FEDERAL COURT OF AUSTRALIA

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

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

the court

Introduction

1    This appeal is from the orders made by a judge of this Court on 19 February 2015 upholding the respondent’s objection to competency and, on that basis, dismissing an application for judicial review of “the failure of the respondent to decide whether to refer the [appellant] to the Court of Appeal of Western Australia as requested by letter of the [appellant]’s solicitors to the respondent dated 16 July 2014”: Yasmin v Attorney-General (Cth) [2015] FCA 91, 323 ALR 419. There is authority that an order so dismissing an application is interlocutory (SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75; 168 FCR 410 at [23], [68] and [114]) and, at the Court’s suggestion, the appellant sought, and the respondent did not oppose, leave to appeal. Leave was granted accordingly.

2    The central question is whether the Attorney-General of the Commonwealth is under a statutory duty to consider and determine whether or not he should refer to the Court of Appeal a petition under s 140 of the Sentencing Act 1995 (WA). The primary judge held that the Attorney-General was not under such a duty. For the reasons we set out below, we respectfully disagree with her Honour’s conclusion and allow the appeal.

3    A preliminary question of jurisdiction, raised by the Court on the appeal in the course of case management, is whether s 140 of the Sentencing Act is picked up by s 68 of the Judiciary Act 1903 (Cth) so as to apply s 140 as surrogate Commonwealth law.

The preliminary question

4    Section 140 of the Sentencing Act is in the following terms:

Petition for mercy may be referred to Court of Appeal

(1)    A petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment, or to the sentence imposed on such an offender, may be referred by the Attorney General to the Court of Appeal either —

(a)    for the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be); or

(b)    for an opinion on any specific matter relevant to determining the petition.

(1a)    When making a referral under subsection (1)(a) the Attorney General, having regard to the petition, may specify the grounds of appeal to be heard and determined by the Court of Appeal.

(2)    The Court of Appeal must give effect to the referral.

5    It may be noted that s 140(1a) post-dates the form of legislation under consideration in Mallard v The Queen [2005] HCA 68; 224 CLR 125, to which we refer in more detail below.

6    Section 68(1) of the Judiciary Act is in the following terms.

Jurisdiction of State and Territory courts in criminal cases

(1)    The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:

(a)    their summary conviction; and

(b)    their examination and commitment for trial on indictment; and

(c)    their trial and conviction on indictment; and

(d)    the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.

(2)    The several Courts of a State or Territory exercising jurisdiction with respect to:

(a)     the summary conviction; or

(b)     the examination and commitment for trial on indictment; or

(c)     the trial and conviction on indictment;

of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.

7    Section 2 of the Judiciary Act defines “appeal”, unless the contrary intention appears, to include “an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any Court or Judge.” We note that the definition is inclusive and we also note that Gleeson CJ in R v Gee [2003] HCA 12; 212 CLR 230 at [13] said with reference to appeals by way of a case stated:

There is no reason why the reference to appeals in s 68(2) should not be applied with full generality, having regard to the purpose of Div 1 of Pt X of the Judiciary Act. … It does not further the general policy of placing the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State to treat the provisions of Div 3 of Pt X as, in effect, confining the case stated procedures provided for by the Judiciary Act to those of the kind in force at the time of Federation. The fact that this might result in a degree of overlap between Div 1 and Div 3 does not alter the case. This Court said, in Owners of “Shin Kobe Maru” v Empire Shipping Co Inc:

“It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.”

(Citations omitted.)

8    The appellant submitted that the procedure provided for by s 140 was, within the meaning of the Judiciary Act, a proceeding to review the decision of a court (in this case, the conviction imposed by the District Court). In its terms, the appellant submitted, s 140 provided for the Court of Appeal to hear and determine the whole case “as if it were an appeal”. Accordingly, the procedure was an appeal to which s 68(2) of the Judiciary Act referred. The appellant referred in particular to R v Martens (No 2) [2009] QCA 351; [2011] 1 Qd R 575. The appellant submitted that s 140 as picked up by s 68(2) operated in the same way as in the case of an ordinary appeal, that is, it conferred upon the relevant Commonwealth officer power to decide whether to make a referral.

9    The respondent submitted that having regard to the broad definition of “appeal”, a referral fell within the expression “appeals arising out of any such trial or conviction”. In this respect the respondent took the same view as the appellant. He submitted that this reflected the position taken consistently by the Attorney-General in relation to like powers in the various States, referring to Perrier v Kerr (unreported, Federal Court, Ryan J, 19 August 1997). The respondent submitted it had been held in relation to similar circumstances that s 68 of the Judiciary Act gave the Commonwealth Attorney-General a power analogous to that of his state counterparts: Peel v The Queen [1971] HCA 59; 125 CLR 447 at 456-457, 460 and 468-469 and Rohde v Director of Public Prosecutions [1986] HCA 50; 161 CLR 119 at 124-125.

10    In our opinion, at the level of determining which law applies, s 68(1) of the Judiciary Act has work to do. In the present case it is not so much a matter of whether the Court of Appeal of Western Australia will have jurisdiction but a question of whether s 140 of the Sentencing Act as picked up by s 68 of the Judiciary Act confers a power on the Commonwealth Attorney-General. Indeed if the respondent’s submissions, upheld by the primary judge, are correct the petition may never reach the Court of Appeal. We accept of course that s 68(1) is in a sense ancillary to the conferral of jurisdiction on the several courts of a State or Territory by s 68(2).

11    The question as we see it is whether s 140 of the Sentencing Act is a law of the State respecting the procedure for the hearing and determination of appeals arising out of the trial or conviction of the appellant or out of any proceedings connected therewith. We see no difficulty with s 140 being taken to be part of the available procedure for the hearing and determination of appeals arising out of any trial or conviction on indictment. Even if a petition is not successful it may be seen as part of the procedure for the hearing and determination of appeals as it seeks to set in train, by a referral, the case to be heard and determined as if it were an appeal by the offender. Further, the word “proceedings” in s 68(1)(d) of the Judiciary Act should not be given a limited meaning so as to exclude a petition “for the exercise of the Royal Prerogative of Mercy” which may be referred by the Attorney-General to the Court of Appeal for the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be), to use the words of s 140.

12    In our opinion, s 68 of the Judiciary Act operated to apply s 140 of the Sentencing Act. We agree with the similar conclusion of the majority in the Court of Appeal of Queensland in R v Martens (No 2). We do not share the seeming scepticism expressed in Nudd v Minister for Home Affairs [2011] FCAFC 105; 122 ALD 529 at [10].

Chronology

13    On 22 December 2010, the appellant pleaded guilty and was convicted of an offence of people smuggling contrary to s 232A of the Migration Act 1958 (Cth) and was sentenced to five years’ imprisonment. At the time, s 233C provided for a mandatory minimum sentence of five years’ imprisonment, unless it was established on the balance of probabilities the offender was under 18 years at the time of the offence.

14    In April 2012, the appellant’s then solicitors, Legal Aid Western Australia, requested a pardon for the present appellant under the Royal Prerogative of Mercy or alternatively a referral to the Court of Appeal of Western Australia pursuant to s 140 of the Sentencing Act. Shortly stated, the basis of the application was that, although the present appellant had been sentenced to the mandatory minimum sentence of five years’ imprisonment for the offence of people smuggling, his instructions were that he was under the age of 18 at the time he committed the offence. This request, at that stage in the alternative and not limited to a request under s 140, was supported by detailed reasoning, which centred on the alleged infirmity of the age determination evidence led at the age determination hearing held to determine the District Court’s jurisdiction to hear the charges against the appellant.

