Citizenship, French CJ said:31 The term “jurisdictional fact” applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be “a complex of elements”32. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court33. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact34. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact. The primary submission on the part of the plaintiffs, however, looked to the existence of the matters set out in s 198(3)(a) as conditioning the Minister’s power to make a declaration. (Footnotes in original; emphasis added.) 73 Nevertheless, the cogency of given reasons is a conclusion to be drawn about those reasons. At one level of abstraction, this suggests a requirement of external 31 (2011) 244 CLR 144. 32 Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 148 [28] per Gleeson CJ, Gummow, Kirby and Hayne JJ; [2000] HCA 5. 33 Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303-304; [1997] HCA 10. 34 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651-654 [130]-[137] per Gummow J; [1999] HCA 21; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 609 [183] per Gummow and Hayne JJ; [2002] HCA 54. -- 24 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 21 evaluation. However, we do not think that this is a strong indicator. It is not conceptually difficult to accept that when considering whether there is reason to depart from the decision of the Parole Board, the Commissioner must evaluate the cogency of any putative reason. 74 In this way, the assessment of the cogency of any putative reason or reasons for departing from the decision of the Parole Board is bound up with the review function with which the Commissioner is charged. In Timbarra, Spigelman CJ highlighted the significance of this as a structural feature speaking against the reference being a jurisdictional fact:35 The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power… (Emphasis added.) 75 The requirement of cogent reasons occurs within the statutory formulation in s 77E(5) of the power to depart from the reasons of the Parole Board: the Commissioner ‘must … give due weight to the reviewable decision and the reasons for it and not depart from the decision except for cogent reasons’. That is to say, the existence of cogent reasons would seem to be ‘adjudicated upon in the course of the inquiry’,36 rather than an essential preliminary to the decision-making process. 76 That said, the powers of the Commissioner are contained in s 77E(6): (6) The Commissioner may, on a review under this section— (a) affirm the reviewable decision; or (b) vary the reviewable decision; or (c) set aside the reviewable decision and— (i) substitute his or her own decision; or (ii) send the matter back to the Board for reconsideration in accordance with any directions or recommendations that the Commissioner considers appropriate, 35 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [44]. See also Country Carbon Pty Ltd v Clean Energy Regulator (2018) 267 FCR 126 at [165(f)] (Mortimer J). 36 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [52], citing Colonial Bank of Australasia v Willan (1874) 5 PC 417 at 443; see further Rainforest Reserves Australia Inc v Minister for the Environment and Water [2025] FCA 532 at [65] (Shariff J). -- 25 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 22 and, in any case, may make any order the Commissioner considers appropriate (including any interim order pending the reconsideration and determination of the matter by the Board, or any ancillary or consequential order, that the Commissioner considers appropriate). 77 On one view, the requirement to identify cogent reasons is established in s 77E(5). Section 77E(6) then confers a discretion to act with respect to the reviewable decision. The powers to vary or set aside the reviewable decision, being powers to ‘depart from’ that decision, are necessarily premised on the existence of cogent reasons to do so. It might be said that those powers are not engaged until the question of cogent reasons is resolved. On that view, a finding of cogent reasons could be seen to be preliminary or ancillary to the exercise of the power. 78 We do not think that this is a strong structural indicator. It is necessary to read the provision as a whole. While the discretion to affirm or vary the decision does not arise unless cogent reasons are established, the phrasing ‘must not depart from’ in s 77E(5) indicates that the existence of cogent reasons is bound up in the consideration of whether to exercise the power. 79 The other mandate in s 77E(5), being that the Commissioner must give due weight to the reviewable decision, is relevant in this regard. When the two requirements of the sub-section are read together, it is clear enough that whether there exist cogent reasons to depart from the decision is informed by the due weight that the Commissioner must give to the decision of the Parole Board. That is an inherently evaluative task. 80 The applicant pointed to other places in the CS Act where a requirement of cogent reasons is predicated on the satisfaction of the decision-maker that cogent reasons exist.37 Thus, for example, ss 68(1)(a)(ia) and (iii)(C) impose certain mandatory conditions of release on parole with respect to firearms and testing for gunshot residue. Section 71(5) then ameliorates the mandatory nature of these conditions by reference, in part, to the Parole Board’s ‘satisfaction’ of the existence of ‘cogent reasons’: (5) The Board may only vary or revoke the conditions imposed by section 68(1)(a)(ia) and (iii)(C) on the release on parole of a person if the Board is satisfied that— (a) there are cogent reasons to do so; and (b) the possession of a firearm, ammunition or part of a firearm by the person does not represent an undue risk to the safety of the public. (Emphasis added.) 81 The applicant pointed out that the legislature chose to express the question of cogent reasons in this section, and in s 37A(5)(a) (which is the comparable provision to s 71(5) in the case of release on home detention by the 37 CS Act, ss 37A(5)(a) and 71(5). -- 26 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 23 Chief Executive), to be a matter for the decision-maker’s satisfaction. That provided a contextual indicator that the requirement of cogent reasons in s 77E(5), not being so conditioned, was a matter of objective determination, that is, a jurisdictional fact. 82 These sections provide some contextual indication that s 77E(5) creates a jurisdictional fact. However, that indication does not overcome the balance of the features of s 77E(5) that support the contrary view. 83 In our view, the obligations to give due weight to the decision of the Parole Board and not to depart from the decision of the Parole Board except for cogent reasons are not jurisdictional facts. They are evaluative matters for the Commissioner to assess. This Court’s role, consequently, is not to substitute its view as to whether cogent reasons exist. 84 Having said that, the Commissioner’s determination remains subject to review for jurisdictional error. This requires a determination as to whether, on some basis, the Commissioner’s conclusion was not open. This may be because the Commissioner misapprehended his powers or functions; took into account an irrelevant consideration or failed to take into account a relevant consideration; denied procedural fairness as required by the statute; made a decision that was unreasonable or irrational; or, in some cases, made an erroneous finding or reached a mistaken conclusion.38 The error must be material, in the sense that there is a realistic possibility that the decision to depart from that of the Parole Board could have been different if the error had not occurred.39 The Commissioner’s reasons 85 We have set out earlier the relevantly operative parts of the Commissioner’s reasons. His reasons for departing from the Parole Board’s decision are constituted by the following statements: Although one cannot glean too much from the actual language of the parole board, I think to describe the offending as “undoubtedly very serious” is an understatement. … I am mindful of the legislative mandate, that is, the protection of the public that is of paramount concern. I am concerned, in this matter, by the enormity of the crime. … 38 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [3] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); Craig v South Australia (1995) 184 CLR 163 at 179; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at 572 [67] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 455 [81] (Nettle and Gordon JJ). 