FEDERAL COURT OF AUSTRALIA

Dobie v Commonwealth of Australia [2013] FCA 1224

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the respondent’s costs to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 18 December 2008, the applicant pleaded guilty in the District Court of Queensland to human trafficking and other offences. He was sentenced to terms of imprisonment totalling five years, with a non-parole period of 22 months.

2    The applicant was later released on parole, but his parole was revoked on two occasions for non-compliance with the conditions of his parole order.

3    In this Court, the applicant seeks review of what he asserts are decisions made by two delegates of the Attorney-General of the Commonwealth of Australia. The decisions are said to be:

(a)    a decision made on 29 September 2011 purporting to fix the end date of the applicant’s sentence as 8 January 2014;

(b)    another decision made on 13 September 2012 purporting to fix the end date of the applicant’s sentence as 12 May 2014.

4    The applicant claims, in the alternative, review of the conduct of the two delegates which he asserts purported to fix the end date of his sentence.

5    The application is brought pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act) and, alternatively, pursuant to s 39B(1A) of the Judiciary Act 1903 (Cth). The relief sought by the applicant includes a declaration that his sentence ended on 19 October 2013.

Background

6    On 18 December 2008, the applicant pleaded guilty to seven offences, namely two counts of human trafficking contrary to s 271.2(2B) of the Criminal Code 1995 (Cth), one count of dealing in the proceeds of crime in an amount exceeding $1,000 contrary to s 400.7(2) of the Criminal Code and four counts of presenting a false document contrary to s 234(1)(a) of the Migration Act 1958 (Cth).

7    On each of the human trafficking counts the applicant was sentenced to concurrent terms of four years imprisonment. On the dealing in the proceeds of crime count he was sentenced to 12 months imprisonment. On each of the presenting false documents counts he was sentenced to 12 months imprisonment, and the sentence in respect of two of those counts were ordered to be served cumulatively upon the effective four year term otherwise to be served. The sentencing judge fixed a non-parole period of 22 months for the effective five year term.

8    On 18 December 2009, the applicant’s leave to appeal against sentence was refused and his appeal against conviction was dismissed. On 26 February 2010, his application for an extension of time to appeal against his convictions for the offences was refused.

9    The applicant’s sentence meant that his full time release date was 19 October 2013, taking into account a period of 64 days spent in pre-sentence custody.

10    The non-parole period of 22 months expired on 19 August 2010 and the applicant was released on parole on that date. The applicant’s parole was subject to a number of conditions.

11    On 8 July 2011, the applicant’s parole was revoked on the basis that he had failed to comply with certain conditions of his parole order. He was apprehended and he spent two days in custody before he was brought before a magistrate and granted bail on 28 July 2011.

12    The applicant returned to court on 29 September 2011. Magistrate Duroux considered the imposition of a non-parole period and what that period should be for the purposes of s 19AW of the Crimes Act 1914 (Cth). His Honour said:

Turning my mind to what is the appropriate non-parole period, having regard to everything which has been placed before me today and in my view the – whilst I consider the breaches to be serious, in the scheme of things they are not at the higher level of that seriousness, I’m informed Mr Dobie now fully understands that he has a complete and comprehensive requirement to disclose all material. As a result of that, I’m satisfied that it is appropriate to re-release Mr Dobie into the community as of today’s date.

13    Magistrate Duroux issued a warrant pursuant to s 19AW. His Honour seems to have been handed a form of warrant that was typed in the prescribed form but contained blank spaces to allow for the handwriting of information. The warrant reads:

Form 5 Warrant under subsection 19AW(1) authorising the detention of a person

Commonwealth of Australia

Crimes Act 1914

WARRANT UNDER SUBSECTION 19AW(1) AUTHORISING THE DETENTION OF A PERSON

TO: All members and special members of the Australian Federal Police and all members of the police force of Queensland:

AND to the officer in charge of SOUTHPORT WATCH HOUSE in the State of Queensland:

I, TERRY DUROUX, Magistrate, a prescribed authority under Part 1B of the Crimes Act 1914:

(a)    under paragraph 19AW(1)(d) of that Act authorise those members in Queensland to take KEITH WILLIAM DOBIE to SOUTHPORT WATCH HOUSE in the State of Queensland and deliver him to the officer in charge of that prison, together with this warrant; and

(b)    under paragraph 19AW(1)(e) of that Act authorise the officer in charge of SOUTHPORT WATCH HOUSE in the State of Queensland to receive KEITH WILLIAM DOBIE into your custody and imprison him for the term of the sentence of imprisonment specified in the Schedule; and

(c)    under paragraph 19AW(1)(f) of that Act fix the non-parole period in respect of the sentence at ZERO months.

