Federal Court of Australia

Attorney-General (Cth) v Ogawa [2020] FCAFC 180

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders dated 28 June 2019 be set aside, and in lieu thereof, the amended originating application filed on 20 July 2018 be dismissed.

3.    The cross-appeal and notice of contention be dismissed.

4.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    These proceedings arise from orders made by the Court in Ogawa v Attorney-General (No 2) [2019] FCA 1003 (Ogawa (No 2)). In the proceeding below, Dr Ogawa challenged by way of judicial review the decision of the Commonwealth Attorney-General to recommend to the Governor-General that Dr Ogawa not be pardoned, as well as the Attorney’s decision not to refer her matter to the Court of Appeal of the Supreme Court of Queensland under s 672A of the Criminal Code 1899 (Qld) (Queensland Criminal Code). The Attorney-General made these decisions following a petition to him by Dr Ogawa arising from her conviction on two counts of using a carriage service to harass (contrary to s 474.17 of the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code)) and two counts of using a carriage service to make a threat to kill (contrary to s 474.15(1) of the Commonwealth Criminal Code).

2    The Attorney-General’s decisions arising from Dr Ogawa’s petition were made in March 2018 after the Attorney-General had been provided with both advice from the Deputy Director of the Commonwealth Director of Public Prosecutions and a briefing note from his Department.

3    The primary judge found that, although the Governor-General’s decision not to grant Dr Ogawa a pardon was judicially unreviewable, this was not the case with the Attorney-General’s advice to the Governor-General. His Honour held that, in providing that advice, the Attorney-General had misunderstood the nature and extent of the circumstances which by convention the so-called prerogative of mercy falls to be exercised. His Honour held that, by convention, the grant of a pardon was not limited to cases where there is satisfaction that the petitioner is morally and technically innocent. Declaratory relief was granted in those general terms.

4    The primary judge also quashed the Attorney-General’s statutory decision under s 672A of the Queensland Criminal Code not to refer Dr Ogawa’s case to the Queensland Court of Appeal. His Honour held that the Attorney-General had applied the wrong test. The Attorney-General’s role under s 672A was effectively one of a gatekeeper which required the Attorney to determine whether the material presented with a petition raises “a reasonable possibility that there ha[s] been a miscarriage of justice” and if there was, the matter should be referred (see primary judge’s reasons for judgment at [72]). His Honour acknowledged that requests which were “obviously untenable, frivolous or vexatious may be declined” (primary judge’s reasons for judgment at [73]). The Attorney-General was ordered to reconsider according to law Dr Ogawa’s request that her case be referred.

5    The Commonwealth Attorney-General appeals against these orders. In brief, he claims that the primary judge erred in holding that the process leading to the exercise of the prerogative of mercy, including the Attorney-General’s advice, is amenable to judicial review. Further, he claims that he is not prohibited from determining, as a matter of convention or policy, that the grant of a full pardon would only be recommended if he is satisfied that the convicted person is morally and technically innocent of the crimes for which they were convicted and in respect of which a pardon is sought.

6    As to the primary judge’s conclusions regarding s 672A of the Queensland Criminal Code, the Attorney-General contends that the primary judge erred in concluding that Dr Ogawa’s case should have been referred to the Queensland Court of Appeal because, on the materials before him, there was a reasonable possibility of a miscarriage of justice and Dr Ogawa’s case was not obviously untenable, frivolous or vexatious.

7    Furthermore, the Attorney-General contends that the primary judge erred in finding that the Attorney had applied the wrong test in concluding that neither:

(a)    the failure of Dr Ogawa by her counsel to rely on the committal evidence of a witness, Mr Young; nor

(b)    the observations of three judges in Monis v R [2013] HCA 4; 249 CLR 92 concerning the meaning of “harassing” in s 474.17 of the Commonwealth Criminal Code,

gave rise to a reasonable possibility of a miscarriage of justice.

8    The Attorneys-General of New South Wales and Queensland both intervened and substantially supported one or more aspects of the Commonwealth’s position. New South Wales confined its support to the question of the lack of amenability to judicial review of the Attorney-General’s recommendation concerning a pardon, while Queensland supported the Commonwealth’s position on that issue and also its position as to the lack of amenability to judicial review of the statutory decision regarding referral under s 672A.

9    With the leave of the Court, Dr Ogawa belatedly filed a notice of cross-appeal. She contended that the primary judge ought to have found that, in making the relevant decisions, the Attorney-General erred in law by failing to correctly apply correct legal principles, in particular by:

(a)    failing to appreciate the nature, relevance and significance of (and failing to direct his attention to) the High Court’s decision in Monis;

(b)    misunderstanding the significance of the issues before him of the decisions in R v Ogawa [2011] 2 Qd R 350 and Ogawa v R [2010] HCASL 188; and/or

(c)    rejecting the contention that, in the circumstances, there was at least a reasonable possibility that there had been a miscarriage of justice.

10    Dr Ogawa also filed a notice of contention in which she claimed that the judgment below should be affirmed on the additional ground that, in making his decision under s 672A of the Queensland Criminal Code, the Attorney-General erred in law by failing to correctly apply correct legal principles, namely for the three reasons the subject of the cross-appeal as described in [9] above.

11    Before summarising the primary judge’s reasons for judgment, it is appropriate to draw attention to a significant development in the appeal. After judgment was reserved in the present appeal, the Court of Appeal of the Supreme Court of Queensland published its reasons for judgment in Holzinger v Attorney-General (Qld) [2020] QCA 165. Some of the issues raised in that appeal were similar to those raised here, particularly, concerning the nature and extent of judicial review of the exercise of the statutory power to refer under s 672A of the Queensland Criminal Code. The Court of Appeal held that that power was not amenable to judicial review under the Judicial Review Act 1991 (Qld), at least on the grounds raised by the applicant in that case.

12    The parties in the present appeal provided supplementary written submissions concerning the implications of Holzinger for this appeal. A key issue for determination is whether or not Holzinger should be followed in this appeal and, if so, on what matters. There was no dispute that, as a decision of another intermediate Court of Appeal, Holzinger should be followed on the construction of s 672A of the Queensland Criminal Code unless this Court is satisfied that the Court of Appeal’s decision is plainly wrong (see The Queen v Falzon [2018] HCA 29; 264 CLR 361 at [49] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

13    The unsuccessful applicant in Holzinger has sought special leave to appeal in the High Court.

14    It is desirable to summarise the primary judge’s reasons for judgment below, before returning to consider Holzinger at greater length.

The primary judge’s reasons for judgment summarised

15    Dr Ogawa did not seek to impugn the Governor-General’s decision not to grant her a pardon. Rather, she challenged the legality of the preceding step, namely the Attorney-General’s recommendation to the Governor-General that she not be granted a pardon. She also challenged by way of judicial review the Attorney-General’s decision not to make a referral under s 672A.