39 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). -- 27 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 24 However, these offences were very evilly premeditated by everyone, they were violent, gross, and committed over a substantial period of time. There were certain aspects of these crimes that could be described as disgustingly unusual. I find that the Parole Board have underestimated the gravity of the criminal behaviour of Mr Vlassakis. I find that because of the gravity of the offending as described above, with the fact that this is the first occasion on which parole is available, to release Mr Vlassakis at this relatively early stage would be a risk to the community. (Emphases added.) 86 The Commissioner’s reasons for departing from the decision of the Parole Board were, then: • the Parole Board’s description of the offending as, ‘undoubtedly very serious’, was an understatement; • the Parole Board underestimated the gravity of the offending; and • the gravity of the offending, and the fact that this was the first occasion on which parole was available, meant that to release Mr Vlassakis ‘at this early stage’ would entail a risk to the community. 87 The determinative conclusion that the Parole Board underestimated the gravity of the offending is, in context, a reference to the Parole Board’s statement, under the heading ‘Circumstances and Gravity of the Offences’: The offences committed by Mr Vlassakis were undoubtedly very serious, and the Parole Board has had due regard to the sentencing remarks of the Honourable Justice Duggan. 88 The Attorney-General sought to defend the Commissioner’s finding by submitting that this statement by the Parole Board amounted to a breach of s 67(4)(c) of the CS Act, set out earlier, in that it amounted to a substitution by the Parole Board of its view of the circumstances and gravity of the offending for the view expressed by the court in passing sentence. This, of course, is the other criticism that the applicant aims at the Commissioner’s reasons, the subject of Question 3.2. 89 The Attorney-General made that submission on the premise that the analysis in McMurray was correct, and that it was necessary for the Commissioner to discern error. In the event that this Court rejected the dicta in McMurray, he maintained the submission that the Parole Board had departed from the sentencing judge’s view of the gravity of the offending, but that in any event, it had materially understated the gravity of the offending. It was open, in his submission, for the Commissioner to find that this constituted a cogent reason to depart from the Parole Board’s decision. 90 In the first instance, it is difficult to see that the Commissioner’s conclusion, that the Parole Board had ‘underestimated the effect of the gravity’ of the offending, could be anything other than a conclusion that it had departed from the -- 28 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 25 conclusions of the sentencing judge in this regard. That would be a breach of s 67(4)(c) and would undoubtedly constitute cogent reasons to depart from the decision. The sentencing judge’s assessment of the gravity of the offending is, for the purpose of the parole assessment exercise, the touchstone of that feature. On the other hand, a conclusion that while the Parole Board did not depart from the judge’s assessment in breach of s 67(4)(c), it had nonetheless underestimated the effect of the gravity of the offending, would risk irrationality. In any event, it would likely amount to nothing more than a substitution of opinion by the Commissioner in the absence of anything capable of amounting to compelling, convincing or powerful, that is, cogent, reasons. 91 The Attorney-General submitted that the Parole Board’s description of the gravity of the offending as ‘undoubtedly very serious’ was a clearly erroneous description of the view of the sentencing judge. The judge in sentencing said: … I must take into account the nature of the offences. The mere recitation of the circumstances of each of these offences is enough to indicate that they fall within the category of the most serious of murders. 92 The Attorney-General submitted that s 67(4)(c) required the Parole Board to stop and ask itself, ‘what is the gravity of the offending?’. The section does not require that. It requires the Parole Board to take the circumstances and gravity of the offences into account and not substitute its views for the views of the sentencing court. Whether it has complied with those obligations is a matter to be assessed on the whole of the reasons given by the Parole Board. 93 The description ‘undoubtedly very serious’ is not inconsistent with the judge’s characterisation of the offending. The submission, however, was that the Parole Board did not go on to describe its full horror or acknowledge that this was offending of the highest order. 94 We would accept that circumstances may arise where treatment of offending in reasons is so anodyne that it does not grapple with the gravity of the offending. In this matter, a criticism might be levelled at the Parole Board’s description as not being particularly informative, but the statement must be read in its context. Under the earlier heading ‘Circumstances of Offences’, the Parole Board gave an account of the offending acts that left no doubt as to their gravity. Then, in the same sentence that the Attorney-General impugns, it said that it had due regard to the sentencing judge’s remarks. 95 Any secondary description of the gravity of the offending in reasons given under s 67(7a) of the CS Act may run the risk, if viewed in isolation, of being too minimalist or excessively florid. Here, however, the Parole Board set out unsparingly the circumstances of the offending and, in the context of referring to the gravity of the offences, expressly referenced the sentencing remarks. In that context, we read the phrase ‘undoubtedly very serious’ as nothing more than a descriptor that is not intended to detract from the gravity of the offending as encapsulated, and incorporated, in those other parts of the reasons. -- 29 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 26 96 The Attorney-General suggested that another way of approaching the Parole Board’s reasons was that it appeared that it had reached a conclusion about release and then gone back to lay out its reasoning. In this regard, he referenced the considerable attention the Parole Board gave to matters supportive of release on parole. The gravamen of the submission was that the Parole Board thereby minimised the gravity of the offending. 97 There are two obvious difficulties with this submission. First, the Parole Board’s reasons are reasons for determining whether to release a prisoner on parole.40 Section 67(4) sets out the matters that the Parole Board must take into account: (4) The Board must also take the following matters into consideration when determining an application under this section: (a) any relevant remarks made by the court in passing sentence; and (b) the likelihood of the prisoner complying with the conditions of parole; and (c) where the prisoner was imprisoned for an offence or offences involving violence, the circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment (but the Board may not substitute its view of these matters for the view expressed by the court in passing sentence); and (ca) if, in relation to an offence for which the prisoner was imprisoned, there is a registered victim—the impact that the release of the prisoner on parole is likely to have on the registered victim and the registered victim’s family; and (cb) in the case of a prisoner who is serving a sentence of life imprisonment where the Board is informed of the impact that the release of the prisoner on parole is likely to have on a victim of an offence for which the prisoner was imprisoned (other than a registered victim) and the victim’s family—that impact; and (d) the behaviour of the prisoner while in prison or on home detention; and (e) the behaviour of the prisoner during any previous release on parole; and (f) any reports tendered to the Board— (i) on the social background, or the medical, psychological or psychiatric condition, of the prisoner; (ii) from the CE (including recommendations (if any) as to the conditions that should, in the opinion of the CE, be imposed by the Board on the prisoner’s release on parole); and (g) the probable circumstances of the prisoner after release from prison or home detention; and 40 CS Act, s 67(7a)(a). -- 30 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 27 (h) any other matters that the Board thinks are relevant. 98 All these matters must be taken into account, where they apply. Positive assessments in respect of considerations (b) and (d)–(h) would generally go a long way to supporting a conclusion to release a prisoner on parole. The suggestion that the relative attention given to matters in favour of parole indicated that the Parole Board reached a conclusion about release and then went back and laid out reasoning to that conclusion, is without merit. In a matter of this seriousness, it is to be expected that the Parole Board would explain its favourable assessment of the relevant considerations with care. That does not mean that it reasoned to a pre-determined conclusion. 