Butcher, K.J. v Attorney-General of Australia

[1990] FCA 512

512, $0 --

JUDGMENT No. . ........ ... ..-.....-

C A T C H W O R D S

NIMINISTRATIVE LAW - Judicial review - application seeking
review of a decision by the Minister for Justice and Consumer
Affairs not to allow the applicant a licence to be at large -
whether the decision is immune from review as a decision of
the Governor-General.
CONSTITUTIONAL LAW - whether decision "on behalf of"
Attorney-General - relationship between portfolio and non-

portfolio Ministers discussed.

Administrative Decisions (Judicial Review) Act 1977 S. 3(1)
Acts Interpretation Act (Cth.) 1901 S. 19
Crimes Act (Cth.) 1914 ss. 16E and 19A
Commonwealth Prisoners Act 1967 ss. 5(1) and 19

Corrective Services Act (Q.) 1988 S. 166

Thonachua v. Attornev-General for Commonwealth of Australia

(1986) 66 A.L.R. 340.

Sauires v. Attornev-General for Commonwealth of Australia

(1986) 12 F.C.R. 84

Steiner v. ~ttornev-~eneral	for Commonwealth of Australia
28 AUGUST 1990

(1983) 52 A.L.R. 148

Zoeller v. ~ttoknev-henera1 for Commonwealth of Australia

(1987) 76 A.L.R. 267

KENNETH JOHN BUTCHER	ATTORNEY-GENERAL OF AUSTWIA
QLD. NO. G85 of 1990
SPENDER J.
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA	1
OUEENSLAND DISTRICT REGISTRY	1 QLD NO. G85 of 1990
GENERAL DIVISION	)

BETWEEN: KENNETH JOHN BUTCHER

Applicant

AND: ATTORNEY-GENERAL OF AUSTRALIA

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	SPENDER J.
DATE OF ORDER:	28 AUGUST 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

(1) The notice of objection to competency is upheld.

(2) The application for an order of review is dismissed

with costs.

NOTE:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	)  QLD NO. G85 of 1990
GENERAL DIVISION	1

BETWEEN: KENNETH JOHN BUTCHER

Applicant

AND: ATTORNEY-GENERAL OF AUSTRALIA

Respondent

SPENDER J.
BRISBANE

28 August 1990

EX TEMPORE REASONS FOR JUDGMENT

This is a notice of objection to competency in respect of an application for an order of review by Kenneth John Butcher which was filed on 23 July 1990. As will appear, the question of time is important and for that reason, notwithstanding that there are quite difficult questions on the periphery of this notice, I will give judgement forthwith.

The principal application is an application for an

order of review:

" to review the decision of the Attorney-General of

Australia that,

(1) the Attorney-General of Australia has not

granted to Kenneth John Butcher a licence to

be at large and

(2) that the Attorney-General of Australia has

set the conditional release date for Kenneth

John Butcher to be 21 November 1990. "

L . .

Mr Butcher claims to be aggrieved by these decisions because he should not be still held in custody, and S .I

because he w i l l have t o serve a greater term o f imprisonment
than i s prescribed by l a w "and general practice."

The factual circumstances i n which the application and the notice o f objection t o competency f a l l t o be decided appears from remarks made by his Honour Judge Boyce i n passing sentence on Mr Butcher and on a CO-accused, one Gary Desmond Ponsford. His Honour said i n relation t o the sentences that he imposed, the term o f which i s a t the core o f the application and the notice o f objection t o competency, as follows :

" Kenneth John Butcher and Gary Desmond Ponsford,

I take i n t o account the pleas o f gu i l t y i n

these matters that has saved the community the

time and expense o f a lengthy t r i a l . Sickness

bene f i t s are needed b y many persons, who b y reason o f sickness or accident, are unable t o continue i n employment for a period o f time. You have both systematically defrauded the Commonwealth b y ingenious methods over a period o f a number o f months. A substantial sum o f money was obtained, and there i s st i l l a considerable amount not recovered.

These offences are d i f f i c u l t t o detect, and are

a considerable drain on public funds. There i s

great community concern regarding social

securi ty f raud . I t i s important t o deter others from similar conduct. For these reasons no sentence other than a tern o f imprisonment i s appropriate.