15    On 30 April 2012 Legal Aid Western Australia provided further detailed materials, including a report from a diagnostic radiologist, in support of the request.

16    On 10 May 2012 the Attorney-General released the appellant on licence under s 19AP of the Crimes Act 1914 (Cth) on the basis of exceptional circumstances justifying his immediate release. The letter from the Attorney-General referred to the appellant’s request for a pardon or referral to the Western Australian Court of Appeal. It seems the early release decision by the Attorney-General was a response to both requests. The letter asked the appellant to advise the Attorney-General’s Department whether he wished to continue with his application for a pardon or referral.

17    On the evidence before the Court, some considerable time (more than two years) then passed without any substantive steps being taken by those acting on behalf of the appellant, or by the Attorney-General. Then, by letter dated 16 July 2014 to the Attorney-General of the Commonwealth, the appellant through his solicitors again requested the Attorney-General to refer to the Court of Appeal of Western Australia under s 140 of the Sentencing Act the age determination hearing conducted in the District Court. Again the request contained detailed reasoning in support of it. We note that in this request the present appellant no longer sought a pardon, but only a referral, under s 140.

18    By letter dated 4 August 2014 a Principal Legal Officer in the Federal Offenders Unit of the Attorney-General’s Department replied to the present appellant’s letter dated 16 July 2014 relevantly stating:

Please find attached a copy of the Department’s information sheet concerning the Royal Prerogative of Mercy and statutory referral process. The Department understands that Mr Jasmin is only applying for a statutory referral of his case. If Mr Jasmin would also like his case to be considered under the RPM can you please advise the Department in writing as soon as possible.

In the meantime, the Department will proceed to seek submissions on the claims made in the application from the Commonwealth Director of Public Prosecutions. Please note that the application will be provided to the CDPP as part of this process.

Please be aware that given the complex nature of such applications there is usually a lengthy timeframe before a decision is made.

19    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:

•    an application presents material that is clearly unmeritorious, frivolous or vexatious; or

•    a 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.

20    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.”

21    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.

22    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.

23    A response dated 28 October 2014 stated that the Department “is in the process of assessing the whole case” and would submit it to the relevant Minister for his decision as to whether the case should be referred to the Court of Appeal in accordance with s 140(1)(a) of the Sentencing Act.

24    Consistently with their previous requests that the matter be finalised, the solicitors for the present appellant wrote again on 11 November 2014 asking for confirmation that the Minister had been briefed and when the appellant may expect a decision. A reply was received dated 24 November 2014 stating that the Department was of the view that there had been no delay and that it “continues to process Mr Jasmin’s application with due diligence, in order to ensure that the relevant Minister is able to make an informed decision on the application”. There was further correspondence from the appellant’s solicitors on 3 and 5 December 2014, repeating their assertion of undue delay. In the second letter, the appellant’s solicitors stated:

Noting our client’s original request for statutory referral was made on 16 July 2014, please provide a proper and responsive update or a decision by no later than 10:00 am on Monday, 8 December 2014.

25    The Department sent an email response on 5 December 2014, which included the following statement:

You have requested advice on why there have been delays with this matter. I wish to advise you that there have not been any delays in the Department’s consideration of this matter.

The process of considering a complex application as this does take time.

As soon as we are in a positon provide [sic] you with an update for your client we will.

26    We infer there was otherwise no further response or communication on behalf of the Attorney-General, and on 9 December 2014 this proceeding was commenced.

Originating application

27    In his application for judicial review the appellant seeks orders:

relating to the failure of the respondent to decide whether to refer the applicant to the Court of Appeal of Western Australia as requested by letter of the applicant’s solicitors to the respondent dated 16 July 2014.

28    He identified the orders sought in the following terms:

1.    A declaration that the delay by the respondent in deciding whether to refer the applicant to the Court of Appeal of Western Australia as requested by the applicant’s solicitors by letter dated 16 July 2014 constitutes “unreasonable delay” within the meaning of sub-section 7(1) of the Administrative Decisions (Judicial Review) Act in the making of the decision as to whether to refer the applicant to the Court of Appeal of Western Australia.

2.    An order that the respondent determine within 14 days whether he will refer the applicant to the Court of Appeal of Western Australia.

29    Section 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) is in the following terms:

Applications in respect of failures to make decisions

(1)    Where:

(a)      a person has a duty to make a decision to which this Act applies;

(b)    there is no law that prescribes a period within which the person is required to make that decision; and

(c)    the person has failed to make that decision;

a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.

30    It is not suggested that a decision under s 140 of the Sentencing Act (being a surrogate Commonwealth law: see [12] above) is not a “decision to which this Act applies” within the meaning of s 3(1) of the ADJR Act: see in particular Sch 1 of that Act.

31    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

32    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.

33    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.

34    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.

35    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.

36    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.

37    Fourth, her Honour considered that other matters were also relevant. The s 140 discretion was available for every petition made, and there were no procedural or substantive requirements for the making of a petition by any convicted person. Thus, there was 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, was personal to the Attorney-General. While the appellant submitted that improper, frivolous and vexatious petitions could be excluded, there was nothing in s 140 which provided any meaningful criteria to characterise any petition in that way. In her Honour’s view, just as in Animals’ Angels eV v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35, the burden imposed on the Attorney-General by such a construction may well be intolerable, and spoke against the existence of a duty on the Attorney-General to do anything under s 140. Her Honour saw an analogy to the reasoning in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; 56 FCR 50 at 59, finding that although some petitions for mercy may involve a significant public interest element, others may not. Yet on the appellant’s case, the Attorney-General would be bound to consider and make a decision about all petitions, involving the potentially intolerable burden to which the primary judge had referred.

38    In short, the primary judge concluded, s 140 was permissive. Given the context, and the language of the provision, it did not impose any duty on the Attorney-General to decide whether or not to refer a petition to the Court of Appeal.

CONSIDERATION

39    In our opinion, the resolution of this appeal depends upon a question of statutory interpretation.

The subject matter of the appeal

40    As we have noted, this appeal is from the upholding of an objection to competency by the respondent. The primary judge had no occasion to consider whether all of the requirements in s 7 of the ADJR Act had been met, in particular whether there had been, on the evidence, “unreasonable delay” in making a decision whether to refer the petition to the Court of Appeal.

41    Our construction of s 140 means that, absent any agreement by the parties, the matter must be returned to the primary judge for determination of the remainder of the issues arising under s 7 of the ADJR Act.

Preliminary observations

42    We accept the respondent’s submission that the primary judge was faced with written submissions which engaged more with reviewability of an exercise of the referral power, than with the implication of a duty to consider its exercise. The duty point was, we accept, developed more in oral argument before the primary judge, and then developed substantially more on the appeal before this Court. While we disagree with her Honour’s conclusion, she did not have the benefit of the more focused argument put on appeal.

43    Both parties made submissions from what they each contended was the “correct” starting point for the analysis. The appellant contended, relying on observations in Stovin v Wise [1996] AC 923 at 950, that the “starting point” was that a public body almost always has a duty to consider whether it should exercise its powers, and that it was legitimate to approach s 140 with a presumption in favour of an implied duty to consider the exercise of the power.

44    The respondent contended that the “starting point” was the permissive language used in s 140, which he contended should be taken as indicative of Parliament’s intention that the power was not subject to any duty to consider its exercise.

45    With respect to each of the submissions put, we do not consider it helpful to approach the question of statutory construction from either of these somewhat fixed perspectives.

46    In Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [24]-[25] French CJ and Hayne J said:

The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole” and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.

Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure.

(Citations omitted.)

