David Harold Eastman v ACT Executive
[2013] ACTSC 53
•25 February 2013
DAVID HAROLD EASTMAN v ACT EXECUTIVE
AUSTRALIAN CAPITAL TERRITORY
[2013] ACTSC 53 (25 February 2013)
ADMINISTRATIVE LAW – statutory interpretation – writ of mandamus – application for order under s 34B of the Supreme Court Act 1933 (ACT) for proper consideration of application for release on licence under s 295 of the Crimes (Sentence Administration) Act 2005 (ACT) – whether the ACT Executive or the Australian Capital Territory was the correct defendant – whether one or other of the defendants had any obligation to consider application for release on licence – where allocation of responsibility to consider application by Chief Minister to Attorney-General pursuant to s 43 of the Australian Capital Territory (Self-Government) Act1988 (Cth) – where no evidence of any determination of application in the form of a refusal pursuant to s 295 – whether power to grant a release on licence flowed from the prerogative of mercy and statute merely recorded the existing inherent power
Held: (1) for the purposes of s 43 of the Australian Capital Territory (Self-Government) Act 1988 (ACT) where the Executive, rather than a particular Minister, is given responsibility under an enactment of the Territory, the Parliament intended that the Territory be the body that would be responsible in law for the Executive’s conduct; (2) the power to release an offender on licence is available in two forms: the exercise of the prerogative of mercy; and for the limited class of persons such as the plaintiff, pursuant to Part 13.1 of the Crimes (Sentence Administration) Act 2005 (ACT); (3) the Attorney-General failed to consider request allocated to him by Chief Minister under s 43 of the Australian Capital Territory (Self-Government) Act 1988 (ACT) pursuant to requirements of s 295 of the Crimes (Sentence Administration) Act 2005 (ACT); (4) the Territory ordered to consider application for release on licence according to law
Australian Capital Territory (Self-Government) Act 1988 (Cth) ss 6(a), 7, 36, 37(b), 37(d), 38A, 39(1), 43
Court Procedures Act 2004 (ACT) ss 20, 21
Crimes (Sentence Administration) Act 2005 (ACT) ss 288, 290, 291, 292, 293(1), 293(2), 294(2), 295, 296, 298, 313, 314, 314A, Ch 13, Pt 13.1 and 13.2
Crimes (Sentencing) Act 2005 (ACT)
Crimes Act 1900 (ACT) ss 424, 475
Legislation Act 2001 (ACT) s 253
Supreme Court Act 1933 (ACT) s 34B
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 applied
Annetts v McCann (1990) 170 CLR 596 applied
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 applied
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 applied
Eastman v The Queen (1997) 76 FCR 9 referred to
Eastman v The Queen (2000) 203 CLR 1 referred to
FAI Insurances Ltd v Winneke (1982) 151 CLR 342 applied
PlaintiffM61/2010E v The Commonwealth (2010) 243 CLR 319 applied
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 applied
The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 applied
EX TEMPORE JUDGMENT
No. SC 440 of 2012
Judge: Rares J
Supreme Court of the ACT
Date: 25 February 2013
IN THE SUPREME COURT OF THE )
) No. SC 440 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:DAVID HAROLD EASTMAN
Plaintiff
AND:ACT EXECUTIVE
AUSTRALIAN CAPITAL TERITORY
Defendant
ORDER
Judge: Rares J
Date: 25 February 2013
Place: Canberra
THE COURT ORDERS THAT:
The second defendant consider whether to release the plaintiff on licence under s 295 of the Crimes (Sentence Administration) Act 2005 (ACT) in accordance with law.
The second defendant pay the plaintiff’s costs.
This is an application by David Eastman for an order under s 34B of the Supreme Court Act 1933 (ACT) requiring the Australian Capital Territory Executive or the Australian Capital Territory to properly consider his application made on 29 June 2012 under s 295 of the Crimes (Sentence Administration) Act 2005 (ACT) and to decide under that section whether to grant or refuse to grant him a licence releasing him from imprisonment.
Background
Mr Eastman was found guilty by a jury and convicted in this Court on 3 November 1995 of the murder of Assistant Commissioner Colin Winchester of the Australian Federal Police. On 10 November 1995 he was sentenced to imprisonment for life. Since then he has spent his time serving that sentence. Mr Eastman appealed unsuccessfully against his conviction to the Full Court of the Federal Court of Australia (Eastman v The Queen (1997) 76 FCR 9) and to the High Court (Eastman v The Queen (2000) 203 CLR 1). He has protested his innocence at all stages and has been the subject of decisions concerning whether inquiries into his conviction should be conducted under the provisions of the Crimes Act 1900 (ACT).
