Judgment (224 paragraphs)

[1]

Eastman v Australian Capital Territory [2014] ACTSC 105 (22 May 2014)

[2]

[2014] ACTSC 105

[3]

ADMINISTRATIVE LAW - "decision" - meaning of - whether a refusal to exercise a discretion to grant release on licence is a decision made "under an enactment" - Crimes (Sentence Administration) Act 2005 (Act), s 295 - Administrative Decisions (Judicial Review) Act 1989 (Act) ss 3, 3a(1), 5

[4]

ADMINISTRATIVE LAW - remedies - whether prerogative relief available - discretion - whether relief should be refused on the basis of futility - Supreme Court Act 1933 (ACT) s 34B

[5]

ADMINISTRATIVE LAW - judicial review - grounds of review - apprehended bias - executive - whether objective observer would consider attorney-general's mind closed to issue - whether irrelevant considerations were considered - whether relevant considerations not considered

[6]

CRIMINAL LAW AND PROCEDURE - release on licence - whether a judicial power - Crimes (Sentence Administration) Act 2005 (ACT), s 295 - whether a breach of right to fair trial - Human Rights Act 2004 (ACT) ss 21, 28.

[7]

Australian Capital Territory (Self-Government) Act 1988 (Cth) ss 34, 37

[8]

Seat of Government Acceptance Act 1909 (Cth) s 6

[9]

Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 3A, 3, 5, 17

[10]

Corrections Management Act 2007 (ACT) s 78

[11]

Crimes (Sentence Administration) Act 2005 (ACT) Ch 13, ss 13, 66, 69, 79, 82, 290, 291, 292, 293, 294, 295, 300, 303, 314A

[12]

Crimes Act 1900 (ACT) ss 422, 424, 427, 429, 463, 475

[13]

Human Rights Act 2004 (ACT) ss 21, 28

[14]

Supreme Court Act 1933 (ACT) s 34B

[15]

Crimes Act 1900 (NSW) s 463

[16]

Ainsworth v Criminal Justice Commission (1992) 175 CLR 56

[17]

Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446

[18]

Duncan v Ipp [2013] NSWCA 189; (2013) 304 ALR 359

[19]

Eastman v ACT Executive & Australian Capital Territory [2013] ACTSC 53

[20]

Eastman v Attorney-General (ACT) ([2007] ACTSC 28; 2007) 210 FLR 440

[21]

Eastman v Australian Capital Territory (2008) 227 FLR 262

[22]

Eastman v Australian Capital Territory [2013] ACTSC 184

[23]

Eastman v Besanko [2009] ACTSC 10; (2009) 223 FLR 109

[24]

Eastman v Chief Executive of the Department of Justice and Community Safety [2012] ACTSC 189

[25]

Eastman v Chief Executive, Department of Justice and Community Safety [2012] ACTSC 189; (2012) 274 FLR 255

[26]

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

[27]

Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99

[28]

Horowitz v Connor [1908] HCA 33; (1908) 6 CLR 38

[29]

Hot Holdings Ltd v Creasy (1996) 185 CLR 149

[30]

Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181

[31]

McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504

[32]

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

[33]

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

[34]

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

[35]

Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; (2010) 243 CLR 319

[36]

R v Home Secretary; Ex parte Anderson [2002] EWCA Crim 747; [2003] 1 AC 837

[37]

R v Lewis [2013] ACTSC 198; (2013) 280 FLR 118

[38]

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

[39]

Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363

[40]

1. The plaintiff challenges a decision of the Executive made on 2 October 2013 that it would not grant him release on licence under Chapter 13 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act).

[41]

2. On 10 January 1989 Assistant Commissioner Colin Winchester of the Australian Federal Police was shot dead in Canberra. The plaintiff was arrested. He has been in custody since 29 June 1995. In November 1995, the plaintiff was found guilty of the murder of Assistant Commissioner Winchester, and he was sentenced to life imprisonment. Since then, the plaintiff has challenged his conviction in many forums, but to date the conviction stands.

[42]

3. The plaintiff has made three requests for release on licence.

[43]

4. The first request was made by letter dated 29 June 2009. The plaintiff wrote to the Attorney-General making an "application for release on licence under Chapter 13 of the [Sentence Administration Act]" on the ground that he satisfied the criteria in s 293(2) of the Act. On 9 December 2009 the Attorney-General responded that he did not believe that the matters put forward in the letter warranted further action.

[44]

5. The second request was made by a letter dated 29 June 2010 to the Attorney- General. The letter reiterated the material set out in the first application and addressed some of the matters in the Attorney-General's reply of 9 December 2009. The Attorney-General responded to the second request by saying that nothing in that request caused him to reconsider exercising his power.

[45]

6. The third request was made by letter dated 29 June 2012. The plaintiff wrote to the Chief Minister of the Australian Capital Territory, making an "application for release on licence under s 295 of the [Sentence Administration Act]". The application largely repeated the grounds set out in the first and second applications. By letter dated 3 September 2012, the Chief Minister replied, stating that she had asked the Attorney-General to consider the matter on behalf of the Executive. On 13 November 2012 the Attorney-General wrote to the plaintiff stating that nothing in the third letter caused him to consider exercising his power.

[46]

7. By an originating application dated 14 December 2012 the plaintiff sought an order in the nature of mandamus compelling the Executive to make a decision in relation to his request. On 25 February 2013 this Court (Rares J) ordered the Territory to "consider whether to release the plaintiff on licence under section 295 of the [Sentence Administration Act] in accordance with law": Eastman v ACT Executive & Australian Capital Territory [2013] ACTSC 53.

[47]

8. Because of the apparent inaction by the Executive in the face of the order of Rares J, on 18 April 2013 the plaintiff brought proceedings seeking an order in the nature of mandamus "...requiring [the Executive] to give the Plaintiff a written decision with reasons, in reply to the Plaintiff's application for release on licence dated 29th June, 2012, by no later than 25th May 2013". Coincidently, just prior to service of the originating application on the defendant, the ACT Government Solicitor wrote to the plaintiff's lawyers, indicating that the Executive "[did not] anticipate making a decision by 30 June 2013 in relation to Mr Eastman's request for release on licence".

[48]

9. On 13 May 2013 the proceedings seeking mandamus were before the Court. The evidence in that application suggested that the Executive anticipated that a decision would be made in relation to his request for release on licence by 30 June 2013. The proceeding was adjourned to 4 July 2013 and that date was subsequently vacated and the hearing was fixed for 28 August 2013.

[49]

10. On 16 May 2013 the Attorney-General wrote to ACT Corrective Services requesting information to assist the Executive in making a decision under s 295. As a result, Ms Bromwich provided a report dated 27 May 2013. Although Ms Bromwich was to have interviewed the plaintiff for the purpose of preparing the report, the plaintiff was not interviewed.

[50]

11. By letter dated 5 June 2013 the Attorney-General provided the plaintiff with an outline of issues and documents that would be considered by the Executive, and invited the plaintiff to respond. The documents included only one recent item, the report from Ms Bromwich. Otherwise, the documents were at least three years old, and some predated the murder of Assistant Commissioner Winchester.

