Eastman v The Attorney-General for the ACT [2007] ACTSC 28 (29 January 2007)

Last Updated: 7 May 2008

DAVID HAROLD EASTMAN v THE ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY [2007] ACTSC 28 (9 May 2007)

ADMINISTRATIVE LAW - judicial review of a decision of the ACT Executive to refuse to exercise prerogative of mercy - whether Attorney-General proper respondent - whether decision reviewable under Administrative Decisions (Judicial Review) Act 1989 (ACT) - whether decision justiciable - exercise of discretion not justiciable but statutory process is justiciable - grounds of review not made out - application dismissed.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Australian Capital Territory (Self-Government) Act 1988 (Cth)

Crimes Act 1900 (ACT)

Law Officer Act 1992 (ACT)

Legislation Act 2001 (ACT)

Supreme Court Act 1933 (ACT)

Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 cited

Burt v Governor-General [1989] 3 NZLR 64 cited

Burt v Governor-General [1992] 3 NZLR 672 cited

Community Advocate (McGregor) v Gallop [2002] ACTSC 45 referred to

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 cited

de Freitas v Benny [1976] AC 239 not followed

Eastman v The Queen (1997) 76 FCR 9 referred to

Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 cited

Eastman v Director of Public Prosecutions [2003] HCA 28; (2003) 214 CLR 318 cited

FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 cited

Hanratty v Lord Butler (Unreported, Court of Appeal (Civil Division), 12 May 1971) cited

Horwitz v Connor [1908] HCA 33; (1908) 6 CLR 38 applied

Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 referred to

Lewis v Attorney-General of Jamaica [2001] 2 AC 50 cited

R v Secretary of State for the Home Department, Ex parte Bentley [1994] QB 349 cited

R v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Jia [2001] HCA 17; (2001) 205 CLR 507 applied

Reckley v Minister of Public Safety and Immigration (No 2) [1996] UKPC 1; [1996] 1 AC 527 cited

South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 cited

The Queen on the Application of B [2002] EWHC 587 cited

Von Einem v Griffin (1998) 72 SASR 110 cited

Xenophon v State of South Australia [2000] SASC 327; (2000) 78 SASR 251 referred to

No. SC 248 of 2006

Judge: Lander J

Supreme Court of the ACT

Date: 9 May 2007

IN THE SUPREME COURT OF THE )

) No. SC 248 of 2006

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DAVID HAROLD EASTMAN

Applicant

AND: THE ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY

Respondent

ORDER

Judge: Lander J

Date: 9 May 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The Attorney-General for the Australian Capital Territory be substituted for the respondent, Jon Stanhope MLA.

2. The application be dismissed.

1. This is an application for review and for the issue of prerogative writs and other relief pursuant to s 34B of the Supreme Court Act 1933 (ACT) (`Supreme Court Act') and for review under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (`ADJR Act') of a decision of the Executive of the Australian Capital Territory (`the ACT') Government (`the Executive').

2. On 3 November 1995 the applicant, Mr Eastman, was convicted of the murder of the Assistant Commissioner of the Australian Federal Police, Colin Winchester on 10 January 1989. On 10 November 1995 Carruthers AJ sentenced the applicant to imprisonment for life. The applicant appealed against his conviction to the Full Court of the Federal Court but that appeal was dismissed on 25 June 1997: Eastman v The Queen (1997) 76 FCR 9. He then sought and obtained special leave to appeal to the High Court. His appeal was dismissed on 25 May 2000: Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1.

3. On 31 May 2001 Mr Eastman applied in writing for an inquiry under s 475 of the Crimes Act 1900 (ACT) (`Crimes Act'). On 7 August 2001 Miles CJ ordered an inquiry into a question or doubt as to the applicant's guilt pursuant to s 475 (now repealed) of the Crimes Act. The question or doubt into which he inquired was the applicant's fitness to plead during the whole or any part of the trial. Section 475 provided:

(1) Whenever, after the conviction of a prisoner, any doubt or question arises as to his or her guilt, or any mitigating circumstance in the case, or any portion of the evidence therein, the Executive, on the petition of the prisoner, or some person on his or her behalf, representing such doubt or question, or a judge of the Supreme Court of his or her own motion, may direct any magistrate to, and such magistrate may, summon and examine on oath all persons likely to give material information on the matter suggested.

(2) The attendance of every person so summoned may be enforced, and his or her examination compelled, and any false statement wilfully made by him or her shall be punishable in like manner as if he or she had been summoned by, or duly sworn and examined before, the same magistrate, in a case lawfully pending before him or her.

(3) Where on such inquiry the character of any person who was a witness on the trial is affected thereby, the magistrate shall allow such person to be present, and to examine any witness produced before such magistrate.

(4) Every deposition taken under this section shall be stated in the commencement to have been so taken, and in reference to what case, and in pursuance of whose direction, mentioning the date thereof, and shall be transmitted by the magistrate, before whom the same was taken, as soon as shall be practicable, to the Executive if the inquiry was directed by him or her, or to the judge directing the inquiry, and the matter shall be disposed of, as to the Executive, on the report of such judge, or otherwise, shall appear to be just.

4. The inquiry took place over an extended period of time. On 6 October 2005 Miles AJ (as he then was) reported his findings to the Executive. Miles AJ concluded in his report:

As it has not been shown that Mr Eastman was unfit to plead during the whole of his trial or during any part of it, or that an unresolved question as to his fitness resulted in a miscarriage of justice, I do not recommend that the Executive take any action to set aside Mr Eastman's conviction.

5. On 10 October 2005 Mr Stanhope, who was then the Attorney-General for the ACT, issued a press release in the following terms:

A judicial review has found that convicted murderer David Harold Eastman was fit to plead throughout his trial, Chief Minister and Attorney General Jon Stanhope announced today.

Mr Stanhope has welcomed the findings of Acting Justice Jeffrey Miles, who has recommended that the ACT Government take no further action in relation to Mr Eastman's conviction for the 1989 murder of Assistant Police Commissioner Colin Winchester.

"I am pleased that this inquiry has now been concluded," Mr Stanhope said. "Mr Eastman has had every opportunity to exercise his rights, he has explored every avenue available to him."

...

"Justice Miles has presented to the Executive a comprehensive and thorough analysis of the issue of Mr Eastman's fitness to plead, and I welcome the fact that this matter can now be put to rest," Mr Stanhope said.

6. On 11 October 2005 Mr Stanhope appeared on television. He said, `I wouldn't be surprised if Mr Eastman seeks to pursue the matter. Its (sic) consistent with his history'. The television reporter said, `... the ACT's Chief Police Officer believes Eastman has exhausted all his legal options'. Audrey Fagan (then the ACT"s Chief Police Officer) said, `For Mrs Winchester and the family I think this brings closure and I trust that they'll be very welcome of the news along with ACT policing, it's been a tough 17 years'. On the same day, Mr Stanhope also appeared on WIN TV. In that interview he said, `I think this should be the end of it, I'm hopeful this is the end of it. I don't think there is anywhere else to go'. He also said, `I understand he has spent much time in Goulburn and much time in Lithgow prisons. He will of course remain in that system until we've built a prison in the ACT'.

7. On 13 October 2005 Mr Stanhope wrote to the applicant:

His Honour Acting Justice Jeffrey Miles has now reported to the Executive of the Australian Capital Territory following his inquiry under s 475 of the Crimes Act 1900. A copy of that report is enclosed.

