FEDERAL COURT OF AUSTRALIA Hasim v Attorney-General of the Commonwealth [2013] FCA 1433 Citation: Hasim v Attorney-General of the Commonwealth [2013] FCA 1433 Parties: HASIM, ASIS TONG and ANDI RIDWAN v ATTORNEY-GENERAL OF THE COMMONWEALTH File number(s): QUD 153 of 2013 Judge(s): GREENWOOD J Date of judgment: 23 December 2013 Catchwords: CRIMINAL LAW – consideration of an application for an order for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of a decision of the delegate of the Attorney-General for the Commonwealth in refusing an application for early release under s 19AP of the Crimes Act 1914 (Cth) HIGH COURT AND FEDERAL COURT – consideration of the principles to be applied in relation to the discretion conferred under s 19AP(1) in conjunction with s 19AP(4) of the Crimes Act 1914 (Cth) Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(e), 5(1)(f), 5(1)(g), 5(2)(a), 5(2)(b) Crimes Act 1914 (Cth), ss 19AP(1), (2), (3), (4), (7) and (8) Migration Act 1958 (Cth), ss 233A, 233C(1), (2), (3) Director of Public Prosecutions Act 1983 (Cth), s 8(1) Direction issued by the Attorney-General for the Commonwealth dated 27 August 2012 made under s 8 of the Director of Public Prosecutions Act 1983 (Cth) Cases cited: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 - cited Minister for Immigration and Citizenship v Li and Another (2013) 297 ALR 225 – cited and quoted Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 - cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 – cited and quoted Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 – cited and quoted Bromley London Borough Council v Greater London Council [1983] 1 AC 768 – cited and quoted Re W (an Infant) [1971] AC 682 – cited and quoted Brehoi v Attorney-General for the Commonwealth [2000] FCA 1747 - cited Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 - cited Reg v Kelly (Edward) (C.A.) [2000] 1 Q.B. 198 – cited and quoted Nikac v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65 – cited and quoted MLC Investments Ltd v Commissioner of Taxation [2003] FCA 1487 – cited Hatcher v Cohn (2004) 139 FCR 425 – cited and quoted Haoucher v Minister of Immigration and Ethnic Affairs (1990) 169 CLR 648 Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 - cited Ho v Professional Services Review Committee No 295 [2007] FCA 388 – cited and quoted Cornwell v Attorney-General of the Commonwealth of Australia (1993) 45 FCR 492 – cited and quoted Baker v The Queen (2004) 223 CLR 513 - cited House v The King (1936) 55 CLR 499 – cited Date of hearing: 6 June 2013 Date of last submissions: 6 June 2013 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 104 Counsel for the Applicants: Mr John Allen, Ms Laura Reece Solicitor for the Applicants: Legal Aid Queensland Counsel for the Respondent: Mr David de Jersey Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 153 of 2013 BETWEEN: HASIM First Applicant ASIS TONG Second Applicant ANDI RIDWAN Third Applicant AND: ATTORNEY-GENERAL OF THE COMMONWEALTH Respondent JUDGE: GREENWOOD J DATE OF ORDER: 23 DECEMBER 2013 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicants pay the costs of the respondent of and incidental to the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 153 of 2013 BETWEEN: HASIM First Applicant ASIS TONG Second Applicant ANDI RIDWAN Third Applicant AND: ATTORNEY-GENERAL OF THE COMMONWEALTH Respondent JUDGE: GREENWOOD J DATE: 23 DECEMBER 2013 PLACE: BRISBANE REASONS FOR JUDGMENT 1 These proceedings are concerned with an application for an extension of time under Rule 31.02 of the Federal Court Rules 2011 to file an application for an order for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act"). 2 A consideration of the application for an extension of time requires the Court to form a view about the arguable merits of the underlying application. The Court has been urged by the parties to address the merits of the proposed underlying ADJR application now in dealing with the matter. 3 The relevant circumstances are these. 4 The applicants are Indonesian nationals. Mr David Svoboda, on behalf of Legal Aid Queensland, acts on behalf of the three applicants in this proceeding. Mr Svoboda has sworn an affidavit in which he says that he acts on behalf of 22 Indonesian nationals who are serving or who have served terms of imprisonment for offences under the Migration Act 1958 (Cth) (the "Migration Act") for offences generally described in the Act as "people smuggling" offences. This proceeding, however, is concerned with three particular applicants. 5 Item 8 of the Anti-People Smuggling and Other Measures Act 2010 (No. 50, 2010) had the effect of repealing ss 232A to 233C of the Migration Act and substituting new provisions. At the date of the relevant events concerning each of the applicants, s 233A provided for an offence of "people smuggling". A person commits such an offence if that person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person in circumstances where that other person is a non-citizen and the second person had, or has, no lawful right to come to Australia. The penalty for such an offence is a penalty of imprisonment for 10 years or 1,000 penalty units or both. Section 233A(3) provides that for the purposes of the Migration Act, an offence against s 233A is to be known as the offence of "people smuggling". 6 However, at the date of the relevant events concerning each of the applicants, s 233C of the Act provided for an offence described as: "Aggravated offence of people smuggling (at least 5 people)". The provision, relevantly, is in these terms: (1) A person (the first person) commits an offence if: (a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons); and (b) at least 5 of the other persons are non-citizens; and (c) the persons referred to in paragraph (b) who are non-citizens had, or have, no lawful right to come to Australia. Penalty: Imprisonment for 20 years or 2,000 penalty units, or both. Note: Sections 236A and 236B limited conviction and sentencing options for offences against this section. (2) Absolute liability applies to paragraph (1)(b). Note: For absolute liability, see section 6.2 of the Criminal Code. (3) If, on a trial for an offence against subsection (1), the trier of fact: (a) is not satisfied that the defendant is guilty of that offence; and (b) is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling; the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt. 7 On 11 January 2012, the first applicant, Mr Hasim, entered a plea of guilty in the District Court of Queensland at Brisbane to a charge of an aggravated offence of people smuggling under s 233C(1) of the Migration Act. The offence occurred between 17 August 2010 and 22 August 2010. Mr Hasim was convicted of the offence. He was ordered to be imprisoned for a period of five years. 8 At the date of Mr Hasim's conviction, s 236B of the Migration Act made provision for minimum penalties should a person be convicted of an offence against s 233C. Section 236B(3)(c) provides that the Court must impose a sentence of imprisonment of at least five years in the case of an offence against s 233C. Section 236B(4)(b) provides that the Court must set a non-parole period of at least three years in the case of an offence against s 233C. In sentencing Mr Hasim, the District Court recognised that Mr Hasim had been in pre-sentence custody for 507 days between 22 August 2010 and 11 January 2012. The Court declared that the whole of the term of pre-sentence custody be imprisonment already served under the sentence of five years. 9 On 2 March 2012, the second applicant, Asis Tong, entered a please of guilty in the District Court at Brisbane to a charge of an aggravated offence of people smuggling under s 233C(1) of the Migration Act. The offence occurred between 7 March 2011 and 16 March 2011. Asis Tong was convicted of the offence. He was ordered to be imprisoned for a period of five years. In sentencing Asis Tong, the District Court recognised that he had been in pre-sentence custody for 352 days between 16 March 2011 and 2 March 2012. The Court declared that the whole of the term of pre-sentence custody be imprisonment already served under the sentence of five years. 10 On 23 June 2011, the third applicant, Andi Ridwan, entered a plea of guilty in the District Court of Queensland at Brisbane to a charge of an aggravated offence of people smuggling under s 233C(1) of the Migration Act. The offence occurred between 15 August 2010 and 19 August 2010. Andi Ridwan was convicted of the offence. He was ordered to be imprisoned for a period of five years. In sentencing Andi Ridwan, the District Court recognised that he had been in pre-sentence custody for 309 days between 19 August 2010 and 23 June 2011. The Court declared that the whole of the term of pre-sentence custody be imprisonment already served under the sentence of five years. 