[51]

12. On 5 July 2013 the plaintiff's lawyers provided a submission in support of the plaintiff's application to the Attorney-General. The submission was accompanied by eight affidavits from staff of ACT Corrective Services (including both senior corrective officers and civilians), each of whom had a history of close contact with the plaintiff. The affidavits stated that the plaintiff was non-violent, and did not respond to verbal taunts with violence. Sometimes, he was argumentative with staff. However, over the preceding two years or so, his propensity to argue had diminished, and he was able to acknowledge wrong and apologise. In 2010 and 2011, the plaintiff had incurred a significant number of disciplinary breaches (mostly for minor matters involving disrespect or verbal abuse), but there were almost no disciplinary breaches since 2011. One staff member said that, during the plaintiff's first year at the Alexander Maconochie Centre (in 2009/10) he had seemed somewhat mentally unstable, but no staff member expressed concern about the plaintiff's current mental stability. The affidavits indicated that the plaintiff's interaction with other detainees was appropriate. He assisted by tutoring other detainees and maintaining a substantial garden, where he worked unsupervised with gardening tools that were capable of being used as weapons. He was considered to be honest and was accorded considerable trust.

[52]

13. On 17 July 2013 by application in the proceedings commenced by the plaintiff on 18 April 2013, the plaintiff sought an order prohibiting the Attorney-General from participating in the decision of the Executive concerning his third licence application on the ground of apprehended bias. On 28 August 2013, the Court (Rares J) dismissed the application: Eastman v Australian Capital Territory [2013] ACTSC 184.

[53]

14. On 2 October 2013 the Chief Minister and the Attorney-General, representing the Executive, decided not to release the plaintiff on licence. In the memorandum of decision, the authors referred to the sentencing remarks, the views of the victims, the plaintiff's behaviour in prison (noting that he had "been placed in special accommodation that effectively separates him from the general prison population"), his personal circumstances (noting that "he has a history of treatment for mental health"), and the length of the sentence (recognising that "preparing a prisoner for possible release is a principal function of corrections and sentence administration"). The critical remarks appear under the heading "public interest", where the memorandum states:

[54]

Mr Eastman's history over some 30 years indicates a cycle of behaviour resulting in a propensity towards anger and violence or threats of violence. Mr Eastman has a history of conflict with nearly every person he has dealt with, reflected in his extensive dealings with the Commonwealth Commissioner for Superannuation, the inquest and trial and subsequent behaviour in custody... While his behaviour has improved in the past 18 months, he has been in a relatively controlled environment. He is in special accommodation and is not mixing with the general population of the AMC.

[55]

There appears to be evidence in this history of an ongoing mental illness, condition or disorder. There is, however, no clear evidence about the precise nature, diagnosis or prognosis of any psychiatric or personality problem and its possible effects on any propensity for further violence or disruptive or anti-social behaviour.

[56]

There does not presently appear to be an effective program to allow Mr Eastman to demonstrate progress in relation to these issues or to assist Mr Eastman to move towards reintegration or association into the general population at the AMC or into the wider community in general. The Executive considered that the risk to the community arising from Mr Eastman's apparently established and long-standing the [sic] cycle of behaviour outweighs any other factor at this time.

[57]

The Executive will ask the Minister for Corrections to initiate appropriate steps to have assessments made and programs implemented to enable or facilitate Mr Eastman to address the identified behavioural issues and demonstrate progress.

[58]

15. Pursuant to s 17 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act) or alternatively s 34 B of the Supreme Court Act 1933 (ACT) (Supreme Court Act), the plaintiff seeks orders (in the nature of certiorari, mandamus and prohibition respectively) that are to the following effect:

[59]

• An order quashing the decision of the Executive made under s 295 of the Sentence Administration Act to refuse the application for release on licence;

[60]

• An order requiring the Executive to consider the application for release on licence;

[61]

• An order excluding the Attorney-General from that consideration.

[62]

16. In his originating application as amended on 15 January 2014 the plaintiff raised the following grounds:

[63]

The Executive did not have jurisdiction to make the decision because:-
1. There was a perception that a member of the Executive which made the decision, Simon Corbell, was biassed; and
2. Section 295 of the [Sentence Administration Act] is incompatible with sections 21 and 28 of the Human Rights Act 2004 (ACT) (Human Rights Act), and is beyond the power of the Legislative Assembly given the separation of powers in the ACT under the Australian Capital Territory (Self-Government) Act 1988 (Cth).
The decision [of the Executive] took into account irrelevant considerations, namely:-
1. A report by Ms Janine Bromwich, an officer of ACT Corrective Services, dated 27 May 2013 and titled Report addressing Request for Release on Licence by David Harold EASTMAN.
2. The following statements in the Executive's memorandum of decisions:
  - A misrepresentation of the trial judge's sentencing remarks;
  - "ongoing litigation has an impact on the victim's family"
  - "Mr. Eastman denies the offence"
  - "the fact that there is an inquiry into his conviction is irrelevant";
  - "threats of harm from other prisoners";
  - "separates him from the general prison population";
  - "he has a history of treatment for mental health";
  - "he has had limited association with other prisoners";
  - "a history of conflict with nearly every person he has dealt with";

[64]

17. In his submissions of 15 January 2014, the plaintiff elaborated on the grounds of appeal as follows:

[65]

• The contention of invalidity made in Ground 1b relies upon a counsel's advice to the plaintiff's solicitors dated 20 April 2011, which was provided to the Attorney-General.

[66]

• In relation to ground 2a, the plaintiff contends that Ms Bromwich's report of 27 May 2013 was an irrelevant consideration because she wrote it without interviewing him, contrary to an instruction that she had been given.

[67]

• Ground 4 relies on a distinction between the words in section 78 of the Corrections Management Act 2007 (ACT) and the words used in the memorandum of decision.

[68]

18. The statement in ground 2b that "the fact that there is an inquiry into his conviction is irrelevant" is really a complaint by plaintiff that the executive failed to take into account a relevant consideration, being the existence of an inquiry into the plaintiff's conviction.

[69]

19. Ground 3b refers to the remarks of Justice Rares in Eastman v ACT [2013] ACTSC 184 at [20], where his Honour said:

[70]

There is in my view an issue as to whether the limitations on any rehabilitation programs available to Mr Eastman, by reason of his status as a prisoner with no determinate sentence or fixed parole date, conforms with the function under s 7(1)(d) of the Crimes (Sentence Administration) Act, namely the promotion of his rehabilitation and reintegration into society. Given the apparently significantly improved behaviour of Mr Eastman in the past two years it seems to me that one question which may well be relevant for consideration by the Executive, under s 295(1)(b) having regard to its functions under the Act and its obligations under s 40B of the Human Rights Act, is the promotion of Mr Eastman's rehabilitation and reintegration into society and to ensure so far as practicable, in accordance with s 7(2)(a), that he is not subject to further punishment in addition to deprivation of liberty only because of the conditions of his detention. Inaccessibility to rehabilitation programs because of the nature of his sentence may be a matter that needs to be addressed in that regard. Those issues are not presently before me but may well be significant or relevant for, among others, the purposes of the Executive's consideration of the application for release on licence, and the imposition of any conditions, under s 295 of the Crimes (Sentence Administration) Act.

[71]

20. The following issues arise in the proceedings.

[72]

Is the decision reviewable under the ADJR Act?
Is relief available under s 34 B of the Supreme Court Act?
Has the plaintiff established apprehended bias on the part of the Attorney-General?
Is s 295 of the Sentence Administration Act beyond power because it purports to confer judicial power on the Executive?
Is s 295 of the Sentence Administration Act incompatible with ss 21 and 28 of the Human Rights Act 2004 (ACT) (Human Rights Act)?
Did the decision to take into account irrelevant considerations?
Did the decision fail to take into account relevant considerations?
Did the decision involve an error of law in that it misconstrued s 78 of the Corrections Management Act 2007 (ACT) (Corrections Management Act)?
Should the Court exercise its discretion to refuse relief on the grounds of futility?

