FEDERAL COURT OF AUSTRALIA

Duxerty v Minister for Justice and Customs [2002] FCA 1518

ADMINISTRATIVE LAW – parole – review of decision of Minister to refuse to grant parole application – whether the Minister was the authorised decision-maker – whether the Minister’s decision was an improper exercise of power – natural justice – whether applicant denied procedural fairness

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Crimes Act 1914 (Cth) s 19AL(2), (3)

Customs Act 1901 (Cth) s 233B

Crimes Legislation Amendment Act (No 2) 1990 (Cth) s 28(1)

Acts Interpretation Act 1901 (Cth) s 18C, 19A(1)

Attorney-General (Cth) v Foster (1999) 84 FCR 582 referred to

Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 applied

Todd v Parole Board (1986) 6 NSWLR 71 referred to

McEncroe v Queensland Community Corrections Supreme Court of Queensland, 8 September 1997, unreported) referred to

Butler v Queensland Community Corrections Board (Supreme Court of Queensland Court of Appeal, 10 August 2001, unreported) considered

Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 referred to

JOE DUXERTY (ALSO KNOWN AS DAVID JOHN KELLEHER) v MINISTER FOR JUSTICE AND CUSTOMS

N 777 OF 2002

HELY J

11 DECEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant seeks review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) of a decision made by the respondent on 3 July 2002 not to grant the applicant release on parole.  It is common ground that this decision is a decision of an administrative character made under an enactment, viz s 19AL of the Crimes Act 1914 (Cth) (“the Crimes Act”), and that the applicant is a person who is aggrieved by that decision.

Background

2                     On 21 September 1988 the applicant was sentenced to life imprisonment by a judge of the Supreme Court of NSW having been found guilty of conspiring to import a commercial quantity of heroin into Australia contrary to the provisions of s 233B of the Customs Act 1901 (Cth).  The Court declined to set a minimum term.

3                     The applicant subsequently made an application to the Supreme Court under s 28(1) of the Crimes Legislation Amendment Act (No 2) 1990 (Cth) to have a non-parole period fixed in respect of the sentence of life imprisonment.  On 18 July 1996Newman J fixed a non-parole period of 13 years commencing on 21 September 1988 and expiring on 20 September 2001.  In his reasons for decision, Newman J noted that the provisions of s 19AL of the Crimes Act make it clear that there is no guarantee that at the expiration of the non-parole period that parole will in fact be granted, and that at that time, the Attorney-General of the Commonwealth must consider, pursuant to s 19AL(2), (3) and (4) of the Crimes Act, whether in fact the applicant is to be released on parole.

4                     On 9 January 2001 the applicant was arrested whilst he was on work release and charged with an offence under State law of supplying the drug commonly known as Ecstasy.  He pleaded guilty to that charge, and on 15 June 2001 Moore DCJ sentenced the applicant to 4 years imprisonment, with a non-parole period of 18 months.  The non-parole period expired on 8 July 2002.

5                     Sections 19AL(2) and (3) of the Crimes Act provide as follows:

“(2)     Subject to section 19AM, where there has been imposed on a person a federal life sentence or a federal sentence of, or federal sentences aggregating, 10 years or more and a non-parole period has been fixed in relation to the person in respect of the sentence or sentences, the Attorney-General must, by order in writing:

            (a)        direct that the person be released from prison on parole:

                        (i)         at the end of the non-parole period; or

                        (ii)        if the Attorney-General considers that in all the circumstances it would be appropriate to do so, on a specified day, not being earlier than 30 days before the end of the non-parole period; or

            (b)        direct that the person is not to be released on parole at, or at any time before, the end of the non-parole period.

(3)       An order directing that a person not be released at, or at any time before, the end of the non-parole period:

            (a)        must not be made later than 3 months before the end of the non-parole period; and

            (b)        must include a statement of reasons why the order was made; and

            (c)        if the Attorney-General proposes to reconsider, at a later time, the question of the release of the person on parole – must indicate when the Attorney-General proposes to reconsider the question;

            and a copy of the order must be given to the person within 14 days after it was made.”

The date by which any order directing that the applicant not be released at the end of his non-parole period was required to be made by s 19AL(3)(a) was 20 June 2001.

6                     On 18 June 2001 a delegate of the Attorney-General directed under s 19AL(2)(b) of the Crimes Act that the applicant not be released from prison on parole on 20 September 2001.  The instrument by which parole was refused included the following:

“Further, under paragraph 19AL(3)(b) of the [Crimes] Act, I am required to give you reasons why the parole order was not made.  This order for refusal of parole has been made for the following reasons:

1.         You have been sentenced to a further term of imprisonment for a drug offence while you were serving a sentence for conspiracy to import a commercial quantity of heroin.

