Lewis v The Chief Executive of the Department of Justice and Community Safety and the Sentence Administration Board of the Australian Capital Territory [2009] ACTSC 73

4. A subsequent meeting of the Board appears to have occurred on 8 July 2008. At that meeting a Mr John Lundy appeared on behalf of the Director. Mr Lundy was also employed in the office when I was Director. No reference has been made to any specific submissions made by Mr Lundy to that meeting. As a result of that meeting, Mr Lewis's periodic detention order was cancelled and he was ordered to serve the balance of the term of imprisonment in full-time custody.

5. In these proceedings a challenge has been made to that decision by the Sentence Administration Board on a number of grounds which may conveniently be identified as administrative law grounds and constitutional law grounds.

6. The constitutional law ground is that the Board, in summary, is exercising judicial power and the legislature of the Australian Capital Territory has no power to create a body of an administrative character, such as the Sentence Administration Board, which exercises judicial power in that way.

7. The administrative law grounds are more various and they involve allegations of a breach of natural justice, a failure to have a proper delegation for the person who is alleged to have commenced, or laid the breach before the Sentence Administration Board and perhaps other matters.

8. The nub of the assertion on which it is suggested that I should disqualify myself is that at the commencement of the prosecution of Mr Lewis I was the Director of Public Prosecutions.

9. The tests to be applied have been set out by a number of decisions of the High Court. Recent decisions include Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 where (at 298) Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ formulated the test for apprehended bias as follows:

[i]t has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. (footnote omitted).

10. That statement of principal was repeated in Ebner v Official Trustee and Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, (at [6]) where Gleeson CJ and McHugh, Gummow and Hayne JJ said:

[w]here, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done , a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. (footnotes omitted).

11. In addressing the difficult issues of my appointment as a judge and the relationship between criminal prosecutions and that appointment, I have taken the view that I will not sit on criminal cases where the prosecution was commenced in the office while I was a Director so as not to give an appearance of bias in relation to a prosecution that was commenced under my directorship.

12. That is drawing somewhat of a long bow because there would be a large number of prosecutions in the office about which I would have had absolutely no knowledge nor would I have signed any documents or been involved in them other than in a general supervisory capacity. Nevertheless it seemed to me that that was appropriate where prosecutions would lead to the imposition of a sentence or an appeal was against a sentence imposed, either while I was still Director or thereafter.

13. One of the reasons for that is that, of course, the imposition of a sentence is a discretionary decision and such a decision would obviously give some concern to the person sentenced about whether the sentence might have been affected by the fact that the prosecution was commenced while I was the Director.

14. The case here is quite different in the sense that the challenge is made to the administration of the sentence after imposition of the sentence. The administration of sentences in the ACT and in many other jurisdictions is a matter not for the court but for other bodies. In the ACT, the Sentence Administration Board is the appropriate body. In other jurisdictions, there are parole boards and other boards of a like character.

15. This case is, however, slightly different in that the Sentence Administration Board does have the power to terminate the method of serving a sentence where it is alleged that a breach of, in this case, a periodic detention order has been made. It is also true that, unlike the general approach in other jurisdictions, the prosecutors from the office of the Director of Public Prosecutions of the ACT have appeared before the Sentencing Administration Board and regularly do so in these circumstances. It is also true that before the Sentence Administration Board was given this power, the power resided in a Magistrates Court where the prosecutors employed by the Director of Public Prosecutions also appeared. This is, however, a decision remote from the decision to prosecute and how that decision is to be implemented.

16. Having said that, it is important also to look at the nature of the issue before the court. The issue before the court is, firstly, the validity of the legislation, that is a matter that gives little, if any, capacity for a discretion but it is a matter of law and it is a matter of law that can be supervised by appellate courts if such is necessary.

17. The second matter involves the administrative law questions and again, there is in general terms little scope for discretion in relation to the question of whether the initiator of the proceedings before the Sentence Administration Board was properly delegated. That is a matter of law and a question of construction of documents and admits of little or no discretion.

18. The question of whether there was a denial of natural justice, which as I understand it is the question of whether the plaintiff had proper notice of the meetings of the Sentence Administration Board, is a matter where perhaps some discretion might be relevant.

19. In the first place there is, I suppose, a question of what is proper notice and while perhaps not properly characterised as a discretionary decision, it is a decision on which there can be no absolute black and white answer as it relies, to some extent, upon the impression of the judicial officer.

20. The second issue is, of course, if there is a breach under ordinary administrative law principles, yet, as I understand it, such a breach does not necessarily result in the setting aside of the decision and the court has some discretion.

21. Nevertheless the decision is not one that flows other than indirectly from the sentence imposed which is the end point of the prosecution. It is a question of the validity of the decisions that the Sentence Administration Board made and unless, for some reason that I do not accept, I am always unable to hear any cases involving the Sentence Administration Board because I and staff under me when I was Director who appeared before that Board, or prosecutions that were commenced where those that ended up before the Board, then it seems to me the nature of the decision and the relationship between my participation is quite remote.

22. In the circumstances then, I am satisfied that it is not appropriate for me to disqualify myself from hearing this appeal and the application is dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the defendants: ACT Government Solicitor