The prerogative of mercy
11 The exercise of the Royal Prerogative of Mercy forms part of the executive power of the Commonwealth which, by s 61 of the Constitution, is vested in the Queen and is exercisable by the Governor‑General as the Queen's representative. That it forms part of the executive power of the Commonwealth necessarily means that it is exercisable only in respect of offences against the laws of the Commonwealth. This is implicit in the Constitution, in contrast with the position in the United States, where it - alongside the power to pardon itself - is explicit. That country also has a federal system of government but its constitution expressly provides (U.S. Const. art. 2 s 2, cl. 1) for a presidential power "to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment", which means federal not state offences.
12 Obviously enough, the Royal Prerogative of Mercy exercisable by the Governor-General extends to the offences against the Criminal Code in respect of which Dr Ogawa was convicted and sentenced. The position in relation to Dr Ogawa's contempt conviction and sentence is less obvious.
13 Hardly unfairly, for the purpose of advising the Governor-General and responsive to the request made in Dr Ogawa's petition, the Attorney and his departmental officers proceeded on the basis that the prerogative was exercisable by His Excellency also in respect of the contempt offence. Consistently, the parties conducted their respective cases on the assumption that the power extended to the contempt conviction and sentence. While that means the subject is not attended with controversy in this proceeding, such a consensus would not supply a source of any jurisdiction to review so much of the decision or related conduct as concerned the contempt conviction and sentence. It is therefore desirable that I record why it appears to me that the assumption of the parties is correct.
14 In trying Dr Ogawa for the offences against the Criminal Code with which she was charged, the District Court was exercising federal, not State, jurisdiction. The offences charged were offences against a law of the Commonwealth. The District Court was invested with federal jurisdiction to try those charges by s 39(2) and s 68(2) of the Judiciary Act, enacted in pursuance of s 71 and s 77(iii) of the Constitution.
15 For that purpose and materially, s 68(1)(c) of the Judiciary Act made the laws of Queensland applicable to the trial on indictment of a person charged applicable to the trial of Dr Ogawa. The power of the District Court under s 129 of the District Court Act to deal with a contempt of that court was made applicable was made applicable by the Judiciary Act to Dr Ogawa's conduct during the course of her trial in one or the other of two ways. Arguably, it formed part of the procedure for her trial on indictment and was thus made applicable by s 68(1)(c) of the Judiciary Act. Such a conclusion would be in conformity with the view expressed by the High Court in relation to s 68 of the Judiciary Act in R v Murphy (1985) 158 CLR 596 at 617, which was that it is a "central provision in the administration and enforcement of federal criminal law" which "fulfils an important role in ensuring that federal criminal law is administered in each State upon the same footing as State law and avoids the establishment of two independent systems of justice". Alternatively and in any event, there being no pervasive federal law in respect of a contempt of a court exercising federal jurisdiction, s 79(1) of the Judiciary Act made s 129 of the District Court Act applicable. That is because "Section 79(1) of the Judiciary Act applies where there is a gap in the law governing the exercise of federal jurisdiction by picking up State laws which regulate the exercise of State jurisdiction and applying them as Commonwealth laws governing the exercise of federal jurisdiction.": Masson v Parsons [2019] HCA 21, at [1]. It is unnecessary finally to determine whether either or each of s 68(1)(c) and s 79(1) of the Judiciary Act rendered s 129 of the District Court Act applicable. The point is that any contempt in this case was a contempt of a court exercising the judicial power of the Commonwealth, not of the State of Queensland. It necessarily follows that it is the executive power of the Commonwealth, not that of the State of Queensland, which is the source of a power to grant a pardon in respect of the contempt offence.
