Duxerty v Minister for Justice and Customs

Whether the respondent was an authorised decision-maker? 10 During the course of argument, I enquired of counsel for the respondent as to how it came about that the respondent purported to exercise the power, or to perform the duty imposed by s 19AL of the Crimes Act on the Attorney-General. I was informed that this came about as a result of a Ministerial arrangement of the type contemplated by s 18C of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act"). That enquiry on my part provoked an application to further amend the Amended Application so as to assert that the decision of the respondent made on 3 July 2002 is void, as not being a decision of the Attorney-General who is the statutory decision-maker. 11 As the respondent did not object to leave to amend being granted, I gave the applicant leave to file a Further Amended Application by 5 pm on 27 November 2002 on the basis that the respondent would be entitled to file and serve evidence or other material in relation to the Further Amended Application by 9 am on 28 November 2002. After discussion with counsel, I decided that I would not hear further argument on the Further Amended Application unless either party desired to be heard further, and notified my associate of that desire by 5 pm on 28 November 2002. No such notification was received by my associate. 12 A document styled "Respondent's Additional Submissions" was lodged with my associate, and has been placed with the papers. The submission attaches various documents in relation to the appointment of Ministers and the allocation of portfolio responsibilities between Ministers, which I will formally receive into evidence. Those documents establish that on 26 November 2001 both the Attorney-General and the Minister for Justice and Customs were appointed by the Governor-General to administer the Attorney-General's Department. An Administrative Arrangements Order made by the Governor-General on 26 November 2001 ordered that the legislation administered by a Minister of State administering the Attorney-General's Department includes the Crimes Act. A news release published on behalf of the two Ministers on 5 February 2002 records that the Ministers had determined that portfolio responsibilities had been allocated between them on the basis that criminal law and prisoners were allocated to the Minister for Justice and Customs. 13 Section 19A(1) of the Acts Interpretation Act provides: "References to Ministers and Departments 19A (1) If a provision of an Act: (aa) refers to a Minister by using the expression 'the Minister' without specifying which Minister is referred to; or (ab) refers to a particular Minister; then, unless the contrary intention appears, the reference is a reference to: (a) if, for the time being, different Ministers administer the provision in respect of different matters: (i) if 2 or more Ministers administer the provision in respect of the relevant matter - any one of those Ministers; or (ii) if only one Minister administers the provision in respect of the relevant matter - that Minister; (b) if paragraph (a) does not apply and, for the time being, 2 or more Ministers administer the provision - any one of those Ministers; or (c) if paragraphs (a) and (b) do not apply - the Minister for the time being administering the provision." 14 Both the Attorney-General and the Minister for Justice and Customs have been appointed to administer the provisions of the Crimes Act. By administrative arrangements made between the Ministers, the Minister for Justice and Customs was, as a matter of fact, the Minister administering the provisions of s 19AL of the Crimes Act at relevant times. It therefore follows that the Minister for Justice and Customs was authorised either by s 19A(1)(b) or (c) of the Acts Interpretation Act to administer the provisions of s 19AL of the Crimes Act, and it is not necessary to decide which of those subsections was the source of power. There may be other sources of power: see Attorney-General (Cth) v Foster (1999) 84 FCR 582. 15 It follows that the applicant's submission that the decision made on 3 July 2002 is void because the decision was made by a Minister other than the Attorney-General, fails.

Whether the respondent's decision was an improper exercise of power? 16 In the course of oral submission, the applicant's counsel put his client's case on the basis that the decision which the respondent made on 3 July 2002 was an improper exercise of the power conferred by s 19AL of the Crimes Act, as the respondent did not then make a decision as to whether or not the applicant was to be released on parole. Instead, the respondent simply but impermissibly, determined that it was too early to make a decision on the question of the applicant's release. 17 Alternatively, it was submitted that if the respondent did make a decision that the applicant was not to be released on parole, the only basis for that decision given in the letter of 3 July 2002 was: "In these circumstances I do not consider that it would be appropriate to grant you the benefit of release on parole so soon after re-offending in custody while serving a life sentence." In the applicant's submission, it was not open to the respondent to refuse parole on this ground given the delegate's statement in the instrument of 18 June 2001: " … after I have received the requested reports, I will reconsider you for release on parole on 8 July 2002." In the applicant's submission that amounted to a promise, or engendered a reasonable expectation, that in July 2002 the question of release on parole would be reconsidered "on its merits", having regard to the reports which the delegate indicated would be sought in advance of that reconsideration. The applicant submits that he was never alerted to the fact that one of the possibilities which the Minister had under consideration was whether it was "too early" in 2002 to make a decision on the question of the applicant's release on parole, hence there was a denial of natural justice in that respect. 18 Counsel for the applicant expressly disavowed a case that the applicant was entitled to release on parole in July 2002 subject only to the receipt of satisfactory reports. Counsel also accepted that if the Minister had refused to grant the applicant release on parole in July 2002 it would nonetheless have been open to the Minister to indicate that he proposed to reconsider the question at a later time. The essential thrust of the applicant's submissions is that in July 2002 the Minister simply deferred making a decision on the question of release on parole, and the Minister was not entitled to do so.