47    Although passages such as this speak at a level of generality which is open to criticism that it provides no real guidance, the contrary is the case. The determination of legal meaning occurs within the particular statute giving rise to the interpretative controversy, or the constructional choice. As appropriate, the Court as interpreter draws on normative principles (including principles such as legality) but only because the Court as interpreter is entitled to, and does, assume that common law and statutory principles of construction are known to and employed by the drafters of the text, and the creators of the structure, of legislation in the form Parliament enacts it: see Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [43]. For those reasons, we do not propose to adopt any fixed “starting point”.

The delegation issue

48    Before we turn to consider the relevant factors in arriving at the correct construction of s 140, an issue which arose after the hearing of the appeal must be dealt with.

49    It was assumed by both parties in their written and oral submissions that the power conferred on the Attorney-General by s 140 was a personal, non-delegable power. That was also the position put jointly by the parties to the primary judge and accepted by her Honour: see [37] above. After the hearing of the appeal, the Court drew the parties’ attention to the provisions of s 17 of the Law Officers Act 1964 (Cth). Section 17 provides:

Delegation by the Attorney-General

(1)      The Attorney-General may, either generally or otherwise as provided by the instrument of delegation, by writing under his or her hand, delegate to the Solicitor-General all or any of his or her powers and functions under all or any of the laws of the Commonwealth or of a Territory, except this power of delegation.

(2)      The Attorney-General may, either generally or otherwise as provided by the instrument of delegation, by writing under his or her hand, delegate to the Secretary of the Attorney-General’s Department or to the person for the time being holding or performing the duties of the office specified in the instrument of delegation all or any of his or her powers and functions under all or any of the laws of the Commonwealth or of a Territory, except this power of delegation.

(3)      A power or function delegated under either subsection (1) or subsection (2) may be exercised or performed by the delegate in accordance with the instrument of delegation.

(4)      A delegation may be given under subsection (1) or subsection (2) notwithstanding that a delegation is in force under the other of those subsections.

(5)      A delegation under this section is revocable at will and does not prevent the exercise of a power or the performance of a function by the Attorney-General.

(6)      This section does not apply to the powers and functions of the Attorney-General under the Telecommunications (Interception and Access) Act 1979.

50    Both parties now accept that the referral power under s 140 of the Sentencing Act is, read with s 68(2) of the Judiciary Act, covered by s 17 of the Law Officers Act, and that the referral power is delegable. The argument before the primary judge had proceeded on the contrary basis, which both parties now accept was incorrect. Nevertheless, the respondent submitted the capacity to delegate should not be seen as altering the construction of s 140 for which he contended: namely, that there was no implied duty to consider whether to exercise the power. The appellant contended that if the power was delegable this feature undermined the “intolerable burden” argument put by the respondent and accepted by the primary judge, as well as highlighting that since the prerogative of mercy did have a “personal” character, this was not the correct prism through which to construe the s 140 power.

51    In our opinion it is clear that s 140(1)(a) of the Sentencing Act, read with s 68(2) of the Judiciary Act, is a law of the Commonwealth within the scope of s 17 of the Law Officers Act, and the referral power is to that extent delegable in accordance with s 17(1) and (2). The breadth of persons to whom the power could be delegated tends against any consequences of the kind for which the respondent contends being a factor in the construction of s 140.

52    We turn then to the proper construction of s 140.

Construction of s 140

The nature of the duty which the appellant contends exists in s 140

53    The nature of the duty was variously expressed, although as we understood the submissions, the appellant’s principal contention was for a very specific duty arising because of a specific request from the appellant. In his written submissions that contention was expressed in the following terms:

The application made to the Commonwealth Attorney-General in this case on 16 July 2014 was a request for him to exercise power under s 140(1)(a), by reason of the specific and detailed matters identified by the solicitors for the appellant. The issue for resolution is whether the Commonwealth Attorney-General was under a duty to consider and determine that specific request. The question of statutory construction which arises is thus not about s 140 generally and in the abstract; it is about whether a duty is impliedly imposed upon the Attorney-General when presented with a specific and detailed application to exercise the power under s 140(1)(a), as occurred here.

54    Immediately thereafter, the appellant contended there was authority for the propositions first that there can be an implied duty in particular circumstances to exercise a power (referring to WH Soul Pattinson & Co Ltd v Secretary, Department of Health and Family Services [1997] FCA 409; 74 FCR 339) or an implied duty to consider and determine whether to exercise a power (referring by analogy to Re Evans; Ex parte Clyne [1984] FCA 187; 2 FCR 56).

55    Another formulation on which the appellant relied was that used by Mason J in Murphyores Inc Pty Ltd v Commonwealth [1976] HCA 20; 136 CLR 1 at 18, where his Honour spoke of a duty to determine any application which is made.

56    Subject to one qualification (see [57] below), it may be that these formulations describe, in functional terms, no different exercise by the repository of the power. For the purposes of deciding the proper construction of s 140 we propose to test the competing constructions by asking whether the provision imposes a duty to determine whether to refer a petition to the Court of Appeal in accordance with the terms of either s 140(1)(a) or s 140(1)(b), rather than limiting our consideration to whether the provision imposes merely a duty to consider the petition. It seems to us the contentious constructional choice is whether the Attorney-General is required to determine whether or not to exercise the referral power, rather than whether he must consider the issue.

57    The qualification is that, as the parties accepted in their submissions, the present issue does not concern an application to compel the exercise of a discretion in a positive sense, in the way described by Lord Cairns LC in Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223:

But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen’s Bench to decide, on an application for a mandamus. And the words “it shall be lawful” being according to their natural meaning permissive or enabling words only, it lies upon those, as it seems to me, who contend that an obligation exists to exercise this power, to shew in the circumstances of the case something which, according to the principles I have mentioned, creates this obligation.

58    We are not here concerned with an argument that s 140 carries with it an implied duty to make a referral to the Court of Appeal in certain circumstances.

The context of s 140: the Sentencing Act

59    Section 140 appears in Pt 19 of the Sentencing Act, which is headed “Royal Prerogative of Mercy”. Like its counterparts in other States, the WA Sentencing Act provides for a detailed statutory regime to govern the sentencing of offenders by Western Australian courts for criminal offences, although punishment for contempt is excepted (see s 3). The Act covers sentencing principles, matters preliminary to sentencing, pre-sentence orders, the sentencing process and sentencing options (including detailed provisions about each of the available sentencing options), other orders which may form part of a sentence (eg licence disqualification), and reparation orders. Part 20 of the Act contains a series of more disparate provisions such as guidelines judgments by the Court of Appeal and the determination of questions of fact arising in the sentencing process by judge alone. Again, like its state counterparts (see for example Crimes (Appeal and Review) Act 2001 (NSW) Pt 7 Div 2; Criminal Code (NT) s 431; Criminal Code (Qld) s 672A; Criminal Law Consolidation Act 1935 (SA) s 369; Criminal Code (Tas) s 419; Criminal Procedure Act 2009 (Vic) s 327), the Sentencing Act contains a series of provisions dealing with what might be called discretionary reconsideration of convictions and sentences.

60    Despite its heading, Pt 19 does not codify the Royal Prerogative of Mercy. Section 137 provides:

Neither this Act nor the Sentence Administration Act 2003 affects the Royal Prerogative of Mercy or limits any exercise of it.

61    Section 138 does however provide for the effect of the exercise of the Royal Prerogative of Mercy:

(1)    A pardon granted in the exercise of the Royal Prerogative of Mercy has the effect of discharging the offender from the effects of the sentence imposed for the offence and of any other order made as a consequence of the offender’s conviction.

(2)    A pardon does not quash or set aside the conviction for the offence.