This warrant is issued because:

(a)    the Attorney General acting under subsection 19AU(2) of the Crimes Act 1914 has revoked the parole order relating to KEITH WILLIAM DOBIE; and

(b)    I am satisfied that:

(i)    KEITH WILLIAM DOBIE is the person named in that revocation order; and

(ii)    KEITH WILLIAM DOBIE was notified by the Attorney-General of the proposal to make the revocation order; and

(iii)    the revocation order is still in force.

(The words in italics were handwritten by Magistrate Duroux onto the warrant)

14    The Schedule to the warrant reads, relevantly:

Sentence:    2 years 3 months and 12 days.

Non parole period fixed at ZERO months (TO BE RELEASED FORTHWITH)

Declare 2 days in custody between 27 and 28 July 2011 as time served under this sentence.

Sentence to commence today, the 29 day of September, 2011.

(The words in italics were handwritten)

15    A delegate of the Attorney-General then made a parole order on 29 September 2011 pursuant to s 19AL(1) of the Crimes Act. The parole order directed that the applicant be re-released on parole on the same date.

16    The parole order also contained the following statement:

Following your release on 29 September 2011, you will be on parole until your sentence ends on 8 January 2014.

17    In this proceeding, the applicant contends that this statement amounts to a decision made by the delegate which purported to fix the end date of the applicant’s sentence as 8 January 2014. It is this purported decision which is the first subject of the applicant’s application for judicial review.

18    The parole order set out the conditions of parole, which the applicant accepted by signing the parole order. One of the conditions of parole was that:

You will be supervised by a parole officer until your parole period ends on 8 January 2014.

19    The applicant’s parole was revoked again on 11 May 2012 for non-compliance with conditions of the parole order. The applicant was taken before a magistrate and granted bail. On 13 September 2012, Magistrate Kilner issued a warrant under s 19AW of the Crimes Act (it is dated 14 September 2012, but this appears to be an error).

20    The warrant states, relevantly:

I, RONALD KILNER, Magistrate, a prescribed authority under Part 1B of the Crimes Act 1914:

(a)    under paragraph 19AW(1)(d) of that Act authorise those members in Queensland to take KEITH WILLIAM DOBIE to SOUTHPORT WATCH HOUSE in the State of Queensland and deliver him to the officer in charge of that prison, together with this warrant; and

(b)    under paragraph 19AW(1)(e) of that Act authorise the officer in charge of SOUTHPORT WATCH HOUSE in the State of Queensland to receive KEITH WILLIAM DOBIE into your custody and imprison him for the term of the sentence of imprisonment specified in the Schedule; and

(c)    under paragraph 19AW(1)(f) of that Act fix the non-parole period in respect of the sentence at 0 months.

This warrant is issued because:

(a)    the Attorney General acting under subsection 19AU(2) of the Crimes Act 1914 has revoked the parole order relating to KEITH WILLIAM DOBIE; and

(b)    I am satisfied that:

(i)    KEITH WILLIAM DOBIE is the person named in that revocation order; and

(ii)    KEITH WILLIAM DOBIE was notified by the Attorney-General of the proposal to make the revocation order; and

(iii)    the revocation order is still in force.

(The words and numbers in italics were handwritten)

21    The Schedule to the warrant specifies the term of the sentence of imprisonment as 1 year, 7 months and 27 days.

22    A transcript of the proceedings before Magistrate Kilner makes it clear that his Honour intended that the applicant should be released without spending further time in custody.

23    The delegate of the Attorney-General made a parole order on 13 September 2012 directing that the applicant be re-released on parole on the same day. The order also contained the following statement:

Following your release on 13 September 2012, you will be on parole until your sentence ends on 12 May 2014.

24    The applicant asserts that this statement amounts to another decision that purported to fix the end date of his sentence as 12 May 2014. This purported decision is also the subject of the application.

25    The order set out a number of conditions, which were accepted by the applicant by his signature. One of the conditions of the parole order was that the applicant, “will be supervised by a parole officer until your sentence ends on 12 May 2014”.