[73]

21. Section 295 of the Sentence Administration Act enables the Executive to grant or refuse to grant a relevant offender a licence to be released from imprisonment. It provides:

[74]

295 Release on licence - decision by Executive

[75]

(1) In deciding whether to release an offender on licence, the Executive -

[76]

(a) must consider any recommendation by the board under section 294 and its reasons for the recommendation; and

[77]

(b) may consider anything else it considers appropriate.

[78]

(2) The Executive may grant, or refuse to grant, the offender a licence to be released from imprisonment under the offender's sentence.

[79]

(3) The Executive may impose any condition it considers appropriate on a licence.

[80]

22. Release on licence, based on the ticket of leave system granted by the Governor, was provided for in s 409 of the Criminal Law Amendment Act 1883 (NSW). The licence provision was retained in s 463 of the Crimes Act 1900 (NSW). It became the only mechanism enabling the release of prisoners serving indeterminate life sentences following the Habitual Criminals Act 1905 (NSW). After the parole system was established under the Parole of Prisoners Act 1966 (NSW), s 463 was the main form of release on licence: NSW Parliamentary Library Research Service, "Parole: an overview", Briefing Paper No 20/99, at 7.

[81]

23. The Crimes Act 1900 (NSW) was originally applied in the Australian Capital Territory by operation of s 6 of the Seat of Government Acceptance Act 1909 (Cth). Section 463 was repealed in its application to the ACT by s 31(2) of the Crimes (Amendment) Ordinance 1983 (ACT). Subsequently the Crimes Act 1900 (NSW) was taken to be an enactment of the Legislative Assembly, by operation of s 34(4) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act). From the repeal of s 463 until the enactment of Chapter 13 of the Sentence Administration Act, there was no legislative provision for release on licence in the ACT, but offenders serving life imprisonment could be released in the exercise of the royal prerogative of mercy.

[82]

24. At self-government in the ACT, the prerogative of mercy was originally vested in the Governor-General: s 72 Self-Government Act (repealed). By the time that the plaintiff was sentenced, the prerogative of mercy had been vested in the Executive by s 37(d) of the Self-Government Act: Eastman v Chief Executive of the Department of Justice and Community Safety [2012] ACTSC 189 at [46]. The Executive remains entitled to exercise the prerogatives of the Crown, including the prerogative of mercy: Eastman v Attorney-General (ACT) [2007] ACTSC 28; (2007) 210 FLR 440 at [28].

[83]

25. The explanatory statement to the Sentence Administration Act provides at 59 - 61:

[84]

Chapter 13 - Release on licence, remissions and pardons

[85]

Chapter 13 re-makes remedies available to Executive Government that have their origins in the royal prerogative of mercy. The prerogative, being an incident of the common law, can be abrogated or conditioned by statutory law.

[86]

26. Chapter 13 of the Sentence Administration Act establishes a framework for certain decision-making in relation to release on licence of detainees who have been sentenced to life imprisonment and who have served more than 10 years of their life sentence.

[87]

27. Chapter 13 does not affect the prerogative of mercy: s 314A Sentence Administration Act. Rather, Chapter 13 creates an adjunct to the prerogative of mercy as it relates to offenders who have been sentenced to life imprisonment and have served 10 years of their sentence: Eastman v ACT Executive & Australian Capital Territory [2013] ACTSC 53 at [28] and [32].

[88]

28. Sections 290 - 294 of the Sentence Administration Act establish a statutory process that is ancillary to the grant of release on licence. Section 290 enables (but does not require) the Attorney-General to request the Sentence Administration Board (SAB) to examine the circumstances of an offender and enables the SAB to make a recommendation as to whether the offender should be released on licence. Section 293(1) provides that "the public interest is of primary importance" in the SAB's determination of whether to recommend that release on licence is appropriate. Section 293(2) sets out matters that the SAB must consider in deciding whether to recommend release on licence.

[89]

29. Apart from the requirement to consider a SAB recommendation (if one exists), Chapter 13 imposes few express limits or conditions on the Executive's decision-making process in relation to the grant of release on licence. It imposes no duty on the Executive to consider an application. It does not limit the considerations that may be relied upon by the Executive. It does not limit the additional conditions that may be imposed on a licence by the Executive.

[90]

30. Sections 299 - 312 establish a framework supplementary to the grant of release on licence, describing the core conditions, and the manner in which release on licence operates.

[91]

31. Section 303 of the Sentence Administration Act states:

[92]

While released on the licence, an offender is taken to be serving the offender's sentence.

[93]

32. Pursuant to s 5 of the ADJR Act, an eligible person may apply for review of "a decision to which this Act applies". The Dictionary to the Act defines "decision to which this Act applies" as:

[94]

a decision of an administrative character made, proposed to be made or required to be made (whether in the exercise of a discretion not) under an enactment, other than a decision mentioned in schedule 1.

[95]

33. A reference to making a decision includes a refusal to do something: s 3(2)(g) of the ADJR Act.

[96]

34. The defendant argues that the licence decision was not a "decision... made under an enactment" for the purposes of the ADJR Act.

[97]

35. The seminal case in relation to the expression is Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 (Tang). In that case, the High Court found that the words "made under an enactment" required that two criteria be satisfied. At [89], Gummow, Callinan and Heydon JJ said:

[98]

[F]irst, 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.

[99]

36. The defendant concedes that the first Tang criterion is satisfied; a decision to grant a licence was "authorised" under the Sentence Administration Act. However, the defendant argues that the second criterion is not satisfied because the decision not to release the plaintiff on licence had no effect on legal rights or obligations; it merely continued the existing state of affairs for him.

[100]

37. The second criterion in Tang was considered by Lander J in Eastman v Attorney-General for the Australian Capital Territory [2007] ACTSC 28; (2007) 210 FLR 440. In that case the plaintiff had succeeded in obtaining an inquiry into his conviction under s 475 of the Crimes Act 1900 (ACT)(Crimes Act). Section 475 provided for a Supreme Court judge to prepare a report, which would then be dealt with as appeared just to the Executive pursuant to s 475(4). A judge prepared a report that did not recommend that the Executive take any step to set aside the plaintiff's conviction. The Executive decided to take no further action. The plaintiff argued that the decision of the Executive was vitiated by actual bias or an apprehension of bias on the part of the Attorney-General. A preliminary issue was whether the decision of the Executive was made "under an enactment" for the purposes of the ADJR Act. Lander J found that the decision was made under s 37(d) of the Self-Government Act, which was not an "enactment" for the purposes of the ADJR Act because the ADJR Act only applied to ACT legislation and the Self-Government Act was a Commonwealth enactment: [43]. His Honour also considered that the Executive's discretion in relation to exercise of the prerogative of mercy was not amendable to judicial review.

[101]

38. The plaintiff appealed to the ACT Court of Appeal: Eastman v Australian Capital Territory (2008) 227 FLR 262. Stone and Dowsett JJ (with whom Moore J substantially agreed) held that, for the reasons identified by Lander J, the Self-Government Act did not meet the definition of "enactment" for the purposes of the ADJR Act: [27]. Their Honours went on to state that, even if this view was incorrect and the Executive's decision was made under the Crimes Act, the decision was still not made "under an enactment" because at [29] that:

[102]

In our view the decision to take no action had no capacity to affect legal rights. There was never any right to action by the Executive, and so no such right was affected. One might say that there was potential for a favourable exercise of some discretion derived from some other source but, as far as we know, any such potential remains, notwithstanding the decision.