16 In expressing that view, I have considered the possibility that, in a constitution providing for a separation of powers, it might be that the Commonwealth executive power to pardon does not extend to a contempt of a court exercising Commonwealth judicial power. A similar proposition was put in argument before and was expressly rejected by the United States Supreme Court in Ex Parte Grossman, 267 US 87 (1925) (Ex Parte Grossman) where, including by reference (at 110) to early English authority to this effect with respect to the Royal Prerogative of Mercy, it was held that the presidential power to pardon extended to the pardoning of criminal contempts. The correctness of Ex Parte Grossman was affirmed by that court in Schick v Reed, 419 US 256, 266 (1974). In a case where the subject is not controversial and the correctness of the position adopted by the parties is supported by highly persuasive authority, relevant by analogy, as well as by the English authorities mentioned therein, it is neither necessary nor appropriate, in my view, to explore the subject further.
17 Though not expressly stated in Dr Ogawa's amended originating application, the hearing of her application has proceeded on the basis that she sought to invoke the Court's jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) as well as under s 39B(1) of the Judiciary Act.
18 That the source of the power to grant the pardon sought by Dr Ogawa is prerogative, forming part of the s 61 executive power, not statutory, necessarily means that, for the purposes of the ADJR Act and with the exception of the incidental referral power, there is no "decision to which this Act applies", as that term is defined by s 3 of that Act. That definition looks to decisions made under an "enactment" as defined by s 3 of the ADJR Act. Subject to exceptions unnecessary to detail, an "enactment" is an "Act". In turn that means an enactment of the Commonwealth Parliament: s 38(1), Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act). Though the Constitution of which s 61 forms part is found in the Schedule to the Commonwealth of Australia Constitution Act 1900 (UK), that Act is an enactment of the Parliament of the United Kingdom, not of the Commonwealth Parliament. It is what the Acts Interpretation Act terms an "Imperial Act" in contradistinction to an "Act": s 38(2), Acts Interpretation Act. There is a shorter path to this same conclusion which is that para (c) of the definition in s 3 of "decision to which this Act applies" excludes decisions of the Governor-General.
19 The jurisdiction under s 6 of the ADJR Act to review conduct is limited to "where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies" (emphasis added). For these reasons and as the Attorney correctly submitted, when the Attorney declined to make a favourable recommendation to the Governor-General in relation to Dr Ogawa's petition, he was not engaging in conduct for the purpose of the making a decision to which the ADJR Act applied. Rather, he was engaging in conduct for the purpose of the making of a decision in the exercise of a prerogative power.
20 Thus, if the Court has any jurisdiction judicially to review the Attorney's conduct in declining to tender advice to the Governor-General, it must be found, if at all, in that conferred on the Court by s 39B(1) of the Judiciary Act. Subject to presently immaterial exceptions, that jurisdiction is identical to the jurisdiction conferred on the High Court of Australia by s 75(v) of the Constitution.
21 In Martens v Commonwealth of Australia (2009) 174 FCR 114 (Martens), I accepted that the High Court's judgment in Horwitz v Connor (1908) 6 CLR 38 (Horwitz v Connor) bound me to hold that a decision made by a vice-regal officer in the exercise of the Royal Prerogative of Mercy was not amenable to judicial review. Horwitz v Connor has not since been over-ruled by the High Court.
22 In Street v Queensland Bar Association (1989) 168 CLR 461, at 518-519 Brennan J (as his Honour then was) stated:
the doctrine of stare decisis … is least cogent in its application to those few provisions which are calculated to protect human rights and fundamental freedoms …
See also in that case Mason CJ at 489; Toohey J at 560; and McHugh J at 588. It might be thought that any misconception as to the nature and extent of the Royal Prerogative of Mercy which sounded in the dismissal of a petition for its exercise was likewise capable of diminishing the cogency of the doctrine of stare decisis. Even so, the decision to depart from a considered judgment of the High Court is for that court, not for me. I therefore adhere to the view which I expressed in Martens and hold that a decision by the Governor-General to refuse to exercise the prerogative is not amenable to judicial review.
23 But Dr Ogawa has not sought the judicial review of a petition dismissal decision of the Governor-General, but rather of the Attorney's conduct in declining to make a favourable recommendation. Does it necessarily follow from authority about the vice regal decision itself that, as the Attorney submitted, his prior conduct in declining to make a recommendation to His Excellency is necessarily also beyond judicial review under s 39B?