99 Secondly, this Court is concerned with whether the Commissioner committed jurisdictional error in departing from the decision of the Parole Board. The Commissioner did not find that the Parole Board had reasoned to a pre-determined conclusion. To suggest that it did so reason, in connection with a consideration of the questions reserved, does not assist. 100 The Attorney-General submitted that, at the very least, the difference in treatment of the gravity of the offending, when compared with the positive treatment of those factors supporting release, was ‘stark’. Accepting there is a basis for that general observation, it does not assist with whether the Parole Board erred in its treatment of the gravity of the offending. Having regard to the full context of the Parole Board’s treatment of the circumstances and gravity of the offending and its express reference to the sentencing judge’s remarks, in our view the impugned phrase did not represent a substitution of the Parole Board’s view of the gravity of the offending for that of the sentencing judge. 101 It follows that in our view, the Commissioner erred in finding that the Parole Board ‘underestimated the effect of the gravity of the criminal behaviour of Mr Vlassakis’. The Parole Board did not do so. 102 The Commissioner’s ultimate conclusion was: I find that because of the gravity of the offending as described above, with the fact that this is the first occasion on which parole is available, to release Mr Vlassakis at this relatively early stage would be a risk to the community. 103 This conclusion was dependent on the Commissioner’s finding about the Parole Board’s assessment of the gravity of the offending. However, for the reasons given, it was not open to the Commissioner to find that the Parole Board had underestimated the gravity of the offending. That finding was the basis for the Commissioner’s determination to depart from the Parole Board’s decision. The finding being wrong, it was incapable of amounting to or providing a foundation for cogent reasons to depart from the Parole Board’s decision. Having regard to that error, in our view the Commissioner did no more than substitute his view that the gravity of the offence was such that it would be a risk to the community to release Mr Vlassakis at the first opportunity for parole. -- 31 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 28 104 The error in characterising the Parole Board’s reasons was jurisdictional in that the Commissioner’s finding was incapable of amounting to cogent reasons to depart from the Parole Board’s decision. Plainly, it was also material, in that there was more than a realistic possibility that the decision to depart from that of the Parole Board could have been different if the error had not occurred.41 We would answer Question 3.1 as follows: 3.1 The Commissioner fell into jurisdictional error by departing from the decision of the Applicant in circumstances where his reasons for doing so were not capable of amounting to cogent reasons. Question 3.2: Did the Commissioner fall into jurisdictional error by impermissibly substituting his view of the circumstances and gravity of the offences for which the Prisoner was sentenced for the view expressed by the court in passing sentence in contravention of s 67(4)(c) of the Act? 105 The applicant’s submission in support of a positive answer to this question was relatively straightforward. The starting point was the self-evident proposition that in sentencing Mr Vlassakis, the judge must be taken to have formed the view that a non-parole period of 26 years was appropriate, taking into account, amongst other things, the gravity of the offending and the need to protect the community. 106 Section 67(4)(c) specifies the gravity of the offending as a relevant consideration on an application for parole. The applicant submitted, however, that the gravity of the offending could not, standing alone, justify a refusal to grant parole. That would amount to an extension of the minimum time to be spent in custody solely on the basis of the seriousness of the offence. That determination was a matter for the sentencing judge, not any parole authority. 107 The applicant submitted that the relevance of the gravity of the offending in any given case was, for this reason, necessarily informed by all the other relevant considerations specified by s 67(4) that must be taken into account by the decision- maker. For example, a prisoner’s aggressive or violent behaviour while in prison, a continuing drug addiction or propensity to violence, ongoing psychological or psychiatric conditions or a lack of adequate supports in the community can, when considered together with the gravity of the offending, inform an assessment of the risk to the community as required by s 67(3a). The gravity of the offending may heighten the risk profile supported by any of these other considerations. 108 The applicant complained, however, that the Commissioner relied on no such other consideration. The Commissioner did not identifiably accept the Attorney-General’s submissions that suggested there were problems with the applicant’s rehabilitation whilst in prison. He reminded himself that the protection of the public was the paramount concern. He then expressed himself to be concerned by the enormity of the crime. He continued: 41 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). -- 32 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 29 These were no normal crimes and without going into details, I adopt the recitation of the judge in his sentencing remarks as to what happened. There are certain aspects of the offending that concern me when considering parole at this early stage, being the first occasion after the completion of the non-parole period. It was argued, as a mitigating factor, that the question of the influence over him by Mr Bunting was important. However, this could not in any way, excuse crimes of this magnitude, nor has anyone sought to argue that and, of course, there is his relative youth and admissions of guilt and assistance. However, these offences were very evilly premeditated by everyone, they were violent, gross, and committed over a substantial period of time. There were certain aspects of these crimes that could be described as disgustingly unusual. 109 It was on this basis that the Commissioner then found that the Parole Board had underestimated the gravity of the criminal behaviour by Mr Vlassakis. He concluded, without referring to any other factor, that because of the gravity of the offending as he had described it, together with the fact that this was the first occasion when parole was available, to release Mr Vlassakis ‘at this early stage’ would be a risk to the community. 110 In those circumstances, the applicant submitted, the critical reasoning could be seen to reduce to the proposition that the gravity of the offending, without more, meant that Mr Vlassakis was a risk to the community, at least on the first occasion that parole was available. In the absence of any other relevant consideration contributing to the conclusion, this amounted to a view that the non-parole period was inadequate and should have been longer. However, s 67(4)(c) prohibits reasoning in that way, as to do so would necessarily be to depart from the judge’s view of the gravity of the offence. 111 The Attorney-General accepted that the prohibition in s 67(4)(c) extends to the Commissioner. He also accepted that it would be prohibited to reason that the offending was so abhorrent that the non-parole period was inadequate and that Mr Vlassakis must therefore not be released at the first opportunity on the expiry of the non-parole period. However, the Attorney-General submitted that the Commissioner could not be taken to have reasoned in this way. He relied on the following matters: • Mr Vlassakis had been assessed in 2021 as being at a moderate to high risk of reoffending; • he had not undertaken any further individualised violence intervention programs since that time; • he had returned positive drug tests while in prison; and • there were occasions when he had refused to provide urine samples. 112 These were the matters which the Commissioner recited as having populated the Attorney-General’s submissions on the chance of reoffending and Mr Vlassakis’ drug use record while in custody. However, the Commissioner did -- 33 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 30 not adopt these matters as contributing to the question of cogent reasons to depart from the Parole Board’s decision. 