CATCHWORDS ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Act - Application by prisoner to review determination of the anticipated date of expiry of his minimum term of imprisonment - Calculation of remission entitlement - Whether determination upon that calculation was a decision of an administrative character reviewable under the Administrative Decisions (Judicial Review) Act - Whether determination of the period of minimum imprisonment after allowance of remissions is excluded as being part of ministerial advice to the Governor-General involved in a decision by the Governor-General within s.3(1) of the ADJR Act - Objection to competency overruled. Administrative Decisions (Judicial Review) Act 1977, s.3 Crimes Act 1914, s.19A Commonwealth Prisoners Act 1967, ss.5, 19 Lamb v. Moss (1983) 49 A.L.R. 533 Letts v. Commonwealth of Australia (1985) 62 A.L.R. 517 Mayer v. Minister for Immigration and Ethnic Affairs (1984) 55 A.L.R. 587, and on appeal (1985) 7 F.C.R. 254 Shepherd v. Griffiths (1985) 7 F.C.R 44 Director-General of Social Services v. Hales (1983) 47 A.L.R. 281 Riordan v. Parole Board of the Australian Capital Territory (1981) 34 A.L.R. 322 Steiner v. Attorney-General (1983) 52 A.L.R. 148 Thongchua _v. Attorney-General (1986) 66 A.L.R. 340 Richards v. The Secretary, Attorney-General's Department, Franki J-e, unreported, 11 September 1985 SQUIRES -V- THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA NSW G.221 of 1986 Burchett J. Sydney 8 October 1986 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 221 of 1986 werwrwewvw wv GENERAL DIVISION BETWEEN: ROBERT LEWIS JOSEPH SQUIRES Applicant AND: THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Respondent MINUTE OF ORDERS OF THE COURT Judge Making Orders: Burchett J. Where Made: Sydney Date of Orders: 8 October 1986 THE COURT ORDERS THAT: (1) The objection to competency be overruled. (2) The application be adjourned to a date to be fixed for directions as to its future course and to determine the question of costs of the objection. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 221 of 1986 wee ww GENERAL DIVISION BETWEEN: ROBERT LEWIS JOSEPH SQUIRES Applicant \2ls] THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Respondent REASONS FOR JUDGMENT BURCHETT J. On 20 December 1985 the applicant was convicted in the District Court at Sydney in respect of charges under ss.29A and 29B of the Crimes Act 1914 (Cwlth) and also in respect of other charges under the Crimes Act 1900 (NSW). In respect of one of the charges under the Crimes Act 1914 (Cwlth) he was sentenced to four years imprisonment, and there were a number of lesser sentences, ranging up to three and a half years imprisonment, ordered to be served concurrently with each other and with that sentence. In respect of the sentences under the Crimes Act 1914 (Cwlth) a minimum term of imprisonment was specified, being two and a half years, and in respect of the sentences under the Crimes Act 1900 (NSW) a non-parole period of two years was specified. Immediately after he had been sentenced the applicant wrote a letter dated 21 December 1985 to the Attorney-General of the Commonwealth of Australia, by which (inter alia) he indicated that he believed he was not entitled to the benefit of any remissions in respect of his non-parole period but was seeking information "to clarify the position in this matter". He stated the information might have a bearing on whether or not he appealed. The Secretary of the Attorney-General's Department replied by letter dated 14 January 1986, part of which stated: "Decisions on the release of Federal offenders are made by the Governor-General acting with the advice of the Commonwealth Attorney~General. Federal prisoners are considered automatically by the Attorney-General for possible release at the completion of their non-parole periods with remission. At the time the Attorney-General considers a prisoner's case he has before him prison and parole reports prepared by the State authorities. A Federal offender may apply for release on license before his non-parole period expires but it is only in exceptional circumstances that such release is granted. As you are also a State offender, your release also requires a favourable decision by the N.S.W. Parole Board. With regard to your enquiry concerning remissions, under s.19 of the Commonwealth Prisoners Act 1967 you receive the same remissions on head sentences and non-parole periods as a State offender in New South Wales. At this stage your non-parole period with remission has been calculated by the State authorities as expiring about 9 June 1987. This state may change if you gain or lose remissions." (Emphases added). The applicant replied by a letter which is undated but must have been sent in January. He sought explanation of the 3. date 9 June 1987 and claimed that the correct date would be not later than 27 March 1987. He suggested that in error the official calculation must have allowed him a remission calculated upon only one-quarter of the specified minimum term, instead of one-third, to which he claimed to be entitled. I note however that he acknowledged that he had served a period of twenty-seven weeks imprisonment in respect of a number of convictions upon an earlier occasion when seven sentences each of three weeks had been ordered to be served consecutively, and two further sentences of six weeks each, to be served concurrently with each other, had been made consecutive upon the twenty-one weeks arising out of the seven sentences mentioned. The Secretary of the Attorney-General's Department