Clive George Richards v The Secretary, Attorney Generals Department

[1985] FCA 690

IN THE FEDERAL COURT OF AUSTFG-LIA	)
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NEW SOUTH MALES DISTRICT REGISTRY	) ~ J o . G.192 of 1985
)
GENEF?AL DIVISION	1

CLIVE GEORGE RICHARD

Applicant

THE SECRETARY,

ATTORNEY GENERAL'S DEPARTMENT

Respondent

September 1985 Franki J.

REASONS FOR JUDGMENT

The applicant Clive George Richards was sentenced to 5

gears imprisonment to commence on 18 August 1980 for offences under

the Crimes Act 1914. On 3 August l982 he was released from prlson

under a licence from the Governor General. On 8 AuTust 1983 he

was returned to prison as a result of sentences imposed for 2

convictions f o r offences under a State Act. On 11 August 1983 he

was convlcted and sentenced in respect of a further offence under a

State Act. On 22 November 1983 the Attorney-General advised that

In January 1984 he would recommend to the Governor-General that the

applicant's licence be revoked a few days before 7 February 1984.

On 27 January 1984 the Governor-General revoked the applicant's

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licence as a result of his conviction for offences under a State

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Act. On 28 January 1984 the applicant escaped from prison without

having been notified that his licence had been revoked by the

Governor-General. On 12 June 1985 the respondent notified the

applicant by letter inter alia as follows:-

"But the fact of your escape from lawful

custody has been established. You however

lost remission of all the sentence YOU

were servlnq at the time of your escape."

A slmilar letter was sent on the same day to the applicant's

solicitor which stated inter alia, "The Department of Corrective

Services, N.S.W., has advised this Department that your client will

complete service of his Federal sentence on 4 July 1986. The

Attorney-General considered his case on 28 May 1985. He has

approved that your client be considered f o r possible release on

licence on 7 October 1985. Prison and parole reports have been

requested for the review, and your client's cse will be submitted

for the Attorney-General's consideration when the reports have been

received.

The matter before me is an application under the

Administrative Decisions (Judicial Review) Act 1977 (the Act). Section S of the Act provides, in substance, that a person who is

agrleved by 9 decision to which the Act applies may apply to the

Federal Court for an order of review In respect of the decision on

a number of grounds, one of which is that the decision involves an

error of law, and another that the decision was otherwise contrary

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to the law.

The respondent filed a notice of objection to competency

upon the ground that the application was not made in respect of a

decision within the meaning of the Act.

Both parties asked me not to hear the objection to

competency before hearing the case on the merits and	I	heard
argument on all issues.

It appears that the applicant made some application to the

New South Wales Court of Criminal Appeal in April 1985 but both

parties took the view that nothing then before the Court	was of any
relevance.

The determination of jurisdiction in this case depends upon

whether any decision as defined under 5.3 of the Act was made.

Such a declslon must be, inter alia, decision a of an

administrative character made, proposed to be made, required to be

made, as the case may be (whether in the exercise of a discretion

or not) under an enactment. So far as is relevant an enactment

(which includes a part of an enactment) means an Act of the

Commonwealth Parliament instru(i cluding an or

rules,regulations or by-laws) made under such an Act.

I was referred to s.120 of the Commonwealth of Australia

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Constitution Act which obliges every State to make provlsion for

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the detention in its prisons of persons convicted of offences

against laws against the Commonwealth and for the punishment of

such persons, and empowers the Parliament of the Commonwealth to

make laws to give effect to this provision.

Section 19 of the Commonwealth Prisoners‘ Act 1967

provides, “The provision of a law of a State or Territory relating

to the reduction or remission of sentence or minimum terms of

imprisonment apply to a federal offender who is serving a sentence

of imprisonment in a prison of that State or Territory in like

manner as those provisions apply in relation to a S ate offender or

a Territory offender serving a sentence of imprisonment in that

prison.	‘I
The substantive issue on the merits is whether or not the

applicant lost remission from his Commonwealth sentence a3	a result
of his escape from lawful custody on 27 January 1984.

Counsel for the applicant argued the case upon the basis

that the relevant decision was that of the respondent which had

been conveyed to the applicant by letter of 17, June 1985 and as I

understand his argument, that the enactment under which	it was made
was 5.19 of the Commonwealth Prisoners‘ Act 1967.

Although the question of the competency of the court was

not	argued	first,	I will	consider	it	first	as	it	goes	to
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jurisdiction.

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Counsel for the applicant submitted that the letter or

letters of 12 June 1985 were insufficient to fall within the word

"decision". This was put shortly in several ways. Firstly, the

question of the loss of remission was one for the relevant State

authority and the letters simply conveyed advice which the

Attorney-General's Department had received from the State

authorities and there was therefore no decision in any real sense

in it and furthermore that it was not made under any enactment that

fell within the definitions in s.3 of the Act in the sense that it

was made under a State law. It is of some interest to note that

the applicant received a letter dated 20 June 1985 from the Chief

Administrative .Officer of the New South Wles Department of

Corrective Services, the body of which reads as follows:

"I refer to your recent letters concerning

the expiration of your Federal sentence.

At the outset, I should emphasise that the

expiration of your Federal sentence is a

matter solely for the determination of the

Federal authorities that and the

Department of Corrective Services can only

calculate the expiration of your Federal

sentence strictly in accordance with the

advice provlded Fed ral the by

authorities.

In accordance with the advice provided by

the Federal Attorney-General's Department

on 15th April, 1985, the expiration of

your Federal sentence presently is

calculated as being 4th July, 1986.

I shall once again polnt out that if you

have any enquiries, regarding your Federal

sentence,-they should be directed to the

Secretary, Attorney-General's Department,

Robert Garran Offices, Natlonal Circuit,

6.