The first inquiry was held under s 475 of the Crimes Act and was conducted by a former Chief Justice of this Court, who reported on 6 October 2005. Mr Eastman sought a second inquiry under s 424 of the Crimes Act that had replaced s 475. On 4 April 2008, Besanko J declined to direct that an inquiry be held. In April 2011, Mr Eastman applied for a further inquiry under s 424 and that inquiry is to be conducted by an Acting Judge of the Court, Duggan J.
In the meantime, Mr Eastman made three requests for release on licence, first, on 29 June 2009, secondly, on 29 June 2010, and thirdly, which is the subject of this application, on 29 June 2012. On none of those occasions has a decision been made to release Mr Eastman on licence.
The issue that arises here is whether one or other of the defendants had any obligation to consider Mr Eastman’s most recent request for release under s 295 of the Crimes (Sentence Administration) Act, and if so, whether he has any entitlement to relief in respect of the way in which his request was dealt with.
The legislative scheme
The legislative scheme applicable is a little complicated. The Parliament of the Commonwealth enacted the Australian Capital Territory (Self-Government) Act 1988 (Cth). That Act provided that the Australian Capital Territory was established by that name as a body politic under the Crown (s 7) and in s 36 that “There shall be an Australian Capital Territory Executive”. The Executive has responsibility for executing and maintaining enactments and subordinate laws (s 37(b)) and exercising prerogatives of the Crown so far as they relate to the Executive's responsibility mentioned in, among others, s 37(b) (s 37(d)). An enactment may provide for the exercise by a member or members of the Executive of powers vested in the Executive by or under an Act (s 38A). The members of the Executive are the Chief Minister and such other Ministers as the Chief Minister appoints (s 39(1)). Relevantly, s 43 provides:
“43 Ministerial portfolios
(1)A Minister shall administer such matters relating to the powers of the Executive as are allocated to that Minister from time to time by the Chief Minister.
(2)The Chief Minister may authorise a Minister or Ministers to act on behalf of the Chief Minister or any other Minister.
(3)The Chief Minister shall publish particulars of such arrangements in the Territory Gazette.”
A reference to powers under the Self-Government Act includes a reference to functions or duties, unless the contrary intention appears (s 6(a)).
Chapter 13 of the Crimes (Sentence Administration) Act makes provision in respect of offenders for release on licence, remission of sentences, the grant of pardons and the independent operation of the prerogative of mercy. Part 1 of Ch 13 creates a special scheme that deals with the release on licence by the Executive of offenders who are serving sentences of life imprisonment for an offence against a Territory law and have already served at least 10 years of that sentence (s 288). Importantly, s 288 identifies that it is only offenders of that character to whom Pt 13.1 applies. By contrast, and importantly, Pt 13.2 contains provisions that the Executive may, in writing, remit partly or completely a sentence of imprisonment, a fine or other financial penalty or a forfeiture of property (s 313) and grant pardons (s 314). In addition, s 314A provides:
“314A Prerogative of mercy
The prerogative of mercy is not affected by—
· this Act
· the Children and Young People Act 2008
· the Corrections Management Act 2007
· the Crimes (Sentencing) Act 2005.”
Returning to the provisions of Pt 13.1, Div 13.1.2 deals with the grant of a licence, and relevantly, s 290 gives for a specific power to the Attorney-General as follows:
“290 Release on licence—request for board recommendation
(1)The Attorney-General may, in writing, ask the board to recommend whether an offender should be released from imprisonment on licence.
(2)If the board receives a request under this section, the board must hold an inquiry.”
Before starting an inquiry in relation to the release of an offender on licence, the board (being the Sentence Administration Board) must give written notice of the inquiry to the offender, the Director-General of the Department and the Director of Public Prosecutions (s 291). It must also seek the victim’s views and those of certain other persons under s 292. Only if the board considers that the offender’s release is appropriate, and after it has had regard to the principle that the public interest is of primary importance, may it make a recommendation for his or her release on licence under s 293(1). In making such a decision the board must have regard to the matters specified in s 293(2). Once it has conducted an inquiry in relation to the release of an offender on licence, the board must recommend in writing to the Executive whether the offender should be released from imprisonment on licence and, if so, it may recommend any condition not inconsistent with the Crimes (Sentencing Administration) Act and the Crimes (Sentencing) Act 2005 (ACT) that it considers appropriate to that person’s release (s 294(2)). Critically, s 295 provides:
“295 Release on licence—decision by Executive
(1)In deciding whether to release an offender on licence, the Executive—
(a)must consider any recommendation by the board under section 294 and its reasons for the recommendation; and
(b)may consider anything else it considers appropriate.