[103]

39. Edmonds J reached a similar conclusion in Eastman v Besanko [2009] ACTSC 10; (2009) 223 FLR 109. In that case, the plaintiff had made an application under s 424(1) of the Crimes Act asking the Supreme Court to order an inquiry into his conviction. Under s 422(1)(f) of the Crimes Act, only one application can be made in relation to any particular doubt or question about a person's guilt. The Court (constituted by Besanko J) refused to order an inquiry. The plaintiff sought judicial review of the decision under s 5 of the ADJR Act on the basis of Wednesbury unreasonableness. Edmonds J accepted at [8] that s 3A(1) of the ADJR Act means that a refusal to make an order amounts to the "making of a decision" for the purposes of the Act. At [14], his Honour referred to the plaintiff's submission that, prior to the decision, he had "the potentiality to obtain an order for an inquiry" which the decision "definitively removed" (the plaintiff claimed that the potentiality satisfied the second Tang criterion), but his Honour found that "it is not the decision which 'shuts out' the potentiality to which the plaintiff points, but the application itself".

[104]

40. The plaintiff appealed the decision. The ACT Court of Appeal dismissed the appeal in Eastman v Besanko [2010] ACTCA 15; (2010) 244 FLR 262. Penfold and Graham JJ considered that a decision to refuse to order an inquiry did not itself confer, alter or otherwise affect legal rights or obligations. Therefore, there was no decision made under an enactment. At [12] Penfold J said that:

[105]

Interpreted by reference to the comments (in Tang at [79] - [81]), the second element of the test may be expressed as in turn having two elements, such that the whole test is as follows:

[106]

(a) the decision must be expressly or impliedly required or authorised by the enactment;

[107]

(b) the decision must itself confer, alter or otherwise affect legal rights or obligations (whether existing or otherwise and whether or not owing their existence to the enactment); and

[108]

[109]

A decision to order or not to order an inquiry under s 424 of the Crimes Act was undoubtedly "authorised" by the Crimes Act. However, where ss 422 to 425 do "not create a right to the order of an inquiry" and do "not create a duty to order an inquiry", it seems to me that the decision of the respondent not to order an inquiry did not itself bear upon any legal rights or obligations of the appellant. Thus, the decision did not derive from the enactment. In my opinion the test laid down in Griffith University v Tang has not been satisfied.

[110]

42. Similar considerations apply in the present case. The decision to refuse release on licence does not affect the plaintiff's legal rights or obligations. The plaintiff has neither a statutory right to the grant of release on licence nor a statutory right to have the Executive consider his application for release on licence. Had the Executive chosen to grant the plaintiff's application, then arguably the decision would have affected his rights and obligations, at least because it brought into play the statutory obligation to comply with licence conditions and directions: s 300 of the Sentence Administration Act. However, the refusal to release the plaintiff on licence does not alter his rights or obligations; it leaves him in the same position as before the refusal.

[111]

43. Nor does the decision affect future rights or obligations. The refusal of one application for release on licence made under Chapter 13 does not "shut out" future Chapter 13 applications or future Chapter 13 decisions favouring a prisoner. In contrast to s 422 of the Crimes Act, under Chapter 13 there is no limit to the number of applications for release on licence that may be made. Indeed, no application is needed at all. The Executive may of its own volition determine to release a prisoner on licence. Further, regardless of Chapter 13, the broad power to exercise the prerogative of mercy is unconstrained by any limitations that may apply to Chapter 13: s 314A of the Sentence Administration Act.

[112]

44. The plaintiff submitted that, in the circumstances of this case, the refusal of the Executive to grant him release on licence did affect his rights because the order of mandamus made by Rares J required the Executive to consider his application. In future, in the exercise of its discretion, the Executive could refuse to consider an application for release on licence. The flaw in this submission is that the loss of a right to consideration associated with the impugned decision flows from the order made by Rares J, not from the Sentence Administration Act itself. As there is no right to consideration under the Sentence Administration Act, there is no loss of right that flows from a decision under an enactment.

[113]

45. The decision is not reviewable under the ADJR Act as it is not a decision "made under an enactment".

[114]

Is relief available under s 34B of the Supreme Court Act?

[115]

46. It is unnecessary to decide whether prerogative relief is available in the form of orders in the nature of certiorari, mandamus or prohibition. For the reasons appearing below, there is no error of law or breach of procedural fairness that warrants the grant of relief under s 34B of the Supreme Court Act. However, in deference to the submissions of the parties, the question of relief under s 34B of the Supreme Court Act is discussed briefly.

[116]

47. If an error or breach of procedural fairness had been established, declaratory relief may have been available.

[117]

48. An order in the nature of mandamus would be appropriate only if the Executive was under a public duty either to consider whether to exercise the power to grant a licence or to decide whether to grant a licence: Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at [99] (M61).

[118]

49. In very limited circumstances, s 295 imposes a "duty" to consider. Section 295(1)(a) requires that, in deciding whether to release an offender on licence, the Executive "must consider any recommendation by the (SAB) under section 294 ..." However, in this case, no such recommendation had been made. No duty arose under s 295.

[119]

50. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 56 (Ainsworth) the High Court considered a report that was prepared and tabled in Parliament by the Criminal Justice Commission under the Criminal Justice Act 1989 (Qld). At 579 Mason CJ, Dawson, Toohey and Gaudron JJ said that:

[120]

The claim for relief by way of mandamus is based on the view that the Commission is under a duty to investigate and report with respect to the appellants in relation to the introduction of poker machines into Queensland. That view is misconceived.

[121]

51. Similarly, in M61 at [99] - [100], the High Court held that, because the Minister had no duty to consider whether to exercise a statutory power, mandamus could not issue to compel him to consider exercising the power. Although the Minister had decided to exercise the power and his exercise of power had miscarried, mandamus requiring reconsideration was not warranted. The unavailability of mandamus meant that there was no utility in granting certiorari. However, the Court did grant declaratory relief on the basis that the performance of important international obligations was at issue, and because of the public interest in the observance of procedural fairness in the exercise of the relevant powers: [103].

[122]

52. As the Executive is not obliged to consider exercising the power to release an offender on licence, it is difficult to see that the Executive's decision to consider exercising the power (in this case evidenced by the Chief Minister's letter to the plaintiff) could provide a sufficient basis for making an order in the nature of mandamus to remedy a miscarriage in relation to that consideration.

[123]

53. An order in the nature of certiorari is inappropriate because the decision does not affect legal rights; it has no legal effect or legal consequence. The function of certiorari is "to quash the legal effect or the legal consequences of the decision or order under review": Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ at 580. In Ainsworth there had been a failure to observe the requirements of procedural fairness in relation to a report, but certiorari did not lie because no legal consequences attached to the report in question. However, as noted above declaratory relief was ordered. In Hot Holdings Ltd v Creasy (1996) 185 CLR 149 at 159 a majority of the High Court (Brennan CJ, Gaudron and Gummow JJ) having considered Ainsworth stated:

[124]

Thus for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

[125]

54. In Eastman v Besanko [2009] ACTSC 10; (2009) 223 FLR 109 the plaintiff had applied for review of a decision refusing to order an inquiry into his conviction under s 424 of the Crimes Act. An inquiry would have resulted in a report. Referring to Ainsworth at 580-581, at [20] Edmonds J said:

[126]

The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities. A report or a recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari. But the Commission's report is not in that category... There being no legal effect or consequence attaching to the report, certiorari does not lie to correct the failure of the Commission to comply with its duty to proceed in a way that was fair to the appellants.

