Holzinger v Attorney-General (Qld) & Anor

(2020) 5 QR 314; [2020] QCA 165

Queensland Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Reviewable decisions
4. › Decision of an administrative character made under an enactment
5. › Attorney-General's refusal to refer case to Court of Appeal under petition for mercy
6. › Whether decision amenable to judicial review
7. › Whether decision of an administrative character
8. › Whether applicant a person aggrieved
9. › Judicial Review Act 1991 (Qld), ss 4, 7
10. › Criminal Code (Qld), s 672A
1. Criminal Law
2. › Appeal and new trial
3. › Pardon, commutation of penalty, reference on petition for pardon and inquiry after conviction
4. › Reference to court
5. › Power of Attorney-General to refer case to Court of Appeal
6. › Nature and scope of discretion under s 672A
7. › Whether discretion constrained by implied statutory test
8. › Whether existence of reasonably arguable miscarriage of justice compels referral
9. › Criminal Code (Qld), s 672A
1. Constitutional Law (Cth)
2. › Separation of powers
3. › State courts exercising federal jurisdiction
4. › Whether judicial review of Attorney-General's referral decision would impermissibly require court to involve itself in executive decision to commence proceedings
5. › Kable principle
6. › Whether orders compelling referral incompatible with judicial independence

Quick Take

Practitioners seeking judicial review of an Attorney-General's refusal to refer a case to the Court of Appeal under s 672A of the Criminal Code (Qld) or analogous provisions should note that such decisions are not amenable to review under the Judicial Review Act 1991 (Qld), and the approach in Martens and Ogawa (that the Attorney-General must apply a 'reasonable possibility of miscarriage' test) has been disapproved.