I have forwarded a copy of this report to your legal advisers, Messrs Tony Hargreaves and Partners. It is my intention to publish His Honour's report in its entirety.

8. On 21 October 2005 the applicant sought official notification of the Executive's decision and a statement of reasons pursuant to s 13 of the ADJR Act. On 24 November 2005 Mr Stanhope wrote to the applicant:

I refer to your letter dated 21 October 2005.

The initial consideration of the report of Acting Justice Miles by the Executive related to the distribution and publication of the Report.

You will be advised of the Executive's determination as to the disposition of the matter when it has been further considered by the Executive.

9. On 21 November 2005 the applicant wrote to Mr Stanhope requesting a response to his request of 21 October 2005. On 7 December 2005 Mr Stanhope wrote to the applicant:

I refer to your letter dated 21 November 2005 which doubtless crossed with my reply of 24 November 2005 to your letter dated 21 October 2005.

As noted in my letter, you will be advised of the Executive's determination as to the disposition of the report of Acting Justice Miles when it has been further considered by the Executive.

A determination by the Executive in relation to the report prepared by Acting Justice Miles is not a decision to which the Administrative Decisions (Judicial Review) Act 1989 applies. You will, however, be informed of the basis upon which the Executive makes its determination regarding Acting Justice Miles' report.

10. On 13 February 2006 I conducted a directions hearing in the matter of Eastman v Miles (SC853/2005). During that hearing, counsel for Mr Eastman, Ms Walker said:

The difficulty in relation to Mr Eastman's matter is that whilst the inquiry has made certain recommendations, no decision has yet been made in terms of how those recommendations are to be dealt with or implemented. Indeed, I'm instructed that when the inquiry first reported to the executive the Chief Minister, also the Attorney-General made a statement to the press in the form of a release on about 10 October of 2005 to the affect (sic) that he accepted the recommendations of the report. Which would suggest that they were there all to be actioned on the basis that there was found to be nothing to be acted upon in real terms, so the status quo would remain.

Following some representations by my client to the Chief Minister who wrote to him, the response was that the Executive hadn't in fact accepted the recommendations of the report, only authorised the release of the report and the Executive was still considering that report. So effectively it remains un-acted upon just sitting there in the ether. And the further information was given to my client that the Executive would when ultimately decided upon what to do with the report, give reasons although they're not required pursuant to section 13 of the ADJR Act and apparently nothing has been heard since.

That leaves the Attorney-General therefore in a situation of not having acted on the report that's before it and yet seeking to defend effectively the report before this court and it would appear that there is a potential conflict between those two roles in our submission.

11. Clearly, those comments prompted Mr Stanhope to issue a press release on 14 February 2006. The press release included:

"Today's Canberra Times reported Mr Eastman's barrister, Lorraine Walker, as suggesting that the ACT Government was yet to make a final decision on whether or not to grant Mr Eastman a new trial for the murder of Australian Federal Police Assistant Commissioner Colin Winchester in 1989," Mr Stanhope said.

"The barrister was reported by the newspaper as saying that it was because of the Government's failure to make a decision on a fresh trial that she was opposing my intervention, as Attorney-General, in the proceedings now before the court. These proceedings are a challenge to the findings of the judicial inquiry, which was conducted by a retired Supreme Court judge, Jeffrey Miles and handed to the Government last October. Acting Justice Miles found that Mr Eastman was fit to plead throughout his trial.

Mr Stanhope said that the Government was not required to consider - and was not considering - whether Mr Eastman should be granted a fresh trial.

"As far as the Government is concerned, Mr Eastman has exhausted his legal avenues of appeal. As I said at the time that I received Acting Justice Miles' comprehensive report, I was pleased that the matter could now be considered to be at an end.

"Indeed, the ACT Government has no statutory or prerogative power to direct a new trial. The ACT Government Solicitor confirms that the Executive is not required to do anything further in relation to the Miles report. It is not required to, and it doesn't intend to.

12. On 22 February 2006 Mr Stanhope wrote to the applicant informing him that the Executive was taking no further action in connection with the matter of his fitness to plead at trial:

I refer to my letter of 7 December 2005.

The Executive has fully considered the report of the Honourable Jeffrey Allan Miles. His Honour found that:

1. there was no miscarriage of justice in your trial; and

2. it was not shown that it was likely that you were unfit to plead.

Accordingly, the Executive is taking no further action in connection with the matter of your fitness to plead.

13. The applicant seeks a review of that decision.

14. On 12 July 2006, during the hearing of this application, the applicant sought and was granted leave to amend the application. The amended application seeks the following orders:

1. An order setting aside the Executive's decision.

2. A declaration that, the question of the Applicant's fitness to plead having arisen at trial, the failure to refer that question to the Mental Health Tribunal:

(a) produced an unresolved question as to the applicant's fitness to plead at trial; and

(b) would have required the Full Court of the Federal Court, on appeal from the Applicant's conviction, to order that the Applicant's conviction be quashed.

3. A declaration that the Respondent is disqualified from participating in any consideration by the Executive of the power conferred on the Executive by s 475(4) (repealed) of the Act.

4. An order referring the matter to which the Executive's decision relates to the Executive, excluding the Respondent, for further consideration under s 475(4) (repealed) of the Act to dispose of as shall appear to be just and subject to such directions as the Supreme Court thinks fit.

5. Such further or other orders as the Court thinks appropriate.

6. Costs.

15. The amended application also seeks orders in similar terms in relation to the application for prerogative relief. For the sake of brevity I will not set them out here.

16. The grounds of review are:

1. A breach of the rules of natural justice occurred in connection with the making of the Executive's decision.

Particulars

(a) On or about 6 October 2005, the Executive received a report purporting to have been prepared under s 475 (repealed) of the Act by his Honour, Acting Justice Jeffrey Miles, being a report into a doubt or question that had arisen as to the Applicant's guilt (the s 475 report).

(b) On or about 10 October 2005, the Respondent publicly announced that, following receipt of the s 475 report, the Executive had decided to take no further action in relation to the Applicant's conviction, and that "the matter can now be put to rest".

(c) By letter to the Respondent dated 21 October 2005, the Applicant asked the Respondent for official notification of the Executive's decision and for a statement of reasons for that decision.

(d) By letter dated 24 November 2005, the Respondent informed the Applicant that the Executive was yet to make a determination as to the disposition of the matter.

(e) By letter dated 22 February 2006, received by the Applicant on 6 March 2006, the Respondent notified the Applicant of the Executive's decision.

(f) The Respondent participated in the making of the Executive's decision.

(g) The circumstances and content of the Respondent's public announcement on or about 10 October 2005 and the circumstances and content of the Executive's decision were such as to establish that the Respondent unfairly and irrevocably pre-judged the question of how to dispose of the matter the subject of the s 475 report before making the Executive decision.

(h) Alternatively, the circumstances and content of the Respondent's public announcement on or about 10 October 2005 and the circumstances and content of the Executive's decision were such as raise a reasonable apprehension of bias on the part of the Respondent.

(i) In consequence of the Respondent's (sic) having taken part in the Executive's decision, the Executive's decision was infected by actual, alternatively apprehended, bias and is, for that reason, invalid.

2. The Executive's decision was not authorized by the enactment under which it was purported to be made.

Particulars

(a) Pursuant to s 475 (repealed) of the Act, it was a pre-condition to the making of the Executive's decision that an inquiry be held into the doubt or question as to the Applicant's guilt and that a report of that inquiry be provided to the Executive.

