Alleged failure to take into account relevant considerations and denial of natural justice
43 The applicant's next argument started with the proposition that the delegates of the Attorney-General had, on 29 September 2011 and 13 September 2012, made decisions that purported to fix the end date of the applicant's sentence. The next step in the argument was that in making such decisions, the delegates had failed to take into account a relevant consideration, namely the period of time between the making of each parole order and the issuing of the warrant. The applicant also submitted that he was denied natural justice by the delegates' failure to take into account such periods of time.
44 In the course of his argument, the applicant used the expression "fixed the end date" to describe what he says the delegates did in relation to his sentence of imprisonment. By the use of that expression, I understand the applicant to say that the delegates fixed what is described in Part IB of the Crimes Act as "the last day of any federal sentence" (for example, in the definitions of "parole period" and "supervision period" in s 16). I will use the expression "end date" to refer to the last day of the applicant's sentence of imprisonment.
45 The respondent's submission in response, that the Magistrates, not the delegates, had fixed the end dates for the applicant's sentence, relies on s 19AW, s 19AZC and s 19AA of the Crimes Act. Much of the respondent's argument focussed on the proposition that the Magistrates had applied those sections properly and correctly determined the end date for each sentence.
46 Section 19AW(1)(e) required Magistrate Duroux to direct that Mr Dobie be detained in prison to undergo imprisonment for the unserved part of the sentence of imprisonment that he was serving or had yet to serve at the time of his release on parole ("the outstanding sentence"). Section 19AW(4) required that the unserved part of the outstanding sentence be specified in the warrant. That period was specified in the schedule to the warrant as 2 years, 3 months and 12 days, but was to be reduced, pursuant to s 19AW(6), by the 2 days specified as the period on remand.
47 Magistrate Kilner was also required to issue a warrant directing that Mr Dobie be detained in prison to undergo imprisonment for the unserved part of such sentence. The length of the outstanding sentence was specified as 1 year, 7 months and 27 days.
48 The applicant had the right to appeal against the calculations by Magistrate Duroux and Magistrate Kilner of the unserved part of the outstanding term of imprisonment under s 19AY(1), but did not bring any appeal. Neither did the applicant challenge in this application the calculation of the lengths of the outstanding sentence made by either Magistrate.
49 Section 19AZC(1) of the Crimes Act provides relevantly:
Where a parole order is made, or a licence is granted, in relation to a person:
(a) until the parole period or licence period ends without the parole order or licence being revoked, or until the person is otherwise discharged from imprisonment, the person is to be taken to be still under sentence and not to have served the part of any sentence that remained to be served at the beginning of the parole period or licence period;
50 The respondent contended that the effect of s 19AZC was that, because the parole order had been revoked, the applicant was taken to still be under the sentence and not to have served any part of the outstanding sentence that remained to be served at the beginning of the parole period on each occasion. In other words, the respondent's argument was that the applicant was taken not to have served any part of the sentence that remained to be served between 19 August 2010 when he was released on parole and 29 September 2011 when Magistrate Duroux issued the warrant. The respondent argued that the period of time between those dates was correctly added to the original end date of 19 October 2013 by Magistrate Duroux to arrive at the outstanding sentence of 2 years, 3 months and 12 days, resulting in a new release date of 8 January 2014, when the two days in custody were deducted.
51 The respondent also submitted that the applicant was taken not to have served any part of the sentence that remained to be served between 29 September 2011 when he was released on parole for the third time and 13 September 2012 when Magistrate Kilner issued a warrant. The respondent asserted that the period between these dates was correctly added by Magistrate Kilner to arrive at the outstanding sentence of 1 year, 7 months and 27 days, resulting in a new release date of 12 May 2014.
52 On the respondent's argument, the effect of the legislation is that by revoking parole, the delegates of the Attorney-General had effectively caused the end date for the applicant's sentence of imprisonment to extend beyond the end date decided by the District Court Judge who sentenced the applicant.
53 The respondent argued that the apparent harshness of this position is ameliorated by s 19AA(1). That section provides:
A law of a State or Territory that provides for the remission or reduction of State or Territory sentences (other than such part of the law as relates to the remission or reduction of non-parole periods of imprisonment or of periods of imprisonment equivalent to pre-release periods of imprisonment in respect of recognizance release orders) applies in the same way to the remission or reduction of a federal sentence in a prison of that State or Territory, being a sentence imposed after the commencement of this section.
54 The respondent contended that the effect of s 19AA(1) is to pick up s 211(2) of the Corrective Services Act 2006 (Qld) and allow reduction of the applicant's sentence. Section 211(2) of the Corrective Services Act provides, relevantly, that the time for which the prisoner was released on parole before a parole order was cancelled because the prisoner failed to comply with a parole order counts as time served under the prisoner's period of imprisonment.