24 Having regard to a course of authority in the Judicial Committee of the Privy Council, to which I was helpfully taken by Dr Ogawa in her submissions, there is influential, persuasive authority to the contrary of the Attorney's submission. In Pitman v State of Trinidad and Tobago [2018] AC 35, at [50] (Pitman v State of Trinidad and Tobago), referring to its earlier judgment in Lewis v Attorney General of Jamaica [2001] 2 AC 50 (Lewis v Attorney General of Jamaica), the Board stated that "the exercise of the prerogative of mercy … is subject to judicial control through judicial review". Stated as baldly as that, the Board's statement looks to be directly at odds with Horwitz v Connor. The time has long passed since the days when a judgment of the High Court at odds with one of the Board on the same subject would present a judge sitting in original Federal jurisdiction with an exquisite dilemma in terms of which was binding: qv Viro v The Queen (1978) 161 CLR 88 at 120. In any event, exploration of the authorities which underpin the Board's statement in Pitman v State of Trinidad and Tobago discloses that the position is more nuanced than that statement would suggest.
25 It is in Lewis v Attorney General of Jamaica at 75-80 that the discussion of principle is to be found. In that case, the Board held that, although there was no legal right to mercy and the merits of the decision of the Governor-General (acting on the recommendations of the Jamaican Privy Council), on the exercise of the Royal Prerogative of Mercy were not reviewable by the courts, nonetheless the exercise of the prerogative, which included the making by the Jamaican Privy Council of the decision to advise the Governor-General was attended with an obligation to observe procedural fairness. In other words, the Board accepted that review on the basis of legality but not merits was possible and that this included the process by which advice was tendered to the Crown. It is the inclusive reference to recommendations which is of particular interest in the present case.
26 In so doing in Lewis v Attorney General of Jamaica, the Board departed from two earlier decisions, de Freitas v Benny [1976] AC 239 (on which the Attorney relied in the present case) and Reckley v Minister of Public Safety and Immigration (No 2) [1996] AC 527 (Reckley No 2). Speaking for the majority, Lord Slynn of Hadley stated in Lewis v Attorney General of Jamaica at 75-76:
It is to their Lordships plain that the ultimate decision as to whether there should be commutation or pardon, the exercise of mercy, is for the Governor General acting on the recommendations of the Jamaican Privy Council. The merits are not for the courts to review. It does not at all follow that the whole process is beyond review by the courts. Indeed it was accepted both by Lord Diplock in Abbott v Attorney General of Trinidad and Tobago [1979] 1 WLR 1342, 1346 and by Lord Goff of Chieveley in the Reckley (No 2) case [1996] AC 527, 539C-E that there is a right to have a petition for mercy considered by the advisory committee. The same must be true of the Jamaican Privy Council.
…
Whatever the practice of the Home Secretary in England and Wales and before the death penalty was abolished in 1965, the insistence of the courts on the observance of the rules of natural justice, of "fair play in action", has in recent years been marked even before, but particularly since, decisions like Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (see, e g, Lloyd v McMahon [1987] AC 625, 702-703; R v Secretary of State for the Home Department, Ex p Fayed [1998] 1 WLR 763) though the long citation of authority for such a self-evident statement is not necessary.
On the face of it there are compelling reasons why a body which is required to consider a petition for mercy should be required to receive the representations of a man condemned to die and why he should have an opportunity in doing so to see and comment on the other material which is before that body. This is the last chance and in so far as it is possible to ensure that proper procedural standards are maintained that should be done.
27 In Australia, so far as amenability to judicial review is concerned, there is no longer any distinction to be drawn between decisions made by Ministers under statute and decisions made by a vice regal officer on the advice of a Minister: R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 and FAI Insurances Ltd v Winneke (1982) 151 CLR 342. Further, in Minister for Arts, Heritage and Environment v Peko- Wallsend Ltd (1987) 15 FCR 274, the Full Court, following views then but recently expressed in Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 (Council of Civil Service Unions v Minister for the Civil Service), held that the fact that a decision involved the exercise of a prerogative power would not necessarily preclude judicial review. As is apparent from the passage quoted above, Council of Civil Service Unions v Minister for the Civil Service is one of the authorities cited by the majority of the Board in Lewis v Attorney General of Jamaica in support of their conclusion.
