Telford v Severin
[2007] SASC 176
•17 May 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
TELFORD v SEVERIN & ANOR
[2007] SASC 176
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice White and The Honourable Justice Kelly)
17 May 2007
CRIMINAL LAW - ADMINISTRATION OF PRISONS - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA
Application by plaintiff for release on home detention – amendments made to the Correctional Services Act (CSA) after plaintiff sentenced and prior to application for release on home detention – amendments increased the period of time to be served by a prisoner before being eligible for home detention - plaintiff seeks declaration that his application be determined in accordance with provisions of the CSA as at the time of sentencing – plaintiff also seeks judicial review in nature of certiorari to quash decision of the Chief Executive Officer to refuse to consider application and in nature of mandamus to compel Chief Executive Officer to consider plaintiff's application – the common law presumption against retrospective operation does not apply - amendments to the CSA operate prospectively to regulate any future release on home detention – decision to release on home detention at absolute discretion of the Chief Executive Officer – home detention provisions administrative in nature - no statutory right conferred on the plaintiff – plaintiff does not possess an accrued or acquired right within the meaning of s 16 of the Acts Interpretation Act – Held: application for declaration refused. Application for judicial review in nature of certiorari and mandamus dismissed.
Acts Interpretation Act 1915 s 16(1) and s 16(2); Correctional Services Act 1982 s 22(2), s 24(1), s 27(1) and (2), s 37A; Industrial Relations Act 1988 (Cth) s 127A(2), referred to.
Robertson v City of Nunawading [1973] VR 819; In re a Solicitor's Clerk [1957] 1 WLR 1219, applied.
Mathieson v Burton (1971) 124 CLR 1; Doro v Victorian Railway Commissioners [1960] VR 84; Gerrard v Mayne Nickless Ltd (1996) 135 ALR 494; Maxwell v Murphy (1957) 96 CLR 261; In Re Athlumney; Ex parte Wilson [1898] 2 QB 547, distinguished.
TELFORD v SEVERIN & ANOR
[2007] SASC 176Full Court: Duggan, White and Kelly JJ
DUGGAN J. On 22 April 2002 the plaintiff was sentenced on fraud charges to imprisonment for 14 years with a non-parole period of nine years and six months. The court ordered that the head sentence and non-parole period commence on 8 April 2002.
The plaintiff applied for release on home detention on 28 November 2006. However, he was advised by the Department of Correctional Services (“the Department”) that he was not eligible for release on home detention because of an amendment to s 37A of the Correctional Services Act 1982 (“the Act”) which provides that the release of a prisoner on home detention is not to occur earlier than one year before the end of a prisoner’s non-parole period. The amendment came into operation on 17 November 2005.
At the time the plaintiff was sentenced, the Act gave the Chief Executive Officer of the Department a discretion to release a prisoner from prison to serve a period on home detention after the prisoner had served at least one-half of the non-parole period.
On 8 January 2007 the plaintiff had served one-half of his non-parole period. However, as has been pointed out, s 37A was amended on 17 November 2005. If the amendment applies in the case of the plaintiff, he cannot be released on home detention until 8 October 2010.
In these proceedings the plaintiff seeks a declaration that he is entitled to have his application for release on home detention determined in accordance with the provisions of the Act which applied prior to the amending legislation. In addition, he seeks judicial review in the nature of certiorari to quash the decision of the Chief Executive Officer to refuse to consider his release on home detention. He also seeks judicial review in the nature of mandamus to compel the Chief Executive Officer to consider the application for release dated 28 November 2006.
According to the argument, the plaintiff acquired a right at the time he was sentenced to have any future consideration of release on home detention dealt with in accordance with the Act as it stood at the time he was sentenced. It is argued that this right was preserved by ss 16(1) and (2) of the Acts Interpretation Act 1915 (“the AIA”). Reliance is also placed on the common law presumption against retrospective operation.
The principal argument advanced by the defendants is that the operation of the amending legislation is prospective and that it applies to all prisoners. It is also argued that the plaintiff did not acquire any right to be considered for home detention in accordance with the previous legislation and that s 16 of the AIA has no application in these circumstances.
Sub-sections (1) and (2) of the AIA provide as follows:
(1)Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendments or expiry does not –
(a) revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or
(b) affect the operation of the repealed, amended or expired act or enactment, or alter the effect of the doing, suffering or omission of anything, prior to the repeal, amendment or expiry; or
(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing prior to the repeal, amendment or expiry; or
(d) affect any duty, obligation, liability or burden of proof imposed, created or incurred, or any penalty, forfeiture or punishment incurred or imposed or liable to be incurred or imposed, prior to the repeal, amendment or expiry; or
(e) affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.
