ATCHWORDS ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Act 1977 - application by prisoner for grant of licence to be at large - Governor-General "acting with the advice of the Attorney-General" empowered to grant licence - refusal by Attorney-General to recommend grant of licence - application by prisoner for reasons for refusal - Special Case stated - whether decision a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies. Crimes Act 1914 (Cth) s.19A Administrative Decisions (Judicial Review) Act 1977 ss.3, 13 Steiner v. Attorney-General (1983) 52 A.L.R. 148 approved Gourgaud v. Lawton (1982) 42 A.L.R. 117 dist. RCNGTHONG THONGCHUA v. ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA No. G382 of 1985 Coram: Fox, Neaves & Burchett Jd. Sydney 27 May 1986 OPT Loe tt mors IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON No.G382 of 1985 wee ew SPECIAL CASE STATED TO THE FULL COURT OF THE FEDERAL COURT BY HIS HONOUR MR.JUSTICE BURCHETT BETWEEN : KRONGTHONG THONGCHUA Applicant AND: ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALTA Respondent MINUTE OF ORDER JUDGES MAKING ORDER : Fox, Neaves & Burchett JJ. DATE OF ORDER: 27 May 1986 WHERE MADE: Sydney Ll. In answer to question three of the Special Case, the Note: Court finds that the applicant was not entitled to make a request for the Statement of Reasons referred to in the Special Case. The Court finds it unnecessary to answer questions one and two of the Special Case. The Court orders that the costs of the Special Case be costs in the application before Mr.Justice Burchett. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. tenes sere FL aT oa, OTT ye a " e IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G382 of 1985 GENERAL DIVISTON SPECIAL CASE STATED TO THE FULL COURT OF THE FEDERAL COURT BY HIS HONOUR MR. JUSTICE BURCHETT BETWEEN : KRONGTHONG THONGCHUA Applicant AND: ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA Respondent CORAM: FOX, NEAVES AND BURCHETT JJ. DATE: 27 MAY 1986 REASONS FOR JUDGMENT FOX J. The facts in this matter, which comes before us by way of a special case, can be stated shortly. The applicant is a prisoner serving a term of imprisonment for an offence against a law of the Commonwealth. In the ordinary course of events she G will remain in prison until July 1987. By application dated 22 April 1985, which was forwarded to the Attorney-General of the SST TT Te. SIE Se ees " eerste —- serra ee Seiad ' 5 — oy rt ere Commonwealth, she sought release on licence. By letter dated 16 July 1985 she was notified that the Attorney-General had considered her conditional release and had declined to recommend that she be granted a licence at that stage. By letter dated 9 August 1985, her solicitors, within the time provided, requested the Attorney-General to furnish a Statement under s.13 of the Administrative Decisions (Judicial Review) Act, 1977 ("the Judicial Review Act"). By letters dated 16 August 1985 and 19 November 1985 the applicant was notified that she was not entitled to a Statement under s.13. Questions submitted to the Court are as follows: "(1)} Whether a decision of the Attorney-General of the Commonwealth of Australia to decline to recommend to the Governor-General of the Commonwealth of Australia to release on licence a person serving a4 term of imprisonment for an offence against a law of the Commonwealth is a decision to which the Administrative Decisions (Judicial Review) Act, 1977 applies. (2) If the answer to question (1) is "yes", whether such decision is one to which Section 13 of the Administrative Decisions (Judicial Review) Act, 1977 applies. (3) Whether upon the facts stated the Applicant was, or was not, entitled to make the request referred to in this Special Case." The legislation in question is s.19A of the Crimes Act 1914 (Cth). The more relevant parts of that section are sub-sections 2 and 14 which are as follows: ""(2) Where — wens Le wee pee rene "N woeys poee peisee ss eegee mes ene ' (a) a person is serving a term of imprisonment for an . offence against a law of the Commonwealth; or (b) a person is being detained in prison by virtue of a direction given under section 17, 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. (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." It seems to me plainly to be the intention and purpose of the section that a prisoner is entitled to apply to he released on licence. The person who can make a favourable recommendation is nominated as being the Attorney-General. With this indication, it seems to me that he is the person who has a duty to consider the application to be relased on licence. If he is in favour of the application, he must have it forwarded to the Governor-General with an endorsement to the effect that it is proper in the circumstances to grant to the particular applicant a licence to be at large. The question has been raised whether the Governor-General