& \ IN THE FEDERAL COURT OF AUSTRALIA ) 1.7 NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G.209 of 1984 RE EVANS AND ANOR: EX PARTE CLYNE No. G.225 of 1984 BETWEEN: PETER CLYNE Applicant AND: SENATOR THE HON. GARETH ae EVANS, ATTORNEY-GENERAL , FOR THE COMMONWEALTH OF ' AUSTRALIA First Respondent THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA Second Respondent CORRIGENDUM Amendment to the judgement of his Honour Mr Justice Wilcox a of 16 July 1984. pi3 line 5 delete "whereever" substitute "wherever" 10 August 1984 Laurie Walker Associate to Wilcox 7 CATCHWORDS Piuicipal Regist Administrative Law - application for mandamus ~- application under ADIJR Act - applicant committed for trial for an offence under the Banking (Foreign Exchange) Regulations - application made to Attorney-General for "no bili" - application considered by Director of Public Prosecutions and not by Attorney-General - whether Attorney-General is under a personal obligation to consider application - exercise of Court's discretion. Judiciary Act, s.71 RE _EVANS AND ANOR: EX PARTE CLYNE G.209 OF 1984 PETER CLYNE_V_ SENATOR THE HON, GARETH EVANS, ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA AND THE DIRECTOR. OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA G.225 OF 1984 CORAM: DA' PLACE: WILCOX J 16 JULY 1984 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.209 of 1984 ) GENERAL DIVISION ) RE EVANS AND ANOR: EX PARTE CLYNE No. G.225 of 1984 BETWEEN : PETER CLYNE Applicant AND: SENATOR THE HON. GARETH EVANS , ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA First Respondent THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA Second Respondent ORDERS CORAM: WILCOX J DA H 16 JULY 1984 PLACE: SYDNEY IN THE APPLICATION FOR AN ORDER FOR MANDAMUS 1. Application dismissed. 2. Applicant to pay the costs of the respondents. IN THE APPLICATION FOR REVIEW UNDER THE ADMINISTRATIVE DECISIONS (JUDICTAL REVIEW) ACT 1. Application dismissed. 2. Applicant to pay the costs of the respondents, IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.209 of 1984 ) GENERAL DIVISION ) RE EVANS AND ANOR: EX PARTE CLYNE No. G.225 of 1984 BETWEEN: PETER CLYNE Applicant AND: SENATOR THE HON. GARETH EVANS, ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA First Respondent THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA Second Respondent REASONS FOR JUDGEMENT CORAM: WILCOX J DATE: 16 JULY 1984 PLACE: SYDNEY In December, 1982 an information was laid by Mr P J Holding, an officer of the Australian Taxation Office, alleging that the applicant, Mr PL Clyne, had, contrary to Regulation 40 of the Banking (Foreign Exchange) Regulations, made a false statement to an officer of the Reserve Bank. During the course of the resultant committal proceedings an application was made to this Court for review, pursuant to the Administrative Decisions (Judicial Review) Act, 1977, of various decisions made by the magistrate: see Clyne v Scott (1983) 52 ALR 405 and, upon appeal toa Full Court, the unreported decision of Bowen CJ and McGregor and Sheppard JJ of 8 March, 1984. A later, unsuccessful application was made to the Court for review of the decision to commit: see Clyne v_ Scott Sheppard J 28 March, 1984 unreported. On 27 January, 1984, the day after the decision of the magistrate to commit him for trial, the applicant wrote to the Commonwealth Attorney-General informing him that he, the applicant, was preparing submissions that no bill (indictment) should be filed and requesting the deferral of any decision as to the future of the prosecution until those submissions could be lodged. On 17 February, 1984, the Attorney~General responded. acknowledaing the letter and sayina: "IL do not consider every case where a person is committed for trial for an offence aqainst Commonwealth law. Normally the question of whether to file an indictment is determined by a person holding an appointment under s.69 of the Judiciary Act, 1903 and I consider that the normal procedure should be followed in this case. "A decision to file an indictment would not of course preclude a later decision by me not to proceed and I consider on the merits any application that I receive requesting that proceedings on indictment be terminated. The Deputy Crown Solicitor does not act for me in such matters but may advise me in relation to them. Your submissions should be addressed to me". On 13 March, 1984 the applicant forwarded to the Attorney-General a lengthy letter setting out reasons why the Attorney-General should decide to proceed no further in the matter. These reasons included reference to the history of the matter. the facts of the case, the applicant's state of health and various propositions of law. On 2 April, 1984, in a further letter, the applicant supplemented his submissions. On 5 March, 1984 the Director of Public