(2)Any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed and enforced, as if the repeal or amendment had not been effected or as if the expired Act or enactment had not expired (as the case may be).
It is convenient at this point to have regard to the home detention provisions before and after the Act was amended.
Release on home detention was introduced into the Act in 1986. At the time the plaintiff was sentenced, s 37A provided as follows:
37A(1) Subject to this section and the regulations, the Chief Executive Officer has an absolute discretion to release a prisoner from prison to serve a period of home detention in accordance with this Division.
(1a)A prisoner who is serving a sentence of imprisonment in respect of which a non-parole period has not been fixed is not (except where the total term to be served is less than one year) eligible for release under this section.
(2) A prisoner will not be released under this Division unless –
(a)in the case of a prisoner serving a sentence in respect of which a non-parole period has been fixed, the prisoner has served at least one-half of that non-parole period; and
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(c)the prisoner satisfies any other criteria determined by the Minister for the purpose of this section.
(3) The release of a prisoner under this Division is subject to the following conditions:
(a)a condition requiring the prisoner to remain at the prisoner’s residence during the period of home detention and not to leave the residence at any time during that period except for the following purposes:
(i) remunerated employment; or
(ii) urgent medical or dental treatment for the prisoner; or
(iii)any other purpose approved or directed by the authorised officer to whom the prisoner is assigned; and
(b)a condition requiring the prisoner to be of good behaviour during the period of home detention; and
(c)a condition requiring the prisoner to obey the lawful directions of the authorised officer during the period of home detention; and
(d)such other conditions as the Chief Executive officer thinks appropriate.
(4) A prisoner released under this Division will, unless the release is earlier revoked, remain on home detention –
(a)in the case of a prisoner subject to a non-parole period until he or she is released on parole;
(b)in the case of any other prisoner – until the time at which he or she would, but for this Division, have been released from prison pursuant to this Act.
(5) The Chief Executive Officer may, by notice in writing served personally on the prisoner, vary or revoke any of the conditions to which the prisoner’s release is subject.
(6) In this section –
“non-parole period”, in relation to a prisoner serving a sentence imposed for an offence against a law of the Commonwealth, includes the minimum term to be served under a recognisance release order;
“residence” includes, if the prisoner is an Aborigine who resides on tribal lands or an Aboriginal reserve, any area of land specified in the instrument of release.
The amending Act which came into operation on 17 November 2005 deleted sub-sections (1a) and (2) and substituted the following:
(2)The exercise by the Chief Executive Officer of the discretion under subsection (1) is subject to the following limitations:
(a) a prisoner who is serving or is liable to serve a sentence of indeterminate duration and has not had a non-parole period fixed cannot be released on home detention;
(b) a prisoner cannot be released on home detention unless –
(i)in the case of a prisoner in respect of whom a non-parole period has been fixed – the prisoner has served at least one-half of the non-parole period;
(ii)in any other case – the prisoner has served at least one-half of the prisoner’s total term of imprisonment;
(c) the release of a prisoner on home detention cannot occur earlier than 1 year before –
(i)in the case of a prisoner in respect of whom a non-parole period has been fixed – the end of the non-parole period;
(ii)in the case of a prisoner in respect of whom a non-parole period has not been fixed but whose total term of imprisonment is more than 1 year – the day on which the prisoner would otherwise be released from prison under this Act;
(d) any limitations determined from time to time by the Minister, which may include, without limitation, the exclusion of prisoners sentenced for a specified class of offence or any other class of prisoners from release on home detention.
Section 37A is to be considered in the context of the Act as a whole. The preamble to the Act states that it is –
An Act to provide for the establishment and management of prisons and other correctional institutions; to regulate the manner in which persons in correctional institutions are to be treated by those responsible for their detention and care; and for other purposes.
For the most part, the Act is concerned with the managerial control of prisoners. Section 37A is in Part 4 which sets out a number of provisions dealing with the custody and movement of prisoners. Section 22(2) provides that a person who is sentenced to imprisonment will be imprisoned in such correctional institution as the Chief Executive Officer may determine. Section 24(1) states:
The Chief Executive Officer has the custody of a prisoner, whether the prisoner is within, or outside, the precincts of the place in which he or she is being detained, or is to be detained.
Section 27(1) provides as follows:
The Chief Executive Officer may, by written order, grant to a prisoner leave to be absent from the place in which he or she is being detained –
(a)for the medical or psychiatric examination, assessment or treatment of the prisoner, or
(b)for the attendance of the prisoner at an educational or training course; or
(c)for the participation of the prisoner in paid employment or in any form of recreation, entertainment or community service; or
(d)for such compassionate purpose as the Chief Executive Officer thinks fit; or
(e)for any purpose related to criminal investigation; or
(f)for such other purpose as the Chief Executive Officer thinks fit.
