Nona & Anor v Barnes & Anor [2012] QCA 346

SUPREME COURT OF QUEENSLAND

CITATION: Nona & Anor v Barnes & Anor [2012] QCA 346

PARTIES: GEORGE NONA (first appellant) LILY-ANNIE AHMAT (second appellant) v MICHAEL BARNES (first respondent) ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (second respondent)

FILE NO/S: Appeal No 2424 of 2012 SC No 8503 of 2011

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 7 December 2012

DELIVERED AT: Brisbane

HEARING DATE: 9 August 2012

JUDGES: Fraser JA, Philippides and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1.Appeal dismissed. / 2.Leave to the parties to make submissions as to the costs of the appeal in accordance with paragraph 52 of Practice Direction No 2 of 2010 in the event that the parties do not file a consent order before the expiration of the time specified in that paragraph.

CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – MEANING OF DECISION – PARTICULAR CASES – where appellants’ brother was one of several people who died when a vessel was lost in Torres Strait – where appellants were represented at inquest conducted by respondent, the State Coroner – where inquest found loss of vessel and deaths “totally avoidable disaster” caused by people failing to carry out duties over many months – where respondent did not refer matter to Director of Public Prosecutions – where s 48(2) of Coroners Act 2003 requires coroner to refer matter to Director of Public Prosecutions if reasonably suspects a person has committed an indictable offence – where appellants, once aware of no referral, enquired about decision not to refer to Director of Public Prosecutions and requested Coroner discharge duty to consider whether to refer – where Coroner responded that no basis on which to make referral and refused to provide reasons for that conclusion – where appellants argued that primary judge erred in holding that Coroner’s “conclusion” prior to manifestation in correspondence or otherwise did not amount to a decision under Judicial Review Act 1991 – where appellants argued Coroner’s “conclusion” was a “determination” or the refusal of a “determination” – where appellants argued Coroner’s conclusion should be regarded as affecting legal rights or obligations because a contrary conclusion would have created a legal obligation in Coroner to give information to Director of Public Prosecutions – where Attorney-General argued primary judge’s decision correct as Coroner’s conclusion did not affect or give rise to any legal rights or obligations – whether Coroner’s conclusion a “decision” to which the Judicial Review Act 1991 applied – whether Coroner required to provide reasons / ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – EXCLUDED DECISIONS – OTHER DECISIONS – where Attorney-General argued that entitlement to reasons for decision excluded by s 31 of Judicial Review Act 1991 – whether appellants’ entitlement to reasons excluded / Coroners Act 2003 (Qld), s 45(5), s 48(2) Judicial Review Act 1991 (Qld), s 4, s 31 / Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, considered Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49, cited Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; [1998] HCA 45, cited Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, considered Guss v Federal Commissioner of Taxation (2006) 152 FCR 88; [2006] FCAFC 88, considered Kruck v Queensland Regional Parole Board [2009] 1 Qd R 463; [2008] QCA 399, considered Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, cited Minister for Immigration and Ethic Affairs v Mayer (1985) 157 CLR 290; [1985] HCA 70, considered Nona & Anor v Barnes [2012] QSC 35, related Pepper v Attorney-General [2008] 2 Qd R 353; [2008] QCA 207, considered QUBE Ports Pty Ltd v Chief Executive Department of Justice & Attorney-General [2012] QCA 285, cited Salerno v National Crime Authority (1997) 75 FCR 133; [1997] FCA 475, considered

COUNSEL: E S Wilson SC, with A D Scott, for the appellants R G Marsh for the first respondent M D Hinson SC for the second respondent

SOLICITORS: Bottoms English Lawyers for the appellants Crown Law for the respondents

1. FRASER JA: The appellants’ brother was one of several people who died when a vessel called the Malu Sara was lost in the Torres Strait in 2005. The appellants were represented at the inquest conducted by the respondent, the State Coroner. In findings published in February 2009, the Coroner found that the loss of the Malu Sara and the deaths were a “totally avoidable disaster” which occurred “…because several people dismally failed to do their duty over many months”. The Coroner also observed that s 45(5) of the Coroners Act 2003¹ prohibited “a coroner from including in inquest findings, the fact that a referral has been made under s 48(2).” Subsection s 48(2) of Coroners Act 2003, which is important in this appeal, provides that “[i]f, from information obtained while investigating a death, a coroner reasonably suspects a person has committed an offence, the coroner must give the information to …(a) for an indictable offence – the director of public prosecutions …”