62    A power to remit a sentencing order involving the payment of money is conferred on the Governor by s 139.

63    We have set out s 140 itself at [4] above. Previously, this power was contained in s 21 of the Criminal Code (WA) which was in substantively similar terms to s 140, and which arose as a power exercisable by the Attorney-General “on the consideration of any petition” for the exercise of the mercy prerogative. That is, the mechanism by which the referral power is invoked has always been the petition for the mercy prerogative.

64    By s 141 of the Sentencing Act, the Governor is empowered to release an offender on parole (whether or not the offender is otherwise eligible). This power is expressly said by s 141(1) to be “[i]n the exercise of the Royal Prerogative of Mercy”.

65    The location of s 141, and the other provisions of Pt 19 in the Sentencing Act, together with the express preservation outside the statute of the mercy prerogative itself indicates the power in s 140 has a dual character. It is seen by Parliament as linked to the mercy prerogative, in the sense of being a power exercisable in favour of an offender over and above, or outside, the criminal justice process of prosecution, conviction and sentencing by a court; and located in that Part of the Sentencing Act which deals with the mercy prerogative. Yet, it is textually and purposively a statutory power: it is not expressed, in contradistinction to the power in s 141, to be “in the exercise of” the mercy prerogative. As the High Court observed in Mallard [2005] HCA 68; 224 CLR 125 at [2], Pt 19 in that sense “both preserves the royal prerogative of mercy and makes alternative provision for its effective exercise by the Court of Criminal Appeal.”

66    And, as we set out further below, s 140 is a power of a different nature to the mercy prerogative, although there are also common features.

The nature of the power

67    It was not contentious that the power in s 140 is a public power. It is reposed in a public officer, for public purposes. Those public purposes pertain both to the interests of the individual offender, and to the proper administration of the criminal justice system.

68    Although the power is properly described as discretionary, the discretion given to the Attorney-General is, in our opinion, a discretion as to the outcome of the exercise of the power, not a discretion whether to reach a conclusion at all.

69    Of its nature it is a power which affects the rights and entitlements of an individual. It does so because a positive exercise will facilitate the Court of Appeal looking again at “the whole case” for and against the conviction of an individual, which in turn is capable of affecting whether the conviction is maintained, and thus the continuation of any sentence of imprisonment, or other punishment, still being served. The legislative scheme contemplates that a mercy petition is treated as a request for a statutory process to be put in train which may affect the rights of the petitioner. In that sense the power concerns the peculiar interests of a particular person rather than the vindication of a public right having regard to government policy. Unlike the legislation under consideration in Halliday v Gallagher Bassett Services Pty Ltd [2013] SASCFC 90 (cf at [21] per Kourakis CJ), there is nothing “consensual” about the power: it is not a provision by which two parties might seek to compromise a dispute over their respective rights and obligations.

70    Whilst it cannot be said that a petitioner is given by s 140 a legal right exercisable “subject only” to obtaining permission from the Attorney-General (cf Ex parte Newton (1855) 4 El & Bl 870; 119 ER 323; Ex parte Costello (1868) 2 IR CL 380; and Ex parte Blackburn [1956] 1 WLR 1193, as explained by the Full Court of this Court in Clyne v Evans [1984] FCA 263; 2 FCR 515 at 521), Parliament has chosen to recognise in a petitioner an interest in having a conviction and sentence reconsidered through a public judicial process, so that an independent determination can be made whether there has been a miscarriage of justice. To that extent, the following observation in Clyne v Evans has some force (at 521):

If the Attorney-General did not in such circumstances consider the application for a fiat or certificate the legal right of the applicant to proceed upon a writ of error or to appeal would have been frustrated.

71    Here, the interest a petitioner has in access to a procedure available to correct a miscarriage of justice could be frustrated if the Attorney-General is not required to determine whether or not access to that procedure should be given.

72    However the power, like the mercy prerogative itself, has another and broader aspect. It operates as an important safeguard, and mechanism, to correct miscarriages of justice. While that has the significant effects we have noted for the individual concerned, both the referral power and the mercy prerogative have a role in encouraging public confidence in the criminal justice system by providing for the correction of miscarriages of justice, without time limits and allowing for developments in scientific and forensic processes, the emergence of fresh evidence, or the discovery of police misconduct. Beyond the encouragement of public confidence, the mercy prerogative and the referral power can have a real effect in increasing the integrity of the criminal justice system by identifying and correcting miscarriages of justice. By choosing a method of reconsideration involving the State’s appellate court, Parliament has identified a public, transparent process for that reconsideration. It would be incongruous with this choice to construe s 140 as carrying with it an ability in the Attorney-General to allow a petition to lie undetermined within the executive branch.

73    The breadth of the Court of Appeal’s function on a referral, as noted by the High Court in Mallard [2005] HCA 68; 224 CLR 125, is consistent with the critical public purpose served by the Attorney-General deciding whether or not to make a referral. The Court emphasised (at [10]) that there was little inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference, and the use of the phrase “the whole case” in s 140 embraced the whole of the evidence properly admissible, whether “new”, “fresh” or previously adduced, in the case against, and the case for an appellant. The High Court saw the words “as if it were an appeal” in s 140 as confining the kind of orders the Court could make, and the procedures it could adopt, and in particular requiring the Court to consider whether the overall strength of the prosecution case meant no substantial miscarriage of justice had occurred (that is applying the proviso in the then s 689(1) of the Western Australian Criminal Code). Otherwise, the High Court construed s 140 as conferring a wide function on the Court of Appeal, as is appropriate given its underlying function (like the mercy prerogative) of being available to correct a miscarriage of justice.

74    The public purposes to be served by the referral power are important to its construction. Authorities dealing with orders in the nature of mandamus focus on the public nature of the power being exercised, and that it is exercised by a public officer or body in relation to an individual or group who depend on the exercise of power in order to have their rights and interests determined. In Randall v The Council of the Town of Northcote [1910] HCA 25; 11 CLR 100, at 105, Griffith CJ referred and adhered to what his Honour had said earlier in R v Arndel [1906] HCA 7; 3 CLR 557, at 566-567:

Mandamus is a prerogative writ, issued nominally in the name of the Crown, but really on the relation of an individual, to compel an officer to do an act which the applicant is entitled to have done, and without the doing of which he cannot enforce or enjoy some right which he possesses. If the act sought to be compelled to be done is a discretionary act, mandamus does not go further than to command the exercise of the discretion, and can never go to command its exercise in a particular manner.

75    In Randall, O’Connor J put the proposition in the following way (at 111):

The real ground of interference by the Court in cases of this kind is that set forth by this Court in R. v. Arndel in the passage quoted by my learned brother the Chief Justice. The Court will command a public officer to perform a duty which he owes to any member of the public. That principle is equally applicable to the discharge of a public duty by a public body, and the Court will always insist that the exercise of discretion by such a body in the discharge of its duty is a real exercise of discretion.

(Citation omitted.)

76    Authorities such as R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; 78 CLR 389 (see especially at 398-401) have long established that a court or statutory tribunal whose jurisdiction is found to have been regularly invoked, must exercise that jurisdiction and can be compelled by an order in the nature of mandamus to do so. In Ozone Theatres, the question was whether the Conciliation and Arbitration Court was correct to find it had no jurisdiction under s 25 of the Commonwealth Conciliation and Arbitration Act 1904 to settle a wage dispute between employees in the Australian Theatrical and Amusement Employees Association and their employers, including Ozone Theatres. The nature of the function of such a court or tribunal, as described at 398-399 by the High Court, emphasises the public nature of the court’s function, and the effect which the performance of that function has on those whose interests the statutory court was created to serve:

… where such a jurisdiction is created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter … The writ goes only in order to compel the performance of a public duty and, in the case of a court or other body which is under a duty to hear and determine a matter, the tenor of the writ will require the hearing and determination of the matter, and not the decision of the matter in any particular manner. The Arbitration Court in determining a dispute is not exercising a judicial power, but it is performing a public duty imposed upon it by statute.