55 The effect of the respondent's construction is that an administrative officer can, by cancelling a parole order, cause the extension of the end date of a sentence of imprisonment imposed by a judicial officer. There is no explicit and direct statement of such an intention in the legislation. Acceptance of the respondent's argument would require a full consideration of the statutory scheme, particularly as to how, s 19AA, s 19AW and s 19AZC work in combination. The interaction of the relevant provisions is complex, even convoluted. I was not referred to relevant authority on any similar provisions in earlier versions of the Crimes Act. I would be reluctant to make a decision upon the respondent's argument, in respect of a statutory scheme dealing with the incarceration and liberty of offenders, in the absence of full argument.
56 However, it is unnecessary for me to reach any conclusion upon the respondent's argument that the Magistrates had correctly applied s 19AA, s 19AW and s 19AZC in arriving at the length of the outstanding sentence. That is because I accept the respondent's arguments that the application should fail because the ADJR Act does not apply here, and that there is no basis for relief under s 39B of the Judiciary Act 1903 (Cth) because no jurisdictional error has been demonstrated.
57 Section 5(1) of the ADJR Act provides that a person who is aggrieved by a "decision to which this Act applies" may apply to the Federal Court for an order of review in respect of the decision. The expression "decision to which this Act applies" is defined in s 3 to mean, relevantly, a decision of an administrative character "made under an enactment".
58 In Griffith University v Tang (2005) 221 CLR 99, Gummow, Callinan and Heydon JJ said at [89]:
The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.
59 It will be recalled that the parole order made on 29 September 2011 stated, "you will be on parole until your sentence ends on 8 January 2014". The parole order made on 13 September 2012 stated, "you will be on parole until your sentence ends on 12 May 2014". The applicant asserted that these statements amounted to decisions fixing end dates for the sentence and that such decisions fell within s 5(1) of the ADJR Act.
60 It is plain that Magistrate Duroux and Magistrate Kilner directed that the applicant be detained in a prison for the unserved part of his sentence and decided the length of the outstanding sentence of imprisonment. It was necessary for the Magistrates to make such decisions in order to issue a warrant that complied with the requirements of s 19AW(1)(e) and (4).
61 The Attorney-General's delegates were required under s 19AL(1) to consider making parole orders following the Magistrates' decisions to fix non-parole periods. In each of the parole orders the respective delegates stated the end date of the applicant's sentence. They calculated those dates by taking the lengths of the outstanding sentence specified by the Magistrates and mechanically working out the last date of the outstanding sentence, presumably consulting a calendar in order to do so.
62 The issue to be decided is whether the delegates purported to fix the end date of the applicant's sentence, or, in other words, the last day of the applicant's sentence. This requires consideration of the purpose for which each of the delegates stated the end date in the parole order.
63 Section 19AN(1) of the Crimes Act allows the Attorney-General to specify conditions of the parole order, including a condition that the offender must be subject to the supervision of a parole officer. Section 19AL(4) required that if it is proposed that, for any part of the parole period, the person should be subject to supervision, the parole order must specify the day on which the supervision period ends, being a day fixed in accordance with the definition of "supervision period" in s 16(1). The parole order made on 29 September 2011 specified that the applicant would be supervised by a parole officer until his parole period ends on 8 January 2014, while the parole order made on 13 September 2012 specified that the applicant would be supervised until his parole period ends on 12 May 2014.
64 It was necessary for the delegates to ascertain when the sentence would end so they could decide the length of the supervision and specify the date on which the supervision ends. The definition of "supervision period" in s 16(1) requires that the day the supervision period ends is not later than the last day of any federal sentence of imprisonment that is being served or to be served. The purpose of the statement in the parole order of 29 September 2011 that "you will be on parole until your sentence ends on 8 January 2014" was to identify the end date of the sentence in order to be able to specify the date on which the supervision period ended. The purpose of the relevant statement in the parole order of 13 September 2012 was the same.
65 Viewed in this way, the statements in the parole orders relied on by the applicant were not decisions to fix the end date for the applicant's sentence. These end dates had effectively been set by the Magistrates acting under s 19AW(1)(e) and (4). The Attorney-General did have an obligation under s 19AL to identify the end date for the sentence in order to then decide upon the supervision period. However, the date had to be identified by applying the decision made by the Magistrate that specified the length of the outstanding sentence.
66 It must be noted that the applicant did not challenge the decisions of the delegates to set the supervision periods. Rather, the applicant argued that the delegates had set or purported to set the dates when the applicant's sentence would end.
67 The second of the criteria required by Griffith University v Tang is not met. The delegates' statements of the end dates for the sentence did not confer, alter or otherwise affect any relevant legal rights or obligations of the applicant. The Magistrates had decided the length of the outstanding sentence, and it was those decisions which affected the applicant's legal rights and obligations. The delegates' identification of the end dates did not change the end dates for the sentence or change the parole period. The Magistrates' decisions were not challenged, either in the present proceedings or by way of appeal to the Supreme Court pursuant to s 19AY(1).
