Ogawa v Attorney-General (No 2)

In the matter of Ogawa v Attorney-General (No 2), the Federal Court was asked to review the Attorney-General's decision not to refer a petition for a pardon to the Governor-General or the Queensland Court of Appeal. The petitioner, Dr Ogawa, had been convicted by a State court exercising federal jurisdiction for using a carriage service to make threats and to menace, harass or cause offence. The primary legal issues before the court were whether the Attorney-General had erred in his decision not to refer the petition for a pardon, and whether the exercise of the Royal Prerogative of Mercy is justiciable.

The court held that declaratory relief could be granted in respect of denials of procedural fairness or jurisdictional errors committed by the Attorney-General. The failure to refer the contempt conviction was not a jurisdictional error, as the Attorney-General was limited to the scope of the petition. However, the court found that the jurisdictional errors made by the Attorney-General were material, particularly in relation to the evidence presented at the committal that was not led at the trial. The court concluded that the refusal to defer a case was amenable to judicial review under the Judiciary Act 1903 (Cth) and the Criminal Code 1899 (Qld), and that the conduct of the Attorney-General in refusing to make a recommendation to the Governor-General to exercise the Prerogative of Mercy may be subject to declaratory orders.

The court granted the petitioner declaratory relief in relation to the Attorney-General's decision not to make a favourable recommendation to the Governor-General for the granting of a pardon. The court also quashed the decision not to refer the petitioner's case to the Queensland Court of Appeal and directed the Attorney-General to consider the petitioner's request for the referral of her case according to law. The court further ordered the Attorney-General to pay the petitioner's costs of the proceeding.