(2)The Executive may grant, or refuse to grant, the offender a licence to be released from imprisonment under the offender’s sentence.
(3)The Executive may impose any condition it considers appropriate on a licence.”
If the Executive decides to grant a licence to an offender, it must give the licence to the offender and identify in the licence any relevant conditions (s 296). Additionally, once the Executive makes a decision, under s 295, the Director-General must give written notice of that decision to the offender, the board, the Director of Public Prosecutions, the Chief Police Officer, and the Director-General, and she or the board may give notice of certain matters to any other appropriate entity or person including victims (ss 296, 298). Divisions 13.1.3 and 13.1.4 are concerned with the operation and supervision of licencees and are not relevant for present purposes.
The issue of the correct defendant
The Solicitor-General raised an issue as to whether Mr Eastman had identified the Executive as the correct defendant in his initial originating application. He properly did not object to Mr Eastman amending his originating application to add the Territory as an alternative defendant. The Solicitor-General drew attention to the Court Procedures Act 2004 (ACT) and, in particular, to s 21. Relevantly, that entitles persons to bring proceedings against the Crown, under the name “Australian Capital Territory”, in the same way as a proceeding between subjects. The Crown was defined in s 20 as including a Minister, instrumentality or agency of the Crown and a person prescribed by regulation. The Solicitor-General also drew attention to s 253 of the Legislation Act 2001 (ACT). That relevantly provides that a function given to the Executive under an Act may be exercised by any two Ministers acting in concert, and such an exercise is taken to be an exercise of the function by the executive (s 253(1) and (2)).
The issue, relevantly, is whether the Executive’s function of making a decision under s 295 of the Crimes (Sentencing Administration) Act was given to it, as a separate legal entity constituted by s 36 of the Self‑Government Act, or to the Crown in right of the Territory.
The Chief Minister published administrative arrangements under s 43 of the Self-Government Act that allocated to the Attorney-General the administration of powers of the Executive under the Crimes (Sentence Administration) Act. The current arrangement was published in the Territory Gazette as the Administrative Arrangements 2012 (No 1): see Schedule 2 Part 2.6. Clause 4 of that arrangement provided that, for the purposes of the Self-Government Act, Ministers, who were relevantly given portfolio responsibilities earlier in the arrangement, were responsible for matters relating to the powers of the Executive in, among others, executing and maintaining the Territory enactments in Sch 2 under the reference to “the Minister” (cl 4(b)) and exercising the prerogatives of the Crown for the matters mentioned in that subclause (cl 4(d)). Any Minister was relevantly authorised to act on the Chief-Minister’s behalf or on behalf of another Minister for the purposes of s 43(2) of the Self-Government Act (cl 5).
The factual background
The facts in this matter are within a narrow compass. Mr Eastman makes no complaint in the present application in relation to the way in which each of his earlier applications in 2009 and 2010 for release was decided.
On 29 June 2012, he wrote to the Chief Minister seeking release on licence under s 295 of the Crimes (Sentence Administration) Act. His letter pointed out that the Act did not specify to whom such an application should be addressed, but noted that the Executive could decide whether to grant the application or not. Mr Eastman claimed to have satisfied all the relevant criteria for release on licence listed in s 293(2), being considerations that the board might take into account in making a recommendation, were it appointed to report pursuant to s 290. The letter reiterated that he had protested his innocence from the outset, and that, at that stage, he had applied to the Court for a further inquiry to be held into his guilt or innocence. He stated that he believed it to be unreasonable to expect him to accept responsibility for an offence he did not commit.
On 12 August 2012, having heard nothing in response, he wrote again to the Chief Minister. Again, there was no response. On 30 August 2012, his solicitor wrote to the Chief Minister asking for advice as to the progress of her deliberations on Mr Eastman’s application for release on licence under s 295.