16    It is desirable to summarise the primary judge’s reasons in respect of both these matters in turn. Before doing so, we will set out s 672A of the Queensland Criminal Code, which appears in Ch 67 (which deals with appeals and pardons):

672A    Pardoning power preserved

Nothing in sections 668 to 672 shall affect the pardoning power of the Governor on behalf of Her Majesty, but the Crown Law Officer, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence passed on a convicted person, may –

(a)    refer the whole case to the Court, and the case shall be heard and determined by the Court as in the case of an appeal by a person convicted; or

(b)    if the Crown Law Officer desires the assistance of the Court on any point arising in the case with a view to the determination of the petition, refer that point to the Court for its opinion thereon, and the Court shall consider the point so referred and furnish the Crown Law Officer with its opinion thereon accordingly.

(a) The Governor-General’s power to pardon

17    The primary judge discussed what he described as the “Royal Prerogative of Mercy”. Referring to s 61 of the Constitution, he said at [11] that this power “forms part of the executive power of the Commonwealth”. At [18] to [19], his Honour said that because the prerogative power was part of s 61 and is not statutory, the exercise of the power was not amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), nor was the Attorney-General’s advice “conduct” for the purposes of that legislation.

18    The primary judge adhered to the view he had expressed in an earlier judgment (Martens v Commonwealth of Australia [2009] FCA 207; 174 FCR 114) that, applying Horwitz v Connor [1908] HCA 33; 6 CLR 38, a decision made by a Vice-Regal officer in exercising the prerogative of mercy is not amenable to judicial review (see at [21] and [22] of the primary judge’s reasons for judgment). Presumably, his Honour also considered that such a decision was not reviewable under either s 75(v) of the Constitution or s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act).

19    Noting that Dr Ogawa had not sought to challenge the Governor-General’s decision not to grant her a pardon, the primary judge then addressed whether the Attorney-General’s recommendation to the Governor-General in relation to that matter was amenable to judicial review under s 39B of the Judiciary Act. He held that it was, applying two decisions of the Privy Council (Pitman v State of Trinidad and Tobago [2018] AC 35 and Lewis v Attorney-General of Jamaica [2001] 2 AC 50).

20    After discussing various other cases and academic writings on the issue of the amenability to judicial review of the exercise of the power to pardon, the primary judge described the statements in Horwitz concerning unreviewability as looking “decidedly dated”. Nevertheless, his Honour said at [34] that, even if the High Court’s statements in Horwitz (i.e., that mandamus would not lie to the Governor in Council and no Court had jurisdiction to review “the discretion of the Governor in Council in the exercise of the prerogative of mercy”) were viewed as obiter dicta, he was not at liberty to depart from them. His Honour said at [37]:

The exercise of the Royal Prerogative of Mercy certainly entails a discretionary value judgment. In relation to that value judgment, only the existence of the subject conviction and sentence or penalty could be said to be a mandatory relevant consideration. That value judgment might permissibly include political and even geopolitical considerations in particular cases. It might involve considerations of the kind to which I referred in Martens, at [70], and a related evaluative decision as to whether to make a reference under a provision such as s 672A of the Queensland Criminal Code. It is difficult to see how the evaluative merits of a prerogative of mercy decision could ever be amenable to judicial review: see Shergill v Khairan [2015] AC 359 at 377–378, [41]–[43]. It does not follow from this that the process by which a prerogative of mercy decision is reached is immune from judicial review, much less that a related reference decision is immune from judicial review.

21    After referring to Lander J’s decision at first instance in Eastman v Attorney-General for the Australian Capital Territory [2007] ACTSC 28; 210 FLR 440, which recognised the Court’s power to set aside a decision where there was non-compliance with the rules of natural justice, the primary judge noted that this judgment had been referred to by the Full Court in Yasmin v Attorney-General (Cth) [2015] FCAFC 145; 236 FCR 169. The Full Court held there that the Commonwealth Attorney-General was obliged to consider and determine a request for referral of a matter to the Court of Appeal of Western Australia under s 140 of the Sentencing Act 1995 (WA), which is in substantially similar terms to s 672A of the Queensland Criminal Code. In Yasmin, the Full Court observed (in obiter dictum) at [88] that the state of the law in Australia in relation to judicial review of the exercise of the mercy prerogative power was “somewhat unsettled”. Nevertheless, the primary judge concluded at [38] in Ogawa (No 2) that the Full Court had concluded in Yasmin “that the exercise of the referral power was amenable to judicial review”, a view which his Honour saw as consistent with his own conclusion in Martens.

22    At [39], the primary judge described how declaratory relief might be available in some circumstances in reviewing a pardon-related decision of the Governor-General in Council:

I would not, in the face of Horwitz v Connor, go so far as to conclude that the Court, in the exercise of the jurisdiction conferred by s 39B of the Judiciary Act, could set aside a pardon related decision of the Governor-General in Council. However, for just the reasons given by Lander J in Eastman, the Court could, in my view, grant declaratory relief that, for example, an applicant for the exercise of the prerogative had not been afforded procedural fairness or that a decision to decline to make a recommendation, if apparent from reasons furnished to an applicant, entailed a misunderstanding as to the nature and extent of the prerogative power. No narrow view should be taken as to the extent of the Court’s power to grant declaratory relief: Edwards v Santos Ltd (2011) 242 CLR 421.

23    With reference to the advice given by the Attorney-General to the Governor-General in Dr Ogawa’s case and to the submissions received by the Attorney-General from his Department on that subject, the primary judge found that the Attorney-General acted on the view that there was a longstanding convention that a full pardon should only be recommended to the Governor-General if the Attorney-General was satisfied that the convicted person was “morally and technically” innocent of the offence and there are either no remaining avenues of appeal open, or there are “exceptional circumstances” justifying the grant of a pardon.

