NR v THE PAROLE BOARD OF SOUTH AUSTRALIA [2025] SASC 151

Applicant: NR Counsel: MR S LONG - Solicitor: ALEX SCOTT – BARRISTER AND SOLICITOR Respondent: THE PAROLE BOARD OF SOUTH AUSTRALIA Counsel: MR B GRANT - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 24/07/2025, 04/09/2025 File No/s: CIV-25-007614 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) 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. NR v PAROLE BOARD OF SA [2025] SASC 151 Judgment of the Honourable Justice McIntyre 9 September 2025 ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW STATUTES - ACTS OF PARLIAMENT - INTERPRETATION This is an application for judicial review of certain decisions of the Parole Board of South Australia (the Parole Board). The applicant is alleged, on two occasions, to have breached conditions of his parole. The breaches are contested. Subsequent to the second alleged breach, the applicant was remanded into custody by the Parole Board pursuant to s 76 of the Correctional Services Act 1982 (SA). The applicant was interviewed in relation to the breaches and remains in custody pending a decision of the Parole Board. Relevantly, the applicant is also on bail, granted by the Magistrates Court, for related offending. The applicant seeks to review these decisions and other conduct of the Parole Board on eight grounds. Grounds one, six and seven were abandoned. The applicant seeks an order of certiorari and to be released from custody. The respondent contends that its decisions were valid and complied with the purpose of the CSA. Held, dismissing the application: 1. Ground 2 is rejected. The tests prescribed by the Bail Act 1985 (SA) and the CSA are fundamentally different. There were reasonable grounds for suspicion that the applicant had breached his parole conditions. 2. Grounds 3 and 4 are rejected. The powers of the Parole Board to compel a person to attend before it, be sworn or affirmed and to answer questions does not undermine the applicant’s right to silence or privilege against self-incrimination. 3. Ground 5 is rejected. The applicant was aware of the essential features of the respondent’s inquiry such that there was no procedural unfairness. -- 1 of 15 -- 4. Ground 8 is rejected. Section 76 of the CSA permits continued detention until the proceedings before the Parole Board are complete. Bail Act 1985 (SA) s 17; Correctional Services Act 1982 (SA) ss 3, 63, 67, 73, 74, 74AAA, 76, referred to. Hammond v The Commonwealth (1982) 152 CLR 188; X7 v The Australian Crime Commission (2013) 248 CLR 92; Lymberopoulos v Police [2006] SASC 360; Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539; Al-Kateb v Godwin (2004) 208 ALR 124; Vansetten v The State of South Australia [2020] SASC 272 ; NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs and Anor (2023) 280 CLR 137; Chu Khen Lim v Minister for Immigration, Local Government and Ethnic Affairs and Anor (1992) 110 ALR 97, considered. -- 2 of 15 -- NR v PAROLE BOARD OF SA [2025] SASC 151 Civil: Application McINTYRE J: 1 By way of an originating application filed on 26 June 2025, the applicant seeks to review certain decisions of the Parole Board of South Australia (‘Parole Board’). The application is accompanied by an affidavit filed on 26 June 2025 and statement of facts, issues and contentions filed on 26 June 2025 and subsequently amended on 14 July 2025. 2 For the reasons that I now deliver, I dismiss the application for review. I will hear the parties as to costs. Background 3 On 6 September 2022, the applicant was sentenced in the District Court of South Australia to four years and five months imprisonment with a non-parole period of two years and two months, backdated to 7 June 2021, for drug trafficking charges committed between February to May 2016. 4 On 6 August 2023, the applicant’s non-parole period expired and on 14 May 2024 the applicant was granted parole. His release was subject to various conditions. These included that he not commit any offence and that he not use, possess or administer any illicit drug. The applicant is also charged with other offences which have yet to be determined. Bail was granted for those offences on 27 April 2023. His bail conditions include a drug condition similar to his parole condition. 5 On or about 28 May 2024, the applicant was prescribed medicinal cannabis of 25 grams of cannabis per month with a THC content of 21 to 28 percent. As required, he notified the Department for Correctional Services (‘DCS’) about this prescription. 6 On 2 April 2025, the applicant provided a urine sample to DCS (‘sample one’). Sample one was tested by SA Pathology on 15 April 2025 and found to contain benzoylecgonine. This finding is indicative of recent cocaine use. As a result, the applicant was arrested on 17 April 2025 and charged with breaching his bail agreement, contrary to s 17 of the Bail Act 1985 (SA) (‘the Bail Act’). He was refused police bail but granted bail by a Magistrate on 17 April 2025 on the basis that he was contesting the sample and consequent breach. On the same day the Parole Board issued a summons for the applicant to be interviewed on suspicion of breaching his Parole conditions arising from the sample one test results. 