113 The Attorney-General also noted, correctly, that the Commissioner disavowed a punitive purpose in making his decision before expressing his concern about the enormity of the crime. The Attorney-General submitted: Contextually, [the Commissioner] cannot be understood as being motivated by a desire to resentence, or impose an additional punishment on, the Prisoner. Rather, the concern expressed by [the Commissioner] is that because of the enormity of the crimes, the Prisoner presents an ongoing risk to the community. The mandate contained in s 67(4)(c) to have regard to the circumstances and gravity of the offending exists because often the best indicator of future risk will be past conduct. (Emphases in original.) 114 We accept this submission. However, it does not answer the applicant’s fundamental complaint. This is that to rely solely on the gravity of the offending as the basis of the risk to the community is to conclude by implication that the gravity of the offending is such that the non-parole period was inadequate. The complaint is not what the Commissioner considered himself to be doing, but what the necessary effect of his reasoning was. 115 Had the Commissioner given any indication that he accepted the submissions of the Attorney-General that further treatment was required to ameliorate Mr Vlassakis’ risk of reoffending, that the Parole Board had underestimated Mr Vlassakis’ drug transgressions, or even that more information was required about Mr Vlassakis’ rehabilitation, the applicant’s contention, that the Commissioner had necessarily substituted a view of the gravity of the offending for that of the sentencing judge, would have been unsustainable. 116 It is necessary to be careful here. The primary purpose for sentencing pursuant to s 3 of the Sentencing Act 2017 (SA) is to protect the safety of the community, as it is on an application for parole, pursuant to s 67(3a) of the CS Act. However, at the time Mr Vlassakis was sentenced, the Criminal Law (Sentencing) Act 1988 (SA) was in force. There was no directly comparable ‘primary purpose’ provision, although s 10(1)(i) required the Court to have regard to the need to protect the community from the defendant’s criminal acts. That is, the need to protect the community has long been a consideration in the sentencing exercise. Section 10(1)(a) required the Court to have regard to the circumstances of the offence. Section 32 governed the setting of non-parole periods. Section 32(5)(c) provided: (c) a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of— (i) the gravity of the offence or the circumstances of the offence; … -- 34 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 31 117 In the context of the legislative framework in force at the time, the judicial exercise in setting the minimum non-parole period at 26 years took account of the gravity of the offending and had regard to the need to protect the community. At the end of that period, Mr Vlassakis was entitled only to apply for release on parole. As the High Court observed in Minogue v Victoria (‘Minogue’):42 Since at least the 1970s it has been recognised that there is a distinction between a judge exercising judicial power in sentencing, and the executive determining whether a person, still serving a sentence but eligible for release on parole, should be released on parole43. Once a person is sentenced, the exercise of judicial power is spent and the responsibility for the future release of the person while still under sentence passes to the executive branch of the government of the State44. (Footnotes in original.) 118 In Minogue, s 74AB of the Corrections Act 1986 (Vic) was inserted to apply specifically to Mr Minogue. Relevantly, it provided: (1) The Board must not make a parole order under section 74 or 78 in respect of the prisoner Craig Minogue unless an application for the order is made to the Board by or on behalf of the prisoner. (2) The application must be lodged with the secretary of the Board. (3) After considering the application, the Board may make an order under section 74 or 78 in respect of the prisoner Craig Minogue if, and only if, the Board − (a) is satisfied (on the basis of a report prepared by the Secretary to the Department) that the prisoner − (i) is in imminent danger of dying or is seriously incapacitated and, as a result, he no longer has the physical ability to do harm to any person; and (ii) has demonstrated that he does not pose a risk to the community; and (b) is further satisfied that, because of those circumstances, the making of the order is justified. 119 Mr Minogue’s challenge was based on the proposition that these provisions, impermissibly and contrary to Chapter III of the Constitution, imposed an additional or separate punishment to the punishment imposed by the Supreme Court at the time of sentencing by extending the non-parole period or by increasing the severity of the plaintiff’s punishment. The Court rejected the challenge, 42 (2019) 268 CLR 1 at [14]. 43 Power v The Queen (1974) 131 CLR 623 at 627; [1974] HCA 26; Bugmy v The Queen (1990) 169 CLR 525 at 534, 536; [1990] HCA 18; Leeth v The Commonwealth (1992) 174 CLR 455 at 471-472, 476, 490-491; [1992] HCA 29; Baker v The Queen (2004) 223 CLR 513 at 528 [29]; [2004] HCA 45; Elliott v The Queen (2007) 234 CLR 38 at 41-42 [5]; [2007] HCA 51; Crump (2012) 247 CLR 1 at 16-17 [27]-[28], 20-21 [41]-[42]; Knight (2017) 261 CLR 306 at 323 [28]. 44 Baker (2004) 223 CLR 513 at 528 [29]; Crump (2012) 247 CLR 1 at 16-17 [28], 20-21 [41], 26 [58], quoting Elliott (2007) 234 CLR 38 at 41-42 [5]. -- 35 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 32 describing the relationship between the judicial function of sentencing and the executive function of determining an application for parole, as follows:45 In the case of the plaintiff, at all times, there remained only one sentence46 − imprisonment for life. The fixing of the non-parole period of 28 years said nothing about whether the plaintiff would be released on parole at the end of that non-parole period47. It left his life sentence unaffected as a judicial assessment of the gravity of the offence committed48. Indeed, the plaintiff has no right to be released on parole and may be required to serve the whole of the head sentence49. At best, the non-parole period provided the plaintiff with hope of an earlier conditional release but always subject to and in accordance with legislation in existence at the time governing consideration of any application for parole50. Put in different terms, the fixing of a non-parole period does no more than provide a “factum by reference to which the parole system” in existence at any one time will operate51. (Emphasis added; footnotes in original.) 120 Section 74AB placed a greater onus on Mr Minogue to justify his release on parole than existed at the time he was sentenced, but that did not intrude on the judicial function:52 As this Court said in Crump and in Knight, legislative amendments to the parole system that impose “strict limiting conditions upon the exercise of the executive power to release” a prisoner, like those in s 74AB, “may be said to have altered a statutory consequence of the sentence” but such amendments do not impeach, set aside, alter or vary the legal effect of the sentence under which a prisoner suffers deprivation of liberty53. As the Court said in Knight in relation to the substantively identical provision to s 74AB, “[b]y making it more difficult for [the plaintiff] to obtain a parole order after the expiration of the minimum term, [the section] does nothing to contradict the minimum term that was fixed”54. (Footnotes in original.) 121 In the present case, Mr Vlassakis similarly has no right to be released on parole, nor even the benefit of a presumption in favour of parole. Rather, in considering his application for parole, the Parole Board and the Commissioner 45 Minogue v Victoria (2019) 268 CLR 1 at [16]. 46 Power (1974) 131 CLR 623 at 628-629; Lowe v The Queen (1984) 154 CLR 606 at 615; [1984] HCA 46; Crump (2012) 247 CLR 1 at 17 [28]. 47 Knight (2017) 261 CLR 306 at 323 [27]. 48 Crump (2012) 247 CLR 1 at 17 [28], quoting Lowe (1984) 154 CLR 606 at 615; see also at 616, 624. 49 PNJ v The Queen (2009) 83 ALJR 384 at 387 [11]; 252 ALR 612 at 615; [2009] HCA 6; Minogue (2018) 92 ALJR 668 at 674 [17]; 356 ALR 363 at 369. 50 See Bugmy (1990) 169 CLR 525 at 531, 536; Shrestha (1991) 173 CLR 48 at 69. 51 Crump (2012) 247 CLR 1 at 26 [60]; Minogue (2018) 92 ALJR 668 at 674 [17]; 356 ALR 363 at 369. See also Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 610 [73], 619 [108]; [2004] HCA 46. 52 Minogue v Victoria (2019) 268 CLR 1 at [19]. 53 Crump (2012) 247 CLR 1 at 19 [35]; see also at 19 [36], 26-27 [60], 29 [72], [74]; Knight (2017) 261 CLR 306 at 323-324 [28]-[29]. 54 (2017) 261 CLR 306 at 323-324 [29]. -- 36 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 33 were, respectively, required to take into account the relevant considerations specified in s 67(4) of the CS Act. 122 Section 67(4)(c) imposes a measure aimed at preventing the decision-maker from ‘alter[ing] or vary[ing] the legal effect of the sentence under which a prisoner suffers deprivation of liberty’. It recognises that for the parole authority to substitute a view of the gravity of the offending for that of the sentencing judge would transgress that prohibition. 