24    Applying R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349, the primary judge viewed this approach to be erroneous because it failed to recognise that the prerogative of mercy is capable “of being exercised in many different circumstances and over a wide range”. His Honour added that the Attorney-General’s view of the limited circumstances in which the prerogative of mercy falls to be exercised is also inconsistent with the following observations of Gleeson CJ, Gummow, Heydon and Kiefel JJ in Osland v Secretary, Department of Justice (Vic) [2008] HCA 37; 234 CLR 275 at [47] (emphasis added):

…The terms “pardon” and “mercy” may create a misleading impression. The power may be invoked in a case where it is alleged that there has been a miscarriage of justice, or in a case where the grounds relied upon are purely compassionate, or in some intermediate situation. The person in question may, or may not, claim to be technically and/or morally innocent. An application for a pardon does not imply an admission of guilt; on the contrary, it may be accompanied by an assertion that there has been a wrongful conviction. Nor does it necessarily imply an assertion of innocence; it may be based upon a contention that the law is unduly harsh either generally or in its application to the particular case, or that there are personal grounds for compassion. The pardon, if granted, may be absolute or conditional. In every case, however, the petition is based, not upon a claim of legal right, but upon an appeal to an executive discretion originating in the royal prerogative. …

25    In those circumstances, the primary judge concluded that Dr Ogawa was entitled to declaratory relief that the exercise of the power under s 61 of the Constitution is not, by convention, limited to cases where there is satisfaction that the petitioner is morally and technically innocent of the offence. Rather, it is a flexible power, the exercise of which may be adapted to meet the circumstances of the particular case. His Honour said that such declaratory relief would not just correct an error of law, there was also practical utility in granting such relief in the event that Dr Ogawa made a fresh petition which could provide her an opportunity to seek a favourable outcome.

(b) Statutory decision not to make a referral to the Queensland Court of Appeal

26    The primary judge said at [51] that the issue whether the statutory referral power is amenable to judicial review is now concluded by Yasmin. His Honour described that view as being consistent with his own view in Martens at [55] and Lander J’s view as a member of the Full Court in von Einem v Griffin (1998) 72 SASR 110 at 138-140.

27    Against that background, the primary judge then focussed on three aspects of the Attorney’s referral decision, namely those relating to Dr Ogawa’s contempt conviction, further evidence which Dr Ogawa wished to rely upon and the High Court’s decision in Monis as to what constitutes harassment.

28    The primary judge concluded that the Attorney-General made no error in not referring Dr Ogawa’s contempt conviction to the Queensland Court of Appeal. Nothing more needs to be said about that as it is not challenged in the present proceeding.

29    As to the second aspect, the relevant further evidence was that given by a Mr Christopher Young at Dr Ogawa’s committal, but which was not then adduced at her trial. Mr Young gave evidence as to the threats Dr Ogawa made to him that she would kill two Federal Court registrars. In his cross-examination at the committal, Mr Young affirmed that Dr Ogawa appeared to be emotionally upset in the sense that she was “tearful or crying” when she made those threats. The primary judge described this evidence as relevant to a “key element” of s 474.15(1) of the Commonwealth Criminal Code, namely there must be an intention to instil fear in the person to whom the threat is made.

30    The primary judge considered that the conclusion of the Queensland Court of Appeal in R v Ogawa [2011] 2 Qd R 350, that there was no substantial miscarriage of justice, was based upon Mr Young’s evidence as adduced at the trial, which did not include the evidence he gave at the committal as set out above.

31    The third aspect relates to the reasons given to Dr Ogawa as to why the Attorney-General had decided not to refer her case to the Queensland Court of Appeal. In particular, she was told that this decision had been made because the Attorney-General “has decided that none of the grounds raised in the petition, either individually or collectively, establish a miscarriage of justice” (emphasis added). The primary judge held that the Attorney had adopted an incorrect test because he had taken it upon himself to undertake the role which the Court of Appeal would have to undertake if a referral was made. He described the correct test for the Attorney-General to consider was whether “there was a reasonable possibility that there had been a miscarriage of justice”, as held by both Lander J in von Einem and the primary judge previously in Martens. The primary judge considered the error to be material because, having regard to the whole of Mr Young’s evidence, including that given by him at the committal, it was “at least arguable that the alleged threats were no more than the dramatic remarks of a person in an agitated, emotional state and careless of language…” (at [78]).

32    The primary judge also concluded that the Attorney had erred by adopting an unduly broad view of the meaning of the word “harass” in s 474.17 of the Commonwealth Criminal Code, with particular reference to the narrower view approved by the majority in Monis. His Honour concluded at [89]:

… Dr Ogawa has, as she correctly identified as long ago as 2014 when lodging her petition, the benefit of two considered District Court judgments, each of which deliberately proceed on the basis that what was stated in Monis was relevant by analogy to s 474.14 of the Criminal Code and which support the adoption of a “narrow” view, rather than the “wide” view apparent in R v Ogawa. Having regard to the passage in Monis cited above and to Cox and Starkey, it is arguable that in summing up to the jury in Dr Ogawa’s trial and in dismissing her appeal against conviction, an incorrect, prejudicial view was taken of the meaning of harassing. In turn, it is arguable that the evidence did not reasonably support convictions on a narrow view of “harassing”. So the error in approach by the Attorney in relation to whether to refer a case is material.

33    Accordingly, the primary judge concluded that the Attorney’s decision not to refer Dr Ogawa’s case to the Queensland Court of Appeal was affected by two jurisdictional errors. Thus, Dr Ogawa was not only entitled to the declaratory relief described above but the primary judge also held that the Attorney-General’s decision not to refer her case should be quashed.

Holzinger summarised

34    In Holzinger, a convicted rapist petitioned the Governor of Queensland seeking a pardon or, alternatively, asking the Queensland Attorney-General to refer his petition to the Queensland Court of Appeal under s 672A of the Queensland Criminal Code. He sought judicial review under the Judicial Review Act of the Attorney-General’s refusal to refer his case to the Court of Appeal. The applicant contended that the Attorney-General had fallen into legal error because:

(a)    of an alleged breach of natural justice in not referring the whole case to the Court of Appeal;

(b)    the Attorney-General’s decision not to make a referral was an improper exercise of power (including unreasonableness and failure to take into account a relevant consideration); and

(c)    there was no evidence or other material to justify the decision not to refer the whole case to the Court of Appeal.

35    The applicant contended that the Attorney-General was obliged to refer his case under s 672A because these were matters that raised a “reasonable possibility” that there had been a miscarriage of justice.

36    It is notable that judicial review was not sought of the Governor’s decision or the advice which preceded it. The judicial review application was limited to the referral decision to the Court of Appeal. The Court’s reasons for dismissing the application may be summarised as follows.

37    The Court of Appeal (Sofronoff P, Morrison and Mullins JJA) upheld the Attorney-General’s submission that her decision under s 672A was not amenable to judicial review.

38    The Court traced the history of s 672A, with reference to the position in the United Kingdom and other Australian jurisdictions.

39    The Court of Appeal noted at [17] that the object of a pardon “is to bestow an act of mercy irrespective of any legal considerations and to rectify a miscarriage of justice of a kind that a court is not equipped to deal with” (referring to Bentley). The Court also drew attention at [18] to the possibility that the exercise of the mercy prerogative “may involve a consideration of matters that are not justiciable because they are only relevant to a pure act of mercy or because they involve policy with respect to public demands or expectations or factors which depend upon information that does not rise to the level of admissible evidence”. In those circumstances, the Court added that the Attorney-General’s authority to advise the Governor about the exercise of the prerogative of mercy “cannot rationally be constrained by any statutory or common law criteria” (at [18]).