On 3 September 2012, the Chief Minister responded, thanking Mr Eastman’s solicitor for her letter of 30 August 2012 and continued by stating:
“… regarding application made by Mr David Eastman for release on licence under section 295 of the Crimes (Sentence Administration) Act 2005.
I have asked my colleague, Mr Simon Corbell MLA, as Attorney-General for the ACT to consider Mr Eastman’s request on behalf of the Executive.
I expect that the Attorney-General will reply to Mr Eastman shortly.” (emphasis added)
In the absence of any response, on 9 November 2012, Mr Eastman’s solicitor wrote again to the Chief Minister noting that his previous applications for release on licence dated 29 June 2009 and 29 June 2010 had been rejected by the Attorney-General without requesting any recommendation from the board under s 290 of the Act. The solicitor asked that the Chief Minister ensure that the request for a recommendation by the board was made on that occasion in order for Mr Eastman’s application to be properly considered. The solicitor drew attention to the decision by this Court on 3 September 2012 that found that there were doubts and questions about Mr Eastman’s guilt and that there was a significant risk that his conviction was unsafe (that being the subject matter of the current inquiry).
On 13 November 2012, the Attorney-General wrote to Mr Eastman, referring his letter addressed to the Chief Minister of 29 June 2012 “conveying your third request to be released on licence under Chapter 13 of the Crimes (Sentence Administration) Act 2005”. The Attorney-General noted Mr Eastman’s solicitor’s letter of 9 November 2012 and said that he had been asked by the Chief Minister to respond. His letter continued:
“Aside from your assertion that your behaviour in custody has improved since your last letter and you have undertaken some voluntary work within the Alexander Maconochie Centre, you have put forward nothing which would cause me to consider again exercising my power to ask the Sentence Administration Board to make a recommendation regarding your release.
Finally, I note that you still deny your guilt for the offence for which you are convicted and that your conviction is now the subject of an inquiry by a judge of the Supreme Court.” (emphasis added)
Who is the correct defendant?
The first issue is to determine who the correct defendant is. In my opinion the legislative command in s 36 of the Self-Government Act, that there shall be an Australian Capital Territory Executive, was not intended to create a body in that name as a separate legal personality capable of being sued. Analogously, s 62 of the Constitution of the Commonwealth provides that there shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth. When actions by the Governor-General-in-Council are challenged, the Commonwealth, and not the Federal Executive Council, is the usual and appropriate defendant in proceedings of this nature.
The Self-Government Act created the Territory as a body politic under the Crown. The officers of the Executive, including Ministers, act on behalf of that body politic. I am of opinion that where the Executive, rather than a particular Minister, is given responsibility under an enactment, the Parliament intended that the Territory be the body that would be responsible in law for the Executive’s conduct. Even if I am wrong in that construction, Mr Eastman will not fail for having sued the wrong defendant, because it is accepted that one or other of his nominated defendants is the appropriate one in the circumstances.
The defendant’s submissions
The Solicitor-General accepted that there is no evidence of any determination of Mr Eastman’s application for release on licence in the form of a refusal pursuant to s 295. In my opinion, that concession was correct. The Attorney-General’s letter of 13 November 2012 made clear that the only decision he made was to decline to exercise his power to ask the board to make a recommendation under s 290(1) concerning Mr Eastman’s release. Moreover, had the Executive or the Attorney-General made a decision under s 295, each had an obligation to communicate it to the relevant persons under ss 296 and 298, and no such communication was in evidence.
The Solicitor-General argued that the provisions of Pt 13.1 were a statutory adjunct to the exercise of the royal prerogative of mercy. He contended that Ch 13 provided a structure around the consideration of whether to grant an offender a release on licence, but that the decision to grant such a release was still an exercise of the prerogative power. He argued that Ch 13 established a framework for certain aspects of the decision-making process relating to release on licence of offenders to whom Pt 13.1 applied and that ss 290-294 inclusive established a statutory process that was ancillary to the prerogative grant of release on licence. He contended that the power to grant release on licence was conferred on the Executive and flowed from the fact that the prerogative of mercy was a function exercised by the Executive.
He submitted that s 295 imposed few limits or conditions on the grant of release on licence. In particular, he argued that s 295 conferred no right on offenders to apply for such a release, imposed no duty on the Executive to consider an application or to seek a recommendation from the board, contained no limitation on the considerations that the Executive could rely upon in arriving at a decision, did not impose any procedural fairness obligations on the Executive and did not limit the conditions that it might impose in any grant of a release on licence.