I t i s clear that the person who conceived the scheme, prepared the false documents, and organized the offences, i s M r Butcher. Accordingly, I propose t o sentence Mr' Butcher as the major offender. However, I note that Mr Butcher has already spent 10 months i n custody and had a number o f personal problems at the time o f these offences. I regard Mr Ponsford

a s a person who was led in to these ac t i v i t i e s

b y Mr Butcher, although he was a will ing
assistant and he participated t o some extent i n
the proceeds o f these of fences. I note M r .

Ponsford was unemployed for at least part of the time involved, and may not initially have realised the full extent of the fraud involved.

The sentence so far as Mr. Butcher is concerned on 22 counts of defrauding the Commonwealth, and they are Counts 1, 2, 3, 5, 7, 8, 9, 11, 12, 13, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 27 and 28 - on each count, I sentence you to three years' imprisonment. The sentences are to be concurrent, and on 4 counts of attempting to defraud the Commonwealth, that is Counts 4, 6, 29 and 30, on each count I sentence you to two years iniprisonment, the sentences to be concurrent. "

Mr Butcher appealed against conviction and sought leave to appeal against sentence on 22 May 1989, and on 15 August 1989 the Court of Criminal Appeal dismissed the appeal against conviction and refused his application for leave to appeal against the sentence.

The primary submission of Mr Butcher is that at all relevant times the Attorney-General in determining the time at which a federal prisoner might be released on licence had a practice of fixing one-half of the head sentence period and

practice is scanty, and Mr Butcher frankly conceded that it

deducting the amount of time spent in custody prior to the imposition of sentence. The evidence in relation to such

essentially was anecdotal and did not appear in the material before me other than as assertion; but the effect of that practice, it was said, was that the sentencing judge, having

noted the 10 months spent in custody prior to sentence and

then imposing a period of 3 years, ought to have meant that he should be released on licence in accordance with the alleged

practice of the Attorney-General on or about 22 June 1990, being 1 year and 1 month after the sentence imposed by his Honour Judge Boyce on 22 May 1989. That is, Mr. Butcher says that effectively he was sentenced to 46 months' imprisonment, so that half of this sentence minus the 10 months in custody is 13 months. The correspondence exhibited to the various affidavits before me indicates that it is the intention of the Minister for Justice and Consumer Affairs, the Honourable Senator Michael Tate, and those who advise him, that M r ~ukcher ought be released, but that the conditional date of his release would be 21 November 1990.

There is a real difficulty to which I must necessarily refer later, but having regard to the nature of the

application and the contents of the notice of objection to l - !

competency, the primary question is whether the decisions	1 .
which are sought to be impugned are decisions which are exempt	I :. ,
from judicial review pursuant to section 3 ( 1 ) of the	I l .

I..

Administrative Decisions (Judicial Review) Act 1977. The

material shows that a report was submitted to the Minister for Justice and Consumer Affairs by Ms. Maggie Jackson, the senior	assistant secretary, Criminal Law Branch of the Attorney-
General's Department dated 26 June 1990. That submission made a recommendation to the Minister that he decline to advise the Governor-General to grant Mr. Butcher a licence to be at large at that stage, and confirmed his possible conditional release date as being 21 November 1990.
It recited the fact of his sentencing on 22 May 1989, referred to an amount of $32,543 as being the amount of money involved in false claims for social security benefits and stated:

"	The	pr i soner ' s	ha1 f	- t e r n	e x p i r e s	wi thout
remis s ion	on	21	November	1990.	I f	n o t

c o n d i t i o n a l l y r e l e a s e d , t h e pr i soner w i l l be

re l eased by way o f r emis s ion on 17 March 1991. "

In paragraph 11 of that submission MS Jackson said:

" Advice	from	t h e	Queensland	a u t h o r i t i e s	i s t h a t ,
wh i l e	t h e r e	i s no	l a w r e l a t i n g	t o remand	t i m e ,

i t i s the prerogat ive o f t h e c o u r t whether o r

not t o t a k e t h i s t i m e in to account. Accordingly

i t i s f e l t t h a t i f a Court s en tences a person t o

t h r e e years' imprisonment, and takes 10 months'

remand i n t o account, t h e c o u r t has i n d i r e c t l y

s t a t e d t h a t b u t f o r t h e remand t i m e i t would have

set a tern o f three years and 10 months. "

She continued:

" 12. p a r i t y In t h i s p a r t i c u l a r case , and t o ensure

w i t h S t a t e pr i soners , I do n o t cons ider

t h a t the pr i soner should gain an e a r l i e r r e l e a s e

o f what amounts t o 5 months. I t i s a l s o noted

t h a t from 14 Apr i l 1990, t h e pr i soner was granted

r e l e a s e t o t h e Queensland Release t o W o r k Scheme,

b e i n g i n e l i g i b l e t o p a r t i c i p a t e i n t h e Home

Detention	Programnie	a s h e	i s n o t	a	r e s i d e n t	o f
Queensland.
13.	The	pr i soner ' s	ac tua l	h a l f - t e r m	expires	on

21 November 1990. H e has n o t been disadvantaged

r e l a t i v e	t o o t h e r	o f f e n d e r s and	i f concerned	o v e r
h i s s en tence	has	t h e r i g h t	t o t a k e his	concerns

t o a h i g h e r c o u r t . "

The Minister for Justice and Consumer Affairs on 29
June 1990 approved the recommendations made by Ms. Jackson to
decline to advise the Governor-General to grant Kenneth John

Butcher a licence t o be a t large at t h i s stage, and confirmed

his conditional release date as being 2 1 November 1 9 9 0 .

Section 19A o f the Crimes Act 1 9 1 4 , as it then was,

relevantly provided as follows:

" 19A. . . .

(2) Where -

( a )	a person i s serving a term o f imprisonment
for an of fence against a l a w o f the Commonweal th; or
(b)	a prison is being detained in prison by virtue o f a direction given under section

1 7 ,

the Governor-General may, i f he thinks i t proper so t o do i n the circumstances, grant t o that person, by writing under h i s hand, a licence t o be a t large.

(3) A licence i s su f f i c i en t authority for the

release from prison o f the person	t o whom i t i s
granted.

( 4 ) A licence i s subject t o such conditions,

i f any, as are specified i n the licence.

...

( 1 4 ) For the purposes o f the preceding

provisions o f t h i s section, ' t he Governor- General' means the Governor-General o f the Commonwealth, or the person for the time being administering the government o f the Commonwealth, acting with the advice o f the

Attorney-General . "

Section 19 o f the Acts In ter~re ta t ion Act (Cth.) 1901

provides :

" Where i n an Act any Minister i s referred to , such reference shall unless the contrary intention appears be deemed t o include any Minister or member o f the Executive Council for the time being acting for or on behalf o f such Minister. "

Ik is asserted on behalf o f the Attorney-General that

the Minister for Justice and Consumer A f f a i r s , Senator Tate,

was acting on behalf of the Attorney-General in considering the recommendation by Ms. Jackson to decline to recommend to the Governor-General that Mr Butcher be released on licence.

The Commonwealth Prisoners Act 1967, then applicable, relevantly provided in ss. 5(1) and 19:

" 5. (1) Subject t o t h i s section, the Governor-

General may, i n h i s discretion, by order i n writing direct that a person, being a person who i s serving a term o f imprisonment for an of fence against a law o f the Commonwealth i n respect o f which a minimum term o f imprisonment has been fixed, be released from prison on parole a t a time specified i n the order, being

a time that i s a f t e r the expiration o f that

minimum term o f imprisonment. "

. , .

" 19. The provisions o f a l a w o f a State or

Territory relating t o the reduction or remission o f sentences or minimum terms o f imprisonment apply t o a federal offender who i s serving a sentence o f imprisonment i n a prison o f that State or Territory i n l i k e manner a s those provisions apply i n relation t o a State offender or a Territory offender serving a

sentence o f imprisonment i n that prison. "

So far as the relevant Queensland provisions are

concerned, the Corrective Services Act 1988 provided in

S . 166(1) as follows: 

" Subject t o subsections	(3 ) and	(	4	a prisoner
t o whom	paragraph	( a ) ( i ) o f	section	165(1)

re fers i s not e l ig ib le for release on parole until he has served hal f a t leas t o f the term o f imprisonment t o which he was sentenced. "

Subsection 4 of S. 166 provided:

" Subject t o section 165 ( 2 ) , the Queensland

Community Corrections Board may, where i t i s sa t i s f i ed that there are special circumstances relating t o a prisoner referred t o i n paragraph

( a ) ( i ) o f s e c t i o n 1 6 5 ( 1 ) , r e l e a s e t h a t p r i soner

on parole a t any t ime .