40    A matter of particular significance in the Court of Appeal’s reasoning is the relevance of the fact that any consideration of the statutory power to refer a case arises at the same time when the Attorney-General is considering a petition for the exercise of the pardoning power. At [19], the Court stated that that “linkage is important because it means that referring a case is but one of the options that the Attorney-General has ‘with a view to the determination of the petition’”. Their Honours added that this meant that any consideration of whether or not to refer a case must arise in the context of a consideration of the petition as a whole. This may include a consideration of matters that may strictly only be relevant to other ways in which a petition could be determined. Reference was made to the observations of Gummow, Hayne, Callinan and Heydon JJ in Mallard v The Queen [2005] HCA 68; 224 CLR 125 at [6], where their Honours said that provisions such as s 672A:

… [provide] 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.

41    It is notable that the “linkage” described by the Court of Appeal focussed on the Attorney-General’s assessment of the petition and not any subsequent consideration of the power to pardon by the Governor. Thus, independently of any other basis which may have been available, it was not necessary for the Court of Appeal to determine the extent, if any, of the reviewability of the Governor’s decision. The position is the same in the present appeal.

42    Another consideration which the Court of Appeal saw as relevant to the issue of the amenability to judicial review of the Attorney-General’s decision under s 672A whether or not to make a referral was the fact that the availability of what in effect is a second right of appeal, through the medium of a referral, “conflicts with the principle of finality of judgments” (at [36]). The Court described the prerogative of mercy and the power of referral as clashing with the principle of finality in litigation (at [36]).

43    Their Honours saw the issue of reviewability as being affected by the High Court’s decision in Barton v The Queen [1980] HCA 75; 147 CLR 75. There the Court held that the power of the Attorney-General to present an ex officio indictment under s 5 of the Australian Courts Act 1928 (Imp) was not amenable to judicial review.

44    The Court of Appeal referred to Clyne v Attorney-General (Cth) [No 2] (1984) 2 FCR 515, where the Full Court of this Court held that the power of the Attorney-General under s 71 of the Judiciary Act to decline to proceed further with a prosecution upon indictment did not impose an enforceable duty upon the Attorney to receive and consider representations from the person committed for trial as to whether no further proceedings should be taken.

45    The Court of Appeal also referred to the joint judgment of Gaudron and Gummow JJ in Maxwell v The Queen [1996] HCA 46; 184 CLR 501. In particular, reference was made to that part of Gaudron and Gummow JJ’s joint judgment in which their Honours stated at [26] that notwithstanding that prosecutorial discretion was no longer part of the prerogative and had a statutory foundation, some prosecutorial decisions are, of their nature, not susceptible to judicial review.

46    The only judicial review jurisdiction of the Court relied upon by Mr Holzinger was that under the Judicial Review Act, which necessarily focussed attention on whether or not the impugned decision was “a decision of administrative character made… under an enactment” (s 7 of that Act). The Court of Appeal regarded decisions whether or not to prosecute, or enter a nolle prosequi, or proceed ex officio, or present evidence or make choices of criminal charges (although all being decisions made under an enactment), as decisions which are not susceptible to judicial review under the Judicial Review Act. The Court of Appeal reasoned that this is because they are not decisions of an administrative character. The Court concluded that the Attorney-General’s refusal to refer a case under s 672A was of a similar non-administrative character in circumstances where there was no right to a pardon. Mr Holzinger was viewed as not being a person whose rights had been affected because he had no right to a pardon in the first place (at [53]).

47    The Court of Appeal also accepted the Attorney-General’s submission in Holzinger to the effect that, having regard to what was said by Dixon J in Swan Hill Corporation v Bradbury [1937] HCA 15; 56 CLR 746 at 757-758 and Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 504 with respect to the well-established principle that whether or not a decision-maker is bound to take into account any particular matter turns on the subject matter, scope and purpose of the legislation, the applicant was wrong to contend that the Attorney-General was bound to refer a case once it was shown that there was a reasonably arguable case of miscarriage. Although the Court acknowledged that the existence of a reasonably arguable case is a necessary condition for the proper commencement of litigation, it added that “may not be a sufficient condition” (at [59]). Their Honours concluded at [60] that the correct proposition was not that the Attorney-General must refer a case if it is reasonably arguable; rather, the Attorney-General must not refer a case unless he or she is satisfied that it is reasonably arguable.

48    From [67] to [74] the Court of Appeal considered authorities in overseas jurisdictions, including the United Kingdom and New Zealand, as to whether the prerogative of mercy and/or statutory power of referral are amenable to judicial review. Their Honours also discussed the relevance of Australian cases such as Horwitz, Osland, Eastman, von Einem and Yasmin. With reference to Horwitz, their Honours said that the High Court had “held that the exercise of the prerogative of mercy is not judicially reviewable” (at [75]). With respect to Eastman, their Honours noted Lander J’s view that he was not prevented by Horwitz from deciding that the processes which must be observed in deciding whether to exercise the prerogative of mercy are subject to judicial review (at [76]). Their Honours in Holzinger also noted however, that, on appeal from Lander J’s judgment, the Full Court of this Court “doubted that the exercise of the prerogative of mercy could be reviewed but did not decide the point” (at [76] with reference to Eastman v Attorney-General (ACT) (2008) 227 FLR 262 at [41]-[42] per Stone and Dowsett JJ, with Moore J agreeing).

49    Even though Mr Holzinger did not directly challenge the Governor’s decision not to grant him a pardon, the Court of Appeal made various observations, properly regarded as obiter dicta, on that subject.

50    With reference to the High Court’s decision in Osland, their Honours emphasised the majority’s observations in that case regarding the possibility of judicial review of a decision to refuse an executive pardon. Although it was unnecessary to determine the issue in Osland, the majority observed that a petitioner seeking a pardon had necessarily exhausted his or her legal rights, with the consequence that “… the petition is based, not upon a claim of legal right, but upon an appeal to an executive discretion originating in the royal prerogative” (Osland at [47] per Gleeson CJ, Gummow, Heydon and Kiefel JJ).

