Is the Attorney-General judicially reviewable?

Federal Court: the A-G declined to recommend to the Governor-General that the Applicant be pardoned and to refer her case to the Queensland Court of Appeal. Were those decisions by the A-G judicially reviewable? Why this decision matters to our clients: under s 501(10) of the Migration Act 1958, a conviction is to be disregarded for the purposes of the character test if the person has been pardoned or the conviction has been quashed.

To avoid doubt, the writer is not expressing an opinion on the conduct (or omission) of the Applicant nor on anyone else. In any event, the writer is not suggesting that the Applicant or anyone else engaged in any conduct (or omission). This article is a mere extract of a decision and should not be interpreted in any other way.

Summary and discussion

The Applicant was convicted in Queensland in respect of Commonwealth and state offences and exhausted her appeal rights. She then lodged a petition with the Attorney-General (A-G), "pursuant to which she sought either the granting of a pardon to her in the exercise by the Governor-General [(G-G)] of the Royal Prerogative of Mercy or, alternatively, the referral of her case to the Queensland Court of Appeal pursuant to s 672A(a) of the Criminal Code 1899 (Qld) (Queensland Criminal Code), as applied by s 68 of the Judiciary Act 1903 (Cth) (Judiciary Act)".

An officer of the A-G's office wrote to the Applicant as follows:

Having regard to all the relevant information, the Attorney-General is satisfied that you were not morally and technically innocent of the offences of which you were convicted. Petitions for the exercise of the Royal Prerogative of Mercy are considered in view of a person’s overall culpability and not just anomalies in respect of a person’s conviction. Accordingly, the Attorney-General has made a decision not to exercise the Royal Prerogative of Mercy in relation to your convictions. The Attorney-General also declined to refer your matter to the Queensland Court of Appeal.

The reference to the A-G having made a decision not to pardon the Applicant was meant to be a reference to refuse to refer her petition to the G-G, but nothing turned on that mistake.

The questions to the Federal Court (FCA) were as follows:

Question 1: was the A-G's refusal to refer the Applicant's petition to the G-G judicially reviewable?

Question 2: if the answer to Question 1 is "yes", was it a jurisdictional error for for the A-G to act on the basis that a pardon is "limited to cases where there is satisfaction that the petitioner is morally and technically innocent of the offence"?

Question 3: if the answer to Question 2 is "yes", what judicial remedy is the Applicant entitled to?

Question 4: was the A-G's refusal to refer the Applicant's case to the Queensland Court of Appeal judicially reviewable?

Question 5: if the answer to Question 4 is "yes", was it a jurisdictional error for for the A-G to refuse to refer the case to the Queensland Court of Appeal?

Question 6: if the answer to Question 5 is "yes", what judicial remedy is the Applicant entitled to?

What is the importance, for our clients, of an executive pardon or of having a matter referred to a court of appeal? Subsection 501(10) of the Migration Act 1958 reads as follows:

(10)  For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

(a)  the conviction concerned has been quashed or otherwise nullified; or

(b)  both:

(i)  the person has been pardoned in relation to the conviction concerned; and

(ii)  the effect of that pardon is that the person is taken never to have been convicted of the offence.

The FCA answered those questions as follows:

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