Colin George Dunstan v David Hambly
[2005] ACTSC 113
COLIN GEORGE DUNSTAN v DAVID HAMBLY
[2005] ACTSC 113 (10 November 2005)
EX TEMPORE JUDGMENT
ADMINISTRATIVE LAW – application for review of decision – whether decision made under an enactment
CRIMINAL LAW – sentence administration - parole – application by prisoner that chair of sentence administration board disqualify self for personal bias – whether decision is reviewable – whether decision is a decision made under an enactment
Administrative Decisions (Judicial Review) Act 1989 (ACT)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Rehabilitation of Offenders (Interim) Act 2001 (ACT)
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian National University v Burns (1982) 43 ALR 25
Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719
Excell v Harris (1983) 51 ALR 137
No SC 681 of 2005
Judge: Connolly J
Supreme Court of the ACT
Date: 10 November 2005
IN THE SUPREME COURT OF THE )
) No SC 681 of 2005
AUSTRALIAN CAPITAL TERRITORY )
COLIN GEORGE DUNSTAN
v
DAVID HAMBLY
REASONS FOR RULING
Judge: Connolly J
Date: 10 November 2005
Place: Canberra
THE COURT ORDERS THAT:
the application be dismissed;
the notice of motion date 10 October 2005 be upheld.
This matter comes before me this morning by way of a notice of motion to in effect dismiss an application for review brought pursuant to the Administrative Decisions (Judicial Review) Act 1989 (ACT) by the applicant, Colin George Dunstan, by way of an originating application of the 26 September 2005. Mr Dunstan seeks to review the decision of the respondent, the then Chair of the Sentence Administration Board, that he not disqualify himself on the basis of bias.
The notice of motion pleads the provisions of the rules of this court, that is to say it pleads that the application should be dismissed on the bases, (a) that there is no reasonable basis disclosed, (b) that the application is frivolous or vexatious, and (c) that the application is an abuse of process of the court.
I would say at the outset, I am proceeding here on the basis of (a) because it seems to me that the issues that are sought to be raised by Mr Dunstan could not be said to be frivolous or vexatious, they relate to a serving prisoner’s application for parole, which is a significant and important matter, nor that it is an abuse of process of the court, because a person is entitled to seek to agitate an issue going to their rights and an issue going to their potential application for parole and potential liberties. It is hard to see it could be described as an abuse of process.
The substance of the respondent’s objection is threefold, but there are really two points of real substance. The first, pursuant to Order 87 Rule 7, Mr Walker says there is no reasonable basis for the application disclosed because, Mr Walker says, the relief sought is effectively moot because it is a matter of fact that Professor Hambly, after many years of service as the Chair of the Sentence Administration Board and before that the ACT Parole Board, resigned from that office on 16 September 2005. And there is an affidavit of the Acting Secretary of the Sentence Administration Board been filed in these proceedings which is evidence of that fact, and that fact is common ground.
The second argument is that the proceedings disclose no reasonable basis because they are not properly brought pursuant to the Administrative Decisions (Judicial Review) Act, and I will deal with that aspect of the respondent’s case first.
The Administrative Decisions (Judicial Review) Act of the Territory, it is apparent from a perusal of the Act, broadly follows the form of the Commonwealth Administrative Decisions (Judicial Review) Act 1977, that is to say it seeks to provide a more streamlined and procedurally efficient method for citizens to challenge certain administrative decisions. Prior to the enactment of the Commonwealth Administrative Decisions (Judicial Review) Act, which has been followed and modelled in this territory and in some other states, but not all states, of Australia, the traditional method by which a citizen challenged an administrative decision was by way of the prerogative writs. The prerogative writs can be a procedural minefield for litigants, they can be difficult to proceed with, they can be an expensive and complex method of enforcing a right.
The purpose of the Commonwealth Parliament in passing the Administrative Decisions (Judicial Review) Act was to simplify that procedure, and it can be said that the same was the view of the Territory Parliament. Both Mr Walker and Mr Dunstan, in submissions before me today, have made reference to a number of decisions of the Federal Court and the High Court going to the correct interpretation of the Commonwealth Administrative Decisions (Judicial Review) Act, and it seems to me that both are correct in saying that guidance that we can seek from decisions concerning the Commonwealth Act is appropriate for the Territory Act.
Central to the structure of the Administrative Decisions (Judicial Review) Act is that it allows a citizen to use what I may call the streamlined procedure, which importantly includes applications for reasons for decisions, to challenge a decision under an enactment. It is not a general procedural statute which provides a general right of review of any what may be described as governmental decision.
