Re Kevin Riordan v Frances Xavier Lockington Connor, Thomas Wilbur Washington Pye, Arthur David Hambly and the Parole Board of the Australian Capital Territory [1981] FCA 18; (1981) 53 FLR 112 (5 March 1981)

FEDERAL COURT OF AUSTRALIA

Re: KEVIN RIORDAN
And: FRANCES XAVIER LOCKINGTON CONNOR, THOMAS WILBUR WASHINGTON PYE, ARTHUR
DAVID HAMBLY and THE PAROLE BOARD OF THE AUSTRALIAN CAPITAL TERRITORY
[1981] FCA 18; (1981) 53 FLR 112
No. G1 of 1981
Administrative Law - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Administrative Law - application by prisoner for parole - opinion of parole board that information before it does not justify release on parole - application to the Court for review of opinion - whether opinion is a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies.

Administrative Decisions (Judicial Review) Act 1977 (Cth.)ss. 3, 5.

Parole Ordinance, 1976 (A.C.T.) s. 19

Administrative Law - Application by prisoner for parole - Opinion of Parole Board that information before it did not justify release on parole - Application to court for review of opinion - Whether opinion is decision to which Administrative Decisions (Judicial Review) Act 1977 (Cth) applies.

Statutes - Interpretation - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 3, 5 - Parole Ordinance 1976 (A.C.T.), s. 19. The applicant was a prisoner who applied to the Parole Board of the Australian Capital Territory for release on parole. The Parole Board acted on information it had before it relating to the applicant's previous conduct and came to the opinion that the applicant should not be released on parole at the time of the application. The applicant applied to the court for the court to review the decision of the Parole Board under the Administrative Decisions (Judicial Review) Act 1977. The question for the court was whether the forming of the Board's opinion was a decision to which the Administrative Decisions (Judicial Review) Act 1977 applied.

Held: (1) The word "decision" in the Act connotes an ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination.

Director-General of Social Services v. Chaney [1980] FCA 87; (1980), 47 FLR 80, applied.

(2) Where a statute is but one of a number of statutes addressed to the same general subject matter, words common to them, especially words of primacy, generally should be construed similarly, not disparately, provided that meaning is one which the words may reasonably bear according to their context in each statute.

HEARING

Sydney, 1981, February 5-6; March 5. 5:3:1981
OBJECTION TO COMPETENCY.

Notice of objection to competency of an application for an order for review of the decision of the respondent Board that the applicant be not released on parole.

T. Barrett (solicitor), for the applicant.

P. Graham, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: Australian Legal Aid Office.

Solicitor for the respondents: B.J. O'Donovan, Commonwealth Crown

Solicitor.

S.M. KIEFEL

ORDER

The application be dismissed. Application dismissed.

DECISION

This case concerns the application, if any, of the Administrative Decisions (Judicial Review) Act 1977 ("the Act") to an opinion of the Parole Board of the Australian Capital Territory ("the Board") that the release of Kevin Riordan ("the applicant") from prison on parole is not justified.

The facts may be briefly stated. On 16 January 1975 the applicant was sentenced by the Supreme Court of the Australian Capital Territory to five years imprisonment on counts of serious crimes of sexual violence. The court fixed a non-parole period of two years. On 7 June 1975 the applicant escaped from custody. He was subsequently arrested in Victoria and convicted there of further sexual charges. He was sentenced to ten years imprisonment.

On 6 April 1979 he was released on parole by the Victorian authorities, then arrested and extradited to New South Wales. In November 1979 he was transferred to the Malabar Training Centre.

On 24 May 1980 the applicant submitted an application to the Board for release on parole. The applicant's non-parole period expired on 20 November 1980.

On 22 December 1980 the applicant received a letter from the Secretary of the Board,dated 15 December 1980, stating that the Board was of the opinion that the information before it did not justify the applicant's release on parole. The letter reads as follows:-

"Dear Mr. Riordan,

The Board has received your letters of 22 November 1980 and 3 December 1980.