(Citations omitted.)

77    In Murphyores [1976] HCA 20; 136 CLR 1, the legislative scheme was in the nature of a prohibition on conduct (exportation of goods) coupled with the power for Ministerial approval to avoid the prohibition. The plaintiffs sought to mine zircon and rutile concentrates on Fraser Island, for export. The Minister had directed an inquiry be held into the potential environmental impacts of such mining on Fraser Island and informed the plaintiffs no further export permits would be granted pending the outcome of that inquiry. The plaintiffs sought, amongst other things, an injunction restraining the Minister from considering any report produced as a result of the inquiry. Of those Justices who upheld the Minister’s capacity to consider any report from such an inquiry, only Mason and Murphy JJ adopted an analysis involving whether the Minister had a duty to consider and determine whether an export permit should be issued. Mason J noted the similarity between the statutory provisions in issue in Murphyores and those considered by the High Court in R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; 113 CLR 177 at 197-199, noting in particular the observations of Kitto J at 189, concerning the need for such discretions to be exercised “according to the rules of reason and justice”.

78    Mason J’s view was (at 18):

It is not to the point to say that the regulation makes no provision for the making of applications and still less that it does not explicitly impose on the Minister a duty to determine applications. The existence of the discretion attracts the principle of construction enunciated by Kitto J. It is implicit in what has been said that the existence of the discretion implies the existence of a duty to determine any application that is made.

79    We infer it was first the existence of a discretion and second, one “allowed by statute to the holder of an office” (to use the words of Kitto J in Ipec-Air at 189 on which Mason J relied) to relieve against a prohibition on otherwise lawful conduct which, together, were seen as sufficient to construe the discretionary power as one which needed to be exercised, one way or the other, when the occasion arose, rather than as one whether the repository could simply fail, neglect or refuse to turn his or her mind to how the power should be exercised in circumstances that had been specifically presented to him or her. While, as the respondent submitted, this statement by Mason J cannot be taken as some kind of freestanding principle, it illustrates again that the conferral of public power by statute on the holder of public office, together with the subject matter and sphere of affectation of the power, are the principal considerations in identifying whether Parliament intends the repository must, on a given occasion, consider and determine how the power should be exercised.

The context of s 140: relationship with the prerogative of mercy

80    The mischief to which s 140 is directed and its relationship with the exercise of the Crown prerogative was explained by the High Court in Mallard [2005] HCA 68; 224 CLR 125, particularly at [6], where having set out some of the history attaching to petitions for clemency, the plurality said:

The significance of this history for present purposes, is that 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. That history, briefly stated, argues in favour of an approach by a court on a reference of a petition by the Attorney-General to it, of a full review of all the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings, however described, except to the extent if any, that the relevant Part of the Act may otherwise require.

81    That there is a connection between the referral power in s 140 and the grant of a pardon, or other forms of relief (such as a release on licence), is obvious even from the text of s 140, and its place in Pt 19 of the Sentencing Act. Any exercise of power under s 140 is dependent upon the making of a petition for the exercise of the mercy prerogative. Section 140(1)(b) draws the connection more tightly, by enabling a referral for an opinion by the Court of Appeal that the Attorney-General will then use in determining a petition for mercy – that is, whether to grant a pardon or release on licence or other form of relief.

82    Although the Court in Mallard described (at [6]) the power in s 140 as both a “substitute for, and an alternative to” the mercy prerogative, as the scheme of the Sentencing Act currently stands, there is in fact nothing to prevent a person who has an unfavourable decision about a referral continuing to petition for a pardon, and it is not inconceivable that if particular circumstances emerged (such as new or fresh evidence) a pardon might be forthcoming despite an earlier refusal to refer a matter to the Court of Appeal. To recognise those possibilities serves to emphasise, in our opinion, that the power in s 140 operates independently of the mercy prerogative, and is intended to do so. The difference is evident, for example, by reposing the power in the Attorney-General rather than the Governor.

83    We accept there is no clear authority concerning the extent to which an exercise of the prerogative of mercy, as an exercise of executive power, would in contemporary circumstances be considered reviewable by the courts. When the case arises, no doubt there will be debate about the High Court’s statement in Horwitz v Connor [1908] HCA 33; 6 CLR 38 at 40 that it has no jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy. On one view, all the Court was saying was that because mandamus to the Governor in Council would not lie, there was no jurisdiction to review the discretion. Consideration would also need to be given to authorities such as Barton v The Queen [1980] HCA 48; 147 CLR 75 where a statutory power (to present an ex officio information) was held to be sufficiently similar to a prerogative power to justify the conclusion that it could not be examined by a court on judicial review. The Full Court of this Court has held an exercise of prerogative power may be reviewable: see Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 at 278, 280-281, 302-304; cf von Einem v Griffin [1998] SASC 6858; 72 SASR 110 at 113 per Prior J (Wicks J agreeing). In von Einem Lander J left the matter more open, but appeared also to lean towards the proposition the mercy prerogative was not reviewable (at 129):

It is probable, therefore, that, as presently advised, the prerogative of mercy is not subject to review, not because its source is the prerogative but because of the subject matter of the power itself. The weight of authority seems to suggest so: Burt v Governor General [1992] 3 NZLR 672; cf R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349.

84    Almost a decade after he made these observations, Lander J had occasion to look again at the authorities in Eastman v Attorney-General (ACT) [2007] ACTSC 28; 210 FLR 440. In that case, Mr Eastman applied for judicial review pursuant to s 34B of the Supreme Court Act 1933 (ACT) and the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act (ACT)) of a decision of the Executive of the Australian Capital Territory Government, in whom the exercise of prerogative powers in respect of the Australian Capital Territory was reposed by reason of s 37 of the Australian Capital Territory (Self-Government) Act 1988 (Cth). His Honour held that the decision was not reviewable under either the ADJR Act (ACT) or the ADJR Act, in the latter case by reason of s 3A(2) which provided that the Australian Capital Territory (Self-Government) Act was not an enactment for that purpose. His Honour then undertook an examination of the relevant authorities, both in Australia and elsewhere, to determine whether the decision was reviewable at common law. His Honour concluded at [78]-[80]:

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.

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.

When it appears that the decision maker has failed to accord an applicant natural justice as dictated by the Act which empowers the decision or by the law, the decision maker has not acted to exercise the prerogative of mercy. There can be no mercy where the decision maker does not act fairly. That does not mean that the decision itself is subject to review. Indeed, as the law stands, it is not. However, the applicant’s complaint is related to the process. I think that he is entitled to have his complaint considered by the Court.

85    The respondent contended that the unreviewability (as he submitted was the case) of the mercy prerogative informed the construction of s 140, in large part because there was no clear distinction in the statute between applications for referral and applications for the exercise of the mercy prerogative. He submitted that regardless of whether a petition for mercy raises the issue of referral to the Court of Appeal, that is a power available to the Attorney-General in respect of any petition, and the petitioner’s choice of form and expression cannot affect the nature of the power in s 140, nor its connection with the mercy prerogative. The same kinds of considerations as affect the exercise of the mercy prerogative affect the referral power. The respondent identified these as: the discretion is of an absolute kind, reposed personally in the Attorney-General; arising only when all other rights of appeal have been exhausted, involving consideration of matters of high public policy, balancing mercy and clemency for an individual against the maintenance of the integrity of the criminal justice system. Referring to von Einem at 136-138 (and the cases there cited), the respondent pointed to the potential for tension, between the courts administering the criminal justice system on the one hand and courts reviewing the Attorney-General’s discretion to grant a dispensation from the results of that system.