replied by letter dated 30 January 1986. That letter included the following: "As I advised you in my letter of 14 January 1986, you receive the remissions on your head sentence and non-parole period that are available to State prisoners. The expiry date for your non-parole period has been calculated for us by the State authorities." The applicant, who contends that the proposition asserted in his undated letter should have been accepted as correct, took out in person an "Application to review the decision of the Attorney-General that the applicant... is entitled to a one-fourth remission of a sentence of imprisonment." Although the application is irregular in form, it has not been 4. suggested that it does not sufficiently raise a question of the legality of the alleged decision to deny the applicant a one-third remission of his sentence (see Administrative Decisions (Judicial Review) Act 1977 (Judicial Review Act), s.5(1)(d), (f), and (j)). But a challenge is raised in limine to the maintenance of the application, upon the basis that, it is said, there was no decision to which the Judicial Review Act applies. An Objection to Competency has been filed, and the parties agree that the point should be determined as a preliminary issue, going to my jurisdiction to entertain the application. The respondent submits, first, that there has been no "decision of an administrative character made ... under an enactment" (see s.3(1) of the Judicial Review Act), and secondly, assuming such a decision was made, that 1t falls within the excluding words in s.3(1), "other than a decision by the Governor-General". The first submission is supported by reference to the terms of the correspondence, which is said to indicate that the Attorney-General's Department was merely supplying information in response to an enquiry. The respondent claims there was no decision because the time for decision had not arrived. Further, the expiry date of the minimum term was determined by the provisions of the Act (cf. Sandery v. Commissioner of Police (1986) 65 A.L.R. 181 at 184). However, it seems to me that a decision of an administrative character was made under s.19 of the Commonwealth Prisoners Act 1967. That section provides as follows: "19. The provisions of a law of a State or Territory relating to the reduction or remission of sentences 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." Effect cannot be given to s.19 without an officer of the responsible department taking steps to ascertain the particular circumstances which would be relevant to an application of the State law, and (at least in the case of New South Wales) making a quite complex calculation under Clause 18 of the Probation and Parole Regulation 1984 and Part XV of the Prisons Regulations 1968. It was not submitted that, if there was a decision within the meaning of the Judicial Review Act by an officer of the Attorney~General's Department, the application was inappropriately framed against the Attorney-General. In my opinion, the correspondence gives rise to an inference, which I am prepared to draw, that a decision was made to accept the date Originally calculated by the State authorities as the date at which, subject to any further variation which might occur with the passage of time, the applicant's minimum term of imprisonment would expire. That date was administratively important because, 6. as the letter of 14 January 1986 informed the applicant, he would be considered automatically for possible release at that date. Under s.5 of the Commonwealth Prisoners Act 1967, he could only be released on parole at a time after the expiration of his minimum term of imprisonment. Although under s.19A of the Crimes Act 1914 the Governor-General may, at any time, grant a licence authorising the release from prison of a person serving a term of imprisonment for an offence against a law of the Commonwealth, it was made clear by the letter of 14 January 1986 that such a licence is only exceptionally granted prior to the expiration of a minimum term of imprisonment. The establishment of the anticipated date of expiration of the minimum term is thus of considerable significance as a condition precedent to the possibility of parole, and also as a matter of practical importance in relation to the possible grant of a licence to be at large. In the absence of evidence (which would be peculiarly available to the respondent) concerning the precise procedures followed in this case or generally, I am also prepared to infer that the provisional fixing of such a date probably affects the establishment of an official timetable for the preparation and submission of necessary reports concerning the prisoner's behaviour and circumstances. Is the provisional determination of such a date a "decision of an administrative character made ... under an enactment"? In Lamb v. Moss (1983) 49 A.L.R. 533 the joint judgment of Bowen C.J., Sheppard and Fitzgerald JJ. attributes a 7. wide meaning to the word "decision" in the Judicial Review Act. At 556 their Honours say: "In our opinion, 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. Such a conclusion is, in our opinion, in accordance with plain legislative intention revealed by the words of the Act." A ruling or determination upon some question, though provisional only, which issues in some action, or in a refraining from some action, seems to me to be a decision in the sense expounded in Lamb. v. Moss. It may have "a real practical effect" (see Director-General of Social Services v. Hales (1983) 47 A.L.R. 281 at 306). The discretion of the Court us