(b) On or about 6 October 2005, the Executive received the s 475 report, being a report purporting to fulfil the pre-condition referred to in particular (a).

(c) The s 475 report was vitiated by reviewable error and was therefore invalid and could not fulfil the pre-condition referred to in particular (a).

The grounds on which the s 475 report was vitiated by reviewable error are set out in the Applicant's Amended Application for an Order of Review in matter No SC 853 of 2005.

3. The making of the Executive's decision was an improper exercise of the power conferred by s 475(4) (repealed) of the Act in that the Executive took into account an irrelevant consideration in the exercise of power.

Particulars

(a) The Executive's decision was based on the s 475 report.

(b) The s 475 report was vitiated by reviewable error and was therefore invalid and could not fulfil the pre-condition referred to in particular (a).

The grounds on which the s 475 report was vitiated by reviewable error are set out in the Applicant's Amended Application for an Order of Review in the matter No SC 853 of 2006.

(c) The Executive relied upon that report exclusively or substantially in making the Executive's decision. In so doing, the Executive took into account an irrelevant consideration.

17. Those three grounds can be summarised; ground 1: a breach of the rules of natural justice by reason of prejudgment by the then Attorney-General Mr Stanhope; ground 2: the Executive's decision was not authorised by the enactment under which it was purported to be made because it was a precondition to the making of the Executive's decision that a valid inquiry be conducted pursuant to s 475 of the Crimes Act; and ground 3: the Executive took into account an irrelevant consideration, namely the report of Miles AJ which was vitiated by a reviewable error.

18. The second and third grounds depend for their success on the claims made in Action No. 853 of 2005 in which the applicant has brought proceedings seeking to quash the decision of Miles AJ: Eastman v Miles [2007] ACTSC 27. If those proceedings fail, then grounds 2 and 3 fail in their premises. I have today published my reasons for dismissing the application by the applicant to quash the decision of Miles AJ. It follows, that grounds 2 and 3 cannot be sustained. That leaves for consideration the first ground.

19. The applicant seeks an order quashing the Executive's decision made on or about 22 February 2006. He seeks an order that the matter be remitted to the Executive, to be constituted without Mr Stanhope, for further consideration under s 475(4) of the Crimes Act.

Preliminary Issue - Correct Respondent

20. When the report was received, Mr Stanhope was both the Chief Minister and the Attorney-General of the Australian Capital Territory. During interlocutory proceedings I raised with the parties whether Mr Stanhope was the appropriate party to the proceeding because he no longer holds the office of Attorney-General.

21. Two reasons were advanced by the applicant why Mr Stanhope was the appropriate person to be the respondent. First, because the ground of review in relation to bias and prejudgment attach to his state of mind. Secondly, because he was the Attorney-General and the Attorney-General is, by operation of s 4 of the Law Officer Act 1992 (ACT) (`Law Officer Act') and s 18 of the ADJR Act, the appropriate person to be joined. The first reason does not assist the applicant. The applicant can advance his argument that the Executive's decision is tainted by reason of Mr Stanhope's prejudgment whether Mr Stanhope or the current Attorney-General is the respondent. The applicant's case is that the Executive's decision should be quashed, not that any decision made by Mr Stanhope should be quashed.

22. Section 4 of the Law Officer Act provides:

4 Functions of Attorney-General

The functions of the Attorney-General are--

(a) to be the chief legal representative of

(i) the Crown in right of the Territory; and

(ii) the Territory;

(b) to be the principal legal adviser to the Territory; and

(c) to have responsibility for the administration of law and justice in the ACT; and

(d) to institute and conduct litigation on behalf of--

(i) the Crown in right of the Territory; or

(ii) the Territory; or

(iii) a Minister; or

(iv) a person suing or being sued on behalf of the Territory; and

(e) to exercise the functions given to the Attorney-General by another Act; and

(f) to exercise any other functions prescribed under the regulations.

23. Section 4 does not support the proposition that Mr Stanhope is the appropriate party to these proceedings when he has ceased to be Attorney-General. In my opinion, s 4(d)(iv) suggests that the current Attorney-General is the appropriate party.

24. The applicant submitted that `to the extent that the Respondent has been replaced as Attorney-General subsequent to the matters that are the subject of this application, s 18 of the ADJR Act will operate to substitute the current Attorney-General'. Section 18 of the ADJR Act provides:

18 Change in person holding, or performing the duties of, an office

(1) This section applies if--

(a) a person has, in the performance of the duties of an office, made a decision in relation to which an application may be made to the Supreme Court under this Act; and

(b) the person no longer holds, or, for whatever reason, is not performing the duties of, that office.

(2) This Act has effect as if the decision had been made by--

(a) the person for the time being holding or performing the duties of that office; or

(b) if there is no person for the time being holding or performing the duties of that office or that office no longer exists--the person that the Minister administering the enactment under which the decision was made, or a person authorised by that Minister, specifies.

25. It would be consistent with s 18 of the ADJR Act and s 4 of the Law Officer Act to substitute the Attorney-General for the Australian Capital Territory for Mr Stanhope. There will be an order that the Attorney-General for the Australian Capital Territory be substituted for the respondent, Jon Stanhope MLA in these proceedings.

The Executive

26. The Executive is constituted by s 36 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (`Self-Government Act'). The members of the Executive are the Chief Minister and such other Ministers as are appointed by the Chief Minister: s 39(1) of the Self-Government Act. The exercise of the Executive's powers are not affected merely because of a vacancy in the membership: s 39(2).

27. The Executive gains its powers by virtue of s 37 of that Act. Section 37 provides:

The Executive has the responsibility of:

(a) governing the Terriotry with respect to matters specified in Schedule 4;

(b) executing and maintaining enactments and subordinate laws;

(c) exercising such other powers as are vested in the Executive by or under a law in force in the Territory or an agreement or arrangement between the Territory and the Commonwealth, a State or another Territory; and

(d) exercising prerogatives of the Crown so far as they relate to the Executive's responsibility mentioned in paragraph (a), (b) or (c).

28. Importantly, s 37(d) empowers the Executive as constituted by s 39 to exercise the Crown's prerogatives and, relevantly in this case, the prerogative of mercy.

Whether the decision was made under s 475(4) of the Crimes Act

29. The question arises as to whether the Executive's decision was made under s 37(d) of the Self-Government Act as the respondent contends or under s 475(4) of the Crimes Act as the applicant contends.

30. Section 475 performs three tasks. First, it empowers the Executive or a judge of the Supreme Court to direct a magistrate to summon and examine persons likely to give material information which may relate to any doubt or question arising as to the guilt of a prisoner or any mitigating circumstances in the prisoner's case. In that regard it may be described as a facultative provision. Apart from s 475(1) giving that power to the Executive or to the judge, it empowers the magistrate who has been directed by the Executive or the judge to compel the attendance of the persons who are likely to give material information into the doubt or question. It deems the persons summoned to be liable for punishment for perjury in the same way as if the person were giving evidence before the magistrate in a judicial proceeding. It is also in part a machinery provision because it provides the machinery whereby the magistrate before whom the depositions are taken to provide those depositions either to the Executive if it was the Executive that directed the examination of the witnesses or to the judge if it was a judge who directed that examination.

31. Next, it contemplates that a judge may make a report if it was the judge who directed the inquiry for the assistance of the Executive. Although the section does not expressly oblige the judge to write a report by necessary implication, such a duty arises: Eastman v Director of Public Prosecutions [2003] HCA 28; (2003) 214 CLR 318 per McHugh J at 326. Once the Executive has received the depositions taken by the magistrate and, if it was a judge directed inquiry, the report of the judge, the Executive may dispose of the matter as `shall appear to be just'.

