CATCHWORDS Administrative Law - Judicial Review - "Decision" by Attorney-— General pursuant to s.19A Crimes Act - Application for early release from imprisonment - "Decision" declining to recommend to or advise Governor-General that applicant be granted licence at large - Objection to competency of application for review - Whether "decision" within meaning of Judicial Review Act involved - Decision by Governor-General not capable of review - Challenge against decision by Governor-General indirectly - Status of decision by Governor-General considered - Question one of construction of Act - Collateral attack on an immune decision not allowed. Administrative Decisions (Judicial Review) Act, 1977 ss.3(1l), Acts Interpretation Act, 1901 s.16A Crimes Act, 1914 s.19A MAREE JEANETTE STEINER and RAYMOND LOUIS STEINER v. ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA No. G234 of 1983 Beaumont, J. 14 December, 1983 Sydney. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) No. G234 of 1983 BETWEEN: MAREE JEANETTE STEINER First applicant i RAYMOND LOUIS STEINER Second applicant i ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA Respondent ORDERS Judge making order: Beaumont, J. Date order made: 14 December, 1983. Where made: Sydney. THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants pay the respondent's costs. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) No. G234 of 1983 BETWEEN : MAREE JEANETTE STEINER First applicant le RAYMOND LOUIS STEINER Second applicant AND: ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA Respondent CORAM : Beaumont, J. DATED: 14 December, 1983. REASONS FOR JUDGMENT ' This is an application under the Administrative Decisions (Judicial Review) Act, 1977 ("the Judicial Review Act") seeking to review what is claimed by the applicants to be a "decision" made by the respondent on 11 July, 1983 pursuant to s.19A of the Crimes Act, 1914 that he would not recommend to the Governor-General that the first applicant be granted a licence to be at large. The first applicant, 2. who is the wife of the second applicant, is presently imprisoned in respect of an offence against the Customs Act, 1901, and is serving that sentence of imprisonment at the Norma Parker Centre, a prison of the New South Wales Government, at Parramatta. So far as relevant, s.19A provides: "1OA (2) Where- (a) a person is serving a term of imprisonment for an offence against a law of the Commonwealth ; the Governor-General may, if he thinks it proper so to do in the circumstances, grant to that person, by writing under his hand, a licence to be at large. (3) A licence is sufficient authority for the release from prison of the person to whom it 1s granted. (4) A licence is subject to such conditions, if any, as are specified in the licence. (5) The Governor-General may, at any time before the expiration of the prescribed period, by writing under his hand-- (a) vary or revoke a condition of a licence or impose additional conditions; or 3. (b) revoke a licence. (14) For the purposes of the preceding provisions of this section, 'the Governor-General' means the Governor-General of the Commonwealth, or the person for the time being administering the government of the Commonwealth, acting with the advice of the Attorney-General. " cee The first applicant was sentenced on 1 December, 1982 to five years' imprisonment with a non-parole period set to expire on 30 November, 1984. The applicants say that unless the first applicant is granted a licence for her early release before the expiration of the non-parole period, the applicants and their children will suffer "extraordinary and unjustifiable hardships of emotional, psychological, psychiatric, medical and financial character - far in excess of any proper or intended penalty". In May 1983, the applicants applied to the respondent for the early release of the first applicant. By letter dated 11 July, 1983, the respondent replied to the first applicant: "I refer to your application dated 9 May 1983 in which you apply for release on compassionate grounds, namely, your rehabilitation, the suffering your daughters and husband are experiencing due to your incarceration, and the fact 4. that your husband must return to India to establish, according to Indian law, possession of your house and goods, within a year. While I sympathise wath the problems faced by you and your husband and children hardship is frequently suffered by prisoners' families particularly children, due to the imprisonment of one of the parents and this does not normally constitute an exceptional circumstance justifying early release on licence. I have noted the degree of rehabilitation which you have attained but this would not constitute an exceptional circumstance. I have therefore declined to recommend to His Excellency the Governor-General that he grant you a licence to be at large at this stage." The grounds of the application for review are that the making of the alleged "decision" was an improper exercise of the power conferred upon the respondent by s.19A of the Crimes Act, 1914 in that the respondent failed to take into account relevant considerations and took unto account irrelevant considerations (see Judicial Review Act, s.5(2)(b) and (a)); and that a breach of the rules of natural justice occurred in connection with the making of the decision (see Judicial Review Act, s.5(1)(a)). The applicants claim an order quashing the respondent's "decision" and a declaration that the first applicant's case is one that should be recommended to the Governor-General as proper, in all the circumstances, for the grant of a licence to be at Large. 