2.         By that conduct you have failed to show evidence of rehabilitation or an ability to abide by parole conditions.

3.         Your new State sentence of four years has a non-parole period of eighteen months which does not expire until 8 July 2002.

Prior to that date updated prison and parole reports will be requested.  Under paragraph 19AL(3)(c) of the [Crimes] Act, I advise you that after I have received the requested reports, I will reconsider you for release on parole on 8 July 2002.”

7                     By a letter dated 4 March 2002 the applicant made submissions to the Attorney-General “in the hope that they may assist you in the consideration of my parole”.  One of the matters which those submissions addressed was the offence committed by the applicant whilst on work release.  The applicant characterised that offence as involving a “deplorable lapse of judgement on the spur of the moment [that] was entirely out of character”.

8                     A casework submission was prepared by officers of the Attorney-General’s Department on 14 June 2002 for the Minister for Justice and Customs.  The submission recommended that the Minister approve the release of the applicant on parole in accordance with subsection 19AL(2) of the Crimes Act and made some consequential recommendations.  The submission incorporated a pre-release report prepared by the Department of Corrective Services on 11 April 2002 which recommended release on parole, and noted that on 2 May 2002 the NSW Parole Board decided to grant the applicant State parole from 8 July 2002.

9                     On 3 July 2002 the Minister for Justice and Customs endorsed the submission with a notation that the recommendations were “not agreed” or “rejected”.  On 3 July 2002 the Minister forwarded a letter to the applicant notifying him of the decision not to grant release on parole.  The letter provided as follows:

“I refer to your letter of 4 March 2002 to Mrs Jackson of the Attorney-General’s Department in which you asked for certain matters to be taken into account when the matter of whether you are to be released on parole was again considered.  As you were informed last year, the Delegate agreed to reconsider your release on Commonwealth parole prior to you becoming eligible for release on State parole on 8 July 2002.  I have considered your case as the Minister responsible for matters involving federal prisoners.

I have taken into account the following matters in making a decision on your case: the parole reports prepared in 2001 and 2002, the Judge’s remarks in sentencing you for the offence committed while you were on work release and your letter of 4 March.

You were sentenced to a term of life imprisonment on 21 September 1988 for a serious offence, namely a sophisticated conspiracy involving the ongoing importation of commercial quantities of heroin.  At that time the Court refused to set a minimum term.  You were subsequently granted a non-parole period of 13 years by the Supreme Court in 1996, to commence on 21 September 1988.

However, prior to the expiry of that non-parole period, you were arrested, charged and convicted of a further drug offence of supplying ecstasy, committed in January 2001, while you were on work release and serving a sentence for conspiracy to import a commercial quantity of heroin.  You were convicted to a term of 4 years’ imprisonment on 9 January 2001, while already serving a life term.

In these circumstances I do not consider that it would be appropriate to grant you the benefit of release on parole so soon after re-offending in custody while serving a life sentence.  Therefore, after careful consideration, I have decided not to grant you release on parole.

I am prepared to reconsider you for possible release on 8 July 2003.  I have asked officers of my Department to arrange for me to be provided with further prison and parole reports by 8 May 2003 so that I will be in a position to review your case.”

Whether the respondent was an authorised decision-maker?

10                  During the course of argument, I enquired of counsel for the respondent as to how it came about that the respondent purported to exercise the power, or to perform the duty imposed by s 19AL of the Crimes Act on the Attorney-General.  I was informed that this came about as a result of a Ministerial arrangement of the type contemplated by s 18C of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”).  That enquiry on my part provoked an application to further amend the Amended Application so as to assert that the decision of the respondent made on 3 July 2002 is void, as not being a decision of the Attorney-General who is the statutory decision-maker.

11                  As the respondent did not object to leave to amend being granted, I gave the applicant leave to file a Further Amended Application by 5 pm on 27 November 2002 on the basis that the respondent would be entitled to file and serve evidence or other material in relation to the Further Amended Application by 9 am on 28 November 2002.  After discussion with counsel, I decided that I would not hear further argument on the Further Amended Application unless either party desired to be heard further, and notified my associate of that desire by 5 pm on 28 November 2002.  No such notification was received by my associate.