68 Therefore, there is no "decision to which this Act applies" capable of being reviewed pursuant to s 5 of the ADJR Act.
69 In addition, the delegates' identification of the end dates for the sentence in the parole orders did not amount to "conduct" for the purposes of s 6(1) of the ADJR Act. That section provides that:
Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the conduct …
70 A challenge to conduct is an attack on the proceedings engaged in before the making of the decision, but is not a challenge to decisions made as part of the decision making process: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341-342. Here, the applicant's challenge was to the latter rather than the former. In addition, as I have found, there was no relevant "decision to which this Act applies" ultimately made by the delegates.
71 That leaves for decision the application insofar as it invokes s 39B of the Judiciary Act. The applicant argued that the delegates had failed to take into account a relevant consideration, namely the period of time between the cancellation of each of the parole orders and the issuing of each of the warrants by the Magistrates.
72 The applicant's first parole order was revoked on 8 July 2011, the applicant was apprehended on 27 July 2011 and the warrant was issued on 29 September 2011. There was a delay of some 83 days between the revocation of that parole order and the issuing of the warrant. There was a delay of some 125 days between the revocation of the second parole order and the issuing of a warrant on 13 September 2012. The applicant suggested that there was a breach on each occasion of s 19AV(3), which requires that where a prisoner whose parole has been revoked is arrested, the prisoner must, as soon as practicable after the arrest, be brought before a prescribed authority.
73 The applicant argued that the effect of the cumulative delays had been to push back the end date of his sentence from 19 October 2013 to 12 May 2014. The continuing operation of the parole conditions prevents the applicant from operating his own business and, it was claimed, causes him financial hardship.
74 The applicant's argument concerning delay on the part of the Attorney-General or the prosecuting authority ignores the fact that the applicant was brought before a magistrate promptly on each occasion that he was apprehended after his parole was revoked. The applicant was granted bail in the Southport Magistrates Court on 28 July 2011 and one of the conditions required him to appear on 12 September 2011. He was again granted bail on 17 July 2012 and one of the conditions required him to appear on 13 September 2012. The applicant's counsel accepted that the magistrates who granted bail were each a "prescribed authority". Therefore, it seems unlikely that there was any breach of s 19AV(3). The reasons why there was delay between the granting of bail and the appearance when the warrant was issued on each occasion are not explained in the evidence. There is no necessary inference that such delays involved fault on the part of the Attorney-General or the prosecuting authority. In any event, any such delays and any breach of s 19AV(3) are not determinative of this application.
75 The periods of time between the revocation of parole and the issuing of the warrants, particularly any delays by the Attorney-General or the prosecuting authority, may have been relevant for the Magistrates to take into account in fixing non-parole periods. They were not relevant for the Attorney-General's delegates when making the mechanical calculations of the end dates of the applicant's sentence for the purpose of specifying the dates on which the periods of supervision would end. Those calculations were based entirely upon the length of the outstanding terms specified by the Magistrates in the warrants. The Attorney-General is not authorised or permitted under s 19AL or any other provision of the legislation to alter the length of the outstanding terms of imprisonment, when making a parole order, whether by taking into account the period of time between the cancellation of a parole order and the issuing of a warrant, or delays in bringing the prisoner before a prescribed authority, or any other factor. The Attorney-General was therefore not bound under the legislation to take into account the matters that the applicant asserted the delegates failed to take into account: c.f. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. The delegates did not purport to alter the length of the outstanding terms of imprisonment set by the Magistrates, but simply applied those terms.
76 I therefore reject the applicant's argument that the delegates of the Attorney-General failed to take into account a relevant consideration, namely, the period of time between the revocation of the parole orders and the issuing of the warrants.
77 The applicant argued that the failure of the delegates to take into account the period of time between the revocation of parole and the issuing of the warrants amounted to a denial of natural justice. The argument seems to be that the delegates ought to have given the applicant an opportunity to make submissions about that issue prior to making the decision to fix the end dates for the sentence. I have already indicated that any decisions of the delegates did not have any effect upon the end dates of the sentence. The outstanding terms of imprisonment were decided by the Magistrates and the delegates merely identified the dates on which those terms would end. They did so for the purpose of deciding the date on which the supervision period would end. The decisions of the delegates did not relevantly affect the rights or interests of the applicant: c.f. Kioa v West (1985) 159 CLR 550 at 584, 612, 619 and 632. There was no requirement that the delegates give the applicant an opportunity to be heard upon their identification of the end dates for the outstanding sentence.
78 Again, it is to be noted that the applicant made no complaint of a denial of procedural fairness in respect of the making of the supervision order.
79 For the reasons I have given, the application must be dismissed with costs.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.