[127]

55. For the reasons set out at [42] - [44] the decision to not release the plaintiff on licence is a decision with no legal effect or legal consequence.

[128]

56. The question of the availability of an order in the nature of prohibition, prohibiting the Attorney-General from involvement in the Executive's reconsideration of a licence application is too hypothetical to justify consideration in the circumstances of this case.

[129]

Has the plaintiff established apprehended bias on the part of the Attorney-General?

[130]

57. The plaintiff says that a fair-minded observer would reasonably apprehend bias or pre-judgement on the part of the Attorney-General because of the following matters:

[131]

The plaintiff has spent 18 years in custody.
On 3 September 2012 Marshall J ordered an inquiry into the plaintiff's conviction pursuant to s 424 of the Crimes Act. His Honour could only have done so if he was satisfied that there was a doubt a question about whether the plaintiff was guilty of the offence: s 422(1) Crimes Act.
The Executive procrastinated in responding to the plaintiff's application of 29 June 2012 until November 2012, when the Attorney-General made a "non-decision". Following the order of mandamus made by Rares J on 25 February 2013, there was a further delay in the Executive dealing with the matter, which resulted in the plaintiff taking further proceedings.
In the further proceedings (Eastman v ACT [2013] ACTSC 184), Rares J observed that the Executive's consideration of the licence applications made by the plaintiff had "an unfortunate appearance" (at [25]) and was "close to the line" (at [29]) in relation to apprehended bias.
A comparison of the document setting out the considerations identified by the Executive as relevant prior to receipt of the plaintiff's submissions with the memorandum of final decision suggests that the weighty material provided by the plaintiff had little, if any, impact on the Executive's preliminary views. The plaintiff submitted that the memorandum of decision seems to have been "cut and pasted" from the earlier document.
The Executive chose to rely on old information (which was against the plaintiff, suggesting that he had psychological problems and/or a propensity to violence), obtaining only one recent report, and ignoring the significant recent information furnished by the plaintiff (which suggested that there was no significant psychological problem or propensity to violence).
The Executive disregarded the decision of Rares J in , particularly the observations at [20] concerning the failure to provide the plaintiff with access to rehabilitation programs that might support his reintegration into society, and the need to address that matter in accordance with the requirements of the and the .

[132]

58. In Eastman v Attorney-General for the Australian Capital Territory [2007] ACTSC 28; (2007) 210 FLR 440 at [78] - [79], Lander J found himself constrained by the authority of Horowitz v Connor [1908] HCA 33; (1908) 6 CLR 38, in which the High Court held that there was no power to review the exercise of the prerogative of mercy, when it was exercised by the Governor-General. But although there was no power to review the exercise of the prerogative of mercy, Lander J considered that the decision-making process itself was, to a limited extent, subject to judicial review in relation to the requirements of procedural fairness: [78] - [80].

[133]

59. The same conclusion was reached by Rares J in Eastman v ACT Executive, Australian Capital Territory and Another [2013] ACTSC 53. In that case, Rares J considered Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319, noting that it raised somewhat similar issues, although in a different legislative context. His Honour concluded that, once the Executive decided that it would consider an application for release on licence, it had a duty to accord procedural fairness in that consideration: at [36] - [38].

[134]

60. In these proceedings, the defendant accepts that, once the Executive determined to consider the plaintiff's application, the plaintiff was entitled to procedural fairness in relation to that consideration.

[135]

61. The defendant contends that the plaintiff is "estopped" from arguing apprehended bias on the part of the Attorney-General because the same issue was determined in Eastman v Australian Capital Territory [2013] ACTSC 184 on 28 August 2013, in which the plaintiff raised matters that are the subject of the current claim of apprehended bias.

[136]

62. In that case, the plaintiff raised four matters to support his claim of apprehended bias on the part of the Attorney-General. First, he relied upon the Attorney - General's rejection of his previous applications for release on licence. Second, he relied upon the Executive's apparent inaction in failing to comply with the order in the nature of mandamus until after the matter was brought back to Court on 13 May 2013 by the plaintiff. Third, he referred to the request that Corrective Services assist the Executive to make its decision, updating the information in two 2010 affidavits. Fourth, he relied upon the letter to the plaintiff that identified the issues adverse to the plaintiff that the Executive intended to consider in making its decision, and the attached documents, including Ms Bromwich's report of 27 May 2013.

[137]

63. While some of the matters raised by the plaintiff in support of his argument of apprehended bias in these proceedings were raised in the proceedings before Rares J, others were not. In particular, the matters identified at 5, 6 and 7 above arose after the apprehended bias proceedings before Rares J. Because new matters have arisen and the plaintiff relies upon an accumulation of matters to establish his aim of apprehended by, he is not "estopped" from arguing apprehended bias in the current proceedings.

[138]

64. The test for apprehended judicial bias is that stated by the majority of the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 345 (Gleeson CJ, McHugh, Gummow and Hayne JJ):

[139]

[The application of the apprehension of bias principle] requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an interest in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

[140]

65. That test for apprehension of bias is directed at judicial decision-making, although it also has relevance to non-judicial decision-making. When considering the content of apprehended bias in non-judicial contexts, regard must be had to the statutory functions and powers of the decision-maker: Duncan v Ipp [2013] NSWCA 189; (2013) 304 ALR 359, in which Bathurst CJ applied the principles articulated in McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504. In McGovern v Ku-ring-gai Council at [507]-[508] Chief Justice Spigelman stated:

[141]

Each of the elements in the apprehension of bias principle requires a context specific approach which may, and usually will, differ from that appropriate for a judicial decision-making process.

[142]

In each case the Court must have an understanding, in the particular context of:

[143]

What is the process involved in resolving the question that the decision-maker is required to decide.
What may constitute an absence of impartiality or lack of prejudice in the mind of the decision-maker?
What might a fair minded lay observer... reasonably apprehend as to the above two matters.

[144]

How the apprehended bias test is applied is... affected by the statutory functions being performed and by the identity and nature of the decision-maker who is obliged by statute to perform those functions. The content of what the test requires varies from one context to another by a process involving, and usually determined by, statutory interpretation.

[145]

66. I adopt the observations of Rares J in Eastman v Australian Capital Territory [2013] ACTSC 184 at [21] - [29], where his Honour discussed the correct approach to a consideration of apprehension of bias in relation to decisions made by the Executive:

[146]

[21] Because the decision-makers in this case are members of the Executive and therefore Ministers of the Territory, the court does not approach the assessment of apparent bias in the same way as it would in cases of judicial officers or administrative tribunals, particularly those which are independent of the Executive. Gleeson CJ and Gummow J discussed the function of the Minister under a particular section of an Act in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 539 [102] saying:

[147]

The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. There is no reason to conclude that the legislature intended to impose such standards upon the Minister, and every reason to conclude otherwise.

[148]

[22] I am of opinion that, despite differences in the statutory scheme here, similar considerations apply to an assessment of the appearance of bias in the performance by members of the Executive of the function of considering applications for release on licence. This is particularly so in cases such as Mr Eastman's, where the person concerned has been the subject of considerable and, indeed, almost constant, controversy in the public eye and in the courts for many years preceding and subsequent to his conviction. It would be unrealistic to expect Ministers to have expressed or formed no public or other views about Mr Eastman, having regard to his engagement in disputes from time to time with members of the Executive, whatever the rights and wrongs of those matters may be.

