Discussion
10 The respondent's case is that the Attorney-General is not subject to any duty to make a decision whether or not to refer a petition for the exercise of the Royal Prerogative of Mercy to the Court of Appeal. Given that s 7 of the ADJR Act depends on the existence of a duty, the applicant cannot obtain the relief sought. The applicant's case, at least insofar as the written submissions are concerned, is that the power of the Attorney-General under s 140 of the Sentencing Act is distinct from, or an alternative to, the prerogative of mercy and amenable to judicial review. Both parties invoked judicial decisions on powers they submitted were analogous to support their competing positions.
11 As the respondent submitted, there is no doubt that the prerogative of mercy itself remains unreviewable (Horwitz v Connor (1908) 6 CLR 38; [1908] HCA 33 at 40, R v Toohey; Ex parte Northern Lands Council (1981) 151 CLR 170; [1981] HCA 74 at 186 and 261, and Eastman v Australian Capital Territory (2008) 2 ACTLR 180; [2008] ACTCA 7 at [33]-[38]).
12 In Mallard v R (2005) 224 CLR 125; [2005] HCA 68 (Mallard) at [6] the High Court described s 140 in these terms:
…the exercise for which s 140(1)(a) of the Act provides is effectively both a substitute for, and an alternative to, the invocation, and the exercise of the Crown prerogative, an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions.
13 No case has considered whether the discretion vested in the Attorney-General by s 140 of the Sentencing Act imposes a duty of any kind on the Attorney-General.
14 However, analogous powers have been considered in other cases.
15 As the respondent noted, the Attorney-General is not subject to any duty to consider whether a prosecution should be instituted (Barton v R (1980) 147 CLR 75; [1980] HCA 48) or to receive and consider representations made by or on behalf of a person committed for trial that no further proceedings be taken against him (Clyne v Evans (1984) 2 FCR 515; [1984] FCA 284).
16 In von Einem v Griffin (1998) 72 SASR 110; [1998] SASC 6858 (von Einem) s 369(a) of the Criminal Law Consolidation Act 1935 (SA) was considered. That section provided that:
Nothing in this Part affects the prerogative of mercy but the Attorney-General, on the consideration of any petition for the exercise of Her Majesty's mercy having reference to the conviction of a person on information or to the sentence passed on a person so convicted, may, if he thinks fit, at any time, either -
(a) refer the whole case to the Full Court, and the case shall then be heard and determined by that Court as in the case of an appeal by a person convicted;
…
17 The petitioner sought an exercise of the prerogative of mercy and requested that the matter be referred to the Full Court as provided for in s 369(a). The Attorney-General decided not to refer the petition to the Full Court. Prior J said (at [9]):
Ninety years ago, the High Court affirmed a common law principle that "no court has jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy" [Horwitz v Connor (1908) 6 CLR 38 at 40]. That decision has not been expressly overruled. Its authority has been acknowledged in later decisions of the High Court and courts in New Zealand [R v Toohey ex parte Northern Lands Council (1981) 51 CLR 170 at 186 and 261; Burt v Governor-General [1989] 3 NZLR 64 (Greig J) and [1992] 3 NZLR 672 (Court of Appeal)]. To the extent that by these proceedings the applicant seeks an order with respect to the advice to the Governor to take no further action in respect of the Petition for mercy, it must be refused upon that authority. So too must the request for a declaration relating to the advice to the Governor.
18 At [14] Prior J said:
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.
19 Prior J continued at [17], saying:
The approach in Horwitz [Horwitz v Connor (1908) 6 CLR 38 at 40], Kinally [Ex parte Kinally (1958) Crim LR 474] and Burt [Burt v Governor-General [1989] 3 NZLR 64 (Greig J) and [1992] 3 NZLR 672 (Court of Appeal)] is against the power to compel the reference. If bad faith or improper motive were made out, it might be appropriate to quash the improper exercise and, at most, call for the consideration of the exercise of the discretion afresh. The Solicitor-General conceded that limited declaratory relief might be appropriate though mandatory orders not, given the approach in certain recent cases.