7 On 9 May 2025, the applicant provided a urine sample to DCS (‘sample two’). On 16 May 2025, sample two was tested by SA Pathology and the results indicated that the sample contained gamma-hydroxybutyrate, commonly -- 3 of 15 -- [2025] SASC 151 McIntyre J 2 known as GHB or Fantasy. The applicant was arrested on 16 May 2025 and charged with a further breach of his bail agreement. He was again refused police bail. He was granted bail later the same day by a Magistrate on the basis that the applicant was contesting the sample and consequent breach. 8 On 16 May 2025, the applicant’s community corrections officer forwarded a report to the Parole Board recommending that a warrant be issued for the applicant’s arrest due to continued drug use and the risk that this posed to the community. On 17 May 2025, the Parole Board made a decision to cancel the summons for the applicant to attend the Parole Board for interview and, on 19 May 2025, a warrant was issued for the arrest of the applicant under s 76 of the Correctional Services Act 1982 (SA) (‘the CSA’). 9 On 19 May 2025, the applicant was arrested on the warrant and remanded in custody with an interview set for 16 July 2025. On 20 May 2025, the applicant’s solicitor wrote to the Parole Board requesting disclosure of the applicant’s previous SA Pathology results. That application was refused on 28 May 2025. On 30 May 2025, the solicitor for the applicant wrote to the respondent seeking production of the saliva test taken at the same time as sample two. That request was refused on 2 June 2025. 10 On 12 June 2025, the applicant’s solicitor wrote to the respondent providing written submissions seeking that the warrant be withdrawn or the interview expedited. These submissions were supported by a report from Professor White of the same date. On 17 June 2025, the Parole Board resolved that the applicant was to remain in custody but moved the interview date from 16 July 2025 to 8 July 2025. 11 On 8 July 2025, the applicant was interviewed by the respondent in relation to the alleged breaches. The applicant, who was legally represented, advised that the breaches were contested and outlined the basis of the contest. The Parole Board resolved to defer a decision on the alleged breaches of parole pending further information from SA Pathology. The Parole Board also determined not to proceed with consideration of the breach alleged as a result of the two charges of breach of bail until those charges were finalised in Court. The application The decisions 12 The applicant seeks to review four decisions of the Parole Board as follows: • The decision to cancel the summons and issue a warrant made on 17 and 19 May 2025. (Decision 1) • The decision to interview the applicant in relation to two urine test results which are each said to breach the applicant’s parole conditions -- 4 of 15 -- [2025] SASC 151 McIntyre J 3 whilst those results are the subject of pending criminal proceedings in the Magistrates Court. (Decision 2) • The decision to refuse to provide the applicant’s previous urine tests from the date he was granted parole on 14 May 2024 to the date of his arrest on 19 May 2025 and to refuse to provide results of a saliva test taken on 9 May 2025. (Decision 3) • The decision that the applicant remain in custody pending interview by the Parole Board. (Decision 4) Grounds of review 13 The applicant no longer maintains grounds one, six and seven. Accordingly, those grounds will be dismissed. The remaining grounds are maintained noting that there is some overlap between grounds three and four. The remaining grounds are, briefly stated, as follows: • Ground two: the applicant contends that decision one, to issue the warrant, was an impermissible interference with judicial power in that the applicant had previously been granted bail by the Magistrates Court for offences arising out of the same conduct. • Grounds three and four: the applicant contends that Decision 2, requiring him to participate in a Parole Board interview and answer questions about matters that are currently before the Magistrates Court, is a jurisdictional error as it undermines his fundamental rights as an accused person in a criminal trial. He contends further that any interview or decision by the Parole Board ought to be deferred pending the outcome of criminal proceedings. • Ground five: the applicant complains of the Parole Board’s refusal to provide previous urine and saliva tests and says further that the reasons for refusal were inadequate. • Ground eight: the applicant contends that Decision 4, to remand the applicant in custody pending an interview by the Parole Board, was an error at law. It is contended that the authority of the warrant for the applicant’s continued detention ceased once he was “brought before the Board”. 