11 The non-parole period for Mr Hasim expired on 22 August 2013. The non-parole period for Mr Tong will expire on 15 March 2014 and the non-parole period for Mr Ridwan expired on 18 August 2013. 12 Section 8 of the Director of Public Prosecutions Act 1983 (Cth) (the "DPP Act") provides that in the performance of the Director's functions and in the exercise of the Director's powers, the Director is subject to such directions or guidelines as the Attorney-General, after consultation with the Director, gives or furnishes to the Director by instrument in writing. Those directions or guidelines under s 8(1) relate to a range of things including "the circumstances in which the Director should institute or carry on prosecutions for offences" (s 8(2)(a)). 13 On 27 August 2012, the Attorney-General for the Commonwealth gave the Director a direction under s 8(1) of the DPP Act. The direction, relevantly, was in these terms: 1. The Director must not institute, carry on or continue to carry on a prosecution for an offence against section 233C of the Migration Act 1958 against a person who was a member of the crew on a vessel involved in the bringing or coming, or entry or proposed entry, of unlawful non-citizens to Australia unless the Director is satisfied that: (a) the person has committed a repeat offence or may be convicted of a repeat offence in the same proceedings; or (b) the person's role in the people smuggling venture extended beyond that of a crew member; or (c) a death occurred in relation to the people smuggling venture. 2. This direction does not apply to any proceedings, including appeals, in relation to an offence a person has been sentenced for prior to the date of this direction. 3. To avoid doubt this direction applies to proceedings where a person has been convicted of an offence but not sentenced prior to the date of this direction, or where a person has pleaded guilty but not been sentenced prior to the date of this direction. 4. … 5. In those prosecutions to which paragraph 1 applies, the Director must consider instituting, carrying on or continuing to carry on a prosecution against the person pursuant to section 233A of the Migration Act 1958 in accordance with the Prosecution Policy of the Commonwealth. 6. … 7. In this direction: member of the crew includes the captain or master of a vessel. repeat offence … [original emphasis] 14 It can be seen from the history I have recounted that each applicant was convicted and sentenced for offences against s 233C(1) prior to 27 August 2012 when the policy direction commenced. 15 On 5 December 2012, Mr Svoboda made an application to the Attorney-General of the Commonwealth on behalf of Mr Hasim for early release on licence under s 19AP of the Crimes Act 1914 (Cth) (the "Crimes Act"). Mr Svoboda made an application for early release on licence on behalf of Asis Tong on 17 December 2012 and an application for early release on licence on behalf of Andi Ridwan on 8 January 2013. At the date of those applications and, more particularly, at the date upon which a decision was made in relation to each application, s 19AP of the Crimes Act was, relevantly, in these terms: 19AP Release on licence (1) Where a person is serving a federal sentence (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), the Attorney-General may grant a licence under this subsection for the person to be released from prison. (2) A person who is serving a federal sentence of imprisonment (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), or another person acting on that person's behalf, may apply to the Attorney-General for a licence under this subsection for the first-mentioned person to be released from prison. (3) An application under subsection (2) must: (a) be in writing; and (b) specify the exceptional circumstances relied on to justify the grant of the licence. (4) The Attorney-General must not grant a licence under this section unless he or she is satisfied that exceptional circumstances exist which justify the grant of the licence. 16 Section 19AP(7) provides that the licence is subject to the condition that the offender must, during the licence period, be of good behaviour and not violate any law and is subject to such conditions, if any, as the Attorney-General specifies in the licence. Section 19AP(8) provides, relevantly, that the Attorney-General may vary or revoke a condition of the licence or impose additional conditions. 17 Pursuant to s 19AP, Mr Svoboda made the three applications for early release on licence already mentioned. Those applications were rejected by the delegate of the Attorney-General on 10 January 2013, 4 February 2013 and also 4 February 2013, respectively. 18 In relation to Mr Hasim, the Attorney-General's delegate made these observations in deciding not to grant a licence for early release, in his letter dated 10 January 2013. 19 First, the Explanatory Memorandum to s 19AP states that exceptional circumstances are intended to cover matters that occur "usually post-sentence" that significantly affect an offender's circumstances such as extensive co-operation with law enforcement agencies or the development of a serious medical condition which cannot be adequately treated within the prison system. The delegate notes that in the application, emphasis had been placed upon the Attorney-General's direction of 27 August 2012, Mr Hasim's co-operation with authorities in making a guilty plea at an early stage, comments by the sentencing judge about the undesirability of maximum sentencing provisions and compassionate grounds involving Mr Hasim's personal circumstances said to amount to "exceptional circumstances" justifying Mr Hasim's early release on licence. 20 Second, the delegate observes that he has consulted with the Department of Immigration and Citizenship, the Australian Federal Police and the Commonwealth Director of Public Prosecutions ("DPP") about issues raised by the application. The delegate says that the DPP provided advice that Mr Hasim had pleaded guilty and that for people smuggling crew sentenced under provisions without a mandatory minimum sentence, the primary sentence has ranged from one year and 10 months to three years imprisonment with a minimum term of imprisonment in the range from nine months to one year and 11 months. The delegate notes that the Australian Federal Police and the Department provided no relevant information to the delegate concerning the application. 21 Third, the delegate notes that co-operation with law enforcement authorities may be grounds for early release if that co-operation occurs after the person is sentenced or where the co-operation was not known to the sentencing Court even though it had occurred. The delegate notes that the District Court of Queensland observed in its sentencing remarks that Mr Hasim had pleaded guilty at an early stage and thereby facilitated the administration of justice. The delegate did not regard Mr Hasim's co-operation as an "exceptional circumstance" justifying early release. 22 Fourth, the delegate took the position that under the Australian legal system, offenders are prosecuted under the offence provisions of the relevant legislation in force at the time governing the conduct said to constitute the commission of the offence and, when sentencing offenders, Courts are required to impose penalties applicable to the offence at the time of the commission of the offence. 23 Fifth, the delegate observes that in the case of "people smuggling offenders, like Mr Hasim, the effective penalties applying to this conduct have been decreased as a result of the Attorney-General's direction that such conduct be prosecuted under a different section of the Migration Act 1958 (Cth)". The delegate notes that while individuals, like Mr Hasim, convicted of offences committed between the 2001 commencement of the mandatory minimum penalty regime and the Attorney-General's direction of 27 August 2012 might feel "disadvantaged", those individuals were sentenced according to the applicable regime at the time. This led the delegate to conclude that changes to legislation and the prosecution policy of the Commonwealth were part of the orthodox criminal justice process and in the delegate's view did not constitute "exceptional circumstances that justify early release". 24 Sixth, and finally, the delegate notes that when the Attorney-General issued her direction of 27 August 2012, she made a specific decision that the direction would not have "retrospective effect". The delegate concluded that the direction demonstrates that the Attorney-General had "chosen not to interfere with decisions already made by the courts". 25 The delegate concludes by observing that taking into account all of these factors, a licence to release Mr Hasim would not be granted. 