20 Lander J said this:
[120] Section 369 does not create legal rights. A petition for mercy directed to the Governor does not give rise to any legal rights in favour of the petitioner. The petition assumes all legal rights have been exhausted. A petitioner seeks mercy and no more than that. The presentation of the petition does not allow a petitioner to claim that the matters in the petition should be addressed by the Court under either limb of s 369. If they are to be addressed it will only be because the Attorney General in his unconfined and uncontrolled discretion believes it appropriate.
[121] Section 369 does not require the Attorney General to exercise his discretion. The statutory power given to the Attorney General is entirely discretionary. It is in the nature of a personal power. The power is exercisable, as the section says, if the Attorney General "thinks fit". The discretion is granted without qualification. The discretion is entirely unconfined.
21 In Animals' Angels e.V. v Secretary, Department of Agriculture (2014) 141 ALD 158; [2014] FCA 398 at [42], Edmonds J explained why a permissive power did not necessarily include any duty. At [69] he said:
Just as a power expressed in permissive form may carry a duty to exercise that power in certain situations so also are some powers coupled with a duty to consider whether they should be exercised. However, there is no general rule or presumption that powers carry such a duty. Whether the statute imposes a duty depends upon ordinary principles of statutory construction.
22 On appeal, Animals' Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173 (Animals' Angels), Kenny and Robertson JJ agreed with this reasoning at [52]-[53] and [86]-[93], also saying, at [92]:
…at the level of statutory construction, discretionary powers should not be construed as imposing duties on the basis, and against the possibility, that those powers might be abused.
23 Other examples of powers not coupled with duties are apparent in Brownsville Nominees Pty Ltd v Federal Commissioner of Taxation (1988) 19 FCR 169 at 173 (the power of the Commissioner to issue an amended assessment) and Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50; [1995] FCA 33 (Right to Life) (the power of the Secretary to investigate possible breaches of State law).
24 The respondent relied on these decisions and also submitted that orthodox principles of statutory construction indicated the lack of any duty on the Attorney-General under s 140. As the respondent put it, nothing in the context and language of s 140 of the Sentencing Act suggests a duty on the Attorney-General to do anything in response to a petition. To the contrary: - (i) the language of the section is permissive, (ii) there is no limitation, pre-condition or stipulation relating to the exercise of the power, (iii) these characteristics of s 140 may be contrasted with s 142 ("[i]f in the exercise of the Royal Prerogative of Mercy an order is made in relation to a person serving a sentence of life imprisonment in respect of which an order has been made under section 90(1)(b), the Minister must cause a copy of the order and a written explanation of the circumstances giving rise to it to be tabled in each House of Parliament within 15 sitting days of that House after it is made"), (iv) the subject matter of the power is directly tied to the exercise of the Royal Prerogative of Mercy, (v) the power is to be exercised personally at the highest level of government decision-making and, if exercised, the appeal is directly referred to an intermediate appellate court, disclosing the significant matters of public policy involved, and (vi) while s 140 potentially applies to every petition for mercy, the Attorney-General has other means of responding to such a petition (such as recommending a pardon or exercising other powers under Pt 19 of the Sentencing Act). Against this background, the respondent submitted, it is apparent that s 140 supplements the powers of the Attorney-General in response to a petition for the exercise of the Royal Prerogative of Mercy. To impose a duty on the Attorney-General in respect of such a petition would frustrate that object of expanding the powers available to the Attorney-General, given that any duty would apply to every petition.
25 The applicant referred to Perrier v Kerr, unreported, Federal Court of Australia, VG 865 of 1995, 19 August 1997 in which Ryan J dealt with s 584 of the Crimes Act 1958 (Vic), a provision (now repealed) equivalent to that considered in von Einem. The respondent had decided not to refer the petition to the Full Court. Ryan J held that the decision was reviewable under the ADJR Act.