32. The purpose of s 475 is to allow the Executive to inform itself by otaining the necessary evidence whether a prisoner's conviction has occurred as a result of a miscarriage of justice. Section 475(4) does not either expressly or impliedly require or authorise a decision to be made. Nor does it confer, alter or otherwise affect legal rights or obligations. Section 475 provides for a process whereby the Executive obtains information for the purpose of considering whether it will exercise a power independent of s 475 and authorised by s 37(d) of the Self-Government Act. It follows that s 475 does not empower the Executive to set aside a conviction or to substitute a sentence for a sentence imposed by the Court. It only allows the Executive to dispose of the matter as `shall appear to be just'. The remedies available to the Executive are limited to perhaps commuting a death sentence or granting a pardon or releasing the prisoner on licence or perhaps introducing a Bill into the Assembly to overturn the conviction: Eastman v Director of Public Prosecutions at 324 and 349. In my opinion, s 475 assumes the Executive will, if it is minded, use the prerogative power which is given the Executive under s 37(d) of the Self-Government Act.

33. The Executive's power to make the decision is contained, in my opinion, in s 37(d) of the Self-Government Act. If the Executive was mindful to do so it could grant a pardon or remit a sentence under the Crimes Act. Any decision that the Executive might make in relation to a consideration of a doubt or question as to the guilt of a prisoner or of any mitigating circumstance in a case is a decision which is empowered by s 37(d) of the Self-Government Act, being the exercise of the prerogative of mercy.

34. In my opinion, the respondent's contention that there has been no decision under s 475(4) of the Crimes Act must be accepted. The decision has been made under s 37(d) of the Self-Government Act and is a decision of the Executive in the exercise by the Executive of the prerogative of the Crown for mercy. That gives rise to the question whether a decision made under s 37(d) of the Self-Government Act is capable of review under the ADJR Act.

Jurisdiction of the Court under the ADJR Act

35. Section 5 of the ADJR Act allows a person aggrieved by a decision to which the ADJR Act itself applies to apply to the Supreme Court for an order of review in relation to that decision on any of the grounds set out in s 5(1).

36. Those grounds include a breach of the rules of natural justice occurring in relation to the making of the decision (s 5(1)(a)); that the decision was not authorised by the enactment under which it was purported to be made (s 5(1)(d)); and that the making of the decision was an improper exercise of the power given by the enactment under which it was purported to be made (s 5(1)(e)). Section 5(2) provides that a reference in s 5(1)(e) to an improper exercise of a power includes a reference to taking into account an irrelevant consideration in the exercise of that power: s 5(2).

37. The dictionary to the ADJR Act provides a definition of `decision to which this Act applies':

decision to which this Act applies means a decision of an administrative character made, proposed to be made or required to be made (whether in the exercise of a discretion or not) under an enactment, other than a decision mentioned in schedule 1.

38. Schedule 1 does not mention s 475 of the Crimes Act.

39. Section 3A(1)(g) of the ADJR Act provides:

For this Act, a reference to the making of a decision includes a reference to--

...

(g) doing or refusing to do anything else.

40. A decision therefore includes a refusal to do anything. It was this definition upon which the applicant relied to argue that the ADJR Act applied to s 475(4) of the Crimes Act. The ADJR Act would permit `a decision' made under s 475 to be reviewed. However, for the reasons already given, the decision under consideration was not made under that section. The relevant question is whether the decision made under s 37(d) of the Self-Government Act was a decision to which the ADJR Act applies. The ADJR Act allows for the review of a decision under under an enactment. `An enactment' is defined in the dictionary:

enactment means--

(a) an Act or subordinate law; or

(b) the Canberra Water Supply (Googong Dam) Act 1975 (Cwlth).

Note A reference to an Act or subordinate law includes a reference to a provision of an Act or subordinate law (see Legislation Act, s 7 and s 8).

Paragraph (b) is clearly irrelevant.

41. Section 7 of the Legislation Act 2001 (ACT) (`Legislation Act') defines `Act':

(1) An Act is an Act of the Legislative Assembly.

(2) An Act of the Legislative Assembly is a law (however described or named) made by the Legislative Assembly under the Self-Government Act.

(3) A reference to an Act includes a reference to a provision of an Act.

Note 1 Section 17 deals with former Commonwealth enactments, and former NSW and UK Acts, that have become ACT Acts.

Note 2 Section 100(1) deals with references to particular Acts.

42. Section 8 defines a `subordinate law':

(1) A subordinate law is a regulation, rule or by-law (whether or not legislative in nature) made under--

(a) an Act; or

(b) another subordinate law; or

(c) power given by an Act or subordinate law and also power given otherwise by law.

(2) A reference to a subordinate law includes a reference to a provision of a subordinate law.

43. The respondent contended that a decision made under s 37(d) of the Self-Government Act was not a decision made under an enactment for the purpose of the ADJR Act. That contention must be accepted. For the ADJR Act to apply there must be a decision under an enactment or a subordinate law. An Act is an Act of the Legislative Assembly: s 7(1). A subordinate law is a regulation, rule or by-law made under an Act which must mean an Act of the Legislative Assembly. The ADJR Act only applies to Acts and subordinate laws of the ACT. The Self-Government Act is an Act of the Commonwealth. It follows, therefore, that a decision made under s 37 of the Self-Government Act is not amenable to review under the ADJR Act.

44. Any decision made under s 37 of the Self-Government Act is also not subject to review under the Commonwealth Administrative Decisions (Judicial Review) Act 1977 (Cth) (`Commonwealth ADJR Act'). In that Act, `enactment' is defined in s 3:

enactment means:

(a) an Act other than:

...

(iii) an Act or part of an Act that is not an enactment because of s 3A (certain legislation relating to the ACT); or

45. Section 3A(2) provides:

(2) The Australian Capital Territory (Self-Government) Act 1988 and the Canberra Water Supply (Googong Dam) Act 1974 are not enactments.

46. It follows, therefore, that because this was a decision made under s 37 of the Self-Government Act neither the ADJR Act nor the Commonwealth ADJR Act would allow the decision to be reviewed.

47. In my opinion, that decision is not amenable to review under the ADJR Act or under the Commonwealth ADJR Act.

Is the decision made under s 37(d) of the Self-Government Act justiciable?

48. The applicant has brought proceedings not only under the ADJR Act but also under s 34B of the Supreme Court Act which empowers the Supreme Court to issue the prerogative writs of mandamus, prohibition and certiorari. That raises therefore for consideration whether the decision made under s 37(d) of the Self-Government Act, whilst not reviewable under the ADJR Act, is otherwise liable to judicial review. It was submitted by the respondent that the decision of the Executive was not justiciable and in support of that submission the respondent relied upon Horwitz v Connor [1908] HCA 33; (1908) 6 CLR 38 at 40, R v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 at 261, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 418B, Burt v Governor-General [1992] 3 NZLR 672 at 681-683 and Von Einem v Griffin (1998) 72 SASR 110 at 112-113, 129. It was submitted that there is no justification in the constitutional or legal environment of the Territory to allow the review of the prerogative of mercy or related executive decisions: cf Lewis v Attorney-General of Jamaica [2001] 2 AC 50 at 75-80.

