Mentink v Commissioner for Northern Territory Police

1. The application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 On 10 August 2021, Mr Wilfred Jan Reinier Mentink filed an application for the judicial review of a decision of the Commissioner for Northern Territory Police (Commissioner) made, at least purportedly, under s 271A.1 of the Criminal Code 1995 (Cth) (Criminal Code) by which the Commissioner refused as a competent authority for the purposes of that section permission for overseas travel by Mr Mentink. 2 The proceedings have proceeded through case management and are at the point where, in accordance with the Court's directions, the respondent Commissioner has filed a court book containing documents relevant to the decision under review. At today's case management hearing, I was informed by counsel for the Commissioner that Mr Mentink had made a further application to the Commissioner for permission for overseas travel. I was further informed on behalf of the Commissioner that the Commissioner accepted that he was obliged to consider that application because, whilst it was in like terms to that which became the subject of the present judicial review application, a new policy had been adopted by the Commissioner for the purposes of determining as a competent authority requests by reportable offenders for overseas travel permission. 3 The policy concerned is in the form of guidelines dated 30 September 2021, issued by the Commissioner. Those guidelines have become exhibit 2. Further background in relation to Mr Mentink's application for a fresh application for permission to travel is to be found in his letter to the registry of 12 October 2021 copied to the solicitor for the Commissioner and which is now Exhibit 1. 4 The Commissioner put, by counsel, that the consequence of his acceptance that he was obliged to consider the fresh application according to the current policy was that the proceeding no longer had utility. That was because, and as was submitted, the most which Mr Mentink could achieve on judicial review was an order quashing the existing decision and requiring a decision to be made afresh by the Commissioner. It was put that, in relation to any such fresh decision, the Commissioner would be not just entitled but obliged to decide that by reference to his current policy. 5 That seems to me to be the correct position in law in the event that Mr Mentink's proceeding were attended with any forensic success, such that he secured certiorari and mandamus. 6 Mr Mentink made extensive oral submissions as to the personal vexation and frustration, the genuineness of which, at a personal level, I do not doubt, of the impact that delay in finally securing a decision from the Commissioner has had upon him. It needs to be remembered that he is now an elderly man. It behoves both those in the administration of judicial power as well as executive power to bear that in mind in making timely decisions. For all that, it is no part of the Court's function to make any decision on the merits of whether or not he should be granted permission to travel overseas. As s 271A.1 of the Criminal Code has been construed, the Court does not have such a role, but rather undertakes, if and when application is made, the function of judicial review of decisions made by competent authorities of which a court is not one. 7 It is theoretically possible that a proceeding may still have utility if some particular construction of the Criminal Code were adopted in a previous decision and there was a disposition to continue to adopt that construction in the event of a further fresh decision being made. Though he made lengthy submissions about his grievances, Mr Mentink did not point to any such enduring statutory construction controversy. It seems to me, therefore, that the proceeding, in light of the further development, does not have utility. 8 In the event that the Commissioner is unreasonably dilatory in the making of his fresh decision, he would, of course, be amenable on Mr Mentink's application to a mandamus. But there is no suggestion of that at present, nor should the Court presume that there would be dilatoriness. Yet, further, in the event that Mr Mentink considers that the fresh decision is attended with jurisdictional error, it is his perfect right again to make application to the Court on this occasion for the judicial review of that new decision. 9 In these circumstances, my view is that the proceeding, in light of the further developments, no longer has utility. Accordingly, it will be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.