Prosecutions Act 1983 came into effect and Mr Ian Temby, QC, the first Director, took up his appointment. On 5S April, 1984 the Private Secretary of the Attorney-General wrote to the applicant acknowledging his letter of 13 March and saying: "Ags this matter fails within the statutory responsibility of the Director of Public Prosecutions, the Attorney-General has asked me to refer your request to him for his consideration. This has been done. You will hear from the Director in due course". On 10 April, 1984, the Director wrote to Mr Clyne referring to his letters of 13 March and 2 April and proceeding: "T have considered the matters raised in your letters but I have concluded that your trial on the charge against Regulation 42 of the Banking (Foreign Exchange) Regulations should proceed". Mr Clyne responded to this letter on 16 April referring to the letter of the Attorney-General of 17 February and requesting a reference "to the statutory provisions (if any) whereby a decision whether or not a nolle prosequi is to be filed no longer falls within the ambit of decisions that have to be made by the Attorney-General". On 10 May, 1984, the Director replied, inter alia, in these terms: "Since the commencement on 5 March of this year of the Director of Public Prosecutions Act, 1983, I have been responsible for matters relating to the conduct of prosecutions for offences against the law of the Commonwealth. Pursuant to my functions under subsection 6(1) of the Act I am carrying on the prosecution of you for an offence against Requlation 42 of the Banking (Foreign Exchange) Requlations and I considered your request, that no Bill of Indictment be signed charging you with that offence, in accordance with my powers under subsection 9(4) of the Act. "In relation to the question you have asked in the sixth paragraph of your letter, I draw your attention to paragraph 10(1)(d) of the Director of Public Prosecutions Act. That paragraph provides, in effect, that my powers and functions under that Act do not affect the powers of the Attorney-General under section 71 of the Judiciary Act, 1903 to decline to proceed further in the prosecution of a person under commitment upon a charge of an indictable offence against the laws of the Commonwealth. However the Attorney-General has stated to me that he would wish me to determine nolle prosequi and no bill applications that are addressed to him. The Attorney-General further stated that he would consider such applications addressed to him following an earlier refusal by me only in exceptional circumstances and only after consultation with me". At the hearing before me it was admitted by counsel representing the Attorney-General that the attitude attributed to him in the last two sentences of this passage accurately reflects the position of the Attorney. Mr Clyne did not accept this response and on 17 May, 1984 he replied to the Director arguing that the Attorney-General retained a duty, pursuant to s.71 of the Judiciary Act, himself to consider the application that no bill be filed. He referred to proceedings which he had then just commenced in the High Court of Australia seeking mandamus against the Attorney-General. Mr Clyne subsequently decided to prosecute the matter in this Court and on 27 June, 1984 filed a draft order for mandamus. This came on for hearing before me on 4 July, 1984, at which time Mr Clyne sought, and was granted, leave to file in Court an Application for an order for review of the decision of the Attorney-General pursuant to s.5 of the Administrative Decisions (Judicial Review) Act. The two matters were heard together. In support of his claims to mandamus and/or review Mr Clyne contended that the Judiciary Act, 1903 conferred statutory duties upon the Attorney-General. Section 69 of that Act provides for the prosecution of offences against the laws of the Commonwealth in the name of the Attorney-General or of such other person as the Governor-General appoints. Section 71 provides for the discharge of persons committed for trial. It reads: "71. When any person is under commitment upon a charge of an indictable offence against the laws of the Commonwealth, the Attorney-General or such other person as the Governor-General appoints in that behalf may decline to proceed further in the prosecution, and may, if the person is in custody, by warrant under his hand direct the discharge of the person from custody, and he shall be discharged accordingly". The Director of Public Prosecutions Act provides for the appointment by the Governor-General as Director of a legal practitioner of not less than five years standing. The appointment is to be for a fixed period not exceeding seven years (3.18). The functions of the Director include the institution and carrying on of prosecutions on indictment for indictable offences aqainst the laws of the