26 So far as Asis Tong is concerned, the delegate's letter of 4 February 2013 setting out the reasons for refusing the grant of a licence to Mr Tong largely reflect the elements of the decision recorded in Mr Anderson's letter. In Mr Tong's case, greater emphasis was placed, on his behalf, on compassionate grounds. Emphasis had been placed upon the contention that Mr Tong was his family's primary provider and his incarceration would impose particular difficulties upon his family. As to that matter, the delegate, Ms Sarah Chidgey, observed that release on licence "on compassionate grounds is only justified in extreme circumstances". The delegate further observed that prisoners' families "inevitably suffer varying degrees of hardship and distress because of the imprisonment of a family member" and the impact of imprisonment upon Mr Tong's family "although undoubtedly marked given Mr Tong was the primary provider for his family, does not warrant early release on compassionate grounds". The remaining parts of Ms Chidgey's letter at paras 7, 8, 9 and 10 follow the path of Mr Anderson's letter. Paragraphs 1 to 5 of Ms Chidgey's letter effectively adopt paragraphs 1 to 5 of Mr Anderson's letter. 27 As to Mr Ridwan, Ms Chidgey's letter of 4 February 2013 is essentially in precisely the same terms as the letter she wrote in respect of Mr Tong. 28 Apart from the compassionate factors, particular emphasis is placed, on behalf of each applicant, upon the change in prosecutorial policy reflected in the Attorney-General's direction of 27 August 2012 as highlighting unfairness or disadvantage the applicants suffer by being treated differently, as to minimum sentences and minimum non-parole period, as compared with the treatment to be afforded to persons engaging in like conduct after the commencement of the direction but before sentencing. The fundament, put simply, of the applications made to the Attorney-General is that the intervention of the direction is a matter that the decision-maker ought to have taken into account in determining whether "exceptional circumstances" subsisted. The proposition is that the delegate, wrongly, in each case took the view that the intervention of the direction and the hardship comparison, said to arise out of the operation of the direction, between the circumstances of the three applicants find themselves in, and like offenders engaging in the same conduct after the change in policy effected by the direction, was not something that could fall within the notion of "exceptional circumstances" and thus the decision-maker in each case put consideration of the consequences of the direction out of his or her mind when considering whether exceptional circumstances arose by reason of the position the applicants found themselves in as compared with others who might engage in the same conduct as that of the applicants on or after 27 August 2012 (or before that date but before sentencing by that date). 29 However, the particular expression of the criticism of each decision is measured in terms of the way in which the applicants would seek to frame their underlying ADJR application. 30 In the proposed application for an order for review under the ADJR Act, the following grounds are sought to be agitated. 31 The first ground is that each decision-maker took into account irrelevant considerations in exercising the power conferred under s 19AP of the Crimes Act (s 5(1)(e); s 5(2)(a) of the ADJR Act). 32 The irrelevant considerations are said to be reference to the notion that criminal offenders have to be prosecuted under the offence provisions in force at the time of the commission of the offence; Courts, when sentencing, are required to impose penalties applicable to the offence at the time it occurred; the applicants were sentenced according to the applicable law; and, in the case of Mr Hasim, the decision-maker construed the direction such that the Attorney-General had demonstrated an election not to interfere with decisions already made by the Courts. 33 The second ground is that each decision-maker failed to have regard to relevant considerations in exercising the statutory power (s 5(1)(e); s 5(2)(b) of the ADJR Act). 34 The relevant considerations are said to be sevenfold. 35 The first relevant consideration is said to be that had the respective prosecutions of the applicants not concluded by 27 August 2012, the prosecution of such charges would have been, pursuant to the direction, discontinued and each applicant would have been only liable to prosecution for an offence against s 233A of the Migration Act, and if prosecuted, convicted and sentenced for such an offence, each applicant would have received a sentence that would have resulted in their immediate eligibility for parole, release from imprisonment and consequent deportation to Indonesia. 36 The second is that had the applicants chosen to plead not guilty to the offences, the prosecution of such offences may not have concluded by 27 August 2012 which would have brought about the result described in connection with the first contended relevant consideration. 37 The third is that the unequal treatment of persons sentenced for people smuggling offences prior to 27 August 2012 as compared with those charged but not yet sentenced prior to 27 August 2012 did not depend upon the date the offence or alleged offence was committed but upon the vagaries of the progress of prosecutions of individuals by Commonwealth prosecutorial authorities. 38 The fourth relevant consideration is said to be that the unequal treatment of persons sentenced for people smuggling offences prior to 27 August 2012 as compared with those charged but not yet sentenced prior to 27 August 2012 arose not as a result of any legislative change but as a result of the Attorney-General's policy direction of 27 August 2012. 39 The fifth relevant consideration is that the Attorney-General had given the direction of 27 August 2012 and the Attorney is the decision-maker. 40 The sixth relevant consideration is that release of each applicant upon licence would ameliorate to some extent the "manifest injustice of unequal treatment of offenders" resulting from the implementation of the Attorney-General's direction of 27 August 2012. 41 The seventh and final relevant consideration is said to be that release of each applicant upon licence would ameliorate to some extent the "manifest injustice of the mandatory sentencing provisions" under which each applicant was sentenced. 42 The third ground is that each decision is so unreasonable that no reasonable person could have so exercised the power conferred under s 19AP of the Crimes Act (s 5(1)(e); s 5(2)(g) of the ADJR Act). 43 The fourth ground is that each decision involved errors of law (s 5(1)(f) of the ADJR Act). 44 The first error of law is said to be that the delegate erred in considering that the unequal treatment of persons sentenced for people smuggling offences prior to 27 August 2012 as compared to those charged but not yet sentenced prior to 27 August 2012 could be equated with different treatment of offenders as a result of legislative change. The second error of law is said to be that in the case of Mr Hasim, the delegate erred in considering that a decision to grant release on licence would constitute an interference with a decision of a Court. 45 The starting point is to recognise the scope, content and operation of the relevant statutory provision conferring either a power or discretion to be exercised by the Attorney-General, in the context of the purpose and objects of the legislation providing for licensed release. 46 Section 19AP(2) recognises that a person who is serving a federal sentence of imprisonment may apply either by himself or herself or through another person acting on their behalf to the Attorney-General for a licence to be released from prison. A licence is defined by s 16 of the Crimes Act to mean a licence granted under s 19AP. Section 19AP falls within Part 1B of the Crimes Act which addresses the topic of sentencing, imprisonment and release of federal offenders. 47 Section 19AP(3) provides that any application made under s 19AP(2) must be in writing and must specify the exceptional circumstances relied upon to justify the grant of the licence. Having made an application for a licence which meets the requirements of s 19AP, the Attorney-General may grant a licence under s 19AP(1). In other words, the section confers a discretion upon the Attorney-General. Neither the Crimes Act generally, nor s 19AP sets out the statutory factors the Attorney-General is to take into account in the exercise of the discretion except to say that as a matter of construction of s 19AP, the discretion is to be exercised having regard to the specified exceptional circumstances relied upon by the applicant for licence to justify the grant of a licence. Section 19AP(4) makes the relationship between the exercise of the discretion and the specified exceptional circumstances justifying the exercise of that discretion plain, by providing that the Attorney-General must not grant a licence under s 19AP unless he or she is satisfied that exceptional circumstances exist which justify the grant of the licence. It may be that the Attorney-General reaches a relevant state of statutory satisfaction as to the subsistence of exceptional circumstances which go beyond or take into account factors in addition to the circumstances said to be exceptional by the applicant for the licence provided that in reaching or not reaching the relevant state of satisfaction, the factors the decision-maker takes into account, at least in the context of these proceedings, are relevant to the question of whether the circumstances are exceptional; irrelevant considerations are not taken into account; the decision is not so unreasonable that no reasonable person could have reached it; and the decision does not involve errors of law in reaching it. All of these matters ultimately turn upon the exposed reasons of the decision-maker and inferences that might be open having regard to those reasons. 