That has been brought out in a series of cases, some of which were cited before me today, where decisions that were made by universities or arms, agencies of government exercising a commercial or quasi commercial aspect were sought to be challenged under the Administrative Decisions (Judicial Review) Act by reason of some sort of general overall statutory order to the agency to perform its functions in a business like manner or to act in the better interest of the institution. The courts have repeatedly said that that is not a sufficient ground to found a challenge (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Australian National University v Burns (1982) 43 ALR 25).
What must be established before an application can be entertained by a court under the Administrative Decisions (Judicial Review) Act, both of the Commonwealth and of the Territory, is that the decision under challenge is a decision under an enactment. I therefore asked Mr Dunstan to specify where was the statutory basis here, what was the statutory decision.
The Sentence Administration Board is a statutory creature that operates under the Rehabilitation of Offenders (Interim) Act 2001 (ACT). Sections 45 through to 52 of that Act set out a statutory regime whereby the Board is given a statutory responsibility to, under section 45, consider whether a sentenced offender should be released on parole in certain circumstances. It is then, under section 46, required to seek views of victims. Under section 47 it is given two choices in relation to its initial consideration, which is either to release or to defer. And under sections 49, 50 and 51 there is then a series of general powers in relation to subsequent re‑determination of a sentenced prisoner’s application, which can essentially involve three outcomes, that is to say, a decision to grant parole, a decision not to grant parole or a decision to defer the grant of parole.
Any of those decisions, it seems to me and it was conceded by Mr Walker, would be a decision under an enactment and on that basis amenable to review pursuant to the Administrative Decisions (Judicial Review) Act. That is not, however, the decision that is sought to be reviewed here. The decision that is sought to be reviewed here is a decision that Professor Hambly not disqualify himself. Professor Hambly considered Mr Dunstan’s application that he disqualify himself and set out a set of reasons, which are annexed to Mr McIntosh’s affidavit and was previously referred to, as to why he would not disqualify himself.
It is essentially that that Mr Dunstan says he wishes to challenge. And Mr Dunstan makes the reasonable point that it is an important question of public policy as to whether and to what extent the bias rule ought to apply, particularly to a body such as the Sentence Administration Board which on its face is statutorily required to consider and then, if not satisfied that parole be granted immediately, reconsider and further consider applications for parole. And there may be a real argument there that it would follow that it would be inappropriate for a person to disqualify themselves on further reconsideration because that is precisely what the Parliament has required them to do.
So there is a substantive question to be looked at there. But it would be inappropriate for this court to proceed to look at that question unless it is satisfied that there is a decision under an enactment.
The statutory provision that Mr Dunstan took me to as being the statutory provision under which a decision was made was section 75(2). Section 75 sets out the conduct of Board proceedings. Subsection (1) requires a full quorum of three members including a judicial member and two non‑judicial members. Subsection (3) gives it a broad power to conduct its proceedings as it considers appropriate. Subsection (4) allows telephone or closed circuit communications to be used. Subsection (5) says that if it is done that way that ...(indistinct)... present by the meeting. And subsection (6) goes to the nature of resolutions at the meeting.
Subsection (2), which is the section that Mr Dunstan has taken me to, provides that a question is decided by a majority of votes of members present and voting, but if the votes are equal the judicial member presiding has the casting vote. It seems to me that that procedural provision going to how the Board is to decide a majority question cannot be said to be the statutory provision that governs the exercise of an application for a bias disqualification by the judicial member or indeed by any other member of the Board.
I note that that was Professor Hambly’s view because he sets out in his reasons the absence of a specific statutory provision dealing with questions of law in the ACT legislation, and formed the view, which it seems to me was a proper view, that a bias application brought against the Chairperson is expressly not an application that ought be conducted by section 75(2).
It seems to me that that must be right. The law relating to a judicial or quasi judicial officer when the question of bias is raised is clear, and it is the personal responsibility on the judicial or quasi judicial officer to themselves ask the question as to whether a fair-minded observer would have an apprehension of bias - the test is set out, if I may say so, quite clearly in Mr Dunstan’s arguments. Mr Walker would not dispute that test. But it is a function that is clearly placed on the individual judicial officer, and that is made most clear by the situation that occurs in appellate or multi-member appellate courts or multi-member tribunals on a regular basis.
