Case: Pepper v Attorney-General (Qld) [No 2] [2008] QCA 207
Outcome: considered
assumption that a decision by Queensland's Attorney-General not to refer a case to the Court of Appeal under s 672A was amenable to judicial review under that State's analogue of the ADJR Act, the Judicial Review Act 1991 (Qld) (Judicial Review Act), underpins the decision of the Court of Appeal in Pepper v Attorney-General (Qld) (No 2) [2008] QCA 207 ( Pepper's Case). It was held that the State Attorney could not be ordered pursuant to s 38(2) of the Judicial Review Act (an analogue of s 13(4) and (4A) of the ADJR Act) to furnish a statement of reasons for the refusal. The basis for the Court of Appeal's so holding was not that the State Attorney's decision was not one to which the Judicial Review Act applied, but rather that it was a decision in the administration of criminal justice and thus, by virtue of the exemption for which s 31(2) and Schedule 2, item 1 of the Judicial Review Act provide, exempt from the statutory obligation to give reasons if requested. For completeness, reference should be made to von Einem v Griffin (1998) 72 SASR 110 in which a conception that the feature that the referral power was an adjunct to the prerogative of mercy led a Full Court of the South Australian Supreme Court to hold that a Minister's decision not to refer a case to the Full Court pursuant to that State's analogue of s 672A, s 369(a) of the Criminal Law Consolidation Act 1935 (SA), was not amenable to judicial review. Given that conception, Horwitz v Connor was considered to dictate that result. von Einem v Griffin was not a case where the judicial review application was made under an equivalent of the ADJR Act. In this case though, the view is open that, insofar as he refused to refer the case to the Court of Appeal, the Minister made a decision: under an enactment, namely s 68 of the Judiciary Act , which rendered applicable s 672A of the Queensland Criminal Code ; of an administrative character; and accordingly one to which the ADJR Act applies. von Einem v Griffin is, for this reason alone, distinguishable. Further, as the Court's jurisdiction is sufficiently invoked by the reliance on the ADJR Act, it is unnecessary to decide whether an alternative basis for a judicial review jurisdiction exists having regard to s 75(v) of the Constitution and s 39B of the Judiciary Act and given that the decision is one made under statute by an officer of the Commonwealth. Though Perrier v Kerr , Pepper v Attorney-General (Qld) [No 2] and Eastman v A-G (ACT) are not, strictly, binding, I ought to follow them unless, which is not the case here, I am convinced that they are clearly in error. Section 672A was described by Muir JA, de Jersey CJ and Fraser JA agreeing, in Pepper's Case, [2008] QCA 207 at [11] , as "a mechanism which the Crown may employ so that the exercise of the pardoning power may be properly informed or so as to grant the petitioner, in effect, a further appeal". His Honour further stated (at [12]), "The issue to be determined by the Court of Appeal in considering a matter referred under s 672A(a) is the same as that falling for resolution on an appeal, namely whether there has been a miscarriage of justice".