48 However, the statutory structure contemplates that an applicant must specify the exceptional circumstances justifying the exercise of the discretion as part of a competent application for the purposes of s 19AP(2), and the Attorney-General is conferred with a statutory discretion under s 19AP(1) which proceeds upon the footing of an s 19AP(2) application which meets the requirements of s 19AP(3), and, in exercising the discretion, the Attorney-General is constrained by the express statutory prohibition contained in s 19AP(4). It follows that although the discretion is conferred and subsists under s 19AP(1), the Minister is constrained in the exercise of the discretion by s 19AP(4). 49 Against this statutory background, a number of organising principles relevant to the grounds sought to be agitated under the ADJR Act need to be kept in mind and they are these: 1. The ground recited in s 5(1)(e) as expanded upon in s 5(2)(b) of the ADJR Act of a decision-maker failing to take into account a relevant consideration in the making of an administrative decision is one instance of the exercise of a statutory discretion which would cause the exercise of the discretion to miscarry as ultra vires the power conferred upon the decision-maker. 2. The ground of failing to take into account a relevant consideration can only be made good if the decision-maker fails to take into account a consideration which he or she is bound to consider. 3. The factors a decision-maker is bound to consider in exercising the discretion or reaching the relevant state of satisfaction, that is to say, in making the decision under the particular statutory provision in question, is determined by construction of the statute conferring the discretion or power in accordance with the principles restated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 4. Often, a discretion is ill-defined in the sense that the statute does not isolate the particular factors informing the exercise of the discretion and in such cases, looking to the scope and purpose of the statute conferring the discretion, and its real object becomes critical: Minister for Immigration and Citizenship v Li and Another ("MIAC v Li") (2013) 297 ALR 225, Hayne, Kiefel and Bell JJ at [67]; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, Dixon J at pp 504-506. In this case, the identified statutory factor informing the exercise of the discretion is whether the decision-maker can be satisfied that exceptional circumstances justifying the grant of a licence exist because if the decision-maker is not satisfied of that factual matter, he or she must not exercise the discretion favourably to the applicant for the licence. 5. As to the ground of taking into account an irrelevant consideration, where the discretion is conferred in an unconfined way, the factors to be taken into account are similarly unconfined except to the extent of limitations implied from the subject matter, scope and purpose of the statute. Where the factor identified by the statute about which a state of satisfaction is required of the decision-maker before exercising the discretion, is cast in broad terms using commonly used language such as "exceptional circumstances", the factors to be taken into account by the decision-maker will also be of broad import. 6. The meaning, however, to be attributed to the term "exceptional circumstances" is a question of law. 7. Similarly, where the ground relied upon is a failure to take into account a relevant consideration and the discretion is conferred in an unconfined way, a decision-maker is not bound to take a particular matter into account unless an implication can be drawn from the subject matter, scope and purpose of the conferring Act that such a consideration is to be taken into account. 8. Section 19AP(3) taken in conjunction with s 19AP(1) requires the decision-maker to take into account the exceptional circumstances specified by the applicant for the licence as justifying the grant of the licence, in the exercise of the discretion for or against the licence applicant. 9. However, a factor the decision-maker is bound to consider may be so insignificant that the failure does not materially affect the decision under challenge. 10. The limited role of the Court in reviewing the exercise of a discretion or the decision-maker's state of satisfaction upon which the exercise of the discretion is conditioned (even where the jurisdiction is enlivened by the statutory grounds of the ADJR Act as distinct from considerations going to jurisdictional error in the grant of the constitutional writs in the exercise of the supervisory review jurisdiction), needs to be kept in mind in the following sense. 11. The distinction between merits review on the one hand and the notion of legality in administrative decision-making is critical. The grounds of ADJR review, although broader in some respects than the common law grounds of review of administrative decision-making, test the legality of decision-making based on codified grounds upon which the administrative decision is shown to be beyond the limits of the power conferred. The ADJR grounds (and the grounds upon which the supervisory review jurisdiction is exercised other than in reliance upon the ADJR Act), do not, as a statement of general principle, test the merits of the weighing of properly engaged factors. 12. It follows that the decision-maker must determine the weight to be attributed to those factors in exercising the power unless the statute directs the decision-maker either expressly or by necessary implication, to attribute particular emphasis to particular factors. 13. In this case, the statute tells the decision-maker the criterion to be considered, that is, "exceptional circumstances", and, in the first instance at least, those circumstances specified by the applicant said to justify the grant of a licence in the exercise of the discretion under s 19AP(1), but secondly, those circumstances the Minister considers exceptional (or not) in reaching a state of satisfaction upon which the exercise of the discretion is conditioned. The statute does not identify the factors upon which the decision-maker might, or might not, be satisfied of that criterion or, in consequence, the weight to be attributed to any factor falling within the criterion since no factors relevant to the criterion are identified expressly by the Act. The criterion itself is identified but not the informing features of that criterion. 14. However, questions of emphasis or weight attributed to particular factors properly falling within the criterion of exceptional circumstances might become a matter of justiciable controversy in reliance upon the ground of "manifest unreasonableness" in the decision-making. Mason J put such a consideration in these terms in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41: … a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation [1948] 1 K.B., at pp. 230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in s 5(2)(g) … of the A.D.(J.R.) Act in these terms. [emphasis added] 15. Guidance as to whether a decision is manifestly unreasonable in this sense might be found in the close analogy between judicial review of administrative action and the principles governing appellate review of a judicial discretion. See, for example, the statement of principle reflected in House v The King (1936) 55 CLR 499. The legal standard of unreasonableness, however, should not be considered as limited to what is, put simply, an irrational if not bizarre decision (which is to say, one that is so unreasonable that no reasonable person could have arrived at it): MIAC v Li, Hayne, Kiefel and Bell JJ at [68]. Nor should Lord Greene MR's observations in Wednesbury be taken to have limited the notion of unreasonableness in this way. This aspect of Lord Greene MR's judgment "may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified" [emphasis added]: MIAC v Li, Hayne, Kiefel and Bell JJ at [68]. 16. In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821, Lord Diplock referred to "decisions that, looked at objectively, are so devoid of plausible justification that no reasonable body of persons could have reached them", in examining the notion of what might be understood as an "unreasonable" decision. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at p 1064, Lord Diplock also observed that unreasonableness arises where "no sensible authority acting with due appreciation of its responsibilities" would have reached the decision in question. 17. In Re W (an Infant) [1971] AC 682 at p 700 Lord Hailsham LC observed that not every reasonable exercise of judgment is right and not every mistaken exercise of judgment is unreasonable. Lord Hailsham LC also observed at p 700 that there is "a band of decisions within which no court should seek to replace the individual's judgment with his [or her] own". Lord Greene MR observed in Wednesbury at p 234 that although a decision-maker has kept within the four corners of the matters he or she ought to consider, the decision-maker might nevertheless "come to a conclusion so unreasonable that no reasonable authority could ever have come to it". Courts will interfere in such a decision on the basis that the statute is taken to impose a "framework of rationality" on the decision-maker (MIAC v Li, French CJ at [28]). An aspect of the framework of rationality, and decision-making "according to the rules of reason and justice" (MIAC v Li at [65]), is the requirement of the law that a decision-maker "understand his or her statutory powers and obligations" (MIAC v Li at [71]). 18. Whether a decision-maker be regarded, having regard to the scope and purpose of the enabling legislation, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion in each case will necessarily be that the decision-maker has acted unreasonably in a legal sense: MIAC v Li at [72]. 19. All of these principles apply to the administrative decisions made by the Attorney-General's delegate in these proceedings. 20. Where the decision in question is made by a Minister of the Crown, due allowance may have to be made for taking into account broader policy considerations which may be relevant to the exercise of a ministerial discretion: see the observations of Mason J, Minister for Aboriginal Affairs v Peko-Wallsend Ltd, at p 42-43. 21. The ground of error of law under the ADJR Act extends to non-jurisdictional legal errors. 22. The failure of a decision-maker to expressly refer to a matter will not necessarily give rise to an inference that the particular matter was not considered by the decision-maker. All of the reasons need to be considered to determine whether a fair inference arises that the decision-maker did not turn his or her mind to the particular matter: Brehoi v Attorney-General for the Commonwealth [2000] FCA 1747 at [37]. 50 As to the orthodoxy of the principles set out at [49] see generally Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at pp 39-43, and Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363, Deane J at p 375; and as to reasonableness and the rule of reason see MIAC v Li (2013) 297 ALR 225, French CJ [23]-[30]; Hayne, Kiefel and Bell JJ [63]-[76]; and Gageler J [88]-[92]; see generally Judicial Review of Administrative Act, Aronson and Groves, Thomson Reuters, 5th Edition. 51 The term "exceptional circumstances" is not a term defined by the Crimes Act. The Explanatory Memorandum for the Crimes Legislation Amendment Bill (No. 2) 1989 upon the introduction of the Bill into the House of Representatives provides, relevantly, the following explanation in relation to the section: There is already a release on licence mechanism in s 19A of the Principal Act. It was inserted in 1960 to enable federal offenders to be released from prison before they were due to be released, otherwise than by the use of the Royal Prerogative of Mercy. This new provision is intended to replace section 19A. Subsection (1) gives the Attorney-General a discretion to grant a federal offender a licence to be released from prison, whether or not a non-parole period has been fixed or a recognisance release order has been made. … Subsection (3) sets out the form the application must take: in writing, and specifying the exceptional circumstances relied on to justify the grant of the licence. Subsection (4) provides that the Attorney-General must be satisfied that there are exceptional circumstances before granting a licence, under the proposed section. Exceptional circumstances are intended to cover matters that occur, usually post-sentence, that significantly affect an offender's circumstances such as extensive cooperation with law enforcement agencies or development of a serious medical condition which cannot be adequately treated within the prison system. Such matters as, for example, excellent conduct in prison, remorse or contrition, liability to deportation, prospects of employment, or family hardship, unless of an extreme kind that is documented by medical and other reports, would not normally constitute exceptional circumstances. Prisoners' families inevitably suffer varying degrees of hardship and distress because of the imprisonment of a family member. [emphasis added] 52 The New Oxford Dictionary of English defines the terms "exception" and "exceptional" in this way: exception noun a person or thing that is excluded from a general statement or does not follow a rule - phrases the exception proves the rule proverb the fact that some cases do not follow a rule proves that the rule applies in all other cases. take exception to object strongly to: be offended by: exceptional adjective unusual: not typical: … unusually good: outstanding. 53 Although the term "exceptional circumstances" is not defined in the Crimes Act or Regulations made under that Act, Lord Bingham of Cornhill CJ gave emphasis to the "ordinary familiar" nature of the adjective "exceptional" in Reg v Kelly (Edward) (C.A.) [2000] 1 Q.B. 198 at 208, B-D. In that case, Lord Bingham CJ, speaking of the expression "exceptional circumstances" in s 2 of the Crime (Sentences) Act 1997 (UK) (circumstances required for a decision not to impose a sentence of life imprisonment), said this at p 208: We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. 54 See also Baker v The Queen (2004) 223 CLR 513 at 573, Callinan J at [173]-[175]. 55 The Full Court of this Court in Maan v Minister for Immigration and Citizenship [2009] FCAFC 150, Dowsett, Greenwood and Collier JJ at [51] found the observations of Lord Bingham CJ in R v Kelly of assistance in understanding the correct approach to the content of the term "exceptional circumstances" although of course the content of the term must be determined having regard to the statutory context within which it appears. 56 In Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648, McHugh J construed the term "exceptional circumstances" in the following context. At the relevant time, s 12 of the Migration Act 1958 (Cth) provided that the Minister may order the deportation of a non-citizen who has been convicted in Australia of an offence for which he or she was sentenced to imprisonment for a period of not less than one year, and who, at the time of the commission of the offence, has been present in Australia as a permanent resident for less than 10 years. In May 1983, the Minister gave Parliament details of a policy, the Criminal Deportation Policy, which would guide decisions made under s 12 of the Migration Act. The policy set out broad criteria to be applied. The policy noted that a person had a right of appeal to the Administrative Appeals Tribunal ("AAT") against a decision that he or she be deported. 57 Paragraph 4 of the policy stated that the recommendations of the AAT should be overturned by the Minister "only in exceptional circumstances and only when strong evidence can be produced to justify his [or her] decision". The policy required the Minister to table in Parliament a statement of reasons if he or she decided to deport a person contrary to the recommendations of the AAT. 58 In that context, his Honour said this at p 684: No doubt the term "exceptional circumstances" is vague. But since the policy declares that recommendations of the AAT will be overturned only in exceptional circumstances and only when strong evidence can be produced to justify the Minister's decision, mere disagreement with the findings or recommendation of the AAT does not constitute "exceptional circumstances". The reference in the policy to "exceptional circumstances" and "strong evidence … produced to justify" a departure from the recommendation of the AAT suggests that the policy contemplated that ordinarily the Minister would not reject a recommendation unless further evidence came into his or her possession. It would be going too far, however, to hold that the Minister will always breach the policy in refusing to follow a recommendation of the AAT unless he or she is in possession of evidence which was not before the AAT. The terms of the policy should not be read pedantically. If the critical findings of the AAT were unreasonable, for example, the Minister would be entitled to assert that the case was exceptional and that strong evidence existed to overturn the AAT's recommendation. 