[149]

[23] The critical question in determining whether or not the Attorney-General has given the appearance of bias must be assessed on the basis described by Hayne J, with whom Gleeson CJ and Gummow J agreed on this point (at 538 [100]), in Jia 205 CLR at 565 [187] when he said:

[150]

Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker.

[151]

[24] As his Honour pointed out, even in the case of an allegation of actual bias, preconceived opinions by a judge, although unfortunate if he or she has them, do not constitute, of themselves, such a bias or an expression of opinion because it does not follow that, in considering the case at hand, the evidence or arguments will be disregarded by the judge. Hayne J observed that a similar principle applies to allegations of apprehended bias through prejudgment (Jia at [186]).

[152]

67. Ultimately, despite the "unfortunate appearance" of the consideration and the fact that he found that the "case is close to the line", Rares J was not satisfied that an objective observer or fair-minded person would consider that the Attorney - General's mind was closed to considering the further material that the plaintiff had put forward, or would be closed to considering the relevant statutory provisions to which his Honour drew attention.

[153]

68. I turn to consider the matters raised by the plaintiff in support of his claim of apprehended bias: see [57].

[154]

69. The period of 18 years that the plaintiff has spent in custody is mentioned in the decision and it appears to have been taken into account. While it is a long period, neither of itself nor in conjunction with other considerations would that period cause a fair-minded observer to reasonably apprehend pre-judgment on the part of a decision-maker who refused to grant release on licence to a prisoner who had served that period in custody.

[155]

70. For the reasons indicated at [100] and [113] the Executive was entitled to treat the fact that an inquiry into conviction was ordered under s 424 as not relevant to the licence application and a determination of apprehended bias is not informed by the failure of a decision-maker to give consideration to the existence of an inquiry.

[156]

71. Procrastination by the Executive and the making of a "non-decision" does not evidence apprehended bias; it is consistent with lengthy consideration of difficult subject matter or other explanations.

[157]

72. One of the matters that concerned Rares was the failure to provide the plaintiff with access to rehabilitation programs. Belatedly, the Executive has acknowledged the deficiency in that regard and has taken steps to address it. A complaint of failure to provide the plaintiff with access to rehabilitation programs cannot provide significant evidence in support of the claim of apprehended bias in circumstances where steps have been taken (albeit belatedly) to provide such access.

[158]

73. A comparison of the document setting out the considerations identified as relevant by the Executive with the memorandum of decision does show considerable "cut and paste". Further, the memorandum of decision makes only passing reference to the weighty material provided by the plaintiff, and it emphasises old information rather than the recent information provided by the plaintiff. However, when one compares the two documents one can discern a clear shift of emphasis; there is a move away from criticising the plaintiff for failing to demonstrate progress and towards accepting responsibility for failing to provide the plaintiff with opportunities to demonstrate progress. Given the assertion in the memorandum decision that the plaintiff's submissions and supporting documentation were considered and the change of emphasis, one could not conclude that the Attorney-General (or the Executive generally) was not open to persuasion.

[159]

74. In any event, a fair-minded observer would not necessarily expect that, in relation to a controversial matter, a Minister would demonstrate the same degree of neutrality as would be demonstrated by a judge. As Rares J pointed out in Eastman v ACT, it is expected that Ministers will take into account a wide range of factors and sources of information. A Minister may well approach a task such as consideration of a licence application with a preconceived opinion; the question is whether the Minister is open to changing any preconceived opinion.

[160]

75. In this case, the plaintiff has fallen well short of establishing that, either individually or in combination, the matters that he has identified would cause a fair-minded observer to conclude that the Attorney-General is not prepared to give genuine consideration to any licence application made by the plaintiff. The plaintiff's contention in relation to apprehended bias is further undermined by the fact that the decision under review was made by two members of the Executive, the Chief Minister and the Attorney-General, and there is no claim of apprehended bias in relation to the Chief Minister.

[161]

Is s 295 of the Sentence Administration Act beyond power because it purports to confer judicial power on the Executive?

[162]

76. The plaintiff submits that s 295 of the Sentence Administration Act is invalid for the reasons given by senior counsel in an opinion provided prior to the decision of Penfold J in Eastman v Chief Executive, Department of Justice and Community Safety [2012] ACTSC 189; (2012) 274 FLR 255 (Eastman v Chief Executive). Critical to counsel's opinion that s 295 of the Sentence Administration Act may be incompatible with the Human Rights Act and may infringe the "separation of powers" in the ACT was counsel's view that decisions under s 295 may be an exercise of judicial power.

[163]

77. In Eastman v Chief Executive at [24] - [28] Penfold J discussed whether s 295 of the Sentence Administration Act was invalid because it impermissibly conferred judicial power on the Executive. Her Honour considered the UK case of R v Home Secretary; Ex parte Anderson [2002] EWCA Crim 747; [2003] 1 AC 837 (Anderson) in which it was held that the power of the Home Secretary to fix a "tariff" (an appropriate punitive term of imprisonment) was an invalid conferral of judicial power on the Executive. Penfold J summarised the relevant facts in Anderson at 260 [22]-[23]:

[164]

The Home Secretary, acting on advice from the trial judge and the Lord Chief Justice, and from departmental officials, would set a "tariff" (being the appropriate punitive term of imprisonment). The Home Secretary had not always accepted the judicial recommendation as to the appropriate tariff. In due course, as the convicted murderer approached the end of the "tariff" term, the Parole Board considered whether his or her continued confinement was necessary for the protection of the public. If that continued confinement was necessary, the Home Secretary had no power to release. If the Parole Board recommended release on licence, the Home Secretary could, but was not obliged to, order the convicted murderer's release.

[165]

The Law Lords held that the Home Secretary's function in fixing the tariff (rather than the subsequent decision whether to release the offender after the end of the tariff period) was "a classical sentencing function" and that accordingly its performance by a member of the executive rather than "an independent and impartial tribunal" breached the guarantee in Art 6(1) of the European Convention on Human Rights which provides:

[166]

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

[167]

78. Her Honour considered that Anderson did not assist the plaintiff because (at [26]):

[168]

what the House of Lords found was a judicial function was not the function of deciding whether to release a prisoner on licence but the function of fixing the period during which the prisoner could not be released on licence.

[169]

79. Consequently, her Honour rejected the plaintiff's arguments that s 295 of the Sentence Administration Act is invalid because it purports to vest a judicial power in the ACT Executive.

[170]

80. The decision of Refshauge ACJ in R v Lewis [2013] ACTSC 198; (2013) 280 FLR 118 supports the view that the power to release on licence is not a judicial power. In that case, the Court had sentenced the offender to imprisonment by way of periodic detention pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT). The plaintiff failed to attend the periodic detention centre on a number of occasions. Having conducted an inquiry under s 66 of the Sentence Administration Act, pursuant to s 69 the SAB cancelled the plaintiff's periodic detention. The plaintiff was required to serve the remainder of the sentence by full-time detention under s 79 and 82. The plaintiff argued that 68(2)(f), 69, 79 and 82 were invalid either because they impermissibly conferred federal judicial power on a body other than a court or because they conferred powers that could impair the institutional integrity of the ACT Supreme Court. His Honour was not persuaded that the cancellation of periodic detention by the SAB is the imposition of a sentence and so an exercise of judicial power. At [242] - [243] his Honour remarked:

[171]

The defendants also referred to the other significant occasions where the Executive can validly interfere with judicially imposed sentences in the way they are served. These include local leave (s 205 of the Corrections Management Act), parole (s 135 of the Sentence Administration Act), release on licence (s 299 of the Sentence Administration Act), remission of penalties, including a sentence of imprisonment (s 313 of the Sentence Administration Act) or a pardon (s 314 of the Sentence Administration Act). All of these are purely Executive acts which modify or negate in whole or in part the sentence imposed by the court.