5. As a preliminary point, the respondent objects to the competency of the application. He says that the Court has no jurisdiction in the matter since no "decision" within the meaning of the Judicial Review Act is involved. Before stating the submissions of the parties on the point, reference should be made to the relevant statutory provisions. By s.3(1) of the Judicial Review Act, "decision" is defined so as to exclude a decision by the Governor~General: "'decision to which this Act applies' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General ..." By s.3(2), a reference to the making of a decision includes a reference to (inter alia): "(a) making, suspending, revoking or refusing to make an order, award or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (g) doing or refusing to do any other act or thing, 6. and a reference to a failure to make a decision shall be construed accordingly." By s.3(3): "Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision." Finally, by s.3(5), a reference in the Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry oF investigation. I turn now to the submissions of the parties on the objection to competency. On behalf of the respondent, it is submitted that the purpose and object of the provision in s.3(1) that a decision by the Governor-General should not be capable of review under the Judicial Review Act would be defeated if a challenge could be made under that Act indirectly by attacking the advice tendered by the Attorney-General in that behalf. Thus, he argues, the Court 7. should give effect to the exclusion of the decisions of the Governor-General from the purview of the Judicial Review Act by holding that the role of the Attorney-General in that behalf is likewise excluded by reason of its incidental character: to hold otherwise, he contends, would rob the exemption of all utility. On the other hand, on behalf of the applicants, it is contended that no special significance should be attached to the circumstance that the advice in question is that of the first Law Officer of the Commonwealth: the applicants argue that any advice tendered by the Attorney-General in the present connection should be treated no differently to any other decision or recommendation made under any other statute. On that basis, they say, the substance of the matter 1s that s.19A of the Crimes Act, 1914 contemplates that the most important decision to be made in that connection is that of the Attorney-General and there is no reason why that decision should not be capable of review under the Judicial Review Act even if the ultimate decision, if any, of the Governor-General is immune from attack: here, of course, the Governor-General 1s in no way involved since, having regard to the negative decision of the respondent, the Governor-General was not called upon to consider the matter. Before attempting to construe the relevant statutory provisions, reference should be made to some background matters. It will be noted that although s.19A(2) 8. refers to a grant by the Governor-General of a licence to be at large, the special definition in sub-s.(14) defines "the Governor-General" as meaning the Governor-General acting with the advice of the Attorney-General. Presumably, this special definition was thought necessary because of the provision in s.16A of the Acts Interpretation Act, 1901 as follows: "Where, in an Act, the Governor-General is referred to, the reference ... shall, unless the contrary intention appears, be read as referring to the Governor-General, or a person so deemed to be included in the reference, acting with the advice of the Executive Council." Of course, this provision does no more than reflect the constitutional convention that, in general, the Governor-General acts in accordance with the advice tendered him by his Ministers and not otherwise. He does this by acting in conformity with the advice given by the Executive Council on consideration of the recommendation by the responsible Minister which may in some cases reflect Government policy as settled by Cabinet or determined by the Minister (see FAI Insurances Ltd. v.Winneke (1982) 41 A.L.R. 1 at p.l6). 9. The principle was discussed in Re Toohey; Ex parte Northern Land Council (1981) 38 A.L.R. 439. Aickin, J. said (at p.512): "It is to be borne in mind that in all the jurisdictions in which this problem has arisen or has been adverted to the system of government has been one in which the relevant powers of the Crown and of a Crown representative are exercised in accordance with the advice of the executive arm of government. Such powers are exercised by the Crown in Council or the Governor or Governor-General in Council, as the case may be, upon and in accordance with the advice of the Ministers from time-to-time comprising the Privy Council or the Executive Council. Acts so done or decisions so made do not depend upon the personal decision of the Queen or the Governor-General or equivalent representative of the Crown, but upon the advice of the Ministers, advice which cannot be disregarded by Her Majesty or her representative, in the making of an Order in Council. Her Majesty or her representative acts or decides in the sense that she acts or decides as she is advised by the Privy Council or an Executive Council: see, eg. per Kitto J in the Communist