123 We accept that the Commissioner relied on his view of the gravity of the offending to conclude that the risk to the community on release would be too great. We also accept that the gravity of the offending was relevant to an assessment of the risk to the community. Finally, we accept that the Commissioner did not describe the gravity of the offending in any materially different terms than those used by the sentencing judge. 124 The difficulty with the Commissioner’s reasons is that they located the risk to the community ‘at this relatively early stage’ only in the gravity of the offending. They offered no analysis of how that gravity operated as a risk factor, 24 years after sentencing. 125 To give an example, had the Commissioner taken into account the gravity of the offending as he did, and also relied on the 2021 report placing Mr Vlassakis in the moderate to high range for risk of general reoffending, he might have concluded that the gravity of the offending, when viewed in light of the fact that Mr Vlassakis retained a risk of reoffending, created an unacceptable present risk to the community. While that assessment might have been contestable, the applicant’s present complaint would not have been available. Alternatively, he may simply have considered that an updated report was required and explained what it needed to adduce. 126 The Commissioner did not describe the gravity of the offending in terms that could be said to have departed from the sentencing judge’s description. However, the view that he took of the gravity, so described, appears to have been that the gravity of the offending, alone, warranted Mr Vlassakis not being released on parole at the first opportunity. The lack of further explanation by reference to other relevant considerations might support a complaint of inadequate reasons. Taking the reasons on their face, however, we can only conclude that this amounted to a departure from the sentencing judge’s view of the gravity of the offending. By setting a non-parole period of 26 years, the judge had taken the view that the gravity of the offending, alone, was not a bar to Mr Vlassakis’ ‘hope of an earlier conditional release’.55 127 We would answer Question 3.2 as follows: 55 Minogue v Victoria (2019) 268 CLR 1 at [16]. -- 37 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 34 3.2 The Commissioner fell into jurisdictional error by impermissibly substituting his view of the gravity of the offences for which the Prisoner was sentenced for the view expressed by the Court in passing sentence in contravention of s 67(4)(c) of the Act. Proposed Question 4: Should the Court, in the exercise of its discretion, grant the relief sought by the Applicant? 128 It follows from our answers to Questions 3.1 and 3.2 that the Commissioner fell into jurisdictional error, first, in determining to set aside the Parole Board’s decision on the basis that there were cogent reasons to depart from it and, secondly, in determining to substitute his own decision to refuse Mr Vlassakis’ application for release on parole. Both errors were material. 129 The parties were at one in submitting that Proposed Question 4 was appropriate for referral and that it was appropriate for the Court to answer it. However, as the question contemplates, the relief sought by the applicant is discretionary. Whether the Court should grant the relief sought is not a question of law, but one of discretion. 130 Having said that, as the applicant submitted and the Attorney-General accepted, the Statement of Agreed Facts comprises the ‘universe’ of facts relevant to the exercise of the discretion to grant relief. 131 The jurisdiction of the Court of Appeal to hear and determine all questions of law referred to or reserved for its consideration is conferred by s 19B of the Supreme Court Act 1935 (SA) (‘Supreme Court Act’). Section 19D(a) of the Supreme Court Act then provides that in hearing and determining matters within the jurisdiction conferred by s 19B, the Court of Appeal has and may exercise any jurisdiction or powers that the Supreme Court has in its General Division. 132 In those circumstances, we do not think it is necessary or appropriate to fashion a further question of law to be reserved to the Court of Appeal. The applicant’s moving for the reservation of Proposed Question 4, as drafted, can be taken simply as an application for the Court of Appeal, acting pursuant to s 19D, to exercise the dispositive powers of relief that the General Division of the Court has on the Originating Application Review. 133 No party suggested that, in circumstances where Mr Vlassakis was joined as a party, the answers to Questions 3.1 and 3.2 would not exhaust the complaints of error made in the Statement of Facts, Issues and Contentions – Revision 1 that supported the Originating Application for Review. In circumstances where the parties also agree that the Statement of Agreed Facts establishes the entire evidential landscape relevant to the Originating Application for Review, it is appropriate that this Court determine the application for final relief, pursuant to s 19D of the Supreme Court Act. 134 The Attorney-General submitted that the Court should refuse any available relief in the exercise of its discretion. He submitted that the Commissioner having -- 38 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 35 ‘substituted’ a decision for that of the Parole Board, the Parole Board’s obligation to set ‘a date, not less than six months or more than one year after the date on which [it] refuses the application, before which the Parole Board will not accept any further application by the prisoner for release on parole’,56 must be taken to run from the date of the Parole Board’s decision on 5 August 2025. Section 67(9) of the CS Act provides: (9) The Board must, not more than 30 days after refusing an application by a prisoner for release on parole, notify the prisoner in writing of— (a) its refusal; and (b) the reasons for its refusal and of any matters that might assist the prisoner in making any further application for parole; and (c) a date, not less than six months or more than one year after the date on which the Board refuses the application, before which the Board will not accept any further application by the prisoner for release on parole. 135 The obligation of the Parole Board under paragraph (c) is not expressly to set a date, although that is implicitly incorporated. It is to notify the prisoner of the date. In any event, the Attorney-General submitted that the effect of the Commissioner having substituted his decision for the Parole Board’s, which should therefore be taken to have been made on 5 August 2025, is that Mr Vlassakis could make a fresh application for parole immediately, with the permission of the Parole Board. The difficulty with this is that the Parole Board has not notified Mr Vlassakis of a date before which it will not accept any further application, because it granted parole. The implication of futility for which the Attorney-General contended is contingent on the Parole Board acting in a way different to the course it has already proposed to the applicant. 136 Even if the Attorney-General’s construction of s 67(9)(c) were accepted (on which we express no view) and it could be assumed that the Parole Board would communicate its immediate acceptance of a fresh application, that would not render the relief futile. The substantive relief sought on the Originating Application for Review is an order in the nature of certiorari setting aside the decision of the Commissioner. The effect of that would be to remit the matter to the Commissioner for determination of the Attorney-General’s application for review according to law.57 137 On a grant of relief, the position would be that the Parole Board’s decision to release Mr Vlassakis on parole remains in force and subject to the Attorney-General’s application for review. A refusal to grant relief would therefore put Mr Vlassakis in a materially worse position than he would be in if relief was granted, in that he would not have the benefit of the Parole Board’s 56 CS Act, s 67(9)(c). 57 As it happens, the office of Commissioner is now occupied by a different individual. No question of apprehended bias would arise on account of the Commissioner having made the review decision, such as might require the appointment of an Acting Commissioner pursuant to s 77C of the CS Act. -- 39 of 48 -- [2026] SASCA 67 Livesey P and Bleby JA 36 decision. Even assuming that any fresh decision of the Parole Board would be in Mr Vlassakis’ favour, that would be subject to the jeopardy of the Attorney-General’s capacity to make a fresh application for review. 