2. After the appellants ascertained that there had been no referral to the Director of Public Prosecutions their solicitor enquired about the Coroner’s observation. The Coroner responded that his then current view was that a coroner was not prohibited from including in a coronial report reference to a referral having been made. The Coroner remarked, however, that he considered that his role in the Malu Sara enquiry had concluded. After the appellants’ solicitor challenged that remark, the Coroner wrote to the appellants’ solicitors, recording that he agreed that, if from information obtained during his investigation of a death he reasonably suspected that an indictable offence had been committed, he was obliged to refer the information to the Director of Public Prosecutions under s 48(2). The appellants’ solicitor replied asking the Coroner to respond to the appellants’ request that the Coroner discharge his “undischarged duty to consider whether to refer this matter to the Director of Public Prosecutions.”

3. By letter dated 17 June 2011 the Coroner responded that “[a]s a result of giving careful consideration to my obligations under s 48(2) of the Act I have concluded there is no basis on which I should refer information obtained during my investigation into these deaths to the DPP.” The appellants’ solicitor then requested the Coroner to provide a statement of reasons for that conclusion, which the Coroner refused to do. The question in this appeal is whether the Coroner should be required to provide those reasons.

4. The entitlement to request reasons, and the Court’s power to order a decision-maker to give reasons, are conferred by Pt 4 of the Judicial Review Act 1991 in relation to a “decision to which this part applies”. That term is defined in s 31 as meaning a “decision to which this Act applies…”, except a decision that includes or is accompanied by a statement giving the reasons for the decision and “a decision included in a class of decisions set out in schedule 2.” So far as is directly relevant in this matter, s 4 of the 1991 defines “decision to which this Act applies” as comprehending “(a) a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)…”.

The primary judge’s decision

5. The primary judge dismissed the appellants’ application for an order under s 38 of the Judicial Review Act 1991 that the Coroner give a statement of reasons for “the decision … to not give information obtained while investigating the deaths…to any prosecuting authorities under s 48(2) of the Coroners Act 2003 (Qld).”²

6. The primary judge referred to the joint reasons in Griffith University v Tang,³ in which Gummow, Callinan and Heydon JJ said:

“The decision so required or authorised must be ‘of an administrative character’. This element of the definition casts some light on the force to be given by the phrase ‘under an enactment’. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?

The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?

…

The determination of whether a decision is ‘made ... under an enactment’ involves two criteria: first, 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.⁴

7. The primary judge held that the decision described in the application to not give information obtained while investigating the deaths to a prosecuting authority (relevantly, the Director of Public Prosecutions) was not a decision to which the Judicial Review Act 1991 applied. The primary judge observed that a Coroner’s action in sending information to a prosecuting authority could have potential consequences and that the appellants had an interest in the course which had been taken, or not taken, by the Coroner, but that this decision did not itself confer, alter or otherwise affect legal rights or obligations:

“The coroner’s decision to not provide information did not itself have that effect. No legal rights or obligations would be affected merely by the receipt (or non receipt) by the DPP of that information.”⁵

The primary judge recorded that the appellants apparently accepted as much in their ultimate argument.

8. Apparently in view of that difficulty, the appellants submitted to the primary judge that the relevant decision was instead the Coroner’s conclusion, formed before it was manifested in the correspondence or otherwise, that there was no basis upon which he should refer information to the Director of Public Prosecutions. The primary judge held that this “mental process” was not a decision to which the Judicial Review Act 1991 applied before it was manifested by some “outward expression”.⁶ Whilst the Coroner’s conclusion marked “…the end point of the coroner’s consideration of the question”,⁷ the “…undisclosed content of a person’s state of mind…” lacked a necessary quality of finality and there was “…no exercise of administrative power constituted solely by a person’s mental processes in considering a question”.⁸