86    For reasons we have outlined above, we can put to one side any consideration that the nature of the power in s 140 is personal and non-delegable. Aside from that, the remainder of the features of the mercy prerogative identified by the respondent can be generally accepted as features of the discretionary power in s 140. Indeed, since the lodgement of a mercy petition is the occasion on which all these powers arise, it is appropriate to see those features as contextual features the powers have in common. As much as the mercy prerogative itself, the referral power becomes available, and relevant, only after the exhaustion of all other avenues for which the criminal justice system provides.

87    Nevertheless, and as Pt 19 of the Sentencing Act demonstrates, the referral power in s 140 forms part of the criminal justice system, and does not stand outside it. It is an avenue to a further appeal for a person who has been convicted and who has exhausted the remainder of the processes in that system. Like a pardon it exists to cure, or remedy, any miscarriage of justice. However it seeks to do so by a different route: not by an investigation and decision occurring within the executive branch, and which in substance delivers something less than an acquittal if successful; but rather by a public judicial process where a person is able to secure an outcome which involves a conclusion that a person did not commit the crime.

88    The somewhat unsettled state of the law about whether the mercy prerogative itself is reviewable gives no determinative guidance, in our respectful opinion, to the constructional choice about s 140. Parliament has seen fit to separate this power out from the mercy prerogative, and render it an entirely statutory power linked to judicial appellate processes conducted in public, and its construction should be approached on that basis. Further, the clear trend of authority is towards some degree of judicial supervision of, at least, the process by which the mercy prerogative is exercised. In that sense, we do not consider the reviewability of the mercy prerogative ultimately assists in making the constructional choice facing the Court on this appeal.

Examples from other statutory contexts and their relevance to the construction of s 140

89    It will be clear that we consider whether a discretionary power carries with it a duty of the kind contended for is heavily context-dependent. In turn that means approaches taken in different statutory contexts are of little direct assistance. Nevertheless, the parties made submissions on a number of cases dealing with different statutory powers. These cases confirm the importance of the particular statutory setting and underscore, in our opinion, why there is no particular “starting point” for an analysis of this kind.

90    In Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492, the power in issue was described by Dixon J in the following terms (at 502):

The material portion of the section provides that, except with the consent of the Commission, an irrigation-farm lease, among other interests, shall not be transferred or sub-leased in whole or in part or otherwise dealt with. It goes on to provide that the application for the consent of the Commission shall be made in a prescribed form and that the granting or refusing of the application shall be entirely within the discretion of the Commission. The consent is essential to validity and the provisions requiring it are made conditions attaching to the holding, and breach of them works a forfeiture.

91    Starke J (at 499) was prepared to accept that the provisions imposed a duty of a public nature on the Commission to consider and determine Mr Browning’s application for consent to the transfer of his irrigation farm lease, and that Mr Browning had a right to insist upon the performance of that duty through mandamus. Dixon J’s view was (at 505):

No doubt the Commission is placed under a duty to consider an application for consent to a transfer and to grant or to refuse or withhold consent.

92    The statutory provision in Browning involved an application for the consent of the Commission, and in that case there had been an application and the statutory discretion had been exercised to refuse the transfer of the irrigation lease. Browning was not a case of a failure to consider and determine: it was one where mandamus was sought, and was recognised as being available, to compel a re-exercise of the discretion according to law. As it turned out, the High Court decided the discretion had not been exercised unlawfully and therefore reversed the decision of the Supreme Court of New South Wales, which had made absolute an order nisi for the issue of a writ of mandamus.

93    In Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594, the provision in issue in the Migration Act (s 427(1)(d)) was a power reposed in the Refugee Review Tribunal to require the Secretary to the Department of Immigration and Citizenship to arrange for any medical examination that the Tribunal thought necessary, but in the instant case the Tribunal had declined to exercise that power when asked by the first respondent’s migration agent to arrange one “if required”. At [21], in dealing with whether the assumption made by the primary judge and in the first respondent’s submissions before the Court that there was a duty on the part of the Refugee Review Tribunal to consider whether to exercise its power under the Act, French CJ and Kiefel J identified the different statutory language in s 427(1)(d) from a power considered in an earlier decision (Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118; 88 ALD 304). The importance of the language in the individual statute is critical, as is its particular context. Indeed, in SZGUR the context of the inquisitorial function of the Refugee Review Tribunal under Pt 7 of the Migration Act was in large part what led the Court to determine there was no duty to consider whether to refer an applicant for a medical assessment, there also being no duty to make such a referral. The provisions in issue in SZGUR bear no resemblance to s 140 of the Sentencing Act, in language, context or purpose.

94    In Animals’ Angels [2014] FCAFC 173; 228 FCR 35 the relevant statutory provision (s 23 of the Australian Meat and Live-stock Industry Act 1997 (Cth)) conferred a power to require an exporter to show cause why, amongst other things, an export licence should not be cancelled, or not renewed, if the Secretary to the Department of Agriculture had reasonable grounds for believing certain specified circumstances existed in relation to an export licence. At first instance (Animals’ Angels eV v Secretary, Department of Agriculture [2014] FCA 398; 141 ALD 158), having observed that there is no general rule or presumption that powers carry a duty to consider whether they should be exercised, Edmonds J held (at [69]-[70]) s 23 of the Australian Meat and Live-stock Industry Act should not be construed as carrying a duty to consider its exercise. His Honour relied on the reasoning of French CJ and Kiefel J, Heydon J, and Crennan J in SZGUR to support that conclusion.

95    In the Full Court, Kenny and Robertson JJ (at [87], with whom Pagone J agreed) emphasised the question whether a discretion carries with it a duty of the kind asserted is a matter of statutory construction. Animals’ Angels [2014] FCAFC 173; 228 FCR 35 was, like the present appeal, a situation where the respondent raised the spectre of an “intolerable burden” on the repository of the power if such an implication was made. Ultimately Kenny and Robertson JJ concluded that the argument put about s 23 of the Australian Meat and Live-stock Industry Act involved a rewriting of the provision, and viewing the provision as a two-stepped process, whereas the provision did not itself convey such an impression. It was an “own motion” power conferred on the Secretary.

96    Further, we adopt the approach taken in Animals’ Angels [2014] FCAFC 173; 228 FCR 35 at [92], read with [60]: an implied duty of the kind asserted cannot be used as a mechanism by which others could ask the Court effectively to ensure the repository of a power acts responsibly. Such discretionary powers are not to be construed by reference to any assumption that the powers will be abused, or will not be exercised reasonably.

97    The statutory setting in Re Minister for Heritage; Ex parte City of Fremantle [2000] WASCA 156; 22 WAR 342 was also quite different. In that case Wheeler J noted that, unlike Tickner v Bropho [1993] FCA 208; 40 FCR 183, there was no application process under the Heritage of Western Australia Act 1990 (WA). At [93]-[96] her Honour said:

By contrast, the Heritage Act sets up a body with the duty of, inter alia, bringing heritage places to the attention of the Minister. It aims for a “comprehensive” register of such places (s 47). Further, as I have explained, in my view, s 47 permits the Minister to direct of his own motion that places be entered in the Register. There are at any given time potentially thousands of places which could be the subject of an opinion formed by the Minister pursuant to s 47. It cannot be intended that he has a duty in relation to every place potentially of heritage significance to consider it with a view to its registration. That would make attention to his other ministerial duties impossible.