26 The applicant relied on the reference in Mallard at [6] to the power in s 140 being an alternative to (and thus, on the applicant's case, different from) the prerogative of mercy.
27 The applicant also referred to the statement of Lander J in Eastman v Attorney-General (ACT) (2007) 210 FLR 440; [2007] ACTSC 28 (Eastman) at [78] as follows:
I am constrained by authority to hold that the discretion as to the exercise of the prerogative of mercy is not amenable to judicial review: Horwitz v Connor. I am not, I think, prevented however from concluding that the processes which must be observed either by the statute which empowers the exercise of the prerogative (or statutory) power or by the law generally are subject to judicial review. In Von Einem v Griffin, as I have pointed out, the Court did not need to conclude on whether the decision was reviewable. But insofar as the majority did, they were addressing the decision not the process.
28 Pepper v Attorney-General (Qld) (No 2) [2008] 2 QdR 353; [2008] QCA 207 (Pepper) concerned a decision not to refer a petition for a pardon under the equivalent Queensland legislation permitting the referral of a request to the Queensland Court of Appeal. The question was whether a decision to refuse to so refer the request was reviewable under the Queensland equivalent to the ADJR Act. The Queensland Court of Appeal held that the decision was reviewable. The applicant referred to the statement of Muir JA in Pepper at [11] that:
The Crown prerogative is not derived from statute and is not confined "by any rules or laws of evidence, procedure, and appellate conventions and restrictions" [Mallard v The Queen (2005) 224 CLR 125 at 129]. Proceedings under s. 672A are quite different.
29 In Martens v Commonwealth (2009) 174 FCR 114; [2009] FCA 207 (Martens) at [23] Logan J said:
The discretion conferred by s 68 of the Judiciary Act by applying s 672A of the Queensland Criminal Code is a statutory adjunct to a prerogative of mercy. The prerogative forms part of the executive power of the Commonwealth but, as applied by s 68, the power exercised by the Court of Appeal upon a reference under s 672A is an exercise of the judicial power of the Commonwealth pursuant to a conferral of federal jurisdiction on that court for that purpose by s 68(2) of the Judiciary Act. It is consistent with the views expressed by Lander J in Eastman v A-G (ACT) to regard a Ministerial decision as to whether to engage that statutory adjunct as amenable to judicial review even if, as Horwitz v Connor (1908) 6 CLR 38 would bind me to hold, a decision to refuse a pardon is not itself reviewable.
30 At [24] in Martens Logan J continued:
For completeness, reference should be made to von Einem v Griffin (1998) 72 SASR 110 in which a conception that the feature that the referral power was an adjunct to the prerogative of mercy led a Full Court of the South Australian Supreme Court to hold that a Minister's decision not to refer a case to the Full Court pursuant to that State's analogue of s 672A, s 369(a) of the Criminal Law Consolidation Act 1935 (SA), was not amenable to judicial review. Given that conception, Horwitz v Connor was considered to dictate that result. von Einem v Griffin was not a case where the judicial review application was made under an equivalent of the ADJR Act. In this case though, the view is open that, insofar as he refused to refer the case to the Court of Appeal, the Minister made a decision:
1. under an enactment, namely s 68 of the Judiciary Act, which rendered applicable s 672A of the Queensland Criminal Code;
2. of an administrative character; and accordingly one
3. to which the ADJR Act applies.
von Einem v Griffin is, for this reason alone, distinguishable.
31 Martens, it should be noted, was also a case in which a request had been made for the grant of a pardon or the referral of the case to the Queensland Court of Appeal under s 672A of the Criminal Code 1899 (Qld). The Minister refused the request. The application for judicial review under the ADJR Act alleged the refusal decision was beyond power and invalid for failure to consider a relevant matter.