[172]

It is especially relevant that, so far as parole and release on licence are concerned, the offender is, during the period of parole (unless revoked) or licence, taken to be serving the sentence (ss 140 and 303 of the Sentence Administration Act respectively). This is similar to the position with periodic detention under s 41A of the Sentence Administration Act, which provides a relevant symmetry.

[173]

81. The prerogative of mercy was once available to address error in the criminal justice system. The introduction of statutory schemes for criminal appeal has significantly limited its use. While the prerogative of mercy is still available, the introduction of statutory schemes in the Crimes Act allowing courts to hear and determine applications as to doubts or questions about guilt (ss 422, 424), to conduct inquiries into conviction (s 427) and to make orders regarding convictions and trial (s 429) provides a further indication that the prerogative of mercy (and, by analogy, the statutory power to release on licence) are not intended to be a substitute for the judicial process.

[174]

82. If there was any doubt about the nature of the power to release on licence s 303 of the Sentence Administration Act provides that an offender who is released on licence "is taken to be serving the offender's sentence" and the explanatory statement to the Sentence Administration Act at p. 61 provides that:

[175]

[R]elease on licence does not overturn or set aside a sentence of life imprisonment, it simply authorises the person's conditional release from detention. The legal status of the offender is that they are continuing to serve their life sentence albeit they are not in prison. In Haley v Commissioner of Corrective Services [1975] 1 NSWLR 118, the court found that a sentence continues to run while released on licence, and the licence only commutes the incidents of the sentence (detention) but not the sentence itself.

[176]

83. The power exercised by the Executive under Chapter 13 does not interfere with the sentencing discretion of the Court. The sentence remains in place, but the manner of serving the sentence is altered. Consequently, the power of the Executive to release a prisoner on licence is not a judicial power. The power under s 295 creates an adjunct to the prerogative of mercy as it relates to offenders who have been sentenced to life imprisonment and have served 10 years of their sentence: Eastman v ACT Executive & Australian Capital Territory [2013] ACTSC 53 at [28] and [32]. The exercise of the prerogative of mercy is a quintessentially Executive function. Similarly, the statutory discretion to grant release on licence is an Executive and not a judicial function.

[177]

84. The plaintiff's contention that s 295 of the Sentence Administration Act invalidly infringes the separation of powers must be rejected.

[178]

Is s 295 of the Sentence Administration Act incompatible with ss 21 and 28 of the Human Rights Act?

[179]

85. The plaintiff's contention that s 295 of the Sentence Administration Act is incompatible with ss 21 and 28 of Human Rights Act depends upon a finding that s 295 impermissibly confers a judicial power upon the Executive. I have found that it does not. Consequently, the contention of incompatibility must be rejected.

[180]

86. Section 21(1) of the Human Rights Act provides:

[181]

Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

[182]

87. Section 28 provides:

[183]

(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.

[184]

88. As the power that is exercised by the Executive under s 295 is not a judicial power, the s 21 right to a fair trial is not engaged.

[185]

89. Further, as Penfold J noted in Eastman v Chief Executive of Department of Justice and Community Safety [2012] ACTSC 189 at [37]:

[186]

A declaration that the relevant legislation was incompatible with s 21 of the Human Rights Act in conferring that power on the Executive would only require the Attorney-General to bring the declaration of incompatibility to the attention of the Legislative Assembly (s 33, Human Rights Act).

[187]

Did the decision take into account irrelevant considerations or fail to take into account a relevant consideration?

[188]

90. The matters that a decision-maker may take into account when exercising a statutory function are to be determined by construing the empowering statute, considering the express terms or the subject matter of the legislation, and its scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 36 (Peko-Wallsend). It is only when a decision-maker fails to take account of a consideration which he or she must take into account, or takes account of a consideration which he or she must not take into account that an applicant for judicial review will be able to make out the relevant and irrelevant consideration grounds respectively. Mason J in giving the principal judgment in Peko-Wallsend at 39 stated that:

[189]

The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 at 375; CREEDNZ Inc v Governor-General (1981) 1 NZLR 172 at 183, 196-197; Ashby v Minister of Immigration [1981] 1 NZLR 222 at 225, 230, 232-233. The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 228, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider."

[190]

91. Deane J in Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 at 375 considered that a failure to consider an "exhaustive list of all the matters which the decision-maker might conceivably regard as relevant" was not a ground for judicial review.

[191]

92. The grounds of review relating to relevant and irrelevant considerations are "concerned essentially with whether a decision-maker has properly applied the law" and not with "the process of making particular findings of fact upon which the decision-maker acts": Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 348. Where the principles of construction outlined in Peko-Wallsend point to a broad or unfettered discretion, it is generally for the decision-maker to decide what is relevant: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at [525]

[192]

93. It has already been noted that the Sentence Administration Act confers a broad discretion on the Executive to determine whether or not to release on licence. Under s 295 the Executive "must consider any recommendation of the board". A failure to do so would be a failure to take into account a relevant consideration, but in this case there is no such recommendation of the SAB. Section 295(1)(b) further provides that the Executive "may consider anything else it considers appropriate". Section 295(1)(b) confers a very broad discretion upon the Executive that allows the Executive by and large to decide what is or is not relevant.

[193]

94. While it is possible to conceive of a case where the Executive took into account a matter so irrelevant that the Executive was impliedly prohibited from taking the matter into account by the structure, subject matter, scope and purpose of the statute the plaintiff's complaints in relation to the matters considered and not considered by the Executive do not fall into that category.

[194]

95. I turn to consider the matters upon which the plaintiff relies as "irrelevant considerations".

[195]

96. Failure of Ms Bromwich to interview the plaintiff - The reasons that Ms Bromwich did not interview the plaintiff prior to preparation of her report are not known. While an interview with the plaintiff may have provided significant information, there was no obligation on anyone to undertake an interview. The report itself was clearly relevant; it addresses the plaintiff's conduct, including his discipline and classification, and his participation in programs, considerations that the Sentence Administration Act regards as relevant to the release of a prisoner on licence: see s 293 (2)(g).

[196]

97. Misrepresentation of the sentencing remarks - The decision does not "misrepresent" the trial judge's sentencing remarks; it merely notes that sentencing remarks say nothing significant one way or the other about the appropriateness of release on licence.

[197]

98. Impact on the victim's family of ongoing litigation - Whether the impact on the victim's family of "ongoing litigation" by the plaintiff is relevant to a licence decision may be doubted, but it is clear that the views of victims are relevant in a general sense. Where the SAB has made a recommendation about release, the Executive must consider the SAB's reasons and, when the SAB is deciding whether to recommend release on licence, s 293 (2)(b) and (c) require the SAB to consider the views of victims. The observations in the memorandum of decision regarding impact on the victim's family do not appear to have been important to the decision.

[198]

99. Continued denial of the offence - The plaintiff's continued denial of the offence may be a relevant consideration; it is related to the s 293 (k) requirement that the SAB must consider an offender's acceptance of responsibility for the offence.

[199]

100. Existence of an inquiry - The Executive was entitled to treat the existence of an inquiry into the conviction as irrelevant to their consideration. At law, the plaintiff remains a convicted offender and is to be treated as such.

[200]

101. Threats of harm from other prisoners - If "threats of harm from other prisoners" was considered to be a matter that militated against the ground release on licence (and the memorandum of decision does not make clear how this matter was taken into account), then I fail to understand the rationale of that approach. However, this is ultimately a matter for the Executive.