51    The Court of Appeal in Holzinger also approved the following passage in the judgment of Bongiorno AJA (with whom Ashley JA agreed) in Secretary, Department of Justice v Osland [2007] VSCA 96 at [126] (footnotes omitted):

If the prerogative of mercy is indeed part of the criminal justice system at all, it is a part distinct in function and process from all that goes before it – from the filing of a charge in the Magistrates’ Court to the dismissal of an appeal by the High Court. The function of the criminal justice system is to determine guilt or non-guilt, and, if applicable, to impose sentence; its process is open, public and examinable at almost every point. It is only when that process is complete that the Sovereign can be petitioned to extend mercy to the person convicted. Whether the prerogative is exercised or not is entirely within the province of the Sovereign advised by the executive government. No question of legal rights is involved. No reasons need be given for the decision taken, whether that decision is to exercise or not exercise the prerogative or to invoke or not invoke s 584 of the Crimes Act 1958 to involve this Court or the Trial Division of the Supreme Court in the process. The decision itself is not reviewable, nor are the reasons, motives, or intentions of the Crown’s representative.

52    At [108] in Holzinger, their Honours considered the decision in Ogawa (No 2) which is the subject of the present appeal. The Court of Appeal concluded at [119] that the orders made by the Court in Ogawa (No 2) “impermissibly constituted a judicial command to the executive to institute proceedings in the criminal jurisdiction of the Court of Appeal of Queensland”. Their Honours held that Mr Holzinger had failed to establish that the Attorney-General’s decision under s 672A was amenable to review, at least on the grounds raised by the applicant.

The appeal

53    The grounds of appeal in respect of both the issue of pardon and statutory referral under s 672A of the Queensland Criminal Code are as follows:

Prerogative of mercy

1.    The primary judge erred in holding that the process leading to the exercise of the prerogative of mercy by the Governor-General, including the Appellant’s decision to recommend that the Governor-General not exercise the prerogative in favour of the Appellant, is amenable to judicial review.

2.    The primary judge erred in finding (at [39]-[48] of the reasons) that the Appellant made an error of law in relation to the prerogative of mercy given that:

2.1.    the formulation by the Executive of the criteria for the exercise of the prerogative of mercy to grant a full pardon is not judicially reviewable; and

2.2.    the departmental advice that by convention a full pardon would not generally be recommended unless the Appellant was satisfied that the convicted person was morally and technically innocent of the offence amounted to the formulation of criteria for the exercise of the prerogative of mercy to grant a full pardon.

3.    The primary judge should have found that there was no prohibition on the Appellant determining as a matter of convention or policy that he would only recommend the grant of a full pardon if he was satisfied that the convicted person was morally and technically innocent of the offence.

4.    The primary judge erred in finding that, in circumstances where the Respondent had sought only a full pardon on the basis that she had been wrongly convicted, the Appellant misunderstood the nature and extent of the circumstances in which the prerogative fell to be exercised.

5.    The primary judge erred in making a declaration in general terms concerning the nature and extent of the prerogative of mercy as an aspect of executive power under s 61 of the Constitution.

 6.    The primary judge failed to afford procedural fairness to the Appellant in that:

6.1.    the error found at [39]-[48] of the reasons was not the subject of submissions by the parties; and

6.2.    the primary judge did not raise the possibility of finding such an error in the course of argument; and

6.3.    had the primary judge raised the possibility of finding such an error, the Appellant would have made submissions in opposition to such a finding being made.

Referral to the Court of Appeal under s 672A of the Criminal Code (Qld)

7.    The primary judge erred in construing s 672A of the Criminal Code (Qld) as obliging the Appellant to refer the case of a convicted person to the Queensland Court of Appeal unless the convicted person’s request was obviously untenable, frivolous or vexatious.

8.    The primary judge erred in construing s 672A of the Criminal Code (Qld) as obliging the Appellant in effect to determine only whether:

8.1.    there was a reasonable possibility that there had been a miscarriage of justice; or

8.2.    the convicted person had presented evidence which, when the whole case was considered, at least raised a significant possibility that the jury, acting reasonably, would have acquitted the person.

9.    The primary judge erred in finding that the Appellant applied the wrong test in circumstances where:

9.1.    the committal evidence of Mr Young was not new but had been available to the Respondent at the trial and the Court of Appeal;

9.2.    the committal evidence could have been adduced by the Respondent at her trial had she not refused to participate in that proceeding;

9.3.    there was no explanation from senior counsel for the Respondent in the Court of Appeal about why the committal evidence had not been adduced; and

9.4.    consequently, it was open to the Appellant to find that there had not been a reasonable possibility of a miscarriage of justice.

10.    The primary judge erred in finding that the Appellant had applied the wrong test in circumstances where:

10.1.    the observations of three members of the High Court in Monis v The Queen (2013) 249 CLR 92 were about the meaning of ‘harassing’ in s 474.12 of the Criminal Code (Cth), and not in relation to s 474.17;

10.2.    those observations were obiter dicta and were made in the context of a challenge based on the implied freedom of political communication;

10.3.    in any event, the evidence was very likely to fall within any narrower interpretation of ‘harassing’; and

10.4.    consequently, it was open to the Appellant to find that there had not been a reasonable possibility of a miscarriage of justice arising from the trial judge and Court of Appeal’s construction of the term ‘harassing’ in s 474.17 of the Criminal Code (Cth).

54    In brief, the Commonwealth Attorney-General made the following contentions.

55    First, the primary judge erred in holding that the process leading to the exercise of the prerogative of mercy, including the Attorney-General’s decision or conduct in recommending that the Governor-General not exercise the prerogative in favour of Dr Ogawa, was amenable to judicial review.

56    Secondly, there is no prohibition on the Attorney-General determining as a matter of convention or policy that he would only recommend the grant of a full pardon if he was satisfied that the convicted person was morally and technically innocent of the offence.

57    Thirdly, in circumstances where Dr Ogawa had sought only a full pardon, the Attorney- General did not misunderstand the nature and extent of the circumstances in which the prerogative fell to be exercised.

58    Fourthly, the primary judge erred in making a declaration in general terms concerning the nature and extent of the prerogative of mercy as an aspect of executive power under s 61 of the Constitution.

59    Fifthly, in finding that the Attorney-General misunderstood the nature and extent of the prerogative of mercy, the primary judge failed to afford procedural fairness.

60    Sixthly, on its proper construction, s 672A did not oblige the Attorney-General to refer the case of a convicted person to the Queensland Court of Appeal save only where the case was obviously untenable, frivolous or vexatious.

61    Seventhly, the Attorney-General did not apply the wrong test in concluding that neither:

(a)    the failure of Dr Ogawa and her counsel to rely on the committal evidence of Mr Young; nor

(b)    the observations of three judges in Monis about the meaning of ‘harassing’ in s 474.12 of the Commonwealth Criminal Code,

gave rise to a reasonable possibility of a miscarriage of justice.

62    As noted above, some or all of the Commonwealth Attorney-General’s submissions were supported by the Attorneys-General of NSW and Queensland.