a sufficient safeguard against the challenging inappropriately of decisions the effect of which is found to be trivial. In Letts v. Commonwealth of Australia (1985) 62 A.L.R. 517 Toohey J. held that where a Registrar of the High Court turned his mind to the question whether process answered the description "frivolous or vexatious" and decided to refer it to a Justice, his assessment of the process and his action reflecting that assessment enabled it to be found that a decision was made; the decision however in that case was not reviewable. In Mayer v. Minister for Immigration and Ethnic Affairs (1984) 55 A.L.R. 587 (affirmed on appeal, (1985) 7 F.C.R. 254) Davies J. held that a determination with respect to refugee status, being a pre-condition of the issue of an entry permit, was a decision of an administrative character, 8. and was also made under an enactment since the Migration Act 1958 recognised and required it. In Shepherd v. Griffiths (1985) 7 F.C.R. 44 at 50 Jenkinson J. held that a Magistrate's decision whether or not to receive evidence proffered by a party would be a decision amenable to review under the Judicial Review Act. In my view, when it was decided that the applicant was not entitled to a remission based on one-third of his minimum term of imprisonment, and a provisional calculation of the date of expiry of that term was made, or accepted as having been properly made by the State authorities, there was a decision under s.19 of the Commonwealth Prisoners Act 1967 which was, subject to the point next to be considered, amenable to review under the Judicial Review Act. I should add that it was not suggested in argument that I should apply the reasoning in Riordan v. Parole Board of the Australian Capital Territory (1981) 34 A.L.R. 322. In the light of Lamb v. Moss, 1n which that case is discussed in some detail, I respectfully think it is now necessary to take a broader view of what is covered by the Judicial Review Act than was taken in Riordan's Case. It remains to consider whether the decision is excluded from review upon the principle of Steiner v. Attorney-General (1983) 52 A.L.R. 148 and Thongchua v. Attorney-General (1986) 66 A.L.R. 340. Those cases establish that the words, in s.3(1) of 9. the Judicial Review Act, "other than a decision by the Governor-General" extend to exclude, not only the formal act of the Governor-General, but also Ministerial advice which constitutionally is involved in the making of a decision by the Governor-General. Steiner's Case and Thongchua'ta Case were decisions under s.19A of the Crimes Act 1914 (Cwlth). I do not think that section is relevantly distinguishable from s.5 of the Commonwealth Prisoners Act 1967. In each case, the decision of the Governor-General is made on the advice of the Attorney-General (see s.19A(14) of the Crimes Act and s.3(2) of the Commonwealth Prisoners Act). But the decision which I have held is involved in the present matter 1s a decision applying the provisions of s.19 of the Commonwealth Prisoners Act to the circumstances of the case. That section does not refer to a decision by the Governor-General. Though the determination is clearly relevant to the making of a decision by the Governor-General under s.19A of the Crimes Act, 1t 1S not essential to the Governor-General's decision that such a determination be made at all. Under s.5 of the Commonwealth Prisoners Act, it is essential to the Governor-—General's decision that a determination be made of the date of expiration of the minimum term of imprisonment, which can only be done by applying the rule laid down in s.19; but that is not to say that every administrative decision ascertaining the date is part of a decision by the Governor-General. The terms of s.5 make 1t clear that the expiration of a minimum term of imprisonment is an objective fact with reference to which the Governor-General's 10. decision may operate, but it is not determined by the Governor-General's decision. Doubtless the calculation of a provisional expiry date will have the practical effect that it will greatly influence the date of the Governor-General's review of the applicant's position (unless perhaps in the meantime he is released on licence); but it was not suggested that the provisional date will form any part of any ministerial advice to the Governor-General. When the Governor-General comes' to consider the matter, he will do so upon advice which may be expected to include the actual date of expiration of the minimum term of imprisonment, as then ascertained, so as to enable the terms of s.5(1) of the Commonwealth Prisoners Act to be complied with. Even in that case, it would seem to me that the calculation of the date for which the terms of s.19 provide would be an independent administrative act not properly characterised as part of ministerial advice to the Governor-General. The views I have expressed on both points argued are, I think, consistent with the unreported judgment, delivered 1] September 1985, of Franki J. in Richards v. The Secretary, Attorney~General's Department, though in that case the problem dealt with in Thongchua's Case and Steiner's Case was not raised. For these reasons I conclude that the applicant is entitled to apply to the Court for an order of review in respect of the decision in question, and I overrule the objection to competency. I adjourn the application to a date to be fixed for ll. directions as to its future course and to determine the question of costs of the objection. I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Geo Gils Associate Dated: 8 October, 1986.