Consideration 19 In my view, the applicant's case fails at the threshold. The Minister did not defer making a decision on the question of the applicant's release on parole; rather he made a decision adverse to the applicant. A casework submission was put before the Minister recommending that he approve the release of the applicant on parole in accordance with subs 19AL(2) of the Crimes Act. The Minister did not agree with that recommendation; he rejected it. As the respondent's letter of 3 July makes plain the Minister decided not to grant the applicant release on parole. He did not simply defer consideration of the question of possible release until 8 July 2003. Rather, the respondent decided not to grant the applicant release on parole, but indicated that he was prepared to consider the applicant for possible release on 8 July 2003. That is not to say that the result of that reconsideration would necessarily be favourable to the applicant. 20 The Minister's decision was that it was too soon for the applicant to be released on parole, not that it was too soon for the Minister to make a decision on the question of release. In the respondent's letter of 3 July 2002, the respondent stated that the parole reports prepared in 2001 and 2002, the judge's remarks in sentencing the applicant for the offence committed while he was on work release, and the applicant's letter of 4 March 2002, were matters which the respondent had taken into account in making a decision on the case. The decision was one which was made "on the merits" inasmuch as factors favourable to the applicant's release were taken into account. 21 The delegate's decision of 18 June 2001 notified the applicant that it was proposed to reconsider the question of the applicant's release on parole on 8 July 2002. That may have engendered a hope on the applicant's part that the result of that reconsideration would be favourable to him, but the notification did not in any sense purport to pre-empt the Attorney-General's reconsideration of the question, or to truncate or limit the matters to which the Attorney-General might have regard as part of that process of reconsideration. Even if the delegate had purported to bind the decision-maker who would eventually conduct the reconsideration, that would have been legally ineffective : Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193. 22 The applicant assumed, and the respondent accepted, that the exercise of the s 19AL power is one which has to be exercised with procedural fairness. Whilst neither side cited any authority on this issue, the common assumption is consistent with the decision of the Court of Appeal in Todd v Parole Board (1986) 6 NSWLR 71 at 80-81 and with the decisions in McEncroe v Queensland Community Corrections Board (Supreme Court of Queensland, 8 September 1997 - unreported) and Butler v Queensland Community Corrections Board (Supreme Court of Queensland Court of Appeal, 10 August 2001 - unreported). In Butler (supra) at [19] the Court said: "Procedural fairness in respect of a parole application requires that an applicant's attention be drawn to the main issues or factors militating against success, so that an adequate opportunity is afforded to deal with them. That obligation, however, is satisfied where, as here, an applicant knows of, or anticipates, the facts and matters assuming significance in a decision to decline a parole application." 23 The natural justice case as articulated by the applicant's counsel was based upon an assumption that the Minister had deferred the making of a decision on the question of release from parole. That assumption is fallacious for the reasons which I have explained. The applicant knew that his conviction on the ecstasy charge whilst serving a sentence for conspiracy to import a commercial quantity of heroin was a factor which would bear upon the question of his release on parole, because it was one of the reasons notified to him when the original decision was made that he not be released from prison on parole on 20 September 2001, and because it was one of the matters which he addressed in his letter of 4 March 2002 "in the hope that they may assist you in the consideration of my parole". The fact and circumstances of that offence was a matter known to the applicant, and it was obviously a matter to which the respondent would have regard in coming to a decision on the question of release on parole: see Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591. Accordingly, the claim based on natural justice fails. 24 The respondent had before him material which pointed in different directions. Some of it, including the recommendation of the departmental officers, was favourable to the applicant's release on parole. It might be thought that the circumstances of the original offence, and the fact of the subsequent offence whilst the applicant was on work release, pointed, or might be regarded as pointing, in a different direction. As noted at [20] above, in his letter of 3 July, the respondent indicated that he had taken into account in making his decision on the case the parole reports prepared in 2001 and 2002, the judge's remarks in sentencing the applicant for the offence committed whilst he was on work release and the applicant's letter of 4 March. He also took into account the first and second offences. The fact that the second respondent did not come to a decision consistent with the material favourable to the applicant does not mean that there has been a failure to take that material into account or that the decision was based upon irrelevant considerations. Still less has a case been made for Wednesbury unreasonableness or that the respondent by his decision of 3 July 2002 exercised such power as he enjoys pursuant to s 19AL(2) and (3) of the Crimes Act, in bad faith. Whilst these grounds are referred to in the Further Amended Application they were not developed in submissions and there is no evidentiary foundation capable of supporting them. 25 The application should be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely .

Solicitor for the Applicant: Paul Kenny & Associates

Solicitor for the Respondent: Australian Government Solicitor