14 I will deal with each of the grounds of review in turn but first I will set out the applicable legislation. Legislation 15 The powers of the Parole Board are set out in s 67 of the CSA, which relevantly provides as follows: -- 5 of 15 -- [2025] SASC 151 McIntyre J 4 67—Release on parole by application to Board (1) This section applies to a prisoner if— (a) section 66 does not apply to the prisoner; and (b) a non-parole period has been fixed for the prisoner; and (c) the prisoner is not serving a sentence of indeterminate duration. (2) … (3) An application cannot be made under subsection (1) more than six months before the expiration of the non-parole period fixed in respect of the prisoner's sentence. (3a) The paramount consideration of the Board when determining an application under this section for the release of a prisoner on parole must be the safety of the community. (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 -- 6 of 15 -- [2025] SASC 151 McIntyre J 5 (g) the probable circumstances of the prisoner after release from prison or home detention; and (h) any other matters that the Board thinks are relevant. … 16 Section 74 sets out the actions that the Parole Board may take for breach of parole conditions. The matters relevant for present purposes are as follows: 74—Board may take action for breach of parole conditions (1) If the Board is satisfied that— (a) in the case of a person released on parole who is serving a sentence of life imprisonment—the person has, while on parole, breached a condition of the parole; or (b) in the case of any other person released on parole—the person has, while on parole, breached a condition of the parole that is constituted by the commission of an offence or that is, in the opinion of the Board, a serious breach, the Board may, by order, direct that the person serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which the person was on parole, being the balance unexpired as at the day on which the breach was committed. (1a) Subsection (1) applies notwithstanding that, at the time of finding the breach proved, the parole has expired or been discharged. … 17 The parties also directed my attention to aspects of s 74AAA as follows: 74AAA—Board may suspend release on parole or take other action for certain breaches of parole conditions (1) If the Board is satisfied that a person who has been released on parole (not being a person serving a sentence of life imprisonment) has, while on parole, breached a condition of the parole (other than a breach of a kind referred to in section 74(1)(b)), the Board may, by order— (a) direct that the person serve in prison a period of their remaining balance that the Board considers appropriate, but not exceeding— (i) the period between the day on which the breach occurred and the date of expiry of the parole; (ii) or 6 months, whichever is the lesser; or (b) vary the conditions of, or impose further conditions on, the person's release on parole. -- 7 of 15 -- [2025] SASC 151 McIntyre J 6 (2) Subsection (1)(a) applies despite the fact that, at the time of finding the breach proved, the parole has expired or been discharged. … 18 Apprehension of parolees on a Parole Board warrant is governed by s 76 of the CSA which provides as follows: 76—Apprehension etc of parolees on Board warrant (1) If the presiding member or deputy presiding member of the Board suspects on reasonable grounds that a person who has been released on parole may have breached a condition of parole, the presiding member or deputy presiding member may— (a) summon the person to attend before the Board; or (b) for the purpose of bringing the person before the Board, issue a warrant for the arrest of the person. (2) If a member of the Board (other than the presiding member or deputy presiding member) suspects on reasonable grounds that a person who has been released on parole may have breached a condition of parole— (a) the member may summon the person to attend before the Board; or (b) for the purpose of bringing the person before the Board, the member may apply to— (i) the presiding member or deputy presiding member of the Board for the issue of a warrant for the arrest of the person; or (ii) a magistrate for the issue of a warrant for the arrest of the person. (3) If a person fails to comply with a summons to attend before the Board issued under this section— (a) the Board may proceed to deal with the matter in the person's absence; or (b) for the purpose of bringing the person before the Board, the presiding member or deputy presiding member may issue a warrant for the arrest of the person. (4) A warrant issued under this section authorises the detention of the person in custody pending appearance before the Board. (5) A member of the Board may apply to the presiding member or deputy presiding member of the Board for a warrant for the arrest and return to prison of a person whose release on parole has been cancelled. (6) The presiding member or deputy presiding member of the Board (as the case requires) must, on application under this section, issue a warrant for the arrest of a person or for the arrest and return to prison of a person (as the case may require) unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant. -- 8 of 15 -- [2025] SASC 151 McIntyre J 7 (7) The Board may, if it thinks there is good reason to do so, by order, cancel a warrant issued under this section that has not been executed. Ground two: was the decision to issue the warrant an impermissible interference with judicial power? 