Party case in the last two sentences of the passage which I have quoted earlier." The advertence by Aickin, J. to Australian Communist Party v. The Commonwealth (1951) 83 C.L.R. 1, was a reference to Kitto, J. who said (at p.280): "Finally, it must be remembered that the satisfaction with which alone the section is concerned 1s the satisfaction 10. of the Governor-General acting with the advice of the Executive Council. So acting he has not to consider for himself either questions of fact or questions of Law, but will be satisfied as he may be advised." Thus, although as a matter of both constitutional law and constitutional convention, the decision is that of the Governor-General, the decision is no more than "the formal legal act which gives effect to the advice tendered to the Crown by the Ministers of the Crown" (see the Communist Party Case, supra, per Dixon, J. at p.179). Notwithstanding that much of the reasoning in the Communist Party Case and earlier decisions to the effect that the actions of the Governor-General cannot be questioned in the courts has now been rejected (see the Northern Land Council Case and the FAI Case, supra), the fundamental principle that, save in exceptional cases, the Governor-General acts upon the advice of his Ministers, survives. Finally, by way of background, the Attorney-General has traditionally been the Minister who administer the Crimes Act, 1914 and this us still the position (see Commonwealth of Australia Gazette, 11 March, 1983 Administrative Arrangements"). It would appear, then, that the policy underlying the definition provision contained in s-19A(14) is that where a question arises whether a prisoner is to be granted a licence to be at large, this is a matter il. which is to lie in the grant of the Governor-General but, in this respect, he is to act upon the advice, not of the Federal Executive Council, but of the Minister administering the Crames Act, 1914. I turn now to consider the construction of the relevant provisions of the Judicial Review Act and the Crimes Act, 1914 against this background. In doing this, I accept that there is no limitation, implied or otherwise, which restricts the class of decision which may be reviewed to decisions which finally determine rights or obligations or which may be said to have an ultimate and operative effect (see Lamb v. Moss, unreported, Full Federal Court, 12 October, 1983). I am further prepared to assume, without deciding the points, first, that the advice of the Attorney-General contemplated by s.19A(14) of the Crimes Act, 1914 could be a "decision" within the meaning of the Judicial Review Act, and secondly, that the declining by the respondent to recommend the early release of the first applicant could constitute a failure to make a "decision" within the meaning of that Act. I also accept that, although it has been held that the common law powers of the Attorney-General to present an ex offic1o indictment, to enter or refuse a nolle prosequi and to grant or refuse a fiat in connection with a relator action, are unexaminable in the courts, the reasoning relied on to arrive at such a conclusion under the general law can have no application to 12. a specific statutory context such as is found in the Judicial Review Act where the legislation confers upon the Court a right of review (cf. Barton v. The Queen (1980) 147 c.L.R. 75 at pp.91-4): the question here is one of construction of the Judicial Review Act, although, no doubt, against the background I have mentioned. The applicants place considerable reliance upon the decision of Davies, J. in Gourgaud v. Lawton (1982) 42 A.L-R. 117. Davies, J. there dealt with an application for review under the Judicial Review Act in a statutory context which involved the Governor-General. In dismissing the application, his Honour said (at p.123): "There is no legislative provision governing an appointment to Position No 4 in the Department of the Parliamentary Library other than s 9(1) of the Public Service Act which provides that all appointments and promotions to offices of the department shall be made by the Governor-General on the joint recommendation of the President and the Speaker. Accordingly, the appointment itself, if it were made, would not be a decision to which the Administrative Decisions (Judicial Review) Act applied. Section 3(1) of that Act excludes from review decisions made by the Governor-General. The appointment of a person to Position No 4 could not be the subject of an order for review under s 5, nor could conduct engaged in for the purpose of making that decision be challenged pursuant to s 6. However, s 3(3) of the Administrative Decisions (Judicial Review) Act provides: 'Where provision is made by 13. an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.' Accordingly, a recommendation made by the Presiding Officers to the Governor-General would be a decision to which the Act applied (emphasis added). Nevertheless, the Presiding Officers have not made a decision to recommend to the Governor-General the appointment of Dr Marker to Position No 4. Indeed, the Presiding Officers have not yet received any request from the Acting Parliamentary Librarian to take that step. Nor have they engaged in, nor indicated that they propose to engage in, conduct for the purpose of making such a recommendation." In the observation which I have emphasised, Davies, J. was speaking obiter in a context which is distinguishable from the present case. In Gourgaud, the