Solicitors for the Respondent: Director of Public Prosecutions

This is the return of an order nisi made by Wright J on 4 March 1994. Although the form of the order as taken out is obviously defective, its intention is clear enough, namely that it requires the Attorney-General ("the Minister") to show cause why there ought not to be granted to the prosecutor a writ of certiorari to bring up into this Court and quash for illegality a determination made by the Minister not to recommend to the Governor that the prosecutor be released on parole and for a writ of mandamus commanding him to exercise his discretion as to the making of such a recommendation according to law. The matter was argued before me on the basis that that is the effect of the order nisi and I will proceed accordingly. The order nisi is directed to the Minister in his capacity as the Minister administering the Parole Act 1975 ("the Act") (see the Administrative Arrangements Act 1990 and the Administrative Arrangements Order 1992).

2. On 14 December 1984 the prosecutor was convicted of murder and sentenced to imprisonment for the term of his natural life. He continues to serve that sentence. On 10 September 1992 he made an application to the Parole Board ("the Board") whereby he sought that it make a recommendation to the Minister with respect to the granting of parole to him. The Act, s13(1) authorises the Board to make such a recommendation. On 8 December 1992 the Board received this application but declined to entertain it in the light of Government policy that generally a life prisoner not be considered for parole before service of at least ten years of the sentence. On 27 May 1993, for the reasons which I then published (R v Parole Board; Ex parte Palmer A35/1993), I quashed that determination of the Board and ordered that it give further consideration to the application made by the prosecutor and determine it according to law. The Board acted in accordance with those orders. Pursuant to the Act, s13(1) it made a recommendation to the Minister that the prosecutor be released on parole.

3. The Act confers no power upon the Minister to authorise the release on parole of a life prisoner. That power is conferred on the Governor by the Act, s14 which is in the following terms:

a life prisoner or dangerous criminal shall be released

at a time, and for such period, as the Governor deems

appropriate and as is specified in the order.

(2) An order under this section may be subject to such terms

and conditions as the Governor thinks fit and as are specified

in the order.

(3) In this section, 'Governor' means the Governor of this

State acting with the advice of at least one Minister."

4. Upon receipt of the Board's recommendation, the Minister declined to tender any advice to the Governor to the effect that the prosecutor be released pursuant to the power conferred by the Act, s14(1). The Minister conveyed his reasons for declining to make such a recommendation by letter to the prosecutor's solicitors of 24 November 1993. Relevantly that letter contained the following:

"As you are no doubt aware, the policy of this Government is

not to consider applications for parole for life prisoners until

at least ten years have been served, save in exceptional

circumstances. No such circumstances exist in the case of your

client. I am of the opinion that this policy is a sound one and

should be adhered to.

I have considered the recommendations of the Parole Board in

relation to John Edward Palmer and the events surrounding the

crime committed by him. I do not consider there is any

justification for variation of the government's policy in

Palmer's case."

5. The statutory scheme is reasonably clear. The Board may make a recommendation to the Minister that a person serving a life sentence be released on parole. If such a recommendation is made to him, then there is to be implied a duty on his part to give proper consideration to it and, having given such consideration, to determine whether the Governor ought to be advised to make an order directing the release of the prisoner pursuant to s14(1). The real repository of power is the Minister. He is to exercise his powers lawfully. A lawful exercise of power requires him to exercise his discretion whenever that discretion is invoked. Where the Minister is in receipt of a recommendation from the Board, then, before exercising his discretion, he must have regard to such recommendation because it is material relevant to the exercise of that discretion.

6. Counsel for the prosecutor accepted as being a correct statement of the law certain observations which I made in R v The Minister Administering the Fisheries Act 1963; Ex parte National Australia Bank Limited A57/1990 when, after referring to the decisions of the High Court in Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54 and R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177, I said, at 23-24:

"The views of the majority in each of those cases is

consonant with the general principle that a public officer or

body upon whom or which is conferred a statutory discretion is

entitled to adopt general principles of policy relevant to the

manner in which the discretion is to be exercised in particular

cases, provided that such policy relates to matters which are

legally relevant to the exercise of the discretion. It might be

thought that generally it is desirable or even necessary for

there to be such a general policy to avoid any inconsistent,

arbitrary or capricious exercise of the discretion. The policy

must be lawful, ie. it must not require the discretion to be

exercised for extraneous purposes (Marks v The Shire of Swan

Hill [1974] VicRp 103; (1974) VR 896), or in a manner which would be contrary to

the statutory requirements for the exercise of the discretion

(Green v Daniels [1977] HCA 18; (1977) 13 ALR 1), but provided that it does not

offend such requirements, it may govern the exercise of the

discretion even to the extent that it will be departed from only

in exceptional circumstances (Legal Services Commission of New

South Wales v Stephens (1981) 2 NSWLR 697). The decision-maker

must never attribute to policy a status which precludes him from

forming a genuine discretionary judgment. He must be prepared

to consider each case on its merits, at least so to the extent

that he is prepared to exercise his discretion in the

exceptional case in a manner not conforming to the policy, and

always so that he will consider each case with a view to

determining whether it is such an exceptional case and, if it

is, whether the discretion ought to be exercised otherwise than

in accordance with the policy."

7. I adhere to that statement of the law. In the present case the prosecutor does not submit that the Minister may not act in accordance with pre-determined policy in exercising his discretion whether or not to make a recommendation to the Governor. Rather he submits that the particular policy in accordance with which the Minister acted was unlawful. Before considering the basis of that submission, it is appropriate to examine the nature of the discretion to be exercised by the Minister in considering whether to give the appropriate advice to the Governor and to contrast that with the nature of the discretion conferred upon the Board by s13(1).

8. The constitution of the Board gives some indication of the nature of the discretions conferred upon it. The Board consists of three persons, one of whom shall be a legal practitioner and the others of whom shall be persons experienced in matters associated with sociology, criminology, penology, medicine and the like (the Act, s5(2)). The emphasis appears to be on having amongst the membership of the Board persons who have the requisite skills and experience which enable them:

1 to form some judgment as to the risks associated with

early release;

2 to formulate appropriate terms and conditions upon which

parole is granted with a view to ensuring as far as possible

that the prisoner does not re-offend; and

3 to assess the prisoner's personal attributes relevant to his

suitability for parole.

9. The Board's primary concern with matters personal to the applicant is confirmed by other provisions of the Act. Depending on the length of the sentence being served, the Board has a duty or power to examine prisoners' personal and medical histories (s18). A person on parole is under the supervision of a parole officer (s23(2)). The discretion of the Board largely is to be exercised by reference to matters which may be described as being matters personal to the applicant for parole. Parole is intended to be reformative in its application and the Board is concerned to ensure, so far as it is able, that that intention is given effect to. That is not to say that some aspects of the public interest may not properly be taken into account by the Board. For example, if the conduct of a prisoner has been such as to indicate that he would be a danger to the community if released, that would be a relevant consideration. The principles to which I have referred are of equal application to cases where the Board is considering whether to grant parole and to cases where the Board is considering whether to make a recommendation under s13(1).

10. The nature of the discretion which is to be exercised by the Minister is quite different from that conferred upon the Board. It is an unfettered discretion to be exercised by reference to a judgment as to what is required by the public interest (South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 at 402). Although it may be thought to be undesirable that such an unfettered discretion is conferred upon the Executive (see the observations of the Court of Criminal Appeal in Read v R (No 2) A15/1994 at 2), the scheme of the Act must be given effect to. In dealing with a parole scheme which conferred the power to release on parole on the Secretary of State, who could only act on the advice of a Parole Board, Lord Scarman, in In re Findlay (1985) AC 318 at 332-333, said:

"A characteristic of the parole system is its duality. The

Secretary of State and the board have to concur. ... The

emphasis is upon the need for the board to include among its

members persons with the skills and experience required to

assess the risk of early release. But the Secretary of State

has clearly to consider other aspects of the early release of a

prisoner serving a sentence of imprisonment. Deterrence,

retribution and public confidence in the system are factors of

importance. The Parole Board, through its judicial and other

members, can offer advice on these aspects of the question. But

neither the board nor the judiciary can be so close, or so

sensitive, to the public opinion as a minister responsible to

Parliament and to the electorate. He has to judge the public

acceptability of early release and to determine the policies

needed to maintain public confidence in the system of criminal

justice. This must be why Parliament saw as necessary the

duality of the parole system: without the advice and

recommendation of a body capable of assessing the risk of early

release the Secretary of State was not to act: but, having

received such advice and recommendation, he was to authorise

early release only if he himself was satisfied that it was in

the public interest that he should."