[201]

102. Interaction with other prisoners - The assertions that the improvement in the plaintiff's conduct occurred "in an environment where he has been placed in special accommodation that effectively separates him from the general prison population" and that "he is ... not mixing with the general population of the AMC" are disputed by the plaintiff. He relies on the affidavits that he furnished to the Executive to show that he has considerable and positive interaction with other prisoners. However, the observations about interaction with other prisoners relate to the facts, and on this application the facts are not open for reconsideration.

[202]

103. Ongoing psychological condition - The plaintiff argues that there was no analysis of his "history of treatment for mental health" and that a proper analysis would merely disclose that, many years ago, he received diagnoses such as anxiety which have no bearing on his suitability for release to licence in 2013. In a similar vein, the plaintiff says that, contrary to the assertion made in the memorandum of decision, Corrective Services records contain no "evidence" of an "ongoing mental illness, condition or disorder" (emphasis added), let alone evidence of an illness, condition or disorder that is associated with a risk of violence or other criminal behaviour. This complaint relates to factual findings, which are not open to review.

[203]

104. History of conflict - The plaintiff contends that the rather colourful allegation of "a history of conflict with nearly every person he has dealt with" is not borne out by the available material. To the contrary, the eight affidavits provided by the plaintiff go no further than establishing an historical propensity to verbally engage with officers in an argumentative fashion. This complaint relates to factual findings.

[204]

105. Charges were outstanding at conviction - The plaintiff states that it is factually incorrect (and, in any event, irrelevant) that "a significant number of charges were outstanding at his conviction, but were never finalised". If the assertion is correct, the relevance is unclear to me. However, this is a matter for the Executive.

[205]

106. Most of the complaints made by the plaintiff relate to findings of fact made by the Executive and/or the weight that the plaintiff infers was given to matters, e.g. that greater weight was given to historical conduct and lesser weight to recent conduct.

[206]

107. Judicial review proceedings are not a review of the merits of a decision; particularly where the decision involves the exercise of a broad discretion and it is largely open to the decision-maker to decide what is or is not relevant. It is not for the reviewing court to substitute its own view about what should or should not have been taken into account, or about the weight that should attach to various considerations.

[207]

108. Probably on any view, an important consideration for the Executive was the public interest and the related question of community safety. This consideration involves an assessment of the risk to the community and whether any risk can be addressed by supervision and rehabilitation in the community. It was on this consideration that the decision of the Executive hinged. Having taken into account a wide range of matters, the Executive decided:

[208]

the risk to the community arising from Mr Eastman's apparently established and long-standing the (sic) cycle of behaviour outweighs any other factor at this time.

[209]

109. The plaintiff has not established that the decision of the Executive was based on an irrelevant consideration.

[210]

110. The plaintiff submits that the Executive failed to take into account as relevant considerations:

[211]

The plaintiff's submission dated 5th July, 2013 and 8 attached affidavits; and
The remarks of Rares J in Eastman v ACT [2013] ACTSC 184 at [20] concerning s 7 of the Sentence Administration Act and s 40B of the Human Rights Act (see [17] above).
The existence of an inquiry into the plaintiff's conviction.

[212]

111. The memorandum of decision notes that the Executive "has considered the response to [the] material provided on behalf of Mr Eastman [by ACT Legal Aid]." It may be regrettable that the material was dismissed in such perfunctory manner, but there is no evidence that the Executive did not consider the material. As such the complaint is merely a matter of the weight given to the material.

[213]

112. The substance of the comments by Rares J at [20] may be a relevant consideration. It may be relevant for the Executive to consider "the promotion of [the plaintiff's] rehabilitation and reintegration into society and to ensure so far as practicable that he is not subject to further punishment in addition to deprivation of liberty only because of the conditions of his detention". The Executive did consider those matters: see [97] above.

[214]

113. The Executive was entitled to treat the existence of an inquiry into conviction, or a decision by the Supreme Court that a doubt or question exists requiring such an inquiry, as not relevant to the exercise of the Executive's discretion to release on licence. Unless and until the present inquiry into conviction is completed, and an order is made by the Supreme Court, the plaintiff must be treated as an offender who has been duly convicted and is guilty of the offence.

[215]

114. The plaintiff has not established that the Executive failed to take relevant considerations into account.

[216]

Did the decision involve an error of law in that it misconstrued s 78 of the Corrections Management Act?

[217]

115. The plaintiff submitted that "the decision involved an error of law, because it stated that the legislative scheme provides that a principal function of corrections and sentence administration is to prepare a prisoner for "possible release", when in fact section 78 of the Corrections Management Act states that the chief executive must prepare all prisoners (including life prisoners) for "lawful release and reintegration into society at the earliest possible time."

[218]

116. Section 78 of the Corrections Management Act requires the Director-General of the Justice and Community Safety Directorate to prepare a case management plan for a detainee that, among other things, "outline[s] how the detainee is to be prepared for lawful release and reintegration into society at the earliest possible time". The memorandum of decision states that the legislative scheme reflected in the Corrections Management Act "recognises that preparing a prisoner for possible release is a principle function of corrections and sentence administration" and that the discharge of this function "involves encouraging and assisting offenders to rehabilitate and reintegrate into society".

[219]

117. The distinction sought to be drawn by the plaintiff between the words used in the Corrections Management Act and the words used in the memorandum of decision is a distinction without difference. That distinction could have had no significant bearing on the decision under review.

[220]

118. The defendant submits that the grant of relief would be futile because, on an application for release on licence, the public interest is a critical consideration and the evidence that is currently available does not enable the Executive to determine that release of the plaintiff is consistent with the public interest. In the memorandum of decision that is under review, the Executive observed that there was "no clear evidence about the precise nature, diagnosis or prognosis of any psychiatric or personality problem and its possible effects [on the plaintiff's behaviour]".

[221]

119. A superior court with the power to make an order in the nature of certiorari or mandamus and a court making an order under s 17 of the ADJR Act has an inherent or implied discretion to refuse relief where the grant of relief would be futile because as no different result would have been reached: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [57] - [58] (Gaudron and Gummow JJ). However, before exercising its discretion to refuse relief, the Court should be satisfied to a high degree of certainty that relief will be futile: Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181 at [48] (Besanko J).

[222]

120. The terms of the decision under review provide strong evidence that, if the Executive was required to reconsider the application for release on licence on the available material, it would almost certainly refuse the application in the public interest due to the absence of expert evidence concerning the plaintiff's current psychological state and the absence of evidence demonstrating rehabilitation. It is very likely that the Executive would find that a licence should be favourably considered only after appropriate expert assessments had been undertaken and suitable programs had been undertaken. In considering whether relief should be refused in the exercise of discretion, it would be relevant to take into account the fact that there is no restriction on the number of applications for release on licence that may be made. On the other hand, in relation to the decision under review the plaintiff has the benefit of the order in the nature of mandamus made by Rares J and there is no requirement that the Executive consider future applications.

[223]

121. In this case, it is unnecessary to decide whether relief would be futile, as no error or breach of procedural fairness has been established.

[224]

I certify that the preceding one-hundred and twenty-one (121) numbered paragraphs are a true copy of the Judgement of her Honour Chief Justice Murrell.

(2008) 72 NSWLR 504

Eastman v Australian Capital Territory [2014] ACTSC 105

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (224 paragraphs)

Eastman v Australian Capital Territory [2014] ACTSC 105 (22 May 2014)

Parties

Legislation Cited (36)

Cases Cited (21)