should also be the person to refuse the application, in which event the Attorney-General would be acting in an advisory capacity and would note the papers in accordance with his view. There is not, however, any provision dealing with Wasa - RE STS ada' ave i: t% * j it he a leat Peog *the refusal by the Governor-General of an application for a licence, nor with any notification concerning refusal. If the procedure mentioned is the correct one the Attorney-General could be regarded as not making a decision within the meaning of the Judicial Review Act (but see s.3(3) of the Judicial Review Act). The matter qoes further however, because the definition of "decision to which this Act applies" (s.3(1) contains an exclusion in the following terms "other than a decision bv the Governor-General..."). If therefore the view is correct the Judicial Review Act would not apply. On the other hand, a decision of the Attorney-General that he should not recommend to the Governor-General the arant of a licence may be final and complete in the sense that the papers do not go to the Governor-General and the decision is that of the Attorney-General. We understand that this is what happens in practice, namely that the Attorney-General only advises the Governor-General in relation to cases where it is proper that a licence be granted. I think this is the better view of the section and of the way it is intended to operate. The matter gets to the Attorney-General because, as already mentioned, he is the person nominated to decide on whether the grant of the licence should be recommended. That is his essential role; he has to decide whether the application should be recommended or not. If not, there is no notation of advice to the Governor-General. It can be arqued that a decision in that situation would be more akin to a failure to recommend. but this mould still be a decision within the meaning of the Judicial Review Act (see s.3(2) o£ the Judicial Review Act). One thing that does not seem possible to me is to reqard the refusal or adverse decision by the Attorney-General as constructively a decision of the Governor-General. It seems to me that the Attorney-General's decision that there not be favourable advice given to the Governor-General is reviewable under the Judicial Review Act. It is a decision to which s.13 of that Act applies. Such a decision is one made by the Attornev-General in the course of carrying out his duties under s.19A. He has to consider whether a favourable recommendation is to be sent to the Governor-General, but in my view this involves a power to refuse the application. The section cannot be construed as one dealing simply with applications which are from the beginning in a position that they will receive favourable consideration and treatment. As I. have already said. it seems to me that the Attorney-General has a duty arising under the section to consider whether a recommendation should be made or not, and if he decides that there should be no recommendation, he is in effect deciding to refuse the application and it is my view that the dissatisfied applicant can then invoke s.13 of the Judicial Review Act. It is not necessary at this stage to say anything about the application in this case of the qrounds of review in s.5 of wre, _the Act, except that no order should be sought which would impinge upon the advice which, on a re-consideration of the matter (if that happens), he might give to the Governor-General (Steiner v. Attorney-General for Commonwealth of Australia (1983) 52 A.L.R. 148). In my view the questions asked should be answered by saying that the applicant was entitled to make an application under s.13 of the Act. i I certify that this and the five (s) preceding pages are a true copy of the Reasons for Judgment here1n of his Honour J Mx. Justice fox Associate Dated: & 7 May 148 anit wnecentene att pene! Nathan te Fete ene ot Nose Gee ae ee ee at oe toe ae" = ny tt eens IN_THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 382 of 1985 GENERAL DIVISION s BETWEEN : KRONGTHONG THONGCHUA F Applicant i. AND: THE ATTORNEY-GENERAL OF THE i COMMONWEALTH OF AUSTRALIA 2 ° Respondent be CORAM: Fox, Neaves and Burchett Jv. . | DATE: 27 May 1986 : REASONS FOR JUDGMENT Neaves and Burchett Jd. . Krongthong Thongchua ("the applicant") is serving a term of imprisonment to which she was sentenced on 9 December 1983 for an offence against the Customs Act 1901, a law of the | Commonwealth. On or about 22 April 1985 the applicant sought the grant, pursuant to the power conferred by s.19A of the Crimes Act 1914 (Cth), of a licence to be at large. i Sub-section (2) of that section, so far as material, provides: fs "(2) Where - t. . (a) a person is serving a term of . | imprisonment for an offence against a ' ! . law of the Commonwealth; or ts i\ | i I (b) see 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." Sub-section (14) provides: "For the purposes of the preceding provisions of s.19A, '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". A licence so granted is sufficient authority for the release from prison of the person to whom itis granted (sub-s.19A(3)). It is subject to such conditions, if any, as are specified in the licence (sub-s.19A(4)). The Governor-General may vary or revoke a condition of a licence, impose additional conditions, or revoke a licence (sub-s.19A(5)). The section provides also for the enforcement of any conditions attached to such a lLicerice and for the arrest of a person on breach of the conditions, a power which, as the Attorney-General said in his second reading speech upon the Crimes Bill 1960 which proposed the enactment of s.19A, was at that time "embarrassingly lacking". By letter dated 16 July 1985, the applicant was notified that the Attorney-General had on 3 July 1985 considered her conditional release and had declined to Lemna ge moment ert SR EE RS, Geen ne ee re gee "a os, eg TTS toe Pare) ose RTT ne noe eames open os ae Te ates OM aa, poem nee eee recommend to the Governor-General that she be granted a licence to be at large at that stage. By letter dated 9 August 1985, the applicant by her solicitors requested the Attorney-General, pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"), to furnish a statement of reasons for his decision as notified in the letter dated 16 July 1985. The applicant was subsequently notified that the Attorney-General was of the opinion that she was not entitled to make that request (see sub-s.13(3)). The applicant then. made application to the Court pursuant to sub-s.13(4A) of the Judicial Review Act for an order declaring that she was so entitled. The question whether the applicant is a person who was entitled to make the request under sub-s.13(1) of the Judicial Review Act depends upon an affirmative answer being given to the question whether the Attorney-General on 3 July 1985 made "a decision to which this section applies" (see sub-s.13(1)). The expression "a decision to which this section applies" is defined in sub-s.13(11). That sub-section provides: "In this section, 'decision to which this section applies' means a decision that is a decision to which this Act applies, but does not include - (a) a decision in relation to which section 28 of the Administrative Appeals Tribunal Act 1975 applies; (b) a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which one ae RN ee Se eee Ba new se w those findings were based aand_ the. reasons for the decision; or (c) a decision included in any of the classes of decision set out in Schedule 2." Paragraphs (a) and (b) clearly have no application in the circumstances of the present case and it was not argued that any provision in Schedule 2 to the Act was applicable. The question then is whether what the Attorney-General did on 3 duly 1985 amounted to a decision to which the Act applies. The expression "decision to which this Act applies" is defined in sub-s.3(1) of the Judicial Review Act to mean: "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." (Emphasis added) There is no provision in Schedule 1 which has any application in this case. . In Steiner v. Attorney-General (Cth) (1983) 52 A.L.R. 148 Beaumont J. dismissed as incompetent an application under 3.5 of the Judicial Review Act for an order of review in a case similar to the present where the Attorney-General had declined G to recommend to the Governor-General that the applicant, Steiner, be granted a licence to be at large. His Honour held foe eee es ene - yore > T yet ins . that efficacy could only be given to the provision of the Judicial Review Act granting statutory immunity from review of a decision by the Governor-General if ministerial advice given in that behalf was also immune from review. In the light of that decision, the facts in the present case being indistinguishable from the facts in that case, Burchett J., pursuant to sub-s.25(6) of the Federal Court Act 1976 (Cth) and Order 50 of the Federal Court Rules stated a special case for the consideration of a Full Court. The power- conferred by sub-s.19A(1) of the Crimes Act 1914 (Cth) to grant a licence to be at large to a person who is serving a term of imprisonment for an offence against a law of the Commonwealth is a power which may be exercised only by the Governor-General acting with the advice of the Attorney-General. In accordance with constitutional convention, and having regard to the terms of 3.19A, the advice of the Attorney-General that a licence, conditional or unconditional, be granted to a person serving a term of imprisonment for such an offence may not be disregarded by the Governor-General who must act upon, and in accordance with, that advice. The act of the Governor-General is the formal legal act which gives effect to the advice so tendered. In the absence of advice of the Attorney~General that a licence, either