28 As a general statement, what follows from these Australian cases is that merely because a decision is made by a vice regal officer on advice does not any longer remove that decision from the purview of judicial review. That makes the review limitation found in the ADJR Act, flowing from the definition of "decision to which this Act applies" look distinctly odd in a statute otherwise directed to the reform of Federal public law, qv Matthew Groves, 'Should We Follow the Gospel of the Administrative Decisions (Judicial Review) Act 1977 (Cth)?' (2010) 34 Melbourne University Law Review 736, 751-753. However that may be, the position which must prevail here is that, for reasons already explained, the ADJR Act is not a source of jurisdiction in relation to the refusal to exercise the prerogative. It does not follow from this that s 39B of the Judiciary Act, which is not similarly limited, is not a source of jurisdiction.
29 Lewis v Attorney General of Jamaica represents a deliberate departure by the Board from the view expressed by Lord Roskill in Council of Civil Service Unions v Minister for the Civil Service at 418B that the prerogative of mercy was one of those prerogative powers the exercise of which, by its nature and subject matter, was not amenable to judicial review.
30 Expressly approved in Lewis v Attorney-General of Jamaica were these statements made by Cooke P (as he then was) in Burt v Governor General [1992] 3 NZLR 672, at 681:
… [the] claim that the Courts should be prepared to review a refusal to exercise the prerogative of mercy, at least to the extent of ensuring that elementary standards of fair procedure have been followed, cannot by any means be brushed aside as absurd, extreme or contrary to principle. For example, it is obvious that allegations in a petition, unless patently wrong, should be adequately and independently investigated by someone not associated with the prosecution: the Court could at least check that this has happened.
31 Also referred to with approval in that case was this view of the pardoning power, expressed by Holmes J of the United States Supreme Court in Biddle v Perovich, 274 US 480, 486 (1927):
A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.
32 No less today in Australia could it be said that a pardon is not a "private act of grace". It is an exercise of the executive power of the Commonwealth. The Constitution does not just provide for the vesting of that power in the Governor-General as the Queen's representative. It also provides, via s 75(v) of the Constitution, for the amenability of the exercise of executive power to review for jurisdictional error action or inaction by officers of the Commonwealth. In so doing, it takes no account of the rank or particular position of the Commonwealth officer who has made or who is declining or neglecting to make a decision. As noted, it is the like jurisdiction, conferred by s 39B of the Judiciary Act, which Dr Ogawa has sought to invoke for the purpose of challenging the decision to refuse her a pardon.
33 On first principles, it is difficult to see why the following criticism of Reckley No 2 by T R S Allan in Constitutional Justice (Oxford, 2001) at 174-177, which anticipated Lewis v Attorney-General of Jamaica, ought also not describe why and to what extent a decision in relation to a pardon is amenable to judicial review under s 75(v) or, in this Court, s 39B:
Now, the exercise by ministers of unfettered power in their relations with the private citizen is radically inconsistent with constitutional principle: the notion of a purely administrative or discretionary act that determines a citizen's fate, without recourse to legal safeguards, is a flagrant contradiction of the rule of law. The principle of equality that forbids unjustified discrimination between persons is absolute; and the denial of enforceable rights of procedural fairness and due process therefore leaves the prerogative of mercy open to abuse without any constitutional justification. No proper exercise of a valid legal power, whether in a person's favour or against him, can accurately be called a 'departure from the law': there is no distinction between leniency in the present context and any other case in which a person's treatment is subject to ministerial discretion. If the constitution grants the prisoner recourse to the executive to relieve him of the ordinary consequences of a criminal conviction, he is entitled to precisely the same quality of impartial consideration and treatment as would be accorded any other citizen in similar circumstances. The criteria for the grant or denial of a pardon must be as capable of justification, in terms of the general interest, as those which govern the allocation or distribution of any other public benefit or good: it cannot be denied on arbitrary or capricious grounds. The prisoner must therefore be treated fairly in accordance with those criteria, an obligation whose fulfilment would normally be assisted by considering his representations, enabling him to make his case for clemency.
