Case: Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257
Outcome: cited
accept therefore that the decision made by the Minister is one to which the ADJR Act applies and that consequently this court has jurisdiction to review the Minister's decision to refuse to refer the case to the Court of Appeal. In so doing, it is unnecessary to decide and I refrain from expressing any view as to whether, were the Minister desirous of having the benefit of the opinion of the Court of Appeal on a point arising in the application for a pardon (for which s 672A(b) of the Queensland Criminal Code prima facie provides) a need to read s 68 of the Judiciary Act subject to the Constitution (s 15A Acts Interpretation Act 1901 (Cth)) (Acts Interpretation Act ) would prevent the application of that part of the provision to a person who sought a pardon in respect of a federal offence. A concern would be whether that application would be prevented by the prohibition, arising from the interpretation of Chapter III of the Constitution favoured in Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257 , against the furnishing of advisory opinions in the exercise of judicial power in federal jurisdiction. That is a subject which may only arise, if at all, in the event not only that the present decision were set aside but the Minister (assuming he is the relevant Commonwealth Minister of State) were disposed to act under s 672A(b), rather than s 672A(a), of the Queensland Criminal Code . The request made by the Applicant in his application and the way it was dealt with by the Minister suggest that it was both intended to be and was treated as one made under s 672A(a) only. Was the Minister empowered to make the decision? The Applicant's argument in respect of this issue was succinct but none the worse for that. There were officers of the Commonwealth whose title corresponded exactly with those State officers named in the definition of "Crown Law Officer" for the purposes of s 672A of the Queensland Criminal Code . That being so, it was submitted that there was no warrant for applying this provision, pursuant to s 68 of the Judiciary Act , "so as [it is] applicable", to enlarge its application so as to embrace the Minister. To the contrary, it was submitted that, having regard to the sensitivity which might attend the pardoning of a person convicted after a jury verdict and subsequent unsuccessful appeal, the choice in the definition of the Attorney-General and the Director of Public Prosecutions may not have been coincidental representing as it did the Crown's First Law Officer on the one hand and the senior independent officer holder charged with responsibility for prosecutions. The Respondent's argument was rather more elaborate. Its starting point was Ch II of the Constitution . Section 62 of the Constitution makes provision for a Federal Executive Council. In turn, s 64 of the Constitution provides for the appointment of members of the Federal Executive Council as Ministers, "the Queen's Ministers of State for the Commonwealth", "to administer such departments of State of the Commonwealth as the Governor-General in Council may establish". Section 65 then materially provides that those Ministers of State "shall hold such offices ... as the Governor-General directs".