The arguments

9. The appellants’ case on appeal was that the primary judge erred in not holding that the Coroner’s “conclusion” amounted to a decision to which the Judicial Review Act 1991 applied before it was manifested in the correspondence or otherwise. The appellants argued that s 48(2) of the Coroners Act 2003 impliedly authorised the Coroner to determine whether he held the described suspicion because it was that suspicion which enlivened the obligation created by the subsection. The appellants submitted that the Coroner’s “conclusion” was a “determination” or the refusal of a “determination”, the making of which was treated by s 5 of the Judicial Review Act 1991 as an example of the “making of a decision”. The primary judge was wrong in thinking that it was necessary to find some outward expression of the Coroner’s determination. That was submitted to be inconsistent with Griffith University v Tang because it added an additional requirement to the tests for determining whether a particular decision is one to which the Judicial Review Act 1991 applies. The appellants argued that the Coroner’s conclusion should be regarded as affecting legal rights or obligations because a contrary conclusion would have created a legal obligation in the Coroner to give the information to the Director of Public Prosecutions. It was submitted that the primary judge’s characterisation of the Coroner’s conclusion as not amounting to a “decision” was inconsistent with passages in the reasons for the High Court’s decisions in the Minister for Immigration and Ethnic Affairs v Mayer⁹ and Australian Broadcasting Tribunal v Bond¹⁰ and with the treatment of those decisions in Griffith University v Tang. The appellants argued that Kruck v Queensland Regional Parole Board¹¹ was an example of a case in which it was held that a decision was a “decision to which this Act applies” under s 4 of the Judicial Review Act 1991, although the decision had not been communicated or otherwise published.

10. The Attorney-General argued that the primary judge’s decision was correct for the reasons he gave and for the further reason that the Coroner’s conclusion did not affect or give rise to any legal rights or obligations. It was also submitted for the Attorney-General that, if the Coroner’s state of mind that he did not reasonably suspect from the information obtained while investigating a death that a person had committed an offence did amount to a “decision”, it too did not satisfy the second criterion identified in because, both before and after the time when the Coroner concluded that he did not hold that suspicion, the Coroner was at liberty to give or to not give the information to the Director of Public Prosecutions. It was submitted that the second criterion must be applied to that decision, as “the decision in question” or “the relevant decision”, rather than to a different decision that the Coroner did reasonably suspect from the information obtained while investigating a death that a person had committed an offence.

Consideration

11. The question whether there is a “decision” to which the Judicial Review Act 1991 applies must be answered with reference to the statutory context in which that word appears and the particular facts and statutory provisions of each case. The appellants’ description of the Coroner’s state of mind as a “determination” tended to assume the correctness of their argument that his uncommunicated state of mind amounted to a “decision”. The assumption was unjustified. A decision-maker’s mere state of mind could not amount to a “determination” within the ordinary meaning of that word whilst the decision-maker remained free to consider the relevant question. In that respect, s 48(2) of the Coroners Act 2003 does not require a coroner to cease considering the information obtained while investigating a death immediately upon the coroner forming a view that the information does or does not give rise to a reasonable suspicion that a person has committed an offence. A coroner may continue to consider and reconsider the information until something else has occurred to end the coroner’s function under s 48(2).

12. Where a coroner does not form the relevant suspicion, the coroner’s function under s 48(2) must continue at least until the coroner’s continuing omission to give the information to the Director of Public Prosecutions is coupled with some outward manifestation of a decision not to do so, such as by the Coroner’s correspondence in this case. Where a coroner does form the relevant suspicion, the coroner’s function will nonetheless continue until the coroner gives the information to the Director of Public Prosecutions or until the coroner is by some other act precluded from further considering the matter. (In that respect, the inclusive definition of “making of a decision” in s 5 includes not only “(a) making…or refusing to make [a]…determination”, but also “(g) doing or refusing to do anything else…”; a decision might therefore consist either of a “determination” or an act (or refusal to do an act) or of a combination of both.) Until the coroner’s function under s 48(2) is brought to an end in some such manner, his or her uncommunicated state of mind – the holding of the relevant suspicion or the absence of such a suspicion – is necessarily not conclusive of anything. Such a state of mind could not properly be described as a “finding”, a “determination”, or a “decision”.

