Attorney-General (Cth) v Ogawa

The case of Attorney-General (Cth) v Ogawa involved Dr Ogawa challenging the legality of the Attorney-General's advice to the Governor-General regarding a petition for mercy, as well as the Attorney-General's decision not to refer the matter under s 672A of the Criminal Code 1899 (Qld). The High Court of Australia was tasked with determining the extent to which the advice given by the Attorney-General and the decision to not refer a matter are subject to judicial review. The central issue before the Court was whether the advice tendered by the Attorney-General to the Governor-General regarding a petition for mercy is amenable to judicial review, as well as whether the Attorney-General's power to refer a matter under s 672A of the Criminal Code is subject to judicial review.

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.