26    The present position is that the applicant has been released from custody but remains on parole until 12 May 2014.

The arguments

27    The applicant argued that, properly interpreted, the warrants issued by Magistrate Duroux and Magistrate Kilner show that each of those Magistrates decided to decline to fix a non-parole period. The argument continued that the delegates of the Attorney-General had no power to make the parole orders and, accordingly, they are invalid. He contended that the end date for his sentence remains 19 October 2013.

28    The respondent’s response was that the warrants show that the Magistrates did fix non-parole periods, and that if they had declined to fix non-parole periods, the applicant would not have been entitled to be released from prison.

29    The applicant’s alternative argument was that a delegate of the Attorney-General had, on 29 September 2011, made a decision that purported to fix the end date of the applicant’s sentence as 8 January 2014, and that another delegate had made a decision on 13 September 2012 that purported to fix the end date of the applicant’s sentence as 12 May 2014. The applicant argued that in making these decisions, the delegates had failed to take into account a relevant consideration, namely the periods of time between the making of the parole orders and the issuing of the warrants. The applicant also argued that he was denied natural justice by reason of the delegates’ failure to take into account such periods of time.

30    The respondent’s response was that the delegates did not make any relevant decisions, but that it was Magistrate Duroux and Magistrate Kilner who made the decisions that had the effect that the end date of the sentence was 8 January 2014 and then 12 May 2014. The respondent contended that such decisions were correctly made by the Magistrates.

The legislation

31    Divisions 4 and 5 of Part IB of the Crimes Act deal with, amongst other things, the fixing of non-parole periods, release from prison on parole and revocation of parole. The Crimes Legislation (Powers and Offences) Act 2012 (Cth) amended Part IB, but it is the Crimes Act as it stood prior to the amendments that is applicable in the present case.

32    It is uncontroversial that prior to 4 October 2012, the provisions of Divisions 4 and 5 were, relevantly, to the following effect:

(a)    When a court imposes a federal sentence that exceeds three years imprisonment, the court must fix a non-parole period in respect of that sentence: s 19AB(1).

(b)    The non-parole period must end not later than the end of the sentence as reduced by any remissions or reductions under State law: s 19AF(1).

(c)    Where the person is serving a sentence of more than 3 years but less than 10 years and a non-parole period has been fixed in relation to the sentence Attorney-General must, by order in writing, direct that the person be released from prison on parole at the end of the non-parole period or up to 30 days before the end of the non-parole period: s 19AL(1).

(d)    A parole order that a person be released from prison is sufficient authority for the release if, and only if, the person indicates in writing his or her acceptance of the conditions to which the order is subject: s 19AL(5).

(e)    A parole order is subject to the conditions that the offender must, during the parole period, be of good behaviour and not violate any law and be subject to such other conditions as the Attorney-General specifies in the order: s 19AN(1).

(f)    Where a person is serving a federal sentence (whether or not a non-parole period has been fixed or a recognizance release order made), the Attorney-General may grant a licence for the person to be released from prison if satisfied that exceptional circumstances exist which justify the grant of the licence: s 19AP(1), (4).

(g)    The Attorney-General may revoke a parole order before the end of the parole period if the offender has, during that period, failed to comply with a condition of the parole order or there are reasonable grounds for suspecting that the offender has so failed to comply: s 19AU(1).

(h)    The Attorney-General may apply to a prescribed authority for a warrant for the arrest of the person whose parole order has been revoked, or a constable may arrest such a person without warrant: ss 19AV(1) and (2).

(i)    A person who is so arrested must as soon as practicable be brought before a prescribed authority: s 19AV(3).

(j)    Where the prescribed authority is satisfied of certain matters, the prescribed authority must issue a warrant authorising any constable to take that person to a specified prison, directing that the person be detained in prison for the unserved part of a sentence and fixing a non-parole period in respect of the outstanding sentence: s 19AW(1).

(k)    The prescribed authority is not required to fix a parole period in specified circumstances: s 19AW(3).

(l)    Where the prescribed authority issues a warrant, it must specify on the warrant the particulars of the unserved part of each outstanding sentence and, if a non-parole period is fixed, particulars of that period: s 19AW(4).

(m)    A non-parole period fixed under s 19AW has effect as if it had been fixed by a court in respect of the outstanding sentence, and s 19AL applies in relation to that non-parole period: s 19AW(5).