On 17 November 1980 the Board considered your application for parole together with a number of other applications. However, shortly before the meeting commenced some additional documents concerning your case reached the Board. The members of the Board took the view that it would be unfair to you to consider your case without studying these documents carefully. However, as your parole period expired on 20 November, the Board fixed a special meeting at 8.00 am on 19 November solely for the purpose of further considering your application. On that morning it became apparent to the Board that later that day you were to appear before the New South Wales Court of Appeal where you wished to contend, amongst other things, that the Australian Capital Territory Parole Board had no jurisdiction to deal with your parole. Again the members of the Board felt that it would be unfair to you to proceed to assume jurisdiction over you when you were challenging the Board's jurisdiction in a superior court. The Board decided, therefore, to consider your matter again when it was advised of the outcome of the proceedings.

The Board considered your application again at its next meeting on 2 December 1980 but felt that there were considerable difficulties in the way of granting you parole in view of your escape and the commission of further offences thereafter. At that stage the Board was of the opinion that the information before it did not justify your release on parole. However, in your interests, the Board decided to reconsider the matter to see whether, in view of the good reports about you from both the Victorian and New South Wales authorities, it might possible (sic) see its way clear to grant your application.

On 12 December, for the fourth time therefore, the Board considered your matter again and regrets that it is still of the opinion that the information before it does not justify your release on parole.

Section 19 of the Parole Ordinance 1976 requires that the Board shall cause a statement in writing of the reasons for its opinion to be given to you and shall direct, if you so request, that you be brought before the Board. If you make a request in writing to be brought before the Board within seven days after the day on which you receive this statement the Board will immediately make arrangements for you to attend and place before it any written or oral material that you would like to be present in support of your application. The Board is required by the Ordinance to take into account any matters put by you to the Board and on previous occasions the Board has altered its view after hearing an applicant in person.

The basic reason why the Board is of the opinion that the information before it does not justify your release on parole is that during the non-parole period you escaped and committed other offences of a similar character to the offences for which you were sentenced in the Australian Capital Territory. The Board feels, on the information before it, that your release might be likely to endanger people in the community.

Yours sincerely,

(C. MURPHY)
Secretary."

On 23 December 1980 the applicant sent a letter signed by him and dated 22

December 1980 to the Secretary of the Board to which was attached a document titled "Kevin Riordan - Applicant's Written Submission". The letter reads as follows:-

"Thank you for your letter of 15 December, which I received today, advising me of the Board's decision in my case. I have read your letter very carefully and I understand that I have the right, under s19 (1)(d) of the ACT Parole Ordinance 1976, to request a personal appearance before the Board.

My objections to the Board's decision, however, are founded on such basic principles of the law that I feel little would be accomplished by my appearance before the Board to explain them in person. Accordingly, I would be grateful if you would pass to the Board for its consideration the enclosed written submission. Such consideration, as far as I am concerned, would discharge whatever responsibility the Board has under s19 (1) (d) of the Ordinance, and the adoption of this procedure would save the expense of having me brought to Canberra to make a personal appearance.

I am mindful of the fact that we are now in the midst of the festive season, since such news does filter through to the prison. Nevertheless, I hope that the Board's consideration may be effected without too much delay and that I will be advised of its outcome shortly afterwards."

It is unnecessary to refer to the contents of the written submission accompanying the letter.

On 30 December 1980 the applicant wrote to the Secretary of the Board in the following terms:-

"On 23 December, in response to your invitation for me to appear personally before the Board in order to pursue my application for parole, I forwarded to you my written submission with a request that it should be used in lieu of such a personal appearance on my part.

I have since, however, received certain knowledge which leads to no other conclusion than that the Board is not a fair tribunal in my case, and I now feel it is pointless for me to require the Board to consider my application again.

I would therefore be grateful if you would arrange for no action to be taken by the Board in respect of the written submission I sent to you."

On 7 January 1981 the applicant filed in this Court an application to review:-

". . . the decision of the respondent Board that the applicant not be released to parole, pursuant to the provisions of the Parole Ordinance (A.C.T.) "

The Board filed an appearance. The application was first listed for directions on 16 January 1981. Leave was given to the applicant to add as respondents the members of the Board in case some question should arise whether the opinion under attack is that of the Board or of its members.