63    To avoid adding unnecessarily to the length of these reasons for judgment, we will address Dr Ogawa’s primary submissions on the appeal in the next section of these reasons for judgment.

Consideration and determination of the appeal

64    In short, for the following reasons, we consider that the appeal should be resolved as follows. First, it is unnecessary to determine the extent to which, if at all, the exercise of the mercy prerogative (which is preferably described as the exercise of the Commonwealth executive power under s 61 of the Constitution) is amenable to judicial review.

65    Secondly, and with respect, the primary judge erred in granting declaratory relief in respect of the Attorney-General’s decision not to recommend the grant of a pardon to Dr Ogawa by the Governor-General.

66    Thirdly, on the proper construction of s 672A of the Queensland Criminal Code, this Court should adopt and apply the reasoning in Holzinger, with the consequence that the primary judge erred in setting aside the Attorney-General’s decision not to refer Dr Ogawa’s matter to the Queensland Court of Appeal.

(a) The “mercy prerogative”

67    It was common ground that the power exercised by the Governor-General in determining whether or not to grant a pardon to Dr Ogawa is s 61 of the Constitution and is not to be found, for example, in Letters Patent issued by the Queen. As Gummow J observed in Re Ditford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 369, in Australia “one looks not to the content of the prerogative in Britain, but rather to s 61 of the Constitution”. Moreover, as the plurality stated in Williams v Commonwealth (No 2) [2014] HCA 23; 252 CLR 416 at [81], “… the determination of the ambit of the executive power of the Commonwealth cannot begin from a premise that the ambit of that executive power must be the same as the ambit of British executive power”. Earlier, in Pape v Commissioner of Taxation [2009] HCA 23; 238 CLR 1, the High Court said that s 61 of the Constitution encompassed the class of prerogative powers, as well as other powers (see Twomey, “Pushing the Boundaries of Executive Power – Pape, The Prerogative and Nationhood Powers”, (2010) 34 Melbourne University Law Review 313).

68    Although reference continues to be made in some Australian cases to the “prerogative of mercy” (or similar expressions), we consider that it is preferable to describe Dr Ogawa’s petition as an application for an exercise of Constitutional executive power under s 61 of the Constitution.

69    It is also appropriate to emphasise the convention which applies in Australia that, in general, the Governor-General or the Governor of a State “acts in accordance with the advice tendered to him [or her] by his [or her] Ministers and not otherwise” (FAI Insurances Ltd v Winneke [1982] HCA 26; 151 CLR 342 at [30] per Mason J). His Honour added that the Governor-General “does this by acting in conformity with the advice given by the Executive Council on consideration of the recommendation by the responsible Minister which may in some cases reflect Government policy as settled by Cabinet or determined by the Minister”. Responsible government and Governmental control of the exercise of executive power requires the Governor-General to act upon the advice given: cf. Greentree, “The Commonwealth Executive Power: Historical Constitutional Origins and the Future of the Prerogative”, (2020) 43 UNSW Law Journal 893 at 923.

70    As has been already emphasised, Dr Ogawa did not seek to challenge the Governor-General’s decision not to grant her a pardon. Rather, this part of her judicial review challenge was directed to the Attorney-General’s advice in declining to make a favourable recommendation to the Governor-General. In doing so, it is evident that the Attorney-General adopted his Department’s advice in its briefing note to him regarding what was described as the following “long standing convention” which applies to the Attorney-General’s recommendation to the Governor-General:

Long standing convention is that the granting of a full pardon should only be recommended to the Governor-General if you are satisfied that the convicted person is:

(a)    morally and technically innocent of the offence in respect of which the pardon is sought, and the offender has no remaining avenue of appeal against his or her conviction, or;

(b)    morally and technically innocent of the offence, and there are exceptional circumstances justifying the grant of a pardon despite the failure to meet the requirements of the first ground, taking into account the need to respect the separation of powers between the executive and the judiciary.

71    Although the primary judge considered that he was bound by Horwitz to conclude that a decision by the Governor-General to refuse to exercise the mercy prerogative was not amenable to judicial review, his Honour concluded that such review was available in respect to the Attorney-General’s recommendation to the Governor-General. Declaratory relief was granted in circumstances where the primary judge concluded that the Attorney-General had adopted too narrow a test in basing his recommendation on the fact that Dr Ogawa had not persuaded him that she was morally and technically innocent of the relevant offences.

72    For the following reasons, and with respect, we doubt the validity of the distinction drawn by the primary judge regarding the availability of judicial review of the Attorney-General’s recommendation, in contrast with the non-reviewability of the Governor-General’s ultimate decision whether or not to grant a pardon. First, in circumstances where a Vice-Regal officer is bound to act “in conformity with the advice given” to him or her, it would appear illusory to differentiate between the conduct of the Attorney-General in providing such advice and the subsequent formal act of the Vice-Regal officer “in act[ing] in accordance with the advice”, (with reference to what Mason J said in FAI). It is difficult to reconcile Mason J’s observations with the view expressed by Lander J in Eastman (at [78]-[80]), where his Honour drew a distinction between “the processes” which proceed the formal exercise of power by a Vice-Regal officer and the unreviewability of the ultimate decision by that person.

73    Secondly, although it is unnecessary to determine the matter, we doubt whether it is correct to state that the exercise of Constitutional executive power to grant or refuse a pardon to a petitioner is totally immune from judicial review. In expressing that doubt, we take into account that the statements in Horwitz were made not only in the context of an ex tempore decision but also were made in refusing special leave. It is now well settled that the refusal of special leave creates no precedent and binds no one (see Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [112] per Kiefel and Keane JJ). Furthermore, as has been pointed out extra-curially, in the particular circumstances of Horwitz, no exercise of the prerogative of mercy was involved (see Gummow, “Administrative Law and the Criminal Justice System”, (2008) 31 Australian Bar Review 137 at 141).

74    As the primary judge recognised, however, the relevant statements in Horwitz remain a persuasive expression of opinion by the High Court and deserve considerable respect. This is reflected in the weight which has been given to those statements in other cases which have concluded that judicial review is not available (see, for example, Martens at [23] per Logan J; Eastman at [78] per Lander J and von Einem at 112-113 per Prior J (with whom Wicks J agreed)). As noted above, the possibility of obtaining judicial review of a decision to refuse an executive pardon was expressly left open by the High Court in Osland. Whether or not such a decision is non-justiciable (see the observations of Bowen CJ in Minister for Arts, Heritage and Environment v Peko-Wallsend (1987) 15 FCR 274 at 278) and, if so, on what grounds, is a matter best left to be determined in a case where it is essential to do so. As matters stand at present, however, we respectfully agree with the Full Court’s observation in Yasmin at [88] that the current state of the law in Australia is “somewhat unsettled”.