Barton, A.C.T., 2600."

The applicant relied on Evans v. Friemann (1981) 35 ALR 428 (Fox

ACJ.) and Higgs v. Federal Commissioner of Taxation (1984) 84 ATC

460 (SWEENEY J.). The judgment in Hisss v. Federal Commissioner

of Taxation depended on the fact that once an objection to an

assessment had been effectively withdrawn there was no occasion for

the Commissioner rto make any decision because no objection was on

foot. In the present case the applicant is endeavouring to secure

his release from prison arguing that this is justified soon upon a

proper interpretation of the law. Neither party argued the

question of the competencey of the court in any great detail and I

do not consider this is an appropriate case to dear1 with the

question in detail. I am however of the view that the court has

jurisdiction to consider the question raised. The letter

represents a conclusion conveyed to a prisoner seeking release. I

was not referred to Lamb v. Moss (1983) 49 ALR 533 where a Full

Court of this Court dealt exhaustively with the question of what

was a decision. At pp 555-557 of the ~oint judgment It was said

that a broad practical approach should be taken to the language of

the Act. The question of whether a declslon was made "under an

enactment" was dealt with at pp 559-564.

Although I have some hesitation in reaching a firm view

that the Court has jurisdiction, I have reached the conclusion that

it has, and I will proceed on that basis.

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I also have in mind the limited argument presented upon the

question of jurisdiction, the conclusion that I have reached on the

merits, the letter from the New South Wales Department of

Corrective Services, the request by both parties that I should hear

the objection to competency at the same time as I heard the

argument on all issues, the ever present possibility of an appeal

and the faith that the liberty of the subject is evidence.

In my opinion 5.19 of the Commonwealth Prisoners' Act sets

up a scheme whereby the relevant sections of the Prisons Act

(N.S.W.) and the Prisons' Regulations made under that Act are to

apply to federal offenders in a State Prison in respect to the

"remission of sentences" that I am considering is one made in

pursuance th s heme. of (See generally Parkes Rural

Distributors Ptv. Ltd. v. Glasson (1983) 48 ALR 601).

It was submitted for the appllcant that at the time he

escaped he was not serving a Commonwealth sentence because he had recelved no notice of the revocation of the licence which had been

made the previous day. My attention was directed to s.19A of the

Crimes Act (1914). That section deals with the granting of

licences for offenders to be at large. Section 19A ( 5 ) empowers

the Governor-General to vary, revoke or impose conditions of a

licence, or to revoke a licence. Section 19(b) provides that the

varying or imposing of a condition does not have effect until

notice has been given to the person to whom the licence has been

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granted. No similar requirement is made in regard to notice with

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respect to revoking of condition or revoking a licence. Section

19A(7) provides, inter alia, that where a licence is revoked, the person to whom it had been given may be arrested without warrant and s.lgA(10) provides, "Where a licence granted to a person who,

a t the tlme of the grant was serving a term of imprisonment, is

revoked or cancelled, the person may, subject to sub-section (12)

be detained in prison to undergo imprisonment for the time of that

term that he had not served at the time when he was released from

prison in pursuance of the licence". Section 22 of the

Commonwealth Prisoners' Act, 1967, specifically perceives the

operation of s.19A of the Crimes Act.

I am satisfied that the licence was effectively revoked on

27 January 1984 and had effect on that date without need for

notification to the applicant. Consequently I hold that, when the

applicant escaped from prison, he was serving a sentence in respect

of the Federal offence he had committed.

Counsel for the respondent also agreed that the release on

llcence did not stop the sentence running. He relied on statements

about the effect of escape by Brennan J. at p. 304 and Masor,

Murphy, wil50n and Dearie JJ at pp.301-302 in M a n v. McConaqhv

(1984) 58 A.L.J.R. 299 in support of this preposition. This

argument seems correct but I prefer to base my findings on the view

I have expressed concerning the effect of the revocation of the

licence. An alternative submission on behalf of the applicant was - ..

that he could not have been convictPd of the offence of escaping

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from custody pursuant to 3 .47 of the Crimes Act (1914) because he

had no knowledge that his licence had been revoked.

In my oipinion there are two answers to this argument. The

first is that at the time of his escape he was in lawful custody

and that he was escaping from prison without authority and the

second that a conviction for escaping from lawful custody does not

appear to me to be a question I have to consider. It was common

ground that the applicant had suffered a penalty for escaping under

S . 34 of the Prisons' Act (1952 (N.S .W.) . Section 19 of the

Commonwealth Prisons' Act does not appear to apply to the offence

of escape from prison. Section 47 of the Crimes Act appears to

deal with the. penalty for escaping from lawful custody after

conviction for any offence against the law of the Commonwealth.

Regulation 113(2) of the Prisons Regulations 1968 ( N . S . N . )

provides, "A prisoner who escapes from prison shall forfeit all his

entitlement to remission that has been granted in accordance with

Regulation 110 or 111". It was common ground that the remlssions

that I am asked to consider fell within one or other of these

regulations. I was not referred to any authority upon the

relatlonship of any, between the effect of conviction and penalty

for the offence of escaping from lawful custody and the forfeiture

of entitlement to remission. As I have said, counsel for the

applicant argued that 3.19 of the Commonwealth Prisoners' Act

(1967) applied. This ection clearly embraces questions of

remission of sentence and includes the provisions of reg. 113(2) of

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the Prisons' regulations. I consider req. 113(2) applies and the

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applicant on his escape forfeited his entitlement to remission.

A last alternative submission for the applicant was based

substantially on arguments relating to the question of the rules of

natural justice. No oral argument was directed to these issues and

I am not prepared to find in favour of the aplplicant upon them.

I dismiss the applications. I will hear any submlssions

on the question of costs.