49. It was submitted by the applicant that where an exercise of executive power affects the rights or interests of an individual, as it was said in this case occurred, that decision is amenable to judicial review even if made by the Crown's representative or the Cabinet: R v Toohey; ex parte Northern Land Council; FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342; South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378; Community Advocate (McGregor) v Gallop [2002] ACTSC 45.

50. That proposition can be accepted. In R v Toohey; ex parte Northern Land Council the question for the High Court was whether a statutory discretion reposing of the Administrator of the Northern Territory was subject to judicial review, which the Court answered in the affirmative. In that case, members of the Court distinguished between a statutory discretion and the exercise of the prerogative: see, for example, Mason J at 217 and following. In FAI Insurances Ltd v Winnecke the High Court held that the Governor in Council was obliged to accord a party natural justice in considering whether to renew an approval as a workers' compensation insurer under the workers' compensation legislation. That case also concerned the question whether an act of the Governor in Council, in pursuance of an Act of Parliament, was subject to judicial review. In South Australia v O'Shea the question was whether the Governor in Council was obliged to give a prisoner a further hearing where the parole board had recommended to the Governor in Council that the prisoner not be released. In that case it was held that no further hearing was necessary. However, not all statutory powers are amenable to judicial review: Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 90.

51. None of those cases dealt directly with the question whether the exercise by the Crown of the Crown's prerogative was subject to judicial review.

52. That is not to say those authorities are not relevant. As I pointed out during argument, the prerogative which is the subject of this examination is given to the Executive by statute. In a sense, therefore, what is being considered is whether or not a statutory prerogative, in this case the statutory prerogative of mercy, is subject to judicial review.

53. In the end, for the reasons given by Mason J in Re Toohey; ex parte Northern Land Council at 220, the point of distinction perhaps is of no moment: see also Lord Scarman in Council of Civil Services Unions v Minister for Civil Service who said in his speech at 407:

Just as ancient restrictions in the law relating to the prerogative writs and orders have not prevented the courts from extending the requirement of natural justice, namely the duty to act fairly, so that it is required of a purely administrative act, so also has the modern law ... extended the range of judicial review in respect of the exercise of prerogative power. To date, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.

See also Lord Roskill at 417.

54. The more particular question in this case is whether the exercise of the prerogative of mercy given to the Executive by s 37(d) of the Self-Government Act is amenable to judicial review. That question is not easy to answer without a consideration of the authorities to which the respondent referred and other decisions.

55. In Horwitz v Connor, the High Court said that mandamus would not lie to the Governor in Council and the Court has no jurisdiction to review the discretion of the Governor in Council in exercising the prerogative of mercy. In R v Toohey; ex parte Northern Land Council, Aickin J said at 261:

The position with respect to prerogative powers is not the same as that with respect to statutory powers, it being clear that at least in the case of some prerogative powers, reasons, motives and intentions of the Crown's representative are not reviewable in any court. The prerogative of mercy is a clear enough example (see cp. Horwitz v Connor) and it is not relevant to the present case to endeavour to examine each of the remaining ascertained prerogative powers. (Footnote omitted.)

56. The question as to whether the Court had power to review the prerogative of mercy to be exercised by the Governor arose in Von Einem v Griffin. In that case, the applicant petitioned the Governor praying for the exercise of the prerogative of mercy and also requesting that the matter be referred to the Court pursuant to s 369(a) of the Criminal Law Consolidation Act 1935 (SA).

57. Section 369(a) allowed the Attorney-General to refer the whole case to the Full Court for determination as in the case of an appeal by a person convicted. In Von Einem v Griffin, however, after receiving advice from a former judge that the verdict was not unsafe or unsatisfactory, and from the Solicitor-General that no further action should be taken in respect of the petition, the applicant was advised by his solicitors that the Governor had accepted advice to take no further action in respect of the petition.

58. The applicant sought judicial review. Prior J (with whom Wicks J agreed) thought the Court was bound to follow Horwitz v Connor. He said at 114:

It seems to me that to allow judicial review in this case would involve intrusion by the court into the executive sphere not properly severed from but indeed referrable to the prerogative of mercy. (Footnote omitted.)

59. I said that the issues before the Court did not call for a decision as to whether the exercise of the prerogative of mercy was subject to judicial review. I said, however, because a power was a prerogative power did not mean that it could not be subject to judicial review. Whether the power was susceptible to judicial review depended upon its nature or subject matter, not its source. My reasons in that regard were adopted by Bleby J in Xenophon v State of South Australia [2000] SASC 327; (2000) 78 SASR 251 at 263.

60. In Hanratty v Lord Butler (Unreported, Court of Appeal (Civil Division), 12 May 1971), the appellant had brought proceedings against the respondent, Home Secretary, for negligence in the manner in which he had advised on the exercise of the prerogative of mercy. Lord Denning MR said:

These courts have had occasion in the past to cut down some of the prerogatives of the Crown: but they have never sought to encroach on the prerogative of mercy. It is not exercised by the Queen herself personally. It is exercised by her on the advice of one of the principal Secretaries of State. He advises her with the greatest conscience and good care. He takes full responsibility for the manner of its exercise. That being so, the law will not inquire into the manner in which the prerogative is exercised. It is outside the competence of the courts to call it into question: nor would they wish to do so.

61. Salmon LJ said:

As a matter of constitutional practice it is of course well known that the Crown acted upon the advice of the Home Secretary. But the prerogative was, and still would be the prerogative of the Crown alone. It is well established that the courts have no power to review the exercise by the Crown of its prerogative, providing the Crown is acting within the scope of its powers. Nor are the courts entitled to be informed of, let alone to pass any opinion upon, such advice as may have been given to the Crown.

62. In de Freitas v Benny [1976] AC 239, the appellant sought a declaration that the carrying out of the death sentence which had been imposed upon him as a consequence of a conviction for murder would contravene his human rights recognised under the Constitution of Trinidad and Tobago. His action was dismissed, as was an appeal, and he appealed to the Privy Council. In his hearing before the Privy Council, the appellant contended that he was entitled to be shown any advice which was to be tendered to the Governor-General in the Governor-General's consideration of the exercise of the prerogative of mercy. Lord Diplock said at 247-248:

Except in so far as it may have been altered by the Constitution the legal nature of the exercise of the royal prerogative of mercy in Trinidad and Tobago remains the same as it was in England at common law. At common law this has always been a matter which lies solely in the discretion of the sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion. Mercy is not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy. In tendering his advice to the sovereign the Home Secretary is doing something that is often cited as the exemplar of a purely discretionary act as contrasted with the exercise of a quasi-judicial function. While capital punishment was still a lawful penalty for murder in England it was the practice of the Home Secretary in every capital case to call for a report of the case from the trial judge and for such other information from such other sources as he thought might help him to make up his mind as to the advice that he would tender to the sovereign in the particular case. But it never was the practice for the judge's report or any other information obtained by the Home Secretary to be disclosed to the condemned person or his legal representatives.

Section 70 (1) of the Constitution makes it clear that the prerogative of mercy in Trinidad and Tobago is of the same legal nature as the royal prerogative of mercy in England. It is exercised by the Governor-General but "in Her Majesty's name and on Her Majesty's behalf." By section 70 (2) the Governor-General is required to exercise this prerogative on the advice of a Minister designated by him, acting in accordance with the advice of the Prime Minister. This provision does no more than spell out a similar relationship between the designated Minister and the Governor-General acting on behalf of Her Majesty to that which exists between the Home Secretary and Her Majesty in England under an unwritten convention of the British Constitution. It serves to emphasise the personal nature of the discretion exercised by the designated Minister in tendering his advice. The only novel feature is the provision in section 72 (1) and (2) that the Minister before tendering his advice must, in a case where an offender has been sentenced to death, and may, in other cases, consult with the Advisory Committee established under section 71, of which the Minister himself is chairman; but section 72 (3) expressly provides that he is not obliged in any case to act in accordance with their advice. In capital cases the Advisory Committee too must see the judge's report and any other information that the Minister has required to be obtained in connection with the case, but it still remains a purely consultative body without any decision-making power.