...
… No one, even if convicted of serious crimes, should in any circumstances be subject to the unfettered discretion of a public official, or be dependent on grace or favour, bestowed on idiosyncratic grounds, and vulnerable to personal antagonism or caprice. The prerogative of mercy is wrongly so called: there is only a prerogative of justice, exercised by, or under the close supervision of, the Queen's courts.
...
… Where the most important interests of the citizen are at stake, the executive should be required to meet the highest standards of fairness and rationality. To treat a decision about the execution of a prisoner as a matter of unfettered discretion is a betrayal of the rule of law in a context where its demands are especially onerous. It is quite mistaken to seek to identify a field of executive power whose nature makes it unsuited to judicial review: the correct approach is always to examine the requirements of equality and procedural fairness, as they apply in the context of the decision-making process in question. Where important issues of public policy arise for which the 'political' branches must take responsibility, the courts must be careful to ensure that the requirements of fairness do not operate to deprive ministers or officials of their legitimate freedom of decision and action. The proper balance between individual right and public interest can only be determined, however, by analysis and argument: it cannot be obtained by wielding the blunt tool of 'justiciability', or designating heads of governmental power as inherently 'political'.
Allan's references to minimum requirements of procedural fairness and due process are not, viewed from an Australian perspective, mere rhetoric but are in conformity with cases such as Annetts v McCann (1990) 170 CLR 596, at 598; Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44, at 61, [51]; and Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 258, [11].
34 In short then and with respect, Horwitz v Connor looks decidedly dated in its eschewing of the amenability of an exercise of the pardoning power to any judicial review. Indeed, there is a discernible trend in those nations of The Commonwealth which remain constitutional monarchies towards acceptance of the position that certain aspects of the exercise of vice-regal power are justiciable: see, in addition to the authorities discussed in this judgment, A Twomey, The Veiled Sceptre, (Cambridge, 2018) at 66. The modern approach looks to the subject for decision, not to the source of the power, in determining the nature and extent to which, if at all, a decision by an officer of the executive is amenable to judicial review. In form, Horwitz v Connor was an application, in the result unsuccessful, for special leave to appeal against a judgment given in the Supreme Court of Victoria that, on the true construction of regulations made under s 540 of the Crimes Act 1890 (Vic), the applicant was not entitled to be released on remission of his sentence. Thus, though the relevant decision-maker was the Governor in Council, the source of the relevant power was statutory, not the prerogative. But the terse observation of the High Court, at 40, is general in its terms:
But a mandamus to the Governor in Council will not lie, and no Court has jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy.
Even if one might characterise this observation as, strictly, a dictum, it represents a considered, unanimous view of the High Court. I am not at liberty to depart from such a unanimous, considered dictum. Further, that view is one later shared by Aickin J in R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170, at 261, who cited the exercise of the prerogative of mercy as a "clear enough example" of a decision not reviewable by any court.
35 In Eastman v Attorney-General for the Australian Capital Territory (2007) 210 FLR 440 (Eastman) at [78], Lander J, sitting as a judge of that territory's Supreme Court, regarded Horwitz v Connor as of continuing authority, binding him to reach a like conclusion. Later, in Osland v Secretary, Department of Justice (Vic) (2008) 234 CLR 275, at [47] (Osland), Gleeson CJ, Gummow, Heydon and Kiefel JJ, though they referred (at [47], fn 44) to Horwitz v Connor, expressly left open the question as to whether it was possible to obtain judicial review of a decision to refuse to grant a pardon.
36 In the present case, the Attorney's submission was that it would be subversive of the authority of Horwitz v Connor for any relief to be granted in relation to any aspect of the conduct or process leading up to the exercise of the prerogative. I do not accept that this follows.