75    If and when the issue of the nature and scope of judicial review of the exercise of the non-statutory power to pardon arises for determination, appropriate weight will need to be given to the Australian Constitutional context. That is not to say that relevant overseas developments will be entirely irrelevant. As noted above, the Privy Council has held that the prerogative of mercy is susceptible to judicial review, at least on some grounds. A recognition of the fact that there may well be some aspects of the decision-making power to grant or refuse mercy which are essentially political or non-justiciable, does not necessarily carry the consequence that any legal error manifest in that decision-making process should remain immune from judicial scrutiny.

76    The position may also have changed in Great Britain, as is reflected in the following paragraphs from a recent publication by Noel Cox, “The Royal Prerogative and Constitutional Law”, Routledge, 2020 at 164-165 (footnotes omitted and noting that the reference to Bancoult is to the House of Lords’ decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61; 3 WLR 955 and the Miller decision, which relates to judicial review of the prerogative power to prorogue Parliament, is reported at [2019] UKSC 41) (other citations omitted):

In the course of the twentieth century and into the twenty-first, a series of court decisions has eroded the previously inviolate status of the royal prerogative. The clear principle that courts will not question the mode or manner of use of admitted prerogatives gave way to the principle that instruments made pursuant to the prerogative were reviewable but the exercise of political prerogatives was not. Now, with Bancoult, we have the principle that courts hold that there is ‘no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action’, but at the same time a rule of abstinence, where the exercise of these powers was essentially a political matter, a concern for the executive and the legislature, and not the judiciary. This leaves us with greater conceptual certainty – all powers are reviewable – but an uncertain doctrine of abstinence, in place of a principle of non-reviewability.

The rule of abstinence appears to be weakening, with the decision of the Supreme Court of the United Kingdom in R. (Miller) v. The Prime Minister, Cherry & Ors. v. Advocate General for Scotland. This, in part perhaps a sign of the subtle changes in the balance of power between courts, Parliament and executive after the creation of the new court. R. (Miller) v. The Prime Minister, Cherry & Ors. v. Advocate General for Scotland, also extends the scope for judicial review, under the guise of determining the existence and scope of a claimed prerogative, into the realm hitherto scarcely touched by the courts, of the exercise of such powers.

77    Thirdly, focussing simply on Dr Ogawa’s challenge to the Attorney-General’s recommendation that she not be granted a pardon, we respectfully disagree with the primary judge that the recommendation was affected by a material legal error. That is because, irrespective of whether there was reviewable error in the Attorney-General’s consideration of the implications of Monis to Dr Ogawa’s case, there was no real prospect that a state of satisfaction could be reached that Dr Ogawa was “innocent” of any of the offences for which she was convicted. The highest any state of satisfaction one could reach would be a state of satisfaction that her submissions in respect of what was said in Monis regarding the proper construction of “offensive” in s 474.17 of the Commonwealth Criminal Code, with reference to that part of the offence concerning “harassment”, was such that they should most appropriately be reconsidered by the Court of Appeal in Queensland.

78    The position is similar with regard to Dr Ogawa’s complaint regarding Mr Young’s evidence at the committal hearing which she claims was relevant to her conviction of the offences under s 474.15 of the Commonwealth Criminal Code.

79    Considerable care must be exercised in undertaking any process of reviewing the advice of the Attorney-General to the Governor-General. Unlike many cases in which judicial review is sought, where it is well recognised that judicial review does not extend to reviewing the merits of a decision, and in circumstances where an analysis by a decision-maker of the legal principles of relevance to the decision sought to be reviewed provides but a background to the actual merits of the decision under review, in the present case it is the very analysis of the relevant legal principles which forms the merits of the decision under review. The “merits” of the advice of the Attorney-General was that no state of satisfaction could be reached in accordance with “[l]ong standing convention” which focusses attention on whether or not Dr Ogawa was “morally or technically innocent”. In the absence of manifest legal error or a denial of procedural fairness, that assessment remained a matter within the decision-making freedom entrusted to the Attorney-General. In reaching that decision no legal error or principle was exposed which was susceptible of judicial scrutiny.

(b) The referral decision

80    We accept the Attorney-General’s submission that this Court should follow Holzinger unless persuaded that it is plainly wrong. In Falzon at [49], the High Court confirmed that “Australian intermediate appellate courts are bound to follow the decisions of other Australian intermediate appellate courts in both matters of statutory interpretation and matters of common law unless persuaded that those decisions are plainly wrong”. Additional factors which reinforce that principle are the fact that the Court of Appeal’s decision relates to the construction of a Queensland statute, being s 672A of the Queensland Criminal Code. Secondly, recognition should also be given to the fact that the Court of Appeal, which was unanimous, was presided over by its President. Holzinger concerned the same statutory provision which is the subject of the present appeal. We accept the Attorney-General’s submission that considerations of precedent and deference apply even more strongly in these circumstances.

81    There is no need to repeat the summary above of the Court of Appeal’s reasons for construing and applying that part of s 672A which relates to the statutory power of referral. We are not persuaded that the Court’s essential reasoning is plainly wrong. Dr Ogawa’s formal contention to the contrary was not developed. Instead, her primary position was that Holzinger was distinguishable and did not address the issues raised in the present appeal.

82    Dr Ogawa’s contentions concerning Holzinger may be summarised as follows:

(a)    Unlike the position in Holzinger, Dr Ogawa does not contend that the Attorney-General was obliged to refer her case because the Attorney-General was satisfied that there was a reasonably arguable miscarriage of justice.

(b)    Holzinger stands for the proposition that the Attorney-General’s statutory power of referral is not amenable to judicial review, at least on the grounds raised by Mr Holzinger. That is not to say that it may not be reviewable on other grounds, such as those raised by Dr Ogawa.

(c)    In any event, Holzinger is distinguishable because the source of the Attorney-General’s decision-making power here was not in fact s 672A, but rather s 68(1) (or alternatively, s 79) of the Judiciary Act. Accordingly, and importantly, the Commonwealth Attorney-General’s exercise of power is amenable to judicial review with particular regard to s 75(v) of the Constitution and the Commonwealth’s separation of powers, in contrast with the position of a State officer acting under a State law.

(d)    The Attorney-General conceded in the appeal that his referral decision would be subject to judicial review for bad faith or fraud, thus the central question is not whether or not his referral power is amenable to judicial review, but rather the grounds on which such review is available.

(e)    If Holzinger is read as approving the notion that s 672A does not create any legal rights and the submission of a petition does not give rise to any legal rights this would be contrary to Yasmin and should not be followed.