In their Lordships' view these provisions are not capable of converting the functions of the Minister, in relation to the advice he tenders to the Governor-General, from functions which in their nature are purely discretionary into functions that are in any sense quasi-judicial. This being so the appellant has no legal right to have disclosed to him any material furnished to the Minister and the Advisory Committee when they are exercising their respective functions under sections 70 to 72 of the Constitution.

63. In Council of Civil Services Unions v Minister for Civil Service at 418, Lord Roskill said:

But I do not think that that right of challenge can be unqualified. It must, I think, depend upon the subject matter of the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of Ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process. The Courts are not the place wherein to determine whether a treaty should be concluded or the arm forces disposed in a particular manner or Parliament dissolved on one date rather than another.

64. There is New Zealand authority which might suggest that the prerogative of mercy is amenable to judicial review. In New Zealand at first instance, Greig J said `... the prerogative of mercy ... is a unique extra-legal, extra-judicial and extraordinary power that cannot be subject to Court review': Burt v Governor-General [1989] 3 NZLR 64 at 74. The matter went to the Court of Appeal (Burt v Governor-General [1992] 3 NZLR 672) which dismissed the appeal but, in doing so, the Court said at 678:

The prerogative of mercy is a prerogative power in the strictest sense of that term, for it is peculiar to the Crown and its exercise directly affects the rights of persons. On the other hand it would be inconsistent with the contemporary approach to say that, merely because it is a pure and strict prerogative power, its exercise or non-exercise must be immune from curial challenge. There is nothing heterodox in asserting, as counsel for the appellant do, that the rule of law requires that challenge shall be permitted in so far as issues arise of a kind with which the courts are competent to deal.

The Court said at 681:

For these reasons the claim that the Courts should be prepared to review a refusal to exercise the prerogative of mercy, at least to the extent of ensuring that elementary standards of fair procedure have been followed, cannot by any means be brushed aside as absurd, extreme or contrary to principle.

Later, at the same page, the Court said:

In the end the issue must turn on weighing the competing considerations, a number of which we have stated. Probably it cannot be said that any one answer is necessarily right; it is more a matter of a value or conceptual judgment as to the place in the law and the effectiveness or otherwise of the prerogative of mercy at the present day.

In attempting such a judgment it must be right to exclude any lingering thought that the prerogative of mercy is no more than an arbitrary monarchical right of grace and favour. As developed it has become an integral element in the criminal justice system, a constitutional safeguard against mistakes.

65. In R v Secretary of State for the Home Department, Ex parte Bentley [1994] QB 349, the Court of Appeal were called upon to consider whether a pardon ought not to be granted to Derek Bentley who had been hanged after being convicted of murder. After reviewing the authorities, to which I have referred, Watkins LJ said at 363:

The C.C.S.U. case [1985] A.C. 374 made it clear that the powers of the court cannot be ousted merely by invoking the word "prerogative." The question is simply whether the nature and subject matter of the decision is amenable to the judicial process. Are the courts qualified to deal with the matter or does the decision involve such questions of policy that they should not intrude because they are ill-equipped to do so? Looked at in this way there must be cases in which the exercise of the Royal Prerogative is reviewable, in our judgment. If, for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of their sex, race or religion, the courts would be expected to interfere and, in our judgment, would be entitled to do so.

We conclude therefore that some aspects of the exercise of the Royal Prerogative are amenable to the judicial process. We do not think that it is necessary for us to say more than this in the instant case. It will be for other courts to decide on a case by case basis whether the matter in question is reviewable or not.

We do not think that we are precluded from reaching this conclusion by authority. Lord Roskill's passing reference to the prerogative of mercy in the C.C.S.U. case was obiter. Hanratty's case and de Freitas v. Benny [1976] A.C. 239 were decided before the C.C.S.U. case [1985] A.C. 374 and neither concerned judicial review of an error of law.

66. de Freitas v Benny and Council of Civil Services Unions v Minister for Civil Service were both followed in Reckley v Minister of Public Safety and Immigration (No 2) [1996] UKPC 1; [1996] 1 AC 527.

67. In Reckley v Minister of Public Safety and Immigration (No 2), Lord Gough of Chieveley in giving the opinion of the Privy Council said (at 541) of R v Secretary of State for the Home Department, Ex parte Bentley and Burt v Governor-General, `neither case was however directly concerned with the possibility of judicial review of the exercise of the prerogative of mercy in a death sentence case; and their Lordships did not for present purposes derive assistance from them'.

68. However, the Privy Council has recently overturned the decision in Reckley v Minister of Public Safety and Immigration (No 2); Lewis v Attorney-General of Jamaica [2001] 2 AC 50. In that case, the Privy Council (with Lord Hoffmann dissenting) decided that a decision made in the exercise of the prerogative of mercy is justiciable and amenable to review.

69. In Lewis v Attorney-General of Jamaica the Privy Council was not able to distinguish the circumstances in that case from those it obtained in de Freitas v Benny and Reckley v Minister of Public Safety and Immigration (No 2) so as to be able to distinguish those cases. The Privy Council therefore was called upon to consider whether it should follow those earlier cases. The Privy Council concluded that having regard to the fact that the death penalty was involved a rigid adherence to a rule of stare decisis was not justified.

70. The Governor-General of Jamaica exercises the prerogative of mercy on the recommendation of the Privy Council of Jamaica, which consists of six persons appointed by the Governor-General after consultation with the Prime Minister.

71. In making that recommendation the only material which the Privy Council of Jamaica was bound to obtain is a report of the trial judge. It was contended by the Attorney-General for Jamaica that applicants, including those sentenced to death, were not entitled to see that report or any other material before the Privy Council or make representations to that body. In so contending, the Attorney-General relied upon the decisions of the Privy Council in de Freitas v Benny and Reckley v Minister of Public Safety and Immigration (No 2).

72. Lord Slynn of Hadley (delivering the majority judgment) said at 75:

It is to their Lordships plain that the ultimate decision as to whether there should be commutation or pardon, the exercise of mercy, is for the Governor General acting on the recommendations of the Jamaican Privy Council. The merits are not for the courts to review. It does not follow that the whole process is beyond review by the courts.

At 77 he said:

Although on the merits there is no legal right to mercy there is not the clear-cut distinction as to procedural matters between mercy and legal rights which Lord Diplock's aphorism that mercy beings where legal rights end might indicate.

Is the fact that an exercise of the prerogative is involved per se a conclusive reason for excluding judicial review? Plainly not. Although in some areas the exercise of the prerogative may be beyond review, such as treaty making and declaring war, there are many areas in which the exercise of the prerogative is subject to judicial review. Some are a long way from the present case, but R v Secretary of State for the Home Department, Ex p Bentley [1994] QB 349, though it does not raise the same issue as in the present case, is an example of the questioning of the exercise of the prerogative in an area that is not so far distant.