conditional or unconditional, be granted, the occasion for the exercise of the power does not arise and no formal legal act by the Governor-General is required. col caer wee er died ity ea yree 7 rT amma Bair aber e-st, ame nx on It 1s against the background of powers of this kind, exercisable upon ministerial advice, that the exclusion from the decisions which may be the subject of review under the Judicial Review Act of decisions by the Governor-General is to be construed. Is it correct to ascribe to the legislature an intention that only the formal act of the Governor-General giving legal effect to the advice he has received is to be immune from review? To take that view, assuming that the giving of ministerial advice is to be treated as the making of a decision of an administrative character under an enactment, would be to enable the review of the decision made by the Governor-General under the guise of reviewing the ministerial advice. We agree with the decision of Beaumont J. that so to construe the legislative provision would be to defeat its obvious purpose. Counsel for the applicant sought to construe the legislative provision in such a way that it would grant immunity to adecision by the Governor-General based upon advice that a licence to be at large should be granted but would grant no immunity where the Attorney-General had decided that the circumstances of the case were such that he could not so. advise. To give effect to this view of the legislation would, in our view, be to prefer the form to the substance. Given that the effect of the legislation is as we have outlined above, the question whether it 13 open to the Court to review a ee Pee nee oe greeny eatery: seas . - what the Attorney-General does in carrying out the task assigned to him by s.19A cannot depend upon whether the advice is favourable or unfavourable to the grant of a licence to be at large or whether it proposes the grant of a licence but subject to conditions which the prisoner may or may not consider to be unduly onerous. In our opinion the immunity from review under the Judicial Review Act which is expressed in terms of granting immunity to decisions by the Governor-General extends to the action of the Attorney-General in considering whether he is prepared, in the circumstances of the particular case, to advise the grant of a licence. The applicant sought to gain assistance from the provisions of sub-3s.3(3) of the Judicial Review Act which provides: "(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." In our opinion, there is no scope for the operation of that provision in the present case as there is nothing in the only relevant enactment, namely the Crimes Act 1914 (Cth), which provides for the making of a report or recommendation Apter esis er tte ce 3 i et ee eS 47 ial arr wae nae opener err ie pre eee ayo 7 . a AR IO TT ate. oe. a bom before a decision is made in the exercise of the power conferred by sub-s.19A(2). The statutory provision under consideration in Gourgaud v. Lawton (1982) 42 A.L.R. 117 is clearly distinguishable. Sub-section 3(3) of the Judicial Review Act stands in sharp contrast to the terms of s.19A of the Crimes Act 1914 (Cth). Sub-section 3(3) is concerned with a recommendation which precedes a decision; in s.19A, the advice of the Attorney-General is an essential ingredient of the decision itself. The Governor-General, when exercising such a power, does not act personally but upon ministerial advice, and the function of sub-s.19A(14) is not to differentiate a decision under the section from other decisions of the Governor-General, but to designate the source of the relevant ministerial advice. Section 19A, in keeping with wide constitutional usage, says "the Governor-General may, if he thinks it proper so to do in the circumstances, grant ....", and the advice of the Attorney-General is only involved as a part, inueed a necessary part, of the ordinary process of the making of such a decision by the Governor-General. It is therefore within a fair understanding of what is comprehended by the reference in the Judicial Review Act to "a decision by the Governor-General", and is plainly not within sub-s.3(3) of that Act. Nor does the ministerial advice lose its essential constitutional character because it happens to be in the negative, thus precluding the possibility of the grant of a licence. PTT SGPLA 42 Cr aoe re aoe Tt should be declared that the applicant was entitled to make the request for a statement of reasons under ? sub-s.13(1) of the Judicial Review Act referred to in the special case. Question (3) should be answered accordingly. It ~ is unnecessary to answer questions (1) and (2). 7 I certify that this and . the preceding 8 pages are fe a true copy of the Reasons ' for Judgment herein of their Honours Mr Justice Neaves and Mr Justice ws Burchs MY ' Arba Associate ~ Dated: <7 May 198 ere = eo. - ? s ; EEE LED TD TES