13. That view accords with the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond¹³ and other authorities to which the primary judge referred. It is necessary to refer only to a passage in Salerno v National Crime Authority,¹⁴ in which the Full Court of the Federal Court (von Doussa, Drummond and Mansfield JJ) analysed the leading cases upon the meaning of “decision” in the context of the equivalent provision in the 1977 (Cth):

“Examination of whether the action by the NCA now complained of is reviewable under the ADJR Act must start with the judgment of Mason CJ, with whom Deane and Brennan JJ agreed, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. His Honour discussed the meaning of the term ‘decision’, as it is used in the ADJR Act (at 335-338). After observing that ‘no narrow view should be taken of the word’, his Honour said that ‘[n]onetheless other considerations point to the word having a relatively limited field of operation’. One of the features of a reviewable ‘decision’ his Honour identified was that of finality, ie, ‘an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J ’a determination effectively resolving an actual substantive issue’’. He also said that a reviewable decision was one that: ‘will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.’ His Honour rejected the very wide broad interpretation of ‘decision’ adopted by the Federal Court in Lamb v Moss (1983) 76 FLR 296 at 318-319 and said:

‘My view is more in accord with the tentative opinion expressed earlier by Ellicott J in Ross v Costigan (1982) 59 FLR 184 when he said that ‘it may well be that the word ‘decision’ means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person’. However, I would not wish for myself to place emphasis on the words ‘of itself’ in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of a decision and the processes by which it is made.’

Shortly before Bond, in Attorney-General (Cth) v Queensland (1990) 25 FCR 125, French J, with whom Jenkinson J agreed, considered the question whether a Royal Commissioner appointed under Letters Patent issued by the Commonwealth Government to inquire into Aboriginal deaths in custody had made a ‘decision’ reviewable under the ADJR Act when he made a formal ruling that he proposed to inquire into the death of a particular person. The Commissioner made this ruling, which involved a determination that the deceased was an ‘Aboriginal’ within the meaning of that term in the Letters Patent, after considering a body of evidence put before him concerning the deceased’s Aboriginality. Not everything French J said can, in the light of Bond, now be accepted. But his Honour’s comments about the impact which a decision must have if it is to be a reviewable decision are consistent with Mason CJ’s dicta in Bond and, in our opinion, identify a characteristic which a determination must have if it is to be a reviewable decision within the ADJR Act. French J said (at 142):

‘... Nor is it necessary that the determination directly affect legal rights or obligations so long as it has some real or practical effect. A provisional ruling or determination is also within the class provided it issues in some action or a refraining from some action. But a decision is more than thought, consideration or conclusion. It must be manifested in some way which emanates from an authoritative or responsible source ...

The ruling in issue is, in one sense, no more than an expression of the Commissioner’s opinion. It is an opinion formed upon evidence which although unchallenged, is not completely satisfactory and which may come to be seen in a different light as the inquiry proceeds. Nevertheless, even if regarded as provisional, it has real and practical consequences and will issue in action in the receipt and consideration of evidence relating to the death of Darren Wouters. It is more than mere thought or consideration or conclusion. It has been formally declared as an opinion formed for the purpose of the continuing conduct of the inquiry.’

His Honour accordingly held that the Commissioner’s ruling came within the ordinary meaning of the term ‘decision’ in the ADJR Act, The formulations in Bond and Attorney-General v Queensland of the characteristic of finality or operative effect which a determination must have if it is to be a reviewable decision within the ADJR Act can be traced to the judgment in Evans v Friemann (1981) 53 FLR 229, where Fox ACJ said (at 233):

‘The making of a decision by a person is a mental process, which may be communicated orally or in writing, or be apparent from action taken or not taken. The making of the decision might precede, by a very short, or by a long period, communication, or manifestation. There are many variables …

In ordinary usage, the special feature of a decision is its conclusiveness, or finality for the time being, and this is to be contrasted with the thought or consideration which precedes it. On the other hand a decision is not the same as a conclusion; the former normally has an objective, while the latter is more commonly associated with the end result of a process of thinking without the formulation of an intention concerning future conduct. It would not be possible, even if the attempt were wise, to substitute a judicial exegesis for the word the legislature has used. For present purposes at least, it seems to me to amount to something of significance which is reasonably definite, which is final and conclusive for immediate purposes at least, which is manifested in some way, which emanates from an authoritative or responsible source, and which materially affects another person or persons.’”