(n)    Where a prescribed authority issues a warrant under s 19AW(1), the person may appeal to the Supreme Court of the State in which the person was arrested against the issue of the warrant or the calculation of the unserved part of the sentence or the fixing of a non-parole period or refusal to fix such a period: s 19AY(1).

(o)    The expression “non-parole period” is defined to mean that part of a period of imprisonment during which the person is not to be released on parole: s 16(1).

(p)    The expression “parole-period” is defined to mean, relevantly, the period commencing on the day of release on parole and ending on the last day of the federal sentence (“federal sentence” refers to a sentence of imprisonment for an offence against a law of the Commonwealth): s 16(1).

(q)    The expression “supervision period” is defined to mean, relevantly, the period commencing on the day of release on parole and ending at the end of the day specified in the parole order as the day on which the supervision period ends, being a day not later than the last day of any federal sentence: s 16(1).

Consideration

Validity of the parole orders

33    The applicant argues that, properly interpreted, the warrants issued by Magistrate Duroux and Magistrate Kilner show that each of those magistrates decided to decline to fix a non-parole period. The argument continues that where no non-parole period had been fixed, the delegates had no authority to make parole orders and that the parole orders are invalid.

34    As the applicant’s argument relies substantially on s 19AW of the Crimes Act, it is useful to set out that section in full:

(1)    Where a prescribed authority before whom a person is brought under section 19AV because of an order revoking a parole order or licence is satisfied:

(a)    that the person is the person named in that revocation order; and

(b)    that the person was notified by the Attorney-General of the proposal to make the revocation order; and

(c)    that the revocation order is still in force;

the prescribed authority must issue a warrant, in the prescribed form:

(d)    authorising any constable to take the person to a specified prison in the State or Territory in which the person was arrested; and

(e)    directing that the person be detained in prison in that State or Territory to undergo imprisonment for the unserved part of the sentence, or of each sentence, of imprisonment (in this section called the outstanding sentence or sentences) that the person was serving or had yet to serve at the time of his or her release; and

(f)    subject to subsection (3), fixing a non-parole period in respect of the outstanding sentence or sentences.

(2)    If the prescribed authority cannot complete the hearing under subsection (1) immediately, the prescribed authority may issue a warrant for the remand of the person in custody pending completion of the hearing.

(3)    The prescribed authority is not required to fix a non-parole period under paragraph (1)(f) if:

(a)    the prescribed authority considers it inappropriate to do so because of the nature of the breach of the conditions of the order or licence that led to its revocation; or

(b)    the unserved part of the outstanding sentence or sentences is, or aggregates, 3 months or less.

(4)    Where a prescribed authority issues a warrant, the prescribed authority must specify in the warrant the particulars of the unserved part of each outstanding sentence and, if a non-parole period is fixed, particulars of that period.

(5)    A non-parole period fixed under this section has effect as if it had been fixed by a court in respect of the outstanding sentence or sentences and section 19AL applies in relation to that non-parole period according to its terms.

(6)    Where a person brought before a prescribed authority under section 19AV is dealt with in accordance with this section, the unserved part of any outstanding sentence or sentences that the person was serving or had yet to serve at the time of his or her release, is to be reduced by any period of remand under subsection (2).

35    Section 19AL deals with release of prisoners on parole and provided, relevantly:

(1)    Subject to section 19AM, where there has been imposed on a person a federal sentence of, or federal sentences aggregating, more than 3 years but less than 10 years and a non-parole period has been fixed in relation to the sentence or sentences, the Attorney-General must, by order in writing, direct that the person be released from prison on parole:

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

…

(4)    A parole order in relation to a federal sentence:

…

(b)    if it is proposed that, for any part of the parole period, the person should be subject to supervision – must specify the day on which the supervision period ends, being a day fixed in accordance with the requirements of the definition of supervision period in subsection 16(1).

36    The warrant issued by Magistrate Duroux stated that he, “under paragraph 19AW(1)(f) of that Act fixed the non-parole period in respect of the sentence at zero months”. The applicant noted that s 19AW(3)(a) provides that the prescribed authority is not required to fix a non-parole period under s 19AW(1)(f) if the prescribed authority considers that it is inappropriate to do so because of the nature of the breach of the conditions of the order that led to its revocation. The applicant argued that Magistrate Duroux should be taken to have declined to fix a non-parole period, and that this is indicated by the notation on the warrant that the non-parole period was fixed at “zero months”. The applicant argued that the Magistrate’s refusal to fix a non-parole period was signified in this way because the prescribed form handed up to the Magistrate did not contain a specific section to deal with a refusal to fix a non-parole period. The argument continued that if the prescribed authority declines to fix a non-parole period, the applicant is entitled to be released immediately from prison and the end date for the sentence would not be altered and would remain at 19 October 2013.

