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This important matter concerned the power conferred upon the Attorney-General under s 672A Criminal Code 1899 to refer a petition for a pardon to the Court of Appeal. In dismissing the applicant’s application for judicial review of a refusal by the Attorney-General to refer his petition to the Court, the Court of Appeal discussed the relevant competing authorities and clarified that a decision by the Attorney-General under s 672A is not amenable to judicial review.
Sofronoff P and Morrison and Mullins JJA
12 August 2020
Section 672A Criminal Code 1899 preserves the pardoning power of the Governor on behalf of her Majesty (on the advice of the government) but also permits the Attorney-General to refer any petition for the exercise of the pardoning power to the Court of Appeal. –.
The applicant had been convicted of sexual offences. After his appeal against conviction was dismissed, he presented a petition to the Governor seeking either a pardon or, alternatively, that his petition be referred to the Court of Appeal. The Governor decided not to pardon the applicant, and the Attorney-General determined not to refer his petition to the Court of Appeal. . The applicant sought judicial review of the Attorney-General’s decision pursuant to the Judicial Review Act 1991. . He asserted that the Attorney-General had a duty to refer his case as the matters in his petition raised a “reasonable possibility” of a miscarriage of justice. .
On removal into the Court of Appeal, the central issue was whether the decision of the Attorney-General was amenable to judicial review under Pt 3 of the Judicial Review Act 1991. –.
After making a number of observations about s 672A Criminal Code 1899 at the outset (–), the Court (Sofronoff P, Morrison and Mullins JJA) noted that, to be amenable to judicial review, the Attorney-General’s decision had to be a “decision of an administrative character” made under an enactment and the applicant had to be a person “aggrieved” i.e. a person “whose interests are adversely affected by the decision”. .
Their Honours observed that the power conferred upon the Attorney-General under s 672A is a power to commence litigation. –. The Attorney-General possesses numerous powers that, by their exercise, might result in litigation although it is difficult to characterise a number of decisions in relation to such powers – such as the presentation of an ex officio indictment or the entering of a nolle prosequi – as “administrative”. –. This may be because it is difficult to consider a decision to commence litigation as one creating or extinguishing rights, imposing liabilities or imposing a legal disability like usual “administrative decisions”. . Similarly, a petition of mercy is not based upon a legal right; rather, it “is an appeal to an executive discretion originating in the royal prerogative”. –. Accordingly, their Honours held that the applicant was not a person whose interests had been affected – he had “no right to a pardon” and so the decisions by the Governor and Attorney-General affected no interest of his. .
The Court also rejected the applicant’s submission that the Attorney-General had a duty to refer a petition if it was reasonably arguable. –. Instead, the “real position” was “that the Attorney-General must not refer a case unless she is satisfied that it is reasonably arguable” (emphasis in original). –. Referral to the Court of Appeal is but one of the options open to the Attorney-General. . The Attorney-General has to consider whether referral supports the maintenance of public confidence in the administration of criminal justice. . The relevant supervisory power in relation to s 672A, according to the Court, lies in the Court’s power to control its own process, not in a jurisdiction to review the actual decision-making. .
In rejecting this submission, their Honours disapproved the decisions in Martens v Commonwealth (2009) 174 FCR 114 and Ogawa v Attorney-General (No 2) (2019) 373 ALR 689. These held that s 672A required the Attorney-General to determine whether “there was a reasonable possibility that there had been a miscarriage of justice”. –. The Court considered that the potential outcome of this test made it inappropriate. –. Section 672A extends to petitions relating to Commonwealth offences. When considering such a case, the Court of Appeal exercises federal jurisdiction. . Noting that the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 precludes the Queensland Parliament legislating so as to permit or require the Supreme Court to exercise Executive power while exercising federal judicial power (), their Honours held that:
“Section 672A and the Judicial Review Act should not be construed so as to require the Supreme Court to involve itself in a decision by the Attorney-General whether to commence proceedings in the criminal jurisdiction of the Court of Appeal.” .
Adoption of the applicant’s proposed test could have this result, which was evidenced by Ogawa. The issue of a writ of mandamus in that case was “tantamount to a mandamus directed to the Attorney-General to refer the case to the Court of Appeal”. –. In the Court’s view, “those orders impermissibly constituted a judicial command to the executive to institute proceedings in the criminal jurisdiction of the Court of Appeal”. –.
Instead, the authorities of Von Einem v Griffin (1998) 72 SASR 110 and Secretary, Department of Justice v Osland  VSCA 96, which held that decisions like that of the Attorney-General in this case were not susceptible to judicial review, were to be preferred. These decisions were endorsed in favour of those to the contrary, which also included Pepper v Attorney-General  QSC 16. –.
In the result, the application was dismissed with costs. .