Yasmin v Attorney-General (Cth)

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.