19 The applicant contends that the decision to issue the warrant was an impermissible interference with judicial power because the applicant had previously been granted bail by the Magistrates Court for offences arising out of the same conduct. I reject this ground of review. 20 The decision of the Parole Board to issue the warrant does not disturb the grants of bail issued by the Magistrates Court in relation to criminal charges. Unless the person is a prescribed applicant, a bail authority is required to grant bail unless the bail authority considers that they should not be released on bail having regard to the matters set out in s 10 of the Bail Act. The decisions of the Magistrates are no more than a decision that the presumption in favour of bail had not been displaced. 21 The power of the Parole Board to issue a warrant is founded in the CSA and different considerations apply. The Parole Board must bear in mind that the primary object of the CSA is the promotion of community safety.1 The Parole Board may seek to issue a warrant if it suspects on reasonable grounds that there has been a breach of a condition of parole. This test is so fundamentally different that the Parole Board is not bound by a decision of the Magistrates Court under the Bail Act. There were reasonable grounds for such a suspicion in this case given the positive drug tests and the two charges laid by the Police. Grounds three and four: was the decision requiring the applicant to participate in a Parole Board interview about matters that are currently before the Magistrates Court a jurisdictional error? 22 The applicant contends, in ground three, that it is a jurisdictional error to require him to participate in a Parole Board interview and to answer questions about matters currently before the Magistrates Court. It is said that this undermines his fundamental rights as an accused person in a criminal trial. Ground four is a related contention that compelling the applicant to participate in an interview with the Parole Board where the allegations are disputed is premature and unreasonable. In a sense, this complaint comes too late given that the applicant has already participated in an interview. There is questionable utility to the orders sought by the applicant in respect of these grounds. 23 It is said that the two factual issues to be decided in both the Parole Board proceedings and the criminal proceedings are whether the applicant consumed cocaine on or about April 2025 and GHB on or about May 2025. Determination of these factual issues by the Parole Board before criminal charges are finalised is said to represent a significant interference with the judicial process because there 1 Correctional Services Act 1982 (SA) s 3(1). -- 9 of 15 -- [2025] SASC 151 McIntyre J 8 is a real possibility that the Parole Board could find the alleged breaches of the parole conditions to be proven in circumstances where a court could find the applicant not guilty of the criminal charges based on the same facts. In those circumstances it is said that there would be no remedy for the applicant to pursue given his parole expires in November 2025. 24 The Parole Board on the other hand says that it deferred consideration of the alleged breaches of the “no offences” condition pending the conclusion of the criminal proceedings. The Parole Board contends that there is no impediment to it determining whether the allegations concerning breaches of the “no drugs” condition because there is a different standard of proof for a breach of a parole condition to that required in criminal proceedings. Further, it is said that the CSA requires the Parole Board to determine such issues promptly for the protection of the community. 25 The issue is what power the Parole Board has to conduct an inquiry into conduct which constitutes both a breach of parole conditions and a criminal offence. The applicant relies on a number of authorities including Hammond v The Commonwealth2 (‘Hammond’) and X7 v The Australian Crime Commission3 (‘X7’). In Hammond and X7 it was accepted that, subject to statutory exceptions, there is a privilege against self-incrimination and a right to silence which is related to, but independent of, a privilege against self-incrimination. Each of those cases dealt with statutory situations involving enquiries by an administrative body where the person was required to attend, take an oath and to answer questions. In each of those matters, witnesses were not entitled to refuse to answer a question on the basis of the privilege against self-incrimination. 