73. The majority in the Privy Council observed that in Reckley v Minister of Public Safety and Immigration (No 2) emphasis was placed on the personal nature of the decision making power and, in particular, the discretionary element in the exercise of the prerogative of mercy. However, in Lewis v Attorney-General of Jamaica the Privy Council said at 77:

... in their Lordships' view the act of clemency is to be seen as part of the whole constitutional process of conviction, sentence and carrying out of the sentence.

Lord Slynn said at 78:

The fact that the matters to be taken into account on the merits of the application for mercy go beyond, or are different from those relevant to, guilt or sentence does not lead to the conclusion that judicial review of the procedure is excluded.

Lord Slynn concluded at 79:

The procedures followed in the process of considering a man's petition are thus in their Lordships' view open to judicial review.

74. Lewis v Attorney-General of Jamaica is not inconsistent with the decision Horwitz v Connor if Lewis v Attorney-General of Jamaica can be understood as allowing for judicial review of the procedures which are mandated to be followed in considering a petition for the exercise of the prerogative of mercy. In Horwitz v Connor the High Court said there was no jurisdiction to review the discretion reposing in the Governor-General.

75. There is one further decision in England that needs to be mentioned. In The Queen on the Application of B [2002] EWHC 587 the High Court in England considered an application for judicial review of a decision made in the exercise of the royal prerogative of mercy. The High Court held that a decision concerned with recommending remission of a prisoner's sentence is a decision in exercise of the prerogative of mercy which is amenable to judicial review.

76. The Court said at [22]:

It seems to me that a decision by the Home Secretary on whether in an individual case to recommend remission in a prisoner's sentence because of assistance to the authorities, and if so, on the length of that remission, is a matter amenable to the judicial process. The courts are well qualified to deal with such matters and have regularly to make decisions at first instance or on appeal as to the proper reduction in sentence to be given to reflect such assistance. There is no reason in principle why the exercise of the prerogative of mercy in this respect should be immune from judicial scrutiny and capable of being exercised in a wholly arbitrary way. To borrow Watkins LJ's example in Bentley, were a Home Secretary to refuse remission on the grounds of the prisoner's sex, race, or religion, the court would undoubtedly intervene and would be entitled to do so and indeed Mr Forsdick accepts that.

77. That case seems to suggest a wider basis for review than that which appealed to the majority in the Privy Council in Lewis v Attorney-General of Jamaica.

78. I am constrained by authority to hold that the discretion as to the exercise of the prerogative of mercy is not amenable to judicial review: Horwitz v Connor. I am not, I think, prevented however from concluding that the processes which must be observed either by the statute which empowers the exercise of the prerogative (or statutory) power or by the law generally are subject to judicial review. In Von Einem v Griffin, as I have pointed out, the Court did not need to conclude on whether the decision was reviewable. But insofar as the majority did, they were addressing the decision not the process.

79. I think therefore I am entitled to inquire into whether the decision maker in the Executive discharged its obligations at law in reaching its decision. The decision itself is for the Executive and not subject to review. However, if the Executive has not conducted itself in accordance with the law in reaching that decision and, in particular, not observed the rules of natural justice, the decision must be set aside.

80. When it appears that the decision maker has failed to accord an applicant natural justice as dictated by the Act which empowers the decision or by the law, the decision maker has not acted to exercise the prerogative of mercy. There can be no mercy where the decision maker does not act fairly. That does not mean that the decision itself is subject to review. Indeed, as the law stands, it is not. However, the applicant's complaint is related to the process. I think that he is entitled to have his complaint considered by the Court.

Ground 1: Breach of Natural Justice

81. The applicant submitted that in making the decision to take no further action in relation to the report of Miles AJ, the Executive did not accord the applicant natural justice in that Mr Stanhope pre-judged the decision and did not come to the decision making process with an open mind. In the alternative, he argued the decision was made in circumstances of apprehended bias. The applicant's contentions are directed to the process and, in particular, whether Mr Stanhope was biased or it might be thought that he was. In my opinion, whether those contentions are made out are the proper subject matter for judicial review.

82. The respondent contended that there was no evidence that would support the allegation of bias or prejudgment. Even if there were, it was contended, the rules of natural justice insofar as they involve the rule against bias or prejudgment do not apply to decisions of the Executive in relation to the exercise of the prerogative of mercy.

83. Before turning to the recent decision of the High Court it is worthwhile considering the functions and power of the Executive and its members. Mr Stanhope is the Chief Minister of the Australian Capital Territory elected by the Assembly: s 40 of the Self-Government Act. He is a member of the Executive by reason of that: s 39 of the Self-Government Act. He appoints the other Ministers to the Executive and thus appoints the Executive: s 39 of the Executive.

84. The Executive has the responsibility for the matters in s 37 of the Self-Government Act and, in particular, governing the Territory. The Chief Minister and the Executive are called upon to make political decisions for which they will be answerable to the electors.

85. As politicians, the Chief Minister and the other Ministers who are members of the Executive have a responsibility to communicate with the electorate to keep the electorate informed, especially upon matters of controversy. Mr Winchester's death and Mr Eastman's convictions and appeals have been matters of interest and controversy in the ACT and elsewhere for many years.

86. It may be assumed the inquiry by Miles AJ excited further interest in the electorate in those matters. The Chief Minister needed to keep the electorate advised of the results of that inquiry. In discharging that responsibility the Chief Minister is obliged to speak frankly and plainly. Because politicians communicate with the electorate through the media, they must do so shortly because otherwise the message is not taken up or lost.

87. The High Court has recently considered the question of prejudgment in a decision maker: Re Minister for Immigration and Multicultural Affairs; Ex parte Jia [2001] HCA 17; (2001) 205 CLR 507. In that case, the Minister had made statement in a radio broadcast relating to the character of the respondent. The Minister later had to consider the respondents' character in relation to s 501 of the Migration Act 1958 (Cth) (`Migration Act'). It was asserted that the Minister had by reason of the statements made in the radio broadcast demonstrated that he had prejudged the respondents' character. At first instance, in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, French J found that the Minister had formed `a view strongly adverse to the conclusion that (respondents) could be described as person(s) of good character'. However, French J found that the Minister was not precluded by those views from a consideration of the relevant circumstances in a consideration of s 501 of the Migration Act. The Full Court, by a majority (Cooper J dissenting), reversed that decision holding that the Minister was biased. On appeal to the High Court, Gleeson CJ and Gummow J said at 531-532:

The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. (Footnotes omitted.)

88. Gleeson CJ and Gummow J said at 533:

First, both French J and Cooper J evaluated the statements and conduct of the Minister in the light of his political functions and responsibilities. This is a matter of importance. In considering whether conduct of a decision-maker indicates prejudgment, or in some other respect constitutes a departure from the requirements of natural justice, the nature of the decision-making process, and the character of the person upon whom Parliament has conferred the decision-making capacity, may be of critical importance. French J was right to consider the Minister's conduct in relation to the radio interview, and the letter to the President of the Tribunal, in the light of the fact that he was "an elected official, accountable to the public and the Parliament and entitled to be forthright and open about the administration of his portfolio which ... is a matter of continuing public interest and debate". This is a matter that will be considered further in relation to the argument on apprehended bias. (Footnote omitted.)

89. It was also contended that the Minister was disqualified from decision making because the respondents were denied natural justice as the Minister's decisions were made in circumstances of apprehended bias. In response to the respondents' contention that a fair minded observer might reasonably apprehend that the Minister might not bring an impartial and unprejudiced mind to the task of deciding the matters that require decision, Gleeson CJ and Gummow J said at 538:

The new case of apprehended bias requires closer attention to the content of the requirements of natural justice, and the concept of bias.