Commonwealth (8.6). Section 7 of the Act provides for consultation between the Director and the Attorney-General and s.8 makes the Director subject to such directions or guidelines as the Attorney-General, after consultation with the Director, gives to him in writing. Provision is made for the publication in the Gazette and the tabling in Parliament of copies of any such directions. Section 9(1) empowers the Director to prosecute by indictment in his official name indictable offences against the laws of the Commonwealth. By sub-section (4) it is provided: "(4) Where - (a) a person is under commitment, or has been indicted, on a charge of an indictable offence against the law of the Commonwealth; and (b) the prosecution for the offence was instituted, has been taken over or is being carried on by the Director, the Director may decline to proceed further in the prosecution and may, if the person is in custody, by warrant siqned by the Director, direct the discharge of the person from custody, and where such a direction is given, the person shall be discharged accordingly". Section 10(1)(a) specifically preserves the power, inter alia, of the Attorney-General to prosecute by indictment in his own name indictable offences against the laws of the Commonwealth. Section 10(1)(d) preserves "the power under section 71 of the Judiciary Act, 1903 of the Attorney-General or of a person appointed by the Governor-General". Mr Temby is not a person appointed by the Governor-General pursuant to either 3.69 or 3.71 of the Judiciary Act. Some propositions emerged as common ground between the parties. First, ss.69 and 71 of the Judiciary Act, insofar as they related to the powers of the Attorney-General, were no more than a statutory expression of two ancient prerogative powers of the Attorney-General, as first law officer of the Crown, vested in him for the proper administration of criminal justice. Secondly, these powers were non-delegable by the Attorney-General - although they may be exercised, pursuant to the authority of the sections themselves, by persons appointed for that purpose by the Governor-General. Thirdly, the enactment of the Director of Public Prosecutions Act did not derogate from the powers of the Attorney-General. By s.10(1)(a) and (d) Parliament had made clear its intention to preserve those powers intact, whilst giving to the Director similar powers to be exercised in his own name and upon his own judgement, subject only to any relevant directions or guidelines under s.8. These propositions appear to me all to be sound. They lead, as Mr Rofe, QC for the Attorney-General and the Director contended and as Mr Clyne, who appeared in person, ultimately conceded, inexorably to the conclusion that the application for mandamus was misconceived. Mandamus is a prerogative writ, a creature of the common law. But there is abundant authority for the principle that, at common law, the Attorney-General is not amenable to the Courts in relation to the way he exercises or fails to exercise his prerogative powers to institute or to discontinue proceedings, whether criminal or civil: see Barton v The Queen (1980) 147 CLR 75 at pp 89-92 and the cases cited therein; R v Comptroller General of Patents (1899) 1 QB 909 especially at p 914 where the statement is made by AL Smith LJ that the power of the Attorney-General to enter a nolle prosequi "is not subject to any control", London County Council v Attorney-General (1902) AC 165 at pp 168-169 and Gouriet v Union of Post Office Workers (1978) AC 435. This position remains even in relation to a prerogative power of the Attorney-General now enshrined in statute law: as in Barton itself. However, Mr Clyne had a second string to his bow. He argued that, whatever the position at common law, he has under the Administrative Decisions (Judicial Review) Act a statutory right to have the court review the conduct of the Attorney in relation to the exercise of his powers and the validity in law of the decision itself. He referred to the obiter dictum of Beaumont J in Steiner v Attorney-General] (1983) 52 ALR 148 at p 153: "IT also accept that, although it has been held that the common law powers of the Attorney-General to present an ex officio indictment, to enter or refuse a nolle procequi 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 a specific statutory context such as is found in the Judicial Review Act where the legislation confers upon the court a right of review". 