14. That analysis is consistent with the statement by the Full Court of the Federal Court in Lamb v Moss¹⁵ that “[i]t has been generally accepted that it is an overt manifestation of the result of a decision-maker’s thought processes, not unrevealed views, which may be the subject of review…” Salerno v National Crime Authority provides powerful support for the primary judge’s conclusion that the Coroner’s uncommunicated state of mind in relation to the criterion in s 48(2) of the Coroner’s Act 2003 was not a “decision” to which the Judicial Review Act 1991 applied.

15. In support of the contrary conclusion, the appellants argued that the first of the paragraphs from Fox ACJ’s reasons in Evans v Friemann which is set out in the quoted passage from Salerno v National Crime Authority suggests that the making of a decision might precede its communication or manifestation. Whether that might be so in a particular case must depend upon the effect of the relevant enactment. Fox ACJ’s subsequent analysis of the distinction between a “conclusion” and a “decision” and his holding that a decision must be “final and conclusive for immediate purposes at least” is consistent with the other decisions discussed in Salerno v National Crime Authority.

16. Kruck v Queensland Regional Parole Board,¹⁶ upon which the appellants relied, turned upon a particular statutory provision, s 193(5) of the Corrective Services Act 2006. The Parole Board failed to make any decision upon a prisoner’s application for parole within 120 days after its receipt. Section 193(5) provided that in such a case the application for parole was deemed to have been refused. It was held that the subsection created “…the statutory fiction that a decision to refuse an application for parole has been made by the parole board”.¹⁷ Since there was no suggestion that the deemed decision was created only for the purposes of the Corrective Services Act 2006 it is unsurprising that the deemed decision was held to be a decision to which the Judicial Review Act 1991 applied. There is no provision in this case which is analogous to s 193(5) of the Corrective Services Act 2006.

17. Salerno v National Crime Authority and the passages from other decisions quoted in it are not inconsistent with Griffith . It was not in issue in the latter case that each of the University’s decisions to exclude Mr Tang amounted to a “decision” for the purposes of s 4(a) of the 1991. As appears from the extract from the joint reasons quoted in [6] of these reasons, the issue was instead whether the decisions were “made under an enactment”. Similarly, in the Minister’s written statement that he had decided that Mr Mayer was not eligible for the grant of refugee status was an unequivocal determination communicated to Mr Mayer, the question in the High Court again being whether it was “made under an enactment”. The issue was also different in , in which the Australian Broadcasting Tribunal published findings of fact adverse to Mr Bond which informed its finding that the corporate licensee over which he exercised control was no longer a fit and proper person to hold a licence under the 1942 (Cth). Those findings of fact were communicated and they possessed a quality of finality which the Coroner’s state of mind lacked. The present case is distinguishable from each of , , and because the appellants seek to construct a “decision” from the uncommunicated and therefore inherently changeable state of mind of the Coroner.

“However, that which is affected in the fashion required by the statutory definition may also be statutory rights and obligations. An example is that given by Toohey and Gaudron JJ in Bond of a requirement, as a condition precedent to the exercise of a substantive statutory power to confer or withdraw rights (eg, a licence), that a particular finding be made. The decision to make or not to make that finding controls the coming into existence or continuation of the statutory licence and itself is a decision under an enactment.

In Mayer, the making of a determination of refugee status (under the power impliedly conferred by the statute) was a necessary condition for the grant of an entry permit. The determination of refugee status was a decision under the migration legislation which controlled the coming into existence of the entry permit to this country. … In Mayer, both the determination of refugee status and the grant of an entry permit were authorised by the Migration Act 1958 (Cth).”²³

Particularly the emphasised parts of that passage suggest that a “finding” or a “determination” made under the authority of an enactment may qualify as a decision under that enactment even though a direct effect upon legal rights or obligations would arise only upon a contrary finding or determination.