59 In applying that conception to the circumstances of the case before McHugh J, his Honour also said this at p 684: In the present case, however, the findings of the AAT were based and reasonably open on the evidence. Whether or not the Minister disagreed with them, they cannot be described as unreasonable. Moreover, it is not easy to see how the four matters to which I have referred constituted "exceptional circumstances" or "strong evidence". In the end, however, it is for the Minister and not for the Courts to say whether there were "exceptional circumstances" and "strong evidence" available to justify his decision. 60 The Minister's consideration of exceptional circumstances under the Criminal Deportation Policy was also considered in Nikac v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65 by Wilcox J. Three reasons were identified by the Minister as demonstrating to the satisfaction of the Minister "exceptional circumstances". One factor was a risk of recidivism to the Australian community. Wilcox J observed that in relation to that matter the question was always the extent of the risk and the nature of the offence likely to be committed if the person offended again. Wilcox J expressed "extreme difficulty" in seeing how the factors going to that matter identified by the Minister could amount to "exceptional circumstances" but said this at p 81: Notwithstanding my own view about the Minister's conclusions that the circumstances in the [case of Mr Nikac] are "exceptional", I do not think that it is possible to say that the Minister's contrary view is devoid of plausible justification. The term "exceptional circumstances" postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question inevitably arises: exceptional compared with what? Even if it be conceded that there is nothing very exceptional about drug offences appearing upon a list of convictions, there will always be differences in the circumstances of those offences. For example, I would not myself have thought that the particular offences committed by Mr Nikac were of such a nature as to constitute a reason for taking the unusual step of declining to accept the recommendation of the Tribunal, by whom both the offences and all the other relevant circumstances were considered. But it is impossible to categorise a different view as being devoid of plausible justification. Like beauty, "exceptional circumstances" lies in the eye of the beholder. [emphasis added] 61 Although the assessment of the circumstances is a matter informing the state of satisfaction of the decision-maker, the assessment of those circumstances is not an entirely subjective matter in the sense of the term being so vague that it is devoid of any objective meaning: MLC Investments Ltd v Commissioner of Taxation [2003] FCA 1487, Lindgren J at [63]. 62 Nevertheless, the term is broad, in many respects vague, and a term which has a "wide operation". 63 In Hatcher v Cohn (2004) 139 FCR 425, Kiefel J considered the meaning of the term "exceptional circumstances" in the context of an exception in s 106KA(2) of the Health Insurance Act 1973 (Cth) (the "HIA Act"). In that case the applicant was a medical practitioner whose conduct had been subject to review on the footing that he had performed 80 or more professional services each day on 37 days between a relevant period. A Professional Services Review Committee concluded that the applicant's conduct constituted "inappropriate practice" under the HIA Act. The applicant then sought review of the Committee's determination and the referral process which caused the review of the applicant's conduct to be undertaken. The applicant contended that his conduct did not constitute inappropriate practice because his conduct fell within the "exceptional circumstances" exception in s 106KA(2) of the HIA Act which provided that if a person under review satisfies the Committee that, on a particular day or particular days during the relevant period, exceptional circumstances existed that affected the provision of services by the person, the conduct of rendering services on the relevant day would not be taken to constitute engaging in inappropriate practice for the purposes of s 106KA(1) of the HIA Act. 64 In that statutory context, Kiefel J said this at [49] and [50]: 49. "Exceptional" circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances. Speaking in the context of extradition, Gleeson CJ, McHugh and Gummow JJ have held that "special circumstances" need to be "extraordinary and not factors applicable to all defendants facing extradition". It was not necessary that any particular circumstance be regarded as special; several factors in combination could constitute special circumstances: United Mexican States v Cabal (2001) 209 CLR 165 at [52]. And in Baker v The Queen (2004) 78 ALJR 1483 at [13] Gleeson CJ considered the use of "special circumstances" to condition the exercise of judicial discretion. His Honour said: This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors. 50. Although his Honour was speaking of judicial decision-making the observations are apposite here. The words "exceptional circumstances" may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the words of the relevant statutory provision. … [emphasis added] 65 The question arose in the same context again in Ho v Professional Services Review Committee No 295 [2007] FCA 388. At [23] and [24], Rares J said this: 23. I am of the opinion that the expression "exceptional circumstances" requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances: "Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances." 24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397). 66 In Cornwell v Attorney-General of the Commonwealth of Australia (1993) 45 FCR 492, Foster J was required to give consideration to the term "exceptional circumstances" for the purposes of s 19AP in the context of whether the Minister had properly taken into account and deliberated upon questions of public interest and public opinion relating to early release having regard to the particular offences in question. 67 Foster J said this at p 504: I am satisfied that the Minister was fully aware of and gave consideration to likely public and media reaction to Cornwell's early release. Indeed, it would have been quite extraordinary if he had not. But it is the manner in which he gave consideration which is important. In my view, this appears from the passage in the letter of 22 July 1993 where the Minister says: "to facilitate early release beyond the already generous remission (up to 19 days per month) that Bull and Cornwell have accumulated would, in my opinion, be properly the subject of criticism". This passage, in itself, indicates to me that the Minister was not simply influenced in his decision by a desire to avoid adverse criticism. He in fact considered the likely content of that criticism and formed the opinion that it would be "proper". … It is quite clear that the Minister was entitled to take into account questions of public interest and public reaction in his deliberations as to whether he should approve the recommendation: South Australia v O'Shea (1987) 163 CLR 378 per Mason CJ at 388-389, per Wilson and Toohey JJ at 401-402, per Brennan J at 411. The case involved a consideration of the proper exercise of Ministerial power under s 77a of the Criminal Law Consolidation Act 1935 (SA) which provided that where a person was convicted of sexual offences against young children the judge could make a declaration that the person so convicted was incapable of exercising proper control over his sexual instincts and order his detention during Her Majesty's pleasure. Subsection (7a) of that section provided that the Governor-in-Council might, on the recommendation of the Parole Board, release such an offender on licence. Approval was given in the judgments to the observations of Lord Scarman in Re Findlay [1985] AC 318 at 333 where his Lordship said: "The emphasis is upon the need for the board to include among its members persons with the skills and experience required to assess the risk of early release. But the Secretary of State has clearly to consider other aspects of the early release of a prisoner serving a sentence of imprisonment. Deterrence, retribution and public confidence in the system are factors of importance. The Parole Board, through its judicial and other members, can offer advice on these aspects of the question. But neither the board nor the judiciary can be as close, or as sensitive, to public opinion as a minister responsible to Parliament and to the electorate. He has to judge the public acceptability of early release and to determine the policies needed to maintain public confidence in the system of criminal justice. This must be why Parliament saw as necessary the duality of the parole system: without the advice and recommendation of a body capable of assessing the risk of early release the Secretary of State was not to act; but, having received such advice and recommendation, he was to authorise early release only if he himself was satisfied that it was in the public interest that he should." 