138 We would exercise the power of this Court pursuant to s 19D(a) of the Supreme Court Act to grant the relief sought on the Originating Application for Review. we would make an order in the nature of certiorari setting aside the decision of the Commissioner and remitting the Attorney-General’s application for review of the decision of the Parole Board to the Parole Administrative Review Commissioner, for determination according to law. Conclusion 139 We would answer the questions reserved as follows: 3.1 The Commissioner fell into jurisdictional error by departing from the decision of the Parole Board in circumstances where his reasons for doing so were not capable of amounting to cogent reasons. 3.2 The Commissioner fell into jurisdictional error by impermissibly substituting his view of the gravity of the offences for which the Prisoner was sentenced for the view expressed by the Court in passing sentence in contravention of s 67(4)(c) of the Act. 140 We would decline to reserve Proposed Question 4. However, exercising the jurisdiction of this Court pursuant to s 19D of the Supreme Court Act, we would make an order in the nature of certiorari setting aside the decision of the Commissioner and remitting the Attorney-General’s application for review of the decision of the Parole Board, to the Parole Administrative Review Commissioner, for determination according to law. 141 S DOYLE JA: I have had the advantage of reading the joint reasons of Livesey P and Bleby JA. I gratefully adopt their Honours’ summary of the background to the case stated to this Court, including the terms defined in their reasons. 142 As explained by their Honours, it is only necessary for this Court to consider Questions 3 and 4: 3. Did the Commissioner fall into jurisdictional error by: 3.1 failing to give due weight to the decision of the [Parole Board] and/or departing from the decision of the [Parole Board] without cogent reasons for doing so?; and/or 3.2 impermissibly substituting his view of the circumstances and gravity of the offences for which the Prisoner was sentenced for the view expressed by the court in passing sentence in contravention of s 67(4)(c) of the [Correctional Services Act 1982 (SA) (‘the CS Act’)]? 4. Should the Court, in the exercise of its discretion, grant the relief sought by the [Parole Board]. -- 40 of 48 -- [2026] SASCA 67 S Doyle JA 37 143 In their joint reasons, Livesey P and Bleby JA have proposed that Questions 3.1 and 3.2 both be answered in the affirmative: 3.1 The Commissioner fell into jurisdictional error by departing from the decision of [the Parole Board] in circumstances where his reasons for doing so were not capable of amount to cogent reasons. 3.2 The Commissioner fell into jurisdictional error by impermissibly substituting his view of the gravity of the offences for which the Prisoner was sentenced for the view expressed by the Court in passing sentence in contravention of s 67(4)(c) of [the CS Act]. 144 Their Honours would decline to reserve proposed Question 4, but would make an order in the nature of certiorari setting aside the decision of the Commissioner, and remitting the Attorney-General’s application for review of the decision of the Parole Board to the Commissioner for determination according to law. 145 I agree generally with their Honours’ reasoning in relation to the issues raised by Question 3.1. I propose merely to make some observations in relation to the standard of the administrative review to be undertaken by the Commissioner under s 67 of the CS Act, and to explain why, in my view, the question should be answered ‘yes’. 146 However, I have reached a different conclusion in relation to the issue raised by Question 3.2, and would answer that question in the negative. I do not consider that the Commissioner’s reasons for setting aside the Parole Board’s decision involved any departure from the sentencing judge’s view of the circumstances or gravity of the Prisoner’s offending in contravention of s 67(4)(c) of the CS Act. 147 By way of summary of my reasons, it is apparent that the Commissioner took the view that the Parole Board ‘understated’, and ‘underestimated the effect of’, the gravity of the Prisoner’s offending, and that this was his basis for setting aside the Parole Board’s decision to release the Prisoner on parole, and substituting his own decision to refuse the Prisoner’s application for parole. As reflected in my proposed affirmative answer to Question 3.1, I do not accept that this was a cogent reason to set aside the Parole Board’s decision. To the extent that the Commissioner’s decision was predicated upon a conclusion that the Parole Board departed from the sentencing judge’s view of the gravity of the Prisoner’s offending, I do not agree. Alternatively, to the extent that the Commissioner relied merely upon his view that the gravity of the offending ought to have weighed more heavily against release on parole, then the Commissioner erred in simply substituting his own view for that of the Parole Board without identifying a cogent reason for doing so. 148 However, in attaching greater weight to the gravity of the offending than the Parole Board in determining the appropriateness of parole, I do not consider that the Commissioner went as far as departing from the sentencing judge’s view of the -- 41 of 48 -- [2026] SASCA 67 S Doyle JA 38 gravity of that offending. Rather, the Commissioner accepted that view of the gravity of the offending, but considered that the Parole Board underestimated the effect of this gravity in the sense that it did not attach sufficient weight to this consideration in assessing the risk to the community in releasing the Prisoner. As reflected in my affirmative answer to Question 3.1, this did not provide a basis for setting aside the Parole Board’s decision. But it did not involve any independent error warranting an affirmative answer to Question 3.2. 149 I agree with the approach to Question 4 proposed in the joint reasons. Q3.1 – cogent reasons and the standard of administrative review by the Commissioner The standard of review 150 The Commissioner’s review of a decision of the Parole Board is pursuant to s 77E of the CS Act. The terms of this provision are set out in the joint reasons. It provides for a review on the evidence or material before the Parole Board, but with a discretion to admit further evidence or material (s 77E(3)). The Commissioner is not bound by the rules of evidence, may inform himself as he sees fit, and must act according to equity, good conscience and substantial merits of the case (s 77E(4)). Importantly for present purposes, the Commissioner is required to give ‘due weight’ to the Parole Board’s decision and reasons, and is not to depart from the decision except for ‘cogent reasons’ (s 77E(5)). 151 Read as a whole, s 77E provides for a bespoke form of merits-based administrative review by the Commissioner, with the standard of review, or the standard for intervention, being cogent reasons to depart from the decision under review, after giving due weight to the decision and the reasons for it. 152 The requirements that the hearing take place on the evidence or material before the Parole Board (subject to a discretion to receive further evidence or material), and that the Commissioner give due weight to the Parole Board’s decision and reasons, make it plain that the Commissioner’s review is not a de novo hearing. The Commissioner’s task is not simply to reach his own view on his own consideration of the evidence or material. 153 Further, the requirement that the Commissioner not depart from the Parole Board’s decision without ‘cogent reasons’ for doing so suggests that more is required to justify intervention (by departing from the decision under review) than that the Commissioner reaches a different view to the view reached by the Parole Board. It may aptly be described as a form of merits-based review, given that it involves more than a review of the lawfulness of the decision. But the standard of review is higher than, for example, the ‘correct and preferable decision’ standard that applies in the context of some other mechanisms for administrative review, including an internal review by the South Australian Civil and Administrative -- 42 of 48 -- [2026] SASCA 67 S Doyle JA 39 Tribunal,58 or review by the Administrative Review Tribunal.59 In the context of that standard, it has been held that the standard of review does not necessarily require the identification of legal error. It is enough that the Tribunal reaches a view that a different outcome is preferable.60 154 To adopt the language of Stanley J in Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2),61 the use of the adjective ‘cogent’ suggests that the reasons for intervention must be compelling, convincing or powerful. It seems to me that this requires something more than a different view as to the weight to be afforded to particular considerations, or even a different view