23. However the analogy with Bond and Mayer is imperfect because a decision under s 48(2) of the Coroners Act 2003 does not have the capacity to affect any legal right or obligation of the appellants. It may be questionable whether the analysis in the joint reasons is applicable where the only substantive legal effect of a “decision” is to create a statutory obligation in the decision-maker to give information to a third party. In Guss v Federal Commissioner of Taxation²⁴ Edmonds J considered that the second criterion was not satisfied where the decision affected the decision-maker’s legal rights or obligations but had no effect upon the legal rights or obligations of the person who was aggrieved by the decision. It was not necessary for the other members of the Court to express a view upon that question because they concluded that the relevant decision affected the legal rights or obligations of both the decision-maker and the aggrieved person.²⁵ Because the parties did not address submissions upon that question or refer to Guss v Federal Commissioner of Taxation, and also bearing in mind that it is not necessary to decide the question in order to dispose of the appeal, it is not appropriate further to consider the point.

24. Finally I should refer to an argument advanced for the Attorney-General pursuant to a notice of contention that the challenged decision, however it be characterised, was one in respect of which any entitlement to reasons was excluded by s 31 of the Judicial Review Act 1991. The argument invoked Item 1 in Schedule 2 of the Judicial Review Act 1991, which describes one of the classes of decisions for which s 31 provides that reasons need not be given:

“Decisions relating to the administration of criminal justice, and, in particular—

(a)decisions in relation to the investigation or prosecution of persons for offences against the law of the State, the Commonwealth, another State, a Territory or a foreign country; and

(b)decisions in relation to the appointment of investigators or inspectors for the purposes of such investigations; and

(c)decisions in relation to the issue of search warrants under a law of the State; and

(d)decisions under a law of the State requiring—

(i)the production of documents or things; or

(ii)the giving of information; or

(iii)the summoning of persons as witnesses.”

25. In Pepper v Attorney-General²⁶ it was held that the general introductory words in Item 1 of Schedule 2 of the Judicial Review Act 1991 were not limited by the items in the following paragraphs. So much was accepted in the submissions for the appellants. The appellants referred to s 45(5) of the Coroners Act 2003 (which precludes a coroner from making any finding that a person is or may be guilty of an offence) and s 48(1) of that Act (which provides that the reference in s 48(2) to information does not include information obtained pursuant to a requirement of the Coroner under s 39(2) that a witness give evidence that would tend to incriminate the witness). The appellants argued that, in light of those provisions and a purpose of the Coroners Act 2003 to separate coronial investigations from the administration of criminal justice,²⁷ a coroner is not involved in the administration of criminal justice, and there is no sufficient connection between a decision under s 48(2) and the administration of criminal justice.

26. If, as I would hold, the primary judge was correct in characterising the decision, that decision does fall within the introductory words of Item 1 in Schedule 2. The contrary decision, which would involve the giving of the information to the Director of Public Prosecutions, would fall squarely within paragraph (d)(ii) in Item 1, which is one example of a decision “relating to the administration of criminal justice”. A decision to not give the information should be regarded as having a similarly close relationship with the administration of criminal justice. Such a relationship is demonstrated by the identity of the recipient of any information which might be given under s 48(2)(a) (the Director of Public Prosecutions) and the statutory character of such information (information from which the Coroner “reasonably suspects a person has committed an offence”).

