VON EINEM v GRIFFIN & ORS No. SCGRG-98-627 Judgment No. S6858 [1998] SASC 6858

VON EINEM v GRIFFIN & ORS No. SCGRG-98-627 Judgment No. S6858 [1998] SASC 6858 - SASC 1998 case summary — Zoe

[17]

14 The Attorney's powers are expressed to be "ancillary to the prerogative". The powers are powers of reference on Petitions of Mercy as the heading to the section still proclaims. Legislative schemes have changed elsewhere, particularly in England[10]. It seems to me that to allow judicial review in this case would involve intrusion by the court into an executive sphere not properly severed from but indeed referrable to the prerogative of mercy[11]. A more recent approach is to say that review of the Attorney's powers is nothing more than review of a statutory discretion with respect to which there is not the reluctance that prevails with respect to a review of the prerogative[12]. In R v Toohey ex parte Northern Land Council the High Court confirmed the existence of a power to review the exercise of statutory powers by the Executive for alleged improper purposes. Prerogative powers were not in issue. There was however some discussion of the basis of earlier authority which had treated the actions of the Governor or other Vice Regal representatives as immune from judicial review. Absent a clear majority view with respect to the direct authority of Horwitz, this Court must adhere to the propositions of law for which that case stands as authority notwithstanding acknowledgment from some of the justices in Toohey that the absence of a power to review the exercise of prerogative powers might be explained on the basis that the subject matter involved was non-justiciable or because no rights were affected, or because there was no duty to exercise the relevant prerogative discretion which had no precise legal limits in terms of scope, purpose or criteria for exercise. Whilst Mason J thought that a justiciable exercise of prerogative power can be subject to judicial review[13], other justices made a clear distinction[14]. Toohey does not overrule Horwitz. Fifty years after Horwitz a powerful English court denied the reviewability of a statutory power ancillary to the prerogative[15]. The approach of the House of Lords in Council of Civil Service Unions v Minister for Civil Service[16], is to have judicial review applicable to the exercise of prerogative or common law powers provided it relates to a public law matter and the subject matter is justiciable. That approach has not been the subject of an express decision in the High Court. There are decisions of several Australian courts accepting the CCSU approach. In this State, in Blyth Hospital v SA Health Commission[17], King CJ referred to the fact that certain types of decisions by the executive government are subject to review by the courts. His view was that the review occurs "irrespective of whether it is made in the exercise of a power derived from statute, common law or the prerogative"[18]. The Chief Justice went on to say that there must be a wide range of executive government decisions based upon policy and political considerations which are not subject to judicial review and which are not subject to a duty to provide persons affected thereby an opportunity to be heard. Paying due respect to the views which favour judicial review being available with respect to the exercise of a statutory power, even if related in some way to the prerogative and assuming that judicial review is available with respect to the Attorney's s369 powers, it must needs be remembered that judicial review is concerned not with the decision but with the decision-making process[19]. It is "concerned with the merits in, at best, no more than a most limited way"[20].

[53]

"1 An order that the decision of the defendants or one or other of them made between 22 December 1997 and 11 February 1998 to advise His Excellency the Governor to take no further action in respect of the plaintiff's Petition for Mercy and not refer the Petition to the Full Court of the Supreme Court pursuant to Section 369 of the Criminal Law Consolidation Act 1935, be quashed; 2 An order that the decision of the Attorney General not refer the plaintiff's Petition for Mercy to the Full Court of the Supreme Court of South Australia pursuant to Section 369 of the Criminal Law Consolidation Act 1935 be quashed; 3 A declaration that in advising His Excellency the Governor "to take no further action in respect of the Petition as it is not reasonably possible that a miscarriage of justice has occurred" the defendants or one or other of them have - 3.1 failed to apply the correct legal test; 3.2 failed to recognize and identify the substantial procedural defects in the trial process concerning the non disclosure by the prosecution of relevant evidence; 3.3 failed to recognize and identify the flaws in the forensic evidence of the prosecution; 3.4 took into account irrelevant considerations in reaching their decision; 3.5 failed to take into account relevant considerations; 3.6 denied the plaintiff natural justice in reaching their decision; 3.7 concluded without any, or any sufficient, justification that there is no reasonable possibility that a miscarriage of justice has occurred. 4 In the alternative to paragraph 3 above, a declaration that on the basis of the matters set out in the plaintiff's Petition for Mercy it is at least a reasonable possibility that a miscarriage of justice has occurred. 5 A declaration that the Attorney General has unfairly and wrongfully failed to exercise the discretion to refer the plaintiff's Petition for Mercy to the Full Court of the Supreme Court of South Australia pursuant to Section 369 of the Criminal Law Consolidation Act 1935. 6 An order that the Attorney General refer the plaintiff's Petition for Mercy to the Full Court of this Honourable Court pursuant to Section 369 of the Criminal Law Consolidation Act 1935; 7 Such further order or orders as the Court deems appropriate."

