JUDGMENT No. 8. al we IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.192 of 1985 ) GENERAL DIVISION ) CLIVE GEORGE RICHARD Applicant AND THE SECRETARY ATTORNEY GENERAL' s DEPARTMENT Respondent September 1985 Franki J. REASONS FOR JUDGMENT The applicant Clive George Richards was sentenced to 5 years imprisonment to commence on 18 August 1980 for offences under the Crimes Act 1914, On 3 August 1982 he was released from prison under a licence from the Governor General. On 8 August 1983 he was returned to prison as a result of sentences imposed for 2 convictions for offences under a State Act. On 11 August 1983 he was convicted and sentenced in respect of a further offence under a State Act. On 22 November 1983 the Attorney-General advised that in January 1984 he would recommend to the Governor-General that the applicant's licence be revoked a few days before 7 February 1984. On 27 January 1984 the Governor-General revoked the applicant's licence as a result of his conviction for offences under a State 2. Act. On 28 January 1984 the applicant escaped from prison without having been notified that his licence had been revoked by the Governor-General. On 12 June 1985 the respondent notified the applicant by letter inter alia as follows:- "But the fact of your escape from lawful custody has been established. You however lost remission of all the sentence you were serving at the time of your escape." A similar letter was sent on the same day to the applicant's solicitor which stated inter alia, "The Department of Corrective Services, N.S.W., has advised this Department that your client will complete service of his Federal sentence on4 July 1986. The Attorney-General considered his case on 28 May 1985. He has approved that your client be considered for possible release on licence on 7 October 1985. Prison and parole reports have been requested for the review, and your client's cse will be submitted for the Attorney-General's consideration when the reports have been received. The matter before me is an application under the Administrative Decisions (Judicial Review) Act 1977 (the Act). Section 5 of the Act provides, in substance, that a person who is aggrieved by a decision to which the Act applies may apply to the Federal Court for an order of review in respect of the decision on a number of grounds, one of which is that the decision involves an -- error of law, and another that the decision was otherwise contrary r to the law. The respondent filed a notice of objection to competency upon the ground that the application was not made in respect of a decision within the meaning of the Act. Both parties asked me not to hear the objection to competency before hearing the case on the merits and I heard argument on all issues. It appears that the applicant made some application to the New South Wales Court of Criminal Appeal in April 1985 but both parties took the view that nothing then before the Court was of any relevance. The determination of jurisdiction in this case depends upon whether any decision as defined under s.3 of the Act was made. Such a decision must be, inter alia, a decision of an administrative character made, proposed to be made, required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment. So far as is relevant an enactment (which includes apart of an enactment) means an Act of the Commonwealth Parliament or an instrument Cincluding rules,requlations or by-laws) made under such an Act. I was referred to 3.120 of the Commonwealth of Australia Constitution Act which obliges every State to make provision for oo 4. the detention in its prisons of persons convicted of offences against laws against the Commonwealth and for the punishment of such persons, and empowers the Parliament of the Commonwealth to make laws to give effect to this provision. Section 19 of the Commonwealth Prisoners' Act 1967 provides, "The provision of a law of a State or Territory relating to the reduction or remission of sentence or minimum terms of imprisonment apply to a federal offender who is serving a sentence of imprisonment in a prison of that State or Territory in like manner as those provisions apply in relation to a State offender or a Territory offender serving a sentence of imprisonment in that prison." . The substantive issue on the merits is whether or not the applicant lost remission from his Commonwealth sentence as a result of his escape from lawful custody on 27 January 1984. Counsel for the applicant argued the case upon the basis that the relevant decision was that of the respondent which had been conveyed to the applicant by letter of 12 June 1985 and as I understand his argument, that the enactment under which it was made was s.19 of the Commonwealth Prisoners' Act 1967. Although the question of the competency of the court was not argued first, I will consider it first as it goes to jurisdiction. rr H Counsel for the applicant submitted that the letter or letters of 12 June 1985 were insufficient to fall within the word "decision". This was put shortly in several ways. Firstly, the question of the loss of remission was one for the relevant State authority and the letters simply conveyed advice which the Attorney-General's Department had received from the State authorities and there was therefore no decision in any real sense in it and furthermore that it was not made under any enactment that fell within the definitions in s.3 of the Act in the sense that it was made under a State law. It is of some interest to note that the applicant received a letter dated 20 June 1985 from the Chief Administrative -Officer of the New South Wiles Department of Corrective Services, the body of which reads as follows: "I vefer to your recent letters concerning the expiration of your Federal sentence. At the outset, I should emphasise that the expiration of your Federal sentence isa matter solely for the determination of the Federal authorities and that the Department of Corrective Services can only calculate the expiration of your Federal sentence strictly in accordance with the advice provided by the Federal authorities. In accordance with the advice provided by the Federal Attorney-General's Department on 15th April, 1985, the expiration of your Federal sentence is presently calculated as being 4th July, 1986. I shall once again point out that if you have any enquiries, regarding your Federal sentence, they should be directed to the Secretary, Attorney-General's Department, Robert Garran Offices, National Circuit, Barton, A.C.T., 2600." The applicant relied on