37 The exercise of the Royal Prerogative of Mercy certainly entails a discretionary value judgment. In relation to that value judgment, only the existence of the subject conviction and sentence or penalty could be said to be a mandatory relevant consideration. That value judgment might permissibly include political and even geopolitical considerations in particular cases. It might involve considerations of the kind to which I referred in Martens, at [70], and a related evaluative decision as to whether to make a reference under a provision such as s 672A of the Queensland Criminal Code. It is difficult to see how the evaluative merits of a prerogative of mercy decision could ever be amenable to judicial review: see Shergill v Khairan [2015] AC 359 at 377-378, [41]-[43]. It does not follow from this that the process by which a prerogative of mercy decision is reached is immune from judicial review, much less that a related reference decision is immune from judicial review.
38 In Eastman, having surveyed the Privy Council authorities discussed above (save the yet to be decided Pitman), Lander J, at [79], concluded:
79. I think therefore I am entitled to inquire into whether the decision maker in the Executive discharged its obligations at law in reaching its decision. The decision itself is for the Executive and not subject to review. However, if the Executive has not conducted itself in accordance with the law in reaching that decision and, in particular, not observed the rules of natural justice, the decision must be set aside.
This passage in Eastman is referred to, at [84], by the Full Court in Yasmin v Attorney-General (Cth) (2015) 236 FCR 169 (Yasmin v Attorney-General) but, ultimately, the Full Court chose, at [88], to describe the state of the law in relation to whether the exercise of the prerogative itself is reviewable as "somewhat unsettled". It was unnecessary in that case to do other than that, because it directly concerned whether a decision under a statutory reference power equivalent to s 672A of the Queensland Criminal Code was amenable to judicial review. As it happened, though neither Martens nor the subsequent judgment of the Queensland Court of Appeal, R v Martens (No 2) [2011] 1 Qd R 575 (R v Martens) which, by majority, confirmed the views I had expressed in Martens as to the operation of s 68 of the Judiciary Act, appears to have been cited to the Full Court, the Full Court's conclusion in Yasmin v Attorney-General that the exercise of the referral power was amenable to judicial review accords with the conclusion I had earlier reached in Martens, and for like reasons.
39 I would not, in the face of Horwitz v Connor, go so far as to conclude that the Court, in the exercise of the jurisdiction conferred by s 39B of the Judiciary Act, could set aside a pardon related decision of the Governor-General in Council. However, for just the reasons given by Lander J in Eastman, the Court could, in my view, grant declaratory relief that, for example, an applicant for the exercise of the prerogative had not been afforded procedural fairness or that a decision to decline to make a recommendation, if apparent from reasons furnished to an applicant, entailed a misunderstanding as to the nature and extent of the prerogative power. No narrow view should be taken as to the extent of the Court's power to grant declaratory relief: Edwards v Santos Ltd (2011) 242 CLR 421.
40 In the present case, the submission upon which the Attorney acted in declining to make a favourable recommendation for the exercise of the prerogative of mercy stated in a summary:
Although the Royal Prerogative of Mercy is a broad and discretionary power, long standing convention is for the power to only be exercised if the Attorney-General is satisfied the person is morally and technically innocent of the offence.
The reference to convention was developed in this way elsewhere in the submissions:
Long standing convention is that the granting of a full pardon should only be recommended to the GovernorGeneral if you are satisfied that the convicted person is:
a) morally and technically innocent of the offence in respect of which the pardon is sought, and the offender has no remaining avenue of appeal against his or her conviction, or;
b) morally and technically innocent of the offence, and there are exceptional circumstances justifying the grant of a pardon despite the failure to meet the requirements of the first ground, taking into account the need to respect the separation of powers between the executive and the judiciary.
This high threshold reflects the general policy approach of non-intervention in regard to judicial discretion and a respect for the primacy of the role of the courts in determining criminal guilt and imposing punishment.
The submission was accepted by the Attorney. This acceptance dictated the fate of the petition.