Subjec t t o s e c t i o n 1 6 5 ( 3 ) , a reg ional community

c o r r e c t i o n s board may, where i t i s s a t i s f i e d

t h a t there a r e s p e c i a l circumstances r e l a t i n g

t o a pr i soner r e f e r r e d t o i n paragraph (b) o f

s e c t i o n 1 6 5 ( 1 ) , r e l e a s e t h a t p r i soner on parole

a t any t ime . "

Prima facie then the position for a Queensland prisoner was that he would be required to serve half at least of the term of imprisonment to which he was sentenced before being eligible for release on parole, but that by virtue of S. 166(4) the Corrections Board might release a prisoner on parole at any time where he is satisfied that there are special circumstances relating to a relevant prisoner.

In very detailed and, if I may say so, well presented submissions to me on his own behalf, Mr Butcher made plain in his additional material that he was not seeking to be released on parole conditions before his appropriate non-parole period expires. He did not seek release for any "special

reason which may warrant the early release of an offender	circumstances" such as compassionate, medical or other special
prior to the provisional parole date. His complaint is that the calculation of his "conditional release date" has been calculated unfairly.
The legislative provisions then applying have been overtaken by amendments to the Crimes Act 1914 pursuant to the Crimes Leaislation Amendment Act (No. 2 1 No. 4 of 1990. It
may be o f relevance t o note Division 3 , and i n particular S . 1 6 E o f the Crimes Act 1 9 1 4 , as introduced by that amending
~ c t . Section 1 6 E relevantly provides:

'l (1 ) Subject t o subsections ( 2 ) and (3) . the

l a w o f a State or Territory relating t o the

commencement o f sentences and o f non-parole periods applies t o a person who i s sentenced i n that State or Territory for a federal offence i n the same w a y as i t applies t o a person who

i s sentenced i n that State or Territory for a

State or Territory offence.

the e f f e c t that a sentence imposed on a person (2) where the l a w o f a State or Territory has for an of fence against the l a w o f that State or Territory or a non-parole period fixed i n respect o f that sentence:

( a ) m a y be reduced by the period that the

person has been i n custody for the

offence; or

(b)	is to commence on the day on which the
person was taken in to custody for the offence;

the l a w applies i n the same way t o a federal sentence imposed on a person i n that State or Territory or t o a non-parole period fixed i n respect o f that sentence.

(3) Where the l a w o f a State or Territory does not have the e f f e c t mentioned i n subsection

(2), a court (including a federal court) i n

that State or Territory that imposes a federal sentence on a person or f ixes a non-parole period i n respect o f such a sentence must take i n t o account any period that the person has spent i n custody i n relation t o the offence concerned. "

Subject t o the one question t o which I must necessarily return, I am bound by the decision o f the majority o f the Full Court o f the Federal Court o f Australia i n Thonqchua v . Attornev-General for Commonwealth o f Australia

(1986) 6 6 ALR 340 . In that case the Attorney-General had

considered an application for a licence t o be a t large

pursuant to the Crimes Act (1914) S. 19A, and had declined to recommend to the Governor-General that she be granted such licence at this stage. The applicant sought reasons from the Attorney-General for his decision. The Attorney-General considered that the applicant was not entitled to make that request. The applicant then applied for an order pursuant to section 13(4A) of the Administrative Decisions (Judicial Review) Act 1977 that she was so entitled.

1k was held by Neaves and Burchett JJ., with Fox J dissenting, that the immunity from review under the Administrative Decisions (Judicial Review) Act of decisions by the Governor-General, extends to the actions of the Attorney-General in considering whether he is prepared in the circumstances of the particular case to advise the grant of a licence. The majority held that the Ministerial advice did not lose its essential constitutional character because it was in the negative, thus precluding the possibility of the grant of a licence. The ratio of the majority, as I understand it,

Honours said:  is contained in their observation at page 345 where their " In our opinion the immunity from review under the Judicial Review Act which is expressed in
terms of granting immunity to decisions by the
Governor-General extends to the action of the
Attorney-General in considering whether he is
prepared, in the circumstances of the
particular case, to advise the grant of a

licence . "

They held a t page 3 4 4 that what the Attorhey General d i d , namely, declining t o advise the grant o f a l icence, amounted t o a decision t o which the act applies.