10, Section 5 of the Administrative Decisions (Judicial Review) Act provides for review of a "decision to which this Act applies". That term is defined in s.3 of the Act as meaning "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 or a decision included in any of the classes of decisions set out in Schedule 1". Schedule 1 does not include any reference to s.71, nor any reference to a class of decisions within which a decision under s.71 would fall. It follows that, as Beaumont J pointed out, s.5 empowers the Court to review a decision mad by the Attorney-General under s.71. Whether, in a particular case, it should do so is a discretionary matter. The application of the principles enunciated in Lamb v Moss (1983) 49 ALR 533 and in the various authorities referred to by me in Souter v Webb, 11 July, 1984, would indicate that only in exceptional circumstances would the Court grant review of a s.71 decision to examine the adequacy of the evidence against an applicant for review. In this case there has been no decision by the Attorney-General pursuant to s.71. The complaint of the applicant is that the Attorney has, pursuant to a policy adopted by him in the wake of the establishment of the office of Director 11. of Public Prosecutions, decided not to make a decision on his application for a "no bill". In relation to a failure to make a decision the relevant provision of the Administrative Decisions (Judicial Review) Act is s.7(1) which provides: ""7.(1) Where - (a) a person has a duty to make a decision to which this Act applies; (b) there is no law that prescribes a period within which the person is required to make that decision; and (ec) the person has failed to make that decision, a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision". The requirements of paras (b) and (c) are satisfied in this case but the question arises whether, as required by para (a), there is cast upon the Attorney-General "a duty to make a decision to which this Act applies", ie a duty under s.71. In that context it is important to note the comment made in Barton by Gibbs ACJ and Mason J at p 94 relating to s.5 of the Australian Courts Act, 1828, the New South Wales equivalent of 8.69 of the Judiciary Act: 12. "The provision made by s.5 is very different from an ordinary administrative discretion conferred by statute. The section isa self-contained provision the scope of which is unaffected by other provisions in the statute. It imposes no duty on the Attorney-General to consider whether a prosecution shall be instituted. All that the relevant part of the section does is to indicate the mode in which a criminal prosecution shall be instituted, ie by information in the name of the Attorney-General or other officer duly appointed for the purpose. The provision does not limit or restrict the Attorney-General in any way in the consideration which he may give to a particular case". The same comment, no doubt, may be made in relation to s.69 of the Judiciary Act. I believe that 1t is equally true to say that s.71 imposes no dutv on the Attorney-General. The section, in terms, confers a power to decline to proceed further in a prosecution allied with a power to direct a discharge from custody. There is nothing in the language to cast upon the Attorney-General any obligation to consider whether to decline to proceed further in a particular case. Moreover, the implication of such a duty is made more difficult by the fact that the section applies not only to the Attorney-General but aliso to other persons appointed by the Governor-General in that behalf. There may be numerous appointees. It is inherent in Mr Clyne''s argument that there is cast upon each of such appointees an obligation, on demand of a person under commmitment for trial, to consider for himself the merits of a decision to decline to proceed further in the prosecution. The person committed for 13. trial would be entitled to "shop around" amongst such persons until he found one of them prepared to decline to proceed further or until all had refused to exercise that power, Mr Clyne argued that there exists a general principle of law that whereever there is a power there is a correlative duty to consider the exercise of that power in the particular case. The only authority cited by him for that very broad submission was R_ v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited (1949) 78 CLR 389 in which the High Court granted mandamus to require the Commonwealth Court of Conciliation and Arbitration to hear and determine an application under s.25 of its Act for an award. The relevant legislation expressly required the Court to exercise jurisdiction to determine an application under s.25. The Court did add that, apart from that imperative requirement, 3.25 created a jurisdiction in the Court "and where such a jurisdiction is created for the public benefit or for the purpose of conferring rights or benefits upon persons, the Court upon an application properly made is under a duty to exercise such jurisdiction and is not at liberty to refuse to deal with the matter" but even taking into account that comment the decision falls short of being authority for Mr Clyne's general proposition. There 1s, in s.71, no "jurisdiction" for