The Solicitor-General argued that a decision to refuse to release an offender on licence was either an exercise of the prerogative or of a statutory power of the Executive. In that context he argued that the statute merely recorded an existing inherent power reflected in the prerogative.
He said that the letter of 13 November 2012 was a decision involving the exercise of a statutory power ancillary to the prerogative. The Solicitor-General argued that this was to be contrasted with a decision in other jurisdictions involving the referral of a petition of mercy by an Attorney-General to a Governor or a decision involving referral of matters to a court or statutory authority to make relevant findings or recommendations.
Is Mr Eastman entitled to any relief?
In my opinion, that argument founders at the first step. Part 13.1 is a statutory codification of a process applicable to a certain, limited, class of offender that operates in addition to, and not in derogation of, the royal prerogative of mercy. That prerogative is expressly preserved and left entirely unaffected by force of s 314A.
In Portia’s monologue from the Merchant of Venice, Act 4, Scene 1, she famously said that:
“The quality of mercy is not strain’d.
It droppeth as the gentle rain from heaven
upon the place beneath: it is twice blest;
it blesseth him that gives and him that takes:
‘tis mightiest in the mightiest: it becomes
the throned monarch better than his crown.”
In contrast to the breadth of the prerogative of mercy that Portia invoked in addressing the Duke, Pt 13.1 contains elaborate provisions dealing with the exercise of the power under s 295(1) to release an offender in the particular class specified in s 288.
The task of statutory construction commences with a consideration of the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at 46-47 [47] per Hayne, Heydon, Crennan and Kiefel JJ. Their Honours held that historical considerations and extrinsic materials could not be used to displace the clear meaning of the text, and that the actual language used by the legislature was the surest guide to its intention. Importantly, they said that the meaning of the text may require consideration of the context, including general purpose and policy of a provision, in particular the mischief it sought to remedy. The context includes the legislative history and extrinsic materials: Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 at 268 [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ.
Here, the power to release an offender on licence in a case such as Mr Eastman’s is available to the Executive in two forms: first, in exercise of the prerogative of mercy, unconstrained by the statutory considerations in Pt 13.1 of the Crimes (Sentence Administration) Act, and secondly, in respect of a limited class of persons, such as Mr Eastman, to whom that Part applies. The procedures set out in that Part affect the exercise of the power.
Importantly, as the Solicitor-General identified, while s 288 specifies the persons to whom Pt 13.1 applies, it does not grant a right to those persons, or anyone else who may wish to seek the exercise by the Executive, of the power to release on licence that require that any such applications will be considered or determined. The structure of Pt 13.1 confers a broad discretion on the Attorney-General to ask the board to make a recommendation whether an offender should be released from imprisonment on licence. The discretion is unconfined except so far as the subject matter, scope and purpose of the Act, and in particular Pt 13.1 operates to limit it: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ.
There is nothing in Pt 13.1 that directly operates upon the Attorney-General’s exercise of the power in s 290(1) to request the board to recommend whether an offender should be released on licence, except to the extent that such a recommendation is a factor that must be considered by the Executive in deciding whether it will exercise its power to release the person under s 295(1)(a). However, a recommendation by the board is not a precondition to the Executive making a decision under s 295 unless the board actually has made a recommendation. If the board has not been asked by the Attorney-General to make a recommendation under s 290, the Executive is entitled to consider such an application at large, exercising the broad and unconfined discretion given by s 295(1)(b), subject only to having regard to the subject matter, scope and purpose of the Act, and in particular Pt 13.1.
Importantly, Pt 13.1 creates particular provision for a special class of prisoner over and above the availability, by force of s 314A, of the prerogative to such persons in any event. Both the existence of the prerogative power and, by reason of the structure of Pt 13.1, the separate, statutory power to consider whether to make a decision to grant release on licence raise the question of whether Mr Eastman has any basis for asserting that he can enforce an obligation of the Executive to deal with his application.
In PlaintiffM61/2010E v The Commonwealth (2010) 243 CLR 319 the High Court dealt with a situation that raised somewhat similar issues, although in a different legislative context. There, persons were held in immigration detention while processes were followed for the purposes of enabling the Minister to consider whether or not he would exercise his powers to grant those persons visas in Australia that he had no legal obligation to grant. Under that scheme, if the inquiries, including by an independent merits reviewer, resulted in a determination unfavourable to the detainee, that person’s case was not put before the Minister for his consideration. The inquiries were conducted for the purposes of enabling the Minister to consider whether or not to exercise a power in circumstances where he had no obligation to his consider that question at all.
