FEDERAL COURT OF AUSTRALIA
Attorney-General (Cth) v Ogawa [2020] FCAFC 180
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- Case
- [2020] FCAFC 180
- Decision Date
CaseChat Overview and Summary
The Court considered the nature of the prerogative of mercy as part of the executive power of the Commonwealth under s 61 of the Constitution and found that such power is not subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) or any other legislation. The Court held that the decision of a Vice-Regal officer in exercising the prerogative of mercy is not amenable to judicial review, as per the earlier judgment in Martens v Commonwealth of Australia. However, the Court found that the Attorney-General's recommendation to the Governor-General in relation to a petition for mercy is amenable to judicial review under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act), applying the decisions of the Privy Council in Pitman v State of Trinidad and Tobago and Lewis v Attorney-General of Jamaica.
The Court of Appeal in Holzinger, which was also considered in the case, held that the Attorney-General is not bound to refer a case if there is a reasonably arguable case of miscarriage. Instead, the Attorney-General must not refer a case unless satisfied that it is reasonably arguable. The Court examined the relevant authorities in overseas jurisdictions and Australian cases, such as Horwitz, Osland, Eastman, von Einem and Yasmin, to support its conclusion that the prerogative of mercy and statutory power of referral are not amenable to judicial review.
The Court allowed the appeal, set aside the orders dated 28 June 2019, and dismissed the amended originating application filed on 20 July 2018, the cross-appeal, and the notice of contention. There was no order as to costs. Entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders dated 28 June 2019 be set aside, and in lieu thereof, the amended originating application filed on 20 July 2018 be dismissed.
3. The cross-appeal and notice of contention be dismissed.
4. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Court of Appeal also accepted the Attorney-General’s submission in Holzinger to the effect that, having regard to what was said by Dixon J in Swan Hill Corporation v Bradbury [1937] HCA 15; 56 CLR 746 at 757-758 and Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 504 with respect to the well-established principle that whether or not a decision-maker is bound to take into account any particular matter turns on the subject matter, scope and purpose of the legislation, the applicant was wrong to contend that the Attorney-General was bound to refer a case once it was shown that there was a reasonably arguable case of miscarriage. Although the Court acknowledged that the existence of a reasonably arguable case is a necessary condition for the proper commencement of litigation, it added that “may not be a sufficient condition” (at [59]). Their Honours concluded at [60] that the correct proposition was not that the Attorney-General must refer a case if it is reasonably arguable; rather, the Attorney-General must not refer a case unless he or she is satisfied that it is reasonably arguable. From [67] to [74] the Court of Appeal considered authorities in overseas jurisdictions, including the United Kingdom and New Zealand, as to whether the prerogative of mercy and/or statutory power of referral are amenable to judicial review. Their Honours also discussed the relevance of Australian cases such as Horwitz, Osland, Eastman, von Einem and Yasmin. With reference to Horwitz, their Honours said that the High Court had “held that the exercise of the prerogative of mercy is not judicially reviewable” (at [75]). With respect to Eastman, their Honours noted Lander J’s view that he was not prevented by Horwitz from deciding that the processes which must be observed in deciding whether to exercise the prerogative of mercy are subject to judicial review (at [76]). Their Honours in Holzinger also noted however, that, on appeal from Lander J’s judgment, the Full Court of this Court “doubted that the exercise of the prerogative of mercy could be reviewed but did not decide the point” (at [76] with reference to Eastman v Attorney-General (ACT) (2008) 227 FLR 262 at [41]-[42] per Stone and Dowsett JJ, with Moore J agreeing). Even though Mr Holzinger did not directly challenge the Governor’s decision not to grant him a pardon, the Court of Appeal made various observations, properly regarded as obiter dicta, on that subject. With reference to the High Court’s decision in Osland, their Honours emphasised the majority’s observations in that case regarding the possibility of judicial review of a decision to refuse an executive pardon. Although it was unnecessary to determine the issue in Osland, the majority observed that a petitioner seeking a pardon had necessarily exhausted his or her legal rights, with the consequence that “… the petition is based, not upon a claim of legal right, but upon an appeal to an executive discretion originating in the royal prerogative” (Osland at [47] per Gleeson CJ, Gummow, Heydon and Kiefel JJ).