41 These sentiments as to the impact of convention were taken up in the advice of the outcome of her petition, consequentially sent to Dr Ogawa by an officer of the Attorney's department on his behalf:
Having regard to all the relevant information, the Attorney-General is satisfied that you were not morally and technically innocent of the offences of which you were convicted. Petitions for the exercise of the Royal Prerogative of Mercy are considered in view of a person's overall culpability and not just anomalies in respect of a person's conviction. Accordingly, the Attorney-General has made a decision not to exercise the Royal Prerogative of Mercy in relation to your convictions. The Attorney-General also declined to refer your matter to the Queensland Court of Appeal.
While the author of the letter has, with respect, erroneously conflated the decision-maker in relation to the exercise of the prerogative (His Excellency the Governor-General) with the author of the advice upon which, by constitutional convention, the decision-maker acts (here, the Attorney), the provenance of the passage quoted is obviously in the apprehended limitation on the exercise of the pardoning power, arising from the supposed convention extracted above. There is a controversy between Dr Ogawa and the Attorney as to whether such a convention does indeed limit the basis upon which the prerogative may be exercised. Is she, for example, obliged to satisfy the Attorney that she is "morally and technically innocent" before a favourable recommendation may be made? That controversy is one in respect of which declaratory relief could be granted, in my view.
42 The controversy and the understanding of the convention governing the exercise of the Royal Prerogative of Mercy which is revealed to have been held in relation to the disposition of Dr Ogawa's petition are, in my view, identical to the controversy before the court and understanding which once prevailed in the United Kingdom's Home Department revealed in R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349 (Bentley), at 355-356. The resemblance of understanding as between the Attorney and his department in the present case and the Home Secretary and his department in Bentley is so uncanny that it is almost as if those who prepared the submission accepted by the Attorney consulted only a reference work written prior to that case being decided. In Bentley also there was evidence, recited at 358-359, that:
The present Home Secretary is fully aware that there is nothing to prevent him recommending the grant of a free pardon even in a case in which he is not persuaded that the conviction was wrong. … He continues to think that a free pardon should be recommended only when the Home Secretary of the day is satisfied that the convicted person was not guilty of the offence charged.
43 In Bentley, the court did not regard the Home Secretary's understanding just as non-justiciable policy. Instead, the court considered (at 363) that:
the substance of the applicant's case was that the Home Secretary failed to recognise the fact that the prerogative of mercy is capable of being exercised in many different circumstances and over a wide range and therefore failed to consider the form of pardon which might be appropriate to meet the facts of the present case. Such a failure is, we think, reviewable.
The substance of Dr Ogawa's case in relation to the prerogative of mercy aspect was the same. The facts of the present case support her raising such a case.
44 After a truly illuminating survey of the history of this prerogative power in the United Kingdom, a Queen's Bench Divisional Court concluded, in Bentley, at 365:
it is an error to regard the prerogative of mercy as a prerogative right which is only exercisable in cases which fall into specific categories. The prerogative is a flexible power and its exercise can and should be adapted to meet the circumstances of the particular case.
It is exactly this error which is evident in the respondent's understanding as to the only occasion, by convention, for its exercise. Further, in Bentley, the court, at 363, had concluded that whether there was an error of law in the understanding of the prerogative power in the decision as to whether to recommend a pardon was reviewable.
45 The nature and extent of the prerogative power evident in Bentley accords with the understanding evident in this passage in the joint judgment in Osland, at [47]:
The terms "pardon" and "mercy" may create a misleading impression. The power may be invoked in a case where it is alleged that there has been a miscarriage of justice, or in a case where the grounds relied upon are purely compassionate, or in some intermediate situation. The person in question may, or may not, claim to be technically and/or morally innocent. An application for a pardon does not imply an admission of guilt; on the contrary, it may be accompanied by an assertion that there has been a wrongful conviction. Nor does it necessarily imply an assertion of innocence; it may be based upon a contention that the law is unduly harsh either generally or in its application to the particular case, or that there are personal grounds for compassion. The pardon, if granted, may be absolute or conditional. In every case, however, the petition is based, not upon a claim of legal right, but upon an appeal to an executive discretion originating in the royal prerogative.