26 In this matter, the Parole Board has the power to compel a person to attend before it, be sworn or affirmed and to answer any questions put by the Parole Board that are relevant to any matter before the Parole Board. However, the Parole Board’s ability to enforce that power is limited to the circumstances set out in s 63(2) of the CSA. Unless a court can compel a person to answer a question, the Parole Board has no power to require a person to answer a question. Section 63 of the CSA does not abrogate the privilege against self-incrimination. There is no compulsive power contained in the CSA. 27 The Parole Board says that its practice is not to conduct interviews on oath while criminal charges are on foot and that it will, as it did in this case, defer consideration of the alleged breaches of the “no offence” condition until criminal charges have been dealt with. In this case, the applicant did not give evidence on oath. He was not compelled to answer questions. The applicant volunteered the information that he provided. He was legally represented. His privilege against 2 (1982) 152 CLR 188. 3 (2013) 248 CLR 92. -- 10 of 15 -- [2025] SASC 151 McIntyre J 9 self-incrimination and right to silence were not abrogated. I do not consider that there was any unfairness to the applicant. 28 It was further contended by the applicant that there is a possibility the prosecution could call a member of the Parole Board to give evidence of statements made the applicant in any criminal trial. The applicant concedes in making that submission that the prospect of this is “remote”. I agree. In any event, the applicant could object to such evidence being called. 29 In circumstances where the applicant is being dealt with for the alleged breaches of the “no drugs” condition on a different standard of proof to that of the criminal charges, I do not accept that the existence of criminal charges stemming from the same facts prohibits an administrative inquiry by the Parole Board. The applicant is a sentenced prisoner with a limited right of release on parole. There is a significant public interest in relation to the enforcement of parole conditions which are put in place for the protection of the community. The language of the CSA does not sustain an argument that the Parole Board proceedings undermine the applicant’s right to silence and accordingly I reject grounds three and four. Ground five: the Parole Board’s refusal to provide previous urine and saliva tests. 30 The applicant contends that the Parole Board’s refusal to provide disclosure of previous drug test results denied him procedural fairness in that he was not given an adequate opportunity to present his case.4 As White J said in Lymberopoulos v Police:5 One fundamental principle of procedural fairness is that an applicant should have an opportunity to present his or her case: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. [Citations omitted] 31 The law relating to the provision of documents is conveniently summarised by S Doyle JA in Vansetten v The State of South Australia as follows:6 In Kioa v West, Mason J referred to the need to bring to a person’s attention the critical issue or factor on which an administrative decision is likely to turn so that he or she may have an opportunity of dealing with it. Brennan J spoke of an opportunity to address the relevant matters adverse to a person’s interests which the repository of the relevant power proposes to take into account in deciding upon its exercise of that power While these general statements are of assistance, the particular content to be given to the requirement to accord procedural fairness will ultimately depend upon the facts and 4 [2006] SASC 360. 5 Ibid at [42]. 6 [2020] SASC 272 at [89] – [92]. -- 11 of 15 -- [2025] SASC 151 McIntyre J 10 circumstances of the particular case, including the statutory framework within which the relevant decision falls to be made. The statutory prescription of some level of procedural fairness will be relevant to, but not necessarily exhaustive of, the content in respect of a particular decision. It is neither possible nor desirable to adopt any rigid or formulaic approach; the ultimate question must always be whether or not the hearing or inquiry was, on a practical assessment, conducted fairly. In Fyfe v South Australia, in considering the content of the obligation of procedural fairness in the context of a decision to separate a prisoner under s 36 of the Correctional Services Act, Kelly J emphasised that it was not necessary for the prisoner to be provided with exact copies of all documentation relied upon by the decision-maker. Applying the approach of Mason J in Kioa v West , her Honour said that what was required was that the prisoner have “sufficient information to understand the case he must meet”. In my view, a similar approach is apposite in the present decision-making context. I do not think it was necessary for Mr Vansetten to be provided with all of the documentation available to the CRC or SOC when undertaking an assessment and determination under s 23(1) of the Act. [Citations omitted] 32 The applicant says that the Parole Board