The Court held that the detainees were entitled to procedural fairness in the conduct of those inquiries. That was because the power to detain the persons in immigration detention was being exercised while the inquiries were made to enable the Minister to inform himself as to whether or not he would consider exercising his power. French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said (243 CLR at 350 [70]):
“Exercise of the powers given by ss 46A and 195A is constituted by two distinct steps: first, the decision to consider exercising the power to lift the bar or grant a visa and secondly, the decision whether to lift the bar or grant a visa. The Minister is not obliged to take either step. Sections 46A(7) and 195A(4) expressly provide that the Minister does not have a duty to consider whether to exercise the relevant power.” (emphasis in original)
The Court held that because the inquiries that the Minister caused to be undertaken were made after a decision had been made to consider exercising the relevant powers, and for the purposes of informing the Minister of matters that were relevant to that exercise, those undertaking the inquiries had to accord the principles of natural justice to the detainees (see 243 CLR at 351-353 [73]-[75]). Their Honours affirmed that when a statute confers power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the principles of natural justice or procedural fairness generally regulate the exercise of that power. They affirmed that the principles of procedural fairness may be excluded only by plain words of necessary intendment, referring to Annetts v McCann (1990) 170 CLR 596, at particularly 598, per Mason CJ, Deane and McHugh JJ and Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 258-259 [11]-[13]. Those principles are applicable wherever a person has power to destroy, defeat or prejudice, not just rights, but also interests or privileges. Their Honours in approving remarks of Mason J in FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 360, said at [75] that:
“… [t]he obligation to afford procedural fairness is not limited to cases where the exercise of the power affects rights in the strict sense, but extends to the exercise of a power which affects an interest or a privilege.”
In my opinion, the Chief Minister's letter of 3 September 2012 conveyed to Mr Eastman that the delay in responding to his letter of 29 June 2012 was because the Executive was considering his application under s 295 and that the Chief Minister had allocated that exercise of the power, including the functions or duties related to it (see s 6(a) of the Self‑Government Act) to the Attorney-General. That letter stated that she had asked the Attorney-General “to consider Mr Eastman’s request on behalf of the Executive” being his request that she accurately described as one made under s 295.
However, the Attorney-General’s reply dated 13 November 2012 did not advert to any consideration of whether or not Mr Eastman should be released on licence under s 295 at all. Rather, the Attorney-General considered only whether he should refer the matter to the board pursuant to his power under s 290. That was a possible, but not necessary, step in the process of the Executive making a decision under s 295. Because it was not a necessary step in such a consideration, the Attorney-General constructively failed to exercise the function under s 295 that the Chief Minister had allocated to him by her letter of 3 September 2012 to namely, consider whether Mr Eastman should be released on licence.
Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 96 [16]:
“Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the process by which the decision would be reached.” (original emphasis)
In my opinion, the Attorney-General failed to consider Mr Eastman’s request for release on licence under s 295 in accordance with the allocation to him of that responsibility by the Chief Minister’s letter of 3 September 2012. While the Attorney-General was entitled to make a decision under s 290(1) not to ask the board for a recommendation as to whether Mr Eastman was to be released on licence, he still needed to consider the request under s 295 in accordance with the Chief Minister’s allocation of that function to him and make a decision on it. As the Solicitor-General conceded, that has not occurred.
Additionally, I note that the Attorney-General failed to take into account, as demonstrated in his letter of response, the fact that Mr Eastman had served three more years’ imprisonment since his initial request for release on licence had been made, and two more years of his sentence since the previous request of 29 June 2010.
Conclusion
For these reasons Mr Eastman is entitled to relief in the form of an order in the nature of a writ of mandamus requiring the Territory to consider whether to release him on licence under s 295 of the Crimes (Sentence Administration) Act 2005 (ACT) in accordance with law. He is also entitled to an order for costs.
I certify that the preceding forty four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Rares
Associate:
Date: 28 March 2013
Counsel for the Plaintiff: Mr J Masters
Counsel for the Defendant: Mr P Garrison S-G
Solicitor for the Defendant: ACT Government Solicitor
Date of hearing: 25 February 2013
Date of judgment: 25 February 2013
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