37    I reject the applicant’s argument for the following reasons.

38    In the warrant Magistrate Duroux plainly said that he fixed the non-parole period at zero months under s 19AW(1)(f) of the Crimes Act. He did not say that he declined to fix a non-parole period pursuant to s 19AW(3). It is highly unlikely that the Magistrate would say that he was fixing a non-parole period if what he meant was that he was declining to fix a non-parole period. If he intended to decline to fix a non-parole period, he could have struck through the relevant part of the form and handwritten words onto the warrant that indicated his intention.

39    Further, it is highly unlikely that Magistrate Duroux could have intended to decline to fix a non-parole period. It is apparent from his Honour’s reasons that he intended that the applicant be released into the community on 29 September 2011. His Honour’s notation on the warrant that the non-parole period would be “zero months” is consistent with that intention. The effect of fixing a non-parole period was that the Attorney-General was enabled, by operation of s 19AL and s 19AW(5), to make a parole order. The parole order had the effect of allowing the applicant to be released into the community in accordance with the Magistrate’s intention.

40    If Magistrate Duroux had declined to fix a non-parole period, the applicant would have undergone imprisonment for the unserved part of the sentence without parole. The discretion under s 19AW(3)(a) is apt to be exercised where the nature of the relevant breach of the conditions of the parole order or licence is so serious that the prescribed authority considers it inappropriate to fix a non-parole period. In other words, it operates where the prescribed authority considers that the offender should not be released on parole.

41    I reject the applicant’s argument that when a prescribed authority declines to fix a non-parole period, the effect is that the prisoner is to be released immediately. The legislation allows a prisoner to be released from prison only by the making of a parole order, by the granting of a licence, by the expiration of the sentence, or by the operation of State or Territory law pursuant to s 19AA of the Crimes Act. When a magistrate declines to set a non-parole period, the effect is that a parole order cannot be made and the prisoner cannot be released until one of the other circumstances that allow release is present. That view is consistent with s 19AY(1) which allows the prisoner to appeal against a decision to refuse to fix a non-parole period. I was not referred to authority on the issue, whether supporting a contrary view or otherwise.

42    The premise of the applicant’s first argument, that Magistrate Duroux declined to fix a non-parole period, is not established. The position is the same in respect of Magistrate Kilner. The delegates were authorised by s 19AL to make parole orders.

Alleged failure to take into account relevant considerations and denial of natural justice

43    The applicant’s next argument started with the proposition that the delegates of the Attorney-General had, on 29 September 2011 and 13 September 2012, made decisions that purported to fix the end date of the applicant’s sentence. The next step in the argument was that in making such decisions, the delegates had failed to take into account a relevant consideration, namely the period of time between the making of each parole order and the issuing of the warrant. The applicant also submitted that he was denied natural justice by the delegates’ failure to take into account such periods of time.

44    In the course of his argument, the applicant used the expression “fixed the end date” to describe what he says the delegates did in relation to his sentence of imprisonment. By the use of that expression, I understand the applicant to say that the delegates fixed what is described in Part IB of the Crimes Act as “the last day of any federal sentence” (for example, in the definitions of “parole period” and “supervision period” in s 16). I will use the expression “end date” to refer to the last day of the applicant’s sentence of imprisonment.

45    The respondent’s submission in response, that the Magistrates, not the delegates, had fixed the end dates for the applicant’s sentence, relies on s 19AW, s 19AZC and s 19AA of the Crimes Act. Much of the respondent’s argument focussed on the proposition that the Magistrates had applied those sections properly and correctly determined the end date for each sentence.

46    Section 19AW(1)(e) required Magistrate Duroux to direct that Mr Dobie be detained in prison to undergo imprisonment for the unserved part of the sentence of imprisonment that he was serving or had yet to serve at the time of his release on parole (“the outstanding sentence”). Section 19AW(4) required that the unserved part of the outstanding sentence be specified in the warrant. That period was specified in the schedule to the warrant as 2 years, 3 months and 12 days, but was to be reduced, pursuant to s 19AW(6), by the 2 days specified as the period on remand.