Public Service Act, 1922 required a joint recommendation to be made and thus s.3(3) of the Judicial Review Act would pick up any such recommendation, if made. But, as Ellicott, J. remarked in Ross v. Costigan (1982) 41 A.L.R. 319 (at p.332), s.3(3) can only apply where there is provision in an enactment for a specific report or recommendation as a condition precedent to the making of a decision under that enactment or some other. No such report or recommendation is contemplated by s.19A. Nor is there any scope here for the operation of s.3(5) of the Judicial Review Act. Further, the observation 14. made by Davies, J. was, it would seem, not made in response to a submission of the kind now advanced by the respondent: there does not appear to have been any argument in Gourgaud that the exclusion by s.3(1) ef decisions of the Governor-General operated so as to preclude a collateral attack on any recommendation or anterior decision or advice. Although, therefore, the present question would appear to be free of authority precisely in point, a useful analogy may, I think, be found in some of the reasoning employed by Dixon, J. and by Kitto, J. in the Communist Party Case. Dixon, J. was of the view (at p.179) that one purpose of vesting the relevant discretionary power in the Governor-General was to ensure that its exercise was not open to attack and said (ibid.): "It matters not whether the attempt to invalidate an order, proclamation or other executive act 1s made collaterally or directly." (emphasis added) Kitto, J. was of a similar view (at p.280): "... the inference is irresistible that it 1s left to the Executive Council to give such advice as it thinks proper, being assisted but not controlled by the views of the committee. To hold that nevertheless a court may review the legal conceptions which underlie the advice would be to ignore the plain Meaning of the legislation. Moreover, 1t 1s in the nature of things 15. practically, if not totally, impossible for a court to know in a given case either what those legal conceptions were or to what facts they were applied; and I find it impossible to attribute to the legislation any other intention than that the Governor-General may exercise his power with complete immunity from judicial interference." It is true that, in the Northern Land Council Case and in Winneke, the High Court has now held that the decisions of the Governor-General are no longer immune from challenge in the courts, at least where an attack is mounted on the ground of an improper exercise of a statutory power, as in the former case; or on the ground that a denial of natural justice has occurred, as in the latter case. To this extent, some of the reasoning in the Communist Party Case and in some earlier decisions of the High Court has been rejected. In the Northern Land Council Case, the relief sought was by way of certiorari and mandamus. In Winneke, relief was sought under the Administrative Law Act, 1978 (Vic.). No counterpart of the exclusion of decisions of the Governor-General under s.3(1) of the Judicial Review Act arose for consideration in either case. On the other hand, 1n the Communist Party Case, the immunity from suit of the decisions of the Governor-General was upheld and, in the case of Dixon, J. and Kitto, J. at least, it was held that this immunity from suit precluded any collateral attack on the Governor-General's decision by mounting a challenge to the advice tendered to the Governor-General by his 16. Ministers. In other words, the immunity would be lost if a "back-door" challenge to the advice underlying the Governor-~General's decision were to be permitted. In my opinion, this reasoning is in point here. If statutory immunity from review of the Governor-General's decisions be assumed (notwithstanding that the Northern Land Council and Winneke decide that, in other contexts, the assumption cannot be made - absent an exclusion clause such as s.3(1) of the Judicial Review Act), efficacy can only be given to such immunity if Ministerial advice given in that behalf is also immune from review. In my view, given the formal status only of the Governor-General's decision under s.19A of the Crimes Act, 1914, the purpose and object of the exclusion provision in s.3(1) of the Judicial Review Act would be defeated if the Ministerial advice were nonetheless susceptible of review. That advice is the substantive decision in the matter whereas the Governor-—General's act is merely formal. To permit a review of the former when the legislature has indicated that the latter is not to be susceptible of review would be to allow a collateral attack on an immune decision. This amounts to an impermissable attempt to do indirectly that which 1s forbidden to be done directly (see Oxley County District Council v. Macleay River County District Council (1964) 65 S.R. (N.S.W.) 13 at p.28). The objection to competency is upheld. The 17. application must be dismissed for that reason. I should, however, add that, having heard full argument on the merits of the application, the applicants have, in my opinion, failed to establish any impropriety in the exercise of any statutory power. Nor, in my view, have they demonstrated that any denial of natural justice occurred in connection with their request for an early release. The application is dismissed with costs. | carttfy that this and the 16 preceding pages are a true copy of the reasons for judgment herein of Fhe Honourable ; Associate Dated 14 Deamn~ 1447