68 At p 505, Foster J then said this: I am satisfied that the Minister in his deliberations under s 19AP was both entitled and obliged to take into consideration questions of public interest and public opinion. Not only would such considerations enter into the area of decision involving "exceptional circumstances" but they would also play a role in the determination of the ultimate question whether the Minister should, in his discretion, grant the licence applied for. He might be assisted by appropriate and relevant parole and prison reports and departmental submissions but the ultimate decision was to be made by him bearing in mind all of the material and also considerations bearing upon public interest and public opinion. 69 It follows, having regard to all of these considerations and the wide operation of the term "exceptional circumstances" in the context of the subject-matter, purpose and objects of the Crimes Act, that the considerations the decision-maker took into account were not irrelevant considerations, at least as contended for by the applicants. 70 The applicants contend that the consideration, taken into account by the decision-maker, that criminal offenders have to be prosecuted under the offence provisions in force at the time of the commission of the offence is an irrelevant consideration. The decision-maker was entitled to have regard to that circumstance at least as a starting point in the consideration of whether exceptional circumstances subsisted. 71 The applicants also contend that the consideration, taken into account by the decision-maker, that the applicants were sentenced according to the applicable law at the time is an irrelevant consideration. Again, the decision-maker was entitled to have regard to the circumstance that the applicants were sentenced according to a particular regime at the relevant time in respect of particular offences which carried with them a particular sentencing regime. The Crimes Act does not prohibit the decision-maker taking those considerations into account and in the absence of a statutory limitation arising either expressly or by implication, the decision-maker was entitled to have regard to those circumstances. 72 Finally, the applicants contend that the consideration, taken into account by the decision-maker, that the Attorney-General's direction of 27 August 2012 expressly recited by cls 2 and 3 that the direction would not apply to proceedings in relation to an offence for which a person had been sentenced prior to the date of the direction (thus suggesting an election on the part of the Attorney-General not to apply the direction retrospectively to final and completed convictions), was an irrelevant consideration. 73 However, in construing the notion of "exceptional circumstances" having regard to the contentions made by the applicants, it was essential for the decision-maker to construe the exceptional circumstances provision and have regard to the express terms of the direction. The decision-maker was confronted with a direction which told the decision-maker a number of things of particular relevance. First, the DPP was directed not to institute or carry on or continue a prosecution for an offence against s 233C of the Migration Act in the terms of cl 1 of the direction. Second, the decision-maker was told by cl 2 of the direction that it did not apply to any proceedings (including appeals) in relation to an offence for which a person had been sentenced prior to the direction. 74 Plainly enough, the direction could not apply to such a proceeding under cl 1 as the language involves a prohibition upon "instituting" or "carrying on" or "continuing to carry on" a prosecution. The prosecutions in the case of each of the three applicants had already been instituted and carried on to the point of completion of sentencing, prior to 27 August 2012. The direction under cl 1, however, might well have applied to an appeal in such a proceeding but cl 2 makes it plain that the direction does not apply to an appeal in a proceeding where the person has been sentenced prior to 27 August 2012. Clause 3 makes it plain that the direction does apply to a proceeding where the person has been convicted or entered a guilty plea, but not sentenced prior to 27 August 2012. 75 There is nothing in the Crimes Act which prohibits a decision-maker from taking into account the express integers of the Attorney-General's governing direction in relation to the future conduct of the Director of Public Prosecutions in prosecutorial conduct concerning contended contraventions of s 233C and, having regard to the considerations already mentioned and the wide import of the term "exceptional circumstances", the terms of the direction could not be regarded as an irrelevant consideration in informing the state of satisfaction of the decision-maker about whether exceptional circumstances subsisted. The terms and context of the direction are matters of contextual importance to be considered by the decision-maker and in any event, not excluded from consideration by the legislation. 76 There is no demonstrated error on the part of the decision-maker in each case in considering these matters. 77 The second contention for the applicants is set out fully at [33] to [41] of these reasons. There are seven relevant considerations the decision-maker is said to have failed to take into account in exercising the statutory power. 78 The first is the future alternative position each applicant would have been in had each of them engaged in the same conduct but their prosecution had not proceeded to sentencing by 27 August 2012 with the result that the measure of the differential treatment is that they would have then been prosecuted for an offence against s 233A receiving a sentence which would have resulted in their immediate eligibility for parole, release from imprisonment and deportation to Indonesia. The second is much akin to the first on the assumption that things would have been different had each applicant pleaded not guilty. The third is the comparative unequal treatment between the consequences for people prosecuted and sentenced prior to 27 August 2012 and those sentenced after that date having engaged in essentially the same conduct. The fourth is said to be that the comparative unequal treatment is a function not of any legislative change but as a result of simply a policy direction. The fifth is that the respondent was the source of the direction. The sixth is that the early release of each applicant would address the comparative unequal treatment and, more importantly, the "manifest injustice" arising out of the comparative and equal treatment, and the seventh is that early release would ameliorate the injustice arising out of the mandatory sentencing provisions to which each applicant was subject at the time. 79 There is no statutory direction or obligation in the Crimes Act requiring the Attorney-General's delegate to consider any of the seven matters except to the extent that any one of those matters had been raised by the applicants as part of their specification of the content of the exceptional circumstances upon which they were relying to support the exercise of the discretion. To the extent that any of those matters were put to the Attorney-General or the delegate as part of the specified exceptional circumstances, s 19AP required the decision-maker to take each proposition into account in reaching the relevant state of satisfaction and in exercising the discretion. 80 However, the contentions on behalf of the Attorney-General in this proceeding are well made. 81 The reasons given by the delegate in each application show that notions of contended unequal treatment in the comparative sense asserted, and notions of manifest unfairness and injustice said to arise out of the position the applicants found themselves in as sentenced offenders, as compared with others who may have engaged in like conduct in contravention of s 233C of the Migration Act but not have been the subject of an instituted proceeding (or if subject to a proceeding, the proceeding had not been completed prior to 27 August 2012), were taken into account and weighed by the decision-maker in forming a view about whether the decision-maker could be satisfied that exceptional circumstances existed. The consideration by the decision-maker of these matters is not left as a matter of inference to be drawn from the language of the reasons. The decision-maker's consideration of the notion of differential treatment and consequent unfairness and injustice was expressly addressed. 