47    Magistrate Kilner was also required to issue a warrant directing that Mr Dobie be detained in prison to undergo imprisonment for the unserved part of such sentence. The length of the outstanding sentence was specified as 1 year, 7 months and 27 days.

48    The applicant had the right to appeal against the calculations by Magistrate Duroux and Magistrate Kilner of the unserved part of the outstanding term of imprisonment under s 19AY(1), but did not bring any appeal. Neither did the applicant challenge in this application the calculation of the lengths of the outstanding sentence made by either Magistrate.

49    Section 19AZC(1) of the Crimes Act provides relevantly:

Where a parole order is made, or a licence is granted, in relation to a person:

(a)    until the parole period or licence period ends without the parole order or licence being revoked, or until the person is otherwise discharged from imprisonment, the person is to be taken to be still under sentence and not to have served the part of any sentence that remained to be served at the beginning of the parole period or licence period;

50    The respondent contended that the effect of s 19AZC was that, because the parole order had been revoked, the applicant was taken to still be under the sentence and not to have served any part of the outstanding sentence that remained to be served at the beginning of the parole period on each occasion. In other words, the respondent’s argument was that the applicant was taken not to have served any part of the sentence that remained to be served between 19 August 2010 when he was released on parole and 29 September 2011 when Magistrate Duroux issued the warrant. The respondent argued that the period of time between those dates was correctly added to the original end date of 19 October 2013 by Magistrate Duroux to arrive at the outstanding sentence of 2 years, 3 months and 12 days, resulting in a new release date of 8 January 2014, when the two days in custody were deducted.

51    The respondent also submitted that the applicant was taken not to have served any part of the sentence that remained to be served between 29 September 2011 when he was released on parole for the third time and 13 September 2012 when Magistrate Kilner issued a warrant. The respondent asserted that the period between these dates was correctly added by Magistrate Kilner to arrive at the outstanding sentence of 1 year, 7 months and 27 days, resulting in a new release date of 12 May 2014.

52    On the respondent’s argument, the effect of the legislation is that by revoking parole, the delegates of the Attorney-General had effectively caused the end date for the applicant’s sentence of imprisonment to extend beyond the end date decided by the District Court Judge who sentenced the applicant.

53    The respondent argued that the apparent harshness of this position is ameliorated by s 19AA(1). That section provides:

A law of a State or Territory that provides for the remission or reduction of State or Territory sentences (other than such part of the law as relates to the remission or reduction of non-parole periods of imprisonment or of periods of imprisonment equivalent to pre-release periods of imprisonment in respect of recognizance release orders) applies in the same way to the remission or reduction of a federal sentence in a prison of that State or Territory, being a sentence imposed after the commencement of this section.

54    The respondent contended that the effect of s 19AA(1) is to pick up s 211(2) of the Corrective Services Act 2006 (Qld) and allow reduction of the applicant’s sentence. Section 211(2) of the Corrective Services Act provides, relevantly, that the time for which the prisoner was released on parole before a parole order was cancelled because the prisoner failed to comply with a parole order counts as time served under the prisoner’s period of imprisonment.

55    The effect of the respondent’s construction is that an administrative officer can, by cancelling a parole order, cause the extension of the end date of a sentence of imprisonment imposed by a judicial officer. There is no explicit and direct statement of such an intention in the legislation. Acceptance of the respondent’s argument would require a full consideration of the statutory scheme, particularly as to how, s 19AA, s 19AW and s 19AZC work in combination. The interaction of the relevant provisions is complex, even convoluted. I was not referred to relevant authority on any similar provisions in earlier versions of the Crimes Act. I would be reluctant to make a decision upon the respondent’s argument, in respect of a statutory scheme dealing with the incarceration and liberty of offenders, in the absence of full argument.

56    However, it is unnecessary for me to reach any conclusion upon the respondent’s argument that the Magistrates had correctly applied s 19AA, s 19AW and s 19AZC in arriving at the length of the outstanding sentence. That is because I accept the respondent’s arguments that the application should fail because the ADJR Act does not apply here, and that there is no basis for relief under s 39B of the Judiciary Act 1903 (Cth) because no jurisdictional error has been demonstrated.