In his dissenting judgment Fox J . said, at page 342 :

"	. . .a decision o f the Attorney-General that he
should not recommend to the Governor-General the grant o f a licence m a y be final and complete i n the sense that the papers do not go t o the Governor-General and the decision i s that o f the Attorney-General . We understand that t h i s i s what happens i n practice, namely that the Attorney-General only advises the Governor-General i n relation t o cases where i t i s proper that a licence be granted. I think
t h i s i s the bet ter view o f the section and o f
the way it i s intended t o operate. The matter
gets t o the Attorney-General because, as already mentioned, he i s the person nominated t o decide on whether the grant o f the licence should be recommended. That i s h i s essential role; he has t o decide whether the application should be recommended or not. I f not, there i s no notation o f advice t o the Governor-General. I t can be argued that a decision i n that si tuation would be more akin t o a failure t o recommend, b u t t h i s would s t i l l be a decision within the meaning o f the Judicial Review Act :
see S . 3(2) o f the Judicial Review Act. One thing that does not seen1 possible t o me i s t o regard the refusal or adverse decision by the Attorney-General a s constructively a decision

"

o f the Governor-General.

His Honour continued:

" I t seems t o me that the Attorney- General's decision that there not be favourable advice given t o the Governor General i s reviewable under the Judicial Review Act. I t i s a decision t o which S . 13 o f that Act applies. "

I am bound by the decision of the majority o f the Full

Court i n that case, and having regard t o the terms o f the

application for an order of review, it seems to me that, notwithstanding the primary concern of Mr Butcher is when, in fact, his conditional release date is, what is, in fact, sought to be reviewed is the decision of the Minister for Justice and Consumer Affairs, made on 29 June 1990.

Mr Butcher relies on the judgment of Burchett 3. in Sauires v. Attornev-General of the Commonwealth of Australia (1986) 12 FCR 84. In that case the Attorney-General's Department accepted the calculation made by New South Wales authorities as to the effect of S. 19 of the Commonwealth Prisoners Act 1967. His Honour said, at page 86:

" E f f e c t c a n n o t be g i v e n t o S . 19 w i t h o u t a n

o f f i cer o f the r e s p o n s i b l e d e p a r t m e n t t a k i n g

s t e p s t o a s c e r t a i n the p a r t i c u l a r c i r c u m s t a n c e s

wh ich would be r e l e v a n t t o a n a p p l i c a t i o n o f

the S t a t e l a w , and ( a t l e a s t i n the c a s e o f New

S o u t h W a l e s ) m a k i n g a q u i t e c o m p l e x c a l c u l a t i o n

u n d e r	c l .	1 8	o f	the	P r o b a t i o n	and	P a r o l e
R e a l a t i o n	1984	and	P t	X V	o f	the	P r i s o n s

R e o u l a t i o n s 1968. I t was not s u b m i t t e d t h a t ,

i f there	was	a	d e c i s i o n	w i t h i n	the	m e a n i n g	o f
the	J u d i c i a l	R e v i e w	Ac t	by	a n	o f f i c e r o f	the

A t t o r n e y - G e n e r a l ' S Depar tment , the a p p l i c a t i o n

was i n a p p r o p r i a t e l y framed a g a i n s t the

A t t o r n e y - G e n e r a l .	In	m y	o p i n i o n ,	the
c o r r e s p o n d e n c e	g i v e s	rise	t o	a n	inference,

wh ich I am p r e p a r e d t o draw, t h a t a d e c i s i o n

was made t o a c c e p t the d a t e o r i g i n a l l y

c a l c u l a t e d by the S t a t e a u t h o r i t i e s a s the d a t e

a t	wh ich ,	s u b j e c t	t o	a n y	f u r t h e r	v a r i a t i o n
wh ich m i g h t	o c c u r w i t h	the	p a s s a g e	o f	t i m e ,	the

a p p l i c a n t ' S minimum tern o f i m p r i s o n m e n t would

e x p i r e . "

His Honour distinguished both Steiner v. Attornev-General for Commonwealth of Australia (1983) 52 ALR 148, a judgment of Beaumont 3. which was approved by the majority of the Full Court in Thonachua v. Attornev-General (supra), and Thonachua's Case itself. Burchett. J in Sauires v. Attornev- General (supra) said. at p. 88:

It remains to consider whether the decision is excluded from review upon the principle of Steiner v. Attornev-General (1983) 52 &R 148 and Thonqchua v. Attorney-General (1986) 11 FCR 187. Those cases establish that the words, in S. 3(1) of 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 Thonachua's case were decisions under S. 19A of the Crimes Act 1914 (Cth) . 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 1914 and S. 3(2) of the Commonwealth Prisoners Act 1967. But the decision which I have held is involved in the present matter is a decision applying the provisions of S. 19 of the Commonwealth Prisoners Act 1967 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 1914, it is not essential to the Governor-General's decision that such a determination be made at all. "

In the present case no such statutory obligation

exists, and Mr Butcher frankly conceded that the practice

which is the foundation of his claim for eligibility for release on licence on 22 June 1990 has no statutory basis, and is based essentially on an understanding founded on anecdotal or hearsay evidence. In the view I take of the matter, what is sought to be reviewed is the decision by the Attorney General "not to grant to Kenneth John Butcher a licence to be at large." I find it impossible to distinguish the facts of

this case from those considered by the Full Court in Thonachua's Case and Steiner's Case, even though in those circumstances the application for release on licence sought to rely on special circumstances. That consideration does not permit a distinguishing of the ratio of each of those judgments.

The one matter to which I wish to make mention, however, concerns what seems to me to be the unsatisfactory state of the ministerial regime of non-portfolio ministers. In the Commonwealth Gazette of Monday, 13 March 1989, the Governor-General approved some administrative arrangements

there set out. In particular, he approved:

" 1.

The matters dealt with by each Department

of State include the matters specified in the
second column of the Schedule to this Order
opposite to the name of that Department in the
first column of that Schedule and other matters
arising under the enactments administered by
the Minister of State or each of the Ministers
of State, as the case may be, administering
that Department.

2. The enactment administered by a Minister

enactments specified in the third column of the of State administering a Department are the Schedule to this Order opposite to the name of

that Department and any enactment (whether passed before or after the date of this Order) that relates to a matter dealt with by that Department, not being an enactment specified in that column opposite to the name of another Department. "

In the Schedule, under "the Attorney-General's Department" the principal matters dealt with are set out in the second column in the following terms:

" Law and justice including -

Administrative law
Bankruptcy and insolvency
Business law and practice
Censorship
Consumer affairs
Copyright
Courts and tribunals
Human rights
Law reform
Legal aid

Marriage and family law and related

services

Legal services to the Commonwealth
Criminal law and law enforcement

National security, counter terrorism and

protective security policy and co-

ordination ' l

And in the third column is set out a number of enactments including, inter alia, the Crimes Act 1914 and the Commonwealth Prisoners Act 1967. In the Hansard of the House of Representatives of 8 May 1990, the Prime Minister sought leave to incorporate in Hansard two documents giving details of the Ministry. One is a list of Ministers and the offices they hold. He said at p. 14 of that Hansard:

" It shows those Ministers who constitute the

Cabinet and provides details of representation

arrangements in each chamber. "

He said of the other document: 

" The other document shows the responsibilities

of the non-portfolio Minister or Ministers in each portfolio where one or more Minister has been appointed. "

Under the heading, "Ministerial Office", appears the "Attorney- General" and "Minister for Justice and Consumer Affairs" as two separate entries. The Ministers are specified respectively as the Honourable Michael Duffy MP and Senator the Honourable Michael Tate. Each represents the other in the other's chamber and under the heading, "Department administered", each is designated "Attorney-General's". Mr Duffy has an asterisk against his office which indicates that he is a Minister in the Cabinet. Under the heading, "Responsibilities of Non Portfolio Ministers", appears "ATTORNEY-GENERAL - (The Hon. Michael Duffy, MP)" and then in broader type, "Minister fox Justice and Consumer Affairs - (Senator the Hon. Michael Tate)". Listed is a number of matters, including amongst others, federal prisoners. The list also contains the following:

" Territories matters coming within the Attorney-General's portfolio (other than the ACT Supreme Court, ACT Magistrates Court and corporate affairs involving the ACT). "