[127]

"Except in so far as it may have been altered by the Constitution the legal nature of the exercise of the royal prerogative of mercy in Trinidad and Tobago remains the same as it was in England at common law. At common law this has always been a matter which lies solely in the discretion of the sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion. Mercy is not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy. In tendering his advice to the sovereign the Home Secretary is doing something that is often cited as the exemplar of a purely discretionary act as contrasted with the exercise of a quasi-judicial function. While capital punishment was still a lawful penalty for murder in England it was the practice of the Home Secretary in every capital case to call for a report of the case from the trial judge and for such other information from such other sources as he thought might help him to make up his mind as to the advice that he would tender to the sovereign in the particular case. But it never was the practice for the judge's report or any other information obtained by the Home Secretary to be disclosed to the condemned person or his legal representatives. Section 70(1) of the Constitution makes it clear that the prerogative of mercy in Trinidad and Tobago is of the same legal nature as the royal prerogative of mercy in England. It is exercised by the Governor-General but 'in Her Majesty's name and on Her Majesty's behalf.' By section 70(2) the Governor-General is required to exercise this prerogative on the advice of a Minister designated by him, acting in accordance with the advice of the Prime Minister. This provision does no more than spell out a similar relationship between the designated Minister and the Governor-General acting on behalf of Her Majesty to that which exists between the Home Secretary and Her Majesty in England under an unwritten convention of the British Constitution. It serves to emphasise the personal nature of the discretion exercised by the designated Minister in tendering his advice. The only novel feature is the provision in section 72(1) and (2) that the Minister before tendering his advice must, in a case where an offender has been sentenced to death, and may, in other cases, consult with the Advisory Committee established under section 71, of which the Minister himself is chairman; but section 72(3) expressly provides that he is not obliged in any case to act in accordance with their advice. In capital cases the Advisory Committee too must see the judge's report and any other information that the Minister has required to be obtained in connection with the case, but it still remains a purely consultative body without any decision-making power. In their Lordships' view these provisions are not capable of converting the functions of the Minister, in relation to the advice he tenders to the Governor-General, from functions which in their nature are purely discretionary into functions that are in any sense quasi-judicial. This being so the appellant has no legal right to have disclosed to him any material furnished to the Minister and the Advisory Committee when they are exercising their respective functions under sections 70 to 72 of the Constitution."

[249]

Judicial review has undoubtedly been invoked, and invoked beneficially, to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful. To say that the doctrine of ultra vires defines the scope of judicial review is too restrictive, although Mr Beatson has pointed out that - 'Ultra vires is ... both a powerful constitutional justification for judicial control and a useful organizing principle for the creation of a coherent subject from what has sometimes appeared to be a 'wilderness of single instances'.' ("The Scope of Judicial Review for Error of Law", Oxford Journal of Legal Studies, vol 4 (1984) 22). The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government. In Victoria v The Commonwealth and Hayden, Gibbs J said that the duty of the courts extends to pronouncing on the validity of executive action when challenged on the ground that it exceeds constitutional power, but the duty extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law. The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison: 'It is, emphatically, the province and duty of the judicial department to say what the law is.' The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in doing so, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case."

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Judgment (381 paragraphs)

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Legislation Cited (12)

Cases Cited (18)

VON EINEM v GRIFFIN & ORS No. SCGRG-98-627 Judgment No. S6858 [1998] SASC 6858 (23 December 1998)