57    Section 5(1) of the ADJR Act provides that a person who is aggrieved by a “decision to which this Act applies” may apply to the Federal Court for an order of review in respect of the decision. The expression “decision to which this Act applies” is defined in s 3 to mean, relevantly, a decision of an administrative character “made under an enactment”.

58    In Griffith University v Tang (2005) 221 CLR 99, Gummow, Callinan and Heydon JJ said at [89]:

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.

59    It will be recalled that the parole order made on 29 September 2011 stated, “you will be on parole until your sentence ends on 8 January 2014”. The parole order made on 13 September 2012 stated, “you will be on parole until your sentence ends on 12 May 2014”. The applicant asserted that these statements amounted to decisions fixing end dates for the sentence and that such decisions fell within s 5(1) of the ADJR Act.

60    It is plain that Magistrate Duroux and Magistrate Kilner directed that the applicant be detained in a prison for the unserved part of his sentence and decided the length of the outstanding sentence of imprisonment. It was necessary for the Magistrates to make such decisions in order to issue a warrant that complied with the requirements of s 19AW(1)(e) and (4).

61    The Attorney-General’s delegates were required under s 19AL(1) to consider making parole orders following the Magistrates’ decisions to fix non-parole periods. In each of the parole orders the respective delegates stated the end date of the applicant’s sentence. They calculated those dates by taking the lengths of the outstanding sentence specified by the Magistrates and mechanically working out the last date of the outstanding sentence, presumably consulting a calendar in order to do so.

62    The issue to be decided is whether the delegates purported to fix the end date of the applicant’s sentence, or, in other words, the last day of the applicant’s sentence. This requires consideration of the purpose for which each of the delegates stated the end date in the parole order.

63    Section 19AN(1) of the Crimes Act allows the Attorney-General to specify conditions of the parole order, including a condition that the offender must be subject to the supervision of a parole officer. Section 19AL(4) required that if it is proposed that, for any part of the parole period, the person should be subject to supervision, the parole order must specify the day on which the supervision period ends, being a day fixed in accordance with the definition of “supervision period” in s 16(1). The parole order made on 29 September 2011 specified that the applicant would be supervised by a parole officer until his parole period ends on 8 January 2014, while the parole order made on 13 September 2012 specified that the applicant would be supervised until his parole period ends on 12 May 2014.

64    It was necessary for the delegates to ascertain when the sentence would end so they could decide the length of the supervision and specify the date on which the supervision ends. The definition of “supervision period” in s 16(1) requires that the day the supervision period ends is not later than the last day of any federal sentence of imprisonment that is being served or to be served. The purpose of the statement in the parole order of 29 September 2011 that “you will be on parole until your sentence ends on 8 January 2014” was to identify the end date of the sentence in order to be able to specify the date on which the supervision period ended. The purpose of the relevant statement in the parole order of 13 September 2012 was the same.

65    Viewed in this way, the statements in the parole orders relied on by the applicant were not decisions to fix the end date for the applicant’s sentence. These end dates had effectively been set by the Magistrates acting under s 19AW(1)(e) and (4). The Attorney-General did have an obligation under s 19AL to identify the end date for the sentence in order to then decide upon the supervision period. However, the date had to be identified by applying the decision made by the Magistrate that specified the length of the outstanding sentence.

66    It must be noted that the applicant did not challenge the decisions of the delegates to set the supervision periods. Rather, the applicant argued that the delegates had set or purported to set the dates when the applicant’s sentence would end.

67    The second of the criteria required by Griffith University v Tang is not met. The delegates’ statements of the end dates for the sentence did not confer, alter or otherwise affect any relevant legal rights or obligations of the applicant. The Magistrates had decided the length of the outstanding sentence, and it was those decisions which affected the applicant’s legal rights and obligations. The delegates’ identification of the end dates did not change the end dates for the sentence or change the parole period. The Magistrates’ decisions were not challenged, either in the present proceedings or by way of appeal to the Supreme Court pursuant to s 19AY(1).

68    Therefore, there is no “decision to which this Act applies” capable of being reviewed pursuant to s 5 of the ADJR Act.

69    In addition, the delegates’ identification of the end dates for the sentence in the parole orders did not amount to “conduct” for the purposes of s 6(1) of the ADJR Act. That section provides that:

Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the conduct …

70    A challenge to conduct is an attack on the proceedings engaged in before the making of the decision, but is not a challenge to decisions made as part of the decision making process: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341-342. Here, the applicant’s challenge was to the latter rather than the former. In addition, as I have found, there was no relevant “decision to which this Act applies” ultimately made by the delegates.