Section 27(2) provides that, where the Chief Executive Officer thinks it is appropriate, a condition may be imposed that the prisoner will be in the custody of, and supervised by, one or more officers or employees of the Department during such leave of absence.
When release on home detention was introduced into the Act it was stated in the second reading speech dealing with the amendments that the scheme was being introduced as a response to severe overcrowding in prisons. Prisoner rehabilitation was described in the speech as “a secondary consideration”.
The home detention scheme is essentially an administrative procedure. The Chief Executive Officer is given the discretion to direct that a portion of a prisoner’s detention, during the period of the sentence, is to take place in a particular manner. The sentence is not affected in any way. The liability imposed by the court remains.
The period of home detention, unless the release is earlier revoked, is co-extensive with the period which would have been served in an institution if there had been no release on home detention. The release of the prisoner on home detention may be revoked in the absolute discretion of the Chief Executive Officer for any reason. At the time the plaintiff was sentenced, the relevant Minister was empowered to impose any criteria for release on licence in addition to the criteria stipulated in the Act: s 37A(2)(c).
The requirement that release on home detention is not to take place until a fixed part of the non-parole period has been served acknowledges the element of punishment. However, home detention is also punitive in nature. Although the behaviour of a prisoner in prison is no doubt a relevant factor in deciding whether to order release on home detention, it is clear that the scheme was not introduced to reward good behaviour.
In my view, the amendments to the home detention provisions in the Act were intended to be prospective in the sense that they were to regulate any future release on licence under s 37A. However, they were to apply to all prisoners including those who had been sentenced prior to the date on which the amendments came into operation. They are concerned with the place of detention. The stipulation in the Act that the release on home detention is to be in the absolute discretion of the Chief Executive Officer confirms the administrative and managerial nature of the scheme.
As has been pointed out, the argument to the contrary is that the Act conferred a right on the prisoner which is preserved by the operation of s 16 of the AIA and the common law presumption against retrospectivity.
It is important to have regard to the nature of the right claimed by the plaintiff. At the time the relevant amendments to the Act came into operation the plaintiff had not served the minimum period of imprisonment required before he could be released on home detention. There was some vagueness in the argument as to the nature of the right asserted by the plaintiff, but it was described as a right to have the Chief Executive Officer make a decision in accordance with “the conditions set by the statute at the time of sentencing”. This submission is central to the plaintiff’s claim for relief.
If such a right exists, then, on the plaintiff’s argument, it must have arisen at the time he was sentenced.
In my view, no such right is to be found in the Act. It has been pointed out that the concept of home detention is not a component of the sentence; nor is it a matter which the court could take into account in determining the appropriate sentence. A decision to release on home detention is at the absolute discretion of the Chief Executive Officer as is any decision to terminate the licence. Although it is departmental practice for an application to be made by a prisoner for release on licence, neither the Act nor any regulation provides for such an application. The Act does not impose any obligation on the Chief Executive Officer to consider whether home detention should be ordered in a particular case. The decision is managerial in nature. As at the time of sentencing, the plaintiff possessed nothing more than a hope or expectation that the power to release on home detention might be exercised in his case in due course.
If this analysis is correct, the amendment has no retrospective effect in the sense described in the authorities dealing with the common law presumption against retrospective effect. The minimum period of imprisonment which the Parliament intends to be served by a prisoner before an order for home detention is made must be the period prescribed in the legislation as at the time when release on home detention is under consideration. The amendments which alter the minimum period look to the future. The mere fact that they took into account time already served as part of the calculation did not give the legislation retrospective effect: Robertson v City of Nunawading[1]; In re a Solicitor’s Clerk[2].
[1] [1973] VR 819 at 824.
[2] [1957] 1 WLR 1219 at 1222.
Perusal of s 16 of the AIA and authorities dealing with similar sections in other jurisdictions confirms the view that the plaintiff did not acquire a right of the kind which is preserved under the AIA or pursuant to the common law presumption against retrospectivity.
In the absence of a contrary intention, s 16 of the AIA preserves an acquired or accrued right established by the legislation in its previous form. The nature of such a right was explained by Gibbs J in Mathieson v Burton[3] :
That section [s 8(b) of the Interpretation Act of 1897 (NSW)] in referring to a right acquired or accrued does not preserve a power to take advantage of an enactment, assuming that that may properly be described as a right (Abbott v the Minister for Lands [1895] AC 425, at p 431), and does not apply where there is merely a hope or expectation that a right will be created (Director of Public Works v Ho Po Sang [1961] AC 901); but it does protect anything that may truly be described as a right, “although that right might fairly be called inchoate or contingent” (Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 at p 552). In Hamilton Gell v White [1922] 2 KB at p 431, Atkin LJ said that s 38 of the Interpretation Act, 1889 (UK) “was not intended to preserve the abstract rights conferred by the repealed Act” and “only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute”.[4]
[3] (1971) 124 CLR 1 at 23.