Evans v. Friemann (1981) 35 ALR 428 (Fox ACJ.) and Higgs v. Federal Commissioner of Taxation (1984) 84 ATC 460 (SWEENEY Jd.). The judgment in Higgs v. Federal Commissioner of Taxation depended on the fact that once an objection to an assessment had been effectively withdrawn there was no occasion for the Commissioner rto make any decision because no objection was on foot. In the present case the applicant is endeavouring to secure his release from prison arguing that this is justified soon upon a proper interpretation of the law. Neither party argued the question of the competencey of the court in any great detail and I do not consider this is an appropriate case to dearl with the e question in detail. I am however of the view that the court has jurisdiction to consider the question raised. The letter represents a conclusion conveyed to a prisoner seeking release. I was not referred to Lamb v. Moss (1983) 49 ALR 533 where a Full Court of this Court dealt exhaustively with the question of what was a decision. At pp 555-557 of the joint judgment it was said that a broad practical approach should be taken to the language of the Act. The question of whether a decision was made "under an enactment" was dealt with at pp 559-564. Although I have some hesitation in reaching a firm view that the Court has jurisdiction, I have reached the conclusion that it has, and I will proceed on that basis. woe 7. I also have in mind the limited argument presented upon the question of jurisdiction, the conclusion that I have reached on the merits, the letter from the New South Wales Department of Corrective Services, the request by both parties that I should hear the objection to competency at the same time as I heard the argument on all issues, the ever present possibility of an appeal and the faith that the liberty of the subject is evidence. In my opinion s.19 of the Commonwealth Prisoners' Act sets up a scheme whereby the relevant sections of the Prisons Act (N.S.W.) and the Prisons' Regulations made under that Act are to apply to federal offenders in a State Prison in respect to the "remission of sentences" that I am considering is one made in pursuance of the scheme. (See generally Parkes Rural Distributors Pty. Ltd. v. Glasson (1983) 48 ALR 601). It was submitted for the applicant that at the time he escaped he was not serving a Commonwealth sentence because he had received no notice of the revocation of the licence which had been made the previous day. My attention was directed to s.19A of the Crimes Act (1914). That section deais with the granting of licences for offenders to be at large, Section 19A (5) empowers the Governor-General to vary, revoke or impose conditions of a licence, or to revoke a licence. Section 19(b) provides that the varying or imposing of a condition does not have effect until notice has been given to the person to whom the licence has been granted. No similar requirement is made in regard to notice with 8. respect to revoking of condition or revoking a licence. Section 19A(7) provides, inter alia, that where a licence is revoked, the person to whom it had been given may be arrested without warrant and s.19A(10) provides, "Where a licence granted to a person who, at the time of the grant was serving a term of imprisonment, is revoked or cancelled, the person may, subject to sub-section (12) be detained in prison to undergo imprisonment for the time of that term that he had not served at the time when he was released from prison in pursuance of the licence". Section 22 of the Commonwealth Prisoners' Act, 1967, specifically perceives the operation of s.19A of the Crimes Act. I am satisfied that the licence was effectively revoked on 27 «January 1984 and had effect on that date without need for notification to the applicant. Consequently I hold that, when the applicant escaped from prison, he was serving a sentence in respect of the Federal offence he had committed. Counsel for the respondent also agreed that the release on licence did not stop the sentence running. He relied on statements about the effect of escape by Brennan J. at p. 304 and Masor, Murphy, Wilson and Dearie JJ at pp.301-302 in Whan v. McConaghy (1984) 58 A.L.J.R. 299 in support of this preposition. This argument seems correct but I prefer to base my findings on the view I have expressed concerning the effect of the revocation of the licence. An alternative submission on behalf of the applicant was that he could not have been convicted of the offence of escaping —- 9. from custody pursuant to 3.47 of the Crimes Act (1914) because he had no knowledge that his licence had been revoked. In my oipinion there are two answers to this argument. The first is that at the time of his escape he was in lawful custody and that he was escaping from prison without authority and the second that a conviction for escaping from lawful custody does not appear to me to be a question I have to consider. It was common ground that the applicant had suffered a penalty for escaping under s. 34 of the Prisons' Act (1952 (N.S.W.). Section 19 of the Commonwealth Prisons' Act does not appear to apply to the offence of escape from prison. Section 47 of the Crimes Act appears to deal with the- penalty for escaping from lawful custody after conviction for any offence against the law of the Commonwealth. Regulation 113(2) of the Prisons Regulations 1968 (N.S...) provides, "A prisoner who escapes from prison shall forfeit all his entitlement to remission that has been granted in accordance with Regulation 110 or 111". It was common ground that the remissions that I am asked to consider fell within one or other of these regulations. I was not referred to any authority upon the relationship of any, between the effect of conviction and penalty for the offence of escaping from lawful custody and the forfeiture of entitlement to remission. As I have said, counsel for the applicant argued that s.19 of the Commonwealth Prisoners' Act (1967) applied. This section clearly embraces questions of remission of sentence and includes the provisions of reg. 113(2) of the Prisons' regulations. I consider reg. 113(2) applies and the 10. applicant on his escape forfeited his entitlement to remission. A last alternative submission for the applicant was based substantially on arguments relating to the question of the rules of natural justice. No oral argument was directed to these issues and I am not prepared to find in favour of the aplplicant upon them. I dismiss the applications. I will hear any submissions on the question of costs.