I refer to these matters because it seems to me that there is a real question that might have been relevant here as to whether the decision or conduct by Senator Tate as Minister for Justice and Consumer Affairs is properly to be characterized as a decision or conduct by him acting "for and

the Crimes Act and S. 19 of the Acts Inter~retation Act. The	on behalf of the Attorney-General" as referred to in S. 19A of
matter, given the way these proceedings have been framed, might be thought academic, but it potentially is a matter of serious moment.
Some of the constitutional problems were adverted to by Beaumont J in Zoeller v. Attorney General fCth.1 (1987)
76 ALR 267, particularly a t 278. In that case, the Prime
Minister wrote t o Mr Duffy by l e t t e r on 10 August 1987 asking
him i f he would act for and on behalf o f the Attorney-General
with e f f e c t from 9 August 1987 unt i l the Attorney-General returned t o duty. There was then (and that i s t o be contrasted with the material before me) an express request, which purported t o be acted upon, that Mr Duffy was acting for and on behalf o f the Attorney-General i n respect o f the matters then the subject o f l i t iga t ion . Beaumont J said a t
2 7 8 :

" On behalf o f the applicant i t i s submitted that the Constitution should be interpreted i n the l igh t o f the principle o f responsible government: see New South Wales v. Commonwealth (1985) 8 ALR 1; 135 CLR 337 at 364-5; Leslie Zines: The Hich Court and the Constitution, 2nd ed, p 223; that so interpreting S . 64 leads t o the conclusion that only one Minister can administer each Department o f State; and that it was not l a w f u l t o appoint two Ministers ( M r Hayden and Mr Duffy) t o administer the one Department o f Foreign A f f a i r s and Trade. The applicant r e l i e s , for t h i s purpose, upon the following comments by Quick and Garran: Annotated Constitution o f the Commonwealth o f Australia p 711:	---	-
' In some o f the Australian colonies the	practice has grown up o f including i n the	Cabinet one or more 'Ministers without
portfolios'; that i s t o say, menlbers o f the Executive Council who join i n the deliberations o f the ministry, and represent i t i n one o f the Chambers, b u t who do not administer any department. This practice i s especially resorted t o i n order t o secure the adequate representation o f a ministry i n the Upper House; but i t does not appear t o be
contemplated by t h i s Constitution. The heads
o f the chief departments are t o be ' t he Queen's Ministers o f State' - a phrase which appears t o mean not only that these o f f i c e r s are t o be Ministers o f the Queen, b u t that they are t o be t h e Ministers o f the Queen; i n other words, that a l l the Ministers o f State
are t o administer departments o f State. '

There i s n o a u t h o r i t y on the q u e s t i o n : see % E

( A u s t r a l i a ) P t v L t d	v.	(1986)	76 ALR	221.
But	o t h e r c o n s t i t u t i o n a l i s t s do	n o t	s h a r e	Qu ick

and Garran 's e a r l y v i e w . Geof frey Sawer:

' C o u n c i l s , M i n i s t e r s and C a b i n e t s i n A u s t r a l i a '

(1956) P u b l i c Law 110 s a y s ( p 1 2 4 ) :

' Even i f i n t e r p r e t e d w i t h the g r e a t e s t o f

s t r i c t n e s s , S . 64 o f the C o n s t i t u t i o n d o e s

n o t r e q u i r e	t h a t only one person	be	appo in t ed
t o a d m i n i s t e r a	Department	o f S t a t e ,	n o r does

it s a y a n y t h i n g a s t o the a l l o c a t i o n o f

a u t h o r i t y be tween s e v e r a l pe r sons so

appo in t ed . Hence, there i s n o c o n s t i t u t i o n a l

o b s t a c l e t o a p p o i n t i n g a Minister and an

A s s i s t a n t Minister t o a d m i n i s t e r the

Department o f Defence, b o t h b e i n g 'off icers'

and	their	r e s p e c t i v e	a u t h o r i t y b e i n g such	a s
Par l iament ,	o r the	common	sense	o f Cab ine t ,

d i c t a t e s , and b o t h pa id . '

Enid Campbell: "Adv i ce to the Royal Commission on A u s t r a l i a n Government Adnrinis trat ion ' (1976)

i s o f the same o p i n i o n ( p 2 4 ) .