83    For the following reasons, we do not accept those contentions.

84    Dr Ogawa has understated the scope and effect of the Court of Appeal’s dismissal of the judicial review application before it. Not only did the Court hold that there was no obligation on the Attorney-General to refer a case if it is reasonably arguable that there was a miscarriage of justice, the Court considered and dismissed each of the particular judicial review grounds raised by the applicant. As noted above, the grounds of judicial review included procedural unfairness, exercising a discretionary power without regard to the merits of an individual case, unreasonableness, failure to take into account relevant considerations and making a decision without evidence. We accept the Attorney-General’s submission that, in these circumstances, Holzinger stands for the proposition that the Attorney-General’s referral decision is not amenable to judicial review on any of these grounds. Those grounds are, in substance, indistinguishable from the grounds relied upon by Dr Ogawa. That is not to say that judicial review would not be available for bad faith or fraud, but those grounds were not raised either in Holzinger or here. Deference to the decision of the Court of Appeal in Holzinger indicates that the availability and ambit of judicial review is severely limited. It is certainly not a decision which is plainly wrong.

85    Holzinger cannot be distinguished with reference to ss 68 or 79 of the Judiciary Act and the contrast between Commonwealth and State judicial review. We accept the Attorney-General’s submission that the relevant question is whether the exercise of a particular power (whether it be sourced in s 61 of the Constitution or in statute) is amenable to judicial review, having regard to the nature and subject matter of the power. Even in the case of some statutory powers, reviewability may in practice be quite limited (see, for example Buck v Bavone (1976) 135 CLR 110 at 118-119 per Gibbs J (as his Honour then was), who said that, in the case of a statutory power involving “a matter of opinion or policy or taste”, it may be difficult to establish reviewable error and the decision-maker is “left with a very wide discretion which cannot be effectively reviewed by the courts”).

86    The central question is one of identification of the judicially-enforceable legal limits of the exercise of power, whether that power be an executive power under s 61 of the Constitution or a statutory power. That question can arise under either Commonwealth or State law and it is difficult to see how either ss 68 or 79 of the Judiciary Act operate to change the nature and subject matter of any power, nor affect its legal limits.

87    Holzinger is not distinguishable on the basis that the only jurisdiction of the Court to review the Attorney-General’s s 672A decision in that case was the Judicial Review Act, which has a different underpinning to review under s 39B of the Judiciary Act. Although it is true that the Court of Appeal found that the Attorney-General’s decision not to make a referral was not a decision of an administrative character for the purposes of the Judicial Review Act, the Court proceeded to explain why the decision was not susceptible in any event to judicial review on any of the grounds raised by the applicant. We consider that reasoning to be also generally applicable to judicial review of Commonwealth statutory decision-making under s 39B of the Judiciary Act.

88    Finally, we see no inconsistency between Yasmin and Holzinger. These decisions address different issues. Yasmin simply decided that there was a duty on the Attorney-General to determine whether or not to exercise the statutory referral power, with the consequence that mandamus could issue where there was an unreasonable delay in making that decision. The Full Court was not asked to determine the nature and ambit of judicial review of the exercise of that power. The effect of Yasmin is that a petitioner has a legal right to have the petition considered and determined by the Attorney-General, but it stops short of holding that an applicant has any legal rights with respect to the Attorney-General’s consideration of the petition (see also [24] and [51] above).

Dr Ogawa’s cross-appeal and notice of contention

89    As is evident from [9] and [10] above, there is a substantial overlap in the cross-appeal and notice of contention. In both matters, Dr Ogawa says that, in deciding not to make a referral under s 672A, the Attorney-General failed to apply three legal principles, namely:

(a)    failing to appreciate the significance of Monis with respect to the proper meaning of “harass”;

(b)    misunderstanding the significance of the issues before him presented by the decision of the Queensland Court of Appeal in [2011] 2 Qd R 350 and the High Court’s determination in Ogawa v R [2010] HCASL 188; and/or

(c)    in rejecting the contention that, in the circumstances, there was at least a reasonable possibility that there had been a miscarriage of justice.

90    Given the conclusion that the decision of the Queensland Court of Appeal is not plainly wrong and that decisions of the Attorney-General made pursuant to s 672A are generally not susceptible to judicial review, these further arguments advanced on behalf of Dr Ogawa must also fail. Irrespective of whether such decisions are or are not reviewable, reservation is nevertheless expressed as to whether the discretion conferred by s 672A is confined in the manner propounded by the Court of Appeal, namely that the “real position is not that the Attorney-General must refer a case if it is reasonably arguable; it is that the Attorney-General must not refer a case unless she is satisfied that it is reasonably arguable”: Holzinger at [60]. Such a constraint upon the discretionary power is certainly not expressed in the terms of s 672A itself, a discretion which it has been said is “unconfined”: cf. Mallard at [6]. Further reservation arises by reason of the very real prospect that quite different arguments may have been presented during Dr Ogawa’s trial had the decision in Monis then been available. Those arguments would in all likelihood have included an argument as to the Constitutional invalidity of s 474.17 of the Commonwealth Criminal Code. Dr Ogawa’s conviction necessarily was resolved by reference to the evidence and arguments then presented. The reason for present reservation springs not from any criticism as to the trial process but rather from the consideration given to Dr Ogawa’s reliance upon the Monis decision in her Petition to the Governor-General in October 2014. Although the Holzinger decision precludes judicial scrutiny of the consideration given to the Monis decision by the Office of the Commonwealth Director of Public Prosecutions in August 2015, and in the letter from the Attorney-General’s Department to Dr Ogawa in April 2018, such review as may be undertaken exposes little if any consideration being given to whether s 474.17 may have been an impermissible “burden on the [implied] freedom of political communication”. But, given the decision in Holzinger, these concerns may be placed to one side.

91    Similarly, also placed to one side is the Attorney-General’s submission that Dr Ogawa had elided the legal principles that would be applied by the Court of Appeal on a referral with the principles applicable to the Attorney-General’s consideration under s 672A whether or not to make a referral to the Court of Appeal. In essence, it is submitted that Dr Ogawa seeks to prosecute the referral itself by way of an application for a judicial review of the Attorney-General’s decision not to make a referral. The legal principles that would be applied by the Court of Appeal in the event that a referral was made, however, are different from the principles applicable to the Attorney-General’s earlier consideration whether or not to make a referral under s 672A.

92    For these reasons, neither the cross-appeal nor the notice of contention has any basis.

Conclusion

93    For these reasons, the appeal should be allowed and the orders dated 28 June 2019 should be set aside. In lieu thereof, it should be ordered that the amended originating application filed on 20 July 2018 be dismissed. The cross-appeal and notice of contention should be dismissed.

Associate:    

Dated:    28 October 2020