as to the appropriate outcome. This requirement of a reason with greater intensity than a mere preference or different view is consistent with the legislative care that has been taken to ensure that the Parole Board is comprised of members with an appropriate breadth of expertise and experience.62 155 In determining what more may be required to justify intervention, I am not persuaded that there is any textual or other basis for directly importing the strictures of judicial review or appellate review. In Commissioner for Consumer Affairs v McMurray,63 Blue J considered the equivalently worded standard of review (‘cogent reasons’) applicable in the Administrative and Disciplinary Division of the District Court under s 42E of the District Court Act 1991 (SA). His Honour suggested an approach which, in effect, adopted the standard of deference applicable to an ordinary appeal by way of rehearing;64 or was predicated upon at least establishing error of a type that would suffice upon such an appeal.65 In my view, this approach is difficult to reconcile with the statutorily prescribed standard of ‘cogent reasons’, as reflected in the Second Reading Speech on the introduction of s 42E.66 Even if it might be justified as applying by implication in that context, given the legislative choice of a curial body to conduct the review 58 See South Australian Civil and Administrative Tribunal Act 2013 (SA), s 70(5), which requires that the Tribunal, after giving ‘appropriate weight’ to the decision of the Tribunal at first instance, reach the ‘correct or preferable decision’: see Henderson v South Australian Housing Trust (2024) 145 SASR 111 at [22] (Lovell JA, Doyle JA and Kimber AJA), applying Re AKS [2016] SACAT 19 at [35] (Parker P). 59 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 (Bowen CJ and Deane J). 60 Henderson v South Australian Housing Trust (2024) SASR 111 at [22] (Lovell JA, Doyle JA and Kimber AJA), applying Re AKS [2016] SACAT 19 at [35] (Parker P). 61 Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72 at [315] (Stanley J, Gray J agreeing), addressing the reference to ‘cogent reasons’ in s 42E(3) of the District Court Act 1991 (SA). 62 CS Act, s 55(3). 63 Commissioner for Consumer Affairs v McMurray (2017) 128 SASR 1 at [41]-[47] (Blue J, Parker J agreeing); see also at [82]-[84] (Hinton J). 64 Albeit without acknowledging the breadth of application of the standard of correctness recognised in more recent decisions of the High Court and this Court. 65 Noting that Blue J added (at [45]) that in the case of process error, the applicant may also need to establish that there would have been a different outcome; and that Hinton J added (at [84]) that the error asserted must demonstrate convincingly that had the original decision-maker proceeded correctly, it would have arrived at a different conclusion. 66 See the relevant extract in the joint reasons at [57]. -- 43 of 48 -- [2026] SASCA 67 S Doyle JA 40 under s 42E and the statutory description of that review as an ‘appeal’, I do not accept that its direct application can be justified in the case of a ‘review’ by the non-curial Commissioner under s 77E of the CS Act. 156 That said, in the practical working out of whether there are cogent reasons to depart from a discretionary decision of the Parole Board, it may be that some assistance can nevertheless be gleaned from the approach taken to the identification of error in the context of judicial review or the appellate review of discretionary decisions. For example, as pointed out in the joint reasons, it may be that demonstration of error in the sense contemplated by House v The King67 will ordinarily provide a cogent reason for intervention in the case of a discretionary decision. But I would not go quite so far as to equate cogent reasons with the need to find error in the sense contemplated by House v The King. 157 Some very general assistance may also be gleaned from the approach taken to the identification of ‘compelling reasons’ for an intermediate appellate court to depart from an earlier decision of a court of co-ordinate jurisdiction. In that context, it has been said that ‘compelling reasons’ requires more than a difference of view about a conclusion in respect of which reasonable minds may differ. It requires a strong conviction that the earlier decision was erroneous, as opposed to a choice of approach which was open. It requires an error which can be demonstrated with a degree of clarity.68 However, given the quite different context in which that field of legal discourse has emerged, it is doubtful that the analogy is of much practical assistance in determining whether a reason for departure from a decision of the Parole Board has the requisite cogency. 158 In any event, it is appropriate to caution against any approach which involves placing a gloss on the legislative description of ‘cogent reasons’ as the standard of review, or at least the standard by which departure from the decision under review may be justified. The existence of ‘cogent reasons’ to depart from a decision under review requires more than a mere preference or difference of view as to the weighting of relevant considerations, or as to the outcome. It requires a compelling, convincing or powerful reason to depart from that decision. But it is difficult to be any more prescriptive as to what may be required to justify intervention upon review by the Commissioner. 159 For completeness, I would add that intervention under s 77E of the CS Act does not expressly require that Commissioner find ‘error’ on the part of the Parole Board. Whilst intervention by the Commissioner will ordinarily be predicated upon a finding of error, it may be that the protean nature of the concept of error means that it does not assist the analysis. Insofar as ‘error’ connotes merely that the Commissioner has reached a different view to the Parole Board, then error would be a requirement of intervention. But it would not be a sufficient basis for 67 House v The King (1936) 55 CLR 499 at 504-5 (Dixon, Evatt and McTiernan JJ). 68 Totaan v R (2022) 108 NSWLR 17 at [72] (Bell CJ, Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing); Pallas v Lendlease Corporation Ltd (2024) 114 NSWLR 81 at [19]-[23] (Bell CJ), [138] (Gleeson JA), [139]-[140] (Leeming JA), [160] (Stern JA). -- 44 of 48 -- [2026] SASCA 67 S Doyle JA 41 intervention. It would remain necessary to determine whether the error is of a type or intensity sufficient to provide a cogent reason to depart from the decision below. Alternatively, insofar as the label ‘error’ is used in some other sense (for example, when referring to error in the sense required by House v The King) it may be unhelpful as connoting or importing a standard of review other than cogent reasons. Jurisdictional fact 160 As observed in the joint reasons, the parties proceeded on the basis that ‘cogent reasons’ places a jurisdictional limit on the powers of the Commissioner. However, an additional issue emerged between the parties as to whether ‘cogent reasons’ was: (i) a bare jurisdictional fact, in the sense that the existence of cogent reasons is an objective fact or state of affairs to be determined by the court in the case of judicial review of a decision of the Commissioner; or (ii) a jurisdictional fact which involves a state of mind, namely that the Commissioner is satisfied, or of the opinion, that there exist cogent reasons. 161 To the extent that the existence of cogent reasons is a jurisdictional fact, for the reasons given by Livesey P and Bleby JA, I am not persuaded that it is a jurisdictional fact which involves the state of mind of the Commissioner. It is a fact or matter capable of objective determination. However, I am not persuaded it is helpful to speak of ‘cogent reasons’ as a jurisdictional fact at all. In my view, the requirement that there exist ‘cogent reasons’ is simply part of the statutory formulation of the power to be exercised by the Commissioner, rather than a factual reference that is relevantly preliminary or ancillary to the exercise of that power.69 Indeed, it is an expression of the standard of review by reference to which the power is to be exercised. 162 That said, whether or not the existence of cogent reasons is aptly described as a jurisdictional fact does not seem to me to be of much practical significance. Regardless of whether it is properly characterised as a jurisdictional fact, it is nevertheless the case that the Commissioner was not empowered to depart from the decision of the Parole Board (by setting it aside) without cogent reasons for so doing. In my view, the existence of cogent reasons is capable of objective determination. The Commissioner’s reasons for departing were either cogent or they were not. It follows that, on a judicial review of the Commissioner’s decision for jurisdictional error, the issue is whether the Commissioner’s reasons for departing from the Parole Board’s decision were or were not cogent reasons, rather than whether his reasons were capable of amounting to cogent reasons. No cogent reasons for intervention 163 I agree with the reasons of Livesey P and Bleby JA for concluding that the Parole Board did not depart from the sentencing judge’s view of the gravity of the 69 Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 at [39]-[44] (Spigelman CJ, Mason P and Meagher JA agreeing). -- 45 of 48 -- [2026] SASCA 67 S Doyle JA 42 Prisoner’s offending in contravention of s 67(4)(c) of the CS Act. To the extent that the Commissioner suggested otherwise, he fell into error. 