The members of the Board were added as respondents. A notice of objection to competency was filed and served by the respondents in these terms:-

"The Respondents object to the jurisdiction of this Court to try this application for an order to review under the Administrative Decisions (Judicial Review) Act 1977 on the grounds that:

1. the forming of the opinion by the Respondents, under Section 19 of the Parole Ordinance 1976, that the information before them does not justify the release of the Applicant on parole, referred to in Paragraph 12 of the Affidavit, sworn by the Applicant on 1 January 1981 and filed herein, is not a decision within the meaning of the said Act;

2. the Respondents have not yet made a decision as required by Section 19 of the said Ordinance."

The objection to competency came on for hearing before me on 5 February 1981.

Nothing turns on the question whether the relevant opinion is that of the Board or of its members, at least so far as concerns the objection to competency. I shall, for convenience, refer to the opinion as "the Board's opinion".

The question to be decided is whether the forming of the Board's opinion is a "decision to which this Act applies" within the meaning of that expression in the Act.

Section 5 (1) of the Act entitles "a person who is aggrieved by a decision to which this Act applies" to apply to this Court for an order of review in respect of the decision on any one or more of the grounds enumerated in s. 5. The applicant claims to be such a person.

The expression "decision to which this Act applies" is defined by s. 3 (1) as:-

". . . means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General . . . ;"

"Enactment" is defined as meaning, amongst other things, an Ordinance of a Territory other than the Northern Territory. It is common ground that the Parole Ordinance 1976 of the Australian Capital Territory ("the Parole Ordinance") is an "enactment".

The Act defines neither the phrase "decision of an administrative character" nor any of its components including the word "decision". "Decision" is a word of aoristic meaning. Some guidance as to its meaning is given by sub-ss. (2) and (3) of s. 3 which provide:-

"(2) In this Act, a reference to the making of a decision includes a reference to -

(a) making, suspending, revoking or refusing to make an order, award or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing to do any other act or thing;

and a reference to a failure to make a decision shall be construed accordingly.

(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision."

In seeking the meaning of the word "decision"it is useful to keep in mind that the Act is but one of a triad of Commonwealth legislation providing machinery for review of administrative decisions and actions of Commonwealth ministers, official and statutory bodies.

The Administrative Appeals Tribunal Act 1975 established the Administrative Appeals Tribunal and empowered it to review on the merits any decision of a minister, official or statutory body acting under a statutory power; but only if the relevant legislation provides for an appeal to the Tribunal. No general right of appeal against such decisions is conferred; but where an appeal lies to the Tribunal it may review on the merits the decision appealed from and, if necessary, substitute its own decision. Appeals on questions of law lie to this Court.

The Commonwealth Ombudsman was established by the Ombudsman Act 1976. The Ombudsman is not restricted to the review of decisions taken in the exercise of statutory powers. He is empowered to investigate complaints against decisions of Commonwealth officials and statutory bodies, whether made under statutory power or in the ordinary course of administration. He is excluded from reviewing actions by Ministers, but he may investigate a recommendation made by a Department to a Minister. He is not empowered to substitute his own decision for that under review. His power is one of recommendation for corrective action where he thinks that there has been maladministration.

The Act confers jurisdiction on this Court to hear and determine applications by persons aggrieved for "an order of review" in respect of a decision of an administrative character made, proposed to be made, or required to be made under Commonwealth Acts or Ordinances, Rules, Regulations or By-laws.

Judicial review by this Court under the Act does not enable the Court to substitute its own decision for that of the person or body whose action is challenged. The question for the Court generally is whether the action is lawful in the sense that it is within the power conferred on the relevant minister, official or statutory body; or that the prescribed procedures have been followed; or that the general rules of law, including adherence to the principles of natural justice, have been observed. The Court is empowered to enjoin action or to quash a decision it finds unlawful and to direct action to be taken in accordance with law. It may also compel action by a person or body who has not acted, but who ought to have done so.

These three avenues of review, appeal on the merits to the Administrative Appeals Tribunal, investigation by the Commonwealth Ombudsman and judicial review by this Court, represent the principal provisions made by the Parliament of the Commonwealth for remedying grievances about Commonwealth

The meaning of the word "decision" where appearing in s. 44 (1) of the Administrative Appeals Tribunal Act 1975 was considered by the Full Court of this Court in Director-General of Social Services v. Chaney [1980] FCA 87; (1980) 31 A.L.R. 571. That sub-section provides:-

"44. (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding."