32 The applicant submitted further that the power in s 140 of the Sentencing Act should be found to be different from the prerogative of mercy in that: - (i) the power is concerned with injustice not mercy, (ii) the referral is to a court and is treated as an appeal, (iii) the power is able to be exercised independently from the sovereign or the Governor-General, and (iv) an information sheet published by the respondent's Department identifies the power as different from the prerogative of mercy.
33 The applicant also submitted that if the power is not amenable to judicial review then Australia is arguably in breach of its international human rights obligations to ensure adequate appeal processes are available. As the applicant put it:
(a) A statute of the Commonwealth or of a State is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law;
(b) The preamble to the International Covenant on Civil and Political Rights ("ICCPR") states that all citizens have a duty to promote and observe the rights in the Covenant;
(c) Article 2 states that each State Party will ensure that all individuals within its territory can avail of the rights and that they will adopt such legislative or other measures as may be necessary to give effect to them;
(d) The right to a fair trial is set out in Articles 9 and 14 and Article 2.3 provides that any person whose rights are violated shall have an effective remedy;
(e) There is no such right of appeal and there is no right to judicial review of a refusal to exercise the statutory referral power;
(f) Hence, "the content of Australia's international obligations will therefore be relevant in determining the meaning of these provisions".
[excludes footnotes]
34 The cases referred to by both parties disclose why it is important to identify the relevant issue. The applicant's case as put in written submissions is that the discretion vested in the Attorney-General is amenable to judicial review. This formulation, however, operates at too high a level of generality to be useful. This is a case in which the Attorney-General has not made any decision. In von Einem, Pepper and Martens decisions refusing the requests had been made. The refusal decisions were held to be reviewable in the latter two cases and unreviewable in the former.
35 However, the issue in the present case, as the respondent's submissions recognised, is only whether s 140 imposes a duty on the Attorney-General to make a decision about referral of a petition to the Court of Appeal. This is because the sole source of relief identified in s 7(1) of the ADJR Act is engaged only if there is a duty to make a decision. The issue is not whether, having exercised the discretion in respect of a petition (for example, to refuse to refer to the petition), that refusal is amenable to judicial review.
36 In oral submissions, the applicant directly confronted this issue.
37 First, the applicant submitted that the reasoning in von Einem is flawed and distinguishable. The statutory provision enabling referral is separate from the prerogative of mercy. The provision enabling referral is concerned not with mercy, but with the correction of miscarriages of justice. Mallard at [6] recognises this essential difference. Further, between von Einem and Eastman, it appears that the reasoning of Lander J may have developed so as to accept reviewability. Finally, as Logan J pointed out in Martens, von Einem did not involve an application for review under the ADJR Act.
38 Second, the applicant noted that while the width of the Attorney-General's discretion under s 140 of the Sentencing Act may be accepted this does not mean a decision is unreviewable if made or that there is no duty to make a decision. Given the importance of s 140 to the criminal justice system, recognised by Logan J in Martens at [53], it should not be assumed that the width of the discretion speaks against the existence of a duty. This is consistent with the observation of Gleeson CJ in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 at [30] (Plaintiff S157/2002) that "courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language". No such clear intention to exclude the existence of a duty is manifest from s 140.
39 Third, the applicant contended that the reasoning of the Full Court in Animals' Angels supports the applicant in the present case. At [90] it was said that the relevant power to issue a show cause notice, if subject to a duty of consideration, would impose an "intolerable burden" because the power was exercisable from time to time. This was in contrast to a statute which requires consideration of a particular issue which, at [89], was said to be more likely to be construed as imposing a "requirement that the repository of the power had a duty to consider its exercise".
40 Fourth, the applicant referred to Enright C, Federal Administrative Law (The Federation Press, 2001) at 84 as follows, in support of the submission that any argument based on the "floodgates" opening was unsubstantiated given that the Attorney-General would not be obliged to consider improper, frivolous or vexatious requests.
[7.24] There are two ways in which a duty to make a decision (which in this context will be a discretion) may arise. First, the duty to make a decision may be explicitly stated in the enabling Act. Thus the Act says: "Official X must then make decision Y".