In Ebner v Official Trustee in Bankruptcy the majority judgment, referring to the law as to procedural fairness, and apprehended bias, warned:

"The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making." (Footnote omitted.)

They explained how it was that the Minister in that case was in a different position to a person occupying a judicial or quasi judicial office. At 539 they said:

The Minister is in a different position. The statutory powers in question have been reposed in a political official, a member of the Executive Government, who not only has general accountability to the electorate and to Parliament, but who, in s 502, is made subject to a specific form of parliamentary accountability. The power given by s 502 requires the Minister to consider the national interest. As Brennan J observed in South Australia v O'Shea: "The public interest in this context is a matter of political responsibility." ... As the circumstances of the radio interview demonstrate, the Minister himself can be drawn into public debate about a matter in respect of which he may consider exercising his powers. He might equally well have been asked questions about the cases in Parliament. The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. There is no reason to conclude that the legislature intended to impose such standards upon the Minister, and every reason to conclude otherwise. (Footnote omitted.)

90. Kirby J said at 545:

Ministerial decisions are not the subject of the same requirements of actual and manifest independence and impartiality as are required by law of the decisions of courts and tribunals. Nevertheless, the misuse of a high public office by a Minister for ends alien to the legislation conferring powers on the holder of that office would, self-evidently, involve a serious wrong-doing. If proved, it would render the Minister answerable to colleagues in the Ministry and the Minister's political party, to the Parliament and, through public discussion of the matter, to the electorate and the public generally.

However, political sanctions of the last-mentioned kind, peculiar to an elected official constitutionally required to sit in Parliament, by no means exhaust the remedies available for established cases of actual bias. If such bias were based on venality (eg, acceptance of a bribe) or similar abuse of office, criminal offences might also have been committed. Likewise, if the powers of the office were exercised for purposes alien to those for which the powers were conferred, relief under public law could ordinarily be invoked. In such a case, in legal theory, the purported exercise of power for extraneous purposes might be classified as no exercise at all and the decision as void. (Footnote omitted.)

He said at 546:

Nevertheless, because of the seriousness of the alleged wrong-doing, that the Minister had, in effect, given way to his animosity against Mr Jia and people like him or acted upon a prejudgment of his case, it is clear law that such allegations will only be upheld by a court where the accusations are distinctly made and clearly proved. (Footnote omitted.)

91. Callinan J said at 583:

It is also relevant, as both French J and Cooper J observed, to the construction of the sections that the power exercised by the Minister is conferred upon him, and is exercisable by him as a member of the Executive and not as a Court or Tribunal in respect of which rules of procedure and conduct are prescribed by statute or regulations. His is also an exercise of power not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) on a ground of either a breach of the rules of natural justice (s 476(2)(a)), or that the decision was so unreasonable that no reasonable person could have made it (s 476(2)(b)). The Minister as a Minister is obliged to wear two hats, one as a member of the Federal Executive, and another as a person to whom a power as a decision-maker is entrusted. The performance of his duties of office when he is wearing one of them, however, should not be too readily taken to be an indication of the way in which he thinks about, or will discharge his duty when he is wearing the other of them.

92. The applicant argued that the Executive was under an obligation to approach its consideration of the report in the following manner:

First of all, to keep an open mind on the issue, prior to the receipt and proper disposal of the report. Secondly, on receipt of the report, each member of the executive would need to read it and give it genuine and realistic consideration, a flippant or cursory browsing through it wouldn't constitute that. And then at that stage, still keep an open mind, and to have an exchange of opinions between the members of the executive, because its (sic) obviously intended to be a joint decision over the executive. And in order to be impartial, a decision maker such as the respondent would have to be open to persuasion by his cabinet colleagues, as a result of the cabinet discussion of the matter.

93. Mr Eastman argued because the Executive considered the report in two stages it fell into error. First, he said the Executive considered whether to release the report publicly and then announced its decision to do so. Secondly, and much later, it considered whether to take any action in relation to the report and its findings. Mr Eastman asserted that the publicity in relation to the first decision created an apprehension of bias in relation to the second decision.

94. Mr Eastman contended that the statement made by Mr Stanhope on 10 October 2005 indicated that `having opened the report and having found that the primary recommendation accorded with his own wishes, he saw no need to consider the report any further, because the possibility that he might reject the findings of the report was never in his mind'. He said it should be inferred that Mr Stanhope had not at that stage read all of the report but had accepted the recommendation. He said that Mr Stanhope's subsequent television interviews confirmed Mr Stanhope's state of mind as at the date of those interviews.

95. Mr Eastman said that Mr Stanhope's press statement of 14 February 2006 was evidence of actual bias on the part of Mr Stanhope.

96. Mr Eastman contended that because Mr Stanhope was actually biased, or because there was an apprehension that he was biased, the decision of the Executive was thereby tainted. In putting those submissions, Mr Eastman referred on a number of occasions to Mr Stanhope's press release of 10 October 2005 and his television interviews, and his press release of 14 February 2006.

97. In my opinion, the contention that Mr Stanhope was biased must be rejected. He received the report, apparently, on 6 October 2005. He released the report on 10 October 2005 with the press release. Contrary to the submissions put by Mr Eastman, there is no evidence that Mr Stanhope did not read the report. It may be inferred, I think, that Mr Stanhope read the report and accepted the recommendation made by Miles AJ.

98. When he made his statement he would have understood that any decision of the Executive would be based upon Miles AJ's report. There were no further submissions to be made by any party. There was no further information to be obtained. The Executive was to decide simply upon the report of Miles AJ.

99. In my opinion, there is simply no evidence of the kind necessary to support the proposition that, at the time Mr Stanhope said what he said on 10 October 2005, he was biased. Nor, in my opinion, can it be said that, having said what he said, Mr Stanhope was biased when the Executive as a whole considered the report. There is no evidence to suggest that his mind was closed to any argument that might have been made by any other member of the Executive. The contention that Mr Stanhope was biased must be rejected.

100. The contention that the Executive decision was made in circumstance of apprehended bias based on Mr Stanhope's statements, also, in my opinion, must be rejected.

101. The killing of Mr Winchester and Mr Eastman's conviction and the many legal proceedings which have followed are a matter of public notoriety in the ACT. Mr Stanhope, at the relevant time, was the Chief Minister and Attorney-General charged with the responsibility in both positions of administering law and order in the ACT. He had a political responsibility to make some comment on the report of Miles AJ. In my opinion, he said as much as needed to be said but not too much. I agree with the proposition put by the respondent that in circumstances such as this the rules of natural justice are attenuated almost to the point of non-existence.

102. In my opinion, the claim of apprehended bias has also not been made out.

Grounds 2 and 3: Invalidity of report and irrelevant consideration

103. Grounds 2 and 3 depended upon one or other of those arguments being accepted in the matter of Eastman v Miles. For reasons which I have published today, those grounds have been rejected: Eastman v Miles [2007] ACTSC 27. Therefore, in those circumstances, grounds 2 and 3 must fail.

104. The application must be dismissed.

I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Lander.

Associate:

Date: 9 May 2007

Counsel for the applicant: Mr Eastman in person

Counsel for the respondent: Mr Gageler SC

Solicitor for the respondent: Australian Capital Territory Government Solicitor

Date of hearing: 11, 12 July 2006

Date of judgment: 9 May 2007