Deane J., in whose reasons of judgment Fisher J. concurred, said at p. 590:-

"The word 'decision' is a word of indeterminate meaning. In some contexts, it can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word 'decision' may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issued. When the word 'decision' has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate. . .or be limited to referring only to a determination which effectively disposes of the matter in hand. . ."

The Administrative Appeals Tribunal Act 1975 empowers the Tribunal to review any decision in respect of which application is made to it under any "enactment": s. 25 (4).

Section 3 (3) of the Administrative Appeals Tribunal Act 1975 defines a reference therein to a "decision" as including essentially the same matters as does s. 3 (2) of the Act. Deane J. said of s. 3 (3) in Chaney's Case at p. 591:-

"Section 3 (3) of the Act defines a reference in the Act to a 'decision' as including a reference to a litany of activities of both a positive and negative nature culminating in 'doing or refusing to do any other act or thing'. The provisions of s.3 (3) would seem more apposite to define a reference to the substantive 'decision' of the original decision maker than to confine the scope of a reference to a 'decision' of the Tribunal upon review. Subject to that qualification, the specific activities mentioned in the definition in s. 3 (3), which are in the nature of effective action rather than intermediate 'decision' on the path to such action, provide some indication that a reference to 'decision' in the Act is, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination. The indication which s. 3 (3) provides to that effect is, however, slight".

Northrop J. differed from the majority as to the meaning of "decision" in s. 44 (1); but I do not read his Honour's reasons for judgment as necessarily differing from Deane J. as to the meaning and operation of s. 3 (3). All his Honour said of this was at p. 583:-

"The extended definition of the word 'decision' in s. 3 (3) of the A.A.T. Act does not assist in the determination of this aspect of the appeal."

Plainly, his Honour took the view that the word "decision" in s. 44 (1) did not necessarily derive any colour from the extended meaning of the word in s. 3 (3), because it is the decision of the Tribunal from which an appeal lies on a question of law to this Court to which s. 44 (1) is directed, whereas it is the decision of the original decision-maker whose decision is open to review by the Tribunal to which s. 3 (3) is directed.

The respondents contended that the word "decision" in the Act should be given the same meaning as the majority of the Full Court of this Court attributed to it in Chaney's Case namely, that prima facie, the word connotes an "ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination."

The applicant contended for the latter meaning.

In support of their contention the respondents called in aid s. 6 of the Act which entitles an aggrieved person to apply to this Court for an order for review in respect of conduct which a person has engaged, is engaging or proposes to engage in for the purpose of making a decision to which the Act applies. A reference in the Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of a decision including the taking of evidence or the holding of an inquiry or investigation: s. 3 (5).

Where a statute is but one of a number of statutes addressed to the same general subject matter, words common to them, especially words of primacy, generally should be construed similarly, not disparately, provided that meaning is one which the words may reaonably bear according to their context in each statute. This is especially so where the word in question is fundamental both to the rights of the person with which the statutes are concerned and to the powers of courts or tribunals conferred by the statutes in respect thereof.

This case serves as a good illustration as the Act is but one element in the machinery for review of administrative actions established by the Commonwealth Parliament; the Ombudsman Act 1976 and more especially the Administrative Appeals Tribunal Act 1975 comprising the other elements.

As at present advised, I would be disposed to give the same prima facie meaning to the word "decision" in the Act as Deane and Fisher JJ. ascribed to it in Chaney's Case in respect of the Administrative Appeals Tribunal Act 1975.

My view is consistent with the interpretation placed upon the word "decision" for the purposes of the Administrative Appeals Tribunal Act 1975 by the Full Bench of this Court, a decision to which I was a party, in Duncan v. Defence Force Retirement and Death Benefits Authority and Commonwealth of Australia [1980] FCA 58; (1980) 30 A.L.R. 165.

I turn now to the "decision" under attack in the present case.

It is necessary to examine the relevant provisions of the Parole Ordinance. It provides that the Board shall consist of a Judge of the Supreme Court of the Australian Capital Territory, who shall be chairman, and two part-time members: s. 9. Where a person applies for release on parole, the "authorised officer", in this case the sheriff, is required forthwith to deliver to the chairman of the Board the application and any reports that have been submitted to him in relation to the person: s. 17 (4). When the chairman receives this application he shall convene a meeting of the Board to consider the release on parole of the person by whom the application is made: s. 18 (2).