46 The Attorney's understanding as to the nature and extent of circumstances which, by convention, the prerogative of mercy falls to be exercised is also at variance with what is stated in Osland. Yet that variance is the basis upon which Dr Ogawa's petition has been decided.
47 Regard to Osland, at [47], also discloses another error in the statement in the advice upon which the Attorney acted. An exercise of the prerogative of mercy does not intrude on "the primacy of the role of the courts in determining criminal guilt and imposing punishment". For, as is there stated in the joint judgment in Osland, "By hypothesis, a petitioner has exhausted his or her legal rights."
48 In my view, Dr Ogawa is entitled to a declaration that the exercise of the power under s 61 of the Constitution to grant a pardon is not, by convention, limited to cases where there is satisfaction that the petitioner is morally and technically innocent of the offence but is a flexible power the exercise of which exercise may be adapted to meet the circumstances of the particular case. There is utility in the granting of such a declaration. It will not just correct an error of law, evident from the advice to Dr Ogawa of the decision, in the Attorney's understanding. It also will have practical utility. That a favourable recommendation was not made on an earlier petition does not prevent a fresh petition for the exercise according to law of the prerogative or the making by the Governor-General of a decision on the merits of that further petition. Further, there are circumstances in Dr Ogawa's case which might, on a correct understanding of the nature and extent of the pardoning power, excite clemency even if there were no satisfaction that she was "morally and technically innocent" of the offences of which she was convicted.
49 Examples from the United Kingdom, drawn from the era after Bentley was decided, highlight just how flexible the Royal Prerogative of Mercy is. In 2013, the great mathematician and computing pioneer, Alan Turing, whose genius contributed greatly to the Allied code-breaking successes in the Second World War and who died in 1954, was granted a posthumous pardon in respect of offences of gross indecency of which he had been convicted in 1952 under the then prevailing criminal law: "Royal pardon for codebreaker Alan Turing", BBC News, 24 December 2013: https://www.bbc.com/news/technology-25495315 (Accessed, 19 June 2019). The pardon was expressed by the United Kingdom's Justice Minister as "a fitting tribute to an exceptional man". As is evident from the report of the granting of the pardon, by the time of the decision, the offence of which Turing had been convicted was no longer part of the criminal law and social mores had changed but there was no suggestion that, at the time of the conviction, he was either morally or technically innocent. In 2001, two prisoners incarcerated at a prison farm were granted remission of their sentences in recognition of their bravery in rescuing and thereby assisting in the saving of the life of a prison officer farm manager who had been attacked and gored by a wild boar at the prison farm: "Heroic prisoners freed as reward": BBC News, 19 June 2001: http://news.bbc.co.uk/2/hi/uk_news/wales/1396040.stm (Accessed, 19 June 2019). The power to remit punishment also falls within the Royal Prerogative of Mercy. Once again, there is no suggestion in the relevant report that either of the prisoners was morally or technically innocent of the offences of which they had been convicted and sentenced to imprisonment.
50 As I above and, earlier, other federal judicial officers have observed, Dr Ogawa was adversely affected, prior to the offending conduct, by truly lamentable lapses in federal public administration, including by the now former Migration Review Tribunal. It is by no means impossible to see how, not misled by an erroneous understanding that convention limited the occasion for its exercise, viewing the offending conduct against this wider background and taking into account whatever more recent antecedents are placed before him, the Governor-General might, on advice, decide to temper the justice of Dr Ogawa's convictions and sentences with the mercy of a pardon. It is that quality of the Royal Prerogative of Mercy which was so eloquently captured by William Shakespeare in the passage from The Merchant of Venice which introduced these reasons for judgment. That decision, however, it must be emphasised, is an evaluative judgment for the Governor-General in Council, not for the Court. For the Court to grant declaratory relief, it is enough that there is a justiciable controversy and that the granting of such relief can be seen to be of practical utility. That there is an opportunity to seek a favourable outcome means that there is practical utility in the granting of such relief.