Having regard to the references in s 47 to advice received from the Heritage Council, it may be arguable that the intention of the Heritage Act is that the Minister shall consider such advice, if given, within a reasonable time, with a view to deciding whether he has formed the relevant opinion. There is, however, an important distinction to be borne in mind between an assumption made by the framers of legislation and an implication to be drawn from the legislation. It can certainly be said with confidence that the legislation was framed on the assumption that the Minister would act with reasonable diligence so as to consider the advice of the Heritage Council, once received by him, as soon as his other duties reasonably permitted. It does not necessarily follow that there is implied in s 47 a statutory duty to consider such advice in the manner that I have described.

Apparent obstacles to the implication of such a duty would include the substantial number of places which might be the subject of advice from an expert body such as the Heritage Council; it is unlikely but not unthinkable that, particularly in the early stages of the legislation, the Heritage Council would be in a position to advise the Minister in relation to dozens or perhaps hundreds of such places. Other obstacles would appear to be the somewhat indeterminate nature of the duty, and the inherent unlikelihood of the legislature intending that it would fall to the courts to determine whether the Minister was allocating reasonable priority to s 47 of the Heritage Act as compared with his various other ministerial duties in this and other portfolios.

It appears to me that, even if there were a duty of the type that I have described, (that is, to consider advice received from the Heritage Council within a reasonable time pursuant to s 47) there is no evidence in this case that, his previous decision having been quashed, the Minister would fail to do so. It is true that a considerable time elapsed between the initial receipt of advice from the Heritage Council in respect of the silos and the making of the Minister’s decision with respect to them on 21 February. However, there was a quantity of material to be considered, and we have no way of knowing what the Minister’s other duties during the period may have been. As the Minister now has before him the relevant advice from the Heritage Council, together with other submissions from the Minister for Transport, which touch on the heritage value (if any) of the silos, and has the benefit of these reasons. I do not think it should be assumed, in the absence of any evidence pointing to a contrary conclusion, that the Minister would fail to consider the question with reasonable promptness and in accordance with the Heritage Act.

98    It can be seen from these passages that a number of considerations, not present in the current appeal, informed the Court’s conclusion.

99    In West Australian Field and Game Association v The Honourable Mr Pearce, Minister of State for Conservation and Land Management and the Environment (1992) 8 WAR 64, the Western Australian Supreme Court split on the question whether the power in issue carried any implied duty to exercise it. Section 14(1) and (2) of the Wildlife Conservation Act 1950 (WA) provided:

(1)     Except to the extent which the Minister declares by notice published in the Government Gazette pursuant to the provisions of this section all fauna is wholly protected throughout the whole of the State at all times.

(2) (a)     The Minister may from time to time declare —

that any of the fauna is not protected or is protected to such extent for such period of time throughout the whole or such part or parts of the State as he shall think fit,

and for these purposes may from time to time by notice published in the Government Gazette declare —

a close season or an open season in respect of any of the fauna and place such restrictions on either the taking or disposal or the taking and disposal of the fauna as he considers advisable.

(b)    The Minister may from time to time, by notice published in the Government Gazette, vary the provisions and operation of a notice promulgated pursuant to the power conferred upon him by this section by cancelling those provisions and that operation wholly or in part absolutely, or by cancelling those provisions and that operation wholly or in part, and substituting other provisions and their operation for those so cancelled.

(ba)    The Minister may, from time to time by notice published in the Government Gazette, declare that any fauna specified in the notice is for the purposes of this Act fauna which is likely to become extinct, or is rare, or otherwise in need of special protection and while such declaration is in operation —

(i)     such fauna is wholly protected throughout the whole of the State at all times; and

(ii)     a person who commits an offence under section 16 or section 16A with respect to or in relation to such fauna is liable, notwithstanding any other provision of this Act, to a penalty of $10 000.

(c)     A declaration promulgated by a notice pursuant to the provisions of this section shall, by virtue of this section, have the force of law while in operation.

100    Malcolm CJ (Ipp J agreeing) held (at 87) that the power in s 14(2) was akin to a legislative power:

It follows that the Minister’s power must be exercised consistently with the scope of the legislative power of Parliament. The Parliament is empowered “to make laws for the peace, order and good Government” of Western Australia: see s 2 of the Constitution Act 1889. In general terms, what is necessary or desirable for those purposes is a matter of policy for the Minister or the Government to determine and in respect of which they are accountable to Parliament and the electorate. Again, in general terms, the area of determination of policy is an area into which the court will not intrude. If the power is exercised and a declaration is made the decision would be susceptible of judicial review. If, however, as a matter of policy a decision is made not to exercise the power to promulgate delegated legislation to remove the protection, that is an area into which the court would hesitate to intrude.

101    Rowland J dissented on this issue. Having referred to Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 and Ward v Williams [1955] HCA 4; 92 CLR 496, his Honour held (at 94):

The Minister is certainly given power to consider “from time to time” whether, for the purposes of the Act, there should be an open season.

In my view, on a proper construction of the Act, that is not only a power but it will give rise to a duty. When the duty is to be exercised will, in the main, depend upon considerations which affect the conservation protection including the culling of, in this case, ducks, in any relevant areas. It will also involve consideration of the powers given to the Minister under s 17B. Except to note that the power may be exercised “from time to time”, the Act is silent as to when this power is to be exercised but it is clear, in my view, that there is a duty to consider the matter and there seems to be little doubt that in relation to the issue involved in this case of concern to the applicants, a practice has been in place to consider the matter prior to the commencement of the summer in each year. There is, of course, no duty in the Minister to declare the season. Whether or not he declares a season will depend upon a proper consideration of the factors which are proper to be taken into account in giving effect to the proper purposes and objects of the Act.

102    This case again illustrates how determinative the particular statutory language and context can be. For our part, we consider the characterisation by Malcolm CJ of the power in issue as akin to a legislative power is apposite. In a given case, as it was for the majority in West Australian Field and Game Association, such a characterisation may preclude a construction of the kind for which the appellant contends on this appeal.

Is there a distinction to be drawn between circumstances where there is a request for the exercise of the power and ones where there is not?

103    The occasion for the power in s 140(1) to arise is the lodging of a petition for mercy. It is the contents of that petition which form at least the initial basis for the exercise of any power under s 140(1), as well as the exercise of the mercy prerogative itself.

104    In submissions, the appellant sought to draw a distinction between circumstances where a petition for mercy was lodged without a specific request for the exercise of the power under s 140(1), and circumstances where there was such a specific request. The appellant’s circumstances were said to be of the latter kind, and it was submitted this fact was important in considering the construction argument.

105    We do not agree. First, we would not approach the construction of a statute by reference to individual factual circumstances. That is not to say that the consequences of a particular construction cannot be taken into account; clearly they can: see for example Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; 147 CLR 297 at 320-321; Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; 132 CLR 336 at 350. That is not however the appellant’s contention: his contention is that his factual circumstance (namely that he made an “application” by letter expressly requesting that the power in s 140(1)(a) be exercised) and which was antecedent to the time at which the power is to be exercised is material to the construction of the provision.

106    Second, and more importantly, the text of s 140(1)(a) does not suggest a specifically expressed application alters or affects the nature of the power conferred on the Attorney-General. That is most obvious by reason of the connection between the petition for mercy (as the occasion or precondition) and the referral power.

107    Although the appellant contended that it was “well established” that the kind of duty for which he contended arises where there is a request for the exercise of power, we do not consider that the case he cites for that proposition (Ozone Theatres [1949] HCA 33; 78 CLR 389) supports the proposition he puts. As we have noted above, the remarks of the Court in that case were directed to an application which invoked the jurisdiction of the Conciliation and Arbitration Court. The correct analogy here, in our opinion, is the lodging of a mercy petition, which may be expressed specifically by reference to s 140, or more generally. That is the event Parliament has provided as the occasion for the discretionary power to arise.