164 That said, it is not clear to me that that is what the Commissioner meant by his references to the Parole Board having ‘understated’, and having ‘underestimated the effect of’, the gravity of the Prisoner’s offending. It is true that the Commissioner’s reference to the Parole Board having ‘understated’ the gravity was a reference to the Parole Board having described the offending in terms which did not adequately encapsulate the gravity of the offending as set out by the sentencing judge. However, the reference to the Parole Board having ‘underestimated the effect of’ the gravity of the Prisoner’s offending was located in the concluding and operative passage of the Commissioner’s reasons, and seems to have been directed towards a different issue. Emphasising the Commissioner’s reference to the effect of the gravity of the offending, it seems to me that the Commissioner’s operative reason for departing from the Parole Board’s decision was not that it had departed from the sentencing judge’s view of the gravity of the offending in contravention of s 67(4)(c) of the CS Act. Rather, his reason for departing from the Parole Board’s decision was that it had not attached sufficient weight to the effect of the gravity of the offending upon the risk to community safety associated with the Prisoner’s release on parole. 165 However, even accepting this construction of the Commissioner’s reasons, I do not accept that it involved a cogent reason to depart from the Parole Board’s decision. As I have explained, a mere difference in view as to the weight to be attached to a particular consideration relevant to the parole decision was not sufficient to establish cogent reasons for the purposes of s 77E(5) of the CS Act. 166 For the reasons I have set out, I would answer Question 3.1 ‘yes’. Q3.2 – the gravity of the Prisoner’s offending 167 The issue raised by Question 3.2 is whether the Commissioner substituted his view of the gravity of the Prisoner’s offending for that of the sentencing judge in contravention of s 67(4)(c) of the CS Act. 168 As set out in the joint reasons, it is to be accepted: that the Commissioner relied on his view of the gravity of the offending to conclude that the risk to the community on the Prisoner’s release would be too great; that the gravity of the offending was relevant to an assessment of the risk to the community; and that the Commissioner did not describe the gravity of the offending in any materially different terms than those used by the sentencing judge. 169 However, as I understand the argument in favour of an affirmative answer to Question 3.2, it is that because the only matter expressly relied upon by the Commissioner in finding cogent reasons to depart from the decision of the Parole Board was his view that it had underestimated the effect of the gravity of the offending, it can be inferred that the Commissioner departed from the sentencing judge’s view of the gravity of the offending. It is further argued that the -- 46 of 48 -- [2026] SASCA 67 S Doyle JA 43 Commissioner’s references to a concern about releasing the Prisoner on parole ‘at this early stage’, or on ‘the first occasion on which parole is available’, are supportive of this construction of the Commissioner’s reasons, and indeed indicative of an approach which was tantamount to challenging the adequacy of non-parole period of 26 years set by the judge. 170 I do not read the Commissioner’s reasons in this way. It is true that the Commissioner’s different view as to the effect of the gravity of the offending upon the risk to the community was the only matter he relied upon as a cogent reason to depart from the Parole Board’s decision. As I have already explained, in answering Question 3.1, I do not think this difference in view was a cogent reason for departing from that decision. However, it does not follow from the fact that his different view of the gravity of the offending was the only reason that the Commissioner gave for reaching a different decision to the Parole Board, that this was the only matter he took into account in deciding that the Prisoner should not be released on parole. To the contrary, it can be safely inferred from a reading of his reasons as a whole that the Commissioner reached the conclusion he did having regard to an assessment of all of the considerations relevant to the risk to the community, as required by s 67(4) of the CS Act, and as canvassed in the reasons of the Parole Board and the Commissioner. These considerations included that the Prisoner had been assessed in 2021 as having a moderate to high risk of reoffending, that he had not undertaken any further programs since that time, that he had returned positive drug tests while in prison, and that there were occasions when he refused to provide urine samples. Although the Commissioner was not persuaded that any of these matters provided a cogent reason for departing from the Parole Board’s decision, they nevertheless formed part of the context in which the Commissioner assessed the significance of his different view as to the effect of the gravity of the offending upon the appropriateness of releasing the Prisoner on parole. 171 In any event, even accepting that the Commissioner regarded the gravity of the Prisoner’s offending as the most important consideration, or even the only significant consideration, it does not follow that his Honour departed from the sentencing judge’s view of the gravity of the offending. The non-parole period set by the sentencing judge was merely the minimum period to be served before, in the judge’s assessment, the prisoner should become eligible for parole. It did not create any presumptive or prima facie entitlement to parole. Nor was the effect of the gravity of the Prisoner’s offending spent upon the expiration of his non-parole period. The gravity of that offending continued to inform the risk to the community should the Prisoner be released on parole. 172 It is true that the effect of the gravity of the offending, and the risk to the community, fell to be considered in the context of any evidence as to the Prisoner’s behaviour and rehabilitation. But it cannot be said that, upon the expiration of his non-parole period, the Prisoner was entitled to parole in the absence of a report or some other clear evidence indicating the inappropriateness of his release on parole. There was no legal barrier to the Commissioner reasoning to the effect that, despite -- 47 of 48 -- [2026] SASCA 67 S Doyle JA 44 the non-parole period having passed, the gravity of the Prisoner’s offending was such that some further information or assurance about the Prisoner’s rehabilitation was required before it could be concluded that the Prisoner’s release on parole was consistent with the paramountcy to afforded to the safety of the community. Reasoning in this way did not necessarily or inherently involve any departure from the sentencing judge’s view of the gravity of the offending in contravention of s 67(4)(c). Understood in this way, the Commissioner’s references to the application for release on parole being made ‘on the first occasion’ or ‘early’ were merely a recognition that the period of eligibility for parole had only recently commenced and that the assessment of the risk to the community, and the weighting of the considerations under s 67(4) of the CS Act, may change with not only further information but also over time. 173 In summary, it was not inherent in the Commissioner’s reliance upon his view that the Parole Board underestimated the effect of the gravity of the Prisoner’s offending that his Honour departed from sentencing judge’s view of that gravity in contravention of s 67E(4)(c) of the CS Act. The difficulty with the Commissioner’s approach was not that the Commissioner sought to depart from the sentencing judge’s view of the gravity of the offending. It was that the Commissioner did not identify a cogent reason for departing from the Parole Board’s decision. 174 I would answer Question 3.2 ‘no’. Conclusion 175 For the reasons given, I would answer the questions stated to this Court as follows: Question 3.1 Yes Question 3.2 No 176 I would also join with Livesey P and Bleby JA in declining to reserve Question 4, but nevertheless making the order their Honours have proposed. -- 48 of 48 --