12                  A document styled “Respondent’s Additional Submissions” was lodged with my associate, and has been placed with the papers.  The submission attaches various documents in relation to the appointment of Ministers and the allocation of portfolio responsibilities between Ministers, which I will formally receive into evidence.  Those documents establish that on 26 November 2001 both the Attorney-General and the Minister for Justice and Customs were appointed by the Governor-General to administer the Attorney-General’s Department.  An Administrative Arrangements Order made by the Governor-General on 26 November 2001 ordered that the legislation administered by a Minister of State administering the Attorney-General’s Department includes the Crimes Act.  A news release published on behalf of the two Ministers on 5 February 2002 records that the Ministers had determined that portfolio responsibilities had been allocated between them on the basis that criminal law and prisoners were allocated to the Minister for Justice and Customs.

13                  Section 19A(1) of the Acts Interpretation Act provides:

“References to Ministers and Departments

19A     (1)        If a provision of an Act:

            (aa)      refers to a Minister by using the expression ‘the Minister’ without specifying which Minister is referred to; or

            (ab)      refers to a particular Minister;

then, unless the contrary intention appears, the reference is a reference to:

            (a)        if, for the time being, different Ministers administer the provision in respect of different matters:

                        (i)         if 2 or more Ministers administer the provision in respect of the relevant matter – any one of those Ministers; or

                        (ii)        if only one Minister administers the provision in respect of the relevant matter – that Minister;

            (b)        if paragraph (a) does not apply and, for the time being, 2 or more Ministers administer the provision – any one of those Ministers; or

            (c)        if paragraphs (a) and (b) do not apply – the Minister for the time being administering the provision.”

14                  Both the Attorney-General and the Minister for Justice and Customs have been appointed to administer the provisions of the Crimes Act.  By administrative arrangements made between the Ministers, the Minister for Justice and Customs was, as a matter of fact, the Minister administering the provisions of s 19AL of the Crimes Act at relevant times.  It therefore follows that the Minister for Justice and Customs was authorised either by s 19A(1)(b) or (c) of the Acts Interpretation Act to administer the provisions of s 19AL of the Crimes Act, and it is not necessary to decide which of those subsections was the source of power.  There may be other sources of power: see Attorney-General (Cth) v Foster (1999) 84 FCR 582.

15                  It follows that the applicant’s submission that the decision made on 3 July 2002 is void because the decision was made by a Minister other than the Attorney-General, fails.

Whether the respondent’s decision was an improper exercise of power?

16                  In the course of oral submission, the applicant’s counsel put his client’s case on the basis that the decision which the respondent made on 3 July 2002 was an improper exercise of the power conferred by s 19AL of the Crimes Act, as the respondent did not then make a decision as to whether or not the applicant was to be released on parole.  Instead, the respondent simply but impermissibly, determined that it was too early to make a decision on the question of the applicant’s release.

17                  Alternatively, it was submitted that if the respondent did make a decision that the applicant was not to be released on parole, the only basis for that decision given in the letter of 3 July 2002 was:

“In these circumstances I do not consider that it would be appropriate to grant you the benefit of release on parole so soon after re-offending in custody while serving a life sentence.”

In the applicant’s submission, it was not open to the respondent to refuse parole on this ground given the delegate’s statement in the instrument of 18 June 2001:

“ … after I have received the requested reports, I will reconsider you for release on parole on 8 July 2002.”

In the applicant’s submission that amounted to a promise, or engendered a reasonable expectation, that in July 2002 the question of release on parole would be reconsidered “on its merits”, having regard to the reports which the delegate indicated would be sought in advance of that reconsideration.  The applicant submits that he was never alerted to the fact that one of the possibilities which the Minister had under consideration was whether it was “too early” in 2002 to make a decision on the question of the applicant’s release on parole, hence there was a denial of natural justice in that respect.

18                  Counsel for the applicant expressly disavowed a case that the applicant was entitled to release on parole in July 2002 subject only to the receipt of satisfactory reports.  Counsel also accepted that if the Minister had refused to grant the applicant release on parole in July 2002 it would nonetheless have been open to the Minister to indicate that he proposed to reconsider the question at a later time.  The essential thrust of the applicant’s submissions is that in July 2002 the Minister simply deferred making a decision on the question of release on parole, and the Minister was not entitled to do so.

