Martens v Commonwealth of Australia [2009] FCA 207

FEDERAL COURT OF AUSTRALIA

Martens v Commonwealth of Australia [2009] FCA 207

ADMINISTRATIVE LAW — Application for judicial review of a decision of the Cth Executive not to refer matter to an appellate court — Division of portfolio responsibilities between two Ministers — Effect of division — Where two Ministers appointed to administer under a governing Commonwealth statute where relevant State Act only refers to the State Attorney-General — Whether Minister for Home Affairs empowered to refer a decision to an appellant court pursuant to s 672A Criminal Code 1899 (Qld) as applied by s 68 Judiciary Act 1903 (Cth) — Whether decision reviewable under Administrative Decisions (Judicial Review) Act 1977 (Cth) — held decision reviewable — Whether Minister failed to take into account relevant considerations — Held Minister for Home Affairs empowered to make decision but failed to take relevant considerations into account — Decision set aside CRIMINAL LAW — Appeal — New trial and inquiry after conviction — Pardon, commutation of penalty, on petition for pardon and inquiry after conviction — Whether decision not to refer case to an appellate court was amenable to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) — Nature of test to apply in deciding whether or not to refer case to an appellate court— Held correct test not applied

STATUTORY INTERPRETATION—Judiciary Act 1903(Cth) s 68 —Judicial Review Act 1991 (Qld) — application of Criminal Code Act 1899(Qld) s 672A to federal offenders by virtue of the Judiciary Act 1903 (Cth) – s 15A Acts Interpretation Act 1901 – relevance of constitutionally permissible Commonwealth public administration practice to determination of which officer of the Commonwealth able to exercise powers conferred in State Law made applicable by s 68 Judiciary Act – held practice relevant