There i s n o t h i n g i n the t e r m s o f S . 64 which would r e q u i r e it t o be read down i n the manner sugges t ed by the a p p l i c a n t . The language i s

general enough and there i s no l o g i c a l r e a s o n

t o restrict the a d m i n i s t r a t i v e arrangements

which m i g h t be d e s i r a b l e i n the interests o f

good government. O n the c o n t r a r y , there i s

every	reason	t o suppose	t h a t	f lex ib i l i ty	was
d e s i r a b l e	and	t h e r e f o r e	i n t e n d e d	t o	be

c o n f e r r e d .	Nor,	i n my	v i ew ,	i s	the	p r i n c i p l e
o f	r e s p o n s i b l e	governn~en	t	a n y	o b s t a c l e :	b o t h

Ministers would remain answerable t o

Par1 iamen t . In m y o p i n i o n , t o c o n f i n e the

o p e r a t i o n o f S . 64 i n the way contended f o r by

the a p p l i c a n t would r e q u i r e e x p l i c i t language.

In the absence o f such language , the p r o v i s i o n s

shou ld be l i b e r a l l y c o n s t r u e d s o a s t o a f f o r d a

proper o p p o r t u n i t y t o the E x e c u t i v e t o

i n t r o d u c e	a d m i n i s t r a t i v e	arrangements	which	a r e
a p p r o p r i a t e	i n	the	p a r t i c u l a r	c i r cums tances .

I t w i l l be remembered t h a t , i n the p r e s e n t

c a s e , Mr . D u f f y purported t o e x e c u t e the second

n o t i c e f o r o r on b e h a l f o f the A t t o r n e y -

Genera l . "

There i s n o such e x p r e s s acknowledgment i n the pre sen t

c a s e , and it was submi t t ed b y M r V i t a l i , c o u n s e l o n b e h a l f o f

the Attorney-General of Australia, that the inescapable inference from the material in the Government Gazette of 13 March 1989 and the announcement in Hansard to which reference has been made of 8 May 1990 is that Senator Tate, a non-portfolio Minister, in making decisions in those areas specifically referred to by the Prime Minister in Hansard, is necessarily to be taken as acting for and on behalf of the Attorney-General in respect of those matters so as to bring his conduct within section 19 of the Acts Interpretation Act.

I express my reservation as to the correctness of that view. It seems to me that it is by no means clear that the allocation of authority between a Minister of State within section 64 of the Constitution and a person who is said to be "a non-portfolio Minister" is necessarily to require the conclusion that conduct by such a non-portfolio Minister is conduct "for or on behalf of" a portfolio Minister as contemplated by section 19 of the Acts Interpretation Act. As earlier indicated however, this point is not a basis of the application for an order of review. The present matter falls

or possible bases.	to be determined on the case as claimed and not on theoretical
It seems to me that I ought, respectfully, follow the judgment of the majority of the Full Court in Thoncrchua's Case and hold that the application for an order of review filed on 23 July 1990 is not competent. And I also ought express the view that the fundamental basis on which Mr Butcher seeks to have his conditional release date set at earlier than 21 November 1990, rests for its acceptance on a factual basis which he would not be able realistically to make out. There is a degree of ambiguity as to the effect of the words expressed by his Honour Judge Boyce that he noted that "Mr. Butcher had already spent l0 months in custody", and that naturally has been a matter of real concern to Mr Butcher. But it seems to me plain, from the submission by MS Jackson and from the application of s . 166 of the Corrective Services
(Q) 1988, that were Mr Butcher to be a Queensland prisoner rather than a federal one, he would not be eligible for parole under the Queensland provisions until 21 November 1990. His application for an order of review seeks to procure for him an advantage which would not be open to him, were the fundamental idea, referred to in submissions to me as the "inter- jurisdictional parity aim", to be given full recognition.
I ought to uphold the notice of objection to competency. The application for an order of review is
dismissed with costs. I c e r t i f y t h a t t h i s and t h e 19

( n i n e t e e n ) preced ing pages a r e a

t r u e c o p y o f t h e reasons f o r

judgment	h e r e i n o f t h e Hon.
Mr.	J u s t i c e Spender.

.59,-4.,-.. 6 L k ~ ~ k , A s s o c i a t e

Date 2- 9 ~ f . ~ ~ ~ j l -

S o l i c i t o r s for t h e a p p l i c a n t : M r . Butcher i n person

Counsel	f o r	t h e r e s p o n d e n t :	f r . N.	V i t a l i
S o l i c i t o r s f o r	t h e r e s p o n d e n t :	Austn	Government	S o l i c i t o r

Date o f Hearing:	28 August 1990
Date o f Judgment:	28 August 1990