Ogawa v Attorney General (No 2)

• Jurisdiction: Australia Federal only
• Judge: LOGAN J
• Judgment Date: 28 June 2019
• Neutral Citation: [2019] FCA 1003
• Court: Federal Court
• Date: 28 June 2019

FEDERAL COURT OF AUSTRALIA

Ogawa v Attorney-General (No 2) [2019] FCA 1003

File number:	QUD 381 of 2018
Judge:	LOGAN J
Date of judgment:	28 June 2019
Catchwords:	ADMINISTRATIVE LAW – judicial review – pardoning power – where the applicant lodged a petition for a pardon for convictions made by a State court exercising federal jurisdiction – application for review of a decision by the Attorney-General not to refer the matter to the Governor-General or to the Queensland Court of Appeal – whether State court’s contempt powers picked up in its exercise of the federal jurisdiction – where State provisions regarding the Prerogative of Mercy were picked up – whether exercise of the Prerogative of Mercy is justiciable – whether the process undertaken before the Prerogative of Mercy is exercised is justiciable. HELD – declaratory relief can be granted in respect of denials of procedural fairness or jurisdictional errors committed by the Attorney-General. ; ADMINISTRATIVE LAW – whether Attorney-General erred in his decision not to refer a petition for a pardon to the Governor-General or the Queensland Court of Appeal – whether Attorney-General should have referred a contempt conviction which was not subject to the petition – Attorney-General was limited to the scope of the petition – where there was no error in exercise of power to convict the applicant for contempt. HELD – the failure to refer the contempt conviction was not a jurisdictional error. ; ADMINISTRATIVE LAW – whether Attorney-General erred in his decision not to refer a petition for a pardon to the Governor-General or the Queensland Court of Appeal – where evidence was given at the committal, but not at the criminal trial, which arguably called into question the applicant’s conviction – where there is recent High Court authority which is arguably at variance with the law as applied by the Queensland Court of Appeal in the applicant’s appeal against conviction – where Attorney-General decided himself none of the grounds in the petition established a miscarriage of justice – whether it is the role of the Attorney-General to determine if a miscarriage of justice is positively established – whether jurisdictional error was material. HELD – jurisdictional errors were material. ; CONSTITUTIONAL LAW – Royal Prerogative of Mercy – where executive power of the Commonwealth is vested in the Governor-General by s 61 of the Constitution – where Prerogative of Mercy elivened Attorney-General’s petition for exercise of discretion to refer a case to Queensland Court of Appeal – where the Attorney-General refused either to recommend the favourable excuse by the Governor-General as to refer the case – whether the decision and conduct of the Attorney-General are amenable to judicial review. HELD – the conduct of the Attorney-General in refusing to make a recommendation to the Governor-General to exercise the Prerogative of Mercy may be subject to declaratory orders. HELD – the refusal to defer a case was amenable to judicial review – Judiciary Act 1903 (Cth) ss 39B, 68; Criminal Code 1899 (Qld) s 692A, Constitution ss 61, 75(v).
Legislation:	Constitution ss 61, 71, 75, 77 Acts Interpretation Act 1901 (Cth) s 38 Administrative Decision (Judicial Review) Act 1977 (Cth) ss 3, 6 Criminal Code (Cth) ss 474.12, 474.15, 474.17 Judiciary Act 1903 (Cth) ss 39, 39B, 68, 79 Crimes Act 1900 (ACT) s 31 District Court of Queensland Act 1967 (Qld) s 129 Criminal Code 1899 (Qld) s 672A Crimes Act 1890 (Vic) s 540 Commonwealth of Australia Constitution Act 1900 (UK) Constitution (US) art 2
Cases cited:	Annetts v McCann (1990) 170 CLR 596 Biddle v Perovich, 274 US 480 (1927) Burt v Governor General [1992] 3 NZLR 672 Clampett v Attorney-General (Cth) (2009) 181 FCR 473 Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 Cox v Commissioner of Police [2013] QDC 278 de Freitas v Benny [1976] AC 239 Eastman v Attorney-General for the Australian Capital Territory (2007) 210 FLR 440 Edwards v Santos Ltd (2011) 242 CLR 421 Ex Parte Grossman, 267 US 87 (1925) FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Horwitz v Connor (1908) 6 CLR 38 Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44 Jesser v Chief of Air Force (2015) 300 FLR 218 Keeley v Brooking (1979) 143 CLR 162 Lewis v Attorney General of Jamaica [2001] 2 AC 50 Martens v Commonwealth of Australia (2009) 174 FCR 114 Masson v Parsons [2019] HCA 21 McKenzie v McKenzie [1971] P 33 Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 Minister for Home Affairs v Ogawa [2019] FCAFC 98 Monis v The Queen (2013) 249 CLR 92 Ogawa v Attorney General [2018] FCA 498 Ogawa v Minister for Immigration (2006) 156 FCR 246 Ogawa v Minister for Immigration [2006] FMCA 1039 Ogawa v Minister for Immigration and Border Protection [2018] FCA 62 Ogawa v The Queen [2010] HCASL 188 Osland v Secretary, Department of Justice (Vic) (2008) 234 CLR 275 Pitman v State of Trinidad and Tobago [2018] AC 35 R v Daley; Ex parte Attorney-General (Qld) [2005] QCA 162 R v Martens (No 2) [2011] 1 Qd R 575 R v Martens [2010] 1 Qd R 564 R v Murphy (1985) 158 CLR 596 R v Ogawa [2011] 2 Qd R 350 R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349 R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 Reckley v Minister for Public Safety and Immigration (No 2) [1996] AC 527 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 Schick v Reed, 419 US 256 (1974) Shergill v Khairan [2015] AC 359 Starkey v Commonwealth Director of Public Prosecution [2013] QDC 124 Street v Queensland Bar Association (1989) 168 CLR 461 TKWJ v The Queen (2002) 202 CLR 124 Viro v The Queen (1978) 161 CLR 88 von Einem v Griffin (1998) 72 SASR 110 Yasmin v Attorney-General (Cth) (2015) 236 FCR 169 Zukanovic v Magistrates’ Court (Vic) (2011) 32 VR 216
Date of hearing:	27 November 2018
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	93
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr G del Villar
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		QUD 381 of 2018
BETWEEN:	DR MEGUMI OGAWA Applicant
AND:	ATTORNEY-GENERAL Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	28 JUNE 2019

THE COURT ORDERS THAT:

1. In relation to so much of the respondent’s decision of 20 March 2018 as entailed deciding not to make a favourable recommendation to His Excellency the Governor-General in...