Yasmin v Attorney-General (Cth)

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FEDERAL COURT OF AUSTRALIA

Yasmin v Attorney-General of the Commonwealth of Australia [2015] FCAFC 145

Citation: Yasmin v Attorney-General of the Commonwealth of Australia [2015] FCAFC 145
Appeal from: Yasmin v Attorney-General of the Commonwealth of Australia [2015] FCA 91
Parties: ALI YASMIN v ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
File number: ACD 18 of 2015
Judges: KENNY, ROBERTSON AND MORTIMER JJ
Date of judgment: 21 October 2015
Catchwords:

ADMINISTRATIVE LAW – judicial review of failure to determine whether to refer a petition to the Court of Criminal Appeal (WA) under Sentencing Act 1995 (WA) s 140 – whether primary judge erred in upholding objection to competency – whether Attorney-General under statutory duty to consider and determine whether to refer petition under s 140 – power delegable under Law Officers Act 1964 (Cth) s 17 – purpose of s 140 referral power to correct miscarriages of justice – Held: s 140 imposes duty on Attorney-General to consider and determine personally or through a delegate whether to exercise power

CONSTITUTIONAL LAW – whether s 140 of the Sentencing Act1995 (WA) picked up by s 68 of the Judiciary Act 1903 (Cth) so as to apply s 140 as surrogate Commonwealth law – Held: s 140 picked up by s 68
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3(1), 5, 7, Sch 1
Crimes (Appeal and Review) Act 2001 (NSW) Pt 7 Div 2
Crimes Act 1914 (Cth) s 19AP
Criminal Code (NT) s 431
Criminal Code (Qld) s 672A
Criminal Code (Tas) s 419
Criminal Law Consolidation Act 1935 (SA) s 369
Criminal Procedure Act 2009 (Vic) s 327

Interpretation Act 1984 (WA) ss 3(1), 56

Judiciary Act 1903 (Cth) ss 2, 39B, 68
Law Officers Act 1964 (Cth) s 17
Migration Act 1958 (Cth) ss 232A, 233C
Sentencing Act 1995 (WA) ss 137, 138, 139, 140, 141, Pt 19
Cases cited:

Animals’ AngelseV v Secretary, Department of Agriculture [2014] FCA 398; 141 ALD 158

Animals’ Angels eV v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35
Barton v The Queen [1980] HCA 48; 147 CLR 75
Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378
Clyne v Evans [1984] FCA 263; 2 FCR 515

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; 147 CLR 297

Eastman v Attorney-General (ACT) [2007] ACTSC 28; 210 FLR 440
Ex parte Blackburn [1956] 1 WLR 1193
Ex parte Costello (1868) 2 IR CL 380
Ex parte Newton (1855) 4 El & Bl 870; 119 ER 323
Halliday v Gallagher Bassett Services Pty Ltd [2013] SASCFC 90
Horwitz v Connor [1908] HCA 33; 6 CLR 38
Julius v Lord Bishop of Oxford (1880) 5 App Cas 214
Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573

Mallard v The Queen [2005] HCA 68; 224 CLR 125

Maxwell v Murphy [1957] HCA 7; 96 CLR 261

Minister for Arts, Heritage and Environment…

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Details
Case
[2015] FCAFC 145
Decision Date

CaseChat Overview and Summary

The case of Yasmin v Attorney-General (Cth) involved a challenge to the decision of the Attorney-General not to refer a petition to the Court of Criminal Appeal (WA) under section 140 of the Sentencing Act 1995 (WA). The primary issue before the court was whether section 140 of the Sentencing Act imposed a duty on the Attorney-General to consider and determine whether to exercise the power to refer a petition to the Court of Criminal Appeal. This involved an examination of the language of section 140, the context of the provision in relation to the prerogative of mercy, and the implications of section 68 of the Judiciary Act 1903 (Cth). The court also considered whether the Attorney-General had a statutory duty to consider and determine the matter personally or through a delegate.

The court found that section 140 imposed a duty on the Attorney-General to consider and determine whether to refer a petition to the Court of Criminal Appeal. The reasoning was based on the language of section 140, which provided that the Attorney-General "may" refer a petition, and the context of the provision, which did not establish a separate regime from the prerogative of mercy. The court noted that the power was an additional option available to the Attorney-General when a petition for the exercise of the prerogative of mercy was made. The court further found that section 140 was picked up by section 68 of the Judiciary Act, which applied Commonwealth law to matters otherwise within the jurisdiction of a State court. The court held that the power under section 140 was delegable under section 17 of the Law Officers Act 1964 (Cth). The purpose of the referral power was to correct miscarriages of justice, and this purpose could be achieved through the exercise of the power by a delegate.

The court allowed the appeal, set aside the orders of the primary judge, and remitted the matter to the primary judge for further hearing and determination. The respondent was ordered to pay the appellant's costs of the appeal and the objection to competency. The court's decision clarified the legal obligations of the Attorney-General in relation to the referral power under section 140 of the Sentencing Act and provided guidance on the scope of the power and the implications of section 68 of the Judiciary Act.

Orders

Orders of the court

1. The appeal be allowed.

2. The respondent pay the appellant’s costs of the appeal, as agreed or taxed.

3. The orders of the Honourable Justice Jagot made on 19 February 2015 be set aside and, in lieu thereof, order that:

(a) the respondent’s notice of objection to competency dated 23 January 2015 be dismissed; and

(b) the respondent pay the applicant’s costs of and incidental to the objection to competency, as agreed or taxed.