[4] cf. Mason CJ, Deane, Toohey and Gaudron JJ in Esber v The Commonwealth of Australia (1992) 174 CLR 430 at 440. See also Free Lanka Insurance Co Ltd v A E Ranasinghe [1964] AC 541 at 548.
There is a clear distinction between rights which are preserved under the AIA and the hope of an advantage which is not realised as a consequence of an amendment. As Adam J said in Doro v Victorian Railway Commissioners[5]:
The interest of a person in a statute remaining unchanged until the time prescribed for its operation is, I consider, quite a different thing from an accrued right. No person can have in the relevant sense an accrued right in the law remaining unchanged for his benefit. In fact, most Acts of Parliament do interfere with existing rights in this sense: Abbott v Minister for Lands[6].
[5] [1960] VR 84 at 88.
[6] [1895] AC 425.
It was argued that there was a right to require the Chief Executive Officer to consider release on licence. However, the circumstances of this case are distinguishable from those cases in which there is a right to apply to have a matter considered by a decision-maker who then has a discretion as to whether an application should be granted or refused.[7] Such a right was upheld in Gerrard v Mayne Nickless Ltd[8]. In that case, the appellants claimed a right to a determination by the Australian Industrial Relations Commission for relief against contracts which they claimed were unfair, harsh or against the public interest. Section 127A(2) of the Industrial Relations Act 1988(Cth) provided for an application for relief of this nature to be made to the Commission. However, after application had been made to the Commission, the relevant jurisdiction was transferred from the Commission to the Industrial Relations Court.
[7] Pearce and Geddes, Statutory Interpretation in Australia (6th ed) 202.
[8] (1996) 135 ALR 494.
The Full Court of the Federal Court held that the Commonwealth equivalent of s 16 of the AIA gave the Commission continuing jurisdiction after the amending Act had been passed to hear applications already made to it. In the course of the joint judgment the court said:
As it seems to us, once the various owner-drivers had made application to the Commission, they acquired a right to have their applications heard and determined. If they made out a ground specified in s 127A(2), they had a right to a decision recording the Commission’s opinion to that effect and a right to have the Commission determine whether or not to grant discretionary relief under s 127B(1).
In the present case, no statutory right was conferred on the plaintiff who possessed nothing more than a hope or expectation that the power to release on home detention might be exercised in his favour. The plaintiff cannot lay claim to an accrued or acquired right within the meaning of s 16(1)(c) of the AIA.
Counsel for the plaintiff also relied upon s 16(1)(d) which provides that amending legislation does not affect “any penalty, forfeiture or punishment incurred or imposed” prior to the amendment. However, as has been pointed out, the home detention provisions are not in any respect part of the penalty or punishment imposed by the court. The original sentence remains unchanged in the event of a release under the home detention provisions. Section 16(1)(d) has no application in these circumstances.
Reliance was also placed on s 16(2) which provides that certain legal proceedings may be instituted or continued as if the repeal or amendment had not been effected. It was argued that an application to the Chief Executive Officer and his consideration of it constituted proceedings within s 16(2). The legal proceedings referred to in s 16(2) are the proceedings defined in s 16(1)(e). They relate to a right established by the legislation prior to the amendment. For the reasons outlined above the plaintiff did not acquire a right under the legislation and s 16(1)(e) does not apply.
For these reasons, it is my view that s 16 of the AIA has no application to the present case.
The plaintiff’s argument based on the common law presumption against retrospective operation should be rejected for the same reasons.
In Maxwell v Murphy[9] Dixon CJ explained the common law presumption against retrospective operation as follows:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
[9] (1957) 96 CLR 261.
In Mathieson v Burton[10] Gibbs J quoted with approval the following statement of the rule by Wright J in In Re Athlumney; Ex parte Wilson[11]:
Perhaps no rule of construction is more firmly established than this – that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.
[10] (1971) 124 CLR 1 at 22.
[11] [1898] 2 QB 547 at 551-552.
As the common law presumption applies only to an existing or accrued right, it can have no application to the present case.
In my view the Chief Executive Officer acted correctly in refusing to consider the plaintiff’s release on home detention. I would refuse to make the declaration sought by the plaintiff. The application for judicial review in the nature of certiorari and mandamus should be dismissed.
WHITE J. I agree with the orders proposed by Duggan J. I also agree with his reasons.
KELLY J. I agree with the reasons of Justice Duggan. I agree with the orders proposed.
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