108    Third, testing the appellant’s construction by reference to its consequences, anomalies are produced in the operation of the asserted duty. It would depend on an individual’s advisers framing an application by reference to s 140(1)(a), and indeed more fundamentally, it may well depend on an individual having support and advice about s 140(1)(a). The mercy petitions of those without the means to know of the referral power, and to ask for its exercise, could be, to use the appellant’s turn of phrase, consigned to the waste paper basket. We see no basis in the text, context or purpose of s 140 to make the distinction for which the appellant contended.

The Interpretation Act provision

109    Section 56 of the Interpretation Act 1984 (WA) provides:

(1)     Where in a written law the word may is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion.

(2)    Where in a written law the word shall is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed.

110    While s 56 makes clear that, subject to any contrary intention (see s 3(1)), Parliament intends the use of the word “may” to signify the repository of the power has a choice about how to exercise the power, in our opinion a provision such as s 56 does not answer the question raised on this appeal. The question on this appeal is whether the repository of the power is obliged to consider and determine how to exercise the power, or whether the repository can fail, neglect or refuse to do so. That question is not answered by reference to the meaning of the word “may”, but rather by reference to the construction of the provision as a whole.

Accommodating in any implied duty vexatious and baseless requests for referral

111    In a submission which fitted to some extent with the “intolerable burden” submission that was made to the primary judge, the respondent submitted that the potential for the Attorney-General to be compelled to deal with vexatious, repetitive and baseless requests for referral was a factor to take into account in arriving at the appropriate construction of s 140(1). The appellant also sought to address this consequence of his construction by submitting that frivolous or vexatious applications would not constitute a “petition” for the purposes of s 140(1). We doubt that would be the case. The dicta in Tickner v Bropho [1993] FCA 208; 40 FCR 183 at 209, 234 (on which the appellant relied) arose in a context where the statutory provision itself (s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)) filled out some of the necessary content of an “application”, and indeed, the statute provided for an application process. The petition, as a concept used in Pt 19 of the Sentencing Act, read especially in the light of s 137, remains a common law concept.

112    In any event, given the power in s 140 is delegable, petitions which are repetitive, or vexatious in some other respect, can be dealt with by a delegate and by administrative processes. We see no reason to construe s 140 any differently to accommodate the possibility of mercy petitions which might be characterised in this way.

Conclusions on the construction of s 140

113    The appellant invited us to disapprove the observations of Edmonds J in Animals’ Angels [2014] FCA 398; 141 ALD 158 at first instance, concerning whether there was a presumption that powers carry an implied duty to consider their exercise. We decline to do so. His Honour was correct that it is a matter of statutory construction and as we have noted above, fixing on an approach that begins with a “presumption”, or a starting point, may be unhelpful and apt to mislead. It is also unnecessary. The question whether when Parliament reposes a discretionary power in a person, it intends to repose with it a duty to consider and determine whether to exercise the power (favourably or unfavourably) is not to be resolved by reference to any rule courts can assume Parliament and its legislative drafters are constructively, or actually, aware of, such as the proposition that in the absence of some clear contrary intention, a legislative provision will not be construed so as to have a retrospective operation (see Maxwell v Murphy [1957] HCA 7; 96 CLR 261 at 267). The question raised in this appeal is not resolved by the application of presumptions or starting points, as we have explained.

114    Finally, we note that acceptance of the respondent’s submissions makes the discretion, in effect, unreviewable, in the following sense. If there is no duty to consider whether to exercise the power, as the respondent submits, then a petition can lie unattended and unexamined, or a deliberate decision can be made not to consider to exercise the power. In all of these circumstances, the outcome is, in substance, the same for the person who seeks to have her or his conviction overturned as it would be if the Attorney-General decided not to refer the petition to the Court of Appeal.

115    The difference is that in the latter circumstance, the person would have at least some rights to judicial review in respect of that exercise of discretion.

116    In Wotton v Queensland [2012] HCA 2; 246 CLR 1 at [23], the plurality had this to say about the interpretation of legislation conferring discretions:

The Commonwealth further, and correctly, developed these points by emphasising in oral submissions that if the power or discretion be susceptible of exercise in accordance with the constitutional restriction upon legislative power, then the legislation conferring that power or discretion is effective in those terms. No question arises of severance or reading down of the legislation. There then would be no occasion presented for application of the principle explained as follows by Dixon J in Shrimpton v The Commonwealth:

“[F]inality, in the sense of complete freedom from legal control, is a quality which cannot, I think, be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force. An exercise of a power, whether legislative or administrative, cannot rise higher than its source, viz., the power itself, and an attempt under the power to make unexaminable what is done in ostensible pursuance of a further delegation of authority must, to that extent, fail.”

(Citation omitted.)

117    We see no basis to infer Parliament intended such a result might await a petitioner seeking to have her or his conviction quashed. The need to be able to correct a miscarriage of justice is a fundamental aspect of any system of criminal justice. It is more than a function performed to secure the interests of the individual who has been affected by the miscarriage of justice. It is integral to public confidence in the criminal justice system, and to ensuring the system operates fairly and within the law, while acknowledging that any system operates imperfectly and what is important is that there is always a capacity for correction.

118    In our opinion Parliament intends that the Attorney-General, whether personally or through delegates, will consider and determine what, if any, action should be taken in respect of each and every petition seeking an exercise of the mercy prerogative and whether or not a referral under s 140 of the Sentencing Act is expressly sought.

119    We see no jurisdictional reason therefore, why a petitioner who wishes to allege that the time which has elapsed after the lodging of a petition without a determination by the Attorney-General (whether personally or through a delegate) whether or not to refer the petition to the Court of Appeal in accordance with s 140 should not be the subject of an application pursuant to s 7 of the ADJR Act, or s 39B of the Judiciary Act.

The unreasonableness argument

120    This was put by the appellant as very much a supplementary argument. It is unnecessary to determine the argument given our view on the proper construction of s 140. Lest our silence on the matter be taken as acquiescence, we should say that we consider the application of legal unreasonableness to a discretion that has not yet been exercised to be a considerable extension of the principles underlying jurisdictional error on the basis of legal unreasonableness as set out by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 308 ALR 280.

121    The appellant has not sought to invoke s 6(1)(e) (read with s 6(2)(g)) of the ADJR Act, so there is no occasion to consider the argument with respect to the terms of the ADJR Act, noting that Li concerned s 75(v) of the Constitution and its parallel in s 476(1) of the Migration Act.

The reasoning of the primary judge

122    This case is an example of one where the refinements of the arguments in support of the appellant’s case have been manifest for the first time on appeal. To that extent our reasons should not be taken to embody any criticism of the approach taken by the primary judge.

123    Nevertheless, we respectfully disagree with her Honour’s construction of s 140, especially at [44]-[48]. We consider that the conferral of a power in the nature of that in s 140 carries with it a duty to consider, and then determine, whether to exercise the referral power or not. The occasion for that consideration and determination will be the filing of a petition for the exercise of the Royal Prerogative of Mercy.

124    We do accept, as found by the primary judge at [44], that the ADJR Act contemplates that a decision which was made is reviewable whether or not there was a duty to make the decision and that a decision which was not made is only reviewable if there was a duty to make the decision. However the ADJR Act is of general application and, in our opinion, that s 7 is only available where the primary statute imposes a duty does not say anything about the construction of s 140.

CONCLUSION

125    The appeal should be allowed with costs. We set aside orders 1 and 2 made on 19 February 2015. Although the submissions on appeal differed in some respects from those put to the primary judge, we consider that the appellant should have his costs below.

Associate:

Dated:    21 October 2015