27. The issue is more difficult if the decision is to be characterised as the Coroner’s antecedent state of mind. The holding of a reasonable suspicion that a person has committed an offence would not itself amount to a decision requiring the giving of information for the purposes of paragraph (d)(ii) of Item 1 of the Schedule because the obligation to give the information is instead imposed by s 48(2). The relationship between the decision and the administration of criminal justice would be more remote than in the case of a decision to not give the information. Nevertheless, and although the provisions of the Coroners Act 2003 mentioned earlier do largely separate the Coroner from the administration of criminal justice, a decision that a Coroner reasonably suspected that a person had committed an offence should be characterised as a decision “relating to the administration of criminal justice” within the meaning of the general introductory words in Item 1 of Schedule 2 and possibly also as a decision falling within the following paragraph (a). That follows from the nature of the postulated decision (a reasonable suspicion that a person had committed an offence) coupled with the statutory effect of the decision (that the information from which the suspicion was formed must be sent to the Director of Public Prosecutions). The contrary decision (the absence of the suspicion) should again be given the same character.

Disposition and Proposed Orders

29. At the hearing of the appeal the parties requested an opportunity after judgment to agree upon the appropriate costs orders or, in the absence of agreement, to make further submissions. The Court indicated that leave would be given to the parties to make further submissions upon the question of costs. Accordingly, the appropriate orders are:

30. Appeal dismissed.

31. Leave to the parties to make submissions as to the costs of the appeal in accordance with paragraph 52 of Practice Direction No 2 of 2010 in the event that the parties do not file a consent order before the expiration of the time specified in that paragraph.

32. PHILIPPIDES J: I agree with the reasons for judgment of Fraser JA and the proposed orders. I would only add some observations as to the arguments made by the Attorney‑General pursuant to the Notice of Contention. The contention was that if the challenged decision of the Coroner (whether characterised as a decision not to send information to the DPP or as the conclusion that he did not reasonably suspect from information obtained while investigating a death that a person had committed an offence) was a “decision” within the meaning of s 4 of the Judicial Review Act (“JR Act”), it was by virtue of s 31(b) of the JR Act not one to which Pt 4 of the JR**Act applied. This was because it fell within a class of decisions set out in Item 1 of Sch 2, being decisions “relating to the administration of criminal justice”.

33. The exclusion of decisions in Item 1 of Sch 2 from Pt 4 of the JR Act reflects a line of well established authority that decisions to commence or institute prosecutorial proceedings are not amenable to judicial review: see Barton v The Queen (1980) 147 CLR 75. As Gotterson JA (with whom Muir JA and Mullins J agreed) observed in QUBE Ports Pty Ltd v Chief Executive Department of Justice & Attorney-General [2012] QCA 285 at 38, the rationale for the rule of law was explained by Gaudron and Gummow JJ in Maxwell v The Queen (1996) 184 CLR 501 at 534 in terms of the maintenance of the integrity of the judicial process:

“… The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.”

32. That rationale was confirmed by Gaudron, Gummow and Hayne JJ in Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 at 579-580, where it was observed that decisions to institute proceedings are decisions the province of the executive. As Gotterson JA noted in QUBE Ports Pty Ltd at [42], the rule has also been explained in terms of the doctrine of the separation of powers: see Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund P/L (1998) 194 CLR 247 per McHugh J at [82]-[86].

33. Clearly, the Coroner is neither a prosecuting authority, nor a person charged with investigating criminal responsibility for a death: s 48(2) Coroners Act. But I agree for the reasons explained by Fraser JA that, however the challenged decision is characterised, it may fairly be said to come within the exclusion provided for by s 31(b) of the JR Act.

34. DOUGLAS J: I agree with Fraser JA’s reasons and the proposed orders.

Footnotes

1. The relevant provisions of that Act are in Reprint No 3C. ↩

2. Nona & Anor v Barnes [2012] QSC 35. ↩

3. (2005) 221 CLR 99. ↩

4. (2005) 221 CLR 99 at [79] – [80], [89]. ↩

5. [2012] QSC 35 at [18]. ↩

6. [2012] QSC 35 at [21]. ↩

7. [2012] QSC 35 at [19]. ↩

8. [2012] QSC 35 at [23]. ↩

9. (1985) 157 CLR 290. ↩

10. (1990) 170 CLR 321. ↩

11. [2009] 1 Qd R 463. ↩

12. Griffith University v Tang (2005) 221 CLR 99 at 128 [80] and 131 [189]. ↩

13. (1990) 170 CLR 321. ↩

14. (1997) 75 FCR 133 at 137 – 138. ↩