was in possession of material that he had not seen or had the opportunity to seek expert opinion on at the time of the interview and that he was accordingly disadvantaged. The Parole Board says that it was in possession of the two subject samples as well as an additional sample collected after the applicant was returned to custody but that it was not provided with results of every test conducted by DCS. At the time of the refusal in May 2025, the Parole Board did not have access to additional test results. The Parole Board received a report provided by DCS on 13 June 2025 which contains a list of drug test results. Disclosure of that report has been made in this application. It was not, however, material considered by the Parole Board at the time the impugned decisions were made.7 33 Even if the material was available at the time of the decisions under review, notice of matters that a decision maker will consider does not require disclosure of all copies of materials before that decision maker. It is sufficient to convey the substance of those issues so that the person is on notice of the “essential features”.8 The applicant was on notice of the essential features of the inquiry. He knew the allegations against him. Specifically, he knew that the two samples contained evidence of the consumption of illicit substances. The Parole Board was not enquiring into the contents of the other samples. This was an issue raised by the applicant in support of his contention that sample one could not be his due to the lack of THC. The request for further results does not affect the consideration of sample two. I do not consider that the applicant was denied procedural fairness. I note further that the report from DCS dated 13 June 2025 indicated that the applicant had provided other urine samples which contained prescribed drugs, but 7 Affidavit of Barnaby Grant made on 21 July 2025 (FDN12). 8 Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 at [70]. -- 12 of 15 -- [2025] SASC 151 McIntyre J 11 which did not contain THC. The lack of THC in sample one does not necessarily assist him. No disadvantage has been demonstrated and I reject ground five. Ground 8: Decision four and the interpretation of s 76 of the CSA. 34 The applicant has advanced an argument that authority for his continued detention ceased once he was bought before the Parole Board. The argument stems from the wording of s 76 of the CSA. That section provides, inter alia, that the presiding member of the Parole Board may issue a warrant for the arrest of a person “for the purpose of bringing the person before the Board”. Section 76(4) of the CSA further provides that a warrant issued under the section authorises the detention of the person in custody “pending appearance before the Board”. The applicant submits that the addition of s 76(4) is an important one when considering the ongoing authority of such a warrant. The applicant says that, absent clear language, s 76 cannot be interpreted as authorising his continuing detention after 8 July 2025 when he was brought before the Parole Board. The applicant referred to the decision of the High Court in Al-Kateb v Godwin9 (‘Al-Kateb’) in support of this proposition quoting from the dissenting judgment of Gleeson CJ as follows:10 Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that "[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness". [Citations omitted] 35 The applicant says that s 76(4) of the CSA makes the authority of warrants issued under that section plain. It is to bring the parolee before the Parole Board. This is in contradistinction to s 74B of the CSA. It is said that this section was specifically added to only allow the continued detention of the parolee if that person “becomes a terror suspect” and makes it clear that a warrant issued under that section authorises the detention of the person in custody pending the making of a determination under the section. The applicant submits that this interpretation of s 76(4) is consistent with the fundamental right of individuals not to be deprived of their liberty without lawful excuse. 9 (2004) 208 ALR 124. 10 Ibid at [19]. -- 13 of 15 -- [2025] SASC 151 McIntyre J 12 36 The respondent on the other hand says that s 76 must be considered in the context of Part 6 of the CSA more broadly. The warrant is validly issued under s 76 and must be read as valid authority for the continuing detention of a parolee until the inquiry is complete and either the suspicion of a breach is extinguished by an inquiry, or the Parole Board is satisfied that the person has committed a breach and takes action under ss 74 or 74AAA. To suggest that the Parole Board is unable to adjourn proceedings without releasing the applicant is said to be inconsistent with the structure and purpose of the CSA. The purpose of s 76 is to examine the suspicion of a breach (s 74). Section 76(4) demonstrates the power to retain a person in custody and that the authority of the warrant does not expire when the person sits in front of the Parole Board, rather it expires when a decision is made to release or otherwise. The respondent further contends that the applicant’s reliance on Al-Kateb is misconceived noting that the decision was, to a large extent, overturned by NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs11 (‘NZYQ’) on the constitutional question of whether the ongoing detention of an unlawful non-citizen contravened Chapter III of The Constitution. I agree with these submissions. 