71    That leaves for decision the application insofar as it invokes s 39B of the Judiciary Act. The applicant argued that the delegates had failed to take into account a relevant consideration, namely the period of time between the cancellation of each of the parole orders and the issuing of each of the warrants by the Magistrates.

72    The applicant’s first parole order was revoked on 8 July 2011, the applicant was apprehended on 27 July 2011 and the warrant was issued on 29 September 2011. There was a delay of some 83 days between the revocation of that parole order and the issuing of the warrant. There was a delay of some 125 days between the revocation of the second parole order and the issuing of a warrant on 13 September 2012. The applicant suggested that there was a breach on each occasion of s 19AV(3), which requires that where a prisoner whose parole has been revoked is arrested, the prisoner must, as soon as practicable after the arrest, be brought before a prescribed authority.

73    The applicant argued that the effect of the cumulative delays had been to push back the end date of his sentence from 19 October 2013 to 12 May 2014. The continuing operation of the parole conditions prevents the applicant from operating his own business and, it was claimed, causes him financial hardship.

74    The applicant’s argument concerning delay on the part of the Attorney-General or the prosecuting authority ignores the fact that the applicant was brought before a magistrate promptly on each occasion that he was apprehended after his parole was revoked. The applicant was granted bail in the Southport Magistrates Court on 28 July 2011 and one of the conditions required him to appear on 12 September 2011. He was again granted bail on 17 July 2012 and one of the conditions required him to appear on 13 September 2012. The applicant’s counsel accepted that the magistrates who granted bail were each a “prescribed authority”. Therefore, it seems unlikely that there was any breach of s 19AV(3). The reasons why there was delay between the granting of bail and the appearance when the warrant was issued on each occasion are not explained in the evidence. There is no necessary inference that such delays involved fault on the part of the Attorney-General or the prosecuting authority. In any event, any such delays and any breach of s 19AV(3) are not determinative of this application.

75    The periods of time between the revocation of parole and the issuing of the warrants, particularly any delays by the Attorney-General or the prosecuting authority, may have been relevant for the Magistrates to take into account in fixing non-parole periods. They were not relevant for the Attorney-General’s delegates when making the mechanical calculations of the end dates of the applicant’s sentence for the purpose of specifying the dates on which the periods of supervision would end. Those calculations were based entirely upon the length of the outstanding terms specified by the Magistrates in the warrants. The Attorney-General is not authorised or permitted under s 19AL or any other provision of the legislation to alter the length of the outstanding terms of imprisonment, when making a parole order, whether by taking into account the period of time between the cancellation of a parole order and the issuing of a warrant, or delays in bringing the prisoner before a prescribed authority, or any other factor. The Attorney-General was therefore not bound under the legislation to take into account the matters that the applicant asserted the delegates failed to take into account: c.f. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. The delegates did not purport to alter the length of the outstanding terms of imprisonment set by the Magistrates, but simply applied those terms.

76    I therefore reject the applicant’s argument that the delegates of the Attorney-General failed to take into account a relevant consideration, namely, the period of time between the revocation of the parole orders and the issuing of the warrants.

77    The applicant argued that the failure of the delegates to take into account the period of time between the revocation of parole and the issuing of the warrants amounted to a denial of natural justice. The argument seems to be that the delegates ought to have given the applicant an opportunity to make submissions about that issue prior to making the decision to fix the end dates for the sentence. I have already indicated that any decisions of the delegates did not have any effect upon the end dates of the sentence. The outstanding terms of imprisonment were decided by the Magistrates and the delegates merely identified the dates on which those terms would end. They did so for the purpose of deciding the date on which the supervision period would end. The decisions of the delegates did not relevantly affect the rights or interests of the applicant: c.f. Kioa v West (1985) 159 CLR 550 at 584, 612, 619 and 632. There was no requirement that the delegates give the applicant an opportunity to be heard upon their identification of the end dates for the outstanding sentence.

78    Again, it is to be noted that the applicant made no complaint of a denial of procedural fairness in respect of the making of the supervision order.

79    For the reasons I have given, the application must be dismissed with costs.

Associate:

Dated:    19 November 2013