82 The decision-maker notes that the effect of the direction given to the DPP is that the "effective penalties" applying to persons engaged in conduct amounting to an aggravated offence of people smuggling for the purposes of s 233C had been reduced. The decision-maker is expressly comparing the position applicable to Mr Hasim and "people smuggling offenders like Mr Hasim", in noting the practical effect of the direction. Moreover, the decision-maker recognises that individuals, such as Mr Hasim, convicted and sentenced between 2001 and 27 August 2012, might feel disadvantaged because they were convicted and sentenced under a prosecutorial regime prevailing up to 27 August 2012 which no longer applied to persons engaged in like conduct whose prosecutions were not the subject of sentencing prior to 27 August 2012. 83 The decision-maker formed the view that the answer, for the purposes of the state of satisfaction of each decision-maker under s 19AP, to that sentiment of disadvantage or indeed the proposition that persons sentenced before 27 August 2012 confronted manifest unfairness and manifest injustice of treatment as compared with those not sentenced prior to that date (or not the subject of an initiated prosecution), was, on the one hand, that each of the applicants was prosecuted and ultimately sentenced according to the prevailing legal regime coupled with the exercise of the prosecutorial discretion applicable to a determination by the DPP, according to settled principle, of whether a proceeding ought properly be commenced or proceeded with, and, on the other hand, that persons engaged in conduct in contravention of s 233C would after 27 August 2012 be dealt with according to any change in the law or any change, according to law, in the proper exercise of the prosecutorial discretion to prosecute an offender for a contravention of s 233C. 84 As to the latter group, they would be treated according to the application of the prosecutorial discretion according to the terms of the direction as it then stood. 85 So, it follows that the decision-maker expressly had regard to the consideration of contended unequal treatment and contended manifest unfairness on the footing asserted. The decision-maker concluded that the intervention of the direction was not an unusual circumstance, firstly, because it expressly did not apply to proceedings concerning offenders against s 233C sentenced prior to 27 August 2012, and secondly, as to the notion of manifest unfairness and injustice said to arise out of differential treatment for like conduct under changed regimes (because of the non-application of the direction), the differential position of offenders at one point in time, as compared with another, was a function of the orthodox application of the law and the exercise of the prosecutorial discretion under the regimes prevailing at the relevant time. 86 It follows that it was relevant for the decision-maker to consider the elements of the direction and its operation. 87 The applicants contend that each decision-maker improperly exercised the power conferred by s 19AP in making each decision because the exercise of the power was so unreasonable that no reasonable person could have so exercised the power (s 5(1)(e) and s 5(2)(g)). The contention is also made that each decision-maker's decision exhibits irrationality or illogicality and each decision is not supported by findings of fact or inferences drawn from facts, on logical grounds. 88 There is simply no developed content in support of the contended ground. It may be that the applicants contend that the particular grounds identified of taking into account irrelevant considerations and not taking into account relevant considerations, are the content of this ground on the reductionist view that ultimately the particular grounds of criticism of each decision (as an improper exercise of the conferred power) are the expression of unreasonableness in the sense described at [49]. If so, there was nothing unreasonable in the decision-maker having regard to the matters described at para 1(a) of the draft proposed application and nothing unreasonable in the decision-maker treating the matters (or not treating those matters) described at para 1(b) of the draft proposed application, in the manner described earlier. 89 Apart from these matters, the applicants contend that each decision reflects errors of law by the decision-maker in reaching each decision. 90 There are two contended errors. 91 One is of general application to all three decisions and one is specific to the decision concerning Mr Hasim. As to the general contention (Ground 2(a) of the draft application), the applicants say, in effect, that differential treatment as between offenders who have engaged in "like conduct", resulting from the application of changes in the statute law in the relevant periods under consideration, is one thing. However, differential treatment arising not out of a change in the statute law by the Parliament but rather a change in policy (in effect at the hands of the executive government) as to the basis upon which the prosecutorial discretion is to be exercised concerning conduct contravening s 233C (in respect of offenders at one point in time as compared with offenders engaging in relevantly the same conduct at a later point in time), is another thing entirely. 92 The error of law is said to be that each decision-maker equated the two things and thus each decision-maker in deciding he or she could not be satisfied of the existence of exceptional circumstances, in part on the footing that the differential comparative treatment of offenders of like conduct was simply the outworking of the application of changes in the law, fell into legal error because the differential treatment was referable simply to a change in policy: an election by the executive government to treat offenders differently. 93 The position however is simply this. 94 The decision-maker notes that the direction has, for all practical purposes, had the effect of reducing the penalties for conduct in contravention of s 233C and whether the change in position or change of treatment confronting offenders of s 233C is due to a legislative change or changes in the exercise of the prosecutorial discretion conferred upon the DPP, those changes form part of the criminal justice system, according to law. 95 More importantly, the Parliament of the Commonwealth by s 8(1) of the DPP Act has expressly conferred power upon the Attorney-General to give directions to the DPP, after consultation with the DPP, relating to the "circumstances in which the director should institute or carry on prosecutions for offences" against Commonwealth law. 96 The change in position resulting from the direction that offenders against s 233C of the Migration Act should not have a prosecution commenced against them on or after 27 August 2012 nor a proceeding continued or carried on against them on or after that date (subject to the three factors of para 1 of the direction), with no application of the direction to proceedings (including appeals) concerning an offence against s 233C for which a person had been sentenced prior to 27 August 2012, was entirely consistent with s 8(1) of the DPP Act, and thus, the prevailing legislative mechanism empowering the Attorney-General to give effect to a limitation upon the exercise of the prosecutorial discretion. 97 There was no error of law on the general footing as contended. 98 As to the more specific matter concerning Mr Hasim, Mr Hasim contends that the decision-maker fell into legal error by taking the view that a decision to grant early release would constitute "an interference with a decision by a court" (Ground 2(b)). 99 Clauses 2 and 3 of the direction (see [13] of these reasons) make plain the field within which the direction does not operate. Clause 2 is the non-application of the direction clause, and cl 3 is explanatory of cl 2 should there be any doubt about its meaning. 100 In that context, Mr Anderson said this at p 2 of his decision concerning Mr Hasim: When the Attorney-General issued the Direction of 27 August 2012, she made a specific decision not to make the Direction have retrospective application. That decision demonstrates that the Attorney-General had chosen not to interfere with decisions already made by courts. 101 In other words, Mr Anderson was saying that the direction does not look backwards. It does not operate retrospectively. It does not, according to its terms, attach to or operate upon decisions of Courts the subject of a sentencing decision prior to 27 August 2012 (including appeals). 102 The observations of the decision-maker simply take account of the terms of the direction reflected in cls 2 and 3 of the direction. 103 There is no error of law on the part of the decision-maker. 104 It follows for all of these reasons that the application must be dismissed with costs. I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 23 December 2013