[7.25] Second, the more typical case, the duty to make a decision is implied and attaches to the decision. Thus a discretion in the form "an official may decide Y" usually carries with it a duty. This needs to be explained.
[7.26] This duty arises because the discretion is a public discretion intended to be exercised for the benefit of members of the public. It arises in either of two circumstances:
(1) A duty arises when an application or request is made for exercise of the power. In the most obvious case a person makes a representation, inquiry or application to the decision maker. A proper application will trigger the duty to make a decision, although the duty does not arise when the application is not a proper application, eg it is frivolous or vexatious.
…
[excludes footnotes]
41 Fifth, the applicant noted that, at some point, it must be that not deciding what to do with a petition becomes a decision not to deal with the petition. To conclude that the latter is reviewable, but the former is not, would be capricious and arbitrary.
42 For the following reasons I find the respondent's answers to these submissions persuasive.
43 This is not a case where there is any suggestion that the Attorney-General has decided not to deal with the petition. There is no decision which is why the application is founded on s 7 of the ADJR Act.
44 The ADJR Act contemplates that a decision which is made is reviewable whether or not there was a duty to make the decision and that a decision which is not made is only reviewable if there is a duty to make the decision. This is 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…"), the fact that s 5 permits review of any decision made and to which the Act applies, and the fact that s 7, which applies to failures to make a decision, requires the existence of a duty to make the decision before the failure is reviewable. Accordingly, it cannot be said that there is anything capricious or arbitrary about a scheme of judicial review which permits review of any decision in fact made, whether there was a duty to make it or not, and excludes review of a decision not made where there is no duty to make the decision.
45 It cannot be said that the power in s 140 is disconnected from the prerogative of mercy. In terms, the provision contemplates that if a petition for the exercise of the prerogative of mercy is made, then the Attorney-General may refer that petition to the appellate court. The provision does not establish a regime separate from the prerogative of mercy. It provides the Attorney-General with another power if a petition requesting the exercise of that prerogative is made. This context is important. On the current state of the law, this context (in which the prerogative of mercy is beyond any form of judicial review) is relevant. It speaks against the existence of a duty on the Attorney-General to do anything under s 140.
46 There is nothing in the language of s 140 which suggests 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 is made. Given the many other procedures available to enable appellate review of convictions by courts and the other powers available if such a petition is made, there is no apparent reason to construe the permissive language of the section as carrying with it an implicit duty. For the same reasons, the applicant's arguments referring to Plaintiff S157/2002 and international obligations are unpersuasive. Section 140 provides an additional option to the Attorney-General when mercy is sought. It does not abrogate any fundamental right. Nor has the applicant explained why other available mechanisms for appellate review are inadequate to discharge Australia's international obligations.
47 Other matters are also relevant. The discretion is available for every petition made. There are no procedural or substantive requirements for the making of a petition by any convicted person. There is no limit on the number of petitions that a convicted person may make. If the Attorney-General had a duty to decide whether or not to refer a petition to the appellate court, that duty would apply in every case. The duty, moreover, is personal to the Attorney-General. While the applicant submitted that improper, frivolous and vexations petitions could be excluded, there is nothing in s 140 which provides any meaningful criteria to characterise any petition in that way. As in Animals' Angels the burden imposed on the Attorney-General by such a construction may well be intolerable. This too speaks against the existence of a duty on the Attorney-General to do anything under s 140. By analogy to the reasoning in Right to Life at 59, although some petitions for mercy may involve a significant public interest element, others may not. Yet the Attorney-General, on the applicant's case, would be bound to consider and make a decision about all petitions, involving the potentially intolerable burden to which I have already referred.
48 In short, the section is permissive. Given the context, and the language of the provision, I would not construe it as imposing any duty on the Attorney-General to decide whether or not to refer a petition to the Court of Appeal.
49 The objection to competency should be upheld and the application dismissed with costs for these reasons.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.