the public benefit or for the purpose of conferring rights or benefits upon persons but merely a power to be exercised as and when appropriate in the administration of the criminal law. 14. In my view s.71 imposes no duty to make a decision; consequently s.7 of the Administrative Decisions (Judicial Review) Act is inapplicable. This basis of relief must, therefore. also fail: The grant of relief by way of mandamus and by way of review under the Administrative Decisions (Judicial Review) Act is, in each case, discretionary. Even if, contrary to my view, it was open to the Court to grant relief in this case I would, in the exercise of that discretion, have declined so to do. This is not a case where the applicant has been deprived of the opportunity of having his submissions for a "no bill" considered on their merits by a person able to give effect to those submissions. The Director of Public Prosecutions has considered the submissions and has made a decision. No complaint is made of that decision. Mr Clyne's case is that the Attorney-General, the responsible Minister, should himself consider the submissions and the papers in the case and form his own opinion. He asserts that the case arises out of long standing conflict between the Australian Taxation Office and himself and says that in thosecircumstances 1t is desirable for a Minister to address himself to the question whether the prosecution should proceed. I should have thought that it was arguable that, in circumstances such as those asserted, it was preferable for the ultimate decision to be taken by an independent, statutory 15. officer rather than by a Minister of the Government with whom Mr Clyne has been in conflict. However successful an Attorney-General may be in putting from his mind past conflicts between an applicant for a "no bill" and a branch of his Government, a decision to proceed with the prosecution may erroneously be thought to be related to that conflict. However that may be, the fact is that Parliament has chosen to create the office of Director of Public Prosecutions with the purpose of securing the appointment of an experienced legal practitioner who is to have charge, subject only to published directions and guidelines, of Commonwealth prosecutions. Parliament has given to the Director the power to determine for himself whether an indictment shall be filed and whether a prosecution shall be discontinued. The evident intention was to divorce the Government, and the Attorney-General in particular, from day to day decision making in those areas. The purpose of the Government, in that respect, was spelt out in the Second Reading speech of the Attorney-General on the Director of Public Prosecutions Bill (Senate Debates, 10 November, 1983 p 2496): "The Attorney-General, as First Law Officer, has always borne the ultimate responsibility for prosecution decisions and the legislation enacted in England" (to establish a Director of Public Prosecutions)"did not alter this position. This, in my view, is as it should be and, by clause 11 of the present Bill, the 16. Director, in the performance of his functions, is made subject to directions and guidelines by the Attorney-General. These must however be published. Day to day prosecution decisions will ordinarily be made by the Director or his officials. It will indeed be very unusual for the Attorney-General to give a direction in a particular case. The possibility must however be provided for so that the Attorney-General may discharge his ultimate responsibility to Parliament and to the people for the conduct of the prosecution process". For the Court to exercise its diacretion so as to compel the Attorney-General to consider on its merits a "no bili" application already considered by the Director of Public Prosecutions would be to frustrate the obvious intent of the Director of Public Prosecutions Act. The Director of Public Prosecutions is joined as a respondent to each application but only in order to enable the Court to make against him any orders necessary to postpone the commencement of a trial until the decision of the Court or until such further time as may be necessary to give effect to any order Nade by the Court in favour of the applicant and compelling action by the Attorney-General. Mr Clyne conceded that, if the claim for principal relief - against the Attorney-General - were to fail, there would be no occasion for the making of any order against the Director. wv. 17. Both the application for an order nisi for mandamus and the application for review under the Administrative Decisions (Judicial Review) Act should be dismissed. The applicant should pay the costs of the respondents. I certify that this and the preceding Civen Ci) pages are a true copy of the Reasons for Judgement herein of his Honour, Mr Justice Wilcox. Dated: (6 a [ey Associate Kasei Wig ltr