4. The matter be remitted to the Honourable Justice Jagot for further hearing and determination in accordance with the reasons for judgment of the Full Court delivered on 21 October 2015.

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

By notice dated 23 January 2015, the Attorney-General objected to the competency of the application on the ground that he “is under no duty, within the meaning of s 7 of the Administrative Decisions (Judicial Review) Act 1977, to make a decision regarding whether to refer the [appellant]’s case to the WA court of Appeal [sic] pursuant to s 140(1)(a) of the Sentencing Act 1995 (WA).” The decision of the primary judge The primary judge, at [35], identified the issue as whether s 140 imposed a duty on the Attorney-General to make a decision about referral of a petition to the Court of Appeal. This was because the sole source of relief identified in s 7(1) of the ADJR Act was engaged only if there was a duty to make a decision. The issue was not whether, having exercised the discretion in respect of a petition (for example, to refuse to refer the petition), that refusal was amenable to judicial review. As we read her Honour’s reasons, there were at least four bases on which she determined to uphold the objection to competency, and to dismiss the application. First, the ADJR Act contemplated that, where made, a decision was reviewable whether or not there was a duty to make the decision. However it contemplated that a decision which was not made was only reviewable if there was a duty to make the decision. This was apparent from the definition of “decision to which this Act applies” in s 3(1) (as meaning “a decision of an administrative character made, proposed to be made, or required to be made ...”). It was also apparent from the fact that s 5 of the ADJR Act permitted review of any decision made and to which the Act applies, and the fact that s 7, which applied to failures to make a decision, required the existence of a duty to make the decision before the failure was reviewable. Accordingly, it could not be said that there was anything capricious or arbitrary about a scheme of judicial review which permitted review of any decision in fact made, whether there was a duty to make it or not, and excluded review of a decision not made where there was no duty to make the decision. Second, it could not be said that the referral power in s 140 was disconnected from the prerogative of mercy itself. In terms, s 140 contemplated that if a petition for the exercise of the prerogative of mercy was made, then the Attorney-General may refer that petition to the appellate court. The provision did not establish a regime separate from the prerogative of mercy. It provided the Attorney-General with another power (an “additional option” as her Honour later describes it) if a petition requesting the exercise of that prerogative was made. This context was important. On the current state of the law, this context (in which, her Honour said, the prerogative of mercy is beyond any form of judicial review) was relevant. It spoke against the existence of a duty on the Attorney-General to do anything under s 140. Third, there was nothing in the language of s 140 which suggested the existence of a duty, in contrast to an unfettered power or discretion available to the Attorney-General if a petition seeking the exercise of the prerogative of mercy was made. Given the many other procedures available to enable appellate review of convictions by courts and the other powers available if such a petition was made, there was no apparent reason to construe the permissive language of the section as carrying with it an implicit duty. For the same reasons, the appellant’s arguments referring to Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 and international obligations were unpersuasive. Section 140 provided an additional option to the Attorney-General when mercy was sought. It did not abrogate any fundamental right. Nor had the appellant explained why other available mechanisms for appellate review were inadequate to discharge Australia’s international obligations.

Ratio Decidendi

Legal Principle Established

The attached Information Sheet stated, amongst other things: Consideration of applications – Once a written application is received, the Department will undertake preliminary analysis. Each application is examined on its own merits. While there is no required form, applications are typically based on legal grounds (such as wrongful conviction) and/or non-legal grounds (such as compassionate grounds or undue hardship). An application will generally not be considered further if:Ÿan application presents material that is clearly unmeritorious, frivolous or vexatious; orŸa previous application has been submitted and there are no substantial grounds which were not available or existent at the time of the previous application.If these circumstances are presented, the applicant will be advised that the Department will not proceed with the application. The appellant’s solicitors wrote again to the Attorney-General’s Department on 2 September 2014, mainly about the reference of the request to the Commonwealth Director of Public Prosecutions. A reply was received from the Department on 9 September 2014 and a further reply on 15 September 2014. There was further correspondence in September 2014, including correspondence informing the appellant through his solicitors that “the Minister is not involved in the initial processing of a statutory referral application but is the final decision maker.” By letter dated 14 October 2014 the appellant was informed by the Attorney-General’s Department that the Commonwealth Director of Public Prosecutions accepted that the issues raised in the application associated with the evidence of a doctor given at the age determination hearing provided sufficient justification for referral of the matter to the Court of Appeal. A letter from the Commonwealth Director of Public Prosecutions setting out its views was attached. The appellant was also invited to make further submissions, including addressing the specification of grounds of appeal by the Attorney-General if he decided to make a referral. There was a further letter from the solicitors for the appellant to the Department dated 21 October 2014. The appellant’s solicitors stated:It is noted that you have granted our client until 16 December 2014 to make final submissions in reply before you make recommendations to and seek a decision from the Minister to our client’s application for a referral.It may [be] a coincidence but we cannot help but notice that that date is when our client’s gaol sentence is due to expire. Suffice to say that it would, in our view, be perverse to attempt to delay consideration by the Minister of our client’s request until that time where all material is available to the Minister to make the decision.The immediacy of our reply in this correspondence is prompted by the concern that we maintain for our client where the flawed circumstances of his conviction and sentence continue to weigh heavily upon him.With that in mind, we urge you to place this matter before the Minister now and to seek his urgent decision.