It is clearly the procedure that if an application for disqualification of one member for bias is brought there is a personal responsibility on that member to answer the question (Rogers v Wentworth [1998] NSWSC 505, generally see M Perry, Disqualification of Judges: Practice and Procedure Discussion Paper, The Australian Institute of Judicial Administration Incorporated, February 2001). If they get it wrong, the subsequent substantive decision of the body may well be called into question at later appellate proceedings or administrative review proceedings, but it is not the situation that that would go, if it be a multi-member tribunal, to a majority vote. Indeed, to do so would be entirely wrong.
If Professor Hambly, as the judicial member, was of the view that he ought to have disqualified himself for bias, but the two non‑judicial members, community members if I may use that term, were of a different view, it would have been entirely wrong for Professor Hambly to have sat on the basis that there was a 2:1 vote saying there is not a problem. If the Chair had been of the view that he ought not to sit, he ought not to sit, and he would be wrong if he relied on his colleagues to overrule his view.
Equally, if a judicial officer or a quasi‑judicial officer, having taken the oath to perform their function, was of the view that they ought sit it would be wrong of them to not sit, to abdicate that responsibility, on the basis merely of a majority vote of colleagues, particularly in circumstances under this Act where there is a Board established which is Chaired by a judicial member, being either a serving or retired judge or magistrate or a person such as Professor Hambly who would have the qualifications to be appointed to judicial office, it would be quite wrong for such a person to be bound, it seems to me, by the votes of community members.
So it seems to me that section 75(2) cannot be the statutory source of the decision that Professor Hambly made. Section 75(3) provides that the Board may conduct its proceedings as it considers appropriate. Well, it may be said, although it was not argued before me, that that may have been the source or guidance for Professor Hambly in going ahead to exercise his discretion, but that would not make that a decision under an enactment. That would fall into the frequently ruled upon category of a broad and general statutory power not being seen to be the source of an administrative decision. It would be in the category of general powers to administer a university or government department and not being the subject of a statutory right to an ADJR review in relation to commercial or other matters.
It seems to me that Professor Hambly was called upon to exercise here an important, proper and fundamental role of any person presiding over significant proceedings, that is to say an application was made as to whether he should sit by Mr Dunstan. Mr Dunstan had material that argued the position. Professor Hambly, it seems to me, quite properly treated that as a serious matter, as indeed he should. He considered the position, he set out his reasons in some 13 pages. It is not for me to say that those reasons are right or wrong on this application, but I make reference to it to show that Mr Dunstan’s application was brought seriously and, it seems to me, was dealt with seriously by Professor Hambly.
Mr Dunstan has chosen to bring this application not for review of the substantive decision of the Sentence Administration Board which has presumably followed to either not grant or to defer an application for parole. Such an application would be, it seems to me, a proper application. He has chosen to seek to bring the application to review specifically Professor Hambly’s decision not to disqualify himself on the basis of bias. It seems to me quite clear that that is not a decision under an enactment.
Therefore, it seems to me, there is no jurisdiction pursuant to the Administrative Decisions (Judicial Review) Act to entertain the matter, and although it does raise some interesting and potentially significant questions in relation to the administration of the parole regime in the Australian Capital Territory, it is not an application that has been properly brought, and therefore on that basis it seems to me that the respondent has made out that there is no reasonable basis for the application disclosed and I therefore ought to in effect dismiss the application and uphold the notice of motion.
As I have been entirely satisfied that the ADJR Act does not apply, it seems to me that it is unnecessary for me to go on to consider the question of mootness. Again that would, it seems to me, raise a significant bar to this application as, Professor Hambly having resigned from the Board, it would be futile to renew his decision as to whether or not he should sit (Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719, 733, Excell v Harris (1983) 51 ALR 137, 165.2). If, however, on a subsequent or pending application for parole Mr Dunstan is of the view that a failure to observe the rules of natural justice, which is an obligation clearly placed on the Board, has tainted a substantive decision under an enactment, it would be open for an application to be properly brought and the merits to be considered in due course. But this morning it seems to me that I must uphold the notice of motion because, it seems to me, the application is not properly brought pursuant to the Administrative Decisions (Judicial Review) Act.
I therefore dismiss the application for review.
Mr Dunstan, I will ask my associate to order a copy of the transcript of my reasons that I have just given. I will have that published as a record of a decision of the court and that will in due course be sent to you so you can consider what I have said.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.
Associate:
Date: 16 November 2005
Counsel for the Applicant: In person
Counsel for the Respondent: Mr Walker
Solicitor for the Respondent: ACT Government Solicitor
Date of hearing: 10 November 2005
Date of judgment: 10 November 2005
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