Eastman v The Honourable Jeffrey Allan Miles [2007] ACTSC 27 (9 May 2007)

ACT v Cavanagh [2004] ACTSC 107; (2004) 185 FLR 455 referred to

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 cited

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 cited

Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 referred to

Eastman v Director of Public Prosecutions [2003] HCA 28; (2003) 214 CLR 318 cited

Eastman v Miles [2004] ACTSC 32; (2004) 181 FLR 418 not followed

18. On 13 February 2006 the matter came on before me when the applicant was represented by a barrister, Ms Walker; the respondent by Mr Harris SC; and Mr Mossop appeared for the Attorney-General of the ACT who intervened in the proceedings pursuant to s 19 of the ADJR Act. The matter was adjourned until 22 March 2006. At that time, the applicant was represented by senior counsel, Mr Hanks QC, who advised the Court the applicant had instructed his legal representatives to commence proceedings for a review of the decision of the Executive which was said to have been made as a consequence of the decision of the respondent. Those other proceedings were duly commenced and heard immediately after these proceedings. I will publish my reasons for decision in that application immediately after making the orders in the matter: Eastman v The Attorney-General [2007] ACTSC 28.

It was argued that because of the provisions of s 3(3) of the Act the making of a report and recommendation pursuant to the letters patent is "a decision" and that combined with s 3(5) the conduct of the respondent to which I have referred is conduct engaged in or proposed to be engaged in for the purpose of making that decision.

I do not think that s 3(3) has that effect in this case. In my view it contemplates a case where there is provision in an enactment for a specific report or recommendation as a condition precedent to the making of a decision under that enactment or some other. An example of such a case is illustrated by the circumstances in Brettingham-Moore v St Leonards Municipality [1969] HCA 40; (1969) 121 CLR 509. This is not such a case. I therefore do not propose to grant any interlocutory relief in relation to the making of a report or recommendation in relation to the matter in question. This does not mean that in my view, upon full consideration a court could not come to the conclusion that a decision of a Royal Commission such as this to report or recommend was a decision for the purposes of the Act. If it did, however, it would not do so, in my view, because of the operation of s 3(3).

The instant Royal Commission is just such a mere commission of inquiry and report, its compulsive powers it derives from Commonwealth statute law, and they are not under challenge. The reported conclusions of the Commission no doubt serve to inform the mind of government and may in consequence to a greater or lesser extent be instrumental in shaping the course of future legislative or executive initiatives, but they neither directly determine, or of their own force affect, rights nor does the reporting of particular conclusions satisfy some condition precedent to the exercise of power which will in turn affect rights or otherwise give rise to legal consequences. The making of the report does not place rights "in a new jeopardy" or "subject them to a new hazard", as Kitto J. thought was done by the inspector's reports in Testro Bros Pty. Ltd. v Tait [1963] HCA 29; (1963), 109 C.L.R. 353, at pp. 369, 370.

(2004) 185 FLR 455

(1992) 175 CLR 564

(1995) 184 CLR 163

(1997) 76 FCR 9

(2000) 203 CLR 1

(2003) 214 CLR 318

(2004) 181 FLR 418

(1990) 27 FCR 56

(1996) 185 CLR 149

(1982) 41 ALR 319

(1987) 18 FCR 342

(1976) 50 ALJR 471

(1987) 8 NSWLR 30

(1969) 121 CLR 509

(1982) 59 FLR 184