37 The High Court in NZYQ identified their point of departure from the reasoning of the majority in Al-Kateb saying that the majority had applied an incomplete and therefore inaccurate statement of the principle of legality articulated in Chu Khen Lim v Minister for Immigration, Local Government and Ethnic Affairs.12 The Court in NZYQ then went on to restate that principle as follows:13 This statement of the scope of the power to detain aliens differs from that in Lim, which, as noted, has become authoritative. The application of the principle in Lim, although ultimately directed to a single question of characterisation (whether the power is properly characterised as punitive), requires an assessment of both means and ends, and the relationship between the two. Applying that principle in circumstances where there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future, it cannot be said that, objectively determined, the “purpose of the detention is to make the alien available for deportation” or “to prevent the alien from entering Australia or the Australian community” pending the making of a decision as to whether or not they will be allowed entry. Therein lies the reason why the constitutional holding in Al-Kateb, having been reopened, must be overruled. The Lim principle would be devoid of substance were it enough to justify detention, other than through the exercise of judicial power in the adjudgment and punishment of guilt, that the detention be designed to achieve an identified legislative objective that there is no real prospect of achieving in the reasonably foreseeable future. [Citations omitted] 38 The principle of legality was relevant in those matters because the type of detention or deprivation of liberty under consideration by the High Court was 11 (2023) 280 CLR 137. 12 (1992) 110 ALR 97. 13 Ibid [44] – [45]. -- 14 of 15 -- [2025] SASC 151 McIntyre J 13 administrative in nature to achieve a particular legislative end. In those circumstances, it is understandable that the principle of legality would operate to limit the interpretation of legislative provisions in a manner favourable to the person whose liberty was being infringed. 39 The situation is different here. The applicant is a parolee. His freedom is curtailed by the sentence imposed in the District Court in September 2022. Properly understood, Part 6 of the CSA does not interfere with his fundamental rights and freedoms because, until his sentence expires, he does not enjoy the same right to liberty that ordinary citizens enjoy. The rights that he has are those granted by the Parole Board under Part 6 of the CSA. 40 The applicant is entitled to remain in the community whilst he complies with the conditions of his parole. The warrant was issued under s 76 on the basis that the Parole Board entertained a reasonable suspicion that he was not complying with those conditions. Section 76 gives the Parole Board the power to impinge on his limited privilege of parole as opposed to any fundamental right of liberty or freedom. Section 76 only applies to people who are serving a sentence of imprisonment imposed by a court. It is therefore unnecessary to apply the strict statutory construction principles contended for by the applicant. Rather, it is appropriate to consider s 76 in the context of the CSA as a whole. 41 The primary object of the CSA is the protection of the community. The Parole Board imposes conditions on a person’s release on parole with that object in mind. If there are reasonable grounds to suspect that those conditions have been or are being breached, s 76 permits the Parole Board to issue a warrant to bring a parolee before the Board for the purpose of the inquiry contemplated in ss 74 or 74AAA. The power to conduct an inquiry under ss 74 or 74AAA extends to permit more than one such meeting. That inquiry may, as it was in this case, be adjourned to another date and time. The inquiry continues until the Parole Board determines whether there has been a breach of conditions and, if there is, what action it will take. If the applicant’s contention were to be accepted, it results in the warrant being extinguished immediately upon his being brought before the Parole Board on the first occasion. This would mean that the Parole Board could never adjourn proceedings without releasing the person subject to the warrant. This cannot be correct when considered in the context of the CSA as a whole. I consider that a warrant validly issued, as it was in this case, under s 76 permits continued detention until the proceedings before the Parole Board are complete. -- 15 of 15 --