Section 19 should be set out in full. It provides:-

"19. (1) Where -

(a) the non-parole period in respect of a person has expired; and

(b) the Board is of the opinion that the information before the Board does not justify the release of the person on parole,

the Board -

(c) shall cause a statement in writing of the reasons for its opinion to be given to the person; and

(d) shall direct that, if the person so requests, he be brought before the Board.

(2) A request by a person for the purpose of paragraphs (1) (d) is not effective for the purpose of this section unless it is made in writing before the expiration of a period of 7 days after the day on which the statement referred to in paragraph (1) (c) is given to the person.

(3) Subject to sub-section (4), a person brought before the Board in accordance with a direction under sub-section (1) -

(a) may be asked by a member such questions as the member thinks fit; and

(b) is not bound to answer a question put to him if the answer to the question would incriminate, or would tend to incriminate, the person or his spouse or would tend to expose the person or his spouse to proceedings for an offence against a law of the Commonwealth or of a State or a Territory.

(4) The Chairman may disallow a question put to a person in pursuance of sub-section (3) if, in the opinion of the Chairman, the question is unfair or unduly prejudicial to the person.

(5) Where a statement has been given to a person in accordance with sub-section (1), the Board shall not decline to make a parole order in respect of that person unless -

(a) the person has failed to make a request in accordance with sub-section (2); or

(b) the person has been brought before the Board and, having taken into account the matters (if any) put by him to the Board, the Board is of the opinion that he should not be released on parole."

Section 20 provides, so far as relevant, that where a non-parole period has been fixed in respect of the applicant for parole, the Board may by order, direct that he be released from prison on parole at a time specified in the order.

In the present case, the Board has formed the opinion that the information before it does not justify the release of the applicant on parole. It caused a statement in writing of the reasons for its opinion to be given to the applicant and directed that, if he so requests, he be brought before the Board. It is common ground that no such request was made by the applicant.

Notwithstanding that the applicant has failed to make a request in accordance with s. 19 (2), it does not follow that the Board is obliged to decline to make a parole order. It may change its opinion for a variety of reasons. One that springs readily to mind is that material may be placed before the Board which it did not have when forming its earlier opinion.

Indeed, the language of s. 19 (5) itself supports the conclusion that further action is required by the Board either because the applicant for parole has failed to make a request in accordance with s. 19 (2) or, having been brought before the Board, it is of the opinion that he should not be released on parole after taking into account the matters, if any, put by him to the Board.

Nothing follows directly from the Board's initial opinion save that the machinery of s. 19 is invoked to permit the applicant, if he so desires and, provided he makes his request in writing within the specified period, to be brought before the Board and put his case to it as to why he should be released on parole.

Once the Board has considered again the question of the applicant's parole, after he has failed to make a request in accordance with s. 19 (2) or has been brought before the Board and put whatever he wishes to it, the Board must then decide whether or not the applicant should be released on parole. Whether that is a "decision" within the meaning of the Act is not a question that arises on the hearing of this objection to competency, so I say nothing about it.

For the same reason I say nothing as to whether the forming of the Board's opinion answers the description of "conduct engaged in for the purpose of making a decision" for the purposes of ss. 6 and 3 (5) of the Act.

In my opinion the forming of the Board's opinion was not an "ultimate or operative determination". Nor was it "an adjudication or determination of issues arising in the course of making such an ultimate or operative determination". It was merely the catalyst that entitled the applicant to appear before the Board and put his case if he wished to do so. It enabled him to invoke the audi alteram partem rule embodied in s. 19. If my view be wrong, then the forming of the Board's opinion was the determination of an issue arising in the course of making an ultimate determination and not an ultimate determination itself.

In either case, there was no "decision" within the meaning of the Act.

I should add that it was not argued that the very character of the Board itself, the task which it is called upon to perform under the Parole Ordinance and the powers which it may exercise may lead to the conclusion that, although it may make decisions, they are not of an administrative character.

Nor was the question argued, whether the applicant is "a person who is aggrieved" by a decision to which the Act applies.

In the result, the objection to competency succeeds. I order that the application be dismissed. I will hear argument, if any, on the question of costs.