Hayden v Her Majesty's Attorney-General for NSW

Hayden v Her Majesty's Attorney-General for NSW concerned an application for leave to appeal against a decision of the Full Court of the Supreme Court of New South Wales. The applicant, Hayden, sought to challenge the Attorney-General's refusal to grant him a certificate under section 527E of the *Crimes Act 1900* (NSW). This section provides for the Attorney-General to grant a certificate that a person has been convicted of an offence and that the conviction is not subject to appeal. Hayden had been convicted of murder in 1977 and had exhausted all avenues of appeal.

The central legal issue before the High Court was whether the Attorney-General's discretion under section 527E of the *Crimes Act 1900* (NSW) was amenable to judicial review. Specifically, the court had to determine if the Attorney-General's refusal to grant a certificate, which would have enabled Hayden to pursue a further appeal to the Privy Council, was based on an error of law or an improper exercise of discretion. The applicant contended that the Attorney-General had failed to consider relevant factors and had acted on an irrelevant consideration.

The High Court held that the discretion conferred by section 527E was not reviewable by the courts. Brennan, Toohey and Gaudron JJ reasoned that the section vested a broad and unfettered discretion in the Attorney-General, and that the purpose of the provision was to allow the Attorney-General to act as a final arbiter in exceptional circumstances, rather than to create a right to further appeal. The court emphasised that the Attorney-General's decision was a political act, not a judicial one, and therefore not subject to the ordinary principles of administrative law. The application for leave to appeal was dismissed.