Consideration

19                  In my view, the applicant’s case fails at the threshold.  The Minister did not defer making a decision on the question of the applicant’s release on parole; rather he made a decision adverse to the applicant.  A casework submission was put before the Minister recommending that he approve the release of the applicant on parole in accordance with subs 19AL(2) of the Crimes Act.  The Minister did not agree with that recommendation; he rejected it.  As the respondent’s letter of 3 July makes plain the Minister decided not to grant the applicant release on parole.  He did not simply defer consideration of the question of possible release until 8 July 2003.  Rather, the respondent decided not to grant the applicant release on parole, but indicated that he was prepared to consider the applicant for possible release on 8 July 2003.  That is not to say that the result of that reconsideration would necessarily be favourable to the applicant.

20                  The Minister’s decision was that it was too soon for the applicant to be released on parole, not that it was too soon for the Minister to make a decision on the question of release.  In the respondent’s letter of 3 July 2002, the respondent stated that the parole reports prepared in 2001 and 2002, the judge’s remarks in sentencing the applicant for the offence committed while he was on work release, and the applicant’s letter of 4 March 2002, were matters which the respondent had taken into account in making a decision on the case.  The decision was one which was made “on the merits” inasmuch as factors favourable to the applicant’s release were taken into account.

21                  The delegate’s decision of 18 June 2001 notified the applicant that it was proposed to reconsider the question of the applicant’s release on parole on 8 July 2002.  That may have engendered a hope on the applicant’s part that the result of that reconsideration would be favourable to him, but the notification did not in any sense purport to pre-empt the Attorney-General’s reconsideration of the question, or to truncate or limit the matters to which the Attorney-General might have regard as part of that process of reconsideration.  Even if the delegate had purported to bind the decision-maker who would eventually conduct the reconsideration, that would have been legally ineffective : Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193.

22                  The applicant assumed, and the respondent accepted, that the exercise of the s 19AL power is one which has to be exercised with procedural fairness.  Whilst neither side cited any authority on this issue, the common assumption is consistent with the decision of the Court of Appeal in Todd v Parole Board (1986) 6 NSWLR 71 at 80-81 and with the decisions in McEncroe v Queensland Community Corrections Board (Supreme Court of Queensland, 8 September 1997 – unreported) and Butler v Queensland Community Corrections Board (Supreme Court of Queensland Court of Appeal, 10 August 2001 – unreported).  In Butler (supra) at [19] the Court said:

“Procedural fairness in respect of a parole application requires that an applicant’s attention be drawn to the main issues or factors militating against success, so that an adequate opportunity is afforded to deal with them.  That obligation, however, is satisfied where, as here, an applicant knows of, or anticipates, the facts and matters assuming significance in a decision to decline a parole application.”

23                  The natural justice case as articulated by the applicant’s counsel was based upon an assumption that the Minister had deferred the making of a decision on the question of release from parole.  That assumption is fallacious for the reasons which I have explained.  The applicant knew that his conviction on the ecstasy charge whilst serving a sentence for conspiracy to import a commercial quantity of heroin was a factor which would bear upon the question of his release on parole, because it was one of the reasons notified to him when the original decision was made that he not be released from prison on parole on 20 September 2001, and because it was one of the matters which he addressed in his letter of 4 March 2002 “in the hope that they may assist you in the consideration of my parole”.  The fact and circumstances of that offence was a matter known to the applicant, and it was obviously a matter to which the respondent would have regard in coming to a decision on the question of release on parole: see Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591.  Accordingly, the claim based on natural justice fails.

24                  The respondent had before him material which pointed in different directions.  Some of it, including the recommendation of the departmental officers, was favourable to the applicant’s release on parole.  It might be thought that the circumstances of the original offence, and the fact of the subsequent offence whilst the applicant was on work release, pointed, or might be regarded as pointing, in a different direction.  As noted at [20] above, in his letter of 3 July, the respondent indicated that he had taken into account in making his decision on the case the parole reports prepared in 2001 and 2002, the judge’s remarks in sentencing the applicant for the offence committed whilst he was on work release and the applicant’s letter of 4 March.  He also took into account the first and second offences.  The fact that the second respondent did not come to a decision consistent with the material favourable to the applicant does not mean that there has been a failure to take that material into account or that the decision was based upon irrelevant considerations.  Still less has a case been made for Wednesbury unreasonableness or that the respondent by his decision of 3 July 2002 exercised such power as he enjoys pursuant to s 19AL(2) and (3) of the Crimes Act, in bad faith.  Whilst these grounds are referred to in the Further Amended Application they were not developed in submissions and there is no evidentiary foundation capable of supporting them.

25                  The application should be dismissed with costs.

Associate:

Dated:              11 December 2002