11. The absence of a requirement in the Act that the Minister may only act on the advice of the Board distinguishes the Act from the legislation considered by Lord Scarman. Despite that distinction and whilst I would not wholeheartedly embrace everything said by Lord Scarman, his Lordship's statement of the nature of the matters fit to be taken into account by the Secretary of State in the exercise of his discretion is equally applicable to discretion of the Minister. To that extent I follow what his Lordship said.

12. Murder may be described as the most serious of crimes. A consideration of the factors described by Lord Scarman could properly lead to the conclusion that the wider public interest requires that persons convicted of this crime and sentenced to the mandatory sentence of life imprisonment generally ought to serve a substantial minimum term. It would be perfectly reasonable to assume that the release of prisoners convicted of murder after serving only very short sentences of imprisonment would lead to a substantial loss of public confidence in the criminal justice system and would erode the deterrent effect of life sentences to an unacceptable extent. It follows that it was reasonable for the Minister to adopt as a policy that generally a life prisoner not be released until he has served a substantial proportion of his sentence, and to quantify what generally is to be served by reference to a minimum number of years. To some extent the policy may be influenced by political considerations but that does not make it unlawful (South Australia v O'Shea (supra) at 410). The adoption of such a policy is lawful, provided that it does not preclude the formation of a discretionary judgment that a prisoner be released who has not served the requisite minimum term. In general terms, a policy governing the exercise of an unfettered discretion which is not of inflexible operation, does not require that legally irrelevant matters be taken into account and permits the special circumstances of a case to be considered is lawful. As the policy provided that it might be departed from in exceptional circumstances I conclude that it was not so inflexible as to be unlawful.

13. That does not conclude the matter because of a submission made by counsel for the prosecutor. She submitted that the Act, s12C(1) leads to a conclusion that the policy adopted by the Minister is unlawful. Section 12C provides as follows:

"12C - (1) Subject to sections 12D and 19(1A), a prisoner shall

not be released on parole before the completion of -

(a) the non-parole period applicable to his sentence; or

(b) a continuous period of imprisonment of 6 months -

whichever is the greater, unless, in the opinion of the

approving authority, there are exceptional circumstances

warranting the earlier release on parole of the prisoner.

(2) For the purposes of subsection (1), the approving authority

is -

(a) in the case of release under section 14 - the Governor

acting with the advice of at least one Minister; and

(b) in the case of release under section 19 - the Board."

14. The argument was that as the minimum non-parole period for a life prisoner is six months (see R v Parole Board; Ex parte Palmer (supra)) and that as s12C permits the Governor to release a life prisoner who has served less than the minimum non-parole period if there exist exceptional circumstances within the meaning of s12C(1), the real effect of the policy was to apply a non-parole period of ten years to sentences of life imprisonment. Counsel submitted that the policy applied by the Minister amounted to an administrative extension of the minimum non-parole period from six months to ten years and that therefore it was unlawful.

15. I do not accept that submission. The statutory prohibition is against the release on parole of a life prisoner who has not served at least six months of his sentence, unless there exist exceptional circumstances which warrant earlier release. In other words the exceptional circumstances must be circumstances which exceptionally justify not requiring that the prisoner remain in custody for six months. The policy applied by the Minister operated so that a life prisoner who had not served at least ten years of his sentence would not be released on parole, unless there were circumstances which exceptionally justified departing from that policy. In each case the exceptional circumstances are those which are so exceptional so as to justify not requiring that the prisoner serve the relevant minimum period. It may readily be imagined that circumstances may be so exceptional as to provide a justification for departing from the policy but would not be so exceptional as to justify departing from the statutory minimum. In any event, even if the policy had the effect contended for by the prosecutor, it does not follow that it was unlawful. Section 12C(1)(b) is directed to all sentences. The matters proper to be considered by the Minister in the exercise of his discretion are such that they authorise the adoption of a policy whereby, in general, life prisoners will be required to serve a term greater than the minimum term prescribed by s12C(1).